AMENDMENT NO. 1 TO ROLLOVER AGREEMENT
Exhibit 99.12
AMENDMENT NO. 1 TO ROLLOVER AGREEMENT
This Amendment No. 1 (this “Amendment No. 1”) to that certain Rollover Agreement, dated as of
January 18, 2011 (the “Rollover Agreement”), by and between Ray Holding Corporation, a
Delaware corporation (the “Company”) and Chen Revocable Trust DTD 5/8/2011 (the
“Investor”), is made and entered into as of May 17, 2011 by and between the Company and the
Investor. All capitalized terms that are used in this Amendment No. 1 but not defined in this
Amendment No. 1 shall have the respective meanings ascribed thereto in the Rollover Agreement.
A. On May 17, 2011, Parent, Merger Sub and the Company entered into Amendment No. 2 to the
Merger Agreement (“Amendment No. 2 to the Merger Agreement”).
B. In connection with Amendment No. 2 to the Merger Agreement, the Investor and the Company
desire to enter into this Amendment No. 1, and the Investor believes it is in its best interests to
enter into this Amendment No. 1 and consummate the transactions contemplated hereby, by the
Rollover Agreement and by the Merger Agreement.
Now, Therefore, the parties hereto hereby agree as follows:
1. Rollover Amount.
(a) Recital C of the Rollover Agreement is hereby amended and restated in its entirety as set
forth below:
C. In connection with the transactions contemplated by the Merger
Agreement (the “Contemplated Transactions”), the Investor desires, immediately prior to the
consummation of the Merger on the Closing Date, to contribute to the Company (i) that number
of shares of Target Common Stock as set forth on Exhibit A attached hereto (the
“Exchange Shares”) having a per share purchase price equal to the Merger Consideration (the
aggregate purchase price for the shares of Target Common Stock to be exchanged by the
Investor shall be referred to herein as the “Rollover Amount”) and (ii) the Transferable
Shares.
(b) Section 1(a) of the Rollover Agreement is hereby amended and restated in its entirety as
set forth below:
(a) Immediately prior to the Effective Time (as such term is defined in the Merger
Agreement), the Investor shall surrender to the Company the Investor’s Exchange Shares and
the Transferable Shares (and the certificate(s) representing such Exchange Shares and such
Transferable Shares accompanied by duly executed stock powers), free and clear of all
Encumbrances and, simultaneously with such surrender, the Company shall issue to the
Investor a certain number of shares of the Company’s Preferred Stock and Common Stock (as
further defined in Section 7(f), the “Rollover Shares”) (the “Rollover”). Such Rollover
Shares issued to the Investor shall have an aggregate value equal to the Rollover Amount.
The allocations of shares of Preferred Stock and Common
Stock will be in accordance with the Investor’s, the other Rollover Holders’ and the
Sponsors’ pro rata portion set forth on Exhibit F, and for the avoidance of doubt,
with respect to the Investor, shall be the same relative proportion as the allocation of the
shares of Preferred Stock and Common Stock issued to the Sponsors pursuant to the
Subscription Agreement. Immediately following the Effective Time, there shall not be
outstanding any stock of the Company or securities convertible or exchangeable for any
shares of the Company’s capital stock other than the Preferred Stock and Common Stock issued
to the Investor, the other Rollover Holders and the Sponsors. For purposes of illustration
only, Exhibit F sets forth an example of the capitalization table based on the
assumed total outstanding equity required to be funded to Parent at Closing.
2. Fees and Expenses. Section 9(n) of the Rollover Agreement is hereby amended and restated
in its entirety as set forth below:
(n) Fees and Expenses. (i) Subject to Section 9(n)(ii), the Expenses incurred by each party
hereto will be borne by the party incurring such Expenses. (ii) The Company shall reimburse
the Investor and the other Rollover Holders for their reasonable out-of-pocket Expenses (or
directly pay such Expenses to the extent not paid by the Investor as of the Effective Time),
up to a maximum of $400,000 in the aggregate for the Investor and all of the other Rollover
Holders; provided, if the Investor and the other Rollover Holders provide reasonable advance
notice to the Company that they have incurred Expenses in excess of $400,000, the Company
may consent to the payment of such additional Expenses, which consent will not be
unreasonably withheld; provided, further, that the Company shall have no obligation under
this Section 9(n)(ii) to the Investor in the event the Rollover is not effected. (iii) For
purposes of this Agreement, “Expenses” shall mean, with respect to a party, the reasonable
fees and expenses incurred by that party in connection with the authorization, preparation,
negotiation, execution and performance of this Agreement, the Transaction Documents, any
related agreements and transactions contemplated hereby and thereby (including the fees and
expenses of counsel, accountants, investment bankers, financial sources and consultants).
The Investor shall cause any third party for whom it will seek reimbursement of Expenses
hereunder to provide the Company, promptly upon request, such updates and related
information related to the Expenses incurred (including billing accruals) as the Company may
reasonably request. Nothing in this Agreement limits in any manner the rights of the
Investor or its Affiliates to indemnification pursuant to any instrument, document or
applicable law.
3. Rollover Agreement References. The parties hereto hereby agree that all references
to the “Agreement” set forth in the Rollover Agreement (including, without limitation, in the
representations and warranties of the parties set forth therein) shall be deemed to be references
to the Rollover Agreement as amended by this Amendment No. 1.
4. Full Force and Effect. Except as expressly amended or modified hereby, the
Rollover Agreement and the agreements, documents, instruments and certificates among the parties
hereto as contemplated by, or referred to, in the Rollover Agreement shall remain in full force and
effect without any amendment or other modification thereto.
5. Counterparts. This Amendment No. 1 may be executed in several counterparts, each
of which shall be deemed an original and all of which shall constitute one and the same instrument.
The exchange of a fully executed Amendment No. 1 (in counterparts or otherwise) by facsimile shall
be sufficient to bind the parties to the terms and conditions of this Amendment No. 1.
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In Witness Whereof, the parties have executed this Amendment No. 1 as of the date first
written above.
| Ray Holding Corporation |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | President | |||
| INVESTOR: |
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| /s/ Xxxxxx X. Xxxx | ||||
| /s/ Xxxx Xxxx | ||||
Amendment No. 1 Signature Page
