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SUPPORT AGREEMENT
This SUPPORT AGREEMENT, is entered into as of October 5, 1999, among
CIC Acquisition Sub, Inc., a South Carolina corporation ("Acquisition Sub"), and
X. Xxxx Xxxxxxx (the "Shareholder").
WHEREAS, CIC Acquisition Co. ("Parent"), Acquisition Sub and Conso
International Corporation, a South Carolina corporation (the "Company"), have,
simultaneously with the execution and delivery of this Agreement, entered into a
Merger Agreement (as the same may be amended or supplemented, the "Merger
Agreement") providing for the merger of Acquisition Sub with and into the
Company (the "Merger");
WHEREAS, Shareholder is the record and beneficial owner of 2,865,725
shares of Common Stock, no par value per share, of the Company (the "Company
Common Stock") (such shares of the Company Common Stock, as they may be adjusted
by stock dividends, stock splits, recapitalization, combination or exchange of
shares, merger, consolidation, reorganization or other changes or transactions
of or by the Company, together with shares of the Company Common Stock that may
be acquired after the date hereof by the Shareholder, including shares of the
Company Common Stock issuable upon the exercise of options or warrants to
purchase or other securities exchangeable for or convertible into the Company
Common Stock (as the same may be adjusted as aforesaid), being collectively
referred to herein as the "Shares"); and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Acquisition Sub has requested that the Shareholder enter
into this Agreement;
NOW, THEREFORE, to induce Parent and Acquisition Sub to enter into, and
in consideration of it entering into, the Merger Agreement, and in consideration
of the promises and the representations, warranties and agreements contained
herein, the parties hereto agree as follows:
1. Option.
(a) Option. The Shareholder hereby agrees to sell to
Acquisition Sub, upon written notice from Acquisition Sub prior to termination
of this Agreement pursuant to Section 12 (the "Notice"), all of the
Shareholder's Shares at a price per Share equal to nine dollars ($9.00);
provided, that (i) one of the following shall have occurred: (A) a third party
shall have made a TakeOver Proposal (as defined in the Merger Agreement), (B)
the Company materially breaches its obligations under the Merger Agreement, (C)
the board of directors of the Company shall have
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withdrawn or modified its approval or recommendation of the Merger, (D) the
Shareholder shall have materially breached any of the terms of this Agreement,
or (E) the approval of the Merger by the Company's shareholders shall not have
been obtained at a meeting duly convened therefor or at any adjournment thereof
and (ii) any applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX Xxx") shall have expired or been terminated.
(b) Closing. Subject to Section l(a) hereof, the closing of
the purchase and sale of the Shareholder's Shares shall take place at the place,
time and date for the closing of the purchase by Acquisition Sub specified in
the Notice (which shall not be more than 30 days after the date the Notice is
given). At the closing, the Shareholder shall deliver certificates representing
the Shareholder's Shares, in proper form for transfer, accompanied by stock
powers duly executed in blank against delivery of nine dollars per Share. Such
delivery shall vest in Acquisition Sub, and the Shareholder will take any
additional actions reasonably requested by Acquisition Sub to perfect in
Acquisition Sub, good and marketable title to the Shares, free and clear of any
tax, lien, claim, charge, encumbrance or other restriction (collectively, a
"Lien") or voting agreement of any kind, other than as created by this
Agreement.
(c) Dividends and Split-Ups. In event of any change in the
number of issued and outstanding Shares by reason of any stock dividend,
split-up, recapitalization, merger, combination, conversion, exchange of shares,
rights plan or other change in the corporate or capital structure of the Company
which would have the effect of diluting the rights of Acquisition Sub hereunder
or of reducing the aggregate Per Share Price (as defined in the Plan of Merger
attached as an exhibit to the Merger Agreement) payable with respect to the
Shares hereunder, the number and kind of Shares subject to this Agreement and
the per share price payable hereunder shall be appropriately adjusted.
2. Representations and Warranties of the Shareholder. The Shareholder
hereby represents and warrants to Acquisition Sub as follows:
(a) Authority. The Shareholder has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Shareholder and, assuming this Agreement constitutes a valid
and binding obligation of Acquisition Sub, constitutes a valid and binding
obligation of the Shareholder enforceable against the Shareholder in accordance
with its terms. Except for the expiration or termination of the waiting periods
under the HSR Act (if applicable) and informational filings with the Securities
and Exchange Commission, neither the execution, delivery or performance of this
Agreement by the Shareholder nor the consummation by the Shareholder of the
transactions contemplated hereby will (i) require on the part of the Shareholder
any filing with, or permit, authorization, consent or approval of, any federal,
state, local, municipal or foreign or other government or subdivision, branch,
department or agency thereof or any governmental or
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quasi-governmental authority of any nature, including any court or other
tribunal (a "Governmental Entity"), (ii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default
under, or give rise to any right of termination, amendment, cancellation or
acceleration under, or result in the creation of any Lien upon any of the
properties or assets of the Shareholder under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, permit,
concession, franchise, contract, agreement or other instrument or obligation (a
"Contract") to which the Shareholder is a party or by which the Shareholder or
any of the Shareholder's properties or assets, including the Shareholder's
Shares, may be bound or (iii) violate any judgment, order, writ, preliminary or
permanent injunction or decree (an "Order") or any statute, law, ordinance, rule
or regulation of any Governmental Entity (a "Law") applicable to the Shareholder
or any of the Shareholder's properties or assets, including the Shareholder's
Shares.
(b) The Shares. The Shareholder's Shares and the certificates
representing such Shares are now, and at all times during the term hereof will
be, held by the Shareholder, or by a nominee or custodian for the benefit of the
Shareholder, and the Shareholder has good and marketable title to such Shares,
free and clear of any Liens, proxies, voting trusts or agreements,
understandings or arrangements, except for any such Liens or proxies arising
hereunder. Except as set forth on Schedule B, the Shareholder owns of record or
beneficially no shares of the Company Common Stock and has no other rights to
purchase or acquire any such shares (whether by exercise, conversion, exchange
or otherwise) other than the Shareholder's Shares as set forth on Schedule A
hereto.
(c) Brokers. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of the
Shareholder.
(d) Other Agreements. Neither the Shareholder (nor any of his
affiliates, representatives or agents) is a party to or bound by any agreement
with respect to a Potential Transaction (as defined below) other than this
Agreement and the Merger Agreement.
(e) Merger Agreement. The Shareholder understands and
acknowledges that Parent and Acquisition Sub are entering into the Merger
Agreement in reliance upon the Shareholder's execution and delivery of this
Agreement.
(f) Neither the provisions of Article 1 "Control Share
Acquisitions," of Chapter 2, Title 35, of the 1976 South Carolina Code (S.C.
Code Sections 35-2-101 et seq.) and Article 2, "Business Combinations," of
Chapter 2, Title 35, of the 1976 South Xxxxxxxx Code (S.C. Code
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Sections 35-2-201 et seq.) nor any other similar anti-takeover provisions under
South Carolina law are applicable to or would otherwise be triggered by the
transactions contemplated hereby.
3. Representations and Warranties of Acquisition Sub. Acquisition Sub
hereby represents and warrants to the Shareholder as follows:
(a) Authority. Acquisition Sub has the requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by Acquisition Sub and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Acquisition Sub. This Agreement has been duly executed and
delivered by Acquisition Sub and, assuming this Agreement constitutes a valid
and binding obligation of the Shareholder, constitutes a valid and binding
obligation of Acquisition Sub enforceable in accordance with its terms.
(b) Securities Act. The Shares will be acquired in compliance
with, and Acquisition Sub will not offer to sell or otherwise dispose of any
Shares so acquired by it in violation of the registration requirements of the
Securities Act of 1933, as amended.
4. [INTENTIONALLY OMITTED]
5. Covenants of the Shareholder. The Shareholder agrees as follows:
(a) The Shareholder shall not, except as contemplated by the
terms of this Agreement, (i) sell, transfer, pledge, assign or otherwise dispose
of, or enter into any Contract, option or other arrangement (including any
profit sharing arrangement) or understanding with respect to the sale, transfer,
pledge, assignment or other disposition of the Shares to any person other than
Acquisition Sub or Acquisition Sub's designee, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney
or otherwise, with respect to the Shares or (iii) take any other action that
would in any way restrict, limit or interfere with the performance of its
obligations hereunder or the transactions contemplated hereby.
(b) At any meeting of shareholders of the Company called to
vote upon the Merger and the Merger Agreement or at any adjournment thereof or
in any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger and the Merger
Agreement is sought, the Shareholder shall as requested by Parent or Acquisition
Sub (including, without limitation, by cooperating with Acquisition Sub with
respect to the irrevocable proxy granted to Acquisition Sub pursuant to Section
9 below), vote (or cause to be voted) the Shareholder's Shares in favor of the
Merger, the adoption by the Company of the Merger
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Agreement and the approval of the other transactions contemplated by the Merger
Agreement. At any meeting of shareholders of the Company or at any adjournment
thereof or in any other circumstances upon which the Shareholder's vote, consent
or other approval is sought, the Shareholder shall as requested by Parent or
Acquisition Sub as provided above vote (or cause to be voted) the Shareholder's
Shares against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of substantial
assets, reorganization, recapitalization, dissolution, liquidation or winding up
of or by the Company or any other Takeover Proposal (collectively, "Alternative
Transactions") or (ii) any amendment of the Company's Articles of Incorporation
or by-laws or other proposal or transaction involving the Company or any of its
subsidiaries, which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify, the Merger, the Merger Agreement
or any of the other transactions contemplated by the Merger Agreement
(collectively, "Frustrating Transactions").
6. Waiver of Appraisal Rights. The Shareholder hereby waives any rights
of appraisal or rights to dissent from the Merger that he may have.
7. Notice of Acquisition of Additional Shares. The Shareholder hereby
agrees, while this Agreement is in effect, to promptly notify Acquisition Sub of
the number of any new Shares acquired by the Shareholder, if any, after the date
hereof.
8. Non-Solicitation. The Shareholder, whether acting as an individual
or in his capacity as an agent of the Company, shall not (and shall cause each
affiliate, agent, trustee or other person acting on (or purporting to act on)
the Shareholder's behalf not to), directly or indirectly, other than with
Acquisition Sub, and its representatives and agents, (a) initiate, solicit,
encourage, entertain, accept, discuss or negotiate any inquiries, proposals or
offers (whether initiated by the Shareholder or otherwise) with respect to (i)
the acquisition or sale of any Shares or other capital stock or capital stock
equivalents of the Company, any of its subsidiaries or any interests therein,
(ii) the acquisition of all or a material portion of the assets and properties
of the Company, its subsidiaries or any interests therein, (iii) the merger,
share exchange, consolidation or business combination of the Company or any of
its subsidiaries, (iv) the refinancing of the Company, (v) the liquidation,
dissolution or reorganization of the Company or any of its subsidiaries or (vi)
the acquisition, directly or indirectly, by the Company or any of its
subsidiaries or affiliates of capital stock or assets and properties of any
other person or persons in excess of $20 million in the aggregate (each a
"Potential Transaction") from any party, (b) provide information to any party,
or review information of any other party, in connection with a Potential
Transaction or (c) enter into any contract, agreement or arrangement with any
party, concerning or relating to a Potential Transaction or require the
Shareholder to abandon, terminate or fail to consummate or vote against the
Merger or the other transactions with Acquisition Sub contemplated hereby;
provided, however, that nothing in this
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Section 8 shall prohibit Shareholder from taking any action as a director or
officer of the Company in compliance with Section 4.1 of the Merger Agreement.
9. Grant of Irrevocable Proxy Coupled with an Interest; Appointment of
Proxy.
(a) The Shareholder hereby irrevocably grants to, and
appoints, Xxxxxxx X. Xxxxxxx, and any other individual who shall hereafter be
designated by Acquisition Sub, the Shareholder's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of the
Shareholder, to vote the Shareholder's Shares, or grant a consent or approval in
respect of such Shares, at any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which their vote, consent
or other approval is sought, (i) in favor of the Merger, the adoption by the
Company of the Merger Agreement and the approval of the other transactions
contemplated by the Merger Agreement and (ii) against any Alternative
Transaction or Frustrating Transaction.
(b) The Shareholder represents that any proxies heretofore
given in respect of the Shareholder's Shares are not irrevocable, and that any
such proxies are hereby revoked.
(c) The Shareholder hereby affirms that the proxy set forth in
this Section 9 is coupled with an interest and is irrevocable until such time as
this Agreement terminates in accordance with its terms. The Shareholder hereby
further affirms that the irrevocable proxy is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of the Shareholder under this Agreement.
The Shareholder hereby ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of
Section 55-7-22(d) of the South Carolina Business Corporation Act. Such
irrevocable proxy shall be valid until the termination of this Agreement
pursuant to Section 12.
10. Further Assurances. The Shareholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
Acquisition Sub may reasonably request for the purpose of effectively carrying
out the transactions contemplated by this Agreement and to vest the power to
vote the Shareholder's Shares as contemplated by Section 9. Acquisition Sub
agrees to use reasonable efforts to take, or cause to be taken, all actions
necessary to comply promptly with all legal requirements that may be imposed
with respect to the transactions contemplated by this Agreement (including legal
requirements of the HSR Act, if any).
11. Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law
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or otherwise) without the prior written consent of the other parties. Subject to
the preceding sentence, this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns. Notwithstanding the foregoing, Acquisition Sub shall
have the right to assign its rights, interests and obligations hereunder to any
of its affiliates or financing sources and any of their respective affiliates at
its sole option and without the prior written consent of the other parties
hereto. Notwithstanding anything contained in this Agreement to the contrary,
nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto or their respective heirs, successors,
executors, administrators and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
12. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the date that is 30 business days after
the date the Merger Agreement is terminated; provided, however, that if the
Merger Agreement is terminated pursuant to Section 5.3(b), (f), (g), (h) or (i)
thereof, this Agreement shall survive the termination of the Merger Agreement
and shall terminate on the later of (i) the date that is six months after the
date of termination of the Merger Agreement, and (ii) the consummation of any
Subsequent Transaction (as defined in the Merger Agreement) which has been
publicly announced or with respect to which the Company or Shareholder has
entered into any agreement on or before the expiration of the time period
contemplated by the immediately preceding clause (i). Nothing in this Section 12
shall relieve any party from liability for willful breach of this Agreement.
Notwithstanding the foregoing, if Acquisition Sub shall purchase Shares pursuant
to Section 1 hereof, Sections 2, 3, 11, 12, and 14-18 shall survive any
termination of this Agreement.
13. Conditions Precedent. The obligations of the Shareholder under
Section 5 and Section 9 hereof are subject to and conditional upon structuring
the transactions contemplated by the Merger Agreement as set forth in that
certain letter agreement between Citicorp Venture Capital, Ltd. and X. Xxxx
Xxxxxxx dated October 5, 1999. Each of the Shareholder and Parent shall
negotiate in good faith and use commercially reasonable effort to cause
definitive documents to be prepared reflecting the terms contained in such
letter agreement prior to the date the definitive proxy statement is mailed to
the Company's shareholders.
14. General Provisions.
(a) Payments. All payments required to be made to any party to
this Agreement shall be made by wire transfer to an account designated by such
party at least one trading day prior to such payment.
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(b) Expenses. Subject to the terms of the Merger Agreement,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expense.
(c) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(d) Notice. All notices and other communications hereunder
shall be in writing and shall be deemed given upon receipt to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) if to Acquisition Sub, to
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: M. Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute
notice to Acquisition Sub) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
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and
(ii) if to the Shareholder, to
X. Xxxx Xxxxxxx
00 Xxxxxxxxxx Xxxxx
Xxxxxxxx Xxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice to the
Shareholder) to:
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Bank of America Corporate Center, Suite 4200
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: X. Xxxxxxxx Xxxxxx, III
Facsimile: (000) 000-0000
(e) Interpretation. When a reference is made in this Agreement
to a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
(f) Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
ANY APPLICABLE CONFLICTS OF LAW. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK OR THE UNITED STATES OF AMERICA
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FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH PARTY HERETO HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY FORUM NON CONVENIENS, WHICH ANY OF THEM MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
(i) Publicity. Except as otherwise required by law, court
process or the rules of a national securities exchange or the NASDAQ National
Market or as contemplated or provided in the Merger Agreement, for so long as
this Agreement is in effect, neither any Shareholder nor Acquisition Sub shall
issue or cause the publication of any press release or other public announcement
with respect to the transactions contemplated by this Agreement or the Merger
Agreement without the consent of the other parties, which consent shall not be
unreasonably withheld; provided, that in the case of any consensual disclosure,
the Shareholder will not use the name of Acquisition Sub or any affiliate
thereof without Acquisition Sub's written permission and, in each case, will
discuss the term and contents of any such release with Acquisition Sub prior to
dissemination; further provided, that nothing contained herein shall preclude
Acquisition Sub from making any announcement or disclosing any information to
its financing sources.
15. Shareholder Capacity. Except as provided in Section 8 above, the
Shareholder makes no agreement or understanding herein in his capacity as a
director or officer of the Company. The Shareholder signs solely in his capacity
as a record holder and beneficial owner of the Shareholder's Shares and nothing
herein shall limit or affect any actions taken by the Shareholder in his
capacity as an officer or director of the Company to the extent specifically
permitted by the Merger Agreement.
16. Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in a court of the United States
(without posting of bond or other security). This being in addition to any other
remedy to which they are entitled at law or in equity.
17. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
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18. Waiver of Jury Trial. Each party to this Agreement hereby waives,
to the extent permitted by applicable law, trial by jury in any litigation in
any court with respect to, in connection with, or arising out of this Agreement
or any ancillary agreement or the validity, protection, interpretation,
collection or enforcement thereof.
* * * * *
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IN WITNESS WHEREOF, Acquisition Sub has caused this Agreement
to be signed by its officer hereunto duly authorized and the Shareholder has
signed this Agreement, all as of the date first written above.
CIC ACQUISITION SUB, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SHAREHOLDER:
/s/ X. Xxxx Xxxxxxx
----------------------------------------
X. Xxxx Findlay
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SCHEDULE A
SHARE HOLDINGS OF X. XXXX XXXXXXX
2,865,725 shares of Company Common Stock
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SCHEDULE B
EXCLUDED SHARES
1,940 shares of Company Common Stock owned by Konstance X.X. Xxxxxxx
Options to purchase an aggregate of 10,200 shares of Company Common Stock owned
by Xx. Xxxxxxx
78,788 shares of Company Common Stock owned jointly by Mr. and Xx. Xxxxxxx
An aggregate of 131,520 shares of Company Common Stock owned by charitable
foundations of which Mr. and Xx. Xxxxxxx are directors
