Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K CURRENT REPORT - SPORT SUPPLY GROUP, INC. | v177536_8k.htm |
| EX-2.1 - AGREEMENT AND PLAN OF MERGER - SPORT SUPPLY GROUP, INC. | v177536_ex2-1.htm |
| EX-99.1 - LIMITED GUARANTEE - SPORT SUPPLY GROUP, INC. | v177536_ex99-1.htm |
Exhibit
99.2
EXECUTION
COPY
This
VOTING AGREEMENT, dated as of March 15, 2010 (this “Agreement”), by and
among Sage Parent Company, Inc., a Delaware corporation (“Parent”) and the
Persons listed on Schedule A hereto
(each, a “Subject
Shareholder”, and collectively, the “Subject
Shareholders”). With respect to each individual Subject
Shareholder, this Agreement shall be treated as a separate agreement as between
such Subject Shareholder and Parent.
WHEREAS,
Parent, Sage Merger Company, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent (“Sub”), and Sport
Supply Group, Inc., a Delaware corporation (the “Company”), propose to
enter into a Merger Agreement, dated as of the date hereof (as the same may be
amended, supplemented or modified from time to time, the “Merger Agreement”),
pursuant to which Sub shall merge with and into the Company, with the Company
being the surviving corporation, and pursuant to which each of the holders of
Company Common Stock shall receive the Merger Consideration with respect to the
shares of Company Common Stock held thereby; capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement;
WHEREAS,
each Subject Shareholder Beneficially Owns the number of shares of Company
Common Stock set forth opposite its name on Schedule A hereto
(such shares of Company Common Stock, together with any other shares of Company
Common Stock or other shares of Company Capital Stock acquired by such Subject
Shareholder by stock dividend or stock split after the date hereof and during
the term of this Agreement, being collectively referred to herein as such
Subject Shareholder’s “Subject Shares”);
and
WHEREAS,
as a condition to Parent and Sub’s willingness to enter into the Merger
Agreement, Parent has requested that the Subject Shareholders enter into this
Agreement;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
Section
1. Representations and
Warranties of Each Subject Shareholder. Each Subject
Shareholder hereby represents and warrants to Parent as follows:
(a) Authority; Execution and
Delivery; Enforceability. Such Subject Shareholder has all
requisite power and authority to execute this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by such
Subject Shareholder of this Agreement and consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of such Subject Shareholder. Such Subject Shareholder has duly
executed and delivered this Agreement and, assuming its due authorization,
execution and delivery by Parent, this Agreement constitutes the legal, valid
and binding obligation of such Subject Shareholder, enforceable against such
Subject Shareholder in accordance with its terms. The execution and
delivery by such Subject Shareholder of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation or to loss
of a material benefit under, or result in the creation of any Lien upon the
Subject Shares under, any provision of any Contract to which such Subject
Shareholder is a party or by which the Subject Shares are bound or, subject to
the filings and other matters referred to in the next sentence, any provision of
any Order or Law applicable to such Subject Shareholder or the Subject
Shares. No Consent of, or registration, declaration or filing with,
any Governmental Entity is required to be obtained or made by or with respect to
such Subject Shareholder in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, other than such reports and schedules under Sections 13(d),
13(e) and 16 of the Exchange Act as may be required in connection with this
Agreement and the transactions contemplated hereby.
1
(b) The Subject
Shares. Such Subject Shareholder is the record or Beneficial
Owner of and has good and marketable title to, the Subject Shares, free and
clear of any Liens. Such Subject Shareholder does not Beneficially
Own, or own of record, any equity securities of the Company or any of its
Subsidiaries other than the Subject Shares and no Affiliate of such Subject
Shareholder Beneficially Owns, or owns of record, any equity securities of the
Company. Such Subject Shareholder has the sole right to vote the
Subject Shares, and none of the Subject Shares is subject to any voting trust or
other Contract, arrangement or restriction with respect to the voting of the
Subject Shares, except as contemplated by this Agreement or the Merger
Agreement. Such Subject Shareholder has not appointed or granted any proxy or
similar agreement inconsistent with this Agreement, which appointment or grant
is still effective, with respect to the Subject Shares.
As used
in this Agreement, “Beneficial Owner” means, with respect to any security, any
Person who, directly or indirectly, through any Contract, understanding,
relationship or otherwise, has or shares (i) voting power, which includes the
power to vote, or to direct the voting of, such security; and/or (ii) investment
power, which includes the power to dispose, or to direct the disposition, of
such security; and shall otherwise be interpreted in accordance with the term
“beneficial ownership” as defined in Rule 13d-3 adopted by the SEC under the
Exchange Act. For purposes of this Agreement, a Person shall be
deemed to be the Beneficial Owner of any securities Beneficially Owned by its
Affiliates (including as Affiliates for this purpose its officers and directors)
or any Group of which such Person or any such Affiliate is or becomes a
member. The terms “Beneficially Own”, “Beneficially Owned” and
“Beneficial Ownership” shall have correlative meanings to “Beneficial
Owner”.
(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 based upon arrangements made by or on behalf of
such Subject Shareholder.
(d) Merger Agreement.
Such Subject Shareholder understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon such Subject Shareholder’s execution
and delivery of this Agreement.
Section
2. Representations and
Warranties of Parent. Parent hereby represents and warrants to
the Subject Shareholders as follows: Parent has all requisite corporate power
and authority to execute this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by Parent of this
Agreement and consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of Parent. Parent
has duly executed and delivered this Agreement and, assuming its due
authorization, execution and delivery by each Subject Shareholder, this
Agreement constitutes the legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms. The
execution and delivery by Parent of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation or to loss
of a material benefit under, or result in the creation of any Lien upon any of
the properties or assets of Parent under, any provision of any Contract to which
Parent is a party or by which any properties or assets of Parent are bound or,
subject to the filings and other matters referred to in the next sentence, any
provision of any Order or Law applicable to Parent or the properties or assets
of Parent. No Consent of, or registration, declaration or filing
with, any Governmental Entity is required to be obtained or made by or with
respect to Parent in connection with the execution, delivery and performance of
this Agreement or the consummation of the transactions contemplated hereby,
other than such reports by Parent under Sections 13(d) and 16 of the Exchange
Act as may be required in connection with this Agreement and the transactions
contemplated hereby.
2
Section
3. Covenants of Each Subject
Shareholder. Each Subject Shareholder covenants and agrees as
follows:
(a) (1)
At any meeting of the stockholders of the Company called to seek the Company
Stockholder Approval or in any other circumstances upon which a vote, consent or
other approval (including by written consent) with respect to the Merger
Agreement or any of the transactions contemplated thereby, including the Merger,
and any actions that would reasonably be considered to be in furtherance
thereof, is sought, such Subject Shareholder shall, (i) if a meeting is held,
appear at such meeting or otherwise cause the Voting Shares (as defined on Schedule A hereto) to
be counted as present at such meeting for purposes of establishing a quorum and
(ii) vote (or cause to be voted), including by executing a written consent
solicitation if requested by Parent, the Voting Shares in favor of the Merger
Agreement and the transactions contemplated thereby, including the Merger, and
take any other actions that would reasonably be considered to be in furtherance
thereof. Such Subject Shareholder represents that any proxies
heretofore given in respect of the Voting Shares that may still be in effect are
not irrevocable, and such proxies are hereby revoked.
(2) Such
Subject Shareholder hereby irrevocably grants to, and appoints, Parent, and any
individual designated in writing by Parent, and each of them individually, as
such Subject Shareholder’s proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Subject Shareholder,
to vote the Voting Shares, or grant a consent or approval in respect of the
Voting Shares, in a manner consistent with this Section 3. Such
Subject Shareholder hereby affirms that the irrevocable proxy set forth in this
Section 3(a)(2)
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 such
Subject Shareholder under this Agreement. Such Subject Shareholder
hereby further affirms that the irrevocable proxy is coupled with an interest
and may under no circumstances be revoked. Such Subject 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 212 of
the Delaware General Corporation Law (the “DGCL”). The
irrevocable proxy granted hereunder shall automatically terminate upon the
termination of this Agreement. Upon delivery of written request to do
so by Parent, such Subject Stockholder shall as promptly as practicable execute
and deliver to Parent a separate written instrument or proxy that embodies the
terms of the irrevocable proxy set forth in this Section 3(a)(2);
provided that such written instrument or proxy shall (i) be in a form reasonably
acceptable to such Subject Shareholder, and (ii) terminate upon the termination
of this Agreement. Parent agrees that to the extent it exercises its
rights under this Section 3(a)(2),
Parent shall comply with the appearance and voting requirements imposed on such
Subject Shareholder by Section 3(a)(1) with
respect to such Subject Shareholder’s Voting Shares.
3
(b) At
any meeting of the stockholders of the Company or at any adjournment thereof or
in any other circumstances upon which such Subject Shareholder’s vote, consent
or other approval is sought, such Subject Shareholder shall vote (or cause to be
voted) the Voting Shares against (i) any transaction, consolidation,
combination, sale of substantial assets, merger, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the Company
(other than the Merger Agreement and the transactions contemplated thereby,
including the Merger), and (ii) any Company Takeover Proposal (including any
Superior Company Proposal), and (iii) any amendment of the Company Charter or
the Company Bylaws or other proposal or transaction involving the Company or any
Company Subsidiary, which amendment or other proposal or transaction would in
any manner impede, frustrate, prevent or nullify any provision of the Merger
Agreement or any of the transactions contemplated thereby, including the Merger,
or change in any manner the voting rights of any class of capital stock of the
Company. Such Subject Shareholder shall not commit or agree to take
any action inconsistent with the foregoing.
(c) Other
than pursuant to this Agreement, such Subject Shareholder shall not (i) sell,
transfer, pledge, hypothecate, assign or otherwise dispose of (including by
gift), hedge or utilize a derivative to transfer the economic interest in
(collectively, “Transfer”), or enter
into any Contract, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, or propose to Transfer, any
Subject Shares to any Person, (ii) enter into, or propose to enter into, any
voting arrangement, whether by proxy, voting agreement or otherwise, with
respect to any Subject Shares, (iii) take any action that would make any
representation or warranty of such Subject Shareholder herein untrue or
incorrect or have the effect of preventing or disabling such Subject Shareholder
from performing its obligations hereunder or (iv) commit or agree to take any of
the foregoing actions in clauses (i), (ii) or (iii).
(d) Such
Subject Shareholder shall not, and shall not authorize or permit any of its
Representatives to, directly or indirectly, take any action to: (i) solicit,
initiate, propose, encourage, facilitate or induce any inquiries, discussions,
proposals, indications of interest, submissions or announcements of, any Company
Takeover Proposal, or take any other action to encourage, facilitate or assist
any inquiries or discussions, or the making of any proposal, indication of
interest, submission or announcement, in each case, that constitutes, or could
reasonably be expected to lead to, any Company Takeover Proposal,
(ii) enter into any Acquisition Agreement, (iii) participate or engage in
any discussions or negotiations regarding any Company Takeover Proposal, (iv)
furnish to any Person (other than Parent, Sub or any Representative of Parent or
Sub) any non-public information relating to the Company or any of the Company
Subsidiaries, or afford to any Person (other than Parent, Sub or any
Representative of Parent or Sub) access to the business, properties, assets,
books, records or other non-public information, or to any personnel, of the
Company, any Company Subsidiary, or such Subject Shareholder (to the extent
related to the Company or any Company Subsidiary), in any such case, which could
reasonably be expected to induce the making, proposal, submission or
announcement of, or could reasonably be expected to initiate, encourage,
facilitate or assist, a Company Takeover Proposal or any inquiries or
discussions, or the making of any proposal, indication of interest, submission
or announcement, in any such case, which could reasonably be expected to lead to
a Company Takeover Proposal, or (v) otherwise take any action with the primary
purpose of facilitating an effort or attempt by any Person to make a Company
Takeover Proposal. Without limiting the foregoing, it is agreed that
any violation of the restrictions set forth in the preceding sentence by any
Representative of such Subject Shareholder shall be deemed to be a breach of
this Section
3(d) by such Subject Shareholder. Each Subject Shareholder
shall, and shall cause its Representatives to, cease immediately and cause to be
terminated any and all existing discussions, conversations, negotiations and
other communications with any Person (other than Parent and its Affiliates)
conducted heretofore with respect to, or that could reasonably be expected to
lead to, a Company Takeover Proposal.
4
(e) Such Subject
Shareholder shall not issue any press release or make any other public statement
with respect to this Agreement, the Merger Agreement or any of the transactions
contemplated hereby or thereby (including the Merger), without the prior written
consent of Parent (which consent may be granted or withheld or delayed in such
party’s sole discretion), except as may be required by applicable
Law.
(f) Such
Subject Shareholder hereby consents to and approves the actions taken by the
Company Board and the Special Committee thereof in connection with the
recommendation of the Company Board and the Special Committee thereof in favor
of the Merger. Such Subject Shareholder hereby waives, and agrees not
to exercise or assert, any appraisal rights under Section 262 of the DGCL in
connection with the Merger Agreement and the transactions contemplated thereby,
including the Merger.
(g) Notwithstanding
anything to the contrary in this Agreement and in this Section 3 in
particular, such Subject Shareholder is only executing this Agreement in his
capacity as the Beneficial Owner, or owner of record, of the Subject
Shares.
(h) This
Agreement shall apply to each Subject Shareholder solely in his, her or its
capacity as a stockholder of the Company, and (subject to the provisions of the
Merger Agreement) nothing in this Agreement shall in any way restrict or limit
such Subject Shareholder or any of its Representatives, employees or Affiliates
who are directors or officers of the Company from taking (or omitting to take)
any action in such Person’s capacity as a director or officer of the Company, or
pursuant to such Person’s fiduciary duties under applicable Law as a director or
officer of the Company, as determined by such Person in good faith (after
consultation with outside counsel), and none of such actions in such Person’s
capacity as an officer or director shall be deemed to constitute a breach of
this Agreement.
Section
4. Termination. This
Agreement shall terminate upon the earlier of (a) the Closing Date, and (b) the
termination of the Merger Agreement in accordance with its terms, other than
with respect to the liability of any party for willful and malicious breach
hereof prior to such termination.
5
Section
5. Additional
Matters. Each Subject Shareholder and Parent shall, from time
to time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as the other
party may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
Section
6. General
Provisions.
(a) Amendments. This
Agreement may not be amended except by an instrument in writing signed by Parent
and any Subject Shareholder materially adversely affected thereby.
(b) Notice. All
notices and other communications hereunder shall be in writing and shall be
deemed given in accordance with Section 9.2 of the Merger
Agreement to Parent and each Subject Shareholder at their address set forth on
Schedule A
hereto (or at such other address for a party as shall be specified by like
notice).
(c) Interpretation. When
a reference is made in this Agreement to Sections, such reference shall be to a
Section to 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”. Any
reference to the masculine, feminine or neuter gender shall include such other
genders and any reference to the singular or plural shall include the other, in
each case unless the context otherwise requires. Each party hereto
has participated in the drafting of this Agreement, which each party
acknowledges and agrees is the result of extensive negotiations among the
parties.
(d) Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule or Law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
(e) Counterparts. This
Agreement may be executed in one or more counterparts, including via facsimile,
all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each party and
delivered to the other party.
(f) Entire Agreement; No
Third-Party Beneficiaries. This Agreement (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) except as provided in the last sentence of this subsection (f), is
not intended to confer upon any stockholder, employee, director, officer or
other Person other than the parties hereto any rights or
remedies. CBT Holdings, LLC (“CBT”) hereby agrees
that the standstill provisions of paragraph 7 of the confidentiality agreement,
dated December 18, 2009, between the Company and ONCAP Management Partners, L.P.
shall apply to CBT until the later of (i) July 30, 2010 or (ii) the earliest to
occur of (a) consummation of the transactions contemplated by the Merger
Agreement, or (b) termination of the Merger Agreement. The parties
agree that the Company is a third-party beneficiary of this Agreement solely for
the purpose of enforcing the foregoing standstill provision, and CBT
acknowledges that the Company is relying on CBT’s standstill commitment in
entering into the Merger Agreement.
6
(g) Governing
Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Delaware (without giving effect to
choice of law principles thereof that would result in the application of the
Laws of another jurisdiction).
(h) Jurisdiction; Venue.
The parties hereto hereby (a) submit to the exclusive personal jurisdiction of
the Court of Chancery of the State of Delaware, New Castle County, or, if that
court does not have jurisdiction, a federal court sitting in Delaware in the
event any dispute arises out of this Agreement or any transaction contemplated
hereby, for the purpose of any Action arising out of or relating to this
Agreement or any transaction contemplated hereby brought by any party hereto,
and (b) irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement may not be enforced in or by any of the above-named
courts.
(i) WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT. EACH OF THE PARTIES HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION, SEEK TO ENFORCE
THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6(i).
(j) Assignment. Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of Law or
otherwise by any party without the prior written consent of the other party;
provided, that Parent may assign this Agreement and its rights and interests but
not its obligations hereunder to any of its Affiliates. Any purported assignment
in contravention of the foregoing shall be void. Subject to the terms
of this Section
6(j), this Agreement will be binding upon, inure to the benefit of, and
be enforceable by, the parties and their respective successors and
assigns.
(k) Enforcement. The
parties agree that irreparable injury 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 and that damages, even if available,
will not be an adequate remedy. Accordingly, each party hereby
consents (in addition to any other remedy that may be available to the
non-breaching party whether in Law or equity) to: (1) any decree or order of
specific performance to enforce the observance and performance of such covenant
or obligation, or (2) any injunction restraining such breach or threatened
breach, in each case, without requiring proof of actual damages and without any
requirement to obtain, furnish or post any bond or similar
instrument. The parties further agree that no other party nor any
other Person shall be required to obtain, furnish or post any bond or similar
instrument in connection with or as a condition to such first party obtaining
any remedy referred to in this Section 6(k), and
each party irrevocably waives any right such party may have to require the
obtaining, furnishing or posting of any such bond or similar
instrument.
******
7
IN WITNESS WHEREOF, each party has
duly executed this Agreement, all as of the date first written
above.
|
SAGE
PARENT COMPANY, INC.
|
||
|
By:
|
/s/
Michael
Lay
|
|
|
Name:
Michael Lay
|
||
|
Title:
President
|
||
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BLACK
DIAMOND OFFSHORE LTD.
|
||
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By:
|
Carlson
Capital, L.P.,
|
|
|
its
investment advisor
|
||
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By:
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Asgard
Investment Corp.,
|
|
|
its
general partner
|
||
|
By:
|
/s/
Clint D.
Carlson
|
|
|
Name:
Clint D. Carlson
|
||
|
Title:
President
|
||
| DOUBLE BLACK DIAMOND | ||
| OFFSHORE LTD. | ||
|
By:
|
Carlson
Capital, L.P.,
|
|
|
its
investment advisor
|
||
|
By:
|
Asgard
Investment Corp.,
|
|
|
its
general partner
|
||
|
By:
|
/s/
Clint D.
Carlson
|
|
|
Name:
Clint D. Carlson
|
||
|
Title:
President
|
||
|
CBT
HOLDINGS LLC
|
||
| By: |
/s/
Kashif
Sheikh
|
|
|
Name:
Kashif Sheikh
|
||
|
Title:
Manager
|
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SCHEDULE
A
|
Name and Address of
Parent:
Sage
Parent Company, Inc.
c/o
ONCAP Investment Partners II L.P.
161
Bay Street
48th
Floor, P.O. Box 220
Toronto,
Ontario M5J 2S1
Attn:
Mark Gordon
Facsimile: (416)
214-6106
with
a copy (which shall not constitute notice) to:
O’Melveny
& Myers LLP
7
Times Square
New
York, NY 10036
Attn: Douglas
A. Ryder, Esq. and Paul S. Scrivano, Esq.
Facsimile: (212)
326-2061
|
|
Name and
Address
of Subject
Shareholder
|
Number of Shares
of
Company Common Stock
Beneficially Owned
|
|
Black
Diamond Offshore Ltd.
2100
McKinney Avenue, Suite 1600
Dallas,
TX 75201
Attention: William
A. Lockhart
with
a copy to:
Carlson
Capital, L.P.
2100
McKinney Avenue, Suite 1600
Dallas,
Texas 75201
Attention:
Steve Pully
|
219,819
|
|
Double
Black Diamond Offshore Ltd.
2100
McKinney Avenue, Suite 1600
Dallas,
TX 75201
Attention: William
A. Lockhart
with
a copy to:
|
2,489,781
|
|
Carlson
Capital, L.P.
2100
McKinney Avenue, Suite 1600
Dallas,
Texas 75201
Attention:
Steve Pully
|
|
|
CBT
Holdings LLC
10877
Wilshire Boulevard, Suite 2200
Los
Angeles, California 90024
Attention: Mr.
Kashif Sheikh
with
a copy to:
Munger,
Tolles & Olson LLP
355
South Grand Avenue, 35th
Floor
Los
Angeles, CA 90071
Telecopy
No.: (213) 683-5137
Attention: Robert
B. Knauss, Esq.
|
2,044,072
|
“Voting Shares” mean
the “Subject Shares” as defined in the Agreement and set forth opposite the name
and address of each Subject Shareholder above, except that in the event that the
Company Board or the Special Committee, as applicable, makes an Adverse
Recommendation Change in accordance with the Merger Agreement, then for so long
as such Adverse Recommendation Change is in effect the amount of Voting Shares
held by Black Diamond Offshore Ltd. shall be reduced to such highest number of
shares such that the total Voting Shares of all Subject Shareholders in the
aggregate are not more than 35% of the total issued and outstanding shares of
Company Common Stock.