EXECUTION VERSION AGREEMENT AND PLAN OF - Squarespace

EXECUTION VERSION AGREEMENT AND PLAN OF - Squarespace

EXECUTION VERSION AGREEMENT AND PLAN OF MERGER by and among CRH plc AMAT VENTURE, INC., ASH GROVE CEMENT COMPANY and VENTURE STOCKHOLDER REPRESENTATIVE, LLC (solely with respect to Article IX) Dated as of September 20, 2017

2 TABLE OF CONTENTS Article I DEFINITIONS Section 1.1 Definitions . . 2 Article II THE MERGER Section 2.1 The Merger . . 2 Section 2.2 The Closing . . 2 Section 2.3 Effective Time . . 2 Section 2.4 Articles of Incorporation and Bylaws . . 3 Section 2.5 Board of Directors . . 3 Section 2.6 Officers . . 3 Article III EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES Section 3.1 Effect on Securities .

. 3 Section 3.2 Exchange of Certificates . . 7 Section 3.3 Lost Certificates . . 9 Section 3.4 Dissenting Shares . . 9 Section 3.5 Transfers; No Further Ownership Rights . . 10 Article IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY Section 4.1 Organization and Qualification; Subsidiaries . . 10 Section 4.2 Capitalization . . 11 Section 4.3 Authority Relative to Agreement . . 11 Section 4.4 No Conflict; Required Filings and Consents . . 12 Section 4.5 Permits; Compliance With Laws . . 13 Section 4.6 Financial Statements . . 14 Section 4.7 Internal Controls . . 14 Section 4.8 Absence of Certain Changes or Events .

. 14 Section 4.9 No Undisclosed Liabilities . . 14 Section 4.10 Litigation . . 15 Section 4.11 Employee Benefit Plans . . 15 Section 4.12 Labor and Employment Matters . . 17 Section 4.13 Intellectual Property . . 18 Section 4.14 Taxes . . 19

3 Section 4.15 Material Contracts . . 20 Section 4.16 Real Property . . 22 Section 4.17 Environmental . . 23 Section 4.18 Brokers . . 23 Section 4.19 Opinion of Financial Advisor . . 23 Section 4.20 Insurance . . 24 Section 4.21 Transactions with Affiliates . . 24 Section 4.22 Certain Payments . . 24 Section 4.23 Products . . 24 Section 4.24 Personal Property . . 25 Section 4.25 No Other Representations or Warranties . . 25 Article V REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION SUB Section 5.1 Organization and Qualification . . 26 Section 5.2 Authority Relative to Agreement . .

26 Section 5.3 No Conflict; Required Filings and Consents . . 27 Section 5.4 Litigation . . 27 Section 5.5 Information Supplied . . 27 Section 5.6 Sufficient Funds . . 27 Section 5.7 Capitalization of Acquisition Sub . . 28 Section 5.8 Investment Intention . . 28 Section 5.9 Brokers . . 28 Section 5.10 Share Ownership . . 28 Section 5.11 WARN Act . . 28 Section 5.12 Acknowledgment of Disclaimer of Other Representations and Warranties . . 29 Article VI COVENANTS AND AGREEMENTS Section 6.1 Conduct of Business by the Company Pending the Merger . . 29 Section 6.2 Written Consent; Information Statement; Proxy Statement .

. 32 Section 6.3 Appropriate Action; Consents; Filings . . 34 Section 6.4 Access to Information; Confidentiality . . 35 Section 6.5 No Solicitation by the Company; Competing Proposals . . 36 Section 6.6 Directors’ and Officers’ Indemnification and Insurance . . 40 Section 6.7 Notification of Certain Matters . . 42 Section 6.8 Public Announcements . . 43 Section 6.9 Employee Benefits . . 43 Section 6.10 Conduct of Business by Parent Pending the Merger . . 46 Section 6.11 Acquisition Sub . . 47 Section 6.12 No Control of the Company’s Business . . 47 Section 6.13 Withdrawal Liability Information .

. 47 Section 6.14 Title Policy Cooperation . . 47

4 Section 6.15 Data Room . . 47 Section 6.16 Cooperation Regarding Non-U.S. Patents and Canadian Assets . . 48 Section 6.17 Certain Remedial Work . . 48 Article VII CONDITIONS TO THE MERGER Section 7.1 Conditions to the Obligations of Each Party . . 49 Section 7.2 Conditions to Obligations of Parent and Acquisition Sub to Effect the Merger . . 49 Section 7.3 Conditions to Obligation of the Company to Effect the Merger . . 50 Section 7.4 Frustration of Closing Conditions . . 50 Article VIII TERMINATION, AMENDMENT AND WAIVER Section 8.1 Termination . . 50 Section 8.2 Effect of Termination . .

52 Section 8.3 Termination Fees . . 53 Section 8.4 Amendment . . 54 Section 8.5 Extension; Waiver . . 54 Section 8.6 Expenses; Transfer Taxes . . 55 Article IX GENERAL PROVISIONS Section 9.1 Non-Survival of Representations, Warranties and Agreements . . 55 Section 9.2 Notices . . 55 Section 9.3 Interpretation; Certain Definitions . . 58 Section 9.4 Severability . . 59 Section 9.5 Assignment . . 59 Section 9.6 Entire Agreement . . 60 Section 9.7 No Third-Party Beneficiaries . . 60 Section 9.8 Governing Law . . 60 Section 9.9 Specific Performance . . 60 Section 9.10 Consent to Jurisdiction .

. 61 Section 9.11 Counterparts . . 61 Section 9.12 WAIVER OF JURY TRIAL . . 61 Section 9.13 Stockholder Representative . . 62

5 Appendix A Defined Terms Appendix B Form of Estimated Closing Statement Appendix C Debt-Like Items Appendix D Form of Escrow Agreement Appendix E Investment Portfolio

6 Index of Defined Terms Acceptable Confidentiality Agreement . A-1 Accounting Principles . A-1 Acquisition Sub . 1, A-1 Action . A-1 Adverse Recommendation Change . 37, A-1 Affiliate . A-1 Agreement . 1, A-1 Air Quality Consent Decree . A-1 Anti-Bribery Act . A-1 Antitrust Laws . 13, A-1 Blue Sky Laws . A-1 Book-Entry Shares . 4, A-1 Business Day . A-1 Certificate of Merger . 2, A-1 Certificates .

4, A-1 Chosen Firm . 5, A-1 Class B Common Stock . 3, A-2 Class C Common Stock . 3, A-2 Class D Common Stock . 3, A-2 Clean Team Confidentiality Agreement . A-2 Closing . 2, A-2 Closing 280G Calculations . 46, A-2 Closing Date . 2, A-2 Closing Net Cash . A-2 Closing Statement . 4, A-2 Code . A-2 Company . 1, A-2 Company Benefit Plan . A-2 Company Bylaws . 10, A-2 Company Cash . A-2 Company Charter . 10, A-3 Company Common Stock . 3, A-3 Company Disclosure Letter . A-3 Company Financial Statements . A-3 Company Intellectual Property . 18, A-3 Company Material Adverse Effect . A-3 Company Material Contract .

20, A-4 Company Recommendation . A-4 Company Related Parties . . 54, A-4 Competing Proposal . 39, A-4 Confidentiality Agreement . A-4 Consent . 13, A-4 Continuation Period . 44, A-4 Continuing Employee . 44, A-4 Contract . A-4

7 control . A-4 Cost Recovery Deduction . 49, A-4 D&O Indemnified Parties . 40, A-4 Debt-Like Items . A-5 DGCL . 1, A-5 Dissenting Shares . 9, A-5 Distribution Network . A-5 Effective Time . 2, A-5 Enterprise Value . A-5 Environmental Laws . A-5 Equity Value . A-5 ERISA . A-5 ERISA Affiliate . A-6 Escrow Agent . A-6 Escrow Agreement . A-6 ESOP . 44, A-6 Estimated 280G Lost Deduction . 46, A-6 Estimated Closing Statement . . 4, A-6 Estimated Debt-Like Items . A-6 Estimated Equity Value . A-6 Estimated Net Cash . A-6 Estimated NWC Adjustment . A-6 Exchange Act . A-6 Exchange Fund . A-6 Expenses .

A-6 FCPA . A-7 GAAP . A-7 Governmental Authority . A-7 Hazardous Materials . A-7 HSR Act . A-7 Indebtedness . A-7 Intellectual Property . 18, A-7 Investment Portfolio . A-7 IRS . A-8 J.P. Morgan . 23, A-8 JV Documentation . A-8 Knowledge . A-8 Law . A-8 Leased Real Property . 22, A-8 Lien . A-8 LTIP . A-8 Match Right Period . 38, A-8 Material Company Permits . 13, A-8 Merger . 1, A-8 Merger Consideration . 4, A-8 Multiemployer Plan . A-8

8 Net Working Capital . A-8 Non-Controlling Interest Adjustment . A-9 Notice of Superior Proposal . 38, A-9 NWC Adjustment . A-9 Objection Notice . 5, A-9 Order . A-9 Owned Real Property . 22, A-9 Parent . 1, A-9 Parent Disclosure Letter . A-9 Parent Material Adverse Effect . A-9 Parent Organizational Documents . A-9 Participating Share . A-9 Participation Percentage . A-9 Paying Agent . 7, A-9 Per Share Initial Merger Consideration . A-10 Permitted Lien . A-10 Person . A-10 Post-Closing Plans . 44, A-10 Post-Closing Welfare Plans . 44, A-10 Preferred Stock . 3, A-10 Price Adjustment Escrow .

A-10 Price Adjustment Payment . A-10 Pro Rata Share . A-11 Proxy Statement . 32, A-11 Real Property . 22, A-11 Release . A-11 Remedial Work Estimate . 49, A-11 Representative Fund Distribution . 9 Representatives . 35, A-11 Requisite Stockholder Approval . A-11 Restricted Cash . A-11 SEC . A-11 Securities Act . A-11 Stockholder Representative . A-11 Stockholder Representative Fund . 9, A-11 Stockholder Representative Losses . 63, A-11 Stockholders’ Meeting . 33, A-11 Subsidiary . A-11 Subsidiary Financial Statements . A-12 Superior Proposal . 40, A-12 Surviving Corporation . 2, A-12 Target Net Working Capital .

A-12 Tax . A-12 Tax Returns . A-12 Taxes . A-12 Termination Date . 51, A-12

9 Termination Fee . A-12 Third Party . A-12 Treasury Regulations . A-12 Unaudited Company Financial Statements . A-12 Voting Stock . A-12 WARN Act . 29, A-12 Window Shop Period . A-12 Written Conditional Consent . 32, A-13 Written Consent . 32, A-13 Written Consent Effective Date . 32, A-13 Written Unconditional Consent . 32, A-13

THIS AGREEMENT AND PLAN OF MERGER, dated as of September 20, 2017, (this “Agreement”), is made by and among CRH plc, an Irish public limited company (“Parent”), AMAT Venture, Inc., a Delaware corporation and an indirect, wholly-owned Subsidiary of Parent (“Acquisition Sub”), Ash Grove Cement Company, a Delaware corporation (the “Company”), and, solely with respect to Article IX, Venture Stockholder Representative, LLC as the Stockholder Representative pursuant to Section 9.13.

W I T N E S S E T H: WHEREAS, the respective boards of directors of the Company and Acquisition Sub each have determined that it is advisable, fair to and in the best interests of its stockholders to effect a merger (the “Merger”) of Acquisition Sub with and into the Company pursuant to the Delaware General Corporation Law (the “DGCL”) upon the terms and subject to the conditions set forth in this Agreement; WHEREAS, the board of directors of the Company has (a) determined that the terms of this Agreement and the Merger are fair to, and in the best interests of, the Company and its stockholders, (b) declared it advisable to enter into this Agreement with Parent, Acquisition Sub and the Stockholder Representative, (c) approved the execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby, including the Merger and (d) resolved, in accordance with the terms and subject to the conditions set forth in this Agreement, to recommend adoption of this Agreement by the Company’s stockholders; WHEREAS, the board of directors of each of Parent and Acquisition Sub have (a) determined that the terms of this Agreement and the Merger are fair to, and in the best interests of, Acquisition Sub and its sole stockholder, (b) declared it advisable to enter into this Agreement with the Company and the Stockholder Representative, (c) approved the execution, delivery and performance by Parent and Acquisition Sub of this Agreement and the consummation of the transactions contemplated hereby, including the Merger and (d) resolved, in accordance with the terms and subject to the conditions set forth in this Agreement, to recommend adoption of this Agreement by the Acquisition Sub’s sole stockholder; WHEREAS, in connection with the execution and delivery of this Agreement, stockholders of the Company holding approximately sixty-three point four percent (63.4%) of the votes corresponding to the Voting Stock have entered into voting agreements and proxies in favor of Parent agreeing to vote such Voting Stock to approve this Agreement and the Merger, provided that the voting agreements and proxies with respect to approximately thirty-one point nine percent (31.9%) of the votes corresponding to such Voting Stock are conditioned on the expiration of the Window Shop Period as hereafter defined; and WHEREAS, each of Parent, Acquisition Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.

2 NOW, THEREFORE, in consideration of the foregoing and the representations, warranties and covenants and subject to the conditions herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions. Defined terms used in this Agreement have the respective meanings ascribed to them by definition in this Agreement or in Appendix A. ARTICLE II THE MERGER Section 2.1 The Merger. Upon the terms and subject to the conditions of this Agreement, and in accordance with the DGCL, at the Effective Time, Acquisition Sub shall be merged with and into the Company, whereupon the separate existence of Acquisition Sub shall cease, and the Company shall continue under the name “Ash Grove Cement Company” as the surviving corporation (the “Surviving Corporation”) and shall continue to be governed by the laws of the State of Delaware.

Section 2.2 The Closing. Subject to the provisions of Article VII, the closing of the Merger (the “Closing”) shall take place at 10:00 a.m. (New York City time) on a date to be specified by the parties hereto, but no later than the fifth (5th ) Business Day after the satisfaction or, to the extent not prohibited by Law, waiver of the conditions set forth in Article VII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions). The Closing shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10036, unless another time, date or place is agreed to in writing by the Company and Parent (such date being the “Closing Date”).

Section 2.3 Effective Time. (a) As soon as practicable following the Closing, the Company shall cause a certificate of merger (the “Certificate of Merger”) with respect to the Merger to be executed, acknowledged and delivered to the Office of the Secretary of State of the State of Delaware as provided under the DGCL. The Certificate of Merger shall provide that the Merger shall become effective as of the end of business on the date at which the Certificate of Merger has been received for filing by the Office of Secretary of State of the State of Delaware (such date and time of filing or such later time as may be agreed to by Parent, Acquisition Sub and the Company and as set forth in the Certificate of Merger, being hereinafter referred to as the “Effective Time”).

(b) The Merger shall have the effects set forth in the applicable provisions of the DGCL, this Agreement and the Certificate of Merger. Without limiting the generality of the foregoing, from and after the Effective Time, the Surviving Corporation shall possess all properties, rights, privileges, powers and franchises of the Company and Acquisition

3 Sub, and all of the claims, obligations, liabilities, debts and duties of the Company and Acquisition Sub shall become the claims, obligations, liabilities, debts and duties of the Surviving Corporation. Section 2.4 Articles of Incorporation and Bylaws.

At the Effective Time, the Company Charter and the Company Bylaws shall be amended to the same form as the certificate of incorporation and bylaws of Acquisition Sub, as in effect immediately prior to the Effective Time, respectively, except that (a) the name of the Surviving Corporation shall be Ash Grove Cement Company and (b) the Company Charter and Company Bylaws will be amended if and to the extent necessary to effect compliance with Section 6.6, and as so amended shall be the certificate of incorporation and bylaws, respectively, of the Surviving Corporation until thereafter changed or amended as provided therein or in accordance with applicable Law.

Section 2.5 Board of Directors. The board of directors of the Surviving Corporation effective as of, and immediately following, the Effective Time shall consist of the members of the board of directors of Acquisition Sub immediately prior to the Effective Time, each to hold office in accordance with the articles of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the articles of incorporation and bylaws of the Surviving Corporation.

Section 2.6 Officers. From and after the Effective Time, the officers of the Company at the Effective Time shall be the officers of the Surviving Corporation, until their respective successors are duly elected or appointed and qualified in accordance with applicable Law. ARTICLE III EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES Section 3.1 Effect on Securities. At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent, Acquisition Sub or the holders of any securities of the Company or Acquisition Sub or any other Person: (a) Cancellation of Company Securities.

Each share of (i) common stock, par value $0.01 per share, of the Company (“Company Common Stock”), (ii) preferred stock, par value $10.00 per share (the “Preferred Stock”), (iii) Class B common stock, par value $0.01 per share (the “Class B Common Stock”), (iv) Class C common stock, par value $0.01 per share (the “Class C Common Stock”) and (v) Class D common stock, par value $0.01 per share (the “Class D Common Stock”), held by the Company or any Subsidiary (including shares held as treasury stock) or held, directly or indirectly, by Parent or Acquisition Sub or any of their wholly owned Subsidiaries immediately prior to the Effective Time automatically shall be canceled and retired and shall cease to exist, and no consideration or payment shall be delivered in exchange therefor or in respect thereof.

(b) Conversion of Company Securities. Except as otherwise provided in this Agreement, each share of Company Common Stock, Class B Common Stock, Class C

4 Common Stock (if any) and Class D Common Stock issued and outstanding immediately prior to the Effective Time (other than any shares canceled pursuant to Section 3.1(a) and any Dissenting Shares) shall be converted into the right to receive, in cash, without interest the sum of (i) Per Share Initial Merger Consideration and (ii) a Pro Rata Share of (A) any Price Adjustment Payment and (B) any Representative Fund Distribution, in the case of each of clause (A) and clause (B), if, as and when payable hereunder (collectively, the “Merger Consideration”).

Each share of Company Common Stock, Class B Common Stock, Class C Common Stock (if any) or Class D Common Stock to be converted into the right to receive the Merger Consideration as provided in this Section 3.1(b) shall no longer be outstanding and automatically shall be canceled and shall cease to exist, and the holders of certificates (the “Certificates”) or book-entry shares (“Book-Entry Shares”) which immediately prior to the Effective Time represented such Company Common Stock, Class B Common Stock, Class C Common Stock (if any) or Class D Common Stock shall cease to have any rights with respect to such Company Common Stock, Class B Common Stock, Class C Common Stock (if any) or Class D Common Stock other than the right to receive, upon surrender of such Certificates or Book-Entry Shares in accordance with Section 3.2, the Per Share Initial Merger Consideration, without interest thereon, and any other payment on account of the Merger Consideration as and when provided herein.

(c) Conversion of Acquisition Sub Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, each share of common stock, $1.00 par value per share, of Acquisition Sub issued and outstanding immediately prior to the Effective Time automatically shall be converted into and become one fully paid non-assessable share of common stock, $1.00 par value per share, of the Surviving Corporation and shall constitute the only outstanding shares of capital stock of the Surviving Corporation.

(d) Determination of Per Share Initial Merger Consideration. Not later than five (5) Business Days prior to the anticipated Closing Date, the Company shall prepare and deliver, or cause to be prepared and delivered, to Parent a statement setting forth in reasonable detail consistent with Appendix B and in accordance with the requirements of Appendix B, the Company’s good faith (i) estimate of Debt-Like Items, Net Working Capital, the corresponding NWC Adjustment, Company Cash, Indebtedness and Closing Net Cash, in each case as of the Closing Date and based on the books and records of the Company as of the end of the fiscal month preceding the month in which the Closing occurs, and (ii) calculation of the Estimated Equity Value and Per Share Initial Merger Consideration based thereon (the “Estimated Closing Statement”).

The Company will promptly provide to Parent such supporting documentation regarding the Estimated Closing Statement as Parent may reasonably request and will consider in good faith any reasonable comments from Parent pertaining to the Estimated Closing Statement. The amounts reflected in the Estimated Closing Statement shall be determined in accordance with the Accounting Principles and Appendix B. An illustrative Estimated Closing Statement based on the Company’s June 30, 2017 financial information is included in Appendix B. (e) Calculation of Price Adjustment Payment. As promptly as reasonably practicable following the Closing Date and in any event not later than ninety (90) days after the Closing Date, Parent will cause to be prepared and delivered to the Stockholder Representative a statement (the “Closing Statement”) setting forth Parent’s good faith calculation of (i) the Debt-Like Items, Net Working Capital, NWC Adjustment, Company Cash,

5 Indebtedness and Closing Net Cash, in each case as of the Effective Time, and (ii) the Equity Value based thereon. The Closing Statement shall be prepared in accordance with the Accounting Principles and shall be in the same form as the Estimated Closing Statement. During the forty-five (45)-day period following delivery of the Closing Statement to the Stockholder Representative, Parent will provide the Stockholder Representative and its representatives with reasonable access during normal business hours to the books and records and personnel of Parent and the Surviving Corporation to enable the Stockholder Representative to evaluate the accuracy of the Closing Statement.

If the Stockholder Representative disagrees with the determination of any component of the Closing Statement calculations, then the Stockholder Representative will notify Parent in writing (an “Objection Notice”) of such disagreement(s) within forty-five (45) days after delivery of the Closing Statement, which Objection Notice will describe the nature and extent of any such disagreement(s) in reasonable detail. If the Stockholder Representative does not deliver an Objection Notice to Parent within such forty-five (45)-day period, then the Closing Statement and the calculations of the Debt-Like Items, Net Working Capital, NWC Adjustment, Closing Net Cash and Equity Value set forth therein will be conclusive and binding for all purposes hereof.

If Parent and the Stockholder Representative resolve any such disagreement(s) within thirty (30) days after Parent’s receipt of the Objection Notice, such agreement and the resulting calculation of the Equity Value shall be conclusive and binding for all purposes hereof. If Parent and the Stockholder Representative are unable to resolve any disagreement set forth in the Objection Notice within thirty (30) days after Parent’s receipt of the Objection Notice, Parent or the Stockholder Representative may refer the accounting matters remaining in dispute for final determination to KPMG LLP (the “Chosen Firm”); provided that, if KPMG LLP is not willing to serve as the Chosen Firm, to such other reputable, national independent accounting firm as Parent and the Stockholder Representative may designate by mutual agreement, or failing such agreement, an impartial national independent accounting firm designated by a court of competent jurisdiction upon application of Parent or the Stockholder Representative.

The Chosen Firm shall only have authority to resolve those unresolved accounting matters raised in the Objection Notice that are specifically referred to it for resolution and corresponding changes to other items necessitated by changes made in a disputed item; provided that the Chosen Firm may not assign a value to any item greater than the greater value, or less than the smaller value, for such item claimed by either Parent or the Stockholder Representative. The Chosen Firm shall apply the provisions of this Section 3.1 in resolving any dispute pursuant hereto. The parties shall use their commercially reasonable efforts to cause the Chosen Firm to resolve any such disputed accounting matters within thirty (30) days after such referral and, in any case, as promptly as practicable after such referral.

The decision of the Chosen Firm as to any accounting matters referred to it shall be in writing and, absent manifest error, shall be final and binding for all purposes of this Agreement. Any disagreements between Parent and the Stockholder Representative with respect to any matters of law or the interpretation of this Agreement (not including any disagreement related to the application of the Accounting Principles, which disagreement shall be decided by the Chosen Firm) remain subject to Section 9.10, and the Chosen Firm shall have no authority to decide such matters unless specifically agreed by Parent and the Stockholder Representative at the time, and any dispute as to whether a matter is an accounting matter or a matter of law or interpretation of this Agreement will, unless otherwise agreed in writing by Parent and the Stockholder Representative at the time, be resolved by a court of competent jurisdiction.

The fees and disbursements of the Chosen Firm shall be paid

6 one-half by Parent, on the one hand, and one-half from the Price Adjustment Escrow, on the other. (f) Price Adjustment Escrow; Price Adjustment Payment. On the Closing Date, Parent shall cause Acquisition Sub to deposit the Price Adjustment Escrow with the Escrow Agent, to be held and disbursed in accordance with the Escrow Agreement and this Section 3.1(f). If the Equity Value, as finally determined pursuant to Section 3.1(e) is less than the Estimated Equity Value used to determine the Per Share Initial Merger Consideration, then within two (2) Business Days after such final determination, Parent and the Stockholder Representative shall jointly instruct the Escrow Agent in writing to disburse the amount of such shortfall, multiplied by the Participation Percentage, plus any interest or earnings attributable thereto, to the Surviving Corporation from the Price Adjustment Escrow, and to disburse any remainder of the Price Adjustment Escrow, together with any interest or earnings attributable thereto, to the Paying Agent, for the benefit of the former holders of Participating Shares as additional Merger Consideration.

If the Equity Value, as finally determined pursuant to Section 3.1(e) is greater than the Estimated Equity Value used to determine the Per Share Initial Merger Consideration, then within two (2) Business Days after such final determination, (i) Parent and the Stockholder Representative shall jointly instruct the Escrow Agent in writing to disburse the Price Adjustment Escrow, together with any interest or earnings attributable thereto, to the Paying Agent, for the benefit of the former holders of Participating Shares as additional Merger Consideration, and (ii) Parent shall deposit, or cause to be deposited with the Paying Agent, for the benefit of the former holders of Participating Shares as additional Merger Consideration (on a pro rata basis with respect to each former Participating Share), cash constituting an amount equal to the amount of such excess, multiplied by the Participation Percentage, plus interest on such amount accruing at an annual rate equal to the “prime rate” as published in the Money Rates column of The Wall Street Journal (Eastern Edition) as published on the Closing Date, calculated based on the number of days from the Closing Date to the date of such payment.

Notwithstanding anything to the contrary in this Agreement, in no event shall any amounts to be disbursed or paid by or to Parent under this Section 3.1(f) be offset against any other amounts due to or from Parent hereunder.

(g) Divestiture of Investment Portfolio. Promptly following the date hereof, and in all events no later than thirty (30) days after the date of this Agreement, the Company shall, in consultation with Deloitte, cause to be prepared and delivered to Parent a reasonably detailed schedule setting forth the computation of the Company’s or it’s relevant Subsidiary’s adjusted tax basis in each of the assets included in the Investment Portfolio. The Company will promptly provide to Parent such supporting documentation regarding the calculation of such adjusted tax basis as Parent may reasonably request and will consult with Parent, and upon request the Company will use its reasonable commercial efforts to cause Deloitte (on a “hold harmless” basis) to consult with Parent, regarding such basis calculations.

From the date of this Agreement through the Closing, the Company shall keep Parent reasonably informed, on at least a monthly basis, as to the status of the divestiture of the assets included in the Investment Portfolio. Together with the delivery of the Estimated Closing Statement, the Company shall cause to be prepared and delivered to Parent a reasonably detailed schedule of all pre-Closing liquidations of the Investment Portfolio and subsequent distributions along with an estimate of all associated tax assets and liabilities and the accounting for those assets and liabilities. The Company will promptly provide to Parent such supporting documentation

7 regarding such estimate as Parent may reasonably request and will consult with Parent regarding the preparation and review of such schedule and supporting documentation. Section 3.2 Exchange of Certificates. (a) Designation of Paying Agent; Deposit of Exchange Fund. Prior to the Closing, Parent and the Company shall jointly designate a bank, trust or similar company (the “Paying Agent”), for the payment of the Per Share Initial Merger Consideration as provided in Section 3.1(b) and subsequent Price Adjustment Payments as provided in Section 3.1(f), Parent shall deposit, or cause to be deposited with the Paying Agent, immediately prior to the Effective Time, cash in an amount equal to the Exchange Fund.

In the event the Exchange Fund shall be insufficient to make the payments contemplated by Section 3.1(b), Parent promptly shall deposit, or cause to be deposited, additional funds with the Paying Agent in an amount equal to the deficiency in the amount required to make such payments. Parent shall cause the Exchange Fund and any amounts deposited with the Paying Agent pursuant to Section 3.1(f) to be (A) held for the benefit of the holders of Company Common Stock, Class B Common Stock, Class C Common Stock (if any) and Class D Common Stock and (B) applied promptly to making the payments pursuant to Section 3.1(b) and Section 3.1(f).

The Exchange Fund shall not be used for any purpose other than to fund payments pursuant to Section 3.1, except as expressly provided for in this Agreement.

(b) Letter of Transmittal. As promptly as reasonably practicable following the Effective Time and in any event not later than the second (2nd ) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of a Certificate or Book-Entry Share that immediately prior to the Effective Time represented outstanding shares of Company Common Stock, Class B Common Stock, Class C Common Stock (if any) or Class D Common Stock (i) a letter of transmittal, which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares to the Paying Agent and which shall be in the form and have such other provisions as Parent and the Company may reasonably specify and (ii) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration into which the number of shares of Company Common Stock, Class B Common Stock, Class C Common Stock (if any) or Class D Common Stock previously represented by such Certificate or Book-Entry Shares shall have been converted pursuant to this Agreement (which letter of transmittal and instructions shall be in the form and have such other provisions as Parent and the Company may reasonably specify).

(c) Timing of Exchange. Upon surrender of a Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration as and when provided herein for each share of Company Common Stock, Class B Common Stock, Class C Common Stock (if any) or Class D Common Stock formerly represented by such Certificate or Book-Entry Share upon the later to occur of (i) the Effective Time or (ii) the Paying Agent’s receipt of such Certificate (or affidavit of loss in lieu thereof) or

8 Book-Entry Share, and the Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share so surrendered shall be forthwith canceled. The Paying Agent shall accept such Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares upon compliance with such reasonable terms and conditions as the Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. No interest shall be paid or accrued for the benefit of holders of the Certificates or Book-Entry Shares on any portion of the Merger Consideration payable following the surrender of the Certificates or Book-Entry Shares.

(d) Closing of Transfer Books. At the Effective Time, the stock transfer books of the Company shall be closed, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Company Common Stock, Class B Common Stock, Class C Common Stock (if any) or Class D Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation or Parent for transfer or for any other reason, the holder of any such Certificates or Book-Entry Shares shall be given a copy of the letter of transmittal referred to in Section 3.2(b) and instructed to comply with the instructions in that letter of transmittal in order to receive the cash to which such holder is entitled pursuant to this Article III.

(e) Termination of Exchange Fund. Any portion of the Exchange Fund that remains undistributed to the holders of the Certificates or Book-Entry Shares for one (1) year after the Effective Time shall be delivered to the Surviving Corporation, upon written demand, and any such holders prior to the Merger who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation as a general creditor thereof for payment of their claims for Merger Consideration in respect thereof.

(f) No Liability. None of Parent, Acquisition Sub, the Company, the Surviving Corporation, the Stockholder Representative or the Paying Agent shall be liable to any Person in respect of any cash held in the Exchange Fund (or held by the Surviving Corporation following termination of the Exchange Fund) delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

If any Certificates or Book-Entry Shares shall not have been surrendered immediately prior to the date on which any cash in respect of such Certificate or Book-Entry Share would otherwise escheat to or become the property of any Governmental Authority, any such cash in respect of such Certificate or Book-Entry Share shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto. (g) Investment of Exchange Fund. The Paying Agent may invest any cash included in the Exchange Fund or otherwise deposited with the Paying Agent pursuant hereto as directed by Parent or, after the Effective Time, the Surviving Corporation; provided that (i) no such investment shall relieve Parent or the Paying Agent from making the payments required by this Article III, and following any losses Parent promptly shall provide additional funds to the Paying Agent for the benefit of the holders of Company Common Stock, Class B Common Stock, Class C Common Stock (if any) and Class D Common Stock in the amount of such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by

9 the United States of America and backed by the full faith and credit of the United States of America. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as directed by Parent. (h) Withholding. Each of Parent, the Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from any payment on account of the Merger Consideration and from any amounts otherwise payable pursuant to this Agreement to any Person such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code and the Treasury Regulations or any provision of applicable state, local or foreign Tax Law.

To the extent that amounts are so deducted and withheld and paid over to the appropriate Governmental Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

(i) Stockholder Representative Fund. At the Effective Time, Parent shall cause to be delivered to such bank, trust or similar company as the Stockholder Representative may designate not less than two (2) Business Days prior to the Closing Date, the sum of $2,000,000 multiplied by the Participation Percentage, by wire transfer of immediately available funds (the “Stockholder Representative Fund”), for use by the Stockholder Representative to cover all reasonable costs and expenses incurred in the performance of its duties in respect of this Agreement and in accordance with Section 9.13. Upon the completion of the Stockholder Representative’s duties hereunder, any funds remaining in the Stockholder Representative Fund shall be deposited with the Paying Agent, for the benefit of the former holders of Participating Shares as additional Merger Consideration (a “Representative Fund Distribution”).

Section 3.3 Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, then upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if reasonably required by the Surviving Corporation, the posting by such Person of a bond, in such reasonable and customary amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to which the holder thereof is from time to time entitled pursuant to this Article III.

Section 3.4 Dissenting Shares. Notwithstanding Section 3.1(b), to the extent that holders thereof are entitled to appraisal rights under Section 262 of the DGCL, shares of Company Common Stock, Class B Common Stock, Class C Common Stock (if any) and Class D Common Stock issued and outstanding immediately prior to the Effective Time and held by a holder who has properly exercised and perfected his, her or its demand for appraisal rights under Section 262 of the DGCL (the “Dissenting Shares”), shall not be converted into the right to receive the Merger Consideration, but the holders of such Dissenting Shares shall be entitled to receive such consideration as shall be determined pursuant to Section 262 of the DGCL; provided, however, that if any such holder shall have failed to perfect or shall have effectively withdrawn or lost his, her or its right to appraisal and payment under the DGCL (whether occurring before, at or after the Effective Time), such holder’s shares of Company Common Stock, Class B Common Stock, Class C Common Stock (if any) or Class D Common Stock shall

10 thereupon be deemed to have been converted as of the Effective Time into the right to receive the Per Share Initial Merger Consideration, plus an amount equal (on a per share basis) to any Price Adjustment Payment or Representative Fund Distribution, in each case made from time to time, in each case, without any interest thereon, and such shares shall not be deemed to be Dissenting Shares. Any payments required to be made with respect to the Dissenting Shares (or any shares that cease to be Dissenting Shares pursuant to this Section 3.4) shall be made by Parent (and not the Paying Agent, Company or Acquisition Sub).

Section 3.5 Transfers; No Further Ownership Rights. After the Effective Time, there shall be no registration of transfers on the stock transfer books of the Company of shares of Company Common Stock, Class B Common Stock, Class C Common Stock (if any) or Class D Common Stock that were outstanding immediately prior to the Effective Time. If Certificates or Book-Entry Shares are presented to the Surviving Corporation for transfer following the Effective Time, they shall be canceled against delivery of the Merger Consideration, as provided for in Section 3.1(b), for each share of Company Common Stock, Class B Common Stock, Class C Common Stock (if any) or Class D Common Stock formerly represented by such Certificates or Book-Entry Shares.

Payment of the Merger Consideration in accordance with the terms of this Article III, and, if applicable, any unclaimed dividends upon the surrender of Certificates, shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock, Class B Common Stock, Class C Common Stock (if any) or Class D Common Stock formerly represented by such Certificates or Book- Entry Shares.

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY Subject to Section 9.3(b), except as disclosed in the corresponding section of the Company Disclosure Letter, the Company hereby represents and warrants to Parent and Acquisition Sub as of the date hereof and, for purposes of Section 7.2(a), again as of the Effective Time, provided that the failure of any representation and warranty to be true and correct as of the Effective Time shall not result in any liability of any kind hereunder, as follows: Section 4.1 Organization and Qualification; Subsidiaries. Each of the Company and its Subsidiaries is a corporation, partnership or other entity duly organized, validly existing and (to the extent applicable) in good standing under the laws of the jurisdiction of its incorporation or organization and has the requisite entity power and authority to conduct its business as it is now being conducted, except where the failure to be in good standing or to have such power and authority would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.

Each of the Company and its Subsidiaries is duly qualified or licensed to do business and (to the extent applicable) is in good standing in each jurisdiction in which the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and (to the extent applicable) in good standing would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. The Company is not in violation of any provision of its amended and restated certificate of incorporation (the “Company Charter”) or its amended and restated bylaws (the “Company Bylaws”).

The Company has made available to Parent correct and complete copies of

11 the Company Charter, the Company Bylaws and the organizational or governing documents of each material Subsidiary, each as currently in effect. Section 4.2 Capitalization. (a) Subject only to conversions occurring under the terms of the Company Charter after the date of this Agreement, and to matters described in Section 4.2(a) of the Company Disclosure Letter or as expressly permitted pursuant to this Agreement, the authorized capital stock of the Company consists of (i) 10,000,000 shares of Company Common Stock, 1,092,607 shares of which are issued and outstanding, (ii) 100,000 shares of Preferred Stock, no shares of which are outstanding, (iii) 5,000,000 shares of Class B Common Stock, 3,542,164 shares of which are issued and outstanding, (iv) 3,000,000 shares of Class C Common Stock, no shares of which are outstanding and (v) 3,000,000 shares of Class D Common Stock, 2,726,112 shares of which are issued and outstanding, such issued and outstanding shares being duly authorized, fully paid and non-assessable and validly issued in compliance with all requirements in applicable Company Contracts.

Other than as set forth in Section 4.2(a) of the Company Disclosure Letter, no shares of Company Common Stock, Preferred Stock, Class B Common Stock, Class C Common Stock or Class D Common Stock are held in the treasury of the Company. Other than as set forth above in this Section 4.2(a) or in Section 4.2(a) of the Company Disclosure Letter or as expressly permitted pursuant to this Agreement, there are no existing and outstanding (A) options, warrants, calls, subscriptions or other rights, convertible securities, agreements or commitments of any character to which the Company or any of its Subsidiaries is a party obligating the Company or any of its Subsidiaries to issue, transfer or sell any shares of capital stock or other equity interest in the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or equity interests, or any phantom stock, phantom equity, stock appreciation rights or other arrangements of any type intended to track or reflect the value or performance of any equity interest in the Company, (B) contractual obligations of the Company or any of its Subsidiaries to issue, exchange, repurchase, redeem or otherwise acquire any capital stock or other equity interest of the Company or any of its Subsidiaries or (C) voting trusts or similar agreements to which the Company is a party with respect to the voting of the capital stock of the Company.

(b) Except as set forth in Section 4.2(b) of the Company Disclosure Letter, all of the outstanding shares of capital stock or equivalent equity interests of each of the Company’s Subsidiaries are owned of record and beneficially, directly or indirectly, by the Company or the relevant wholly-owned Subsidiary, free and clear of all Liens except for restrictions imposed by applicable securities laws and Permitted Liens. (c) Except as set forth in Section 4.2(c) of the Company Disclosure Letter or the Company Financial Statements and except for the Investment Portfolio, neither the Company nor any of its Subsidiaries owns any interest or investment (whether equity or debt), or any option, warrant or right to purchase or acquire, or right convertible into or exchangeable for any interest or investment, in any corporation, partnership, joint venture, trust or other entity, other than a Subsidiary of the Company, or has any right or obligation to acquire any such interest or investment in each case where the amount thereof exceeds $1,000,000.

Section 4.3 Authority Relative to Agreement.

12 (a) The Company has all necessary corporate power and authority to execute and deliver this Agreement and, subject to obtaining the Requisite Stockholder Approval, to consummate the transactions contemplated hereby, including the Merger. The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the transactions contemplated by this Agreement, have been duly and validly authorized by all necessary corporate action by the Company, and except for the Requisite Stockholder Approval, no other corporate action or proceeding on the part of the Company or any Subsidiary is necessary to authorize the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement.

This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery of this Agreement by the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally and (ii) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

(b) The board of directors of the Company has, by resolutions duly adopted by the requisite vote of the directors, (i) adopted this Agreement and the transactions contemplated hereby, (ii) determined that this Agreement and the transactions contemplated hereby are advisable and in the best interests of the Company and Company’s stockholders and (iii) resolved to make the Company Recommendation (provided that any change or modification or rescission of such recommendation by the board of directors of the Company in accordance with Section 6.5 shall not be a breach of the representation in clause (iii) of this Section 4.3(b)).

(c) Assuming the accuracy of the representation contained in Section 5.10, the Requisite Stockholder Approval is the only approval of holders of securities of the Company that is required in connection with the consummation of any of the transactions contemplated hereby.

Section 4.4 No Conflict; Required Filings and Consents. (a) Neither the execution and delivery of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby will (i) violate any provision of the Company Charter or the Company Bylaws, (ii) assuming that the Consents, registrations, declarations, filings and notices referred to in Section 4.4(b) have been obtained or made, any applicable waiting periods referred to therein have expired and any condition precedent to any such Consent has been satisfied, conflict with or violate any Law applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, (iii) result in any breach of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to any right of termination, acceleration or cancellation of, any Company Material Contract, or result in the creation of a Lien, other than any Permitted Lien or any Lien created as a result of any action taken by Parent or Acquisition Sub, upon any of the property or assets of the Company or any of its Subsidiaries, or (iv) give rise to any repurchase, redemption, put, call or similar right pursuant