Exhibit 2.1
AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
This Amended and Restated Management Stockholders Agreement
(the "Agreement") is made as of November 15, 1996 by and among ▇▇▇▇▇▇▇
Engineering Co., Inc., a Delaware corporation (the "Company"), Connector
Holding Company, a Delaware corporation ("Connector"), and each of ▇▇▇▇▇▇
▇. ▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (each a
"Management Stockholder," collectively the "Management Stockholders" and,
together with Connector, collectively referred to herein as the
"Stockholders").
Recitals
1. The Stockholders own all of the issued and outstanding shares of the
Company's Common Stock, $.01 par value (the "Common Stock");
2. Reference is made to a Management Stockholders Agreement dated
December 23, 1992 (the "Stockholders Agreement") entered into by ▇▇▇▇▇▇▇
Engineering Acquisition Co., Inc., Connector, Connector Acquisition
Company, Oak Industries Inc. ("Oak"), and each of Tyler Capital Fund,
L.P., Tyler Massachusetts, L.P., Tyler International, L.P. - II, BCIP
Associates and BCIP Trust Associates, L.P., and each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
the ▇▇▇▇▇▇▇▇▇ Family Trust dated December 27, 1989, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇;
3. Connector has agreed to purchase from the Management Stockholders the
Management Shares (as defined herein), pursuant to the terms and
conditions set forth herein; and
4. The parties believe that it is in the best interests of the Company
and the Stockholders (i) to continue to provide for certain rights and
obligations of the Stockholders with respect to the election of directors
of the Company, (ii) to provide for the terms and conditions upon which
Connector shall purchase certain shares of Common Stock held by the
Management Stockholders, and (iii) to set forth their agreements on
certain other matters.
Agreement
Now, therefore, the parties hereto hereby agree as follows:
1. DEFINITIONS.
1.1. "Accelerated Closing" shall mean a closing (a) pursuant to
Connector's "call right" under Section 4.1 of this Agreement, or (b) held
within thirty (30) days following the end of the Accounting Period, as
defined in Section 4.2.2. of this Agreement.
1.2. "EBITA" shall mean, with respect to any period, the net income
of Connector and its subsidiaries before interest, income taxes and
amortization, without duplication, calculated on a consolidated basis in
accordance with generally accepted accounting principles excluding (a) any
deductions relating to corporate allocations with respect to Connector and
its subsidiaries, provided however, that direct charges for expenses
(including, by way of example and not limitation, insurance and legal
expenses) that are taken into account in determining operating income
shall not be included in such corporate allocations, (b) any costs,
expenses, losses, income or gains relating to unusual items, as may be
agreed by the parties, (c) any deductions for minority interests in
Connector's subsidiaries and (d) any deductions for management fees paid
to Oak Industries Inc. and ▇▇▇▇ Capital Inc. Attached as Exhibit A hereto
is a calculation of EBITA for the four fiscal quarters ended September 28,
1996, which Exhibit A shall also serve as an example of the intended
operation of the definition of EBITA for future EBITA calculations.
1.3. "Management Majority Holders" shall mean, as of any date, the
holders of a majority of the Management Shares outstanding on such date.
1.4. "Management Shares" shall mean all shares of Common Stock
originally issued to, or issued with respect to shares originally issued
to, or held by, the Management Stockholders.
1.5. "Person" shall mean any individual, partnership, corporation,
company, association, trust, joint venture, unincorporated organization,
entity or division, or any government, governmental department or agency
or political subdivision thereof.
1.6. "Purchase Price" shall mean, other than in the case of an
Accelerated Closing, with respect to each Management Share, an amount
equal to (a) the product of eight (8) times EBITA for the twelve (12)
consecutive accounting months ending on the date of the last day of the
Company's third fiscal accounting quarter immediately preceding the date
on which the Management Share is to be purchased by Connector, and (b)
dividing the foregoing product by the total number of shares of Common
Stock issued and outstanding. In the event of an Accelerated Closing,
Purchase Price shall mean, with respect to each Management Share, an
amount equal to (i) the product of eight (8) times EBITA for the twelve
(12) consecutive accounting months immediately preceding the month in
which the Management Share is to be purchased by Connector and (ii)
dividing the foregoing product by the total number of shares of Common
Stock issued and outstanding.
1.7. "Shares" shall mean all Common Stock held by Connector and the
Management Stockholders.
2. VOTING AGREEMENT.
2.1. Voting. Each holder of Shares hereby agrees to cast all votes to
which such holder is entitled in respect of the Shares, whether at any
annual or special meeting, by written consent or otherwise, as follows:
2.1.1. Number of Directors. To fix the number of directors of the
Company at six (6).
2.1.2. Election of Directors. (i) To elect as directors of the
Company five (5) persons, if any, who shall have been nominated by
Connector in a written notice delivered to all of the holders of Shares
(the "Connector Directors"), and (ii) to elect as a director of the
Company one person, if any, who shall have been nominated by the
Management Majority Holders in a written notice delivered to all of the
holders of Shares (the "Management Director"). The Connector Directors
and the Management Director shall agree upon the nature and frequency of
any meetings of the Company's Board of Directors to be held.
2.2. Successors. No Connector Director may be removed without the
consent of Connector. No Management Director may be removed without the
consent of the Management Majority Holders. In the event a director shall
cease to serve for any reason, then, in the case of a Connector Director,
Connector shall have the right to designate a successor, and in the case
of the Management Director, the Management Majority Holders shall have the
right to designate a successor. Each holder of Shares shall, upon receipt
of a written notice identifying such designee, promptly take all action
necessary to cause the appointment of such designee to the Company's Board
of Directors pursuant to the Company's By-Laws and Certificate of
Incorporation.
2.3. The Company. The Company agrees not to give effect or permit any
subsidiary to give effect to any action by any holder of Shares or any
other Person which is in contravention of this Section 2.
2.4. Period. The provisions of this Section 2 shall expire upon the
earlier of (i) the tenth anniversary of the date of this Agreement, and
(ii) the date on which the Management Stockholders cease to own any
Shares.
3. TRANSFER RIGHTS. No holder of Management Shares shall sell, pledge,
assign, encumber or otherwise transfer or dispose of any of such Shares to
any other Person, whether directly, indirectly, by operation of law or
otherwise; provided, however, that nothing herein shall prevent transfers
by will or by the applicable laws of descent and distribution.
4. CALL RIGHT; CLOSINGS WITH RESPECT TO MANAGEMENT SHARES.
4.1. Right to "Call" Management Shares. If a Management Stockholder's
employment with the Company is terminated "for cause" (as such term is
defined in his Employment Agreement with the Company) (a "Call Event"),
then Connector may, by notice to the Management Stockholder, or his
estate, heirs, devisees, executor or representative (the "Stockholder's
Estate"), as the case may be, delivered within thirty (30) days after the
occurrence of the Call Event, elect to purchase from such Management
Stockholder or such Stockholder's Estate, as the case may be, all of the
Management Shares owned, and such Management Stockholder or such
Stockholder's Estate, as the case may be, hereby agrees to sell to
Connector such Management Shares, for an aggregate amount equal to the
Purchase Price multiplied by the number of Management Shares being sold.
If Connector does not purchase all of the Shares of such Management
Stockholder, then such Management Stockholder's non-competition obligation
contained in his Employment Agreement with the Company shall continue for
a period of two years following the date upon which he ceases to, directly
or indirectly, own or hold beneficially or of record any Shares.
4.2. Closings.
4.2.1. First Closing. The closing (the "Closing") of the sale by
each Management Stockholder to Connector of one half of Management Shares
held by such Management Stockholder immediately prior to the Closing shall
be held on or about November 15, 1996, at the principal office of Oak, or
at such other time and location as the parties to such sale may mutually
agree, and otherwise in accordance with the provisions of Subsections
4.2.4. and 4.2.5. hereof.
4.2.2. Subsequent Closings. The closing (the "Second Closing") of
the sale by each Management Stockholder to Connector of one half of the
Management Shares held by such Management Stockholder immediately prior to
the Second Closing shall be held on October 31, 1997, at the principal
office of Oak, or at such other time and location as the parties to such
sale may mutually agree, and otherwise in accordance with the provisions
of Subsections 4.2.4. and 4.2.5. hereof; provided, however, that if at
any time after September 30, 1996, EBITA exceeds an aggregate amount of
$60 million during any period of twelve (12) consecutive accounting months
(the "Accounting Period"), then within thirty (30) days immediately
following the end of the Accounting Period, on such date as shall be
determined by Connector, Connector shall purchase, and the Management
Stockholders shall sell, pursuant to the provisions of Subsections 4.2.4.
and 4.2.5. hereof, the remaining Management Shares held by them; and
provided further that in the event that the Management Stockholders own
any Management Shares on that date which is seven hundred and thirty (730)
days after September 28, 1996, then Connector shall purchase on October
30, 1998, and the Management Stockholders shall sell, all Management
Shares held by them pursuant to the provisions of Subsections 4.2.4. and
4.2.5. hereof.
4.2.3. Closing Pursuant to Section 4.1. The closing of the sale of
any Management Shares pursuant to Section 4.1 shall take place at the
principal office of Oak on a date selected by Connector, which date shall
be within thirty (30) days after the date of the Call Notice, or at such
other time and location as the parties to such sale may mutually agree
(the "Call Closing Date"). On the Call Closing Date, Connector shall
purchase, and the Management Stockholder shall sell, all Management Shares
held by him pursuant to the provisions of Subsections 4.2.4. and 4.2.5.
hereof.
4.2.4. Purchase Price; Representations and Warranties. At each
closing pursuant to this Section 4.2, Connector shall pay to each
Management Stockholder the aggregate Purchase Price for the Management
Shares being sold by such Management Stockholder by wire transfer of
immediately available funds, and each such Management Stockholder shall
deliver to Connector the certificate or certificates representing the
Management Shares being sold, duly endorsed for transfer, free and clear
of any liens or encumbrances. The delivery of a certificate or
certificates for Shares by any Management Stockholder to Connector at a
closing of the purchase of Shares by
Connector under this Agreement shall be deemed a representation and
warranty by such selling Management Stockholder that: (a) he has full
right, title and interest in and to such Shares; (b) he has all necessary
power and authority and has taken all necessary action to sell such Shares
as contemplated; and (c) such Shares are free and clear of any and all
liens or encumbrances.
4.2.5. Delivery of Certificates. If at a closing of a sale of Shares
to Connector under this Agreement any Management Stockholder fails to
deliver to Connector the certificate or certificates evidencing its
shares, Connector may, at its option, in addition to all other remedies it
may have, deposit the purchase price for such Shares with The First
National Bank of Boston (or any other commercial bank approved by
Connector and the Management Majority Holders), as escrow agent (the
"Escrow Agent"), and thereupon the Company shall cancel on its books the
certificate or certificates representing such Shares, and shall issue, in
lieu thereof and in the name of Connector, a new certificate or
certificates representing such Shares, and thereupon all of the Management
Stockholder's rights in and to such Shares shall terminate. Thereafter,
upon delivery to the Company by such Management Stockholder of the
certificate or certificates evidencing such Shares (duly endorsed for
transfer, with signature guaranteed, and free and clear of any liens of
encumbrances), the Company shall instruct the Escrow Agent to deliver the
purchase price (with any interest from the date of deposit of such funds
with the Escrow Agent to the date of delivery of such stock certificates
to accrue to such Management Stockholder) to such Management Stockholder.
4.2.6. Post Closing Adjustments. Connector shall prepare and deliver
to the Management Stockholders, within one hundred twenty (120) days after
the end of each fiscal year in which a closing pursuant to this Section
4.2 occurs, a post closing statement (the "Post Closing Statement"). The
Post Closing Statement shall set forth, for the fiscal year in which such
closing occurred, calculations relating to (a) any normal, year-end
adjustments and (b) any additional adjustments in connection with the
annual audit conducted by the Company's independent certified public
accountants (together, the "Post Closing Adjustments"), which would, after
giving effect to such adjustments, result in an EBITA (the "Adjusted
EBITA") that differs from the EBITA on which the Purchase Price for the
Management Shares was originally based (the "Closing EBITA") by more than
Five Hundred Thousand Dollars ($500,000) (the "Threshold Amount"). For
the purposes of this Section, the Post Closing Adjustments shall be
applied to all four fiscal quarters used in the EBITA calculation,
regardless of whether a fiscal quarter falls in a different fiscal year.
With respect to an Accelerated Closing, Connector shall have the
option of following the procedure set forth above, or, in the alternative,
engaging the Company's independent certified public accountants to conduct
an audit of the Company's financial statements for the twelve (12)
consecutive accounting months for which the Closing EBITA was determined.
If the findings of such audit would result in an EBITA (also referred to
herein as the "Adjusted EBITA") that differs from the Closing EBITA by
more than the Threshold Amount, then Connector shall deliver to the
Management Stockholders a Post Closing Statement describing such findings.
Should the Adjusted EBITA differ from the Closing EBITA by more than Five
Hundred Thousand Dollars ($500,000), then the cost of the audit by the
Company's independent certified public accounts shall be borne equally
among the Management Stockholders who sold Shares in the Accelerated
Closing; provided, however, that the costs of an audit shall be borne by
the Management Stockholder only with respect to an Accelerated Closing.
Should the Adjusted EBITA differ from the Closing EBITA by more than
the Threshold Amount, either in connection with a scheduled closing under
this Section 4.2, or in the case of an Accelerated Closing, the Adjusted
EBITA shall be used to calculate a new Purchase Price (the "Adjusted
Purchase Price"), which calculations shall also be set forth on the Post
Closing Statement. If the Adjusted EBITA is lower than the Closing EBITA
by more than the Threshold Amount, then each Management Stockholder who
sold Management Shares shall pay to Connector an amount equal to (i) the
difference between the Purchase Price and the Adjusted Purchase Price (ii)
multiplied by the number of Management Shares sold by such Management
Stockholder to Connector. If the Adjusted EBITA is higher than the
Closing EBITA by more than the Threshold Amount, then Connector shall pay
to each Management Stockholder who sold Management Shares an amount equal
to (A) the difference between the Adjusted Purchase Price and the Purchase
Price (B) multiplied by the number of Management Shares sold by such
Management Stockholder to Connector.
If it is shown, in any Post Closing Statement delivered subsequent to
the first Post Closing Statement delivered hereunder, that the relevant
Post Closing Adjustments would have an impact on the EBITA or Adjusted
EBITA used with respect to a prior closing under this Section 4.2, then
such Post Closing Statement shall set forth revised calculations with
respect to such EBITA or Adjusted EBITA (the "Revised EBITA") and Purchase
Price or Adjusted Purchase Price (the "Revised Purchase Price"), as the
case may be. If a Revised EBITA is lower than the applicable Adjusted or
Closing EBITA, as the case may be, by more than the Threshold Amount, then
each Management Stockholder who sold Management Shares shall pay to
Connector an amount equal to (1) the difference between the Adjusted
Purchase Price or the Purchase Price, as the case may be, and the Revised
Purchase Price (2) multiplied by the number of Management Shares sold by
such Management Stockholder to Connector. If a Revised EBITA is higher
than the applicable Adjusted or Closing EBITA, as the case may be, by more
than the Threshold Amount, then Connector shall pay to each Management
Stockholder who sold Management Shares an amount equal to (aa) the
difference between the Revised Purchase Price and the Adjusted Purchase
Price or the Purchase Price, as the case may be, (bb) multiplied by the
number of Management Shares sold by such Management Stockholder to
Connector.
The Management Stockholders shall deliver any objections to any Post
Closing Statement to Connector within five (5) business days of receipt.
Any disputes regarding the Post Closing Statement not resolved by the
parties within thirty (30) calendar days after the receipt by Connector of
any objections of the Management Stockholders shall be resolved by a "big
six" accounting firm mutually acceptable to the parties. The
determination of any accounting firm so selected shall be conclusive and
binding. The fees and expenses of such accounting firm acting under this
Agreement shall be shared equally among Connector and the Management
Stockholders. Upon the agreement or final determination by an accounting
firm pursuant to the provisions of this Section, Connector shall make
appropriate payments, or the Management Stockholders shall make
appropriate refunds, within five (5) business days after such agreement or
final determination.
5. INFORMATION. The Company will, and will cause each of its
subsidiaries, to comply with such of the following provisions as are
applicable to it:
5.1. Annual Statements. The Company will furnish to each Management
Stockholder, for as long as such Management Stockholder owns any of the
Management Shares, as soon as available, and in any event within one
hundred twenty (120) days after the end of each fiscal year, the following
financial information about the Company and its subsidiaries:
consolidated and consolidating balance sheets as at the end of such fiscal
year and the consolidated and consolidating statements of income, cash
flows and changes in stockholders' equity for such fiscal year, setting
forth in each case comparisons to the budget for such fiscal year and the
figures for the next preceding fiscal year and accompanied by the audit
report (which audit report need not cover consolidating statements or
comparisons to budget ) of the Company's independent certified public
accountants.
5.2. Quarterly Reports. The Company will furnish to each Management
Stockholder, for as long as such Management Stockholder owns any of the
Management Shares, as soon as available, and in any event within forty
five (45) days after the end of each fiscal quarter in each fiscal year
the unaudited consolidated and consolidating balance sheets of the Company
and its subsidiaries as at the end of such period and the consolidated and
consolidating statements of income, cash flows and changes in
stockholders' equity for such period and the portion of the fiscal year
then ended, setting forth in each case comparisons to the budget of such
period and to the corresponding period of the previous fiscal year, all in
reasonable detail.
6. DIVIDENDS; BORROWINGS. With respect to any fiscal quarter when the
Management Stockholders own Management Shares (a "Dividend Period"), the
Company's Board of Directors shall determine whether net cash flow at the
Company exceeds the expected needs of the Company's business during the
next Dividend Period. If it does, the Company's Board of Directors shall
declare a dividend to the holders of Shares, and shall pay to each such
holder a dividend amount for each Share calculated by dividing the total
amount of the dividend declared by the total number of Shares. Dividends
shall be paid out of funds legally available therefor. It is understood
and agreed that the term "dividends" as used in this Section shall not
include any payments under the Tax-Sharing Agreement dated December 23,
1992 among Oak, Connector and the Company, expenses of shareholders and
directors and loan repayments. Oak shall be permitted to borrow money
from the Company, provided, however, that such borrowings shall not be
permitted if in the determination of the Company's Board of Directors they
would impair the ability of the Company to pay dividends pursuant to this
Section 6.
7. REMEDIES. Each holder of Shares shall have all remedies available at
law, in equity or otherwise in the event of any breach or violation of
this Agreement or any default hereunder. The parties acknowledge and
agree that in the event of any breach of this Agreement, in addition to
any other remedies which may be available, each of the parties hereto
shall be entitled to specific performance of the obligations of the other
parties hereto and, in addition, to such appropriate injunctive relief as
may be granted by a court of competent jurisdiction.
8. LEGENDS. Each certificate representing Shares shall have the
following legend endorsed conspicuously thereupon:
The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be sold, assigned, pledged or otherwise transferred in the absence of
an effective registration statement under said Act covering the
transfer or an opinion of counsel satisfactory to the issuer that
registration under said Act is not required.
The voting of the shares of stock represented by this certificate, and
the sale, encumbrance or other disposition thereof, are subject to the
provisions of an Amended and Restated Management Stockholders Agreement
to which the issuer and certain of its stockholders are party, a copy of
which may be inspected at the principal office of the issuer or obtained
from the issuer without charge.
Any person who acquires Shares that are not subject to all or part of
the terms of this Agreement shall have the right to have such legend (or
the applicable portion thereof) removed from certificates representing
such Shares.
9. AMENDMENT, TERMINATIONS, ETC.
9.1. Oral Modifications. This Agreement may not be orally amended,
modified, extended or terminated, nor shall any oral waiver of any of its
terms be effective.
9.2. Written Modifications. This Agreement may be amended, modified,
extended or terminated, and the provisions hereof may be waived, by an
agreement signed in writing by the party or parties against whom the same
may be asserted.
9.3. Termination. Notwithstanding any provision of this Agreement to
the contrary, all obligations hereunder of the Company or of Connector to
any Management Stockholder (and this Agreement, as with respect to such
Management Stockholder), shall terminate as of and from the date of
payment in full of all Management Shares held by such Management
Stockholder.
9.4. Stockholders Agreement. Upon the execution of this Agreement, the
Stockholders Agreement shall be terminated in its entirety, and of no
further force and effect.
10. MISCELLANEOUS.
10.1. Authority; Effect. Each party hereto represents and warrants to
and agrees with each other party that the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been duly authorized on behalf of such party and do not violate any
agreement or other instrument applicable to such party or by which its
assets are bound. This Agreement does not, and shall not be construed to,
give rise to the creation of a partnership among any of the parties
hereto, or to constitute any of such parties members of a joint venture or
other association.
10.2. Notices. Notices and other communications provided for in this
Agreement shall be in writing and shall be effective (i) when one day
shall have elapsed (exclusive of Saturdays, Sundays and banking holidays
in the City of Boston) from their deposit for overnight delivery with
Federal Express or other bonded courier, addressed to the party or parties
sought to be charged with notice of the same at the respective addresses
set forth or referred to below, subject to written notice of change of
address given by any party to each other party, or (ii) if earlier, upon
receipt.
If to Connector, to it at:
c/o Oak Industries Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
with a copy to:
c/o Oak Industries Inc.
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Attention: General Counsel
If to the Company, to it at:
c/o Oak Industries Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
with a copy to:
c/o Oak Industries Inc.
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Attention: General Counsel
If to a Management Stockholder, to him at the address set forth by such
Management Stockholder's signature hereto,
with a copy to:
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Attention: P. ▇▇▇▇▇▇ ▇▇▇▇, Esq.
10.3. Binding Effect, etc. This Agreement constitutes the entire
agreement of the parties with respect to its subject matter, supersedes
all prior or contemporaneous oral or written agreements or discussions
with respect to such subject matter, and shall be binding upon and inure
to the benefit of the parties hereto and their respective Stockholders
Estate, successors and assigns, as the case may be.
10.4. Gender and Number. With respect to words used in this Agreement,
the singular form shall include the plural form, the neuter gender shall
include the feminine or masculine gender, and vice versa, as the context
requires.
10.5. Descriptive Headings. The descriptive headings of this Agreement
are for convenience of reference only, are not to be considered a part
hereof and shall not be construed to define or limit any of the terms or
provisions hereof.
10.6. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one instrument.
10.7. Severability. If in any judicial proceedings a court shall
refuse to enforce any provision of this Agreement, then such unenforceable
provision shall be deemed eliminated from this Agreement for the purpose
of such proceedings to the extent necessary to permit the remaining
provisions to be enforced. To the full extent, however, that the
provisions of any applicable law may be waived, they are hereby waived to
the end that this Agreement be deemed to be valid and binding agreement
enforceable in accordance with its terms, and in the event that any
provision hereof shall be found to be invalid or unenforceable, such
provision shall be construed by limiting it so as to be valid and
enforceable to the maximum extent consistent with and possible under
applicable law.
10.8. Governing Law. This Agreement shall be construed under and its
validity determined by the domestic substantive laws of The Commonwealth
of Massachusetts without giving effect to any choice or conflict of laws
provision or rule that would cause the application of the domestic
substantive laws of any other jurisdiction.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
under seal as of the day and year first above written.
▇▇▇▇▇▇▇ ENGINEERING CO., INC. CONNECTOR HOLDING COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Vice President Vice President
Address:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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