<PAGE> 1
Page 1 of 18 pages
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO RULE 13d-2(a)
(AMENDMENT NO. 3)
CMI Corporation
----------------
(Name of Issuer)
Voting Class A Common Stock, par value $0.10 per share
------------------------------------------------------
(Title of Class of Securities)
125761 30 4
--------------
(CUSIP Number)
Philip H. Werner, Esq.
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
Tel. No.: 212-309-6000
-------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 6, 1998
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
statement because of Rule 13d-1(e), 13d-1(f), or 13d-1(g), check the following
box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
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<TABLE>
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CUSIP No. 125761 30 4 13D Page 2 of 17 pages
- ------------------------------------------------ ------------------------------------------
<S> <C>
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Recovery Equity Investors, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF 7,116,667 shares of Voting Class A Common Stock
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
8 SHARED VOTING POWER
2,691,203 shares of Voting Class A Common Stock
9 SOLE DISPOSITIVE POWER
7,116,667 shares of Voting Class A Common Stock
10 SHARED DISPOSITIVE POWER
None(1)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,116,667 shares of Voting Class A Common Stock(1)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* /X/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
33%
14 TYPE OF REPORTING PERSON*
PN
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- --------
(1) Does not include 2,691,203 shares of Voting Class A Common Stock, with
respect to which shares the Reporting Person may (i) vote or direct the
vote with respect to certain matters or (ii) elect to acquire pursuant to a
right of first refusal or participate in the sale thereof pursuant to
tag-along rights, in each case under the Shareholders Agreement.
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Page 3 of 18 pages
<TABLE>
<CAPTION>
CUSIP No. 125761 30 4 13D Page 3 of 17 pages
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<S> <C>
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Recovery Equity Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF 7,116,667 shares of Voting Class A Common Stock
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
8 SHARED VOTING POWER
2,691,203 shares of Voting Class A Common Stock
9 SOLE DISPOSITIVE POWER
7,116,667 shares of Voting Class A Common Stock
10 SHARED DISPOSITIVE POWER
None(1)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,116,667 shares of Voting Class A Common Stock(1)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* /X/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
33%
14 TYPE OF REPORTING PERSON*
PN
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- ---------
(1) Does not include 2,691,203 shares of Voting Class A Common Stock, with
respect to which shares the Reporting Person may (i) vote or direct the
vote with respect to certain matters or (ii) elect to acquire pursuant to a
right of first refusal or participate in the sale thereof pursuant to
tag-along rights, in each case under the Shareholders Agreement.
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Page 4 of 18 pages
<TABLE>
<CAPTION>
CUSIP No. 125761 30 4 13D Page 4 of 17 pages
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<S> <C>
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Joseph James Finn-Egan
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States Citizen
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
8 SHARED VOTING POWER
9,807,870 shares of Voting Class A Common Stock
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
7,116,667 shares of Voting Class A Common Stock(1)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,116,667 shares of Voting Class A Common Stock(1)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* /X/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
33%
14 TYPE OF REPORTING PERSON*
IN
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT
- ---------
(1) Does not include 2,691,203 shares of Voting Class A Common Stock, with
respect to which shares the Reporting Person may (i) vote or direct the
vote with respect to certain matters or (ii) elect to acquire pursuant to a
right of first refusal or participate in the sale thereof pursuant to
tag-along rights, in each case under the Shareholders Agreement.
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Page 5 of 18 pages
<TABLE>
<CAPTION>
CUSIP No. 125761 30 4 13D Page 5 of 17 pages
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<S> <C>
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Jeffrey Alan Lipkin
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States Citizen
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
8 SHARED VOTING POWER
9,807,870 shares of Voting Class A Common Stock
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
7,116,667 shares of Voting Class A Common Stock(1)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,116,667 shares of Voting Class A Common Stock(1)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* /X/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
33%
14 TYPE OF REPORTING PERSON*
IN
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- ---------
(1) Does not include 2,691,203 shares of Voting Class A Common Stock, with
respect to which shares the Reporting Person may (i) vote or direct the
vote with respect to certain matters or (ii) elect to acquire pursuant to a
right of first refusal or participate in the sale thereof pursuant to
tag-along rights, in each case under the Shareholders Agreement.
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Page 6 of 18 pages
The purpose of this Amendment No. 3 (the "Amendment") to the
previously filed Statement on Schedule 13D, as amended, is to amend Item 4 to
report the amendment of two agreements between Recovery Equity Investors, L.P.
and CMI Corporation, an Oklahoma corporation ("CMI").
ITEM 1. SECURITY AND ISSUER.
This Statement on Schedule 13D relates to the Voting Class A
Common Stock, par value $.10 per share ("Voting Class A Common Stock"), of CMI.
The principal executive offices of CMI are located at I-40 and Morgan Road,
Oklahoma City, Oklahoma, 73101.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is filed by Recovery Equity Investors, L.P., a
Delaware limited partnership ("REI"); Recovery Equity Partners, L.P., a Delaware
limited partnership and the general partner of REI ("REP"); Joseph J. Finn-Egan,
a general partner of REP; and Jeffrey A. Lipkin, a general partner of REP.
There are no other general partners of REP.
REI is a private venture capital partnership. The address of
REI's principal business and of its principal office is 901 Mariner's Island
Boulevard, Suite 465, San Mateo, California 94404-1592.
REP is the sole general partner of REI and REP's sole function
is to act as the general partner of REI. The address of REP's principal business
and of its principal office is 901 Mariner's Island Boulevard, Suite 465, San
Mateo, California 94404-1592.
Joseph J. Finn-Egan's principal occupation is his position as
a general partner of REP and a general partner of Recovery Equity Partners II,
L.P., a Delaware limited partnership ("REP-II"). The address of Mr. Finn-Egan's
principal business and of his principal office is 901 Mariner's Island
Boulevard, Suite 465, San Mateo, California 94404-1592. Mr. Finn-Egan is a
United States citizen.
Jeffrey A. Lipkin's principal occupation is his position as a
general partner of REP and a general partner of REP-II. The address of Mr.
Lipkin's principal business and of his principal office is 901 Mariner's Island
Boulevard, Suite 465, San Mateo, California 94404-1592. Mr. Lipkin is a United
States citizen.
Neither REI, REP, Joseph J. Finn-Egan nor Jeffrey A. Lipkin
has during the last five years been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, Federal or state securities laws or finding any violation
with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On August 30, 1991, REI purchased 6,666,667 shares of Common
Stock, par value $.10 per share, of CMI for an aggregate purchase price of
$5,000,000. The funds used to purchase these shares were obtained from the
working capital of REI.
On March 15, 1992, REI exchanged the shares of Common Stock of
CMI then owned by it for an equal number of newly-authorized Voting Class A
Common Stock. Except for the shares of the CMI's Common Stock exchanged, no
consideration was given by REI in connection with its acquisition of the shares
of Voting Class A Common Stock.
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Page 7 of 18 pages
On January 15, 1993, CMI issued REI a warrant certificate (the
"Warrant Certificate") which entitled REI to purchase up to 450,000 shares of
Voting Class A Common Stock of CMI in accordance with and subject to the terms
of the Warrant Certificate. The consideration paid by REI to CMI was $37,500 in
cash. The source of funds for such purchase came from working capital of REI
available for investment.
On January 6, 1997, REI elected to exercise the Warrant
Certificate to purchase 450,000 shares of Voting Class A Common Stock for an
aggregate exercise price of $1,687,500. The source of funds for such purchase
came from working capital of REI available for investment.
ITEM 4. PURPOSES OF TRANSACTION.
On or about August 26, 1991, CMI entered into an Investment
Agreement with REI (the "Investment Agreement"), pursuant to which CMI agreed to
sell 6,666,667 shares of its Common Stock (the "New Shares") to REI at a
purchase price of $0.75 per share, or $5,000,000 in the aggregate. On August 30,
1991, CMI issued the New Shares to REI in accordance with the terms of the
Investment Agreement.
The Investment Agreement contains various covenants
restricting or prohibiting CMI from taking certain actions without the prior
written consent of REI including, without limitation, (i) the authorization of
issuance of any voting securities ("Equity Securities") or securities
exchangeable for or convertible into voting securities ("Equity Security
Equivalents") at a per share price lower than the per share purchase price of
the New Shares, (ii) the approval of any merger, consolidation or other
combination of CMI or any of its subsidiaries or the sale, lease or exchange of
a substantial portion of the respective businesses, assets or properties of CMI
or any of its subsidiaries and (iii) the approval of any change to CMI's Amended
Articles of Incorporation or By-Laws. These restrictive covenants shall remain
in effect until the earlier of the date on which (a) REI and its affiliates and
associates cease to beneficially own an aggregate of at least 1,700,000 shares
of Voting Class A Common Stock (subject to certain adjustments) or (b) CMI meets
certain pre-established earnings levels for any of the three consecutive years
of the four years ended 1992, 1993, 1994 and 1995. At all times that CMI is
prohibited from taking any action as set forth therein, without the prior
written consent of REI, CMI may not change its fiscal year or method of
accounting (other than changes required by generally accepted accounting
principles). The Investment Agreement also prohibited CMI from issuing any
Equity Securities or Equity Security Equivalents until such time as the
shareholders of CMI approved an amendment to the Amended Articles of
Incorporation of CMI as described later under this Item 4.
In connection with its entering into the Investment Agreement,
CMI amended its Rights Agreement, dated as of February 3, 1997, between CMI and
Liberty National Bank and Trust Company of Oklahoma City (as so amended, the
"Rights Agreement"), to provide that REI, its affiliates and associates would
not be deemed "acquiring persons" thereunder.
The Investment Agreement further provides that so long as REI
and its affiliates and associates beneficially own an aggregate of at least
1,700,000 shares of Voting Class A Common Stock (subject to certain
adjustments), CMI will not, without the prior written consent of REI, authorize,
approve, recommend or adopt any change to the Rights Agreement or take any other
action or make any declaration with respect thereto (or authorize, approve,
recommend or adopt any other rights agreement or similar arrangement). In August
of 1991, CMI amended and restated its By-Laws (the "Amended and Restated
By-Laws"). The Amended and Restated By-Laws, among other things, (i) prohibit
CMI from amending or taking any other actions with respect to any then existing
rights agreement without the prior consent of REI, (ii) provide that the
Oklahoma Control Shares Acquisition Act (Sections 1145 through 1155 of Title 18
of the Oklahoma Statutes) shall not apply to the voting rights of the existing
or future holders of shares of the capital stock of CMI and (iii) deleted the
business combination provisions of the prior By-Laws of CMI.
Pursuant to the terms of the Investment Agreement, as soon as
practicable after August 30, 1991, CMI was required to convene and hold an
annual or special meeting of its shareholders for the
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Page 8 of 18 pages
purposes of (i) obtaining the requisite shareholder approval in connection with
the issuance of the New Shares and any other Equity Securities or Equity
Security Equivalents issuable pursuant to the Investment Agreement or
Shareholders Agreement (defined below) and (ii) amending CMI's Amended Articles
of Incorporation to, among other things, (a) authorize the issuance of
30,000,000 shares of Voting Class A Common Stock and (b) effect a one-for-two
thousand reverse split of CMI's Common Stock (the "Reverse Split").
Effective as of the close of business on February 14, 1992,
CMI amended and restated its Amended Certificate of Incorporation to, among
other things, (i) authorize the issuance of up to 45,000,000 shares of Voting
Class A Common Stock, which is identical in all respects to the Common Stock,
except for certain restrictions on its transferability, and (ii) effect the
Reverse Split. CMI's Proxy Statement dated January 6, 1992 (the "Proxy
Statement") indicated that the transferability restrictions applicable to the
Voting Class A Common Stock would generally prohibit any person from acquiring
any Voting Class A Common Stock if such person was, or would thereby become, a
holder of 4.75% or more of CMI's issued and outstanding capital stock, unless
CMI's Board of Directors consents to the acquisition and, if requested by the
Board of Directors, after receiving an opinion of counsel that the transfer
would not constitute an "ownership change" within the meaning of Section 382 of
the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
thereto that would result in the elimination or limitation of CMI's utilization
of its Federal income tax net operating loss carryforwards. According to the
Proxy Statement, these restrictions on transfer will remain in effect until the
earlier of January 1, 2006, the date as of which CMI no longer has any
unutilized net operating loss carryforwards, or the date after which Section 382
of the Code is repealed or so substantially modified such that the restrictions
on transfer are no longer necessary to protect the net operating loss
carryforwards.
The Proxy Statement also indicated that these amendments were
adopted to prevent an "ownership change" as defined in Section 382 of the Code
in order to protect certain federal income tax net operating loss carryforwards
currently available to CMI, although these amendments may also have the effect
of discouraging transactions that would involve an actual or potential change of
control of CMI.
Pursuant to actions authorized at a February 7, 1992 Special
Meeting of Shareholders of CMI, effective as of the close of business on
February 14, 1992, CMI effected the Reverse Split and declared a stock dividend
(the "Stock Dividend") of 1,999 shares of the newly-authorized class of Voting
Class A Common Stock, for each whole share of Common Stock outstanding following
the Reverse Split. Fractional shares resulting from the Reverse Split were paid
in shares of Voting Class A Common Stock. The class of Voting Class A Common
Stock was registered under Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), effective February 14, 1992.
Following the Reverse Split and Stock Dividend described
above, on February 26, 1992, CMI commenced an exchange offer offering to
exchange one share of Voting Class A Common Stock for each share of Common Stock
outstanding following the Reverse Split (the "Exchange Offer"). REI exchanged
its remaining shares of Common Stock for Voting Class A Common Stock on March
15, 1992.
As a result of the Reverse Split and Stock Dividend and upon
the completion of the Exchange Offer, REI beneficially owned the same number of
shares of Voting Class A Common Stock which it previously owned of Common Stock.
Except for the shares of Common Stock exchanged in the Exchange Offer, no
consideration was given by REI in connection with its acquisition of the shares
of Voting Class A Common Stock.
In connection with the Reverse Split, Stock Dividend and
Exchange Offer, the Class of Voting Class A Common Stock was accepted for
listing by the American Stock Exchange ("AMEX") in substitution for the class of
Common Stock, and that, as a result of these actions, the class of Common Stock
was delisted from AMEX. The Voting Class A Common Stock was subsequently
delisted from AMEX and listed on the New York Stock Exchange.
<PAGE> 9
Page 9 of 18 pages
The Investment Agreement also provides that, so long as REI,
its affiliates and associates beneficially own at least 1,000,000 shares of
Voting Class A Common Stock (subject to certain adjustments), in the event of a
sale or issuance to a third party of Equity Securities or Equity Security
Equivalents, REI shall have the right to purchase on the same terms and
conditions as such newly issued Equity Securities or Equity Security Equivalents
that number of such Equity Securities or Equity Security Equivalents that would
result in REI's beneficially owning the same percentage of the total voting
power of all Equity Securities and Equity Security Equivalents then outstanding
as the percentage beneficially owned by REI of the total voting power of Equity
Securities and Equity Security Equivalents outstanding immediately prior to such
issuance or sale (assuming for purpose of such calculation that all such Equity
Security Equivalents had been converted into, or exercised or exchanged for,
Equity Securities).
The Investment Agreement also provides that, notwithstanding
anything to the contrary therein, CMI shall not, at any time at which REI or any
of its affiliates or associates beneficially own at least five percent (5%) of
the total voting power of all then outstanding Equity Securities or Equity
Security Equivalents of CMI, and CMI and its subsidiaries have aggregate net
operating losses and net capital loss carryovers of at least $3 million, engage
in any transaction of any kind with respect to the capital stock of CMI if such
transaction, considered together with any prior or contemporaneous transactions
with respect to the capital stock of CMI or other events or circumstances, would
or could result in an "ownership change" within the meaning of Section 382 of
the Internal Revenue Code of 1986, as amended.
Pursuant to the terms of the Investment Agreement, REI was
granted the right to designate three persons for election to CMI's Board of
Directors. Such number would be reduced to two persons, if either REI and its
affiliates and associates ceased to own beneficially an aggregate of at least
1,700,000 shares of Voting Class A Common Stock or CMI's net book value (as
defined) reached at least $21 million. Such number would be reduced to one if
REI and its affiliates and associates ceased to own beneficially an aggregate of
at least 1,000,000 shares of Voting Class A Common Stock. The right would
terminate if REI and its affiliates and associates ceased to own beneficially
any shares of Voting Class A Common Stock. In addition, so long as REI was
entitled to designate persons for election to CMI's Board of Directors, the
Board would have no more than six members other than as a result of an increase
as provided pursuant to the terms of the Series B Preferred Stock of CMI. Mr.
William Swisher was also granted the right, under certain circumstances, to
designate himself for election to CMI's Board of Directors.
On November 6, 1998, CMI and REI amended the Investment
Agreement pursuant to Amendment No. 1 to the Investment Agreement ("Amendment
No. 1") to provide, among other things, that REI is now entitled to designate
for election to CMI's Board of Directors one-half (1/2) of the total number of
directors, as such number of directors shall be fixed from time to time by the
Board then constituting the entire Board of Directors of CMI; provided, however,
that if REI, its affiliates, limited partners and associates cease to
beneficially own an aggregate of at least 1,700,000 shares of Voting Class A
Common Stock, REI will be entitled to designate for election to CMI's Board of
Directors only one-third (1/3) of the total number of directors then
constituting the entire Board; and, provided, further, that if REI, its
affiliates, limited partners and associates cease to beneficially own an
aggregate of at least 1,000,000 shares of Voting Class A Common Stock, REI
thereafter will be entitled to designate only one (1) person for election to
CMI's Board of Directors. REI's designation rights will terminate at such time
as REI, its affiliates, limited partners and associates cease to beneficially
own any shares of Voting Class A Common Stock. Mr. Swisher is entitled to
designate himself for election to the CMI's Board of Directors so long as he
continues to beneficially own (with his wife, children and grandchildren) at
least 1,500,000 shares of Voting Class A Common Stock.
The New Shares were not registered under the Securities Act of
1933 and, as a result, may be sold by REI only upon registration thereof or
pursuant to an applicable exemption therefrom. Pursuant to the terms of the
Registration Rights Agreement executed between REI and CMI contemporaneously
with the Investment Agreement (the "Registration Rights Agreement"), REI was
granted certain registration rights with
<PAGE> 10
Page 10 of 18 pages
respect to the New Shares and any other Equity Securities or Equity Security
Equivalents of CMI acquired by REI pursuant to the provisions of the Investment
Agreement or the Shareholders Agreement.
Contemporaneous with the execution of the Investment
Agreement, CMI, REI and Mr. Swisher and certain members of Mr. Swisher's family
(collectively, the "Swishers") entered into a certain Shareholders Agreement
(the "Shareholders Agreement"). Pursuant to the terms of the Shareholders
Agreement, the Swishers are required to vote all shares of Voting Class A Common
Stock owned by them in favor of all persons designated by REI for election to
CMI's Board of Directors pursuant to the terms of the Investment Agreement. In
connection therewith, the Swishers each also granted to REI an irrevocable proxy
coupled with an interest to vote all shares of Voting Class A Common Stock owned
by them for the election to CMI's Board of Directors of all persons designated
by REI pursuant to the terms of the Investment Agreement.
With certain exceptions, the Swishers have also granted to REI
(i) a right of first refusal to purchase any Voting Class A Common Stock, Equity
Securities (as defined in the Shareholders Agreement) or Equity Security
Equivalents (as defined in the Shareholders Agreement) held by the Swishers, and
(ii) tag-along rights in the event of a sale of any Voting Class A Common
Stock, Equity Securities or Equity Security Equivalents held by the Swishers.
Between August 19, 1991 and the date hereof, several
additional members of Mr. Swisher's family have agreed to be bound by the terms
of the Shareholders Agreement, thereby agreeing to vote all shares of Voting
Class A Common Stock acquired by them after December 16, 1991 in favor of all
persons designated by REI for election to CMI's Board of Directors pursuant to
the terms of the Investment Agreement and granting to REI tag-along rights, an
irrevocable proxy and a right of first refusal similar to those described above
with respect to all shares of Voting Class A Common Stock acquired by them after
December 16, 1991. On November 6, 1998, such parties executed Amendment No. 2 to
Shareholders Agreement to evidence the foregoing.
On January 15, 1993, REI and CMI entered into (i) a Loan
Agreement, dated January 15, 1993 (the "Loan Agreement") pursuant to which REI
loaned CMI $1,477,500 in exchange for a $1,477,500 Promissory Note of CMI , due
on July 15, 1995, with unpaid principal bearing interest at a rate of 9% per
annum, which has been repaid; (ii) a Warrant Purchase Agreement, dated January
15, 1993, pursuant to which REI purchased the Warrant Certificate from CMI for
$37,500, entitling REI to purchase up to 450,000 shares of Voting Class A Common
Stock at an exercise price of $3.75 per share; and (iii) Amendment No. 1 to the
Registration Rights Agreement, dated August 19, 1991, under which any shares of
Voting Class A Common Stock issued pursuant to any exercise of the Warrant
Certificate by REI (or any permitted assignees) would be entitled to the
benefits of the Registration Rights Agreement between REI and CMI, dated August
19, 1991.
On January 6, 1997, REI elected to exercise the Warrant
Certificate as described in Item 3 above.
Except as described in this Item 4, neither REI, REP, Joseph
Finn-Egan nor Jeffrey A. Lipkin has any current plans or proposals which relate
to or would result in:
(a) the acquisition by any person of additional securities of
CMI, or the disposition of securities of CMI;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving CMI or any of its
subsidiaries;
(c) a sale or transfer of a material amount of assets of CMI
or any of its subsidiaries;
<PAGE> 11
Page 11 of 18 pages
(d) any change in the present board of directors or management
of CMI, including any plans or proposals to change the number
or term of directors or to fill any existing vacancies on the
board;
(e) any material change in the present capitalization or
dividend policy of CMI;
(f) any other material change in CMI's business or corporate
structure;
(g) changes in CMI's charter, by-laws or instruments
corresponding thereto or other actions which may impede the
acquisition of control of CMI by any person;
(h) causing a class of securities of CMI to be delisted from a
national securities exchange or to cease to be authorized to
be quoted in an inter-dealer quotation system or a registered
national securities association;
(i) a class of equity securities of CMI becoming eligible for
termination of registration pursuant to Section 12(g)(4) of
the Exchange Act; or
(j) any action similar to any of those enumerated above.
Copies of the Investment Agreement, Amendment No. 1 to Rights
Agreement, the Amended and Restated By-Laws, the Amendment, the Registration
Rights Agreement, the Shareholders Agreement, Amendment No. 1 to Shareholders
Agreement, the Warrant Certificate, the Warrant Purchase Agreement, the Loan
Agreement and Amendment No. 1 to the Registration Rights Agreement, were
attached as Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11, respectively, to Form
SE filed by REI with the Securities and Exchange Commission contemporaneously
with this filing and copies of Amendment No. 1 to Investment Agreement and
Amendment No. 2 to Shareholders Agreement are attached as Exhibits 1 and 2
hereto, each such document is incorporated herein and the foregoing descriptions
of each such document are subject to and qualified in their entirety by
reference to each such document.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The aggregate number of shares of Voting Class A Common
Stock of CMI beneficially owned by REI as of October 31, 1998 is 7,116,667
shares, or approximately 33% of the class of securities identified in Item 1, in
each case, not including the 2,691,203 shares of Voting Class A Common Stock
beneficially owned by the Swishers.
(b) The responses of REI, REP, Joseph J. Finn-Egan and Jeffrey
A. Lipkin to Items (7) through (11) of the portions of the cover page of this
Schedule 13D which relate to shares of Voting Class A Common Stock beneficially
owned are herein incorporated by reference.
(c) Not Applicable.
(d) None of REI, REP, Joseph J. Finn-Egan or Jeffrey A. Lipkin
has, and to the knowledge of each such person, the Swishers do have, the right
to receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of the 2,691,203 shares of Voting Class A Common Stock of CMI
which REI, REP, Joseph J. Finn-Egan and Jeffrey A. Lipkin may vote or direct the
vote with respect to certain matters.
(e) Not Applicable.
<PAGE> 12
Page 12 of 18 pages
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE
ISSUER.
The responses to Item 4 are hereby incorporated herein by
reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The following are filed as Exhibits to this Amendment:
Exhibit 1: Amendment No. 1 to Investment Agreement made
and entered into effective as of the 6th day
of November, 1998 between REI and CMI.
Exhibit 2: Amendment No. 2 to Shareholders Agreement
made and entered into effective as of the
6th day of November, 1998 among REI, CMI,
Mr. Swisher and certain other parties.
Exhibit 3: Investment Agreement, dated as of August 19,
1991, between CMI and REI, excluding all
Exhibits thereto (Incorporated by reference
to Exhibit 1 to Form SE filed by REI on
November 25, 1998).
Exhibit 4: Amendment No. 1, dated as of August 16,
1991, to Rights Agreement, dated as of
February 3, 1987, between CMI and the Rights
Agent (Incorporated by reference to Exhibit
2 to Form SE filed by REI on November 25,
1998).
Exhibit 5: Amended and Restated By-Laws of CMI, dated
as of August 22, 1991 (Incorporated by
reference to Exhibit 3 to Form SE filed by
REI on November 25, 1998).
Exhibit 6: Amendment to the Amended Articles of
Incorporation of CMI (Incorporated by
reference to Exhibit 4 to Form SE filed by
REI on November 25, 1998).
Exhibit 7: Registration Rights Agreement, dated as of
August 19, 1991, between REI and CMI
(Incorporated by reference to Exhibit 5 to
Form SE filed by REI on November 25, 1998).
Exhibit 8: Shareholders Agreement, dated as of August
19, 1991, by and among CMI, REI, George
William Swisher, Jr. and the Shareholders
listed on the signature pages thereto
(Incorporated by reference to Exhibit 6 to
Form SE filed by REI on November 25, 1998).
Exhibit 9: Amendment No. 1 to Shareholders Agreement,
dated as of August 19, 1991, by and among
CMI, REI, George William Swisher, Jr. and
the Shareholders listed on the signature
pages thereto (Incorporated by reference to
Exhibit 7 to Form SE filed by REI on
November 25, 1998).
Exhibit 10: Warrant Certificate, dated January 15, 1993,
between CMI and REI (Incorporated by
reference to Exhibit 8 to Form SE filed by
REI on November 25, 1998).
Exhibit 11: Warrant Purchase Agreement, dated January
15, 1993, between REI and CMI (Incorporated
by reference to Exhibit 9 to Form SE filed
by REI on November 25, 1998).
<PAGE> 13
Page 13 of 18 pages
Exhibit 12: Loan Agreement, dated January 15, 1993,
between REI and CMI (Incorporated by
reference to Exhibit 10 to Form SE filed by
REI on November 25, 1998).
Exhibit 13: Amendment No. 1 to Registration Rights
Agreement dated as of August 19, 1991, dated
January 15, 1993 between REI and CMI
(Incorporated by reference to Exhibit 11 to
Form SE filed by REI on November 25, 1998).
<PAGE> 14
Page 14 of 18 pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete, and correct and agrees that this statement may be
filed jointly with Recovery Equity Partners, L.P., Joseph J. Finn-Egan and
Jeffrey A. Lipkin.
Dated: November 24, 1998
RECOVERY EQUITY INVESTORS, L.P.
By: RECOVERY EQUITY PARTNERS, L.P.,
its General Partner
By: /s/ Joseph J. Finn-Egan
---------------------------
Name: Joseph J. Finn-Egan
Title: General Partner
By: /s/ Jeffrey A. Lipkin
---------------------------
Name: Jeffrey A. Lipkin
Title: General Partner
<PAGE> 15
Page 15 of 18 pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete, and correct and agrees that this statement may be
filed jointly with Recovery Equity Investors, L.P., Joseph J. Finn-Egan and
Jeffrey A. Lipkin.
Dated: November 24, 1998
RECOVERY EQUITY PARTNERS, L.P.
By: /s/ Joseph J. Finn-Egan
-------------------------------
Name: Joseph J. Finn-Egan
Title: General Partner
By: /s/ Jeffrey A. Lipkin
-------------------------------
Name: Jeffrey A. Lipkin
Title: General Partner
<PAGE> 16
Page 16 of 18 pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete, and correct and agrees that this statement may be
filed jointly with Recovery Equity Investors, L.P., Recovery Equity Partners,
L.P. and Jeffrey A. Lipkin.
Dated: November 24, 1998
By: /s/ Joseph J. Finn-Egan
------------------------------
Name: Joseph J. Finn-Egan
<PAGE> 17
Page 17 of 18 pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete, and correct and agrees that this statement may be
filed jointly with Recovery Equity Investors, L.P., Recovery Equity Partners,
L.P. and Joseph J. Finn-Egan.
Dated: November 24, 1998
By: /s/ Jeffrey A. Lipkin
------------------------------
Name: Jeffrey A. Lipkin
<PAGE> 18
Page 18 of 18 pages
EXHIBIT INDEX
Exhibit No. Description
1 Amendment No. 1 to Investment Agreement between CMI Corporation,
an Oklahoma corporation ("CMI"), and Recovery Equity Investors,
L.P., a Delaware limited partnership ("REI").
2 Amendment No. 2 to Shareholders Agreement among Mr. Swisher, CMI,
REI and certain other parties.
<PAGE> 1
AMENDMENT NO. 1 TO INVESTMENT AGREEMENT
This Amendment No. 1 to Investment Agreement (the "Amendment No. 1") is
made and entered into effective as of the 6th day of November, 1998, between
Recovery Equity Investors, L.P., a Delaware limited partnership (the
"Investor"), and CMI Corporation, an Oklahoma corporation (the "Company").
WHEREAS, effective as of August 19, 1991, the Investor and the Company
entered into that certain Investment Agreement (the "Investment Agreement")
pursuant to which, among other things, the Investor purchased from the Company
6,666,667 shares of the Company's Common Stock;
WHEREAS, the parties desire to amend the Investment Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, the parties agree as follows:
1. Capitalized terms used herein and not otherwise defined herein shall
have their respective meanings as set forth in the Investment Agreement.
2. Section 4.1 of the Investment Agreement is hereby amended to read in
its entirety as follows:
"SECTION 4.1. Board Representation. From and after November 6, 1998,
the Investor shall be entitled to designate for election to the
Company's Board of Directors one-half (1/2) of the total number of
directors then constituting the entire Board, as such number of
directors shall be fixed from time to time pursuant to resolution
adopted by the Company's Board of Directors; provided, however, that
if, after the date hereof, the Investor, its affiliates, limited
partners and associates cease to beneficially own an aggregate of at
least 1,700,000 shares of Voting Class A Common Stock, par value $0.10
per share ("Class A Common Stock"), of the Company, the Investor
thereafter shall be entitled to designate for election to the Company's
Board of Directors only one-third (1/3) of the total number of
directors then constituting the entire Board; and, provided, further,
that if the Investor, its affiliates, limited partners and associates
cease to beneficially own an aggregate of at least 1,000,000 shares of
Class A Common Stock, the Investor thereafter shall be entitled to
designate only one (1) person for election to the Company's Board of
Directors (it being understood that such entitlement to designate one
director shall terminate at such time as the Investor, its affiliates,
limited partners and associates cease to beneficially own any shares of
Class A Common Stock). Any person designated by the Investor for
election to the Company's Board of Directors in
<PAGE> 2
accordance with the provisions of this Section 4.1 shall be included in
the slate of nominees recommended by such Board of Directors to the
Company's shareholders for election as directors at each applicable
annual meeting of the shareholders of the Company, and the Company
shall use its best efforts to cause the election of each such person
designated by the Investor. In the event that any designee of the
Investor for election to the Company's Board of Directors pursuant to
the foregoing provisions shall cease to serve as a director for any
reason, the vacancy resulting therefrom shall be filled as soon as
practicable with a person designated by the Investor. Provided that he
continues to beneficially own (with his wife, children and
grandchildren) at least 1,500,000 shares of Class A Common Stock, Bill
Swisher shall be entitled to designate himself for election to the
Company's Board of Directors. If so designated, Mr. Swisher shall be
included in the slate of nominees recommended by the Board of Directors
to the Company's shareholders for election as directors at each
applicable annual meeting of the shareholders of the Company, and the
Company shall use its best efforts to cause the election of Mr.
Swisher. Mr. Swisher is specifically made a third party beneficiary of
the two sentences immediately preceding this sentence. In the event
that (i) at any time the designee(s) of the Investor are not elected to
the Company's Board of Directors as provided herein, or (ii) the
Department of Labor through formal or informal rules, regulations, or
interpretations provides, or it is otherwise provided through
governmental or court action, that such Board representation does not
constitute the exercise of management rights of the kind necessary to
allow the Investor to continue to qualify as a venture capital
operating company under Department of Labor Regulation 2510.3-101
promulgated under ERISA, then the Investor and the Company shall use
their best efforts, upon the advice of counsel to the Investor, to
ensure that the Investor has and is permitted to exercise the minimum
amount of such management rights to continue to qualify as a venture
capital operating company; provided, however, that in no event shall
the Investor be entitled under this Section 4.1 to designate for
election to the Board of Directors a number of persons greater than
that set forth in the first sentence of this Section 4.1. The number
and type of securities which the Investor, its affiliates, limited
partners and associates (or Bill Swisher, his wife, children and
grandchildren, as the case may be) are required to beneficially own to
be afforded the right to designate persons for election to the
Company's Board of Directors shall be appropriately adjusted to reflect
any stock split, reverse stock split, stock dividend, recapitalization
or similar action. The parties acknowledge and agree that, for purposes
of determining the number of shares of Class A Common Stock or other
securities of the Company beneficially owned by the Investor's limited
partners, only those shares distributed by the Investor to the limited
partners shall be considered."
3. The parties acknowledge and agree that, for purposes of Section 4.1,
Tom Engelsman shall be deemed to be a designee of the Investor.
<PAGE> 3
4. Except as specifically provided herein, the terms and provisions of
the Investment Agreement shall remain unchanged and in full force and effect.
This Amendment No. 1 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument. This
Amendment No. 1 shall be governed by and construed in accordance with the
internal laws of the State of New York without regard to the principles of
conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed below.
RECOVERY EQUITY INVESTORS, L.P.,
a Delaware limited partnership
By: Recovery Equity Partners, L.P., its
General Partner
By: /s/ Joseph J. Finn-Egan
------------------------------------
Joseph J. Finn-Egan, General Partner
By: /s/ Jeffrey A. Lipkin
------------------------------------
Jeffrey A. Lipkin, General Partner
CMI CORPORATION, an Oklahoma
corporation
By: /s/ Bill Swisher
------------------------------------
Bill Swisher, Chairman of the Board
<PAGE> 1
AMENDMENT NO. 2 TO SHAREHOLDERS AGREEMENT
This Amendment No. 2 to Shareholders Agreement (the "Amendment No. 2")
is made and entered into effective as of the 6th day of November, 1998, between
and among Recovery Equity Investors, L.P., a Delaware limited partnership (the
"Investor"), CMI Corporation, an Oklahoma corporation (the "Company"), George
William Swisher, Jr., the Chairman of the Board and a shareholder of the Company
("Bill Swisher"), and each of the other individuals or entities whose names
appear on the signature pages hereto (Bill Swisher and each such other
individual or entity, individually, a "Shareholder" and collectively, the
"Shareholders").
WHEREAS, the parties hereto are parties to or otherwise bound by that
certain Shareholders Agreement, dated as of August 19, 1991 and as amended by
that certain Amendment No. 1 to Shareholders Agreement (collectively, the
"Shareholders Agreement").
WHEREAS, contemporaneously herewith, the Investor and the Company have
amended the terms of a certain Investment Agreement, dated as of August 19, 1991
(the "Investment Agreement"), through the execution and delivery of a certain
Amendment No. 1 to the Investment Agreement (the "Amendment"), a copy of which
Amendment is attached hereto as Exhibit "A"; and
WHEREAS, as a result of the amendment of the Investment Agreement, the
parties believe that it is necessary and desirable to further amend the
Shareholders Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, the parties agree as follows:
1. Capitalized terms used herein and not otherwise defined herein shall
have their respective meanings as set forth in the Shareholders Agreement.
2. Each of the Shareholders hereby acknowledges the execution and
delivery of the Amendment and consents to the terms thereof. Each of the
Shareholders further agrees to vote all of the shares of Voting Class A Common
Stock, par value $.10, of the Company beneficially owned by him, her or it for
the election of any persons designated by the Investor in accordance with
Article IV of the Investment Agreement, as amended by the Amendment.
3. Notwithstanding anything to the contrary herein, with respect to the
number of shares of Voting Class A Common Stock beneficially owned by such
Shareholder prior to December 17, 1991, Kyle Mark Swisher, Kelly Swisher McLain,
Stuart Ann Swisher and
<PAGE> 2
Lane Scott Swisher shall not be bound by the provisions of this Amendment or the
Shareholders Agreement.
4. Except as specifically provided herein, the terms and provisions of
the Shareholders Agreement, shall remain unchanged and in full force and effect.
This Amendment No. 2 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument, and any
of the parties hereto may execute this Amendment No. 2 by signing any such
counterpart. This Amendment No. 2 shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
2 to Shareholders Agreement to be effective as of the 6th day of November, 1998.
RECOVERY EQUITY INVESTORS, L.P.,
a Delaware limited partnership
By: Recovery Equity Partners, L.P., its
General Partner
By: /s/ Joseph J. Finn-Egan
------------------------------------------
Joseph J. Finn-Egan, General Partner
By: /s/ Jeffrey A. Lipkin, General Partner
------------------------------------------
Jeffrey A. Lipkin, General Partner
CMI CORPORATION, an Oklahoma corporation
By: /s/ Jim D. Holland
------------------------------------------
Jim D. Holland, Vice President
/s/ George William Swisher, Jr.
----------------------------------------------
George William Swisher, Jr. a/k/a Bill Swisher
a/k/a William Swisher
<PAGE> 3
/s/ George William Swisher, Jr.
------------------------------------------------
George William Swisher, Jr., as Trustee of the
George William Swisher, Jr. Trust u/t/a 12/31/93
/s/ George William Swisher, Jr.
------------------------------------------------
George William Swisher, Jr., as Trustee of the
George William Swisher, Jr. and Hazel Wanda
Swisher Charitable Remainder Unitrust u/t/a
12/22/94
/s/ George William Clark Swisher III
------------------------------------------------
George William Clark Swisher III
/s/ Thane Allison Swisher
------------------------------------------------
Thane Allison Swisher
/s/ Kyle Mark Swisher
------------------------------------------------
Kyle Mark Swisher
/s/ Kelly Swisher McLain
------------------------------------------------
Kelly Swisher McLain
/s/ Stuart Ann Swisher
------------------------------------------------
Stuart Ann Swisher
/s/ Lane Scott Swisher
------------------------------------------------
Lane Scott Swisher
<PAGE> 4
/s/ Mark Swisher
-------------------------------------------------
Kyle Mark Swisher
/s/ Shelly Swisher
-------------------------------------------------
Shelly Swisher
/s/ Thane A. Swisher
-------------------------------------------------
Thane A. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Elizabeth Swisher u/t/a
12/09/93 and not individually
/s/ Lane S. Swisher
-------------------------------------------------
Lane S. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Elizabeth Swisher u/t/a
12/09/93 and not individually
/s/ Kelly S. McLain
-------------------------------------------------
Kelly S. McLain, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Elizabeth Swisher u/t/a
12/09/93 and not individually
/s/ Thane A. Swisher
-------------------------------------------------
Thane A. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Kathryn L. Swisher
u/t/a 12/09/93 and not individually
/s/ Lane S. Swisher
-------------------------------------------------
Lane S. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Kathryn L. Swisher
u/t/a 12/09/93 and not individually
<PAGE> 5
/s/ Kelly S. McLain
----------------------------------------------
Kelly S. McLain, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Kathryn L. Swisher
u/t/a 12/09/93 and not individually
/s/ Thane A. Swisher, of the Swisher
----------------------------------------------
Thane A. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO George W. Swisher IV
u/t/a 12/09/93 and not individually
/s/ Lane S. Swisher
----------------------------------------------
Lane S. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO George W. Swisher IV
u/t/a 12/09/93 and not individually
/s/ Kelly S. McLain
----------------------------------------------
Kelly S. McLain, as Co-Trustee of the Swisher
Grandchildren's Trust FBO George W. Swisher IV
u/t/a 12/09/93 and not individually
/s/ Thane A. Swisher
----------------------------------------------
Thane A. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Natalie J. Swisher
u/t/a 12/09/93 and not individually
/s/ Lane S. Swisher
----------------------------------------------
Lane S. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Natalie J. Swisher
u/t/a 12/09/93 and not individually
<PAGE> 6
/s/ Kelly S. McLain
----------------------------------------------
Kelly S. McLain, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Natalie J. Swisher
u/t/a 12/09/93 and not individually
/s/ Thane A. Swisher
----------------------------------------------
Thane A. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Megan Calli Swisher
u/t/a 12/09/93 and not individually
/s/ Lane S. Swisher
----------------------------------------------
Lane S. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Megan Calli Swisher
u/t/a 12/09/93 and not individually
/s/ Kelly S. McLain
----------------------------------------------
Kelly S. McLain, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Megan Calli Swisher
u/t/a 12/09/93 and not individually
/s/ Thane A. Swisher
----------------------------------------------
Thane A. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Jennifer L. McLain
u/t/a 12/09/93 and not individually
/s/ Lane S. Swisher
----------------------------------------------
Lane S. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Jennifer L. McLain
u/t/a 12/09/93 and not individually
<PAGE> 7
/s/ Kelly S. McLain
-------------------------------------------------
Kelly S. McLain, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Jennifer L. McLain
u/t/a 12/09/93 and not individually
/s/ Thane A. Swisher
-------------------------------------------------
Thane A. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO William R. McLain u/t/a
12/09/93 and not individually
/s/ Lane S. Swisher
-------------------------------------------------
Lane S. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO William R. McLain u/t/a
12/09/93 and not individually
/s/ Kelly S. McLain
-------------------------------------------------
Kelly S. McLain, as Co-Trustee of the Swisher
Grandchildren's Trust FBO William R. McLain u/t/a
12/09/93 and not individually
/s/ Thane A. Swisher
-------------------------------------------------
Thane A. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Thane Alex Swisher
u/t/a 12/09/93 and not individually
/s/ Lane S. Swisher
-------------------------------------------------
Lane S. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Thane Alex Swisher
u/t/a 12/09/93 and not individually
<PAGE> 8
/s/ Kelly S. McLain
----------------------------------------------
Kelly S. McLain, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Thane Alex Swisher
u/t/a 12/09/93 and not individually
/s/ Thane A. Swisher
----------------------------------------------
Thane A. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Lauren S. Swisher
u/t/a 12/09/93 and not individually
/s/ Lane S. Swisher
----------------------------------------------
Lane S. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Lauren S. Swisher
u/t/a 12/09/93 and not individually
/s/ Kelly S. McLain
----------------------------------------------
Kelly S. McLain, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Lauren S. Swisher
u/t/a 12/09/93 and not individually
/s/ Thane A. Swisher
----------------------------------------------
Thane A. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Mark Andrew McLain
u/t/a 12/09/93 and not individually
/s/ Lane S. Swisher
----------------------------------------------
Lane S. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Mark Andrew McLain
u/t/a 12/09/93 and not individually
<PAGE> 9
/s/ Kelly S. McLain
------------------------------------------------
Kelly S. McLain, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Mark Andrew McLain
u/t/a 12/09/93 and not individually
/s/ Thane A. Swisher
------------------------------------------------
Thane A. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Hunter Nelson
Swisher u/t/a 12/09/93 and not individually
/s/ Lane S. Swisher
------------------------------------------------
Lane S. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Hunter Nelson
Swisher u/t/a 12/09/93 and not individually
/s/ Kelly S. McLain
------------------------------------------------
Kelly S. McLain, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Hunter Nelson
Swisher u/t/a 12/09/93 and not individually
/s/ Thane A. Swisher
------------------------------------------------
Thane A. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Erin Lee Swisher u/t/a
12/09/93 and not individually
/s/ Lane S. Swisher
------------------------------------------------
Lane S. Swisher, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Erin Lee Swisher u/t/a
12/09/93 and not individually
<PAGE> 10
/s/ Kelly S. McLain
------------------------------------------------
Kelly S. McLain, as Co-Trustee of the Swisher
Grandchildren's Trust FBO Erin Lee Swisher u/t/a
12/09/93 and not individually
