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EXECUTION COPY
VOTING AGREEMENT
AGREEMENT, dated as of February 11, 1998 by and between Green I
Acquisition Corp., a Delaware corporation ("Purchaser"), and Xxxxxx Xxxxxxx,
Inc. (the "Stockholder"). Capitalized terms used but not defined herein shall
have the meanings set forth in the Agreement and Plan of Merger, dated the date
hereof (as such agreement may be amended from time to time, the "Merger
Agreement").
WHEREAS, concurrently herewith, Purchaser and The GNI Group, Inc., a
Delaware corporation (the "Company"), are entering into a Merger Agreement,
pursuant to which Purchaser will be merged with and into the Company (the
"Merger"), whereby each share of common stock, par value $.01 per share, of the
Company ("Company Common Stock") issued and outstanding immediately prior to the
Effective Time will be converted into the right to receive cash, other than (i)
shares of Company Common Stock owned, directly or indirectly, by the Company or
any Subsidiary of the Company or by Purchaser, (ii) Dissenting Shares and (iii)
shares that will be retained pursuant to Section 1.07(c) of the Merger
Agreement.
WHEREAS, as a condition to Purchaser's entering into the Merger
Agreement, Purchaser requires that the Stockholder enter into, and that the
Stockholder has agreed to enter into, this Agreement with Purchaser.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual agreements contained herein, the parties hereby
agree as follows:
Section 1. Certain Definitions. The following terms, when used in this
Agreement, shall have the following meanings (such definitions to be equally
applicable to both singular and plural terms of the terms defined):
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person, provided that no securityholder of the Company shall be deemed an
Affiliate of any other securityholder solely by reason of any investment in the
Company. For the purpose of this definition, the term "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of stock,
as a trustee or executor, by contract or credit arrangement or otherwise.
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the
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Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" as described in Section 13(d)(3) of the
Exchange Act.
"Company" has the meaning ascribed thereto in the recitals of this
Agreement.
"Company Common Stock" has the meaning ascribed thereto in the recitals
of this Agreement.
"Control" (including the terms "Controlled by" and "under common
Control with") means the possession, directly or indirectly or as a trustee or
executor, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of stock, as a trustee or
executor, by contract or credit arrangement or otherwise.
"Existing Shares" has the meaning ascribed thereto in Section 2(a)(i).
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"Merger" has the meaning ascribed thereto in the recitals of this
Agreement.
"Purchaser" has the meaning ascribed thereto in the introductory
paragraph of this Agreement.
"Permitted Transferee" means in the case of any Stockholder any
Affiliate of such Stockholder.
"Person" means an individual, corporation, partnership, limited
liability company, limited partnership, association, trust, unincorporated
organization or other entity or group (as defined in Section 13(d)(3) of the
Exchange Act).
"Shares" means the Existing Shares, together with any shares of Company
Common Stock acquired of record or beneficially by such Stockholder in any
capacity after the date hereof and prior to the termination hereof, whether upon
exercise of options, conversion of convertible securities, purchase, exchange or
otherwise; provided, however, that in the event of a stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged.
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"Stockholder" has the meaning ascribed thereto in the introductory
paragraph to this Agreement.
"Subsidiary" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
"Termination Date" has the meaning ascribed thereto in Section 10 of
this Agreement.
"Trustee" has the meaning ascribed thereto in Section 2(a)(i) of this
Agreement.
Section 2. Representations and Warranties of Stockholder. The
Stockholder hereby represents and warrants to Purchaser as follows:
(a) (i) Such Stockholder is either (A) the record holder
or beneficial owner of the number of, or (B) trustee of a
trust that is the record holder or beneficial owner of, and
whose beneficiaries are the beneficial owners (such trustee, a
"Trustee"), shares of Company Common Stock as is set forth
opposite such Stockholder's name on Schedule I hereto (the
"Existing Shares").
(ii) On the date hereof, the Existing Shares set
forth opposite such Stockholder's name on Schedule I hereto
constitute all of the outstanding shares of Company Common
Stock owned of record or beneficially by such Stockholder.
Such Stockholder does not have record or beneficial ownership
of any Shares not set forth on Schedule I hereto.
(iii) Such Stockholder has sole power of disposition
with respect to all of the Existing Shares set forth opposite
such Stockholder's name on Schedule I and sole voting power
with respect to the matters set forth in Section 4 hereof and
sole power to demand dissenter's or appraisal rights, in each
case with respect to all of the Existing Shares set forth
opposite such Stockholder's name on Schedule I, with no
restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement.
(iv) Such Stockholder will have sole power of
disposition with respect to Shares other than Existing Shares,
if any, which become beneficially owned by such Stockholder
and will have sole voting power with respect to the matters
set forth in Section 4 hereof and sole power to demand
dissenter's or appraisal rights, in each case with respect to
all Shares other than Existing Shares, if any, which become
beneficially owned by such Stockholder with no restrictions on
such rights, subject to applicable federal securities laws and
the terms of this Agreement.
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(b) Such Stockholder has the legal capacity, power and
authority to enter into and perform all of such Stockholder's
obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Stockholder will not violate any
other agreement to which such Stockholder is a party or by which such
Stockholder is bound including, without limitation, any trust
agreement, voting agreement, stockholders agreement, voting trust,
partnership or other agreement. This Agreement has been duly and
validly executed and delivered by such Stockholder and constitutes a
valid and binding agreement of such Stockholder, enforceable against
such Stockholder in accordance with its terms, except as limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditor's rights generally, (b) general principles of
equity, whether such enforceability is considered in a proceeding in
equity or at law, and to the discretion of the court before which any
proceeding therefore may be brought, or (c) public policy
considerations or court decisions which may limit the rights of the
parties thereto for indemnification. All necessary consents of any
beneficiary of or holder of interest in any trust of which a
Stockholder is Trustee to the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been
obtained.
(c) Except for filings under the HSR Act, if applicable, (i)
no filing with, and no permit, authorization, consent or approval of,
any state or federal public body or authority is necessary for the
execution of this Agreement by such Stockholder and the consummation by
such Stockholder of the transactions contemplated hereby and (ii)
neither the execution and delivery of this Agreement by such
Stockholder nor the consummation by such Stockholder of the
transactions contemplated hereby nor compliance by such Stockholder
with any of the provisions hereof shall (x) conflict with or result in
any breach of any applicable trust, partnership agreement or other
agreements or organizational documents applicable to such Stockholder,
(y) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation
of any kind to which such Stockholder is a party or by which such
Stockholder or any of such Stockholder's properties or assets may be
bound or (z) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to such Stockholder or any of
such Stockholder's properties or assets.
(d) Except for the shares of Company Common Stock identified
in Schedule II hereto (the "Pledged Shares"), such Stockholder's Shares
and the certificates representing such Shares are now and at all times
during the term hereof will be held by such Stockholder, or by a
nominee or custodian for the benefit of such Stockholder, free and
clear of all liens, claims, security interests, proxies, voting trusts
or agreements,
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understandings or arrangements or any other encumbrances whatsoever,
except for any such encumbrances or proxies arising hereunder.
(e) No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
such Stockholder in his or her capacity as such.
(f) Such Stockholder understands and acknowledges that
Purchaser is entering into the Merger Agreement in reliance upon such
Stockholder's execution and delivery of this Agreement with Purchaser.
Section 3. Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to the Stockholder as follows:
(a) Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation.
(b) Purchaser has all necessary power and authority to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by
Purchaser of this Agreement and the consummation by Purchaser of the
transactions contemplated hereby have been duly and validly authorized
and approved by all required corporate action other than shareholder
approval which shall be effected prior to the Effective Time. This
Agreement has been duly executed and delivered by Purchaser, and
(assuming due authorization, execution and delivery by the Stockholder)
constitutes a valid and binding obligation of Purchaser, enforceable
against it in accordance with its terms, except as limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditor's rights generally, (b) general principles of
equity, whether such enforceability is considered in a proceeding in
equity or at law, and to the discretion of the court before which any
proceeding therefor may be brought, or (c) public policy considerations
or court decisions which may limit the rights of the parties thereto
for indemnification.
(c) Except for the filing of a pre-merger notification and
report form under the HSR Act, if required by applicable law, the
execution and delivery of this Agreement do not, and the consummation
by Purchaser of the transactions contemplated by this Agreement and
compliance by Purchaser with the provisions of this Agreement will not,
conflict with, or result in any breach or violation of, or default
(with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of or "put"
right with respect to any obligation or to loss of a material benefit
under, or result in the creation of any lien upon any of the properties
or assets of Purchaser under, (i) any charter or by-laws of Purchaser,
(ii) any loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit,
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concession, franchise or license applicable to Purchaser or its
properties or assets or (iii) any judgment, order, decree, statute,
law, ordinance, rule, regulation or arbitration award applicable to
Purchaser or its properties or assets. No consent, approval, order or
authorization of, or registration, declaration or filing with, or
notice to, any state or federal public body or authority is required by
or with respect to Purchaser in connection with the execution and
delivery of this Agreement by Purchaser or the consummation by
Purchaser of any of the transactions contemplated by this Agreement.
Section 4. Agreement to Vote; Proxy
(a) The Stockholder hereby agrees that, until the Termination
Date (as defined in Section 10), at any meeting of the stockholders of
the Company, however called, or in connection with any written consent
of the Stockholders of the Company, such Stockholder shall vote (or
cause to be voted) the Shares held of record or beneficially by such
Stockholder (i) in favor of the Merger, the execution and delivery by
the Company of the Merger Agreement and the approval of the terms
thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance
hereof and thereof; (ii) against any action or agreement that would
result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement
or this Agreement; and (iii) against the following actions (other than
the Merger and the transactions contemplated by the Merger Agreement or
any such actions identified in writing by Purchaser in advance): (A)
any extraordinary corporate transaction, including, without limitation,
a merger, consolidation or other business combination involving the
Company or its Subsidiaries; (B) a sale, lease or transfer of a
material amount of assets of the Company or its Subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of the
Company or its Subsidiaries; (C) any change in the majority of the
board of directors of the Company; (D) any material change in the
present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or By-Laws; (E) any other material change
in the Company's corporate structure or business; or (F) any other
action which is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, discourage or materially adversely
affect the Merger or the transactions contemplated by the Merger
Agreement or this Agreement. Such Stockholder shall not enter into any
agreement or understanding with any person or entity to vote or give
instructions in any manner inconsistent with clauses (i) or (ii) of the
preceding sentence. Notwithstanding the foregoing, it is agreed that
the Stockholder will be permitted to vote for an Acquisition Proposal
if the Merger Agreement is terminated by the Company pursuant to
Section 6.01(e) of the Merger Agreement.
(b) THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, PURCHASER
AND ANY DESIGNEE OF PURCHASER, EACH OF THEM INDIVIDUALLY, SUCH
STOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION DATE) PROXY AND
ATTORNEY-IN-FACT (WITH FULL POWER
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OF SUBSTITUTION) TO VOTE THE SHARES AS SET FORTH IN SECTION 4(a) ABOVE.
THE STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE
TERMINATION DATE) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH
FURTHER ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY
TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY
PREVIOUSLY GRANTED BY SUCH STOCKHOLDER WITH RESPECT TO SUCH
STOCKHOLDER'S SHARES.
Section 5. Certain Covenants of Stockholder. Except in accordance with
the terms of this Agreement, the Stockholder hereby covenants and agrees as
follows:
(a) Prior to the Termination Date, no Stockholder shall, in
its capacity as such, directly or indirectly (including through
advisors, agents or other intermediaries), solicit (including by way of
furnishing information) or respond to any inquiries or the making of
any proposal by any person or entity (other than Purchaser or any
Affiliate thereof) with respect to the Company that constitutes or
could reasonably be expected to lead to an Acquisition Proposal (as
defined in Section 4.06 of the Merger Agreement). If any Stockholder in
its capacity as such receives any such inquiry or proposal, then such
Stockholder shall within 24 hours furnish Purchaser with an accurate
description of the material terms (including any changes or adjustments
to such terms as a result of negotiations or otherwise) and conditions,
if any, of such inquiry or proposal and the identity of the person
making it. The Stockholder, in its capacity as such, will immediately
cease and cause to be terminated any existing activities, discussions
or negotiations with any parties conducted heretofore with respect to
any of the foregoing.
(b) Prior to the Termination Date, no Stockholder shall,
directly or indirectly (i) except pursuant to the terms of the Merger
Agreement or this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, enforce or permit the
execution of the provisions of any redemption agreement with the
Company or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition
of, or exercise any discretionary powers to distribute, any or all of
such Stockholder's Shares or any interest therein, including any trust
income or principal, except in each case to a Permitted Transferee who
is or agrees to become bound by this Agreement; (ii) except as
contemplated hereby, grant any proxies or powers of attorney with
respect to any Shares, deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares; or (iii) take any
action that would make any representation or warranty of such
Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling such Stockholder from performing such
Stockholder's obligations under this Agreement.
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(c) The Stockholder hereby waives any rights of appraisal or
rights to dissent from the Merger that such Stockholder may have. Each
Trustee represents that no beneficiary who is a beneficial owner of
Shares under any trust has any right of appraisal or right to dissent
from the Merger which has not been so waived.
(d) Unless, in connection therewith, the Shares held by any
trust which are presently subject to the terms of this Agreement are
transferred to the Stockholder and remain subject in all respects to
the terms of this Agreement, or other Permitted Transferees who upon
receipt of such Shares become signatories to this Agreement, such
Stockholder who is a Trustee shall not take any action to terminate,
close or liquidate any such trust and shall take all steps necessary to
maintain the existence thereof at least until the first to occur of (i)
the Effective Time and (ii) the Termination Date.
Section 6. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
Section 7. Certain Events. The Stockholder agrees that this Agreement
and the obligations hereunder shall attach to such Stockholder's Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or otherwise.
Section 8. Stop Transfer. The Stockholder agrees with, and covenants
to, Purchaser that such Stockholder shall not request that the Company register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of such Stockholder's Shares, unless such transfer is
made in compliance with this Agreement.
Section 9. [Reserved]
Section 10. Termination. The obligations of the Stockholders and the
irrevocable proxy contained in Section 4(b) of this Agreement shall terminate
upon the first to occur of (a) the Effective Time and (b) the date the Merger
Agreement is terminated in accordance with its terms (the "Termination Date");
provided that the provisions of Sections 2, 3 and 11 and any claim for breach of
any representation, warranty, covenant or other agreement under this Agreement
shall survive the Effective Time and/or the Termination Date, as applicable.
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Section 11. Miscellaneous.
(a) All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by hand
delivery, telegram, telex or telecopy, or by mail (registered or
certified mail, postage prepaid, return receipt requested) or by any
courier service providing proof of delivery. All communications
hereunder shall be delivered to the respective parties at the following
addresses:
If to the Stockholder: Xxxxxxx Capital Management
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxx Xxxxxx
Telecopier: (000) 000-0000
If to Purchaser: Green I Acquisition Corp.
c/o 399 Venture Partners, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx, Xxxx 0
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx, Vice President
Telecopier: 000-000-0000
and: Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopier: 000-000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(b) At any time prior to the Effective Time, any party hereto
may, with respect to any other party hereto, (i) extend the time for
the performance of any of the obligations or other acts, (ii) waive any
inaccuracies in the representations and warranties contained herein or
in any document delivered pursuant hereto or (iii) waive compliance
with any of the agreements or conditions contained herein. Any such
extension or waiver shall be valid if set forth in an instrument in
writing signed by the party or parties to be bound thereby.
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(c) The headings contained in this Agreement are for the
convenience of reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
(d) If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated by the
Merger Agreement is not affected in any manner adverse to any party.
Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable
manner.
(e) This Agreement, including all exhibits, disclosure
schedules and schedules hereto, constitutes the entire agreement and
supersedes all prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject
matter hereof and except as otherwise expressly provided herein.
(f) Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party (whether by
operation of law or otherwise) without the prior written consent of the
other parties hereto. Subject to the preceding sentence, this Agreement
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns, and no other
Person shall have any right, benefit or obligation under this Agreement
as a third party beneficiary or otherwise.
(g) The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms. It is
accordingly agreed that the parties hereto shall be entitled to
specific performance of the terms hereof, this being in addition to any
other remedy to which they are entitled at law or in equity.
(h) No failure or delay on the part of any party hereto in the
exercise of any right hereunder shall impair such right or be construed
to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
(i) Notwithstanding anything herein to the contrary, no Person
executing this Agreement who is, or becomes during the term hereof, a
director of the Company makes any agreement or understanding herein in
his or her capacity as such director, and the agreements set forth
herein shall in no way restrict any director in the exercise of his or
her fiduciary duties as a director of the Company. The Stockholder has
executed this
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Agreement solely in his or her capacity as the record or beneficial
holder of such Stockholder's Shares or as the trustee of a trust whose
beneficiaries are the beneficial owners of such Stockholder's Shares.
(j) Each party agrees to bear its own expenses in connection
with the transactions contemplated hereby.
(k) This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule that
would cause the application of the laws of any jurisdiction other than
the State of New York, except to the extent that the General
Corporation Law of the State of Delaware applies as a result of the
Company being incorporated in the State of Delaware, in which case such
General Corporation Law shall apply.
(l) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND
FOR ANY COUNTERCLAIM THEREIN.
(m) This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the
same agreement.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
GREEN ACQUISITION CORP.
By: /s/ XXXXXX XXXXXXXXX
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
STOCKHOLDER:
XXXXXXX CAPITAL MANAGEMENT
By: /s/ XXXXXXX X.X. XXXXXX
------------------------------
Name: Xxxxxxx X.X. Xxxxxx
Title: Director
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SCHEDULE I
EXISTING SHARES
Shareholder No. of Existing Shares
Xxxxxxx Capital Management 681,041
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SCHEDULE II
PLEDGED SHARES
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