Exhibit (d)(9)
Execution Copy
TENDER AGREEMENT
THIS TENDER AGREEMENT (this "Agreement") dated June 12, 2003, is entered
into between KAGT HOLDINGS, INC., a Delaware corporation ("Parent"), KAGT
ACQUISITION CORP., a Delaware corporation and wholly owned subsidiary of Parent
("Sub"), and _________________________, ("Shareholder"), with respect to (i) the
shares of common stock, par value $0.01 per share (the "Company Common Stock"),
of Applied Graphics Technologies, Inc., a Delaware corporation (the "Company"),
(ii) all securities exchangeable, exercisable or convertible into Company Common
Stock, and (iii) any securities issued or exchanged with respect to such shares
of Company Common Stock, and upon any recapitalization, reclassification,
merger, consolidation, spin-off, partial or complete liquidation, stock
dividend, split-up or combination of the securities of the Company or upon any
other change in the Company's capital structure, in each case whether now owned
or hereafter acquired by the Shareholder (collectively, the "Securities").
W I T N E S S E T H:
WHEREAS, Parent, Sub and the Company have entered into an Agreement and
Plan of Merger dated as of the date hereof (as the same may be amended or
supplemented, other than to lower the price to be paid in the Offer or Merger,
the "Merger Agreement") pursuant to which Sub has agreed to make a cash tender
offer described therein and thereafter merge with and into the Company (the
"Merger") with the result that the Company becomes a wholly owned subsidiary of
Parent;
WHEREAS, as of the date hereof, Shareholder beneficially owns and has the
power to dispose of the Securities set forth on Schedule I hereto and has the
power to vote the shares of Company Common Stock set forth thereon;
WHEREAS, Parent and Sub desire to enter into this Agreement in connection
with their efforts to consummate the acquisition of the Company, and in
consideration of Parent's and Sub's agreements herein and in the Merger
Agreement, Shareholder has agreed to cooperate with Parent and Sub with respect
to the acquisition of the Company by Parent and Sub upon the terms and subject
to the conditions in the Merger Agreement; and
WHEREAS, capitalized terms used in this Agreement and not defined have the
meaning given to such terms in the Merger Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Certain Covenants.
1.1 Lock-Up. Subject to Section 1.5, Shareholder hereby covenants
and agrees that during the term of this Agreement, Shareholder will not (a)
directly or indirectly, sell, transfer, assign, pledge, hypothecate, tender,
encumber or otherwise dispose of or limit its right to vote in any manner any of
the Securities, or agree to do any of the foregoing, or (b) take any action
which would have the effect of preventing or disabling Shareholder from
performing its obligations under this Agreement. Notwithstanding the foregoing,
in connection with any transfer not involving or relating to any Company
Takeover Proposal (as defined in the Merger Agreement), Shareholder may transfer
any or all of the Securities as follows: (i) in the case of a Shareholder that
is an entity, to any subsidiary, partner or member of Shareholder, and (ii) in
the case of an individual Shareholder, to Shareholder's spouse, ancestors,
descendants or any trust for any of their benefits or to a charitable trust;
provided, however, that in any such case, prior to and as a condition to the
effectiveness of such transfer, (x) each person to which any of such Securities
or any interest in any of such Securities is or may be transferred (a) shall
have executed and delivered to Parent and Sub a counterpart to this Agreement
pursuant to which such person shall be bound by all of the terms and provisions
of this Agreement, and (b) shall have agreed in writing with Parent and Sub to
hold such Securities or interest in such Securities subject to all of the terms
and provisions of this Agreement, and (y) this Agreement shall be the legal,
valid and binding agreement of such person, enforceable against such person in
accordance with its terms, subject to the qualification, however, that
enforcement of the rights and remedies created by this Agreement is subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general application related to or affecting creditors' rights
and to general equity principles.
1.2 No Solicitation. During the term of this Agreement, neither
the Shareholder nor any director, officer, agent, representative, employee,
affiliate or associate (collectively, "Representatives") of Shareholder shall,
directly or indirectly, (a) solicit, initiate or encourage the submission of any
Company Takeover Proposal or of any other sale, transfer, pledge or other
disposition or conversion of any of the Securities or of any of the other debt
or equity securities of the Company, or (b) participate in or encourage any
discussions or negotiations regarding, or furnish to any person any non-public
information with respect to, enter into any agreement with respect to, or take
any other action to facilitate any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Company Takeover
Proposal or any other sale, transfer, pledge or other disposition or conversion
of any of the Securities or of any of the other debt or equity securities of the
Company, in any case, from, to or with any person other than Parent or Sub.
Shareholder will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any such other parties conducted
heretofore with respect to any of the foregoing. Shareholder will notify Parent
immediately if any party contacts the Shareholder following the date hereof
(other than Parent and Sub) concerning any Company Takeover Proposal or any
other sale, transfer, pledge or other disposition or conversion of any of the
Securities or of any of the other debt or equity securities of the Company.
1.3 Certain Events. This Agreement and the obligations hereunder
will attach to the Securities and will be binding upon any person to which legal
or beneficial ownership of any or all of the Securities passes, whether by
operation of law or otherwise, including without
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limitation, the Stockholder's successors or assigns. This Agreement and the
obligations hereunder will also attach to any additional shares of Company
Common Stock or other Securities of the Company issued to or acquired by the
Stockholder.
1.4 Grant of Proxy; Voting Agreement.
(a) The Shareholder has revoked or terminated any proxies,
voting agreements or similar arrangements previously given or entered into
with respect to the Securities and hereby irrevocably appoints Parent as
proxy for Shareholder to vote the Securities for Shareholder and in
Shareholder's name, place and stead, at any annual, special or other
meeting or action of the shareholders of the Company, as applicable, or at
any adjournment thereof or pursuant to any consent of the shareholders of
the Company, in lieu of a meeting or otherwise, whether before or after
the closing of the Offer (as defined in the Merger Agreement), in the
following manner: (i) for the adoption and approval of the Merger
Agreement and the Merger and (ii) in any manner as Parent, in its sole
discretion, may see fit with respect to any extraordinary corporate
transaction (other than the Merger), such as a merger, consolidation,
business combination, tender or exchange offer, reorganization,
recapitalization, liquidation, sale or transfer of a material amount of
the assets or securities of the Company or any of its subsidiaries (other
than pursuant to the Merger) or any other change of control involving the
Company or any of its subsidiaries, including, but not limited to, any
Company Takeover Proposal. The parties acknowledge and agree that neither
Parent, nor Parent's successors, assigns, subsidiaries, divisions,
employees, officers, directors, shareholders, agents and affiliates shall
owe any duty to, whether in law or otherwise, or incur any liability of
any kind whatsoever, including without limitation, with respect to any and
all claims, losses, demands, causes of action, costs, expenses (including
reasonable attorney's fees) and compensation of any kind or nature
whatsoever to the Shareholder in connection with or as a result of any
voting (or refrain from voting) by Parent of the Securities subject to the
irrevocable proxy hereby granted to Parent at any annual, special or other
meeting or action or the execution of any consent of the shareholders of
the Company. The parties acknowledge that, pursuant to the authority
hereby granted under the irrevocable proxy, Parent may vote the Securities
in furtherance of its own interests, and Parent is not acting as a
fiduciary for the Shareholder.
(b) Notwithstanding the foregoing grant to Parent of the
irrevocable proxy, if Parent elects not to exercise its rights to vote the
Securities pursuant to the irrevocable proxy, Shareholder agrees to vote
the Securities during the term of this Agreement (i) in favor of or give
its consent to, as applicable, a proposal to adopt and approve the Merger
Agreement and the Merger as described in clause (i) of Section 1.4(a), or
(ii) in the manner directed by Parent if the issue on which Shareholder is
requested to vote is a matter described in clause (ii) of Section 1.4(a),
in each case at any annual, special or other meeting or action of the
shareholders of the Company, in lieu of a meeting or otherwise.
(c) This irrevocable proxy shall not be terminated by any
act of the Shareholder or by operation of law, whether by the death or
incapacity of the Shareholder
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or by the occurrence of any other event or events (including, without
limiting the foregoing, the termination of any trust or estate for which
Shareholder is acting as a fiduciary or fiduciaries or the dissolution or
liquidation of any corporation or partnership). If between the execution
hereof and the Termination Date, Shareholder should die or become
incapacitated, or if any trust or estate holding the Securities should be
terminated, or if any corporation or partnership holding the Securities
should be dissolved or liquidated, or if any other such similar event or
events shall occur before the Termination Date, certificates representing
the Securities shall be delivered by or on behalf of Shareholder in
accordance with the terms and conditions of the Merger Agreement and this
Agreement, and actions taken by the Parent hereunder shall be as valid as
if such death, incapacity, termination, dissolution, liquidation or other
similar event or events had not occurred, regardless of whether or not the
Parent has received notice of such death, incapacity, termination,
dissolution, liquidation or other event.
1.5 Tender of Securities. Shareholder agrees to tender the
Securities to Sub in the Offer as soon as practicable following the commencement
of the Offer, and in any event not later ten (10) business days following the
commencement of the Offer and Shareholder shall not withdraw any Securities so
tendered unless the Offer is terminated or has expired. Subject to the terms and
conditions of the Offer and the Merger Agreement, Sub hereby agrees to purchase
the shares of Company Common Stock so tendered at a price per share equal to
$0.85 or any higher price that may be paid in the Offer; provided, however, that
Sub's obligations to accept for payment and pay for the Securities in the Offer
is subject to all the terms and conditions of the Offer set forth in the Merger
Agreement and Exhibit A thereto.
1.6 Public Announcement. Shareholder shall consult with Parent
before issuing any press releases or otherwise making any public statements with
respect to the transactions contemplated herein and shall not issue any such
press release or make any such public statement without the approval of Parent,
except as may be required by law, including any filings with the Securities and
Exchange Commission (the "SEC") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
1.7 Disclosure. Shareholder hereby authorizes Parent and Sub to
publish and disclose in any announcement or disclosure required by the SEC or
the American Stock Exchange (the "AMEX") or any other national securities
exchange and in the Offer Documents and, if necessary, the Proxy Statement (each
as defined in the Merger Agreement), (including all documents and schedules
filed with the SEC in connection with either of the foregoing), its identity and
ownership of the Securities and the nature of its commitments, arrangements and
understandings under this Agreement. Parent and Sub hereby authorize Shareholder
to make such disclosure or filings as may be required by the SEC or the AMEX or
any other national securities exchange.
2. Representations and Warranties of Shareholder. Shareholder hereby
represents and warrants to Parent and Sub, as of the date hereof and as of the
date Sub purchases shares of Company Common Stock pursuant to the Offer, that:
2.1 Ownership. Shareholder has good and marketable title to, and
is the sole legal and beneficial owner of the Securities, in each case free and
clear of all liabilities, claims,
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liens, options, proxies, charges, participations and encumbrances of any kind or
character whatsoever (collectively, "Liens"). At the time Sub purchases shares
of Company Common Stock pursuant to the Offer, Shareholder will transfer and
convey to Parent or its designee good and marketable title to the shares of
Company Common Stock included in the Securities, free and clear of all Liens
created by or arising through Shareholder.
2.2 Authorization. Shareholder has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and has sole voting power and sole power of
disposition, with respect to the Securities with no restrictions on its voting
rights or rights of disposition pertaining thereto. Shareholder has duly
executed and delivered this Agreement and this Agreement is a legal, valid and
binding agreement of Shareholder, enforceable against Shareholder in accordance
with its terms, subject to the qualification, however, that enforcement of the
rights and remedies created hereby is subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
application related to or affecting creditors' rights and to general equity
principles. If the Shareholder is married and the Securities constitute
community property, this Agreement has been duly authorized, executed and
delivered by the Shareholder's spouse, and this Agreement is a legal, valid and
binding agreement of the Shareholder's spouse, enforceable against the
Shareholder's spouse in accordance with its terms, subject to the qualification
however, that enforcement of the rights and remedies created hereby is subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general application related to or affecting creditors' rights
and to general equity principles.
2.3 No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (a)
require the Shareholder to file or register with, or obtain any permit,
authorization, consent or approval of, any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity other than filings with the SEC pursuant to the Exchange
Act, or (b) violate, or cause a breach of or default under, or conflict with any
contract, agreement or understanding, any statute or law, or any judgment,
decree, order, regulation or rule of any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity or any arbitration award binding upon the Shareholder,
except for such violations, breaches, defaults or conflicts which are not,
individually or in the aggregate, reasonably likely to have an adverse effect on
the Shareholder's ability to satisfy its obligations under this Agreement. No
proceedings are pending which, if adversely determined, will have an adverse
effect on any ability to vote or dispose of any of the Securities. The
Shareholder has not previously assigned or sold any of the Securities to any
third party.
2.4 Shareholder Has Adequate Information. Shareholder is a
sophisticated seller with respect to the Securities and has adequate information
concerning the business and financial condition of the Company to make an
informed decision regarding the sale of the Securities and has independently and
without reliance upon either Sub or Parent and based on such information as
Shareholder has deemed appropriate, made its own analysis and decision to enter
into this Agreement. Shareholder acknowledges that neither Sub nor Parent has
made and neither makes any representation or warranty, whether express or
implied, of any kind or character except as expressly set forth in this
Agreement. Shareholder acknowledges that the agreements contained herein with
respect to the Securities by Shareholder is irrevocable, and that
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Shareholder shall have no recourse to the Securities or Parent, except with
respect to breaches of representations, warranties, covenants and agreements
expressly set forth in this Agreement.
2.5 Parent's Excluded Information. Shareholder acknowledges and
confirms that (a) Sub or Parent may possess or hereafter come into possession of
certain non-public information concerning the Securities and the Company which
is not known to Shareholder and which may be material to Shareholder's decision
to enter into this Agreement and sell the Securities ("Parent's Excluded
Information"), (b) Shareholder has requested not to receive Parent's Excluded
Information and has determined to sell the Securities notwithstanding its lack
of knowledge of Parent's Excluded Information, and (c) Parent shall have no
liability or obligation to Shareholder in connection with, and Shareholder
hereby waives and releases Parent from, any claims which Shareholder or its
successors and assigns may have against Parent (whether pursuant to applicable
securities, laws or otherwise) with respect to the non-disclosure of Parent's
Excluded Information; provided, however, nothing contained in this Section 2.5
shall limit Shareholder's right to rely upon the express representations and
warranties made by Parent in this Agreement, or Shareholder's remedies in
respect of breaches of any such representations and warranties.
2.6 No Setoff. The Shareholder has no liability or obligation
related to or in connection with the Securities other than the obligations to
Parent and Sub as set forth in this Agreement. There are no legal or equitable
defenses or counterclaims that have been or may be asserted by or on behalf of
the Company, as applicable, to reduce the amount of the Securities or affect the
validity or enforceability of the Securities.
2.7 No Amounts Payable to Shareholder. Except as disclosed in the
Merger Agreement or in the Company's filings with the SEC pursuant to the
Exchange Act, there are no amounts due or payable by the Company or any Company
Subsidiary to the Shareholder or any of its affiliates or associates in
connection with the transactions contemplated by the Merger Agreement or this
Agreement or otherwise (other than any payments required under the Merger
Agreement solely in exchange for equity securities of the Company).
3. Representations and Warranties of Parent and Sub. Parent and Sub
hereby represent and warrant to Shareholder, as of the date hereof that:
3.1 Authorization. Parent and Sub have all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. Parent and Sub have duly executed and
delivered this Agreement and this Agreement is a legal, valid and binding
agreement of each of Parent and Sub, enforceable against each of Parent and Sub
in accordance with its terms, subject to the qualification however, that
enforcement of the rights and remedies created hereby is subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general application related to or affecting creditors' rights and to general
equity principles.
3.2 No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (a)
require Parent to file or register with, or obtain any permit, authorization,
consent or approval of, any governmental agency, authority, administrative or
regulatory body, court or other tribunal, foreign or domestic,
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or any other entity, or (b) violate, or cause a breach of or default under, any
contract, agreement or understanding, any statute or law, or any judgment,
decree, order, regulation or rule of any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity or any arbitration award binding upon Parent or Sub, except
for such violations, breaches or defaults which are not reasonably likely to
have a material adverse effect on each of Parent or Sub's ability to satisfy its
obligations under this Agreement.
4. Survival of Representations and Warranties. The respective
representations and warranties of Shareholder and Parent contained herein shall
not be deemed waived or otherwise affected by any investigation made by the
other party hereto. The representations and warranties contained herein shall
not survive the closing of the transactions contemplated hereby, except that the
representations and warranties contained in Sections 2.4 and 2.5 shall survive
until the expiration of the applicable statute of limitations.
5. Specific Performance. Shareholder acknowledges that Sub and Parent
will be irreparably harmed and that there will be no adequate remedy at law for
a violation of any of the covenants or agreements of Shareholder which are
contained in this Agreement. It is accordingly agreed that, in addition to any
other remedies which may be available to Sub and Parent upon the breach by
Shareholder of such covenants and agreements, Sub and Parent shall have the
right to obtain injunctive relief to restrain any breach or threatened breach of
such covenants or agreements or otherwise to obtain specific performance of any
of such covenants or agreements.
6. Miscellaneous.
6.1 Term. This Agreement shall terminate upon the earlier of the
day after the Offer is terminated or expires or the termination of the Merger
Agreement pursuant to Section 8.01 thereof (the "Termination Date"). At the
Termination Date, this Agreement shall thereupon become void and be of no
further force and effect, provided that nothing herein shall relieve any party
from liability hereof for breaches of this Agreement prior to the Termination
Date.
6.2 Fiduciary Duties. Notwithstanding anything in this Agreement
to the contrary: (a) the Shareholder makes no agreement or understanding herein
in any capacity other than in the Shareholder's capacity as a record holder and
beneficial owner of Securities, and (b) nothing herein will be construed to
limit or affect any action or inaction by the Shareholder or any Representative
of the Shareholder, as applicable, serving on the Company Board or on the board
of directors of any of its subsidiaries or as an officer or fiduciary of the
Company or any of its subsidiaries, acting in such person's capacity as a
director, officer or fiduciary of the Company or any of its subsidiaries.
6.3 Expenses. Each of the parties hereto shall pay its own
expenses incurred in connection with this Agreement. Each of the parties hereto
warrants and covenants to the others that it will bear all claims for brokerage
fees attributable to action taken by it.
6.4 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
representatives and permitted successors and assigns.
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6.5 Entire Agreement. This Agreement contains the entire
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
6.6 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.7 Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties named herein and their respective successors and
permitted assigns. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other parties; provided, however, that each of Parent and Sub may freely
assign its rights to another direct or indirect wholly owned subsidiary of
Parent or Sub without such prior written approval but no such assignment shall
relieve Parent or Sub of any of its obligations hereunder. Any purported
assignment without such consent shall be void.
6.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
6.9 Notices. 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 given if so given) by delivery, telegram or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses (or at such other address for a party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof):
(a) If to Parent KAGT Holdings, Inc.
or Sub: 00 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Xx. Xxxxxxxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
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(b) If to
Shareholder: ________________________________________
________________________________________
________________________________________
Telecopy:_______________________________
with a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
6.10 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
without regard to its principles of conflicts of laws.
6.11 Enforceability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect. Upon a determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
6.12 Further Assurances. From time to time, at Parent's request and
without further consideration, Shareholder shall execute and deliver to Parent
such documents and take such action as Parent may reasonably request in order to
consummate more effectively the transactions contemplated hereby and to vest in
Parent good, valid and marketable title to the Securities, including, but not
limited to, using its best efforts to cause the appropriate transfer agent or
registrar to transfer of record the Securities.
6.13 Remedies Not Exclusive. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity will be cumulative and not alternative, and the exercise of any
thereof by either party will not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
6.14 Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, Parent, Sub and Shareholder have caused this Agreement
to be duly executed as of the day and year first above written.
KAGT HOLDINGS, INC.
By: ___________________________
Name: __________________________
Title: _________________________
KAGT ACQUISITION CORP.
By: ___________________________
Name: __________________________
Title: _________________________
SHAREHOLDER:
________________________________
Name:_________________________
