EXECUTION COPY
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CPI
INDEMNIFICATION AGREEMENT
by and among
CERTAIN STOCKHOLDERS OF CPI DEVELOPMENT CORPORATION,
and
MCC ACQUISITION HOLDINGS CORPORATION
Dated: May 7, 2001
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INDEMNIFICATION AGREEMENT
This Indemnification Agreement is made and entered into as
of May 7, 2001 (this "Agreement"), by and among MCC Acquisition Holdings
Corporation, a Delaware corporation ("Buyer") and the stockholders of CPI
Development Corporation, a Delaware corporation ("CPI"), listed on
hereto (the "Stockholders") (each, a "Party" and, collectively, the
"Parties").
RECITALS
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WHEREAS, concurrently with the execution and delivery of
this Agreement, Xxxxxx-Xxxxxxx, Inc., a Delaware corporation (the "Company"),
CPI, Buyer, MCC Merger Sub Corporation, a Delaware corporation and a wholly
owned subsidiary of Buyer ("Company Merger Sub"), and MCC Acquisition Sub
Corporation, a Delaware corporation and a wholly owned subsidiary of Buyer
("CPI Merger Sub"), have executed and delivered an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), providing for,
among other things, the merger of CPI Merger Sub with and into CPI and the
merger of Company Merger Sub with and into the Company; and
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Company and Armkel, LLC, a Delaware limited liability
company (the "Asset Buyer") have executed and delivered an Asset Purchase
Agreement, dated as of May 7, 2001 (including the exhibits, schedules and
annexes thereto, the "Asset Purchase Agreement") providing for, among other
things the sale, conveyance, transfer, assignment and delivery to Asset Buyer
of all of the Company's and its affiliates' right, title and interest in and
to the Purchased Assets (as defined in the Asset Purchase Agreement) and the
assumption by Assets Buyer of all of the Assumed Liabilities (as defined in
the Asset Purchase Agreement; such sales, transfers, assignments, purchase,
acceptances and assumptions collectively, the "Asset Purchase");
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Buyer (and, as a condition to enter into the Asset Purchase
Agreement, the Assets Buyer) has required that the Stockholders provide, and
the Stockholders are willing to provide, certain indemnification rights to
Buyer as set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
1. Certain Definitions. Except as specified herein, capitalized terms
used in this Agreement shall have the meanings assigned to such terms in the
Merger Agreement.
2. General Indemnification.
(a) Indemnification by the Stockholders. Following the CPI Merger
Effective Time and subject to the terms and conditions of this Agreement, each
Stockholder will severally (but not jointly) indemnify, defend and hold
harmless Buyer and each Subsidiary and Affiliate of Buyer and their respective
permitted assigns and the officers, directors, employees and agents
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(collectively, the "Buyer Group") from and against any and all obligations,
losses, Claims, costs, interest, awards, judgments, penalties and damages
(including reasonable expenses of investigation and reasonable attorney's fees
and expenses in connection with any action, suit or proceeding, whether before
or after the CPI Merger Effective Time) (collectively, "Damages") incurred or
suffered by any member of the Buyer Group based upon or arising out of or in
connection with or related to any breach by CPI of any of its agreements,
obligations, covenants or representations and warranties contained in the
Merger Agreement (other than with respect to Taxes and with respect to the
representations and warranties set forth in Section 5.1(f) of the Merger
Agreement which is the subject of Section 3) or any agreement or document
entered in connection therewith or delivered pursuant thereto to which CPI is
party in an amount equal to each Stockholder's Percentage Share (as defined in
Section 4(a)(ii)) of the Damages so incurred or suffered. Notwithstanding
anything contained herein to the contrary, in no event shall any Stockholder
be obligated to indemnify any member of the Buyer Group for Damages (including
Tax liabilities) arising from or relating to (i) any actions taken by a Person
(other than a Stockholder) after the Company Merger Effective Time or (ii) any
Damages incurred or suffered by the Company, including any Damages of the
Company for which CPI is liable or secondarily liable by virtue of its
ownership of the capital stock of the Company or its status as an Affiliate or
a controlling person of the Company.
(b) Intentionally Omitted
(c) Threshold. Notwithstanding anything contained herein to the
contrary, the Stockholders shall not be obligated to make any indemnification
payment under Section 2(a) above (other than indemnification payments for
willful breaches of covenant and for breaches of Section 6.20 of the Merger
Agreement) unless and until the aggregate Damages sustained by the Buyer Group
exceed on a cumulative basis $250,000 (the "Threshold"), at which point the
Stockholders shall be obligated to indemnify the Buyer Group from and against
all cumulative Damages (both less than and in excess of the Threshold).
2A. Indemnification With Respect to Appraisal Rights.
(a) Indemnification by the Stockholders. Following the CPI Merger
Effective Time and subject to the terms and conditions of this Agreement, each
Stockholder will severally (but not jointly) indemnify, defend and hold
harmless Buyer Group from and against any and all Damages incurred or suffered
by any member of the Buyer Group based upon or arising out of or in connection
with or related to the exercise by any person or persons of appraisal rights
with respect to the Company Merger or CPI Merger pursuant to Section 262 of
the DGCL (collectively, "Appraisal Damages"); provided that any calculation of
Appraisal Damages shall exclude the aggregate amount of proceeds that, but for
the exercise and perfection of appraisal rights, would have been payable as
consideration in the Company Merger and the CPI Merger with respect to all
Company Shares and Recapped Shares that become the subject of perfected
appraisal rights under Section 262 of the DGCL) in an amount equal to each
Stockholder's Percentage Share (as defined in Section 4(a)(ii)) of the
Appraisal Damages so incurred or suffered. For purposes of the preceding
sentence, amounts paid directly or indirectly by any third party on behalf of
any Stockholder (including amounts paid pursuant to Section 7 and amounts
received under insurance policies but excluding amounts paid pursuant to
insurance policies or other arrangements the cost of which is borne by any
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Indemnified Party or the Assets Buyer or any Affiliate thereof) shall be
deemed to have been paid by such Stockholder for purposes of determining
whether payments in excess of such Stockholder's Percentage Share have been
made.
(b) Limitations. Notwithstanding anything contained herein to the
contrary, the Stockholders shall only be obligated to indemnify, defend and
hold harmless Buyer Group from and against forty percent (40%) of any
Appraisal Damages; provided that if the total amount of Appraisal Damages
exceeds $33,333,333.33 (the "Appraisal/Damages Cap"), then the Stockholders
shall be obligated to indemnify, defend and hold harmless Buyer Group against
100% of the amount of Appraisal Damages in excess of the Appraisal/Damages
Cap.
3. Tax Indemnification.
(a) Indemnification by the Stockholders. Following the CPI Merger
Effective Time and subject to the terms and conditions of this Agreement, each
Stockholder will severally (but not jointly) indemnify, defend and hold
harmless Buyer Group from and against all Taxes of CPI and Damages with
respect thereto (i) with respect to all periods ending on or prior to the
Closing Date and, (ii) with respect to any period beginning before the Closing
Date and ending after the Closing Date, but only with respect to the portion
of such period up to and including the Closing Date (such portion, a
"Pre-Closing Partial Period") and (iii) all Damages as a result of a material
breach of any representation or warranty set forth in Section 5.1(f) of the
Merger Agreement, in each case in an amount equal to each Stockholder's
Percentage Share of the Taxes or Damages so incurred or suffered.
Notwithstanding anything contained herein to the contrary, the Parties agree
that the transactions contemplated by the Merger Agreement are intended to be
treated for federal, state and local income tax purposes as a sale by the
Stockholders of Recapped Shares to Parent and therefore that such transactions
should not give rise to a federal, state or local income tax liability to CPI.
The Stockholders shall have no obligation to indemnify, defend and hold
harmless the Buyer Group from any Taxes resulting from the failure of the
transactions contemplated by the Merger Agreement to be so treated for
federal, state and local income tax purposes if such failure is caused solely
by an action taken by CPI or any member of the Buyer Group after the CPI
Merger Effective Time, or the Company after the Company Merger Effective Time.
The Stockholders will, however, severally (but not jointly) indemnify, defend
and hold harmless the Buyer Group from any federal, state and local Taxes of
CPI imposed on distributions from the Company actually or deemed received with
respect to a period ending on the Closing Date or a Pre-Closing Partial
Period, absent a breach of Section 6.21(c). The Stockholders shall be entitled
to any net refunds of Taxes with respect to the periods described in clauses
(i) and (ii) above, except to the extent such refund arises as the result of a
carry back of a loss or other tax benefit from a period beginning after the
Closing Date.
(b) Allocation Between Partial Periods. Any Taxes for a period
including a Pre-Closing Partial Period and the period beginning before the
Closing Date and ending after the Closing Date, but only with respect to the
portion of such period beginning the day after the Closing Date (such portion,
a "Post-Closing Partial Period") shall be apportioned between the Pre-Closing
Partial Period and the Post-Closing Partial Period, based, in the case of real
and personal property Taxes (if any), on a per diem basis and, in the case of
other Taxes, on the actual activities, taxable income or taxable loss of the
applicable entity during the Pre-Closing Partial Period and the Post-Closing
Partial Period.
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(c) Cooperation. The Stockholders, on the one hand, and Buyer Group,
on the other hand, agree to furnish or cause to be furnished to each other,
upon request, as promptly as practicable, such information and assistance
(including access to books and records) relating to CPI (or the Company and
its Subsidiaries) as is reasonably necessary for the preparation of any return
for Taxes, claim for refund or audit, and the prosecution or defense of any
claim, suit or proceeding relating to any proposed adjustment or any other
information as may be reasonably requested.
(d) Filing of Tax Returns. The Stockholders will cause to be prepared
and timely filed all Tax Returns of CPI for any taxable period ending on or
before the Closing Date. The Stockholders shall timely pay all Taxes of CPI
whether or not shown to be due on such Tax Returns for such periods. All such
Tax Returns shall be prepared in a manner consistent with past tax practices,
except as otherwise required by law.
4. Certain Limitations and Indemnification Procedures.
(a) Obligations of the Stockholders.
(i) In no event shall any Stockholder be obligated to make any
indemnification or other payments under this Agreement that in the aggregate
are in excess of the aggregate amount of cash received by the Stockholder
pursuant to the Merger Agreement. No Stockholder shall have any liability or
obligation under this Agreement for any act, omission or breach by any other
Stockholder, and no Stockholder shall have any right or authority to assume,
create or incur in any manner any obligation or other liability of any kind,
express or implied, against, or in the name or on behalf of, any other
Stockholder, except to the extent contemplated hereby with respect to actions
taken by the Stockholders' Representative (as defined below).
(ii) Each Stockholder hereby agrees to accept and pay that
portion of the Damages, Appraisal Damages and Tax liabilities for which
indemnification by the Stockholders is provided hereunder that is equal to
the Stockholder's percentage share of the CPI Merger Consideration received
by all the Stockholders (each Stockholder's "Percentage Share").
(iii) Each Stockholder hereby agrees that all decisions
concerning the determination, defense and settlement of claims, including the
selection of counsel, to be made by the Stockholders shall be made by the
Stockholders' Representative.
(iv) Each Stockholder, to the extent of its Percentage Share,
hereby agrees to reimburse, indemnify, defend and hold harmless any other
Stockholder who has made indemnity payments pursuant to this Agreement that
are greater than the Percentage Share of the other Stockholder.
(b) Indemnity Reduction Amounts. The amount which the Stockholders
(the "Indemnifying Parties") are or may be required to pay to the Buyer Group
(the "Indemnified Parties") in respect of Damages (including Tax liabilities)
and Appraisal Damages for which indemnification is provided under this
Agreement will be reduced by any amounts actually received (including amounts
received under insurance polices) by or on behalf of the Indemnified Parties
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from third parties relating to such payment (such amounts are referred to
herein as "Indemnity Reduction Amounts"). If the Indemnified Parties receive
any Indemnity Reduction Amounts in respect of an Indemnified Claim (as defined
below) for which indemnification is provided under this Agreement after the
full amount of such Indemnified Claim has been paid by the Indemnifying
Parties or after the Indemnifying Parties have made a partial payment of such
Indemnified Claim and such Indemnity Reduction Amounts exceed the remaining
unpaid balance of such Indemnified Claim, then the Indemnified Parties will
promptly remit to the Indemnifying Parties an amount equal to the excess of
(i) the amount theretofore paid by the Indemnifying Parties in respect of such
Indemnified Claim, less (ii) the amount of the indemnity payment that would
have been due if such Indemnity Reduction Amounts in respect thereof had been
received before the indemnity payment was made. An insurer or other third
party who would otherwise be obligated to pay any claim shall not be relieved
of the responsibility with respect thereto or, solely by virtue of the
indemnification provisions hereof, have any subrogation rights with respect
thereto, it being expressly understood and agreed that no insurer or any other
third party shall be entitled to any benefit they would not be entitled to
receive in the absence of the indemnification provisions by virtue of the
indemnification provisions hereof.
(c) Knowledge. In the event that, prior to Closing, the executive
officers of Buyer obtain actual knowledge of any breach of warranty or
misrepresentation of CPI the effect of which would result in the failure of
the condition to closing set forth in Section 7.2(a)(ii) of the Merger
Agreement to be satisfied, Buyer shall notify the Stockholders' Representative.
If Buyer fails to notify the Stockholders' Representative in accordance with
this Section 4(c), the Buyer Group shall not be deemed to have waived its
rights to indemnification with respect to such undisclosed matter under this
Agreement.
(d) Survival and Termination. Each and every representation and
warranty of CPI contained in the Merger Agreement (other than CPI's
representations and warranties with respect to capital structure contained
in Section 5.1(b) and Taxes contained in Section 5.1(f) of the Merger
Agreement) will survive the Company Merger Effective Time solely for purposes
of Section 2 until 18 months after the Company Merger Effective Time and then
expire; provided, that the representation and warranty contained in
Section 5.1(b) of the Merger Agreement shall survive indefinitely. CPI's
representations and warranties with respect to Taxes contained in
Section 5.1(f) of the Merger Agreement will survive the Company Merger
Effective Time solely for purposes of Section 3 until, and will expire when,
all applicable statutes of limitation in respect of such Tax matters have
expired. The obligations of each Party to indemnify, defend and hold harmless
the other Parties pursuant to this Agreement (except for willful breaches of
covenant) shall terminate (i) with respect to Section 2, when the applicable
representation or warranty expires pursuant to this Section 4(d) and (ii) with
respect to Section 3 and Section 2A, upon the expiration of all applicable
statutes of limitations; provided, however that such obligations to indemnify,
defend and hold harmless shall not terminate with respect to any individual
item as to which the Indemnified Parties shall have, before the expiration
of the applicable period, previously made a claim by delivering a written
notice (stating in reasonable detail the basis of such claim) to the
Indemnifying Parties and shall not be extinguished by the expiration of such
period.
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(e) Indemnification Procedures.
(i) If any claim or demand is made against the Indemnified
Parties with respect to any matter, or the Indemnified Parties shall otherwise
learn of an assertion or of a potential claim, by any Person who is not a
Party (or an Affiliate thereof) (a "Third Party Claim"; provided that the term
"Third Party Claim" shall not include the exercise of appraisal rights with
respect to the Company Merger or CPI Merger pursuant to Section 262 of the
DGCL) which may give rise to a claim for indemnification against the
Indemnifying Parties under this Agreement, then the Indemnified Parties shall
promptly notify the Indemnifying Parties in writing and in reasonable detail
of the Third Party Claim (including the factual basis for the Third Party
Claim, and, to the extent known, the amount of the Third Party Claim);
provided, however, that any failure on the part of the Indemnified Parties
in notifying the Indemnifying Parties will not relieve the Indemnifying
Parties from any obligation hereunder unless (and then solely to the extent)
the Indemnifying Parties are actually prejudiced as a result thereof.
Thereafter, the Indemnified Parties will deliver to the Indemnifying Parties,
promptly after the Indemnified Parties' receipt thereof, copies of all notices
and documents (including court papers) received or transmitted by the
Indemnified Parties relating to the Third Party Claim.
(ii) The Indemnifying Parties will have the right to participate
in or to assume the defense of the Third Party Claim (in either case at the
expense of the Indemnifying Parties) with counsel of its choice reasonably
satisfactory to the Indemnified Parties. The Indemnifying Parties will be
liable for the reasonable fees and expenses of counsel employed by the
Indemnified Parties for any period during which the Indemnifying Parties have
failed to assume the defense thereof. Should the Indemnifying Parties so elect
to assume the defense of a Third Party Claim, the Indemnifying Parties will
not be liable to the Indemnified Parties for any legal or other expenses
subsequently incurred by the Indemnified Parties in connection with the
defense thereof; provided, however, that, if the Parties reasonably agree that
a conflict of interest exists in respect of such claim, the Indemnified Parties
will have the right to employ separate counsel reasonably satisfactory to the
Indemnifying Parties to represent the Indemnified Parties and in that event
the reasonable fees and expenses of such separate counsel (but not more than
one separate counsel for all the Indemnified Parties) shall be paid by the
Indemnifying Parties. If the Indemnifying Parties are conducting the defense
of the Third Party Claim, the Indemnified Parties, at their sole cost and
expense, may retain separate counsel, and participate in the defense of the
Third Party Claim, it being understood that the Indemnifying Parties will
control such defense.
(iii) The Indemnifying Parties will not consent to any
settlement, compromise or discharge (including the consent to entry of any
judgment) of any Third Party Claim without the Indemnified Parties' prior
written consent (which consent will not be unreasonably withheld); provided,
that, if the Indemnifying Parties assume the defense of any Third Party Claim,
the Indemnified Parties will agree to any settlement, compromise or discharge
of such Third Party Claim which the Indemnifying Parties may recommend and
which by its terms obligates the Indemnifying Parties to pay the full amount
of Damages in connection with such Third Party Claim and unconditionally
releases the Indemnified Parties completely from all liability in connection
with such Third Party Claim; provided, further, that the Indemnified Parties
may refuse to agree to any such settlement, compromise or discharge (x) that
provides for injunctive or other nonmonetary relief affecting the Indemnified
Parties or (y) that, in the reasonable opinion of the Indemnified Parties,
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would otherwise materially adversely affect the Indemnified Parties. Whether
or not the Indemnifying Parties shall have assumed the defense of a Third Party
Claim, the Indemnified Parties will not admit any liability, consent to the
entry of any judgment or enter into any settlement or compromise with respect
to the Third Party Claim without the prior written consent of the Indemnifying
Parties (which consent will not be unreasonably withheld).
(iv) If the Indemnifying Parties assume the defense of any
Third Party Claim, the Indemnifying Parties will keep the Indemnified Parties
informed of all material developments relating to or in connection with such
Third Party Claim. If the Indemnifying Parties assume the defense of any
Third Party Claim, the Parties will cooperate in the defense thereof (with the
Indemnifying Parties being responsible for all reasonable out-of-pocket
expenses of the Indemnified Parties (other than for the fees and expenses of
their counsel) in connection with such cooperation), which cooperation will
include the provision to the Indemnifying Parties of records and information
which are reasonably relevant to such Third Party Claim, and making employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder.
(v) Any claim on account of Damages (including Tax liabilities)
for which indemnification is provided under this Agreement which does not
involve a Third Party Claim or an Appraisal Claim (as defined below) will be
asserted by reasonably prompt written notice (but in any event within the
relevant period specified in Section 4(d)) given by the Indemnified Parties
to the Indemnifying Parties.
(vi) In the event of payment in full by the Indemnifying Parties
to any of the Indemnified Parties in connection with any claim, including any
Third Party Claim or any Appraisal Claim (an "Indemnified Claim"), the
Indemnifying Parties will be subrogated to and will stand in the place of the
Indemnified Parties as to any events or circumstances in respect of which the
Indemnified Parties may have any right or claim relating to such Indemnified
Claim against any claimant or plaintiff asserting such Indemnified Claim or
against any other Person, provided that such rights of subrogation shall be
subordinated to those of the Assets Buyer under the Indemnification Agreement
entered into on the date hereof between the Assets Buyer and the Company.
The Indemnified Parties will cooperate with the Indemnifying Parties in a
reasonable manner, and at the cost and expense of the Indemnifying Parties, in
prosecuting any subrogated right or claim.
(f) Appraisal Indemnification Procedures
(i) If any one or more persons exercise and properly perfect
appraisal rights pursuant to Section 262 of the DGCL with respect to the
Company Merger (individually and collectively, an "Appraisal Claim"), then the
Indemnified Parties will cause the Company to deliver to the Indemnifying
Parties, promptly after the Company's receipt thereof, copies of all notices
and documents (including court papers) received or transmitted by the Company
from the Person who has exercised and perfected Appraisal Rights (or any agent
acting on their behalf).
(ii) The Indemnified Parties shall cause the Company and the
Asset Buyer to assume the defense of the Appraisal Claim with counsel of its
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choice reasonably satisfactory to the Indemnified Parties and the Asset Buyer.
Decisions regarding the control of the defense and, subject to the rights of
the Indemnifying Parties hereunder, settlement of the Appraisal Claim shall be
made pursuant to arrangements between the Company and the Asset Buyer. The
expenses incurred in such defense (including the reasonable fees and expenses
of outside counsel referred to in the immediately preceding sentence) shall be
advanced by the Company but shall be considered "Appraisal Damages" for
purposes of this Agreement, and shall be reimbursed by the Indemnifying
Parties promptly following request therefor from time to time on the basis
provided for in Section 2A(b) (i.e. either 40% or 100%, as applicable). The
Indemnifying Parties, at their sole cost and expense, may retain separate
counsel, and participate in the defense of the Appraisal Claim, it being
understood that the Company will control such defense.
(iii) The Company and the Asset Buyer shall have the right to
contest, defend and litigate all Appraisal Claims and shall have the right to
settle or compromise any such matter, either before or after the initiation of
litigation, at such time and upon such terms as the Company and the Asset
Buyer deem fair and reasonable. Notwithstanding the foregoing, the Company and
Asset Buyer shall not be permitted to settle, discharge or compromise any
Appraisal Claim without consent of the Indemnifying Parties, and the
Indemnifying Parties shall be permitted to settle, discharge or compromise any
Appraisal Claim without consent of the Company or the Asset Buyer, if the
total amount of Appraisal Damages paid in connection with such settlement or
compromise, together with all other Appraisal Damages paid to date in
connection with all such Appraisal Claims (excluding any payments received
from third parties (including insurance) from such calculation), exceeds 120%
of the Appraisal Damages Cap.
(iv) The Indemnified Parties will cause the Company to keep the
other Parties informed of all material developments relating to or in
connection with such Appraisal Claim. The Parties will cooperate in the defense
thereof (with the Company being responsible for all reasonable out-of-pocket
expenses of the Parties (including the fees and expenses of their counsel) in
connection with such cooperation, provided that all such expenses shall be
considered "Appraisal Damages" for purposes of this Agreement), which
cooperation will include the provision of records and information which are
reasonably relevant to such Appraisal Claim, and making employees available on
a mutually convenient basis to provide additional information and explanation
of any material provided hereunder.
5. Representations and Warranties.
(a) Organization and Due Authority. Each Party hereby severally and
not jointly represents and warrants to each other Party that (i) such Party is
duly organized, validly existing, and in good standing under the laws of the
jurisdiction of its organization and (ii) such Party has all requisite power
and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
(b) Binding Agreement. Each Party hereby severally and not jointly
represents and warrants to each other Party that (i) the execution, delivery
and performance by such Party of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of such Party and (ii) this Agreement has been duly
executed and delivered by such Party and is a legal, valid and binding
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obligation of such Party, enforceable against it in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and by general principles of
equity.
5A. Waiver of Claims.
(a) Each of the Stockholders hereby irrevocably (subject to
Section 5A(b)) waives any and all actions, causes and causes of action, suits,
debts, demands, Appraisal Rights, costs, claims, damages (including
participation in any settlement or judgment in connection therewith), losses
and liabilities of any kind and nature, whether known or unknown, actual or
potential, arising under common law, state law, federal law or any other law
(any of the foregoing, a "Claim"), which it ever had, may presently have or
may ever in the future have, against (i) CPI, or the Company, or the officers,
directors, employees and agents of CPI or the Company, relating to or arising
from the Merger Agreement, the Asset Purchase Agreement or the transactions
contemplated thereby, (including any Claims or demands as part of a class
action or derivative action, any Claims or proceedings for appraisal under
Section 262 of the DGCL, and any Claims alleging any breach of any fiduciary
or other duty of any officer or director) and (ii) any person or entity who or
which may be entitled to be indemnified by any of the persons or entities
listed in the preceding clause (i) pursuant to applicable law, the Company's
or CPI's certificate of incorporation or bylaws, the Merger Agreement or any
other agreement entered into prior to the Company Merger Effective Time by
CPI, the Company or any of their Affiliates, officers, directors, agents,
representatives or permitted assigns other than Claims arising from or related
to (x) any criminal act, fraud or intentional tort committed by any such party
or any claim for breach of contract (other than, in any of the foregoing
cases, any Claim alleging any breach of any fiduciary duty), or (y) in the
case of the Company and CPI, the right of the Stockholders to receive the CPI
Merger Consideration or the Company Merger Consideration (as such terms are
defined in the Merger Agreement). Each of the Stockholders further agrees that
it shall not initiate, encourage, participate (including in connection with
any settlement, judgement or fund established in connection therewith) or join
in any action, suit or proceeding brought against CPI, the Company or any of
the officers, directors, employees or agents of CPI or the Company challenging
or otherwise related to the transactions contemplated by the Merger Agreement
and the Asset Purchase Agreement including any appraisal proceeding.
(b) Notwithstanding Section 5A(a), the waiver made pursuant
to Section 5A(a) shall terminate and be of no further force or effect at such
time (if any) as both the Merger Agreement and the Asset Purchase Agreement
shall have been terminated.
6. General Provisions.
(a) Stockholders' Representative. Each Stockholder hereby irrevocably
makes, constitutes, and appoints Xxxxxxxx Xxxxx, a current officer of CPI,
with the full power of substitution, as the representative, agent and true and
lawful attorney in fact of and for each of the Stockholders ("Stockholders'
Representative") in connection with any matters relating to this Agreement.
Each Stockholder hereby authorizes and empowers Stockholders' Representative
to make or give any approval, waiver, request, consent, instruction or other
communication on behalf of such Stockholder as such Stockholder could do for
himself, herself or itself in connection with this Agreement. Each Stockholder
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authorizes and empowers Stockholders' Representative to receive all demands,
notices or other communications directed to such Stockholder with respect to
any matters relating to this Agreement. Each Stockholder hereby authorizes and
empowers Stockholders' Representative to (i) take any action (or to determine
to refrain from taking any action) with respect to any matter relating to this
Agreement as the Stockholders' Representative may deem appropriate as
effectively as such Stockholder could act for himself, herself or itself,
which action will be binding on all the Stockholders and (ii) execute and
deliver all instruments and documents of every kind incident to the foregoing
with the same effect as if such Stockholder had executed and delivered such
instruments and documents personally or for itself. Accordingly, any demands,
notices or other communications directed to any Stockholder hereunder shall be
deemed effective if given to Stockholders' Representative.
(b) Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given (i) on the date of service, if served personally, (ii) upon confirmation
of receipt, if transmitted by telecopy, electronic or digital transmission
method, (iii) on the first business day after it is sent, if sent for next day
delivery by recognized overnight delivery service (e.g., Federal Express), and
(iv) on the third day after it is sent, if sent by first class mail,
registered or certified, postage prepaid and return receipt requested. In each
case, notice shall be sent to the Parties at the following addresses (or at
such other address for a Party as shall be specified by like notice):
If to the Stockholders or the Stockholders' Representative,
addressed to:
CPI Development Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Telecopy: 000-000-0000
With copies to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to Buyer, addressed to:
MCC Acquisition Holdings Corporation
00 XXX Xxxxxxx
0xx Xxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Wild
Telecopy: (000) 000-0000
11
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Notice of change of address shall be effective only when done in accordance
with this Section 6(b).
(c) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the word "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation". This Agreement shall not be construed for or against any
Party by reason of the authorship or alleged authorship of any provision
hereof or by reason of the status of the respective Parties. For all purposes
of this Agreement, words stated in the singular shall be held to include the
plural and vice versa, and words of one gender shall be held to include each
other gender, as the context may require or allow. The terms "hereof,"
"herein," and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole (and not to any
particular provision of this Agreement). The word "or" shall not be exclusive.
(d) Entire Agreement. This Agreement (including the Exhibits)
constitutes the entire agreement of the Parties with respect to the subject
matter hereof and supersedes all prior agreements or understandings, both
written and oral, with respect to such subject matter. No Party has made any
representation or warranty or given any covenant to another Party except as
set forth in this Agreement.
(e) Assignment; Successors and Assigns. Each Party agrees that it
will not assign, transfer, delegate, or otherwise dispose of, whether
voluntarily or involuntarily, any right or obligation under this Agreement
without the prior written consent of the other Parties. Any purported
assignment, transfer, delegation or disposition in violation of this
Section 6(e) shall be null and void ab initio. Subject to the foregoing limits
on assignment, this Agreement shall be binding upon and shall inure to the
benefit of the Parties and their respective successors and permitted assigns,
and, with respect to each of the Stockholders, his, her or its legal
representative, his, her or its heirs and beneficiaries and his, her or its
transferees. Except for those rights enumerated above and in Section 5A and
the right granted to the Asset Buyer to enforce this Agreement against the
Parties hereto with respect to any matter relating to Appraisal Claims, this
Agreement does not create, and shall not be construed as creating, any rights
or claims enforceable by any Person not a party to this Agreement.
(f) Governing Law; Waiver of Jury; Trial Jurisdiction. This Agreement
shall be construed and interpreted and the rights granted herein governed in
accordance with the laws of the State of New York applicable to contracts
executed in and to be performed within such State, regardless of the laws that
12
might otherwise govern under applicable principles of conflicts of laws. The
Parties hereby irrevocably submit to the jurisdiction of the courts of the
State of New York and the Federal courts of the United States of America
located in New York, New York solely in respect of the interpretation and
enforcement of the provisions of this Agreement and of the documents referred
to in this Agreement, and in respect of the transactions contemplated hereby,
and hereby waive, and agree not to assert, as a defense in any action, suit or
proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in said courts or that
the venue thereof may not be appropriate or that this Agreement or any such
document may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a New York State or Federal court. The
parties hereby consent to and grant any such court jurisdiction over the
person of such Parties and over the subject matter of such dispute and agree
that mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 6(b) or in such other manner as
may be permitted by law shall be valid and sufficient service thereof. Any
process or other papers hereunder may be served by registered or certified
mail, return receipt requested, or by personal service, provided that a
reasonable time for appearance or response is allowed.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER,
(ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATES IN THIS SECTION 6(f).
(g) Severability. It is the intention of the Parties that the
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions of this Agreement. It is the intention
of the Parties that if any provision of this Agreement, or the application
thereof to any Person or circumstance, is invalid or unenforceable, (i) a
suitable and equitable provision shall be substituted therefor in order to
carry out, so far as the may be valid and enforceable, the intent and purpose
of such invalid or unenforceable provision and (ii) the remainder of this
Agreement and the application of such provision to other Persons or
circumstances shall not be affected by such invalidity or unenforceability,
nor shall such invalidity or unenforceability affect the validity or
enforceability of such provision, or the application thereof, in any other
jurisdiction.
(h) Counterparts; Facsimile Signatures. This Agreement may be
executed in counterparts, each of which shall constitute an original and all
13
of which together shall constitute one and the same instrument. This Agreement
may be executed by fax with the same binding effect as original ink signatures.
(i) Amendments, Waivers, Etc. This Agreement may not be amended,
supplemented or otherwise modified, except upon the execution and delivery of
a written agreement by the Parties. By an instrument in writing, the Parties
may waive compliance by another Party with any provision of this Agreement;
provided, however, that any such waiver shall not operate as a waiver of, or
estoppel with respect to, any other or subsequent failure or with respect to a
Party that has not executed and delivered any such waiver. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, or power hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, or power provided herein
or by law or at equity.
(j) Enforcement of Claims. The Asset Buyer shall be entitled to
enforce any of the Company's rights and remedies hereunder, including the
right to receive payment from any and all Stockholders on account of Appraisal
Claims and Sections 5A and 7. This provision shall not be affected by the
bankruptcy, insolvency or liquidation of the Company or any merger or
consolidation of the Company with or into any other entity.
(k) Capacity. For purposes of this Agreement and the representations,
covenants, agreements and promises contained herein, each of the Stockholders
is acting solely in his, her or its capacity as a Stockholder of, and not as a
director, officer, employee, representative or agent of, CPI.
7. Holdback Fund.
(a) At or prior to the CPI Merger Effective Time, the
Indemnifying Parties and Buyer shall enter into an agreement (the "Fund
Agreement") with a commercial or trust company bank selected by the
Shareholders' Representative with the prior written consent of Buyer (such
consent not to be unreasonably withheld) (the "Agent") pursuant to which $35
million of the aggregate CPI Merger Consideration that otherwise would have
been received by such Indemnifying Parties pursuant to the Merger Agreement
shall be placed in an escrow account or comparable arrangement satisfactory to
the Indemnifying Parties and the Indemnified Parties (the "Fund") for the
purpose of discharging (to the extent of the assets available from the Fund)
the indemnification and expense reimbursement obligations of the Indemnifying
Parties pursuant to this Agreement. The Fund Agreement shall include each of
the provisions set forth in this Section 7, as well as such other provisions
as are customary for escrow agreements or as may be agreed among the parties
thereto.
(b) The Fund Agreement shall provide that the Fund assets
may be managed by an investment advisor selected by the Shareholders'
Representative with the prior written consent of Buyer (such consent not to be
unreasonably withheld) (the "Fund Manager"). The Fund Manager shall have sole
discretion with respect to the nature of the assets held in the Fund,
including decisions with respect to purchase and sale of individual assets
held in the Fund, the mix of assets that comprise the Fund portfolio and the
distribution of assets from time to time (whether comprised of earnings or
principal) to the Indemnifying Parties; provided, that: (a) the Fund Manager
14
shall be prohibited from distributing assets to the Indemnifying Parties if,
immediately following any such distribution, the aggregate fair market value
of the assets comprising the Fund would be less than the Required Amount (as
defined below); and (b) the Fund assets shall at all times consist of Approved
Assets (as defined below).
(c) The Company will be permitted by the Fund Agreement to
notify the Agent from time to time with respect to the occurrence of Appraisal
Damages and the amount of the Indemnifying Parties' resulting payment
obligation pursuant to Section 2A or Section 2(a) (a "Payment Notice"). A copy
of any such notice shall be delivered to the Shareholders' Representative. In
the event that the Shareholders' Representative does not object to the Payment
Notice within 15 days, the Agent shall cause the Fund to make the payment
specified in the Payment Notice. If the Shareholders' Representative objects
to the Payment Notice, it must deliver to the Agent and the Company a notice
specifying the nature of such objection (an "Objection Notice") on or prior to
the 15th day following the date of the Payment Notice, it being understood
that there will be no basis for objection to any amount of Appraisal Damages
specified in any judgment or settlement entered into in accordance with this
Agreement. The Agent will be prohibited from making the payment set forth in
the Payment Notice until all objections thereto included in the Objection
Notice have been resolved through a customary arbitration procedure, which
will grant the Shareholders' Representative the right, together with legal,
accounting and financial advisors acting on its behalf, to review the books
and records of the Company to the extent that they reasonably relate to the
matter or matters in dispute. No payment pursuant to a Payment Notice with
respect to a claim under Section 2(a) shall be paid until all claims or
potential claims with respect to Appraisal Damages hereunder shall have been
discharged pursuant hereto.
(d) Not later than the 18-month anniversary of the CPI
Merger Effective Time, the Company will consult with its legal advisors and
attempt in good faith to estimate the range of probable loss, if any, in
connection with any appraisal proceeding or indemnification claim pursuant to
Section 2(a) that has not been settled prior to such date (the "Loss
Estimate"). In the event that the Loss Estimate is less than the fair market
value of the assets held by the Fund on such date, the Company shall consider
in good faith whether to permit the Agent to release all or a portion of such
assets from the restrictions set forth in the proviso in Section 7(b). In the
event that the Company determines to permit a release of assets from such
restriction, the fair market value of the assets so released shall be deducted
from the Required Amount pursuant to Section 7(g). The Company shall perform a
like evaluation as described above in this Section 7(d) within 45 days after
the completion of each fiscal quarter thereafter (regardless of whether the
Company previously has determined to release any assets in accordance with the
foregoing) until the earlier of (i) the date on which all Appraisal
Proceedings have been finally adjudicated or settled or (ii) the date on which
the corpus of the Fund has been reduced to $0.
(e) In the event that all Appraisal Claims are finally
resolved (whether by judicial determination, settlement or otherwise) and any
assets remain in the Fund following the satisfaction in full of the payment
obligations of the Indemnifying Parties hereunder, then the Agent shall be
instructed to distribute the balance of such Fund to the Stockholders, on a
pro rata basis based on their relative ownership of CPI Shares immediately
prior to the CPI Merger Effective Time.
15
(f) The Fund Agreement shall include a provision similar to
Section 6(j) allowing the Asset Buyer to enforce the rights of the Company
pursuant to the Fund Agreement.
(g) For purposes of this Section 7, the following terms shall have the
following meanings.
"Approved Assets" shall mean (a) cash; (b) marketable securities (i)
issued or directly and unconditionally guaranteed as to interest and
principal by the United States or (ii) issued by any agency of the United
States the obligations of which are backed by the full faith and credit
of the United States; (c) marketable direct obligations issued by any
state of the United States or any political subdivision of any such state
or any public instrumentality thereof, in each case having, at the time
of the acquisition thereof, one of the two highest ratings obtainable
from either S&P or Xxxxx'x; (d) commercial paper having, at the time of
the acquisition thereof, a rating of at least A-1 from S&P or at least
P-1 from Xxxxx'x; (e) certificates of deposit or bankers' acceptances
issued or accepted by any commercial bank organized under laws of the
United States of America or any state thereof or the District of Columbia
that (i) is at least "adequately capitalized" (as defined in the
regulations of its primary Federal banking regulator) and (ii) has Tier 1
capital (as defined in such regulations) of not less than $100 million;
(f) publicly traded debt securities issued by a United States
corporation, which securities are rated in an "investment grade" category
by either S&P or Xxxxx'x; (g) shares of any mutual fund that (i) has at
least 95% of its assets invested continuously in the types of investments
referred to in clauses (b), (c), (d) and (e) above and (ii) has net
assets of not less than $500 million;
"Required Amount" shall mean (a) $35 million, less (b) any amounts
paid to the Company pursuant to Section 7(c), as the amount determined pursuant
to clauses (a) and (b) may be adjusted pursuant to Section 7(d).
16
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be duly executed as of the date first above written.
MCC ACQUISITION HOLDINGS CORPORATION
By: /s/ Xxxxxxx X. Wild
------------------------------------
Name: Xxxxxxx X. Wild
Title: President
Trustees under Paragraph 1 of agreement dated 5/24/84, as
amended, Xxxxx X. Xxxx, Grantor
Trustees u/w Xxxx Good Xxxxxx
Trustees u/i dated 5/29/44 f/b/o Xxxx Xxxxxx Xxxx, et al.
Trustees u/a dated 4/24/75, f/b/o Xxxxx X. Xxxx, Xx.
Trustees u/a dated February 29, 1988, Xxxx X. Xxxx,
Grantor, Xxxxx X. Xxxx, Xx. share
Trustees u/a dated February 29, 1988, Xxxx X. Xxxx,
Grantor, Xxxxxxx X. Xxxx share
Trustee u/a dated February 29, 1988, Xxxx X. Xxxx,
Grantor, Xxxxxxx X. Xxxxxx share
Trustees u/i Xxxxx X. Xxxx dated 6/17/64
Xxxx X. Xxxx, Trust u/a dtd December 28, 1988 f/b/o Xxxxx
X. Xxxx, Xx. et al
Xxxx X. Xxxx, Trust u/a dtd December 28, 1988 f/b/o
Xxxxxxx X. Xxxx et al
Trustees u/i Xxxx Xxxxxx Xxxx dated 6/17/64
Trustees u/i Xxxxxxx X. Xxxx dated 8/14/64
/s/ Xxxxx X. Xxxx, Xx.
----------------------------------------------
Xxxxx X. Xxxx, Xx., as Trustee for and on
behalf of each of the above listed Trusts
Trustees under Paragraph 1 of agreement dated 5/24/84, as
amended, Xxxxx X. Xxxx, Grantor
Trustees u/w Xxxx Good Xxxxxx
Trustees u/i dated 5/29/44 f/b/o Xxxx Xxxxxx Xxxx, et al.
The Xxxxxxx Xxxx Xxxxxx Revocable Trust u/a July 27, 1995
Trustees u/a dated February 29, 1988, Xxxx X. Xxxx,
Grantor, Xxxxx X. Xxxx, Xx. share
Trustees u/a dated February 29, 1988, Xxxx X. Xxxx,
Grantor, Xxxxxxx X. Xxxx share
Trustee u/a dated February 29, 1988, Xxxx X. Xxxx,
Grantor, Xxxxxxx X. Xxxxxx share
Trustees u/i Xxxxx X. Xxxx dated 6/17/64
Xxxx X. Xxxx, Trust u/a dtd December 28, 1988 f/b/o
Xxxxxxx X. Xxxxxx et al
Trustee U/I dated 11-8-66, Xxxxxxx X. Xxxxxx, Grantor
Trustees u/i Xxxx Xxxxxx Xxxx dated 6/17/64
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxx, as Trustee for and on
behalf of each of the above listed Trusts
Trustees under Paragraph 1 of agreement dated 5/24/84, as
amended, Xxxxx X. Xxxx, Grantor
Trustees u/w Xxxx Good Xxxxxx
Trustees u/i dated 5/29/44 f/b/o Xxxx Xxxxxx Xxxx, et al.
/s/ Xxxxxxx X. Creuss
---------------------------------------------
Xxxxxxx X. Creuss, as Trustee for and on
behalf of each of the above listed Trusts
Trustee under Agreement dated August 31, 1988, Xxxxxxx X.
Xxxx, Grantor
Xxxxxxx X. Xxxx 1999 GRAT
Xxxxxxx X. Xxxx 2000 GRAT
Xxxx X. Xxxx, Trust u/a dtd December 28, 1988 f/b/o Xxxxx
X. Xxxx, Xx. et al
Xxxx X. Xxxx, Trust u/a dtd December 28, 1988 f/b/o
Xxxxxxx X. Xxxx et al
Trustee u/i Xxxxx X. Xxxx Xx., dated 9/10/64
Trustees u/i Xxxxxxx X. Xxxx dated 8/14/64
/s/ Xxxxxxxx X. Xxxxx
---------------------------------------------
Xxxxxxxx X. Xxxxx, as Trustee for and on
behalf of each of the above listed Trusts
Xxxx X. Xxxx, Trust u/a dtd December 28, 1988 f/b/o
Xxxxxxx X. Xxxxxx et al
Trustee U/I dated 11-8-66, Xxxxxxx X. Xxxxxx, Grantor
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxxx, as Trustee for and on
behalf of each of the above listed Trusts
Trustee U/I dated 11-8-66, Xxxxxxx X. Xxxxxx, Grantor
/s/ Xxxxxxxxx Xxxx Weil
----------------------------------------------
Xxxxxxxxx Xxxx Xxxx, as Trustee for and on
behalf of the above listed Trust
EXHIBIT A
---------
Certain Stockholders
1st Preferred(1)
--------------
STOCKHOLDER TRUSTEE(S) NUMBER OF PERCENTAGE OF
SHORT NAME SHARES TOTAL SHARES
--------------------- -------------------------- ---------- ---------------
Trust u/w KGO Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 22,496 24.36%
Xxxxxxx X. Xxxxxx
KGO 1944 Trust Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 11,100 12.02%
Xxxxxxx X. Xxxxxx
AOH Trust f/b/o SHG Xxxxxxx X. Xxxxxx 3,757 4.068%
Xxxxxxx X. Xxxxxxx
AOH Trust f/b/o COH Xxxxxxxx X. Xxxxx 3,756 4.067%
AOH Trust f/b/o HHH Jr. Xxxxx X. Xxxx, Xx 3,756 4.067%
Xxxxxxxx X. Xxxxx
COH 1999 XXXX Xxxxxxxx X. Xxxxx 2,951.3 3.2%
COH 2000 XXXX Xxxxxxxx X. Xxxxx 689.3 .75%
SHG 1966 Trust Xxxxxxxxx Xxxx Xxxx
Xxxxxxx X. Xxxxxxx 3,469.6 3.76%
Xxxxxxx X. Xxxxxx
HHH Trust for GCs Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 2,489 2.70%
Xxxxxxx X. Xxxxxx
SHG Rev. Trust Xxxxxxx X. Xxxxxx 1,830 1.98%
HHH Jr. Rev. Trust Xxxxx X. Xxxx, Xx
Xxxxxxxx X. Xxxxx 1,049.6 1.14%
Xxxxxxx X. Xxxxxx
COH Rev. Trust Xxxxxxxx X. Xxxxx 229 0.25%
2nd Preferred(2)
--------------
STOCKHOLDER TRUSTEE(S) NUMBER OF PERCENTAGE OF
SHORT NAME SHARES TOTAL SHARES
------------------------- ------------------- ----------- ---------------
Trust u/w KGO Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 132,544 24.36%
Xxxxxxx X. Xxxxxx
HHH Trust for GCs Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 75,689 13.91%
Xxxxxxx X. Xxxxxx
KGO 1944 Trust Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 65,400 12.02%
Xxxxxxx X. Xxxxxx
HHH Jr. Rev. Trust Xxxxx X. Xxxx, Xx
Xxxxxxxx X. Xxxxx 49,733.25 9.14%
Xxxxxxx X. Xxxxxx
SHG 1966 Trust Xxxxxxxxx Xxxx Xxxx
Xxxxxxx X. Xxxxxxx 26,334.25 4.842%
Xxxxxxx X. Xxxxxx
COH Rev. Trust Xxxxxxxx X. Xxxxx 25,899 4.76%
SHG Rev. Trust Xxxxxxx X. Xxxxxx 25,230 4.64%
COH 1999 XXXX Xxxxxxxx X. Xxxxx 19,321.25 3.55%
COH 2000 XXXX Xxxxxxxx X. Xxxxx 4,513 .83%
AOH Trust f/b/o COH Xxxxxxxx X. Xxxxx 22,132 4.0678%
AOH Trust f/b/o HHH Jr. Xxxxx X. Xxxx, Xx 22,132 4.0678%
Xxxxxxxx X. Xxxxx
AOH Trust f/b/o SHG Xxxxxxx X. Xxxxxx 22,131 4.0676%
Xxxxxxx X. Xxxxxxx
3rd Preferred(3)
--------------
STOCKHOLDER TRUSTEE(S) NUMBER OF PERCENTAGE OF
SHORT NAME --------- SHARES TOTAL SHARES
---------- ------ ------------
Trust u/w KGO Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 927,200 24.36%
Xxxxxxx X. Xxxxxx
HHH 1964 Trust Xxxxx X. Xxxx, Xx 859,307 22.58%
Xxxxxxx X. Xxxxxx
KGO 1944 Trust Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 457,500 12.02%
Xxxxxxx X. Xxxxxx
AOH 1964 Trust Xxxxx X. Xxxx, Xx 184,220 4.84%
Xxxxxxx X. Xxxxxx
SHG 1966 Trust Xxxxxxxxx Xxxx Xxxx
Xxxxxxx X. Xxxxxxx 184,220 4.84%
Xxxxxxx X. Xxxxxx
HHH Jr. Rev. Trust Xxxxx X. Xxxx, Xx
Xxxxxxxx X. Xxxxx 161,985.5 4.29%
Xxxxxxx X. Xxxxxx
COH 1999 XXXX Xxxxxxxx X. Xxxxx 116,360.5 3.06%
COH 2000 XXXX Xxxxxxxx X. Xxxxx 27,178 .71%
HHH Trust for GCs Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 99,826.5 2.62%
Xxxxxxx X. Xxxxxx
AOH Trust f/b/o COH Xxxxxxxx X. Xxxxx 78,165 2.054%
AOH Trust f/b/o HHH Jr. Xxxxx X. Xxxx, Xx 78,164 2.053%
Xxxxxxxx X. Xxxxx
AOH Trust f/b/o SHG Xxxxxxx X. Xxxxxx 78,164 2.053%
Xxxxxxx X. Xxxxxxx
COH 1964 Trust Xxxxx X. Xxxx, Xx 42,700 1.12%
Xxxxxxxx X. Xxxxx
HHH Jr. 1964 Trust Xxxxxxxx X. Xxxxx 42,700 1.12%
SHG Rev. Trust Xxxxxxx X. Xxxxxx 33,275.5 0.87%
COH Rev. Trust Xxxxxxxx X. Xxxxx 18,447 0.49%
COH GSTE Trust Xxxxx X. Xxxx, Xx 15,250 0.40%
Xxxxxxx X. Xxxxxx
HHH Jr. GSTE Trust Xxxxx X. Xxxx, Xx 15,250 0.40%
Xxxxxxx X. Xxxxxx
SHG GSTE Trust Xxxxx X. Xxxx, Xx 15,250 0.40%
Xxxxxxx X. Xxxxxx
Class B Common(4)
---------------
STOCKHOLDER TRUSTEE(S) NUMBER OF PERCENTAGE OF
SHORT NAME ---------- SHARES TOTAL SHARES
---------- ------ ------------
HHH 1964 Trust Xxxxx X. Xxxx, Xx 2,817.4 25.21%
Xxxxxxx X. Xxxxxx
Trust u/w KGO Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 2,736 24.49%
Xxxxxxx X. Xxxxxx
KGO 1944 Trust Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 1,363 12.20%
Xxxxxxx X. Xxxxxx
AOH 1964 Trust Xxxxx X. Xxxx, Xx 604 5.40%
Xxxxxxx X. Xxxxxx
SHG 1966 Trust Xxxxxxxxx Xxxx Xxxx
Xxxxxxx X. Xxxxxxx 604 5.40%
Xxxxxxx X. Xxxxxx
COH 1999 XXXX Xxxxxxxx X. Xxxxx 342.1 3.06%
COH 2000 XXXX Xxxxxxxx X. Xxxxx 79.9 .71%
HHH Jr. Rev. Trust Xxxxx X. Xxxx, Xx
Xxxxxxxx X. Xxxxx 422 3.78%
Xxxxxxx X. Xxxxxx
AOH Trust f/b/o COH Xxxxxxxx X. Xxxxx 256 2.29%
AOH Trust f/b/o HHH Jr. Xxxxx X. Xxxx, Xx 256 2.29%
Xxxxxxxx X. Xxxxx
AOH Trust f/b/o SHG Xxxxxxx X. Xxxxxx 256 2.29%
Xxxxxxx X. Xxxxxxx
COH 1964 Trust Xxxxx X. Xxxx, Xx 140 1.25%
Xxxxxxxx X. Xxxxx
HHH Jr. 1964 Trust Xxxxxxxx X. Xxxxx 140 1.25%
Class C Common(5)
---------------
STOCKHOLDER TRUSTEE(S) NUMBER OF PERCENTAGE OF
SHORT NAME ---------- SHARES TOTAL SHARES
---------- ------ ------------
HHH Trust for GCs Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 327.3 25.06%
Xxxxxxx X. Xxxxxx
Trust u/w KGO Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 304 23.28%
Xxxxxxx X. Xxxxxx
KGO 1944 Trust Xxxxx X. Xxxx, Xx
Xxxxxxx X. Xxxxxx 137 10.49%
Xxxxxxx X. Xxxxxx
SHG Rev. Trust Xxxxxxx X. Xxxxxx 109.1 8.354%
HHH Jr. Rev. Trust Xxxxx X. Xxxx, Xx
Xxxxxxxx X. Xxxxx 109.1 8.346%
Xxxxxxx X. Xxxxxx
COH Rev. Trust Xxxxxxxx X. Xxxxx 60.5 4.632%
COH GSTE Trust Xxxxx X. Xxxx, Xx 50 3.83%
Xxxxxxx X. Xxxxxx
HHH Jr. GSTE Trust Xxxxx X. Xxxx, Xx 50 3.83%
Xxxxxxx X. Xxxxxx
SHG GSTE Trust Xxxxx X. Xxxx, Xx 50 3.83%
Xxxxxxx X. Xxxxxx
COH 1999 XXXX Xxxxxxxx X. Xxxxx 39.4 3.02%
COH 2000 XXXX Xxxxxxxx X. Xxxxx 9.2 .7%
--------
1 Family trusts (excluding charities) own 57,572.8 shares or 62.4% and
non-family stockholders own 22,369.6 shares or 24.3%
2 Family trusts (excluding charities) own 491,058.8 shares or 90.3% and
non-family stockholders own 35,970 shares or 6.6%
3 Family trusts own 3,435,163 shares or 90.3% and non-family stockholders
own 370,880 shares or 9.7%
4 Family trusts own 10,016.4 shares or 89.6% and non-family stockholders
own 1,155.6 shares or 10.4%
5 Family trusts own 1245.5 shares or 95.4% and non-family stockholders
own 60.4 shares or 4.6%
