Exhibit 3.1
EXECUTION COPY
Annex B-1
SHAREHOLDER TENDER AND VOTING AGREEMENT
This SHAREHOLDER TENDER AND VOTING AGREEMENT (this "Agreement") is entered
into as of October 23, 2002, by and between DRS Technologies, Inc., a Delaware
corporation ("Parent"), Prince Merger Corporation, a Florida corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and Xxxxxxx X. Xxxxx, Xxxxx X.
Xxxxx and UES Inc., an Ohio corporation, referred to collectively herein as
("Shareholders").
W I T N E S S E T H:
WHEREAS, as of the date hereof, the Shareholders "beneficially own" (as
such term is defined in Rule 13d-3 promulgated under the Exchange Act) and are
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of shares of common stock, par value $0.015 per
share (the "Common Stock"), of [Prince] Inc., a Florida corporation (the
"Company"), set forth opposite such Shareholders' name on Schedule I hereto
(such shares of Common Stock, together with any other shares of Common Stock the
power to dispose of or vote over which such Shareholders acquire during the
period from and including the date hereof through and including the date on
which this Agreement is terminated in accordance with its terms, are
collectively referred to herein as the "Subject Shares");
WHEREAS, Parent, Merger Sub and the Company propose to enter into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides for Merger Sub to commence a tender offer (the
"Offer") for all of the issued and outstanding shares of the Common Stock and
the merger of Merger Sub with and into the Company, with the Company surviving
as a wholly-owned subsidiary of Parent (the "Merger"); and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, and as an inducement and in consideration therefor, the
Shareholders are executing this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
TENDER AGREEMENT AND IRREVOCABLE PROXY
Section 1.1 Tender Agreement. The Shareholders hereby agree that
unless this Agreement is terminated pursuant to Article V hereof, (a) the
Shareholders shall tender the Subject Shares to Merger Sub in the Offer as
promptly as practicable, and in any event no later than the tenth Business Day,
following the commencement of the
Offer pursuant to Section 1.1 of the Merger Agreement; provided, however, that
with respect to 11,400 Subject Shares held by Xxxxx X. Xxxxx in an individual
retirement account, such Shareholder shall tender the 11,400 Subject Shares as
promptly as practicable under the circumstances and (b) the Shareholders shall
not withdraw any Subject Shares so tendered unless the Offer is terminated or
has expired without Purchaser purchasing all shares of Common Stock validly
tendered in the Offer.
Section 1.2 Grant of Irrevocable Proxy. The Shareholders hereby
appoint Parent and any designee of Parent, and each of them individually, as the
Shareholders' proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent with respect the Subject
Shares (x) in favor of the approval of the terms of the Merger Agreement, the
Merger and the other transactions contemplated by the Merger Agreement (and any
actions required in furtherance thereof), (y) against any action, proposal,
transaction or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company contained in the Merger Agreement or of the Shareholders contained in
this Agreement, and (z) except with the written consent of Parent, against the
following actions or proposals (other than the transactions contemplated by the
Merger Agreement): (i) any Acquisition Proposal; and (ii) (A) any change in the
persons who constitute the board of directors of the Company as such board is
constituted as of the date of this Agreement (or their successors who were so
approved); (B) any material change in the present capitalization of the Company
or any amendment of the Company's articles of incorporation or bylaws; (C) any
other material change in the Company's corporate structure or business; or (D)
any other action or proposal involving the Company or any of its Subsidiaries
that is intended, or could reasonably be expected, to prevent, impede, interfere
with, delay, postpone or adversely affect the transactions contemplated by the
Merger Agreement; provided, however, that nothing in this Agreement shall limit
or affect Xxxxxxx X. Xxxxx from acting in accordance with his fiduciary duties
as an officer or director of the Company. Any such vote shall be cast or consent
shall be given in accordance with such procedures relating thereto so as to
ensure that it is duly counted for purposes of determining that a quorum is
present and for purposes of recording the results of such vote or consent. The
Shareholders agree not to enter into any agreement or commitment with any Person
the effect of which would be inconsistent with or violative of the provisions
and agreements contained in this Article I. This proxy is given to secure the
performance of the duties of the Shareholders under this Agreement. The
Shareholders shall promptly cause a copy of this Agreement to be deposited with
the Company at its principal place of business. The Shareholders shall take such
further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy.
(a) The proxy and power of attorney granted pursuant to
Section 1.2(a) by the Shareholders is executed in accordance with Section
607.0722 of Florida Law and shall be irrevocable during the term of this
Agreement, shall be deemed to be coupled with an interest sufficient in law to
support an irrevocable proxy and shall revoke any and all prior proxies granted
by such Shareholders. The power of attorney granted by the Shareholders herein
is a durable power of attorney and shall survive the
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dissolution, bankruptcy, death or incapacity of the Shareholders. The proxy and
power of attorney granted hereunder shall terminate upon the termination of this
Agreement.
ARTICLE II
COVENANTS
Section 2.1 Generally. The Shareholders agree that prior to the
termination of this Agreement, except as contemplated by the terms of this
Agreement, they shall not (i) sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of (collectively, a "Transfer"), or enter into any
contract, option or other agreement with respect to, or consent to, a Transfer
of, any or all of the Subject Shares, or (ii) take any action that would have
the effect of preventing, impeding, interfering with or adversely affecting
their ability to perform their obligations under this Agreement.
(a) In the event of a stock dividend or distribution, or any
change in the Common Stock by reason of any stock dividend or distribution,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Subject Shares" shall be deemed to refer to and include the Subject Shares
as well as all such stock dividends and distributions and any securities into
which or for which any or all of the Subject Shares may be changed or exchanged
or which are received in such transaction.
(b) The Shareholders agree to surrender to the Company, or to
the transfer agent for the Company, certificates evidencing the Subject Shares,
and shall use their reasonable best efforts to cause the Company or the transfer
agent for the Company to place the following legend on any and all certificates
evidencing the Shares:
(c) THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT CERTAIN TENDER
AND VOTING AGREEMENT, DATED AS OF OCTOBER 23, 2002, BY AND AMONG DRS
TECHNOLOGIES INC., PRINCE MERGER CORPORATION AND THE SHAREHOLDERS. ANY TRANSFER
OF SUCH SHARES OF COMMON STOCK IN VIOLATION OF THE TERMS AND PROVISIONS OF SUCH
AGREEMENT SHALL BE NULL AND VOID AND OF NO EFFECT WHATSOEVER.
Section 2.2 Standstill Obligations of the Shareholders. The
Shareholders covenant and agree with Parent that:
(a) the Shareholders shall not, nor shall the Shareholders
permit any of their affiliates to, nor shall the Shareholders act in concert
with or permit any of their affiliates to act in concert with any Person to
make, or in any manner participate in, directly or indirectly, a "solicitation"
of "proxies" (as such terms are used in the rules of the SEC) or powers of
attorney or similar rights to vote, or seek to advise or influence any Person
with respect to the voting of, any shares of Common Stock in connection with any
vote or other action on any matter, other than to recommend that shareholders of
the
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Company accept the Offer, tender their shares in the Offer, vote in favor of the
Merger and the Merger Agreement and otherwise as expressly provided by Article
II of this Agreement.
(b) the Shareholders shall not, nor shall the Shareholders
permit any of their affiliates to, nor shall such Shareholders act in concert
with or permit any of their affiliates to act in concert with any Person to,
deposit any shares of Common Stock in a voting trust or subject any shares of
Common Stock to any arrangement or agreement with any Person with respect to the
voting of such shares of Common Stock.
(c) the Shareholders shall not, and shall direct their
Representatives not to, directly or indirectly, enter into, solicit, initiate,
conduct or continue any discussions or negotiations with, or knowingly encourage
or respond to any inquiries or proposals by, or provide any information to, any
Person, other than Parent, relating to any Acquisition Proposal. The
Shareholders hereby represent that they are not now engaged in discussions or
negotiations with any party other than Parent with respect to any Acquisition
Proposal. Promptly after receipt of any Acquisition Proposal or any request for
nonpublic information or inquiry which they reasonably believe could lead to an
Acquisition Proposal, the Shareholders shall provide Parent with written notice
of the material terms and conditions of such Acquisition Proposal, request or
inquiry, and the identity of the person or group making any such Acquisition
Proposal, request or inquiry, and a copy of all written materials provided in
connection with such Acquisition Proposal, request or inquiry. After receipt of
the Acquisition Proposal, request or inquiry, the Shareholders shall promptly
keep Parent informed in all material respects of the status and details
(including material amendments or proposed material amendments) of any such
Acquisition Proposal, request or inquiry.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders hereby represent and warrant, jointly and severally, to
Parent as follows:
Section 3.1 Authority. The Shareholders have all necessary legal
capacity, power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby by
the Shareholders have been duly authorized by all necessary action on the part
of such Shareholders.
Section 3.2 Ownership of Shares. Schedule I sets forth, opposite the
Shareholders' name, the number of shares of Common Stock over which the
Shareholders have record and beneficial ownership as of the date hereof. The
Shareholders are the lawful owners of the shares of Common Stock denoted as
being owned by the Shareholders on Schedule I and have the sole power to dispose
of (or cause to be disposed of) or vote (or cause to be voted) such shares of
Common Stock. The
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Shareholders have good and valid title to the Common Stock denoted as being
owned by such Shareholders on Schedule I, free and clear of any and all Liens,
other than those Liens created by this Agreement.
Section 3.3 No Conflicts. (i) Except for filings under the HSR Act
and the Exchange Act, no filing with any Governmental Entity, and no
authorization, consent or approval of any other Person is necessary for the
execution of this Agreement by the Shareholders and the consummation by the
Shareholders of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by the Shareholders, the consummation
by the Shareholders of the transactions contemplated hereby or compliance by the
Shareholders with any of the provisions hereof shall (A) result in, or give rise
to, a violation or breach of or a default under any of the terms of any material
contract, understanding, agreement or other instrument or obligation to which
the Shareholders are a party or by which the Shareholders or any of their
Subject Shares or assets may be bound, or (B) violate any applicable order,
writ, injunction, decree, judgment, statute, rule or regulation.
Section 3.4 Reliance by Parent. The Shareholders understand and
acknowledge that Parent is entering into the Merger Agreement in reliance upon
the execution and delivery of this Agreement by the Shareholders.
Section 3.5 No Finder's Fees. No broker, investment banker,
financial advisor 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 the Shareholders execution and
delivery of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to the Shareholders as follows:
Section 4.1 Due Organization, etc. Parent is a company duly
organized and validly existing under the laws of the jurisdiction of its
incorporation. Parent has all necessary corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by Parent have been duly authorized by all
necessary action on the part of Parent.
Section 4.2 Conflicts. (i) Except for filings under the HSR Act and
the Exchange Act, no filing with any Governmental Entity, and no authorization,
consent or approval of any other Person is necessary for the execution of this
Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby and (ii) none of the execution and delivery of this
Agreement by Parent or the consummation by Parent of the transactions
contemplated hereby shall (A) conflict with or result in any breach of the
organizational documents of Parent, (B) result in, or give rise to, a violation
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or breach of or a default under any of the terms of any material contract,
understanding, agreement or other instrument or obligation to which Parent is a
party or by which Parent or any of its assets may be bound, or (C) violate any
applicable order, writ, injunction, decree, judgment, statute, rule or
regulation.
Section 4.3 Reliance by Shareholders. Parent understands and
acknowledges that the Shareholders are entering into this Agreement in reliance
upon the execution and delivery of the Merger Agreement by Parent.
ARTICLE V
TERMINATION
Section 5.1 Termination. This Agreement shall terminate, and neither
Parent nor the Shareholders shall have any rights or obligations hereunder and
this Agreement shall become null and void and have no effect upon the earliest
to occur of (i) the mutual consent of Parent and the Shareholders, (ii) the
Effective Time, and (iii) the date of termination of the Merger Agreement in
accordance with its terms; provided, however, that termination of this Agreement
shall not prevent any party hereunder from seeking any remedies (at law or in
equity) against any other party hereto for such party's breach of any of the
terms of this Agreement. Notwithstanding the foregoing, Sections 6.1, 6.5, 6.6
and 6.14 of this Agreement shall survive the termination of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Publication. The Shareholders hereby permit Parent and
Merger Sub to publish and disclose in the Offer Documents and, if approval of
the shareholders of the Company is required under applicable Legal Requirements,
the Proxy Statement their identity and ownership of shares of Common Stock and
the nature of their commitments, arrangements and understandings pursuant to
this Agreement.
Section 6.2 HSR Requirements. The Shareholders agree promptly to
make all necessary filings, if any, and thereafter make any other required
submissions, if any, with respect to the Merger Agreement, the Merger and the
transactions contemplated by the Merger Agreement required under the HSR Act,
any antitrust and competition laws of any other applicable jurisdiction and any
other applicable Legal Requirements. The Shareholders shall cooperate with
Parent in connection with the making of any such filings referenced in the
preceding sentence, including providing copies of all such documents to Parent
and its advisors prior to filing and, if requested, to accept all reasonable
additions, deletions or changes suggested in connection therewith.
Section 6.3 Further Actions. Each of the parties hereto agrees that
it will use its reasonable best efforts to do all things necessary to effectuate
this
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Agreement.
Section 6.4 Amendments, Waivers, etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified, except upon the
execution and delivery of a written agreement executed by each of the parties
hereto. The failure of any party hereto to exercise any right, power or remedy
provided under this Agreement or otherwise available in respect hereof at law or
in equity, or to insist upon compliance by any other party hereto with its
obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
Section 6.5 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not to be performed in accordance with the terms hereof and that
the parties shall be entitled to specific performance of the terms hereof in
addition to any other remedies at law or in equity.
Section 6.6 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed duly given (i) on the date of delivery
if delivered personally, (ii) on the date of confirmation of receipt (or, the
first business day following such receipt if the date is not a business day) of
transmission by telecopy or telefacsimile, or (iii) on the date of confirmation
of receipt (or, the first business day following such receipt if the date is not
a business day) if delivered by a nationally recognized courier service. All
notices hereunder shall be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:
(a) if to Parent or Merger Sub, to:
DRS Technologies, Inc.
0 Xxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxx
Telephone No.: (000) 000-0000
Telecopy No.:
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
(b) if to any of the Shareholders, to:
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Xxxxxxx X. Xxxxx
0000 Xxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000
Xxxxx X. Xxxxx
0000 Xxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000
UES, Inc.
0000 Xxxxxx-Xxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000
Section 6.7 Capitalized Terms. For purposes of this Agreement,
capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Merger Agreement.
Section 6.8 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.
Section 6.9 Severability. 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 hereby is not affected in any manner
materially 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 to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
Section 6.10 Entire Agreement. This Agreement (together with the
Merger Agreement, to the extent referred to herein) constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
Section 6.11 Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of each of the
parties, except that each of Parent and Merger Sub may assign and transfer its
rights and obligations hereunder to any direct or indirect Subsidiary of Parent.
Section 6.12 Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and their respective
successors and assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
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Section 6.13 Mutual Drafting. Each party hereto has participated in
the drafting of this Agreement, which each party acknowledges is the result of
extensive negotiations between the parties.
Section 6.14 Governing Law; Consent to Jurisdiction; Waiver of Trial
by Jury.
(a) This Agreement and the transactions contemplated hereby,
and all disputes between the parties under or related to the Agreement or the
facts and circumstances leading to its execution, whether in contract, tort or
otherwise, shall be governed by and construed in accordance with the laws of the
State of Delaware, without regard to the application of Delaware principles of
conflicts of laws.
(b) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any Delaware State court, or Federal court of the United States
of America, sitting in Delaware, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement or the
agreements delivered in connection herewith or the transactions contemplated
hereby or thereby or for recognition or enforcement of any judgment relating
thereto, and each of the parties hereby irrevocably and unconditionally (i)
agrees not to commence any such action or proceeding except in such courts, (ii)
agrees that any claim in respect of any such action or proceeding may be heard
and determined in such Delaware State court or, to the extent permitted by law,
in such Federal court, (iii) waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in any such Delaware State or
Federal court, and (iv) waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such Delaware State or Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 6.6. Nothing in
this Agreement shall affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE
AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. 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
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ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV)
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.14(c).
Section 6.15 Counterparts. This Agreement may be executed in
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.
Section 6.16 Capacity. Xxxxxxx X. Xxxxx makes no agreement or
understanding herein as a director or officer of the Company. Xx. Xxxxx signs
this Agreement solely in his capacity as a record and beneficial owner of the
Subject Shares, and nothing herein shall limit or affect any actions taken in
his capacity as an officer or director of the Company.
* * * * *
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IN WITNESS WHEREOF, Parent, Merger Sub and each of the Shareholders have
caused this Agreement to be duly executed as of the day and year first above
written.
DRS TECHNOLOGIES, INC.,
a Delaware corporation
By:
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman, President and
Chief Executive Officer
PRINCE MERGER CORPORATION,
a Florida corporation
By:
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
------------------------------------------
Xxxxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx
UES, INC.,
an Ohio corporation
By:
---------------------------------------
Name:
Title:
Schedule I
Ownership of Common Stock
Name and Address of Shareholder Number of Shares
------------------------------- ----------------
Xxxxxxx X. Xxxxx 859,342
0000 Xxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000
Xxxxx X. Xxxxx 338,880
0000 Xxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000
UES Inc. 130,620
0000 Xxxxxx-Xxxxx Xxxx
Xxxxxx, Xxxx 00000
