Exhibit 2.2
EXECUTION COPY
VOTING AGREEMENT
This Voting Agreement (this "Agreement"), dated as of July 21, 2003, is
entered into by and among XXXXXX BROTHERS HOLDINGS INC., a Delaware
corporation ("Parent"), and the individuals and other parties listed on
Schedule A hereto (each, a "Stockholder", and collectively, the
"Stockholders").
WHEREAS, the Stockholders beneficially own in the aggregate 9,537,011
outstanding shares of common stock, par value $.01 per share, of Xxxxxxxxx
Xxxxxx Inc., a Delaware corporation (the "Company") (together with any shares
of common stock of the Company acquired by the Stockholder after the date
hereof being collectively referred to herein as the "Shares");
WHEREAS, the Stockholders are parties to the Stockholders Agreement (the
"Company Stockholders Agreement"), dated as of August 2, 1999, by and among
the Company, the Principals (as defined therein) and the Family Affiliates (as
defined therein), pursuant to which the Stockholders are subject to various
agreements with respect to the voting of certain of their Shares, as set forth
opposite such Stockholder's name on Schedule A hereto in the column titled
"Number of Founder Shares Owned" (such Shares sometimes referred to herein as
"Founder Shares", any other Shares subject to this Agreement sometimes
referred to herein as "Other Shares");
WHEREAS, Parent, Ruby Acquisition Company, a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), and the Company have entered
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"); and
WHEREAS, each Stockholder has agreed to enter into this Agreement in
order to induce Parent, the Company and Merger Sub to enter into the Merger
Agreement and to consummate the transactions contemplated by the Merger
Agreement.
NOW, THEREFORE, in consideration of Parent's, the Company's and Merger
Sub's entering into the Merger Agreement and of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
adequacy of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings assigned to them in the
Merger Agreement.
SECTION 2. Representations and Warranties of Stockholder. Each
Stockholder hereby represents and warrants to Parent as follows:
2.1 Title to the Shares. Such Stockholder is the beneficial owner of, and
has good and marketable title to, the number of shares of Company Common Stock
equal to the sum of the Founder Shares and Other Shares, if any, set forth
opposite the name of such Stockholder on Schedule A hereto, which as of the
date hereof constitutes all of the shares of Company Common Stock, or any
other securities convertible into or exercisable for any shares
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of Company Common Stock (other than employee stock options to purchase Company
Common Stock held by such Stockholder and shares issuable after the date
hereof upon the exercise of such options) owned beneficially by such
Stockholder and its respective Affiliates (all collectively being "Company
Securities"). Except as provided for in the Company Stockholders Agreement,
such Stockholder has the exclusive power to dispose of such shares or to vote
such shares on all matters submitted to holders of shares of Company Common
Stock. Such Stockholder and its respective Affiliates do not have any rights
of any nature to acquire any additional Company Securities. Except for the
Company Stockholders Agreement, such Stockholder owns all of such shares of
Company Common Stock free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on voting
rights, restrictions, charges, proxies and other encumbrances of any nature,
and has not appointed or granted any proxy, which appointment or grant is
still effective, with respect to any of such shares of Company Common Stock
owned by them.
2.2 Organization. Such Stockholder (if an entity) is duly organized,
validly existing, and in good standing under the laws of the state of its
incorporation, formation or organization.
2.3 Authority Relative to this Agreement. Such Stockholder has the legal
capacity (in the case of Stockholders that are natural persons), and all
necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by such
Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action on the part of such Stockholder (in the case of Stockholders that are
not natural persons). This Agreement has been duly and validly executed and
delivered by such Stockholder and, assuming the due authorization, execution
and delivery by Parent, constitutes a legal, valid and binding obligation of
such Stockholder, enforceable against such Stockholder in accordance with its
terms, (i) except as may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting or relating to enforcement of creditors' rights
generally, and (ii) subject to general principles of equity.
2.4 No Conflict. The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such
Stockholder will not, (a) require any consent, approval, authorization or
permit of, or filing with or notification to, any Governmental Authority or
any other Person by such Stockholder; (b) conflict with, or result in any
violation of, or default (with or without notice or lapse of time or both)
under any provision of, the certificate of incorporation, by-laws or analogous
documents of such Stockholder (other than Stockholders that are natural
persons) or any other agreement to which such Stockholder is a party,
including any voting agreement, stockholders agreement, voting trust, trust
agreement, pledge agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise
or license; or (c) conflict with or violate any judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable to such
Stockholder or to such Stockholder's property or assets.
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SECTION 3. Covenants of Stockholder.
3.1 Restriction on Transfer. Each Stockholder hereby covenants and agrees
that prior to the termination or expiration of this Agreement, except as
otherwise specifically contemplated by this Agreement and except for the
Company Stockholders Agreement, such Stockholder shall not, and shall not
offer or agree to, sell, transfer, tender, assign, hypothecate or otherwise
dispose of, grant any proxy to, deposit any Shares into a voting trust, enter
into a voting trust agreement or create or permit to exist any additional
security interest, lien, claim, pledge, option, right of first refusal,
agreement, limitation on voting rights, charge or other encumbrance of any
nature whatsoever with respect to the Shares, and except, in the case of the
Stockholders, for transfers of Shares to the Company pursuant to the Company's
repurchase right contained in the Company Stockholders Agreement.
3.2 Additional Shares. Prior to the termination of this Agreement, each
Stockholder will promptly notify Parent of the number of any new shares of
Company Common Stock or any other Company Securities acquired directly or
beneficially by such Stockholder, if any, after the date hereof. Any such
shares shall become "Shares" within the meaning of this Agreement.
3.3 Nonsolicitation. Prior to the termination of this Agreement, such
Stockholder shall not, and shall not authorize, instruct, or knowingly permit
any trustees, investment bankers, attorneys, accountants, consultants and
other agents, advisors or intermediaries (collectively, "Representatives") of
such Stockholder to, directly or indirectly, (i) solicit, encourage or
initiate or facilitate any inquiry, proposal or offer with respect to any
Acquisition Proposal or (ii) except as the Company may be permitted pursuant
to the Merger Agreement, engage in any negotiations or discussions concerning,
or furnish to any person any non-public information with respect to, or take
any other action knowingly to facilitate any inquiries or the making of any
proposal that constitutes or may be reasonably expected to lead to, any
Acquisition Proposal.
3.4 Notice. If any Person makes a proposal or inquiry or contacts any
Stockholder relating to the acquisition of beneficial ownership of any Shares,
such Stockholder will promptly notify Parent in writing of the identity of the
person and the material terms and conditions of such proposal, inquiry or
contact. Such Stockholder shall keep Parent reasonably apprised of any
material development with respect to such proposal. Such Stockholder shall,
and shall cause its Representatives to, cease immediately and cause to be
terminated all existing discussions or negotiations, if any with any persons,
conducted heretofore with respect to, or that could reasonably be expected to
lead to any Acquisition Proposal. Notwithstanding the foregoing, the terms of
this Section 3.4 shall be subject to Section 11.10 herein.
3.5 Appraisal Rights. Each Stockholder hereby irrevocably waives any
rights of appraisal, or rights to dissent from the Merger, that such
Stockholder may have, and agrees not to commence or participate in, and to
take all actions necessary to opt out of any class in any class action with
respect to, any claim, derivative or otherwise, against the Company or any of
its subsidiaries (or any of their respective successors) relating to the
negotiation, execution and delivery of this Agreement or the Merger Agreement
or the consummation of the Merger or any of the other transactions
contemplated hereby or thereby.
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SECTION 4. Voting Agreement; Proxy.
4.1 Voting Agreement. Each Stockholder hereby agrees that prior to the
termination of this Agreement, at any meeting of the stockholders of the
Company, however called, in any action by written consent of the stockholders
of the Company, or in any other circumstances upon which such Stockholder's
vote, consent or other approval is sought, such Stockholder shall vote the
Other Shares owned beneficially or of record by such Stockholder:
(a) in favor of adoption of the Merger Agreement and approval of the
terms thereof and of the Merger and each of the other transactions
contemplated thereby;
(b) against any action or agreement that Parent has provided such
Stockholder with advance written notice is or would be reasonably likely
to result in any conditions to the Company's obligations under the Merger
Agreement not being fulfilled or would result in or would reasonably be
likely to result in a breach of any representation, warranty, covenant or
agreement of the Company under the Merger Agreement;
(c) against any Acquisition Proposal;
(d) against any amendments to the certificate of incorporation or
by-laws of the Company; and
(e) against any other action or agreement that is intended, or would
reasonably be expected, to impede, interfere with, delay or postpone the
Merger or the transactions contemplated thereby or change in any manner
the voting rights of any class of stock of the Company.
Each Stockholder hereby agrees that prior to the termination of this
Agreement, at any Preliminary Vote (as defined in the Company Stockholders
Agreement) of the Stockholders pursuant to the terms of the Company
Stockholders Agreement, such Stockholder shall vote such Stockholder's Founder
Shares in the same manner required by Sections 4.1(a), (b), (c), (d) and (e)
above. Each Stockholder hereby further covenants and agrees to vote such
Stockholder's Founder Shares at any full meeting of the Company's
stockholders, in accordance with the results of the applicable Preliminary
Vote (as defined in the Company Stockholders Agreement) in accordance with
Article II of the Company Stockholders Agreement.
4.2 Grant of Proxy.
(a) Except as provided for in the Company Stockholders Agreement,
each Stockholder hereby irrevocably grants to and appoints, Parent and
each of its designees (the "Authorized Parties" and each an "Authorized
Party"), and each of them individually as such Stockholder's proxy and
attorney-in-fact (with full power of substitution) for and in the name,
place and stead of such Stockholder, to vote the Other Shares or execute
one or more written consents or approvals in respect of the Other Shares:
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(1) in favor of the Merger and the adoption of the Merger Agreement
and the approval of its terms;
(2) against any action or agreement that would result in a breach of
any representation, warranty, covenant, agreement or any other obligation
of the Company under the Merger;
(3) against any Acquisition Proposal;
(4) against any amendment to the certificate of incorporation or
by-laws of the Company; and
(5) against any other action or agreement that is intended, or would
reasonably be expected, to impede, interfere with, delay or postpone the
Merger or the transactions contemplated thereby or change in any manner
the voting rights of any class of stock of the Company.
In connection with any Preliminary Vote (as defined in the Company
Stockholders Agreement), each Stockholder hereby irrevocably grants to and
appoints, the Authorized Parties, and each of them individually as such
Stockholder's proxy and attorney-in-fact (with full power of substitution) for
and in the name, place and stead of such Stockholder, to vote the Founder
Shares or execute one or more written consents or approvals in respect of
Founder Shares in the same manner required by Sections 4.2(a)(1), (2), (3),
(4) and (5) above.
(b) Each Stockholder hereby ratifies and confirms that the
irrevocable proxy set forth in this Section 4.2 is given in connection
with the execution of the Merger Agreement and that such irrevocable
proxy is given to secure the performance of such Stockholder's duties in
accordance with this Agreement. Each Stockholder hereby further ratifies
and confirms that the irrevocable proxy granted hereby is coupled with an
interest and may under no circumstances be revoked, except as otherwise
provided in this Agreement. Such irrevocable proxy shall be valid until
termination of this Agreement.
4.3 Other Voting. Each Stockholder shall vote on all issues other than
those specified in this Section 4 that may come before a meeting of the
stockholders of the Company in its sole discretion, provided that such vote
does not contravene the provisions of this Section 4.
SECTION 5. Representations and Warranties of Parent. Parent hereby
represents and warrants to the Stockholders as follows:
5.1 Organization. Parent is duly organized, validly existing, and in good
standing under the laws of Delaware.
5.2 Authority Relative to this Agreement. Parent has all necessary power
and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this
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Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action on the part of Parent. This Agreement has been duly and validly
executed and delivered by Parent and, assuming the due authorization,
execution and delivery by the Stockholders, constitutes a legal, valid and
binding obligation of Parent, enforceable against Parent in accordance with
its terms, (i) except as may be limited by bankruptcy, insolvency, moratorium
or other similar laws affecting or relating to enforcement of creditors'
rights generally, and (ii) subject to general principles of equity.
5.3 No Conflict. The execution and delivery of this Agreement by Parent
does not, and the performance of this Agreement by Parent will not, (a)
require any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority or any other Person by Parent,
except for filings with the SEC of such reports under the Exchange Act as may
be required in connection with this Agreement and the transactions
contemplated by this Agreement; (b) conflict with, or result in any violation
of, or default (with or without notice or lapse of time or both) under any
provision of, the certificate of incorporation or by-laws of Parent or any
other agreement to which such Parent is a party; or (c) conflict with or
violate any judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to Parent or to Parent's property or assets.
SECTION 6. Further Assurances. Each Stockholder shall, at the reasonable
request of Parent from time to time, execute and deliver, or cause to be
executed and delivered, such additional or further consents, documents and
other instruments as Parent may request for the purpose of effectuating the
matters covered by this Agreement.
SECTION 7. Stop Transfer Order. In furtherance of this Agreement,
concurrently herewith each Stockholder shall and hereby does authorize Parent
to notify the Company's transfer agent that there is a stop transfer order
with respect to all Shares (and that this Agreement places limits on the
voting and transfer of the Shares). Each Stockholder further agrees to cause
the Company not to register the transfer of any certificate representing any
of the Shares unless such transfer is made in accordance with the terms of
this Agreement.
SECTION 8. Certain Events. Each Stockholder agrees that this Agreement
and the obligations hereunder shall attach to the Shares and shall be binding
on any Person to which legal or beneficial ownership of such Shares shall
pass, whether by operation of law or otherwise. In the event of any stock
split, stock dividend, merger, reorganization, recapitalization or other
change in the capital structure of the Company affecting the Company Common
Stock or other voting securities of the Company, the number of Shares shall be
deemed adjusted appropriately and this Agreement and the obligations hereunder
shall attach to any additional shares of Company Common Stock or other Company
Securities issued to or acquired by a Stockholder.
SECTION 9. No Termination or Closure of Trusts. Unless, in connection
herewith, the Shares held by any trust which are presently subject to the
terms of this Agreement are transferred upon termination to one or more
Stockholders and remain subject in all respects to the terms of this
Agreement, the Stockholders who are trustees shall not take any action to
terminate, close or liquidate any such trust and shall take all steps
necessary to maintain the
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existence thereof at least until the first to occur of (i) the Effective Time
of the Merger and (ii) the termination of the Merger Agreement in accordance
with its terms.
SECTION 10. Termination. This Agreement shall automatically terminate and
no party shall have any rights or obligations hereunder upon the first to
occur of (a) the Effective Time; (b) the termination of the Merger Agreement;
or (c) with respect to any Stockholder, any amendment to the Merger Agreement
that (i) is material and adverse to such Stockholder and (ii) is executed
subsequent to the date of this Agreement, provided that the provisions of
Section 11 hereof shall survive any such termination.
SECTION 11. Miscellaneous.
11.1 Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party
incurring such costs and expenses.
11.2 Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed
that the parties shall be entitled to specific performance of the terms
hereof, this being in addition to any other remedy to which they are entitled
at law or in equity. In addition and notwithstanding any prior agreement of
the parties to the contrary, each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of any court of the United States located
in the State of Delaware or of the Court of Chancery of the State of Delaware
in the event any dispute arises out of this Agreement or the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from
any such court and (c) agrees that it will not bring any action relating to
this Agreement or the transactions contemplated by this Agreement in any court
other than a court of the United States located in the State of Delaware or
the Court of Chancery of the State of Delaware.
11.3 Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
among such parties with respect to the subject matter hereof.
11.4 Assignment. Without the prior written consent of the other party to
this Agreement, no party may assign any rights or delegate any obligations
under this Agreement. Any such purported assignment or delegation made without
prior consent of the other party hereto shall be null and void.
11.5 Parties in Interest. This Agreement shall be binding upon, inure
solely to the benefit of, and be enforceable by, the parties hereto and their
successors and permitted assigns. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person not a party
hereto any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
11.6 Amendment. This Agreement may not be amended except by an instrument
in writing signed by the parties hereto.
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11.7 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 this Agreement 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 a mutually acceptable manner
in order that the terms of this Agreement remain as originally contemplated to
the fullest extent possible.
11.8 Several Obligations. Any representation, warranty, covenant or
agreement made by a Stockholder herein shall be deemed to be joint and several
with such Stockholder's Family Affiliates or Principal, as applicable. Each
Stockholder shall cause such Stockholder's Family Affiliates or Principal, as
applicable, to comply with the provisions of this Agreement. Notwithstanding
anything to the contrary, the representations, warranties, covenants and
agreements of a Stockholder shall be several and not joint with respect to
other Stockholders who are not Family Affiliates or the Principal of such
Stockholder. Without limiting the generality of the foregoing, under no
circumstances shall any Stockholder have any liability or obligation with
respect to any misrepresentation or breach of any covenant, duty or obligation
of any other Stockholder, other than a Stockholder in respect of its
affiliated Family Affiliates and/or Principal, as applicable. As used herein,
the terms "Principal" and "Family Affiliates" have the meanings given to them
in the Company Stockholders Agreement.
11.9 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly given (a) on the date of delivery if
delivered personally, or by facsimile, upon confirmation of receipt, (b) on
the first Business Day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the fifth Business Day
following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. 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 (or at such other
address for a party as shall be specified in a notice given in accordance with
this Section 11.9):
if to Parent:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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Attention: Xxxx X. Xxxxxx, Esq.
Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Stockholders, at their respective addresses set forth on
Schedule A hereto (or at such other address for a party as shall be specified
by like notice).
11.10 Stockholder Capacity. No person executing this Agreement who is, or
becomes during the term of this Agreement, a director or officer of the
Company makes (or shall be deemed to have made) any agreement or understanding
in this Agreement, including, without limitation, Sections 3.3 and 3.4, in his
or her capacity as such director or officer. Without limiting the generality
of the foregoing, each Stockholder signs this Agreement solely in his or her
capacity as the beneficial owner of such Stockholder's Shares and nothing in
this Agreement, including, without limitation, Sections 3.3 and 3.4, shall
prevent or in any way limit such Stockholder from taking any action in his or
her capacity as a director or officer of the Company. Notwithstanding the
foregoing, nothing in this Section 11.10 shall prevent any Stockholder from
performing his, her or its obligations under Sections 4.1 or 4.2.
11.11 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws
thereof.
11.12 Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.13 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
[Rest of page intentionally blank.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be duly executed and delivered as of the date first written above.
XXXXXX BROTHERS HOLDINGS INC.
/s/ Xxxxxxx X. Xxxx, Xx.
_____________________________________________
By: Xxxxxxx X. Xxxx, Xx.
Title: Chairman and Chief Executive Officer
STOCKHOLDERS
/s/ Xxxxxxx X. Xxxx
_____________________________________________
Xxxxxxx X. Xxxx
/s/ Xxxxxx Xxxxx
_____________________________________________
Xxxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxxxx
_____________________________________________
Xxxxxx X. Xxxxxxxx
XXXXXXXX XX ASSOCIATES, L.P.
By: Xxxxxxxx XX Associates, Inc., its
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
_________________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Officer
XXXXXXXX XX ASSOCIATES, L.P.
By: Xxxxxxxx XX Associates, Inc., its
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
_________________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Officer
/s/ Xxxxx X. Xxxxxxx
_____________________________________________
Xxxxx X. Xxxxxxx
XXXXXXX ASSOCIATES, L.P.
By: Xxxxxxx Associates, Inc., its General
Partner
By: /s/ Xxxxx X. Xxxxxxx
_________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Authorized Officer
/s/ Xxxxx X. Xxxxxxx
_____________________________________________
Xxxxx X. Xxxxxxx
XXXXXXX ASSOCIATES, L.P.
By: Xxxxxxx Associates, Inc., its General
Partner
/s/ Xxxxx X. Xxxxxxx
By: _________________________________________
Name: Xxxxx X. Sundmann
Title: Authorized Officer
/s/ Xxxxxxxx Xxxxxxx
_____________________________________________
Xxxxxxxx Xxxxxxx
ZICKLIN ASSOCIATES, L.P.
By: Zicklin Associates, Inc., its General
Partner
By: /s/ Xxxxxxxx Xxxxxxx
__________________________________________
Name: Xxxxxxxx Xxxxxxx
Title: Authorized Officer
SCHEDULE A
Name and Address Number of Founder Number of Other Total Number of
of Founder Stockholder Shares Owned Shares Owned Votes
--------------------------- ---------------------------- ------------------------ ------------------------
Xxxxxxx X. Xxxx
c/o Neuberger Xxxxxx Inc. 522,704 251,992 774,696
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxx
c/x Xxxxxxxxx Xxxxxx Inc.
000 Xxxxx Xxxxxx 313,426 208,346 521,772
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxxx
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 1,230,786(1) -0- 1,230,786
Xxx Xxxx, XX 00000
Xxxxxxxx XX Associates, L.P.
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 2,146,888 -0- 2,146,888
Xxx Xxxx, XX 00000
Xxxxxxxx XX Associates, L.P.
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 2,146,889 -0- 2,146,889
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxxx
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 509,102(2) 94,455 603,557
Xxx Xxxx, XX 00000
Xxxxxxx Associates, L.P.
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 85,626 10,000 95,626
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxxx
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 126,221(3) 145,692 271,913
Xxx Xxxx, XX 00000
Xxxxxxx Associates, L.P.
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 190,436 2,000 192,436
Xxx Xxxx, XX 00000
Xxxxxxxx Xxxxxxx
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 1,177,736(4) 1,857 1,179,593
Xxx Xxxx, XX 00000
Zicklin Associates, L.P.
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 372,855(5) -0- 372,855
Xxx Xxxx, XX 00000
1 Excludes 2,146,888 Shares owned by Xxxxxxxx XX Associates, L.P. and
2,146,889 Shares owned by Xxxxxxxx XX Associates, L.P., in each case,
with respect to which Xx. Xxxxxxxx has sole voting and investment control
as sole stockholder of their respective general partner.
2 Excludes 95,626 Shares owned by Xxxxxxx Associates, L.P. with respect to
which Xx. Xxxxxxx has sole voting and investment control as sole
stockholder of its general partner.
3 Excludes 192,436 Shares owned by Xxxxxxx Associates, L.P. with respect to
which Xx. Xxxxxxx has sole voting and investment control as sole
stockholder of its general partner.
4 Excludes 372,855 Shares owned by Zicklin Associates, L.P. with respect to
which Xx. Xxxxxxx has sole voting and investment control as sole
stockholder of its general partner. These Shares are subject to the
transfer restrictions contained in the Company Stockholders Agreement but
are not subject to the voting requirements.
5 These Shares are subject to the transfer restrictions contained in the
Company Stockholders Agreement but are not subject to the voting
requirements.
