TENDER AGREEMENT
TENDER AGREEMENT (this "Agreement"), dated as of December 3,
1998, among L-3 Communications Corporation, a Delaware corporation ("Parent"),
and Xxxxxx X. Xxxxxxxxxx, Successor Trust to Xxxxxx X. Xxxxxxxxxx Grantor
Retained Annuity Trust #1 ("Trust #1"), Xxxxxx X. Xxxxxxxxxx Grantor Retained
Annuity Trust #2 ("Trust #2"), Xxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxxxx, and Xxxx
Xxxxxxx as agent for Xxxxx Xxxxxx and Gallerie Nissl (collectively, the
"Stockholders").
RECITALS
Concurrently herewith, Parent, X-X Acquisition Corporation, a
Maryland corporation and a wholly-owned subsidiary of Parent ("Sub"), and
Microdyne Corporation, a Maryland corporation (the "Company"), are entering
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement), pursuant to which Sub agrees to
make an offer (the "Offer") for all outstanding shares of Common Stock, par
value $0.10 per share (the "Common Stock"), of the Company, at a price of $5.00
per share (the "Offer Price"), net in cash, to be followed by a merger (the
"Merger") of Sub with and into the Company.
As a condition to their willingness to enter into the Merger
Agreement and make the Offer, Parent and Sub have required that the
Stockholders agree, and the Stockholders have agreed, among other things, to
tender the number of shares of Common Stock of each Stockholder set forth on
Annex A hereto, together with any additional shares when and if they are
acquired (such shares, and any additional shares when and if they are acquired,
being referred to herein as the "Shares") pursuant to the Offer and not
withdraw any Shares therefrom on the terms and conditions provided for herein.
The Board of Directors of the Company has exempted this
Agreement, the Merger Agreement and the transactions contemplated hereby and
thereby so as to render inapplicable Section 3-602 of the Maryland General
Corporation Law ("MGCL") to the transactions contemplated hereby and thereby.
The Board of Directors of the Company has amended the By-laws of the Company so
as to render inapplicable Section 3-702(a)(i) of the MGCL to the transactions
contemplated by this Agreement and the Merger Agreement.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. Agreement to Tender. The Stockholders hereby agree to
validly tender all of their Shares pursuant to the Offer and not withdraw any
Shares therefrom; provided that the Merger Agreement has not been terminated;
and provided further that the Stockholders are entitled to receive the same
consideration to be received by the other stockholders of the Company in the
Offer.
2. Voting of Shares. Each Stockholder hereby agrees, so long
as such Stockholder is required to tender his or its Shares pursuant to Section
1 of this Agreement, to (a) vote the Shares in favor of the approval of the
Merger Agreement; (b) vote the Shares against any action or agreement that
would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement; and (c) vote the Shares against any action or
agreement (other than the Merger Agreement or the transactions contemplated
thereby) that would impede, interfere with, delay, postpone or attempt to
discourage the Merger or the Offer. Each Stockholder shall not hereafter, so
long as such Stockholder is required to tender his or its Shares pursuant to
Section 1 of this Agreement, purport to vote (or execute a consent with respect
to) such Shares (other than in accordance with the requirements of this Section
2) or grant any other proxy or power of attorney with respect to any Shares,
deposit any Shares into a voting trust or enter into any agreement (other than
this Agreement), arrangement or understanding with any person, directly or
indirectly, to vote, grant any proxy or give instructions with respect to the
voting of such Shares.
3. Representations and Warranties.
3.1 Representations and Warranties of Parent. Parent hereby
represents and warrants to the Stockholders as follows:
(a) Due Authorization. The execution and delivery of
this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the Board of Directors
of Parent, and no other corporate proceedings on the part of Parent
are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by Parent and constitutes a valid and
binding agreement of Parent, enforceable against Parent in accordance
with its terms, except that such enforceability (i) may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or
relating to enforcement of creditors' rights generally and (ii) is
subject to general principles of equity.
(b) No Conflicts. Except for (i) filings under the
HSR Act, if applicable, (ii) the applicable requirements of the
Exchange Act and the Securities Act, (iii) the applicable requirements
of state securities, takeover or Blue Sky laws, (iv) such
notifications, filings, authorizing actions, orders and approvals as
may be required under other laws and (v) the consent of the Required
Lenders under the Credit Agreement and the 364 Day Credit Agreement to
the transactions contemplated hereby, (A) no filing with, and no
permit, authorization, consent or approval of, any state, federal or
foreign public body or authority is necessary for the execution of
this Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby and (B) neither the execution and
delivery of this Agreement by Parent nor the consummation by Parent of
the transactions contemplated hereby nor compliance by Parent with any
of the provisions hereof shall (1) conflict with or result in any
breach of any provision of the certificate of incorporation or by-laws
(or similar documents) of Parent, (2) result in a violation or breach
of, or constitute (with or without notice or lapse of time or both) a
default (or give
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rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
agreement or other instrument or obligation to which Parent is a party
or by which it or any of its properties or assets may be bound or (3)
violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Parent or any of its properties or assets,
except in the case of (2) or (3) for violations, breaches or defaults
which would not in the aggregate materially impair the ability of
Parent to perform its obligations hereunder.
(c) Good Standing. Parent is a corporation duly
organized, validly existing and in good standing under the laws of
Delaware and has all requisite corporate power and authority to
execute and deliver this Agreement.
3.2 Representations and Warranties of Stockholders. Each
Stockholder, jointly and severally, hereby represents and warrants to Parent as
follows:
(a) Ownership of Shares. Each Stockholder is the
owner (or, in the case of Xxxx Xxxxxxx only, the authorized
representative of the owner) of the Shares set forth opposite its name
on Annex A hereto and has the power to vote and dispose of such
Shares. To each Stockholder's knowledge, such Shares are validly
issued, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof. Each Stockholder has good title to
the Shares, free and clear of any agreements, liens, adverse claims or
encumbrances whatsoever with respect to the ownership of or the right
to vote such Shares, except that 70,000 Shares owned by Xxxxxx X.
Xxxxxxxxxx are pledged to Xxxxx & Xxxxxxx Bank as security for certain
outstanding loans.
(b) Power; Binding Agreement. Each Stockholder has
the legal capacity, power and authority to enter into and perform all
of its obligations under this Agreement. The execution, delivery and
performance of this Agreement by each Stockholder will not violate any
other agreement to which any Stockholder is a party including, without
limitation, any voting agreement, stockholders agreement or voting
trust or, in the cases of Trust #1 and Trust #2, the constitutive
documents of such trust. This Agreement has been duly and validly
authorized, executed and delivered by each Stockholder and constitutes
a valid and binding agreement of each Stockholder, enforceable against
each Stockholder in accordance with its terms, except that such
enforceability (i) may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to enforcement
of creditors' rights generally and (ii) is subject to general
principles of equity.
(c) No Conflicts. Except for (i) filings under the
HSR Act, if applicable, (ii) the applicable requirements of the
Exchange Act and the Securities Act, (iii) the applicable requirements
of state securities, takeover or Blue Sky laws and (iv)
such notifications, filings, authorizing actions, orders and approvals
as may be required under other laws, (A) no filing with, and no
permit, authorization, consent or approval of, any state, federal or
foreign public body or authority is necessary for the execution of
this Agreement by each Stockholder and the consummation by each
Stockholder of the
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transactions contemplated hereby and (B) neither the execution and
delivery of this Agreement by the Stockholders nor the consummation by
the Stockholders of the transactions contemplated hereby nor
compliance by the Stockholders with any of the provisions hereof shall
(1) conflict with or result in any breach of any provision of the
certificate of incorporation, by-laws, trust or charitable instruments
(or similar documents) of any Stockholder, (2) result in a violation
or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, contract, agreement or other instrument
or obligation to which any Stockholder is a party or by which they or
any of their properties or assets may be bound or (3) violate any
order, writ, injunction, decree, statute, rule or regulation
applicable to any Stockholder or any of his or its properties or
assets, except in the case of (2) or (3) for violations, breaches or
defaults which would not in the aggregate materially impair the
ability of the Stockholders to perform their obligations hereunder.
4. Certain Covenants of Stockholder. Each Stockholder hereby
covenants and agrees as follows:
4.1 No Solicitation. No Stockholder nor any employee,
representative or agent of any Stockholder shall, directly or indirectly,
encourage, solicit, participate in or initiate discussions or negotiations
with, or provide any information to, any corporation, partnership, person or
other entity or group (other than Parent and Sub, any affiliate or associate of
Parent and Sub or any designees of Parent or Sub) concerning any merger, sale
of all or any material portion of the assets, sale of shares of capital stock
or similar transactions (including an exchange of stock or assets) involving
the Company or any subsidiary or division of the Company; provided, however,
that nothing in this Section 4.1 shall prevent Xxxxxx X. Xxxxxxxxxx from taking
any action required to be taken by him in his capacity as a director consistent
with the requirements of the Merger Agreement. If any Stockholder, or any
employee, representative or agent of any Stockholder, receives an inquiry or
proposal with respect to the sale of Shares, then such Stockholder shall
promptly inform Parent of the terms and conditions, if any, of such inquiry or
proposal and the identity of the person making it. Each Stockholder shall, and
shall cause his or its employees, representatives and agents to, immediately
cease and cause to be terminated any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any of the
foregoing.
4.2 Topping Fee. (a) In the event that any Topping Fee Event
shall occur, each Stockholder shall pay to Parent any Topping Fee due to Parent
with respect to his or its Shares in connection with such Topping Fee Event.
Payment of Topping Fees to Parent shall be due immediately following the
consummation of the related Topping Fee Event and shall be payable in
immediately available funds by wire transfer to the account designated in
writing by Parent; provided that if the Selling Price is payable in a form
other than cash ("Non-Cash Consideration") and the Stockholders are legally
prohibited from selling the Non-Cash Consideration into the market, the
Stockholders, at their option, may pay a pro rata portion of the Topping Fee in
the same form of consideration as the Non-Cash Consideration so long as Parent
is granted registration rights with respect to the Non-Cash Consideration on
terms no less
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favorable than the registration rights, if any, granted to any of the
Stockholders. For the avoidance of doubt, Topping Fees shall be payable, from
time to time, upon the occurrence of each Topping Fee Event.
(b) For purposes of this Section 4.2, the following
terms shall have the following meanings:
"Initial Amount" shall equal $0.50, as adjusted from time to
time in accordance with Section 6.
"Selling Price" shall mean the consideration per share
(whether cash or non-cash) to be received by any Stockholder in connection with
a Topping Fee Event; provided that if the consideration received by such
Stockholder in connection with a Topping Fee Event shall be other than cash,
(i) in the case of securities listed on a national securities exchange or
traded on the NASDAQ National Market ("NASDAQ"), the per share value of such
consideration shall be equal to the closing price per share listed on such
national securities exchange or NASDAQ on the date the Topping Fee Event is
consummated and (ii) in the case of consideration in a form other than such
securities, the per share value shall be determined in good faith as of the
date the Topping Fee Event is consummated by Parent and the Stockholders, or,
if Parent and the Stockholders cannot reach agreement, by a nationally
recognized investment banking firm reasonably acceptable to the parties, which
determination shall be conclusive for all purposes of this Agreement.
"Set Amount" shall equal $5.50, as adjusted from time to time
in accordance with Section 6.
"Topping Fee" shall mean a fee payable by a Stockholder to
Parent equal to the product of (i) the number of Shares directly or indirectly
sold or disposed by such Stockholder or otherwise in respect of which such
Stockholder is entitled to receive consideration and (ii) (A) if the Selling
Price is less than or equal to the Set Amount, the Selling Price less the Offer
Price or (B) if the Selling Price is greater than the Set Amount, the sum of
(1) the Initial Amount plus (2) 50% of the excess of the Selling Price less the
Set Amount.
"Topping Fee Event" shall mean (a) the direct or indirect
sale or other disposition by any Stockholder of his or its Shares, (b) a merger
or consolidation of the Company or any of its subsidiaries (or similar
transaction) with or into another person, (c) a sale or other disposition of
all or substantially all of the assets of the Company and/or its subsidiaries
(whether in one or more transactions) or (d) any other extraordinary
transaction involving the Company or any of its subsidiaries or any of their
respective assets, in each case, in which any Stockholder is entitled to
receive, cash or non-cash consideration with respect to any of his or its
Shares, provided that such sale, other disposition, merger, consolidation or
other extraordinary transaction is consummated (or a definitive written
agreement with respect thereto is entered into) within twelve (12) months after
any Fee Termination Event pursuant to the Merger Agreement; provided further
that any of the transactions described in clauses (a) - (d) above that involve
Parent or any of its subsidiaries shall not be deemed to constitute a Topping
Fee Event.
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4.3 Restriction on Transfer and NonInterference. Each
Stockholder hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to (a) sell, transfer, pledge (provided that, subject
to the requirements of this Agreement, 160,000 Shares owned by Xxxxxx X.
Xxxxxxxxxx may be pledged to Xxxxx & Xxxxxxx Bank and Chevy Chase Bank),
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale, transfer, pledge,
encumbrance, assignment or other disposition of, any Shares; provided that any
Stockholder may transfer Shares to any other Stockholder (other than Xxxx
Xxxxxxx as agent for Xxxxx Xxxxxx and Gallerie Nissl); provided further that as
a condition to such transfer, such other Stockholder agrees in writing on terms
reasonably acceptable to Parent to become a party to, and agrees to be bound
by, to the same extent as the transferring Stockholder, the terms of this
Agreement or (b) take any action that would make any representation or warranty
of such Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling such Stockholder from performing or its obligations
under this Agreement.
4.4 Legending of Certificates; Nominees Shares. If requested
by Parent, the Stockholders agree to submit to Parent contemporaneously with or
promptly following execution of this Agreement all certificates representing
their Shares so that Parent may note thereon a legend referring to the rights
granted to it by this Agreement, including, without limitation, the right to
receive Topping Fees pursuant to Section 4.2. If any of the Shares beneficially
owned by the Stockholders are held of record by a brokerage firm in "street
name" or in the name of any other nominee (a "Nominee," and, as to such Shares,
"Nominee Shares"), the Stockholders agree that, upon written notice by Parent
requesting it, the Stockholders will within five days of the giving of such
notice execute and deliver to Parent a limited power of attorney in such form
as shall be reasonably satisfactory to Parent enabling Parent to require the
Nominee to (i) enter into an agreement to the same effect as Section 2 hereof
with respect to the Nominee Shares held by such Nominee, (ii) tender such
Nominee Shares in the Offer pursuant to Section 1 hereof and (iii) submit to
Parent the certificates representing such Nominee Shares for notation of the
above-referenced legend thereon.
4.5 Stop Transfer Order. In furtherance of this Agreement,
concurrently herewith, the Stockholders shall and hereby do authorize the
Company's counsel to notify the Company's transfer agent that, except as
permitted pursuant to Section 4.3 of this Agreement, there is a stop transfer
order with respect to all of the Shares (and that this Agreement places limits
on the transfer of such Shares).
4.6 Prohibited Transfers. No Stockholder may sell, transfer,
hypothecate or otherwise dispose of any Shares to any affiliate or associate of
such Stockholder or in a transaction at less than fair value unless the
transferee of such Shares agrees in writing to become a party to, and to be
bound by, to the same extent as the Stockholders, the terms of this Agreement.
5. Further Assurances. From time to time, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further action
as may be necessary or desirable to consummate the transactions contemplated by
this Agreement.
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6. Adjustments to Prevent Dilution. In the event of a stock
dividend or distribution, or any change in the Company's Common Stock by reason
of any stock dividend, split-up, reclassification, recapitalization,
combination or the exchange of shares, the term "Shares" shall be deemed to
refer to and include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Shares
may be changed or exchanged. In such event, the definitions of "Set Amount" and
"Initial Amount" shall be proportionally adjusted.
7. Miscellaneous.
7.1 Entire Agreement; Assignment. This Agreement (i)
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings,
both written and oral, between the parties with respect to the subject matter
hereof and (ii) shall not be assigned by operation of law or otherwise,
provided that Parent may assign its rights and obligations hereunder to any
direct or indirect wholly owned parent company or subsidiary of Parent, but no
such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
7.2 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
7.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram,
telex or telecopy, or by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered to
the respective parties at the following addresses:
If to the Stockholders: Xxxxxx X. Xxxxxxxxxx
000 Xxxxx Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
copy to: Powell, Goldstein, Xxxxxx & Xxxxxx
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxx 000 Xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx Xxxx, Esq.
If to Parent: L-3 Communications Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
7.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
7.5 Cooperation as to Regulatory Matters. If so requested by
Parent, promptly after the date hereof, the Stockholders will use their
reasonable best efforts to make and to cause the Company (if required) to make
all filings which are required under the HSR Act and applicable requirements
and to seek all regulatory approvals required in connection with the
transactions contemplated hereby. The parties shall furnish to each other such
necessary information and reasonable assistance as may be requested in
connection with the preparation of filings and submissions to any governmental
agency, including, without limitation, filings under the provisions of the HSR
Act. The Stockholders shall also use their reasonable best efforts to cause the
Company to supply Parent with copies of all correspondence, filings or
communications (or memoranda setting forth the substance thereof) between the
Company and its representatives and the Federal Trade Commission, the
Department of Justice and any other governmental agency or authority and
members of their respective staffs with respect to this Agreement and the
transactions contemplated hereby.
7.6 Termination. This Agreement shall terminate on the
earlier of (i) the Effective Time or (ii) except for the provisions of Section
4.2, Section 4.4, Section 4.6, Section 6 and Section 7, the termination of the
Merger Agreement in accordance with its terms.
7.7 Waiver of Dissenter's and Appraisal Rights. The
Stockholders agree that they will not exercise any rights to dissent from the
Merger or request appraisal rights of their Shares pursuant to Section 3-202 of
the MGCL or any other similar provisions of law in connection with the
transactions contemplated hereby.
7.8 Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore, each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or
in equity.
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7.9 Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which shall be deemed to be an
original, and all of which shall constitute one and the same agreement.
7.10 Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
7.11 Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision
had never been contained herein.
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IN WITNESS WHEREOF, this Agreement has been executed by or on
behalf of each of the parties hereto, all as of the date first above written.
L-3 COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX X. XXXXXXXXXX
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
SUCCESSOR TRUST TO
XXXXXX X. XXXXXXXXXX
GRANTOR RETAINED ANNUITY TRUST #1
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Trustee
XXXXXX X. XXXXXXXXXX
GRANTOR RETAINED ANNUITY TRUST #2
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
XXXXX XXXXXX
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
XXXXXXXXX XXXXXXXXXX
By: /s/ Xxxxxxxxx Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
XXXX XXXXXXX, as agent for Xxxxx Xxxxxx
and Gallerie Nissl
By: /s/ Xxxx Xxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxx
Title: Agent
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ANNEX A
Number of Shares
Name of Common Stock
---- ----------------
Xxxxxx X. Xxxxxxxxxx 4,380,487
Successor Trust to Xxxxxx X. Xxxxxxxxxx
Grantor Retained Annuity Trust #1 209,847
Xxxxxx X. Xxxxxxxxxx Grantor Retained
Annuity Trust #2 621,400
Xxxxx Xxxxxx 19,300
Xxxxxxxxx Xxxxxxxxxx 23,541
Xxxx Xxxxxxx, as agent for
Xxxxx Xxxxxx
and Gallerie Nissl 500,000
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