Exhibit 4.2
TENDER AND SUPPORT AGREEMENT
This TENDER AND SUPPORT AGREEMENT (this "AGREEMENT"), is dated as of
August 8, 2008, by and between KI NutriCare, Inc., a New York corporation (the
"PARENT"), and (the stockholders listed on the signature pages hereto (each a
"STOCKHOLDER" and collectively, the "STOCKHOLDERS").
W I T N E S S E T H:
WHEREAS, Parent, Longhorn Acquisition Corp., a Florida corporation and
wholly-owned subsidiary of Parent (the "MERGER SUB"), and Allergy Research
Group, Inc., a Florida corporation (the "COMPANY"), are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as it may be amended
from time to time in accordance with its terms, the "MERGER AGREEMENT"),
providing for, among other things, Merger Sub to commence a cash tender offer
(the "OFFER") to acquire all of the outstanding shares of common stock, par
value $0.001 per share, of the Company (the "COMPANY COMMON STOCK") followed by
the subsequent merger of Merger Sub with and into the Company with the Company
surviving the merger as a wholly owned subsidiary of Parent, in each case, on
the terms and subject to the conditions set forth therein (capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to such
terms in the Merger Agreement); and
WHEREAS, as of the date hereof, each Stockholder is the beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of the number of issued shares of Company Common Stock set forth on
ATTACHMENT A hereto (the "OWNED SHARES"); and
WHEREAS, as a condition to Parent and Merger Sub's willingness to enter
into and perform its obligations under the Merger Agreement, Parent and Merger
Sub have required that each Stockholder agree, and each Stockholder (only in the
Stockholder's capacity as a Stockholder of the Company) has agreed, to tender in
the Offer (and not withdraw) all of each Stockholder's Owned Shares as well as
any shares of Company Common Stock acquired by each Stockholder after the
execution of this Agreement (all of which, after so acquired, shall constitute
"OWNED Shares"); and
WHEREAS, each Stockholder desires to express its support for the Merger
Agreement and the transactions contemplated thereby, including the Offer, by
executing this Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. AGREEMENT TO TENDER AND VOTE; IRREVOCABLE PROXY.
1.1 AGREEMENT TO TENDER. Each Stockholder hereby agrees that
promptly after the commencement of the Offer, but in any event no later than
5:00 p.m. New York time on the day that is ten Business Days before the
initially scheduled expiration of the Offer, such Stockholder shall tender into
the Offer all of such Stockholder's Owned Shares. Each Stockholder shall not
withdraw any of the Stockholder's Owned Shares previously tendered during the
time this Agreement is in effect.
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1.2 AGREEMENT TO VOTE. Each Stockholder hereby agrees that,
during the time this Agreement is in effect, at any meeting of the stockholders
of the Company, however called, or any adjournment or postponement thereof, each
Stockholder shall be present (in person or by proxy) and vote (or cause to be
voted) all of its Owned Shares (a) in favor of the adoption of the Merger
Agreement and the transactions contemplated thereby, and (b) against any
alternative Takeover Proposal or any other action that is intended to, or could
reasonably be expected to, impede, interfere with, delay, postpone, discourage
or adversely affect the Offer, the Merger or any other transactions contemplated
by the Merger Agreement. In the event that any meeting of the stockholders of
the Company is held, such Stockholder shall, or shall cause the holder of record
on any applicable record date to, appear at such meeting or otherwise cause
their Owned Shares (to the extent that any of such Stockholder's Owned Shares
are not purchased in the Offer) to be counted as present thereat for purposes of
establishing a quorum. Each Stockholder agrees not to execute any appraisal
rights (including without limitation under Section 607.1301 of the Florida
Business Corporation Act ("FBCA")) in respect of Owned Shares.
1.3 IRREVOCABLE PROXY. Solely with respect to the matters
described in Section 1.2, for so long as this Agreement is in effect, such
Stockholder hereby irrevocably appoints Parent (or any nominee of Parent) as its
attorney and proxy with full power of substitution and resubstitution, to the
full extent of such Stockholder's voting rights with respect to such
Stockholder's Owned Shares (which proxy is irrevocable and which appointment is
coupled with an interest, including for purposes of Section 607.0722 of the
FBCA) to vote all such Stockholder's Owned Shares solely on the matters
described in Section 1.2, and in accordance therewith. Each Stockholder hereby
revokes any proxies previously granted that would otherwise conflict with the
proxy contemplated pursuant to this Section 1.3 and agrees to execute any
further agreement or form reasonably necessary or appropriate to confirm and
effectuate the grant of the proxy contained herein. Such proxy shall
automatically terminate upon the valid termination of this Agreement in
accordance with Section 4.1.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. Each Stockholder
hereby represents and warrants to Parent as follows:
2.1 POWER; DUE AUTHORIZATION; BINDING AGREEMENT. Such
Stockholder has full legal capacity, power and authority to execute and deliver
this Agreement, to perform his, her or its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by such Stockholder and constitutes a valid
and binding agreement of such Stockholder, enforceable against such Stockholder
in accordance with its terms, except to the extent that enforceability may be
subject to the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting or relating to the enforcement of
creditors rights generally and to general principles of equity.
2.2 OWNERSHIP OF SHARES. On the date hereof, the Owned Shares
set forth opposite such Stockholder's name on ATTACHMENT A hereto are owned of
record or beneficially by such Stockholder in the manner reflected thereon and
include all of the Owned Shares owned of record or beneficially by such
Stockholder. The Owned Shares are owned free and clear of any pledge, lien,
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security interest, mortgage, charge, claim, equity, option, proxy, voting
restriction, voting trust or agreement, irrevocable proxy, understanding,
arrangement, right of first refusal, limitation on disposition, adverse claim of
ownership or use or encumbrance of any kind.
2.3 ABSENCE OF LITIGATION. With respect to the Stockholder, as
of the date hereof, there is no action, suit, investigation or proceeding
pending against, or, to the knowledge of the Stockholder, threatened against or
affecting, the Stockholder or any of its properties or assets (including such
Subject Shares) that could reasonably be expected to impair the ability of the
Stockholder to perform its obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
2.4 NO CONFLICTS. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of the terms of this Agreement
by the Stockholder will not, (a) require such Stockholder to obtain the consent
or approval of, or make any filing with or notification to, any Governmental
Authority, (b) require the consent or approval of any other Person pursuant to
any agreement, obligation or instrument binding on such Stockholder or his, her
or its properties and assets or (c) conflict with or violate any organizational
document or law, rule, regulation, order, judgment or decree applicable to such
Stockholder or pursuant to which any of his, her or its properties or assets are
bound.
2.5 NO CONSENTS. No consent, approval, order, authorization or
permit of, or registration, declaration or filing with or notification to, any
Governmental Authority or any other Person is required by or with respect to the
Stockholder in connection with the execution and delivery of this Agreement by
the Stockholder or the performance by the Stockholder of the Stockholder's
obligations hereunder, except for the filing with the SEC of any Schedules 13D
or 13G or amendments to Schedules 13D or 13G and filings under Section 16 of the
Exchange Act as may be required in connection with this Agreement and the
transactions contemplated hereby.
2.6 OPPORTUNITY TO REVIEW; RELIANCE. The Stockholder has had
the opportunity to review this Agreement and the Merger Agreement with counsel
of its own choosing. The Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the Stockholder's execution,
delivery and performance of this Agreement.
3. CERTAIN COVENANTS OF THE STOCKHOLDERS. Each Stockholder hereby
covenants and agrees with Parent as follows:
3.1 RESTRICTION ON TRANSFER. Each Stockholder hereby agrees,
while this Agreement is in effect, at any time prior to the Acceptance Time, and
otherwise as is contemplated by the Merger Agreement or the Offer, not to, other
than as may be specifically required by a court order, (a) assign or otherwise
dispose of (including, without limitation, by gift, merger, consolidation or
reorganization), or enter into any contract, option or other agreement providing
for the sale, transfer, pledge, encumbrance, assignment or other disposition of,
or limitation on the voting rights of, any of the Owned Shares (any such action,
a "TRANSFER") or (b) grant any proxies or powers of attorney, deposit any Owned
Shares into a voting trust or enter into a voting agreement with respect to any
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Owned Shares. The foregoing restrictions on Transfer shall not prohibit the
exercise by such Stockholder of any options to purchase Owned Shares and shall
not prohibit any Transfers for estate planning or charitable purposes provided
the transferee and such Stockholder expressly agree to be bound by the
provisions of this Agreement with respect to such transferred Owned Shares in a
written instrument reasonably satisfactory to Parent. If any involuntary
Transfer of any of the Owned Shares shall occur (including, but not limited to,
a sale by a Stockholder's trustee in any bankruptcy, or a sale to a purchaser at
any creditor's or court sale or any sale or transfer by operation of law,
including, without limitation, by will or intestacy), the transferee (which
term, as used herein, shall include any and all transferees and subsequent
transferees of the initial transferee) shall take and hold such Owned Shares
subject to all of the restrictions, liabilities and rights under this Agreement,
which shall continue in full force and effect until valid termination of this
Agreement.
3.2 ADDITIONAL SHARES. Each Stockholder hereby agrees, while
this Agreement is in effect, that any shares of Company Common Stock acquired by
such Stockholder after the date hereof shall be subject to the terms of this
Agreement as though owned by such Stockholder on the date hereof. At all times
prior to the termination of this Agreement, Stockholder shall promptly notify
Parent of the number of any additional Shares and the number and type of any
other voting securities of the Company acquired by Stockholder, if any, after
the date hereof.
3.3 NO LIMITATIONS ON ACTIONS. Each Stockholder signs this
Agreement solely in his or her capacity as the owner of the Owned Shares; this
Agreement shall not limit or otherwise affect the actions of the Stockholder or
any affiliate, employee or designee of such Stockholder or any of his or her
affiliates in any other capacity, including such person's capacity, if any, as
an officer of the Company or a member of the board of directors of the Company;
and nothing herein shall limit or affect the Company's rights in connection with
the Merger Agreement.
3.4 FURTHER ASSURANCES. The Stockholder will, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further transfers, assignments, endorsements, consents and other
instruments as Parent or Merger Sub may reasonably request for the purpose of
effectively carrying out the transactions contemplated by this Agreement and to
vest the power to vote the Owned Shares as contemplated by this Agreement.
4. TERMINATION.
4.1 TERMINATION OF THIS AGREEMENT. This Agreement shall
terminate upon the first to occur of (i) the termination of the Merger Agreement
in accordance with its terms, (ii) any amendment to the Merger Agreement or the
Offer effected without such Stockholder's consent that decreases the Offer Price
or materially and adversely affects such Stockholder and (iii) the Acceptance
Time.
4.2 EFFECT OF TERMINATION. In the event of a termination of
this Agreement pursuant to Section 4.1, this Agreement shall become void and of
no effect with no liability on the part of any party hereto; provided, however,
that the provisions of Section 4 and Section 5 shall survive the termination of
this Agreement, and no such termination shall relieve any party hereto from any
liability for any breach of this Agreement occurring prior to such termination;
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and provided, further, that upon payment of the Termination Fee no Stockholder
shall have further liability with respect to this Agreement or the transactions
contemplated hereby.
4.3 TAKEOVER PROPOSAL PAYMENT.
(a) If (i) the Merger Agreement shall have been terminated (A)
by the Company pursuant to Section 8.1(d) thereof or Parent pursuant to Section
8.1(c), (e) or (f) thereof or (B) by the Company or Parent pursuant to Section
8.1(b)(i) thereof, and, in either case, a proposal for a Takeover Proposal shall
have been made public and not been withdrawn prior to the time of the Acceptance
Time, and (ii) the Company enters into a definitive agreement with respect to a
Takeover Proposal within twelve (12) months after the termination of the Merger
Agreement or a Takeover Proposal is consummated within twelve (12) months after
the date of such termination, then Stockholder shall pay to Parent, within five
business days after receipt, an amount equal to 35% of the Profit (as defined in
Section 4.3(d) below), if any, (x) received by Stockholder or (y) that would
have been received by Stockholder as a result of Shares held by Stockholder on
the date hereof in connection with consummation of such Takeover Proposal. Any
payment to Parent hereunder shall be made in the same form as the consideration
received from such transaction (and, if the consideration so received was in
more than one form, then in the same proportion as the forms of consideration so
received).
(b) If Parent shall have increased the Offer Price to an
amount per share greater than $1.33 in response to a Takeover Proposal received
by the Company resulting from, in connection with, or related to, a breach by
the Company of Section 6.8 of the Merger Agreement, and the Merger shall have
been consummated, then each Stockholder shall pay to Parent, within five
business days after receipt, an amount equal to 35% of the Profit received by
such Stockholder in connection with consummation of the Merger. Any payment to
Parent hereunder shall be made in the same form as the consideration received
from the Merger (and, if the consideration so received was in more than one
form, then in the same proportion as the forms of consideration so received).
(c) Any payment to be made hereunder on account of Profit (i)
received in cash, shall be paid by wire transfer of same day funds to an account
designated by Parent and (ii) received in the form of securities or other
property, shall be paid through delivery to Parent of the securities or
property, suitably endorsed for transfer free and clear of all liens, charges,
encumbrances, voting agreements, and commitments of every kind (other than those
imposed by, through or under the Takeover Proposal or as required by law).
(d) (i) For purposes of this Section 4.3, "Profit" of a
Stockholder in connection with the consummation of a Takeover Proposal (or, in
the case of Section 4.3(b) above, the Merger) shall equal the aggregate
consideration that such Stockholder received or would have received as a result
of the Shares held by such Stockholder on the date hereof, directly or
indirectly, as a result of such consummation, valuing any non-cash consideration
(including any residual interest in the Company or any successor whether
represented by shares of the Company Common Stock or other securities of the
Company or any successor to the extent that the Company has engaged in a
spin-off, recapitalization or similar transaction) at its fair market value as
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of the date of consummation less the amount of the aggregate consideration such
Stockholder received or would have received as a result of consummation of the
Merger (assuming the Offer Price is equal to $1.33 in cash). Each Stockholder
expressly agrees that such Stockholder's obligations to Parent under this
Section 4.3 are personal obligations of such Stockholder and that such
Stockholder's obligation to pay Profit to Parent under this Section 4.3 shall
not be affected as a result of any transfer of the Shares following the
termination, except for any transfers made pursuant to Rule 144 of the
Securities Act of 1933, as amended. Stockholder waives any right to any
cross-claim against a future holder of the Shares in response to a claim by
Parent for Profit pursuant to this Section 4.3.
(ii) The fair market value of any non-cash
consideration consisting of (A) securities listed on a national securities
exchange or traded on the Nasdaq National Market of The Nasdaq Stock Market,
Inc. ("NASDAQ NATIONAL MARKET") shall be equal to the average of the closing
price per share of such security as reported on such exchange or Nasdaq National
Market for each of the five (5) trading days prior to the date of determination,
provided that such securities are not subject by law or agreement with Merger
Sub to any transfer restrictions and such securities do not represent in the
aggregate 10% or more of the outstanding securities of the same class of
securities of which such securities are a part; and (B) consideration which is
other than cash or securities of the type specified in subclause (A) above shall
be the amount a reasonable, willing seller would pay a reasonable, willing
buyer, taking into account the nature and terms of such property. In the event
of a dispute as to the fair market value of such property, such disputed amounts
shall be determined, which determination shall be binding on all parties to this
Agreement and shall be made by a nationally recognized independent banking firm
mutually agreed upon by the parties, within ten (10) business days of the event
requiring selection of such investment banking firm; PROVIDED, HOWEVER, that if
Parent and the Stockholder are unable to agree within two (2) business days
after the date of such event as to the investment banking firm, then Parent, on
the one hand, and the Stockholder, on the other hand, shall each select one
firm, and those firms shall select a third investment banking firm, which third
firm shall make a determination; PROVIDED FURTHER, that the fees and expenses of
such investment banking firm shall be borne by the Stockholder. The
determination of the investment banking firm shall be binding upon the parties
hereto.
(iii) In the event that the Company shall declare and
pay a stock or extraordinary dividend or other distribution, or effect a stock
split, reverse stock split, reclassification, reorganization, recapitalization,
combination or other like changes with respect to the shares of the Company
Common Stock, the calculations set forth in this Section 4.3 shall be adjusted
to reflect fully such dividend, distribution, stock split, reverse stock split,
reclassification, reorganization, recapitalization or combination (including any
residual interest in the Company or any successor whether represented by the
shares of the Company Common Stock or other securities of the Company or any
successor to the extent that the Company has engaged in a spin-off,
recapitalization or similar transaction) and shall be considered in determining
the Profit as provided in this Section 4.3.
(e) For the avoidance of doubt, a Stockholder shall not be
required by this Agreement to pay any Profit to Parent for any subsequent
disposition of Shares other than as required pursuant to this Section 4.3.
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5. MISCELLANEOUS.
5.1 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement 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, among the parties with respect to the subject matter hereof. Nothing in
this Agreement, express or implied, is intended to or shall confer upon any
other person or entity any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement. This Agreement shall not be assigned by
operation of law or otherwise and shall be binding upon and inure solely to the
benefit of each party hereto.
5.2 AMENDMENTS. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by each of the parties hereto.
5.3 NOTICES. Any notice required to be given hereunder shall
be sufficient if in writing, and sent by facsimile transmission (provided that
any notice received by facsimile transmission or otherwise at the addressee's
location on any Business Day after 5:00 p.m. (addressee's local time) shall be
deemed to have been received at 9:00 a.m. (addressee's local time) on the next
Business Day), by reliable overnight delivery service (with proof of service),
hand delivery or certified or registered mail (return receipt requested and
first-class postage prepaid), addressed as follows:
If to the Stockholder:
To the address and fax number shown on the
signature page for the Stockholder
If to Parent:
KI NutriCare, Inc.
000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxx
Facsimile: 000-000-0000
with copies to:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Xxxx Xxxxxxx, Esq.
Facsimile: 000-000-0000
or to such other address as any party shall specify by written
notice so given, and such notice shall be deemed to have been delivered as of
the date so telecommunicated, personally delivered or received. Any party to
this Agreement may notify any other party of any changes to the address or any
of the other details specified in this paragraph; provided, however, that such
notification shall only be effective on the date specified in such notice or two
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Business Days after the notice is given, whichever is later. Rejection or other
refusal to accept or the inability to deliver because of changed address of
which no notice was given shall be deemed to be receipt of the notice as of the
date of such rejection, refusal or inability to deliver.
5.4 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the Laws of the State of New York, without giving
effect to conflicts of laws principles that would result in the application of
the Law of any other state. Each of the parties to this Agreement (i) consents
to submit itself to the exclusive personal jurisdiction of a federal court
sitting in the Northern District of California, in any action or proceeding
arising out of or relating to this Agreement or any of the Transactions, (ii)
agrees that all claims in respect of such action or proceeding shall be heard
and determined in any such court, (iii) agrees that it shall not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from
any such court, and (iv) agrees not to bring any action or proceeding arising
out of or relating to this Agreement or any of the Transactions in any other
court. Each of the parties hereto waives any defense of inconvenient forum to
the maintenance of any action or proceeding so brought and waives any bond,
surety or other security that might be required of any other party with respect
thereto. Any party hereto may make service on another party by sending or
delivering a copy of the process to the party to be served at the address and in
the manner provided for the giving of notices in SECTION 5.3. Nothing in this
SECTION 5.4, however, shall affect the right of any party to serve legal process
in any other manner permitted by law.
5.5 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 its specific terms or were otherwise
breached. The Stockholder agrees that, in the event of any breach or threatened
breach by the Stockholder of any covenant or obligation contained in this
Agreement, Parent shall be entitled (in addition to any other remedy that may be
available to it, including monetary damages) to seek (a) a decree or order of
specific performance to enforce the observance and performance of such covenant
or obligation, and (b) an injunction restraining such breach or threatened
breach. The Stockholder further agrees that neither Parent nor any other person
or entity shall be required to obtain, furnish or post any bond or similar
instrument in connection with or as a condition to obtaining any remedy referred
to in this Section 5.5, and the Stockholder irrevocably waives any right it may
have to require the obtaining, furnishing or posting of any such bond or similar
instrument.
5.6 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the parties hereto and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart. This Agreement may be executed and delivered by
facsimile transmission.
5.7 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.
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5.8 SEVERABILITY. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction declares that any term or provision hereof is
invalid or unenforceable, the parties hereto agree that the court making such
determination shall have the power to limit the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified. In the event
such court does not exercise the power granted to it in the prior sentence, the
parties hereto agree to replace such invalid or unenforceable term or provision
with a valid and enforceable term or provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid or
unenforceable term.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
KI NUTRICARE, INC
By: /s/ Xxxxxxx Xxxxx
---------------------
Name: Xxxxxxx Xxxxx
Title: President
[Signatures continued on next page.]
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/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Ph.D.
Address: 00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
/s/ Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxxx
Address: 00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxxx Xxxxxx and Xxxxx Xxxxxx Trustees of the
Xxxxxx Family Trust (UTD March 21, 1990, as amended)
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Xx. Xxxxxxx X. Xxxxxx, as trustee
By: /s/ XXXXX XXXXXX
------------------------------------------
Xxxxx Xxxxxx, as trustee
Address: 00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxxx and Xxxxx Xxxxxx TR, the Xxxxxx Children's
TR (UTD March 27, 1998)
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Xx. Xxxxxxx X. Xxxxxx, as trustee
By: /s/ XXXXX XXXXXX
------------------------------------------
Xxxxx Xxxxxx, as trustee
Address: 00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
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ATTACHMENT A
Details of Ownership
SHARES ENTITY OR INDIVIDUAL NAME
------ -------------------------
2,750,000(1) Xxxxxxx X. Xxxxxx and Xxxxx Xxxxxx
6,193,891 The Xxxxxx Family Trust (UTD March 21, 1990, as amended)
919,359 Xxxxxxx and Xxxxx Xxxxxx TR, the Xxxxxx Children's TR (UTD
March 27,1998)
---------------
(1) Held jointly by Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx as community property.
