1
Exhibit (c)(2)
SHAREHOLDER AND VOTING AGREEMENT
by and among
APPLE HOLD CO., L.P.,
NEW AAP LIMITED
and
CERTAIN SHAREHOLDERS OF AMWAY ASIA PACIFIC LTD.
dated as of
November 15, 1999
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TABLE OF CONTENTS
PAGE
I. VOTING OF COMPANY SHARES....................................................................................-2-
1.1 Agreement to Vote Company Shares......................................................-2-
II. REPRESENTATIONS AND WARRANTIES..............................................................................-2-
2.1 Representations and Warranties of the Principal Shareholders..........................-2-
2.2 Representations and Warranties of Parent..............................................-2-
2.3 Representations and Warranties of Purchaser...........................................-3-
III. CERTAIN COVENANTS OF PRINCIPAL SHAREHOLDERS................................................................-4-
3.1 Restriction on Transfer of Principal Shares;
Proxies and Noninterference...........................................................-4-
IV. CERTAIN COVENANTS OF PARENT.................................................................................-4-
4.1 Restriction on Transfer of Non-Tendered Shares,
Proxies and Noninterference...........................................................-4-
4.2 Cooperation...........................................................................-4-
V. MISCELLANEOUS................................................................................................-5-
5.1 Amendment; Termination................................................................-5-
5.2 Extension; Waiver.....................................................................-5-
5.3 Governing Law.........................................................................-5-
5.4 Notices...............................................................................-5-
5.5 Assignment............................................................................-6-
5.6 Further Assurances....................................................................-6-
5.7 Enforcement...........................................................................-6-
5.8 Severability..........................................................................-6-
5.9 Counterparts..........................................................................-6-
5.10 Headings..............................................................................-6-
5.11 Third Party Beneficiary...............................................................-7-
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SHAREHOLDER AND VOTING AGREEMENT
This SHAREHOLDER AND VOTING AGREEMENT, dated as of November 15, 1999
(this "Agreement"), is made and entered into among Apple Hold Co., L.P., a
Bermuda limited partnership ("Parent"), New AAP Limited, a Bermuda corporation
and wholly owned subsidiary of Parent ("Purchaser") and each of the shareholders
whose name is set forth on Schedule A hereto (each, a "Principal Shareholder"
and, collectively, the "Principal Shareholders"). Except as otherwise defined
herein, terms used herein with initial capital letters have the respective
meanings ascribed thereto in the Amalgamation Agreement (as defined below).
RECITALS:
WHEREAS, Parent, Purchaser and Amway Asia Pacific Ltd., a Bermuda
corporation (the "Company") propose to enter into a Tender Offer and
Amalgamation Agreement, dated as of November 15, 1999 (the "Amalgamation
Agreement"), pursuant to which Purchaser will conduct a tender offer (the
"Offer") for all of the Company's Common Stock, and following the Offer,
Purchaser will amalgamate with and into the Company (the "Amalgamation") or, if
so elected by Purchaser, Purchaser will compulsorily purchase all outstanding
Company Common Stock, all on the terms and subject to the conditions set forth
in the Amalgamation Agreement;
WHEREAS, as of the date hereof, each Principal Shareholder beneficially
owns and is entitled to dispose of (or to direct the disposition of) and to vote
(or to direct the voting of) the number of shares, no par value, of the Company,
set forth opposite such Principal Shareholder's name on Schedule A hereto
(collectively, the "Principal Shares");
WHEREAS, the Principal Shareholders have informed Purchaser that they
will not tender their Principal Shares in response to the Offer, but such
Principal Shareholders will transfer their Principal Shares ("Non-Tendered
Shares") to Parent contemporaneously with the consummation of the Offer;
WHEREAS, following the Offer and the transfer of the Non-Tendered
Shares to Parent, Parent will beneficially own and be entitled to dispose of (or
to direct the disposition of) and to vote Shares, representing in excess of
two-thirds of the outstanding Shares of the Company;
WHEREAS, all or a portion of the funds required to pay the Offer Price
will be borrowed by Purchaser pursuant to a Credit Agreement among Purchaser,
Parent, XXXX Hold Co., Ltd. and N.A.J. Co., Ltd., the lenders parties thereto
(the "Lender Parties") and Xxxxxx Guaranty Trust Company of New York, Tokyo
Branch, as agent (the "Agent", and together with the Lender Parties, the
"Banks");
WHEREAS, as a condition and inducement to their willingness to enter
into the Amalgamation Agreement, the Company and Purchaser have requested, and
as a condition to the agreement of the Banks to fund the Offer Price and the
consideration to be paid in the
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Amalgamation or the compulsory purchase, the Banks have requested, that Parent
agree, and Parent has agreed, to enter into this Agreement; and
WHEREAS, as a condition and inducement to their willingness to enter
into the Amalgamation Agreement, the Parent and Purchaser have requested, and as
a condition to the agreement of the Banks to fund the Offer Price and the
consideration to be paid in the Amalgamation or the compulsory purchase, the
Banks have requested, that each Principal Shareholder agree, and each Principal
Shareholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
I. VOTING OF COMPANY SHARES
1.1 AGREEMENT TO VOTE COMPANY SHARES. At any meeting of the
shareholders of the Company called to consider and vote upon the adoption or
approval of the Amalgamation Agreement or the Amalgamation (and at any and all
postponements and adjournments thereof), each Principal Shareholder will cause
Parent to vote, and Parent hereby agrees to vote, all of the Non-Tendered
Shares, in favor of the adoption or approval of the Amalgamation Agreement and
the Amalgamation and in favor of any other matter necessary or appropriate for
the consummation of the transactions contemplated by the Amalgamation Agreement
that is considered and voted upon at any such shareholders' meeting.
II. REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL SHAREHOLDERS. Each
Principal Shareholder, severally and not jointly, represents and warrants to
Parent, the Banks and Purchaser, as of the date hereof and as of the Closing
Date, as follows:
(a) EXECUTION AND DELIVERY. Such Principal Shareholder has all
requisite power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. In the case of each Principal Shareholder that
is not a natural person, the execution and delivery of this Agreement by such
Principal Shareholder and the consummation by such Principal Shareholder of the
transactions contemplated hereby have been duly authorized by all necessary
action, if any, on the part of such Principal Shareholder. This Agreement has
been duly and validly executed and delivered by such Principal Shareholder.
(b) OWNERSHIP OF SHARES. Such Principal Shareholder is the
sole holder of record and beneficial owner of such number of Principal Shares
set forth opposite its, his or her name on SCHEDULE A and holds good, valid and
marketable title to such Principal Shares and will hold such title at the date
or dates such Principal Shareholders transfer their Principal Shares to Parent.
2.2 REPRESENTATIONS AND WARRANTIES OF PARENT. Parent represents and
warrants to
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Purchaser and the Principal Shareholders, as of the date hereof and as of the
Closing Date, as follows:
(a) ORGANIZATION. Parent is a limited partnership duly organized,
validly existing and in good standing under the laws of Bermuda.
(b) AUTHORITY RELATIVE TO THIS AGREEMENT. Parent has all requisite
limited partnership 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 on the part of Parent have been duly and validly authorized by the
general partner of Parent and no other limited partnership 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.
(c) CONSENT AND APPROVALS; NO VIOLATION. The execution and delivery of
this Agreement does not, and the consummation of the transactions contemplated
hereby and the performance by Parent of its obligations hereunder will not:
(i) conflict with any provision of the certificate of formation
of Parent; or
(ii) require on the part of Parent any consent, approval, order,
authorization or permit of, or registration, filing or notification to, any
Governmental Authority or any third party.
2.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Parent and the Principal Shareholders, as of the date hereof and as
of the Closing Date, as follows:
(a) ORGANIZATION. Purchaser is a company duly incorporated and is
validly existing as a corporation under the laws of Bermuda.
(b) POWER AND AUTHORITY. Purchaser has full 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 on the part of
Purchaser have been duly and validly authorized by its board of directors and
its sole shareholder and no other corporate proceedings on the part of Purchaser
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Purchaser.
(c) CONSENT AND APPROVALS; NO VIOLATION. The execution and delivery by
Purchaser of this Agreement does not, and the consummation of the transactions
contemplated hereby and the performance by Purchaser of its obligations
hereunder will not:
(i) conflict with or violate any provision of Purchaser's
Memorandum of Association or Bye-laws; or
(ii) require on the part of Purchaser any consent, approval,
order,
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authorization or permit of, or registration, filing or notification to, any
Governmental Authority, except for (i) the filing by Purchaser with the SEC of
such reports under the Exchange Act as may be required in connection with the
Amalgamation Agreement (including, without limitation, the Schedule 14D-1 and
the Schedule 13E-3), and the transactions contemplated thereby and (iii) such
additional actions or filings which, if not taken or made, would not, singly or
in the aggregate, have a material adverse effect on the condition, financial or
otherwise, the earnings, business affairs or business prospects of Purchaser or
the transactions contemplated by this Agreement.
III. CERTAIN COVENANTS OF PRINCIPAL SHAREHOLDERS
3.1 RESTRICTION ON TRANSFER OF PRINCIPAL SHARES; PROXIES AND
NONINTERFERENCE. Each Principal Shareholder hereby agrees that it will not,
directly or indirectly: (A) except as otherwise contemplated by this Agreement
or the Amalgamation Agreement, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Principal Shares or any other Shares it may at
anytime own (collectively, "Company Shares"); (B) except pursuant to the terms
of this Agreement, grant any proxies or powers of attorney, deposit any Company
Shares into a voting trust or enter into a voting agreement with respect to any
Company Shares; or (C) take any action that would reasonably be expected to make
any representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of such Principal Shareholder to perform its
obligations under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
IV. CERTAIN COVENANTS OF PARENT
4.1 RESTRICTION ON TRANSFER OF NON-TENDERED SHARES, PROXIES AND
NONINTERFERENCE. Parent hereby agrees that it will not, directly or indirectly:
(A) except as otherwise contemplated by this Agreement or the Amalgamation
Agreement, offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the Non-Tendered Shares or any other Shares it may at anytime own (collectively,
"Parent Shares"); (B) except pursuant to the terms of this Agreement, grant any
proxies or powers of attorney, deposit any Parent Shares into a voting trust or
enter into a voting agreement with respect to any Parent Shares; or (C) take any
action that would reasonably be expected to make any representation or warranty
contained herein untrue or incorrect or have the effect of impairing the ability
of Parent to perform its obligations under this Agreement or preventing or
delaying the consummation of any of the transactions contemplated hereby.
4.2 COOPERATION. Parent will cooperate fully with the Company and
Purchaser in connection with their respective reasonable best efforts to fulfill
the conditions to (a) the Offer set forth in Article II to the Amalgamation
Agreement and (b) the Amalgamation set forth in Article III of the Amalgamation
Agreement or, if so elected by Purchaser, the compulsory purchase set forth in
Article IV of the Amalgamation Agreement.
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V. MISCELLANEOUS
5.1 AMENDMENT; TERMINATION. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto. This
Agreement will terminate upon the date the Amalgamation Agreement is terminated
in accordance with its terms, or by the mutual consent of the Board of Directors
of the Company consisting of the Disinterested Directors, and the general
partner of Parent. In the event of termination of this Agreement pursuant to
this Section 5.1, this Agreement, except as to those transactions already
consummated, will become null and void and of no effect with no liability on the
part of any party hereto; provided, however, that no such termination will
relieve any party hereto from any liability for any breach of this Agreement
arising under applicable law.
5.2 EXTENSION; WAIVER. Any agreement on the part of a party to waive
any provision of this Agreement, or to extend the time for any performance
hereunder, will be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise will not constitute a waiver of
such rights.
5.3 GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of Bermuda and the parties hereby irrevocably submit
to the non-exclusive jurisdiction of the courts of Bermuda.
5.4 NOTICES. All notices and other communications hereunder shall
comply with the notice provisions of the Amalgamation Agreement. In addition all
notices to the Principal Shareholders shall be sent to the following parties:
Amway Corporation
0000 Xxxxxx Xxxxxx Xxxx
Xxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxx_xxxxxxx@xxxxx.xxx
with copies to (for those Principal Shareholders listed
on SCHEDULE A as the "XxXxx Family"):
Xxxxxxx Xxxxxx & Xxxxx
Worldwide Plaza
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxxxx.xxx
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with copies to (for those Principal Shareholders listed
on SCHEDULE A as the "Xxx Xxxxx Family"):
Xxxxx & Xxxxxxx
Columbia Square
000 Xxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx-Xxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxxxx@xxxxx.xxx
5.5 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any party hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by, the parties and their respective
successors and assigns.
5.6 FURTHER ASSURANCES. Each of the Principal Shareholders and Parent
will execute and deliver such other documents and instruments and take such
further actions as may be necessary or appropriate or as may be reasonably
requested by Purchaser in order to ensure that Purchaser receives the full
benefit of this Agreement.
5.7 ENFORCEMENT. Irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement, this
being in addition to any other remedy to which they are entitled at law or in
equity.
5.8 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
5.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same instrument and
will become effective when one or more counterparts have been signed by any
party and delivered to the other parties.
5.10 HEADINGS. The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement.
5.11 THIRD PARTY BENEFICIARY. Except for the Banks and, to the extent
provided in the second sentence of Section 5.1 hereof, the Company, this
Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder. The Banks shall
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have the same rights and remedies available to the parties to this Agreement as
if the Banks were a party hereto.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
APPLE HOLD CO., L.P.
By: AP New Co., LLC, as general partner
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Manager for General Partner
NEW AAP LIMITED
By: /s/ Xxxxxxxx X. Call
-----------------------------------------------
Name: Xxxxxxxx X. Call
Title: Attorney-in-Fact
PRINCIPAL SHAREHOLDERS:
XXX XXX XXXXX TRUST
By: /s/ Xxx Xxx Xxxxx
-----------------------------------------------
Name: Xxx Xxx Xxxxx
Title: Trustee
SUBTRUST UNDER PARAGRAPH 3 OF JVA TRUST
By: /s/ Xxx Xxx Xxxxx
-----------------------------------------------
Name: Xxx Xxx Xxxxx
Title: Trustee
XXX AND XXXXX XXX XXXXX FOUNDATION
By: /s/ Xxx Xxx Xxxxx
-----------------------------------------------
Name: Xxx Xxx Xxxxx
Title: President
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XXXXXXX X. XXXXX 1998 TRUST
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
By: /s/ Xxxxxxx X. XxXxx, Xx.
-----------------------------------------------
Name: Xxxxxxx X. XxXxx, Xx.
Title: President
XXXXXXX & XXXXX XXXXX FOUNDATION
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President, Secretary
XXXXX X. XXXXX ARTICLE I TRUST
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
By: /s/ Xxxxxxx X. XxXxx, Xx.
-----------------------------------------------
Name: Xxxxxxx X. XxXxx, Xx.
Title: President
XXXXXXX X. XXXXX, XX. ARTICLE II TRUST
By: /s/ Xxxxxxx X. XxXxx, Xx.
-----------------------------------------------
Name: Xxxxxxx X. XxXxx, Xx.
Title: President
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
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XXXXXX X. XXXXX ARTICLE II TRUST
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
By: /s/ Xxxxxxx X. XxXxx, Xx.
-----------------------------------------------
Name: Xxxxxxx X. XxXxx, Xx.
Title: President
XXXXXXX XXXXX-XXXXXXXXXXX ARTICLE II
TRUST
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
By: /s/ Xxxxxxx X. XxXxx, Xx.
-----------------------------------------------
Name: Xxxxxxx X. XxXxx, Xx.
Title: President
XXXXXXX X. XXXXX ARTICLE II TRUST
By: /s/ Xxxxxxx X. XxXxx, Xx.
-----------------------------------------------
Name: Xxxxxxx X. XxXxx, Xx.
Title: President
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
RDV CAPITAL MANAGEMENT L.P. III
By: RDV Corporation, as general partner
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President
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XXXXXXX X. XXXXX, XX. 1995 CHRISTMAS
TRUST
By: /s/ Xxxxxxx X. XxXxx, Xx.
-----------------------------------------------
Name: Xxxxxxx X. XxXxx, Xx.
Title: President
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
XXXXXX X. XXXXX 1995 CHRISTMAS TRUST
By: /s/ Xxxxxxx X. XxXxx, Xx.
-----------------------------------------------
Name: Xxxxxxx X. XxXxx, Xx.
Title: President
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
XXXXXXX XXXXX-XXXXXXXXXXX 1995
CHRISTMAS TRUST
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
By: /s/ Xxxxxxx X. XxXxx, Xx.
-----------------------------------------------
Name: Xxxxxxx X. XxXxx, Xx.
Title: President
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XXXXXXX X. XXXXX 1995 CHRISTMAS TRUST
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
By: /s/ Xxxxxxx X. XxXxx, Xx.
-----------------------------------------------
Name: Xxxxxxx X. XxXxx, Xx.
Title: President
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SCHEDULE A
NUMBER OF PRINCIPAL
SHAREHOLDER SHARES OWNED
X. XXX XXXXX FAMILY
Xxx Xxx Xxxxx Trust 12,315,145
Subtrust Under Paragraph 3 of JVA Trust 11,092,330
Xxx and Xxxxx Xxx Xxxxx Foundation 564,290
II. XXXXX FAMILY
Xxxxxxx X. XxXxx 1998 Trust 9,948,743
Xxxxxxx & Xxxxx XxXxx Foundation 564,290
Xxxxx X. XxXxx Article I Trust 3,835,882
Xxxxxxx X. XxXxx, Xx. Article II Trust 200,528
Xxxxxx X. XxXxx Article II Trust 200,528
Xxxxxxx XxXxx-XxxxxxXxxxx Article II Trust 200,528
Xxxxxxx X. XxXxx Article II Trust 200,528
RDV Capital Management L.P. III 1,000,000
Xxxxxxx X. XxXxx, Xx. 1995 Christmas Trust 1,955,184
Xxxxxx X. XxXxx 1995 Christmas Trust 1,955,184
Xxxxxxx XxXxx-XxxxxxXxxxx 1995 Christmas Trust 1,955,185
Xxxxxxx X. XxXxx 1995 Christmas Trust 1,955,185
TOTAL 47,943,530
