EXHIBIT 2.2
MAJORITY SHAREHOLDER AGREEMENT
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THIS MAJORITY SHAREHOLDER AGREEMENT (this "Agreement") is made and
entered into as of July 16, 1999, by and among Kuoni Reisen Holding AG,
a Swiss corporation incorporated in the Canton of Zurich, Switzerland
("Parent"), Diamond Holding Delaware, Inc., a Delaware corporation and
wholly-owned subsidiary of Parent ("Acquiror"), Diamond Acquisition
Subsidiary Missouri, Inc., a Missouri corporation and wholly-owned
subsidiary of Acquiror ("Acquisition Subsidiary"), and The Revocable
Trust of Xxxxxx X. Xxxxxxxx, dated July 23, 1986, as amended (the
"Majority Shareholder") and Xxxxxx X. Xxxxxxxx.
Recitals
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A. Concurrently with the execution and delivery of this
Agreement, Parent, Acquiror, Acquisition Subsidiary and Intrav, Inc., a
Missouri corporation ("Target"), are entering into an Agreement and Plan
of Merger (the "Merger Agreement") pursuant to which Acquisition
Subsidiary will be merged with and into Target (the "Merger").
B. The Majority Shareholder owns, of record and beneficially,
3,825,000 shares of common stock, par value $0.01 per share, of Target
(the "Majority Shares").
C. As an inducement to Parent, Acquiror and Acquisition
Subsidiary to enter into the Merger Agreement, the Majority Shareholder
has agreed to grant the Option (as hereinafter defined), to vote all of
the Majority Shares in favor of the Merger, to delete Article 11 of the
Articles of Incorporation of Target necessary to consummate the Merger,
and to undertake the other obligations and covenants described in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements hereinafter set
forth, the parties hereto agree as follows:
1. OPTION.
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(a) Grant of Option. The Majority Shareholder hereby
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grants to Parent, Acquiror and Acquisition Subsidiary (the "Optionees")
an irrevocable option (the "Option") to purchase a certain number of the
Majority Shares as determined in accordance with the following sentence
(the "Option Shares"), in the manner and at the purchase price set forth
below. The number of Option Shares shall be the maximum number of
shares of common stock of Target ("Target Common Stock") that could be
acquired by Acquiror and/or Acquisition Subsidiary and not constitute
"Excess Shares" (as defined in Article 11 of Target's Articles of
Incorporation).
(b) Exercise of Option. The Option may be exercised, in
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whole or in part, at any time, or from time to time, after the
occurrence of either of the following events: (i) the Majority
Shareholder fails to vote or cause to be voted all of the Majority
Shares in favor of the Merger and the Merger Agreement pursuant to
Section 5 hereof; or (ii) there occurs a
Takeover Proposal (as defined in the Merger Agreement) prior to the
termination of the Merger Agreement. If Acquiror or Acquisition
Subsidiary wishes to exercise the Option, Acquiror or Acquisition
Subsidiary shall send a written notice to the Majority Shareholder
specifying a date (not less than five nor more than sixty days from the
date such notice is given, which date shall be postponed as appropriate
to obtain any necessary consents or approvals or to allow termination of
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx")
waiting period) for the closing of such purchase (the "Option Closing").
Such Option Closing shall take place at 10:00 A.M., local time, on the
date specified in such notice at the offices of Xxxxx Xxxx LLP, 000
Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, or at such other
place and time as the parties may mutually agree. If the Option is
exercised, the representations and warranties of the Majority
Shareholder set forth in Section 2 below shall survive the Option
Closing.
(c) Purchase Price. At the Option Closing, the Majority
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Shareholder will deliver to Acquiror or Acquisition Subsidiary a
certificate or certificates representing the Option Shares being
purchased. Acquiror or Acquisition Subsidiary will purchase such shares
from the Majority Shareholder by delivering as consideration therefor,
$21.32 per share, in cash in immediately available funds (the "Purchase
Price").
(d) HSR Filing. Acquiror or Acquisition Subsidiary and
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the Majority Shareholder agree to file with the Federal Trade Commission
and the Antitrust Division of the United States Department of Justice
all required pre-merger notification and report forms and other
documents and exhibits required to be filed under the HSR Act to permit
the purchase contemplated by this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE MAJORITY SHAREHOLDER.
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The Majority Shareholder hereby represents and warrants to Acquiror and
Acquisition Subsidiary as follows:
(a) Ownership of Shares. The Majority Shareholder is
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the record and beneficial owner of the Majority Shares and such shares
constitute all of the shares of Target Common Stock owned by the
Majority Shareholder. The Majority Shareholder has sole voting power
and sole power to issue instructions with respect to the matters set
forth in Sections 1 and 5 hereof, sole power of disposition, sole power
of conversion, sole power to demand appraisal rights and sole power to
agree to all of the matters set forth in this Agreement, in each case
with respect to all of the Majority Shares, with no limitations,
qualifications or restrictions on such rights, subject to applicable
securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. The Majority Shareholder
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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 the Majority Shareholder will not
violate any other agreement to which he is a party including, without
limitation, any voting agreement, stockholders agreement or voting
trust. This Agreement has been duly and validly executed and delivered
by the Majority Shareholder and constitutes a valid and binding
agreement of the Majority Shareholder, enforceable against him in
accordance with its terms. There is no beneficiary or holder of a
voting trust certificate or other interest of any
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trust of which the Majority Shareholder is trustee whose consent is
required for the execution and delivery of this Agreement or the
consummation by the Majority Shareholder of the transactions
contemplated hereby.
(c) No Conflict. Except for filings and approvals under
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the HSR Act, the antitrust laws or the securities laws, if applicable,
(A) no filing with, and no permit, authorization, consent or approval
of, any state or federal public body or authority is necessary for the
execution of this Agreement by the Majority Shareholder and the
consummation by the Majority Shareholder of the transactions
contemplated hereby and (B) none of the execution and delivery of this
Agreement by the Majority Shareholder, the consummation by the Majority
Shareholder of the transactions contemplated hereby or compliance by the
Majority Shareholder with any of the provisions hereof shall result in a
violation or breach of, or constitute (with or without notice of 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, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which the
Majority Shareholder is a party or by which such order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to the Majority Shareholder or any of its properties or
assets.
(d) No Finder's Fees. Except as disclosed in the Merger
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Agreement, no broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Majority Shareholder.
(e) No Encumbrances. The Majority Shares and the
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certificates representing such shares are now, and at all times during
the term hereof will be, held by the Majority Shareholder, or by a
nominee or custodian for the benefit of the Majority Shareholder, free
and clear of all liens, claims, security interests, proxies, voting
trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances arising
hereunder.
3. REPRESENTATIONS OF ACQUIROR OR ACQUISITION SUBSIDIARY.
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Each of Acquiror and Acquisition Subsidiary represents and warrants to
the Majority Shareholder that: (i) such entity is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation with full corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder; (ii) the execution and delivery of this Agreement
by such entity and the performance by it of its obligations hereunder
have been duly authorized by all necessary corporate action on the part
of such entity; (iii) this Agreement constitutes the legal, valid and
binding obligation of such entity enforceable against such entity in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency and other similar laws affecting creditors'
rights generally or by general principles of equity; and (iv) any shares
of Target Common Stock acquired upon exercise of the Option will not be
acquired by such entity with a view to the public distribution thereof
and will
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not be transferred except pursuant to a transaction which complies with
the Securities Act of 1933, as amended, and applicable state securities
laws.
4. COVENANTS OF THE MAJORITY SHAREHOLDER. The Majority
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Shareholder covenants and agrees as follows:
(a) No Solicitation. During the term of this Agreement,
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neither the Majority Shareholder nor Xxxxxx X. Xxxxxxxx shall (and shall
not permit their representatives to), directly or indirectly, initiate,
solicit (including by way of furnishing information), encourage or
respond to or take any other action knowingly to facilitate, any
inquiries or the making of any proposal by any person or entity (other
than Acquiror or Acquisition Subsidiary or any of their affiliates) with
respect to Target that constitutes or reasonably may be expected to lead
to, a Takeover Proposal, or enter into or maintain or continue
discussions or negotiate with any person or entity in furtherance of
such inquiries or to obtain any Takeover Proposal, or agree to or
endorse any Takeover Proposal, or authorize or permit any person or
entity acting on behalf of the Majority Shareholder to do any of the
foregoing. The foregoing shall not prevent Xxxxxx X. Xxxxxxxx from
voting as a Director of Target in connection with Target's exercising
its rights under Section 4.9 of the Merger Agreement. If Xxxxxx X.
Xxxxxxxx or the Majority Shareholder receives any inquiry or proposal
regarding any Takeover Proposal, they shall promptly inform Acquiror and
Acquisition Subsidiary of that inquiry or proposal and the details
thereof.
(b) Restriction on Transfer, Proxies and Non-Interference.
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During the term of this Agreement, the Majority Shareholder shall not
(and shall not permit its representatives to): (i) directly or indirectly,
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, transfer, tender, pledge, encumbrance, assignment or other disposition
of, any or all of the Majority Shares or any interest therein, provided,
however, that the Majority Shareholder may sell, transfer, tender or
otherwise dispose of the Majority Shares pursuant to a Superior Proposal
approved by the Board of Directors of Target following Target's exercise
of its rights pursuant to Section 4.9(b) of the Merger Agreement so long
as Target has not breached Section 4.9 of the Merger Agreement; (ii) except
as contemplated by this Agreement, grant any proxies or powers of attorney,
deposit any of the Majority Shares into a voting trust or enter into a
voting agreement with respect to any of the Majority Shares; or (iii) take
any action that would make any representation or warranty of the Majority
Shareholder contained herein untrue or incorrect or have the effect of
preventing or disabling the Majority Shareholder from performing its
obligations under this Agreement or the Optionees from enjoying the
benefits of the Option.
(c) Waiver of Appraisal Rights. The Majority Shareholder
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hereby irrevocably waives any rights of appraisal or rights to dissent
from the Merger that he may have.
(d) Stop Transfer. The Majority Shareholder agrees
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with, and covenants to, Acquiror and Acquisition Subsidiary that he
shall not request that Target register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing
any of the Majority Shares, unless such transfer is made in compliance
with this Agreement.
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(e) Profits Upon Sale of Majority Shares. During such
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time as the Option is exercisable, if the Majority Shareholder shall
sell, transfer, tender or otherwise dispose of any of the Majority
Shares (including without limitation pursuant to a merger of Target with
another entity), or if the Majority Shareholder or Target shall agree to
a transaction that would result in such sale, transfer, tender or other
disposition of the Majority Shares, and the Majority Shareholder
receives in consideration for such sale, transfer, tender or other
disposition of Majority Shares an amount that exceeds the Purchase
Price, then the Majority Shareholder shall promptly, but in no event
later than two days after the date that the Majority Shareholder
receives such consideration, pay to Acquiror the aggregate amount
received by the Majority Shareholder in excess of the Purchase Price.
If the aggregate consideration received by Acquiror does not consist of
cash in an amount necessary to satisfy the foregoing obligation, the
Optionees shall, at their discretion, have the right to receive such
amount in cash or, provided that the Majority Shareholder would not
suffer any adverse tax consequences, in any non-cash consideration
received in the transaction.
5. APPROVAL OF MERGER; SALE/LEASEBACK. The Majority
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Shareholder agrees that during the term of this Agreement, it will vote
or cause to be voted all the Majority Shares in favor of the Merger and
the Merger Agreement and in favor of deleting Article 11 of the Target
Articles of Incorporation (and the documents and transactions related
thereto) at any meeting of the shareholders of Target held for any such
purposes. If the Merger Agreement is terminated as a result of the
Target exercising its rights under Section 4.9 of the Merger Agreement,
or as a result of the failure of the condition in Section 6.1.5 of the
Merger Agreement or a material breach of the Merger Agreement following
the receipt by the Target of a Takeover Proposal, the Majority
Shareholder shall as soon as reasonably practicable cause Target to
restructure the ownership of Target's U.S. flagged ships to allow the
ownership of more than 25% of the Target Shares by a non-U.S. citizen.
Such restructuring shall be accomplished in a manner that does not
materially and adversely affect the interests of Target.
6. FURTHER ASSURANCE AND ADJUSTMENTS. The Majority
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Shareholder and Xxxxxx X. Xxxxxxxx shall, upon the reasonable request of
Acquiror or Acquisition Subsidiary, execute and deliver any additional
documents necessary or desirable to effect any of the terms and
provisions of this Agreement. If at any time the Majority Shares are
changed into a different number of shares or a different class by reason
of any reclassification, recapitalization, split-up, combination,
exchange or readjustment of Target's capital stock or if a dividend
thereon is declared with a record date prior to the termination of this
Agreement, or if the representations in Section 2.2 of the Merger
Agreement are or become untrue, then the provisions of this Agreement
shall be appropriately adjusted.
7. SPECIFIC PERFORMANCE. The parties hereto agree that
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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 further
agree that each party shall be entitled to an injunction or restraining
order to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any
state having jurisdiction, this being in addition to any other right or
remedy to which such party may be entitled under this Agreement, at law
or in equity.
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8. TERM. This Agreement shall commence on the date hereof
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and the Option shall end, and this Agreement shall terminate, on the
earlier of (i) six (6) months following the termination of Merger
Agreement in accordance with its terms or (ii) the Effective Time (as
defined in the Merger Agreement); provided, however, if the Merger
Agreement is terminated as a result of the Target exercising its rights
under Section 4.9 of the Merger Agreement, or as a result of the failure
of the condition in Section 6.1.5 of the Merger Agreement or a material
breach of the Merger Agreement following the receipt by the Target of a
Takeover Proposal, that for purposes of this Agreement, the Merger
Agreement shall not be deemed to have been terminated until the Majority
Shareholder shall have fulfilled all of its obligations under Section 5
hereof.
9. BINDING AGREEMENT. All authority and rights herein
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conferred or agreed to be conferred by the Majority Shareholder or
Xxxxxx X. Xxxxxxxx shall survive the death or incapacity of Xxxxxx X.
Xxxxxxxx or the termination or liquidation of the Majority Shareholder.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, personal representatives,
successors and assigns.
10. NOTICES. All notices and other communications hereunder
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shall be in writing and shall be deemed to have been duly given when
delivered in person, by facsimile, receipt confirmed, or on the next
business day when sent by overnight courier or on the second succeeding
business day when sent by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified by
like notice):
(i) if to the Majority Shareholder or to Xxxxxx X.
Xxxxxxxx, to:
The Revocable Trust of Xxxxxx X. Xxxxxxxx, dated July
23, 1986, as amended
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx
00000-0000
with a copy to:
Xxxxxxxx Xxxxxx LLP
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Telecopy: 000-000-0000
and
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(ii) if to Acquiror or Acquisition Subsidiary, to:
Kuoni Reisen Holding AG
Xxxx Xxxx 0
XX-0000 Xxxxxx
Xxxxxxxxxxx
Attention: Chief Executive Officer
with copies to:
Kuoni Reisen Holding AG
Kuoni House
Dorking
Surrey U.K. XX0 0XX
Attention: Xxxxx Xxxxxxxx
and
Kuoni Reisen Holding AG
Xxxx Xxxx 0
XX-0000 Xxxxxx
Xxxxxxxxxxx
Attention: Xxxxxxx Xxxx
and
Xxxxx Xxxx LLP
000 X. Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Xx.
Telecopy: 000-000-0000
11. GOVERNING LAW. This Agreement shall be deemed to be made
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in, and in all respects shall be interpreted, construed and governed by
and in accordance with the internal laws of, the State of Missouri
(without regard for its choice of law rules). Any and all disputes
which may arise out of this Agreement will be heard and determined
before the United States District Court for the Eastern District of
Missouri or the Circuit Court of St. Louis County, Missouri. The
parties hereto acknowledge that such courts have the jurisdiction to
interpret and enforce the provisions of this Agreement and the parties
waive any and all objections that they may have as to jurisdiction or
venue in the above courts, including, but not limited to, any defense of
forum non conveniens, and irrevocably agree to be bound by any non-
appealable final judgment rendered thereby.
12. COUNTERPARTS. This Agreement may be executed in one or
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more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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13. SEVERABILITY. In case any provision in this Agreement or
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in any of the other agreements, documents or instruments referred to
herein shall be held invalid, illegal or unenforceable in any
jurisdiction, such provision shall be modified or deleted, as to the
jurisdiction involved, only to the extent necessary to render the same
valid, legal and enforceable, and the validity, legality and
enforceability of the remaining provisions hereof or thereof shall not
in any way be affected or impaired thereby nor shall the validity,
legality or enforceability of such provision be affected thereby in any
other jurisdiction.
14. ENTIRE AGREEMENT. This Agreement and the other agreements,
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documents or instruments referred to herein or executed in connection
herewith embody the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, representations, warranties, covenants or
undertakings, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and the
understandings between the parties with respect to such subject matter.
15. AMENDMENTS, WAIVERS, ETC. This Agreement may not be
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amended, changed, supplemented, waived or otherwise modified or
terminated, except upon the execution and delivery of a written
agreement executed by the parties hereto.
16. NO WAIVER. The failure of any party hereto to exercise
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any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder, and
any custom or practice of the parties at variance with the terms hereof
shall not constitute a waiver by such party of its right to exercise any
such or other right, power or remedy or to demand such compliance.
17. DESCRIPTIVE HEADINGS. The descriptive headings used
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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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IN WITNESS WHEREOF, Acquiror, Acquisition Subsidiary and the
Majority Shareholder have caused this Agreement to be duly executed and
delivered as of the date first above written.
KUONI REISEN HOLDING AG
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: Executive Vice President
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By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
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Title: Director
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DIAMOND HOLDING DELAWARE, INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: Chief Executive Officer
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DIAMOND ACQUISITION SUBSIDIARY
MISSOURI, INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: Chief Executive Officer
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THE REVOCABLE TRUST OF XXXXXX X.
XXXXXXXX, DATED JULY 23, 1986, AS
AMENDED
/s/ Xxxxxx X. Xxxxxxxx
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By: Xxxxxx X. Xxxxxxxx, sole trustee
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, individually
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