STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of _____
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__, 2001, by and between M-Foods Investors, LLC, a Delaware limited liability
company ("Investors"), and the Persons named on the signature pages hereto (each
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a "Shareholder", and collectively the "Xxxxxxx Family Securityholders").
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WHEREAS, the Xxxxxxx Family Securityholders are shareholders of
Xxxxxxx Foods, Inc., a Minnesota corporation (the "Company");
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WHEREAS, the Company has entered into an Agreement and Plan of Merger
with M-Foods Holdings, Inc., a Delaware corporation, and a wholly owned
subsidiary of Investors ("Holdings"), and Protein Acquisition Corp., a Minnesota
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corporation, and a wholly owned subsidiary of Holdings ("Merger Sub"), dated as
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of December 21, 2000, as amended from time to time in accordance with its terms
(the "Merger Agreement"), pursuant to which Merger Sub shall be merged with and
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into the Company (the "Acquisition"), in accordance with the terms and
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conditions of the Merger Agreement and the relevant provisions of the MBCA (as
defined in the Merger Agreement), and the surviving corporation shall be the
Company;
WHEREAS, prior to the consummation of the transactions contemplated by
this Agreement and the Merger Agreement, each Shareholder is the record and
beneficial owner of the number of shares of the Company's common stock, par
value $0.01 per share (the " Shares"), set forth opposite its name on the
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Schedule I attached hereto; and
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WHEREAS, on the terms and subject to the conditions hereof, Investors
desires to acquire from each Shareholder, and each Shareholder desires to sell
to Investors, all of its Shares (the "Purchased Shares").
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NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Definitions.
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1.1 Acquisition. The term "Acquisition" shall have the meaning set forth
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in the preface.
1.2 Agreement. The term "Agreement" shall have the meaning set forth in
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the preface.
1.3 Closing. The "Closing" for the sale and purchase of the Shares
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hereunder shall occur immediately prior to and in connection with the
consummation of the Acquisition.
1.4 Closing Date. The term "Closing Date" shall mean the date on which
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the Closing occurs.
1.5 Closing Transactions. The term "Closing Transactions" shall have the
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meaning set forth in Section 2.3.
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1.6 Company. The term "Company" shall have the meaning set forth in the
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preface.
1.7 Intentionally Omitted.
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1.8 Holdings. The term "Holdings" shall have the meaning set forth in the
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preface.
1.9 Merger Agreement. The term "Merger Agreement" shall have the meaning
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set forth in the preface.
1.10 Merger Sub. The term "Merger Sub" shall have the meaning set forth in
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the preface.
1.11 Xxxxxxx Family Securityholders. The term "Xxxxxxx Family
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Securityholders" shall have the meaning set forth in the preface.
1.12 Intentionally Omitted.
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1.13 Person. The term "Person" shall mean any individual, corporation,
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partnership, limited liability company, trust, joint stock company, business
trust, unincorporated association, joint venture, governmental authority or
other entity of any nature whatsoever.
1.14 Purchased Shares. The term " Purchased Shares" shall have the meaning
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set forth in the preface.
1.15 Securities Act. The term "Securities Act" shall mean the Securities
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Act of 1933, as amended, and all rules and regulations promulgated thereunder,
as the same may be amended from time to time.
1.16 Securityholders Agreement. The term "Securityholders Agreement" shall
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mean the Securityholders Agreement dated as of the Closing Date among the
Company and its securityholders, as it may be amended or supplemented thereafter
from time to time.
1.17 Shareholder. The term "Shareholder" shall have the meaning set forth
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in the preface.
1.18 Share Purchase Price. The term "Share Purchase Price" shall have the
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meaning set forth in Section 2.2.
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1.19 Shares. The term "Shares" shall have the meaning set forth in the
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preface.
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2. Purchase and Sale of Shares.
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2.1 Purchase and Sale of the Shares. At the Closing, upon the terms and
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subject to the conditions set forth in this Agreement, each Shareholder shall
sell, assign, transfer and convey to Investors, and Investors shall purchase and
acquire from each Shareholder, its Purchased Shares against payment at the
Closing of an aggregate amount equal to the Share Purchase Price by wire
transfer of immediately available funds to one or more accounts specified by the
Xxxxxxx Family Securityholders in a written notice to Investors prior to the
Closing Date.
2.2 Share Purchase Price. The aggregate purchase price for the Purchased
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Shares (the "Share Purchase Price") will consist of the payment of an amount of
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cash, equal to $30.10 per Purchased Share, as set forth on Schedule I.
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2.3 Closing Events. At the Closing, subject to the terms and conditions
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set forth in this Agreement, the parties hereto shall consummate the following
"Closing Transactions":
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(a) The Xxxxxxx Family Securityholders shall deliver to Investors
stock certificates representing the Purchased Shares duly endorsed for transfer
or accompanied by duly executed stock powers or forms of assignment; and
(b) Investors shall deliver to the Xxxxxxx Family Securityholders the
amount of the Share Purchase Price by wire transfer of immediately available
funds to one or more accounts designated by the Xxxxxxx Family Securityholders
in writing to Investors prior to the Closing.
3. Representations and Warranties.
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3.1 Stock Purchase Representations of the Xxxxxxx Family Securityholders.
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Each Shareholder represents and warrants to Investors that the statements
contained in this Section 3.1 are correct and complete as of the date of this
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Agreement, with respect to itself:
(a) Power and Authority. [Each Shareholder is a duly organized,
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validly existing [______], and each Shareholder is in good standing under the
laws of the jurisdiction of its formation.] Each Shareholder has full power and
authority to execute and deliver this Agreement and perform his obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of the Shareholder, enforceable in accordance with its terms and conditions. No
Shareholder need give any notice to, make any filing with, or obtain any
authorization, consent or approval of any government or governmental agency in
order to consummate the transactions contemplated by this Agreement.
(b) Noncontravention. Neither the execution and the delivery of this
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Agreement, nor the consummation of the transactions contemplated hereby, will
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which any Shareholder is subject or conflict
with,
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result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, license, instrument,
or other arrangement to which any Shareholder is a party or by which it is bound
or to which any of its assets is subject.
(c) Brokers' Fees. The Xxxxxxx Family Securityholders have no
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liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement for which
Investors could become liable or obligated.
(d) Capital Stock. Each Shareholder holds of record and owns
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beneficially the number of Shares set forth next to its name on Schedule I, free
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and clear of any restrictions on transfer (other than any restrictions under the
Securities Act and state securities laws), taxes, security interests, options,
warrants, purchase rights, contracts, commitments, equities, claims, and
demands. No Shareholder is a party to any option, warrant, purchase right, or
other contract or commitment that could require any such Shareholder to sell,
transfer, or otherwise dispose of any capital stock of the Company (other than
this Agreement). No Shareholder is a party to any voting trust, proxy, or other
agreement or understanding with respect to the voting of any capital stock of
Xxxxxxx.
3.2 Representations of Investors. Investors represents to the Xxxxxxx
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Family Securityholders that the statements contained in this Section 3.2 are
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correct and complete as of the date of this Agreement:
(a) Organization and Power. Investors is a limited liability company
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duly organized, validly existing and in good standing under the laws of the
State of Delaware, with full power and authority to enter into this Agreement
and perform its obligations hereunder.
(b) Authorization. The execution, delivery and performance of this
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Agreement by Investors and the consummation of the transactions contemplated
hereby by Investors have been duly and validly authorized by all requisite
company action on the part of Investors, and no other proceedings on its part
are necessary to authorize the execution, delivery or performance of this
Agreement. This Agreement has been duly executed and delivered by Investors,
and this Agreement constitutes a valid and binding obligation of Investors,
enforceable in accordance with its terms and conditions. Investors need not
give any notice to, make any filing with, or obtain any authorization, consent
or approval of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement.
(c) Noncontravention. Neither the execution and the delivery of this
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Agreement, nor the consummation of the transactions contemplated hereby, will
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Investors is subject or any provision of
its charter or bylaws or conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any
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notice under any agreement, contract, lease, license, instrument, or other
arrangement to which Investors is a party or by which it is bound or to which
any of its assets is subject.
(d) Investment. Investors is not acquiring the Shares with a view
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to or for sale in connection with any distribution thereof within the meaning of
the Securities Act.
4. Intentionally Omitted.
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5. Intentionally Omitted.
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6. Miscellaneous.
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6.1 Binding Effect. The provisions of this Agreement shall be binding
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upon and accrue to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assigns.
6.2 Amendment; Waiver. This Agreement may be amended only by a written
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instrument signed by the parties hereto. No waiver by any party hereto of any
of the provisions hereof shall be effective unless set forth in a writing
executed by the party so waiving.
6.3 Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed therein.
6.4 Jurisdiction. Any suit, action or proceeding with respect to this
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Agreement, or any judgment entered by any court in respect of any thereof, shall
be brought in any court of competent jurisdiction in the State of Delaware, and
each of Investors and the members of the Xxxxxxx Family Securityholders hereby
submits to the exclusive jurisdiction of such courts for the purpose of any such
suit, action, proceeding or judgment. Each of the members of the Xxxxxxx Family
Securityholders and Investors hereby irrevocably waives any objections which it
may now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any court of
competent jurisdiction in the State of Delaware, and hereby further irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in any inconvenient forum.
6.5 Notices. All notices and other communications hereunder shall be in
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writing and shall be deemed to have been duly given when personally delivered,
telecopied (with confirmation of receipt), one day after deposit with a
reputable overnight delivery service (charges prepaid) and three days after
deposit in the U.S. Mail (postage prepaid and return receipt requested) to the
address set forth below or such other address as the recipient party has
previously delivered notice to the sending party.
(a) If to Investors:
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M-Foods Investors, LLC
c/o Vestar Capital Partners IV, L.P.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copies to:
Vestar Capital Partners IV, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
(b) If to the Xxxxxxx Family Securityholders, to the address as shown
on the signature page hereto with copies to:
Xxxx Xxxxxxxxxx Ltd.
Attn: Xxxxxx Xxxx, Esq.
4100 Xxxxx Xxxxxxx Tower
000 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
6.6 Integration. This Agreement and the documents referred to herein or
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delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
6.7 Counterparts. This Agreement may be executed in separate counterparts
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(including by means of telecopied signature pages), and by different parties on
separate counterparts each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
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6.8 Injunctive Relief. The Xxxxxxx Family Securityholders and their
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Permitted Transferees each acknowledges and agrees that a violation of any of
the terms of this Agreement will cause Investors irreparable injury for which
adequate remedy at law is not available. Accordingly, it is agreed that
Investors shall be entitled to an injunction, restraining order or other
equitable relief to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof, in addition to any other
remedy to which it may be entitled at law or equity.
6.9 Rights Cumulative; Waiver. The rights and remedies of the Xxxxxxx
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Family Securityholders and Investors under this Agreement shall be cumulative
and not exclusive of any rights or remedies which either would otherwise have
hereunder or at law or in equity or by statute, and no failure or delay by
either party in exercising any right or remedy shall impair any such right or
remedy or operate as a waiver of such right or remedy, nor shall any single or
partial exercise of any power or right preclude such party's other or further
exercise or the exercise of any other power or right. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any preceding or succeeding breach and no failure by
either party to exercise any right or privilege hereunder shall be deemed a
waiver of such party's rights or privileges hereunder or shall be deemed a
waiver of such party's rights to exercise the same at any subsequent time or
times hereunder.
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IN WITNESS WHEREOF, the parties have executed this Stock Purchase Agreement
as of the date first above written.
M-FOODS INVESTORS, LLC
By: Vestar Capital Partners IV, L.P.
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Its: ________________________________
By: ________________________________
Its: ________________________________
[XXXXXXX FAMILY SECURITYHOLDERS]
By: ________________________________
Its: ________________________________
____________________________
___________________
___________________
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SCHEDULE I
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Shareholder Shares of Common Stock
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ASTA Enterprises Limited Partnership 136,867
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Xxxxxxx X. Xxxxxxx 5,560
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Xxxxxx X. Xxxxxxx 1,405
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Xxxxxxx X. Xxxxxxx Custodian 730
Xxxxxx X. Xxxxxxx UTMA
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Xxxxxxx X. He 1,798
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Xxx Xx 1,405
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Xxxxxxxx X. He Custodian 730
Sophia He UTMA
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Xxxxxxx X. He Custodian 730
Iris He UTMA
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Xxxxxxxx X. Xxxxxx 1,798
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Xxx Xxxxxx 1,405
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Xxxxxxxx X. Xxxxxx Custodian 730
Xxxxxxx Xxxxxx UTMA
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Xxxxxxxx X. Xxxxxx Custodian 730
Xxxx Xxxxxx UTMA
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Xxxxxxx X. Xxxxxx 1,798
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Xxxx Xxxxxx 1,405
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Xxxxxxx X. Xxxxxx Custodian 730
Xxx Xxxxxx UTMA
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Xxxxxxx X. Xxxxxx Custodian 730
Xxxxx Xxxxxx UTMA
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Xxxxxxx Xxxxxx Custodian 730
Xxxxxxx Xxxxxx UTMA
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Xxxxxxxx X. Xxxxxxx Revocable Trust 1,798
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Xxxxxxx X. Xxxxxxx Revocable Trust 1,405
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Xxxxxxxx X. Xxxxxxx Custodian 730
Xxxxx Xxxxxxx UTMA
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Xxxxxxxx X. Xxxxxxx Custodian 730
Xxxxxxxxx Xxxxxxx UTMA
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Xxxxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxxx XX 2,250
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Xxxxxxxx Xxxxxx and Xxx Xxxxxx JT 1,125
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