VOTING AGREEMENT
Exhibit 9.1
This VOTING AGREEMENT (this “Agreement”) is made and entered into as of October 5,
2009 by and among Xxxxx Enterprises, Incorporated, a Florida corporation (“Parent”), SH
Merger Subsidiary I, Inc., a Pennsylvania corporation and a direct, wholly owned subsidiary of
Parent (“Merger Sub”), ICT Group, Inc., a Pennsylvania corporation (the “Company”),
and the undersigned Shareholders (each a “Shareholder” and collectively, the
“Shareholders”) of the Company. In the case of any Company Shares (as defined below)
subject to this Agreement that are held in a trust, “Shareholder” shall refer to the trustee(s) of
such trust signatory hereto acting in such Shareholder’s capacity as trustee (each, a
“Trustee”, and such trust, a “Trust”). Capitalized terms used but not otherwise
defined in this Agreement shall have the meanings ascribed to them in the Merger Agreement (as
defined below).
WHEREAS, the Company, the Shareholders and certain other shareholders of the Company are party
to that certain Amended and Restated Shareholders’ Agreement dated as of October 16, 2000 (as
modified by that certain Memorandum of Understanding dated as of May 1, 2002 and that certain
Acknowledgment of Memorandum of Understanding dated as of November 21, 2008, the “Shareholders’
Agreement”);
WHEREAS, the Company, Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx are party to that certain Amended
and Restated Voting Trust Agreement dated as of April 1, 2004 (the “Voting Trust
Agreement”);
WHEREAS, Parent, Merger Sub and the Company are entering into an Agreement and Plan of Merger
dated as of the date hereof (the “Merger Agreement”), pursuant to which Merger Sub will
merge with and into the Company (the “Merger”);
WHEREAS, each Shareholder is the beneficial owner of such number of shares of Company Common
Stock (collectively, the “Company Shares”) as set forth on Exhibit A hereto; and
WHEREAS, as a material inducement and a condition to Parent and Merger Sub entering into the
Merger Agreement, Parent has requested that the Shareholders agree, and the Shareholders have
agreed (in the Shareholders’ capacity as such), for the benefit of Parent and Merger Sub, to enter
into this Agreement to facilitate the consummation of the Merger;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
SECTION 1.01. Voting Agreement.
(a) Each Shareholder hereby irrevocably and unconditionally agrees that, during the Voting
Period (as defined below), such Shareholder shall (i) appear (in person or by proxy) at any meeting
(whether annual or special and whether or not an adjourned or postponed meeting) of shareholders of
the Company, properly called, or otherwise cause such Shareholder’s Company Shares to be counted as
present thereat for purposes of establishing a quorum, and (ii) vote or provide a written consent
with respect to such Shareholder’s Company Shares (or will cause such Company Shares to be voted,
or cause a written consent to be provided with respect to all such Company Shares) (A) in favor of
adoption of the Merger Agreement and approval of the Merger and the other transactions contemplated
thereby, (B) against any action, proposal, transaction or agreement that would impede, frustrate,
prevent or materially delay the Merger (a “Frustrating Transaction”), and (C) against any
Acquisition Proposal. In all other matters, each Shareholder’s Company Shares shall be voted by
and in the manner determined by such Shareholder.
(b) As used herein, “Voting Period” shall mean the period commencing on the date of
this Agreement and continuing until the earlier to occur of: (i) the Effective Time, (ii) the
termination of the Merger Agreement in accordance with its terms and (iii) unless expressly
approved by each Shareholder party hereto, the execution of any amendment or modification to the
Merger Agreement, other than with respect to ministerial or immaterial matters and other than an
amendment or modification that increases the Merger Consideration.
(c) Unless entered into in connection with the Company’s entry into an Alternative Acquisition
Agreement in compliance with the terms of the Merger Agreement, each Shareholder hereby agrees that
such Shareholder shall not enter into any agreement or understanding with any person the effect of
which would be inconsistent with or violative of any provision contained in Section 1.01(a)
above.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder hereby severally and not jointly represents and warrants to Parent and Merger
Sub as to himself, herself or itself as follows:
SECTION 2.01. Organization, Qualification.
(a) The Shareholder, if an individual acting in such Shareholder’s individual capacity, has
all legal capacity to enter into this Agreement and to carry out his obligations hereunder.
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(b) The Shareholder, if a Trustee, has been duly appointed and is validly acting as a trustee
of the applicable Trust(s) and, as Trustee, has the requisite power and authority to perform
obligations of such Shareholder under this Agreement. Each Trust has been duly created and is
validly existing and being administered under the laws of the jurisdiction governing the trust
agreement under which such Trust was created.
(c) The Shareholder, if it is a Trustee, is not in violation of any of the provisions of any
applicable trust agreement or organizational documents.
SECTION 2.02. Authority Relative to this Agreement. The Shareholder has all
necessary power and authority (or, if Shareholder is an individual, all legal capacity) to execute
and deliver this Agreement and to perform the Shareholder’s obligations hereunder. This Agreement
has been duly and validly executed and delivered by the Shareholder and constitutes legal, valid
and binding obligations of the Shareholder, enforceable against the Shareholder in accordance with
its terms.
SECTION 2.03. No Conflict.
(a) The execution and delivery of this Agreement by the Shareholder do not, and the
performance of this Agreement by the Shareholder shall not, (i) conflict with or violate the terms
of any trust agreements or equivalent organizational documents of the Shareholder (if the
Shareholder is a Trustee), (ii) conflict with or violate any Laws applicable to the Shareholder or
by which the Company Shares owned by the Shareholder are bound or affected or (iii) result in any
breach of, or constitute a default (or an event that with notice or lapse of time or both would
become a default) under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of an Lien on any of the Company Shares owned by the
Shareholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Shareholder is a party or by which
the Shareholder or the Company Shares owned by the Shareholder are bound or affected, except for
any such conflicts, violations, breaches, defaults or other occurrences that would not,
individually or in the aggregate, prevent or materially delay the Shareholder from performing its
obligations under this Agreement.
(b) Other than such filings as may be required pursuant to applicable securities Laws, the
execution and delivery of this Agreement by the Shareholder does not, and the performance of this
Agreement by the Shareholder shall not, require any consent, approval, authorization or permit of,
or filing with or notification to, any Governmental Entity on the part of the Shareholder.
SECTION 2.04. Title to the Shares. Except as set forth on Exhibit A, as of
the date hereof, the Shareholder is the record and beneficial owner of the Company Shares set forth
opposite such Shareholder’s name on Exhibit A hereto. Except as set forth on Exhibit
A, such Company Shares are now and, at all times during the term hereof will be, all the
securities of the Company owned, either of record or beneficially, by the Shareholder. Except as
otherwise provided in the Voting Trust Agreement, the Shareholder has sole voting power and the
sole power of disposition with respect to all of the Company Shares owned by the Shareholder, with
no limitations, qualifications or restrictions on such rights (subject to the terms of this
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Agreement). The Company Shares owned by the Shareholder are now and, at all times during the term
hereof will be, owned free and clear of all Liens, other than any Liens created by this Agreement,
the Voting Trust Agreement and the Shareholders’ Agreement. Except as provided in this Agreement
and the Voting Trust Agreement, the Shareholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Company Shares owned by the
Shareholder.
SECTION 2.05. Reliance by Parent and Merger Sub. Each Shareholder understands and
acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon
such Shareholder’s concurrent execution and delivery of this Agreement, including Parent’s and
Merger Sub’s reliance on such Shareholder’s representations and warranties contained herein.
ARTICLE III
COVENANTS OF THE SHAREHOLDERS
SECTION 3.01. No Disposition of or Liens on Company Shares. Subject to Section 6.06,
each Shareholder hereby agrees that during the term of this Agreement, except as contemplated by
this Agreement and the Merger Agreement, such Shareholder shall not (a) sell, transfer, tender,
assign, pledge, encumber, contribute to the capital of any entity, hypothecate, give or otherwise
dispose of, grant a proxy or power of attorney with respect to, deposit into any voting trust or
enter into a voting arrangement or agreement, or create or permit to exist any Liens of any nature
whatsoever with respect to, any of such Shareholder’s Company Shares (or agree or consent to, or
offer to do, any of the foregoing), other than Liens, if any, that arise under the Voting Trust
Agreement and the Shareholders’ Agreement, (b) take any action that would have the effect of
preventing such Shareholder from performing such Shareholder’s obligations hereunder or impede,
frustrate, prevent or materially delay the Merger, or (c) directly or indirectly, initiate, solicit
or encourage any person to take actions that could reasonably be expected to lead to the occurrence
of any of the foregoing.
SECTION 3.02. No Solicitation of Transactions. Subject to Section 6.06 hereof, each
Shareholder agrees that during the Voting Period, such Shareholder will not, directly or
indirectly: (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic
information), or take any other action knowingly to facilitate, any inquiries or the making of any
proposal or offer that constitutes an Acquisition Proposal; (ii) enter into or maintain or continue
discussions or negotiations with any person or entity in furtherance of such inquiries or to obtain
an Acquisition Proposal; (iii) agree to, approve, endorse or recommend any Acquisition Proposal or
enter into any letter of intent or other contract, agreement or commitment contemplated by or
otherwise relating to any Acquisition Proposal; or (iv) authorize or permit any of the officers,
directors or employees of such Shareholder or of any entity that such Shareholder directly or
indirectly controls, or any investment banker, financial advisor, attorney, accountant or other
representative retained by such Shareholder or any entity that the Shareholder directly or
indirectly controls, to take any such action; provided, however, that to the extent the
Company is engaged in discussions or negotiations with a person who has made an Acquisition
Proposal or
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Inquiry as permitted by Section 6.4 of the Merger Agreement, the foregoing shall not
prevent or limit the Shareholders from participating in any discussions or negotiations with such
Person regarding an agreement in respect of such Acquisition Proposal that is comparable to this
Agreement. Each Shareholder immediately shall cease and cause to be terminated all existing
discussions or negotiations with any parties (other than Parent) conducted heretofore with respect
to any Acquisition Proposals.
SECTION 3.03. Further Action; Reasonable Best Efforts. Upon the terms and subject to
the conditions hereof, each of the parties shall use its reasonable best efforts to take, or cause
to be taken, all appropriate action that may reasonably be necessary for the purpose of carrying
out the intent of this Agreement.
SECTION 3.04. Public Announcement. Each Shareholder agrees to not make any public
announcement in opposition to, or in competition with, the Merger Agreement or the consummation of
the Merger.
ARTICLE IV
PROXY
SECTION 4.01. Irrevocable Proxy. (a) Subject to Section 6.06 hereof, each
Shareholder hereby appoints the Parent and each of its designees as such Shareholder’s
attorney-in-fact and proxy, with full power of substitution, for and in such Shareholder’s name, to
vote, express, consent, or otherwise to utilize such voting power to act as such Shareholder’s
attorney (including, without limitation, the power to execute and deliver written consents), with
respect to the Company Shares beneficially owned by such Shareholder at every meeting of the
shareholders of the Company, however called, and in every action by written consent by the
shareholders of the Company: (x) in favor of adoption of the Merger Agreement and approval of the
Merger and the other transactions contemplated thereby; (y) against any Frustrating Transaction and
(z) against any Acquisition Proposal. The proxy granted by each Shareholder pursuant to this
Section 4.01(a) is irrevocable (to the fullest extent permitted by law) and coupled with an
interest as it is granted in consideration of Parent entering into this Agreement and the Merger
Agreement and incurring certain related fees and expenses. The Parent and each of its designees
may not exercise the proxy granted by each Shareholder pursuant to this Section 4.01(a), and each
Shareholder retains all rights with respect to, any other matter not set forth in this Section
4.01(a).
(b) The proxy granted by each Shareholder pursuant to Section 4.01(a) shall terminate,
and be of no further force and effect, automatically upon the expiration of the Voting Period.
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ARTICLE V
TERMINATION
SECTION 5.01. Termination. This Agreement, and all rights and obligations of the
parties hereunder shall terminate upon the expiration of the Voting Period.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Voting Trust Agreement and Shareholders’ Agreement. The Company and
each Shareholder hereby (a) consents to the execution and delivery of this Agreement by the
Shareholders and to such other Shareholders’ agreements to vote in favor of approval of the Merger
Agreement as contemplated hereby, (b) covenants and agrees that, for the avoidance of doubt, the
restrictions on transfer set forth in Section 1(a) of the Shareholders’ Agreement shall not apply
to the Merger, and (c) covenants and agrees to do all things necessary and appropriate to cause
each of the Voting Trust Agreement and the Shareholders’ Agreement to terminate and be of no
further force or effect subject to the consummation of the Merger, and effective as of the
Effective Time.
SECTION 6.02. Amendment. This Agreement may not be amended except by an instrument
in writing signed by the Parent, Merger Sub, the Company and each of the Shareholders party hereto.
SECTION 6.03. Waiver. Any party to this Agreement as to himself, herself or itself
may (i) extend the time for the performance of any obligation or other act of any other party
hereto, (ii) waive any inaccuracy in the representations and warranties of another party contained
herein or in any document delivered pursuant hereto and (iii) waive compliance with any agreement
of another party contained herein. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound thereby.
SECTION 6.04. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be deemed to have been
duly given upon receipt) by delivery in person, by facsimile (with confirmed receipt) or 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 in a notice
given in accordance with this Section 6.04):
(a) if to any Shareholder, to the address set forth after such Shareholder’s name on the
signature pages hereto, with a copy to the Company at the address below
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If to Parent or Merger Sub:
Xxxxx Enterprises, Incorporated
000 X. Xxxxxx Xx.
Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq., General Counsel
Facsimile: (000) 000-0000
000 X. Xxxxxx Xx.
Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq., General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx, Loop & Xxxxxxxx LLP
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to the Company:
ICT Group, Inc.
000 Xxxxxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
000 Xxxxxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to each Shareholder at the address set forth after such Shareholder’s
name on the signature pages hereto.
SECTION 6.05. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any Laws, or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated by this Agreement is not affected in
any manner materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties
as closely as possible in a mutually acceptable manner in order that the transactions
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contemplated by this Agreement be consummated as originally contemplated to the fullest extent
possible.
SECTION 6.06. Shareholder Capacity. The parties acknowledge that this Agreement is
entered into by each Shareholder in his, her or its capacity as owner of the Company Shares and
that nothing in this Agreement shall in any way restrict or limit any director or officer of the
Company from taking any action in his capacity as a director or officer of the Company that is
necessary or appropriate for him to carry out his obligations as a director or officer of the
Company, including, without limitation, participating in his capacity as such in any discussions or
negotiations in accordance with Section 6.4 of the Merger Agreement. It is expressly understood
and agreed by the parties hereto that, with respect to any Shareholder who is Trustee of a Trust,
(i) this Agreement is executed and delivered by such Shareholder not in his individual capacity but
solely as Trustee of such Trust in the exercise of the power and authority conferred and vested in
him as Trustee; (ii) each of the representations, undertakings and agreements made herein by a
Trustee is made and intended not as a personal representation, undertaking and agreement of the
Trustee but is made and intended for the purpose of binding the Trustee only in his capacity as
trustee of such Trust; (iii) nothing contained herein shall be construed as creating any liability
on the part of a Trustee, individually or personally, to perform any covenant of such Shareholder
either expressed or implied contained herein other than in his capacity as trustee of such Trust
and out of and to the extent of the assets of such Trust; and (iv) under no circumstances shall a
Trustee be personally liable for the payment of any indebtedness or expense of such Trust or be
liable for the breach or failure of any obligation, representation, warranty or covenant made or
undertaken by such Shareholder under this Agreement, or otherwise, except out of and to the extent
of the assets of such Trust and not out of the personal assets of such Trustee.
SECTION 6.07. Assignment. This Agreement shall not be assigned by operation of law
or otherwise, except that the Parent may assign all or any of its rights and obligations hereunder
to any Affiliate, provided that no such assignment shall relieve the assigning party of its
obligations hereunder if such assignee does not perform such obligations.
SECTION 6.08. Parties in Interest; Third Parties. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express
or implied, is intended to or shall confer upon any other person any right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
SECTION 6.09. Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement were not performed in accordance with the
terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
SECTION 6.10. Governing Law; Consent to Jurisdiction. The implementation and
interpretation of this Agreement shall be governed by and enforced in accordance with the laws of
the Commonwealth of Pennsylvania without giving effect to the conflicts of law provisions thereof.
Each party hereto, for itself and its successors and assigns, (i) irrevocably submits to the
exclusive jurisdiction the United States District Court for the Eastern District of
Pennsylvania (and in the absence of federal jurisdiction, the parties consent to the exclusive
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jurisdiction of the applicable Pennsylvania state court sitting in Philadelphia, Pennsylvania) for
the purposes of any Legal Proceeding arising out of or related to this Agreement; (ii) agrees to
commence any action, suit or proceeding relating hereto either in the United States District Court
for the Eastern District of Pennsylvania or if such suit, action or other proceeding may not be
brought in such court for jurisdictional reasons, in the applicable Pennsylvania state court
sitting in Philadelphia, Pennsylvania; (iii) agrees that service of any process, summons, notice or
document by U.S. registered mail to such party’s respective address set forth in Section 6.04 (or
at such other address of which the other parties shall have been notified in accordance with the
provisions of Section 6.04) shall be effective service of process for any action, suit or
proceeding in Pennsylvania with respect to any matters to which it has submitted to jurisdiction in
this Section; (iv) irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions contemplated
hereby in (X) the United States District Court for the Eastern District of Pennsylvania, or (Y) any
Pennsylvania state court of competent jurisdiction sitting in Philadelphia, Pennsylvania; and (v)
hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such
court that any such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
SECTION 6.11. Expenses. All costs and expenses, including, without limitation, fees
and disbursements of counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs
and expenses.
SECTION 6.12. Shareholder Obligations Several and Not Joint. The obligations of each
Shareholder hereunder shall be several and not joint and no Shareholder shall be liable for any
breach of the terms of this Agreement by any other Shareholder.
SECTION 6.13. Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 6.14. Counterparts. This Agreement may be executed and delivered (including
by facsimile transmission) in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
SECTION 6.15. Beneficial Owner. In this Agreement, “beneficial owner” has
the meaning ascribed to that term in Rule 13d-3(a) of the Securities Exchange Act of 1934, as
amended, and “beneficially owned” has a consequent meaning.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be executed as of
the date first above written.
XXXXX ENTERPRISES, INCORPORATED |
||||
By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | President and Chief Executive Officer | |||
SH MERGER SUBSIDIARY I, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | President | |||
ICT GROUP, INC. |
||||
By: | /s/ Xxxx X. Xxxxxxx | |||
Name: | Xxxx X. Xxxxxxx | |||
Title: | President and Chief Executive Officer | |||
Shareholders: Xxxx X. Xxxxxxx |
||||
/s/ Xxxx X. Xxxxxxx | ||||
Xxxx X. Xxxxxxx |
||||
Address: c/o ICT Group, Inc. 000 Xxxxxxxxxx Xxxx. Xxxxxxx, XX 00000 Attention: Xxxx X. Xxxxxxx Facsimile: (000) 000-0000 |
||||
/s/ Xxxx X. Xxxxxxx | ||||
Xxxx X. Xxxxxxx, not individually but as trustee under the Amended and Restated Voting Trust Agreement dated April 1, 2004 | ||||
/s/ Xxxxxx X. Xxxxxxx | ||||
Xxxxxx X. Xxxxxxx, not individually but as trustee under the Amended and Restated Voting Trust Agreement dated April 1, 2004 |
||||
Address: c/o ICT Group, Inc. 000 Xxxxxxxxxx Xxxx. Xxxxxxx, XX 00000 Attention: Xxxx X. Xxxxxxx Facsimile: (000) 000-0000 |
||||
Xxxxxx X. Xxxxxxx |
||||
/s/ Xxxxxx X. Xxxxxxx | ||||
Xxxxxx X. Xxxxxxx |
||||
Address: c/o ICT Group, Inc. 000 Xxxxxxxxxx Xxxx. Xxxxxxx, XX 00000 Attention: Xxxx X. Xxxxxxx Facsimile: (000) 000-0000 |
/s/ Xxxxxx Xxxxxxx Oakley | ||||
Xxxxxx Xxxxxxx Oakley, not individually but as trustee of separate trusts under
The Xxxxxxx Family 1996 Trust Agreement dated February 16, 1996 f/b/o Xxxxxx X.
Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxxxx, Xx., Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx,
Xxxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx,
and of separate trusts under The Xxxxxxx Family 1997 Trust Agreement dated
February 14, 1997 f/b/o Xxxxxx X. Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxxxx, Xx.,
Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx |
EXHIBIT A
Shares Beneficially Owned By the Shareholders
Number of Outstanding | ||||
Shares of Common Stock | ||||
Beneficially Owned by | ||||
Name of Shareholder: | Shareholder: | |||
Xxxx X. Xxxxxxx |
651,123 | * | ||
Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx as Trustees under the Voting Trust created under
the Amended and Restated Voting Trust Agreement
dated April 1, 2004 |
4,500,000 | |||
Xxxxxx X. Xxxxxxx |
— | ** | ||
Xxxxxx Xxxxxxx Oakley as Trustee of separate
trusts under The Xxxxxxx Family 1996 Trust
Agreement dated February 16, 1996*** |
||||
f/b/o Xxxxxx X. Xxxxxxx Oakley |
14,208 | |||
f/b/o Xxxxxx X. Xxxxxxx, Xx. |
14,208 | |||
f/b/o Xxxxxxx X. Xxxxxxx |
14,208 | |||
f/b/o Xxxxxxx X. Xxxxxxx |
14,208 | |||
f/b/o Xxxxxxxx X. Xxxxxxx |
14,208 | |||
f/b/o Xxxx X. Xxxxxxx |
14,208 | |||
Xxxxxx Xxxxxxx Oakley as Trustee of separate
trusts under The Xxxxxxx Family 1997 Trust
Agreement dated February 14, 1997*** |
||||
f/b/o Xxxxxx X. Xxxxxxx Oakley |
179,547 | |||
f/b/o Xxxxxx X. Xxxxxxx, Xx. |
179,546 | |||
f/b/o Xxxxxxx X. Xxxxxxx |
145,267 | |||
f/b/o Xxxxxxx X. Xxxxxxx |
196,186 | |||
f/b/o Xxxxxxxx X. Xxxxxxx |
196,186 | |||
f/b/o Xxxx X. Xxxxxxx |
196,186 |
* | Does not include (i) 4,500,000 shares of Company Common Stock, 2,250,000 of which are owned by Xxxx X. Xxxxxxx and 2,250,000 of which are owned by Xxxxxx X. Xxxxxxx, over which Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx share dispositive power and certain voting power as Trustees under the Voting Trust created under the Amended and Restated Voting Trust Agreement dated April 1, 2004 (the “Voting Trust Shares”), (ii) 172,698 shares of Company Common Stock over which Xxxx X. Xxxxxxx exercises voting control pursuant to certain voting agreements entered into by and among current and former employees of the Company, Xxxx X. Xxxxxxx and the Company, (iii) 99,500 shares of Company Common Stock issuable pursuant to stock options that are exercisable within sixty (60) days of the date hereof, or (iv) 45,200 shares of Company Common Stock held jointly by Xxxx X. Xxxxxxx and Xxxx Xxxxxxx. | |
** | Does not include (i) the Voting Trust Shares, (ii) 25,000 shares of Company Common Stock issuable pursuant to stock options that are exercisable within sixty (60) days of the date hereof, or (iii) shares of Company Common Stock which may be (X) distributed to Xxxxxx X. Xxxxxxx on or within 105 days of October 23, 2009 (the “Payment Date”) from a grantor retained annuity trust (the “GRAT”) in existence on the date of this Agreement in satisfaction of an annuity of $1,013,185.11 payable to Xxxxxx X. Xxxxxxx on the Payment Date, which annuity amount may be paid with a maximum of 492,084 shares of Company Common Stock (such shares being all of the shares of Company Common Stock currently held in the GRAT, the current trustees of which are Xxxxxx X. Xxxxxxx, Xxxxxxxx |
X. Xxxxxxx and The Northern Trust Company, with Xxxxxxxx X. Xxxxxxx, as trustee, having sole power, authority and discretion with respect to Company Common Stock held in the GRAT), or (Y) purchased by Xxxxxx X. Xxxxxxx from the GRAT. | ||
*** | The trustees of these trusts are Xxxxxx Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxxxx and The Northern Trust Company. The Northern Trust Company is successor to The Xxxxxxx Sachs Trust Company as a co-trustee of the trusts. Re-registration of the shares of Company Common Stock held in the trusts to substitute The Northern Trust Company as a record owner (along with Xxxxxx Xxxxxxx Oakley and Xxxxxx X. Xxxxxxx) in place of The Xxxxxxx Xxxxx Trust Company is in process. Under the terms of the applicable trust agreements Xxxxxx Xxxxxxx Oakley, as trustee, has sole power to vote and dispose of the shares and therefore is the beneficial owner thereof. |