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Exhibit No. 3
TENDER AGREEMENT
THIS TENDER AGREEMENT (this "Agreement") is entered into as of February
14, 2001, by and between American Express Travel Related Services Company, Inc.,
a New York corporation ("Parent"), and Depping 1999 Investment Limited
Partnership ("Stockholder").
WHEREAS, Parent, AMTRS Corp., a Delaware corporation and a wholly owned
subsidiary of Parent ("Purchaser"), and XxxxxxXxxxxx.xxx Inc., a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of Merger
of even date herewith (the "Merger Agreement") which provides (subject to the
conditions set forth therein) for the acquisition of shares of Common Stock of
the Company by Parent pursuant to a tender offer by Parent and Purchaser
followed by the merger of Purchaser with and into the Company (the "Merger").
WHEREAS, in order to induce Parent and Purchaser to enter into the
Merger Agreement, Stockholder is entering into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good an
valuable consideration the parties to this Agreement, intending to be legally
bound, agree as follows:
SECTION 1
CERTAIN DEFINITIONS
For purposes of this Agreement:
(a) "Company Common Stock" shall mean the common stock, par
value $.0l per share, of the Company.
(b) "Expiration Date" shall mean the earliest of (i) the date
upon which the Merger Agreement is terminated; (ii) the date upon which the
Merger is effected; (iii) the date upon which all of the Stockholder's now owned
or hereafter acquired shares of Company Common Stock are purchased by Parent or
Purchaser pursuant to the Offer (as defined in the Merger Agreement) and (iv)
the date on which the Offer terminates without the prompt purchase of Company
Common Stock thereunder.
(c) Stockholder shall be deemed to "Own" or to have acquired
"Ownership" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of such security.
(d) "Person" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(e) "Subject Securities" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock and all options, warrants
and other rights to acquire shares of Company Common Stock) Owned by Stockholder
as of the date of this Agreement; and (ii) all additional securities of the
Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares
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of Company Common Stock) of which Stockholder acquires Ownership during the
period from the date of this Agreement through the Expiration Date.
(f) A Person shall be deemed to have a effected a "Transfer"
of a security if such Person directly or indirectly: (i) sells, pledges,
encumbers, grants an option with respect to, transfers or disposes of such
security or any interest in such security; or (ii) enters into an agreement or
commitment contemplating the possible sale of, pledge of, encumbrance of, grant
of an option with respect to, transfer of or disposition of such security or any
interest therein.
SECTION 2
TENDER OF SHARES
2.1 Tender Agreement. Stockholder agrees, pursuant to the terms and
subject to the conditions set forth herein:
(a) to tender for exchange in the Offer all shares of Company
Common Stock currently held by Stockholder as set forth beside Stockholder's
name on Exhibit A attached hereto and any additional shares of Company Common
Stock acquired by Stockholder (whether by purchase, upon conversion of options
or convertible securities or otherwise) after the date of this Agreement
(collectively, the "Stockholder's Shares"); and
(b) as promptly as practicable (but no later than five
business days) after commencement of the Offer (or, in the case of shares of
Company Common Stock acquired by Stockholder after commencement of the Offer, as
promptly as practicable after such acquisition), Stockholder shall, as
appropriate, (x) deliver to the Disbursing Agent (the "Disbursing Agent")
designated in the Offer (i) a letter of transmittal with respect to the
Stockholder's Shares complying with the terms of the Offer together with
instructions directing the Disbursing Agent to make payment for the
Stockholder's Shares directly to Stockholder, (ii) a certificate or certificates
representing the Stockholder's Shares and (iii) all other documents or
instruments required to be delivered pursuant to the terms of the Offer
(collectively, the "Tender Documents"), and/or (y) instruct its broker or such
other Person who is the holder of record of any shares of Common Stock Owned by
Stockholder to tender such shares for exchange in the Offer pursuant to the
terms and conditions of the Offer.
(c) Stockholder shall not withdraw any tender effected in
accordance with this Section 2.1; provided, however, that Stockholder shall have
the right to withdraw any tender effected in accordance with this Section 2.1 if
the Merger Agreement is terminated.
2.2 Proxy.
(a) Stockholder hereby irrevocably (to the fullest extent
permitted by law) appoints and constitutes each of Xxxxxxx X. Xxxxxx, Xxxxxxx
Xxxxxx and Parent the attorneys and proxies of the undersigned with full power
of substitution and resubstitution, to the full extent of the undersigned's
rights with respect to (i) the outstanding shares of capital stock of the
Company Owned by the undersigned as of the date of this Agreement, which shares
are specified on Exhibit A hereto and (ii) any and all other shares of capital
stock of the Company which the undersigned may acquire on or after the date
hereof or otherwise obtain the right to vote. (The
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shares of the capital stock of the Company referred to in clauses "(i)" and
"(ii)" of the immediately preceding sentence are collectively referred to as the
"Shares.") Upon the execution hereof, all prior proxies given by the undersigned
with respect to any of the Shares are hereby revoked, and the undersigned agrees
that no subsequent proxies will be given with respect to any of the Shares.
(b) This proxy is irrevocable, is coupled with an interest
between Parent and the undersigned and is granted in consideration of Parent
entering into the Merger Agreement.
(c) The attorneys and proxies named above will be empowered,
and may exercise this proxy, to vote the Shares at any time until (and
including) the Expiration Date at any meeting of the stockholders of the
Company, however called, or in connection with any solicitation of written
consents from stockholders of the Company, (i) in favor of the approval and
adoption of the Merger Agreement and the approval of the Merger, and in favor of
each of the other actions contemplated by the Merger Agreement, (ii) against any
proposal for any recapitalization, merger, sale of assets or other business
combination between the Company and any person or entity (other than the Merger)
and (iii) against any action or agreement that would result in a breach of any
covenant, representation or warranty or would result in any obligation or
agreement of the Company under the Merger Agreement not being fulfilled or would
result in the Company being required to pay to Parent or Purchaser the fee
contemplated in Section 8.2 of the Merger Agreement.
(d) The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
(e) This proxy shall terminate upon the Expiration Date.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
3.1 Authorization, etc. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Agreement and
to perform Stockholder's obligations hereunder and thereunder. This Agreement
has been duly executed and delivered by Stockholder and constitutes the legal,
valid and binding obligation of Stockholder, enforceable against Stockholder in
accordance with its terms, subject to (i) laws of general application relating
to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief and other equitable remedies.
3.2 No Conflicts or Consents.
(a) The execution and delivery of this Agreement by
Stockholder does not, and, to Stockholder's knowledge as of the date of this
Agreement, the performance of this Agreement by Stockholder in accordance with
its terms will not: (i) conflict with or violate any law, rule, regulation,
order, decree or judgment applicable to Stockholder or by which
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Stockholder or any of Stockholder's properties is or may be bound or affected;
or (ii) result in or constitute (with or without notice or lapse of time) any
breach of or default under, or give to any other Person (with or without notice
or lapse of time) any right of termination, amendment, acceleration or
cancellation of, or result (with or without notice or lapse of time) in the
creation of any encumbrance or restriction on any of the Subject Securities
pursuant to, any contract to which Stockholder is a party or by which
Stockholder or any of his affiliates or properties is or may be bound or
affected.
(b) The execution and delivery of this Agreement by
Stockholder does not, and the performance of this Agreement by Stockholder will
not, require any consent or approval of any Person.
3.3 Title to Securities. As of the date of this Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Company Common Stock set forth beside
Stockholder's name on Exhibit A hereto under the heading "Shares Held of
Record"; (b) Stockholder holds (free and clear of any encumbrances or
restrictions) the options, warrants and other rights to acquire shares of
Company Common Stock set forth beside Stockholder's name on Exhibit A hereto
under the heading "Options and Other Rights"; (c) Stockholder Owns the
additional securities of the Company set forth beside Stockholder's name on
Exhibit A hereto under the heading "Additional Securities Beneficially Owned";
and (d) Stockholder does not directly or indirectly Own any shares of capital
stock or other securities of the Company, or any option, warrant or other right
to acquire (by purchase, conversion or otherwise) any shares of capital stock or
other securities of the Company, other than the shares and options, warrants and
other rights set forth beside Stockholder's name on Exhibit A hereto.
3.4 Accuracy of Representations. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times through (and including)
the Expiration Date and will be accurate in all respects as of the date of the
consummation of the Merger as if made on that date.
3.5 Finder's Fees. No investment banker, broker, finder or other Person
is entitled to a commission or fee from Parent or Purchaser in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of
Stockholder, other than any arrangement or agreement made by or on behalf of the
Company in Stockholder's capacity as an officer or director of the Company.
SECTION 4
ADDITIONAL COVENANTS OF STOCKHOLDER
4.1 Further Assurances. Stockholder agrees that, subject to the
fiduciary duty under applicable law of Stockholder as a director of the Company
(if Stockholder is such a director) as further provided in the Merger Agreement,
Stockholder shall not take any action which in any manner delays, xxxxxx or
impedes the successful completion of the Offer and the Merger in an expeditious
manner. In addition, from time to time and without additional consideration,
Stockholder shall execute and deliver, or cause to be executed and delivered,
such additional transfers, assignments, endorsements, proxies, consents and
other instruments, and shall take
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such further actions, as Parent may reasonably request for the purpose of
carrying out and furthering the intent of this Agreement.
4.2 No Proxies for or Encumbrances on Stockholder Shares. Except
pursuant to the terms of this Agreement or the Offer Documents (as defined in
the Merger Agreement), Stockholder shall not, without the prior written consent
of Parent, directly or indirectly, (i) grant any proxies or enter into any
voting trust or other agreement or arrangement with respect to the voting of any
of the Stockholder's Shares or (ii) sell, assign, transfer, encumber or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment, transfer,
encumbrance or other disposition of, any Subject Securities during the term of
this Agreement.
4.3 No Shopping. Stockholder, personally or in the capacity as a
stockholder, shall not directly or indirectly (a) subject to the fiduciary duty
under applicable law of Stockholder as a director of the Company (if Stockholder
is such a director) as further provided in the Merger Agreement, solicit,
initiate or encourage (or authorize any person to solicit, initiate or
encourage) any inquiry, proposal or offer from any person to acquire the
business, property or capital stock of the Company or any direct or indirect
subsidiary thereof, or any acquisition of a substantial equity interest in, or a
substantial amount of the assets of, the Company or any direct or indirect
subsidiary thereof, whether by merger, purchase of assets, tender offer or other
transaction or (b) subject to the fiduciary duty under applicable law of
Stockholder as a director of the Company (if Stockholder is such a director) as
further provided in the Merger Agreement, participate in any discussions or
negotiations regarding, or furnish to any other person any information with
respect to, or take any other action knowingly to facilitate, or otherwise
cooperate in any way with, or participate in, or encourage any effort or attempt
by any other person to do or seek any of the foregoing. Stockholder shall
promptly advise Parent of the terms of any communications Stockholder may
receive in Stockholder's personal capacity or Stockholder's capacity as a
stockholder relating to any of the foregoing. Stockholder is signing this
Agreement in Stockholder's capacity as a stockholder of the Company. Nothing
herein shall restrict Stockholder (or, in the case that Stockholder is not an
individual, a representative of Stockholder) from discharging Stockholder's
fiduciary duties under applicable law as an officer or director of the Company
(if Stockholder is such an officer or director) as further provided in the
Merger Agreement.
4.4 Conduct of Stockholder. Stockholder will not (a) take, agree or
commit to take any action that would make any representation and warranty of
Stockholder hereunder inaccurate in any respect as of any time prior to the
termination of this Agreement or (b) omit, or agree or commit to omit, to take
any reasonable action necessary to prevent any such representation or warranty
from being inaccurate in any respect at any such time.
4.5 Disclosure. Stockholder hereby permits Parent to publish and
disclose in the Offer Documents, and, if approval of the Company's stockholders
is required under applicable law, a proxy statement, (including all documents
and schedules to be filed in connection with the foregoing with the SEC) this
Agreement, Stockholder's identity and details regarding Stockholder's Ownership
of shares of Company Common Stock and the nature of Stockholder's commitments,
arrangements and understandings under this Agreement and any other public
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disclosures relating to the foregoing (including any press release relating to
the Offer or the Merger).
SECTION 5
MISCELLANEOUS
5.1 Survival of Representations, Warranties and Agreements. All
representations, warranties, covenants and agreements made by Stockholder in
this Agreement shall survive (a) the consummation of the Merger, (b) any
termination of the Merger Agreement and (c) the Expiration Date.
5.2 Indemnification. Stockholder shall hold harmless and indemnify
Parent and Parent's affiliates from and against, and shall compensate and
reimburse Parent and Parent's affiliates for, any loss, damage, claim,
liability, fee (including attorneys' fees), demand, cost or expense (regardless
of whether or not such loss, damage, claim, liability, fee, demand, cost or
expense relates to a third-party claim) that is directly or indirectly suffered
or incurred by Parent or any of Parent's affiliates, or to which Parent or any
of Parent's affiliates otherwise becomes subject, and that arises directly or
indirectly from, or relates directly or indirectly to, (a) any inaccuracy in or
breach of any representation or warranty contained in this Agreement, or (b) any
failure on the part of Stockholder to observe, perform or abide by, or any other
breach of, any restriction, covenant, obligation or other provision contained in
this Agreement or the proxy granted herein.
5.3 Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
5.4 Notices. Any notice or other communication required or permitted to
be delivered to either party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or facsimile telephone number as such party
shall have specified in a written notice given to the other party):
If to Stockholder:
at the address set forth below Stockholder's signature on the
signature page hereof
If to Parent:
American Express Travel Related Services Company, Inc.
000 Xxxxx Xxxxxx
World Financial Center
New York, New York 10285-3701
Attn: Small Business Services
5.5 Severability. If any provision of this Agreement or any part of any
such provision is held under any circumstances to be invalid or unenforceable in
any jurisdiction, then (a) such
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provision or part thereof shall, with respect to such circumstances and in such
jurisdiction, be deemed amended to conform to applicable laws so as to be valid
and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
Agreement. Each provision of this Agreement is separable from every other
provision of this Agreement, and each part of each provision of this Agreement
is separable from every other part of such provision.
5.6 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof supersedes all
prior agreements and understandings between the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon either party unless made in writing and signed by both parties.
5.7 Assignment; Binding Effect. Except as provided herein, neither this
Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Stockholder, and any attempted or purported assignment or
delegation of any of such interests or obligations shall be void. Subject to the
preceding sentence, this Agreement shall be binding upon Stockholder and
Stockholder's heirs, estate, executors, personal representatives, successors and
assigns, and shall inure to the benefit of Parent and its successors and
assigns. Without limiting any of the restrictions set forth in this Agreement,
this Agreement shall be binding upon any Person to whom any Subject Securities
are transferred. Nothing in this Agreement is intended to confer on any Person
(other than Parent and its successors and assigns) any rights or remedies of any
nature.
5.8 Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement was not
performed in accordance with its specific terms or was otherwise breached.
Stockholder agrees that, in the event of any breach or threatened breach by
Stockholder of any covenant or obligation contained in this Agreement, Parent
shall be entitled (in addition to any other remedy that may be available to it,
including monetary damages) to seek and obtain (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or
obligation, and (b) an injunction restraining such breach or threatened breach.
Stockholder further agrees that neither Parent nor any other Person shall be
required to obtain, furnish or post any bond or similar instrument in connection
with or as a condition to obtaining any remedy referred to in this Section 5.8,
and Stockholder irrevocably waives any right Stockholder may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
5.9 Non-Exclusivity. The rights and remedies of Parent under this
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Parent under this Agreement, and the
obligations and liabilities of Stockholder under this Agreement, are in addition
to their
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respective rights, remedies, obligations and liabilities under common law
requirements and under all applicable statutes, rules and regulations.
5.10 Governing Law; Venue.
(a) This Agreement shall be governed by and construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware, without giving effect to principles of conflicts of law.
(b) Any legal action or other legal proceeding relating to
this Agreement or the enforcement of any provision of this Agreement shall be
brought or otherwise commenced in any state or federal court located in the
State of Delaware. Each of Stockholder and Parent:
(i) expressly and irrevocably consents and submits to
the jurisdiction of each state and federal court located in the State
of Delaware in connection with any such legal proceeding;
(ii) agrees that service of any process, summons,
notice or document by U.S. mail addressed to him at the address set
forth below shall constitute effective service of such process,
summons, notice or document for purposes of any such legal proceeding;
(iii) agrees that each state and federal court
located in the State of Delaware shall be deemed to be a convenient
forum; and
(iv) agrees not to assert (by way of motion, as a
defense or otherwise), in any such legal proceeding commenced in any
state or federal court located in the State of Delaware, any claim that
Stockholder is not subject personally to the jurisdiction of such
court, that such legal proceeding has been brought in an inconvenient
forum, that the venue of such proceeding is improper or that this
Agreement or the subject matter of this Agreement may not be enforced
in or by such court.
(c) EACH OF STOCKHOLDER AND PARENT IRREVOCABLY WAIVES THE
RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS
AGREEMENT OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT.
5.11 Counterparts. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
5.12 Captions. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
5.13 Attorneys' Fees. If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is brought against
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Stockholder, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
5.14 Waiver. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of
Parent in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. Parent shall not be deemed to have waived any claim
available to Parent arising out of this Agreement, or any power, right,
privilege or remedy of Parent under this Agreement, unless the waiver of such
claim, power, right, privilege or remedy is expressly set forth in a written
instrument duly executed and delivered on behalf of Parent; and any such waiver
shall not be applicable or have any effect except in the specific instance in
which it is given.
5.15 Termination. This Agreement will terminate immediately upon the
Expiration Date.
5.16 Construction.
(a) For purposes of this Agreement, whenever the context
requires, the singular number shall include the plural, and vice versa.
(b) The parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation".
(d) Except as otherwise indicated, all references in this
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Agreement and Exhibits to this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Parent and Stockholder have caused this Tender
Agreement to be executed as of the date first written above.
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Its: Executive Vice President & General
Manager, Small Business Services
DEPPING 1999 INVESTMENT LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
TJD, Inc., as Partner
By: Xxxxxx X. Xxxxxxx, President
and
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------------
KJD, Inc., as Partner
By: Xxxxxxxx X. Xxxxxxx, President
Address: c/o XxxxxxXxxxxx.xxx Inc.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile: 713.237.0452
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Exhibit A to Tender Agreement
Certain Stockholders and Securities of the Company Subject to Tender
Agreements
Stockholder Shares Held Options and Additional Percentage of
of Record Other Rights Securities Outstanding Shares of
Beneficially Owned Company Common Stock
Owned
------------------------------- ------------ ------------ ------------------- -----------------------
Depping 1999 Investment Limited 1,595,800 N/A N/A 8.44%
Partnership
Xxxxxx X. Xxxxxxx 77,400 688,603 1,595,800 shares 4.05% without Depping
owned of record by 1999 Investment
Depping 1999 Limited Partnership
Investment Limited Shares
Partnership
12.48% with Depping
1999 Investment
Limited Partnership
Shares
Xxxxx X. Xx 245,990 213,941 N/A 2.43%
Redstone Group, Ltd. 1,183,151 N/A N/A 6.25%
Xxxxx X. Xxxxxxxxxxxxx 84,867 137,826 1,183,151 shares 1.18% without Redstone
owed of record by Group Ltd. shares
Redstone Group Ltd. 7.43% with Redstone
Group Ltd. shares
Xxxxx X. Xxxxxxx 629,849 137,826 1,183,151 shares 4.06% without Redstone
owned of record by Group Ltd. shares
Redstone Group Ltd. 10.31% with Redstone
Group Ltd. shares
A-1
