VOTING AGREEMENT
Exhibit 99.1
This VOTING AGREEMENT, dated as of May 11, 2010 (this “Agreement”), is by and between ▇▇▇▇▇▇ Capital Group, Inc., a Delaware corporation (the “Company”), and the stockholders listed on the signature pages hereto under the heading “Stockholders” (each, a “Stockholder,” and collectively, the “Stockholders,” and those Stockholders listed under the subheading “▇▇▇▇▇▇ Holders” are referred to herein as the “▇▇▇▇▇▇ Holders” and those Stockholders listed under the subheading “▇▇▇▇▇▇ Holders” are referred to herein as the “▇▇▇▇▇▇ Holders”).
| 1. | Voting Agreement. Subject to the terms and conditions hereof, each Stockholder hereby agrees that at any meeting of the stockholders of the Company (including any adjournment or postponement thereof), however called, or otherwise such Stockholder will (w) appear at any such meeting, or at the Stockholder’s option, otherwise, cause its Owned Shares (as defined below) to be counted as present thereat, for purposes of calculating a quorum, (x) vote, or cause to be voted, all of its Owned Shares (as defined below) (A) in favor of the Proposal as described below, (B) in favor of any other matter to be approved by the stockholders of the Company to facilitate the Proposal, including an amendment to the Company’s Third Amended and Restated Certificate of Incorporation, as such may be amended from time to time (the “Certificate of Incorporation”), (C) against any proposal, action or agreement that would reasonably be expected to impede, interfere with, delay or attempt to discourage the purpose of the Proposal, (y) at no time vote in favor of or support, and vote against, any proposal or amendment to amend the Company’s Certificate of Incorporation to change, impair or eliminate the terms of the Proposal or (z) take any other action that would, directly or indirectly, prevent the Proposal from being approved by the stockholders of the Company and implemented by the Company. |
| 2. | The Proposal. The “Proposal” means the adoption of an amendment to the Certificate of Incorporation to cause the fifth paragraph of Article Fifth (A) thereof to be amended and restated as follows: |
“A. Until the earlier of June 30, 2015 and a Sale Transaction:”
and to cause Article Fifth (B)(1) thereof to be amended and restated as follows:
“B. 1. From and after the date that is the earlier of June 30, 2015 and a Sale Transaction, the business and affairs of the corporation shall be managed by, or under the direction of, the Board of Directors and no actions of the Board of Directors shall require the separate approval of the Executive Committee pursuant to Article Fifth, Paragraph A.3 and A.4 of this Third Amended and Restated Certificate of Incorporation.”
with no other changes to Article Fifth thereof or otherwise in the Certificate of Incorporation which would limit the matters set forth in Article Fifth thereof.
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| 3. | Title to Stock. As of the date hereof, each Stockholder is the owner of the number of shares of the Company’s common stock (the “Common Stock”) and shares of the Company’s Series A Non-Cumulative Convertible Perpetual Preferred Stock (the “Series A Preferred Stock”) set forth opposite such Stockholder’s name on Appendix A attached hereto (such shares, together with any shares acquired after the date hereof, “Owned Shares”), entitled to vote, without restriction, on all matters brought before holders of capital stock of the Company, which shares of Common Stock and Series A Preferred Stock represent on the date hereof the percentage of the outstanding stock and voting power of the Company set forth on Appendix A. All such shares of Common Stock and Series A Preferred Stock held by the ▇▇▇▇▇▇ Holders are owned free and clear of all security interests, liens, pledges, options and other encumbrances on such Stockholder’s voting rights, charges and other encumbrances of any nature whatsoever (together “Encumbrances”). Except as provided for herein, no ▇▇▇▇▇▇ Holder has appointed or granted any proxy, which appointment or grant is still effective, with respect to such Stockholder’s Owned Shares. |
| 4. | No Disposition or Encumbrance of Stock. Each ▇▇▇▇▇▇ Holder agrees not to, and acknowledges that they are not otherwise permitted to for so long as this Agreement is in effect, sell or transfer, grant a proxy or power of attorney with respect to, or create or permit to exist any Encumbrance, in all capacities that such Stockholder shall hold voting and/or dispositive and/or other rights over the Stockholder’s Owned Shares (which capacities, in each case, are sufficient to assure compliance with this Section 4); provided, however, that any ▇▇▇▇▇▇ Holder may assign, sell or transfer any Common Stock or Series A Preferred Stock if any recipient of the Common Stock or Series A Preferred Stock has delivered to the Company a written agreement in a form reasonably satisfactory to the Company that such recipient shall be bound by, and the Common Stock or Preferred Stock so transferred, assigned or sold shall remain subject to this Agreement. |
| 5. | Covenants of the Company. The Company hereby covenants and agrees that (a) it will not, and each Stockholder irrevocably and unconditionally acknowledges and agrees that the Company will not (and waives any rights against the Company in relation thereto), recognize any Encumbrance or agreement on any of the Common Stock or Series A Preferred Stock subject to this Agreement unless the provisions of Section 4 hereof have been complied with; (b) it shall not give effect to any vote cast or other action taken by any Stockholder with respect to any matter submitted to a vote of the stockholders of the Company, unless such vote or action is in accordance with the terms of this Agreement; and (c) promptly, but in no event later than the next meeting of the Company’s stockholders, it shall take all necessary action to cause the Proposal to be adopted by the stockholders of the Company and the amendment to the Certificate of Incorporation therein to be filed with the Secretary of State of the State of Delaware and become effective, including, without limitation, the solicitation of proxies and votes in favor of the Proposal, filing of a proxy statement (the “Proxy Statement”) with the Securities and Exchange Commission (the “SEC”) relating the to the Proposal, promptly responding to any comments of the SEC with respect thereto and as promptly as practicable after the clearance of the Proxy Statement by the SEC, the Company shall mail the Proxy Statement and all other proxy materials to the holders of shares of Common Stock and Series A Preferred Stock and, if necessary in order to comply with applicable securities laws, after the Proxy Statement shall have been so mailed, promptly circulate amended, supplemental or supplemented proxy material, and, if required in connection therewith, re-solicit proxies. |
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| 6. | Termination. This Agreement shall terminate without further action upon the earliest to occur of: (i) the written consent of the parties hereto; (ii) June 30, 2010; and (iii) a Sale Transaction. Upon termination of this Agreement, the rights and obligations of all the parties will terminate and become void without further action by any party. For the avoidance of doubt, the termination of this Agreement shall not relieve any party of liability for any breach of this Agreement prior to the time of termination. |
| 7. | Miscellaneous. The parties acknowledge that nothing in this Agreement restricts or limits any action taken by any Stockholder solely in his or her capacity as a director or officer of the Company in order for such Stockholder to comply with any fiduciary duty as an officer or director of the Company. The parties will execute and deliver such further documents and instruments and take all further action as may be reasonably necessary in order to consummate the transactions contemplated hereby. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was 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. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. This Agreement may not be amended except by an instrument in writing signed by each of the parties hereto. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, 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 this Agreement is not affected in any manner materially adverse to any party. This Agreement shall be governed by the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party. |
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first written above.
| THE COMPANY: | ||
| ▇▇▇▇▇▇ CAPITAL GROUP, INC. | ||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Title: | Chief Executive Officer and President | |
| Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| STOCKHOLDERS: | ||
| “▇▇▇▇▇▇ Holders” | ||
| VOTING TRUST U/A/D 11/30/98 | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Title: | Trustee | |
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: | Trustee | |
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: | Trustee | |
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ GIFT TRUST | ||
| U/A/D 6/10/82 | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Title: | Trustee | |
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇▇▇▇ GIFT TRUST | ||
| U/A/D 6/10/82 | ||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: | Trustee | |
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ REVOCABLE TRUST U/A/D 4/10/81 | ||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: | Trustee | |
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ GIFT TRUST | ||
| U/A/D 6/10/82 | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: | Trustee | |
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| “▇▇▇▇▇▇ HOLDERS” | ||
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ SELF- DECLARATION OF REVOCABLE TRUST | ||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: | Trustee | |
| /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2000 TRUST | ||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: | Trustee | |
| PCB LIMITED PARTNERSHIP | ||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: | General Partner | |
| /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1999 DESCENDANTS TRUST | ||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| Title: | Trustee | |
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 2000 TRUST | ||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| Title: | Trustee | |
Appendix A
| Stockholders |
Shares of Common Stock Beneficially Owned |
Percent of Outstanding Common Stock (%) |
||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
4,954,818 | (1) | 44.2 | % | ||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
4,927,380 | (2) | 44.1 | % | ||
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
1,410,888 | (3) | 11.6 | % | ||
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
816,688 | (4) | 6.9 | % | ||
| ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
4,860,380 | (5) | 43.7 | % | ||
| ▇▇▇▇▇▇ Voting Trust U/A/D 11/30/98 |
4,805,880 | 43.4 | % |
| (1) | Includes: (i) 4,888 shares of common stock that are held by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ pursuant to a restricted stock grant, (ii) 4,686,600 shares of common stock that are held by a Voting Trust under agreement dated 11/30/98, of which ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ serve as trustees (the “▇▇▇▇▇▇ Trust”), (iii) 39,780 shares of common stock that are held in the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Gift Trust under agreement dated 6/10/82, of which ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ serve as co-trustees, (iv) 39,720 shares of common stock that are held in the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Gift Trust under agreement dated 6/10/82, of which ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ serve as co-trustees, (v) 39,780 shares of common stock that are held in the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Gift Trust under agreement dated 6/10/82, of which ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ serve as co-trustees, (vi) 375 shares held by ▇▇▇▇▇ ▇▇▇▇▇▇ as custodian for ▇▇▇▇ ▇▇▇▇▇▇ UTMA, (vii) 375 shares held by ▇▇▇▇▇ ▇▇▇▇▇▇ as custodian for ▇▇▇▇▇ ▇▇▇▇▇▇ UTMA, (viii) 300 shares held by ▇▇▇▇▇ ▇▇▇▇▇▇ as custodian for ▇▇▇▇ ▇▇▇▇▇▇ UTMA, (ix) 3,000 shares owned by ▇▇▇▇▇ ▇▇▇▇▇▇, and (x) 40,000 shares of Series A Preferred Stock that are held by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Tenants in Common, which shares are convertible into 100,000 shares of common stock. |
| (2) | Includes: (i) 34,000 shares of common stock owned by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (ii) a warrant to purchase 7,500 shares of common stock, which warrant is held by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (iii) 4,686,600 shares of common stock that are held by the ▇▇▇▇▇▇ Trust, (iv) 39,780 shares of common stock that are held in the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Gift Trust under agreement dated 6/10/82, of which ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ serve as co-trustees, (v) 39,720 shares of common stock that are held in the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Gift Trust under agreement dated 6/10/82, of which ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ serve as co-trustees, (vi) 39,780 shares of common stock that are held in the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Gift Trust under agreement dated 6/10/82, of which ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ serve as co-trustees, and (vii) 16,000 shares of Series A Preferred Stock that are held by the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable Trust under agreement dated 4/10/1984, of which ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ serves as trustee, which shares are convertible into 40,000 shares of common stock. |
| (3) | Includes: (i) 277,500 shares of common stock owned by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (ii) 4,888 shares of resticted stock, (iii) 500,000 shares of common stock issuable to FIC upon exercise of a warrant over which ▇▇. ▇▇▇▇▇▇ may be deemed to share investment and/or voting power, and (iv) 628,500 shares of common stock issuable upon conversion of 251,400 shares of the Series A Preferred Stock beneficially owned by ▇▇. ▇▇▇▇▇▇ as trustee of the ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Self-Declaration of Revocable Trust. |
| (4) | Includes: (i) 4,888 shares of common stock that are held by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ pursuant to a restricted stock grant, (ii) 40,000 shares of common stock beneficially owned by ▇▇. ▇▇▇▇▇▇ as a trustee of the ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2000 Trust, (iii) 75,000 shares of common stock beneficially owned by Trilogy Investment Group, LLC of which ▇▇. ▇▇▇▇▇▇ is one of three managing members and shares investment and voting power, (iv) 500,000 shares of common stock issuable to FIC upon exercise of a warrant over which ▇▇. ▇▇▇▇▇▇ may be deemed to share investment and/or voting power, (v) 5,000 shares of common stock issuable upon conversion of 2,000 shares of Series A Preferred Stock beneficially owned by ▇▇. ▇▇▇▇▇▇ as a trustee of the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1999 Descendants Trust, (vi) 75,000 shares of common stock issuable upon conversion of 30,000 shares of Series A Preferred Stock beneficially owned by ▇▇. ▇▇▇▇▇▇ as a trustee of the ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2000 Trust, (vii) 25,000 shares of common stock issuable upon conversion of 10,000 shares of Series A Preferred Stock beneficially owned by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (the spouse of ▇▇. ▇▇▇▇▇▇) as trustee of the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 2000 Trust, (viii) 84,300 shares of common stock issuable upon conversion of 33,720 shares of Series A Preferred Stock held by PCB Limited Partnership of which ▇▇. ▇▇▇▇▇▇ is one of three general partners, and (ix) 7,500 shares of common stock beneficially owned by the ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Minor’s Trust (the son of ▇▇. ▇▇▇▇▇▇). |
| (5) | Includes: (i) 4,686,600 shares of common stock that are held by the ▇▇▇▇▇▇ Trust, (ii) 39,780 shares of common stock that are held in the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Gift Trust under agreement dated 6/10/82, of which ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ serve as co-trustees, (iii) 39,720 shares of common stock that are held in the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Gift Trust under agreement dated 6/10/82, of which ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ serve as co-trustees, (iv) 39,780 shares of common stock that are held in the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Gift Trust under agreement dated 6/10/82, of which ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ serve as co-trustees, (v) 4,500 shares owned by ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and (vi) 20,000 shares of Series A Preferred Stock that are held by ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, which shares are convertible into 50,000 shares of common stock. |
| Stockholders |
Shares of Series A Preferred Stock Beneficially Owned |
Percent of Outstanding Series A Preferred Stock (%) |
||||
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
251,400 | (1) | 10.5 | % | ||
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
75,720 | (2) | 3.2 | % | ||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
40,000 | (3) | 1.7 | % | ||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
20,000 | 0.8 | % | |||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
16,000 | (4) | 0.7 | % |
| (1) | Reflects 251,400 shares of Series A Preferred Stock beneficially owned by ▇▇. ▇▇▇▇▇▇ as trustee of the ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Self-Declaration of Revocable Trust. |
| (2) | Includes: (i) 2,000 shares of Series A Preferred Stock beneficially owned by ▇▇. ▇▇▇▇▇▇ as a trustee of the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1999 Descendants Trust, (ii) 30,000 shares of Series A Preferred Stock beneficially owned by ▇▇. ▇▇▇▇▇▇ as a trustee of the ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2000 Trust, (iii) 10,000 shares of Series A Preferred Stock beneficially owned by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (the spouse of ▇▇. ▇▇▇▇▇▇) as trustee of the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 2000 Trust, and (iv) 33,720 shares of Series A Preferred Stock held by PCB, Limited Partnership of which ▇▇. ▇▇▇▇▇▇ is one of three general partners. |
| (3) | Reflects 40,000 shares of Series A Preferred Stock owned by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as tenants in common. |
| (4) | Reflects 16,000 shares of Series A Preferred Stock beneficially owned by the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable Trust under agreement dated 4/10/1984. |