Exhibit A
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") dated as of October 24, 2000 is by
and between Career Education Corporation, a Delaware corporation (the
"Acquiror"), and the other parties signatory hereto (each a "Shareholder").
RECITALS
Acquiror, EI Acquisition, Inc., a Delaware limited liability company and a
direct wholly-owned subsidiary of Acquiror ("Acquisition Sub"), and EduTrek
International, Inc., a Georgia corporation (the "Company"), are negotiating an
Agreement and Plan of Merger (as such agreement may be executed and amended from
time to time, the "Merger Agreement"; capitalized terms used but not defined
herein shall have the meanings set forth in the Merger Agreement), a draft of
which has been circulated to the parties, pursuant to which (and subject to the
terms and conditions specified therein) the Acquisition Sub will be merged with
and into the Company (the "Merger"), whereby each share of class A common stock,
no par value, of the Company and each share of class B common stock, no par
value, of the Company (collectively, the "Company Common Stock") issued and
outstanding immediately prior to the Effective Time will be converted into the
right to receive the Merger Consideration, other than (i) shares of Company
Common Stock owned, directly or indirectly, by the Company or any subsidiary of
the Company or by Acquiror and (ii) Dissenting Shares.
As a condition to Acquiror's negotiating and entering into the Merger
Agreement, Acquiror requires that each Shareholder enter into, and each such
Shareholder has agreed to enter into, this Agreement with Acquiror.
AGREEMENT
To implement the foregoing and in consideration of the mutual agreements
contained herein, the parties hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS. Each Shareholder
hereby severally and not jointly represents and warrants to Acquiror as follows:
(a) OWNERSHIP OF SHARES. (i) Such Shareholder is either (a) the
record holder or beneficial owner, either alone or with such Shareholder's
spouse, of the number of or (b) trustee of a trust that is the record
holder or beneficial owner of, and whose beneficiaries are the beneficial
owners (such trustee, a "Trustee") of shares of Company Common Stock as is
set forth opposite such Shareholder's name on Schedule 1(a) hereto (such
shares shall constitute the "Existing Shares", and together with any shares
of Company Common Stock acquired of record or beneficially by such
Shareholder in any capacity after the date hereof and prior to the
termination hereof, whether upon exercise
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of options, conversion of convertible securities, purchase, exchange or
otherwise, shall constitute the "Shares").
(i) On the date hereof, the Existing Shares set forth opposite
such Shareholder's name on Schedule 1(a) hereto constitute all of the
outstanding shares of Company Common Stock owned of record or
beneficially by such Shareholder. Such Shareholder does not have
record or beneficial ownership of any Shares not set forth on Schedule
1(a) hereto.
(ii) Such Shareholder has sole power of disposition with respect
to all of the Existing Shares set forth opposite such Shareholder's
name on Schedule 1(a) and sole power to demand dissenter's or
appraisal rights, in each case with respect to all of the Existing
Shares set forth opposite such Shareholder's name on Schedule 1(a),
with no restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement.
(b) POWER; BINDING AGREEMENT. Such Shareholder has the legal
capacity, power and authority to enter into and perform all of such
Shareholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Shareholder will not violate any
other agreement to which such Shareholder is a party or by which such
Shareholder is bound including, without limitation, any trust agreement,
voting agreement, shareholders agreement, voting trust, partnership or
other agreement. This Agreement has been duly and validly executed and
delivered by such Shareholder and constitutes a valid and binding agreement
of such Shareholder, enforceable against such Shareholder in accordance
with its terms, except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws generally affecting the rights of creditors and subject to general
equity principles and by any implied covenant of good faith and fair
dealing. There is no beneficiary of or holder of interest in any trust of
which a Shareholder is Trustee whose consent is required for the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby. If such Shareholder is married and such Shareholder's
Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, such Shareholder's spouse, enforceable against such person in
accordance with its terms.
(c) NO CONFLICTS. Except for filings under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), if
applicable, and the expiration or termination of any applicable waiting
period thereunder, (A) no filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Shareholder and the
consummation by such Shareholder of the transactions contemplated hereby
and (B) neither the execution and delivery of this Agreement by such
Shareholder nor the
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consummation by such Shareholder of the transactions contemplated hereby
nor compliance by such Shareholder with any of the provisions hereof shall
(x) conflict with or result in any breach of any applicable trust,
partnership agreement or other agreements or organizational documents
applicable to such Shareholder, (y) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such Shareholder is a party or by which
such Shareholder or any of such Shareholder's properties or assets may be
bound or (z) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to such Shareholder or any of such
Shareholder's properties or assets.
(d) LIENS. Such Shareholder's Shares and the certificates
representing such Shares are now and at all times during the term hereof
will be held by such Shareholder, or by a nominee or custodian for the
benefit of such Shareholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder or listed on Schedule 1(d).
-------------
(e) BROKERS. No broker, investment banker, financial adviser or
other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Shareholder in his or her capacity as such.
(f) ACKNOWLEDGMENT. Such Shareholder understands and acknowledges
that Acquiror is entering into the Merger Agreement in reliance upon such
Shareholder's execution and delivery of this Agreement with Acquiror.
2. CERTAIN COVENANTS OF SHAREHOLDERS. Except in accordance with the terms
of this Agreement, each Shareholder hereby severally covenants and agrees as
follows:
(a) NO SOLICITATION. Prior to the termination of the Merger Agreement
in accordance with its terms, no Shareholder shall, in its capacity as
such, directly or indirectly (including through advisors, agents or other
intermediaries), solicit (including by way of furnishing information) or
respond to any inquiries or the making of any proposal by any person or
entity (other than Acquiror, Acquisition Sub or any affiliate thereof) with
respect to the Company that constitutes or could be expected to lead to an
Acquisition Proposal (as defined in the Merger Agreement). If any
Shareholder in its capacity as such receives any such inquiry or proposal,
then such Shareholder shall promptly inform Acquiror in writing of the
terms and conditions, if any, of such inquiry or proposal and the identity
of the person making it. Each Shareholder, in its capacity as
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such, will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
(b) RESTRICTION ON TRANSFER, PROXIES AND NONINTERFERENCE; RESTRICTION
ON WITHDRAWAL. Prior to the termination of the Merger Agreement in
accordance with its terms, no Shareholder shall, directly or indirectly:
(i) except pursuant to the terms of the Merger Agreement and to Acquiror
pursuant to this Agreement, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, enforce or permit the execution
of the provisions of any redemption agreement with the Company or enter
into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, or exercise any
discretionary powers to distribute, any or all of such Shareholder's Shares
or any interest therein, including any trust income or principal, except in
each case to a Permitted Transferee who is or agrees in a writing executed
by the Acquiror to become bound by this Agreement; (ii) grant any proxies
or powers of attorney with respect to any Shares, deposit any Shares into a
voting trust or enter into a voting agreement with respect to any Shares;
or (iii) take any action that would make any representation or warranty of
such Shareholder contained herein untrue or incorrect or have the effect of
preventing or disabling such Shareholder from performing such Shareholder's
obligations under this Agreement. For purposes of the Agreement,
"Permitted Transferees" means, with respect to a Shareholder, any of the
following persons: (a) the spouse of such Shareholder, provided that at all
relevant times of determination such Shareholder is not separated or
divorced from, or is not involved in separation or divorce proceedings
with, such spouse; (b) the issue of such Shareholder; (c) a trust of which
there are no principal beneficiaries other than (i) such Shareholder, (ii)
such Shareholder's spouse (provided that at all relevant times of
determination such Shareholder is not separated or divorced from, or is not
involved in separation or divorce proceedings with, such spouse), or (iii)
the issue of such Shareholder; (d) the legal representative of such
Shareholder in the event such Shareholder becomes mentally incompetent; and
(e) the beneficiaries under (i) the will of such Shareholder or the will of
such Shareholder's spouse, or (ii) a trust described in clause (c) above.
(c) WAIVER OF APPRAISAL AND DISSENTER'S RIGHTS. Each Shareholder
hereby waives any rights of appraisal or rights to dissent from the Merger
that such Shareholder may have. Each Trustee represents that no beneficiary
who is a beneficial owner of Shares under any trust has any right of
appraisal or right to dissent from the Merger which has not been so waived.
(d) NO TERMINATION OR CLOSURE OF TRUSTS. Unless, in connection
therewith, the Shares held by any trust which are presently subject to the
terms of this Agreement are transferred upon termination to one or more
Shareholders and remain
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subject in all respects to the terms of this Agreement, or other Permitted
Transferees who upon receipt of such Shares become signatories to this
Agreement, the Shareholders who are Trustees shall not take any action to
terminate, close or liquidate any such trust and shall take all steps
necessary to maintain the existence thereof at least until the termination
of the Merger Agreement in accordance with its terms.
(e) VOTING OF COMPANY STOCK. Each Shareholder hereby agrees that,
prior to the termination of the Merger Agreement in accordance with its
terms, at any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of the holders of Company Common Stock,
however called, or in connection with any written consent of the holders of
the Company Common Stock, he will appear at the meeting or otherwise cause
the Shares to be counted as present thereat for purposes of establishing a
quorum and vote or consent (or cause to be voted or consented) the Shares,
except as otherwise agreed to in writing in advance by the Acquiror in its
sole discretion, in favor of any business combination with Acquiror and
against the following actions: (a) any Acquisition Proposal (as defined in
the Merger Agreement) or (b) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or
materially adversely affect the transactions contemplated by this Agreement
or the Merger Agreement. Each Shareholder agrees that he will not enter
into any agreement or understanding with any Person the intended or
reasonably anticipated effect of which would be inconsistent with or
violative of any provision contained in this Section 3(e).
(f) GRANT OF PROXY; APPOINTMENT OF PROXY. Each Shareholder hereby
revokes any and all previous proxies granted with respect to the Shares.
Prior to the termination of the Merger Agreement in accordance with its
terms, each Shareholder hereby irrevocably grants to, and appoints,
Acquiror, or any nominee of Acquiror, such Shareholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name,
place and stead of such Shareholder, to (1) exercise any rights as a
shareholder of the Company, including but not limited to those in
connection with calling a special meeting and all matters ancillary there
to of shareholders to vote on the Merger or (2) vote the Existing Shares at
every annual, special, or adjourned meeting or grant a consent or approval
in respect of the Shares in favor of any business combination proposed by
Acquiror, and against the following actions (a) any Acquisition Proposal
(as defined in the Merger Agreement) or (b) any other action which is
intended, or could reasonably be expected, to impede, interfere with,
delay, postpone or materially adversely affect the transactions
contemplated by this Agreement or the Merger Agreement. Each Shareholder
shall have no claim against such proxy and attorney-in-fact, for any action
taken, decision made or instruction given by such proxy and attorney-in-
fact on accordance with this Agreement or the Merger Agreement. Such proxy
is irrevocable and the appointment is coupled with an interest in the
Shares.
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3. GENERAL RELEASE.
(a) In consideration of the Acquiror's consummation of the Merger in
accordance with the terms and conditions of the Merger Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Shareholder, for himself, herself or itself
and each of his, her or its heirs, executors, successors, and assigns
(collectively, the "Releasors"), hereby forever releases the Buyer,
Acquisition Sub, the Company and each of their respective predecessors,
successors, and past and present shareholders or unitholders, directors,
officers, employees, agents, and representatives (collectively, the
"General Released Parties") from any and all claims, demands and causes of
action of every kind and nature whether arising from his, her or its
purchase of stock of the Company (pursuant to that certain Subscription
Agreement, dated as of September 8, 2000, or otherwise) his or her
employment by the Company or otherwise (including, without limitation,
claims for damages, costs, expenses and attorneys', brokers' and
accountants' fees and expenses), whether known or unknown, suspected or
unsuspected, that the Releasors now have or at any time prior to the date
of this General Release may have had or could have asserted against any of
the General Released Parties (collectively, the "General Released Claims").
Notwithstanding anything to the contrary in this General Release, Releasors
are not releasing any of their rights under this Agreement, the Merger
Agreement or any agreement executed in connection with the Merger Agreement
or any of their rights to indemnification from the Company that exist as of
the date hereof with respect to their actions as officers or directors of
the Company.
(b) The Releasors hereby irrevocably agree to refrain from directly or
indirectly asserting any claim or demand or commencing (or causing to be
commenced) any suit, action, or proceeding of any kind, in any court or
before any tribunal, against any General Released Party based upon any
General Released Claim.
(c) The Shareholder has read and understands this General Release, has
had the opportunity to consult with an attorney prior to signing it, and
voluntarily enters into it with full knowledge of its terms and conditions
and that such terms and conditions are binding on him, her or its.
(d) This Section 3 will be effective upon the effective time of the
Merger in the Merger Agreement.
4. RESIGNATION. Each Shareholder hereby resigns, effective upon the
effective time of the Merger, from all such Shareholder's positions with the
Company including, without limitation, positions on the board of Directors of
the Company and the Governing Board of the Company and all positions as an
officer or employee of the Company.
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5. FURTHER ASSURANCES. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
to consummate and make effective the transactions contemplated by this
Agreement.
6. CERTAIN EVENTS. Each Shareholder agrees that this Agreement and the
obligations hereunder shall attach to such Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation such Shareholder's heirs, guardians, administrators or successors or
as a result of any divorce.
7. STOP TRANSFER. Each Shareholder agrees with, and covenants to,
Acquiror that such Shareholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of such Shareholder's Shares, unless such transfer is made in
compliance with this Agreement.
8. TERMINATION. The obligations set forth in this Agreement, other than
those set forth in Sections 2, 3, 8 and 9, will terminate upon termination of
the Merger Agreement in accordance with its terms. The obligations set forth in
Section 2 will terminate on the earlier of (i) termination of the Merger
Agreement pursuant to Section 8.1(d) therefore and (ii) May 21, 2001.
9. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; ASSIGNMENT. This Agreement, together with the
Merger Agreement (and the Exhibits and Schedule thereto) (i) constitute the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof and (ii) shall not be assigned by operation of law or otherwise
without the prior written consent of the other party.
(b) AMENDMENTS. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto; provided that Schedule 1(a) may
be supplemented by Acquiror by adding the name and other relevant
information concerning any Shareholder of the Company who is or agrees to
be bound by the terms of this Agreement without the agreement of any other
party hereto, and thereafter such added Shareholder shall be treated as a
"Shareholder" for all purposes of this Agreement.
(c) NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given; as of the date of
delivery, if delivered personally; upon receipt of confirmation, if
telecopied or upon the next business day when delivered during normal
business hours to an overnight courier
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service, such as Federal Express, in each case to the parties at the
following addresses or at such other addresses as shall be specified by the
parties by like notice; unless the sending party has knowledge that such
notice or other communication hereunder was not received by the intended
recipient:
If to Xxxxx Xxxxxx, Xxxxxx Family Limited Partnership
or The Xxxxxx Family Foundation, Inc., to:
00 Xxxxxxxxxx Xxxxxx, #0000
Xxxxxxx, Xxxxxxx 00000
with a copy to:
Xxxxx, Xxxxxxxx & Xxxxxxx, XXX
Xxxxxxxxx XX, Xxxxx 0000
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: A. Xxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to Xxxxx Xxxxxx, to :
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
with a copy to:
______________________
______________________
______________________
______________________
If to Acquiror:
Career Education Corporation
0000 Xxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
with a copy to:
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Xxxxxx Xxxxxx Zavis
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx
Fax: 312/000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(d) GOVERNING LAW. The validity, interpretation and effect of this
Agreement shall be governed exclusively by the laws of the State of
Georgia, without giving effect to the principles of conflict of laws
thereof.
(e) COSTS. The parties will each be solely responsible for and bear
all of its own respective expenses, including, without limitation, expenses
of legal counsel, accountants, and other advisors, incurred at any time in
connection with pursuing or consummating the Agreement and the transactions
contemplated thereby.
(f) ENFORCEMENT. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but both of
which shall constitute one and the same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(i) SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any party or set of circumstances shall, in any
jurisdiction and to any extent, be finally held invalid or unenforceable,
such term or provision shall only be ineffective as to such jurisdiction,
and only to the extent of such invalidity or unenforceability, without
invalidating or rendering unenforceable any other terms or provisions of
this Agreement under any other circumstances, and the parties shall
negotiate in good faith a substitute provision which comes as close as
possible to the invalidated or unenforceable term or provision, and which
puts each party in a position as nearly comparable as possible to the
position it would have been in but for the finding of invalidity or
unenforceability, while remaining valid and enforceable.
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(j) DEFINITIONS; CONSTRUCTION. For purposes of this Agreement:
(i) "Beneficially Own" or "Beneficial Ownership" with respect to
any securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Exchange
Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting
of the same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by all
other Persons with whom such Person would constitute a "group" as
described in Section 13(d)(3) of the Exchange Act.
(ii) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or
other entity.
(iii) In the event of a stock dividend or distribution, or any
change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the
Shares as well as all such stock dividends and distributions and any
shares into which or for which any or all of the Shares may be changed
or exchanged. In addition, in the event of any change in the
Company's capital stock by reason of stock dividends, stock splits,
mergers, consolidations, recapitalizations, combinations, conversions,
exchanges of shares, extraordinary or liquidating dividends, or other
changes in the corporate or capital structure of the Company which
would have the effect of diluting or changing the Acquiror's rights
hereunder, the number and kind of shares or securities subject to the
Option and the purchase price per Share (but not the total purchase
price) shall be appropriately and equitably adjusted so that the
Acquiror shall receive upon exercise or the Acquiror Option the number
and class of shares or other securities or property that the Acquiror
would have received in respect of the Shares purchasable upon exercise
of the Acquiror Option if the Acquiror Option had been exercised
immediately prior to such event. Each Shareholder shall take such
steps in connection with such consolidation, merger, liquidation or
other such action as may be necessary to assure that the provisions
hereof shall thereafter apply as nearly as possible to any securities
or property thereafter deliverable upon exercise of the Acquiror
Option.
(k) SHAREHOLDER CAPACITY. Notwithstanding anything herein to the
contrary, no person executing this Agreement who is, or becomes during the
term hereof, a director of the Company makes any agreement or understanding
herein in his or her capacity as such director, and the agreements set
forth herein shall in no way restrict any director in the exercise of his
or her fiduciary duties as a director of the Company. Each Shareholder has
executed this Agreement solely in his or her capacity as the record or
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beneficial holder of such Shareholder's Shares or as the trustee of a trust
whose beneficiaries are the beneficial owners of such Shareholder's Shares.
[signature page follows]
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IN WITNESS WHEREOF, Acquiror and each Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
Career Education Corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
SHAREHOLDERS:
/s/ X. Xxxxxx
-------------------
R. Xxxxxx Boston
/s/ Xxxxx Xxxxxx
-------------------
Xxxxx Xxxxxx
Xxxxxx Family Limited Partnership
/s/ X. Xxxxxx
-------------------
By:
Its:
The Xxxxxx Family Foundation, Inc.
/s/ X. Xxxxxx
-------------------
By:
Its:
SCHEDULE 1(a)
Number of Shares
-----------------------
Class A Class B
------- -------
Common Common
------ ------
Record Holder Stock Stock
------------- ----- -----
R. Xxxxxx Xxxxxx 459,772 3,890,817
Xxxxx Xxxxxx N/A 2,866,150
Xxxxxx Family Limited Partnership N/A 602,700
The Xxxxxx Family Foundation, Inc. 42,000 N/A
SCHEDULE 1(d)
None.
