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EXHIBIT 2.5
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VOTING AGREEMENT
AGREEMENT, dated as of May 14, 1997, among the undersigned stockholders
(hereinafter referred to individually as a "Stockholder" and collectively as
"Stockholders") of Royal Grip, Inc., a Nevada corporation ("RGI"), and FM
Precision Golf Corp., a Delaware corporation ("FM").
WITNESSETH
WHEREAS, FM is entering into an Agreement and Plan of Merger dated as of
even date herewith, with RGI (the "Merger Agreement"), providing for the merger
of a wholly-owned subsidiary of FM with and into RGI (the "Merger") pursuant to
the terms and conditions of the Merger Agreement, and setting forth certain
representations, warranties, covenants and agreements which each of the parties
thereto is making thereby in connection with the Merger; and
WHEREAS, in connection with the Merger, Stockholders will exchange their
entire equity interest in RGI for equity in FM; and
WHEREAS, in order to induce FM to enter into the Merger Agreement, and FM
to exchange Stockholders' entire equity interest in RGI for equity in FM, and
for other good and valuable consideration, receipt of which is hereby
acknowledged, Stockholders are willing, upon the terms and subject to the
conditions hereunder set forth, to make certain agreements with FM;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. REPRESENTATIONS OF STOCKHOLDERS. Each Stockholder represents and
warrants to FM that:
1.1. Such Stockholder is the sole, true, lawful and beneficial owner
of the number of shares (the "Shares") of Common Stock, par value $.001 per
share (the "Common Stock"), of RGI listed on the signature page hereof as being
owned by such Stockholder with no restrictions on such Stockholder's voting
rights or rights of disposition pertaining thereto, except those under the
Securities Act of 1933, as amended (the "1933 Act") and those that would not in
any material way limit or otherwise adversely affect the voting rights granted
to FM hereby or by the proxy to be delivered by such Stockholder pursuant
hereto. At the Effective Date (as defined in the Merger Agreement), such
Stockholder will have good and valid title to the Shares listed on the signature
page hereof as being owned by such Stockholder free and clear of any and all
claims, liens, charges, encumbrances and security interests. None of the Shares
owned by such Stockholder is subject to any voting trust or other agreement or
arrangement with respect to the voting of such shares that would in any way
limit or otherwise adversely affect the voting rights granted to FM hereby or by
the proxy to be delivered by such Stockholder pursuant hereto. Such Stockholder
does not "beneficially own" (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "1934 Act")), any shares of Common Stock other than
the Shares listed on the signature page hereof as being beneficially owned by
such Stockholder and other than any shares of Common Stock which such
Stockholder may obtain upon the exercise of RG Options (as defined in the Merger
Agreement).
1.2. The execution, delivery and performance by such Stockholder of
this Agreement (including, without limitation, the granting of the proxy created
pursuant to Section 5 hereof) does not and will not contravene or constitute a
default under or give rise to a right of termination, cancellation or
acceleration of any right or obligation of such Stockholder or to a loss of any
benefit of such Stockholder
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under any provision of applicable law or regulation or of any agreement,
judgment, injunction, order, decree, or other instrument binding on such
Stockholder or result in the imposition of any lien on any asset of such
Stockholder
1.3. This Agreement is the valid and binding Agreement of such
Stockholder. If this Agreement is being executed in a representative or
fiduciary capacity for such Stockholder, the person signing this Agreement has
full power and authority to enter into and perform such Agreement for such
Stockholder.
SECTION 2. AGREEMENT TO VOTE SHARES. Each Stockholder shall vote the Shares
and any New Shares (as defined in Section 7 hereof) beneficially owned by such
Stockholder in favor of approval of the Merger Agreement and the Merger at every
meeting of the stockholders of RGI called therefor and at every adjournment
thereof. Each Stockholder agrees to vote all the Shares and New Shares, if any,
beneficially owned by such Stockholder against any merger (other than the
Merger), consolidation, sale of assets, reorganization, recapitalization,
liquidation or winding up of RGI at every meeting of the stockholders of RGI
called therefor and at every adjournment thereof held prior to the date the
Merger Agreement shall have terminated in accordance with the terms thereof.
This Agreement is intended to bind each Stockholder only with respect to the
specific matters set forth herein, and shall not restrict any Stockholder from
taking any other action or failing to take any other action in his capacity as
an officer or director of RGI in accordance with his fiduciary duties.
SECTION 3. NO VOTING TRUSTS. Each Stockholder will not, and will not permit
any entity under such Stockholder's control to, deposit any of his Shares in a
voting trust or subject any of his Shares to any arrangement or agreement with
respect to the voting of such Shares, other than agreements to which FM is a
party.
SECTION 4. NO PROXY SOLICITATIONS. Each Stockholder will not, and will not
permit any entity under his control to, (a) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation l4A
under the 1934 Act), in opposition to or competition with the consummation of
the Merger or otherwise encourage or assist any party in taking or planning any
action which would compete with, restrain or otherwise serve to interfere with
or inhibit the timely consummation of the Merger in accordance with the terms of
the Merger Agreement; (b) initiate a stockholder's vote or action by consent of
RGI stockholders in opposition to or in competition with the consummation of the
Merger; or (c) become a member of a "group" (as such term is used in Section
13(d) of the 0000 Xxx) with respect to any voting securities of RGI for the
purpose of opposing or competing with the consummation of the Merger.
SECTION 5. IRREVOCABLE PROXY. Each Stockholder agrees to deliver to FM on
the date hereof a proxy in the form attached hereto as Exhibit A which shall be
irrevocable to the extent permitted by the Nevada General Corporation law, with
the total number of Shares beneficially owned by such Stockholder correctly
indicated in the blank provided therefor therein.
SECTION 6. TRANSFER AND ENCUMBRANCE. Each Stockholder agrees not to
transfer, sell or offer to transfer or sell or otherwise dispose of or encumber
any of the Shares or New Shares beneficially owned by such Stockholder prior to
the earlier of: (i) the Effective Date; or (ii) the date the Merger Agreement
shall have terminated in accordance with its terms, provided that such
Stockholder may transfer or sell the Shares and the New Shares beneficially
owned by such Stockholder to any person who agrees to be bound by the terms
hereof and delivers to FM on the date of such transfer a proxy substantially in
the form attached hereto as Exhibit A.
SECTION 7. ADDITIONAL PURCHASES. Each Stockholder agrees not to purchase or
otherwise acquire beneficial ownership of any shares of Common Stock after the
execution of this Agreement ("New Shares") nor will such Stockholder acquire the
right to vote or share in the voting of any shares of Common Stock, other than
the Shares or any New Shares, unless such Stockholder delivers to FM immediately
after such purchase or acquisition an irrevocable proxy substantially in the
form attached
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hereto as Exhibit A, with the total number of New Shares correctly indicated in
the blank provided therefor therein. Each Stockholder also agrees that any New
Shares acquired or purchased by him shall be subject to the terms of this
Agreement to the same extent as if they constituted Shares.
SECTION 8. SPECIFIC PERFORMANCE. Each party hereto acknowledges that it
will be impossible to measure in money the damage to the other party if a party
hereto fails to comply with any of the obligations imposed by this Agreement,
that every such obligation is material and that, in the event of any such
failure, the other party will not have an adequate remedy at law or in damages,
and accordingly, each party hereto agrees that the issuance of an injunction or
other equitable remedy is the appropriate remedy for any such failure.
SECTION 9. SUCCESSORS AND ASSIGNS. Except as provided in Section 6, this
Agreement and all obligations of Stockholder hereunder shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns and shall not be assignable without the written consent of all the
other parties hereto.
SECTION 10. ENTIRE AGREEMENT. This Agreement supersedes all prior
agreements among the parties hereto with respect to the subject matter hereof
and contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or discharged,
and no provision hereof may be modified or waived, except expressly by an
instrument in writing signed by all the parties hereto. No waiver of any
provision hereof by any party shall be deemed a waiver by any other party nor,
shall any such waiver be deemed a continuing waiver of any matter by such party.
SECTION 11. MISCELLANEOUS.
11.1. This Agreement shall be deemed a contract made under, and for
all purposes shall be construed in accordance with, the laws of the State of
Nevada.
11.2. If any provision of this Agreement or the application of any
such provision to any person or circumstances shall be held invalid by a court
of competent jurisdiction, the remainder of this Agreement, including the
remainder of the provision held invalid, or the application of such provision to
persons or circumstances other than those as to which it is held invalid, shall
not be affected.
11.3. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
11.4. This Agreement shall terminate upon the Effective Date or
termination of the Merger Agreement and all of the provisions hereof shall
terminate at such time.
11.5. All Section headings herein are for convenience of reference
only and are not part of this Agreement and no construction or inference shall
be derived therefrom.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
FM PRECISION GOLF CORP.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxxxx X. Xxxxxxxx, President
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STOCKHOLDERS:
Signature of Stockholder: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Shares owned: _______________________
Signature of Stockholder: /s/ Xxxx X. Xxxxx
----------------------------------------
Xxxx X. Xxxxx
Shares owned: _______________________
Signature of Stockholder: /s/ Xxxx X. Xxxxx
----------------------------------------
Xxxx X. Xxxxx
Shares owned: _______________________
Signature of Stockholder: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxx, Trustee of the Xxxxxxx
Xxxxxxxx Trust dated April 21, 1989,
as amended
Shares owned: _______________________
Signature of Stockholder: DMB PROPERTY VENTURE
LIMITED PARTNERSHIP
By: DMB GP, Inc., General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Its President
Shares owned: _______________________
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EXHIBIT A
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IRREVOCABLE PROXY
The undersigned stockholder of Royal Grip, Inc., a Nevada corporation
("RGI"), hereby irrevocably (to the extent permitted by the Nevada General
Corporation Law) appoints Xxxxxxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, and FM
Precision Golf Corp., a Delaware corporation ("FM"), or any of them, 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
1,133,605 shares of Common Stock, par value $.001 per share, of RGI owned of
record or beneficially by the undersigned (the "Shares"), and any and all other
shares or securities issued or issuable in respect thereof on or after the date
hereof, until such time as the Effective Date, as defined in that certain
Agreement and Plan of Merger dated as of MAY 14, 1997, with FM (the "Merger
Agreement") or the Merger Agreement shall be terminated in accordance with its
terms. Upon the execution hereof, all prior proxies given by the undersigned
with respect to the Shares and any and all other shares or securities issued or
issuable in respect thereof on or after the date hereof are hereby revoked and
no subsequent proxies will be given. This proxy is coupled with an interest and
is irrevocable (for one year from the date hereof) and is granted in
consideration of FM entering into the Merger Agreement and the Voting Agreement
dated as of May 14, 1997, with the undersigned stockholder. The attorneys and
proxies named above will be empowered at any time prior to the Effective Date or
such termination of the Merger Agreement to vote in favor of approval of the
Merger (as defined in the Merger Agreement) and the Merger Agreement at every
annual, special or adjourned meeting of RGI's stockholders, and in every written
consent in lieu of such a meeting, or otherwise.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto in favor of approval of the Merger and the Merger
Agreement at every meeting of the stockholders of RGI called therefor and at
every adjournment thereof and may not exercise this proxy on any other matter.
The undersigned may vote the Shares on all other matters. The undersigned hereby
represents and warrants that the undersigned has full power and authority to
grant the proxy created hereby and that the undersigned has good and
unencumbered title to the shares, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claim. The undersigned
will, upon request, execute and deliver any additional documents deemed by the
above named attorneys and proxies to be necessary or desirable to effect the
irrevocable proxy created hereby.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated:_______________________________
Signature of Stockholder: /s/ Xxxxx Xxxxxxx
----------------------------------------
[Name of Stockholder]
Shares owned: 1,133,605
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EXHIBIT A
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IRREVOCABLE PROXY
The undersigned stockholder of Royal Grip, Inc., a Nevada corporation
("RGI"), hereby irrevocably (to the extent permitted by the Nevada General
Corporation Law) appoints Xxxxxxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, and FM
Precision Golf Corp., a Delaware corporation ("FM"),or any of them, 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
4,494 shares of Common Stock, par value $.001 per share, of RGI owned of record
or beneficially by the undersigned (the "Shares"), and any and all other shares
or securities issued or issuable in respect thereof on or after the date hereof,
until such time as the Effective Date, as defined in that certain Agreement and
Plan of Merger dated as of MAY 14, 1997, with FM (the "Merger Agreement") or the
Merger Agreement shall be terminated in accordance with its terms. Upon the
execution hereof, all prior proxies given by the undersigned with respect to the
Shares and any and all other shares or securities issued or issuable in respect
thereof on or after the date hereof are hereby revoked and no subsequent proxies
will be given. This proxy is coupled with an interest and is irrevocable (for
one year from the date hereof) and is granted in consideration of FM entering
into the Merger Agreement and the Voting Agreement dated as of May 14, 1997,
with the undersigned stockholder. The attorneys and proxies named above will be
empowered at any time prior to the Effective Date or such termination of the
Merger Agreement to vote in favor of approval of the Merger (as defined in the
Merger Agreement) and the Merger Agreement at every annual, special or adjourned
meeting of RGI's stockholders, and in every written consent in lieu of such a
meeting, or otherwise.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto in favor of approval of the Merger and the Merger
Agreement at every meeting of the stockholders of RGI called therefor and at
every adjournment thereof and may not exercise this proxy on any other matter.
The undersigned may vote the Shares on all other matters. The undersigned hereby
represents and warrants that the undersigned has full power and authority to
grant the proxy created hereby and that the undersigned has good and
unencumbered title to the shares, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claim. The undersigned
will, upon request, execute and deliver any additional documents deemed by the
above named attorneys and proxies to be necessary or desirable to effect the
irrevocable proxy created hereby.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated:_______________________________
Signature of Stockholder: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxx, Trustee of the Xxxxxxx
Shares owned: 4,494 Xxxxxxxx Trust dated April 21, 1989, as
amended in its entirety on March 20,
1996, as further amended
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EXHIBIT A
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IRREVOCABLE PROXY
The undersigned stockholder of Royal Grip, Inc., a Nevada corporation
("RGI"), hereby irrevocably (to the extent permitted by the Nevada General
Corporation Law) appoints Xxxxxxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, and FM
Precision Golf Corp., a Delaware corporation ("FM"), or any of them, 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
789 shares of Common Stock, par value $.001 per share, of RGI owned of record or
beneficially by the undersigned (the "Shares"), and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof,
until such time as the Effective Date, as defined in that certain Agreement and
Plan of Merger dated as of MAY 14, 1997, with FM (the "Merger Agreement") or the
Merger Agreement shall be terminated in accordance with its terms. Upon the
execution hereof, all prior proxies given by the undersigned with respect to the
Shares and any and all other shares or securities issued or issuable in respect
thereof on or after the date hereof are hereby revoked and no subsequent proxies
will be given. This proxy is coupled with an interest and is irrevocable (for
one year from the date hereof) and is granted in consideration of FM entering
into the Merger Agreement and the Voting Agreement dated as of May 14, 1997,
with the undersigned stockholder. The attorneys and proxies named above will be
empowered at any time prior to the Effective Date or such termination of the
Merger Agreement to vote in favor of approval of the Merger (as defined in the
Merger Agreement) and the Merger Agreement at every annual, special or adjourned
meeting of RGI's stockholders, and in every written consent in lieu of such a
meeting, or otherwise.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto in favor of approval of the Merger and the Merger
Agreement at every meeting of the stockholders of RGI called therefor and at
every adjournment thereof and may not exercise this proxy on any other matter.
The undersigned may vote the Shares on all other matters. The undersigned hereby
represents and warrants that the undersigned has full power and authority to
grant the proxy created hereby and that the undersigned has good and
unencumbered title to the shares, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claim. The undersigned
will, upon request, execute and deliver any additional documents deemed by the
above named attorneys and proxies to be necessary or desirable to effect the
irrevocable proxy created hereby.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated:_______________________________
Signature of Stockholder: /s/ Xxxx X. Xxxxx
----------------------------------------
Xxxx X. Xxxxx
Shares owned: 789
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EXHIBIT A
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IRREVOCABLE PROXY
The undersigned stockholder of Royal Grip, Inc., a Nevada corporation
("RGI"), hereby irrevocably (to the extent permitted by the Nevada General
Corporation Law) appoints Xxxxxxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, and FM
Precision Golf Corp., a Delaware corporation ("FM"), or any of them, 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
789 shares of Common Stock, par value $.001 per share, of RGI owned of record or
beneficially by the undersigned (the "Shares"), and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof,
until such time as the Effective Date, as defined in that certain Agreement and
Plan of Merger dated as of MAY 14, 1997, with FM (the "Merger Agreement") or the
Merger Agreement shall be terminated in accordance with its terms. Upon the
execution hereof, all prior proxies given by the undersigned with respect to the
Shares and any and all other shares or securities issued or issuable in respect
thereof on or after the date hereof are hereby revoked and no subsequent proxies
will be given. This proxy is coupled with an interest and is irrevocable (for
one year from the date hereof) and is granted in consideration of FM entering
into the Merger Agreement and the Voting Agreement dated as of May 14, 1997,
with the undersigned stockholder. The attorneys and proxies named above will be
empowered at any time prior to the Effective Date or such termination of the
Merger Agreement to vote in favor of approval of the Merger (as defined in the
Merger Agreement) and the Merger Agreement at every annual, special or adjourned
meeting of RGI's stockholders, and in every written consent in lieu of such a
meeting, or otherwise.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto in favor of approval of the Merger and the Merger
Agreement at every meeting of the stockholders of RGI called therefor and at
every adjournment thereof and may not exercise this proxy on any other matter.
The undersigned may vote the Shares on all other matters. The undersigned hereby
represents and warrants that the undersigned has full power and authority to
grant the proxy created hereby and that the undersigned has good and
unencumbered title to the shares, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claim. The undersigned
will, upon request, execute and deliver any additional documents deemed by the
above named attorneys and proxies to be necessary or desirable to effect the
irrevocable proxy created hereby.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated:_______________________________
Signature of Stockholder: /s/ Xxxx X. Xxxxx
----------------------------------------
Xxxx X. Xxxxx
Shares owned: 789
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EXHIBIT A
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IRREVOCABLE PROXY
The undersigned stockholder of Royal Grip, Inc., a Nevada corporation
("RGI"), hereby irrevocably (to the extent permitted by the Nevada General
Corporation Law) appoints Xxxxxxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, and FM
Precision Golf Corp., a Delaware corporation ("FM"), or any of them, 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
414,771 shares of Common Stock, par value $.001 per share, of RGI owned of
record or beneficially by the undersigned (the "Shares"), and any and all other
shares or securities issued or issuable in respect thereof on or after the date
hereof, until such time as the Effective Date, as defined in that certain
Agreement and Plan of Merger dated as of MAY 14, 1997, with FM (the "Merger
Agreement") or the Merger Agreement shall be terminated in accordance with its
terms. Upon the execution hereof, all prior proxies given by the undersigned
with respect to the Shares and any and all other shares or securities issued or
issuable in respect thereof on or after the date hereof are hereby revoked and
no subsequent proxies will be given. This proxy is coupled with an interest and
is irrevocable (for one year from the date hereof) and is granted in
consideration of FM entering into the Merger Agreement and the Voting Agreement
dated as of May 14, 1997, with the undersigned stockholder. The attorneys and
proxies named above will be empowered at any time prior to the Effective Date or
such termination of the Merger Agreement to vote in favor of approval of the
Merger (as defined in the Merger Agreement) and the Merger Agreement at every
annual, special or adjourned meeting of RGI's stockholders, and in every written
consent in lieu of such a meeting, or otherwise.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto in favor of approval of the Merger and the Merger
Agreement at every meeting of the stockholders of RGI called therefor and at
every adjournment thereof and may not exercise this proxy on any other matter.
The undersigned may vote the Shares on all other matters. The undersigned hereby
represents and warrants that the undersigned has full power and authority to
grant the proxy created hereby and that the undersigned has good and
unencumbered title to the shares, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claim. The undersigned
will, upon request, execute and deliver any additional documents deemed by the
above named attorneys and proxies to be necessary or desirable to effect the
irrevocable proxy created hereby.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
DMB PROPERTY VENTURES LIMITED
Dated:____________________________ PARTNERSHIP, a Delaware limited partnership
By DMB GP, Inc., General Partner
Signature of Stockholder: By: /s/ Xxxx X. Xxxxx
---------------------------------------
Its President
Shares owned: 414,771
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