EX-10.2 4 d176517dex102.htm EX-10.2 VOTING AGREEMENT by and among ERIC LEFKOFSKY, GREEN MEDIA, LLC, BRADLEY KEYWELL, RUGGER VENTURES LLC, NEW ENTERPRISE ASSOCIATES 12, LIMITED PARTNERSHIP, NEW ENTERPRISE ASSOCIATES, LLC, and GROUPON, INC. Dated as of...
Exhibit 10.2
by and among
XXXX XXXXXXXXX,
GREEN MEDIA, LLC,
600 WEST GROUPON LLC,
XXXXXXX XXXXXXX,
RUGGER VENTURES LLC,
NEW ENTERPRISE ASSOCIATES 12, LIMITED PARTNERSHIP,
NEW ENTERPRISE ASSOCIATES, LLC,
A-G HOLDINGS, L.P.
and
GROUPON, INC.
Dated as of April 4, 2016
TABLE OF CONTENTS
PAGE | ||||
1 | ||||
Section 1.01. Definitions | 1 | |||
Section 1.02. General Interpretive Principles | 4 | |||
ARTICLE 2 VOTING | 4 | |||
Section 2.01. Voting for Purchaser Designee | 4 | |||
Section 2.02. Irrevocable Proxy | 5 | |||
Section 2.03. Agreement to be Bound | 6 | |||
Section 2.04. Notices of Changes in Beneficial Ownership | 6 | |||
ARTICLE 3 REGISTRATION RIGHTS | 7 | |||
Section 3.01. Registration Rights | 7 | |||
ARTICLE 4 REPRESENTATIONS AND WARRANTIES | 7 | |||
Section 4.01. Organization; Ownership | 7 | |||
Section 4.02. Authorization | 7 | |||
Section 4.03. No Conflicts | 8 | |||
Section 4.04. Consents and Approvals | 8 | |||
Section 4.05. Finder’s Fees | 8 | |||
Section 4.06. Ownership of Voting Stock | 8 | |||
ARTICLE 5 MISCELLANEOUS | 9 | |||
Section 5.01. Notices | 9 | |||
Section 5.02. Entire Agreement; Third Party Beneficiaries; Amendment | 10 | |||
Section 5.03. Counterparts | 10 | |||
Section 5.04. Expenses | 10 | |||
Section 5.05. Successors and Assigns | 10 | |||
Section 5.06. Governing Law; Jurisdiction; Waiver of Jury Trial | 11 | |||
Section 5.07. Severability | 12 | |||
Section 5.08. Specific Performance | 12 | |||
Section 5.09. Headings | 12 |
This VOTING AGREEMENT (this “Agreement”), dated as of April 4, 2016, is by and among Xxxx Xxxxxxxxx, Green Media, LLC, a Delaware limited liability company, 600 West Groupon LLC, a Delaware limited liability company, Xxxxxxx Xxxxxxx (each of Xxxx Xxxxxxxxx and Xxxxxxx Xxxxxxx, a “Founder”), Rugger Ventures LLC, a Delaware limited liability company, New Enterprise Associates 12, Limited Partnership, a Delaware limited partnership (“NEA”), New Enterprise Associates, LLC, a Delaware limited liability company (each of the foregoing parties, together with any successor or assign pursuant to Section 5.05, a “Shareholder”), A-G Holdings, L.P., a Delaware limited partnership (together with any successor or assign pursuant to Section 5.05, the “Purchaser”), and Groupon, Inc., a Delaware corporation (together with any successor or assign pursuant to Section 5.05, the “Company”). Capitalized terms not otherwise defined where used shall have the meanings ascribed thereto in Article 1.
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:
“Affiliate” shall mean, with respect to any Person, any other Person which directly or indirectly controls or is controlled by or is under common control with such Person. Notwithstanding the foregoing, the Company and the Company’s Subsidiaries shall not be considered Affiliates of any Shareholder or any Shareholder’s Affiliates, or the Purchaser or any of the Purchaser’s Affiliates. For the avoidance of doubt, Comcast Corporation, a Pennsylvania corporation, and its Subsidiaries are not and shall not be considered Affiliates of the Purchaser or any of the Purchaser’s Affiliates. As used in
this definition, “control” (including its correlative meanings, “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
“Agreement” shall have the meaning set forth in the preamble hereto.
“Atairos Group” shall have the meaning ascribed to such term in the Investment Agreement.
“Beneficially Own”, “Beneficially Owned” or “Beneficial Ownership” shall have the meaning set forth in Rule 13d-3 of the rules and regulations promulgated under the Exchange Act, as in effect on the date hereof. Solely for purposes of determining the number of shares of Company Common Stock issuable upon conversion of the Notes Beneficially Owned by the Purchaser and its Affiliates, the Notes shall be treated as if upon conversion the only settlement option under the Notes and Indenture were solely Physical Settlement (as defined in the Indenture). For the avoidance of doubt, for purposes of this Agreement, the Purchaser (or any other person) shall at all times be deemed to have Beneficial Ownership of shares of Company Common Stock issuable upon conversion of the Notes directly or indirectly held by them, irrespective of any restrictions on transfer or other terms contained in the Investment Agreement or the other Transaction Agreements.
“Board of Directors” shall mean the board of directors of the Company.
“Business Day” shall mean any day, other than a Saturday, Sunday or a day on which banking institutions in The City of New York, New York are authorized or obligated by law or executive order to remain closed.
“Class A Common Stock” shall mean the Class A Common Stock, par value $0.0001 per share, of the Company.
“Class B Common Stock” shall mean the Class B Common Stock, par value $0.0001 per share, of the Company.
“Closing” shall have the meaning ascribed to such term in the Investment Agreement.
“Common Stock” shall mean the Common Stock, par value $0.0001 per share, of the Company.
“Company” shall have the meaning set forth in the preamble hereto.
“Company Common Stock” shall mean (i) prior to the conversion of the Company’s outstanding capital stock pursuant to Section 4(d) of Article IV of the Company’s Sixth Amended and Restated Certificate of Incorporation, dated as of October 31, 2011, the Class A Common Stock, and (ii) from and after such conversion of the Company’s outstanding capital stock, the Common Stock.
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“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934.
“Filing Party” shall have the meaning set forth in Section 2.04.
“Founder” shall have the meaning set forth in the preamble hereto.
“Governmental Entity” shall mean any court, administrative agency or commission or other governmental authority or instrumentality, whether federal, state, local or foreign, and any applicable industry self-regulatory organization.
“Investment Agreement” shall mean the Investment Agreement entered into on April 3, 2016 by and among the Purchaser and the Company.
“Investor Rights Agreement” shall mean the Investor Rights Agreement, dated as of December 10, 2010, among the Company and certain investors named therein.
“NEA” shall have the meaning set forth in the preamble hereto.
“Note” or “Notes” shall have the meaning set forth in the preamble hereto.
“Person” or “person” shall mean an individual, corporation, limited liability or unlimited liability company, association, partnership, trust, estate, joint venture, business trust or unincorporated organization, or a government or any agency or political subdivision thereof, or other entity of any kind or nature.
“Purchaser” shall have the meaning set forth in the preamble hereto.
“Purchaser Designee” shall have the meaning ascribed to such term in the Investment Agreement.
“Registrable Securities” shall have the meaning ascribed to such term in the Investment Agreement.
“Schedule 13D” shall have the meaning set forth in Section 2.04.
“Schedule 13G” shall have the meaning set forth in Section 2.04.
“SEC” shall mean the U.S. Securities and Exchange Commission.
“Shareholder” shall have the meaning set forth in the preamble hereto.
“Shares” shall have the meaning set forth in Section 2.01(a).
“Subject Securities” shall have the meaning ascribed to such term in the Investment Agreement.
“Subsidiary” shall mean, with respect to any Person, any other Person of which 50% or more of the shares of the voting securities or other voting interests are owned or controlled, or the ability to select or elect 50% or more of the directors or similar
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managers is held, directly or indirectly, by such first Person or one or more of its Subsidiaries, or by such first Person, or by such first Person and one or more of its Subsidiaries.
“Transactions” shall have the meaning ascribed to such term in the Investment Agreement.
“transfer” shall have the meaning set forth in Section 2.03.
“Voting Stock” shall mean (i) securities of any class or kind having the power to vote generally for the election of directors, managers or other voting members of the governing body of the Company or any successor thereto, including the Class B Common Stock, the Class A Common Stock and the Common Stock, or (ii) options, warrants, calls, preemptive (or similar) rights, subscriptions or other rights, agreements or commitments obligating the Company to issue, transfer or sell, or cause to be issued, transferred or sold, or any securities convertible into or exercisable or exchangeable for, any securities of the type referred to in the foregoing clauses (i).
Section 1.02. General Interpretive Principles. Whenever used in this Agreement, except as otherwise expressly provided or unless the context otherwise requires, any noun or pronoun shall be deemed to include the plural as well as the singular and to cover all genders. The name assigned to this Agreement and the section captions used herein are for convenience of reference only and shall not be construed to affect the meaning, construction or effect hereof. Whenever the words “include,” “includes,” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” Unless otherwise specified, the terms “hereto,” “hereof,” “herein” and similar terms refer to this Agreement as a whole (including the exhibits and annexes hereto), and references herein to Articles or Sections refer to Articles or Sections of this Agreement. For the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, none of the Notes will have any right to vote or any right to receive any dividends or other distributions that are made or paid to the holders of the shares of Company Common Stock. References to any law or statute shall be deemed to refer to such law or statute as amended from time to time and, if applicable, to any rules or regulations promulgated thereunder. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.
ARTICLE 2
4
such time for such purpose any shares of Company Common Stock Beneficially Owned by the Atairos Group at such time solely by reason of this Agreement), each Shareholder shall, and shall cause each of its Affiliates to:
(a) cause all of the Voting Stock Beneficially Owned by such Person, to the extent that such Person has the right to vote such Voting Stock (collectively, such Person’s “Shares”), to be present for quorum purposes at any annual or special meeting of stockholders of the Company at which individuals will be elected members of the Board of Directors; and
(b) vote, or cause to be voted, or execute, or cause to be executed, proxies or written consents with respect to, as the case may be, all of such Person’s Shares, (i) in favor of the election of the Purchaser Designee to the Board of Directors at any annual or special meeting or in any action by written consent of stockholders of the Company at or pursuant to which individuals will be elected members of the Board of Directors, (ii) against the removal of the Purchaser Designee from the Board of Directors at any annual or special meeting or in any action by written consent of stockholders of the Company at or pursuant to which members of the Board of Directors will be removed therefrom, unless the Purchaser has requested the removal of such director by written notice to the Shareholders, and (iii) in favor of the removal of the Purchaser Designee from the Board of Directors at any annual or special meeting or in any action by written consent of stockholders of the Company at or pursuant to which members of the Board of Directors will be removed therefrom, if the Purchaser has requested the removal of such director in writing by written notice to the Shareholders.
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ARTICLE 3
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Each Shareholder represents and warrants to the Purchaser, as of the date hereof, as follows:
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8
ARTICLE 5
(a) If to any Shareholder, to the address or email address set forth on such Shareholder’s signature page hereto.
(b) If to the Purchaser, to:
c/o Atairos Management, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Email: x.xxxxxx@xxxxxxx.xxx
and:
c/o Atairos Management, L.P.
00 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx XxXxxxx
Email: x.xxxxxxx@xxxxxxx.xxx
With a copy (which shall not constitute actual or constructive notice) to:
Xxxxx Xxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Email: xxxxxxx.xxxxx@xxxxxxxxx.xxx
(c) If to the Company, to:
Groupon, Inc.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Email:
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With a copy (which shall not constitute actual or constructive notice) to:
Winston & Xxxxxx LLP
00 X. Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Email: XXxxxx@xxxxxxx.xxx
or to such other address or addresses as shall be designated in writing. All notices shall be deemed effective (a) when delivered personally (with written confirmation of receipt, by other than automatic means, whether electronic or otherwise) or (b) one (1) Business Day following the day sent by overnight courier.
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and have all the rights and obligations of a Shareholder, (ii) any Affiliate of the Purchaser or (B) Comcast Corporation or any of its Subsidiaries, in each case who after the date hereof executes and delivers a Joinder pursuant to a Permitted Transfer (in each case, as defined in the Investment Agreement) of any Notes or shares of Company Common Stock pursuant to Section 4.02(a)(i) or (vi) of the Investment Agreement, respectively, shall be deemed a Purchaser hereunder and have all the rights and obligations of a Purchaser and (iii) the rights of a holder of Registrable Securities under Section 3.01 may be transferred but only together with Subject Securities (x) in a transfer of (1) Notes in an aggregate principal amount of at least $37,500,000 or (2) Company Common Stock or other Subject Securities (I) issued or issuable upon conversion of at least $37,500,000 in aggregate principal amount of Notes, or (II) having an aggregate market value at such time of at least $37,500,000, (y) to an Affiliate of the transferor that executes and delivers to the Company a Joinder (subject to Section 4.02(a)(i) of the Investment Agreement), or (z) to a lender in connection with a Permitted L oan (as defined in the Investment Agreement). For the avoidance of doubt, no Third Party (as defined in the Investment Agreement) to whom any of the Notes or shares of Company Common Stock are transferred shall have any rights or obligations under this Agreement except (and then only to the extent of) any rights and obligations under Section 3.01 to the extent transferable in accordance with this Section 5.05. For the avoidance of doubt, transfers by a Shareholder (other than to an Affiliate of such Shareholder or another Shareholder or Affiliate thereof pursuant to Section 2.03) shall not be subject to the terms of this Agreement and such transferee (other than an Affiliate of a Shareholder or another Shareholder or Affiliate thereof) shall not be bound by the terms of this Agreement.
Section 5.06. Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. In addition, each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, solely if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with this Section 5.06(a), (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court
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or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by the applicable law, any claim that (A) the suit, action or proceeding in such court is brought in an inconvenient forum, (B) the venue of such suit, action or proceeding is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of the parties hereby agrees that service of any process, summons, notice or document by U.S. registered mail to the respective addresses set forth in Section 5.01 shall be effective service of process for any suit or proceeding in connection with this Agreement or the transactions contemplated hereby.
(b) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 5.06.
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XXXX XXXXXXXXX, in his individual capacity |
/s/ Xxxx Xxxxxxxxx |
Xxxx Xxxxxxxxx |
Shares: |
Class B Common Stock: 0 |
Class A Common Stock: 1,901,375 |
Address: |
c/o Groupon, Inc. |
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000 |
Xxxxxxx, XX 00000 |
Attention: Xxxx Xxxxxxxxx |
Phone: |
With a copy (which shall not constitute actual or constructive notice) to: |
Winston & Xxxxxx |
00 X. Xxxxxx Xxxxx |
Xxxxxxx, XX 00000 |
Attention: Xxxxxx X. Xxxxx |
Fax: +1 (312) 558 - 5700 |
Email: xxxxxx@xxxxxxx.xxx |
[Signature Page to Voting Agreement]
GREEN MEDIA, LLC | ||
By: | /s/ Xxxx Xxxxxxxxx | |
Name: Xxxx Xxxxxxxxx | ||
Title: Manager |
Shares: |
Class B Common Stock: 999,984 |
Class A Common Stock: 100,735,062 |
Address: |
c/o Groupon, Inc. |
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000 |
Xxxxxxx, XX 00000 |
Attention: Xxxx Xxxxxxxxx |
Phone: |
With a copy (which shall not constitute actual or constructive notice) to: |
Winston & Xxxxxx |
00 X. Xxxxxx Xxxxx |
Xxxxxxx, XX 00000 |
Attention: Xxxxxx X. Xxxxx |
Fax: +1 (312) 558 - 5700 |
Email: xxxxxx@xxxxxxx.xxx |
[Signature Page to Voting Agreement]
600 WEST GROUPON LLC
By: BLUE MEDIA, LLC, ITS MANAGER | ||
By: | /s/ Xxxx Xxxxxxxxx | |
Name: Xxxx Xxxxxxxxx | ||
Title: Manager |
Shares: |
Class B Common Stock: 0 |
Class A Common Stock: 149,948 |
Address: |
c/o Groupon, Inc. |
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000 |
Xxxxxxx, XX 00000 |
Attention: Xxxx Xxxxxxxxx |
Phone: |
With a copy (which shall not constitute actual or constructive notice) to: |
Winston & Xxxxxx |
00 X. Xxxxxx Xxxxx |
Xxxxxxx, XX 00000 |
Attention: Xxxxxx X. Xxxxx |
Fax: +1 (312) 558 - 5700 |
Email: xxxxxx@xxxxxxx.xxx |
[Signature Page to Voting Agreement]
XXXXXXX XXXXXXX, in his individual capacity |
/s/ Xxxxxxx Xxxxxxx |
Xxxxxxx Xxxxxxx |
Shares: |
Class B Common Stock: 0 |
Class A Common Stock: 95,074 |
Address: |
c/o Groupon, Inc. |
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000 |
Xxxxxxx, XX 00000 |
Attention: Xxxxxxx Xxxxxxx |
Phone: |
With a copy (which shall not constitute actual or constructive notice) to: |
Winston & Xxxxxx |
00 X. Xxxxxx Xxxxx |
Xxxxxxx, XX 00000 |
Attention: Xxxxxx X. Xxxxx |
Fax: +1 (312) 558 - 5700 |
Email: xxxxxx@xxxxxxx.xxx |
[Signature Page to Voting Agreement]
RUGGER VENTURES LLC | ||
By: | /s/ Xxxxxxx Xxxxxxx | |
Name: Xxxxxxx Xxxxxxx | ||
Title: Manager | ||
Shares: | ||
Class B Common Stock: 400,008 | ||
Class A Common Stock: 30,325,030 | ||
Address: | ||
c/o Groupon, Inc. | ||
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000 | ||
Xxxxxxx, XX 00000 | ||
Attention: Xxxxxxx Xxxxxxx | ||
Phone: | ||
With a copy (which shall not constitute actual or constructive notice) to: | ||
Winston & Xxxxxx | ||
00 X. Xxxxxx Xxxxx | ||
Xxxxxxx, XX 00000 | ||
Attention: Xxxxxx X. Xxxxx | ||
Fax: +1 (312) 558 - 5700 | ||
Email: xxxxxx@xxxxxxx.xxx |
[Signature Page to Voting Agreement]
NEW ENTERPRISE ASSOCIATES 12, LIMITED PARTNERSHIP | ||
By: | /s/ Xxxxx X. Xxxxxx | |
Name: Xxxxx X. Xxxxxx | ||
Title: Chief Legal Officer | ||
Shares: | ||
Class B Common Stock: 0 | ||
Class A Common Stock: 43,984,956 | ||
Address: | ||
New Enterprise Associates 12, | ||
Limited Partnership | ||
0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000 | ||
Xxxxxxxx, XX 00000 | ||
Attention: Xxxxx X. Xxxxxx | ||
Fax: | ||
Email: | ||
With a copy (which shall not constitute actual or constructive notice) to: | ||
Same as above |
[Signature Page to Voting Agreement]
NEW ENTERPRISE ASSOCIATES, LLC | ||
By: | /s/ Xxxxx X. Xxxxxx | |
Name: Xxxxx X. Xxxxxx | ||
Title: Chief Legal Officer | ||
Shares: | ||
Class B Common Stock: 0 | ||
Class A Common Stock: 21,380 | ||
Address: | ||
New Enterprise Associates, LLC | ||
0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000 | ||
Xxxxxxxx, XX 00000 | ||
Attention: Xxxxx X. Xxxxxx | ||
Fax: | ||
Email: | ||
With a copy (which shall not constitute actual or constructive notice) to: | ||
Same as above |
[Signature Page to Voting Agreement]
A-G HOLDINGS, L.P.
| ||
By: | A-G HOLDINGS GP, LLC, its general partner
| |
By: | ATAIROS GROUP, INC., its sole member and manager | |
By: | /s/ Xxxxx X. Xxxxxx | |
Name: Xxxxx X. Xxxxxx | ||
Title: Vice President and General Counsel |
[Signature Page to Voting Agreement]
GROUPON, INC.
| ||
By: | /s/ Xxxxx Xxxxxxx | |
Name: Xxxxx Xxxxxxx | ||
Title: Chief Accounting Officer |
[Signature Page to Voting Agreement]