EXHIBIT (d)(3)
STOCK VOTING, NON-TENDER AND CONTRIBUTION AGREEMENT
THIS STOCK VOTING, NON-TENDER AND CONTRIBUTION AGREEMENT (this
"Agreement") dated as of July 24, 2001, by and among EA Engineering Holdings,
LLC, a Delaware limited liability company ("Parent"), EA Engineering Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("Acquiror"), Xxxxx X. Xxxxxx ("Xxxxxx"), and the Xxxxxxx Xxx Xxxxxx Irrevocable
Trust, the Xxxxxxx Xxx Xxxxxx Irrevocable Trust and the Xxxxx Xxxxx Xxxxxx
Irrevocable Trust (collectively, the "Xxxxxx Family Trusts"), Ecolair LLLP, a
Maryland limited liability limited partnership ("Ecolair"), and The Xxxxx Xxxxxx
Group, Inc., a New Jersey corporation ("Xxxxxx"). Xxxxxx and the Xxxxxx Family
Trusts are referred to herein collectively as the "Stockholders" and
individually as a "Stockholder."
RECITALS:
WHEREAS, simultaneously with entering into this Agreement, Parent,
Acquiror and EA Engineering, Science, and Technology, Inc., a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of Merger
(the "Merger Agreement"), pursuant to which Acquiror will commence a cash tender
offer (the "Offer") to purchase all of the issued and outstanding shares of
common stock, par value $.01 per share (the "Common Stock") of the Company, at a
price of $1.60 per share, and pursuant to which Acquiror will be merged with and
into the Company (the "Merger");
WHEREAS, Ecolair and Xxxxxx have formed Parent in order to effect the
Offer and the Merger through Acquiror, its wholly owned subsidiary;
WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of the number of shares of Common Stock of the Company (the
"Shares") set forth opposite such Stockholders' name on Schedule I hereto;
WHEREAS, each Stockholder has agreed that such Stockholder shall not
tender any Shares beneficially owned by such Stockholder in the Offer, as set
forth herein;
WHEREAS, each Stockholder has agreed to vote any Shares beneficially
owned by such Stockholder in favor of the Merger and the Merger Agreement and
the transactions contemplated thereby if stockholder approval is required and
such Stockholder has agreed to vote against any competing offer to acquire the
Company;
WHEREAS, after the Offer has expired and, subject to the satisfaction
of the conditions of the Offer or the waiver of such conditions pursuant to the
Merger Agreement, immediately prior to the purchase by Acquiror of the shares of
Common Stock of the Company properly tendered and not withdrawn, (i) each
Stockholder shall contribute all of his or its issued and outstanding shares of
Common Stock of the Company to the Parent in exchange for a membership interest
in the Parent, (ii) Ecolair and Xxxxxx shall make their initial capital
contributions of cash to the Parent pursuant to Section 5.1.1 of the LLC
Agreement (as defined herein) of Parent and (iii) Parent shall contribute such
shares of Common Stock of the Company and cash to Acquiror;
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that each Stockholder, Ecolair and Xxxxxx enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement capitalized terms
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used and not defined herein have the respective meanings ascribed to them in the
Merger Agreement.
2. Non-Tender of Shares.
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(a) Each Stockholder hereby agrees not to tender for acceptance by
Acquiror in the Offer any Shares owned by such Stockholder as of the date hereof
and any Shares hereafter acquired (all such Shares owned as of the date hereof
or hereinafter acquired, the "Securities").
(b) Each Stockholder hereby agrees to permit Parent and Acquiror to
publish and disclose in the Offer Documents and, if approval of the stockholders
of the Company is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the SEC) its identity and intent with
respect to the Securities and the nature of its commitments under this
Agreement.
3. Voting of Securities.
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(a) Agreement to Vote. Each Stockholder, in its capacity as a
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stockholder of the Company, hereby agrees that during the period commencing on
the date hereof and continuing until the earlier of the Effective Time or the
termination of this Agreement (such period, the "Voting Period"), at any meeting
of the holders of any class or classes of the capital stock of the Company,
however called, or in connection with any written consent of the holders of any
class or classes of the capital stock of the Company where the Stockholder is
entitled to vote, such Stockholder shall vote (or cause to be voted) the
Securities (x) in favor of the Merger, and the approval of the terms of the
Merger Agreement and each of the other transactions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance thereof,
(y) against any action, transaction or agreement that would result in a breach
in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or of such
Stockholder under this Agreement, and (z) except as otherwise agreed to in
writing in advance by Acquiror, against the following actions (other than the
Merger and the transactions contemplated by the Merger Agreement): (i) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its Subsidiaries; (ii) a
sale, lease or transfer of a significant part of the assets of the Company or
any of its Subsidiaries, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its Subsidiaries; (iii) (A) any change in
the Persons who constitute the board of directors of the Company; (B) any change
in the present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or By-laws; (C) any other material change in the
Company's corporate structure or business; or (D) any other action involving the
Company or any of its Subsidiaries which is
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intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, or have a material adverse effect on the Merger and the transactions
contemplated by this Agreement or the Merger Agreement. Each Stockholder hereby
agrees that such Stockholder shall not enter into any agreement or understanding
with any Person the effect of which would be to violate the provisions and
agreements contained in this Agreement.
(b) Other Proxies Revoked. Each Stockholder represents and warrants
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that any proxies heretofore given in respect of such Stockholder's Securities
are not irrevocable, and that all such proxies have been or are hereby revoked.
4. Contribution of Securities and Cash. (a) After the Offer has
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expired and, subject to the satisfaction of the conditions of the Offer or the
waiver of such conditions pursuant to the Merger Agreement, immediately prior to
the purchase by Acquiror of the shares of Common Stock of the Company properly
tendered and not withdrawn, then at such time each Stockholder shall contribute
all of his or its issued and outstanding shares of Common Stock of the Company
to the Parent in exchange for a membership interest in the Parent and Parent
shall admit each Stockholder as a member. As a result of such contribution,
Xxxxxx and the Family Trusts shall own a LLC Interest in Parent representing the
Percentage Interest in the Parent as set forth opposite such Stockholder's name
on Schedule I hereto. Such LLC Interest shall be governed by the Parent's
Limited Liability Company Agreement dated as of July 23, 2001 (the "LLC
Agreement"). For purposes hereof, the terms "LLC Interest" and "Percentage
Interest" shall have the meanings ascribed to such terms in the LLC Agreement.
The Parent shall contribute the shares of Common Stock of the Company
contributed by the Stockholders to the Acquiror.
(b) After the Offer has expired and, subject to the satisfaction of
the conditions of the Offer or the waiver of such conditions pursuant to the
Merger Agreement, immediately prior to the purchase by Acquiror of the shares of
Common Stock of the Company properly tendered and not withdrawn, then at such
time Ecolair and Xxxxxx shall make their initial capital contributions of cash
to the Parent pursuant to Section 5.1.1 of the LLC Agreement of the Parent.
5. Representations and Warranties of each Stockholder. Each
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Stockholder, severally and not jointly, hereby represents and warrants to
Parent, Acquiror and Xxxxxx as follows:
(a) Power, etc. Such Stockholder has all necessary power and
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authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Stockholder and, assuming its due authorization,
execution and delivery by each other party hereto, constitutes a legal, valid
and binding obligation of such Stockholder, enforceable against such Stockholder
in accordance with its terms.
(b) Ownership of Securities. Such Stockholder is the record and
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beneficial owner of the Securities listed beside such Stockholder's name on
Schedule I attached hereto. The Securities listed on Schedule I constitute all
of the shares of capital stock of the Company owned of record or beneficially by
such Stockholder as of the date hereof. All of such Securities are issued and
are outstanding and except as set forth on Schedule I attached hereto, such
Stockholder does not own, of record or beneficially, any warrants, options or
other rights to acquire any shares of capital stock of the Company. Such
Stockholder has sole voting power and
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sole power to issue instructions with respect to the matters set forth in
Sections 2, 3 and 4 hereof, sole power of disposition, sole power of conversion,
sole power to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of such
Securities, with no limitations, qualifications or restrictions on such rights,
subject only to applicable laws, the Company's Certificate of Incorporation and
the terms of this Agreement.
(c) No Conflicts. (i) No filing with, and no permit, authorization,
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consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by such Stockholder,
the consummation by such Stockholder of the transactions contemplated hereby or
compliance by such Stockholder with any of the provisions hereof shall (A)
conflict with or result in any 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 Stockholder is a party or by
which such Stockholder or any of such Stockholder's properties or assets may be
bound, or (B) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to such Stockholder or any of such
Stockholder's properties or assets.
(d) No Finder's Fees. Except as disclosed pursuant to the Merger
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Agreement, no broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Stockholder.
(e) No Encumbrances. The Securities listed beside such Stockholder's
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name on Schedule I attached hereto and the certificates representing such
Securities are now, and at all times during the term hereof will be, held by
such Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, 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.
(f) Reliance by Acquiror. Such Stockholder understands and
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acknowledges that Parent and Acquiror are entering into the Merger Agreement in
reliance upon such Stockholder's execution and delivery of this Agreement.
6. Additional Covenants of each Stockholder. Each Stockholder
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covenants and agrees as follows:
(a) Restriction on Transfer, Proxies and Non-Interference. Such
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Stockholder shall not (i) directly or indirectly, offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
or consent to the offer for sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of the Securities or any Stock
Option or any interest therein; (ii) except as contemplated by this Agreement,
grant any proxies or powers of attorney, deposit any of the Securities into a
voting trust or enter into a voting agreement with respect to any of the
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Securities or any Stock Option; (iii) exercise any Stock Option; or (iv) take
any action that would make any representation or warranty of such Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling such Stockholder from performing such Stockholder's obligations under
this Agreement.
(b) Waiver of Appraisal Rights. Such Stockholder hereby irrevocably
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waives any rights of appraisal or rights to dissent from the Merger that such
Stockholder may have.
(c) Cooperation. Such Stockholder, in the capacity as a stockholder,
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shall cooperate fully with Parent, Acquiror and the Company in connection with
their respective efforts to fulfill the conditions to the Merger set forth in
Article VII of the Merger Agreement and the conditions to the Offer set forth in
Annex A to the Merger Agreement.
7. Fiduciary Duties. Notwithstanding anything in this Agreement to
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the contrary, the covenants and agreements set forth herein shall not prevent
any Stockholder serving on the Company's Board of Directors from taking any
action, subject to the applicable provisions of the Merger Agreement, while
acting in the capacity of a director of the Company.
8. Miscellaneous.
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(a) Further Assurances. From time to time, at Acquiror's request and
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without further consideration, each Stockholder shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
(b) Notices. All notices and other communications hereunder shall be
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in writing and shall be deemed given if delivered personally, mailed, certified
or registered mail with postage prepaid, sent by overnight courier or telecopied
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(i) if to Parent or Acquiror, to:
EA Engineering Holdings, LLC
00000 XxXxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx.
Facsimile No.: (000) 000-0000
(ii) if to Xxxxxx, to:
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Xxxxx X. Xxxxxx
c/o EA Engineering, Science, and Technology Inc.
00000 XxXxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx.
Facsimile No.: (000) 000-0000
(iii) if to any of the Xxxxxx Family Trusts, to:
c/o Ecolair LLP
00000 XxXxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Trustee
Facsimile No.: (000) 000-0000
(iv) if to Ecolair, to:
Ecolair LLLP
00000 XxXxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx.
Facsimile No.: (000) 000-0000
(v) if to Xxxxxx, to
The Xxxxx Xxxxxx Group, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
(c) Interpretation. When a reference is made in this Agreement
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to a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not
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affect in any way the meaning or interpretation of this Agreement. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation."
(d) Counterparts. This Agreement may be executed in counterparts,
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all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement,
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including the documents and instruments referred to herein (a) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (b) is not intended to confer upon any person or entity other than the
parties any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and construed
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in accordance with, the laws of the State of Delaware, without regard to the
conflict of laws rules thereof.
(g) Assignment. Neither this Agreement nor any of the rights,
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interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Parent and
Acquiror may assign, in their sole discretion, any of or all their rights,
interests and obligations under this Agreement to any direct or indirect wholly
owned subsidiary of Parent. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and assigns.
(h) Severability. If any term or other provision of this Agreement is
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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
the transactions contemplated hereby are not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in a mutually acceptable manner in order that
the transactions be consummated as originally contemplated to the fullest extent
possible.
(i) Enforcement of this Agreement. The parties agree that irreparable
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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 hereof, this being in addition to any
other remedy to which they are entitled at law or in equity.
8. Termination. This Agreement shall terminate, and no party shall
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have any rights or obligations hereunder and this Agreement shall become null
and void and have no effect upon the earlier of (i) the termination of the
Merger Agreement in accordance with its terms and (ii) the Effective Time of the
Merger, except nothing in this Section 8 shall relieve any party of liability
for breach of this Agreement.
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9. Intended Tax Consequences. It is the intention of the parties to
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this Agreement that, for federal income tax consequences, (1) the transfer by
the Stockholders to Parent of all of his or its issued and outstanding shares of
Common Stock of the Company, (2) the subsequent contribution by Parent to
Acquiror of the shares of Common Stock of the Company received by Parent from
the Stockholders, (3) the conversion of Acquiror's shares of common stock into
Common Stock of the Company that will occur by operation of law pursuant to the
Merger, and (4) the subsequent distribution to the Stockholders of the Common
Stock of the Company upon the dissolution of Parent will be considered as
circular and transitory steps and will be disregarded. It is also the intention
of the parties to this Agreement that, for federal income tax consequences, the
formation of Parent and the formation and merger of Acquiror are to be
disregarded as transitory as both Parent and Acquiror are entities formed solely
to effectuate the Offer and the Merger and will be created and extinguished in
an integrated transaction.
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IN WITNESS WHEREOF, Parent, Acquiror, each Stockholder, Ecolair and
Xxxxxx have caused this Agreement to be duly executed as of the day and year
first above written.
EA ENGINEERING HOLDINGS, LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx, Ph.D.
Title: President
EA ENGINEERING ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx, Ph.D.
Title: President
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Ph.D.
XXXXXXX XXX XXXXXX IRREVOCABLE TRUST
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Trustee
XXXXXXX XXX XXXXXX IRREVOCABLE TRUST
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Trustee
XXXXX XXXXX XXXXXX IRREVOCABLE TRUST
By: /s/ Xxxxxxx X. Xxxxxx-Xxx
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Xxxxxxx X. Xxxxxx-Xxx, Trustee
ECOLAIR LLLP
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: General Partner
THE XXXXX XXXXXX GROUP, INC.
By: /s/ Xxxx X. Marantz
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Name: Xxxx X. Marantz
Title: Chairman of the Finance Committee
Schedule I
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Number of Shares
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Stockholder Beneficially Owned Percentage Interest in Parent
----------- ------------------ -------------------------------
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Xxxxx X. Xxxxxx 1,552,978 26.6%
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Xxxxxxx Xxx Xxxxxx 234,000 4.0%
Irrevocable Trust
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Xxxxxxx Xxx Xxxxxx 234,000 4.0%
Irrevocable Trust
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Xxxxx Xxxxx Xxxxxx 234,000 4.0%
Irrevocable Trust
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