EXHIBIT 99.1
EXECUTION COPY
VOTING AGREEMENT
This Voting Agreement (this "Agreement"), dated as of July 21, 2003, is
entered into by and among XXXXXX BROTHERS HOLDINGS INC., a Delaware corporation
("Parent"), and the individuals and other parties listed on Schedule A hereto
(each, a "Stockholder", and collectively, the "Stockholders").
WHEREAS, the Stockholders beneficially own in the aggregate 9,537,011
outstanding shares of common stock, par value $.01 per share, of Xxxxxxxxx
Xxxxxx Inc., a Delaware corporation (the "Company") (together with any shares of
common stock of the Company acquired by the Stockholder after the date hereof
being collectively referred to herein as the "Shares");
WHEREAS, the Stockholders are parties to the Stockholders Agreement
(the "Company Stockholders Agreement"), dated as of August 2, 1999, by and among
the Company, the Principals (as defined therein) and the Family Affiliates (as
defined therein), pursuant to which the Stockholders are subject to various
agreements with respect to the voting of certain of their Shares, as set forth
opposite such Stockholder's name on Schedule A hereto in the column titled
"Number of Founder Shares Owned" (such Shares sometimes referred to herein as
"Founder Shares", any other Shares subject to this Agreement sometimes referred
to herein as "Other Shares");
WHEREAS, Parent, Ruby Acquisition Company, a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), and the Company have entered
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"); and
WHEREAS, each Stockholder has agreed to enter into this Agreement in
order to induce Parent, the Company and Merger Sub to enter into the Merger
Agreement and to consummate the transactions contemplated by the Merger
Agreement.
NOW, THEREFORE, in consideration of Parent's, the Company's and Merger
Sub's entering into the Merger Agreement and of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
adequacy of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings assigned to them in the
Merger Agreement.
SECTION 2. Representations and Warranties of Stockholder. Each
Stockholder hereby represents and warrants to Parent as follows:
2.1 Title to the Shares. Such Stockholder is the beneficial
owner of, and has good and marketable title to, the number of shares of Company
Common Stock equal to the sum of the Founder Shares and Other Shares, if any,
set forth opposite the name of such Stockholder on Schedule A hereto, which as
of the date hereof constitutes all of the shares of Company Common Stock, or any
other securities convertible into or exercisable for any shares
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of Company Common Stock (other than employee stock options to purchase Company
Common Stock held by such Stockholder and shares issuable after the date hereof
upon the exercise of such options) owned beneficially by such Stockholder and
its respective Affiliates (all collectively being "Company Securities"). Except
as provided for in the Company Stockholders Agreement, such Stockholder has the
exclusive power to dispose of such shares or to vote such shares on all matters
submitted to holders of shares of Company Common Stock. Such Stockholder and its
respective Affiliates do not have any rights of any nature to acquire any
additional Company Securities. Except for the Company Stockholders Agreement,
such Stockholder owns all of such shares of Company Common Stock free and clear
of all security interests, liens, claims, pledges, options, rights of first
refusal, agreements, limitations on voting rights, restrictions, charges,
proxies and other encumbrances of any nature, and has not appointed or granted
any proxy, which appointment or grant is still effective, with respect to any of
such shares of Company Common Stock owned by them.
2.2 Organization. Such Stockholder (if an entity) is duly
organized, validly existing, and in good standing under the laws of the state of
its incorporation, formation or organization.
2.3 Authority Relative to this Agreement. Such Stockholder
has the legal capacity (in the case of Stockholders that are natural persons),
and all necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by such
Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action on the part of such Stockholder (in the case of Stockholders that are not
natural persons). This Agreement has been duly and validly executed and
delivered by such Stockholder and, assuming the due authorization, execution and
delivery by Parent, constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
(i) except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights
generally, and (ii) subject to general principles of equity.
2.4 No Conflict. The execution and delivery of this
Agreement by such Stockholder does not, and the performance of this Agreement by
such Stockholder will not, (a) require any consent, approval, authorization or
permit of, or filing with or notification to, any Governmental Authority or any
other Person by such Stockholder; (b) conflict with, or result in any violation
of, or default (with or without notice or lapse of time or both) under any
provision of, the certificate of incorporation, by-laws or analogous documents
of such Stockholder (other than Stockholders that are natural persons) or any
other agreement to which such Stockholder is a party, including any voting
agreement, stockholders agreement, voting trust, trust agreement, pledge
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise or license; or (c)
conflict with or violate any judgment, order, notice, decree, statute, law,
ordinance, rule or regulation applicable to such Stockholder or to such
Stockholder's property or assets.
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SECTION 3. Covenants of Stockholder.
3.1 Restriction on Transfer. Each Stockholder hereby
covenants and agrees that prior to the termination or expiration of this
Agreement, except as otherwise specifically contemplated by this Agreement and
except for the Company Stockholders Agreement, such Stockholder shall not, and
shall not offer or agree to, sell, transfer, tender, assign, hypothecate or
otherwise dispose of, grant any proxy to, deposit any Shares into a voting
trust, enter into a voting trust agreement or create or permit to exist any
additional security interest, lien, claim, pledge, option, right of first
refusal, agreement, limitation on voting rights, charge or other encumbrance of
any nature whatsoever with respect to the Shares, and except, in the case of the
Stockholders, for transfers of Shares to the Company pursuant to the Company's
repurchase right contained in the Company Stockholders Agreement.
3.2 Additional Shares. Prior to the termination of this
Agreement, each Stockholder will promptly notify Parent of the number of any new
shares of Company Common Stock or any other Company Securities acquired directly
or beneficially by such Stockholder, if any, after the date hereof. Any such
shares shall become "Shares" within the meaning of this Agreement.
3.3 Nonsolicitation. Prior to the termination of this
Agreement, such Stockholder shall not, and shall not authorize, instruct, or
knowingly permit any trustees, investment bankers, attorneys, accountants,
consultants and other agents, advisors or intermediaries (collectively,
"Representatives") of such Stockholder to, directly or indirectly, (i) solicit,
encourage or initiate or facilitate any inquiry, proposal or offer with respect
to any Acquisition Proposal or (ii) except as the Company may be permitted
pursuant to the Merger Agreement, engage in any negotiations or discussions
concerning, or furnish to any person any non-public information with respect to,
or take any other action knowingly to facilitate any inquiries or the making of
any proposal that constitutes or may be reasonably expected to lead to, any
Acquisition Proposal.
3.4 Notice. If any Person makes a proposal or inquiry or
contacts any Stockholder relating to the acquisition of beneficial ownership of
any Shares, such Stockholder will promptly notify Parent in writing of the
identity of the person and the material terms and conditions of such proposal,
inquiry or contact. Such Stockholder shall keep Parent reasonably apprised of
any material development with respect to such proposal. Such Stockholder shall,
and shall cause its Representatives to, cease immediately and cause to be
terminated all existing discussions or negotiations, if any with any persons,
conducted heretofore with respect to, or that could reasonably be expected to
lead to any Acquisition Proposal. Notwithstanding the foregoing, the terms of
this Section 3.4 shall be subject to Section 11.10 herein.
3.5 Appraisal Rights. Each Stockholder hereby irrevocably
waives any rights of appraisal, or rights to dissent from the Merger, that such
Stockholder may have, and agrees not to commence or participate in, and to take
all actions necessary to opt out of any class in any class action with respect
to, any claim, derivative or otherwise, against the Company or any of its
subsidiaries (or any of their respective successors) relating to the
negotiation, execution and delivery of this Agreement or the Merger Agreement or
the consummation of the Merger or any of the other transactions contemplated
hereby or thereby.
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SECTION 4. Voting Agreement; Proxy.
4.1 Voting Agreement. Each Stockholder hereby agrees that
prior to the termination of this Agreement, at any meeting of the stockholders
of the Company, however called, in any action by written consent of the
stockholders of the Company, or in any other circumstances upon which such
Stockholder's vote, consent or other approval is sought, such Stockholder shall
vote the Other Shares owned beneficially or of record by such Stockholder:
(a) in favor of adoption of the Merger Agreement and
approval of the terms thereof and of the Merger and each of the other
transactions contemplated thereby;
(b) against any action or agreement that Parent has
provided such Stockholder with advance written notice is or would be
reasonably likely to result in any conditions to the Company's
obligations under the Merger Agreement not being fulfilled or would
result in or would reasonably be likely to result in a breach of any
representation, warranty, covenant or agreement of the Company under
the Merger Agreement;
(c) against any Acquisition Proposal;
(d) against any amendments to the certificate of
incorporation or by-laws of the Company; and
(e) against any other action or agreement that is
intended, or would reasonably be expected, to impede, interfere with,
delay or postpone the Merger or the transactions contemplated thereby
or change in any manner the voting rights of any class of stock of the
Company.
Each Stockholder hereby agrees that prior to the termination of
this Agreement, at any Preliminary Vote (as defined in the Company Stockholders
Agreement) of the Stockholders pursuant to the terms of the Company Stockholders
Agreement, such Stockholder shall vote such Stockholder's Founder Shares in the
same manner required by Sections 4.1(a), (b), (c), (d) and (e) above. Each
Stockholder hereby further covenants and agrees to vote such Stockholder's
Founder Shares at any full meeting of the Company's stockholders, in accordance
with the results of the applicable Preliminary Vote (as defined in the Company
Stockholders Agreement) in accordance with Article II of the Company
Stockholders Agreement.
4.2 Grant of Proxy.
(a) Except as provided for in the Company
Stockholders Agreement, each Stockholder hereby irrevocably grants to
and appoints, Parent and each of its designees (the "Authorized
Parties" and each an "Authorized Party"), and each of them individually
as such Stockholder's proxy and attorney-in-fact (with full power of
substitution) for and in the name, place and stead of such Stockholder,
to vote the Other Shares or execute one or more written consents or
approvals in respect of the Other Shares:
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(1) in favor of the Merger and the adoption of
the Merger Agreement and the approval of its terms;
(2) against any action or agreement that would
result in a breach of any representation, warranty,
covenant, agreement or any other obligation of the Company
under the Merger;
(3) against any Acquisition Proposal;
(4) against any amendment to the certificate of
incorporation or by-laws of the Company; and
(5) against any other action or agreement that
is intended, or would reasonably be expected, to impede,
interfere with, delay or postpone the Merger or the
transactions contemplated thereby or change in any manner
the voting rights of any class of stock of the Company.
In connection with any Preliminary Vote (as defined in the Company
Stockholders Agreement), each Stockholder hereby irrevocably grants to and
appoints, the Authorized Parties, and each of them individually as such
Stockholder's proxy and attorney-in-fact (with full power of substitution) for
and in the name, place and stead of such Stockholder, to vote the Founder Shares
or execute one or more written consents or approvals in respect of Founder
Shares in the same manner required by Sections 4.2(a)(1), (2), (3), (4) and (5)
above.
(b) Each Stockholder hereby ratifies and confirms
that the irrevocable proxy set forth in this Section 4.2 is given in
connection with the execution of the Merger Agreement and that such
irrevocable proxy is given to secure the performance of such
Stockholder's duties in accordance with this Agreement. Each Stockholder
hereby further ratifies and confirms that the irrevocable proxy granted
hereby is coupled with an interest and may under no circumstances be
revoked, except as otherwise provided in this Agreement. Such irrevocable
proxy shall be valid until termination of this Agreement.
4.3 Other Voting. Each Stockholder shall vote on all issues
other than those specified in this Section 4 that may come before a meeting of
the stockholders of the Company in its sole discretion, provided that such vote
does not contravene the provisions of this Section 4.
SECTION 5. Representations and Warranties of Parent. Parent hereby
represents and warrants to the Stockholders as follows:
5.1 Organization. Parent is duly organized, validly\
existing, and in good standing under the laws of Delaware.
5.2 Authority Relative to this Agreement. Parent has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this
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Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action on the part of Parent. This Agreement has been duly and validly executed
and delivered by Parent and, assuming the due authorization, execution and
delivery by the Stockholders, constitutes a legal, valid and binding obligation
of Parent, enforceable against Parent in accordance with its terms, (i) except
as may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally, and (ii)
subject to general principles of equity.
5.3 No Conflict. The execution and delivery of this
Agreement by Parent does not, and the performance of this Agreement by Parent
will not, (a) require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Authority or any other Person
by Parent, except for filings with the SEC of such reports under the Exchange
Act as may be required in connection with this Agreement and the transactions
contemplated by this Agreement; (b) conflict with, or result in any violation
of, or default (with or without notice or lapse of time or both) under any
provision of, the certificate of incorporation or by-laws of Parent or any other
agreement to which such Parent is a party; or (c) conflict with or violate any
judgment, order, notice, decree, statute, law, ordinance, rule or regulation
applicable to Parent or to Parent's property or assets.
SECTION 6. Further Assurances. Each Stockholder shall, at the
reasonable request of Parent from time to time, execute and deliver, or cause to
be executed and delivered, such additional or further consents, documents and
other instruments as Parent may request for the purpose of effectuating the
matters covered by this Agreement.
SECTION 7. Stop Transfer Order. In furtherance of this Agreement,
concurrently herewith each Stockholder shall and hereby does authorize Parent to
notify the Company's transfer agent that there is a stop transfer order with
respect to all Shares (and that this Agreement places limits on the voting and
transfer of the Shares). Each Stockholder further agrees to cause the Company
not to register the transfer of any certificate representing any of the Shares
unless such transfer is made in accordance with the terms of this Agreement.
SECTION 8. Certain Events. Each Stockholder agrees that this Agreement
and the obligations hereunder shall attach to the Shares and shall be binding on
any Person to which legal or beneficial ownership of such Shares shall pass,
whether by operation of law or otherwise. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Company Common Stock or other
voting securities of the Company, the number of Shares shall be deemed adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Company Common Stock or other Company Securities issued
to or acquired by a Stockholder.
SECTION 9. No Termination or Closure of Trusts. Unless, in connection
herewith, the Shares held by any trust which are presently subject to the terms
of this Agreement are transferred upon termination to one or more Stockholders
and remain subject in all respects to the terms of this Agreement, the
Stockholders 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
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existence thereof at least until the first to occur of (i) the Effective Time of
the Merger and (ii) the termination of the Merger Agreement in accordance with
its terms.
SECTION 10. Termination. This Agreement shall automatically terminate
and no party shall have any rights or obligations hereunder upon the first to
occur of (a) the Effective Time; (b) the termination of the Merger Agreement; or
(c) with respect to any Stockholder, any amendment to the Merger Agreement that
(i) is material and adverse to such Stockholder and (ii) is executed subsequent
to the date of this Agreement, provided that the provisions of Section 11 hereof
shall survive any such termination.
SECTION 11. Miscellaneous.
11.1 Expenses. All costs and expenses incurred in
connection with the transactions contemplated by this Agreement shall be paid by
the party incurring such costs and expenses.
11.2 Specific Performance. 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. It is
accordingly agreed that the parties shall be entitled to specific performance of
the terms hereof, this being in addition to any other remedy to which they are
entitled at law or in equity. In addition and notwithstanding any prior
agreement of the parties to the contrary, each of the parties hereto (a)
consents to submit itself to the personal jurisdiction of any court of the
United States located in the State of Delaware or of the Court of Chancery of
the State of Delaware in the event any dispute arises out of this Agreement or
the transactions contemplated by this Agreement, (b) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court and (c) agrees that it will not bring any action
relating to this Agreement or the transactions contemplated by this Agreement in
any court other than a court of the United States located in the State of
Delaware or the Court of Chancery of the State of Delaware.
11.3 Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, among such parties with respect to the subject matter hereof.
11.4 Assignment. Without the prior written consent of the
other party to this Agreement, no party may assign any rights or delegate any
obligations under this Agreement. Any such purported assignment or delegation
made without prior consent of the other party hereto shall be null and void.
11.5 Parties in Interest. This Agreement shall be binding
upon, inure solely to the benefit of, and be enforceable by, the parties hereto
and their successors and permitted assigns. Nothing in this Agreement, express
or implied, is intended to or shall confer upon any other person not a party
hereto any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
11.6 Amendment. This Agreement may not be amended except by
an instrument in writing signed by the parties hereto.
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11.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto 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
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
11.8 Several Obligations. Any representation, warranty,
covenant or agreement made by a Stockholder herein shall be deemed to be joint
and several with such Stockholder's Family Affiliates or Principal, as
applicable. Each Stockholder shall cause such Stockholder's Family Affiliates or
Principal, as applicable, to comply with the provisions of this Agreement.
Notwithstanding anything to the contrary, the representations, warranties,
covenants and agreements of a Stockholder shall be several and not joint with
respect to other Stockholders who are not Family Affiliates or the Principal of
such Stockholder. Without limiting the generality of the foregoing, under no
circumstances shall any Stockholder have any liability or obligation with
respect to any misrepresentation or breach of any covenant, duty or obligation
of any other Stockholder, other than a Stockholder in respect of its affiliated
Family Affiliates and/or Principal, as applicable. As used herein, the terms
"Principal" and "Family Affiliates" have the meanings given to them in the
Company Stockholders Agreement.
11.9 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed duly given (a) on the date of
delivery if delivered personally, or by facsimile, upon confirmation of receipt,
(b) on the first Business Day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the fifth Business Day following
the date of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be delivered as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
11.9):
if to Parent:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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Attention: Xxxx X. Xxxxxx, Esq.
Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Stockholders, at their respective addresses set forth on Schedule
A hereto (or at such other address for a party as shall be specified by like
notice).
11.10 Stockholder Capacity. No person executing this Agreement
who is, or becomes during the term of this Agreement, a director or officer of
the Company makes (or shall be deemed to have made) any agreement or
understanding in this Agreement, including, without limitation, Sections 3.3 and
3.4, in his or her capacity as such director or officer. Without limiting the
generality of the foregoing, each Stockholder signs this Agreement solely in his
or her capacity as the beneficial owner of such Stockholder's Shares and nothing
in this Agreement, including, without limitation, Sections 3.3 and 3.4, shall
prevent or in any way limit such Stockholder from taking any action in his or
her capacity as a director or officer of the Company. Notwithstanding the
foregoing, nothing in this Section 11.10 shall prevent any Stockholder from
performing his, her or its obligations under Sections 4.1 or 4.2.
11.11 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
11.12 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
11.13 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
[Rest of page intentionally blank.]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed and delivered as of the date first written above.
XXXXXX BROTHERS HOLDINGS INC.
/s/ Xxxxxxx X. Xxxx, Xx.
_____________________________________________
By: Xxxxxxx X. Xxxx, Xx.
Title: Chairman and Chief Executive Officer
STOCKHOLDERS
/s/ Xxxxxxx X. Xxxx
_____________________________________________
Xxxxxxx X. Xxxx
/s/ Xxxxxx Xxxxx
_____________________________________________
Xxxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxxxx
_____________________________________________
Xxxxxx X. Xxxxxxxx
XXXXXXXX XX ASSOCIATES, L.P.
By: Xxxxxxxx XX Associates, Inc., its General
Partner
By: /s/ Xxxxxx X. Xxxxxxxx
_________________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Officer
XXXXXXXX XX ASSOCIATES, L.P.
By: Xxxxxxxx XX Associates, Inc., its General
Partner
By: /s/ Xxxxxx X. Xxxxxxxx
_________________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Officer
/s/ Xxxxx X. Xxxxxxx
_____________________________________________
Xxxxx X. Xxxxxxx
XXXXXXX ASSOCIATES, L.P.
By: Xxxxxxx Associates, Inc., its General
Partner
By: /s/ Xxxxx X. Xxxxxxx
_________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Authorized Officer
/s/ Xxxxx X. Xxxxxxx
_____________________________________________
Xxxxx X. Xxxxxxx
XXXXXXX ASSOCIATES, L.P.
By: Xxxxxxx Associates, Inc., its General
Partner
By: /s/ Xxxxx X. Xxxxxxx
_________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Authorized Officer
/s/ Xxxxxxxx Xxxxxxx
_____________________________________________
Xxxxxxxx Xxxxxxx
ZICKLIN ASSOCIATES, L.P.
By: Zicklin Associates, Inc., its General
Partner
By: /s/ Xxxxxxxx Xxxxxxx
_________________________________________
Name: Xxxxxxxx Xxxxxxx
Title: Authorized Officer
SCHEDULE A
Name and Address Number of Founder Shares Number of Other Shares
of Founder Stockholder Owned Owned Total Number of Votes
---------------------------- ------------------------ ---------------------- ---------------------
Xxxxxxx X. Xxxx
c/o Neuberger Xxxxxx Inc. 522,704 251,992 774,696
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxx
c/x Xxxxxxxxx Xxxxxx Inc.
000 Xxxxx Xxxxxx 313,426 208,346 521,772
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxxx
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 1,230,786/1/ -0- 1,230,786
Xxx Xxxx, XX 00000
Xxxxxxxx XX Associates, L.P.
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 2,146,888 -0- 2,146,888
Xxx Xxxx, XX 00000
Xxxxxxxx XX Associates, L.P.
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 2,146,889 -0- 2,146,889
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxxx
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 509,102/2/ 94,455 603,557
Xxx Xxxx, XX 00000
------------------
/1/ Excludes 2,146,888 Shares owned by Xxxxxxxx XX Associates, L.P. and
2,146,889 Shares owned by Xxxxxxxx XX Associates, L.P., in each case, with
respect to which Xx. Xxxxxxxx has sole voting and investment control as
sole stockholder of their respective general partner.
/2/ Excludes 95,626 Shares owned by Xxxxxxx Associates, L.P. with respect to
which Xx. Xxxxxxx has sole voting and investment control as sole
stockholder of its general partner.
Xxxxxxx Associates, L.P.
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 85,626 10,000 95,626
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxxx
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 126,221/3/ 145,692 271,913
Xxx Xxxx, XX 00000
Xxxxxxx Associates, L.P.
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 190,436 2,000 192,436
Xxx Xxxx, XX 00000
Xxxxxxxx Xxxxxxx
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 1,177,736/4/ 1,857 1,179,593
Xxx Xxxx, XX 00000
Zicklin Associates, L.P.
c/o Neuberger Xxxxxx Inc.
000 Xxxxx Xxxxxx 372,855/5/ -0- 372,855
Xxx Xxxx, XX 00000
---------------------
/3/ Excludes 192,436 Shares owned by Xxxxxxx Associates, L.P. with respect to
which Xx. Xxxxxxx has sole voting and investment control as sole
stockholder of its general partner.
/4/ Excludes 372,855 Shares owned by Zicklin Associates, L.P. with respect to
which Xx. Xxxxxxx has sole voting and investment control as sole
stockholder of its general partner. These Shares are subject to the
transfer restrictions contained in the Company Stockholders Agreement but
are not subject to the voting requirements.
/5/ These Shares are subject to the transfer restrictions contained in the
Company Stockholders Agreement but are not subject to the voting
requirements.
