EXHIBIT 2
SHAREHOLDERS AGREEMENT
This Shareholders Agreement (this "Agreement"), dated as of March 25, 2002,
among the persons listed on Schedule 1 hereto (each, a "Holder" and,
collectively, the "Holders"), Enhance Packaging Technologies Inc., a Canadian
corporation (the "Parent"), and EPT Newco, Inc., an Ohio corporation and a
wholly owned subsidiary of the Parent (the "Merger Subsidiary").
WHEREAS, the Parent, the Merger Subsidiary and Liqui-Box Corporation, an
Ohio corporation (the "Company"), are entering into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of the date hereof, which provides for
the merger of the Merger Subsidiary into the Company, with the Company surviving
(the "Merger");
WHEREAS, each Holder owns the number of common shares, without par value, of
the Company (the "Shares") or options to purchase Shares (the "Stock Options"
and, collectively with the Shares, the "Optioned Securities"), or has the right
to vote the number of Shares or other securities (the "Voting Securities"),
listed opposite the name of such Holder on Schedule 1;
WHEREAS, the board of directors of the Company has unanimously, with the
exception of the Holders, who abstained, approved this Agreement, the Merger
Agreement and the Merger and the transactions contemplated hereby and thereby in
accordance with the Ohio General Corporation Law, including but not limited to
specifically for purposes of Chapter 1704 thereof;
WHEREAS, the Parent and the Merger Subsidiary have required, as a condition
to entering into the Merger Agreement, that the Holders enter into this
Agreement; and
WHEREAS, the Holders believe that it is in the best interest of the Company
and its shareholders to induce the Parent and the Merger Subsidiary to enter
into the Merger Agreement and, therefore, the Holders are willing to enter into
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein and such other valuable consideration the
receipt of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. THE OPTION. Each Holder hereby grants the Parent or the Merger
Subsidiary an irrevocable option to purchase all of the Shares held by such
Holder at a price of $67.00 per share and all of the Stock Options held by such
Holder at a price equal to the excess of $67.00 per share over the applicable
exercise price per share, payable in cash, without interest (the "Option");
provided, however, that, if the price per share paid by the Parent or the Merger
Subsidiary to other shareholders in connection with the Merger is more than
$70.18, the price per Share and price per Stock Option paid by the Parent or the
Merger Subsidiary to the Holders shall be adjusted so that the Holders also
receive the difference between such higher price and
$67.00; and provided, further, that, if, prior to the consummation of the
Merger, in connection with an Acquisition Transaction (as defined in the Merger
Agreement) other than the Merger, the Parent or the Merger Subsidiary sells any
of the Optioned Securities purchased by the Parent or the Merger Subsidiary
from the Holders for a price per Share or price per Stock Option in excess of
the price per Share or price per Stock Option paid by the Parent or the Merger
Subsidiary to the Holders, as adjusted, or any of the Optioned Securities
purchased by the Parent or the Merger Subsidiary from the Holders are cancelled
in exchange for the right to receive from a third party not related to the
Parent or the Merger Subsidiary an amount in cash in excess of the price per
Share or price per Stock Option paid by the Parent or the Merger Subsidiary to
the Holders, as adjusted, the price per Share and price per Stock Option paid
by the Parent or the Merger Subsidiary to the Holders shall be further adjusted
so that the Holders also receive the difference between such higher price or
amount and the price per Share or price per Stock Option paid to them by the
Parent or the Merger Subsidiary.
2. EXERCISE OF THE OPTION; TERM.
(a) On the terms and subject to the conditions of this Agreement, the
Parent or the Merger Subsidiary may exercise the Option at any time after the
date on which all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and the antitrust,
competition, foreign investment or similar laws of any foreign countries or
supranational commissions or boards that require pre-merger notifications or
filings with respect to the Merger (collectively, "Foreign Merger Laws")
applicable to the Merger have expired or been terminated, by written notice to
each Holder specifying a date and time for the closing not later than thirty
(30) business days from the date of such notice (which date and time may be one
day after the delivery of such notice).
(b) As used in this Agreement, "person" shall have the meaning
specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act. Notwithstanding
any other provision of this Agreement or the Merger Agreement any reference to
beneficial ownership of Shares or similar references shall exclude from the
determination thereof any Shares issuable upon exercise of or subject to this
Agreement.
(c) The Option shall expire on the earliest of (1) the Effective Time
(as defined in Section 2.3 of the Merger Agreement), (2) August 30, 2002 and
(3) the date on which the Parent notifies the holders in writing that it no
longer intends to acquire control of the Company (such earliest date being
referred to in this Agreement as the "Expiration Date"); provided that, if the
Option cannot be exercised or the Optioned Securities cannot be delivered to
the Merger Subsidiary upon such exercise because (x) there shall be in effect a
preliminary or permanent injunction or other order issued by any federal or
state court of competent jurisdiction prohibiting delivery of the Optioned
Securities or (y) any applicable waiting periods under the HSR Act or Foreign
Merger Laws shall not have expired or been terminated, then the Expiration Date
shall be extended until thirty (30) days after such impediment to exercise or
delivery has been removed.
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3. CLOSING. Any closing hereunder shall take place on the date specified
by the Parent or the Merger Subsidiary at the offices of Xxxxxxx Xxxxx
Xxxxxxx & Ingersoll, LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx (the
"Closing Date"). On the Closing Date:
(a) against delivery of the Optioned Securities, free and clear of all
liens, claims, charges and encumbrances of any kind or nature whatsoever, the
Parent shall or shall cause the Merger Subsidiary to make payment of the
aggregate consideration for each Holder's Optioned Securities by wire transfer
of immediately available funds to such Holder; and
(b) each Holder shall deliver to the Parent or the Merger Subsidiary a
duly executed stock certificate or certificates or evidence of option grant
representing the number of Optioned Securities purchased from such Holder,
together with transfer powers endorsed in blank relating to such certificates
or grants and, if requested by the Parent or the Merger Subsidiary, an
irrevocable proxy duly executed by such Holder, authorizing such persons as the
Parent or the Merger Subsidiary shall designate to act for such Holder as his
lawful agents, attorneys and proxies, with full power of substitution, to vote
in such manner as each such agent, attorney and proxy or his substitute shall
in his sole discretion deem proper, and otherwise act with respect to the
Optioned Securities at any meeting (whether annual or special and whether or
not an adjourned meeting) of the Company's Holders or otherwise, and revoking
any prior proxies granted by such Holder with respect to the Holder's Optioned
Securities.
4. VOTING OF EQUITY SECURITIES. Each Holder hereby agrees that, during
the period from the date of this Agreement until the expiration of this
Agreement, at any meeting of the shareholders of the Company, however called,
and in any action by written consent of the shareholders of the Company, he
shall (a) vote all Voting Securities with respect to which such Holder then has
the right to vote in favor of the Merger; (b) not vote any Voting Securities
with respect to which such Holder then has the right to vote in favor of any
action or agreement which would result in a breach in any material respect of
any covenant, representation or warranty or any other obligation of the Company
under the Merger Agreement; and (c) vote all Voting Securities with respect to
which such Holder then has the right to vote against any action or agreement
which would impede, interfere with or attempt to discourage the Merger,
including, but not limited to: (i) any proposal opposed by the Parent or the
Merger Subsidiary; (ii) any Acquisition Proposal (other than the Merger)
involving the Company or any of its subsidiaries; (iii) any change in the
management or board of directors of the Company, except as otherwise agreed to
in writing by the Merger Subsidiary; (iv) any material change in the present
capitalization or dividend policy of the Company; or (v) any other material
change in the Company's corporate structure or business. In the event that
either Holder does not comply with the foregoing sentence, such Holder shall be
deemed to have hereby irrevocably appointed designees of the Parent or the
Merger Subsidiary, its attorneys, agents and proxies, with full power of
substitution, for the undersigned and in the name, place and stead of the
undersigned to vote in such manner as such attorneys, agents and proxies or
their substitutes shall in their sole discretion deem proper and otherwise act,
including the execution of written consents, with respect to all Voting
Securities of the Company which the undersigned is or may be entitled to vote
at any meeting of the Company held after the date hereof, whether annual or
special and whether or not an adjourned meeting, or in respect of which the
undersigned is or may be entitled to act by written consent. This proxy shall
be coupled with an interest and shall be irrevocable
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and binding on any successor in interest of the applicable undersigned Holder.
This proxy shall operate to revoke any prior proxy as to Voting Securities
heretofore granted by the Holder and shall terminate upon the expiration of
this Agreement.
5. COVENANTS OF THE HOLDERS.
(a) During the period from the date of this Agreement until the
expiration of this Agreement, except in accordance with the provisions of this
Agreement, each Holder severally and not jointly agrees that he will not:
(i) sell, sell short, transfer, pledge, hypothecate, assign or
otherwise dispose of, or enter into any contract, option, hedging arrangement
or other arrangement or understanding with respect to the sale, transfer,
pledge, hypothecation, assignment or other disposition of, any Optioned
Securities or Voting Securities over which such Holder has dispositive power;
(ii) deposit any Optioned Securities or Voting Securities over
which such Holder has dispositive power into a voting trust, or grant any
proxies or enter into a voting agreement with respect to any Optioned
Securities or Voting Securities over which such Holder has dispositive power; or
(iii) initiate, solicit or encourage, directly or indirectly, any
inquiries or the making or implementation of any proposal that constitutes, or
may reasonably be expected to lead to, any Acquisition Proposal (as defined in
the Merger Agreement) or enter into discussions or negotiate with any person or
entity in furtherance of such inquiries or to obtain an Acquisition Proposal,
or agree to or endorse any Acquisition Proposal; except that any Holder who is
a member of the board of directors of the Company may conduct himself in the
manner expressly permitted under Section 7.2 of the Merger Agreement.
(b) Any additional Shares, Stock Options, warrants or other securities
or rights exercisable for, exchangeable for or convertible into Shares
(collectively, "Equity Securities") acquired by any Holder, or with respect to
which any Holder obtains voting power, will become subject to this Agreement
and shall, for all purposes of this Agreement, be considered Optioned
Securities or Voting Securities, as the case may be.
(c) Each Holder agrees not to engage in any action or omit to take any
action which would have the effect of preventing or disabling such Holder from
delivering his Optioned Securities to the Parent or the Merger Subsidiary or
otherwise performing his obligations under this Agreement. To the extent that
any Optioned Securities (other than Shares) may not be assigned by such Holder
to the Parent or the Merger Subsidiary without exercising, exchanging or
converting such Optioned Securities for or into Shares, each Holder agrees to
exercise, exchange or convert such Optioned Securities for or into Shares prior
to the closing of the purchase of such Optioned Securities upon exercise of the
Option.
6. REPRESENTATIONS AND WARRANTIES OF EACH HOLDER. Each Holder severally
and not jointly represents and warrants to Parent and the Merger Subsidiary as
follows:
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(a) (i) such Holder is the record or beneficial owner of the Optioned
Securities, or has the right to vote the Voting Securities, listed opposite the
name of such Holder on Schedule 1, (ii) such Optioned Securities or Voting
Securities are the only Equity Securities owned of record or beneficially by
such Holder or in which such Holder has any interest or which such Holder has
the right to vote, as the case may be, and (iii) such Holder does not have any
option or other right to acquire any other Equity Securities;
(b) such Holder has the right, power and authority to execute and
deliver this Agreement and to perform his obligations hereunder; the execution,
delivery and performance of this Agreement by such Holder will not require the
consent of any other person and will not constitute a violation of, conflict
with or result in a default under (i) any contract, understanding or
arrangement to which such Holder is a party or by which such Holder is bound,
(ii) any judgment, decree or order applicable to such Holder or (iii) to the
Holder's knowledge, any law, rule or regulation of any governmental body
applicable to such Holder; and this Agreement constitutes a valid and binding
agreement on the part of such Holder, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights and general principles of equity;
(c) to the Holder's knowledge, any Shares included in the Optioned
Securities owned by such Holder have been validly issued and are fully paid and
nonassessable and any Shares issuable upon exercise of the Stock Options, when
issued and upon payment of the exercise price therefor, will be validly issued,
fully paid and nonassessable;
(d) except as set forth on Schedule 1, the Optioned Securities owned by
such Holder are now, and at all times during the term of this Agreement will
be, held by such Holder free and clear of all adverse claims, liens,
encumbrances and security interests, and none of the Optioned Securities are
subject to any voting trust or other agreement or arrangement (except as
created by this Agreement) with respect to the voting or disposition of the
Optioned Securities; and there are no outstanding options, warrants or rights
to purchase or acquire, or agreements (except for this Agreement) relating to,
such Optioned Securities; and
(e) upon purchase of the Optioned Securities owned by such Holder, the
Parent or the Merger Subsidiary will obtain good and marketable title to such
Optioned Securities, free and clear of all adverse claims, liens, encumbrances
and security interests (except any created by the Merger Subsidiary).
7. EFFECT OF REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE HOLDERS. The
representations, warranties and covenants of the Holders shall be several and
not joint. The liability of each individual Holder shall extend only to the
representations, warranties and covenants of such Holder and not to any
representation, warranty or covenant of any other Holder.
8. REPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE MERGER
SUBSIDIARY. Each of the Parent and the Merger Subsidiary represents and
warrants to each Holder that: it is a corporation duly
incorporated under the laws of Canada and the State of Ohio, respectively; it
has all requisite corporate power and authority to enter into and perform all
its obligations under this Agreement; the execution and delivery of this
Agreement and the consummation of the
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transactions contemplated hereby have been duly authorized by all necessary
corporate action on its part; this Agreement has been duly executed and
delivered by it; and this Agreement constitutes a valid and binding agreement
on its part, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights and general principles of equity.
9. ADJUSTMENTS. In the event of any increase or decrease or other change
in the Optioned Securities by reason of stock dividend, stock split,
recapitalizations, combinations, exchanges of shares or the like, the number of
Optioned Securities and Voting Securities subject to this Agreement shall be
adjusted appropriately.
10. RESTRICTIONS ON TRANSFER. As soon as practicable after the execution
of this Agreement, each Holder shall instruct the transfer agent to place a stop
transfer order on its records with respect to such Holder's Optioned Securities
or place the following legend s on the certificates representing such Holder's
Optioned Securities:
"The Securities represented by this certificate are subject to certain
transfer and other restrictions contained in a Shareholders Agreement, dated
as of March 25, 2002, among Enhance Packaging Technologies Inc., a Canadian
corporation, EPT Newco, Inc., an Ohio corporation, and certain stockholders
of the Corporation."
11. RESIGNATIONS. Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxx agree to resign from
the board of directors of the Company and as officers of the Company prior to
the Effective Time.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the law of the State of Delaware without regard to its rules of
conflict of laws.
13. VENUE. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF
THE COURTS OF THE STATE OF DELAWARE AND THE FEDERAL COURTS OF THE UNITED STATES
OF AMERICA LOCATED IN THE COUNTY OF NEW CASTLE, DELAWARE SOLELY IN RESPECT OF
THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT AND OF
THE OTHER DOCUMENTS REFERRED TO IN THIS AGREEMENT, AND IN RESPECT OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, AND HEREBY WAIVE, AND AGREE NOT TO
ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION OR
ENFORCEMENT HEREOF OR OF ANY SUCH DOCUMENT, THAT IT IS NOT SUBJECT THERETO OR
THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE
IN SAID COURTS OR THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS
AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE
PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH A DELAWARE STATE OR FEDERAL
COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER
THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH
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DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH
ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 18 OR IN SUCH
OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE
THEREOF.
14. WAIVER OF CONFLICTS. Each Holder severally acknowledges and
represents that (i) Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP has in the past and may
continue to perform legal services for the Company and certain of the Holders
in matters unrelated to the transactions described in this Agreement; (ii)
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP is representing both the Company and the
Holders in the transaction contemplated by this Agreement; (iii) they have been
given the opportunity to ask for information relevant to the representation by
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP of both the Company and the Holders in
connection with the transaction contemplated by this Agreement. Each Holder
represents that, after such disclosure, each Holder has requested that Vorys,
Xxxxx, Xxxxxxx and Xxxxx LLP represent such Holder in connection with the
transactions contemplated by this Agreement and each of the Holders hereby
gives its informed consent to the representation by Vorys, Xxxxx, Xxxxxxx and
Xxxxx LLP of both the Company and the Holders in connection with the
transactions contemplated hereby.
15. FURTHER ASSURANCES. Each party hereto shall perform such further acts
and execute such further documents as may reasonably be required to carry out
the provisions of this Agreement.
16. ASSIGNMENT. This Agreement may not be assigned by any party hereto,
except that the Parent or the Merger Subsidiary may assign their respective
rights and obligations under this Agreement to any of their respective wholly
owned subsidiaries or affiliates.
17. REMEDIES. The parties agree that legal remedies for breach of this
Agreement will be inadequate and that this Agreement may be enforced by the
Parent and the Merger Subsidiary by injunctive relief, specific performance or
other equitable remedies.
18. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing (except as otherwise provided herein) and shall be
deemed duly given if delivered in person, by confirmed facsimile transmission or
by overnight courier service, addressed as follows:
To the Parent or the Merger Subsidiary:
Enhance Packaging Technologies Inc.
0000 Xxxxxxxxxxx Xx.
Xxxxxxxxxxx, Xxxxxxx X0X 0X0
Attention: General Counsel
Fax: (000) 000-0000
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With a copy to:
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
To each Holder:
At the address set forth on the
signature pages hereto
With copies to:
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
00 Xxxx Xxx Xxxxxx, X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, Xx.,
Esq. Fax: (000) 000-0000
19. 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 the transactions contemplated hereby is not affected in any manner
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 an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
20. BINDING EFFECT; BENEFITS. This Agreement shall survive the death or
incapacity of any Holder and shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, legal representatives, successors
and permitted assigns. Nothing in this Agreement, expressed or implied, is
intended to or shall confer on any person other than the parties hereto and
their respective heirs, legal representatives and successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
21. TERMINATION. This Agreement shall commence on the date hereof and
terminate upon the expiration of the Option.
22. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
[Signatures appear on the following pages.]
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IN WITNESS WHEREOF, the Parent, the Merger Subsidiary and the Holders have
entered into this Agreement as of the date first written above.
ENHANCE PACKAGING TECHNOLOGIES INC.
By: /s/ Ash Sahi
------------------------------------------------
Name: Ash Sahi
Title: President and Chief Executive Officer
EPT NEWCO, INC.
By: /s/ Ash Sahi
------------------------------------------------
Name: Ash Sahi
Title: President and Chief Executive Officer
[Remainder of page intentionally left blank]
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HOLDERS:
/s/ X. X. Xxxxx
------------------------------------------------
Xxxxxx X. Xxxxx, individually, as Trustee under
the Xxxxxx X. Xxxxx 2002 Grantor Retained
Annuity Trust, as Trustee under the Xxxxxx X.
Xxxxx Revocable Trust, as Successor Trustee
under the Xxxxx Family Trust and as Voting
Trustee under that certain Voting Trust and
Right of First Refusal Agreement dated as of
September 29, 1993
/s/ Xxxxxx X. Xxxxx
------------------------------------------------
Xxxxxx X. Xxxxx
Address for all Holders:
c/o Liqui-Box Corporation
0000 Xxxxxxxxxxx-Xxxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000
Fax: 000-000-0000
GUARANTEE OF DUPONT CANADA INC.
DuPont Canada Inc., on behalf of itself and its successors and assigns,
hereby guarantees the obligations of the Parent and the Merger Subsidiary and
their successors and assigns with respect to this agreement.
DUPONT CANADA INC.
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chairman, President and Chief
Executive Officer
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SCHEDULE 1
Name Shares Stock Options Voting Securities
---- --------- ------------- -----------------
Xxxxxx X. Xxxxx........................................ 957,310(1) 359,739(2) 1,496,728(3)
Xxxxxx X. Xxxxx........................................ 80,395(4) 110,547(5) 82,378(4)(6)
------------------------
(1) Includes (i) 500,000 shares held by X. X. Xxxxx as trustee under the Xxxxxx
X. Xxxxx 2002 Grantor Retained Annuity Trust, (ii) 293,939 shares held by X.
X. Xxxxx as trustee under the Xxxxxx X. Xxxxx Revocable Trust, and
(iii) 163,371 shares held by X. X. Xxxxx as Successor Trustee under the
Xxxxx Family Trust F/B/O Xxxxxx X. Xxxxx.
(2) Of this number, 158,005 represent common shares underlying options that are
currently exercisable and may be sold as of the date hereof under Section 1
of this Agreement, and 201,734 represent common shares underlying options
that are not currently exercisable but will become exercisable upon a
"change of control" of the Company (as defined in the applicable stock
option plan) and thereafter could be sold pursuant to the terms of
Section 1 of this Agreement.
(3) Includes (i) 500,000 shares held by X. X. Xxxxx as trustee under the Xxxxxx
X. Xxxxx 2002 Grantor Retained Annuity Trust, (ii) 293,939 shares held by X.
X. Xxxxx as trustee under the Xxxxxx X. Xxxxx Revocable Trust, (iii) 85,649
shares held for the account of X. X. Xxxxx under the Company's ESOP and
401(k) plan, (iv) 163,371 shares held by X. X. Xxxxx as Successor Trustee
under the Xxxxx Family Trust F/B/O Xxxxxx X. Xxxxx, (v) 163,371 shares held
by X. X. Xxxxx as Successor Trustee under the Xxxxx Family Trust F/B/O Xxxx
Xxxxxx, (vi) 163,371 shares held by X. X. Xxxxx as Successor Trustee under
the Xxxxx Family Trust F/B/O Xxxx Xxxxxx and (vii) 127,027 shares deposited
with X. X. Xxxxx in his capacity as voting trustee of a trust that expires
on September 29, 2003.
(4) Does not include 10,360 shares held in an indirect trust as to which X. X.
Xxxxx has no voting power and shared investment power.
(5) Of this number, 20,359 represent common shares underlying options that are
currently exercisable and may be sold as of the date hereof under Section 1
of this Agreement, and 90,188 represent common shares underlying options
that are not currently exercisable but will become exercisable upon a
"change of control" of the Company (as defined in the applicable stock
option plan) and thereafter could be sold pursuant to the terms of
Section 1 of this Agreement.
(6) Includes 1,983 shares held for the account of X. X. Xxxxx under the
Company's ESOP and 401(k) plan.
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