EXHIBIT 99.1
FORM OF VOTING AND SUPPORT AGREEMENT
VOTING AND SUPPORT AGREEMENT, dated August 29, 2002 (this
"AGREEMENT"), between Royal Bank of Canada, a Canadian chartered bank
("ACQUIROR"), and the stockholder named on the signature page (the
"STOCKHOLDER"). Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Merger Agreement.
W I T N E S S E T H:
WHEREAS, Admiralty Bancorp, Inc., a Delaware corporation (the
"COMPANY"), RBC Centura Banks, Inc. and Acquiror are, concurrently with the
execution and delivery of this Agreement, entering into an Agreement and Plan of
Merger, dated the date hereof (the "MERGER AGREEMENT"), providing for the merger
of a wholly owned subsidiary of Acquiror with and into the Company (the
"MERGER"); and
WHEREAS, as of the date hereof, the Stockholder is the record
and/or beneficial owner of the shares of Company Common Stock listed next to the
Stockholder's name on the signature page hereto (the "EXISTING SHARES" and,
together with any shares of Company Common Stock or other voting capital stock
of the Company acquired by Stockholder after the date hereof, the "SHARES");
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements contained herein,
and intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING
1.1 AGREEMENT TO VOTE. The Stockholder agrees that, from and
after the date hereof and until the date on which this Agreement is terminated
pursuant to Section 4.1, at the Company Meeting or any other meeting of the
stockholders of the Company, however called, or in connection with any written
consent of the stockholders of the Company, the Stockholder shall:
(a) appear at each such meeting or otherwise cause the Shares
owned beneficially or of record by the Stockholder to be counted as present
thereat for purposes of calculating a quorum; and
(b) vote (or cause to be voted), in person or by proxy, or
deliver a written consent (or cause a consent to be delivered) covering, all the
Shares, and any other voting securities of the Company (whenever acquired), that
are owned beneficially or of record by the Stockholder or as to which the
Stockholder has, directly or indirectly, the right to vote or direct the voting,
(i) in favor of adoption of the Merger Agreement and any other action of the
Company's stockholders requested in furtherance thereof; (ii) against any action
or agreement submitted for approval of the stockholders of the Company that
would reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
contained in the Merger Agreement or of the Stockholder contained in this
Agreement; and (iii) against any Acquisition Proposal or any other action,
agreement or transaction submitted for approval to the stockholders of the
Company that is intended, or could reasonably be expected, to materially impede,
interfere or be inconsistent with, delay, postpone, discourage or materially and
adversely affect the Merger or this Agreement, including: (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its Subsidiaries (other than the Merger);
(B) a sale, lease or transfer of a material amount of assets of the Company or
any of its Subsidiaries or a reorganization, recapitalization or liquidation of
the Company or any of its Subsidiaries; (C) a material change in the policies or
management of the Company; (D) an election of new members to the board of
directors of the Company, except where the vote is cast in favor of the nominees
of a majority of the existing directors; (E) any material change in the present
capitalization or dividend policy of the Company or any amendment or other
change to the Articles of Incorporation or Bylaws of the Company; or (F) any
other material change in the Company's corporate structure or business;
PROVIDED, HOWEVER, that nothing in this Agreement shall prevent any
representative of the Stockholder from discharging his or her fiduciary duties
as a member of the board of directors of the Company.
1.2 NO INCONSISTENT AGREEMENTS. The Stockholder hereby
covenants and agrees that, except for this Agreement and, if applicable, the
agreement specified on the Stockholder's signature page to this Agreement, the
Stockholder (a) has not entered, and the Stockholder shall not enter at any time
while this Agreement remains in effect, into any voting agreement or voting
trust with respect to the Shares owned beneficially or of record by the
Stockholder and (b) has not granted, and the Stockholder shall not grant at any
time while this Agreement remains in effect, a proxy, a consent or power of
attorney with respect to the Shares owned beneficially or of record by the
Stockholder.
1.3 PROXY. The Stockholder agrees to grant to Acquiror a proxy
to vote the Shares owned beneficially and of record by the Stockholder as
indicated in Section 1.1 above if the Stockholder fails for any reason to vote
such Shares in accordance with Section 1.1. The Stockholder agrees that such a
proxy would be coupled with an interest and irrevocable for so long as this
Agreement is in effect, and the Stockholder will take such further action or
execute such other instruments as may be necessary to effectuate the intent of
such proxy.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder hereby represents and warrants to Acquiror as follows:
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(a) AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY ACTION.
The Stockholder has full power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance by the
Stockholder of this Agreement and the consummation by it of the transactions
contemplated hereby have been duly and validly authorized by the Stockholder and
no other actions or proceedings on the part of the Stockholder are necessary to
authorize the execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Stockholder and, assuming this Agreement
constitutes a valid and binding obligation of Acquiror, constitutes a valid and
binding obligation of the Stockholder, enforceable against it in accordance with
its terms (except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and to general equity principles).
(b) OWNERSHIP. The Existing Shares listed opposite the name of
the Stockholder on the signature page hereof are, and such Existing Shares and
any additional shares of Company Common Stock acquired by the Stockholder after
the date hereof and prior to the Effective Time will be, owned beneficially and
of record by the Stockholder. As of the date hereof, the number of shares of
Company Common Stock owned by the Stockholder is listed opposite the
Stockholder's name on the signature page hereof. As of the date hereof, the
Existing Shares listed opposite the name of the Stockholder on the signature
page hereof constitute all of the shares of Company Common Stock held of record,
owned by or for which voting power or disposition power is held or shared by the
Stockholder or any of its affiliates (except for the Shares owned beneficially
and of record by any affiliates of the Stockholder that are parties to this
Agreement). Except as may be specified on the Stockholder's signature page to
this Agreement, the Stockholder has and will have at all times through the
Effective Time sole voting power, sole power of disposition, sole power to issue
instructions with respect to the matters set forth in Article I or Section 3.2
hereof, and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Shares and with
respect to all of the Shares at the Effective Time, with no limitations,
qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement. Subject to such existing
pledges, if any, as may be specified on the Stockholder's signature page to this
Agreement (the "EXISTING PLEDGES"), the Stockholder has good and marketable
title to the Existing Shares listed opposite the name of the Stockholder on the
signature page hereof, free and clear of any Liens and the Stockholder will have
good and marketable title to such Existing Shares and any additional shares of
Company Common Stock acquired by the Stockholder after the date hereof and prior
to the Effective Time, free and clear of any Liens.
(c) NO VIOLATION. The execution and delivery of this Agreement
by the Stockholder does not, and the performance by the Stockholder of its
obligations under this Agreement will not, (i) conflict with or violate any law,
ordinance or regulation of any Governmental Authority applicable to the
Stockholder or by which any of its assets or properties is bound or (ii)
conflict with, result in any breach of or constitute a default (or an event that
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with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or
require payment under, or require redemption or repurchase of or otherwise
require the purchase or sale of any securities, or result in the creation of any
Lien on the properties or assets of the Stockholder pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Stockholder is a party or by which
the Stockholder or any of its assets or properties is bound, except for any of
the foregoing as could not reasonably be expected, either individually or in the
aggregate, to materially impair the ability of the Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on a
timely basis.
(d) CONSENTS AND APPROVALS. The execution and delivery of this
Agreement by the Stockholder does not, and the performance by the Stockholder of
its obligations under this Agreement will not, require the Stockholder to obtain
any consent, approval, authorization or permit of, or to make any filing with or
notification to, any Governmental Authority based on the law, ordinance or
regulation of any applicable Governmental Authority, except for any of the
foregoing as would not reasonably be expected, either individually or in the
aggregate, materially to impair the ability of the Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on a
timely basis.
(e) ABSENCE OF LITIGATION. There is no suit, action,
investigation or proceeding pending or, to the knowledge of the Stockholder,
threatened against the Stockholder before or by any Governmental Authority that
could reasonably be expected materially to impair the ability of the Stockholder
to perform its obligations hereunder or to consummate the transactions
contemplated hereby on a timely basis.
(f) ABSENCE OF AGREEMENTS WITH THE COMPANY. Except for, if
applicable, the agreement specified on the Stockholder's signature page to this
Agreement, there are no existing Agreements or arrangements between the
Stockholder or any of its affiliates, on one hand, or the Company or any of its
Subsidiaries, on the other hand, relating to the Shares owned beneficially and
of record by the Stockholder or any other securities of or investment in the
Company.
(g) COMPETITIVE BUSINESS. Annex A to this Agreement is an
accurate and complete list of the Stockholder's participation in any business
that could be considered to be a Competitive Business (as defined in Section
3.2) and a description of each such participation.
(h) CHANGE IN CONTROL BONUS. The Stockholder is entitled to
CIC Payments in an amount no greater than $[ ] in the aggregate (which
amount does not include the excise tax gross-up payment, if any, that may be
payable pursuant to the terms of the applicable plan).
2.2 REPRESENTATIONS AND WARRANTIES OF ACQUIROR. Acquiror
hereby represents and warrants to the Stockholder as follows:
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(a) ORGANIZATION; AUTHORIZATION; VALIDITY OF AGREEMENT;
NECESSARY ACTION. Acquiror is a Canadian chartered bank and is validly existing
and in good standing under the laws of Canada. Acquiror has full corporate power
and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution,
delivery and performance by Acquiror of this Agreement and the consummation by
it of the transactions contemplated hereby have been duly and validly authorized
by Acquiror and no other corporate actions or proceedings on the part of
Acquiror are necessary to authorize the execution and delivery by it of this
Agreement and the consummation by it of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Acquiror and, assuming
this Agreement constitutes a valid and binding obligation of the Stockholder,
constitutes a valid and binding obligation of Acquiror, enforceable against it
in accordance with its terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and to general equity principles).
(b) NO VIOLATION. The execution and delivery of this Agreement
by Acquiror does not, and the performance by Acquiror of its obligations under
this Agreement will not, (i) conflict with or violate the constitutive documents
of Acquiror, (ii) conflict with or violate any law, ordinance or regulation of
any Governmental Authority applicable to Acquiror or by which any of its assets
or properties is bound or (iii) conflict with, result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or require payment under, or require
redemption or repurchase of or otherwise require the purchase or sale of any
securities, or result in the creation of any Lien on the properties or assets of
Acquiror pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
Acquiror is a party or by which Acquiror or any of its assets or properties is
bound, except for any of the foregoing as could not reasonably be expected,
either individually or in the aggregate, to materially impair the ability of
Acquiror to perform its obligations hereunder or to consummate the transactions
contemplated hereby on a timely basis.
ARTICLE III
OTHER COVENANTS
3.1 FURTHER AGREEMENTS OF STOCKHOLDER. (a) The Stockholder
hereby agrees, while this Agreement is in effect, and except as expressly
contemplated hereby, not to sell, transfer, pledge, encumber, assign,
distribute, gift or otherwise dispose of (collectively, a "TRANSFER") or enforce
or permit the execution of the provisions of any redemption, share purchase or
sale, recapitalization or other agreement with the Company or any other person
or enter into any contract, option or other arrangement or understanding with
respect to any Transfer (whether by actual disposition or effective economic
disposition due to hedging, cash settlement or otherwise) of, any of the
Existing Shares owned beneficially and of record by the Stockholder, any Shares
acquired by the Stockholder after the date hereof, any securities exercisable or
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exchangeable for or convertible into Company Common Stock, any other capital
stock of the Company or any interest in any of the foregoing with any person.
(b) In case of a stock dividend or distribution, or any change
in Company Common Stock by reason of any stock dividend or distribution,
split-up, recapitalization, combination, exchange of shares or the like, the
term "SHARES" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any securities into which or for
which any or all of the Shares may be changed or exchanged or which are received
in such transaction.
(c) The Stockholder hereby agrees that during the term of this
Agreement it shall not, and shall not permit any of its respective
representatives to, (i) initiate, solicit, encourage or knowingly facilitate,
directly or indirectly, any inquiries or the making of any proposal with respect
to any matter described in Section 3.1(a) or any Acquisition Proposal, (ii)
participate in any negotiations concerning, or provide to any other person any
nonpublic information or data relating to the Company or any of its Subsidiaries
for the purpose of, or have any discussions with, any person relating to, or
cooperate with or assist or participate in, or knowingly facilitate, any
inquiries or the making of any proposal which constitutes, or would reasonably
be expected to lead to, any effort or attempt by any other person to seek to
effect any matter described in Section 3.1(a) or any Acquisition Proposal or
(iii) agree to or release any person from any obligation under any existing
standstill agreement or arrangement relating to the Company. The Stockholder
agrees immediately to cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any possible Acquisition Proposal, or any matter described in Section 3.1(a),
and the Stockholder will take the necessary steps to inform its respective
representatives of the obligations undertaken by the stockholder pursuant to
this Section 3.1. Nothing contained in this Section 3.1(c) shall prevent (1) any
representative of the Stockholder from discharging his or her fiduciary duties
as a member of the board of directors of the Company or (2) the Stockholder from
taking action authorized by the Company Board to the extent such action is
permitted by Section 6.06 of the Merger Agreement.
(d) The Stockholder hereby agrees, while this Agreement is in
effect, to notify Acquiror promptly in writing of (i) the number of any
additional shares of Company Common Stock or other securities of the Company
acquired by the Stockholder, if any, after the date hereof and (ii) any such
inquiries or proposals that are received by, any such information which is
requested from, or any such negotiations or discussions which are sought to be
initiated or continued with, the Stockholder with respect to any matter
described in Section 3.1(a) or (c).
3.2 NON-COMPETITION. The Stockholder will not, inside the
State of Florida, for a period of one (1) year after the Closing Date, own any
interest in, manage, operate or control, or participate in the ownership,
management, operation or control of (such as by serving as a director, officer,
employee, member, partner, consultant, agent or advisor), any business or
enterprise that is involved in the business of banking or other financial
services (the "COMPETITIVE BUSINESS"); PROVIDED, HOWEVER, nothing contained
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herein shall prohibit the Stockholder from (i) continuing to participate in the
ownership, management, operation or control of a particular Competitive Business
to the extent set forth in Annex A or (ii) acquiring and maintaining an
ownership interest in a Competitive Business provided that the acquired
ownership interest, when aggregated with any ownership interest of (A) family
members of the Stockholder and (B) any person who, together with the Stockholder
and any other person would be deemed to be a group (as defined for purposes of
Rule 13d-3 under the Exchange Act), represents less than 5% of the equity and
voting power in such Competitive Business. The Stockholder acknowledges that the
covenants in this section are executed in order to induce Acquiror to enter into
and consummate the transactions contemplated by the Merger Agreement, are
required by Acquiror for the purpose of preserving the business acquired by it
in connection with the transactions contemplated by the Merger Agreement and
that Acquiror would not enter into and consummate the transactions contemplated
by the Merger Agreement without the agreement of the Stockholder to the
covenants contained in this section. The Stockholder also acknowledges that the
scope, duration and geographic limitations contained in this section are
reasonable given the nature of the Company's business and the nature of the
Competitive Business. In the event that any of the provisions of this section
should ever be adjudicated to exceed the time, scope, geographic, or other
limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
scope, geographic or other limitations enforceable under applicable law. The
Stockholder further acknowledges that a violation of this section would cause
immeasurable injury to Acquiror and that, in the event of a breach by the
Stockholder of this section, Acquiror will not have an adequate remedy at law.
Accordingly, in the event of any such breach, Acquiror shall be entitled to such
equitable and injunctive relief as may be available to restrain the Stockholder
and any other person participating in such breach from the violation of the
provisions hereof in any court of competent jurisdiction and injunctive relief
without the necessity of posting a bond or proving special damages. Nothing
herein, however, shall be construed as prohibiting Acquiror from pursuing any
other remedies available at law or equity for such breach, including the
recovery of damages.
ARTICLE IV
MISCELLANEOUS
4.1 TERMINATION. Sections 1.1, 1.2, 1.3 and 3.1 of this
Agreement, and any proxy granted pursuant to Section 1.3, shall terminate upon
the earlier of (i) the date on which the Merger Agreement is terminated in
accordance with Article VIII thereof or (ii) the Effective Time (such earlier
date the "TERMINATION DATE"). Nothing in this Section 4.1 shall relieve or
otherwise limit any party of liability for breach of this Agreement.
4.2 STOP TRANSFER ORDER. In furtherance of this Agreement, the
Stockholder shall and hereby does authorize and instruct the Company to instruct
its transfer agent to enter a stop transfer order with respect to all of the
Existing Shares owned beneficially and of record by the Stockholder and all
Shares acquired by the Stockholder after the date hereof.
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4.3 FURTHER ASSURANCES. From time to time, at the other
party's request and without further consideration, each party shall execute and
deliver such additional documents and take all such further action as may be
reasonably necessary or desirable to consummate the transactions contemplated by
this Agreement.
4.4 NO OWNERSHIP INTEREST. Nothing contained in this Agreement
shall be deemed to vest in Acquiror any direct or indirect ownership or
incidence of ownership of or with respect to any Shares. All rights, ownership
and economic benefits of and relating to the Shares shall remain vested in and
belong to the Stockholder, and Acquiror shall have no authority to manage,
direct, superintend, restrict, regulate, govern or administer any of the
policies or operations of the Company or exercise any power or authority to
direct the Stockholder in the voting of any of the Shares, except as otherwise
provided herein.
4.5 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (with confirmation) or delivered by an overnight courier (with
confirmation) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) if to Acquiror to:
Royal Bank of Canada
000 Xxx Xxxxxx
00xx Xxxxx, Xxxxx Tower
Royal Bank Plaza
Toronto, Ontario
Canada M5J 2J5
Attention: W. Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
(b) if to Stockholder to the address listed next to the
Stockholder's name on the signature page hereto.
4.6 INTERPRETATION. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Section references are to this Agreement unless otherwise
specified. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
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Agreement. No provision of this Agreement shall be construed to require
Acquiror, the Stockholder or any of its respective Subsidiaries or affiliates to
take any action which would violate any applicable law (whether statutory or
common), rule or regulation.
4.7 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, 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 party, it being understood that
both parties need not sign the same counterpart.
4.8 ENTIRE AGREEMENT. This Agreement (together with the Merger
Agreement, to the extent referred to herein) constitutes the entire agreement
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
4.9 GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of New York applicable to
contracts made and performed entirely within such State.
4.10 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
4.11 ENFORCEMENT. 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. Each of the parties further agrees to waive any requirements for the
securing or posting of any bond in connection with obtaining any such equitable
relief.
4.12 SEVERABILITY. Any term or provision of this Agreement
which is determined by a court of competent jurisdiction to be invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction, and if any provision of this Agreement
is determined to be so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable, in all cases so long as
neither the economic nor legal substance of the transactions contemplated hereby
is affected in any manner materially adverse to any party or its stockholders or
limited partners. Upon any such determination, the parties shall negotiate in
good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
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4.13 ASSIGNMENT; THIRD PARTY BENEFICIARIES. Neither this
Agreement nor any of the rights, interests or obligations of any party hereunder
shall be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and permitted
assigns. This Agreement is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
* * *
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IN WITNESS WHEREOF, the parties hereto have signed or have
caused this Agreement to be signed by their respective officers or other
authorized persons thereunto duly authorized as of the date first written above.
ROYAL BANK OF CANADA
By:
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Name:
Title:
By:
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Name:
Title:
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VOTING AND SUPPORT AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the Stockholder has signed or has caused
this Agreement to be signed by its respective officers or other authorized
persons thereunto duly authorized as of the date first written above.
Number of Shares
owned beneficially
and of record:
----------------------
Name:
Address for notices:
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