SHAREHOLDER TENDER AGREEMENT
AGREEMENT, dated as of June 11, 1999, among VIVENDI, a societe anonyme
organized under the laws of France ("Purchaser"), ONYX SOLID WASTE ACQUISITION
CORP., a Wisconsin corporation and an indirect wholly-owned subsidiary of
Purchaser ("Merger Sub")and Xxxxxx X. Xxxx, the beneficial owner ("Shareholder")
of Shares of SUPERIOR SERVICES, INC., a Wisconsin corporation (the "Company").
WHEREAS, in order to induce Purchaser and Merger Sub to enter into the
Agreement and Plan of Merger, dated as of the date hereof, with the Company (the
"Merger Agreement"), Merger Sub has requested Shareholder, and Shareholder has
agreed, to enter into this Agreement; and
WHEREAS, Shareholder, Purchaser and Merger Sub desire to make certain
representations, warranties, covenants and agreements in connection with this
Agreement; and
WHEREAS, capitalized terms used herein but not defined herein shall have
the respective meanings ascribed to such terms in the Merger Agreement;
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein the
parties hereto hereby agree as follows:
ARTICLE I
TENDER OF SHARES; OPTION; EXPIRATION
SECTION 1.1 Tender of Shares. (a) Shareholder hereby agrees, pursuant to
the terms and subject to the conditions set forth herein, to validly tender (or
to cause the record holder(s) of Shareholder's Shares (as defined below) to
tender) in the Offer and not withdraw all Shares currently beneficially owned by
Shareholder as set forth on the signature page hereto and any additional Shares
with respect to which Shareholder becomes the beneficial owner (whether by
purchase, including, without limitation, by the exercise of options, or
otherwise) after the date of this Agreement (collectively, the "Shareholder's
Shares").
(b) Within five business days of the commencement of the Offer and within
one business day of any acquisition by Shareholder of any additional Shares,
Shareholder shall deliver (or cause the record holder(s) of Shareholder's Shares
to deliver) to the depositary (the "Depositary") designated in the Offer (i) a
letter of transmittal with respect to Shareholder's Shares complying with the
terms of the Offer together with instructions directing the Depositary to make
payment for such Shares directly to Shareholder or to accounts designated by
Shareholder, (ii) a certificate or certificates representing Shareholder's
Shares and (iii) all other documents or instruments required to be delivered
pursuant to the terms of the Offer.
SECTION 1.2 Voting. Shareholder hereby agrees that, during the time this
Agreement is in effect, at any meeting of the shareholders of the Company,
however called, or in any written consent in lieu thereof, Shareholder shall, or
shall cause the record holder(s) of Shareholder's Shares to (if Shareholder's
Shares have not theretofore been accepted for payment and paid for by Merger Sub
pursuant to the Offer) (i) vote Shareholder's Shares in favor of the Merger;
(ii) vote Shareholder's Shares against any action or agreement that would result
in a breach in any material respect of any covenant, representation or warranty
or any other obligation or agreement of the Company under the Merger Agreement;
and (iii) vote Shareholder's Shares against any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
the Offer, including, but not limited to: (A) any acquisition agreement or other
similar agreement related to an Acquisition Proposal, (B) any change in the
Company's management or the Company Board, except as provided in Article IV of
the Merger Agreement or as otherwise agreed to in writing by Purchaser or (C)
any other material change in the Company's corporate structure or business.
SECTION 1.3 Proxy. Shareholder hereby grants to the Purchaser, and to
each officer of the Purchaser, a proxy to vote Shareholder's Shares as indicated
in Section 1.2. Shareholder intends this proxy to be irrevocable and coupled
with an interest and each will take such further action or execute such other
instruments as may be necessary to effectuate the intent of this proxy and
hereby revokes any proxy previously granted by Shareholder with respect to
Shareholder's Shares.
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SECTION 1.4 Option for Shareholder's Shares.
(a) Shareholder hereby grants to Merger Sub an unconditional, irrevocable
option (the "Option") to purchase, subject to the terms hereof, Shareholder's
Shares, at a price per share in cash equal to the Offer Price (as it may be
adjusted pursuant to the terms of the Offer).
(b) Merger Sub may exercise the Option, in whole but not in part, by
giving a written notice thereof as provided in subsection (d) within five
business days following the occurrence of a Triggering Event (as hereinafter
defined). A "Triggering Event" shall occur if (i) notwithstanding Shareholder's
obligations under Section 1.1, Shareholder withdraws Shareholder's Shares from
the Offer or (ii) (x) a tender or exchange offer for at least fifteen percent of
the Shares shall have been commenced or publicly proposed to be made by another
Person (including the Company or its subsidiaries), or it shall have been
publicly disclosed that (I) any Person (including the Company or its
subsidiaries) shall have become the beneficial owner (as defined in Section
13(d) of the Exchange Act and the rules promulgated thereunder) of fifteen
percent or more of any class or series of capital stock of the Company
(including the Shares) (other than for bona fide arbitrage purposes) or (II) any
Person, entity or group shall have entered into (with the Company or any agent
or Representative of the Company) a definitive agreement or a written agreement
in principle with respect to an Acquisition Proposal (excluding a
confidentiality agreement allowed under Section 7.2 of the Merger Agreement) and
(y) Purchaser and Merger Sub terminate the Offer.
(c) Shareholder shall notify Merger Sub promptly in writing of the
occurrence of any Triggering Event and the number of Shares beneficially owned
or held by Shareholder on such date, it being understood that the giving of such
notice by Shareholder shall not be a condition to the right of Merger Sub to
exercise the Option.
(d) If Merger Sub shall be entitled to and wishes to exercise the Option,
it shall send to Shareholder a written notice (an "Exercise Notice" and the date
of which is referred to herein as the "Notice Date") specifying (i) the total
amount payable to Shareholder on the exercise of the Option in respect of
Shareholder's Shares and (ii) a place and date (the "Closing Date") not earlier
than two business days nor later than five business days from the Notice Date
for the closing of such purchase (the "Closing"); provided, that if a filing is
required under the HSR Act, or prior notification to or
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approval of any other Governmental Entity is required in connection with such
purchase, Merger Sub and Shareholder, as required, promptly after the giving of
the Exercise Notice shall file any and all required notices, applications or
other documents necessary for approval and shall expeditiously process the same
and in such event the period of time referred to in clause (ii) shall commence
on the date on which Merger Sub furnishes to Shareholder a supplemental written
notice setting forth the Closing Date, which notice shall be furnished as
promptly as practicable after all required notification periods shall have
expired or been terminated and all required approvals shall have been obtained
and all requisite waiting periods shall have passed. Each of Merger Sub and
Shareholder agrees to use all reasonable best efforts to cooperate with and
provide information to the other parties with respect to any required notice or
application for approval to such regulatory authority.
(e) At the Closing, Merger Sub shall, subject to Shareholder's delivery
of a certificate or certificates representing the number of Shareholder's Shares
purchased by Merger Sub, pay to Shareholder in immediately available funds by
wire transfer to a bank account designated by Shareholder an amount equal to the
product of (x) the number of Shareholder's Shares delivered at the Closing and
(y) the Offer Price (as it may be adjusted pursuant to the terms of the Offer);
provided, that failure or refusal of Shareholder to designate such a bank
account shall not preclude Merger Sub from exercising the Option.
(f) At the Closing, simultaneously with the payment of the purchase price
by Merger Sub, Shareholder shall deliver to Merger Sub or such other person as
Merger Sub may nominate in writing, a certificate or certificates representing
the number of Shareholder's Shares purchased by Merger Sub.
SECTION 1.5 Payment to Shareholder. If Merger Sub (a) purchases
Shareholder's Shares pursuant to the Option and (b) tenders, exchanges or
otherwise converts such Shareholder's Shares pursuant to the terms of an
Acquisition Proposal or otherwise sells, transfers or exchanges Shareholder's
Shares to or with a third party in connection with a tender offer, exchange
offer, merger, consolidation or other business combination involving the Company
or the Shares (any such transaction, an "Acquisition Transaction"), then,
promptly after Purchaser's or Merger Sub's receipt of the full amount of the
consideration payable in exchange for such
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Stockholder's Shares pursuant to the Acquisition Transaction, Purchaser or
Merger Sub shall pay to Shareholder consideration equal in value to one-half of
the difference between (i) the aggregate value of the consideration received by
Purchaser or Merger Sub in exchange for such Stockholder's Shares pursuant to
the Acquisition Transaction and (ii) the aggregate amount paid to Shareholder
upon the purchase of Shareholder's Shares pursuant to the exercise of the
Option, which consideration shall be paid (x) in cash, in the event that the
consideration received in such Acquisition Transaction is cash or (y) in such
other consideration as is received by Purchaser or Merger Sub pursuant to the
terms of the Acquisition Transaction. In the event Merger Sub transfers or
disposes of Shareholder's Shares pursuant to the terms of an Acquisition
Transaction, such transfer or disposal shall be deemed for tax purposes only to
have been made by a partnership in which each of Merger Sub and Shareholder own
a 50% interest.
SECTION 1.6 Expiration. This Agreement, Share holder's obligation to
tender (or cause the record holder(s) of Shareholder's Shares to tender)
Shareholder's Shares in the Offer, Purchaser's right to vote Shareholder's
Shares and the Option shall terminate on the earliest to occur of (a) the
Effective Time, (b) the termination of this Agreement by written notice by the
Purchaser to the Shareholder, (c) the termination of the Merger Agreement in
accordance with its terms (other than a termination pursuant to (i) Section
9.4(ii) of the Merger Agreement or (ii) Section 9.2(i), if Merger Sub shall have
not purchased Shares pursuant to the Offer due to the occurrence of the events
described in clause (e) of Annex A to the Merger Agreement) and (d) 12 months
following the occurrence of a Triggering Event.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
SECTION 2.1 Valid Title. Shareholder is the sole, true, lawful and
beneficial owner of Shareholder's Shares with no restrictions on Shareholder's
rights of disposition pertaining thereto.
SECTION 2.2 Authority; Noncontravention. Share holder has the requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
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Agreement by Shareholder and the consummation by Shareholder of the transactions
contemplated by this Agreement have been duly authorized by all necessary action
(including any consultation, approval or other action by or with any other
person). This Agreement has been duly executed and delivered by Shareholder and
constitutes a valid and binding obligation of Shareholder, enforceable against
Shareholder in accordance with its terms. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated by
this Agreement and compliance with the provisions of this Agreement will not,
conflict with or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit under, or result in the creation of any lien upon any of the properties
or assets of Shareholder under, any provision of applicable law or regula tion
or of any agreement, judgment, injunction, order, decree, or other instrument
binding on Shareholder. No consent, approval, order or authorization of, or
registration, declara tion or filing with or exemption by any Federal, state or
local government or any court, administrative or regulatory agency or commission
or other governmental authority or agency, domestic or foreign, is required by
or with respect to Shareholder in connection with the execution and delivery of
this Agreement by Shareholder or the consummation by Share holder of the
transactions contemplated by this Agreement, except for applicable requirements,
if any, of (a) Sections 13 and 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder or (b) the HSR Act.
SECTION 2.3 Total Shares. The number of Shares set forth on the signature
page hereto are the only Shares beneficially owned by Shareholder. Schedule 2.3
contains a true and complete list of all options held by Shareholder and the
number, exercise price, vesting date and expiration date of each option. Other
than as set forth on the signature page and on Schedule 2.3, shareholder does
not own any Shares or options to purchase or rights to subscribe for or
otherwise acquire any securities of the Company and has no other interest in or
voting rights with respect to any securities of the Company.
SECTION 2.4 Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Purchaser, Merger Sub, the Company or any
of their respective
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affiliates in respect of this Agreement based upon any arrangement or agreement
made by or on behalf of Shareholder.
SECTION 2.5 Proxy. Shareholder represents that any proxy heretofore given
with respect to Shareholder's Shares is not irrevocable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
PURCHASER AND MERGER SUB
Purchaser and Merger Sub represent and warrant to Shareholder that:
SECTION 3.1 Corporate Power and Authority. Purchaser and Merger Sub each
have all requisite corporate power and authority to enter into this Agreement
and to consummate the transactions contemplated by this Agreement. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of each of Purchaser and Merger Sub. This Agreement
has been duly executed and delivered by each of Purchaser and Merger Sub and
constitutes a valid and binding obligation of each of Purchaser and Merger Sub,
respectively, enforceable against each of them in accordance with its terms.
ARTICLE IV
COVENANTS OF SHAREHOLDER
SECTION 4.1 Covenants of Shareholder. Shareholder agrees as follows:
(a) Shareholder shall not, except as contemplated by the terms of this
Agreement, (i) sell, transfer, pledge, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
the sale, transfer, pledge, assignment or other disposition of, Shareholder's
Shares to any person other than Merger Sub or Merger Sub's designee, (ii) enter
into, or otherwise subject Shareholder's Shares to, any voting arrangement,
whether by proxy, voting agreement, voting trust, power-of- attorney or
otherwise, with respect to Shareholder's Shares or
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(iii) take any other action that would in any way restrict, limit or interfere
with the performance of its obligations hereunder or the transactions
contemplated hereby.
(b) Subject to Section 5.11 hereof, until the Effective Time or the
Merger Agreement is terminated, Shareholder shall not, nor shall Shareholder
permit any investment banker, financial adviser, attorney, accountant or other
representative or agent of Shareholder to, directly or indirectly (i) initiate,
solicit or encourage, directly or indirectly, any inquiries or the making of any
Acquisition Proposal or (ii) engage in any negotiations concerning, or provide
any confidential information or data to, or have any discussions with, any
person relating to, an Acquisition Proposal, or otherwise facilitate any effort
or attempt to make or implement an Acquisition Proposal. Without limiting the
foregoing, it is understood that any violation of the restrictions set forth in
the preceding sentence by an investment banker, financial advisor, attorney,
accountant or other representative or agent of Shareholder shall be deemed to be
a violation of this Section 4.1(b) by Shareholder.
(c) Shareholder will not (a) take, agree or commit to take any action
that would make any representation and warranty of Shareholder, as applicable,
hereunder inaccurate in any respect as of any time prior to the termination of
this Agreement or (b) omit, or agree or commit to omit, to take any action
necessary to prevent any such representation or warranty from being inaccurate
in any respect at any such time.
SECTION 4.2 Further Assurances. Shareholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
Purchaser or Merger Sub may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement and to vest the
power to vote Shareholder's Shares as contemplated by Section 1.3. Purchaser and
Merger Sub jointly and severally agree to use reasonable best efforts to take,
or cause to be taken, all actions necessary to comply promptly with all legal
requirements that may be imposed with respect to the transactions contemplated
by this Agreement (including any applicable legal requirements of the HSR Act).
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ARTICLE V
MISCELLANEOUS
SECTION 5.1 Expenses. All costs and expenses incurred by any party in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
SECTION 5.2 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 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 of this Agreement in the courts of the
State of Delaware and the federal courts of the United States of America located
in the State of Delaware, this being in addition to any other remedy to which
they are entitled at law or in equity.
SECTION 5.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of delivery)
or by telecopy (with copies by overnight courier) to such party at its address
set forth on the signature page hereto or to such other address as such party
may have furnished to the other parties in writing in accordance herewith.
SECTION 5.4 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
SECTION 5.5 Successors and Assigns. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties without the prior written consent of the other parties, except that
Merger Sub may assign, in its sole discretion, any or all of its rights,
interests and obligations hereunder to Purchaser or to any direct or indirect
wholly-owned subsidiary of Purchaser. 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 assigns. Shareholder agrees that
this Agreement and the obligations of Shareholder hereunder shall attach to
Shareholder's Shares and
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shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or otherwise,
including Shareholder's heirs, guardians, administrators or successors.
SECTION 5.6 (a) Governing Law and Venue; Waiver of Jury Trial. This
Agreement shall be deemed to be made in and in all respects shall be
interpreted, construed and governed by and in accordance with the law of the
State of Delaware applicable to contracts to be performed wholly in such state.
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 State of Delaware solely in respect of the interpretation and enforcement
of the provisions of this Agreement and of the documents referred to in this
Agreement and in respect of the transactions contemplated hereby, 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 dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
5.3 or in such other manner as may be permitted by law shall be valid and
sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
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MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 5.6.
SECTION 5.7 Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
SECTION 5.8 Stop Transfer Restriction. In furtherance of this Agreement,
Shareholder shall and hereby does authorize Merger Sub's counsel to notify the
Company's transfer agent that there is a stop transfer restriction with respect
to all of Shareholder's Shares (and that this Agreement places limits on the
voting and transfer of such shares).
SECTION 5.9 Entire Agreement; No Third-Party Beneficiaries. This
Agreement (i) constitutes the entire agreement and supersedes all prior
agreements and under standings, both written and oral, among the parties with
respect to the subject matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
SECTION 5.10 Shareholder Capacity. By executing and delivering this
Agreement, Shareholder makes no agreement or understanding herein as to his
capacity as a director or officer of the Company or any subsidiary of the
Company. Shareholder signs solely in his capacity as the beneficial owner of
Shareholder's Shares and nothing herein shall limit or affect any actions taken
by Shareholder in his capacity as an officer or director of the Company or any
subsidiary of the Company to the extent specifically permitted by the Merger
Agreement.
SECTION 5.11 Performance by Purchaser. Purchaser covenants and agrees for
the benefit of Shareholder that it shall cause Merger Sub to perform in full
each obligation of Merger Sub set forth in this Agreement.
SECTION 5.12 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
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other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect. 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 fullest extent
possible.
SECTION 5.13 Survival. Sections 1.6 (Expiration), 5.1 (Expenses), 5.2
(Specific Performance), 5.3 (Notices), 5.5 (Successors and Assigns), 5.6
(Governing Law), 5.9 (Entire Agreement; No Third-Party Beneficiaries), 5.12
(Severability) and this Section 5.13 shall survive termination of this
Agreement. All other representations, warranties, agreement and covenants in
this Agreement shall not survive the termination of this Agreement.
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The parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
ONYX SOLID WASTE ACQUISITION CORP.
By:______________________
Name:
Title:
VIVENDI
By:_______________________
Name:
Title:
Vivendi
00, Xxxxxx xx Xxxxxxxxx
00000 Xxxxx Cedex 08
France
Attention: Xxxxx Xxxxxxx
fax: (000) 00-000-00-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
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Class of Shares
Stock Owned Xxxxxx X. Xxxx
----- -----
Common 2,539,931
--------------------------
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
with a copy to:
Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
fax: (000) 000-0000
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