Exhibit (d)(3)
IRREVOCABLE PROXY AGREEMENT
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IRREVOCABLE PROXY AGREEMENT (this "Agreement"), dated as of October
__, 2000, among Pechiney Plastic Packaging, Inc., a Delaware corporation
("Parent"), JPS Acquisition, Inc., a Delaware corporation and wholly-owned
subsidiary of Parent (the "Purchaser") and the other parties signatory hereto
(individually and collectively, the "Stockholder").
WITNESSETH:
WHEREAS, Purchaser, Parent and JPS Packaging Company, a Delaware
Corporation (the "Company"), have entered into an Agreement and Plan of Merger
(as such agreement may be amended from time to time, the "Merger Agreement",
capitalized terms used and not defined herein have the respective meanings
assigned to them in the Merger Agreement) pursuant to which Purchaser will be
merged with and into the Company (the "Merger");
WHEREAS, the Stockholder owns, of record and beneficially, 2,010,992
shares of common stock of the Company in the aggregate (together with all other
shares of common stock of the Company acquired or otherwise received by the
Stockholder on or after the date of this Agreement, the "Shares");
WHEREAS, in order to induce Purchaser and Parent to execute the Merger
Agreement, the Stockholder has agreed to grant to Purchaser the Proxy (as
hereinafter defined), the Option (as hereinafter defined) and the other rights
herein provided;
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Irrevocable Proxy.
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(a) Grant of Proxy. The Stockholder hereby constitutes and
appoints Xxxxx X. Xxxxxx and Xxxx Xxxxxx, and each of them (the "Proxyholders"),
each with the power of substitution, as the lawful proxies for the Stockholder
to vote all of the Shares which the Stockholder is entitled to vote, for and in
the name, place and stead of the Stockholder, at any annual, special or other
meeting of the stockholders of the Company and at any adjournment thereof, or
pursuant to any consent in lieu of a meeting, at which meeting or in connection
with which consent action shall be taken (i) in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the approval
of the terms thereof and each of the others actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance thereof and
hereof, (ii) against any action or agreement that would result in a breach in
any respect of any covenant, representation or warranty or any other obligation
or agreement of the Company under the Merger Agreement or this Agreement; and
(iii) against the following actions (other than the Merger and the transactions
contemplated by the Merger Agreement): (A) any extraordinary corporation
transaction, such as a merger, consolidation or other business
combination involving the Company or its subsidiaries; (B) a sale, lease or
transfer of a material amount of assets of the Company or its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its subsidiaries; (C)(1) any change in a majority of the persons who constitute
the board of directors of the Company; (2) any change in the Bylaws; (3) any
other material change in the Company's corporate structure or business; or (4)
any other action involving the Company or its subsidiaries which is intended, or
could reasonably be expected, to impede, interfere with, delay, postpone, or
materially adversely affect the Merger and the transactions contemplated by this
Agreement and the Merger Agreement (the "Proxy"). The Stockholder shall not
enter into any agreement or understanding the effect of which would be to
violate the provisions and agreements contained in this Section 1(a).
(b) Irrevocability of Proxy. The Proxy granted by the preceding
paragraph (a) is coupled with an interest and it is therefore not revocable by
the Stockholder without the consent of Purchaser. Notwithstanding the
foregoing, such Proxy shall terminate upon the termination of this Agreement.
2. Option.
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(a) Grant of Option. The Stockholder hereby grants to Purchaser
an irrevocable option (the "Option") to purchase the Shares in the manner and at
the purchase price set forth below.
(b) Exercise of Option. The Option may be exercised by
Purchaser, in whole or in part, at any time, or from time to time, after the
occurrence of any of the following events: (i) the Stockholder fails to vote or
cause to be voted all the Shares in favor of the Merger and the Merger Agreement
pursuant to Section 6 hereof; (ii) the Stockholder attempts to revoke the Proxy
or otherwise acts in violation of Section 1(a) hereof; (iii) there occurs an
Acquisition Proposal; or (iv) the Board of Directors determines that a proposal
to acquire the Company is a Superior Proposal (as defined in the Merger
Agreement). If Purchaser wishes to exercise the Option, Purchaser shall send a
written notice to the Stockholder specifying the number of Shares to be
purchased upon such exercise and a date (not less than five nor more than sixty
days from the date such notice is given, which date shall be postponed as
appropriate to obtain any necessary consents or approvals or to allow
termination of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 0000 (xxx "XXX
Xxx") waiting period) for the closing of such purchase (the "Option Closing").
Such Option Closing shall take place at 10:00 A.M., local time, on the date
specified in such notice at the offices of XxXxxxxxx, Will & Xxxxx, 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place and time as the
parties may mutually agree. For purposes hereof, an "Acquisition Proposal" shall
occur when during the term of this Agreement, (x) any Person or Persons make an
offer to acquire any shares of the Company's common stock at a price in excess
of $7.86 per share, either by means of tender offer, an offer to merge or
consolidate or any other form of corporate reorganization, or (y) the Company or
any of its Representatives shall take any action to, directly or indirectly,
encourage, initiate or engage in discussions or negotiations with, or provide
any information to any Person or group of Persons, in violation of the Merger
Agreement, other than Purchaser, concerning any purchase of the
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Company's common stock or any merger, consolidation or sale of substantial
assets or similar transaction involving the Company.
(c) Purchase Price. At the Option Closing, the Stockholder will
deliver to Purchaser a certificate or certificates representing the Shares being
purchased. Purchaser will purchase such Shares from the Stockholder by
delivering as consideration therefor the lesser of (i) the amount proposed to be
paid in connection with a Superior Proposal, and (ii) $7.86 per share in cash in
immediately available funds. If Purchaser sells the Shares purchased from the
Stockholder after the occurrence of an Acquisition Proposal to the person making
such Acquisition Proposal, then Purchaser shall pay to the Stockholder one-half
of the amount of the aggregate net proceeds received by Purchaser in excess of
$7.86 per Share. If at any time the outstanding shares of the Company's capital
stock are changed into a different number of shares or a different class by
reason of any reclassification, recapitalization, split-up, combination,
exchange of shares or readjustment or if a stock dividend thereon is declared
with a record date prior to the termination of this Agreement, then the number
of shares of the Company's common stock subject to the Option and the per share
consideration to be paid by Purchaser upon exercise of the Option shall be
appropriately adjusted.
(d) HSR Filing. Purchaser and the Stockholder agree to file with
the Federal Trade Commission and the Antitrust Division of the United States
Department of Justice all required pre-merger notification and report forms and
other documents and exhibits required to be filed under the HSR Act to permit
the purchase contemplated by this Agreement.
3. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Parent and Purchaser as follows:
(a) Ownership of Shares. The Stockholder is the record and
beneficial owner of the number of Shares set forth opposite such Stockholder's
name on Schedule I hereto. On the date hereof, the Shares set forth opposite
such Stockholder's name on Schedule I hereto constitute all of the Shares owned
by such Stockholder, except as noted on Schedule I. The Stockholder has sole
voting power and sole power to issue instructions with respect to the matters
set forth in Sections 1, 2 and 6 hereof, sole power of disposition, sole power
of conversion, sole power to demand appraisal rights and sole power to agree to
all of the matters set forth in this Agreement, in each case with respect to all
of the Shares set forth opposite Stockholder's name on Schedule I hereto, with
no limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement; provided, however,
certain of the Shares are pledged to secure loans as noted on Schedule I.
(b) Power; Binding Agreement. The Stockholder has the legal
capacity, power and authority to enter into and perform all of the Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by such Stockholder will not violate any other agreement to which
the Stockholder is a party including, without limitation, any voting agreement,
stockholders agreement or voting trust. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and binding
agreement of such Stockholder, enforceable against such Stockholder in
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accordance with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which the Stockholder is trustee
whose consent is required for the execution and delivery of this Agreement or
the consummation by the Stockholder of the transactions contemplated hereby.
(c) No Conflict. Except for filings and approvals under the HSR
Act, (A) no filing with, and no permit, authorization, consent or approval of,
any state or federal public body or authority is necessary for the execution of
this Agreement by such Stockholder and the consummation by such Stockholder of
the transactions contemplated hereby and (B) none of the execution and delivery
of this Agreement by such Stockholder, the consummation by such Stockholder of
the transactions contemplated hereby or compliance by such Stockholder with any
of the provisions hereof shall (1) conflict with or result in any breach of any
applicable organizational documents applicable to such Stockholder, (2) result
in a violation or breach of, or constitute (with or without notice of lapse of
time or both) a default (or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such Stockholder is a party or by which such
order, writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to such Stockholder or any of such Stockholder's properties or
assets.
(d) No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder.
(e) No Encumbrances. The Stockholder's Shares and the
certificates representing such Shares are now, and at all times during the term
hereof will be, held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever, except as set forth on Schedule I hereto.
(f) Reliance by Parent. The Stockholder understands and
acknowledges that Parent is entering into, and causing Purchaser to enter into,
the Merger Agreement in reliance upon the Stockholder's execution and delivery
of this Agreement.
4. Representations of Purchaser. Purchaser represents and warrants
to the Stockholder that: (i) such entity is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation with full corporate power and authority to execute and deliver
this Agreement to perform its obligations hereunder; (ii) the execution and
delivery of this Agreement by such entity and the performance by it of its
obligations hereunder have been duly authorized by all necessary corporate
action on the part of such entity; (iii) this Agreement constitutes the legal,
valid and binding obligation of such entity enforceable against such entity in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency and other similar laws affecting creditors' rights
generally or by general principles of equity; and (iv) any Shares acquired upon
exercise of the Option will not
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be acquired by Purchaser with a view to the public distribution thereof and will
not be transferred except pursuant to a transaction which complies with the
Securities Act of 1933, as amended, and applicable state securities laws.
5. Covenants of the Stockholder. The Stockholder covenants and
agrees as follows:
(a) No Solicitation. During the term of this Agreement, the
Stockholder shall not (and shall not permit its Representatives to), in its
capacity as such, directly or indirectly, initiate, solicit (including by way of
furnishing information), encourage or respond to or take any other action
knowingly to facilitate, any inquiries or the making of any proposal by any
person or entity (other than Parent or any affiliate of Parent) with respect to
the Company that constitutes or reasonably may be expected to lead to, an
Acquisition Proposal, or enter into or maintain or continue discussions or
negotiate with any person or entity in furtherance of such inquiries to obtain
any Acquisition Proposal, or agree to or endorse any Acquisition Proposal, or
authorize or permit any Person or entity acting on behalf of the Stockholder to
do any of the foregoing; provided, however, nothing in this Agreement shall
prevent Stockholder or its representatives from taking any action in conformity
with fiduciary duties as permitted in the Merger Agreement. If the Stockholder
receives any inquiry or proposal regarding any Acquisition Proposal, the
Stockholder shall promptly inform Parent in writing of that inquiry or proposal
and the details thereof.
(b) Restrictions on Transfer, Proxies and Non-Interference.
During the term of this Agreement, the Stockholder shall not (and shall not
permit the Stockholder's Representatives to): (i) directly or indirectly, offer
for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to or consent to the offer for sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of such
Stockholder's Shares or any interest therein, provided that the Stockholder may
tender his or its Shares in the tender offer contemplated by the Merger
Agreement; (ii) except as contemplated by this Agreement, grant any proxies or
powers of attorney, deposit any Shares into a voting trust or enter into a
voting agreement with respect to any Shares; or (iii) take any action that would
make any representation or warranty of such Stockholder contained herein untrue
or incorrect or have the effect of preventing or disabling the Stockholder from
performing the Stockholder's obligations under this Agreement.
(c) Waiver of Appraisal Rights. The Stockholder hereby
irrevocably waives any rights of appraisal or rights to dissent from the Merger
that the Stockholder may have.
(d) Stop Transfer. The Stockholder agrees with, and covenants
to, Parent and Purchaser that the Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Stockholder's Shares, unless
such transfer is made in compliance with this Agreement.
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6. Approval of Merger. The Stockholder agrees that, if requested by
the Proxyholders, the Stockholder will vote or cause to be voted all the Shares
in favor of the Merger and the Merger Agreement (and the documents and
transactions related thereto) at any meeting of the shareholders of the Company
held for the purpose of approving the Merger Agreement and the Merger.
7. Further Assurance and Adjustments. The Stockholder shall, upon
the reasonable request of Purchaser, execute and deliver any additional
documents necessary or desirable to effect any of the terms and provisions of
this Agreement. If at any time the Shares are changed into a different number
of Shares or a different class by reason of any reclassification,
recapitalization, split-up, combination, exchange of Shares or readjustment of
the Company's capital stock or if a stock dividend thereon is declared with a
record date prior to the termination of this Agreement, then the number of
Shares subject to the Proxy granted hereby and the voting rights to be exercised
upon exercise thereof shall be appropriately adjusted.
8. Specific Performance. The parties hereto agree that if for any
reason the Stockholder failed to perform any of the Stockholder's obligations
under this Agreement, then Purchaser would be irreparably damaged and money
damages would not constitute an adequate remedy. Accordingly, Purchaser shall
be entitled to specific performance and injunctive and other equitable relief to
enforce the performance of such obligations by the Stockholder. This provision
is without prejudice to any other rights Purchaser may have against the
Stockholder for failure to perform any of the Stockholder's obligations under
this Agreement.
9. Term. This Agreement shall commence on the date hereof and the
Option shall end on the earlier of (i) ninety (90) days following the
termination of Merger Agreement in accordance with its terms or (ii) the
Effective Time (as defined in the Merger Agreement), except that, if the
Effective Time occurs, the obligations under Section 5(c) hereof shall terminate
on the first anniversary of the Effective Time. The Proxy shall terminate upon
termination of Merger Agreement in accordance with its terms.
10. Binding Agreement. All authority and rights herein conferred or
agreed to be conferred by the Stockholder shall survive the death or incapacity
of the Stockholder. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, personal representatives,
successors and assigns.
11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, faxed (which is
confirmed and also delivered by overnight courier service), e-mailed (which is
also delivered by overnight courier service) or sent by an overnight courier
service to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice), hand delivered, delivered by
courier with receipt acknowledged or mailed first class, certified mail, with
postage prepaid, as follows:
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If to Parent or Purchaser, to:
Pechiney Plastic Packaging, Inc.
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxx Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx
With a copy to:
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
If to the Stockholder, to:
Xxxxxx X. Xxxx Group, Inc.
Twelve Wyandotte Plaza
000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxx X. Xxx Xxxx
Xxxxx Xxxx LLP
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxx 00000
12. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
13. Jurisdiction. Any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with,
this Agreement, or the transactions contemplated hereby or thereby may be
brought in any federal or state court located in the State of Delaware, and each
of the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in this Section shall
be deemed effective service of process on such party.
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14. Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. 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 phrase "made available" in this Agreement shall mean
that the information referred to has been made available if requested by the
party to whom such information is to be made available. The phrases "the date
of this Agreement", "the date hereof", and terms of similar import, unless the
context otherwise requires, shall be deemed to refer to October __, 2000.
15. Waivers. Except as otherwise provided in this Agreement, any
failure of any of the parties to comply with any obligation, covenant, agreement
or condition herein may be waived by the party or parties entitled to the
benefits thereof only by a written instrument signed by the party granting such
waiver, but such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure. No failure or
delay by any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies provided herein shall be
cumulative and not exclusive of any rights or remedies provided by law.
16. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
17. Entire Agreement; No Third Party Beneficiaries. This Agreement
(including the documents and the instruments referred to herein) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
No provision of this Agreement or any other agreement contemplated hereby is
intended to confer any rights or remedies on any Person other than the parties
hereto.
18. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination, the parties shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest
extent possible.
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19. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without giving effect to the
principles of conflicts of law thereof.
20. No Prejudice. This Agreement has been jointly prepared by the
parties hereto and the terms hereof shall not be construed in favor of or
against any party on account of its participation in such preparation.
21. Assignment. Neither this Agreement nor any of the rights,
interests or obligations 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 parties, except that the Purchaser may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder to
Parent or to any direct or indirect wholly owned Subsidiary of Parent, provided
that Parent shall guarantee the performance of any such Subsidiary under this
Agreement. 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.
22. Headings. The Article, Section and paragraph headings herein are
for convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
23. Specific Performance. Each of the parties hereto acknowledges
and agrees that in the event of any breach of this Agreement, each non-breaching
party would be irreparably and immediately harmed and could not be made whole by
monetary damages. It is accordingly agreed that the parties hereto (a) will
waive, in any action for specific performance, the defense of adequacy of a
remedy at law and (b) shall be entitled, in addition to any other remedy to
which they may be entitled at law or in equity, to compel specific performance
of this Agreement in any action instituted in a court of competent jurisdiction.
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IN WITNESS WHEREOF, Parent, Purchaser and each Stockholder have caused
this Agreement to be duly executed as of the day and year first written above.
PECHINEY PLASTIC PACKAGING, INC. XXXXXX X. XXXX GROUP, INC.
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Name: Name: G. Xxxxxxx Xxxx
Title: Title: Chairman of the Board
JPS ACQUISITION, INC. G. XXXXXXX XXXX REVOCABLE TRUST,
DTD 2/28/89, as amended 12/8/94
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Name: Name: G. Xxxxxxx Xxxx
Title: Title: Trustee
XXXXXXX X. XXXXXX TRUST, DTD 7/9/96
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Name: Xxxxxxx X. Xxxxxx
Title: Trustee
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SCHEDULE I
NAME OF STOCKHOLDER NUMBER OF SHARES
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Xxxxxx X. Xxxx Group, Inc. 1,488,100
G. Xxxxxxx Xxxx Revocable Trust, DTD 371,787(1)
2/28/89, as amended 12/8/94
Xxxxxxx X. Xxxxxx Trust, DTD 7/9/96 151,105(1)(2)
(1) Does not include 625 Shares owned by Xx. Xxxx and 625 Shares owned by
Xx. Xxxxxx which were purchased upon exercise of options.
(2) Of these Shares, 150,000 are pledged to secure a personal loan to Xx.
Xxxxxx from Bank of America.
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