EXHIBIT 7.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into as of February 21,
2001, by and among Gart Sports Company, a Delaware corporation ("Gart"), GSC
Acquisition Corp., a Delaware corporation ("MergerSub"), and the person or
entity set forth on the signature page hereto (the "Stockholder").
WHEREAS, MergerSub, Gart and Xxxxxx'x Sporting Goods, Inc., a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of Merger,
dated as of the date hereof (as it may be amended from time to time, the "Merger
Agreement"), which provides, among other things, for the merger of the Company
with and into MergerSub, with MergerSub as the surviving corporation (the
"Merger");
WHEREAS, in connection with the Merger Agreement, MergerSub and Gart have
required that the Stockholder make certain agreements with respect to all of the
Stockholder's Subject Shares (as defined below), upon the terms and subject to
the conditions of this Agreement; and
WHEREAS, the Stockholder is willing to make certain agreements with respect
to the Subject Shares, in order to induce MergerSub and Gart to enter into the
Merger Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth in this Agreement, the parties hereto agree as follows:
1. Voting Agreements. For so long as this Agreement is in effect, at any
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meeting (whether annual, special or adjourned) of the stockholders of the
Company, and in any action by consent of the stockholders of the Company, the
Stockholder shall vote, or, if applicable, give consents with respect to, all of
the Subject Shares that are held by the Stockholder on the record date
applicable to the meeting or consent (i) in favor of adoption of the Merger
Agreement and approval of the Merger; (ii) against any competing Acquisition
Transaction (as defined in the Merger Agreement) or other proposal inconsistent
with the Merger Agreement or that may delay or adversely affect the likelihood
of the completion of the transactions contemplated by the Merger Agreement;
(iii) against any change in a majority of the persons who constitute the board
of directors of the Company inconsistent with the Merger Agreement or the
transactions contemplated by the Merger Agreement; (iv) against any change in
the capitalization of the Company or any amendment of the Company's certificate
of incorporation or by-laws inconsistent with the Merger Agreement or the
transactions contemplated by the Merger Agreement; and (v) in favor of any other
matter necessary for consummation of the transactions contemplated by the Merger
Agreement that is considered at any such meeting or in any such consent. The
Stockholder shall not enter into any agreement or understanding with any person
the effect of which would be inconsistent with or violate the provisions of
agreements contained in this Section 1. The Stockholder shall cast the
Stockholder's vote or give the Stockholder's consent in accordance with the
procedures communicated to the Stockholder by the Company relating thereto so
that the vote or consent shall be duly counted for purposes of
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determining that a quorum is present and for purposes of recording the results
of that vote or consent. The Stockholder acknowledges receipt of a copy of the
Merger Agreement.
2. Proxy. The Stockholder hereby irrevocably appoints Gart (and any
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officer of Gart), with full power of substitution, the proxy of the Stockholder
with full power and authority, in the event that the Stockholder shall at any
time fail to perform such Stockholder's obligations under Section 1, to vote or
act by consent in respect of such Stockholder's Subject Shares and all of such
Stockholder's other voting securities of the Company exclusively as provided in
Section 1. The proxy hereby granted shall, for the term of this Agreement, be
irrevocable and shall be deemed coupled with an interest in accordance with
Section 212 of the Delaware General Corporation Law.
3. Subject Shares. The term "Subject Shares" shall mean all of the shares
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of Common Stock, par value $1.00 per share ("Common Stock"), owned by the
Stockholder as of the date hereof, as set forth on Schedule A hereto, together
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with any and all shares of the Company's capital stock as to which the
Stockholder acquires beneficial ownership after the date of this Agreement. For
all purposes of this Agreement, "beneficial ownership" has the meaning given in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Securities and Exchange Commission
thereunder (the "Exchange Act").
4. Stockholder Capacity. If the Stockholder is, or becomes during the
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term of this Agreement, a director or officer of the Company, the Stockholder
shall not be deemed to have made any agreement or understanding herein in such
Stockholder's capacity as such director or officer, and no action taken by the
Stockholder in such Stockholder's capacity as an officer or director of the
Company shall be deemed a breach of this Agreement. The Stockholder signs
solely in such Stockholder's capacity as the beneficial owner of the
Stockholder's Subject Shares, and nothing herein shall limit or affect any
actions taken by the Stockholder in any capacity as an officer or director of
the Company to the extent specifically permitted by the Merger Agreement.
Nothing in this Agreement shall be deemed to constitute a transfer of the
beneficial ownership of the Subject Shares by the Stockholder.
5. Covenants. For so long as this Agreement is in effect, except as
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otherwise contemplated by the transactions contemplated by the Merger Agreement,
the Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate,
encumber, tender or otherwise dispose of, or enter into any contract with
respect to the sale, transfer, pledge, assignment, hypothecation, encumbrance,
tender or other disposition of (each such disposition or contract, a
"Transfer"), any Subject Shares or any shares of the Company's capital stock
that the Stockholder then has or will have the right to acquire pursuant to
options, warrants, convertible securities or other such rights to purchase
shares of the Company's capital stock granted to the Stockholder by the Company;
(ii) grant any powers of attorney, consents or proxies with respect to any
shares of the Company's capital stock that then constitute Subject Shares (other
than pursuant to this Agreement), deposit any of the Subject Shares into a
voting trust, enter into a voting or option agreement with respect to any of the
Subject Shares inconsistent with the transactions contemplated by the Merger
Agreement or this Agreement, or otherwise restrict or take any action adversely
affecting the ability of the Stockholder freely to exercise all voting rights
with respect to the Subject Shares; (iii)
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subject to Section 4, directly or indirectly, solicit, initiate, encourage or
otherwise facilitate any inquiries or the making of any proposal or offer with
respect to an Acquisition Transaction, engage in any negotiation concerning an
Acquisition Transaction, or provide any confidential information or data to, or
have any discussions with, any person relating to an Acquisition Transaction;
and the Stockholder shall notify MergerSub immediately if any such inquiries or
proposals are received by, any such information is requested from, or any such
negotiations or discussions are sought to be initiated or continued with, the
Stockholder; or (iv) permit, cause, take any action, or fail to take any action
that would make any representation, warranty, covenant or other undertaking of
the Stockholder in this Agreement untrue or incorrect, or prevent, burden or
materially delay the consummation of the transactions contemplated by this
Agreement; provided, however, that nothing in the foregoing provisions of this
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Section 5 shall prohibit the Stockholder from effecting any transfer of Subject
Shares pursuant to any bona fide charitable gift or by will or applicable laws
of descent and distribution, or for estate planning purposes, if the transferee
agrees in writing to be bound by the provisions of this Agreement to the same
extent as the Stockholder. As used in this Agreement, "person" shall have the
meaning specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
6. Waiver of Dissenters' Rights. The Stockholder hereby waives any rights
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to dissent from the transactions contemplated by the Merger Agreement.
7. Representations and Warranties of the Stockholder. The Stockholder
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represents and warrants to Gart and MergerSub that:
(a) Capacity; No Violations. The Stockholder, if such Stockholder is
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a trust, corporation or other legal entity, is duly organized and validly
existing under the laws of the jurisdiction of its organization. The Stockholder
has the legal capacity to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. This Agreement has been duly
executed and delivered by the Stockholder and constitutes a valid and binding
agreement of the Stockholder enforceable against the Stockholder in accordance
with its terms except as such enforceability may be limited by applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and general principles of equity (whether considered in a proceeding in equity
or at law). The execution, delivery and performance by the Stockholder of this
Agreement will not (i) conflict with, require a consent, waiver or approval
under, or result in a breach or default under, any of the terms of any contract,
commitment or other obligation to which the Stockholder is a party or by which
the Stockholder is bound, (ii) violate any order, writ, injunction, decree or
statute, or any law, rule or regulation applicable to the Stockholder or, to the
Stockholder's knowledge, the Subject Shares; or (iii) result in the creation of,
or impose any obligation on the Stockholder to create, any Lien upon the Subject
Shares that would prevent the Stockholder from voting the Subject Shares. In
this Agreement, "Lien" shall mean any lien, pledge, security interest, claim,
third party right or other encumbrance.
(b) Subject Shares. The Stockholder has the power to vote or direct
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the voting of the Subject Shares. The Subject Shares are the only shares of any
class of capital stock of the Company that the Stockholder has the right, power
or authority (sole or shared) to sell or vote, and the Stockholder does not have
any right to acquire, nor is the Stockholder the beneficial owner of, any other
shares of any class of capital stock of the Company or any
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other securities of the Company or any securities convertible into, or
exchangeable or exercisable for, any shares of any class of capital stock of the
Company or any other securities of the Company. The Stockholder is not a party
to any contracts (including proxies, voting trusts or voting agreements) that
would prevent the Stockholder from voting the Subject Shares or that conflict
with the provisions of this Agreement.
(c) Title to Shares. The Stockholder is the sole record and
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beneficial owner of the Subject Shares, free and clear of any pledge, Lien,
security interest, mortgage, charge, claim, equity, option, proxy, voting
restriction, voting trust or agreement, understanding, arrangement, right of
first refusal, limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind, other than restrictions imposed by the securities laws
or pursuant to this Agreement or the Merger Agreement and, with respect to any
Subject Shares held by the Stockholder as trustee for the benefit of any other
person, other than the rights of all beneficiaries under such trusts, which such
rights are not inconsistent with the provisions of this Agreement.
(d) No Finder's Fees. Except as disclosed in the Merger Agreement, no
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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, the Stockholder the payment of which could become the
obligation of the Company or MergerSub.
8. Representations and Warranties of Gart and MergerSub. Gart and
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MergerSub represent and warrant to the Stockholder that:
(a) Binding Agreement. Each of Gart and MergerSub is a corporation
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duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement, the Registration Rights Agreement
(as defined in the Merger Agreement) and the Merger Agreement by each of Gart
and MergerSub and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by the board of directors of Gart
and MergerSub, and no other corporate proceedings on the part of Gart or
MergerSub are necessary to authorize the execution, delivery and performance of
this Agreement, the Registration Rights Agreement and the Merger Agreement by
Gart or MergerSub and the consummation of the transactions contemplated hereby
and thereby. Each of Gart and MergerSub has duly and validly executed this
Agreement, and this Agreement constitutes a legal, valid and binding obligation
of each of them, enforceable against each of them in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(b) No Conflict. Neither the execution and delivery of this
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Agreement, the consummation by MergerSub of the transactions contemplated
hereby, nor the compliance by MergerSub with any of the provisions hereof will
(i) conflict with or result in a breach of any provision of its Certificate of
Incorporation or By-laws, (ii) require any
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consent, approval, authorization or permit of, registration, declaration or
filing (except for filings under the Exchange Act) with, or notification to, any
governmental entity, (iii) result in a default (or an event that, with notice or
lapse of time or both, would become a default) or give rise to any right of
termination by any third party, cancellation, amendment or acceleration under
any contract, agreement, instrument, commitment, arrangement or understanding,
(iv) require any material consent, authorization or approval of any person other
than a governmental entity, or (v) violate or conflict with any order, writ,
injunction, decree or law applicable to MergerSub.
(c) SEC Documents. Gart has timely filed with the SEC each report, proxy
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statement or information statement required to be filed by Gart for all periods
ending on or after December 31, 1999 (collectively, the "Gart Reports"). As of
their respective dates, the Gart Reports (i) were prepared in all material
respects in accordance with the applicable requirements of the Securities Act or
the Exchange Act, as applicable, and the respective rules and regulations
thereunder and (ii) did not (or if amended or superseded by a subsequent filing
prior to the date of this Agreement, then on the date of such filing did not)
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in the light of the circumstances under which they were made, not misleading.
None of Gart's subsidiaries is required to file any forms, reports or other
documents with the SEC. Each of the consolidated balance sheets of Gart and its
subsidiaries included in or incorporated by reference into the Gart Reports
(including the related notes and schedules) fairly presents the consolidated
financial position of Gart and its subsidiaries as of its date and each of the
consolidated statements of income, retained earnings and cash flows of Gart and
its subsidiaries included in or incorporated by reference into the Gart Reports
(including any related notes and schedules) fairly presents the results of
operations, retained earnings or cash flows, as the case may be, of Gart and its
subsidiaries for the periods set forth therein (subject to, in the case of
unaudited statements, normal year-end audit adjustments that would not be
material in amount or effect), in each case in accordance with generally
accepted accounting principles consistently applied during the periods involved
("GAAP"), except as may be noted therein. There are no liabilities of Gart or
any of its subsidiaries of any kind whatsoever that would be required by GAAP to
be reflected on a consolidated balance sheet of Gart (including the notes
thereto), other than: (x) liabilities incurred since January 29, 2000 in the
ordinary course of business consistent with past practices; (y) reasonable and
customary fees and expenses incurred in connection with the consummation of the
transactions contemplated by the Merger Agreement; and (z) liabilities disclosed
in the Gart Reports filed prior to the date hereof or reserved against on Gart's
most recent balance sheet delivered to the Company prior to the date hereof.
9. Expenses. Each party hereto shall pay its own expenses incurred in
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connection with this Agreement.
10. Specific Performance. The Stockholder acknowledges and agrees that, if
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the Stockholder fails to perform any of the Stockholder's obligations under this
Agreement, immediate and irreparable harm or injury would be caused to MergerSub
for which money damages would not be an adequate remedy. Accordingly, the
Stockholder agrees that MergerSub shall have the right, in addition to any other
rights MergerSub may have, to specific performance of this Agreement. If
MergerSub should institute an action or
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proceeding seeking specific enforcement of the provisions of this Agreement, the
Stockholder hereby waives the claim or defense that MergerSub has an adequate
remedy at law and hereby agrees not to assert in that action or proceeding the
claim or defense that a remedy at law exists. The Stockholder further agrees to
waive any requirements for the securing or posting of any bond in connection
with obtaining any equitable relief.
11. Notices. All notices and other communications given or made pursuant
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to this Agreement shall be in writing and shall be deemed to have been duly
given or made as of the date of receipt and shall be delivered personally,
mailed by registered or certified mail (postage prepaid, return receipt
requested), sent by overnight courier, or sent by telecopy, to the applicable
party at the following addresses or telecopy numbers (or at any other address or
telecopy number for a party as shall be specified by like notice):
If to Gart or MergerSub: Gart Sports Company
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Facsimile: (000) 000-0000
With a copy to: Irell & Xxxxxxx LLP
1800 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
If to the Stockholder: at the address and telephone number
set forth on the signature page
With a copy to: Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxxxxx
Facsimile: (000) 000-0000
12. Parties in Interest. This Agreement shall inure to the benefit of,
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and be binding upon, the parties hereto and their respective successors and
permitted assigns; provided, however, that any successor in interest or assignee
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shall agree to be bound by the provisions of this Agreement. Nothing in this
Agreement, express or implied, is intended to confer upon any person other than
Gart, MergerSub, the Stockholder or their successors or assigns, any rights or
remedies under, or by reason of, this Agreement.
13. Entire Agreement; Amendments. Other than the Merger Agreement, the
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Registration Rights Agreement and the transactions contemplated herein or
therein, this Agreement contains the entire agreement between the Stockholder,
Gart and MergerSub with respect to the subject matter of this Agreement and
supersedes all prior and contemporaneous agreements and understandings, oral or
written, with respect to such subject matter. This Agreement may not be changed,
amended or modified orally, but may
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be changed only by an agreement in writing signed by the party against whom any
waiver, change, amendment, modification or discharge may be sought.
14. Assignment. No party to this Agreement may assign any of its rights
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or obligations under this Agreement without the prior written consent of the
other party to this Agreement, except that (a) MergerSub may assign its rights
and obligations under this Agreement to Gart or to any of Gart's or MergerSub's
direct or indirect wholly owned subsidiaries or affiliates, and (b) the
Stockholder may transfer the Subject Shares to the extent permitted by Section 5
of this Agreement.
15. Headings. The section headings in this Agreement are for convenience
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of reference only and shall not affect the construction of this Agreement.
16. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same instrument.
17. Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of Delaware without giving effect to any
choice or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
18. Term. This Agreement shall become effective on the date hereof and
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shall terminate automatically and without further action on behalf of any party
hereto at the earlier of (i) the Effective Time (as defined in the Merger
Agreement) and (ii) the date on which the Merger Agreement is terminated
pursuant to, and in accordance with, its terms.
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IN WITNESS WHEREOF, Gart, MergerSub and the Stockholder have caused this
Agreement to be duly executed and delivered on the day and year first above
written.
GART SPORTS COMPANY,
a Delaware corporation
By /s/ Xxxx Xxxxxxx Xxxxxx
______________________________
Name: Xxxx Xxxxxxx Xxxxxx
Title: Chairman, President and CEO
GSC ACQUISITION CORP.,
a Delaware corporation
By /s/ Xxxx Xxxxxxx Xxxxxx
______________________________
Name: Xxxx Xxxxxxx Xxxxxx
Title: Chairman, President and CEO
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STOCKHOLDER
/s/ Xxxxxxx Xxx Xxxxxx
______________________________________
Xxxxxxx Xxxxxx
/s/ Xxxxxxx Xxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxxx Xxxxxxxx as Trustee for
TR UA dtd May 14 1987
M/B Xxxxxxx Xxxxxx Xxxxxxxx
fbo Xxxxxx Xxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxxx as Trustee for
TR UA 08 24 00
fbo Xxxxxx M O Xxxxxxxx
/s/ Xxxxxxx Xxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxxx as Trustee for
TR UA dtd May 14 1987
M/B Xxxxxxx Xxxxxx Xxxxxxxx
fbo Xxxxx Xxxxxx Xxxxxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxxx as Trustee for
TR UA 08 24 00
FBO Xxxxx X X Xxxxxxxxx
Address:
c/x Xxxxxx'x Sporting Goods, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Facsimile Number: (000) 000-0000
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SCHEDULE A
Shares Owned or Held as Trustee
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Name of Holder Number of Shares
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Xxxxxxx Xxxxxx 895,874
Xxxxxxx Xxxxxx Xxxxxxxx as Trustee for
TR UA dtd May 14 1987
M/B Xxxxxxx Xxxxxx Xxxxxxxx
fbo Xxxxxx Xxxxxx Xxxxxxxx 125,900
Xxxxxxx Xxxxxx as Trustee for
TR UA 08 24 00
fbo Xxxxxx M O Xxxxxxxx 31,750
Xxxxxxx Xxxxxx Xxxxxxxx as Trustee for
TR UA dtd May 14 1987
M/B Xxxxxxx Xxxxxx Xxxxxxxx
fbo Xxxxx Xxxxxx Xxxxxxxx Xxxxxxxxx 125,900*
Xxxxxxx Xxxxxx as Trustee for
TR UA 08 24 00
fbo Xxxxx X X Xxxxxxxxx 31,750
*These shares are pledged for a bank loan.
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