EXHIBIT 10.95
IRREVOCABLE PROXY AND TERMINATION RIGHTS AGREEMENT
IRREVOCABLE PROXY AND TERMINATION RIGHTS AGREEMENT dated as of
August 3, 1997, by and among Xxxxx Xxxxxx, Inc., a Delaware corporation
("Parent"), and the persons listed on Schedule A hereto (collectively, the
"Shareholders" and each a "Shareholder"), each a shareholder of Xxxxxxxx Dental
Products, Inc., a Wisconsin corporation (the "Company"), as revised.
Contemporaneously with the execution of this Agreement, the
Company, Parent and HSI Acquisition Corp., a Wisconsin corporation and
wholly-owned subsidiary of Parent ("Sub"), are entering into an Agreement and
Plan of Merger (the "Merger Agreement") pursuant to which it is contemplated
that Sub will be merged with and into the Company (the "Merger") and the holders
of the Company's common stock, par value $.01 per share (the "Company Common
Stock"), will be entitled to receive shares of Parent's common stock, par value
$.01 per share ("Parent Common Stock"), for such shares of Company Common Stock.
Parent, as a condition to its willingness to enter into the
Merger Agreement, has required the Shareholders to pay Parent certain amounts in
respect of the sale of their shares of Company Common Stock following
termination of the Merger Agreement in certain circumstances and to grant Parent
an irrevocable proxy with respect to all of the shares of Company Common Stock
owned by the Shareholders, together with any additional shares of Company Common
Stock hereafter acquired by the Shareholders (pursuant to Section 8, by exercise
of options or otherwise (such specified number of shares, and any additional
shares when and if acquired, being referred to as the "Shares") on the terms and
conditions hereinafter set forth.
The parties hereto agree as follows:
1. Termination Rights.
(a) If (i) the Merger Agreement is terminated by
Parent pursuant to Sections 9.1(d)(i), 9.1(d)(ii), 9.1(d)(iii), 9.1(d)(iv),
9.1(d)(v) or 9.1(f) of the Merger Agreement, or by the Company pursuant to
Section 9.1(e)(iii) of the Merger Agreement, or by the Company pursuant to
Section 9.1(b) of the Merger Agreement, and (ii) any Shareholder shall have
sold, exchanged or otherwise disposed of any of his, her or its Shares pursuant
to an Acquisition Transaction (such term as defined in the Merger Agreement),
then, such Shareholder shall pay, or cause to be paid, in same day funds (to the
extent of cash received and otherwise payable in kind) to Parent upon demand an
amount equal to (x) such Shareholder's Profit per Share multiplied by (y) the
aggregate number of Shares sold, exchanged or otherwise disposed of by such
Shareholder. As used herein, "Profit per Share" in connection with a sale,
exchange or other disposition of Shares by a Shareholder shall mean, on a per
Share basis, thirty-five percent (35%) of the amount by which (A) the sum of (1)
if such sale, exchange or other disposition is for or made in cash, the cash
received by the Shareholder in respect of each Share, (2) if such sale, exchange
or other disposition is for or made in marketable securities, the fair market
value at the time such securities are received by the Shareholder of the
securities received in respect of each Share, (3) if such sale, exchange or
other disposition is for or made in property other than cash or marketable
securities, the fair market value at the time such property is received by the
Shareholder of the property received in respect of each Share (or any
combination of the consideration referred to in clauses (1), (2) and (3)), and
(4) without duplication, any dividends or interest received by the Shareholder
in respect of each Share, exceeds (B) the fair market value of 0.735 shares of
Parent Common Stock on the date of termination of the Merger Agreement. As used
herein, the term "fair market value" shall mean, in the case of marketable
securities, the average of the closing sales prices of such securities, for the
five immediately preceding trading days, on the principal securities exchange on
which such security is listed, if such security is listed on any such exchange,
or on the NASDAQ National Market, if such security is listed thereon, or the
closing bid quotation with respect to the security on NASDAQ or any similar
system then in general use, if such quotations are available, and, in the case
of other property, the fair market value thereof as agreed to by the parties,
or, if they are unable to agree, as determined by a third party appraiser
selected by the parties.
(b) Notwithstanding anything in this Agreement to
the contrary, if (x) any Shares listed on Schedule A as being beneficially owned
by Xxxxxx X. Xxxxxxxx ("Xxxxxxxx") or the Xxxxxxx X. Xxxxxxxx Irrevocable Trust
dated December 22, 1989 (the "Trust") are acquired (the "Acquired Shares") by
any other person pursuant to any lien, option or other right listed thereon, and
(y) Xxxxxxxx and/or the Trust, as applicable, sells or disposes of any Shares
pursuant to an Acquisition Transaction, Xxxxxxxx and/or the Trust, as the case
may be, shall be deemed to have sold or disposed of the Acquired Shares in the
Acquisition Transaction and shall be responsible for paying the Profit per Share
with respect thereto in accordance with Section 1(a).
2. Irrevocable Proxy. Each Shareholder hereby
irrevocably constitutes and appoints Parent or any designee of Parent the lawful
agent, attorney and proxy of such Shareholder during the term of this Agreement,
to vote all of his, her or its Shares at any meeting or in connection with any
written consent of the Company's shareholders (a) in favor of the Merger, (b) in
favor of the Merger Agreement, as such may be modified or amended from time to
time, (c) against any Acquisition Transaction (other than the Merger) or other
merger, sale, or other business combination between the Company and any other
person or entity or any other action which would make it impractical for Parent
to effect a merger or other business combination of the Company with Parent or
Sub, and (d) against any other action or agreement that would result in a breach
of any covenant, representation or warranty or any other obligation or agreement
of the Company under the Merger Agreement or which would result in any of the
Company's obligations under the Merger Agreement not being fulfilled. This proxy
shall not authorize Parent to vote the Shares on any matters other than those
specified above which may be presented to the Company's shareholders at any
meeting or in connection with any written
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consent of the Company's shareholders. This power of attorney is irrevocable, is
granted in consideration of Parent entering into the Merger Agreement and is
coupled with an interest sufficient in law to support an irrevocable power. This
appointment shall revoke all prior attorneys and proxies appointed by any
Shareholder at any time with respect to the Shares and the matters set forth in
clauses (a) through (d) above and no subsequent attorneys or proxies will be
appointed by such Shareholder, or be effective, with respect thereto.
3. Representations and Warranties of the Shareholders.
Each Shareholder represents and warrants to Parent as follows:
(a) Ownership of Shares. Except as set forth on
Schedule A hereto, that Shareholder is the sole beneficial owner of the number
of Shares set forth as being owned by that Shareholder on Schedule A hereto. The
Shares set forth opposite that Shareholder's name on Schedule A constitute all
the Shares owned beneficially or of record by that Shareholder. The Shares owned
by that Shareholder are validly issued, fully paid and nonassessable and such
Shares set forth opposite that Shareholder's name on Schedule A are held by that
Shareholder, or by a nominee or custodian for the benefit of that Shareholder,
free and clear of all liens, claims, security interests, agreements and other
encumbrances, except for encumbrances arising under this Agreement or as set
forth on Schedule A.
(b) Power; Binding Agreement. That Shareholder
has the legal capacity to enter into and perform all of that Shareholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by that Shareholder will not violate any other agreement to which
that Shareholder is a party, including, without limitation, any voting
agreement, shareholders agreement or voting trust or, if applicable, that
shareholder's trust agreement. This Agreement has been duly and validly executed
and delivered by that Shareholder and constitutes a valid and binding obligation
of that Shareholder, enforceable against that Shareholder in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and subject to
general principles of equity. If that Shareholder is married and that
Shareholder's Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
obligation of, that Shareholder's spouse, enforceable against that spouse in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and subject to general principles of equity. (Xxxxxx X. Xxxxxxxx (and no other
Shareholder) make the representations and warranties set forth in this Section
3(b) with respect to each Shareholder.)
(c) Consents and Approvals; No Violation.
Neither the execution and delivery of this Agreement by that Shareholder nor the
consummation of the transactions contemplated by this Agreement will: (i)
require any consent, approval, authorization or permit of, or filing with or
notification to, any person or entity or any governmental or regulatory
authority, except in connection with the HSR Act or pursuant to the Securities
Exchange Act of 1934; (ii) conflict with, result in a breach of, or result in a
default (or give rise to a right of
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termination, cancellation or acceleration) under any of the terms, conditions or
provisions of any note, license, agreement or other instrument or obligation to
which that Shareholder is a party or by which that Shareholder or any of that
Shareholder's assets may be bound; or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to that Shareholder or by which
any of that Shareholder's assets are bound.
(d) Brokers. No broker, finder or other
investment banker is entitled to any broker's, finder's or other similar fee or
commission in connection with this Agreement or the transactions contemplated by
this Agreement based upon agreements made by or on behalf of that Shareholder.
4. Representations and Warranties of Parent. Parent
represents and warrants to each Shareholder that:
(a) Power; Binding Agreement. Parent has the
corporate power and authority to enter into and perform all its obligations
under this Agreement. The execution, delivery and performance of this Agreement
by Parent will not violate any other agreement to which Parent is a party. This
Agreement has been duly and validly authorized, executed and delivered by Parent
and constitutes a valid and binding obligation of Parent, enforceable against
Parent in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject to general principles of equity.
(b) Consents and Approvals; No Violation.
Neither the execution and delivery of this Agreement by Parent nor the
consummation by Parent of the transactions contemplated by this Agreement will:
(i) require any consent, approval, authorization or permit of, or filing with or
notification to, any person or entity or any governmental or regulatory
authority, except in connection with the HSR Act or pursuant to the Securities
Exchange Act of 1934; (ii) conflict with, result in a breach of, or result in a
default (or give rise to a right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any note, license, agreement
or other instrument or obligation to which Parent is a party or by which Parent
or any of its assets may be bound; or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Parent or by which any of its
assets are bound.
(c) Brokers. No broker, finder or other
investment banker is entitled to any broker's, finder's or other similar fee or
commission in connection with this Agreement or the transactions contemplated by
this Agreement based upon agreements made by or on behalf of Parent.
5. Additional Covenants of the Shareholders. Each
Shareholder hereby covenants and agrees that:
(a) that Shareholder will not enter into any
transaction, take any action, or by inaction permit any event to occur that
would (i) result in any of the representations
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or warranties of such Shareholder herein contained not being true and correct at
and as of the time immediately after the occurrence of such transaction, action
or event; or (ii) have the effect of preventing or disabling that Shareholder
from performing that Shareholder's obligations under this Agreement;
(b) until the termination of the proxies granted
under Section 2 hereof, that Shareholder will not grant any proxies or powers of
attorney with respect to any Shares, deposit any Shares into a voting trust or
enter into a voting agreement with respect to such Shares;
(c) until the termination of the proxies granted
under Section 2 hereof, that Shareholder will at all times use his, her or its
best efforts in his, her or its capacity as a shareholder of the Company to
prevent the Company from taking any action in violation of the Merger Agreement;
(d) from and after the date hereof until the
termination of this Agreement, other than under the circumstances contemplated
by Section 1 hereof, the Shares will not be sold, transferred, pledged,
hypothecated, transferred by gift, or otherwise disposed of in any manner
whatsoever without notifying Parent in advance and obtaining and delivering to
Parent any evidence that Parent may reasonably request to evidence the
transferee's agreement to be bound by this Agreement; provided, however, that in
the event of that Shareholder's death during the term of this Agreement, the
Shares may be transferred in accordance with the Shareholder's last will and
testament, or if none, in accordance with the applicable laws of intestate
succession, in either of which cases, the Shares shall remain subject in all
respects to the terms of this Agreement; and
(e) the Shareholder will execute and deliver any
additional documents reasonably necessary or desirable, in the opinion of
Parent's or the Company's counsel, to evidence the irrevocable proxy granted in
Section 2 with respect to the Shares or otherwise implement and effect the
provisions of this Agreement.
6. No Solicitation. No Shareholder shall, in that
Shareholder's capacity as such, directly or indirectly, (a) solicit, initiate,
facilitate or encourage (including by way of furnishing or disclosing non-public
information) any inquiries or the making of any proposal with respect to any
Acquisition Transaction, (b) negotiate, explore or otherwise engage in
discussion with any person (other than Parent and its representatives) with
respect to any Acquisition Transaction, (c) agree to or endorse an Acquisition
Transaction with any person (other than Parent or Sub) or enter into any
agreement, arrangement or understanding with respect to any such Acquisition
Transaction or which would require the Company to abandon, terminate or fail to
consummate the Merger or any other transaction contemplated by the Merger
Agreement, or (d) authorize or permit any person or entity acting on behalf of
that Shareholder to do any of the foregoing. If any Shareholder receives any
inquiry or proposal regarding any Acquisition Transaction, that Shareholder
shall promptly inform Parent of that inquiry or proposal.
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7. Legending of Certificates; Nominee Shares. Each
Shareholder agrees to submit to Parent contemporaneously with or promptly
following execution of this Agreement (or promptly following receipt of any
additional certificates representing any additional Shares) all certificates
representing the Shares so that Parent may note thereon a legend referring to
the rights to certain payments and proxy granted to it by this Agreement. If any
of the Shares beneficially owned by a Shareholder are held of record by a
brokerage firm in "street name" or in the name of any other nominee (a
"Nominee," and, as to such Shares, "Nominee Shares"), the Shareholder agrees
that, upon written notice by Parent requesting it, such Shareholder will within
five days of the giving of such notice execute and deliver to Parent a limited
power of attorney in such form as shall be reasonably satisfactory to Parent
enabling Parent to require the Nominee to grant to Parent the rights to certain
payments and an irrevocable proxy to the same effect as Sections 1 and 2 hereof
with respect to the Nominee Shares held by such Nominee and to submit to Parent
the certificates representing such Nominee Shares for notation of the
above-referenced legend thereon.
8. Adjustments to Prevent Dilution, Etc. In the event
of a stock dividend or distribution, or any change in Company Common Stock by
reason of any stock dividend, 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 shares
into which or for which any or all of the Shares may be changed or exchanged.
9. Shareholder Capacity. No person executing this
Agreement who is or becomes during the term of this Agreement a director of the
Company makes any agreement hereunder in his or her capacity as a director. Each
Shareholder is executing and delivering this Agreement solely in that
Shareholder's capacity as the record and beneficial owner of that Shareholder's
Shares. Notwithstanding anything to the contrary in this Agreement, no action or
inaction by a Shareholder in his capacity as a director, officer, or employee of
the Company shall be deemed to contravene Section 6, as long as the action or
inaction does not contravene Section 7.2 of the Merger Agreement.
10. Termination. This Agreement shall terminate on the
earlier of (i) the Effective Time of the Merger and (ii) 12 months following the
date of termination of the Merger Agreement; provided, however, that the
appointment of Parent or any designee of Parent as agent, attorney and proxy
pursuant to Section 2 hereof, and any proxy or other instrument executed
pursuant thereto, shall in any event automatically terminate upon the
termination of the Merger Agreement.
11. Miscellaneous.
(a) No Waiver. The failure of any party to
exercise any right, power or remedy under this Agreement or otherwise available
in respect of this Agreement at law or in equity, or to insist upon compliance
by any other party with that party's obligations under this Agreement, shall not
constitute a waiver of any right to exercise any such or other right, power or
remedy or to demand such compliance.
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(b) Notices. All notices and other
communications hereunder shall be in writing and shall be delivered personally
or by next-day courier or telecopied with confirmation of receipt, to the
parties at the addresses specified below (or at such other address for a party
as shall be specified by like notice; provided that notices of a change of
address shall be effective only upon receipt thereof). Any such notice shall be
effective upon receipt, if personally delivered or telecopied, or one day after
delivery to a courier for next-day delivery.
(i) If to Parent, to:
Xxxxx Xxxxxx, Inc.
000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(ii) if to a Shareholder, to the address set forth opposite
such Shareholder's name on Schedule A
with a copy to:
Xxxxx, Xxxxx & Ryd
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
(c) Descriptive Headings; Interpretation. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
References in this Agreement to Sections and Schedules mean a Section or
Schedule of this Agreement unless otherwise indicated. The terms "beneficially
own" and "beneficial owner" with respect to any securities shall have the same
meaning as in,
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and shall be determined in accordance with, Rule 13d-3 under the Securities
Exchange Act of 1934.
(d) Entire Agreement; Assignment. This
Agreement (including the schedule and other documents and instruments referred
to herein), together with the Merger Agreement, constitute the entire agreement
and supersede all other prior agreements and understandings, both written and
oral, among the parties or any of them, with respect to the subject matter
hereof. Except as otherwise expressly provided herein, this Agreement is not
intended to confer upon any person not a party hereto any rights or remedies
hereunder. Except as otherwise expressly provided herein, this Agreement shall
not be assigned by operation of law or otherwise; provided that Parent or Sub
may assign its rights and obligations hereunder to a direct or indirect
subsidiary of Parent, but no such assignment shall relieve Parent or Sub, as the
case may be, of its obligations hereunder.
(e) Liability After Transfer. Each Shareholder
agrees that, notwithstanding any transfer of that Shareholder's Shares in
accordance with Section 5(d), that Shareholder shall remain liable for his or
her performance of all obligations under this Agreement.
(f) Injunctive Relief; Remedies Cumulative.
(i) Parent, on the one hand, and the
Shareholders, on the other hand, acknowledge that the other party will be
irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of such party that are contained
in this Agreement. It is accordingly agreed that, in addition to any other
remedies that may be available to the non-breaching party upon the breach by any
other party of such covenants and agreements, the non-breaching party shall have
the right to obtain injunctive relief to restrain any breach or threatened
breach of such covenants or agreements or otherwise to obtain specific
performance of any of such covenants or agreements.
(ii) No remedy conferred upon or reserved
to any party herein is intended to be exclusive of any other remedy and every
remedy shall be cumulative and in addition to every other remedy herein or now
or hereafter existing at law, in equity or by statute.
(g) Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without giving effect to the provisions thereof relating to conflicts of laws.
(h) Effect of Partial Invalidity. Whenever
possible, each provision of this Agreement shall be construed in such a manner
as to be effective and valid under applicable law. If any provision of this
Agreement or the application thereof to any party or circumstance shall be
prohibited by or invalid under applicable law, such provisions shall be
ineffective to the extent of such prohibition without invalidating the remainder
of such provision or any other
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provisions of this Agreement or the application of such provision to the other
party or other circumstances.
(i) Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be deemed to be an
original but all of which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by the
parties as of the date first above written.
THE SHAREHOLDERS:
THE XXXXXXX XXXXXXXX IRREVOCABLE
TRUST DATED DECEMBER 22, 1989
By: /S/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx, as Co-Trustee
By: /S/ XXX X. XXXXXXXX
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Xxx X. Xxxxxxxx, as Co-Trustee
THE XXXXXXXXX XXXXX IRREVOCABLE
TRUST DATED DECEMBER 22, 1989
By: /S/ XXXXXXXXX XXXXX
------------------------------------
Xxxxxxxxx Xxxxx, as Co-Trustee
By: /S/ XXXXXX X. XXXXX
------------------------------------
Xxxxxx X. Xxxxx, as Co-Trustee
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THE XXXX XXXXXXXX IRREVOCABLE
TRUST DATED DECEMBER 22, 1989
By: /S/ XXXX XXXXXXXX
------------------------------------
Xxxx Xxxxxxxx, as Co-Trustee
By: /S/ XXXXXX X. XXXXX
------------------------------------
Xxxxxx X. Xxxxx, as Co-Trustee
THE XXXXXX XXXXXXXX IRREVOCABLE
TRUST DATED DECEMBER 22, 1989
By: /S/ XXXX XXXXXXXX
------------------------------------
Xxxx Xxxxxxxx, as Co-Trustee
By: /S/ XXXXXX X. XXXXX
------------------------------------
Xxxxxx X. Xxxxx, as Co-Trustee
THE XXXXXX XXXXXXXX, JR. IRREVOCABLE
TRUST DATED DECEMBER 22, 1989
By: /S/ XXXXXX XXXXXXXX, JR.
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Xxxxxx Xxxxxxxx, Jr., as Co-Trustee
By: /S/ XXXXXX X. XXXXX
------------------------------------
Xxxxxx X. Xxxxx, as Co-Trustee
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THE XXXXXX XXXXXXXX IRREVOCABLE
TRUST DATED DECEMBER 22, 1989
By: /S/ XXXXXX XXXXXXXX, JR.
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Xxxxxx Xxxxxxxx, Jr., as Co-Trustee
By: /S/ XXXXXX X. XXXXX
------------------------------------
Xxxxxx X. Xxxxx, as Co-Trustee
THE XXXXXXXXX XXXXXXXX IRREVOCABLE
TRUST DATED DECEMBER 22, 1989
By: /S/ XXXXXXXXX XXXXXX
------------------------------------
Xxxxxxxxx Xxxxxx, as Co-Trustee
By: /S/ XXXXXX X. XXXXX
------------------------------------
Xxxxxx X. Xxxxx, as Co-Trustee
/S/ XXXXXX X. XXXXXXXX, XX.
------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
/S/ XXXXXXX X. XXXXXXXX
------------------------------------
Xxxxxxx X. Xxxxxxxx
/S/ XXXXXXXXX XXXXX
------------------------------------
Xxxxxxxxx Xxxxx
/S/ XXXX XXXXXXXX
------------------------------------
Xxxx Xxxxxxxx
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/S/ XXXXXX XXXXXXXX, JR.
------------------------------------
Xxxxxx Xxxxxxxx, Jr.
/S/ XXXXXXXXX XXXXXX
------------------------------------
Xxxxxxxxx Xxxxxx
/S/ XXXXXX X. XXXXXXX
------------------------------------
Xxxxxx X. Xxxxxxx
/S/ XXXXX X. XXXX
------------------------------------
Xxxxx X. Xxxx
/S/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
XXXXX XXXXXX, INC.
By: /S/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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