EXHIBIT 99.1
VOTING AND COOPERATION AGREEMENT
PARTIES: XXXXXXX X. XXXXXXX ("FEATHER")
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
XXXXX X. XXXXX ("BLOYS")
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
XXXXXX X. XXXXXXXX ("APPLETON")
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
SUNGARD DATA SYSTEMS INC.
a Delaware corporation ("Acquiror")
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
DATE: May 6, 1999
BACKGROUND: Acquiror, PEI Acquisition, Inc., a Pennsylvania corporation and a
wholly-owned subsidiary of Acquiror ("Newco"), and Pentamation Enterprises,
Inc., a Pennsylvania corporation (the "Company"), are entering into an Agreement
and Plan of Reorganization dated as of the date hereof (the "Reorganization
Agreement"), and a related Plan of Merger dated as of the date hereof (the
"Plan"), which provide (subject to the conditions set forth therein) for the
merger of Newco with and into the Company (the "Merger"). Feather, Bloys and
Appleton are shareholders (collectively, the "Shareholders") of the Company.
As a condition to the willingness of Acquiror and Newco to enter into the
Reorganization Agreement and the Plan, Acquiror and Newco have required that the
Shareholders enter into, and in order to induce Acquiror and Newco to enter into
the Reorganization Agreement, the Shareholders have agreed to enter into, this
Agreement.
Intending to be Legally Bound, in consideration of the foregoing and the
mutual agreements contained herein and in the Reorganization Agreement and Plan,
the parties hereto agree as follows:
1. Certain Definitions
(a) All capitalized terms used but not otherwise defined in this
Agreement have the meanings ascribed to such terms in the Reorganization
Agreement or the Plan.
(b) "Expiration Date" shall mean the earlier of (i) the date upon
which the Reorganization Agreement is validly terminated pursuant to Section
15.1 thereof, and (ii) the date upon which the Merger becomes effective in
accordance with the terms and conditions of the Reorganization Agreement and the
Plan.
(c) A Shareholder shall be deemed to "Own" or to have acquired
"Ownership" of a security if the Shareholder: (i) is a record owner of such
security; or (ii) is a "beneficial owner" (within the meaning of Rule 13d-3
under the Exchange Act) of such security.
(d) The "Record Date" for a particular matter shall be the date fixed
for persons entitled: (i) to receive notice of, and to vote at, a meeting of the
shareholders of the Company called for the purpose of voting on such matter; or
(ii) to take action by written consent of the shareholders of the Company with
respect to such matter.
(e) "Subject Securities" shall mean: (i) all securities of the Company
(including shares of Company Common Stock and all options, warrants and other
rights to acquire shares of Company Common Stock) Owned by the Shareholders
(individually or jointly) as of the date of this Agreement; and (ii) all
additional securities of the Company (including all additional shares of Company
Common Stock and all additional options, warrants and other rights to acquire
shares of Company Common Stock) of which the Shareholders (individually or
jointly) acquire Ownership during the period from the date of this Agreement
through the Expiration Date.
(f) A Person shall be deemed to have effected a "Transfer" of a
security if such Person directly or indirectly; (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; or (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
2. Transfer of Subject Securities
(a) Transferee of Subject Securities to be Bound by this Agreement.
Each of the Shareholders, jointly and severally, agrees that, during the period
from the date of this Agreement through the Expiration Date, such Shareholder
shall not cause or permit any Transfer of any of the Subject Securities Owned by
such Shareholder to be effected unless each Person to which any of such Subject
Securities, or any interest in any of such Subject Securities, is or may be
transferred shall have: (a) executed a counterpart of this Agreement and a proxy
in the form attached hereto as Exhibit A (with such modifications as Acquiror
may reasonably request); and (b) agreed in writing to hold such Subject
Securities (or interest in such Subject Securities) subject to all of the terms
and provisions of this Agreement.
(b) Transfer of Voting Rights. Each of the Shareholders, jointly and
severally, agrees that, during the period from the date of this Agreement
through the Expiration Date, such Shareholder shall ensure that: (a) none of the
Subject Securities Owned by such Shareholder is deposited into a voting trust;
and (b) no proxy is granted, and no agreement or
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similar agreement is entered into, with respect to any of the Subject Securities
Owned by such Shareholder.
3. Voting of Shares.
(a) Agreement. Each of the Shareholders, jointly and severally,
covenants and agrees that, during the period from the date of this Agreement
through the Expiration Date, at any meeting of the shareholders of the Company,
however called, and at every adjournment or postponement thereof, and in any
written action by consent of the shareholders of the Company, unless otherwise
directed in writing by Acquiror, such Shareholder shall (i) appear, or cause the
holder of record as of the Record Date to appear, at any annual or special
meeting of shareholders of the Company (including the Company's Shareholder
Meeting) for the purpose of establishing a quorum, and (ii) vote or cause to be
voted all issued and outstanding shares of Company Common Stock that are Owned
by such Shareholder (individually or jointly) as of the Record Date: in favor of
the Merger, the execution and delivery by the Company of the Reorganization
Agreement and the Plan and the adoption and approval of the terms thereof and in
favor of the other Transactions and each of the actions contemplated by the
Reorganization Agreement and the Plan and any action required in furtherance
hereof or thereof.
(b) Proxy. Contemporaneously with the execution of this Agreement:
(i) each of the Shareholders shall deliver to Acquiror a proxy in the form
attached hereto as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law, with respect to the shares referred to therein (the "Proxy");
and (ii) each of the Shareholders shall cause to be delivered to Acquiror an
additional proxy (in the form attached hereto as Exhibit A) executed on behalf
of the record owner of any issued and outstanding shares of Company Common Stock
that are owned beneficially (but are not owned of record) by such Shareholder.
4. Representations and Warranties of Shareholders. Each of the
Shareholders, jointly and severally, represents and warrants to Acquiror as
follows:
(a) Authorization. Each of the Shareholders has the absolute and
unrestricted right, power, authority and capacity to execute and deliver this
Agreement and the Proxy and to perform his, her or its obligations hereunder and
thereunder. This Agreement and the Proxy have been duly executed and delivered
by each of the Shareholders and constitute legal, valid and binding obligations
of the Shareholders, enforceable against each of the Shareholders in accordance
with its terms.
(b) No Conflicts, Required Filings and Consents.
(i) The execution and delivery of this Agreement and the Proxy by each
of the Shareholders do not, and the performance of this Agreement and the Proxy
by each of the Shareholders will not: (A) conflict with or violate any Law,
order, decree or judgment applicable to any of the Shareholders or by which any
of the Shareholders or any of their properties are bound or affected; or (B)
result in any breach of or constitute a default or breach (immediately or after
the giving of notice, passage of time, or both) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the
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creation of an Encumbrance on any of the Subject Securities pursuant to, any
Contract to which any of the Shareholders is a party or by which any of the
Shareholders or any of their properties are bound or affected.
(ii) The execution and delivery of this Agreement and the Proxy by
each of the Shareholders do not, and the performance of this Agreement and the
Proxy by each of the Shareholders will not, require any Consent of any Person.
(c) Title to Subject Securities. As of the date hereof, each of the
Shareholders Own in the aggregate (including shares owned of record and shares
owned beneficially) the number of issued and outstanding shares of Company
Common Stock set forth below such Shareholder's name on the signature page
hereof, and the number of options, warrants and other rights to acquire shares
of Company Common Stock set forth below such Shareholder's name on the signature
page hereof, and do not directly or indirectly Own, any shares of capital stock
of the Company, or any option, warrant or other right to acquire any shares of
capital stock of the Company, other than the shares and options, warrants and
other rights set forth below such Shareholder's name on the signature page
hereof.
(d) Accuracy of Representations. The representations and warranties
of each of the Shareholders contained in this Agreement are accurate in all
respects as of the date of this Agreement, will be accurate in all respects at
all times through the Expiration Date and will be accurate in all respects as of
the date of the consummation of the Merger as if made on that date.
5. Other Covenants of the Shareholders.
(a) Shareholders Meeting and Pre-Closing Cooperation. Each of the
Shareholders, jointly and severally, covenants and agrees that (i) upon the
request of Acquiror, each Shareholder shall promptly take any and all actions
necessary or desirable to cause the Company Shareholders Meeting to be held
pursuant to the Pennsylvania Business Corporation Law of 1988, as amended, or
any other applicable law, and (ii) each Shareholder shall cause the Company to
perform all of the terms and conditions of the Reorganization Agreement and the
Plan to be satisfied or performed by the Company on or before the Closing Date,
including the obligations under Sections 5 and 6 of the Reorganization
Agreement.
(b) Further Assurances. At any time and from time to time after the
date hereof through the Closing Date, and without additional consideration, each
of the Shareholders will cooperate with Acquiror, take such action and execute
and deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, proxies, consents and other instruments as
Acquiror may reasonably request for the purpose of effectively carrying out and
furthering the intent of the Reorganization Agreement, the Plan and this
Agreement.
(c) Legend. Immediately after the execution of this Agreement (and
from time to time prior to the Expiration Date upon the acquisition by any of
the Shareholders (individually or jointly) of Ownership of any shares of Company
Common Stock), each of the Shareholders shall instruct the Company to cause each
certificate of such Shareholder
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evidencing any issued and outstanding shares of Company Common Stock Owned by
such Shareholder (individually or jointly) to bear a legend in the following
form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT DATED
AS OF MAY 6, 1999, AS IT MAY BE AMENDED, BY AND AMONG XXXXXXX X.
XXXXXXX, XXXXX X. XXXXX, XXXXXX X. XXXXXXXX AND SUNGARD DATA
SYSTEMS INC., A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE ISSUER.
6. Miscellaneous.
(a) Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements made by the Shareholders in this
Agreement shall survive (i) the consummation of the Merger and the other
Transactions, (ii) any termination of the Reorganization Agreement, and (iii)
the Expiration Date.
(b) Notices. All notices, consents or other communications required
or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered personally or one (1) business day
after being sent by a nationally recognized overnight delivery service, postage
or delivery charges prepaid or five (5) business days after being sent by
registered or certified mail, return receipt requested, postage charges prepaid.
Notices also may be given by prepaid facsimile and shall be effective on the
date transmitted if confirmed within 48 hours thereafter by a signed original
sent in one of the manners provided in the preceding sentence. Notices to
Acquiror shall be sent to its address stated on page one of this Agreement to
the attention of Acquiror's General Counsel, with a copy sent simultaneously to
the same address to the attention of Acquiror's Chief Financial Officer.
Notices to the Shareholders shall be sent to their respective addresses stated
on page one of this Agreement, with a copy sent simultaneously to Xxxxxxx X.
Xxxxxx, Esquire, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000-0000. Any party may
change its address for notice and the address to which copies must be sent by
giving notice of the new addresses to the other parties in accordance with this
Section 6(b), provided that any such change of address notice shall not be
effective unless and until received.
(c) Entire Understanding. This Agreement and the other agreements
referred to herein, state the entire understanding among the parties with
respect to the subject matter hereof, and supersede all prior oral and written
communications and agreements, and all contemporaneous oral communications and
agreements, with respect to the subject matter hereof. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties hereto.
(d) Waivers. Except as otherwise expressly provided herein, no waiver
with respect to this Agreement shall be enforceable unless in writing and signed
by the party against whom enforcement is sought. Except as otherwise expressly
provided herein, no failure to exercise, delay in exercising, or single or
partial exercise of any right, power or
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remedy by any party, and no course of dealing between or among any of the
parties, shall constitute a waiver of or shall preclude any other for further
exercise of, any right, power or remedy.
(e) Severability. If any provision of this Agreement or any part of
any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (i) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (ii) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (iii)
the invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Agreement. Each
provision of this Agreement is separable from every other provision of this
Agreement, and each part of each provision of this Agreement is separable from
every other part of such provision.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original
hereof, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one counterpart hereof.
(g) Section Headings. Section and subsection headings in this
Agreement are for convenience of reference only, do not constitute a part of
this Agreement, and shall not affect its interpretation.
(h) References. All words used in this Agreement shall be construed
to be of such number and gender as the context requires or permits.
(i) CONTROLLING LAW. THIS AGREEMENT IS MADE UNDER, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
(j) Jurisdiction and Process. In any action between or among any of
the parties, whether arising out of this Agreement or otherwise, (i) each of the
parties irrevocably consents to the exclusive jurisdiction and venue of the
federal and state courts located in the Commonwealth of Pennsylvania, (ii) if
any such action is commenced in a state court, then, subject to applicable law,
no party shall object to the removal of such action to any federal court located
in the Commonwealth of Pennsylvania, (iii) each of the parties irrevocably
waives the right to trial by jury, (iv) each of the parties irrevocably consents
to service of process by first class certified mail, return receipt requested,
postage prepaid, to the address at which such party is to receive notice in
accordance with Section 6(b), and (v) the prevailing parties shall be entitled
to recover their reasonable attorneys' fees and court costs from the other
parties.
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(k) Non-exclusivity. The rights and remedies of Acquiror hereunder
are not exclusive of or limited by any other rights or remedies which Acquiror
may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative).
(l) Bankruptcy Qualification. Each representation or warranty made in
or pursuant to this Agreement regarding the enforceability of any Contract shall
be qualified to the extent that such enforceability may be effected by
bankruptcy, insolvency and other similar Laws or equitable principles (but not
those concerning fraudulent conveyance) generally affecting creditors' rights
and remedies.
(m) Construction. The parties hereto agree that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not be applied in the construction or interpretation of
this Agreement. As used in this Agreement, the words "include" and "including"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation".
(n) Assignment; Binding Effect. Except as provided herein, neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by either of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party, except that
Acquiror may assign all or any of its rights hereunder to any wholly-owned
subsidiary of Acquiror. Subject to the preceding sentence, this Agreement shall
be binding upon each of the Shareholders and his, her or its heirs, successors
and assigns, and shall inure to the benefit of Acquiror and its successors and
assigns. Without limiting any of the restrictions set forth in Section 2 or
elsewhere in this Agreement, this Agreement shall be binding upon any Person to
whom any Subject Securities are transferred. Notwithstanding anything contained
in this Agreement to the contrary, nothing in this Agreement, expressed or
implied, is intended to confer on any Person other than the parties hereto or
their respective heirs, successors and assigns any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
(o) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
It is accordingly agreed that Acquiror shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of proper jurisdiction, this being
in addition to any other remedy to which Acquiror is entitled at law or in
equity.
(p) Other Agreements and Independence of Obligations. Nothing in this
Agreement shall limit any of the rights or remedies of Acquiror or any of the
obligations of the Shareholders under any Affiliate Agreement between Acquiror
and any of the Shareholders or under any other agreement. The covenants and
obligations of the Shareholders set forth in this Agreement shall be construed
as independent of any other agreement or arrangement between any or all of the
Shareholders, on the one hand, and the Company or Acquiror, on the other. The
existence of any claim or cause of action by any or all of the Shareholders
against the Acquiror or the Company shall not constitute a defense to the
enforcement of any of such covenants or obligations against any or all of the
Shareholders.
[balance of page intentionally blank]
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IN WITNESS WHEREOF, each of the undersigned has caused this Voting and
Cooperation Agreement to be executed as of the date first stated above.
SUNGARD DATA SYSTEMS INC.
By: ____________________________
Print name:
Print title:
SHAREHOLDERS:
________________________________
Name: Xxxxxxx X. Xxxxxxx
Number of issued and outstanding shares of Company
Common Stock owned of record as of the date of
this Agreement:
_____________
Number of additional issued and outstanding shares
of Company Common Stock owned beneficially (but
not of record) as of the date of this Agreement:
_____________
Number of options, warrants and other rights to
acquire shares of Company Common Stock owned of
record as of the date of this Agreement:
_____________
Number of additional options, warrants and other
rights to acquire shares of Company Common Stock
owned beneficially (but not of record) as of the
date of this Agreement:
_____________
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_______________________________
Name: Xxxxx X. Xxxxx
Number of issued and outstanding shares of Company
Common Stock owned of record as of the date of
this Agreement:
_______________
Number of additional issued and outstanding shares
of Company Common Stock owned beneficially (but
not of record) as of the date of this Agreement:
_______________
Number of options, warrants and other rights to
acquire shares of Company Common Stock owned of
record as of the date of this Agreement:
_______________
Number of additional options, warrants and other
rights to acquire shares of Company Common Stock
owned beneficially (but not of record) as of the
date of this Agreement:
_______________
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__________________________
Name: Xxxxxx X. Xxxxxxxx
Number of issued and outstanding shares of Company
Common Stock owned of record as of the date of
this Agreement:
________________
Number of additional issued and outstanding shares
of Company Common Stock owned beneficially (but
not of record) as of the date of this Agreement:
________________
Number of options, warrants and other rights to
acquire shares of Company Common Stock owned of
record as of the date of this Agreement:
________________
Number of additional options, warrants and other
rights to acquire shares of Company Common Stock
owned beneficially (but not of record) as of the
date of this Agreement:
________________
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned Shareholders of Pentamation Enterprises, Inc., a
Pennsylvania corporation (the "Company"), hereby irrevocably (to the fullest
extent permitted by law) appoint and constitute Xxxxxxxx X. Xxxxx, Xxxxxxx X.
Xxxxxx and SunGard Data Systems Inc., a Delaware corporation ("Acquiror"), and
each of them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned (individually or
jointly) may acquire after the date hereof. (The shares of the capital stock of
the Company referred to in clauses (i) and (ii) of the immediately preceding
sentence are collectively referred to as the "Shares.") Upon the execution
hereof, all prior proxies given by the undersigned with respect to any of the
Shares are hereby revoked, and no subsequent proxies will be given with respect
to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting and Cooperation Agreement, dated as of the date
hereof, between Acquiror and the undersigned (the "Agreement"), and is granted
in consideration of Acquiror entering into the Agreement and Plan of
Reorganization, dated as of the date hereof, among Acquiror, PEI Acquisition
Inc., a Pennsylvania corporation and wholly owned subsidiary of Acquiror, and
the Company (the "Reorganization Agreement"). Capitalized terms used but not
otherwise defined in this proxy have the meanings ascribed to such terms in the
Agreement.
The attorneys and proxies named above will be empowered, and may exercise
this proxy, at any time during the period from the date hereof through the
Expiration Date at any meeting of the shareholders of the Company, however
called, and at every adjournment or postponement thereof, or in any written
action by consent of shareholders of the Company, to (i) appear, or cause the
holder of record as of the Record Date to appear, at any annual or special
meeting of shareholders of the Company (including the Company's Shareholders
Meeting) for the purpose of establishing a quorum, and (ii) vote or cause to be
voted the shares (A) in favor of the Merger and the other Transactions, the
execution and delivery by the Company of the Reorganization Agreement and the
Plan and the adoption and approval of the terms thereof and in favor of the
Transactions and each of the other actions contemplated by the Reorganization
Agreement and the Plan and any action required in furtherance hereof and
thereof; (B) against any other action, agreement or transaction that would,
directly or indirectly, result in an Acquisition Transaction; and (C) against
any action, agreement or transaction that is intended or could reasonably be
expected (x) to facilitate a person other than the Acquiror in acquiring the
Company or (y) to impede, interfere with, delay, postpone, discourage or
materially adversely affect the consummation of the Merger.
The undersigned Shareholders may vote the Shares on all other matters.
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This proxy shall be binding upon the heirs, successors and assigns of the
undersigned (including any transferee of any of the Shares).
Any term or provision of this proxy which is invalid or unenforceable in
any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this proxy or affecting the validity or
enforceability of any of the terms or provisions of this proxy in any other
jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
This proxy shall terminate upon the Expiration Date.
Dated: May , 1999
SHAREHOLDERS:
_________________________________
Name: Xxxxxxx X. Xxxxxxx
Number of shares of Company Common Stock
owned of record as of the date of this
proxy: ______________
_________________________________
Name: Xxxxx X. Xxxxx
Number of shares of Company Common Stock
owned of record as of the date of this
proxy: ______________
_________________________________
Name: Xxxxxx X. Xxxxxxxx
Number of shares of Company Common Stock
owned of record as of the date of this
proxy: ______________
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