Exhibit 5
to
Amendment No. 5 to Schedule 13D
Metris Companies Inc.
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of August 4, 2005 (this "Agreement"),
among the holders of Series C Perpetual Convertible Preferred Stock, par value
$.01 per share (the "Company Series C Preferred Stock") listed on the signature
page(s) hereto (collectively, the "Stockholders" and, individually, the
"Stockholder") and HSBC Finance Corporation, a Delaware corporation ("Parent").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Merger Agreement referred to below.
WHEREAS, as of the date hereof, the Stockholders collectively own of
record, own beneficially, and/or otherwise have voting control over shares of
capital stock of Metris Companies Inc., a Delaware corporation (the "Company"),
as set forth on Schedule I hereto (such shares, or any other voting or equity of
securities of the Company hereafter acquired by any Stockholder prior to the
termination of this Agreement, being referred to herein collectively as the
"Shares");
WHEREAS, concurrently with the execution of this Agreement, Parent,
the Company, and HSBC Corporation I, a Delaware corporation and directly wholly
owned subsidiary of Parent ("Merger Sub") are entering into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), pursuant
to which, upon the terms and subject to the conditions thereof, Merger Sub will
be merged with and into the Company, and the Company will be the surviving
corporation (the "Merger"); and
WHEREAS, as a condition to the willingness of Parent to enter into
the Merger Agreement, Parent has required that the Stockholders agree, and in
order to induce Parent to enter into the Merger Agreement, the Stockholders are
willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree, severally and not jointly, as follows:
Voting of Shares.
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Each Stockholder covenants and agrees that until the termination of this
Agreement in accordance with the terms hereof, at the Company Stockholders
Meeting or any other meeting of the stockholders of the Company, however called,
and in any action by written consent of the stockholders of the Company, such
Stockholder will vote, or cause to be voted, all of his, her or its respective
Shares (i) in favor of adoption of the Merger Agreement and approval of the
Merger contemplated by the Merger Agreement, as the Merger Agreement may be
modified or amended from time to time in a manner not adverse to the
Stockholders, and (ii) against any Acquisition Proposal.
Each Stockholder hereby irrevocably grants to, and appoints, Parent, and any
individual designated in writing by it, and each of them individually, as its
proxy and attorney-in-fact (with full power of substitution), for and in its
name, place and stead, to vote his, her or its Shares at any meeting of the
stockholders of the Company called with respect to any of the matters specified
in, and in accordance and consistent with, this Section 1. Each Stockholder
understands and acknowledges that Parent is entering into the Merger Agreement
in reliance upon the Stockholder's execution and delivery of this Agreement.
Each Stockholder hereby affirms that the irrevocable proxy set forth in this
Section 1(b) is given in connection with the execution of the Merger Agreement,
and that such irrevocable proxy is given to secure the performance of the duties
of such Stockholder under this Agreement. Except as otherwise provided for
herein, each Stockholder hereby (i) affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked, (ii)
ratifies and confirms all that the proxies appointed hereunder may lawfully do
or cause to be done by virtue hereof and (iii) affirms that such irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law.
Notwithstanding any other provisions of this Agreement, the irrevocable proxy
granted hereunder shall automatically terminate upon the termination of this
Agreement.
Transfer of Shares. Each Stockholder covenants and agrees that such Stockholder
will not directly or indirectly (i) sell, assign, transfer (including by merger,
testamentary disposition, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law), pledge, encumber or
otherwise dispose of any of the Shares, (ii) deposit any of the Shares into a
voting trust or enter into a voting agreement or arrangement with respect to the
Shares or grant any proxy or power of attorney with respect thereto which is
inconsistent with this Agreement or (iii) enter into any contract, option or
other arrangement or undertaking with respect to the direct or indirect sale,
assignment, transfer (including by merger, testamentary disposition,
interspousal disposition pursuant to a domestic relations proceeding or
otherwise by operation of law) or other disposition of any Shares; provided,
however, that any Stockholder shall be entitled to transfer Shares by way of
gift or donation so long as the transferee agrees in writing to be bound by the
terms and conditions of this Agreement as a Stockholder.
Representations and Warranties of the Stockholders. Each Stockholder on its own
behalf hereby severally represents and warrants to Parent with respect to itself
and its, his or her ownership of the Shares as follows:
Ownership of Shares. The Stockholder beneficially owns all of the Shares as set
forth on Schedule I hereto and has good and marketable title to such Shares,
free and clear of any claims, liens, encumbrances and security interests
whatsoever. The Stockholder owns no Shares of Company Common Stock or Company
Series C Preferred Stock other than the Shares as set forth on Schedule I
hereto. The Stockholder has the power to authorize the voting of the Shares as
contemplated hereby, without restrictions, with respect to all of the Shares.
Power, Binding Agreement. The Stockholder has the legal capacity and all
requisite power and authority to enter into and perform all of its obligations,
under this Agreement. This Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
No Conflicts. The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, conflict with or
result in any violation of, or default (with or without notice or lapse of time,
or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, any
provision of any loan or credit agreement, note, bond, mortgage, indenture,
lease, or other agreement, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to the Stockholder, the Shares or any of the Stockholder's properties or assets.
Except as expressly contemplated hereby, and other than requirements that the
Stockholders dispose of their Shares in a pro rata manner, the Stockholder is
not a party to, and the Shares are not subject to or bound in any manner by, any
contract or agreement relating to the Shares, including without limitation, any
voting agreement, option agreement, purchase agreement, stockholders' agreement,
partnership agreement or voting trust. Except for informational filings with the
SEC, no consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality, domestic, foreign or
supranational, is required by or with respect to the Stockholder in connection
with the execution and delivery of this Agreement or the consummation by the
Stockholder of the transactions contemplated hereby.
Brokers or Finders. Except as contemplated by Section 3.22 of the Merger
Agreement, no agent, broker, investment banker, financial advisor or other firm
or Person retained by the Stockholder or the Company is or will be entitled to
any broker's or finder's fee or any other similar commission or fee in
connection with any of the transactions contemplated by this Agreement.
No Solicitation. Prior to the termination of this Agreement in accordance with
its terms, each Stockholder agrees, in its individual capacity as a stockholder
of the Company, that it will not, directly or indirectly, (i) initiate, solicit,
encourage or knowingly facilitate any inquiries or the making of any Acquisition
Proposal, (ii) have any discussions with or provide any confidential information
or data to any person relating to an Acquisition Proposal, or engage in any
negotiations concerning an Acquisition Proposal, or (iii) approve or recommend,
or propose to approve or recommend, or execute or enter into, any letter of
intent, agreement in principle, merger agreement, asset purchase or share
exchange agreement, option agreement or other similar agreement related to any
Acquisition Proposal.; provided that nothing herein shall prohibit any
Stockholder from engaging in any of such activities with any person with whom
the Company is entitled to engage in discussions and negotiations pursuant to
Section 6.6(b) of the Merger Agreement.
Termination. This Agreement shall terminate upon the earlier to occur of (i) the
Effective Time or (ii) any termination of the Merger Agreement in accordance
with the terms thereof; provided that no such termination shall relieve any
party of liability for a breach hereof prior to termination, and any such
termination will not affect any rights hereunder which by their terms do not
terminate or expire prior to or at such termination.
Specific Performance. The parties hereto agree that irreparable damage would
occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or in equity.
Fiduciary Duties. Each Stockholder is signing this Agreement solely in such
Stockholder's capacity as an owner of his, her or its respective Shares, and
nothing herein shall prohibit, prevent or preclude such Stockholder from taking
or not taking any action in his or her capacity as an officer or director of the
Company, to the extent permitted by the Merger Agreement.
Waiver of Appraisal Rights. Each Stockholder, severally and not jointly, hereby
irrevocably and unconditionally waives, and agrees to prevent the exercise of,
any rights of appraisal, any dissenters' rights and any similar rights relating
to the Merger that such Stockholder may directly or indirectly have by virtue of
the ownership of any Shares.
Miscellaneous.
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Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, both written and oral, between the parties
with respect thereto. This Agreement may not be amended, modified or rescinded
except by an instrument in writing signed by each of the parties hereto.
Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest extent possible.
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to the principles of
conflicts of law thereof.
Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same instrument.
Notices. All notices and other communications hereunder shall be in writing and
shall be deemed duly delivered (i) three business days after being sent by
registered or certified mail, return receipt requested, postage prepaid, or (ii)
one business day after being sent for next business day delivery, fees prepaid,
via a reputable nationwide overnight courier service, in each case to the
intended recipient as set forth below:
if to a Stockholder:
c/o Xxxxxx X. Xxx Partners, L.P.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
and
if to Parent to:
HSBC Finance Corporation
0000 Xxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X.
Attn: Xxxxxxx Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
No Third Party Beneficiaries. This Agreement is not intended, and shall not be
deemed, to confer any rights or remedies upon any person other than the parties
hereto and their respective successors and permitted assigns, to create any
agreement of employment with any person or to otherwise create any third-party
beneficiary hereto.
Further Assurances: The Stockholder will, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as Parent may reasonably request for
the purpose of effectively carrying out the transactions contemplated by this
Agreement.
Assignment. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement may be assigned or delegated, in whole or in
part, by operation of law or otherwise by any of the parties hereto without the
prior written consent of the other parties, and any such assignment without such
prior written consent shall be null and void, except that Parent may assign this
Agreement to any direct or indirect wholly owned subsidiary of Parent without
the consent of the Stockholder, provided that Parent shall remain liable for all
of its obligations under this Agreement. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the parties hereto and their respective successors and permitted assigns.
Interpretation. When reference is made in this Agreement to a Section, such
reference shall be to a Section of this Agreement, unless otherwise indicated.
The headings contained in this Agreement are for convenience of reference only
and shall not affect in any way the meaning or interpretation of this Agreement.
The language used in this Agreement shall be deemed to be the language chosen by
the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party. Whenever the context may
require, any pronouns used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns and pronouns
shall include the plural, and vice versa. Any reference to any federal, state,
local or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." No summary of this Agreement prepared by the parties shall affect
in any way the meaning or interpretation of this Agreement.
Submission to Jurisdiction. Each of the parties to this Agreement (i) consents
to submit itself to the personal jurisdiction of any state or federal court
sitting in the State of Delaware in any action or proceeding arising out of or
relating to this Agreement or any of the transactions contemplated by this
Agreement, (ii) agrees that all claims in respect of such action or proceeding
may be heard and determined in any such court, (iii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court and (iv) agrees not to bring any action or
proceeding arising out of or relating to this Agreement or any of the
transactions contemplated by this Agreement in any other court. Each of the
parties hereto waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety or other
security that might be required of any other party with respect thereto. Any
party hereto may make service on another party by sending or delivering a copy
of the process to the party to be served at the address and in the manner
provided for the giving of notices in Section 9(e). Nothing in this Section,
however, shall affect the right of any party to serve legal process in any other
manner permitted by law.
WAIVER OF JURY TRIAL. EACH OF PARENT AND EACH STOCKHOLDER HEREBY IRREVOCABLY
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF PARENT
OR EACH STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT OF THIS AGREEMENT.
[Signature Page to follow]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed individually or by its respective duly authorized officer
as of the date first written above.
HSBC FINANCE CORPORATION
By: /s/ Siddharth X. Xxxxx
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Name: Siddharth X. Xxxxx
Title: Chairman and Chief Executive Officer
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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Xxxxxx X. Xxx Equity Fund IV, L.P.
By: THL Equity Advisors IV, LLC, its
general partner
By: Xxxxxx X. Xxx Partners, L.P., its
manager
By: Xxxxxx X. Xxx Advisors, LLC, its
general partner
By: /s/ X. Xxxxxx Xxxx
---------------------------------
Name: X. Xxxxxx Xxxx
Title: Managing Director
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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Xxxxxx X. Xxx Foreign Fund IV, L.P.
By: THL Equity Advisors IV, LLC, its
general partner
By: Xxxxxx X. Xxx Partners, L.P., its
manager
By: Xxxxxx X. Xxx Advisors, LLC, its
general partner
By: /s/ X. Xxxxxx Xxxx
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Name: X. Xxxxxx Xxxx
Title: Managing Director
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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Xxxxxx X. Xxx Foreign Fund IV-B, L.P.
By: THL Equity Advisors IV, LLC, its
general partner
By: Xxxxxx X. Xxx Partners, L.P., its
manager
By: Xxxxxx X. Xxx Advisors, LLC, its
general partner
By: /s/ X. Xxxxxx Xxxx
-----------------------------------
Name: X. Xxxxxx Xxxx
Title: Managing Director
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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Xxxxxx X. Xxx Investors Limited Partnership
By: THL Investment Management Corp., its
general partner
By: /s/ X. Xxxxxx Xxxx
-----------------------------------------
Name: X. Xxxxxx Xxxx
Title: Managing Director
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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Xxxxxx X. Xxx Charitable Investment L.P.
By: /s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
Title: General Partner
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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1997 XXXXXX X. XXX NOMINEE TRUST
By: U.S. BANK, N.A., not individually but
solely as trustee under a Trust
Agreement dated as of August 18, 1997,
and known as the 1997 Xxxxxx X. Xxx
Nominee Trust
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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THE 1995 HARKINS GIFT TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ X. Xxxxxx Xxxx
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X. Xxxxxx Xxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxxxx X. XxXxxx
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Xxxxxxx X. XxXxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxxx X. Xxxxx, Xx.
----------------------------------
Xxxxxx X. Xxxxx, Xx.
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxxx X. Xxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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XXXXXX XXXXXX XXX
1988 IRREVOCABLE TRUST
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, not individually but
solely as Trustee
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxxxx Xxxxxxx Xxx
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Xxxxxxx Xxxxxxx Xxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx as
Trustee for Xxxxx Xxxxxx Xxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
STOCKHOLDER AGREEMENT
Counterpart Signature Page
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/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Schedule I (1)
Stockholder Number of Shares of Number of Shares of
----------- ------------------- -------------------
Company Common Stock Company Series C Preferred Stock
-------------------- --------------------------------
Xxxxxx X. Xxx Equity Fund IV, LP 1,169,420.22
Xxxxxx X. Xxx Foreign Fund IV, LP 40,441.18
Xxxxxx X. Xxx Foreign Fund IV-B, LP 113,836.58
Xxxxxx X. Xxx Investors Limited 340.61
Partnership
Xxxxxx X. Xxx Charitable Investment 7,608.69
L.P.
1997 Xxxxxx X. Xxx Nominee Trust 17,887.67
Xxxxx X. Xxxxxxx 4,114.69
The 1995 Harkins Gift Trust 458.98
Xxxxx X. Xxxxxx 3,429.91
X. Xxxxxx Xxxx 3,429.91
Xxxxx X. Xxxxxxxx 3,429.91
Xxxxxxx X. XxXxxx 3,429.91
Xxxxxx X. Xxxxxxx 3,429.91
Xxxxxx X. Xxxxx, Xx. 3,429.91
Xxxx X. Xxxxx 1,432.51
Xxxx X. Xxxxxx 954.00
Xxxxxxx X. Xxxxxx 760.89
Xxxx X. Xxxxxxxx 760.89
Xxxxxxx X. Xxxxxxx 569.51
Xxxxx Xxxxxxx 217.71
Xxxxx Xxxxx 217.71
Xxxxxx X. Xxxxxxxx 401.12
Xxxxx X. Xxxxxx 87.66
Xxxxxx X. Xxxxxxx 87.66
Xxxxxxxx X. Xxxxx 57.86
Xxxxxx Xxxxxx Xxx 1998 Irrevocable 344.99
Trust
Xxxxxxx Xxxxxxx Xxx 344.99
Xxxxxxx X. Xxxxxx as Trustee for 226.37
Xxxxx Xxxxxx Xxx
Xxxxxxx X. Xxxxxx 87.66
Xxxxx Xxxxxx 87.66
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(1) Shareholdings as of December 31, 2004. Shares owned by the Stockholders
include all shares of Company Series C Preferred paid as dividends thereon
after such date.
