Exhibit 2
CONFORMED COPY
STOCKHOLDER AGREEMENT, dated as of February 13, 1996,
among CONOPCO, INC., a New York corporation ("Parent"),
CONOPCO ACQUISITION COMPANY, INC., a Delaware corporation
and a wholly owned subsidiary of Parent ("Sub"), and the
individual and partnerships listed on Schedule A hereto
(each a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS, Parent, Sub and Xxxxxx Xxxxxx Industries, Inc., a
Delaware corporation (the "Company"), propose to enter into an Agreement
and Plan of Merger of even date herewith (as the same may be amended or
supplemented, the "Merger Agreement") providing for the making of a cash
tender offer (as such offer may be amended from time to time, the "Offer")
by Sub for any and all shares of Common Stock, par value $.50 per share, of
the Company (the "Common Stock") and the merger of the Company and Sub (the
"Merger"); and
WHEREAS, each Stockholder owns the number of shares of Class B
Common Stock, par value $.50 per share, of the Company (the "Class B Common
Stock") set forth opposite his or its name on Schedule A hereto; such
shares of Class B Common Stock, as such shares may be adjusted by
conversion into shares of Common Stock or by any stock dividend, stock
split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by the
Company, other than the payment of regular cash dividends consistent with
past practice (each, an "Adjustment Event"), being referred to herein as
the "Subject Shares"; and
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Sub have requested that the Stockholders enter
into this Agreement;
NOW, THEREFORE, to induce Parent and Sub to enter into, and in
consideration of their entering into, the Merger Agreement, and in
consideration of the premises and
the representations, warranties and agreements contained herein, the
parties agree as follows:
1. Purchase of Subject Shares.
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(a) Each Stockholder hereby grants Sub an irrevocable option
(the "Option") to purchase all of the Subject Shares owned by him or
it for a purchase price per share equal to $70.00 (as such amount may
be adjusted to appropriately reflect any Adjustment Events, the
"Original Offer Price"). The Option may be exercised in whole (but
not in part) at any time after the date hereof and on or prior to the
first anniversary of the date hereof (such first anniversary, the
"Option Expiration Date") in the event that (i) a Specified Event (as
defined in Section 1(b) below) shall have occurred on or prior to the
Option Expiration Date and (ii) the waiting period under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx")
with respect to the exercise of the Option shall have expired or been
terminated.
(b) The term "Specified Event" shall mean (i) Parent or Sub
shall have terminated the Merger Agreement under Section 9.01(d)
thereof, (ii) the Company shall have terminated the Merger Agreement
under Section 9.01(e) thereof, (iii) prior to termination of the
Merger Agreement (other than by the Company pursuant to
Section 9.01(f) or 9.01(g)), a Takeover Proposal (as defined in the
Merger Agreement) shall have been commenced or the Company shall have
entered into an agreement with respect to, approved or recommended or
taken any action to facilitate, a Takeover Proposal or (iv) Sub shall
have accepted for payment, and paid for, shares of Common Stock in the
Offer.
(c) In the event that Sub wishes to exercise the Option, Sub may do
so by giving written notice (the date of such notice being herein called
the "Notice Date") to each of the Stockholders specifying that all the
Subject Shares are to be purchased and specifying the place, time and
date (not earlier than two trading days, nor later than 10 trading days,
from the Notice
Date) for the closing of the purchase by Sub pursuant to such
exercise. In the event that any share of Common Stock is accepted for
payment, and paid for, by Sub pursuant to the Offer, Sub shall be
obligated to exercise the Option no later than two trading days
following the date of such payment and close the purchase of and pay
for such Subject Shares within two trading days following the date of
such exercise. A "trading day" shall mean any date on which the New
York Stock Exchange shall be open for business.
2. Payments to Parent or Stockholders.
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(a) In the event that a Specified Event shall have occurred and
during the period from the first anniversary of the date hereof to and
including the second anniversary of the date hereof, the Stockholder
sells, transfers, assigns or otherwise disposes of (including by
conversion or exchange in a merger, exchange offer or the like) any of
the Subject Shares for value in a bona fide arm's length transaction,
the Stockholder shall pay to Parent an amount in cash equal to the
product of (i) the number of Subject Shares disposed of by the
Stockholder and (ii) 50% of the excess, if any, of (A) the per share
cash consideration or the per share fair market value of any non-cash
consideration, as the case may be, received by the Stockholder as a
result of such disposition less (B) the Original Offer Price;
provided, however, that no such payment shall be required to be made
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in the event the Company shall have terminated the Merger Agreement
pursuant to Section 9.01(f) or 9.01(g) thereof or Parent or Sub shall
be in material breach of this Agreement (and such breach shall not
have been cured within 10 days following receipt by Parent or Sub of
written notice of such breach).
(b) In the event that Sub shall have exercised the Option
pursuant to Section 1 with respect to the Subject Shares and, on or
prior to the second anniversary of the date hereof, Sub shall sell,
transfer, assign or otherwise dispose of (including by conversion or
exchange in a merger, exchange offer or the like) any of such Subject
Shares for value in a
bona fide arm's length transaction, Sub shall pay to the Stockholder
an amount in cash equal to the product of (i) the number of such
Subject Shares disposed of by Sub and (ii) 50% of the excess, if any,
of (A) the per share cash consideration or the per share fair market
value of any non-cash consideration, as the case may be, received by
Sub as a result of such disposition less (B) the Original Offer Price;
provided, however, that no such payment shall be required to be made
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to any Stockholder in the event such Stockholder shall be in material
breach of this Agreement (and such breach shall not have been cured
within 10 days following receipt by such Stockholder of written notice
of such breach).
(c) For purposes of Section 2 of this Agreement, the fair market
value of any non-cash consideration consisting of:
(i) securities listed on a national securities exchange or
traded on the NASDAQ/NMS shall be equal to the average
closing price per share of such security as reported on
such exchange or NASDAQ/NMS for the five trading days
after the date of disposition; and
(ii) consideration which is other than cash or securities of
the form specified in clause (i) of this Section 2(c)
shall be determined by a nationally recognized
independent investment banking firm mutually agreed
upon by the parties within 10 business days of the
selection of such banking firm; provided, however, that
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if the parties are unable to agree within two business
days after the date of disposition as to the investment
banking firm, then the parties shall draw lots to
select the investment banking firm from among the
following three firms: Xxxxxxx Xxxxx & Co., CS First
Boston Corporation and Salomon Brothers Inc; provided
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further, that the
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fees and expenses of such investment banking firm shall
be borne equally by Parent and the Stockholder. The
determination of the investment banking firm shall be
binding upon the parties.
(d) Any payment required to be made pursuant to Section 2 of
this Agreement shall be made two trading days after the later of
(i) the fifth trading day after settlement of any disposition or
(ii) the date on which the investment banking firm delivers to the
parties its determination of the per share value of any non-cash
consideration received by the Stockholder or Sub, as the case may be,
pursuant to any disposition. In the event that Sub or any Stockholder
shall sell, transfer, assign or otherwise dispose of any Subject
Shares, other than for value in a bona fide arm's length transaction,
the obligation of Sub or such Stockholder, as the case may be, to make
payments pursuant to this Section 2 shall continue until and apply to
any subsequent disposition of such Subject Shares in a bona fide arm's
length transaction for value.
3. Representations and Warranties of the Stockholder. Each
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Stockholder hereby, severally and not jointly, represents and warrants to
Parent in respect of himself or itself as follows:
(a) Authority. The Stockholder has all requisite power and
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authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Stockholder and constitutes
a valid and binding obligation of the Stockholder enforceable in
accordance with its terms. The execution and delivery of this
Agreement does not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of, or default (with or
without notice or lapse of time or both) under any provision of, any
trust agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree,
statute, law, ordinance, rule or regulation applicable to the
Stockholder or to the Stockholder's property or assets. Except for
the expiration or termination of the waiting period under the HSR Act
and 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.
(b) The Subject Shares. The Stockholder has good and marketable
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title to the Subject Shares, free and clear of any claims, liens,
encumbrances and security interests whatsoever. The Stockholder owns
no shares of Class B Common Stock other than the Subject Shares.
4. Representations and Warranties of Parent and Sub.
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(a) Parent and Sub hereby represent and warrant to the Stockholder that
each of Parent and Sub has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Parent and Sub,
and the consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action on the part of Parent and
Sub. This Agreement has been duly executed and delivered by Parent and Sub
and constitutes a valid and binding obligation of Parent and Sub
enforceable in accordance with its terms.
(b) Securities Act. The Subject Shares will be acquired in
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compliance with, and Sub will not offer to sell or otherwise dispose of any
Subject Shares so acquired by it in violation of any of, the registration
requirements of the Securities Act of 1933, as amended.
(c) Financing. Sub has, or will have at the time that any
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payment is required to be made to any Stockholder hereunder, the funds
necessary to make such payment to such Stockholder.
5. Covenants of the Stockholder. Up to and including the
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Option Expiration Date, each Stockholder, severally and not jointly, agrees
as follows:
(a) At any meeting of stockholders of the Company called to vote
upon the Merger and the Merger Agreement or at any adjournment thereof
or in any other circumstances upon which a vote, consent or other
approval with respect to the Merger and the Merger Agreement is
sought, the Stockholder shall vote (or cause to be voted) the Subject
Shares in favor of the Merger, the adoption by the Company of the
Merger Agreement and the approval of the terms thereof and each of the
other transactions contemplated by the Merger Agreement, provided that
the terms of the Merger Agreement shall not have been amended to
adversely affect the Stockholder.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares
against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Company or any other Takeover
Proposal or (ii) any amendment of the Company's certificate of
incorporation or by-laws or other proposal or transaction involving
the Company or any of its subsidiaries, which amendment or other
proposal or transaction would in any manner impede, frustrate, prevent
or nullify the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) other than by operation of
law, sell, transfer, pledge, assign or otherwise dispose of, or enter
into any contract, option or other arrangement (including any profit
sharing arrangement) with respect to the sale, transfer, pledge,
assignment or other disposition of, the Subject Shares to any person
other than Sub or
Sub's designee, (ii) enter into any voting arrangement, whether by
proxy, voting agreement or otherwise, in connection, directly or
indirectly, with any Takeover Proposal or (iii) convert the Subject
Shares into Common Stock (except as required to effect the transaction
contemplated by Section 1 of this Agreement).
(d) Until the Merger is consummated or the Merger Agreement is
terminated, the Stockholder shall not, nor shall it permit any
investment banker, attorney or other adviser or representative of the
Stockholder to, (i) directly or indirectly solicit, initiate or
encourage the submission of, any Takeover Proposal or (ii) directly or
indirectly participate in any discussions or negotiations regarding,
or furnish to any person any information with respect to, or take any
other action to facilitate any inquiries or the making of any proposal
that constitutes, or may reasonably be expected to lead to, any
Takeover Proposal.
6. Further Assurances. Each Stockholder will, from time to
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time, execute and deliver, or cause to be executed and delivered, such
additional or further transfers, assignments, endorsements, consents and
other instruments as Parent or Sub may reasonably request for the purpose
of effectively carrying out the transactions contemplated by this
Agreement.
7. Assignment. Neither this Agreement nor any of the rights,
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interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Sub may
assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to Parent or to any direct or indirect wholly owned
subsidiary of Parent. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the
parties and their respective successors and assigns.
8. Termination. Except as provided otherwise herein, this
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Agreement shall terminate upon the earlier of (i) the close of business on
the second anniversary of the date hereof and (ii) the disposition by each
Stockholder of
all the Subject Shares in one or more bona fide arm's length transactions
for value; provided, however, that to the extent any Stockholder or Sub, as
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the case may be, shall be required to make payment to the other pursuant to
Section 2, this Agreement shall not terminate until all such payments shall
have been made.
9. General Provisions.
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(a) Payments. All payments required to be made to any party to
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this Agreement shall be made by wire transfer of immediately available
funds to an account designated by such party within one trading day
prior to such payment.
(b) Specific Performance. The parties hereto acknowledge that
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damages would be an inadequate remedy for any breach of the provisions
of this Agreement and agree that the obligations of the parties
hereunder shall be specifically enforceable.
(c) Expenses. Except as set forth in Section 1 of this
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Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense.
(d) Amendments. This Agreement may not be amended except by an
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instrument in writing signed by each of the parties hereto.
(e) Notice. All notices and other communications hereunder
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shall be in writing and shall be deemed given if delivered personally
or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
(i) if to Parent, to
Conopco, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx, Esq., and
(ii) if to a Stockholder, to the address set forth under the name
of such Stockholder on Schedule A hereto
with a copy to:
Winston & Xxxxxx
00 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
(e) Interpretation. When a reference is made in this Agreement
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to Sections, such reference shall be to a Section to this Agreement
unless otherwise indicated. 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. Wherever the words
"include", "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation".
(f) Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of the
counterparties have been signed by each of the parties and delivered
to the other party, it being understood that each party need not sign
the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This
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Agreement (including the documents and instruments referred to herein)
(i) constitutes the
entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect
to the subject matter hereof and (ii) is not intended to confer upon
any person other than the parties hereto any rights or remedies
hereunder.
(h) Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Delaware without
regard to any applicable conflicts of law.
10. Stockholder Capacity. No person executing this Agreement
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who is or becomes during the term hereof a director or officer of the
Company makes any agreement or understanding herein in his or her capacity
as such director or officer. Each Stockholder signs solely in his or her
capacity as the record holder and beneficial owner of, or the trustee of a
trust whose beneficiaries are the beneficial owners of, such Stockholder's
Subject Shares and nothing herein shall limit or affect any actions taken
by a Stockholder in its capacity as an officer or director of the Company
to the extent specifically permitted by the Merger Agreement.
11. Performance by Sub. Parent covenants and agrees for the
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benefit of the Stockholders that it shall cause Sub to perform in full each
obligation of Sub set forth in this Agreement.
12. Enforcement. The parties agree that irreparable damage
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would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any
court of the United States located in the State of Delaware or in a
Delaware state court, this being in addition to any other remedy to which
they are entitled at law or in equity. In addition, each of the parties
hereto (i) consents to submit such party to the personal jurisdiction of
any Federal court located in the State of Delaware or any Delaware state
court
in the event any dispute arises out of this Agreement or any of the
transactions contemplated hereby, (ii) agrees that such party will not
attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that such party will
not bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
state of Delaware or a Delaware state court and (iv) waives any right to
trial by jury with respect to any claim or proceeding related to or arising
out of this Agreement or any of the transactions contemplated hereby.
IN WITNESS WHEREOF, each of Parent and Sub has caused this
Agreement to be signed by its officer thereunto duly authorized and each
Stockholder has signed this Agreement or has caused this Agreement to be
signed by its managing general partners, all as of the date first written
above.
CONOPCO, INC.
By: /s/ Mart Laius
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Name: Mart Laius
Title: Vice President
CONOPCO ACQUISITION COMPANY, INC.
By: /s/Mart Laius
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Name: Mart Laius
Title: President
/s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
GIDWITZ FAMILY PARTNERSHIP
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Managing General
Partner
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Managing General
Partner
By: /s/Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Managing General
Partner
By: /s/Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Managing General
Partner
By: /s/Xxxxx X. Xxxxxxx
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Name: Xx. Xxxxx X. Xxxxxxx
Title: Managing General
Partner
HCI PARTNERSHIP
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Managing General
Partner
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Managing General
Partner
By: /s/Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Managing General
Partner
By: /s/Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Managing General
Partner
By: /s/Xxxxx X. Xxxxxxx
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Name: Xx. Xxxxx X. Xxxxxxx
Title: Managing General
Partner
SCHEDULE A
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Number of
Class B Shares
Owned of Record
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Xxxxxx X. Xxxxxxx 120,000
c/o Xxxxxx Xxxxxx Industries, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
HCI Partnership 569,909
c/o Xxxxxx Xxxxxx Industries, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Gidwitz Family Partnership 2,084,197
c/o Xxxxxx Xxxxxx Industries, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
