OPTION AND SUPPORT AGREEMENT
Exhibit
99.3
This
OPTION AND SUPPORT AGREEMENT (this “Agreement”),
is
dated as of March 5, 2007 by and between Rocket Software, Inc., a Delaware
corporation (“Parent”),
and
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ (“Stockholder”).
WITNESSETH:
WHEREAS,
concurrently with the execution and delivery of this Agreement, Parent, CorVu
Corporation, a Minnesota corporation (the “Company”),
and
Rocket Software Minnesota, Inc., a Minnesota corporation and a wholly owned
subsidiary of Parent (“Newco”),
are
entering into an Agreement and Plan of Merger (as the same may be modified
or
amended from time to time, the “Merger
Agreement”),
providing for, among other things, the Merger and the other transactions
contemplated thereby, on the terms and subject to the conditions set forth
therein (capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in the Merger Agreement);
WHEREAS,
as of the date hereof, Stockholder beneficially and of record owns the type
and
number of shares of voting stock of the Company as are set forth on Attachment
A
hereto
(the “Owned
Shares”);
WHEREAS,
as a condition to Parent’s willingness to enter into and perform its obligations
under the Merger Agreement, Parent has required that Stockholder agree, and
Stockholder desires to agree (i) to vote, or cause to be voted, in person
or by proxy at least 1,398,952 of the Owned Shares or such greater or lesser
number of shares as represents 2.75% of the Common Stock outstanding (such
number of the Owned Shares, the “Voting
Shares”),
in
favor of (a) adoption of the Merger Agreement, (b) approval of the
Merger and the other transactions contemplated thereby and (c) any other
matter that is required by applicable Law or by any governmental authority
(as
defined in the Merger Agreement) to be approved by stockholders of the Company
to consummate the Merger and the other transactions contemplated by the Merger
Agreement, and against any Competing Transaction; (ii) to grant Parent a
proxy
to vote the Voting Shares on behalf and in the name of Stockholder; (iii)
to
grant Parent the right to purchase from Stockholder all or any portion of
the
Voting Shares in accordance with the terms and conditions set forth herein;
and
(iv) to take the other actions, or to refrain from taking certain enumerated
actions, as further described herein; and
WHEREAS,
Stockholder desires to express her support for the Merger and the other
transactions contemplated by the Merger Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises and for other good
and
valuable consideration, the receipt of which is hereby acknowledged, the
parties
hereto hereby agree as follows:
1. Agreement
to Vote; Non-Solicit; Irrevocable Proxy.
1.1 Agreement
to Vote.
Subject
to Section 1.4 below, Stockholder hereby agrees that, during the time this
Agreement is in effect, at any meeting of the stockholders of the Company,
however called, or any adjournment or postponement thereof, and in response
to
any request for any written consent of the stockholders of the Company
Stockholder shall be present (in person or by proxy) and vote (or cause to
be
voted) all of her Voting Shares (a) in favor of (i) adoption of the Merger
Agreement, (ii) approval of the Merger and the other transactions contemplated
thereby, and (ii) approval of any other matter that is required by
applicable Law or a governmental authority (as defined in the Merger Agreement)
to be approved by the stockholders of the Company to consummate the Merger
and
the transactions contemplated by the Merger Agreement; and (b) against (i)
any Competing Transaction, (ii) any liquidation or winding up of the Company,
(iii) any extraordinary dividend by the Company, (iv) any change in the capital
structure of the Company (other than any change in capital structure resulting
from the Merger) and (v) any other action that could reasonably be expected
to
(A) impede, interfere with, delay, postpone or attempt to discourage or have
the
effect of discouraging the consummation of the Merger and the other transactions
contemplated by the Merger Agreement, (B) constitute or result in a breach
of
any of the representations, warranties covenants, or other obligations or
agreements of the Company under the Merger Agreement that would reasonably
be
expected to have a material adverse effect on the Company or its business
or (C)
impair or adversely affect the respective abilities of the Company, Parent
and
Newco to consummate the Merger and the other transactions contemplated by
the
Merger Agreement.
1.2 Non-Solicit.
Subject
to Section 1.4 below, Stockholder hereby agrees that, during the time this
Agreement is in effect and except as otherwise expressly permitted by the
Merger
Agreement, neither he nor any of her affiliates or representatives shall,
directly or indirectly, (a)
initiate, solicit or knowingly encourage or facilitate any inquiries with
respect to, or the making of, a Competing Transaction, (b) engage in any
negotiations concerning, or provide any confidential information or data
to, or
have any discussions with, any Person relating to a Competing Transaction,
(c)
approve or recommend or propose publicly to approve or recommend, any Competing
Transaction or (d) approve or recommend, or propose publicly to approve or
recommend, or execute or enter into, any letter of intent, agreement in
principle, merger agreement, acquisition agreement, option agreement or other
similar agreement relating to any Competing Transaction or propose publicly
or
agree to do any of the foregoing relating to any Competing
Transaction.
1.3 Irrevocable
Proxy.
Solely
with respect to the matters described in Section 1.1, and subject to
Section 1.4 below, if Stockholder has not taken a Qualifying Action (as
defined below) on or prior to the fifth business day prior to the Shareholders
Meeting (including any adjournments or postponements thereof) or any other
meeting, date or event upon which stockholders of the Company will be asked
to
vote with respect to the matters described in Section 1.1 (such meeting,
date or
event, the “Voting
Event”),
Stockholder hereby irrevocably appoints Parent as its proxy with full power
of
substitution (which proxy is irrevocable and which appointment is coupled
with
an interest, including for purposes of all applicable provisions of the
Minnesota Business Corporation Act) to vote in its discretion all Voting
Shares
owned by Stockholder beneficially and of record solely on the matters described
in Section 1.1 effective from and after such third business day prior to
the
Voting Event and until the six months after the date of the applicable Voting
Event. Stockholder agrees to execute any further agreement or form reasonably
necessary or appropriate to confirm and effectuate the grant of the proxy
contained herein. “Qualifying
Action”
means
either (a) the delivery by each Stockholder to Parent of a copy of such
Stockholder’s duly executed and valid proxy (and any amendment of such proxy)
with respect to the Shareholders Meeting or other Voting Event, provided
the
votes reflected in such proxy or amendment thereof are consistent with
Stockholder’s voting obligations under this Agreement with respect to the
matter(s) in question or (b) the delivery by Stockholder to Parent of a written
certificate signed by Stockholder certifying that Stockholder shall attend
the
Shareholders Meeting or other Voting Event in person (if a meeting of
stockholders) and vote her Voting Shares in accordance with Section 1.1 hereof,
provided
that in
the event that a Qualifying Action is subsequently rescinded, revoked or
modified in any manner inconsistent with the requirements of Section 1.1,
or if
Stockholder does not attend and vote as required hereunder at any Voting
Event,
Stockholder shall be deemed to have affirmed as of the time of the Voting
Event
the proxy with respect to the Voting Shares granted in this Section
(notwithstanding any other action take since the date hereof) and Parent
(or its
designee) shall be entitled to the proxy and vote the Voting Shares in its
discretion at or in connection with the applicable Voting Event.
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1.4 Termination
of Voting and Non-Solicitation Covenants
and
Proxy.
Notwithstanding the foregoing provisions, the voting and non-solicitation
covenants and obligations of Stockholder set forth in Sections 1.1 and 1.2,
and the proxy granted to Parent with respect to the Voting Shares in
Section 1.3, automatically shall terminate and be of no further force or
effect from and after any termination of the Merger Agreement pursuant to
the
terms thereof as a result of which Parent is entitled to receive and is paid
the
Termination Fee (as defined and provided in Section 8.5 of the Merger
Agreement); provided,
however,
that
any such termination of such voting and non-solicitation obligations or the
proxy with respect to the Voting Shares shall in no way affect or impair
Parent’s independent rights to purchase the Voting Shares (or an equivalent
number of shares of Owned Shares of Stockholder) as provided in Section 2
below.
2. Right
to Purchase Voting Shares
2.1 Right
to Purchase Shares.
Stockholder hereby grants to Parent the right and option to purchase (the
“Option”)
all or
any portion of the Voting Shares (or an equivalent number of shares of Owned
Shares of Stockholder), in the event that there shall occur a Designated
Event
(as defined below). Parent may exercise the Option by notifying Stockholder
within nine months following any Designated Event, in accordance with Section
2.2 hereof, of Parent’s intent to exercise the Option in whole or in part (the
“Option
Notice”).
The
Option Notice, shall specify the number of Voting Shares (or an equivalent
number of shares of Owned Shares of Stockholder) Parent desires to purchase
from
Stockholder, and the date by which the closing of Stockholder’s sale and
Parent’s purchase of such number of Voting Shares shall occur, which shall be no
later than five business days after delivery of the Option Notice. Parent
may
deliver only one Option Notice and shall include in such Option Notice the
total
number of Voting Shares (or an equivalent number of shares of Owned Shares
of
Stockholder) Parent desires to purchase from Stockholder. A “Designated
Event”
shall
be deemed to have occurred upon any of the following: (a) Stockholder breaches
or fails to observe or perform any agreement or obligation set forth in this
Agreement; (b) the Board of Directors or the Special Committee withdraws or
modifies or changes its respective recommendation to the stockholders of
the
Company that such stockholders adopt and approve the Merger Agreement or
the
Merger, (c) the Board of Directors or the Special Committee approves or
recommends a Competing Transaction or (d) the Company shall breach its
obligations to duly call and hold the Shareholders Meeting pursuant to
Section 6.4 of the Merger Agreement or the Company Shareholder Approval
shall not have been received at the Shareholders Meeting duly called and
held at
which a quorum was present or any adjournment or postponement
thereof.
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2.2 Purchase
Price.
The
purchase price payable by Parent to purchase shares pursuant to the Option
(the
“Purchased
Shares”)
shall
be $0.40 per share (the “Per
Share Price,”
and
the total amount payable for all Purchased Shares so purchased, the
“Purchase
Price”).
At
the closing of the purchase and sale of the Purchased Shares, Parent shall
pay
Stockholder the aggregate Purchase Price by wire transfer of immediately
available funds to an account designated by Stockholder (or in such other
manner
as Stockholder shall instruct Parent) against delivery by Stockholder to
Parent
of all original stock certificate(s) evidencing the Purchased Shares, duly
endorsed or with duly executed stock powers. The Per Share Price shall be
appropriately adjusted for any stock splits, stock dividends, recapitalizations,
reclassifications, or any similar events affecting the number of outstanding
shares of capital stock of the Company.
3. Representations
and Warranties of Stockholders.
Stockholder hereby represents and warrants to Parent as follows:
3.1 Power;
Due Authorization; Binding Agreement.
Stockholder has full power and authority to execute and deliver this Agreement,
to perform her obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Stockholder and constitutes a valid and binding agreement of
Stockholder, enforceable against Stockholder in accordance with its terms,
except that enforceability may be subject to the effect of any applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting or relating to the enforcement of creditors rights generally and
to
general principles of equity.
3.2 Ownership
of Shares.
The
Owned Shares set forth opposite Stockholder’s name on Attachment
A
hereto
are owned of record and beneficially by Stockholder in the manner reflected
thereon and include all of the Voting Shares owned of record or beneficially
by
Stockholder. All Owned Shares are held free and clear of any Liens and no
proxy
has been granted with respect thereto (other than pursuant to this Agreement)
and will be held free and clear of any Liens and the Voting Shares will not
be
subject to any proxies (other than pursuant to this Agreement) as of the
date of
the Shareholders Meeting or any other applicable Voting Event. As of the
date
hereof, Stockholder has, and as of the date of the Shareholders Meeting or
other
Voting Event, Stockholder will have (except as otherwise permitted or required
by this Agreement), sole voting power and sole dispositive power with respect
to
all of the Owned Shares.
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3.3 No
Conflicts.
The
execution and delivery of this Agreement by Stockholder does not, and the
performance of the terms of this Agreement by Stockholder will not, (a) require
Stockholder to obtain the consent or approval of, or make any filing with
or
notification to, any Governmental Authority, (b) require the consent or approval
of any other person pursuant to any agreement, obligation or instrument binding
on Stockholder or her properties and assets, (c) conflict with or violate
any organizational document or any Law applicable to Stockholder or pursuant
to
which any of her properties or assets are bound or (d) violate any other
agreement to which Stockholder or any of her affiliates is a party including
any
voting agreement, stockholders agreement, irrevocable proxy or voting trust,
except for any consent, approval, filing or notification which has been obtained
as of the date hereof or the failure of which to obtain, make or give would
not,
or any conflict or violation which would not, impair in any material respect
Stockholder’s ability to perform her obligations under this Agreement or in any
event impair Stockholder’s ability to perform her obligations under Section 1.1
hereof.
Except for this Agreement, the Voting Shares are not, with respect to the
voting
or transfer thereof, subject to any other agreement or third party rights,
including any voting agreement, stockholders agreement, irrevocable proxy
or
voting trust.
3.4.
Acknowledgment.
Stockholder understands and acknowledges that each of Parent and Newco is
entering into the Merger Agreement in reliance upon such Stockholder’s
execution, delivery and performance of this Agreement.
4. Certain
Covenants of Stockholder.
Stockholder hereby covenants and agrees with Parent as follows:
4.1 Restriction
on Transfer, Proxies and Non-Interference.
Stockholder hereby agrees, while this Agreement is in effect, not to
(a) sell, transfer, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding other
than
this Agreement with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, or limitation on the voting rights of,
any
of the Voting Shares, (b) grant any proxies or powers of attorney, deposit
any
Voting Shares into a voting trust or enter into a voting agreement with respect
to any Voting Shares (or attempt or purport to revoke or supersede the proxy
granted to Parent hereunder), (c) take any action that reasonably could
cause any representation or warranty of Stockholder contained herein to become
untrue or incorrect or have the effect of preventing or disabling Stockholder
from performing her covenants or other obligations under this Agreement or
(d) commit or agree to take any of the foregoing actions. Any transfer of
any Voting Shares in violation of this provision shall be null and void.
If any
involuntary transfer of any of the Voting Shares shall occur (including a
sale
by Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any
creditor’s or court sale), the transferee (which term, as used herein, shall
include any and all transferees and subsequent transferees of the initial
transferee) shall take and hold such Voting Shares subject to all of the
restrictions, liabilities and rights under this Agreement, which shall continue
in full force and effect until the earlier of (i) the date on which such
restrictions, liabilities and rights terminate pursuant to this Agreement
and
(ii) a valid termination of this Agreement.
-5-
4.2 No
Limitations on Actions.
Stockholder signs this Agreement solely in her capacity as the record and/or
beneficial owner, as applicable, of the Voting Shares; this Agreement shall
not
limit or otherwise affect the actions of Stockholder or any affiliate, employee
or designee of such Stockholder or any of her affiliates with respect to
any of
the other Owned Shares or in any other capacity, including such person’s
capacity, if any, as an officer of the Company or a member of the board of
directors of the Company; and nothing herein shall limit or affect the Company’s
rights available at law or in equity in connection with the Merger
Agreement.
4.3 Further
Assurances.
From
time to time, at the request of Parent and without further consideration,
Stockholder shall execute and deliver such additional documents and instruments
and take all such further action as may be reasonably requested by Parent
to
effectuate or evidence the purpose and intent of this Agreement.
4.4 Stop
Transfer Order; Legend.
In
furtherance of this Agreement, and concurrently herewith, Stockholder shall
and
hereby does authorize the Company or the Company’s counsel, and the Company
hereby does covenant and agree, to notify the Company’s transfer agent that
there is a stop transfer order with respect to all of the Voting Shares.
Stockholder and/or the Company shall cause to be provided to Parent evidence
of
such stop transfer order as promptly as reasonably practicable after the
date
hereof.
5. Miscellaneous.
5.1 Entire
Agreement; Assignment.
This
Agreement constitutes the entire agreement among the parties with respect
to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to
the
subject matter hereof. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement. This Agreement
shall not be assigned by operation of law or otherwise and shall be binding
upon
and inure solely to the benefit of each party hereto; provided,
however,
that
Parent shall be permitted to assign this Agreement and any of its rights,
interests or obligations under this Agreement to an affiliate of Parent to
whom
the Merger Agreement shall have been assigned pursuant to the proviso of
Section
8.9 of the Merger Agreement (it being understood and agreed by each of the
parties hereto that such assignment shall not be deemed to be a breach by
Parent
of any of its representations and warranties set forth herein, shall not
be
deemed to result in any such representation or warranty becoming untrue or
inaccurate and shall not be deemed to be a breach by Parent of any covenant
or
agreement contained herein).
5.2 Savings
Clause.
Notwithstanding anything to the contrary contained herein, in the event that
the
number of Voting Shares, when aggregated with the number of shares subject
to
other Option and Support Agreements or other voting support agreements, by
and
between Parent and other holders of the voting stock of the Company dated
as of
the date hereof (collectively, the “Other
Support Agreements”)
would
exceed 19.9% of the voting power of the then-outstanding shares of capital
stock
of the Company, this Agreement shall deem to apply only to the maximum number
of
shares subject hereto as would not result in the total shares with voting
power
subject to this Agreement and the Other Support Agreements exceeding such
19.9%
maximum amount, with any resulting adjustment in the amount of shares subject
to
this Agreement and the Other Support Agreements to be allocated pro rata
among
such agreements based on the relative numbers of shares (calculated on an
as-converted to Common Stock basis) subject to such agreements.
-6-
5.3 Amendments.
This
Agreement may not be modified, amended, altered or supplemented, except upon
the
execution and delivery of a written agreement executed by each of the parties
hereto.
5.4 Notices.
All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given (and shall be deemed to have been duly received
if
so given) by hand delivery, by facsimile transmission or by mail (registered
or
certified mail, postage prepaid, return receipt requested) or by any courier
service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at
the
following addresses:
If
to
Stockholder to:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
If
to
Parent:
Rocket
Software, Inc.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Gedda
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
or
to
such other address as the person to whom notice is given may have previously
furnished to the others in writing in the manner set forth above.
5.5 Governing
Law.
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(a) This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Minnesota, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
(b) Each
party hereto irrevocably submits to the jurisdiction of any federal court
sitting in the State of Minnesota in any action arising out of or relating
to
this Agreement, and hereby irrevocably agrees that all claims in respect
of such
action may be heard and determined in such Minnesota state or federal court.
Each party hereto hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance
of
such action or proceeding. The parties hereto further agree, to the extent
permitted by law, that final and unappealable judgment against any of them
in
any action or proceeding contemplated above shall be conclusive and may be
enforced in any other jurisdiction within or outside the United States by
suit
on the judgment, a certified copy of which shall be conclusive evidence of
the
fact and amount of such judgment.
(c) To
the
extent that any party hereto has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service
or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, each party hereto hereby
irrevocably waives such immunity in respect of its obligations with respect
to
this Agreement.
(d) Each
party hereto waives, to the fullest extent permitted by applicable laws,
any
right it may have to a trial by jury in respect of any action, suit or
proceeding arising out of or relating to this Agreement. Each party hereto
certifies that it has been induced to enter into this Agreement by, among
other
things, the mutual waivers and certifications set forth above in this
Section.
5.6 Remedies.
The
parties agree that irreparable damage would occur in the event that any
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties hereto shall be entitled to an injunction or injunctions to prevent
breaches or threatened breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any
other
remedy to which they may be entitled under any applicable Law or in
equity.
5.7 Counterparts.
This
Agreement may be executed by facsimile or PDF signature and in two or more
counterparts, each of which shall be deemed to be an original, but all of
which
when taken together shall constitute one and the same Agreement.
5.8 Severability.
Whenever possible, each provision or portion of any provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law but if any provision or portion of any provision of this Agreement is
held
to be invalid, illegal or unenforceable in any respect under any applicable
law
or rule in any jurisdiction, such invalidity, illegality or unenforceability
will not affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in
such jurisdiction as if such invalid, illegal or unenforceable provision
or
portion of any provision had never been contained herein.
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5.9 Interpretation.
When a
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 reference purposes only and shall not affect in any
way
the meaning or interpretation of this Agreement. Whenever the words “include,”
“includes,” or “including” are used in this Agreement, they shall be deemed to
be followed by the words “without limitation.”
5.10 No
Presumption Against Drafter.
Each of
the parties hereto has jointly participated in the negotiation and drafting
of
this Agreement. In the event of an ambiguity or a question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by each of the parties hereto and no presumptions or burdens of proof shall
arise favoring any party hereto by virtue of the authorship of any of the
provisions of this Agreement.
[Signature
Page Follows.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
|
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
||
| ROCKET SOFTWARE, INC. | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Gedda | |
|
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Gedda |
||
| Title: Executive Vice President | ||
ATTACHMENT
A
Owned
Shares and Voting Shares
|
Owned
Shares
|
Voting
Shares
|
Type
of Shares
|
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
3,700,957
|
1,398,952
|
Common
Stock
|