Exhibit 10.1
AGREEMENT dated as of February 14, 2000 among Silversmith
Acquisition Corp., a Delaware corporation ("BUYER"), and the
holders (the "STOCKHOLDERS") of the shares of common stock,
$0.10 par value (the "SHARES"), of Sterling Software, Inc., a
Delaware CORPORATION (THE "COMPANY"), LISTED ON THE SIGNATURE
PAGES HEREOF.
In order to induce Buyer and Computer Associates
International, Inc., a Delaware corporation ("PARENT"), to enter into an
Agreement and Plan of Merger (the "MERGER AGREEMENT") with the Company, Buyer
has requested that the Stockholders, and the Stockholders have agreed, to enter
into this Agreement.
The parties hereto agree as follows:
ARTICLE I
TENDER OFFER
SECTION 1.1. TENDER OF SHARES. (a) Each Stockholder hereby
agrees, pursuant to the terms and subject to the conditions set forth herein, to
tender for exchange in the Offer (defined in the Merger Agreement) all Shares
currently owned by such Stockholder as set forth on the signature page hereto
and any additional Shares acquired by such Stockholder (whether by purchase or
otherwise) after the date of this Agreement (such "STOCKHOLDER'S SHARES" and,
collectively, the "STOCKHOLDER SHARES").
(b) Not later than two days prior to the expiration of the
Offer (and within five business days of any acquisition by each Stockholder of
any additional Shares), each Stockholder shall, as appropriate, (x) deliver to
the Exchange Agent (the "EXCHANGE AGENT") designated in the Offer (i) a letter
of transmittal with respect to such Stockholder's Shares complying with the
terms of the Offer together with instructions directing the Exchange Agent to
make payment for such Shares directly to the Stockholder, (ii) a certificate or
certificates representing such Stockholder's Shares and (iii) all other
documents or instruments required to be delivered pursuant to the terms of the
Offer (such documents in clauses (i) through (iii) collectively being
hereinafter referred to as the "TENDER DOCUMENTS"), and/or (y) instruct its
broker or such other person who is the holder of record of any Shares
Beneficially Owned (as defined herein) by such Stockholder to tender such Shares
for exchange in the Offer pursuant to the terms and conditions of the Offer.
(c) No Stockholder shall withdraw any tender effected in
accordance with Section 1.1(b).
ARTICLE II
GRANT OF PROXY
SECTION 2.1. PROXY. Each Stockholder hereby revokes any and
all previous proxies granted with respect to such Stockholder's Shares. Each
Stockholder, by this
Agreement, with respect to such Stockholder's Shares, does hereby constitute and
appoint Buyer, or any nominee of Buyer, with full power of substitution, as its
true and lawful attorney and proxy, for and in its name, place and stead, to
vote each of such Stockholder's Shares as its proxy, at every annual, special or
adjourned meeting, or solicitation of consents, of the stockholders of the
Company (including the right to sign its name (as stockholder) to any consent,
certificate or other document relating to the Company that the law of the State
of Delaware may permit or require) (i) in favor of the adoption of the Merger
Agreement and this Agreement and approval of the Merger (defined in the Merger
Agreement) and the other transactions contemplated hereby and by the Merger
Agreement, (ii) against any proposal for any recapitalization, merger, sale of
assets or other business combination between the Company and any person or
entity (other than the Merger) or any other action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement not being
fulfilled and (iii) in favor of any other matter necessary for the consummation
of the transactions contemplated by the Merger Agreement and this Agreement.
Each Stockholder further agrees to cause such Stockholder's Shares that are
outstanding and owned by it beneficially to be voted in accordance with the
foregoing. The proxy granted by each Stockholder pursuant to this Article II is
irrevocable, is coupled with an interest and is granted in consideration of
Buyer's entering into this Agreement and the Merger Agreement; provided,
however, that such proxy shall be revoked upon termination of the Merger
Agreement in accordance with its terms.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders severally represents and warrants to
the Buyer that:
SECTION 3.1. VALID TITLE. Such Stockholder is the sole, true,
lawful and beneficial owner of such Stockholder's Shares with no restrictions on
such Stockholder's voting rights or rights of disposition pertaining thereto,
except for any such restrictions contemplated herein. Except as may be the case
under the arrangements referenced in the footnotes at the end of this Agreement,
none of such Stockholder's Shares is subject to any voting trust or other
agreement or arrangement with respect to the voting of such Shares.
SECTION 3.2. NON-CONTRAVENTION. The execution, delivery and
performance by such Stockholder of this Agreement and, subject to compliance
with the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the
"HSR ACT"), and securities laws, as applicable, the consummation of the
transactions contemplated hereby (i) are within such Stockholder's powers, have
been duly authorized by all necessary action (including any consultation,
approval or other action by or with any other person), (ii) require no action by
or in respect of, or filing with, any governmental body, agency, official or
authority and (iii) do not and will not contravene or constitute a default
under, or give rise to a right of termination, cancellation or acceleration of
any right or obligation of such Stockholder or to a loss of any material benefit
of such Stockholder under, any provision of applicable law or regulation or of
any agreement, judgment, injunction, order, decree, or other instrument binding
on such Stockholder or result in the imposition of any lien on any asset of such
Stockholder other than
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any such conflicts, breaches, violations, defaults, obligations, rights or
losses that individually or in the aggregate would not (a) materially impair the
ability of Stockholder to perform such Stockholder's obligations under this
Agreement or (b) prevent or delay the consummation of any of the transactions
contemplated hereby. No consent, approval, order or authorization of, or
registration, declaration or filing with or exemption by any Federal, state or
local government or any court, administrative or regulatory agency or commission
or other governmental authority or agency, domestic or foreign, is required by
or with respect to such Stockholder in connection with the execution and
delivery of this Agreement by such Stockholder or the consummation by such
Stockholder of the transactions contemplated by this Agreement, except for
applicable requirements, if any, of Sections 13 and 16 of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and
regulations thereunder. If this Agreement is being executed in a representative
or fiduciary capacity, the person signing this Agreement has full power and
authority to enter into and perform such Agreement.
SECTION 3.3. BINDING EFFECT. This Agreement has been duly
executed and delivered by such Stockholder and, assuming that this Agreement
constitutes the valid and binding obligations of the other parties hereto, is
the valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and to general principles of
equity.
SECTION 3.4. TOTAL SHARES. Each Stockholder is the record and
Beneficial Owner of the number of Shares set forth next to such Stockholder's
name on the signature pages hereto. Such Shares constitute all of the Shares
owned of record or Beneficially Owned by such Stockholder as of the date hereof.
Except as set forth on such signature pages, neither such Stockholder nor any
beneficial owner or owners of such Stockholder's Shares own any options to
purchase or rights to subscribe for or otherwise acquire any securities of the
Company. Each Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Article II of this
Agreement, sole power of disposition, sole power of conversion and sole power to
agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Shares beneficially owned by such Stockholder with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement. The terms
"BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any securities
shall mean having "BENEFICIAL OWNERSHIP" of such securities as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT").
SECTION 3.5. FINDER'S FEES. No investment banker, broker or
finder is entitled to a commission or fee from Buyer in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of such
Stockholder.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer represents and warrants to each of the Stockholders:
SECTION 4.1. CORPORATE POWER AND AUTHORITY. Buyer has all
requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution, delivery and performance by
Buyer of this Agreement and the consummation by Buyer of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Buyer. This Agreement has been duly executed and delivered by
Buyer and is a valid and binding agreement of Buyer, enforceable against it in
accordance with its terms.
SECTION 4.2. NON-CONTRAVENTION. The execution, delivery and
performance by Buyer of this Agreement and, subject to compliance with the HSR
Act and securities laws, as applicable, the consummation of the transactions
contemplated hereby (i) require no action by or in respect of, or filing with,
any governmental body, agency, official or authority and (ii) do not and will
not contravene or constitute a default under, or give rise to a right of
termination, cancellation or acceleration of any right or obligation of Buyer or
to a loss of any material benefit of Buyer under, any provision of applicable
law or regulation or of any agreement, judgment, injunction, order, decree, or
other instrument binding on Buyer or result in the imposition of any lien on any
asset of Buyer other than any such conflicts, breaches, violations, defaults,
obligations, rights or losses that individually or in the aggregate would not
(a) materially impair the ability of Buyer to perform Buyer's obligations under
this Agreement or (b) prevent or delay the consummation of any of the
transactions contemplated hereby. No consent, approval, order or authorization
of, or registration, declaration or filing with or exemption by any Federal,
state or local government or any court, administrative or regulatory agency or
commission or other governmental authority or agency, domestic or foreign, is
required by or with respect to Buyer in connection with the execution and
delivery of this Agreement by Buyer or the consummation by Buyer of the
transactions contemplated by this Agreement, except for applicable requirements,
if any, of the HSR Act, the Securities Act of 1933, Sections 13 and 16 of the
Exchange Act and the rules and regulations thereunder.
ARTICLE V
COVENANTS OF THE STOCKHOLDERS
Each of the Stockholders hereby covenants and agrees that:
SECTION 5.1. NO PROXIES FOR OR ENCUMBRANCES ON STOCKHOLDER
SHARES. Except pursuant to the terms of this Agreement or the Tender Documents,
such Stockholder shall not, without the prior written consent of Buyer, directly
or indirectly, (i) grant any proxies (other than proxies relating to the
election of management's slate of directors at an annual meeting of the
Company's stockholders, and other routine matters which would not require the
filing of a preliminary proxy statement under Rule 14a-6(a) of the Exchange Act)
or enter into any voting
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trust or other agreement or arrangement with respect to the voting of any such
Stockholder's Shares or (ii) sell, assign, transfer, encumber or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment, transfer,
encumbrance or other disposition of, any such Stockholder's Shares during the
term of this Agreement. Except as permitted by the preceding sentences, such
Stockholder shall not seek or solicit any such sale, assignment, transfer,
encumbrance or other disposition or any such contract, option or other
arrangement or assignment or understanding and agrees to notify Buyer promptly
and to provide all details requested by Buyer if such Stockholder shall be
approached or solicited, directly or indirectly, by any person with respect to
any of the foregoing.
SECTION 5.2. NO SHOPPING. Such Stockholder, in the capacity as
a stockholder, shall not directly or indirectly (i) subject to the fiduciary
duty under applicable law of such Stockholder as a director of the Company (if
such Stockholder is such a director) as further provided in the Merger
Agreement, solicit, initiate or encourage (or authorize any person to solicit,
initiate or encourage) any inquiry, proposal or offer from any person to acquire
the business, property or capital stock of the Company or any direct or indirect
subsidiary thereof, or any acquisition of a substantial equity interest in, or a
substantial amount of the assets of, the Company or any direct or indirect
subsidiary thereof, whether by merger, purchase of assets, tender offer or other
transaction or (ii) subject to the fiduciary duty under applicable law of such
Stockholder as a director of the Company (if such Stockholder is such a
director) as further provided in the Merger Agreement, participate in any
discussion or negotiations regarding, or furnish to any other person any
information with respect to, or otherwise cooperate in any way with, or
participate in, facilitate or encourage any effort or attempt by any other
person to do or seek any of the foregoing. Such Stockholder shall promptly
advise Buyer of the terms of any communications it may receive in the capacity
as a stockholder relating to any of the foregoing.
SECTION 5.3. CONDUCT OF STOCKHOLDERS. Such Stockholder will
not (i) take, agree or commit to take any action that would make any
representation and warranty of such Stockholder hereunder inaccurate in any
respect as of any time prior to the termination of this Agreement or (ii) omit,
or agree or commit to omit, to take any action necessary to prevent any such
representation or warranty from being inaccurate in any respect at any such
time.
SECTION 5.4. DISCLOSURE. Each Stockholder hereby permits Buyer
to publish and disclose in the offer documents and, if approval of the Company's
stockholders is required under applicable law, a proxy statement (including all
documents and schedules filed with the SEC) their identity and ownership of the
Shares and the nature of their commitments, arrangements and understandings
under this Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. EXPENSES. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
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SECTION 6.2. ADDITIONAL AGREEMENTS. Subject to the terms and
conditions of this Agreement, each of the Buyer and each Stockholder, in the
capacity as a Stockholder, agrees to use all reasonable efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations and which
may be required under any agreements, contracts, commitments, instruments,
understandings, arrangements or restrictions of any kind to which such party is
a party or by which such party is governed or bound, to consummate and make
effective the transactions contemplated by this Agreement.
SECTION 6.3. TERMINATION. This Agreement and the proxies
granted pursuant to Section 2.1 will terminate immediately upon the termination
of the Merger Agreement in accordance with its terms.
SECTION 6.4. SPECIFIC PERFORMANCE. The parties hereto agree
that the Buyer may be irreparably damaged if for any reason any Stockholder
failed to tender in the Offer, and to not withdraw, such Stockholder's Shares
(or other securities covered by this Agreement) in accordance with the terms of
this Agreement or to perform any of its other obligations under this Agreement,
and that the Buyer would not have an adequate remedy at law for money damages in
such event. Accordingly, the Buyer shall be entitled to specific performance and
injunctive and other equitable relief to enforce the performance of this
Agreement by each Stockholder. This provision is without prejudice to any other
rights that the Buyer may have against any Stockholder for any failure to
perform its obligations under this Agreement.
SECTION 6.5. NOTICES. All notices, requests, claims, demands
and other communications hereunder shall be deemed to have been duly given when
delivered in person, by telecopy, or by registered or certified mail (postage
prepaid, return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 6.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in this Agreement shall not survive
delivery of and payment for the Stockholder Shares or the termination of this
Agreement.
SECTION 6.7. AMENDMENTS. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by all the parties hereto.
SECTION 6.8. SUCCESSORS AND ASSIGNS. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, PROVIDED that Buyer may assign its
rights and obligations to any affiliate of Buyer and PROVIDED, FURTHER, that no
Stockholder may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the Buyer.
SECTION 6.9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF
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CONFLICTS OF LAWS THEREOF, EXCEPT TO THE EXTENT DELAWARE OR FEDERAL LAW
MANDATORILY GOVERNS.
SECTION 6.10. JURISDICTION. Each of the parties hereto (a)
consents to submit itself to the exclusive personal jurisdiction of any court of
the United States located in the State of Delaware or of any Delaware state
court in the event any dispute arises out of this Agreement or the transactions
contemplated by this Agreement, and (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from
any such court.
SECTION 6.11. COUNTERPARTS; EFFECTIVENESS. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
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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.
SILVERSMITH ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Computer Associates
International, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SHARES OPTIONS
-0- 100,000 @ $27.625
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
c/o JMI Services
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▇▇▇▇▇ ▇▇▇
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Fax:
SHARES OPTIONS
15,700 75,000 @ $14.125
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o The Donachie Company
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SHARES OPTIONS
1,600 10,000 @ $14.125
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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SHARES OPTIONS
2,130 (ESPP) 50,000 @ $13.625
284 (401(k)) 125,000 @ $15.625 /s/ F.L. "▇▇▇▇" ▇▇▇▇▇▇
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F.L. "▇▇▇▇" ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇. ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SHARES OPTIONS
1,489 (ESPP) 73,600 @ $14.125
479 (401(k)) 72,400 @ $13.625 /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
84,000 @ $25.9375 ---------------------------
60,000 @ $20.1875 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SHARES OPTIONS
5,000 (Ptshp.) 100,000 @ $14.125
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Fax: (214)
SHARES OPTIONS
95 (ESPP) 200,000 @ $14.125
11,536 (401(k)) 50,000 @ $13.625 /s/ B. ▇▇▇▇▇▇ ▇▇▇▇▇▇
57,750 50,000 @ $25.9375 ---------------------------
B. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Fax: (818)
SHARES OPTIONS
-0- 75,000 @ $14.1875
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(Does not include ---------------------------
Shares held by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
family members) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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SHARES OPTIONS
2,080 (ESPP) 51,000 @ $14.125
6,232 (401(k)) 109,000 @ $15.625 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
1,404 (▇▇▇) 90,000 @ $25.9375 ---------------------------
(Does not include shares ▇▇▇▇ ▇. ▇▇▇▇▇
held by family members) Three ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SHARES OPTIONS
2,251 (ESPP) 775,000 @ $14.125
9,964 (401(k)) 50,000 @ $13.625 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SHARES OPTIONS
7,000 (Family Trusts) 3,200,000 @ $14.125
520 (401(k)) 400,000 @ $13.625 /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(Does not include shares ---------------------------
held by family members) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SHARES OPTIONS
1,273 (ESPP) 197,400 @ $15.625
231 (401(k)) 100,000 @ $25.9375 /s/ R. ▇▇▇▇▇ ▇▇▇▇
77,600 @ $20.1875 ---------------------------
R. ▇▇▇▇▇ ▇▇▇▇
5212 ▇▇▇▇▇▇▇▇
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SHARES OPTIONS
883,398 (Family Trusts) 800,000 @ $14.125 (Ptshp.)
513,148 (Ptshp.) 100,000 @ $13.625 (Ptshp.) /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
4,200 (401(k)) ---------------------------
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Fax: (214)
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SHARES OPTIONS
158,880 (Ptshp.) 200,000 @ $14.125 (Ptshp.)
425 (401(k)) /s/ ▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (214)
SHARES OPTIONS
521,458 (Family Trusts) 1,525,000 @ $14.125
227,224 (Ptshp.) 200,000 @ $13.625 /s/ ▇▇▇ ▇▇▇▇
4,799 (401(k)) ---------------------------
(Does not include ▇▇▇ ▇▇▇▇
shares/options held ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
by family members) ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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