EXHIBIT 3
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VOTING AND COOPERATION AGREEMENT
by and among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ REAL ESTATE FUND III, L.P.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ REAL ESTATE INVESTORS III, L.P.,
MSP REAL ESTATE FUND, L.P.,
MSREF III SPECIAL FUND, L.P.
and
CERTAIN SHAREHOLDERS OF
BLUEGREEN CORPORATION
Dated as of August 14, 1998
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VOTING AND COOPERATION AGREEMENT
This VOTING AND COOPERATION AGREEMENT (this "Agreement"), is made and
entered into as of August 14, 1998, by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Real Estate Fund
III, L.P., a Delaware limited partnership ("MSREF III"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Real
Estate Investors III, L.P., a Delaware limited partnership ("MSREI"), MSP Real
Estate Fund, L.P., a Delaware limited partnership ("MSP") and MSREF III Special
Fund, L.P., a Delaware limited partnership ("MSREF Special") (MSREF III, MSREI,
MSP and MSREF Special are herein collectively referred to as "Purchasers") and
those shareholders of BLUEGREEN CORPORATION, a Massachusetts corporation (the
"Company"), who are signatories to this Agreement (collectively, the
"Stockholders").
RECITALS
A. Purchasers and the Company have entered into a Securities Purchase
Agreement dated as of August 14, 1998 (the "Purchase Agreement"), pursuant to
which the Purchasers have agreed to purchase from the Company and the Company
has agreed to sell and issue to the Purchasers during the Commitment Period a
number of shares of Common Stock up to the Maximum Shares upon the terms and
subject to the conditions set forth in the Purchase Agreement.
B. As of the date hereof, each Stockholder owns of record the number of
shares of the Common Stock and other securities exercisable or convertible into
shares of Common Stock set forth opposite the respective Stockholder's name on
Schedule A attached hereto.
C. As a condition and inducement to the willingness of Purchasers to
enter into the Purchase Agreement, Purchasers have requested that each
Stockholder agree, and each Stockholder has agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
VII. Agreement to Vote Shares. At any meeting of the shareholders of the
Company called to consider and vote upon the approval of the sale and issuance
of shares of Common Stock to Purchasers (and/or their Permitted Transferees)
under the Purchase Agreement (if such approval is sought) (and at any and all
postponements and adjournments thereof), and in connection with any action to be
taken in respect thereof by written consent of the shareholders of the Company,
each Stockholder shall vote or cause to be voted (including by written consent,
if applicable) all shares of Common Stock which such Stockholder has the power
to vote or in respect of which such Stockholder has the power to direct the vote
in favor of the sale and issuance of shares of Common Stock to Purchasers (or
their Permitted Transferees) under the Purchase Agreement.
IX. Board Representation. (a) For so long as Purchasers and any Permitted
Transferees own, in the aggregate, at least the Required Interest, each
Stockholder shall vote or cause to be voted
(including by written consent, if applicable) all shares of Common Stock which
such Stockholder has the power to vote or in respect of which such Stockholder
has the power to direct the vote in favor of the nominees (each a "Purchaser
Designee") to the Board of Directors of the Company designated by MSREF III and
MSP (or their Permitted Transferees) pursuant to the provisions of Section 4.10
of the Purchase Agreement, at any regular or special meeting of the shareholders
of the Company (including any adjournments thereof) called for the purpose of
electing directors of the Company, except the foregoing shall not apply to the
extent any Purchaser Designee has been elected to the Board of Directors and is
in a class of directors not currently standing for re-election.
(b) For so long as Purchasers and any Permitted Transferees own, in
the aggregate, less than the Required Interest but at least the Minimum
Interest, each Stockholder shall vote or cause to be voted (including by written
consent, if applicable) all shares of Common Stock which such Stockholder has
the power to vote or in respect of which such Stockholder has the power to
direct the vote in favor of the nominee to the Board of Directors of the Company
designated by MSP (or its Permitted Transferee) pursuant to the provisions of
Section 4.10 of the Purchase Agreement, at any regular or special meeting of the
shareholders of the Company (including any adjournments thereof) called for the
purpose of electing Directors of the Company.
(c) In the event any Purchaser Designee shall resign, or be removed,
or be unable to serve for any reason prior to the expiration of his or her term
as a director of the Company, in accordance with Section 4.10 of the Purchase
Agreement, MSREF III or MSP (or their Permitted Transferees), as the case may
be, shall have the right to notify the Board of Directors of a replacement
Purchaser Designee, and, to the extent the shareholders of the Company shall be
required to vote on the matter, each Stockholder shall vote or cause to be voted
(including by written consent, if applicable) all shares of Common Stock which
such Stockholder has the power to vote or in respect of which such Stockholder
has the power to direct the vote in favor of the replacement Purchaser Designee
to fill the unexpired term of the director nominee which such new nominee is
replacing. Each Purchaser Designee shall be reasonably acceptable to the Company
as provided in the Purchase Agreement.
(d) Each Stockholder agrees that he or it shall not take any direct or
indirect action to remove any Purchaser Designee from the Board of Directors
without cause.
(e) In order to effectuate the provisions of this Agreement, each
Stockholder hereby agrees that when any action or vote is required to be taken
by such person in his or its capacity as a stockholder pursuant to this
Agreement, such person shall, subject to compliance with the Company's Amended
and Restated Bylaws, use his or its reasonable best efforts to call, or cause
the appropriate officers and directors of the Company to call, a special or
annual meeting of the shareholders, as the case may be, or to the extent
permitted by law, to execute a written consent in lieu of any such meetings.
X. Conformity of Charter Documents. Each Stockholder shall vote all of
the shares of Common Stock which such Stockholder has the power to vote or in
respect of which such Stockholder has the power to direct the vote, at any
regular or special meeting of shareholders of the Company (including by written
consent, if applicable), in a manner such that the Company's Restated
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Articles of Organization and Amended and Restated Bylaws do not, at any time,
conflict with the provisions of this Agreement or the Purchase Agreement.
XI. Limitation. It is expressly understood and agreed that this
Agreement solely relates to matters affecting the Stockholders in their
capacities as shareholders of the Company. Nothing contained herein shall in any
way be construed as being applicable to any actions which any Stockholder may
take in his capacity as a director of the Company.
XII. Certain Representations, Warranties and Covenants of the
Stockholders. Each Stockholder, severally but not jointly, represents, warrants
and covenants to Purchasers as follows:
12.01. Ownership. Except as specified on Schedule A, or as disclosed in
the Proxy Statement dated June 28, 1998 relating to the Company's 1998 Annual
Meeting of Shareholders, Stockholder is the sole record and beneficial owner
(unless otherwise indicated on Schedule A) of the shares of Common Stock set
forth opposite such Stockholder's name on Schedule A and has full and
unrestricted power to vote such shares of Common Stock (it being understood
that, with respect to options, convertible notes and debentures, no right to
vote the Common Stock shall exist unless and until the option, note or debenture
is exercised or converted, as applicable). As of the date hereof, Stockholder
does not own any other securities of the Company other than shares of Common
Stock set forth on Schedule A and securities convertible into shares of Common
Stock as more fully described on Schedule A.
12.02. Due Authorization. Stockholder has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Stockholder
and the consummation by Stockholder of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of Stockholder. This
Agreement has been duly executed and delivered by Stockholder and constitutes
the valid and binding obligation of Stockholder, enforceable against Stockholder
in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights generally and to general principles of equity.
12.03. No Conflicts. The execution and delivery of this Agreement by
Stockholder does not, and the consummation of the transactions contemplated by
this Agreement and compliance with the provisions of this Agreement will not,
conflict with, result in a breach or violation of, or default (with or without
notice or lapse of time or both) under, or give rise to a material obligation, a
right of termination, cancellation or acceleration of any obligation or a loss
of a material benefit under, or require notice to, or the consent of, any Person
under any agreement, instrument, undertaking, law, rule, regulation, judgment,
order, injunction, decree, determination or award binding on Stockholder, other
than any such conflicts, breaches, violations, defaults, rights or losses that,
individually or in the aggregate, would not (i) impair the ability of
Stockholder to perform his or its obligations under this Agreement or (ii)
prevent or delay the consummation of any of the transactions contemplated by
this Agreement.
12.04. Reliance by Purchasers. Stockholder understands and acknowledges
that Purchasers are entering into the Purchase Agreement in reliance upon
Stockholder's execution and delivery of this Agreement.
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12.05. Non-Interference. Stockholder will not, during the term of this
Agreement, except as permitted by this Agreement, (i) grant any proxies or
powers of attorney with respect to any of his or its shares of Common Stock in
conflict with the provisions hereof, (ii) deposit any of his or its shares of
Common Stock into a voting trust or enter into a voting agreement with respect
to his or its shares of Common Stock, or (iii) take any action that would make
any representation or warranty contained herein untrue or incorrect or have the
effect of preventing such Stockholder from performing his or its obligations
under this Agreement.
12.06. Survival. The representations, warranties and covenants of the
Stockholders set forth in this Section 4 will survive the execution and delivery
of this Agreement.
XIII. Transfers. Subject to Applicable Law, each Stockholder may from
time to time sell, transfer or otherwise dispose ("Transfer") of his or its
shares of Common Stock (and any securities exercisable for or convertible into
Common Stock) and, provided the transferee is not a Related Person (as defined
below), such transferee shall acquire the shares of Common Stock (or other
securities) free and clear of the terms and conditions of, and shall not be
bound or have any obligations under, this Agreement. To the extent a Stockholder
Transfers all or any part of his or its shares of Common Stock (or other
securities) to a Related Person, such Related Person shall agree to be bound by
the provisions of this Agreement as though such transferee had been a party
hereto. Upon Transfer to a Related Person in accordance with this Agreement, to
the extent of the Transfer, each reference to the transferring Stockholder in
this Agreement will thereafter be deemed to include such Stockholder and each
Related Person to whom any shares of Common Stock were Transferred, and each
such Stockholder and Related Person, taken together, will thereafter have the
rights and obligations of the transferring Stockholder hereunder, without
enlargement or diminution. For purposes hereof, a Related Person means (i) a
spouse, child (natural or adopted), grandchild or parent of the Stockholder,
(ii) any trust, the beneficiaries of which include only the persons described in
clause (i), or (iii) any corporation or partnership, a majority of the economic
and voting interests in which are owned by the Stockholder or any person
described in clauses (i) or (ii).
XIV. Legend on Stock Certificates. If required by Applicable Law, each
certificate evidencing shares of Common Stock subject to this Agreement will be
stamped or otherwise imprinted with a legend in substantially the following
form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE VOTING AND
COOPERATION AGREEMENT, DATED AS OF AUGUST 14, 1998, BY AND AMONG ▇▇▇▇▇▇
▇▇▇▇▇▇▇ REAL ESTATE FUND III, L.P., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ REAL ESTATE INVESTORS
III, L.P., MSP REAL ESTATE FUND, L.P., MSREF III SPECIAL FUND, L.P. AND
CERTAIN SHAREHOLDERS OF BLUEGREEN CORPORATION (THE "COMPANY"). A COPY OF
SUCH AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE
HOLDER HEREOF UPON WRITTEN REQUEST.
If required by Applicable Law, the Stockholders will cause the Company to
imprint such legends on certificates evidencing shares of Common Stock held by
each of them which were outstanding prior
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to the date hereof. The legend set forth in the preceding paragraph shall be
removed at such time as it is no longer required by Applicable Law or a
Stockholder no longer owns any shares of Common Stock and shall not be placed on
any certificates issued to a transferee who is not a Related Person.
XV. Term. This Agreement shall terminate at such time as Purchasers
own less than the Minimum Interest, and may be terminated by Purchasers at any
time upon notice by the Purchaser to the Company and the Stockholders.
XVI. Miscellaneous.
16.01. Fees and Expenses. Each party hereto will pay its own expenses
incidental to preparing for, entering into and carrying out this Agreement and
the performance of its obligations hereunder.
16.02. Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
16.03. Extension; Waiver. Any agreement on the part of a party to waive
any provision of this Agreement, or to extend the time for any performance
hereunder, will be valid against the other parties only if set forth in an
instrument in writing signed on behalf of each such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise will not constitute a waiver of such rights.
16.04. Entire Agreement; No Third-Party Beneficiaries. This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any Person
other than the parties any rights or remedies.
16.05. Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the Commonwealth of Massachusetts, regardless of
the laws that might otherwise govern under applicable conflict of laws
principles thereof.
16.06. Specific Performance. The parties agree that irreparable damage
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,
and that such breach would cause the other parties hereto to sustain damages for
which they would not have an adequate remedy at law for money damages. It is
accordingly agreed that each party will be entitled to seek 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 competent
jurisdiction, this being in addition to any other remedy to which it is entitled
at law or in equity. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity will be
cumulative and not alternative, and the exercise of any thereof by any party
will not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
16.07. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be
ineffective to the extent of such
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invalidity or unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provisions will be interpreted to be only so broad as is
enforceable.
16.08. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO
A TRIAL BY JURY IN CONNECTION WITH ANY SUCH ACTION, SUIT OR PROCEEDING.
16.09. Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
16.10. Counterparts. This Agreement may be executed by facsimile signature
and in one or more counterparts, each of which shall be deemed an original, but
all of which together will be considered one and the same agreement.
16.11. Successors and Assigns. Except as otherwise provided herein, this
Agreement will be binding upon and inure solely to the benefit of the parties
hereto and their respective successors and permitted assigns, provided that
Purchasers' rights under this Agreement may only be assigned to a Permitted
Transferee.
16.12. Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful party will be entitled to recover reasonable
attorneys' fees in addition to its costs and expense and any other available
remedy.
16.13. Further Assurances. The parties hereto will do such further acts
and things necessary to ensure that the terms of this Agreement are carried out
and observed.
16.14. After-Acquired Shares. All of the provisions of this Agreement will
apply to and include all Common Stock and other voting securities of the Company
acquired by any Stockholder on and after the date hereof.
16.15. Defined Terms. Capitalized terms used herein that are not otherwise
defined herein have the meanings set forth in the Purchase Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
STOCKHOLDERS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ L. ▇▇▇▇▇▇▇ ▇▇▇▇
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L. ▇▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇. ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LTD.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ,
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its General Partner
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: General Partner
PURCHASERS:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ REAL ESTATE
FUND III, L.P.
By: MSREF III, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ REAL ESTATE
INVESTORS, III, L.P.
By: MSREF III, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President
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MSP REAL ESTATE FUND, L.P.
By: MSREF III, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President
MSREF III SPECIAL FUND, L.P.
By: MSREF III, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Its: Vice President
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SCHEDULE A
OWNERSHIP OF SECURITIES
Number of Shares of Shares of Bluegreen
Name and Address Bluegreen Options to Purchase Shares of Corporation Common Stock
of Corporation Bluegreen Corporation Issuable upon Conversion
Stockholder Common Stock Common Stock of Debentures and Notes
---------- ------------ ------------ -----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇/1/ 432,027 20,000 405,658
▇▇▇▇▇▇ ▇▇▇▇▇▇ 11,574 0 36,407
▇▇▇▇ ▇. ▇▇▇▇▇▇ 0 161,140 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 102,074 781,538 0
▇▇▇▇▇ ▇. ▇▇▇▇▇ 13,832 142,185 0
L. ▇▇▇▇▇▇▇ ▇▇▇▇ 0 242,699 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,218 363,878 0
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 0 136,223 0
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 34,398 0 0
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 11,339 283,393 0
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0 30,000 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇/2/ 721,182 77,288 80,145
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 758,146 130,261 0
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Ltd. 1,676,766 0 1,782,244
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/1/ Includes 50,000 shares and 16,018 shares of Common Stock issuable upon
conversion of $132,000 aggregate principal amount of Debentures held by
family trusts for which ▇▇. ▇▇▇▇▇▇ has full and unrestricted voting power.
/2/ Includes 3,034 shares of Common Stock issuable upon conversion of $25,000
aggregate principal amount of Debentures held by a family trust for which
▇▇. ▇▇▇▇▇▇▇ has full and unrestricted voting power.
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