TENDER AGREEMENT
Agreement, dated as of September 30, 1998, among Logica Inc., a Delaware
corporation ("Parent"), Logica Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Parent (the "Purchaser"), Carnegie Group, Inc., a
Delaware corporation (the "Company"), and the stockholders of the Company
signatory hereto (collectively referred to herein as the "Stockholders" and
each, a "Stockholder").
Witnesseth:
Whereas, concurrently with the execution and delivery of this Agreement,
Parent, the Purchaser and the Company, have entered into an Agreement and Plan
of Merger (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"), pursuant to which Purchaser will be merged with and into
the Company (the "Merger");
Whereas, in furtherance of the Merger, Parent and the Company desire that as
soon as practicable (and not later than five business days) after the
execution and delivery of the Merger Agreement, the Purchaser shall commence a
cash tender offer (the "Offer") to purchase at a price of $5.00 per share all
outstanding shares of Company Common Stock (as defined in Section 1 hereof)
including all of the Shares (as defined in Section 2 hereof) beneficially
owned by Stockholders; and
Whereas, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement;
Now, Therefore, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "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").
(b) "Company Common Stock" shall mean at any time the Common Stock, par
value $.01 per share, of the Company.
(c) "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
(d) Capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement.
2. Tender of Shares.
(a) In order to induce Parent and the Purchaser to enter into the Merger
Agreement, each of the Stockholders hereby agrees to validly tender (or cause
the record owner of such shares to validly tender), and not to withdraw,
pursuant to and in accordance with the terms of the Offer, not later than the
fifth business day after commencement of the Offer pursuant to Section 1.1 of
the Merger Agreement and Rule 14d-2 under the Exchange Act, the number of
shares of Company Common Stock set forth opposite such Stockholder's name on
Schedule I hereto (the "Existing Shares", and together with any shares
acquired by such Stockholder in any capacity after the date hereof and prior
to the termination of this Agreement whether upon the exercise of Options or
by means of purchase, dividend, distribution or otherwise, the "Shares"), all
of which are Beneficially Owned by such Stockholder. Each Stockholder hereby
acknowledges and agrees that Parent's and the Purchaser's obligation to accept
for payment and pay for the Shares in the Offer, including the Shares
Beneficially Owned by such Stockholder, is subject to the terms and conditions
of the Offer.
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(b) Upon acceptance and payment therefor by Purchaser, the transfer by the
Stockholders of the Shares to Purchaser in the Offer shall pass to and
unconditionally vest in the Purchaser good and valid title to the Shares, free
and clear of all Encumbrances.
(c) The Stockholders hereby permit Parent and the Purchaser to publish and
disclose in the Offer Documents and, if approval of the Company's stockholders
is required under applicable law, the 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.
3. Option to Acquire Shares. In order to induce Parent and the Purchaser to
enter into the Merger Agreement, each Stockholder hereby grants to Parent an
irrevocable option (a "Stock Option") to purchase such Stockholder's Shares
(the "Option Shares") at an amount (the "Purchase Price") equal to the Offer
Price. If (i) the Offer is terminated, abandoned or withdrawn by Parent or the
Purchaser due to the failure of paragraph (g) or (h) of the conditions set
forth in Annex A to the Merger Agreement, or (ii) the Merger Agreement is
terminated by the Company pursuant to Section 9.1(c)(ii) thereof, each Stock
Option shall, in any such case, become exercisable, in whole or in part, upon
the first to occur of any such event and remain exercisable in whole or in
part until the date which is 60 days after the date of the occurrence of such
event (the "60 Day Period"), so long as: (i) all waiting periods under the HSR
Act required for the purchase of the Option Shares upon such exercise shall
have expired or been waived, and (ii) there shall not be in effect any
preliminary or final injunction or other order issued by any Governmental
Entity prohibiting the exercise of the Stock Options pursuant to this
Agreement; provided, however, that if all HSR Act waiting periods shall not
have expired or been waived or there shall be in effect any such injunction or
order, in each case on the expiration of the 60 Day Period, the 60 Day Period
shall be extended until five (5) business days after the later of (A) the date
of expiration or waiver of all HSR Act waiting periods or (B) the date of
removal or lifting of such injunction or order. In the event that Parent
wishes to exercise a Stock Option, Parent shall send a written notice (the
"Notice") to the Stockholders identifying the place and date (not less than
two nor more than five (5) business days from the date of the Notice) for the
closing of such purchase.
4. Additional Agreements.
(a) Voting Agreement. Each Stockholder shall, at any meeting of the holders
of Company Common Stock, however called, or in connection with any written
consent of the holders of Company Common Stock, vote (or cause to be voted)
the Shares (if any) then held of record or Beneficially Owned by such
Stockholder, (i) in favor of the Merger, the execution and delivery by the
Company of the Merger Agreement and the approval of the terms thereof and each
of the other actions contemplated by the Merger Agreement and this Agreement
and any actions required in furtherance thereof and hereof; and (ii) against
any Acquisition Proposal and against any action or agreement that would
impede, frustrate, prevent or nullify this Agreement, or result in a breach in
any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or which
would result in any of the conditions set forth in Annex A to the Merger
Agreement or set forth in Article VIII of the Merger Agreement not being
fulfilled.
(b) No Inconsistent Arrangements. Each of the Stockholders hereby covenants
and agrees that, except as contemplated by this Agreement and the Merger
Agreement, it shall not (i) transfer (which term shall include, without
limitation, any sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of such Stockholder's Shares, Options or any interest
therein, (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of such Shares,
Options or any interest therein, (iii) grant any proxy, power-of-attorney or
other authorization in or with respect to such Shares or Options, (iv) deposit
such Shares or Options into a voting trust or enter into a voting agreement or
arrangement with respect to such Shares or Options, or (v) take any other
action that would in any way restrict, limit or interfere with the performance
of its obligations hereunder or the transactions contemplated hereby or by the
Merger Agreement.
(c) Grant of Irrevocable Proxy; Appointment of Proxy.
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(i) Each Stockholder hereby irrevocably grants to, and appoints, Parent,
Corey Torrence and Doug Webb, or either of them, in their respective
capacities as officers of Parent, and any individual who shall hereafter
succeed to any such office of Parent, and each of them individually, such
Stockholder's proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of such Stockholder, to vote such
Stockholder's Shares, or grant a consent or approval in respect of the
Shares in favor of any or all of the Transactions and against any
Acquisition Proposal.
(ii) Each Stockholder represents that any proxies heretofore given in
respect of such Stockholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(iii) Each Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon such Stockholder's
execution and delivery of this Agreement. Each Stockholder hereby affirms
that the irrevocable proxy set forth in this Section 4(c) is given in
connection with the execution of the Merger Agreement, and that such
irrevocable proxy is given to secure the performance of the duties of such
Stockholder under this Agreement. Each Stockholder hereby further affirms
that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Each Stockholder hereby ratifies and confirms all
that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable
in accordance with the provisions of Section 212(e) of the Delaware General
Corporation Law.
(d) No Solicitation. Each Stockholder hereby agrees, in the capacity as a
Stockholder or otherwise, that neither such Stockholder nor any of its
Subsidiaries or affiliates shall (and such Stockholder shall use its best
efforts to cause its officers, directors, employees, representatives and
agents, including, but not limited to, investment bankers, attorneys and
accountants, not to), directly or indirectly, encourage, solicit, participate
in or initiate discussions or negotiations with, or provide any information
to, any corporation, partnership, person or other entity or group (other than
Parent, any of its affiliates or representatives) concerning any Acquisition
Proposal or take any other action prohibited by Section 7.4 of the Merger
Agreement. Each Stockholder will immediately cease any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any Acquisition Proposal. Each Stockholder will immediately communicate to
Parent the terms of any proposal, discussion, negotiation or inquiry (and will
disclose any written materials received by such Stockholder in connection with
such proposal, discussion, negotiation or inquiry) and the identity of the
party making such proposal or inquiry which it may receive in respect of any
such transaction.
(e) Waiver of Appraisal Rights. Each Stockholder hereby waives any rights of
appraisal or rights to dissent from the Merger that such Stockholder may have.
5. Representations and Warranties of the Stockholders. Each Stockholder
hereby represents and warrants to Parent as follows:
(a) Ownership of Shares. Such Stockholder is the record and Beneficial
Owner of the Shares, as set forth on Schedule I. On the date hereof, the
Existing Shares constitute all of the Shares owned of record or
Beneficially Owned by such Stockholder. Such Stockholder has sole voting
power and sole power to issue instructions with respect to the matters set
forth in Sections 2, 3 and 4 hereof, sole power of disposition, sole power
of conversion, sole power to demand appraisal rights and sole power to
agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Existing Shares with no limitations, qualifications
or restrictions on such rights, subject to applicable securities laws and
the terms of this Agreement.
(b) Power; Binding Agreement. Each Stockholder has the legal capacity,
power and authority to enter into and perform all of such Stockholder's
obligations under this Agreement. The execution, delivery and performance
of this Agreement by such Stockholder will not violate any other agreement
to which such Stockholder is a party including, without limitation, any
voting agreement, proxy arrangement, pledge agreement, shareholders
agreement or voting trust. This Agreement has been duly and validly
executed and delivered by such Stockholder and constitutes a valid and
binding agreement of such Stockholder, enforceable against such Stockholder
in accordance with its terms. There is no beneficiary or holder of a
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voting trust certificate or other interest of any trust of which such
Stockholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by such Stockholder of the
transactions contemplated hereby.
(c) No Conflicts. Except for filings under the HSR Act and the Exchange
Act, (i) no filing with, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary for the execution of this
Agreement by such Stockholder and the consummation by such Stockholder of
the transactions contemplated hereby and (ii) none of the execution and
delivery of this Agreement by such Stockholder, the consummation by such
Stockholder of the transactions contemplated hereby or compliance by such
Stockholder with any of the provisions hereof shall (A) conflict with or
result in any breach of any organizational documents applicable to the
Stockholder, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
loan agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of
any kind to which such Stockholder is a party or by which such Stockholder
or any of its properties or assets may be bound, or (C) violate any order,
writ, injunction, decree, judgment, statute, rule or regulation applicable
to such Stockholder or any of its properties or assets.
(d) No Encumbrances. Except as permitted by this Agreement, the Shares
and the certificates representing such Shares are now, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee
or custodian for the benefit of such Stockholder, free and clear of all
Encumbrances, proxies, voting trusts or agreements, understandings or
arrangements or any other rights whatsoever, except for any such
Encumbrances or proxies arising hereunder.
(e) No Finder's Fees. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder.
(f) Reliance by Parent. Each Stockholder understands and acknowledges
that Parent is entering into, and causing Purchaser to enter into, the
Merger Agreement in reliance upon such Stockholder's execution and delivery
of this Agreement. Each of Parent, Purchaser and the Company acknowledges
and agrees that in the event of any willful breach by any Stockholder of
the provisions of Section 4(d) hereof, Parent and Purchaser shall be
entitled to receive from the Company, and the Company shall be obligated to
pay to Parent and Purchaser, the amounts set forth in Section 9.2(b) of the
Merger Agreement in accordance with Section 9.2(c) of the Merger Agreement.
Each of Parent, Purchaser and the Company acknowledges and agrees that the
amounts payable to Parent and Purchaser pursuant to the preceding sentence
shall be Parent's and Purchaser's sole remedy (other than specific
performance) for any breach by any Stockholder of the provisions of Section
4(d) hereof.
6. Representations and Warranties of Parent and the Purchaser. Each of
Parent and the Purchaser hereby represents and warrants to the Stockholders as
follows:
(a) Power; Binding Agreement. Each of Parent and the Purchaser has the
corporate power and authority to enter into and perform all of its
obligations under this Agreement. The execution, delivery and performance
of this Agreement by each of Parent and the Purchaser will not violate any
other agreement to which either of them is a party. This Agreement has been
duly and validly executed and delivered by each of Parent and the Purchaser
and constitutes a valid and binding agreement of each of Parent and the
Purchaser, enforceable against each of Parent and the Purchaser in
accordance with its terms.
(b) No Conflicts. Except for filings under the HSR Act and the Exchange
Act, (i) no filing with, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary for the execution of this
Agreement by each of Parent and the Purchaser and the consummation by each
of Parent and the Purchaser of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by each of Parent
and the Purchaser, the consummation by each of Parent and the Purchaser of
the transactions contemplated hereby or compliance by each of Parent and
the Purchaser with any of the
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provisions hereof shall (A) conflict with or result in any breach of any
organizational documents applicable to either of Parent or the Purchaser,
(B) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of
any kind to which either of Parent or the Purchaser is a party or by which
either of Parent or the Purchaser or any of their properties or assets may
be bound, or (C) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to either of Parent or the Purchaser
or any of their properties or assets.
7. Further Assurances. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further lawful action as may be
necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
8. Stop Transfer. The Stockholders shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares, unless such transfer
is made in compliance with this Agreement. In the event of a stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
9. Termination. Except as provided in Section 3 hereof, the covenants and
agreements contained herein with respect to the Shares shall terminate upon
the termination of the Merger Agreement in accordance with its terms;
provided, however, that during the term of the Stock Option, the Stockholders
shall ensure that the representations and warranties set forth in Section 5
continue to be true and correct.
10. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all other prior agreements and understandings, both written and oral, between
the parties with respect to the subject matter hereof.
(b) Binding Agreement. This Agreement and the obligations hereunder shall
attach to the Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of such Shares shall pass, whether by operation
of law or otherwise, including, without limitation, a Stockholder's heirs,
guardians, administrators or successors. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations of the transferor under this Agreement.
(c) Assignment. This Agreement shall not be assigned by operation of law or
otherwise without the prior written consent of the other parties, provided
that Parent may assign, in its sole discretion, its rights and obligations
hereunder to any direct or indirect wholly owned Subsidiary of Parent, but no
such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties hereto.
(e) 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 given) by hand delivery or telecopy (with a confirmation
copy sent for next day delivery via courier service, such as Federal Express),
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:
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If to a Stockholder:
to such Stockholder's address set forth on Schedule I hereto
If to a Parent or
the Purchaser: Logica Inc.
32 Hartwell Avenue
Lexington, MA 02421
Attention: Corey Torrence, President
Telephone No.: (617) 476-8000
Telecopy No.: (617) 476-8010
copy to: Goodwin, Procter & Hoar llp
Exchange Place
Boston, MA 02109
Attention: Joseph L. Johnson III, Esq.
Telephone No.: (617) 570-1000
Telecopy No.: (617) 523-1231
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.
(f) 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.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it
would not have an adequate remedy at law for money damages, and therefore in
the event of any such breach the aggrieved party shall be entitled to the
remedy of specific performance of such covenants and agreements and injunctive
and other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity (subject to Section 4(f) hereof).
(h) Remedies Cumulative. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall
be cumulative and not alternative or exclusive, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party (subject to Section 4(f)
hereof).
(i) No Waiver. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by
such party of its right to exercise any such or other right, power or remedy
or to demand such compliance.
(j) No Third Party Beneficiaries. Subject to the provisions of Section
10(c), this Agreement is not intended to be for the benefit of, and shall not
be enforceable by, any person or entity who or which is not a party hereto.
(k) Choice of Law/Consent to Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware without
regard to its rules of conflict of laws. Each party hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of Delaware and of the United States of America located in the
State of Delaware (the "Delaware Courts") for
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any litigation arising out of or relating to this Agreement and the
Transactions (and agrees not to commence any litigation relating thereto
except in such courts), waives any objection to the laying of venue of any
such litigation in the Delaware Courts and agrees not to plead or claim in any
Delaware Court that such litigation brought therein has been brought in any
inconvenient forum. Each of the parties hereto agrees, (a) to the extent such
party is not otherwise subject to service of process in the State of Delaware,
to appoint and maintain an agent in the State of Delaware as such party's
agent for acceptance of legal process, and (b) that service of process may
also be made on such party by prepaid certified mail with a proof of mailing
receipt validated by the United States Postal Service constituting evidence of
valid service. Service made pursuant to (a) or (b) above shall have the same
legal force and effect as if served upon such party personally within the
State of Delaware. For purposes of implementing the parties' agreement to
appoint and maintain an agent for service of process in the State of Delaware,
each such party does hereby appoint The Corporation Trust Company, 1209 Orange
Street, Wilmington, New Castle County, Delaware 19801, as such agent.
(l) 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.
(m) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same Agreement.
(n) No Agreement Until Executed. Irrespective of negotiations among the
parties or the exchanging of drafts of this Agreement, this Agreement shall
not constitute or be deemed to evidence a contract, agreement, arrangement or
understanding among the parties hereto unless and until (i) the Board of
Directors of the Company has approved, for purposes of Section 203 of the
Delaware General Corporation Law and any applicable provision of the Company's
certificate of incorporation, the terms of this Agreement, including, without
limitation, (x) the Stock Option and (y) the irrevocable proxy and voting
provisions set forth in Section 4 of this Agreement, and (ii) this Agreement
is executed by parties hereto.
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In Witness Whereof, the undersigned have caused this Agreement to be duly
executed as of the day and year first above written.
Logica Inc.
/s/ Corey Torrence
By: _________________________________
Name: Corey Torrence
Title:President and Chief
Executive Officer
Logica Acquisition Corp.
/s/ Corey Torrence
By: _________________________________
Name: Corey Torrence
Title:President
Carnegie Group, Inc.
/s/ Dennis Yablonsky
By: _________________________________
Name: Dennis Yablonsky
Title:President and Chief
Executive Officer
/s/ Raj Reddy
By: _________________________________
Name: Raj Reddy
/s/ Anuradha Reddy
By: _________________________________
Name: Anuradha Reddy
/s/ Anuradha Reddy
By: _________________________________
Name: Anuradha Reddy, Trustee,
Geetha Reddy Trust
/s/ Anuradha Reddy
By: _________________________________
Name: Anuradha Reddy, Trustee,
Shyamala Reddy Trust
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SCHEDULE I
NUMBER OF SHARES
AND OPTIONS
NAME AND ADDRESS OF STOCKHOLDER BENEFICIALLY OWNED
- ------------------------------- ------------------
Raj Reddy.................................................... 73,000
[address]
Anuradha Reddy............................................... 100,000
[address]
Anuradha Reddy, Trustee, Geetha Reddy Trust.................. 100,000
[address]
Anuradha Reddy, Trustee, Shyamala Reddy Trust................ 100,000
[address]
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