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(a)
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The responses of the Reporting Person to Rows (7) through (13) of the cover page of this Amendment No. 1, as of October 15, 2020, are incorporated herein by reference. As of October 15, 2020, the Reporting Person was the beneficial owner of 4,076,865 shares of Class A Common Stock, which represents 18.9% of the shares of the Class A Common Stock outstanding. The foregoing represents (i) 6,179 shares of Class A Common Stock held by John J. Shalam, (ii) 1,926,534 shares of Class A Common Stock held by ShalvoxxA, and (iii) 2,144,152 shares of Class A Common Stock issuable upon conversion of 2,144,152 shares of Class B Common Stock held by ShalvoxxB. Mr. Shalam has sole voting and dispositive power of the shares of the Issuer held by ShalvoxxA and ShalvoxxB. Excluded from the foregoing are 70,657 vested and 52,385 unvested restricted stock units granted by the Issuer to Mr. Shalam, which settle in shares of Class A Common Stock or in cash at the Company’s sole discretion. Also excludes an aggregate of 2,202 shares of Class A Common Stock and 116,802 shares of Class B Common Stock owned by Mr. Shalam’s children and as to which Mr. Shalam disclaims beneficial ownership.
The calculation of the percentage of shares of Class A Common Stock outstanding (a) is based on 21,656,976 shares of Class A Common Stock outstanding as of October 8, 2020 (as disclosed by the Issuer in its Form 10-Q filed with the SEC on October 13, 2020), plus the number of shares of Class A Common Stock issuable upon conversion of all shares of Class B Common Stock held by ShalvoxB and (b) assumes all of the shares of Class B Common Stock held by ShalvoxB are converted into shares of Class A Common Stock and no other shares of Class B Common Stock outstanding are converted into Class A Common Stock.
The Company’s Amended and Restated Certificate of Incorporation sets forth, among other things, certain rights of and restrictions on holders of the Company’s common stock. In general, holders of both classes of common stock vote as a single class on all matters except the election, or removal without cause, of Class A or Class B directors and any class votes required by Delaware law. In all cases, each share of Class A Common Stock is entitled to cast one vote per share and each share of Class B Common Stock is entitled to cast ten votes per share. At the option of the holder, each share of Class B Common Stock is convertible at any time into one share of Class A Common Stock. Without the written consent of holders of two-thirds of the outstanding shares of Class B Common Stock, shares of Class B Common Stock may not be transferred except to another holder of Class B Common Stock, family members of the holder and other permitted transferees. Upon any nonpermitted sale or transfer of shares of Class B Common Stock, such shares automatically convert into an equal number of shares of Class A Common Stock.
Assuming no shares of Class B Common Stock outstanding are converted into Class A Common Stock, the shares of common stock beneficially owned by the Reporting Person as of October 14, 2020, would constitute 52.8% of the aggregate voting power of all classes of the Issuer’s common stock outstanding (based on 2,260,954 shares of Class B Common Stock outstanding as of October 8, 2020, as disclosed by the Issuer in its Form 10-Q filed with the SEC on October 13, 2020).
The foregoing description of certain rights of, and restrictions on, the Class A Common Stock and Class B Common Stock are not, and do not purport to be, complete and are qualified in their entirety by reference to the text of the Issuer’s Amended and Restated Certificate of Incorporation, which was filed with the SEC on February 28, 2001, by the Issuer as Exhibit 3.1b to its Form 10-K for the fiscal year ended November 30, 2000.
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