Contract
Exhibit
2
STOCKHOLDER
AGREEMENT (this “Agreement”)
dated
as of December 16, 2005, among XXXXXXX & XXXXXXX, a New Jersey
corporation (“Parent”),
and
the individuals and other parties listed on Schedule A attached hereto
(each, a “Stockholder”
and,
collectively, the “Stockholders”).
WHEREAS
Parent, Emerald Merger Sub, Inc., a Delaware corporation and a wholly owned
Subsidiary of Parent (“Sub”),
and
Animas Corporation, a Delaware corporation (the “Company”),
propose to enter into an Agreement and Plan of Merger dated as of the date
hereof (as the same may be amended or supplemented, the “Merger
Agreement”)
providing for the merger of Sub with and into the Company (the “Merger”),
upon
the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS
each Stockholder owns the number of shares of common stock, par value $.01
per share, of the Company (the “Company
Common Stock”),
set
forth opposite his, her or its name on Schedule A attached hereto, together
with any other shares of capital stock of the Company acquired by the
Stockholders after the date hereof and during the term of this Agreement,
including through the exercise of any stock options or similar instruments
(such
shares of Company Common Stock being collectively referred to herein as the
“Subject
Shares”
of
such
Stockholder);
WHEREAS
the Board of Directors of the Company has approved the terms of this Agreement
as set forth in the Merger Agreement; and
WHEREAS,
as a condition to its willingness to enter into the Merger Agreement, Parent
has
requested that each Stockholder enter into this Agreement.
NOW,
THEREFORE, to induce Parent to enter into, and in consideration of its entering
into, the Merger Agreement, and in consideration of the mutual promises and
the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, agree as follows:
SECTION
1. Representations
and Warranties of Each Stockholder.
Each
Stockholder hereby, severally and not jointly, represents and warrants to Parent
as of the date hereof in respect of himself, herself or itself as
follows:
(a)
Authority,
Execution and Delivery; Enforceability.
The
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. This Agreement has
been
duly authorized, executed and delivered by the Stockholder and constitutes
the
legal, valid and binding obligation of the Stockholder, enforceable against
the
Stockholder in accordance with its terms, subject to bankruptcy, insolvency,
moratorium,
reorganization
or similar laws affecting the rights of creditors generally and the availability
of equitable remedies. Except for the expiration or termination of the waiting
periods under the HSR Act and informational filings with the SEC, the execution
and delivery by the Stockholder of this Agreement do not, and the consummation
of the transactions contemplated hereby and compliance with the provisions
of
this Agreement will not, conflict with, or result in any violation or
breach of, or default (with or without notice or lapse of time, or both) under,
or give rise to a right of, or result in, termination, cancellation or
acceleration of any obligation or to the loss of a benefit under, or result
in
the creation of any Lien upon any of the Subject Shares of the Stockholder
under, (i) any trust agreement, loan or credit agreement, bond, debenture,
note, mortgage, indenture, lease or other contract, agreement, obligation,
commitment, arrangement, understanding, instrument, permit, franchise or
license, whether oral or written (each, including all amendments thereto, a
“Contract”),
to
which the Stockholder is a party or any of the Subject Shares of the Stockholder
is subject or (ii) subject to the governmental filings and other matters
referred to in the following sentence, any (A) statute, law, ordinance,
rule or regulation applicable to the Stockholder or the Subject Shares of the
Stockholder or (B) order, writ, injunction, decree, judgment or stipulation
applicable to the Stockholder or the Subject Shares of the Stockholder. No
consent, approval, order or authorization of, action by or in respect of, or
registration, declaration or filing with, any Governmental Entity is required
with respect to the Stockholder that is unique to the Stockholder in connection
with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, except for
(i) compliance with and filings under the HSR Act, if applicable to the
Stockholder’s receipt in the Merger of the Merger Consideration, (ii) such
reports under Sections 13(d) and 16 of the Exchange Act as may be required
in connection with this Agreement and the transactions contemplated hereby
and
(iii) where the failure to obtain such consent, approval, order,
authorization or action, or to make such registration, declaration or filing,
could not reasonably be expected to prevent, materially impede or materially
delay the performance by the Stockholder of its obligations under this
Agreement. If the Stockholder is a natural person and is married, and the
Stockholder’s Subject Shares constitute community property or otherwise need
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder’s spouse,
enforceable against such spouse in accordance with its terms. No trust of which
such Stockholder is a trustee requires the consent of any beneficiary to the
execution and delivery of this Agreement or to the consummation of the
transactions contemplated hereby.
(b)
The
Subject Shares.
The
Stockholder is the record and beneficial owner of, or is trustee of a trust
that
is the record holder of, and whose beneficiaries are the beneficial owners
of,
and has good and marketable title to, the Subject Shares set forth opposite
his,
her or its name on Schedule A attached hereto, free and clear of any Liens.
The Stockholder has the sole right to vote such Subject Shares (except to the
extent that such Subject Shares are issuable upon the exercise of options that
have not been exercised by such Stockholder), and, except as contemplated by
this Agreement,
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none
of
such Subject Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of such Subject
Shares.
SECTION
2. Representations
and Warranties of Parent.
Parent
hereby represents and warrants to each Stockholder that Parent (i) is duly
incorporated, validly existing and in good standing under the laws of the State
of New Jersey, (ii) has all requisite corporate power and authority to
execute and deliver the Merger Agreement and to consummate the transactions
contemplated thereby and (iii) has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by Parent of this
Agreement and consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of Parent. Parent
has duly executed and delivered this Agreement, and, assuming this Agreement
constitutes the legal, valid and binding obligation of each of the other parties
hereto, this Agreement constitutes a legal, valid and binding obligation of
Parent enforceable against Parent in accordance with its terms, subject to
bankruptcy, insolvency, moratorium, reorganization or similar laws affecting
the
rights of creditors generally and the availability of equitable remedies. The
execution and delivery by Parent of this Agreement do not, and the consummation
of the transactions contemplated hereby and compliance with the terms of this
Agreement will not, conflict with, or result in any violation or breach of,
or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of, or result in, termination, cancellation or acceleration of any
obligation or to the loss of a benefit under, (i) the Certificate of
Incorporation or By-laws of Parent, (ii) any Contract to which Parent is a
party or any properties or assets of Parent are subject, in any way that would
prevent, materially impede or materially delay the consummation by Parent of
the
transactions contemplated by this Agreement or (iii) subject to the filings
and other matters referred to in the following sentence, any provision of any
(A) statute, law, ordinance, rule or regulation applicable to Parent or the
properties or assets of Parent or (B) order, writ, injunction, decree,
judgment or stipulation applicable to Parent or the properties or assets of
Parent, and in each case in any way that would prevent, materially impede or
materially delay the consummation by Parent of the transactions contemplated
by
this Agreement. No material consent, approval, order or authorization of, action
by or in respect of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to Parent in connection
with
the execution, delivery and performance of this Agreement or the consummation
of
the transactions contemplated hereby, except for such reports under
Sections 13(d) and 16 of the Exchange Act as may be required in connection
with this Agreement and the transactions contemplated hereby.
SECTION
3. Covenants
of each Stockholder.
Each
Stockholder, acting as a stockholder of the Company and not as an officer or
director of the Company, severally and not jointly, agrees as
follows:
(a)
Without in any way limiting each Stockholder’s right to vote its Subject Shares
in its sole discretion with respect to any other matters, at any meeting of
stockholders of the Company called to vote upon the Merger and the Merger
Agreement or at any adjournment thereof or in any other circumstances upon
which
a vote, consent or other approval (including by written consent) with respect
to
the
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Merger
and the Merger Agreement is sought, the Stockholder shall, including by
executing a written consent if requested by Parent, vote (or cause to be voted)
the Subject Shares in favor of the Merger, the adoption by the Company of the
Merger Agreement and the approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement.
(b)
At
any meeting of stockholders of the Company or at any adjournment thereof or
in
any other circumstances upon which the Stockholder’s vote, consent or other
approval is sought, the Stockholder shall vote (or cause to be voted) the
Subject Shares against (i) any merger agreement or merger (other than the
Merger Agreement and the Merger), consolidation, business combination,
recapitalization, liquidation, dissolution, joint venture, binding share
exchange, sale of substantial assets reorganization, or winding up of or by
the
Company or any other Takeover Proposal or (ii) any amendment of the Company
Certificate or Amended and Restated By-laws or other proposal or transaction
involving the Company, which amendment or other proposal or transaction would
in
any manner impede, frustrate, prevent or nullify, or result in a breach of
any
covenant, representation or warranty or any other obligation of the Company
under or with respect to, the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement or change in any manner the
voting rights of the Company Common Stock. The Stockholder shall not commit
or
agree to take any action inconsistent with the foregoing.
(c)
The
Stockholder shall not (i) sell, transfer, pledge, assign or otherwise
dispose of (including by gift) (collectively, “Transfer”),
consent to any Transfer of, or enter into any Contract, option or other
arrangement (including any profit sharing arrangement) with respect to the
Transfer of, any Subject Shares (or any interest therein) to any person other
than pursuant to the terms of the Merger or (ii) enter into any voting
arrangement, whether by proxy, voting agreement or otherwise, with respect
to
any Subject Shares other than pursuant to this Agreement and shall not commit
or
agree to take any of the foregoing actions. The Stockholder shall not, nor
shall
such Stockholder permit any entity under such Stockholder’s control to, deposit
any Subject Shares in a voting trust. Nothing contained in this
Section 3(c) shall prohibit any sale, transfer or assignment of Subject
Shares by a Stockholder that is a natural person to members of such
Stockholder’s family, a family trust of such Stockholder or a charitable
institution or, by a Stockholder that is a family trust to a grantor or a
beneficiary of that trust, if, in each case, the transferee of such Subject
Shares agrees in writing to be bound by the terms hereof and notice of such
sale, transfer or assignment, including the name and address of the purchaser,
transferee or assignee, is delivered to Parent prior to such sale, transfer
or
assignment.
(d)
The
Stockholder shall not, nor shall it authorize or permit (to the extent that
it
has the power not to permit) any employees or Affiliates of, or any investment
banker, financial advisor, attorney, accountant or other advisor, agent or
representative of, the Stockholder (collectively, the “Stockholder
Representatives”)
to,
directly or indirectly through any person or entity, (i) solicit, initiate
or encourage, or take any other action designed to, or which would reasonably
be
expected to, facilitate, any inquiries or the making of any proposal that
constitutes or would reasonably be
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expected
to lead to a Takeover Proposal or (ii) enter into, continue or otherwise
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to any Takeover Proposal. Without limiting
the foregoing, it is agreed that any violation of the restrictions set forth
in
the preceding sentence by any Stockholder Representative of such Stockholder
shall be a breach of this Section 3(d) by such Stockholder. The Stockholder
shall promptly advise Parent orally and in writing of any Takeover Proposal
or
inquiry made to the Stockholder with respect to any Takeover
Proposal.
(e)
Until
the earlier of (i) the consummation of the Merger and (ii) termination
of the Merger Agreement pursuant to its terms, the Stockholder shall use his,
hers or its reasonable efforts to take, or cause to be taken, all actions,
and
to do, or cause to be done, and to assist and cooperate with the other parties
in doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the Merger and the other
transactions contemplated by the Merger Agreement. The Stockholder shall not
issue any press release or make any other public statement with respect to
this
Agreement, the Merger Agreement, the Merger or any other transaction
contemplated by this Agreement or the Merger Agreement without the prior written
consent of Parent, except as may be required by applicable law.
(f)
The
Stockholder, and any beneficiary of a revocable trust for which such Stockholder
serves as trustee, shall not take any action to revoke or terminate such trust
or take any other action which would restrict, limit or frustrate in any way
the
transactions contemplated by this Agreement. Each such beneficiary hereby
acknowledges and agrees to be bound by the terms of this Agreement applicable
to
it.
(g)
The
Stockholder hereby consents to and approves the actions taken by the Board
of
Directors of the Company in approving the Merger Agreement and this Agreement,
the Merger and the other transactions contemplated by the Merger Agreement.
The
Stockholder hereby waives, and agrees not to exercise or assert, any appraisal
or similar rights under Section 262 of the DGCL or other applicable law in
connection with the Merger.
SECTION
4. Grant
of Irrevocable Proxy; Appointment of Attorney-in-Fact.
(a)
Each
Stockholder hereby irrevocably grants to, and appoints, Parent and Xxxxxxx
X.
Xxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxxx, in their respective capacities
as officers or authorized representatives of Parent, and any individual who
shall hereafter succeed to any such office of Parent, and each of them
individually, and any individual designated in writing by any of them, as 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
Subject Shares, or grant a consent or approval in respect of such Subject Shares
(i) in favor of adoption of the Merger Agreement and approval of the Merger
and any other transactions contemplated by the Merger Agreement,
(ii) against any Takeover Proposal and (iii) against any
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amendment
of the Company Certificate or Amended and Restated By-laws, or other proposal
or
transaction (including any consent solicitation to remove or elect any directors
of the Company) involving the Company, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent or nullify, or result
in a breach of any covenant, representation or warranty or any other obligation
or agreement of the Company under or with respect to, the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement
or change in any manner the voting rights of the Company Common Stock. The
Stockholder understands and acknowledges that Parent is entering into the Merger
Agreement in reliance upon the Stockholder’s execution and delivery of this
Agreement.
(b)
Such
Stockholder represents that any proxies heretofore given in respect of such
Stockholder’s Subject Shares are not irrevocable, and that all such proxies are
hereby revoked.
(c)
Such
Stockholder hereby affirms that the irrevocable proxy set forth in this
Section 4 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 the Stockholder under this Agreement. Such Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest and
may
under no circumstances be revoked. Such 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 DGCL. The
irrevocable proxy granted hereunder shall automatically terminate upon the
termination of this Agreement in accordance with Section 7.
SECTION
5. Further
Assurances.
Each
Stockholder will, from time to time, execute and deliver, or cause to be
executed and delivered, such additional or further consents, documents and
other
instruments as Parent may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement.
SECTION
6. Additional
Matters.
(a) Each
Stockholder agrees that this Agreement and the obligations hereunder shall
attach to such Stockholder’s Subject Shares and shall be binding upon any person
or entity to which legal or beneficial ownership of such Subject Shares shall
pass, whether by operation of law or otherwise, including such Stockholder’s
heirs, guardians, administrators or successors, and that each certificate
representing such Subject Shares will be inscribed with a legend to such effect.
In the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Company Common Stock, or the acquisition of additional shares
of
Company Common Stock or other voting securities of the Company by any
Stockholder, the number of Subject Shares listed in Schedule A beside the
name of such Stockholder shall be adjusted appropriately, and this Agreement
and
the obligations hereunder shall attach to any additional shares of Company
Common Stock or other voting securities of the Company issued to or acquired
by
such Stockholder. Notwithstanding any provision in this Agreement to the
contrary,
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nothing
herein shall require or be deemed to require the exercise of, or give any person
other than the Stockholder the power to exercise, any option to purchase Company
Common Stock.
(b)
Each
Stockholder agrees that such Stockholder will tender to the Company, within
10 business days after the date hereof (or, in the event Subject Shares are
acquired subsequent to the date hereof within 10 business days after the
date of such acquisition), any and all certificates representing such
Stockholder’s Subject Shares in order that the Company may inscribe upon such
certificates the legend in accordance with Section 5.10 of the Merger
Agreement.
(c)
No
person executing this Agreement who is or becomes during the term hereof a
director or officer of the Company makes (or shall be deemed to have made)
any
agreement or understanding herein in his or her capacity as such a director
or
officer of the Company. Each Stockholder signs solely in his, her or its
capacity as the record holder and beneficial owner of, or the trustee of a
trust
whose beneficiaries are the beneficial owners of, such Stockholder’s Subject
Shares and nothing herein shall limit or affect any actions taken by any
Stockholder or any employee or Affiliate of any Stockholder in his or her
capacity as an officer or director of Company to the extent not prohibited
by
the Merger Agreement.
SECTION
7. Termination.
This
Agreement shall terminate, and the provisions hereof shall be of no further
force or effect, upon the earliest to occur of (i) the Effective Time,
(ii) the termination of the Merger Agreement or (iii) at the option of
any Stockholder, the execution or granting of any amendment, modification,
change or waiver with respect to the Merger Agreement subsequent to the date
of
this Agreement that results in any decrease in the price to be paid per share
for the shares of Company Common Stock. Nothing in this Section 7 shall
relieve or otherwise limit the liability of any party for breach of this
Agreement.
SECTION
8. General
Provisions.
(a)
Amendments.
This
Agreement may not be amended except by an instrument in writing signed by each
of the parties hereto.
(b)
Notice.
All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or sent by overnight courier (providing proof of delivery) to
Parent in accordance with Section 8.02 of the Merger Agreement and to the
Stockholders at their respective addresses set forth on Schedule A attached
hereto (or at such other address for a party as shall be specified by like
notice).
(c)
Interpretation.
When a
reference is made in this Agreement to a Section or Schedule, such reference
shall be to a Section of or a Schedule to, 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. Wherever the words “include”, “includes” or “including” are used in
this Agreement, they shall be deemed to be followed by the
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words
“without limitation”. The words “hereof”, “herein” and “hereunder” and words of
similar import when used in this Agreement shall refer to this Agreement as
a
whole and not to any particular provision of this Agreement.
(d)
Counterparts.
This
Agreement may be executed in one or more counterparts (including by facsimile),
all of which shall be considered one and the same agreement. This Agreement
shall become effective against Parent when one or more counterparts have been
signed by Parent and delivered to each Stockholder. This Agreement shall become
effective against any Stockholder when one or more counterparts have been
executed by such Stockholder and delivered to Parent. Each party need not sign
the same counterpart.
(e)
Entire
Agreement; No Third-Party Beneficiaries.
This
Agreement (including the documents and instruments referred to herein)
(i) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to
the
subject matter hereof and (ii) is not intended to confer upon any person
other than the parties hereto any legal or equitable rights or
remedies.
(f)
GOVERNING
LAW; CAPITALIZED TERMS.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS
OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN
UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW THEREOF. CAPITALIZED TERMS
USED
BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS SET FORTH IN THE MERGER
AGREEMENT.
(g)
Voidability.
If prior
to the execution hereof, the Board of Directors of the Company shall not have
duly and validly authorized and approved by all necessary corporate action,
this
Agreement, the Merger Agreement and the transactions contemplated hereby and
thereby, so that by the execution and delivery hereof Parent or Sub would
become, or could reasonably be expected to become an “interested stockholder”
with whom the Company would be prevented for any period pursuant to
Section 203 of the DGCL from engaging in any “business combination” (as
such terms are defined in Section 203 of the DGCL), then this Agreement
shall be void and unenforceable until such time as such authorization and
approval shall have been duly and validly obtained.
SECTION
9. Specific
Enforcement; Consent to Jurisdiction.
The
parties agree that irreparable damage would occur and that the parties would
not
have any adequate remedy at law in the event that any of the provisions of
this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any Federal
court located in the State of Delaware or in any state court in the State of
Delaware, this being in addition to any other remedy to which they are entitled
at law or in equity. In addition, each of the parties hereto (i) consents
to
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submit
itself to the personal jurisdiction of any Federal court located in the State
of
Delaware or of any state court located in the State of Delaware in the event
any
dispute arises out of this Agreement or the transactions contemplated by this
Agreement, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court
and (iii) agrees that it will not bring any action relating to this
Agreement or the transactions contemplated by this Agreement in any court other
than a Federal court located in the State of Delaware or a state court located
in the State of Delaware.
SECTION
10. Assignment.
Subject
to Section 3(c), neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, in whole or in part, by any
Stockholder, on the one hand, without the prior written consent of Parent nor
by
Parent, on the other hand, without the prior written consent of the
Stockholders, and any assignment without such consent shall be null and void,
except that Parent may assign, in its sole discretion, any or all of its rights,
interests and obligations hereunder to any direct or indirect wholly owned
Subsidiary of Parent. Subject to the preceding sentence, this Agreement will
be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.
SECTION
11. Waiver
of Jury Trial.
Each of
the parties hereto hereby waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect of any suit, action
or
other proceeding arising out of this Agreement. Each party hereto (a) certifies
that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such party would not, in the event of any action,
suit or proceeding, seek to enforce the foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this
Agreement, by, among other things, the mutual waiver and certifications in
this
Section 11.
SECTION
12. Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect.
Upon such determination that any term or other provision is invalid, illegal
or
incapable of being enforced, the parties hereto shall negotiate in good faith
to
modify this Agreement so as to effect the original intent of the parties as
closely as possible to the fullest extent permitted by applicable law in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
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IN
WITNESS WHEREOF, Parent has caused this Agreement to be signed by its officer
thereunto duly authorized and each Stockholder has signed this Agreement, all
as
of the date first written above.
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XXXXXXX
& XXXXXXX,
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by
/s/ Xxxx X. Xxxx
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Name:
Xxxx X. Xxxx
Title:
Treasurer
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[Signature
pages of the Stockholders follow]
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LIBERTY
VENTURES I, L.P.
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By: Liberty
Ventures, Inc.
Its
General Partner
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By:
/s/ Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx
President
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LIBERTY
VENTURES II, L.P.
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By: Liberty
Venture Partners II, LLC,
Its
General Partner
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By:
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Managing
Director
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LIBERTY
ADVISORS, INC.
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By:
/s/ Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx
President
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HLM/UH
FUND, L.P.
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By: HLM/UH
Associates, LLC.
Its
General Partner
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By: HLM
Management Co., Inc.
Managing
Member
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By:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxx
Executive
Vice President
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HLM
OPPORTUNITIES FUND, L.P.
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By: HLM
Opportunities Associates, LLC
Its
General Partner
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By: HLM
Management Co., Inc.
Managing
Member
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By:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Executive
Vice President
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HLM/CB
FUND II, L.P.
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By: HLM/CB
Associates II, LLC
Its
General Partner
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By: HLM
Management Co., Inc.
Managing
Member
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By:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Executive
Vice President
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/s/ Xxxxxxxxx X. Xxxxxxxx
Xxxxxxxxx X.
Xxxxxxxx
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XXXXXXXXX
X. XXXXXXXX GRANTOR
RETAINED
ANNUITY TRUST
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By:
/s/ Xxxxxxxxx X. Xxxxxxxx
Xxxxxxxxx X. Xxxxxxxx
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XXXXX
X. XXXXXXXX TRUST
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By:
/s/ Xxxxxxxxx X. Xxxxxxxx
Xxxxxxxxx
X. Xxxxxxxx
Trustee
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XXXXXXXXX
XXXXXXXX TRUST
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By:
/s/ Xxxxxxxxx X. Xxxxxxxx
Xxxxxxxxx X. Xxxxxxxx
Trustee
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XXXXX
X. XXXXXXXX TRUST
|
|
By:
/s/ Xxxxxxxxx X. Xxxxxxxx
Xxxxxxxxx
X. Xxxxxxxx
Trustee
|
|
XXXXX
X. XXXXXXXX TRUST
|
|
By:
/s/ Xxxxxxxxx X. Xxxxxxxx
Xxxxxxxxx
X. Xxxxxxxx
Trustee
|
13
|
/s/ Xxxxxx Xxxxxxxx
Xxxxxx
Xxxxxxxx
|
14
|
/s/ Xxxxxxx X. Xxxxxx, XX
Xxxxxxx
X. Xxxxxx, XX
|
|
TRUST
UNDER AGREEMENT OF XXXXXXX X.
XXXXXX,
V DATED MARCH 16, 2000
|
|
By:
/s/ Xxxxxxx X. Xxxxxx, XX
Xxxxxxx
X. Xxxxxx, XX
Attorney-in-fact
for Xxxxxxx X. Xxxxxx, V
|
|
TRUST
UNDER AGREEMENT OF XXXXX X.
XXXXXX
DATED JUNE 19, 2000
|
|
By:
/s/ Xxxxxxx X. Xxxxxx, XX
Xxxxxxx
X. Xxxxxx, XX
Attorney-in-fact
for Xxxxx X. Xxxxxx
|
15
|
/s/ A. Xxxxx Xxxxxxx
A.
Xxxxx Xxxxxxx
|
|
XXXXXXXXX
X. XXXXXXXX 1999
DESCENDENTS
TRUST
|
|
By:
/s/ A. Xxxxx Xxxxxxx
A.
Xxxxx Xxxxxxx
Trustee
for the Xxxxxxxxx X. Xxxxxxxx
1999
Descendents Trust
|
16
|
DEED
OF TRUST OF XXXXXXX X.
XXXXXX,
XX, SETTLOR, DATED MAY 29,
1996,
XXXXXXX X. XXXXXX, XXXXXX X.
XXXXXX,
TRUSTEES, EIN: 00-0000000
|
|
By:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxx
Trustee
under Deed of Trust of Xxxxxxx
X.
Xxxxxx, XX, Settlor, dated
May
29, 1996
|
|
DEED
OF TRUST OF XXXXXXX X.
XXXXXX,
XX, SETTLOR, DATED JULY 27,
1998,
XXXXXXX X. XXXXXX, XXXXXX X.
XXXXXX,
TRUSTEES, EIN: 00-0000000
|
|
By:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxx
Trustee
under Deed of Trust of Xxxxxxx
X.
Xxxxxx, XX, Settlor, dated
July
27,
1998
|
17
|
XXXXXX
X. XXXXXXXX GRANTOR
RETAINED
ANNUITY TRUST
|
|
By:
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
|
|
XXXXXX
X. XXXXXXXX 1999
DESCENDENTS
TRUST
|
|
By:
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx
X. Xxxxxxxx
Trustee
for the Xxxxxx X. Xxxxxxxx
1999
Descendents Trust
|
18
|
SCHEDULE
A
|
|
|
Name
and Address
of
Stockholder
|
Number
of
Shares
of
Common
Stock
Owned
of Record
|
|
Xxxxxxxxx
X. Xxxxxxxx
|
1,238,917
|
|
Xxxxxxxxx
X. Xxxxxxxx Grantor Retained Annuity Trust
|
266,667
|
|
Xxxxxx
Xxxxxxxx
|
336,833
|
|
Xxxxx
X. Xxxxxxxx Trust
|
92,711
|
|
Xxxxx
X. Xxxxxxxx Trust
|
92,711
|
|
Xxxxxxxxx
Xxxxxxxx Trust
|
92,711
|
|
Xxxxx
X. Xxxxxxxx Trust
|
92,711
|
|
Xxxxxxx
X. Xxxxxx, XX
|
1,437,587
|
|
Trust
Under Agreement of Xxxxxxx X. Xxxxxx, V Dated March 16,
2000
|
149,111
|
|
Trust
Under Agreement of Xxxxx X. Xxxxxx Dated June 19, 2000
|
149,111
|
|
Deed
of Trust of Xxxxxxx X. Xxxxxx, XX, Settlor, dated May 29, 1996, Xxxxxxx
X.
Xxxxxx, Xxxxxx X. Xxxxxx, Trustees, EIN: 00-0000000
|
20,759
|
|
Deed
of Trust of Xxxxxxx X. Xxxxxx, XX, Settlor, dated July 27, 1998,
Xxxxxxx
X. Xxxxxx, Xxxxxx X. Xxxxxx, Trustees,
EIN:
00-0000000
|
35,640
|
19
|
Name
and Address
of
Stockholder
|
Number
of
Shares
of
Common
Stock
Owned
of Record
|
|
Xxxxxx
X. Xxxxxxxx Grantor Retained Annuity Trust
|
133,334
|
|
HLM/UH
Fund, L.P.
|
541,132
|
|
HLM/CB
Fund II, L.P.
|
225,471
|
|
HLM
Opportunities Fund, L.P.
|
135,282
|
|
Liberty
Advisors, Inc.
|
1,837
|
|
Liberty
Ventures I, L.P.
|
285,073
|
|
Liberty
Ventures II, L.P.
|
285,073
|
|
A.
Xxxxx Xxxxxxx
|
4,800
|
|
Xxxxxxxxx
X. Xxxxxxxx 1999 Descendents Trust
|
351,422
|
|
Xxxxxx
X. Xxxxxxxx 1999 Descendents Trust
|
184,500
|
|
________
|
|
|
Total
|
6,153,393
|
20
