EXHIBIT 99.5
VOTING AGREEMENT
This Voting Agreement, dated as of March 12, 2003 (this "Agreement"), is made by
and among Xxxxx Xxxxxxxxx, as Purchaser Representative ("Purchaser
Representative") and each of the stockholders of NOVATEL WIRELESS, INC., a
Delaware corporation (the "Company") identified on the signature pages hereto
(collectively, the "Stockholders" and each, individually, a "Stockholder").
WITNESSETH:
WHEREAS, the Company and certain purchasers (collectively, the "Purchaser") are
entering into a Securities Purchase Agreement, dated as of the date hereof (as
it may be amended from time to time, the "Purchase Agreement"; capitalized terms
used and not otherwise defined in this Agreement have the respective meanings
ascribed to such terms in the Purchase Agreement), pursuant to which the Company
has agreed to issue the Tranche I Notes, certain shares of Series B Preferred
Stock and certain warrants to purchase Common Stock;
WHEREAS, each Stockholder is the record or beneficial owner of the number of
shares of Common Stock set forth on Schedule A hereto opposite such
Stockholder's name (all such shares of Common Stock and any shares of Common
Stock hereafter acquired by such Stockholder, including upon exercise, exchange
or conversion of any option or other convertible security, the "Shares");
WHEREAS, as a condition to entering into the Purchase Agreement and incurring
the obligations set forth therein, Purchaser has required that the Stockholders
agree to enter into this Agreement; and
WHEREAS, the Stockholders wish to induce Purchaser to enter into the Purchase
Agreement and, therefore, the Stockholders are willing to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.01 Voting Agreement. Each Stockholder, in its capacity as such, hereby
agrees that, during the period commencing on the date hereof and continuing
until the termination of this Agreement as set forth in Section 4.01 (the
"Termination Date"), at any meeting of the stockholders of the Company, however
called, it will cause the Shares that such Stockholder beneficially owns to be
counted as present (or absent, if requested by Purchaser Representative )
thereat for purposes of establishing a quorum, and, at any such meeting or in
any action by consent of the stockholders of the Company, such Stockholder shall
vote (or cause to be voted) all of such Stockholder's Shares (i) in favor of the
approval and adoption of all of the
transactions contemplated by the Purchase Agreement and this Agreement and
otherwise in such manner as may be necessary to consummate the First Closing and
the Second Closing, including, without limitation, the Shareholder Proposals
described therein; (ii) against any action, proposal, agreement or transaction
that would result in a breach of any covenant, obligation, agreement,
representation or warranty of the Company under the Purchase Agreement or of
such Stockholder contained in this Agreement; and (iii) against any action,
agreement, transaction (other than the Purchase Agreement or the transactions
contemplated thereby) or proposal (including any Transaction Proposal) that
could reasonably be expected to result in any of the conditions to the First
Closing or the Second Closing or to the Company's obligations under the Purchase
Agreement not being fulfilled or that is intended, or could reasonably be
expected, to impede, interfere, delay, discourage or adversely affect the
Purchase Agreement, the First Closing, the Second Closing or this Agreement. Any
vote by such Stockholder that is not in accordance with this Section 1.01 shall
be considered null and void, and the provisions of Section 1.02 shall be deemed
to take immediate effect; provided, however, that nothing in this Agreement
shall limit or affect any signatory hereto solely in his capacity as a member of
the Board of Directors or officer of the Company; provided further, that nothing
in this Agreement shall be interpreted as obligating the Stockholders to
exercise any options to acquire shares of Common Stock of the Company.
SECTION 1.02 Irrevocable Proxy. If a Stockholder fails to comply with the
provisions of Section 1.01, such Stockholder hereby agrees that such failure
shall result, without any further action by such Stockholder, effective as of
the date of such failure, in the constitution and appointment of Xxxxx Xxxxxxx
and Xxxxx Xxxxxxxxx, and each of them, from and after the date of such failure
until the Termination Date (at which point such constitution and appointment
shall automatically be revoked) as such Stockholder's attorney, agent and proxy
(such constitution and appointment, the "Irrevocable Proxy"), with full power of
substitution, to vote and otherwise act with respect to all such Stockholder's
Shares at any meeting of the stockholders of the Company (whether annual or
special and whether or not an adjourned or postponed meeting), however called,
and in any action by written consent of the stockholders of the Company, on the
matters and in the manner specified in Section 1.01. Without limiting the
foregoing, in any such vote or other action pursuant to such proxy, neither
Xxxxx Xxxxxxx, Xxxxx Xxxxxxxxx nor any other person listed in the immediately
preceding sentence shall in any event have the right (and such proxy shall not
confer the right) to vote against the transactions contemplated by the Purchase
Agreement. THIS PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND
BINDING ON ANY PERSON TO WHOM A STOCKHOLDER MAY TRANSFER ANY OF ITS SHARES IN
BREACH OF THIS AGREEMENT. Each Stockholder hereby revokes all other proxies and
powers of attorney with respect to all such Stockholder's Shares that may have
heretofore been appointed or granted, and no subsequent proxy or power of
attorney shall be given (and if given, shall not be effective) by such
Stockholder with respect thereto. All authority herein conferred or agreed to be
conferred shall survive the death or incapacity of such Stockholder and any
obligation of such Stockholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of such Stockholder.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby severally, but not jointly, represents and warrants to
Purchaser Representative (for the benefit of Purchaser) as to such Stockholder
as follows:
SECTION 2.01 Organization and Authority of the Stockholders. Each Stockholder
that is an individual has full legal capacity, power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. Each
Stockholder that is not an individual is duly formed, validly existing and in
good standing under the laws of the jurisdiction of its formation and has all
necessary power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by each Stockholder and the
performance by each Stockholder of such Stockholder's obligations hereunder have
been duly authorized by all requisite action on the part of each Stockholder.
This Agreement has been duly and validly executed and delivered by each
Stockholder and (assuming due authorization, execution and delivery by Purchaser
Representative) constitutes a legal, valid and binding obligation of each
Stockholder enforceable against each Stockholder in accordance with its terms,
except as limited by bankruptcy, insolvency and other similar laws or equitable
principles (but not those concerning fraudulent conveyance) generally affecting
creditors' rights and remedies.
SECTION 2.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by each Stockholder does not,
and the performance of this Agreement by each Stockholder will not, (i) conflict
with or violate any agreement to which a Stockholder is a party, any trust
agreement or any equivalent organizational documents, as the case may be, of
such Stockholder, (ii) conflict with or violate any law applicable to such
Stockholder or by which any property or asset of such Stockholder is bound or
affected or (iii) result in any breach of, or constitute a default (or event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of an Lien on any Shares (other than pursuant to this
Agreement) pursuant to, any note, bond, mortgage, indenture, pledge, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
of such Stockholder, except, with respect to clauses (ii) and (iii) above, for
any such conflicts, violations, breaches, defaults or other occurrences that
would not prevent or materially delay the ability of such Stockholder to carry
out such Stockholder's obligations under this Agreement.
(b) The execution and delivery of this Agreement by each Stockholder does not,
and the performance of this Agreement by each Stockholder will not, require any
consent, approval, authorization or permit of, or filing with, or notification
to, any Governmental Authority, except (i) for applicable requirements, if any,
of the Exchange Act and state securities or "blue sky" laws, and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or materially delay the
ability of such Stockholder to carry out such Stockholder's obligations under
this Agreement.
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SECTION 2.03 Ownership of Shares. As of the date hereof, each Stockholder is the
record or beneficial owner (as defined in Rule 13d-3 under the Exchange Act,
which meaning will apply for all purposes of this Agreement) of, and has good,
valid and marketable title to, the number of Shares set forth opposite such
Stockholder's name on Schedule A hereto. Except as set forth on Schedule A, such
Shares are all the securities (as defined in Section 3(a)(10) of the Exchange
Act, which definition will apply for all purposes of this Agreement) of the
Company owned, either of record or beneficially, by such Stockholder as of the
date hereof and such Stockholder does not have any option or other right to
acquire any other securities of the Company. The Shares owned by such
Stockholder are owned free and clear of all Liens, other than any Liens created
by this Agreement or pledges disclosed in writing to Purchaser Representative
pursuant to Section 3.01 below. Except as provided in this Agreement, such
Stockholder has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Shares owned by such Stockholder.
SECTION 2.04 Reliance by Purchaser. Each Stockholder understands and
acknowledges that Purchaser is entering into the Purchase Agreement in reliance
upon such Stockholder's execution, delivery and performance of this Agreement.
SECTION 2.05 No Finder's Fees. No broker, finder, investment banker or financial
advisor is entitled to any brokerage, finder's, financial advisor's or other fee
or commission in connection with the transactions contemplated by this Agreement
or the Purchase Agreement based upon arrangements made by or on behalf of such
Stockholder that is or will be payable by Purchaser, Purchaser Representative,
the Company or any of their respective Subsidiaries.
SECTION 2.06 Absence of Litigation. As of the date of this Agreement, there is
no litigation, suit, claim, action, proceeding or investigation pending, or to
the knowledge of such Stockholder, threatened against such Stockholder, or any
property or asset of such Stockholder, before any Governmental Body that seeks
to delay or prevent the consummation of the transactions contemplated by this
Agreement or the Purchase Agreement.
ARTICLE III
COVENANTS OF THE STOCKHOLDERS
SECTION 3.01 No Disposition or Lien of Shares. Except for pledges in existence
as of the date hereof that have been disclosed in writing to Purchaser
Representative, each Stockholder hereby agrees that, except as contemplated by
this Agreement, such Stockholder shall not (i) sell, transfer, tender, pledge,
assign, contribute to the capital of any entity, hypothecate, give or otherwise
dispose of, grant a proxy or power of attorney with respect to (other than the
Irrevocable Proxy), deposit into any voting trust, enter into any voting
agreement, or create or permit to exist any Liens of any nature whatsoever
(other than pursuant to this Agreement) with respect to, any of such
Stockholder's Shares (or agree or consent to, or offer to do, any of the
foregoing), or (ii) take any action that would make any representation or
warranty of such
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Stockholder herein untrue or incorrect or have the effect of preventing,
delaying or disabling such Stockholder from performing such Stockholder's
obligations hereunder.
SECTION 3.02 No Solicitation of Transactions. None of the Stockholders shall,
directly or indirectly, through any Representative, or otherwise, (i) solicit,
initiate, facilitate or encourage, directly or indirectly, any inquiries
relating to, or the submission of, any Transaction Proposal, (ii) participate in
any discussions or negotiations regarding any Transaction Proposal, or in
connection with any Transaction Proposal, or furnish to any Person any
information or data with respect to or provide access to the properties of the
Company or any of its Subsidiaries, or take any other action to facilitate the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Transaction Proposal or (iii) enter into any agreement with respect to
any Transaction Proposal or approve or resolve to approve any Transaction
Proposal; provided, however, that nothing herein shall prevent a Stockholder
from acting in such Stockholder's capacity as a director or officer of the
Company, or taking any action in such capacity (including at the direction of
the Company's board of directors), but only in either such case as and to the
extent permitted by Section 5.5 of the Purchase Agreement. Except as otherwise
provided by Section 5.5 of the Purchase Agreement, each Stockholder shall, and
shall direct or cause such Stockholder's Representatives to, immediately cease
any existing activities, discussions or negotiations with any Person conducted
heretofore with respect to any of the foregoing actions described in (i), (ii)
and (iii) of this Section 3.02.
SECTION 3.03 Cooperation. Each Stockholder agrees to cooperate fully with
Purchaser Representative to execute and deliver such further documents,
certificates, agreements and instruments and to take such other actions as may
be reasonably requested by Purchaser Representative to evidence or reflect the
transactions contemplated by this Agreement and to carry out the intent and
purposes of this Agreement.
SECTION 3.04 Information for Offer Documents and Proxy Statement; Disclosure.
Each Stockholder covenants and agrees that none of the information relating to
such Stockholder and its affiliates for inclusion in any proxy statement or
other filings with the SEC with respect to the transactions contemplated by the
Purchase Agreement that has been or will be furnished to Purchaser
Representative by such Stockholder for inclusion in such documents will, at (i)
the time such proxy statement or other filing (or any amendment or supplement
thereto) is first filed with the SEC or mailed to stockholders of the Company or
(ii) the time of the Company Stockholders' Meeting (in the case of information
included in the proxy statement), not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Each Stockholder agrees to permit
Purchaser and Purchaser Representative to publish and disclose in such documents
and any related filings under applicable securities laws such Stockholder's
identity and ownership of Shares and the nature of its commitments, arrangements
and understandings under this Agreement and any other information regarding such
Stockholder as required by applicable laws, provided that each such Stockholder
shall be given reasonable opportunity to review and comment on the applicable
portion of such documents relating to such Stockholder and its affiliates.
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ARTICLE IV
MISCELLANEOUS
SECTION 4.01 Termination. This Agreement shall automatically terminate with
respect to any Stockholder, on the earlier of (i) the mutual agreement of
Purchaser Representative and Stockholders, (ii) the consummation of the Second
Closing, or (iii) the termination of the Purchase Agreement in accordance with
its terms.
SECTION 4.02 Nature of Obligations. Each of the obligations of each of the
Stockholders hereunder is several and not joint.
SECTION 4.03 Legending of Certificates; Nominees Shares; Stop Transfer. Upon
request by Purchaser Representative, each Stockholder agrees to submit to
Purchaser Representative contemporaneously with or promptly following execution
of this Agreement all certificates representing their Shares so that Purchaser
Representative may note thereon a legend referring to the rights granted to it
under this Agreement. If any of the Shares beneficially owned by a Stockholder
are held of record by a brokerage firm in "street name" or in the name of any
other nominee (a "Nominee," and, as to such Shares, "Nominee Shares"), such
Stockholder agrees that, upon written request by Purchaser Representative, such
Stockholder will within five days of such request execute and deliver to
Purchaser Representative a limited power of attorney, in form and substance
reasonably satisfactory to Purchaser Representative, enabling Purchaser
Representative to require such Nominee to (i) enter into an agreement to the
same effect as Article I hereof with respect to the Nominee Shares held by such
Nominee, and (ii) submit to Purchaser Representative the certificates
representing such Nominee Shares for notation of the above-referenced legend
thereon.
SECTION 4.04 Disclosure. Purchaser Representative and the Stockholders shall
consult with each other before issuing any press release or otherwise making any
public statement with respect to this Agreement or the Purchase Agreement or the
transactions contemplated hereby or thereby.
SECTION 4.05 Adjustments.
(a) In the event (i) of any increase or decrease or other change in the Shares
by reason of stock dividend, stock split, reverse stock split,
recapitalizations, combinations, exchanges of shares or the like or (ii) that a
Stockholder becomes the beneficial owner of any additional shares of Common
Stock or other securities of the Company, then the terms of this Agreement shall
apply to the shares of capital stock and other securities of the Company held by
the Stockholders immediately following the effectiveness of the events described
in clause (i), or such Stockholder becoming the beneficial owner thereof
pursuant to clause (ii).
(b) Each Stockholder hereby agrees to promptly notify Purchaser Representative
of the number of any new Shares or other securities acquired by such
Stockholder, if any, after the date hereof.
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SECTION 4.06 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 given upon receipt) by delivery in person, by telecopy
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this
Section 4.06):
(a) if to any Stockholder:
To the appropriate address set forth on Schedule B hereto
(b) if to Purchaser Representative:
Xxxxx Xxxxxxxxx
c/o Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
with a copy to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
SECTION 4.07 Amendment. This Agreement may not be amended except by an
instrument in writing signed by all the parties hereto.
SECTION 4.08 Waiver. No failure on the part of any party to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
party in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. No party shall be deemed to have waived any claim arising
out of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such party; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
SECTION 4.09 Entire Agreement. This Agreement (together with the Schedules
hereto) constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements and undertakings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof, other than the Purchase Agreement and the other agreements
contemplated thereby.
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SECTION 4.10 Applicable Law; Jurisdiction. 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 laws thereof or any other jurisdiction. In any action between any of the
parties arising out of or relating to this Agreement or any of the transactions
contemplated by this Agreement: (a) each of the parties irrevocably and
unconditionally consents and submits to the exclusive jurisdiction and venue of
the state and federal courts located in the State of Delaware (and agrees not to
commence any such action except in such courts) and irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action brought in such court has been brought in an inconvenient forum;
(b) if any such action is commenced in a state court, then, subject to
applicable law, no party shall object to the removal of such action to any
federal court located in the State of Delaware; (c) each of the parties
irrevocably waives the right to trial by jury; and (d) each of the parties
irrevocably consents to service of process by first class certified mail, return
receipt requested, postage prepaid, to the address at which such party is to
receive notice in accordance with Section 4.06.
SECTION 4.11 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity, without necessity of proof that there is no adequate
remedy at law or requirement to post any security bond.
SECTION 4.12 Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 4.13 Costs and Expenses. Except as otherwise provided in the Purchase
Agreement, all costs and expenses of the parties hereto, including fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the First
Closing or the Third Closing shall have occurred.
SECTION 4.14 Parties in Interest; Assignability. This Agreement shall be binding
upon, and shall be enforceable by and inure solely to the benefit of, the
parties hereto, Purchaser and their respective successors and assigns; provided,
however, that neither this Agreement nor any of the Stockholders' rights
hereunder may be assigned by any Stockholder without the prior written consent
of Purchaser Representative, and any attempted assignment of this Agreement or
any of such rights by any Stockholder without such consent shall be void and of
no effect; provided, further, that Purchaser may assign its rights under this
Agreement to any direct or indirect subsidiary of Purchaser. Except as noted in
the previous sentence, nothing in this Agreement, express or implied, is
intended to or shall confer upon any Person (other than the parties hereto) any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement. Any assignment prohibited under this Section shall be null and void.
Purchaser Representative shall provide Stockholders with written notice of the
designation of any new person or entity as Purchaser Representative pursuant to
the Purchase Agreement, and such person or entity shall succeed to the rights
and obligations of Purchaser Representative hereunder.
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SECTION 4.15 Severability. Any term or provision of this Agreement that is held
by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction. If the final judgment of a court of competent
jurisdiction or other authority declares that any term or provision hereof is
invalid, void or unenforceable, the parties agree that the court making such
determination shall have the power to reduce the scope, duration, area or
applicability of the term or provision, to delete specific words or phrases, or
to replace any invalid, void or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision.
SECTION 4.16 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 4.17 Interpretation of Representations. Each representation and warranty
made in this Agreement or pursuant hereto is independent of all other
representations and warranties made by the same parties, whether or not covering
related or similar matters, and must be independently and separately satisfied.
Exceptions or qualifications to any such representation or warranty shall not be
construed as exceptions or qualifications to any other representation or
warranty.
SECTION 4.18 Construction.
(a) For purposes of this Agreement, whenever the context requires: the singular
number shall include the plural, and vice versa; the masculine gender shall
include the feminine and neuter genders; the feminine gender shall include the
masculine and neuter genders; and the neuter gender shall include masculine and
feminine genders.
(b) The parties hereto agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Agreement.
(c) For purposes of this Agreement, the words "include" and "including," and
variations thereof, shall not be deemed to be terms of limitation, but rather
shall be deemed to be followed by the words "without limitation."
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the day and year first above written.
Purchaser Representative
By:/s/ Xxxxx Xxxxxxxxx
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the day and year first above written.
Purchaser
By: /s/ Xxxxx Xxxxxxx
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Cornerstone Equity Investors, LLC
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Title: Chief Financial Officer
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By: /s/ Xxxx Xxxxx
---------------------------------
Title: Chairman of the Board
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By: /s/ Xxxxxx Xxxx
---------------------------------
Title: Director
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Aether Capital LLC
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Title: Chief Financial Officer
------------------------------
By: /s/ Xxxxx Xxxx
---------------------------------
Title: Director
------------------------------
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Title: Director
------------------------------
By: /s/ Xxxx X. Major
-----------------------------------------
Title: Director
------------------------------
By: /s/ Xxxx Xxx
-----------------------------------------
Title: Director
------------------------------
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By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Title: Director
------------------------------
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Title: Chief Executive Officer
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By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Title: Senior Vice President, Finance
---------------------------------
Chief Financial Officer and
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Secretary
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SCHEDULE A
NUMBER OF SHARES OF NUMBER OF SHARES
COMMON STOCK ISSUABLE UPON
EXERCISE OF COMPANY
NAME OPTIONS AND WARRANTS
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SCHEDULE B
NAME ADDRESS
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