EXHIBIT 9.1
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SECURITYHOLDERS' AGREEMENT
AGREEMENT, dated as of June 30, 1998, among JFAX Communications, Inc.,
a Delaware corporation (the "Company"), the investors listed on Exhibit 1 hereto
(the "Investors") and the shareholders listed on Exhibit 2 hereto (the
"Shareholders").
RECITALS
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WHEREAS, the Company is concurrently herewith entering into a
Securities Purchase Agreement with the Investors named therein (the "Securities
Purchase Agreement"), authorizing the issuance and delivery of (i) $10,000,000
aggregate principal amount of Senior Subordinated Notes due 2004 (the "Notes")
and (ii) shares of the Company's Common Stock, par value $.01 ("Common Stock").
WHEREAS, the Company, on or about the date hereof, is entering into a
Preferred Stock Purchase Agreement with the Investors named therein (the
"Preferred Stock Purchase Agreement"), authorizing the issuance and delivery of
(i) 5,000 shares of the Company's Series A Usable Redeemable Preferred Stock
(the "Preferred Stock") and (ii) warrants to purchase shares of Common Stock
("Warrants");
WHEREAS, it is a condition to the execution of each of the Securities
Purchase Agreement and the Preferred Stock Purchase Agreement that the parties
hereto enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Definitions. Capitalized terms used but not defined
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herein shall have the meaning ascribed to them in the Securities Purchase
Agreement. As used herein, the following terms shall have the following
meanings:
"Affiliate" shall mean, with respect to any Person, (i) any other
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Person which, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with such Person, (ii)
any other Person which, directly or indirectly, beneficially owns or holds 5% or
more of any class of voting stock of such Person, or (iii) any Person of which,
directly or indirectly, such Person owns or holds 5% or more of any equity
security (as defined in the Securities Act). The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management
and policies of a Person, whether by virtue of the ownership of voting stock, by
contract or otherwise.
"Common Stock" shall have the meaning set forth in the first recital.
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"Company" shall have the meaning set forth in the preamble.
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"Initiating Shareholders" shall have the meaning specified in Section
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2.4(a).
"Investors" shall have the meaning set forth in the preamble.
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"Notes" shall have the meaning set forth in the first recital.
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"Owned" as to any Shares, shall mean all Shares as to which any Person
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would be deemed to be a beneficial owner, within the meaning of Rule 13d-3 of
the Exchange Act.
"Participating Offeree" shall have the meaning specified in Section
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2.4(a).
"Participation Notice" shall have the meaning specified in Section
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2.4(a).
"Participation Securities" shall have the meaning specified in Section
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2.4(a).
"Participation Transfer" shall have the meaning specified in Section
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2.4(a).
"Preferred Stock" shall have the meaning set forth in the second
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recital.
"Securities" shall mean the Notes, Shares, shares of Preferred Stock
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and Warrants issued or issuable pursuant to the Securities Purchase Agreement or
Preferred Stock Purchase Agreement.
"Securities Purchase Agreement" shall have the meaning set forth in
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the first recital.
"Shareholders" shall have the meaning set forth in the preamble.
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"Shares" shall mean shares of Common Stock, any other shares of
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capital stock of the Company and shares of Common Stock
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Issuable under the Warrants, excluding shares of the Preferred Stock.
"Third Party" or "Third Parties" shall mean any Person but, as to any
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Shareholder, shall not include the estate of such Shareholder.
"Transfer" shall have the meaning set forth in Section 2.1(b) hereof.
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"Transferee" shall mean any Person acquiring Shares from a Shareholder
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and any subsequent transferee of any such Person herein referred to as a
"Transferee" of such Person.
"Warrants" shall have the meaning set forth in the second recital
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thereof.
"Warrant Shares" shall mean Shares issued or issuable upon exercise of
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any Warrants.
ARTICLE II.
RESTRICTIONS ON TRANSFER
Section 2.1. Transfer of Shares. During the term of this Agreement,
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no Shareholder shall, directly or indirectly, offer, sell, assign, transfer,
grant a participation interest in, pledge, encumber or otherwise dispose of, or
place in trust (voting or otherwise) (each such transaction being herein called
a "Transfer") to any Third Party any Shares Owned by such Shareholder unless
such transfer is in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, without compliance with Sections 2.2, 2.3 or 2.4,
any Shareholder signatory hereto as of the date hereof may Transfer to any Third
Party up to an aggregate of 10% of the Shares Owned by such Shareholder on the
date hereof.
Section 2.2. Agreement to be Bound. No Transfer of Shares by a
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Shareholder pursuant to Section 2.4, 2.5 or 2.6 shall be effective unless (i)
the certificates representing such Shares issued to the Transferee shall bear
the legend provided in Section 2.3 and (ii) the Transferee (if not already a
party hereto) shall have executed and delivered to each Investor and
Shareholder, as a condition precedent to such Transfer, an instrument or
instruments reasonably satisfactory to such parties confirming that the
Transferee agrees to be bound by the terms of this Agreement in the same manner
as such Transferee's transferor, except as otherwise provided in this Agreement.
Section 2.3. Restrictive Legend. Each certificate evidencing Shares
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Owned by each Shareholder shall be conspicuously stamped or otherwise imprinted
with a legend in substantially the following form:
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THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON TRANSFER AND CAN BE TRANSFERRED ONLY PURSUANT TO THE TERMS OF A
SECURITYHOLDERS' AGREEMENT DATED AS OF JUNE 30, 1998, AMONG THE
COMPANY AND CERTAIN HOLDERS OF ITS SECURITIES. A COPY OF SUCH
AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE
HOLDER HEREOF UPON WRITTEN REQUEST.
Section 2.4. Participation Rights. (A) If no Notes and no shares of
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Preferred Stock are then outstanding, any Shareholder may Transfer any Shares
Owned by such Shareholder, (B) if no Notes are then outstanding but any shares
of Preferred Stock are then outstanding, any Shareholder may Transfer, in the
aggregate, between 10% and 33-1/3% of the Shares Owned by such Shareholder on
the date hereof and, provided that Section 2.4(d) is complied with, any
Shareholder may Transfer, in the aggregate, more than 33-1/3% of the Shares
Owned by such Shareholder on the date hereof, and (C) if any Notes are then
outstanding, any Shareholder may Transfer, in the aggregate, between 10% and 25%
of the Shares Owned by such Shareholder on the date hereof and, provided that
Section 2.4(d) is complied with, any Shareholder may Transfer, in the aggregate,
more than 25% of the Shares Owned by such Shareholder on the date hereof, and
provided further, in each case described in clauses (A), (B) and (C) above, that
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the following terms and conditions have been satisfied:
(a) Any Shareholder hereto (the "Initiating Shareholder") shall give
notice of any intended Transfer (each, a "Participation Transfer") to each
Investor (each, a "Participating Offeree"). Such notice (the "Participation
Notice") shall set forth the terms and conditions of such proposed Participation
Transfer, including the name of the prospective transferee, the number of Shares
proposed to be Transferred (the "Participation Securities"), the purchase price
per share proposed to be paid therefor, the payment terms and type of
Participation Transfer to be effectuated, and any other material terms and
conditions of such proposed Participation Transfer. Within 20 days following
the delivery of the Participation Notice by the Initiating Shareholder, each
Participating Offeree shall have the right, but not the obligation, to
participate in such Participation Transfer by Transferring (up to the number of
Shares Owned by such Participating Offeree), that number of Shares equal to the
product obtained by multiplying (i) the total number of Shares proposed to be
Transferred in the Participation Transfer times (ii) a fraction, the numerator
of which shall be equal to the aggregate number of Shares Owned by such
Participating Offeree immediately prior to the Participation Transfer and the
denominator of which is equal to the sum of (x) the aggregate number of Shares
Owned by the Initiating Shareholder immediately prior to the Participation
Transfer plus (y) the aggregate number of Shares Owned by all other
Participating Offerees immediately prior to the Participation Transfer and (z)
the aggregate number
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of Shares comprising the numerator. In the event that a Participating Offeree
elects not to participate in the Participation Transfer, then the other
Participating Offerees and the Initiating Shareholder may sell additional Shares
pro rata to the extent of such Participating Offeree's non-participation. Any
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such Participation Transfers shall be on the same terms and conditions as the
proposed Participation Transfer by the Initiating Shareholder.
(b) The closing of any proposed Participating Transfer in respect of
which a Participation Notice has been delivered shall occur not earlier than 30
days nor more than 90 days after the date the last Participation Notice has been
given. The closing shall be held at 10:00 a.m., local time, on the date of
closing at the principal office of the Company, or at such other time or place
as the parties to such transaction mutually agree. At the closing, the
Initiating Shareholder, together with all Participating Offerees electing to
transfer Shares, shall deliver to the proposed Transferee (i) certificates
evidencing the Shares to be transferred pursuant thereto, free and clear of any
lien, claim or encumbrance and (ii) such other documents, including, without
limitation, executed stock powers and evidence of ownership and authority, as
the Transferees shall reasonably request, and shall receive in exchange therefor
the consideration to be paid or delivered by the proposed Transferee in respect
of such Shares as described in the Participation Notice.
(c) Notwithstanding anything contained in this Section 2.4, the
Transfers permitted by this Section 2.4 shall not include pledges or
encumbrances of Shares.
(d) Any Transfer of Shares pursuant to Section 2.4(B) or 2.4(C)
requiring compliance with this Section 2.4(d) shall be deemed a Change of
Control for purposes of paragraph 4C of the Securities Purchase Agreement and
paragraph (iv)(c) of the Certificate of Designations relating to the Preferred
Stock, and, if any of the holders entitled to have their Notes repaid or their
shares of Preferred Stock redeemed, as the case may be, exercise such rights,
the consummation and validity of such Transfer of Shares shall be subject to the
prior or simultaneous payment in full of all amounts due to such holders
thereunder.
Section 2.5. Permitted Transfers. At any time prior to a Qualified
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Public Offering, notwithstanding any provision in this Article II to the
contrary, any Shareholder may Transfer, without compliance with the requirements
of Section 2.4, Shares to any Affiliate thereof, subject always to the terms and
provisions of this Agreement. Any such Transferee shall receive and hold the
Shares so transferred subject to the terms and provisions of this Agreement
(including the restrictions on Transfer in this Article II) and shall be deemed
a Shareholder for purposes hereof.
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Section 2.6. Sale of the Company.
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(a) Pull Along Right. Subject to Section 2.6(b), if any holder or
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holders (the "Selling Shareholders") who own in the aggregate at least 66-2/3%
of the outstanding Shares have received a bona fide offer from any Person (other
than an Affiliate) to buy all the outstanding Shares and Warrants which would
directly or indirectly result in all Shareholders and Investors receiving cash
in exchange for their Shares or Warrants, as the case may be, equal to or
greater than the Fair Market Value for such Shares or Warrants (including,
without limitation, pursuant to a merger of the Company) (the "Offer"), the
Selling Shareholders shall have the right (the "Pull Along Right") to require
the other Shareholders and Investors to accept the Offer and shall give notice
(the "Pull Along Notice") to the other Shareholders and Investors stating that
such Selling Shareholders propose to effect such transaction and stating the
name and address of the offeror (the "Offeror") and the purchase price under the
Offer (the "Third Party Price"). If the Third Party Price is at least $2.00 per
Share, then any holder or holders who own in the aggregate at least 50% of the
outstanding Shares shall be entitled to the Pull Along Rights hereunder.
(b) Conditions. The Pull Along Notice shall not be effective (and
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the Selling Shareholder shall not be permitted to transfer its Shares to the
Offeror) unless all of the following conditions are met:
(i) The Offer shall (1) have been signed by the Offeror, which
may not be an Affiliate of any Selling Shareholder; (2) offer to consummate the
proposed transaction on or before a date ninety (90) days from the date of the
Offer; and (3) obligate the Offeror to enter into and complete the transactions
set forth in the Offer with all the Shareholders and Investors for the same
price per Share and on the same terms as those which the Selling Shareholders
have agreed to sell, provided that the price for the Warrants shall be reduced
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by the applicable exercise price per Share, and provided further that in no
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event shall the Offer be subject to the delivery by the other Shareholders or
Investors to the Offeror of any more than (A) the Shares or Warrants Owned by
them to be purchased pursuant to the Offer, (B) customary representations and
warranties and (C) a customary legal opinion of counsel;
(ii) The Pull Along Notice shall propose a Third Party Price of
an equal amount per Share, in cash, provided that the price for the Warrants
shall be reduced by the applicable exercise price per Share; and
(iii) The Offeror shall furnish to the reasonable satisfaction of
the Selling Shareholders evidence as to the Offeror's financial ability to
consummate the proposed purchase.
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(c) Sale to Offeror. If the Selling Shareholders shall have
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delivered a Pull Along Notice to all other Shareholders and Investors, then all
Shareholders and Investors shall sell all of their Shares and Warrants to the
Offeror upon the terms and conditions of the Offer (or otherwise take all
necessary action to cause the Company to consummate the proposed transaction) at
a closing to be held at the principal office of the Company at or prior to the
90th day from the date of the Offer. If such sale is not consummated within
such 90-day period, the restrictions provided for in this Section 2.6 shall
again become effective, and no Transfer of the Shares may be made thereafter
without complying with the provisions of this Agreement.
Section 2.7. Improper Transfer. Any attempt to Transfer any Shares
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not in compliance with this Agreement shall be null and void and neither the
Company nor any transfer agent shall give any effect in the Company's stock
records to such attempted Transfer.
Section 2.8. Adjustment of Time Periods. The closings referred to in
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Sections 2.4(b) and 2.6(c), shall be extended for such amount of time as is
necessary for expiration of all regulatory holding periods and to obtain any
governmental and regulatory consents and approvals necessary in respect of the
purchase or sale of Shares to take place at such closing.
Section 2.9. Change of Control. Nothing in this Agreement shall
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vitiate the rights entitled by the Investors contained in any Related Documents
upon the occurrence of a Change of Control.
ARTICLE III.
MISCELLANEOUS
Section 3.1. Board of Directors. (a) As long as any of the
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Investors signatory to the Securities Purchase Agreement hold (i) any Notes or
(ii) at least 25% of the Shares issued pursuant to the Securities Purchase
Agreement, the Company and the Shareholders shall take all action within their
respective power, including, but not limited to, the voting of capital stock of
the Company, required to cause the Board of Directors of the Company to at all
times consist of no more than seven members, one of whom shall be designated by
such Investors (the " Notes Designee"). Each of the Shareholders and the
Company agree to vote any of their Shares which are outstanding at all meetings
of stockholders of the Company (or any written consents in lieu thereof) in
which directors are elected in favor of the Notes Designee.
(b) As long as the Investors signatory to the Preferred Stock
Purchase Agreement (the "DLJ Investors") hold at least 25% of the Warrant
Shares, the Company and the Shareholders
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shall take all action within their respective power, including, but not limited
to, the voting of capital stock of the Company, required to cause the Board of
Directors of the Company to at all times consist of no more than seven members,
one of whom shall be designated by such Investors (the "Preferred Designee"). In
addition, if, prior to a Qualified Public Offering, the DLJ Investors hold at
least one Warrant Share but less than 25% of the Warrant Shares, then the
Preferred Designee may be designated by the holders of a majority of the Warrant
Shares. Each of the Shareholders and the Company agree to vote any of their
Shares which are outstanding at all meetings of stockholders of the Company (or
any written consents in lieu thereof) in which directors are elected in favor of
the Preferred Designee.
(c) In the event that the Notes Designee or the Preferred Designee (a
"Withdrawing Director") designated in the manner set forth in Section 3.1(a) or
(b) above is unable to serve, or once having commenced to serve, is removed or
withdraws from the Board of Directors of the Company, such Withdrawing
Director's replacement (the "Substitute Director") on the Board of Directors of
the Company will be designated by appropriate Investors. The Company and the
Shareholders agree to take all action within their respective power, including,
but not limited to, the voting of outstanding capital stock of the Company, to
cause the election of such Substitute Director as soon as practicable following
his designation.
(d) In the event the Investors entitled to designate Directors
pursuant to this Agreement cease to be so entitled, the vacancies resulting
therefrom shall be filled by the remaining directors or by the Stockholders in
the manner provided by applicable law or the number of directors constituting
the Board shall be reduced. In the event the Investors entitled to designate
any Director pursuant to this Agreement choose not to designate a Director, such
directorship shall remain vacant.
(e) Following a Qualified Public Offering, (i) the size of the Board
of Directors shall not be limited hereunder to seven directors and (ii) so long
as the Investors exercise their rights hereunder to designate a Notes Designee
or a Preferred Designee, the appropriate Investors shall vote their respective
outstanding Shares in favor of election of up to five directors designated by
the Shareholders.
(f) Nothing in this Section 3.1 shall be in limitation of the rights
of the holders of the Preferred Stock set forth in clause (vi) of the
Certificate of Designations of the Preferred Stock.
Section 3.2. Termination of Agreement. This Agreement shall
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terminate as follows:
(i) upon the written agreement of the Company, the Shareholders
and the Investors; or
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(ii) on such date as (A) there are no longer any Notes or
shares of Preferred Stock outstanding, (B) all rights of the Investors to
designate any directors under Section 3.1 have terminated pursuant to the terms
of such Section 3.1 and (C) a Qualified Public Offering shall have occurred.
Section 3.3. Termination of Restrictions on Transfer Agreement. The
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restrictions on Transfer imposed by Article II (including, without limitation,
Section 2.6) shall terminate upon the consummation of a Qualified Public
Offering, provided that no Notes and no shares of Preferred Stock are then
outstanding.
Section 3.4. Representations. Each party hereto represents that (i)
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the execution and delivery of this Agreement and the performance of such party's
obligations hereunder will not violate or conflict with any material agreement
to which such party is a party or any law, rule, license, regulation, judgment,
order, ruling or decree governing or affecting such party; (ii) no consents or
filings with any governmental authority or any other Person are required to be
obtained or made in connection with such party's execution, delivery and
performance of this Agreement; and (iii) this Agreement constitutes the valid
and binding obligation of such party, enforceable against such party in
accordance with its terms.
Section 3.5. Representations, Warranties and Covenants of the
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Shareholders. Each Shareholder represents and warrants to the Investors that
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all the shareholders of the Company who are Affiliates of such Shareholder are
parties to this Agreement. Each Shareholder represents and warrants that this
Agreement does not violate any material agreement, instrument, order, writ,
judgment or decree to which it is a party, or by which any of its properties or
assets are bound. Each Shareholder covenants that if after the date hereof any
Person who is or becomes a shareholder of the Company is or becomes an Affiliate
of any Shareholder, then such Shareholder shall cause such Person to become a
party to this Agreement.
Section 3.6. Successors and Assigns. All agreements contained herein
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by or on behalf of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not, including, without limitation, any Person who acquires any Securities (or
any securities issued in exchange for any of the Notes or shares of Preferred
Stock) from any party.
Section 3.7. Notices. All communications provided for hereunder
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shall be sent by first class mail or overnight courier and, if to any Investor,
addressed to the Investor in the manner in which its address appears on Exhibit
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1 hereto, with a copy to Xxxxxxx X. Xxxxx, Xx., Esq., at Xxxxxxx Xxxx &
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Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; if to any Shareholder,
addressed to the Shareholder at the address set forth below such Shareholder's
name on Exhibit 2 hereto; and if to the Company,
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addressed to it at 00000 Xxxxxxxx Xxxx., Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Office of the President, with a copy to Office of General Counsel of
the Company, or to such other address with respect to any party as such party
shall notify the other in writing.
Section 3.8. Descriptive Headings. The descriptive headings of the
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several paragraphs of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.
Section 3.9. Governing Law. The corporate law of the State of
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Delaware will govern all issues concerning the relative rights of the Company,
on the one hand, and the Shareholders and the Investors, on the other hand. All
other questions concerning the construction, validity and interpretation of this
Agreement will be governed by, and construed and enforced in accordance with,
the law of the State of New York without regard to the conflicts of laws
principles thereof.
Section 3.10. Remedies. In case any one or more of the provisions
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set forth in this Agreement shall have been breached by the Company or any
Shareholder or Investor, the Company or the Shareholders or Investors (or any of
them), as applicable, may proceed to protect and enforce its or their rights
either by suit in equity and/or by action at law, including, but not limited to,
an action for damages as a result of any such breach and/or an action for
specific performance of any such provision contained in this Agreement. The
Company or any Shareholder or Investor acting pursuant to this Section 3.10
shall be indemnified by the breaching party or parties against all liability,
loss or damage, together with all reasonable costs and expenses related thereto
(including reasonable legal and accounting fees and expenses) in accordance with
provisions substantially equivalent to paragraph 14B of the Securities Purchase
Agreement.
Section 3.11. Entire Agreement. This Agreement, the Securities
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Purchase Agreement, the Preferred Stock Purchase Agreement and the Registration
Rights Agreement and the other writings referred to herein or delivered pursuant
hereto contain the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior and contemporaneous arrangements
or understandings with respect thereto.
Section 3.12. Severability. Any provision of this Agreement that is
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prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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Section 3.13. Amendments. This Agreement may not be changed orally,
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but only by an agreement in writing signed by the party against whom enforcement
of any waiver, change, modification or discharge is sought.
Section 3.14. Counterparts. This Agreement may be executed in any
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number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument, and it shall
not be necessary in making proof of this Agreement to produce or account for
more than one such counterpart.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
JFAX COMMUNICATIONS, INC.
By: /s/ Hemi Xxxxxx
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Name: Hemi Xxxxxx
Title:
SHAREHOLDERS:
ORCHARD/JFAX INVESTORS, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Manager
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INVESTORS:
DELAWARE STATE EMPLOYEES'
RETIREMENT FUND
By: PECKS MANAGEMENT PARTNERS LTD.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Managing Director
DECLARATION OF TRUST FOR
DEFINED BENEFIT PLANS OF ICI
AMERICAN HOLDING INC.
By: PECKS MANAGEMENT PARTNERS LTD.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Managing Director
DECLARATION OF TRUST FOR
DEFINED BENEFIT PLANS OF
ZENECA HOLDING INC.
By: PECKS MANAGEMENT PARTNERS LTD.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Managing Director
THE X.X. XXXXXXXXX FAMILY FOUNDATION
By: PECKS MANAGEMENT PARTNERS LTD.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Managing Director
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DLJ FUND INVESTMENT PARTNERS II, L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION
Its General Partner
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: Vice President
DLJ CAPITAL CORPORATION
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: Vice President
GMT PARTNERS, LLC
c/o Blue Capital Management
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Managing Member
ORCHARD/JFAX INVESTORS, L.L.C.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Manager
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DLJ PRIVATE EQUITY EMPLOYEES FUND, L.P.
By: DLJ LBO PLANS MANAGEMENT CORPORATION
Its General Partner
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: Vice President
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EXHIBIT 1 (INVESTORS)
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DELAWARE STATE EMPLOYEES'
RETIREMENT FUND
c/o Pecks Management Partners Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
DELAWARE OF TRUST FOR
DEFINED BENEFIT PLANS OF ICI
AMERICAN HOLDING INC.
c/o Pecks Management Partners Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
DECLARATION OF TRUST FOR
DEFINED BENEFIT PLANS OF
ZENECA HOLDING INC.
c/o Pecks Management Partners Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
THE X.X. XXXXXXXXX FAMILY FOUNDATION
c/o Pecks Management Partners Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
DLJ FUND INVESTMENT PARTNERS II, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ CAPITAL CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
GMT PARTNERS, LLC
c/o Blue Capital Management
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
ORCHARD/JFAX INVESTORS, L.L.C.
00000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Office of the President
DLJ PRIVATE EQUITY EMPLOYEES FUND, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
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EXHIBIT 2 (SHAREHOLDERS)
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Shares Owned
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Orchard/JFAX Investors, L.L.C. 10,512,622
00000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Office of the President
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