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VOTING AND STOCK OPTION AGREEMENT
This VOTING AND STOCK OPTION AGREEMENT (the "Agreement") is made and
entered into as of August 17, 2001 by and between VISX, Incorporated, a Delaware
corporation ("Parent"), and Xxxxxx X. Xxxxxx, the undersigned stockholder
("Stockholder") of Medjet Inc., a Delaware corporation (the "Company").
BACKGROUND
A. Concurrently with the execution of this Agreement, Parent, Orion
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub") and the Company have entered into an Agreement and Plan of
Merger and Reorganization, dated as of August 17, 2001 (as the same may be
amended from time to time, the "Merger Agreement"), which provides, subject to
the satisfaction or waiver of the conditions set forth in the Merger Agreement,
for the merger (the "Merger") of Merger Sub with and into the Company.
Capitalized terms not otherwise defined herein have the meanings given to such
terms in the Merger Agreement.
B. Pursuant to the Merger, all of the issued and outstanding shares of
capital stock of the Company, except those shares owned by Parent, will be
converted into the right to receive the consideration set forth therein, all
upon the terms and subject to the conditions set forth in the Merger Agreement.
C. Stockholder is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of the
number of shares of outstanding common stock of the Company ("Company Common
Stock") and the number of vested options and/or warrants to purchase Company
Common Stock (the "Stock Options"), as set forth on the Schedule A. The Company
Common Stock owned by the Stockholder as of the date hereof, together with any
common or preferred stock of the Company acquired by the Stockholder after the
date of this Agreement whether upon the exercise of Stock Options or otherwise,
are referred to herein as the Stockholder's "Shares." The Stock Options owned by
the Stockholder as of the date hereof, together with any Stock Options acquired
by the Stockholder after the date of this Agreement (including the vesting of
Stock Options unvested as of the date of this Agreement), are referred to herein
as the Stockholder's "Total Options." The Shares and the Total Options are
referred to herein as the Stockholder's "Securities."
D. As an inducement and a condition to Parent's execution of the Merger
Agreement, the Company and the Stockholder are entering into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by Parent
of the Merger Agreement and the mutual covenants, conditions and agreements
herein contained, the parties hereto hereby agree as follows:
1. Voting Agreement. The Stockholder agrees that, during the time this
Agreement is in effect, at any meeting of the stockholders of the Company (a
"Company Stockholders' Meeting"), however called, and at every adjournment or
postponement thereof, he, she or it shall:
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(a) appear at the meeting or otherwise cause his, her or its
Shares to be counted as present thereat for purposes of establishing a quorum;
(b) vote, or execute consents in respect of, his, her or its
Shares, or cause his, her or its Shares to be voted, or consents to be executed
in respect thereof, in favor of the approval and adoption of the Merger
Agreement (including any revised or amended Merger Agreement), and any action
required in furtherance thereof;
(c) vote, or execute consents in respect of, his, her or its
Shares, or cause his, her or its Shares to be voted, or consents to be executed
in respect thereof, against (i) any agreement or transaction relating to any
Takeover Proposal or transaction or occurrence that if proposed and offered to
the Company or its stockholders (or any of them) would constitute a Takeover
Proposal (collectively, "Alternative Transactions") or (ii) any amendment of the
Company's Certificate of Incorporation or By-laws or other proposal, action or
transaction involving the Company or any of its Subsidiaries or any of its
stockholders, which amendment or other proposal, action or transaction could
reasonably be expected to prevent or materially impede or delay the consummation
of the Merger or the other transactions contemplated by the Merger Agreement or
the consummation of the transactions contemplated by this Agreement, or change
in any manner the voting rights of the Company Common Stock (collectively,
"Frustrating Transactions") presented to the Stockholders of the Company
(regardless of any recommendation of the Board of Directors of the Company) or
in respect of which vote or consent of the Stockholder is requested or sought.
2. Irrevocable Proxy. As security for the Stockholder's obligations
under Section 1, effective immediately upon the removal of legends from, or the
lifting of transfer restrictions on, the Stockholder's Shares by the California
Department of Corporations, sufficient to allow the transfer of interests in the
Shares to Parent pursuant to the Merger and this Agreement (the "Proxy Effective
Time"), the Stockholder hereby irrevocably constitutes and appoints Parent as
his, her or its attorney and proxy in accordance with Delaware General
Corporation Law, with full power of substitution and resubstitution, to cause
the Stockholder's Shares to be counted as present at any Company Stockholders
Meetings to vote his, her or its Shares at any Company Stockholders' Meeting,
however called, and execute consents in respect of his, her or its shares as and
to the extent provided in Section 1. THIS PROXY AND POWER OF ATTORNEY UPON ITS
EFFECTIVENESS WILL BE IRREVOCABLE AND COUPLED WITH AN INTEREST. The Stockholder
hereby revokes all other proxies and powers of attorney with respect to his, her
or its Shares that he, she or it may have heretofore appointed or granted, and
no subsequent proxy or power of attorney shall be granted, in each case to the
extent such prior or subsequent proxies or powers of attorney would prevent the
Stockholder from complying with such Stockholder's obligations under this
Agreement.
3. Option.
(a) Subject to the terms and conditions set forth in this
Agreement, effective immediately upon the Proxy Effective Time, the Stockholder
hereby grants to Parent an irrevocable option (the "Option") to purchase (i) the
number of shares of Company Common Stock set forth next to the Stockholder's
name on Schedule A hereto (as adjusted as set forth herein) and any other shares
of Company Common Stock or Company Preferred Stock owned by the Stockholder
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beneficially or acquired after the date of this Agreement, at a per share
purchase price equal to $2.00 (as adjusted as set forth herein), and (ii) the
number of Stock Options set forth next to the Stockholder's name on Schedule A
hereto (as adjusted as set forth herein) and any other Stock Options owned by
the Stockholder beneficially or acquired after the date of this Agreement, at a
per share purchase price equal to the difference between $2.00 and the exercise
price per share (if less than $2.00) of each Stock Option (as adjusted as set
forth herein), provided that such Stock Options can be transferred to Parent
pursuant to the terms of the governing agreements or instruments thereof. The
total price to be paid by Parent to the Stockholder for all such Shares and
Total Options is herein referred to as the "Purchase Price."
(b) The Option may be exercised by Parent, in whole (but not in
part):
(i) if after the date hereof the Merger Agreement shall be
terminated pursuant to Section 7.1(e) or Section 7.1(g) of the Merger Agreement;
or
(ii) if after the date hereof, and prior to the
termination of the Merger Agreement, Parent (A) makes, or indicates in writing
its willingness to make, sufficient funds available to effect the Merger, and
(B) attempts to effect the Merger pursuant to the Merger Agreement and the
Delaware General Corporation Law, but is unable to do so for any reason
(including but not limited to the failure of the Company to call or hold a
Company Stockholders' Meeting).
(c) In the event that Parent wishes to exercise the Option, it
shall send to the Stockholder a written notice (the date of each such notice
being herein referred to as a "Notice Date") setting forth its irrevocable
election to that effect, which notice also specifies a date not earlier than
three business days nor later than 30 business days from the Notice Date for the
closing of such purchase (an "Option Closing Date"); provided, however, that (i)
if the closing of a purchase and sale pursuant to the Option (an "Option
Closing") cannot be consummated by reason of any applicable judgment, decree,
order, law or regulation, the period of time that otherwise would run pursuant
to this sentence shall run instead from the date on which the restriction on
consummation has expired or been terminated and (ii) without limiting the
foregoing, if prior notification to or approval of any regulatory authority is
required in connection with the purchase, Parent and the Stockholder shall
promptly file the required notice or application for approval and shall
cooperate in the expeditious filing of such notice or application, and the
period of time that otherwise would run pursuant to this sentence shall run
instead from the date on which, as the case may be, (A) any required
notification period has expired or been terminated or (B) any required approval
has been obtained, and in either event, any requisite waiting period has expired
or been terminated. Each of Parent and the Stockholder agrees to use
commercially reasonable efforts to cooperate with and provide information to the
other, for the purpose of any required notice or application for approval. Any
exercise of the Option shall be deemed to occur on the Notice Date relating
thereto. The place of any Option Closing shall be at the offices of Parent,
which address is set forth in the Merger Agreement, and the time of the Option
Closing shall be 10:00 a.m. (Pacific Time) on the Option Closing Date.
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(d) At the Option Closing, Parent shall pay to the Stockholder in
immediately available funds by wire transfer to a bank account designated in
writing by the Stockholder an amount equal to the Purchase Price; provided, that
failure or refusal of the Stockholder to designate a bank account shall not
preclude Parent from exercising the Option.
(e) At the Option Closing, simultaneously with the delivery of
immediately available funds as provided above, the Stockholder shall deliver to
Parent a certificate or certificates representing its Securities to be purchased
at such Option Closing, which Securities shall be free and clear of all liens,
claims, charges and encumbrances of any kind whatsoever, except as set forth on
Schedule B hereto.
(f) In the event of any change in the Company Common Stock by
reason of a stock dividend, split-up, merger, recapitalization, combination,
exchange of shares or similar transaction, the type and number of Securities
subject to the Option, and the per share purchase price therefor, shall be
adjusted appropriately, so that Parent shall receive upon exercise of the Option
the number and class of shares or other securities or property that Parent would
have received if the Option had been exercised immediately prior to such event
or the record date therefor, as applicable.
(g) After Parent attempts to exercise the Option, in the event
the Stockholder is unable to comply with the provisions of this Section 3 due to
any restrictions on transferability placed on the Securities by any governmental
authority, the Stockholder will use best efforts to promptly remove such
restrictions, and at Parent's request, will place the Securities in escrow and
will not attempt to transfer the Securities to any other party pursuant to any
agreement to sell, merger or otherwise.
4. Termination. This Agreement shall terminate upon the earliest of:
(a) the Effective Time of the Merger;
(b) the termination of the Merger Agreement for reasons other
than those described in Section 4(c) below; and
(c) 20 days following the termination of the Merger Agreement
pursuant to Section 7.1(e) or Section 7.1(g) thereof (except that Section 1 and
Section 2 hereof shall terminate upon termination of the Merger Agreement
pursuant to Section 7.1(e) or Section 7.1(g) thereof).
Notwithstanding the foregoing, if the Option cannot be exercised by
reason of any applicable judgment, decree, order, law or regulation, the Option
shall remain exercisable and shall not terminate until the earlier of (x) the
date on which such impediment shall become final and not subject to appeal, and
(y) 5:00 p.m. Pacific Time, on the tenth (10th) business day after such
impediment shall have been removed. Notwithstanding the termination of the
Option or this Agreement, Parent shall be entitled to purchase the Securities if
it has exercised the Option in accordance with the terms hereof prior to such
termination and such termination shall not affect any rights hereunder which by
their terms do not terminate or expire prior to or as of such termination.
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5. Representations and Warranties of Parent. Parent represents and
warrants to the Stockholder as follows:
(a) Organization; Due Authorization; Enforceability. Parent is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
(b) Authority Relative to this Agreement. Parent has full
corporate power and authority to execute and deliver this Agreement. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Parent, and no other corporate proceedings on the part of
Parent are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Parent and constitutes a valid and binding agreement
of Parent, enforceable against Parent in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights and to general principles of equity.
6. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Parent as follows:
(a) Organization; Due Authorization; Enforceability. The
Stockholder has full power and authority to execute and deliver this Agreement.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action on the part of the Stockholder, and no other proceedings on the
part of the Stockholder are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by the Stockholder and constitutes a valid
and binding agreement of the Stockholder, enforceable against such Stockholder
in accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights and to general
principles of equity.
(b) Ownership of Securities; Voting Rights. The Stockholder owns,
of record and beneficially, the shares of Company Common Stock and Stock Options
set forth opposite the Stockholder's name on Schedule A. The Stockholder has
sole voting power with respect to his or her shares of Company Common Stock.
Except pursuant to this Agreement or as set forth on Schedule B, the
Stockholder's shares of Company Common Stock are not subject to any voting trust
agreement or other contract, agreement, arrangement, commitment or understanding
to which the Stockholder is a party restricting or otherwise relating to the
voting, dividend rights or disposition of such shares of Company Common Stock.
The Company Common Stock are the only equity securities of the Company owned by
the Stockholder. The Stockholder does not have any option or other right to
acquire any equity securities of the Company other than the Stock Options.
(c) No Encumbrances. Except as set forth on Schedule B, upon the
exercise of the Option and the delivery to Parent by Stockholder of a
certificate or certificates, or other similar document, evidencing the Shares
and Total Options, Parent will receive good, valid and marketable title to the
Shares and Total Options, free and clear of all security interests, liens,
claims, pledges,
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options, rights of first refusal, agreements, limitations on Parent's voting
rights, charges and other encumbrances of any nature whatsoever (except any
security interest created by Parent).
(d) No Conflicts. Except as set forth on Schedule B, no
authorization, consent or approval of, or filing with, any court or any public
body or authority is necessary for the consummation by the Stockholder of the
transactions contemplated by this Agreement. The execution, delivery and
performance of this Agreement by the Stockholder will not constitute a breach,
violation or default (or any event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien or encumbrance upon
any of the properties or assets of such Stockholder under, any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or other
instrument to which such Stockholder is a party or by which his, her or its
properties or assets are bound, other than breaches, violations, defaults,
terminations, accelerations or creation of liens and encumbrances which, in the
aggregate, would not materially impair the ability of such Stockholder to
perform his, her or its obligations hereunder.
(e) Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Stockholder.
7. Stockholder Covenants. The Stockholder hereby covenants and agrees as
follows:
(a) The Stockholder hereby agrees, while this Agreement is in
effect, and except as contemplated hereby, not to sell, transfer, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale, transfer, pledge,
encumbrance, assignment or other disposition of (all of the foregoing, "Sell,"
"Sold" or "Sale," as the case may be), any of the Securities; provided, however,
that Stockholder may transfer any of the Shares to a trust of which there are no
beneficiaries other than the parents, spouse or children of Stockholder, or
otherwise make transfers for estate planning purposes, so long as the trust and
the trustees, or other transferee, thereof, deliver a signed copy of this
Agreement to Parent, agreeing to be bound by the restrictions set forth herein.
(b) The Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of new shares of capital stock
or Stock Options of the Company acquired by such Stockholder, if any, after the
date of this Agreement.
(c) The Stockholder shall immediately cease any discussions or
negotiations with any parties other than Parent that may be ongoing with respect
to a Takeover Proposal. While this Agreement is in effect, the Stockholder shall
not, directly or indirectly, (i) solicit, initiate or encourage, or take any
other action to facilitate, any inquiries or the making of any Acquisition
Transaction or Frustrating Transaction, (ii) execute or enter into any
Acquisition Agreement with respect to any Alternative Transaction or Frustrating
Transaction, or (iii) enter into, engage in, continue or otherwise participate
in any discussions or negotiations regarding, or provide any information or data
to any person or otherwise cooperate in any way with, any Acquisition
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Transaction or Frustrating Transaction, except to the extent such discussions or
negotiations are participated in by the Stockholder in his or her capacity as a
director or officer of the Company in accordance with the terms of the Merger
Agreement.
(d) The Stockholder agrees not to engage in any action or omit to
take any action which would have the effect of preventing or disabling
Stockholder from delivering its Securities to Parent or otherwise performing its
obligations under this Agreement.
8. Miscellaneous.
(a) Fees and Expenses. Except as otherwise provided in the Merger
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be borne by the party incurring such
expenses.
(b) Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties.
(c) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO ITS CONFLICT OF LAWS RULES OR PRINCIPLES.
(d) Notices. All notices or other communications under this
Agreement shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by cable, telegram, telex
or other standard form of telecommunications, or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
If to Parent, to: VISX, Incorporated
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Stockholder: To the address for notice set forth on
Schedule A.
with a copy to: Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
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Attention: Xxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section.
(e) Assignment; Binding Effect; No Third Party Beneficiaries.
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties. Any purported
assignment without the consent required pursuant to the preceding sentence shall
be null and void. Subject to the second preceding sentence, this Agreement
(including, without limitation, the obligations of the Stockholder under Section
1 and Section 2 hereof) shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement. Notwithstanding
the foregoing, Parent may assign this agreement to one or more of its
affiliates.
(f) Enforcement. THE PARTIES HERETO AGREE THAT IRREPARABLE DAMAGE
WOULD OCCUR 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, SUBJECT TO THE NEXT SENTENCE, THE PARTIES SHALL BE
ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OF THIS AGREEMENT
AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF SOLELY IN THE COURTS
OF THE STATE OF DELAWARE, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH
THEY ARE ENTITLED AT LAW OR IN EQUITY. EACH OF THE PARTIES HERETO (I) CONSENTS
TO SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF ANY FEDERAL COURT LOCATED IN
THE STATE OF DELAWARE OR ANY DELAWARE STATE COURT IN THE EVENT ANY DISPUTE
ARISES OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, (II) AGREES THAT IT SHALL 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 SHALL NOT BRING ANY ACTION RELATING TO THIS AGREEMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IN ANY COURT OTHER THAN A
FEDERAL COURT SITTING IN THE STATE OF DELAWARE OR A DELAWARE STATE COURT.
(g) Severability. In the event that any provision of this
Agreement, or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties. The parties further agree to
replace such void or unenforceable
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provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
such void or unenforceable provision.
(i) Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all of the parties
hereto.
(j) Further Assurances. Each party hereto shall perform such
further acts and execute such further documents as may reasonably be required to
carry out the provisions of this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
VISX, INCORPORATED
By:_____________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, Controller
STOCKHOLDER
________________________________________
Xx. Xxxxxx X. Xxxxxx
[SIGNATURE PAGE TO VOTING AND STOCK OPTION AGREEMENT]
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SCHEDULE A
STOCK OPTIONS
STOCKHOLDER COMPANY COMMON STOCK (INCLUDING WARRANTS)
----------- -------------------- --------------------
Xxxxxx X. Xxxxxx 1,596,787 205,009
c/o Medjet Inc.
0000 Xxxx Xxxxxxx Xxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
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SCHEDULE B
Item 1 of Section 2.5 of the Company Schedule to the Merger Agreement,
which is incorporated herein by reference, specifies certain encumbrances placed
by the California Department of Corporations upon the Company Common Stock owned
by Xxxxxx X. Xxxxxx and certain other stockholders of the Company.
