Exhibit 99(D)(3)
TENDER AND STOCKHOLDER SUPPORT AGREEMENT
TENDER AND STOCKHOLDER SUPPORT AGREEMENT, dated as of February
5, 2001 (the "AGREEMENT"), by and among Flipside, Inc., a Delaware corporation
("PURCHASER"), Flipside Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of Purchaser ("MERGER SUB"), and Encompass Group U.S.
Information Technology Partners I L.P. (the "STOCKHOLDER") whose address is
000 000xx Xxxxxx X.X., Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx 00000.
RECITALS
WHEREAS, Purchaser, Merger Sub and Uproar Inc., a Delaware
corporation (the "COMPANY"), propose to enter into an Agreement and Plan of
Merger, dated as of February 5, 2001 (as the same may be amended or supplemented
from time to time, the "MERGER AGREEMENT"), which provides, among other things,
that Merger Sub will make a cash tender offer (the "OFFER") for all of the
outstanding capital stock of the Company and, after expiration of the Offer,
will merge with and into the Company (the "MERGER"), in each case upon the terms
and subject to the conditions in the Merger Agreement (including EXHIBIT A
thereto) (with all capitalized terms used but not defined herein having the
meanings set forth in the Merger Agreement);
WHEREAS, the Stockholder owns 190,716 shares of common
stock, par value $0.01 per share, of the Company (the "COMMON STOCK") (such
shares of Common Stock, together with any other shares of capital stock of
the Company acquired (whether beneficially or of record) by the Stockholder
after the date hereof and during the term of this Agreement, including any
shares acquired by means of purchase, dividend or distribution, or issued
upon the exercise of any warrants or options, and the conversion of any
convertible securities or otherwise being collectively referred to herein as,
the "SUBJECT SHARES");
WHEREAS, as a condition to the willingness of Purchaser and
Merger Sub to enter into the Merger Agreement and make the Offer, Purchaser has
required that the Stockholder agree and, in order to induce Purchaser and Merger
Sub to enter into the Merger Agreement, the Stockholder has agreed, to enter
into this Agreement.
NOW, THEREFORE, to induce Purchaser and Merger Sub to enter
into, and in consideration of their entering into, the Merger Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
The Stockholder hereby represents and warrants to Purchaser and Merger Sub as of
the date hereof in respect of himself or itself as follows:
(a) ORGANIZATION. The Stockholder is a corporation,
partnership or limited liability company, duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
(b) AUTHORITY. The Stockholder has the legal capacity and
all requisite power and authority to execute and deliver this Agreement
and to perform its obligations
and consummate the transactions contemplated hereby. To the extent
applicable, the execution, delivery and performance by the
Stockholder of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly and validly
authorized by the Stockholder (or its Board of Directors or similar
governing body, as applicable) and no other action or proceedings on
the part of the Stockholder are necessary to authorize the execution
and delivery by it of this Agreement and the consummation by it of
the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by the Stockholder, and
constitutes a valid and binding obligation of the Stockholder
enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(c) THE SUBJECT SHARES. The Stockholder is the record and
beneficial owner of, and has good and marketable title to, the Subject
Shares, free and clear of any and all Encumbrances, except as disclosed
in ANNEX A. The Stockholder does not own, of record or beneficially,
any shares of capital stock of the Company (or rights to acquire any
such shares) other than the Subject Shares. Except as otherwise set
forth herein, the Stockholder has the sole right to vote, sole power of
disposition, sole power to issue instructions with respect to the
matters set forth in Sections 3, 4 and 5 hereof, sole power to demand
appraisal rights and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the
Stockholder's Subject Shares, with no material limitations,
qualification or restrictions on such rights, subject to applicable
federal securities laws and the terms of this Agreement.
(d) NO CONFLICTS. (A) No material filing with, and no
material permit, authorization, consent or approval of, any state,
federal or foreign public body or authority is necessary for the
execution of this Agreement by the Stockholder and the consummation by
the Stockholder of the transactions contemplated hereby, (B) the
execution and delivery of this Agreement by the Stockholder do not, and
the consummation by it of the transactions contemplated hereby and
compliance with the terms hereof will not, conflict with, or result in
any violation of, or breach or default (with or without notice or lapse
of time or both) under (1) to the extent applicable, any provisions of
the organizational documents of the Stockholder, (2) any provision of
any material trust, loan or credit agreement, note, bond, mortgage,
indenture, guarantee, lease, license, contract or other agreement to
which it is a party or by which it is bound, or (3) any material
franchise, judgment, order, writ, injunction, notice, decree, statute,
law, ordinance, rule or regulation applicable to the Stockholder or its
property or assets, and (C) the execution and delivery of this
Agreement by the Stockholder do not, and the consummation by it of the
transactions contemplated hereby will not, violate any material laws
applicable to the Stockholder.
(e) The execution and delivery of this Agreement is not
conditioned upon the execution and delivery of any similar agreement by
any other stockholder. The
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Stockholder is entering into this Agreement voluntarily without
regard to the actions of any other stockholder.
(f) Notwithstanding the foregoing, the Stockholder does
not make any representations and warranties with respect to its Subject
Shares to the extent the Stockholder is unable to make such
representations and warranties pursuant to the restrictions set forth
in ANNEX A.
2. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND
MERGER SUB. Each of Purchaser and Merger Sub hereby, jointly and severally,
represents and warrants to the Stockholder as of the date hereof as follows:
(a) ORGANIZATION. Each of Purchaser and Merger Sub is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization.
(b) AUTHORITY. Each of Purchaser and Merger Sub has the
requisite corporate power and authority to execute and deliver this
Agreement and to perform its respective obligations and consummate the
transactions contemplated hereby. The execution, delivery and
performance by Purchaser and Merger Sub of this Agreement and the
consummation by them of the transactions contemplated hereby, have been
duly and validly authorized by the Board of Directors of Purchaser and
Merger Sub and no other corporate or other action or proceedings on the
part of Purchaser and Merger Sub are necessary to authorize the
execution and delivery by them of this Agreement and the consummation
by them of the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by Purchaser and Merger
Sub, and constitutes a valid and binding obligation of Purchaser and
Merger Sub enforceable in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(c) NO CONFLICTS. Except for (i) the filings provided for
in Section 2.3 of the Merger Agreement and the filings required under
the Exchange Act and the Securities Act, (ii) the filings required
under the HSR Act, and any other applicable law governing antitrust or
competition matters, and any Consents required or permitted to be
obtained pursuant to the laws of any Foreign Antitrust Laws, (iii) the
filings required under the rules and regulations of the NASD, (iv) the
applicable requirements of state securities, takeover or Blue Sky laws,
and (v) such notifications, filings, authorizing actions, orders and
approvals as may be required under other laws, (A) no material filing
with, and no material permit, authorization, consent or approval of,
any state, federal or foreign public body or authority is necessary for
the execution of this Agreement by Purchaser and Merger Sub and the
consummation by Purchaser and Merger Sub of the transactions
contemplated hereby, (B) the execution and delivery of this Agreement
by Purchaser and Merger Sub do not, and the consummation by them of the
transactions contemplated hereby and compliance with the terms hereof
will not, conflict with, or result in any
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violation of, or breach or default (with or without notice or lapse
of time or both) under (1) the charter documents of Purchaser or
Merger Sub, (2) any provision of any material trust, loan or credit
agreement, note, bond, mortgage, indenture, guarantee, lease,
license, contract or other agreement to which Purchaser or Merger
Sub is a party or by which it is bound, or (3) any material
franchise, judgment, order, writ, injunction, notice, decree,
statute, law, ordinance, rule or regulation applicable to Purchaser
or Merger Sub or their respective properties or assets, and (C) the
execution and delivery of this Agreement by Purchaser and Merger Sub
do not, and the consummation by them of the transactions
contemplated hereby will not, violate any laws applicable to
Purchaser or Merger Sub, except in the case of clauses (B)(2),
(B)(3) and (C) above, for any such conflicts, violations, breaches
or defaults that would not have a material adverse effect on the
ability of Purchaser or Merger Sub to consummate the transactions
contemplated hereby.
3. TENDER OF SUBJECT SHARES.
(a) Purchaser and Merger Sub jointly and severally agree
subject to the conditions of the Offer set forth in Exhibit A to the
Merger Agreement and the other terms and conditions of the Merger
Agreement, that (i) Merger Sub will commence the Offer within ten
business days after the date of the Merger Agreement and (ii) Merger
Sub will accept for payment, purchase and pay for, in accordance with
the terms of the Offer and the Merger Agreement, all shares of Common
Stock validly tendered pursuant to the Offer.
(b) The Stockholder agrees (i) to tender the Subject
Shares into the Offer promptly, and in any event no later than the
fifth business day following the commencement of the Offer, or, if the
Stockholder has not received the Offer Documents by such time, within
two business days following receipt of such documents but in any event
prior to the date of expiration of such Offer, in each case, free and
clear of any Encumbrances except those arising from this Agreement and
(ii) not to withdraw any Subject Shares so tendered. If the Stockholder
acquires Subject Shares after the date hereof, the Stockholder shall
tender (or cause the record holder to tender) such Subject Shares on or
before such fifth business day or, if later, on or before the second
business day after such acquisition. The Stockholder acknowledges and
agrees that Purchaser's and Merger Sub's obligation to accept for
payment and pay for the Subject Shares in the Offer is subject to the
terms and conditions of the Offer. Notwithstanding the foregoing, to
the extent any Stockholder's rights to tender its Subject Shares (or
take any other action) pursuant to this Section 3(b) are restricted as
set forth on ANNEX A hereto, with respect to such Subject Shares, the
Stockholder agrees only to use its reasonable best efforts to cause
such tender (and other actions) to occur.
(c) The Stockholder will receive the same Offer
Consideration received by other stockholders of the Company in the
Offer with respect to Subject Shares tendered by it in the Offer. In
the event that, notwithstanding the provisions of Section 3(b), any
Subject Shares are for any reason withdrawn from the Offer, such
Subject Shares will remain subject to the terms of this Agreement.
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(d) The Stockholder hereby agrees to permit Purchaser to
publish and disclose in the Offer Documents and, if approval of the
stockholders of the Company is required under applicable law, the Proxy
Statement (including all documents and schedules filed with the SEC),
its identity and ownership of Common Stock and the nature of the
Stockholder's commitments, arrangements and understandings under this
Agreement.
4. AGREEMENT TO VOTE. The Stockholder agrees that:
(a) At any meeting of stockholders of the Company called
to vote upon the Merger Agreement and the transactions contemplated
thereby, however called, or at any adjournment thereof or in connection
with any written consent of the holders of Common Stock or in any other
circumstances upon which a vote, consent or other approval with respect
to the Merger Agreement and the transactions contemplated thereby is
sought, the Stockholder shall be present (in person or by proxy) and
shall vote (or cause to be voted) all Subject Shares then held of
record or beneficially owned by the Stockholder in favor of the Merger
and the Merger Agreement and the transactions contemplated thereby.
(b) At any meeting of stockholders of the Company, however
called, or at any adjournment thereof or in connection with any written
consent of the holders of Common Stock or in any other circumstances
upon which a vote, consent or other approval is sought, the Stockholder
shall vote (or cause to be voted) all Subject Shares then held of
record or beneficially owned by the Stockholder against any action or
agreement (other than the Merger Agreement or the transactions
contemplated thereby) that would impede, interfere with, delay,
postpone or attempt to discourage the Merger, the Offer or the other
transactions contemplated by this Agreement and the Merger Agreement,
including, but not limited to: (i) any Acquisition Proposal; (ii) any
action that is likely to result in a breach in any respect of any
representation, warranty, covenant or any other obligation or agreement
of the Company under the Merger Agreement or result in any of the
conditions set forth in Exhibit A to the Merger Agreement not being
fulfilled; (iii) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the
Company and/or its Subsidiaries; (iv) a sale, lease or transfer of a
material amount of assets of the Company and its Subsidiaries or a
reorganization, recapitalization, dissolution, winding up or
liquidation of the Company and/or its Subsidiaries; (v) any change in
the management or board of directors of the Company, except as
otherwise agreed to in writing by Purchaser; (vi) any material change
in the present capitalization or dividend policy of the Company; or
(vii) any other material change in the Company's corporate structure,
business, certificate of incorporation or bylaws.
(c) The Stockholder understands and acknowledges that
Purchaser and Merger Sub are entering into the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this
Agreement.
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(d) Except as expressly set forth in this Section 4, the
Stockholder shall retain all of its voting rights with respect to the
Subject Shares.
(e) Notwithstanding the foregoing Sections (a) through
(d), to the extent the Stockholder's voting rights (and rights to take
such other actions specified in Sections 4(a) and (b) are restricted as
set forth on ANNEX A, with respect to such Subject Shares, the
Stockholder agrees only to use its reasonable best efforts to cause the
actions specified in Sections (a) through (d) hereof.
5. RESTRICTION ON TRANSFER. The Stockholder agrees not (a) to
sell, transfer, pledge, encumber, assign or otherwise dispose of (collectively,
"TRANSFER"), or enter into any contract, option or other arrangement or
understanding with respect to the Transfer by the Stockholder of, any of the
Subject Shares or offer any interest in any thereof to any Person other than
pursuant to the terms of the Offer, the Merger or this Agreement, (b) to enter
into any voting arrangement or understanding, whether by proxy, power of
attorney, voting agreement, voting trust or otherwise with respect to the
Subject Shares, or (c) take any action that would make any representation or
warranty of the Stockholder contained herein untrue or incorrect in any material
respect or have the effect of preventing or disabling the Stockholder from
performing its obligations under this Agreement.
6. NO SOLICITATION OF ACQUISITION PROPOSALS. The Stockholder
shall not, and shall not authorize, permit or cause any of its employees, agents
and representatives (including the Financial Advisor or any investment banker,
attorney or accountant retained by the Company or any of its Subsidiaries) to,
directly or indirectly, (i) initiate, solicit, or otherwise encourage any
inquiries or the making of any proposal or offer with respect to an Acquisition
Proposal or (ii) initiate or engage in any negotiations concerning, or provide
any confidential information or data to, or have any discussions with, any
person or entity relating to an Acquisition Proposal, whether made before or
after the date of this Agreement, or otherwise facilitate any effort or attempt
to make or implement or consummate an Acquisition Proposal. The Stockholder
shall immediately communicate to Purchaser, to the same extent as is required by
the Company pursuant to Section 8.9(c) of the Merger Agreement, the terms, and
other information concerning, any proposal, discussion, negotiation or inquiry
and the identity of the party making such proposal or inquiry which the
Stockholder may receive in respect of any such Acquisition Proposal.
7. FURTHER ASSURANCES. Upon the terms and subject to the
conditions hereof, each of the parties hereto shall use its reasonable best
efforts to take, or cause to be taken, all appropriate action, and to do or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement. Without limiting the foregoing, each party
hereto will, from time to time and without further consideration, execute and
deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments and shall take all such other action
as any other party may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement, including (a)
vesting good title to the Subject Shares in Merger Sub and (b) using its
reasonable best efforts to make promptly all regulatory filings and
applications, including, without limitation, under the HSR Act, and to obtain
all
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licenses, permits, consents, approvals, authorizations, qualification and
orders of governmental authorities and parties to contracts as are necessary
for the consummation of the transactions contemplated by this Agreement.
Without in any way limiting the foregoing, the Stockholder shall, as soon as
practicable but in no event later than the date on which the Stockholder is
obligated to tender its Subject Shares pursuant to Section 3(b) or Section
3(c), obtain the release of the Encumbrances set forth on ANNEX A hereto.
8. TERMINATION. Except for Section 10 (and Sections 7 and 11
through 14 to the extent they relate thereto), which shall terminate in
accordance with the terms set forth therein, this Agreement, and all
obligations, agreements and waivers hereunder, will terminate and be of no
further force and effect on the earlier of: (a) 180 days after the date the
Merger Agreement is terminated in accordance with its terms; and (b) the
Effective Time; PROVIDED, HOWEVER, that nothing herein shall relieve any party
from liability for any breach hereof.
9. WAIVER OF APPRAISAL AND DISSENTER'S RIGHTS. The Stockholder
waives and agrees not to exercise any rights of appraisal or rights to dissent
from the Merger that the Stockholder may have with respect to the Stockholder's
Subject Shares.
10. PURCHASER GUARANTEE. Purchaser hereby guarantees the due
performance of any and all obligations and liabilities of Merger Sub under or
arising out of this Agreement and the transactions contemplated hereby.
11. ENFORCEMENT. The parties 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 the parties shall be entitled to the remedy of
specific performance of such provisions and to an injunction or injunctions
and/or such other equitable relief as may be necessary to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any federal or state court located in New York, New York or Los
Angeles, California, 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 (a)
consents to submit such party to the personal jurisdiction of any federal or
state court located in New York, New York or Los Angeles, California in the
event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (b) agrees that such party will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, (c) agrees that such party will not bring any action relating to
this Agreement or the transactions contemplated hereby in any court other than a
federal or state court sitting in New York, New York or Los Angeles, California
and (d) waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
12. STOP TRANSFER ORDER; LEGEND. In furtherance of this
Agreement, concurrently herewith, the Stockholder shall, and hereby does
authorize the Company or its counsel, to notify the Company's transfer agent
that there is a stop transfer order with respect to all of the Subject Shares
(and that this Agreement places limits on the voting and transfer of such
shares). If requested by Purchaser, the Stockholder agrees as promptly as is
reasonably practicable to apply a legend to all certificates representing the
Subject Shares referring to any
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and all rights granted to Purchaser by this Agreement; PROVIDED that, no such
legend shall restrict the transfer of the Subject Shares if such transfer is
made pursuant to the Offer.
13. ADJUSTMENTS TO PREVENT DILUTION, ETC. In the event of a
stock dividend or distribution, or any change in the Company's Common Stock by
reason of any stock dividend, split-up, reclassification, recapitalization,
combination, exchange of shares or the like, the term "Subject Shares" shall be
deemed to refer to and include the Subject Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Subject Shares may be changed or exchanged. In such event, the amount to be
paid per share by Purchaser shall be proportionately adjusted.
14. GENERAL PROVISIONS.
(a) AMENDMENTS. This Agreement may not be modified,
altered, supplemented or amended except by an instrument in writing
signed by each of the parties hereto.
(b) NOTICE. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally
or sent by overnight courier (providing proof of delivery) to Purchaser
or Merger Sub in accordance with Section 11.2 of the Merger Agreement
and to the Stockholder at the address set forth above (or to such other
address as any party may have furnished to the other parties in writing
in accordance herewith).
(c) INTERPRETATION. When a reference is made in this
Agreement to Sections, such reference shall be to a Section 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.
(d) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of the
counterparts have been signed by each of the parties and delivered to
the other party, it being understood that each party need not sign the
same counterpart.
(e) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (including, without limitation, 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 or entity other than the
parties hereto any rights or remedies hereunder.
(f) BINDING AGREEMENT. This Agreement and the obligations
hereunder shall attach to the Subject Shares and shall be binding upon
the parties and any person or entity to which legal or beneficial
ownership of the Subject Shares shall pass, whether by operation of law
or otherwise, including, without limitation, the Stockholder's
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administrators or successors. Notwithstanding any transfer of Subject
Shares, the transferor shall remain liable for the performance of all
obligations of the transferor under this Agreement.
(g) GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware,
without reference to the conflict of laws principles thereof.
(h) COSTS AND EXPENSES. Whether or not the Offer or the
Merger is consummated, all costs and expenses incurred in connection
with this Agreement and the consummation of the transactions
contemplated hereby shall be paid by the party incurring such expenses.
(i) ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of
Stockholder or Merger Sub and Purchaser, as the case may be, PROVIDED
that Merger Sub or Purchaser may assign, in its respective sole
discretion, its rights and obligations hereunder to any direct or
indirect subsidiary of Purchaser.
(j) SEVERABILITY. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law but if any
provision or portion of any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable
law or rule in any jurisdiction such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal
or unenforceable provision or portion of any provision had never been
contained herein.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, Purchaser, Merger Sub and the Stockholder
have caused this Agreement to be signed by their respective officer thereunto
duly authorized as of the date first written above.
PURCHASER:
FLIPSIDE, INC.
By: /s/ Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx
Title: Chairman
MERGER SUB:
FLIPSIDE ACQUISITION CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Secretary
STOCKHOLDER
ENCOMPASS GROUP U.S. INFORMATION
TECHNOLOGY PARTNERS I L.P.
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
S-1
ANNEX A
None.
A-1
