FORM OF VOTING AGREEMENT
Exhibit 99.1
Exhibit A
FORM OF VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”) is made and entered into as of May 20, 2009
by and between NetApp, Inc., a Delaware corporation (“Parent”), and the undersigned
Stockholder (the “Stockholder”) of Data Domain, Inc., a Delaware corporation (the
“Company”).
WITNESSETH:
WHEREAS, Parent, Kentucky Merger Sub One Corporation, a Delaware corporation and wholly-owned
subsidiary of Parent (“Merger Sub One”), Derby Merger Sub Two LLC, a Delaware limited
liability company and wholly-owned subsidiary of Parent (“Merger Sub Two”), and the Company
have entered into an Agreement and Plan of Merger of even date herewith (the “Merger
Agreement”), which provides for, among other things, the merger of Merger Sub One with and into
the Company (the “First Step Merger” or the “Merger”), pursuant to which all
outstanding shares of capital stock of the Company will be converted into the right to receive the
consideration set forth in the Merger Agreement. If the opinions described in Section 6.18
of the Merger Agreement are delivered, as soon as practicable following the First Step Merger and
as a single integrated transaction, Parent will cause the Company to merge with and into Merger Sub
Two with Merger Sub Two continuing as the surviving entity (the “Second Step Merger” ;
provided that, if the Second Step Merger does occurs, the Second Step Merger shall be included in
the meaning of the term, the “Merger”).
WHEREAS, the Stockholder is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of that number of shares
of the outstanding capital stock of the Company, and the holder of options to purchase such number
of shares of capital stock of the Company, in each case, as set forth on the signature page of this
Agreement.
WHEREAS, as a condition and inducement to the willingness of Parent, Merger Sub One and Merger
Sub Two to enter into the Merger Agreement, the Stockholder (in the Stockholder’s capacity as such)
has agreed to enter into this Agreement.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as follows:
1. Certain Definitions. All capitalized terms that are used but not defined herein
shall have the respective meanings ascribed to them in the Merger Agreement. For all purposes of
and under this Agreement, the following terms shall have the following respective meanings:
(a) “Expiration Date” shall mean the earlier to occur of (i) such date and time as the
Merger Agreement shall have been validly terminated pursuant to Article VIII thereof, or
(ii) such date and time as the Requisite Merger Approval has been obtained or (iii) the written
agreement of the parties hereto to terminate this Agreement.
(b) “Person” shall mean any individual, corporation, limited liability company,
general or limited partnership, trust, unincorporated association or other entity of any kind or
nature, or any governmental authority.
(c) “Shares” shall mean (i) all equity securities of the Company (including all shares
of Company Common Stock, Company Preferred Stock and all Company Stock Awards and any other rights
to acquire shares of Company capital stock) owned by the Stockholder as of the date hereof, and
(ii) all additional equity securities of the Company (including all additional shares of Company
Common Stock, Company Preferred Stock and all additional Company Stock Awards, warrants and other
rights to acquire shares of Company capital stock) of which the Stockholder acquires beneficial
ownership during the period from the date of this Agreement through the Expiration Date (including
by way of stock dividend or distribution, split-up, recapitalization, combination, exchange of
shares and the like).
(d) “Transfer” A Person shall be deemed to have effected a “Transfer” of a
Share if such person directly or indirectly (i) sells, pledges, encumbers, assigns, grants an
option with respect to, transfers, tenders or disposes of such Share or any interest in such Share,
or (ii) enters into an agreement to effect any of the foregoing.
2. Transfer of Shares.
(a) Transfer Restrictions. The Stockholder shall not Transfer (or cause or permit the
Transfer of ) any of the Shares, or enter into any agreement relating thereto, except (i) by
selling already-owned Shares either to pay the exercise price upon the exercise of a Company Option
or to satisfy the Stockholder’s tax withholding obligation upon the exercise of a Company Option,
in each case as permitted by any Company Option Plan, or (ii) by selling already-owned Shares
pursuant to 10b5-1 trading plans existing as of the date hereof or (iii) transferring Shares to
Affiliates, immediate family members, a trust established for the benefit of Stockholder and/or for
the benefit of one or more members of the Stockholder’s immediate family or upon the death of the
Stockholder or charitable organizations or in connection with, or solely for the purpose of,
personal tax-planning, provided that, as a condition to such Transfer, the recipient agrees to be
bound by this Agreement and delivers a Proxy (as defined below) in the form attached hereto as
Exhibit A. Any Transfer, or purported Transfer, of Shares in breach or violation of this
Agreement shall be void and of no force or effect.
(b) Transfer of Voting Rights. The Stockholder shall not deposit (or cause or permit
the deposit of) any Shares in a voting trust or grant any proxy or enter into any voting agreement
or similar agreement in contravention of the obligations of the Stockholder under this Agreement
with respect to any of the Shares.
3. Agreement to Vote Shares.
(a) At every meeting of the stockholders of the Company, and at every adjournment or
postponement thereof, and on every action or approval by written consent of the stockholders of
Company, the Stockholder (in the Stockholder’s capacity as such), to the extent not voted by the
Person(s) appointed under the Proxy, shall, or shall cause the holder of record on any applicable
record date to, vote the Shares:
(i) in favor of the adoption of the Merger Agreement, and in favor of each of the other
actions contemplated by the Merger Agreement and any action required in furtherance thereof;
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(ii) against approval of any proposal made in opposition to, in competition with, or would
result in a breach of, the Merger Agreement or the Merger or any other transactions contemplated by
the Merger Agreement; and
(iii) against any of the following actions (other than those actions that relate to the Merger
and any other transactions contemplated by the Merger Agreement): (A) any merger, consolidation,
business combination, sale of assets, reorganization or recapitalization of or involving the
Company or any of its Subsidiaries, (B) any sale, lease or transfer of any significant part of the
assets of the Company or any of its Subsidiaries, (C) any reorganization, recapitalization,
dissolution, liquidation or winding up of the Company or any of its Subsidiaries, (D) any material
change in the capitalization of the Company or any of its Subsidiaries, or the corporate structure
of the Company or any of its Subsidiaries, or (E) any other action that is intended, or could
reasonably be expected to, impede, interfere with, delay, postpone, discourage or adversely affect
the Merger or any other transactions contemplated by the Merger Agreement.
(b) In the event that a meeting of the Stockholders of the Company is held, the Stockholder
shall, or shall cause the holder of record on any applicable record date to, appear at such meeting
or otherwise cause the Shares to be counted as present thereat for purposes of establishing a
quorum.
(c) The Stockholder shall not enter into any agreement or understanding with any Person to
vote or give instructions in any manner inconsistent with the terms of this Section 3.
4. Agreement Not to Exercise Appraisal Rights. The Stockholder shall not exercise,
and hereby irrevocably and unconditionally waives, any statutory rights (including, without
limitation, under Section 262 of the DGCL) to demand appraisal of any Shares that may arise in
connection with the Merger.
5. Directors and Officers. Notwithstanding any provision of this Agreement to the
contrary, nothing in this Agreement shall limit or restrict a Stockholder who is a director or
officer of the Company from acting in such capacity or voting, in his capacity as a director or
officer of the Company, in the Stockholder’s sole discretion on any matter (it being understood
that this Agreement shall apply to the Stockholder solely in the Stockholder’s capacity as a
Stockholder of the Company). In this regard, the Stockholder shall not be deemed to make any
agreement or understanding in this Agreement in Stockholder’s capacity as a director or officer of
the Company.
6. Irrevocable Proxy. Concurrently with the execution of this Agreement, the
Stockholder shall deliver to Parent a proxy in the form attached hereto as Exhibit A (the
“Proxy”), which shall be irrevocable to the fullest extent permissible by law, with respect
to the Shares.
7. Representations and Warranties of the Stockholder.
(a) Power; Binding Agreement. The Stockholder has full power and authority to execute
and deliver this Agreement and the Proxy, to perform the Stockholder’s obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder, and, assuming this Agreement constitutes a valid and
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binding
obligation of Parent, Merger Sub One and Merger Sub Two, constitutes a valid and binding obligation
of the Stockholder, enforceable against the Stockholder in accordance with its terms.
(b) No Conflicts. None of the execution and delivery by the Stockholder of this
Agreement, the performance by the Stockholder of its obligations hereunder or the consummation by
the Stockholder of the transactions contemplated hereby will (i) result in a violation or breach of
any agreement to which the Stockholder is a party or by which the Stockholder may be bound,
including any voting agreement or voting trust, or (ii) violate any order, writ, injunction,
decree, judgment, order, statute, rule, or regulation applicable to the Stockholder.
(c) Ownership of Shares. The Stockholder (i) is the sole beneficial owner of the
shares of Company Common Stock set forth on the signature page of this Agreement, all of which are
free and clear of any liens, security interests, pledges or options, proxies or any other rights or
encumbrances whatsoever (“Encumbrances”) (other than pursuant to the terms of restricted
stock agreements as in effect on the date hereof and except any Encumbrances arising under
securities laws or arising hereunder), (ii) is the sole holder of Company Options that are
exercisable for the number of shares of Company Common Stock set forth on the signature page of
this Agreement, all of which Company Options and shares of Company Common Stock issuable upon the
exercise of such Company Options are, or in the case of Company Common Stock received upon exercise
of an option after the date hereof will be, free and clear of any Encumbrances (except any
Encumbrances arising under securities laws or arising hereunder), and (iii) except as set forth on
the signature page to this Agreement, does not own, beneficially or otherwise, any securities of
the Company other than the shares of Company Common Stock or options to purchase shares of Company
Common Stock, and shares of Company Common Stock issuable upon the exercise of such Company
Options, set forth on the signature page of this Agreement.
(d) Voting Power. The Stockholder has or will have sole voting power, sole power of
disposition, sole power to issue instructions with respect to the matters set forth herein, and
sole power to agree to all of the matters set forth in this Agreement, in each case with respect to
all of the Shares, with no limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement.
(e) Reliance by Parent. The Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of
this Agreement.
(f) No Legal Actions. Stockholder agrees that Stockholder will not in Stockholder’s
capacity as a Stockholder of the Company bring, commence, institute, maintain, prosecute or
voluntarily aid any action, claim, suit or cause of action, in law or in equity, in any court or
before any governmental entity, which (i) challenges the validity of or seeks to enjoin the
operation of any provision of this Agreement or (ii) alleges that the execution and delivery of
this Agreement by Stockholder, either alone or together with the other Company voting agreements
and
proxies to be delivered in connection with the execution of the Merger Agreement, or the
approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company
Board or any member thereof.
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8. Certain Restrictions. The Stockholder shall not, directly or indirectly, take any
action that would make any representation or warranty of the Stockholder contained herein untrue or
incorrect.
9. Disclosure. The Stockholder shall permit Parent to publish and disclose in all
documents and schedules filed with the SEC, and any press release or other disclosure document that
Parent determines to be necessary or desirable in connection with the Merger and any transactions
related to the Merger, the Stockholder’s identity and ownership of Shares and the nature of the
Stockholder’s commitments, arrangements and understandings under this Agreement.
10. No Ownership Interest. Nothing contained in this Agreement shall be deemed to
vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to any
Shares. Except as provided in this Agreement, all rights, ownership and economic benefits relating
to the Shares shall remain vested in and belong to Stockholder.
11. Further Assurances. Subject to the terms and conditions of this Agreement, the
Stockholder shall use commercially reasonable efforts to take, or cause to be taken, all actions,
and to do, or cause to be done, all things necessary to fulfill such Stockholder’s obligations
under this Agreement.
12. Stop Transfer Instructions. At all times commencing with the execution and
delivery of this Agreement and continuing until the Expiration Date, the Company shall not register
the Transfer (by book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Shares unless such Transfer is made pursuant to and in compliance with the
terms and conditions of this Agreement.
13. Termination. This Agreement and the Proxy shall terminate and shall have no
further force or effect as of the Expiration Date. Notwithstanding the foregoing, nothing set
forth in this Section 13 or elsewhere in this Agreement shall relieve either party hereto
from liability, or otherwise limit the liability of either party hereto, for any intentional breach
of this Agreement.
14. Miscellaneous.
(a) Validity. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of the other provisions of this Agreement, which
will remain in full force and effect. In the event any Governmental Authority of competent
jurisdiction holds any provision of this Agreement to be null, void or unenforceable, the parties
hereto shall negotiate in good faith and execute and deliver an amendment to this Agreement in
order, as nearly as possible, to effectuate, to the extent permitted by law, the intent of the
parties hereto with respect to such provision.
(b) Binding Effect and Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the rights, interests
or obligations of the parties hereto may be assigned by either of the parties without prior written
consent of the other.
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(c) Amendments; Waiver. This Agreement may be amended by the parties hereto, and the
terms and conditions hereof may be waived, only by an instrument in writing signed on behalf of
each of the parties hereto, or, in the case of a waiver, by an instrument signed on behalf of the
party waiving compliance.
(d) Specific Performance; Injunctive Relief. 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, in addition to any other remedy to which they are entitled at law or in equity, the
parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction.
(e) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly delivered and received hereunder (i) four (4) Business Days after
being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one (1)
Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable
nationwide overnight courier service, or (iii) immediately upon delivery by hand or by facsimile
(with a written electronic confirmation of delivery), in each case to the intended recipient, at
the following addresses or telecopy numbers (or at such other address or telecopy numbers for a
party as shall be specified by like notice):
If to Parent:
NetApp, Inc.
000 Xxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
000 Xxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx and Nate Gallon
Telecopy No.: (000) 000-0000
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx and Nate Gallon
Telecopy No.: (000) 000-0000
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
Xxx Xxxxxx
Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Professional Corporation
Xxx Xxxxxx
Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
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Telecopy No.: (000) 000-0000
with a copy to:
If to the Stockholder:
Fenwick & West LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
R. Xxxxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
R. Xxxxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
(f) No Waiver. The failure of either party hereto to exercise any right, power or
remedy provided under this Agreement or otherwise available in respect of this Agreement at law or
in equity, or to insist upon compliance by any other party with its obligation under this
Agreement, and any custom or practice of the parties at variance with the terms of this Agreement,
shall not constitute a waiver by such party of such party’s right to exercise any such or other
right, power or remedy or to demand such compliance.
(g) No Third Party Beneficiaries. This Agreement is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
(h) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law thereof.
(i) Submission to Jurisdiction. Each of the parties hereto irrevocably consents to
the exclusive jurisdiction and venue in any state court within the State of Delaware (or, if a
state court located within the State of Delaware declines to accept jurisdiction over a particular
matter, any court of the United States located in the State of Delaware) in connection with any
matter based upon or arising out of this Agreement or the transactions contemplated hereby, agrees
that process may be served upon them in any manner authorized by the laws of the State of Delaware
for such persons and waives and covenants not to assert or plead any objection which such person
might otherwise have to such jurisdiction, venue and process. Each party hereto hereby agrees not
to commence any
legal proceedings relating to or arising out of this Agreement or the transactions
contemplated hereby in any jurisdiction or courts other than as provided herein.
(j) Rules of Construction. The parties hereto hereby waive the application of any
law, regulation, holding or rule of construction providing that ambiguities in an agreement or
other document will be construed against the party drafting such agreement or document.
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(k) Entire Agreement. This Agreement and the Proxy contain the entire understanding
of the parties hereto in respect of the subject matter hereof, and supersede all prior
negotiations, agreements and understandings, both written and oral, between the parties hereto with
respect to the subject matter hereof.
(l) Interpretation.
(i) Whenever the words “include,” “includes” or “including” are used in this Agreement they
shall be deemed to be followed by the words “without limitation.” As used in this Agreement, the
term “affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under the Exchange Act.
(ii) The article and section headings contained in this Agreement are solely for the purpose
of reference, are not part of the agreement of the parties hereto and shall not in any way affect
the meaning or interpretation of this Agreement.
(m) Expenses. All costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring the expenses.
(n) Counterparts. This Agreement may be executed in several counterparts, each of
which shall be an original, but all of which together shall constitute one and the same agreement.
(o) No Obligation to Exercise Options or Warrants. Notwithstanding any provision of
this Agreement to the contrary, nothing in this Agreement shall obligate the Stockholder to
exercise any Company Option, warrant or other right to acquire shares of Company Common Stock.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed and caused to be effective this Agreement as
of the date first above written.
| NETAPP, INC. | STOCKHOLDER | |||||||
By:
|
By: | |||||||
Name:
|
Name: | |||||||
Title:
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Name: | |||||||
Shares beneficially owned as of the date hereof:
shares of Company Common Stock
shares of Company Restricted Stock
shares of Company Common Stock issuable
upon exercise of outstanding options
upon exercise of outstanding options
shares of Company Common Stock
issuable upon settlement of Company Restricted
Stock Units
**** VOTING AGREEMENT ****
EXHIBIT A
IRREVOCABLE PROXY
The undersigned Stockholder (the “Stockholder”) of Data Domain, Inc., a Delaware
corporation (the “Company”), hereby irrevocably (to the fullest extent permitted by law)
appoints NetApp, Inc., a Delaware corporation (“Parent”), acting through any of its General
Counsel or Chief Financial Officer, as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to vote and exercise all voting
and related rights (to the full extent that the undersigned is entitled to do so) with respect to
all of the shares of capital stock of the Company that now are or hereafter may be beneficially
owned by the undersigned, and any and all other shares or equity securities of the Company issued
or issuable in respect thereof commencing with the execution and delivery of this Proxy
(collectively, the “Shares”) in accordance with the terms of this Irrevocable Proxy until
the Expiration Date (as defined below); provided, however, that such proxy and voting and related
rights are expressly limited to the matters discussed in clauses (i) through (iii) in the fourth
paragraph of this Irrevocable Proxy. Upon the undersigned’s execution of this Irrevocable Proxy,
any and all prior proxies given by the undersigned with respect to any Shares are hereby revoked
and the undersigned agrees not to grant any subsequent proxies with respect to the Shares until
after the Expiration Date.
This Irrevocable Proxy is irrevocable to the fullest extent permitted by law, is coupled with
an interest and is granted pursuant to that certain Voting Agreement of even date herewith by and
between Parent and the undersigned Stockholder (the “Voting Agreement”), and is granted as
a condition and inducement to the willingness of Parent, Kentucky Merger Sub One Corporation, a
Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub One”), Derby Merger
Sub Two LLC, a Delaware limited liability company and wholly-owned subsidiary of Parent
(“Merger Sub Two”), to enter into that certain Agreement and Plan of Merger of even date
herewith (the “Merger Agreement”), among Parent, Merger Sub One, Merger Sub Two and the
Company. The Merger Agreement provides for, among other things, the merger of Merger Sub One with
and into the Company (the “First Step Merger” or the “Merger”) pursuant to which
all outstanding shares of capital stock of the Company will be converted into the right to receive
the consideration set forth in the Merger Agreement. If the opinions described in Section
6.18 of the Merger Agreement are delivered, as soon as practicable following the First Step
Merger and as a single integrated transaction, Parent will cause the Company to merge with and into
Merger Sub Two with Merger Sub Two continuing as the surviving entity (the “Second Step
Merger” ; provided that, if the Second Step Merger does occurs, the Second Step Merger shall be
included in the meaning of the term, the “Merger”).
As used herein, the term “Expiration Date” shall mean the earlier to occur of (i) such
date and time as the Merger Agreement shall have been validly terminated pursuant to Article
VIII thereof, or (ii) such date and time as the Merger has received the Requisite Merger
Approval or (iii) the written agreement of the parties hereto to terminate this Agreement.
The attorneys and proxies named above, and each of them, are hereby authorized and empowered
by the undersigned, at any time prior to the Expiration Date, to act as the undersigned’s
attorney and proxy to vote the Shares, and to exercise all voting, consent and similar rights
of the
undersigned with respect to the Shares (including, without limitation, the power to execute
and deliver written consents) at every annual, special, adjourned or postponed meeting of
stockholders of the Company and in every written consent in lieu of such meeting:
(i) in favor of the adoption of the Merger Agreement, and in favor of each of the other
actions contemplated by the Merger Agreement and any action required in furtherance thereof;
(ii) against approval of any proposal made in opposition to, or in competition with, the
Merger Agreement or the Merger or any other transactions contemplated by the Merger Agreement; and
(iii) against any of the following actions (other than those actions that relate to the Merger
and any other transactions contemplated by the Merger Agreement): (A) any merger, consolidation,
business combination, sale of assets, reorganization or recapitalization of or involving the
Company or any of its Subsidiaries, (B) any sale, lease or transfer of any significant part of the
assets of the Company or any of its Subsidiaries, (C) any reorganization, recapitalization,
dissolution, liquidation or winding up of the Company or any of its Subsidiaries, (D) any material
change in the capitalization of the Company or any of its Subsidiaries, or the corporate structure
of the Company or any of its Subsidiaries, or (E) any other action that is intended, or could
reasonably be expected to, impede, interfere with, delay, postpone, discourage or adversely affect
the Merger or any other transactions contemplated by the Merger Agreement.
The attorneys and proxies named above may not exercise this Irrevocable Proxy on any other
matter. The undersigned Stockholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the successors and assigns
of the undersigned.
This Irrevocable Proxy shall terminate, and be of no further force and effect, automatically
upon the Expiration Date.
| Dated: May __, 2009 | STOCKHOLDER | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
***** IRREVOCABLE PROXY ****
