EXHIBIT 2.2
VOTING AGREEMENT AND PROXY
This VOTING AGREEMENT AND PROXY (this "Agreement") is dated as of August
__, 2004 by and between FSI International, Inc., a Minnesota corporation
("Shareholder"), and Applied Materials, Inc., a Delaware corporation
("Purchaser").
RECITALS:
A. Concurrently herewith, Purchaser and Metron Technology N.V., a
corporation organized under the laws of The Netherlands (the "Company") have
entered into a Stock and Asset Purchase Agreement (as amended from time to time,
the "Purchase Agreement"). Shareholder acknowledges receipt of a copy of the
Purchase Agreement. Unless otherwise defined herein, capitalized terms used
herein have the meanings ascribed to such terms in the Purchase Agreement.
B. The Purchase Agreement provides for, among other matters the sale by
the Company to Purchaser of the Purchased Assets which includes the Business
which operates through the ownership of all of the issued and outstanding shares
of capital stock of the Purchased Companies.
C. Following the completion of the Transaction, the Company intends to
wind up its affairs, satisfy all valid claims of creditors and others having
claims against the Company and distribute any remaining assets to its
shareholders.
D. As of the date hereof, Shareholder is the record and beneficial
owner of that number of common shares, par value 0.44 Euro per share (calculated
as permitted by Section 2:67c of the Dutch Civil Code), of the Company set forth
the signature page hereto (such shares, together with any other capital stock of
the Company acquired by Shareholder after the date hereof, being collectively
referred to herein as the "Shares").
E. The Company Shareholder Approval (as defined in the Purchase
Agreement) is a condition to the consummation of the Transaction.
F. As an inducement to Purchaser to enter into the Purchase Agreement,
Purchaser and Shareholder have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements hereinafter contained, the parties hereby agree as follows:
Section 1. No Shop
(a) General. So long as this Agreement remains in effect,
Shareholder shall not, nor shall it authorize or permit any of Shareholder's
Affiliates, any
of their respective directors, officers or employees or any investment banker,
financial advisor, attorney, accountant or other advisor, agent or
representative (collectively, "Representatives") retained by Shareholder to,
directly or indirectly through another Person, (i) solicit, initiate or
knowingly encourage, or take any other action intended to, or which could
reasonably be expected to facilitate, any inquiries or the making of any
proposal that constitutes or is reasonably likely to lead to a Company Takeover
Proposal (as defined in the Purchase Agreement)or (ii) participate in any
discussions or negotiations regarding, or furnish to any person any information,
or otherwise cooperate in any way with, any Company Takeover Proposal.
(b) Notification. So long as this Agreement remains in
effect, Shareholder shall promptly (but in any event within 24 hours of receipt
thereof) advise Purchaser orally and in writing of any Company Takeover Proposal
or request for information received by Shareholder that would reasonably be
expected to lead to or contemplates any Company Takeover Proposal, or any
inquiry that would reasonably be expected to lead to any Company Takeover
Proposal, the terms and conditions of any such request, Company Takeover
Proposal or inquiry (including any changes thereto) and the identity of the
person making any such request, Company Takeover Proposal or inquiry, with a
copy of any written Company Takeover Proposal or inquiry. Shareholder shall (i)
keep Purchaser informed of the status and details (including any change to the
terms thereof) of any such request, Company Takeover Proposal or inquiry and
(ii) provide to Purchaser as soon as practicable after receipt or delivery
thereof with copies of all correspondence and other written material (or a
written summary of any oral request. Company Takeover Proposal or inquiry) sent
or provided to Shareholder from any person that describes any of the terms or
conditions of any such request, Company Takeover Proposal or inquiry.
Shareholder shall be deemed to have satisfied the notice requirement of this
Section 1(b) if notices containing the information described herein are
delivered by the Company in accordance with Section 6.6(c) of the Purchase
Agreement.
(c) Ongoing Discussions. Shareholder shall (and shall cause
its Representatives to) immediately cease and cause to be terminated any
existing discussions or negotiations with any Person conducted heretofore with
respect to any Company Takeover Proposal and request the prompt return or
destruction of all confidential information previously furnished by Shareholder.
(d) Fiduciary Duties. This Section 1 shall not apply to any
action taken by Shareholder in Shareholder's the capacity as either an officer
or director of the Company and any actions taken by Shareholder in such capacity
shall be governed solely by the Purchase Agreement.
Section 2. Agreement to Vote, Restrictions on Voting and
Dispositions, Irrevocable Proxy.
(a) Agreement to Vote. At every meeting of the shareholders
of the Company called with respect to any of the following, and at every
adjournment thereof, and in every action or approval by written consent of the
shareholders of the Company in lieu of such a meeting with respect to any of the
following, Shareholder shall
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vote or cause to be voted the Shares, and shall execute and deliver written
consents and otherwise exercise all voting and other rights of Shareholder with
respect to the Shares (i) in favor of adoption and approval of (x) the Purchase
Agreement, the Transaction and the other matters contemplated by the Purchase
Agreement, (y) any matter in furtherance of the Transaction and any of the other
transactions contemplated by the Purchase Agreement and this Agreement, and (z)
the waiver of any notice to Shareholder that may have been or may be required
relating to the Transaction or any of the other transactions contemplated by the
Purchase Agreement or this Agreement, and (ii) against any (x) Company Takeover
Proposal made by any Person other than the Purchaser, without regard to any
recommendation from the Company Boards to shareholders concerning such Company
Takeover Proposal, and without regard to the terms of such Company Takeover
Proposal, (y) any agreement, amendment of any agreement (including the Company's
articles of association or other organizational documents), or any other action
that is intended or could reasonably be expected to prevent, impede, interfere
with, delay, postpone, or discourage the Transaction and any of the other
transactions contemplated by the Purchase Agreement or this Agreement, and (z)
any action, agreement, transaction or proposal that would result in a material
breach of any representation, warranty, covenant, agreement or other obligation
of the Company, the Purchased Companies or their Subsidiaries in the Purchase
Agreement. Any such vote shall be cast (or consent shall be given) by
Shareholder in accordance with the procedures relating thereto so as to ensure
that it is duly counted, including for purposes of determining that a quorum is
present and for the purposes of recording such vote (or consent).
(b) Restrictions on Dispositions. Shareholder hereby agrees
that, without the prior written consent of Purchaser (except as may be
specifically required by Order or applicable Law), Shareholder shall not,
directly or indirectly, sell, offer to sell, give, pledge, encumber, assign,
grant any option for the sale of or otherwise transfer or dispose of, or enter
into any agreement, arrangement or understanding to sell, any Shares
(collectively, "Transfer") other than to its Affiliates, provided that as a
condition to such Transfer, such Affiliate shall execute an agreement that is
identical to this Agreement (except to reflect the change of the Shareholder).
(c) Irrevocable Proxy. Concurrently with the execution of
this Agreement, Shareholder shall deliver to Purchaser a duly executed proxy in
the form attached hereto as Exhibit A (the "Proxy") with respect to each meeting
of Company shareholders, such Proxy to cover the total number of Shares in
respect of which Shareholder is entitled to vote at any such meeting. Upon the
execution of this Agreement by Shareholder, Shareholder hereby revokes any and
all prior proxies given by Shareholder with respect to the Shares and agrees not
to grant any subsequent proxies with respect to the Shares (other than the
Proxy) until after the Expiration.
(d) Inconsistent Agreements. Shareholder hereby agrees that,
it shall not enter into any agreement, contract or understanding with any Person
prior to the Expiration directly or indirectly to vote, grant a proxy or power
of attorney or give instructions with respect to the voting of the Shares in any
manner which is inconsistent with this Agreement.
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(e) Permitted Transfers. Section 2(b) shall not prohibit a
transfer of Shares by Shareholder if Shareholder is an individual upon the death
of Shareholder; provided, however, that a transfer referred to in this sentence
shall be permitted only if, as a precondition to such transfer, the transferee
agrees in a writing, reasonably satisfactory in form and substance to Purchaser,
to be bound by all of the terms of this Agreement.
Section 3. Non-disclosure. From and after the date hereof,
Shareholder shall not and shall cause its Representatives not to, directly or
indirectly, disclose, reveal, divulge or communicate to any Person other than
authorized officers, directors and employees of Purchaser or the Company or use
or otherwise exploit for his or its own benefit or for the benefit of anyone
other than the Purchaser or the Company, any Confidential Information (as
defined below). Shareholder and its Representatives shall not have any
obligation to keep confidential any Confidential Information if, and to the
extent, disclosure thereof is specifically required by law; provided, however,
Shareholder shall provide Purchaser with prompt notice of such requirement prior
to making any disclosure so that Purchaser may seek an appropriate protective
order. For purposes of this Section 3(c), "Confidential Information" shall mean
any confidential information (whether or not in writing) with respect to the
Purchase Agreement, any of the transactions contemplated thereby, and the
Company, the Purchased Companies or their Subsidiaries, including, methods of
operation, customers, customer lists, products, prices, fees, cost, technology,
inventions, trade secrets, know-how, software, marketing methods, plans,
personnel, suppliers, competitors, markets, other specialized information or
proprietary matters (including, without limitation, information that was or will
be developed, created, discovered by or on behalf of the Company, the Purchased
Companies or their Subsidiaries or will become known by, or was or is conveyed
to the Company, the Purchased Companies or their Subsidiaries) or information of
any third party which the Company, the Purchased Companies or their Subsidiaries
is under an obligation to keep confidential that is maintained by the Company as
confidential. "Confidential Information" does not include, and there shall be no
obligation hereunder with respect to, information that (i) is generally
available to the public on the date of this Agreement or (ii) becomes generally
available to the public other than as a result of a disclosure not otherwise
permissible hereunder.
Section 4. Representations, and Warranties and Covenants of
Shareholder. Shareholder represents and warrants to Purchaser as follows: (i)
Shareholder has all necessary power and authority to execute and deliver this
Agreement and to perform Shareholder's obligations hereunder; (ii) this
Agreement has been duly executed and delivered by Shareholder and the execution,
delivery and performance of this Agreement by Shareholder and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Shareholder; (iii) assuming the due
authorization, execution and delivery of this Agreement by Purchaser, this
Agreement constitutes the valid and binding agreement of Shareholder enforceable
against Shareholder in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws affecting the enforcement of creditors rights generally and
subject to general equitable principles and to limitation on availability of
equitable
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relief, including specific performance; (iv) the execution and delivery of this
Agreement by Shareholder does not conflict with or violate any Law or agreement
binding upon Shareholder, nor require any consent, notification, regulatory
filing or approval, to any Person and (v) except for restrictions in favor of
Purchaser pursuant to this Agreement and except for such transfer restrictions
of general applicability as may be provided under the Securities Act of 1933, as
amended, the "blue sky" laws of the various States of the United States, and any
similar laws or other restrictions or limitations which may applicable under the
laws of The Netherlands, Shareholder owns, beneficially and of record, all of
the Shares free and clear of any proxy, voting restriction, adverse claim or
other lien and has sole voting power and sole power of disposition with respect
to all Shares, with no restrictions on Shareholder's rights of voting or
disposition pertaining thereto and no Person other than Shareholder has any
right to direct or approve the voting or disposition of any Shares.
Section 5. Representations and Warranties of Purchaser. Purchaser
represents and warrants to Shareholder as follows: (i) each of this Agreement
and the Purchase Agreement has been approved by Purchaser's board of directors;
(ii) each of this Agreement and the Purchase Agreement has been duly executed
and delivered by a duly authorized officer of Purchaser; and (iii) assuming the
due authorization, execution and delivery of this Agreement by Shareholder, this
Agreement constitutes a valid and binding agreement of Purchaser, enforceable
against Purchaser in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws affecting the enforcement of creditors rights generally and
subject to general equitable principles and to limitation on availability of
equitable relief, including specific performance.
Section 6. Further Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions (including without limitation, in the case of the Shareholder,
any amendments to this Agreement which Purchaser may reasonably request) as may
be necessary or appropriate to effectuate, carry out and comply with all of his
or its obligations under this Agreement.
Section 7. Effectiveness and Termination.
(a) It is a condition precedent to the effectiveness of this
Agreement that the Purchase Agreement shall have been duly executed and
delivered by each of the parties thereto and be in full force and effect. This
Agreement shall automatically terminate and be of no further force or effect
upon the earlier to occur of (i) such date and time as the Transaction shall
become effective in accordance with the terms and provisions of the Purchase
Agreement and (ii) the date of termination of the Purchase Agreement pursuant to
its terms (the "Expiration").
Section 8. Miscellaneous.
(a) Expenses. Each party shall bear his or its own expenses
incurred in connection with this Agreement and the transactions contemplated
hereby.
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(b) Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given (i) when delivered
personally. (ii) on the third business day after being mailed by certified mail,
return receipt requested, (iii) the next business day after delivery to a
recognized overnight courier, or (iv) upon transmission and confirmation of
receipt by a facsimile operator if sent by facsimile (and shall also be
transmitted by facsimile to the Persons receiving copies thereof), to the
parties at the following addresses or facsimile numbers (or to such other
address and facsimile number as a party may have specified by notice given to
the other party pursuant to this provision):
If to Purchaser, to
Applied Materials, Inc.
0000 Xxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxx Xxxxx, XX 00000-0000
Facsimile: _____________
Attention: _____________
with a copy to (which shall not constitute notice):
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to any Shareholder, to the address for notice set
forth on the signature pages hereto, with a copy to
(which shall not constitute notice):
Xxxxxx Godward LLP
5 Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx Xxxxxx, Esq.
(c) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing signed by Purchaser and Shareholder.
(d) Successors and Assigns. No party may assign any of its
or his rights or delegate any of its or his obligations under this Agreement
without the prior written consent of the other parties, except that Purchaser
may, without the consent of Shareholder, assign any of its rights and delegate
any of its obligations under this Agreement to any Affiliate of Purchaser.
Subject to the preceding sentence, this Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns, including without limitation any
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corporate successor by merger or otherwise. Notwithstanding any Transfer of
Shares consistent with this Agreement, the transferor shall remain liable for
the performance of all obligations of transferor under this Agreement.
(e) No Third Party Beneficiaries. Nothing expressed or
referred to in this Agreement will be construed to give any Person, other than
the parties to this Agreement, any legal or equitable right, remedy or claim
under or with respect to this Agreement or any provision of this Agreement
except as such rights as may inure to a successor or permitted assignee under
Section 8(d).
(f) No Partnership, Agency, or Joint Venture. This Agreement
is intended to create, and creates, a contractual relationship and is not
intended to create, and does not create, any agency, partnership, joint venture
or any like relationship between the parties hereto.
(g) Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties relating to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter other than the Purchase Agreement and any other agreement,
document or instrument expressly referenced therein.
(h) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or unenforceability of
any other provisions of this Agreement.
(i) Specific Performance; Remedies Cumulative. The parties
hereto acknowledge that money damages are not an adequate remedy for violations
of this Agreement and that any party, in addition to any other rights and
remedies which the parties may have hereunder or at law or in equity, may, in
his or its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunction or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such rights, powers or remedies by such party.
(j) No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with his or its obligations hereunder, and any custom or practice
of the parties at variance with the terms hereof, shall not constitute a waiver
by such party of his or its right to exercise any such or other right, power or
remedy or to demand such compliance.
(k) Governing Law. Except for the proxy contemplated by
Section 2(c) (which shall be governed by the laws of The Netherlands), this
Agreement
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shall be governed by and construed in accordance with the laws of the State of
California without giving effect to the principles of conflict of laws thereof.
(l) Jurisdiction. The parties hereto hereby irrevocably
submit to the non-exclusive jurisdiction of any federal or state court located
within the County of Santa Xxxxx in the State of California over any dispute
arising out of or relating to this Agreement or any of the transactions
contemplated hereby and each party hereby irrevocably agrees that all claims in
respect of such dispute or any suit, action proceeding related thereto may be
heard and determined in such courts. The parties hereby irrevocably waive, to
the fullest extent permitted by applicable law, any objection which they may now
or hereafter have to the laying of venue of any such dispute brought in such
court or any defense of inconvenient forum for the maintenance of such dispute.
Each of the parties hereto agrees that a judgment in any such dispute may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Each of the parties hereto hereby consents to process being
served by any party to this Agreement in any suit, action or proceeding by the
mailing of a copy thereof in accordance with the provisions of Section 8(b).
(m) Waiver of Jury Trial. Shareholder hereby waives, to the
fullest extent permitted by applicable law, any right it may have to a trial by
jury in respect of any litigation directly or indirectly arising out of, under
or in connection with this Agreement. Shareholder (i) certifies that no
representative of any other party has represented, expressly or otherwise, that
such other party would not, in the event of any such litigation, seek to enforce
the foregoing waiver and (ii) acknowledges that it has been induced to enter
into this Agreement by, among other things, the consideration to be received by
the Company and its creditors and shareholders, including Shareholder, in
connection with the consummation of the Transaction and the other matters
contemplated by the Purchase Agreement.
(n) Drafting and Representation. The parties have
participated jointly in the negotiation and drafting of this Agreement. No
provision of this Agreement will be interpreted for or against any party because
that party or his or its legal representative drafted the provision.
(o) Name, Captions, Gender. Section headings of this
Agreement are for reference purposes only and are to be given no effect in the
construction or interpretation of this Agreement. Whenever the context may
require, any pronoun used herein shall include the corresponding masculine,
feminine or neuter forms.
(p) Counterparts. This Agreement may be executed by
facsimile and in any number of counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one instrument. Each
counterpart may consist of a number of copies each signed by less than all, but
together signed by all, the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date and year first written above.
Applied Materials, Inc., a Delaware
corporation
By:__________________________
Name:
Title:
FSI International, Inc., a Minnesota
corporation
By:__________________________
Name:
Title:
Address:
________________________
________________________
________________________
Facsimile: _____________
Attention: ____________
Number of Shares Held:
Common Stock ___________
Exhibit A
IRREVOCABLE PROXY
TO VOTE STOCK OF METRON TECHNOLOGY N.V.
The undersigned shareholder of Metron Technology N.V., a corporation
organized under the law of The Netherlands ("Company"), hereby irrevocably (to
the full extent permitted by applicable law) appoints the members of the Board
of Directors of Applied Materials, Inc., a Delaware corporation ("Purchaser"),
and each of them, or any other designee of Purchaser, 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 Company that now are or hereafter may be beneficially
owned by the undersigned, or as to which the undersigned now or hereafter
exercises voting control, and any and all other shares or securities of Company
issued or issuable in respect thereof, or otherwise acquired by the undersigned
on or after the date hereof (collectively, the "Shares") in accordance with the
terms of this Irrevocable Proxy. The Shares beneficially owned by the
undersigned shareholder of Company as of the date of this Irrevocable Proxy are
listed on the final page 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 (as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided under
law), is coupled with an interest, and is granted pursuant to that certain
Voting and Proxy Agreement dated as of even date herewith by and between
Purchaser and the undersigned, and is granted in consideration of Purchaser's
entering into that certain Stock and Asset Purchase Agreement by and among
Purchaser and the Company (the "Purchase Agreement"), which agreement provides
for, among other matters, the sale by the Company to Purchaser of the Purchased
Assets which includes the Company's business of marketing, sales, service and
support solutions to semiconductor materials and equipment suppliers and
semiconductor manufacturers and the marketing, sale, manufacture and support of
early generation semiconductor equipment which operates through the ownership of
all of the issued and outstanding shares of capital stock of the Purchased
Companies the acquisition by the Purchaser of certain assets of the Company (the
"Transaction").
As used herein, the term "Expiration" shall mean the earlier to
occur of (i) such date and time as the Transaction shall become effective in
accordance with the terms and provisions of the Purchase Agreement, and (ii) the
date of termination of the Purchase Agreement pursuant to its terms. This
Irrevocable Proxy shall terminate at and as of the Expiration.
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, to act as the undersigned's attorney and proxy to vote the Shares,
and to exercise all voting and
other rights of the undersigned with respect to the Shares (including, without
limitation, the power to execute and deliver written consents), at every annual,
special or adjourned meeting of the shareholders of Company and in every action
or approval by written consent in lieu of such meeting as follows:(i) in favor
of adoption and approval of (x) the Purchase Agreement, the Transaction and the
other matters contemplated by the Purchase Agreement, (y) any matter in
furtherance of the Transaction and any of the other transactions contemplated by
the Purchase Agreement and this Agreement, and (z) the waiver of any notice to
Shareholder that may have been or may be required relating to the Transaction or
any of the other transactions contemplated by the Purchase Agreement or this
Agreement, and (ii) against any (x) Company Takeover Proposal made by any Person
other than the Purchaser, without regard to any recommendation from the Company
Boards to shareholders concerning such Company Takeover Proposal, and without
regard to the terms of such Company Takeover Proposal, (y) any agreement,
amendment of any agreement (including the Company's articles of association or
other organizational documents), or any other action that is intended or could
reasonably be expected to prevent, impede, interfere with, delay, postpone, or
discourage the Transaction and any of the other transactions contemplated by the
Purchase Agreement or this Agreement, and (z) any action, agreement, transaction
or proposal that would result in a breach of any representation, warranty,
covenant, agreement or other obligation of the Company, the Purchased Companies
or their Subsidiaries in the Purchase Agreement.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The undersigned
shareholder may vote the Shares on all other matters. All authority herein
conferred shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, successors and assigns of the undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and
is irrevocable.
[Remainder of Page Intentionally Left Blank]
Dated: August ____, 2004 FSI INTERNATIONAL, INC., A MINNESOTA
CORPORATION
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Shares beneficially owned:
[ ] shares of Company Common Stock
[ ] shares of Company Common Stock
issuable upon the exercise of
outstanding options, warrants, or other
rights
