EXHIBIT C
---------
VOTING AGREEMENT
This VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
__________________, 2005 by and among The Xxxxxxxxx Company LLC, a Delaware
limited liability company ("TWC"), and the undersigned stockholder (the
"STOCKHOLDER") of Genius Products, Inc., a Delaware corporation (the "COMPANY").
WHEREAS, this Agreement is entered into in connection with that certain
Master Contribution Agreement (the "MASTER CONTRIBUTION AGREEMENT"), executed on
or about the date hereof, by and among the Company, TWC and a newly formed
Delaware limited liability company to be owned by the Company and TWC (the
"DISTRIBUTOR"), pursuant to which, among other things, the Company will
contribute to the Distributor substantially all of its assets and certain
liabilities, and TWC will contribute to the Distributor home video distribution
rights with respect to certain of its entertainment properties, in each case in
exchange for specified membership interests in the Distributor as set forth
therein. Capitalized terms used herein that are not otherwise defined shall have
the meanings given such terms in the Master Contribution Agreement.
WHEREAS, each Stockholder is the record and beneficial owner of shares
of the Company's capital stock, and securities convertible into, exercisable for
or exchangeable for shares of the Company's capital stock, all as set forth on
such Stockholder's signature page hereto.
WHEREAS, each Stockholder is entering into this Agreement as a material
inducement to, and in consideration of, TWC's willingness to enter into the
Master Contribution Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto, intending to be legally bound, agree as follows:
1. TRANSFERS OF SUBJECT SHARES.
1.1 Each Stockholder agrees that, prior to the Expiration
Date (as defined below), such Stockholder will not directly or indirectly (a)
sell, give, transfer, exchange, pledge or otherwise dispose of, or make any
offer or agreement, arrangement or understanding relating to any of the
foregoing with respect to, any shares of the Company's capital stock now owned
or hereafter acquired by such Stockholder ("SUBJECT SHARES"), except for (i) any
gift, assignment, transfer, exchange, pledge or other disposition to any
sibling, in law, descendant or spouse of the Stockholder or trust for their
benefit, (ii) a transfer required by law pursuant to a judicial decree, or (iii)
the sale of up to 25% of the Subject Shares in transactions conducted on the
Company's primary public trading market; PROVIDED that with respect to clauses
(i) and (ii) above, such transferee agrees in writing pursuant to an agreement
reasonably satisfactory to TWC to which TWC is an express third-party
beneficiary, that with respect to the Subject Shares such person will be bound
by the terms of this Agreement and the Proxy
1
(defined below) as if such person was the Stockholder hereunder and thereunder
or (b) deposit any Subject Shares into a voting trust or grant a proxy, power of
attorney or other authorization or consent or enter into an agreement of any
kind with respect to the voting of any Subject Shares, except for the Proxy.
Further, the limitations on sales pursuant to (iii) above shall terminate in any
event one year from the purchase of the Subject Shares.
1.2 The Stockholder hereby agrees that, prior to the
Expiration Date, to promptly notify TWC of the number of new shares of capital
stock of the Company, or securities convertible into, exercisable for or
exchangeable for shares of capital stock of the Company, acquired by such
Stockholder, if any, after the date of this Agreement.
1.3 The Stockholder agrees to immediately cease any
discussions or negotiations with any parties other than TWC that may be ongoing
regarding a Competing Transaction Proposal. While this Agreement is in effect,
the Stockholder will not, directly or indirectly, (i) solicit, initiate or
encourage, or take any other action to facilitate, any inquiries or the making
of any Alternative Transaction (as defined below) or Frustrating Transaction (as
defined below), (ii) execute or enter into any agreement or understanding 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 Alternative Transaction or Frustrating
Transaction.
1.4 The Stockholder agrees not to (i) not take any action
that would make any representation or warranty of such Stockholder contained in
this Agreement untrue or incorrect or (ii) engage in any action or omit to take
any action that would have the effect of preventing or disabling the Stockholder
from otherwise performing its obligations under this Agreement.
2. VOTING OF SUBJECT SHARES.
2.1 VOTING AGREEMENT. The Stockholder agrees that, prior
to the Expiration Date, at any meeting of the Company stockholders, however
called, and at any adjournment or postponement thereof, and in any action taken
by the written consent of the Company stockholders without a meeting, unless
otherwise directed in writing by TWC or unless TWC or any of its affiliates
otherwise exercise the Proxy, such Stockholder will:
(i) appear at the meeting or otherwise cause
his, her or its Subject Shares, together with any capital stock of the Company
acquired by the Stockholder after the date of this Agreement, whether upon the
exercise of stock options, warrants or otherwise (the Stockholder's acquired
shares, together with the Subject Shares, are referred to herein as the
Stockholder's "Shares"), to be counted as present thereat for purposes of
establishing a quorum, and vote all Subject Shares in accordance with the terms
of this Agreement;
2
(ii) vote, or execute consents in respect of, all
Shares, or cause all Shares to be voted, or consents to be executed in respect
thereof, in favor of:
(a) the adoption and approval of the
Master Contribution Agreement (including any revised or amended Master
Contribution Agreement that is not materially less favorable to the Company or
the Stockholders from a financial point of view) and the transactions
contemplated thereby, including, without limitation, the contribution of
substantially all of the Company's assets to the Distributor;
(b) the amendment and restatement of the
Company's certificate of incorporation to: (i) increase the Company's authorized
shares of Common Stock by 200 million shares; (ii) authorize the creation of
Series W Preferred Stock with rights, preferences and privileges approved by the
Board of Directors of the Company; (iii) causing the Company to opt out of and
elect not to be governed by Section 203 of the Delaware General Corporation Law
(which contains certain anti-takeover provisions); (iv) waive certain fiduciary
obligations of TWC (including its affiliates and related persons) as a
stockholder with respect to competing activities that it might engage in
(paralleling similar provisions contained in the Limited Liability Company
Agreement of the Distributor); and (v) rename the Company "Genius Entertainment,
Inc." or such other name to be determined by the Board of Directors of the
Company.
(c) an increase in the number of shares
available for issuance under the Company's 2004 Stock Incentive Plan of 6
million shares; and
(d) each of the other actions
contemplated by the Master Contribution Agreement and this Agreement, and any
action required in furtherance hereof and thereof.
(iii) vote, or execute consents in respect of, all
Shares, or cause all Shares to be voted, or consents to be executed in respect
thereof, against (A) any agreement or transaction relating to any Competing
Transaction Proposal or transaction or occurrence that if proposed and offered
to the Company or its stockholders (or any of them) would constitute a Competing
Transaction Proposal (collectively, "Alternative Transactions") or (B) any
amendment of the Company's certificate of incorporation or bylaws 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 transactions contemplated by the Master
Contribution Agreement, or change in any manner the voting rights of the
Company's 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 the vote or consent of the
Stockholder is requested or sought.
Prior to the Expiration Date, such Stockholder will not enter into any
agreement or understanding with any person or entity to vote or give
instructions in any manner inconsistent with this Section 2.1.
3
2.2 PROXY. Contemporaneously with the execution of this
Agreement, each Stockholder will deliver to TWC a proxy with respect to the
Subject Shares in the form attached hereto as EXHIBIT A, which proxy is coupled
with an interest and will be irrevocable to the fullest extent permitted by law
(the "PROXY").
3. COVENANTS.
3.1 PUBLICATION. The Stockholder hereby permits the
Company and/or TWC to publish and disclose in press releases, Schedule 13D
filings and the Proxy Statement (including all documents and schedules filed
with the SEC) and any other disclosures or filings required by applicable law
its identity and ownership of shares of the Company's capital stock, the nature
of its commitments, arrangements and understandings pursuant to this Agreement
and/or the text of this Agreement.
3.2 FURTHER ASSURANCES. The Stockholder agrees to perform
such further acts and execute and deliver, and to cause its affiliates, and the
Stockholder's and its affiliates' respective directors, officers, members,
shareholders, officers, employees, agents, consultants, representatives,
successors or assigns (collectively, a "Stockholder Party") to perform such
further acts and execute and deliver, before or after the Closing Date, any
additional documents reasonably necessary or desirable, in the opinion of TWC,
to carry out the purposes and intent of this Agreement and the Proxy.
3.3 CONSENT AND WAIVER. The Stockholder hereby gives any
consents or waivers that are reasonably required for the consummation of the
transactions contemplated by the Master Contribution Agreement under the terms
of any agreement to which such Stockholder or any Stockholder Party is a party
or pursuant to any rights such Stockholder or any Stockholder Party may have.
3.4 REQUIRED FILINGS. The Stockholder will promptly
prepare any filings, or amendments to prior filings, that that may be required
by applicable law to be made with the Securities and Exchange Commission or
otherwise, in connection with the Stockholder's agreements hereunder and the
granting of the Proxy. The Stockholder will provide TWC with reasonable prior
notice of any such filing or amendment and TWC will have the right to review and
comment thereon. The Stockholder will use its best efforts to comply with or
incorporate TWC's comments. The Stockholder will make or cause such filing or
amendment to be made within the time period provided by applicable law.
4. REPRESENTATIONS AND WARRANTIES. The Stockholder hereby
represents and warrants to TWC as follows:
4.1 ORGANIZATION; AUTHORITY; ENFORCEABILITY. The
Stockholder is duly organized and validly existing under the laws of its
jurisdiction of organization. Such Stockholder has full power and authority (or
the legal capacity if an individual) to enter into, execute, deliver and perform
such Stockholder's obligations under this Agreement, and to make the
representations, warranties and covenants contained herein,
4
and that, if applicable, all corporate or similar action required for the
authorization, execution, delivery and the performance of all obligations of
such Stockholder under this Agreement has been taken. If such Stockholder is
married, and such Stockholder's Subject Shares constitute community property,
this Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, such Stockholder's spouse,
enforceable against such person in accordance with its terms. The execution,
delivery, and performance of this Agreement by such 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, any agreement or other instrument to which
such Stockholder is a party. This Agreement has been duly executed and delivered
by such Stockholder and constitutes a legal, valid and binding obligation of
such Stockholder, enforceable against such Stockholder in accordance with its
terms.
4.2 SUBJECT SHARES OWNED. Such Stockholder is the sole
record holder and beneficial owner of, and has good and marketable title to, all
of the Subject Shares specified on such Stockholder's signature page hereto.
Such Stockholder has the sole right to vote all Subject Shares of which such
Stockholder is the registered holder, and has the sole right to direct the vote
of all Subject Shares of which such Stockholder is the beneficial owner. Such
Stockholder does not directly or indirectly own any shares of the Company's
capital stock, rights to acquire any shares of the Company's capital stock or
other securities of the Company, other than the Subject Shares listed on such
Stockholder's signature page hereto. Except pursuant to this Agreement, the
Subject Shares are not subject to any proxy, 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 the Subject Shares.
5. MISCELLANEOUS.
5.1 TERMINATION. This Agreement shall terminate
automatically as of the Expiration Date. As used herein, "EXPIRATION DATE" means
the earlier to occur of (i) the Closing Date or (ii) such time as the Master
Contribution Agreement has been terminated in accordance with its terms.
5.2 SEVERABILITY. If any provision of this Agreement, or
the application thereof, will for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto.
5.3 AMENDMENT AND WAIVER. This Agreement or any provision
hereof may be amended, modified, superseded, canceled, renewed, waived or
extended only by an agreement in writing executed by TWC and each Stockholder.
5
The waiver by a party of any breach hereof or default in the performance hereof
will not be deemed to constitute a waiver of any other default or any succeeding
breach or default.
5.4 ASSIGNMENT. This Agreement and all rights and
obligations hereunder are personal to each Stockholder and may not be
transferred or assigned by such Stockholder at any time. TWC may assign its
rights, together with its obligations hereunder, to any parent, subsidiary,
affiliate or successor of TWC. This Agreement will be binding upon, and inure to
the benefit of, the persons or entities who are permitted, by the terms of this
Agreement, to be successors, assigns and personal representatives of the
respective parties hereto.
5.5 GOVERNING LAW. The validity, interpretation and
enforcement of this Agreement will be governed by and construed in accordance
with the internal laws of the State of Delaware, excluding that body of laws
pertaining to conflict of laws.
5.6 COSTS OF ENFORCEMENT. If any party to this Agreement
seeks to enforce its rights under this Agreement by legal proceedings or
otherwise, the non-prevailing party will pay all costs and expenses incurred by
the prevailing party, including, all reasonable attorneys' and experts' fees.
5.7 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which will be deemed an original but all of which, taken
together, constitute one and the same agreement.
5.8 ENTIRE AGREEMENT. This Agreement and the documents
referred to herein constitute the entire agreement and understanding of the
parties with respect to the subject matter of this Agreement, and supersede all
prior understandings and agreements, whether oral or written, between or among
the parties hereto with respect to the specific subject matter hereof.
5.9 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties
hereto acknowledge that TWC will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreement of
each Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to TWC upon any such violation, TWC
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to TWC at law or
in equity.
5.10 NOTICES. Any notice required or permitted to be given
hereunder shall be sufficient if in writing and (a) delivered in person against
written receipt therefor, or by nationally recognized express delivery or
courier service requiring acknowledgment of receipt, (b) sent by facsimile, or
(c) deposited in the mail registered or certified first class, postage prepaid
and return receipt requested (provided that any notice given pursuant to clause
(b) is also confirmed by the means described in clause (a) or (c)) to such
address or facsimile of the party set forth below or to such other place or
places as such party from time to time may designate in writing in compliance
6
with the terms hereof. Each notice shall be deemed given when so delivered
personally, or sent by facsimile transmission, or, if sent by express delivery
or courier service one (1) business day after being sent, or if mailed, five (5)
business days after the date of deposit in the mail. A notice of change of
address or facsimile number shall be effective only when done in accordance with
this Section 5.10.
If to TWC: The Xxxxxxxxx Company LLC
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx, and to
The Xxxxxxxxx Company LLC
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
With copies to: O'Melveny & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx; and
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
If to a Stockholder: To the address for notice set forth on the last
page hereof.
5.11 HEADINGS. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
STOCKHOLDER
By:
------------------------------------
Name:
----------------------------------
Address for Notice:
---------------------------------------
---------------------------------------
Facsimile:
_____________________________
Shares beneficially owned by Stockholder:
_________________ Shares of Common Stock
Shares held of record by Stockholder:
_________________ Shares of Common Stock
Options to Purchase ____________ Shares
of Common Stock
Warrants to Purchase ___________ Shares
of Common Stock
8
CONSENT OF SPOUSE
I, __________________________, spouse of ____________ ("STOCKHOLDER"),
have read and hereby approve the foregoing Voting Agreement (the "AGREEMENT").
In consideration of the benefits to which Stockholder is entitled under the
Agreement, I hereby agree to be irrevocably bound by the Agreement and further
agree that any community property or other such interest shall be similarly
bound by the Agreement. I hereby appoint my spouse as my attorney-in-fact with
respect to any amendment or exercise of any rights under the Agreement.
_______________________
Spouse of Stockholder
EXHIBIT A
---------
IRREVOCABLE PROXY
The undersigned stockholder of Genius Products, Inc., a Delaware
corporation (the "COMPANY"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Xxxxx Xxxxxx and Xxxxx Xxxxxx of The Xxxxxxxxx
Company LLC, a Delaware limited liability company ("TWC"), and each of them, the
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to the fullest extent of such undersigned's rights with respect
to (i) the shares of capital stock of the Company owned by the undersigned as of
the date of this proxy, which shares are specified on the final page of this
proxy and (ii) any and all other shares of capital stock of the Company which
the undersigned may acquire after the date hereof (all such shares described in
clause (i) or (ii) being collectively referred to herein as the "SHARES"). Upon
the execution hereof, all prior proxies given by the undersigned with respect to
any of the Shares are hereby revoked, and no subsequent proxies will be given
with respect to any of the Shares.
This proxy is granted in consideration of TWC entering into the Master
Contribution Agreement (the "MASTER CONTRIBUTION AGREEMENT"), executed on or
about the date hereof, by and among the Company, TWC and a newly formed Delaware
limited liability company to be owned by the Company and TWC (the
"DISTRIBUTOR"), pursuant to which, among other things, the Company will
contribute to the Distributor substantially all of its assets and certain
liabilities, and TWC will contribute to the Distributor home video distribution
rights with respect to certain of its entertainment properties, in each case in
exchange for specified membership interests in the Distributor as set forth
therein. This proxy is irrevocable, and is coupled with an interest and is
granted in connection with that certain Voting Agreement, dated as of the date
hereof, by and among TWC and the undersigned (the "VOTING AGREEMENT").
Capitalized terms that are used in this proxy that are not defined shall have
the meanings given such terms in the Voting Agreement.
The attorneys and proxies named above will be empowered, and shall
exercise this proxy, to vote the Shares at any time until the Expiration Date at
any meeting of the stockholders of Company, however called, or in any action by
written consent of stockholders of Company, in favor of:
(a) the adoption and approval of the Master Contribution
Agreement (including any revised or amended Master Contribution Agreement that
is not materially less favorable to the Company or the Stockholders from a
financial point of view) and the transactions contemplated thereby, including,
without limitation, the contribution of substantially all of the Company's
assets to the Distributor;
A-1
(b) the amendment and restatement of the Company's certificate
of incorporation to: (i) increase the Company's authorized shares of Common
Stock by 200 million shares; (ii) authorize the creation of Series W Preferred
Stock with rights, preferences and privileges approved by the Board of Directors
of the Company; (iii) cause the Company to opt out of and elect not to be
governed by Section 203 of the Delaware General Corporation Law (which contains
certain anti-takeover provisions); (iv) waive certain fiduciary obligations of
TWC (including its affiliates and related persons) as a stockholder with respect
to competing activities that it might engage in (paralleling similar provisions
contained in the Limited Liability Company Agreement of the Distributor); and
(v) rename the Company "Genius Entertainment, Inc." or such other name to be
determined by the Board of Directors of the Company.
(c) an increase in the number of shares available for issuance
under the Company's 2004 Stock Incentive Plan of 6 million shares;
(d) each of the other actions contemplated by the Master
Contribution Agreement and the Voting Agreement, and any action required in
furtherance hereof and thereof; and
(e) against any Alternative Transactions or Frustrating
Transactions.
Prior to the Expiration Date, at any meeting of the stockholders of
Company, however called, and in any action by written consent of stockholders of
Company, the attorneys and proxies named above may, with the consent of each
Stockholder, not to be unreasonably withheld, abstain from voting on any matter
covered by the foregoing subparagraphs (a) - (e) above.
This proxy will be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
A-2
This proxy will terminate upon the Expiration Date.
Dated: _______________, 2005
STOCKHOLDER
By:
--------------------------------------
Name:
--------------------------------------
Shares beneficially owned by Stockholder:
_________________ Shares of Common Stock
Shares held of record by Stockholder:
_________________ Shares of Common Stock
Options to Purchase ____________ Shares
of Common Stock
Warrants to Purchase ___________ Shares
of Common Stock
A-3
ANNEX A
-------
VOTING AGREEMENTS
-------------------------------------------------------------------------------
NAME OF STOCKHOLDER SHARES RECEIVED
-------------------------------------------------------------------------------
1. Janus Investment Fund, On Behalf of
its Series Janus Venture Fund 4,750,000
-------------------------------------------------------------------------------
2. Ardsley Offshore Fund, Ltd. 3,025,000
-------------------------------------------------------------------------------
3. Ardsley Partners Fund II, L.P. *
-------------------------------------------------------------------------------
4. Ardsley Institutional Fund, L.P. *
-------------------------------------------------------------------------------
5. Xxxxxxxxx Joint 1988 Xxxxxxxxx
Family Trust *
-------------------------------------------------------------------------------
6. JMG Capital Partners, L.P. 750,000
-------------------------------------------------------------------------------
7. JMG Triton Offshore Fund, Ltd. 750,000
-------------------------------------------------------------------------------
8. SRB Greenway Capital (QP), L.P. 610,087
-------------------------------------------------------------------------------
9. WS Opportunity Fund International, Ltd. 206,200
-------------------------------------------------------------------------------
10. WS Opportunity Fund, L.P. 149,850
-------------------------------------------------------------------------------
11. WS Opportunity Fund (QP), L.P. 143,950
-------------------------------------------------------------------------------
12. Xxxxxx Xxxxx International Fund, Ltd. 114,500
-------------------------------------------------------------------------------
13. SRB Greenway Capital L.P. 91,473
-------------------------------------------------------------------------------
14. Xxxxxx Xxxxx Capital (QP), L.P. 80,300
-------------------------------------------------------------------------------
15. SRB Greenway Offshore Operating Fund, L.P. 48,440
-------------------------------------------------------------------------------
16. HHMI Investments, L.P. 42,000
-------------------------------------------------------------------------------
17. Xxxxxx Xxxxx Capital, L.P. 13,200
-------------------------------------------------------------------------------
18. Magnetar Capital Master Fund, Ltd. 3,055,932
-------------------------------------------------------------------------------
19. X. Xxxxx Partners, L.P. 659,200
-------------------------------------------------------------------------------
20. X. Xxxxx Investors (Bermuda), L.P. 715,800
-------------------------------------------------------------------------------
21. Bonanza Master Fund Ltd. 3,281,645
-------------------------------------------------------------------------------
22. Xxxxxx Xxxxx Xxxxxx 500,000
-------------------------------------------------------------------------------
23. XxX Investments, Ltd 245,401
-------------------------------------------------------------------------------
24. XxX Partners, L.P. 260,150
-------------------------------------------------------------------------------
TOTAL 19,493,128
-------------------------------------------------------------------------------
* One Voting Agreement was received for the following investors:
Ardsley Offshore Fund, Ltd.
Ardsley Partners Fund II, L.P.
Ardsley Institutional Fund, X.X.
Xxxxxxxxx Joint 1988 Xxxxxxxxx Family Trust
ANNEX B
-------
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
XxX INVESTMENTS, LTD.
By: /s/ XxX Investments, Ltd.
----------------------------
Name:
Address for Notice:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned by
Stockholder:
245,401 Shares of Common Stock
Shares held of record by
Stockholder:
245,401 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 0 Shares of
Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
XxX PARTNERS, L.P.
By: /s/ XxX Partners, L.P.
----------------------------
Name:
Address for Notice:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned by
Stockholder:
260,150 Shares of Common Stock
Shares held of record by
Stockholder:
260,150 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 0 Shares of
Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Address for Notice:
x/x Xxxxxxx Xxxxxxx Xxxxxxxxxx
Xxx Xxxxxx Xxxxxx, Xxxxx Xxxxx 0000
San Francisco
Facsimile: 000-000-0000
Shares beneficially owned by
Stockholder:
2,577,500 Shares of Common Stock
Shares held of record by
Stockholder:
2,577,500 Shares of Common Stock
Options to Purchase ________ Shares
of Common Stock
Warrants to Purchase 150,000 Shares
of Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
BONANZA MASTER FUND LTD.
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
Address for Notice:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned by
Stockholder:
3,281,645 Shares of Common Stock
Shares held of record by
Stockholder:
3,281,645 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 783,829 Shares
of Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
X. XXXXX INVESTORS (BERMUDA) L.P.,
By: Wellington Management Company, LLP,
as Investment Advisor
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
Address for Notice:
c/o Wellington Management Company, LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned by Stockholder:
965,540 Shares of Common Stock
Shares held of record by Stockholder:
715,800 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 249,740 Shares
of Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
X. XXXXX PARTNERS, L.P.
By: Wellington Management Company, LLP,
as Investment Advisor
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
Address for Notice:
c/o Wellington Management Company, LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned by Stockholder:
891,960 Shares of Common Stock
Shares held of record by Stockholder:
659,200 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 232,760 Shares
of Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
MAGNETAR CAPITAL MASTER FUND, LTD.
By: Magnetar Financial LLC,
its Investment Manager
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: General Counsel
Address for Notice:
c/o Magnetar Financial LLC
0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned by
Stockholder:
1,680,932 currently owned plus
1,375,000 privately purchased
Shares of Common Stock bought
on the date hereof
Shares held of record by Stockholder:
Currently 1,680,932 Shares of
Common Stock; 1,375,000 subject
to registration
Options to Purchase 0 Shares
of Common Stock
Warrants to Purchase 412,500 Shares
of Common Stock subject to registration
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
JANUS INVESTMENT FUND, on behalf
of its Series Janus Venture Fund
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Portfolio Manager
Address for Notice:
Attention: Xxxxxxx X. Xxxxxx,
Associate Counsel
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned by
Stockholder:
4,750,000 Shares of Common Stock
Shares held of record by Stockholder:
4,750,000 Shares of Common Stock
Options to Purchase N.A.
Shares of Common Stock
Warrants to Purchase 1,425,000
Shares of Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
XXXXXX XXXXX CAPITAL, L.P.
By: WS Capital Management, L.P.,
General Partner
By: WS Capital L.L.C., General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx, Member
Shares beneficially owned by Stockholder:
17,160 Shares of Common Stock
Shares held of record by Stockholder:
13,200 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 3,960 Shares
of Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
HHMI INVESTMENTS, L.P.
By: WS Capital Management, L.P.,
Investment Manager
By: WS Capital, L.L.C.,
General Partner
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx, Member
Shares beneficially owned by Stockholder:
54,600 Shares of Common Stock
Shares held of record by Stockholder:
42,000 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 12,600 Shares of
Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
SRB GREENWAY OFFSHORE OPERATING FUND, L.P.
By: SRB Management, L.P., General Partner
By: BC Advisors, LLC, General Partner
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx, Member
Shares beneficially owned by Stockholder:
62,972 Shares of Common Stock
Shares held of record by Stockholder:
48,440 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 14,532 Shares of
Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
XXXXXX XXXXX CAPITAL (QP), L.P.
By: WS Capital Management, L.P.,
General Partner
By: WS Capital, L.L.C., General Partner
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx, Member
Shares beneficially owned by Stockholder:
104,390 Shares of Common Stock
Shares held of record by Stockholder:
80,300 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 24,090 Shares of
Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
SRB GREENWAY CAPITAL, L.P.
By: SRB Management L.P., General Partner
By: BC Advisors L.L.C., General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Member
Shares beneficially owned by Stockholder:
123,192 Shares of Common Stock
Shares held of record by Stockholder:
91,473 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 31,719 Shares of
Common Stock
Promissory Note dated October 5, 2005
for the principal sum of $61,100.00
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
XXXXXX XXXXX INTERNATIONAL FUND, L.P.
By: WS Capital Management, L.P.,
as agent and attorney-in-fact
By: WS Capital, L.L.C., General Partner
By: /s/ XXXX X. XXXXXX
----------------------------------
Name: Xxxx Xxxxxx, Member
Shares beneficially owned by Stockholder:
148,850 Shares of Common Stock
Shares held of record by Stockholder:
114,500 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 34,350 Shares of
Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
WS OPPORTUNITY FUND (QP), L.P.
By: WS Ventures Management, L.P.,
General Partner
By: WSV Management, L.L.C.,
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx, Member
Shares beneficially owned by Stockholder:
187,135 Shares of Common Stock
Shares held of record by Stockholder:
143,950 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 43,185 Shares of
Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
WS OPPORTUNITY FUND, L.P.
By: WS Ventures Management, L.P.,
General Partner
By: WSV Management, L.L.C.,
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx, Member
Shares beneficially owned by Stockholder:
194,805 Shares of Common Stock
Shares held of record by Stockholder:
149,850 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 44,955 Shares of
Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
WS OPPORTUNITY FUND INTERNATIONAL, LTD.
By: WS Ventures Management, L.P.
as agent and attorney-in-fact
By: WSV Management, L.L.C.,
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx, Member
Shares beneficially owned by Stockholder:
268,060 Shares of Common Stock
Shares held of record by Stockholder:
206,200 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 61,860 Shares of
Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
SRB GREENWAY CAPITAL (QP), L.P.
By: SRB Management, L.P.,
General Partner
By: BC Advisors, L.L.C.,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx, Member
Shares beneficially owned by Stockholder:
823,836 Shares of Common Stock
Shares held of record by Stockholder:
610,087 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 213,749 Shares of
Common Stock
Promissory note dated 10/5/05
for the principal sum of $438,900.00
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
ARDSLEY OFFSHORE FUND, LTD.
ARDSLEY PARTNERS FUND II, L.P.
ARDSLEY PARTNERS INSTITUTIONAL FUND, X.X.
XXXXXXXXX JOINT
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Partner, Ardsley
Partners, General Partner for above
referenced accounts and as authorized for
Xxxxxxxxx Joint
Address for Notice:
000 Xxxxxx Xx., 0xx Xx.
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned by Stockholder:
3,716,500 Shares of Common Stock
Shares held of record by Stockholder:
3,025,000 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 691,500 Shares of
Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
JMG CAPITAL PARTNERS, L.P.
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxx, Member
Manager of the GP
Address for Notice:
00000 Xxxxxxxx Xxxx., Xxx. 0000
Xxx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned by Stockholder:
975,000 Shares of Common Stock
Shares held of record by Stockholder:
750,000 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 225,000 Shares of
Common Stock
IN WITNESS WHEREOF, the undersigned parties have executed this Voting
Agreement as of the date first above written.
THE XXXXXXXXX COMPANY LLC
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: EVP & CFO
STOCKHOLDER
JMG TRITON OFFSHORE FUND, LTD.
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx, Member Manager
of the Investment Manager
Address for Notice:
00000 Xxxxxxxx Xxxx., Xxx. 0000
Xxx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned by Stockholder:
975,000 Shares of Common Stock
Shares held of record by Stockholder:
750,000 Shares of Common Stock
Options to Purchase 0 Shares of
Common Stock
Warrants to Purchase 225,000 Shares of
Common Stock
ANNEX C
-------
This proxy will terminate upon the Expiration Date.
Dated: November 25, 2005
STOCKHOLDER
JANUS INVESTMENT FUND, ON
BEHALF OF ITS SERIES JANUS
VENTURE FUND
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Portfolio Manager
Shares beneficially owned
by Stockholder:
4,750,000 Shares of Common Stock
Shares held of record by
Stockholder:
4,750,000 Shares of Common Stock
Options to Purchase N/A Shares of Common Stock
Warrants to Purchase 1,425,000 Shares of
Common Stock
A-1
This proxy will terminate upon the Expiration Date.
Dated: __________, 2005
STOCKHOLDER
ARDSLEY OFFSHORE FUND, LTD.
ARDSLEY PARTNERS FUND II, L.P.
ARDSLEY INTERNATIONAL FUND, X.X.
XXXXXXXXX JOINT
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Partner, Ardsley Partners, General
Partner for above referenced accounts and
as authorized for Xxxxxxxxx Joint
Address for Notice:
000 Xxxxxx Xx., 0xx XX
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned by Stockholder:
3,716,500 Shares of Common Stock
Shares held of record by
Stockholder:
3,025,000 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 691,500 Shares of Common Stock
A-2
This proxy will terminate upon the Expiration Date.
Dated: November __, 2005
STOCKHOLDER
JMG CAPITAL PARTNERS, L.P.
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxxxxx Xxxxxx, Member
Manager of the GP
Shares beneficially owned
by Stockholder:
975,000 Shares of Common Stock
Shares held of record by
Stockholder:
750,000 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 225,000 Shares of Common Stock
A-3
This proxy will terminate upon the Expiration Date.
Dated: November __, 2005
STOCKHOLDER
JMG TRITON OFFSHORE FUND, LTD.
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxxxxx Xxxxxx, Member
Manager of the Investment Manager
Shares beneficially owned
by Stockholder:
975,000 Shares of Common Stock
Shares held of record by
Stockholder:
750,000 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 225,000 Shares of Common Stock
A-4
This proxy will terminate upon the Expiration Date.
Dated: November 23, 2005
SRB GREENWAY CAPITAL (QP), L.P.
BY: SRB MANAGEMENT, L.P., GENERAL PARTNER
BY: BC ADVISORS, L.L.C., GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx, Member
Shares beneficially owned
by Stockholder:
823,836 Shares of Common Stock
Shares held of record by
Stockholder:
610,087 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 213,749.00 Shares of
Common Stock
Promissory note dated 10/5/05 for the principal
sum of $438,900.00
A-5
This proxy will terminate upon the Expiration Date.
Dated: November 28, 2005
STOCKHOLDER
XxX INVESTMENTS, LTD
By: /s/ XxX Investments, Ltd.
------------------------------------------
Name: XxX Investments, Ltd.
Shares beneficially owned
by Stockholder:
245,401 Shares of Common Stock
Shares held of record by
Stockholder:
245,401 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 0 Shares of Common Stock
A-6
This proxy will terminate upon the Expiration Date.
Dated: November 28, 2005
STOCKHOLDER
XxX PARTNERS, L.P.
By: /s/ XxX Partners, L.P.
------------------------------------------
Name: XxX Partners, L.P.
Shares beneficially owned
by Stockholder:
260,150 Shares of Common Stock
Shares held of record by
Stockholder:
260,150 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 0 Shares of Common Stock
A-7
This proxy will terminate upon the Expiration Date.
Dated: November 23, 2005
WS OPPORTUNITY FUND INTERNATIONAL, LTD.
BY: WS VENTURES MANAGEMENT, L.P., AS AGENT AND
ATTORNEY-IN-FACT
BY: WSV MANAGEMENT, L.L.C., GENERAL PARTNER
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxxx Xxxxxx, Member
Shares beneficially owned
by Stockholder:
268,060 Shares of Common Stock
Shares held of record by
Stockholder:
206,200 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 61,860.00 Shares of Common Stock
A-8
This proxy will terminate upon the Expiration Date.
Dated: November 23, 2005
WS OPPORTUNITY FUND, L.P.
BY: WS VENTURES MANAGEMENT, L.P., GENERAL PARTNER
BY: WSV MANAGEMENT, L.L.C., GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Member
Shares beneficially owned
by Stockholder:
194,805 Shares of Common Stock
Shares held of record by
Stockholder:
149,850 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 44,955.00 Shares of Common Stock
A-9
This proxy will terminate upon the Expiration Date.
Dated: November 23, 2005
WS OPPORTUNITY FUND (QP), L.P.
BY: WS VENTURES MANAGEMENT, L.P., GENERAL PARTNER
BY: WSV MANAGEMENT, L.L.C., GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Member
Shares beneficially owned
by Stockholder:
187,135 Shares of Common Stock
Shares held of record by
Stockholder:
143,950 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 43,185.00 Shares of Common Stock
A-10
This proxy will terminate upon the Expiration Date.
Dated: November 23, 2005
XXXXXX XXXXX INTERNATIONAL FUND, LTD.
BY: WS CAPITAL MANAGEMENT, L.P., AS AGENT AND
ATTORNEY-IN-FACT
BY: WS CAPITAL, L.L.C., GENERAL PARTNER
By: /s/ Xxxx Xxxxxx
------------------------------------------------
Name: Xxxx Xxxxxx, Member
Shares beneficially owned
by Stockholder:
148,850 Shares of Common Stock
Shares held of record by
Stockholder:
114,500 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 34,350.00 Shares of Common Stock
A-11
This proxy will terminate upon the Expiration Date.
Dated: November 23, 2005
SRB GREENWAY CAPITAL L.P.
BY: SRB MANAGEMENT, L.P., GENERAL PARTNER
BY: BC ADVISORS, L.L.C., GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx, Member
Shares beneficially owned
by Stockholder:
123,192 Shares of Common Stock
Shares held of record by
Stockholder:
91,473 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 31,719.00 Shares of Common
Stock
Promissory note dated 10/5/05 for the principal sum
of $61,100.00
A-12
This proxy will terminate upon the Expiration Date.
Dated: November 23, 2005
XXXXXX XXXXX CAPITAL (QP), L.P.
BY: WS CAPITAL MANAGEMENT, L.P., GENERAL PARTNER
BY: WS CAPITAL, L.L.C., GENERAL PARTNER
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxx X. Xxxxxx, Member
Shares beneficially owned
by Stockholder:
104,390 Shares of Common Stock
Shares held of record by
Stockholder:
80,300 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 24,090.00 Shares of Common Stock
A-13
This proxy will terminate upon the Expiration Date.
Dated: November 23, 2005
SRB GREENWAY OFFSHORE OPERATING FUND, L.P.
BY: SRB MANAGEMENT, L.P., GENERAL PARTNER
BY: BC ADVISORS, LLC, GENERAL PARTNER
By: /s/ Xxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxx, Member
Shares beneficially owned
by Stockholder:
62,972 Shares of Common Stock
Shares held of record by
Stockholder:
48,440 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 14,532.00 Shares of Common Stock
A-14
This proxy will terminate upon the Expiration Date.
Dated: November 23, 2005
HHMI INVESTMENTS, L.P.
BY: WS CAPITAL MANAGEMENT, L.P., INVESTMENT MANAGER
BY: WS CAPITAL, L.L.C., GENERAL PARTNER
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx, Member
Shares beneficially owned
by Stockholder:
54,600 Shares of Common Stock
Shares held of record by
Stockholder:
42,000 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 12,600.00 Shares of Common Stock
A-15
This proxy will terminate upon the Expiration Date.
Dated: November 23, 2005
XXXXXX XXXXX CAPITAL, L.P.
BY: WS CAPITAL MANAGEMENT, L.P., GENERAL PARTNER
BY: WS CAPITAL, L.L.C., GENERAL PARTNER
By: /s/ Xxxx X. Xxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxx, Member
Shares beneficially owned
by Stockholder:
17,160 Shares of Common Stock
Shares held of record by
Stockholder:
13,200 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 3,960.00 Shares of Common Stock
A-16
This proxy will terminate upon the Expiration Date.
Dated: November 23, 2005
STOCKHOLDER:
MAGNETAR CAPITAL MASTER FUND, LTD.
BY: MAGNETAR FINANCIAL LLC
ITS: INVESTMENT MANAGER
By: /s/ Xxxx Xxxxx
----------------------------------------------
Name: Xxxx Xxxxx, General Counsel
Address for Notice:
c/o
Magnetar Financial LLC, 1603 Orrington Avenue,
13th Xxxx, Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned
by Stockholder:
1,680,932 currently owned plus 1,375,000 privately
purchased Shares of Common Stock bought on the date
hereof
Shares held of record by
Stockholder:
Currently 1,680,932 Shares of Common Stock;
1,375,000 subject to registration
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 412,500 Shares of Common Stock
subject to registration
A-17
This proxy will terminate upon the Expiration Date.
Dated: __________, 2005
X. XXXXX PARTNERS, L.P.
BY: WELLINGTON MANAGEMENT COMPANY, LLP
AS INVESTMENT ADVISER
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Vice President and Counsel
Address for Notice:
c/o Wellington Management Company, LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned
by Stockholder:
891,960 Shares of Common Stock
Shares held of record by
Stockholder:
659,200 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 232,760 Shares of Common Stock
A-18
This proxy will terminate upon the Expiration Date.
Dated: __________, 2005
X. XXXXX INVESTORS
(BERMUDA), L.P.
BY: WELLINGTON MANAGEMENT COMPANY, LLP
AS INVESTMENT ADVISER
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Vice President and Counsel
Address for Notice:
c/o Wellington Management Company, LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Shares beneficially owned
by Stockholder:
965,540 Shares of Common Stock
Shares held of record by
Stockholder:
715,800 Shares of Common Stock
Options to Purchase 0 Shares of Common Stock
Warrants to Purchase 249,740 Shares of Common Stock
A-19
This proxy will terminate upon the Expiration Date.
Dated: November 22, 2005
STOCKHOLDER
BONANZA MASTER FUND LTD.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxx, Managing Director
Shares beneficially owned
by Stockholder:
3,281,645 Shares of Common Stock
Shares held of record by
Stockholder:
3,281,645 Shares of Common Stock
Options to Purchase -- Shares of Common Stock
Warrants to Purchase 783,829 Shares of Common Stock
A-20
This proxy will terminate upon the Expiration Date.
Dated: November 28, 2005
STOCKHOLDER
XXXXXX XXXXXX
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxx
Shares beneficially owned
by Stockholder:
2,577,500 Shares of Common Stock
Shares held of record by
Stockholder:
500,000 Shares of Common Stock
Options to Purchase Shares of Common Stock
Warrants to Purchase 150,000 Shares of Common Stock
A-21
