EXECUTION COPY
VOTING AGREEMENT
between
XXXXXXX X. XXXXX
and
COLUMBUS NOVA INVESTMENTS VIII LTD.
Dated August 26, 2004
EXECUTION COPY
TABLE OF CONTENTS
Page
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1. Certain Definitions......................................................1
2. Transfer of Shares.......................................................2
3. Agreement to Vote the Voting Shares......................................3
4. Irrevocable Proxy........................................................4
5. Representations and Warranties of the Stockholder........................4
6. Representations and Warranties of CNI....................................5
7. Legending of Shares......................................................5
8. Consent and Waiver.......................................................5
9. Disclosure...............................................................5
10. Miscellaneous............................................................6
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VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is made and entered into as of
August 26, 2004, by and between Columbus Nova Investments VIII Ltd., a Bahamas
company ("CNI"), and the undersigned stockholder and/or option holder (the
"Stockholder") of Moscow CableCom Corp., a Delaware corporation (the "Company").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Subscription Agreement (as defined
below).
WHEREAS, as of the date hereof, the Stockholder is the beneficial owner
(as defined in Rule 13d-3 under the Exchange Act) of such number of shares of
the outstanding capital stock of the Company, and such number of shares of
capital stock of the Company issuable upon the exercise of outstanding options,
as is indicated in columns 2, 3 and 7 of Schedule A hereto;
WHEREAS, concurrently with the execution of this Agreement, the Company,
and CNI are entering into a Series B Convertible Preferred Stock Subscription
Agreement, dated as of the date hereof (the "Subscription Agreement"), pursuant
to which, upon the terms and subject to the conditions thereof, CNI will acquire
4,500,000 shares of Series B Convertible Preferred Stock of the Company, par
value $.01 per share (the "Series B Preferred Stock"), that are currently
convertible into 4,500,000 shares of Common Stock, par value $.01 per share of
the Company (the "Common Stock");
WHEREAS, at the Closing of the transactions contemplated in the
Subscription Agreement, the Company and CNI will enter into a Series B
Convertible Preferred Stock Warrant Agreement (the "Warrant Agreement") pursuant
to which CNI will acquire warrants that are currently exercisable for 8,283,0001
shares of Series B Preferred Stock; and
WHEREAS, as an inducement and a condition to entering into the
Subscription Agreement and the Warrant Agreement by CNI, the Stockholder has
agreed to vote the Voting Shares (as defined below), so as to facilitate
consummation of the transactions contemplated in the Subscription Agreement (the
"Transactions");
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. Certain Definitions. For all purposes of and under this Agreement, the
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following terms shall have the following respective meanings:
(a) "Beneficially Own" or "Beneficial Ownership" means, with respect to
securities, having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Exchange Act.
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1 Subject to confirmation upon receipt of revised capitalization table.
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(b) "Convertible Debentures" means the 10 1/2% Convertible Subordinated
Debentures due 2007 of the Company.
(c) "Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute thereto, and the rules and regulations of the U.S.
Securities and Exchange Commission promulgated from time to time
thereunder, all as the same shall be in effect at the time.
(d) "Expiration Time" means the earliest to occur of (i) valid termination of
the Subscription Agreement pursuant to its terms, (ii) consummation of the
Transactions, (iii) February 28, 2005 or (iv) the written agreement of the
parties hereto to terminate this Agreement.
(e) "Series A Preferred Stock" means the Series A Cumulative Convertible
Preferred Stock, par value $.01 per share, of the Company.
(f) "Shares" means: (i) the Voting Shares, (ii) all other securities of the
Company (including all options and other rights to acquire shares of
Company Common Stock) owned by the Stockholder as of the date of this
Agreement and such other shares of capital stock of the Company over which
the Stockholder has voting power as indicated on Schedule A, and (iii) all
additional securities of the Company (including all additional shares of
Common Stock and all additional options and other rights to acquire shares
of Common Stock) of which the Stockholder acquires beneficial ownership
during the period commencing with the execution and delivery of this
Agreement until the Expiration Time.
(g) "Securities Act" means the Securities Act of 1933, as amended, or any
successor statute thereto, and the rules and regulations of the U.S.
Securities Exchange and Commission promulgated from time to time
thereunder, all as the same shall be in effect at the time.
(h) "Transfer" means, with respect to a security, whether directly or
indirectly (i) to sell, pledge, encumber, grant an option with respect to,
transfer or otherwise dispose of such security or any interest therein
(including any voting interest), or (ii) to enter into an agreement or
commitment providing for the sale of, pledge of, encumbrance of, grant of
an option with respect to, transfer of or disposition of such security or
any interest therein.
(i) "Voting Shares" means issued and outstanding shares of Common Stock and
Series A Preferred Stock owned of record and Beneficially Owned by the
Stockholder as of the date hereof (that are set out in columns 2, 3, 4 and
5 of Schedule A hereto) and acquired at any time prior to the Expiration
Time.
2. Transfer of Shares.
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(a) No Transfer of Shares. The Stockholder hereby agrees that, at all times
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during the period commencing with the execution and delivery of this
Agreement until the Expiration Time, the Stockholder shall not cause or
permit any Transfer of any of the Shares to be effected, or discuss,
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negotiate or make any offer regarding any Transfer of any of the Shares
without the prior written consent of CNI other than the issuance of Common
Stock to the Stockholder by the Company in connection with the exercise by
the Stockholder of options to purchase Common Stock. Notwithstanding the
foregoing, the Stockholder may Transfer Shares to a member of the
Stockholder's immediate family or to a trust or other entity created by
the Stockholder for tax or estate planning purposes, provided, that any
such transferee agrees to assume the obligations of the Stockholder
hereunder with respect to any Shares so transferred.
(b) No Transfer of Voting Rights. The Stockholder hereby agrees that, at all
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times commencing with the execution and delivery of this Agreement until
the Expiration Time, the Stockholder shall not deposit, or permit the
deposit of, any Voting Shares in a voting trust, grant any proxy in
respect of the Voting Shares, or enter into any voting agreement or
similar arrangement or commitment with respect to any of the Voting Shares
(other than, in each case, this Agreement and the Proxy (as defined in
Section 4)).
3. Agreement to Vote the Voting Shares. Until the Expiration Time, at every
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meeting of stockholders of the Company called with respect to any of the
following, and at every adjournment or postponement thereof, and on every action
or approval by written consent of stockholders of the Company with respect to
any of the following, the Stockholder shall vote, to the extent not voted by the
person(s) appointed under the Proxy, the Voting Shares:
(a) in favor of the issuance of the shares of Series B Preferred Stock to CNI
in accordance with the terms and conditions of the Subscription Agreement,
and in favor of each of the other actions contemplated by the Subscription
Agreement and the Proxy and any action required in furtherance thereof;
(b) in favor of the issuance of the shares of Series B Preferred Stock to CNI
upon the exercise of the Warrants to be granted to CNI in accordance with
the terms and conditions of the Warrant Agreement, and in favor of each of
the other actions contemplated by the Warrant Agreement and the Proxy and
any action required in furtherance thereof;
(c) in favor of the approval of the Certificate of Amendment of the
Certificate of Incorporation of the Company, including, without
limitation, for purposes of increasing the number of authorized Common
Stock and providing for the designation of the Series B Preferred Stock;
(d) in favor of any matter that could reasonably be expected to facilitate the
Transactions, including waiving any notice that may be required relating
to the issuance of the Series B Preferred Stock to CNI;
(e) in favor of an amendment to the 2003 Stock Option Plan of the Company;
(f) against approval of any proposal made in opposition to, or in competition
with, consummation of the Transactions; and
(g) against any other action that is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, discourage or
adversely affect the Transactions.
Prior to the Expiration Time, 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.
It is hereby acknowledged that as of the date hereof the Stockholder
serves as a member of the Board of Directors of the Company. For the avoidance
of doubt, nothing herein shall preclude or limit the Stockholder, solely in his
capacity as a Director of the Company (and without reference to exercising any
of his rights as a stockholderof the Company), from performing his duties,
obligations and responsibilities as a member of the Board of Directors pursuant
to the Delaware General Corporation Law, the Securities Act, the Exchange Act or
the Xxxxxxxx-Xxxxx Act of 2002.
4. Irrevocable Proxy. Concurrently with the execution of this Agreement, the
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Stockholder agrees to deliver and delivers to CNI a proxy in the form attached
hereto as Exhibit A (the "Proxy"), which shall be coupled with an interest and,
until the Expiration Time, be irrevocable to the fullest extent permitted by
applicable law, with respect to any Voting Shares.
5. Representations and Warranties of the Stockholder. The Stockholder hereby
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represents and warrants to CNI that, as of the date hereof and at all times
until the Expiration Time:
(a) the Stockholder is (and will be, except with respect to any Shares that
are Transferred in compliance with Section 2(a)) the Beneficial Owner of
the Shares;
(b) the Voting Shares are, and the Shares will be, unless Transferred in
compliance with Section 2(a), free and clear of any Encumbrances of any
kind or nature;
(c) the Stockholder does not and will not beneficially own any securities of
the Company or rights to acquire any securities of the Company other than
the Shares;
(d) the Stockholder has and will have, with respect to all of the Shares, the
legal capacity and all requisite power and authority to make, enter into
and (except with respect to any Shares that are Transferred in compliance
with Section 2(a)) perform the terms of this Agreement and the Proxy;
(e) this Agreement has been duly and validly executed and delivered by the
Stockholder and constitutes a valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its
terms, except as enforceability may be limited by bankruptcy and other
similar laws affecting the rights of creditors generally and general
principles of equity;
(f) the execution and delivery of this Agreement by the Stockholder do not,
and the consummation of the transactions contemplated hereby will not,
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conflict with or violate any Governmental Order or permit applicable to
the Stockholder or result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a material
default) under, or materially impair the Stockholder's rights or alter the
rights or obligations of any third party under, any contract, agreement or
other arrangement applicable to the Shares; and
(g) except as expressly contemplated hereby, or set out on Schedule A hereto
the Stockholder is not a party to, and the Shares are not subject to or
bound in any manner by, any contract or agreement relating to the Shares,
including without limitation, any voting agreement, option agreement,
purchase agreement, stockholders' agreement, partnership agreement or
voting trust.
6. Representations and Warranties of CNI. CNI hereby represents and warrants to
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the Stockholder that, as of the date hereof and at all times until the
Expiration Time:
(a) CNI has the legal capacity and all requisite power and authority to make,
enter into and perform the terms of this Agreement and the Proxy;
(b) this Agreement has been duly and validly executed and delivered by CNI and
constitutes the valid and binding obligation of CNI, enforceable against
CNI in accordance with its terms, except as enforceability may be limited
by bankruptcy and other similar laws affecting the rights of creditors
generally and general principles of equity; and
(c) the execution and delivery of this Agreement by CNI do not, and the
consummation of the transactions contemplated hereby will not, conflict
with or violate any material Governmental Order or permit applicable to
CNI, except where such conflicts, violations, breaches or defaults would
not, individually or in the aggregate, materially impair the ability of
CNI to perform its obligations hereunder.
7. Legending of Shares. If so requested by CNI, the Stockholder hereby agrees
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that the Shares shall bear a legend stating that they are subject to this
Agreement and to an irrevocable proxy. The Stockholder hereby agrees that the
Stockholder shall not Transfer the Shares without first having the
aforementioned legend affixed to the certificates representing the Shares.
8. Consent and Waiver. The Stockholder (not in his or her capacity as a director
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or officer of the Company) agrees to give any consent or waiver that is
reasonably required under the terms of any agreement to which the Stockholder is
a party which consent or waiver is required solely because of the consummation
of the Transactions.
9. Disclosure. The Stockholder hereby agrees to permit the Company to publish
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and disclose in the Proxy Statement (including all documents and schedules filed
with the Securities and Exchange Commission) and for the Company and CNI to
publish and disclose in any press release or other disclosure document that
either the Company or CNI determines to be necessary or desirable in connection
with the Transactions the existence and terms of this Agreement.
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10. Miscellaneous.
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(a) Amendments and Waivers. No amendment of any provision of this Agreement
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shall be valid unless the same shall be in writing and signed by the
parties. Either party to this Agreement may (i) extend the time for the
performance of any of the obligations or other acts of the other party,
(ii) waive any inaccuracies in the representations and warranties of the
other party contained herein or in any document delivered by the other
party pursuant hereto or (iii) waive compliance with any of the agreements
or conditions of the other party contained herein. Any such extension or
waiver shall be valid only if set forth in an instrument in writing signed
by the party to be bound thereby. Any waiver of any term or condition
shall not be construed as a waiver of any subsequent breach or a
subsequent waiver of the same term or condition, or a waiver of any other
term or condition, of this Agreement. The failure of any party to assert
any of its rights hereunder shall not constitute a waiver of any of such
rights.
(b) Notices. All notices and other communications hereunder shall be in
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writing and shall be deemed duly given (i) on the date of delivery if
delivered personally, (ii) on the date of confirmation of receipt (or, the
first business day following such receipt if the date is not a business
day or the receipt is after 5 p.m.) of transmission by facsimile, or (iii)
on the date of confirmation of receipt (or, the first business day
following such receipt if the date is not a business day or the receipt is
after 5 p.m.) if delivered by courier. Subject to the foregoing, all
notices hereunder shall be delivered as set forth below, or pursuant to
such other instructions as may be designated in writing by the party to
receive such notice:
(i) if to CNI, to:
Columbus Nova Investments VIII Ltd.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
Attention: Xxxx Xxxxxx
Facsimile: x0-000-000-0000
with a courtesy copy (which shall not constitute
notice to CNI) to:
Skadden, Arps, Slate, Xxxxxxx and Xxxx LLP
Xx xxx Xxxxx 0
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Attention: Xxxxxx Xxxxxxx
Facsimile No.: x00-00-00000000
(ii) if to the Stockholder, to the address set forth on
the signature page of this Agreement, with a copy
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(which shall not constitute notice to the
Stockholder) to:
Xxxxxxx X. Xxxxx
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Facsimile: x0-000-000-0000
(c) Headings. The descriptive headings contained in this Agreement are for
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convenience of reference only and shall not affect in any way the meaning
or interpretation of this Agreement.
(d) Interpretation. References in this Agreement to sections, paragraphs,
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clauses, schedules and exhibits are to sections, paragraphs, clauses,
schedules and exhibits in or to this Agreement unless otherwise indicated.
Whenever the context may require, any pronoun includes the corresponding
masculine, feminine and neuter forms. Any term defined by reference to any
agreement, instrument or document has the meaning assigned to it whether
or not such agreement, instrument or document is in effect. Any reference
to any federal, state, local or foreign statute or law shall be deemed
also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. The words "include", "includes" and
"including" are deemed to be followed by the phrase "without limitation".
Unless the context otherwise requires, any agreement, instrument or other
document defined or referred to herein refers to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified from time to time. Unless the context otherwise
requires, references herein to any Person include its successors and
assigns.
(e) Counterparts. This Agreement may be executed in any number of counterparts
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and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and
the same instrument.
(f) Entire Agreement. This Agreement and the Proxy constitute the entire
----------------
agreement of the parties hereto with respect to the subject matter hereof
and thereof and supersede all prior agreements and undertakings, both
written and oral, among the parties with respect to the subject matter
hereof and thereof.
(g) Severability. If any provision of this Agreement is invalid, illegal or
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incapable of being enforced by any law or public policy, all other
provisions of this Agreement shall nevertheless remain in full force and
effect and the application of such provision to other Persons or
circumstances will be interpreted so as reasonably to effect the intent of
the parties hereto so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
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adverse to any party. Upon such determination that any provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby are consummated
as originally contemplated to the greatest extent possible.
(h) Specific Performance. The parties agree that irreparable harm would occur
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in the event that any of the agreements and provisions of this Agreement
were not performed fully by the parties in accordance with their specific
terms or conditions or were otherwise breached, and that money damages are
an inadequate remedy for breach of this Agreement because of the
difficulty of ascertaining and quantifying the amount of damage that would
be suffered by the parties in the event that this Agreement were not
performed in accordance with its terms or conditions or were otherwise
breached. It is accordingly hereby agreed that the parties shall be
entitled to an injunction or injunctions to restrain, enjoin and prevent
breaches of this Agreement by the other party and to enforce specifically
such terms and conditions of this Agreement, such remedy being in addition
to and not in lieu of any other rights and remedies to which the other
Party is entitled to at law or in equity.
(i) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware, without giving effect
to any choice or conflict of law provision or rule (whether of the State
of Delaware or any other jurisdiction) that would cause the application of
the Laws of any jurisdiction other than the State of Delaware.
(j) Rules of Construction.
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(i) Construction. The parties have participated jointly in the
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negotiation and drafting of this Agreement. In the event that
an ambiguity or question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by the
parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
(ii) Adequate Counsel. Each of the parties hereby represents and
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warrants that it and its legal counsel have adequate
information regarding the terms of this Agreement, the scope
and effect of the transactions contemplated hereby and all
other matters encompassed by this Agreement to make an
informed and knowledgeable decision with regard to entering
into this Agreement.
(k) Binding Effect; Assignment. The Stockholder may not assign either this
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Agreement or any of the rights, interests, or obligations hereunder
without the prior written approval of CNI. Any purported assignment in
violation of this Section 10(k) shall be void. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
permitted assigns.
(l) Waiver of Jury Trial. EACH OF CNI AND THE STOCKHOLDER HEREBY IRREVOCABLY
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WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
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COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF CNI OR THE STOCKHOLDER IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
[SIGNATURE ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed individually or by its respective duly authorized officer as of the date
first written above.
COLUMBUS NOVA INVESTMENTS VIII LTD.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Managing Partner
XXXXXXX X. XXXXX
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title:
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Schedule A
Stockholder Beneficial Ownership of Shares
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------------- --------- ---------------- ------------- ----------- -------------- --------------- ------------------- ----------
1 2 3 4 5 6 7 8 9
------------- --------- ---------------- ------------- ----------- -------------- --------------- ------------------- ----------
Name of Number Number of Number of Number of Number of Number of Amount of Number
Stockholder of Other Shares Shares of Other Shares of Shares of Convertible of
Shares of Common Series A Shares of Common Stock Common Stock Debentures Owned Shares
of Stock Over Preferred Series A Owned Upon Owned Upon of
Common which Stock Owned Preferred Conversion Exercise of Common
Stock Stockholder Stock of Series A Options Stock
Owned Has Voting Over Preferred Owned
Power which Stock Upon
Stockholder Conversion
Has of
Voting Convertible
Power Debentures
------------- --------- ---------------- ------------- ----------- -------------- --------------- ------------------- ----------
Xxxxxxx X. 75,401 58,900 0 0 0 20,000 0 0
Xxxxx
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Exhibit A
IRREVOCABLE PROXY
The undersigned Stockholder of Moscow CableCom Corp., a Delaware corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints the executive officers and members of the Board of Directors of
Columbus Nova Investments VIII Ltd., a Bahamas corporation ("CNI"), and each of
them initially, 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 fullest extent that the
undersigned is entitled to do so) with respect to all of the Voting Shares, as
defined in the Voting Agreement of even date herewith by and between CNI and the
undersigned Stockholder (the "Voting Agreement") in accordance with the terms of
this Proxy. Capitalized terms used and not otherwise defined herein shall have
the respective meanings assigned to them in the Voting Agreement.
The Voting Shares beneficially owned by the undersigned Stockholder of the
Company as of the date of this Proxy are listed on the final page of this Proxy.
Upon the undersigned's execution of this Proxy, any and all prior proxies given
by the undersigned with respect to any Voting Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Voting Shares until after the Expiration Time.
Until the Expiration Time, this Proxy is irrevocable (to the fullest extent
permitted by law), is coupled with an interest, is granted pursuant to the
Voting Agreement, and is granted in consideration of CNI entering into the
Subscription Agreement and the Warrant Agreement. The Subscription Agreement
provides for CNI acquiring 4,500,000 shares of Series B Preferred Stock of the
Company that are currently convertible into 4,500,000 shares of Common Stock of
the Company. The Warrant Agreement will provide for CNI acquiring warrants that
are currently exercisable for 8,283,000 shares of Series B Preferred Stock.
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 Time, to
act as the undersigned's attorney and proxy to vote the Voting Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Voting 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:
(a) in favor of the issuance of the shares of Series B Preferred Stock to CNI
in accordance with the terms and conditions of the Subscription Agreement,
and in favor of each of the other actions contemplated by the Subscription
Agreement and this Proxy and any action required in furtherance thereof;
(b) in favor of the issuance of the shares of Series B Preferred Stock to CNI
upon the exercise of the Warrants to be granted to CNI in accordance with
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the terms and conditions of the Warrant Agreement, and in favor of each of
the other actions contemplated by the Warrant Agreement and this Proxy and
any action required in furtherance thereof;
(c) in favor of the approval of the Certificate of Amendment of the
Certificate of Incorporation of the Company, including, without
limitation, for purposes of increasing the number of authorized Common
Stock and providing for the designation of the Series B Preferred Stock;
(d) in favor of any matter that could reasonably be expected to facilitate the
Transactions, including waiving any notice that may be required relating
to the issuance of the Series B Preferred Stock to CNI;
(e) in favor of an amendment to the 2003 Stock Option Plan of the Company;
(f) against approval of any proposal made in opposition to, or in competition
with, consummation of the Transactions; and
(g) against any other action that is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, discourage or
adversely affect the Transactions.
The attorneys and proxies named above may not exercise this Proxy on any other
matter except as provided above.
Any obligation of the undersigned hereunder shall be binding upon the successors
and assigns of the undersigned.
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This Proxy is irrevocable (to the fullest extent permitted by law) until the
Expiration Time and shall terminate, and be of no further force and effect,
automatically upon the Expiration Time.
Dated: August 26, 2004
Signature of Stockholder: /s/ Xxxxxxx X. Xxxxx
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Print Name of Stockholder: Xxxxxxx X. Xxxxx
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Shares Beneficially Owned:
154,301 shares of Company Common Stock
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______ shares of Series A Cumulative Convertible
Preferred Stock Owned
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