VOTING AGREEMENT
Exhibit 2.2
This Voting Agreement (“Agreement”) is entered into as of December 9, 2005, by
and between: iPass Inc., a Delaware corporation (“Parent”); and (“Stockholder”).
Recitals
A. Stockholder is a holder of record and the “beneficial owner” (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of certain shares of common stock of GoRemote
Internet Communications, Inc., a Delaware corporation (the “Company”).
B. Parent, Keystone Acquisition Sub, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent (“Acquisition Sub”), and the Company are entering into an Agreement and Plan
of Merger of even date herewith (the “Merger Agreement”) which provides (subject to the conditions
set forth therein) for the merger of Acquisition Sub into the Company (the “Merger”).
C. In the Merger, each outstanding share of common stock of the Company is to be converted
into the right to receive $1.71 in cash.
D. Stockholder is entering into this Agreement in order to induce Parent to enter into the
Merger Agreement.
Agreement
The parties to this Agreement, intending to be legally bound, agree as follows:
SECTION
1. Certain Definitions
For purposes of this Agreement:
(a) Stockholder shall be deemed to “Own” or to have acquired “Ownership” of a security if
Stockholder: (i) is the record owner of such security; or (ii) is the “beneficial owner” (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such security.
(b) “Person” shall mean any (i) individual, (ii) corporation, limited liability company,
partnership or other entity, or (iii) governmental authority.
(c) “Proxy Expiration Date” shall mean the earlier of (i) the date upon which the Merger
Agreement is validly terminated in accordance with its terms, or (ii) the date upon which the
Merger becomes effective.
(d) “Subject Securities” shall mean: (i) all securities of the Company (including all shares
of Company Common Stock and all options, warrants and other rights to acquire
.
shares of Company
Common Stock) Owned by Stockholder as of the date of this Agreement; and (ii) all additional
securities of the Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares of Company Common Stock) of which
Stockholder acquires Ownership during the period from the date of this Agreement through the Proxy
Expiration Date.
(e) “Subject Shares” shall mean: (i) all shares of Company Common Stock Owned by Stockholder
as of the date of this Agreement; (ii) all additional shares of Company Common Stock of which
Stockholder acquires Ownership during the period from the date of this Agreement through the Option
Termination Date; and (iii) all securities into which any of the shares of Company Common Stock
described in clause “(i)” or clause “(ii)” above are exchanged or converted.
(f) A Person shall be deemed to have a effected a “Transfer” of a security if such Person
directly or indirectly: (i) sells, pledges, encumbers, grants an option with respect to, transfers
or disposes of such security or any interest in such security to any Person other than Parent; (ii)
enters into an agreement or commitment contemplating the possible sale of, pledge of, encumbrance
of, grant of an option with respect to, transfer of or disposition of such security or any interest
therein to any Person other than Parent; or (iii) reduces such Person’s beneficial ownership of,
interest in or risk relating to such security.
(g) Capitalized terms used but not otherwise defined in this Agreement have the meanings
assigned to such terms in the Merger Agreement.
SECTION 2. Transfer of Subject Securities and Voting Rights
2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the period
from the date of this Agreement through the Proxy Expiration Date, Stockholder shall not, directly
or indirectly, cause or permit any Transfer of any of the Subject Securities to be effected.
2.2 Restriction on Transfer of Voting Rights. During the period from the date of this
Agreement through the Proxy Expiration Date, Stockholder shall ensure that: (a) none of the
Subject Securities is deposited into a voting trust; and (b) no proxy is granted, and no voting
agreement or similar agreement is entered into, with respect to any of the Subject Securities that
is inconsistent with the terms of this Agreement.
2.3 Permitted Transfers. Section 2.1 shall not prohibit a transfer of Subject Securities by
Stockholder (a) if Stockholder is an individual (i) to any member of Stockholder’s immediate
family, or to a trust for the benefit of Stockholder or any member of Stockholder’s immediate
family, or (ii) upon the death of Stockholder, or (b) if Stockholder is a partnership or limited
liability company, to one or more partners or members of Stockholder or to an affiliated
corporation under common control with Stockholder; 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 Parent, to be bound by all of
the terms of this Agreement. Section 2.1 shall not prohibit Stockholder from (i) exercising
options or other convertible securities exercisable for Company capital stock and (ii) following
2.
the taking of a final vote by the stockholders of the Company on a proposal to adopt the Merger
Agreement, entering into a “same day sale” commitment with a broker-dealer under which the
broker-dealer will sell up to the number of shares of Company capital stock received on exercise
required to cover the aggregate exercise price and forward the aggregate exercise price to the
Company.
SECTION 3. Voting of Shares
3.1 Voting Covenant. Stockholder hereby agrees that, prior to the Proxy Expiration Date, at
any meeting of the stockholders of the Company, however called, and in any written action by
consent of stockholders of the Company, unless otherwise directed in writing by Parent, Stockholder
shall cause the Subject Shares to be voted:
(a) in favor of (i) the Merger, (ii) the adoption of the Merger Agreement, and (iii) each
of the actions contemplated by the Merger Agreement;
(b) against the following actions (other than the Merger and the transactions contemplated
by the Merger Agreement): (A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any subsidiary of the
Company; (B) any sale, lease, sublease, license, sublicense or transfer of a material portion of
the rights or other assets of the Company or any subsidiary of the Company; (C) any
reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of
the Company; (D) any change in a majority of the board of directors of the Company; (E) any
amendment to the Company’s certificate of incorporation or bylaws; (F) any material change in
the capitalization of the Company or the Company’s corporate structure; and (G) any other action
which would reasonably be expected, to impede, interfere with, delay, postpone, discourage or
adversely affect the Merger or any of the other transactions contemplated by the Merger
Agreement or this Agreement.
Prior to the Proxy Expiration Date, Stockholder shall not enter into any agreement or understanding
with any Person to vote or give instructions in any manner inconsistent with clause “(a)”, clause
"(b)” of the preceding sentence without the prior written consent of Parent.
3.2 Proxy; Further Assurances.
(a) Contemporaneously with the execution of this Agreement: (i) Stockholder shall deliver to
Parent a proxy in the form attached to this Agreement as Exhibit A, which shall be irrevocable to
the fullest extent permitted by law (at all times prior to the Proxy Expiration Date) with respect
to the shares referred to therein (the “Proxy”); and (ii) Stockholder shall cause to be delivered
to Parent an additional proxy (in the form attached hereto as Exhibit A) executed on behalf of the
record owner of any outstanding shares of Company Common Stock that are owned beneficially (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934), but not of record, by
Stockholder (except where the record owner does not have discretionary authority to vote any of
such shares on the matters described in clause “(a)” or clause “(b)” of Section 3.1).
3.
(b) Stockholder shall not enter into any tender, voting or other such agreement, or grant a
proxy or power of attorney, with respect to the Subject Shares that is inconsistent with this
Agreement or otherwise take any other action with respect to the Subject Shares that would in any
way restrict, limit or interfere with the performance of Stockholder’s obligations hereunder or the
transactions contemplated hereby.
3.3 Limitation. Notwithstanding anything in this Agreement or the Proxy to the contrary,
Parent hereby acknowledges and agrees that (a) Stockholder is only executing this Agreement and the
Proxy in his, her or its capacity as a beneficial owner of the Subject Securities and Subject
Shares and is not making any agreement hereunder or thereunder in his, her or its capacity as an
officer or director of the Company or any subsidiary of the Company, (b) nothing in this Agreement
or the Proxy shall in any way restrict or limit Stockholder (or any employee or affiliate of
Stockholder) in his, her, or its exercise of fiduciary duties as an officer or director of the
Company or any subsidiary of the Company, and (c) except as otherwise prohibited by this Agreement
or the Proxy, Stockholder may vote in his, her or its sole discretion on any matter other than
those matters described in clause “(a)” or clause “(b)” of Section 3.1.
SECTION 4. Waiver of Appraisal Rights
Stockholder hereby irrevocably and unconditionally waives, and agrees to cause to be waived
and to prevent the exercise of, any rights of appraisal, any dissenters’ rights and any similar
rights relating to the Merger or any related transaction that Stockholder or any other Person may
have by virtue of, or with respect to, any shares of Company Common Stock Owned by Stockholder.
SECTION 5. Representations and Warranties of Stockholder
Stockholder hereby represents and warrants to Parent as follows:
5.1 Authorization, etc. Stockholder has the absolute and unrestricted right, power, authority
and capacity to execute and deliver this Agreement and the Proxy and to perform Stockholder’s
obligations hereunder and thereunder. This Agreement and the Proxy have been duly executed and
delivered by Stockholder and constitute legal, valid and binding obligations of Stockholder,
enforceable against Stockholder in accordance with their terms, subject to (a) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and (b) rules of law
governing specific performance, injunctive relief and other equitable remedies.
5.2 No Conflicts or Consents.
(a) The execution and delivery of this Agreement and the Proxy by Stockholder do not, and the
performance of this Agreement and the Proxy by Stockholder will not: (i) conflict with or violate
any law, rule, regulation, order, decree or judgment applicable to Stockholder or by which
Stockholder or any of Stockholder’s properties is or may be bound or affected; or (ii) result in or
constitute (with or without notice or lapse of time) any breach of or default under, or give to any
other Person (with or without notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result (with or without notice or lapse
4.
of time) in the creation of any encumbrance or restriction on any of the Subject Securities
pursuant to, any Contract to which Stockholder is a party or by which Stockholder or any of
Stockholder’s affiliates or properties is or may be bound or affected.
(b) The execution and delivery of this Agreement and the Proxy by Stockholder do not, and the
performance of this Agreement and the Proxy by Stockholder will not, require any consent or
approval of any Person that has not already been obtained. The execution and delivery of any
additional proxy pursuant to Section 3.2(a)(ii) with respect to any shares of Company Common Stock
that are owned beneficially but not of record by Stockholder do not, and the performance of any
such additional proxy will not, require any consent or approval of any Person that has not already
been obtained.
5.3 Title to Securities. As of the date of this Agreement: (a) Stockholder holds of record
(free and clear of any encumbrances or restrictions other than (i) restrictions on transfer imposed
by applicable securities laws, community property laws and Company contracts and policies and (ii)
the restrictions imposed by this Agreement and the Proxy) the number of outstanding shares of
Company Common Stock set forth under the heading “Shares Held of Record” on the signature page
hereof; (b) Stockholder holds (free and clear of any encumbrances or restrictions other than (i)
restrictions on transfer imposed by applicable securities laws, community property laws and Company
contracts and policies and (ii) the restrictions imposed by this Agreement and the Proxy) the
options, warrants and other rights to acquire shares of Company Common Stock set forth under the
heading “Options and Other Rights” on the signature page hereof; (c) Stockholder Owns the
additional securities of the Company set forth under the heading “Additional Securities
Beneficially Owned” on the signature page hereof; and (d) Stockholder does not directly or
indirectly Own any shares of capital stock or other securities of the Company, or any option,
warrant or other right to acquire (by purchase, conversion or otherwise) any shares of capital
stock or other securities of the Company, other than the shares and options, warrants, rights and
other securities set forth on the signature page hereof.
5.4 Accuracy of Representations. The representations and warranties contained in this
Agreement are accurate in all respects as of the date of this Agreement, and will be accurate in
all respects at all times through and including the Proxy Expiration Date as if made as of any such
time (other than changes in the number and type of Company securities held by Stockholder arising
as a result of (i) the exercise of options or other convertible securities exercisable for Company
capital stock or (ii) the grant of additional Company securities to Stockholder by the Company).
SECTION 6. Additional Covenants of Stockholder
6.1 Stockholder Information. Stockholder hereby agrees to permit Parent and Acquisition Sub
to publish and disclose in the Proxy Statement Stockholder’s identity and ownership of shares of
Company Common Stock and the nature of Stockholder’s commitments, arrangements and understandings
under this Agreement.
6.2 Further Assurances. From time to time and without additional consideration, Stockholder
shall execute and deliver, or cause to be executed and delivered, such additional
5.
transfers, assignments, endorsements, proxies, consents and other instruments, and shall take
such further actions, as Parent may reasonably request for the purpose of carrying out and
furthering the intent of this Agreement.
6.3 Legends. If requested by Parent, immediately after the execution of this Agreement (and
from time to time upon the acquisition by Stockholder of Ownership of any shares of Company Common
Stock prior to the Proxy Expiration Date), Stockholder shall cause each certificate evidencing any
outstanding shares of Company Common Stock or other securities of the Company Owned by Stockholder
to be surrendered so that the transfer agent for such securities may affix thereto a legend in the
following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF A
VOTING AGREEMENT DATED AS OF DECEMBER ___, 2005 AS IT MAY BE AMENDED, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
SECTION 7. Miscellaneous
7.1 Survival of Representations, Warranties and Agreements. All representations, warranties,
covenants and agreements made by Stockholder in this Agreement shall survive the Proxy Expiration
Date.
7.2 Expenses. All costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs and expenses.
7.3 Notices. Any notice or other communication required or permitted to be delivered to
either party under this Agreement shall be in writing and shall be deemed properly delivered, given
and received when received at the address or facsimile telephone number set forth beneath the name
of such party below (or at such other address or facsimile telephone number as such party shall
have specified in a written notice given to the other party):
if to Stockholder:
at the address set forth on the signature page hereof; and
if to Parent:
6.
7.4 Severability. Any term or provision of this Agreement that is invalid or unenforceable in
any situation in any jurisdiction shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties
hereto agree that the court making such determination shall have the power to limit the term or
provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified. In the event such court does not exercise the power granted
to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term
or provision with a valid and enforceable term or provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid or unenforceable term.
7.5 Entire Agreement. This Agreement, the Proxy and any other documents delivered by the
parties in connection herewith constitute the entire agreement between the parties with respect to
the subject matter hereof and thereof and supersede all prior agreements and understandings between
the parties with respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon either party unless made in writing and signed by both parties.
7.6 Assignment; Binding Effect. Except as provided herein, neither this Agreement nor any of
the interests or obligations hereunder may be assigned or delegated by Stockholder, and any
attempted or purported assignment or delegation of any of such interests or obligations shall be
void. Subject to the preceding sentence, this Agreement shall be binding upon Stockholder and
Stockholder’s heirs, estate, executors and personal representatives and Stockholder’s successors
and assigns, and shall inure to the benefit of Parent and its successors and assigns. Without
limiting any of the restrictions (but subject to the limitations) set forth in Section 2 or
elsewhere in this Agreement, this Agreement shall be binding upon any Person to whom any Subject
Securities are transferred. Nothing in this Agreement is intended to confer on any Person (other
than Parent and its successors and assigns) any rights or remedies of any nature.
7.7 Independence of Obligations. The covenants and obligations of Stockholder set forth in
this Agreement shall be construed as independent of any other agreement or arrangement between
Stockholder, on the one hand, and the Company or Parent, on the other. The existence of any claim
or cause of action by Stockholder against the Company or Parent shall not constitute a defense to
the enforcement of any of such covenants or obligations against Stockholder.
7.8 Specific Performance. The parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement or the Proxy were not performed in accordance with its
specific terms or were otherwise breached. Stockholder agrees that, in the event of any breach or
threatened breach by Stockholder of any covenant or obligation contained in this Agreement or in
the Proxy, Parent shall be entitled (in addition to any other remedy that may be available to it,
including monetary damages) to seek and obtain (a) a decree or order of
7.
specific performance to enforce the observance and performance of such covenant or obligation,
and (b) an injunction restraining such breach or threatened breach. Stockholder further agrees
that neither Parent nor any other Person shall be required to obtain, furnish or post any bond or
similar instrument in connection with or as a condition to obtaining any remedy referred to in this
Section 7.8, and Stockholder irrevocably waives any right he or it may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
7.9 Non-Exclusivity. The rights and remedies of Parent under this Agreement are not exclusive
of or limited by any other rights or remedies which it may have, whether at law, in equity, by
contract or otherwise, all of which shall be cumulative (and not alternative). Without limiting
the generality of the foregoing, the rights and remedies of Parent under this Agreement, and the
obligations and liabilities of Stockholder under this Agreement, are in addition to their
respective rights, remedies, obligations and liabilities under common law requirements and under
all applicable statutes, rules and regulations.
7.10 Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Delaware, regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof. In any action between the parties arising out of or relating to this
Agreement or any of the transactions contemplated by this Agreement each of the parties irrevocably
and unconditionally consents and submits to the exclusive jurisdiction and venue of the Chancery
Court (or to the extent such court does not have subject matter jurisdiction, other state courts)
located in the State of Delaware.
(b) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL
PROCEEDING RELATING TO THIS AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS
AGREEMENT OR THE PROXY.
7.11 Counterparts. This Agreement may be executed in separate counterparts, each of which
when so executed and delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
7.12 Captions. The captions contained in this Agreement are for convenience of reference
only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection
with the construction or interpretation of this Agreement.
7.13 Attorneys’ Fees. If any legal action or other legal proceeding relating to this
Agreement or the enforcement of any provision of this Agreement is brought against Stockholder, the
prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements
(in addition to any other relief to which the prevailing party may be entitled).
7.14 Waiver. No failure on the part of Parent to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of Parent in exercising any power, right,
privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege
or remedy; and no single or partial exercise of any such power, right, privilege or
8.
remedy shall preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. Parent shall not be deemed to have waived any claim available to Parent
arising out of this Agreement, or any power, right, privilege or remedy of Parent under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set
forth in a written instrument duly executed and delivered on behalf of Parent; and any such waiver
shall not be applicable or have any effect except in the specific instance in which it is given.
7.15 Construction.
(a) For purposes of this Agreement, whenever the context requires: the singular number shall
include the plural, and vice versa; the masculine gender shall include the feminine and neuter
genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not be applied in the construction or interpretation of
this Agreement.
(c) As used in this Agreement, the words “include” and “including,” and variations thereof,
shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the
words “without limitation.”
(d) Except as otherwise indicated, all references in this Agreement to “Sections” and
“Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.
[Remainder of page intentionally left blank.]
9.
In Witness Whereof, Parent and Stockholder have caused this Agreement to be executed
as of the date first written above.
| iPass Inc. | ||||
| By | ||||
| Title | ||||
| Stockholder | ||||
| Signature | ||||
| Printed Name | ||||
| Address: | ||||
| Facsimile: | ||||
| Additional Securities | ||||
| Shares Held of Record | Options and Other Rights | Beneficially Owned | ||
Signature Page to Voting Agreement
Exhibit A
Irrevocable Proxy
Irrevocable Proxy
The undersigned stockholder (the “Stockholder”) of GoRemote Internet Communications, Inc.
, a Delaware corporation (the “Company”), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes iPass, Inc., a Delaware corporation (“Parent”),
Parent’s General Counsel and its Chief Executive Officer, and each of them, the attorneys and
proxies of the Stockholder, with full power of substitution and resubstitution, to the full extent
of the Stockholder’s rights with respect to (i) the outstanding shares of capital stock of the
Company owned of record by the Stockholder 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 Stockholder may acquire on or after the date hereof. (The shares of the capital stock of
the Company referred to in clauses “(i)” and “(ii)” of the immediately preceding sentence are
collectively referred to as the “Shares.”) Upon the execution hereof, all prior proxies given by
the Stockholder with respect to any of the Shares are hereby revoked, and the Stockholder agrees
that no subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in connection with, and
as security for, the Voting Agreement, dated as of the date hereof, between Parent and the
Stockholder (the “Voting Agreement”), and is granted in consideration of Parent entering into the
Agreement and Plan of Merger, dated as of the date hereof, among Parent, Keystone Acquisition Sub,
Inc, a wholly-owned subsidiary of Parent, and the Company (the “Merger Agreement”). This proxy
will terminate on the Proxy Expiration Date (as defined in the Voting Agreement).
The attorneys and proxies named above will be empowered, and may exercise this proxy, to vote
the Shares at any time until the Proxy Expiration Date at any meeting of the stockholders of the
Company, however called, and in connection with any written action by consent of stockholders of
the Company:
(a) in favor of (i) the Merger, (ii) adoption of the Merger Agreement, and (iii) each
of the actions contemplated by the Merger Agreement; and
(b) against the following actions (other than the Merger and the other transactions
contemplated by the Merger Agreement): (A) any extraordinary corporate transaction, such as
a merger, consolidation or other business combination involving the Company or any
subsidiary of the Company; (B) any sale, lease, sublease, license, sublicense or transfer of
a material portion of the rights or other assets of the Company or any subsidiary of the
Company; (C) any reorganization, recapitalization, dissolution or liquidation of the Company
or any subsidiary of the Company; (D) any change in a majority of the board of directors of
the Company; (E) any amendment to the Company’s certificate of incorporation or bylaws; (F)
any material change in the capitalization of the Company or the Company’s corporate
structure; and (G) any other action which would reasonably be expected to impede, interfere
with, delay, postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement or the Voting Agreement.
B-1
The Stockholder may vote the Shares in his, her or its sole discretion on all other matters
not referred to in this proxy, and the attorneys and proxies named above may not exercise this
proxy with respect to such other matters.
This proxy shall be binding upon the heirs, estate, executors, personal representatives,
successors and assigns of the Stockholder (including any transferee of any of the Shares).
Any term or provision of this proxy that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in any other situation
or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares
that any term or provision hereof is invalid or unenforceable, the Stockholder agrees that the
court making such determination shall have the power to limit the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or provision with a term
or provision that is valid and enforceable and that comes closest to expressing the intention of
the invalid or unenforceable term or provision, and this proxy shall be enforceable as so modified.
In the event such court does not exercise the power granted to it in the prior sentence, the
parties hereto agree to replace such invalid or unenforceable term or provision with a valid and
enforceable term or provision that will achieve, to the extent possible, the economic, business and
other purposes of such invalid or unenforceable term.
Dated: December ___, 2005
| Stockholder |
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| Number of shares of common stock of the Company owned of record as of the date of this proxy: |
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Signature Page to Irrevocable Proxy
