The principal occupations and employment of each such person during the past five years is set forth below.
Tom R. DeMeester, M.D. is a Founder and has been the Chairman of the Board since March 2000. From 1990 to 2009, Dr. DeMeester was the Chairman of the Department of Surgery and Professor of General and Cardiothoracic Surgery at the USC School of Medicine. From 1984 to 1990, Dr. DeMeester served as Chairman and Professor of the Department of Surgery at Creighton University School of Medicine. From 1973-1983, Dr. DeMeester was on the faculty of the University of Chicago and served as Chief of the Thoracic Surgery Division.
Raj Maheshwari Mr. Maheshwari co-founded MP Capital, an equity arbitrage hedge fund in 1999. After Weiss Peck and Greer Investments (“WPG”) (and its successor company Robeco Investment Management) acquired MP Capital, Mr. Maheshwari served as WPG’s Portfolio Manager and Managing Director from 1999 through August 2005. Mr. Maheshwari is a Founder and has served as a Managing Director of Charlestown Capital Advisors, LLC, a private merchant banking company (“Charlestown”) specializing in financial and banking advisory services since 2005.
Mr. Maheshwari, previously, served as a board member of Akela Pharmaceutical Inc. from July 2008 through October 2009.
Robert J. Majteles has been the managing partner of Treehouse Capital LLC, an investment firm (“Treehouse”) since 2000. Mr. Majteles serves on the Board of Directors of Unify Corporation (“Unify”), Comarco, Inc. (“Comarco”), Adept Technology, Inc. (“Adept”), Rovi Corporation (formerly known as Macrovision Corporation, “Rovi”), U.S. Auto Parts Network, Inc. (“U.S. Auto”) and iPass Inc. (“iPass”). Mr. Majteles is Chairman of the Board of U.S. Auto, Chairman of the Audit Committee of iPass, and serves on the Audit Committees of Rovi, U.S. Auto and Comarco among other committee and board responsibilities. In addition, Mr. Majteles is a Lecturer at the Haas School of Business and the Boalt Hall School of Law at the University of California, Berkeley.
Mr. Majteles has informed Rovi that he will not stand for re-election to Rovi’s Board of Directors when his term expires at Rovi’s annual meeting of stockholders to be held on May 4, 2010. Mr. Majteles, previously, served as a director on the boards of Phoenix Technologies Ltd. from 2007 to 2008, World Heart Corporation from 2003 to 2008 and Merriman Curham Ford, Group, Inc. from 2008 to 2009.
Michael J. Tillman has been the President and Chief Executive Officer of Roche Diagnostics North America (a “Roche” entity) since May 2008, and a member of (a) the Roche Diagnostics Executive Board, Switzerland; (b) the Board of Directors of several other Roche entities periodically since April 2006, which are listed below; and (c) the Board of Directors of Advanced Medical Technology Association. Mr. Tillman also served as Chairman of the Board of Directors of Roche Diagnostics Corp, USA from May 2008 through January 2010 and as the Head of Roche Diagnostics Asia Pacific from April 2006 through July 2008. Additionally, from November 2003 through March 2006, Mr. Tillman was the Head of the Department for Marketing and Sales of Molecular Diagnostics Germany.
Mr. Tillman has served as a Member and or Chairman (as specified below) of the Board of Directors for each of the Roche entities listed below.
| | · | April 2006 - September 2009 |
| | o | Chairman of the Board of Roche Diagnostics Shanghai Ltd., China |
| | · | April 2006 - August 2009 |
| | o | Chairman of the Board of Roche Diagnostics Asia Pacific Pte. Ltd., Singapore |
| | · | April 2006 - September 2008 |
| | o | Member of the Board of Roche Diagnostics Korea Co. Ltd. |
| | o | Member of the Board of Roche Diagnostics India Pvt. Ltd. |
| | o | Member of the Board of Roche Diagnostics Taiwan Ltd. |
| | o | Member of the Board of Roche Diagnostics Australia |
| | o | Member of the Board of Roche Diagnostics New Zealand Ltd. |
| | o | Member of the Board of Roche Singapore Ltd. Pte., Singapore |
Richard van den Broek has served as the Managing Partner of HSMR Advisors, LLC, an investment fund focused on the biotechnology industry since 2004. Mr. van den Broek, previously, was a Partner at Cooper Hill Partners, LLC, an investment fund primarily focused on the healthcare sector for the period of 2000 through 2003. Mr. van den Broek serves on the Board of Directors of Strategic Diagnostic Inc. and is a member of its Audit Committee. Mr. van den Broek also serves as a director of the Board of Directors for Pharmaxis Ltd (in Australia) and Pharmacyclics, Inc. and is a member of the Pharmacyclics’ Audit Committee.
David M. Wurzer has served as Managing Director, Investments at Connecticut Innovations (“CI”), a quasi-public authority responsible for technology investing and innovation development since November 2009, where he is responsible for sourcing and analyzing investment opportunities. Prior to joining CI, Mr. Wurzer was a Consultant from January 2008 through November 2009 and served as Executive Vice President, Treasurer and Chief Financial Officer of CuraGen Corporation of Branford, Connecticut, from September 1997 through December 2007. From February 1994 until September 1997, Mr. Wurzer served as the Senior Vice President, Treasurer and Chief Financial Officer at Value Health, Inc.
Mr. Wurzer has served on the Board of Directors of Strategic Diagnostics Inc. since February 2010 and previously served on the 454 Life Sciences Board of Directors from June 2000 through May 2007.
David B. Sable has been the Portfolio Manager for Life Sciences since 2005. Dr. Sable served as Resident and Chief Resident in obstetrics and gynecology at New York Hospital-Cornell Medical Center from 1986 to 1990 and as fellow in reproductive endocrinology at the Brigham and Women’s Hospital in Boston, Massachusetts from 1990 to 1992. He was also a director of the Institute for Reproductive Medicine and Science at Saint Barnabas Medical Center in New Jersey from 1992 to 2003. Dr. Sable also managed a proprietary healthcare portfolio at Deutsche Bank from 2004 to 2005.
Dr. Sable also serves as a board member of GeneNews Limited.
David M. Greenhouse has been the Executive Vice President of AWM Investment Company, Inc. (“AWM”) since 1992. Mr. Greenhouse is a member to each of the General Partners of Special Situations Fund III QP, L.P. (“SSFQP”), Special Situations Cayman Fund, L.P. (“Cayman”), Special Situations Private Equity Fund, L.P. (“SSPE”), Special Situations Fund III, L.P. (“SSF3”), Special Situations Technology Fund, L.P. (“Technology”), Special Situations Technology Fund II, L.P. (“Technology 2”) and Special Situations Life Sciences Fund, L.P. (“Life Sciences” and together with SSFQP, Cayman, SSPE, SSF3, Technology and Technology 2, the “Funds”). Mr. Greenhouse has been a member of MGP Advisers Limited Partnership (“MGP”) since 1992. Mr. Greenhouse is responsible for the investment decisions of the Funds.
Austin W. Marxe has been the President of AWM since 1991. Mr. Marxe has been a member of MGP since 1985. Mr. Marxe is a member to each of the general partners of the Funds. Mr. Marxe is responsible for the investment decisions of the Funds. Mr. Marxe is also an individual General Partner of Special Situations Fund III, L.P., a registered investment company.
Since October 2008, Mr. Marxe has been a board member of World Heart Corporation.
Share Ownership
| Name of Beneficial Owner | Class of Capital Stock | Shares of Common Stock Beneficially Owned | Percent of Outstanding Common Stock |
| Tom R. DeMeester | Common Stock | 372,845(1) | 2.04% |
| |
| Raj Maheshwari | Common Stock | 358,124(2) | 1.96% |
| |
| Robert J. Majteles | Common Stock | 0 | 0 |
| |
| Michael J. Tillman | Common Stock | 0 | 0 |
| |
| Richard van den Broek | Common Stock | 182,700(3) | * |
| |
| David M. Wurzer | Common Stock | 0 | 0 |
| |
| David B. Sable | Common Stock | 0 | 0 |
| |
| David M. Greenhouse | Common Stock | 3,350,174(4) | 18.3% |
| |
| Austin W. Marxe | Common Stock | 3,350,174(4) | 18.3% |
* Less than 1%
(1) Dr. DeMeester is the beneficial owner of 372,845 shares of the Company’s Common Stock.
(2) Mr. Maheshwari, founder and managing director of Charlestown, has the shared power to vote and dispose of 358,124 shares of the Company’s Common Stock beneficially owned by Charlestown Jupiter Fund LLC, Charlestown and certain family members of Mr. Maheshwari, of which 288,424 are held of record by Jupiter and Charlestown and such family members.
(3) This number represents 182,700 shares of Common Stock held by HSMR Capital Partners QP LP.
(4) As described in the Company’s Registration Statement on Form S-3 (Commission File No. 333- 159296) MGP is the general partner of SSFQP. AWM is the general partner of MGP, the general partner of and investment adviser to Cayman and the investment adviser to SSFQP and Life Sciences. Mr. Marxe and Mr. Greenhouse are the principal owners of MGP and AWM. Through their control of MGP and AWM, Messrs. Marxe and Greenhouse share voting and investment control over the portfolio securities of each of the funds listed above and, therefore, are deemed to beneficially own 3,350,174 shares of Common Stock which consists of (a) 1,065,351 shares held by SSFQP; (b) 1,158,651 shares held by Cayman; and (c) 1,126,172 shares held by Life Sciences.
Each of the Nominees has consented to be named in this Proxy Statement and to serve as a director of Response, if elected. If at the time of the Annual Meeting any Nominee is unable to serve or for good cause will not serve as a director, the discretionary authority provided in the proxy will be exercised to vote for a substitute designated by SSF. SSF has no reason to believe that any of the Nominees will be unable to serve as a director or will have good cause for not serving as a director, if elected. In addition, SSF reserves the right to nominate substitute persons if Response makes or announces any changes to its bylaws or takes or announces any other action that has, or if consummated would have, the effect of disqualifying the Nominees. In any such case, shares represented by the enclosed WHITE proxy card will be voted for such substitute nominees.
The Nominees would not be barred from being considered independent under applicable NASDAQ rules and the independence standards applicable to Response under paragraph (a)(1) of Item 407 of Regulation S-K under the Securities Exchange Act of 1934, as amended. SSF believes that if the Nominees are elected, there will be a sufficient number of independent directors to serve on the Board’s Audit Committee, Compensation Committee and Nominating and Governance Committee. SSF further believes that Mr. Majteles qualifies as an “audit committee financial expert” as defined by the SEC rules.
Other than as described in this Proxy Statement or in Appendix A hereto, none of SSF’s nine Nominees for director named in this Proxy Statement nor SSF nor any other participants in this solicitation nor any other person who may solicit proxies on their behalf:
(i) has purchased or sold any class of securities of Response within the past two years;
(ii) has borrowed funds for the purpose of acquiring or holding any shares of Common Stock purchased by such person within the past two years;
(iii) is now or within the past year has been a party to any contract, arrangement or understanding with any person with respect to any securities of Response;
(iv) had or will have a direct or indirect material interest in any transaction, or series of similar transactions, since the beginning of Response’s last fiscal year, or any currently proposed transaction, or series of similar transactions, to which Response or any of its subsidiaries was or is to be a party and in which the amount involved exceeds $120,000; or
(v) has any arrangement or understanding with any person with respect to any future employment with Response or its affiliates or any future transactions to which Response or any of its affiliates will or may be a party.
There are no present plans, understandings or arrangements whereby SSF, any of its members, or any of the Nominees for election as directors will acquire any of Response’s operations or assets.
You are being asked to elect the Nominees. The enclosed WHITE proxy card may only be voted for the Nominees and does not confer voting power with respect to the Company’s nominees. Accordingly, you will not have the opportunity to vote for any of Response’s nominees if you return a WHITE proxy card that we provide to you. You can only vote for Response’s nominees by executing a proxy card provided by Response.
The persons named as proxies in the accompanying WHITE proxy card of SSF intend to vote “FOR” SSF’s Nominees unless specifically instructed to the contrary by the person executing the proxy card. The votes cast at the Annual Meeting may result in the election to the Response Board of Directors of some of the persons on whose behalf SSF is soliciting proxies and some of Response’s nominees.
If some of the persons supported by SSF and some of Response’s nominees are elected, those persons who are SSF Nominees intend to serve their terms as directors. SSF is unable to predict whether any nominees of Response will agree to serve on a board of directors comprised in part of SSF Nominees. In the event that vacancies on the board of directors are created by the refusal of any of these persons to serve with the Nominees, we would anticipate that our Nominees would propose to the Board that it take all actions necessary to fill those vacancies, subject to the requirements of Delaware law and Response’s bylaws.
The persons receiving the greatest number of votes for the number of director positions to be elected at the Annual Meeting will be elected the directors of Response.
You are urged to vote FOR the election of the persons named above as directors of Response by completing, signing, dating and mailing promptly the enclosed WHITE proxy card in the postage-paid envelope provided.
PROPOSAL NO. 2
COMPANY PROPOSAL TO RATIFY APPOINTMENT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
As discussed in further detail in the Company’s proxy statement, the Company’s Audit Committee appointed BDO Seidman, LLP, as the Company’s independent registered public accounting firm for the year ending December 31, 2010. The Company is asking stockholders to ratify the appointment of BDO Seidman, LLP as independent auditors for the Company’s year ending December 31, 2010.
We do not object to the ratification of the appointment of BDO Seidman, LLP as the Company’s independent registered public accounting firm for the Company’s year ending December 31, 2010.
While this proposal also appears on the proxy card you may have received from the Company, you cannot vote for SSF’s nominees on that proxy card and thus we request that you use the WHITE proxy card to vote on this matter. If you return the WHITE proxy card and no marking is made, you will be deemed to have given a direction to vote all the shares represented by the WHITE proxy card for this proposal.
VOTING AND PROXY PROCEDURES
Only stockholders of record on the Record Date will be entitled to notice of and to vote at the Annual Meeting. Each share of Common Stock is entitled to one vote. Stockholders who sell shares before the Record Date (or acquire them without voting rights after the Record Date) may not vote such shares. Stockholders of record on the Record Date will retain their voting rights in connection with the Annual Meeting even if they sell such shares after the Record Date. Based on publicly available information, SSF believes that the only outstanding class of securities of Response entitled to vote at the Annual Meeting is the Common Stock.
Shares represented by properly executed WHITE proxy cards will be voted at the Annual Meeting as marked and, in the absence of specific instructions, will be voted FOR the election of the Nominees to the Board, FOR the ratification of the appointment of BDO Seidman, LLP as independent registered public accounting firm for the Company’s year ending December 31, 2010 and in the discretion of the persons named as proxies on all other matters as may properly come before the Annual Meeting.
If your shares are held in “street name,” whether through a broker, bank or other nominee, only such bank, broker or other nominee can sign the WHITE proxy card with respect to your shares. You are therefore urged to contact the person(s) responsible for your account and give them instructions for how to complete a WHITE proxy card representing your shares so that a WHITE proxy card can be timely returned on your behalf. You also should confirm in writing your instructions to the person(s) responsible for your account and provide a copy of those instructions to our proxy solicitor, [__________], so that they can attempt to ensure that your instructions are followed. If you wish instead to vote in person at the Annual Meeting, you must obtain a valid proxy from your broker, bank or other nominee.
QUORUM
In order to conduct any business at the Annual Meeting, a quorum must be present in person or represented by valid proxies. A quorum consists of a majority of the outstanding shares entitled to vote at the meeting. All shares that are voted “FOR,” “AGAINST” or “ABSTAIN” (or “WITHHOLD” in the case of election of directors) and broker non-votes on any matter will count for purposes of establishing a quorum and will be treated as shares entitled to vote at the Annual Meeting (the “Votes Present”).
VOTES REQUIRED FOR APPROVAL
Election of Directors. A plurality of the total votes cast by holders of the shares entitled to vote at the Annual Meeting for the Nominees is required for the election of directors, and the nine nominees who receive the most votes will be elected (assuming a quorum is present). Both a broker non-vote and a vote to “WITHHOLD” for any nominee for director will be counted for purposes of determining the quorum, but will have no other effect on the outcome of the vote on the election of directors. Stockholders do not have the right to cumulate their votes in the election of directors.
Ratification of Appointment of BDO Seidman, LLP. The affirmative vote of the holders of stock having a majority of the votes cast by the holders of all of the shares of stock present or represented and voting at the Annual Meeting is required to approve the ratification of the appointment of BDO Seidman, LLP (assuming a quorum is present).
With respect to the ratification of the appointment of BDO Seidman, LLP and any matters other than the election of directors to be voted on at the Annual Meeting, abstentions and broker non-votes will not be taken into account and will have no effect on the outcome.
ABSTENTIONS/WITHHOLDS
Abstentions and, in the case of the elections of directors, withholds will count as Votes Present for the purpose of determining whether a quorum is present. Abstentions will have no effect on the proposal to ratify the appointment of BDO Seidman, LLP, because abstentions do not count as votes cast and the bylaws provide that any matter other than the election of directors shall be decided by the affirmative vote of the holders of stock having a majority of the votes cast by the holders of all of the shares of stock present or represented and voting on a matter. In addition, withholds will have no effect on the outcome of the election of directors because the bylaws provide that the election of directors shall be determined by a plurality of the total votes cast by holders of the shares entitled to vote on the election and, therefore, assuming a quorum, only affirmative votes for the Nominees will determine the outcome of the election at the Annual Meeting.
DISCRETIONARY VOTING
If your shares are held in “street name,” whether through a broker, bank or other nominee, only such bank, broker or other nominee can sign the WHITE proxy card with respect to your shares. A “broker non-vote” occurs if you do not give specific voting instructions to your broker, bank or other nominee regarding how to vote your shares on your behalf with respect to the election of directors at the Annual Meeting. The election of directors at the Annual Meeting is a “non-routine matter” and brokers do not have discretionary authority to vote your shares of Common Stock on “non-routine matters.” If you fail to provide voting instructions, your broker will have no discretionary authority to vote your shares on your behalf with respect to the election of directors and your shares will not be voted for any of the Nominees. We strongly encourage you to contact the person(s) responsible for your account and give them instructions for how to complete a WHITE proxy card representing your shares so that a WHITE proxy card can be timely returned on your behalf.
REVOCATION OF PROXIES
Stockholders of Response may revoke their proxies at any time prior to the Annual Meeting by attending the Annual Meeting and voting in person (although attendance at the Annual Meeting will not in and of itself constitute revocation of a proxy) or by delivering a written notice of revocation. The delivery of a subsequently dated proxy which is properly completed will also constitute a revocation of any earlier proxy. The revocation may be delivered either to SSF in care of [______________], at the address set forth in this Proxy Statement or to the Corporate Secretary of Response at the address provided by Response in Response’s proxy statement. A revocation is effective if delivered to Response. SSF requests that either the original or photostatic copies of all revocations be mailed to SSF in care of [______________] at the address set forth on the back cover of this Proxy Statement so that SSF will be aware of all revocations and can more accurately determine if and when proxies have been received from the holders of record on the Record Date of a majority of the outstanding shares. Additionally, [______________] may use this information to contact stockholders who have revoked their proxies in order to solicit later dated proxies for the election of the Nominees.
IF YOU WISH TO VOTE FOR THE ELECTION OF THE NOMINEES TO THE BOARD OR FOR THE RATIFICATION OF THE APPOINTMENT OF BDO SEIDMAN, LLP, PLEASE SIGN, DATE AND RETURN PROMPTLY THE ENCLOSED WHITE PROXY CARD IN THE POSTAGE-PAID ENVELOPE PROVIDED.
SOLICITATION OF PROXIES
The solicitation of proxies pursuant to this Proxy Statement is being made by SSF and the other participants in this solicitation. Proxies may be solicited by mail, facsimile, telephone, telegraph, Internet, in person and by advertisements.
The expenses of preparing, printing and distributing this Proxy Statement and the accompanying form of proxy and the cost of soliciting proxies will be borne by SSF. Such expenses are estimated to be approximately [$_________], of which [$______] have been incurred to date. If it is successful, SSF intends to seek reimbursement from Response, to the extent permitted by law, for expenses incurred in connection with its proxy solicitation, without the vote of the holders of the Common Stock.
Copies of soliciting materials will be furnished to banks, brokerage houses and other custodians, nominees and fiduciaries for forwarding to the beneficial owners of shares of Common Stock for whom they hold shares, and SSF will reimburse them for their reasonable out-of-pocket expenses in connection therewith.
SSF has also retained [______________] to assist it in the solicitation of proxies. [______________] will solicit proxies on behalf of SSF from individuals, brokers, bank nominees and other institutional holders in the same manner described above. [______________] will receive a fee not in excess of [$_______] for its services to SSF for the solicitation of the proxies. SSF has also agreed to indemnify [______________] against certain claims. Approximately [__] persons will be employed by [______________] to solicit stockholders.
PARTICIPANTS IN THE SOLICITATION
Under applicable regulations of the Securities and Exchange Commission, SSF and each of the Nominees is deemed to be a “participant” in SSF’s solicitation of proxies. Mr. Marxe and Mr. Greenhouse are the principal owners of MGP and AWM. Through their control of MGP and AWM, Messrs. Marxe and Greenhouse share voting and investment control over the portfolio securities of each of the funds listed below and, therefore, are deemed to beneficially own 3,350,174 shares of Common Stock which consists of (a) 1,065,351 shares held by SSFQP; (b) 1,158,651 shares held by Cayman; and (c) 1,126,172 shares held by Life Sciences. In connection with the participants, SSF furnishes the following information: AWM is a Delaware corporation and MGP is a Delaware partnership, and all such entities have a business address at 527 Madison Avenue, Suite 2600, New York, New York 10022. The name, business address and principal occupation of each of the Nominees is listed under the section entitled “Proposal 1: Election of Directors—Biographical Information.” Information about the present ownership by SSF and its Nominees or any of their respective “associates” of Response Common Stock is set forth under the section entitled “Election of Directors—Share Ownership.” Information about transactions by SSF and its Nominees in Response’s Common Stock during the past two years can be found in Appendix A to this Proxy Statement.
In his capacity as the Chairman of the Board of the Company, Dr. DeMeester received [$_________] in compensation for the fiscal year ended December 31, 2007 and an annual retainer of $20,000 in compensation from the Company for each of the fiscal years ended December 31, 2008 and December 31, 2009 pursuant to the Company’s compensation policy. [Dr. DeMeester will continue to receive his annual retainer for his service as Chairman of the Board for the fiscal year ended December 31, 2010.] Additionally, under the Company’s compensation policy, Dr. DeMeester has received options to purchase 11,500 shares of common stock at an exercise price equal to the fair market value of the Company’s common stock on the date of grant, vesting quarterly over a four-year period.
As described in the Company’s Current Report on Form 8-K, filed on March 3, 2009, on February 27, 2009, the Company entered into a Purchase Agreement (the “Purchase Agreement”) with SSFQP, Cayman and Life Sciences (the “Purchasers”) for the private placement of 2,000,000 newly-issued shares of the Company’s common stock (the “Shares”) at a per share price of $1.00 (the “Private Placement”). The closing of the sale of the Shares occurred on Monday, March 2, 2009.
In connection with the Private Placement, the Company also entered into a Registration Rights Agreement, dated February 27, 2009, with the Purchasers (the “Registration Rights Agreement”) pursuant to which it agreed to file, within 90 days of the closing of the Private Placement, a registration statement with the Securities and Exchange Commission (“SEC”) to register the Shares for resale, which registration statement is required to become effective within 150 days following the closing. If the Registration Statement is not filed or declared effective within the timeframes set forth above, then the Company will be obligated to pay liquidated damages to the Purchasers in an amount equal to 1.5% of the aggregate amount invested by the Purchasers for each 30−day period, or pro rata for any portion thereof, following the date by which the Registration Statement should have been filed or declared effective. In addition, liquidated damages will also accrue in the event that, subject to certain exceptions, the Company does not maintain the effectiveness of the registration statement until the earlier of the sale of all of the Shares or the Shares become eligible for sale under Rule 144 without regard to any volume limitations. According to the SEC’s EDGAR website, the required Registration Statement was filed with the SEC on May 15, 2009 and was declared effective on June 1, 2009.
In July 2009, the Company entered into an agreement with Charlestown and Heiner Dreismann to help the Company launch ResponseDX tests in certain European countries, which agreement expired on February 28, 2010. Pursuant to that agreement, Charlestown and Heiner Dreismann received a monthly retainer of $7,000 per month with a right to receive ten percent per year of the revenues generated by Response DX for a period of ten years (the “DX Payments”). As of the date of hereof, Charlestown and Heiner Dreismann have not received any DX Payments.
Certain of the Funds have entered into an agreement with Mr. Majteles and Treehouse pursuant to which Treehouse, through Mr. Majteles, provides certain management and financial advisory services for the Funds upon request. If Mr. Majteles’ services are requested by the Funds with respect to a particular portfolio investment, (1) Mr. Majteles is required to act independently of the Funds in discharging his fiduciary duties to stockholders of any company for which he serves as a member of the Board of Directors and also is obligated not to disclose to the Funds or use for his own benefit any confidential information he obtains in connection with his service for a particular portfolio company and (2) Treehouse is entitled to a portion of the Funds’ net gain (as defined) or net loss (as defined) on the investment during the term of the agreement. The terms of the foregoing agreement are not applicable to the investment of SSFQP, Cayman and Life Sciences in the Company or to Mr. Majteles’ nomination or agreement to serve as a director of the Company if elected. From approximately 1996 through 1999, Mr. Majteles served as the Chief Executive Officer of Ultradata Inc., a public company in which AWM invested. The companies on whose boards Mr. Majteles currently serves that are subject to the agreement with AWM described here are Unify, Adept, and Comarco. Mr. Majteles does not have or share voting or dispositive power over any securities held by SSFQP, Cayman or Life Sciences.
Except as otherwise set forth in this Proxy Statement or in Appendix A hereto, none of SSF or its Nominees or any of their respective “associates” has any arrangement or understanding with any person with respect to future employment or future transactions with Response. There are no arrangements between SSF or any of its Nominees and any other person, pursuant to which any person is to be selected as such. There is no family relationship between persons nominated to become directors.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
To SSF’s knowledge, there was no participant, as described in this Proxy Statement, who, at any time during the fiscal year ended December 31, 2009, failed to file on a timely basis the reports required by Section 16(a) of the Securities Exchange Act of 1934, as amended, with respect to beneficial ownership of the Company’s securities during the most recent fiscal year.
ABSENCE OF APPRAISAL RIGHTS
Under Delaware law, you do not have appraisal rights in connection with our solicitation of proxies.
Other Matters
Other than those discussed above, SSF is unaware of any other matters to be considered at the Annual Meeting. However, should other matters, of which SSF is not aware within a reasonable time before this solicitation, be brought before the Annual Meeting, the persons named as proxies on the enclosed WHITE proxy card will vote on such matters in their discretion.
Incorporation by Reference
SSF has omitted from this Proxy Statement certain disclosure required by applicable law that is expected to be included in the Company’s proxy statement relating to the Annual Meeting. This disclosure is expected to include, among other things, current biographical information on Response’s current directors and executive officers, certain information regarding the securities of Response held by Response’s directors, nominees, management and 5% stockholders, information concerning executive compensation, an analysis of cumulative total returns on an investment in Response’s shares of Common Stock during the past five years, information on audit services and fees of SingerLewak LLP and BDO Seidman, LLP and procedures for nominating directors for election to the Response Board of Directors and other important information. Stockholders should refer to the Response proxy statement in order to review this disclosure. Please note that because SSF was not involved in the preparation of the Company’s proxy statement, we cannot reasonably confirm the accuracy or completeness of certain information contained in the Company’s proxy statement.
Although we do not have any knowledge indicating that any statement made by SSF herein is untrue, we do not take any responsibility for the accuracy or completeness of statements taken from public documents and records that were not prepared by or on our behalf, or for any failure by Response to disclose events that may affect the significance or accuracy of such information.
The information concerning Response contained in this Proxy Statement has been taken from, or is based upon, publicly available information.
IMPORTANT
1. Be sure to vote on the WHITE proxy card. We urge you not to sign any proxy card, which is sent to you by Response.
2. If any of your shares are held in the name of a bank, broker or other nominee, please contact the person responsible for your account and direct him or her to vote on the WHITE proxy “FOR” SSF’s nominees.
If you have any questions, require assistance in voting your WHITE proxy card,
or need additional copies of SSF’s proxy materials, please call
[__________]. at the phone numbers listed below.
[To Come]
PLEASE COMPLETE, SIGN, DATE AND MAIL SSF’S ENCLOSED WHITE PROXY CARD PROMPTLY IN THE ENCLOSED ENVELOPE. NO POSTAGE IS REQUIRED IF MAILED WITHIN THE UNITED STATES. BY COMPLETING, SIGNING, DATING AND RETURNING SSF’S ENCLOSED WHITE PROXY CARD, ANY PROXY PREVIOUSLY GIVEN BY YOU WILL BE AUTOMATICALLY REVOKED. ONLY THE LATEST DATED PROXY WILL COUNT AT THE ANNUAL MEETING.
[April __, 2010]
SPECIAL SITUATIONS FUND III QP, L.P.
SPECIAL SITUATIONS CAYMAN FUND, L.P.
SPECIAL SITUATIONS LIFE SCIENCES FUND, L.P.
527 MADISON AVENUE
SUITE 2600
NEW YORK, NY 10022
APPENDIX A
TWO YEAR TRANSACTION HISTORY OF EACH PARTICIPANT
David M. Greenhouse & Austin W. Marxe
Transaction Summary
of
Special Situations Fund
for the period of January 1, 2008 - -December 31, 2009
David M. Greenhouse & Austin W. Marxe
| | | | | | | | | |
| | Special Situations Fund III QP, L.P. | |
| | | | | | | | | |
| | Transaction Type | | Trade Date | | Quantity | | Trade Amount | |
| | | | | | | | | |
| | Buy | | 5/30/2008 | | 1,000.00 | | $3,230.00 | |
| | Buy | | 6/2/2008 | | 4.00 | | $12.92 | |
| | Buy | | 6/6/2008 | | 7.00 | | $22.43 | |
| | Sell | | 7/18/2008 | | 1,000.00 | | $2,750.98 | |
| | Buy | | 7/24/2008 | | 1,485.00 | | $4,464.52 | |
| | Buy | | 7/25/2008 | | 57,191.00 | | $186,562.76 | |
| | Buy | | 7/25/2008 | | 10,200.00 | | $32,600.83 | |
| | Buy | | 8/1/2008 | | 13,900.00 | | $45,289.12 | |
| | Buy | | 8/4/2008 | | 300.00 | | $947.70 | |
| | Buy | | 8/5/2008 | | 23,700.00 | | $75,366.00 | |
| | Buy | | 8/5/2008 | | 1,200.00 | | $3,790.80 | |
| | Buy | | 9/24/2008 | | 1,000.00 | | $3,009.00 | |
| | Buy | | 9/25/2008 | | 159.00 | | $435.50 | |
| | Buy | | 9/29/2008 | | 125.00 | | $326.63 | |
| | Buy | | 9/30/2008 | | 282.00 | | $736.74 | |
| | Buy | | 10/3/2008 | | 878.00 | | $2,456.73 | |
| | Buy | | 10/7/2008 | | 4,419.00 | | $8,921.96 | |
| | Buy | | 10/9/2008 | | 328.00 | | $921.35 | |
| | Buy | | 10/10/2008 | | 824.00 | | $2,108.62 | |
| | Buy | | 2/11/2009 | | 58,200.00 | | $86,136.00 | |
| | Buy | | 2/11/2009 | | 5,633.00 | | $8,500.20 | |
| | Buy | | 4/2/2009 | | 150.00 | | $151.35 | |
| | Buy | | 5/14/2009 | | 20,555.00 | | $22,795.50 | |
| | Buy | | 5/15/2009 | | 45,500.00 | | $57,452.40 | |
| | Buy | | 5/15/2009 | | 60,000.00 | | $ 79,428.00 | |
| | Buy | | 3/2/2009 | | 750000 | | $750,000.00 | |
| | Buy | | 6/24/2009 | | 3,347.00 | | $4,037.52 | |
| | Buy | | 6/26/2009 | | 1,464.00 | | $1,857.82 | |
| | Buy | | 7/14/2009 | | 2,500.00 | | $2,764.50 | |
| | Buy | | 7/15/2009 | | 100.00 | | $115.90 | |
| | Buy | | 7/16/2009 | | 1,700.00 | | $1,955.31 | |
| | Buy | | 7/22/2009 | | 200.00 | | $241.80 | |
| | | | | | | | | |
| | Special Situations Cayman Fund, L.P. | |
| | | | | | | | | |
| | | | Trade Date | | Quantity | | Trade Amount | |
| | | | | | | | | |
| | Buy | | 1/2/2008 | | 2,000.00 | | $9,398.00 | |
| | Buy | | 1/11/2008 | | 559.00 | | $2,739.55 | |
| | Buy | | 1/15/2008 | | 2,000.00 | | $9,718.00 | |
| | Buy | | 1/16/2008 | | 600.00 | | $2,855.40 | |
| | Buy | | 1/17/2008 | | 4,000.00 | | $19,036.00 | |
| | Buy | | 1/18/2008 | | 500.00 | | $2,384.50 | |
| | Buy | | 1/23/2008 | | 1,200.00 | | $5,800.80 | |
| | Buy | | 1/25/2008 | | 900.00 | | $4,328.10 | |
| | Buy | | 1/31/2008 | | 700.00 | | $3,328.29 | |
| | Buy | | 2/6/2008 | | 4,100.00 | | $19,028.10 | |
| | Buy | | 2/6/2008 | | 1,000.00 | | $4,509.00 | |
| | Buy | | 2/7/2008 | | 1,000.00 | | $4,609.00 | |
| | Buy | | 2/11/2008 | | 1,000.00 | | $4,509.00 | |
| | Buy | | 2/12/2008 | | 100.00 | | $450.90 | |
| | Buy | | 2/13/2008 | | 1,100.00 | | $4,882.90 | |
| | Buy | | 2/14/2008 | | 6,900.00 | | $30,117.81 | |
| | Buy | | 2/15/2008 | | 2,900.00 | | $13,248.07 | |
| | Buy | | 2/19/2008 | | 10,588.00 | | $47,191.77 | |
| | Buy | | 2/20/2008 | | 2,150.00 | | $9,970.84 | |
| | Buy | | 2/21/2008 | | 600.00 | | $2,645.40 | |
| | Buy | | 2/25/2008 | | 789.00 | | $3,557.60 | |
| | Buy | | 2/29/2008 | | 3,000.00 | | $13,503.60 | |
| | Buy | | 3/3/2008 | | 350.00 | | $1,550.15 | |
| | Buy | | 3/4/2008 | | 1,000.00 | | $4,509.00 | |
| | Buy | | 5/15/2008 | | 5,000.00 | | $15,900.00 | |
| | Buy | | 5/19/2008 | | 4,191.00 | | $13,416.65 | |
| | Buy | | 5/20/2008 | | 2,227.00 | | $7,081.86 | |
| | Buy | | 5/21/2008 | | 1,310.00 | | $4,296.80 | |
| | Buy | | 5/27/2008 | | 4,715.00 | | $14,823.96 | |
| | Buy | | 5/28/2008 | | 3,275.00 | | $10,490.81 | |
| | Buy | | 5/29/2008 | | 3,144.00 | | $10,218.00 | |
| | Buy | | 6/2/2008 | | 2,421.00 | | $7,819.83 | |
| | Buy | | 6/3/2008 | | 5,000.00 | | $15,965.50 | |
| | Buy | | 6/5/2008 | | 7,300.00 | | $24,022.84 | |
| | Buy | | 6/6/2008 | | 4,178.00 | | $13,385.48 | |
| | Buy | | 6/9/2008 | | 1,000.00 | | $3,203.50 | |
| | Buy | | 6/10/2008 | | 2,500.00 | | $7,960.00 | |
| | Buy | | 6/12/2008 | | 14,400.00 | | $45,666.72 | |
| | Buy | | 6/16/2008 | | 2,700.00 | | $8,681.04 | |
| | Buy | | 6/18/2008 | | 1,900.00 | | $5,962.01 | |
| | Buy | | 6/20/2008 | | 1,000.00 | | $3,180.00 | |
| | Buy | | 6/23/2008 | | 3,100.00 | | $9,725.32 | |
| | Buy | | 6/24/2008 | | 4,500.00 | | $14,140.80 | |
| | Buy | | 7/23/2008 | | 900.00 | | $2,438.10 | |
| | Sell | | 8/1/2008 | | 2,000.00 | | $6,601.96 | |
| | Buy | | 9/22/2008 | | 1,000.00 | | $3,009.00 | |
| | Buy | | 9/25/2008 | | 914.00 | | $2,503.45 | |
| | Buy | | 9/29/2008 | | 719.00 | | $1,878.75 | |
| | Buy | | 9/30/2008 | | 1,622.00 | | $4,237.54 | |
| | Buy | | 10/3/2008 | | 5,050.00 | | $14,130.41 | |
| | Buy | | 10/7/2008 | | 5,981.00 | | $12,075.64 | |
| | Buy | | 10/9/2008 | | 1,835.00 | | $5,154.52 | |
| | Buy | | 10/10/2008 | | 4,600.00 | | $11,771.40 | |
| | Buy | | 4/2/2009 | | 542.00 | | $ 546.88 | |
| | Buy | | 3/2/2009 | | 500000 | | $500,000 | |
| | Buy | | 6/24/2009 | | 7,092.00 | | $8,555.15 | |
| | Buy | | 6/26/2009 | | 3,102.00 | | $3,936.44 | |
| | | | | | | | | |
| | Special Situations Life Sciences Fund, L.P. | |
| | | | | | | | | |
| | | | Trade Date | | Quantity | | Trade Amount | |
| | | | | | | | | |
| | Buy | | 5/19/2008 | | 2,209.00 | | $7,071.67 | |
| | Buy | | 5/20/2008 | | 1,173.00 | | $3,730.14 | |
| | Buy | | 5/21/2008 | | 690.00 | | $2,263.20 | |
| | Buy | | 5/27/2008 | | 2,485.00 | | $7,812.84 | |
| | Buy | | 5/28/2008 | | 1,725.00 | | $5,525.69 | |
| | Buy | | 5/29/2008 | | 1,656.00 | | $5,382.00 | |
| | Buy | | 6/2/2008 | | 1,275.00 | | $4,118.25 | |
| | Buy | | 6/3/2008 | | 2,500.00 | | $7,982.75 | |
| | Buy | | 6/5/2008 | | 6,000.00 | | $19,744.80 | |
| | Buy | | 6/6/2008 | | 2,215.00 | | $7,096.42 | |
| | Buy | | 6/9/2008 | | 1,000.00 | | $3,203.50 | |
| | Buy | | 6/10/2008 | | 2,500.00 | | $7,960.00 | |
| | Buy | | 6/11/2008 | | 1,500.00 | | $4,815.00 | |
| | Buy | | 6/12/2008 | | 14,400.00 | | $45,666.72 | |
| | Buy | | 6/16/2008 | | 2,700.00 | | $8,681.04 | |
| | Buy | | 6/18/2008 | | 1,900.00 | | $5,962.01 | |
| | Buy | | 6/23/2008 | | 3,000.00 | | $9,411.60 | |
| | Buy | | 6/24/2008 | | 4,500.00 | | $14,140.80 | |
| | Buy | | 6/25/2008 | | 1,400.00 | | $4,419.94 | |
| | Buy | | 7/16/2008 | | 100.00 | | $299.90 | |
| | Buy | | 7/23/2008 | | 600.00 | | $1,625.40 | |
| | Buy | | 8/6/2008 | | 2,000.00 | | $6,218.00 | |
| | Buy | | 8/8/2008 | | 2,700.00 | | $8,374.29 | |
| | Buy | | 9/25/2008 | | 517.00 | | $1,416.06 | |
| | Buy | | 9/29/2008 | | 406.00 | | $1,060.88 | |
| | Buy | | 9/30/2008 | | 917.00 | | $2,395.70 | |
| | Buy | | 10/3/2008 | | 2,854.00 | | $7,985.78 | |
| | Buy | | 10/9/2008 | | 1,027.00 | | $2,884.84 | |
| | Buy | | 10/10/2008 | | 2,576.00 | | $6,591.98 | |
| | Buy | | 1/14/2009 | | 54.00 | | $54.49 | |
| | Buy | | 1/23/2009 | | 400.00 | | $443.60 | |
| | Buy | | 3/4/2009 | | 300.00 | | $305.70 | |
| | Buy | | 3/5/2009 | | 1,500.00 | | $1,538.00 | |
| | Buy | | 3/6/2009 | | 300.00 | | $302.70 | |
| | Buy | | 3/9/2009 | | 1,000.00 | | $909.00 | |
| | Buy | | 3/11/2009 | | 200.00 | | $201.80 | |
| | Buy | | 3/17/2009 | | 400.00 | | $403.60 | |
| | Buy | | 3/18/2009 | | 1,500.00 | | $1,513.50 | |
| | Buy | | 4/2/2009 | | 308.00 | | $310.77 | |
| | Buy | | 4/27/2009 | | 185.00 | | $186.67 | |
| | Buy | | 5/8/2009 | | 100.00 | | $100.90 | |
| | Buy | | 6/4/2009 | | 1,300.00 | | $1,493.70 | |
| | Buy | | 3/2/2009 | | 750000 | | $750,000 | |
| | Buy | | 6/16/2009 | | 449.00 | | $515.90 | |
| | Buy | | 6/23/2009 | | 600.00 | | $677.40 | |
| | Buy | | 6/24/2009 | | 4,061.00 | | $4,898.82 | |
| | Buy | | 6/26/2009 | | 1,776.00 | | $2,253.74 | |
| | Sell | | 12/18/2009 | | 1,027.00 | | $1,172.10 | |
Raj Maheshwari
| | Date | | Action | | Quantity | | Price | | Amount | | | |
| | | | | | | | | | | | | |
| | 11/2/2009 | | Buy | | 1,000 | | $1.40 | | ($1,408.95) | | CCA | |
| | 10/27/2009 | | Buy | | 400 | | $1.41 | | ($572.95) | | CCA | |
| | 10/27/2009 | | Buy | | 88 | | $1.42 | | ($127.69) | | CCA | |
| | 10/27/2009 | | Buy | | 200 | | $1.48 | | ($302.22) | | CCA | |
| | 12/18/2009 | | Buy | | 1,000 | | $1.24 | | ($1,246.39) | | MMM | |
| | 12/18/2009 | | Buy | | 400 | | $1.23 | | ($492.56) | | MMM | |
| | 12/17/2009 | | Buy | | 400 | | $1.25 | | ($503.25) | | MMM | |
| | 12/17/2009 | | Buy | | 500 | | $1.22 | | ($618.95) | | MMM | |
| | 12/17/2009 | | Buy | | 700 | | $1.25 | | ($880.70) | | MMM | |
| | 12/11/2009 | | Buy | | 1,050 | | $1.26 | | ($1,331.95) | | MMM | |
| | 12/10/2009 | | Buy | | 600 | | $1.27 | | ($770.95) | | MMM | |
| | 12/10/2009 | | Buy | | 100 | | $1.27 | | ($127.87) | | MMM | |
| | 12/10/2009 | | Buy | | 100 | | $1.27 | | ($127.90) | | MMM | |
| | 12/10/2009 | | Buy | | 100 | | $1.27 | | ($127.90) | | MMM | |
| | 12/10/2009 | | Buy | | 100 | | $1.27 | | ($127.90) | | MMM | |
| | 12/10/2009 | | Buy | | 300 | | $1.26 | | ($380.69) | | MMM | |
| | 12/10/2009 | | Buy | | 300 | | $1.25 | | ($377.69) | | MMM | |
| | 12/10/2009 | | Buy | | 400 | | $1.38 | | ($560.95) | | MMM | |
| | 12/9/2009 | | Buy | | 2,300 | | $1.14 | | ($2,628.98) | | MMM | |
| | 12/9/2009 | | Buy | | 650 | | $1.14 | | ($742.97) | | MMM | |
| | 12/8/2009 | | Buy | | 104 | | $1.24 | | ($129.99) | | MMM | |
| | 12/8/2009 | | Buy | | 200 | | $1.25 | | ($251.98) | | MMM | |
| | 12/8/2009 | | Buy | | 600 | | $1.25 | | ($755.94) | | MMM | |
| | 12/8/2009 | | Buy | | 2,096 | | $1.30 | | ($2,733.75) | | MMM | |
| | 11/17/2009 | | Buy | | 1,578 | | $1.50 | | ($2,372.48) | | MMM | |
| | 11/17/2009 | | Buy | | 1,000 | | $1.52 | | ($1,523.47) | | MMM | |
| | 11/5/2009 | | Buy | | 800 | | $1.39 | | ($1,120.95) | | MMM | |
| | 11/3/2009 | | Buy | | 100 | | $1.33 | | ($133.80) | | MMM | |
| | 11/3/2009 | | Buy | | 1,016 | | $1.34 | | ($1,369.59) | | MMM | |
| | 11/3/2009 | | Buy | | 2,000 | | $1.35 | | ($2,708.95) | | MMM | |
| | 11/3/2009 | | Buy | | 1,884 | | $1.35 | | ($2,552.35) | | MMM | |
| | 10/21/2009 | | Buy | | 100 | | $1.56 | | ($158.92) | | MMM | |
| | 10/21/2009 | | Buy | | 100 | | $1.58 | | ($158.98) | | MMM | |
| | 10/21/2009 | | Buy | | 100 | | $1.54 | | ($154.69) | | MMM | |
| | 10/21/2009 | | Buy | | 200 | | $1.53 | | ($307.38) | | MMM | |
| | 10/21/2009 | | Buy | | 200 | | $1.54 | | ($309.37) | | MMM | |
| | 10/21/2009 | | Buy | | 200 | | $1.59 | | ($319.97) | | MMM | |
| | 10/21/2009 | | Buy | | 206 | | $1.55 | | ($325.33) | | MMM | |
| | 10/21/2009 | | Buy | | 300 | | $1.59 | | ($479.96) | | MMM | |
| | 10/21/2009 | | Buy | | 309 | | $1.58 | | ($491.26) | | MMM | |
| | 10/21/2009 | | Buy | | 800 | | $1.53 | | ($1,229.51) | | MMM | |
| | 10/21/2009 | | Buy | | 1,908 | | $1.55 | | ($2,966.35) | | MMM | |
| | 10/21/2009 | | Buy | | 4,800 | | $1.52 | | ($7,304.59) | | MMM | |
| | 10/21/2009 | | Buy | | 200 | | $1.51 | | ($302.36) | | MMM | |
| | 10/21/2009 | | Buy | | 1,785 | | $1.60 | | ($2,864.95) | | MMM | |
| | 10/21/2009 | | Buy | | 1,692 | | $1.56 | | ($2,647.97) | | MMM | |
| | 10/21/2009 | | Buy | | 100 | | $1.56 | | ($156.50) | | MMM | |
| | 7/6/2009 | | Buy | | 1,699 | | $1.20 | | ($2,063.51) | | MMM | |
| | 7/6/2009 | | Buy | | 2,784 | | $1.20 | | ($3,381.29) | | MMM | |
| | 1/27/2009 | | Buy | | 2,600 | | $1.50 | | ($3,907.76) | | MMM | |
| | 1/27/2009 | | Buy | | 400 | | $1.49 | | ($597.19) | | MMM | |
| | 1/14/2009 | | Buy | | 100 | | $1.22 | | ($122.47) | | MMM | |
| | 1/14/2009 | | Buy | | 200 | | $1.20 | | ($240.94) | | MMM | |
| | 1/14/2009 | | Buy | | 300 | | $1.23 | | ($370.41) | | MMM | |
| | 1/14/2009 | | Buy | | 300 | | $1.23 | | ($370.41) | | MMM | |
| | 1/14/2009 | | Buy | | 500 | | $1.25 | | ($627.36) | | MMM | |
| | 1/14/2009 | | Buy | | 500 | | $1.23 | | ($617.36) | | MMM | |
| | 1/14/2009 | | Buy | | 400 | | $1.35 | | ($545.97) | | MMM | |
| | 1/14/2009 | | Buy | | 100 | | $1.30 | | ($131.49) | | MMM | |
| | 1/14/2009 | | Buy | | 100 | | $1.35 | | ($136.49) | | MMM | |
| | 1/5/2009 | | Buy | | 1,000 | | $1.28 | | ($1,282.99) | | MMM | |
| | 1/5/2009 | | Buy | | 400 | | $1.27 | | ($509.19) | | MMM | |
| | 1/5/2009 | | Buy | | 1,600 | | $1.28 | | ($2,052.77) | | MMM | |
| | 1/5/2009 | | Buy | | 1,500 | | $1.28 | | ($1,926.71) | | MMM | |
| | 1/5/2009 | | Buy | | 500 | | $1.27 | | ($637.24) | | MMM | |
| | 1/5/2009 | | Buy | | 2,000 | | $1.28 | | ($2,565.97) | | MMM | |
| | 1/5/2009 | | Buy | | 1,000 | | $1.27 | | ($1,272.98) | | MMM | |
| | 9/24/2009 | | Buy | | 1,556 | | $1.80 | | ($2,807.02) | | RM/SS JT | |
| | 9/24/2009 | | Buy | | 400 | | $1.80 | | ($721.60) | | RM/SS JT | |
| | 9/24/2009 | | Buy | | 44 | | $1.79 | | ($78.94) | | RM/SS JT | |
| | 3/10/2009 | | Buy | | 700 | | $1.29 | | ($908.60) | | RM/SS JT | |
| | 3/10/2009 | | Buy | | 300 | | $1.17 | | ($351.90) | | RM/SS JT | |
| | 1/29/2009 | | Sell | | 39 | | $1.49 | | $58.27 | | RM/SS JT | |
| | 1/29/2009 | | Sell | | 100 | | $1.40 | | $140.40 | | RM/SS JT | |
| | 1/29/2009 | | Sell | | 251 | | $1.41 | | $353.66 | | RM/SS JT | |
| | 1/29/2009 | | Sell | | 1,610 | | $1.49 | | $2,405.34 | | RM/SS JT | |
| | 1/28/2009 | | Buy | | 39 | | $1.49 | | ($58.27) | | RM/SS JT | |
| | 1/28/2009 | | Buy | | 100 | | $1.40 | | ($140.40) | | RM/SS JT | |
| | 1/28/2009 | | Buy | | 251 | | $1.41 | | ($353.66) | | RM/SS JT | |
| | 1/28/2009 | | Buy | | 1,610 | | $1.49 | | ($2,405.34) | | RM/SS JT | |
| | 1/28/2009 | | Buy | | 251 | | $1.41 | | ($353.66) | | RM/SS JT | |
| | 1/28/2009 | | Buy | | 1,610 | | $1.49 | | ($2,405.34) | | RM/SS JT | |
| | 1/28/2009 | | Buy | | 100 | | $1.40 | | ($140.40) | | RM/SS JT | |
| | 1/28/2009 | | Buy | | 39 | | $1.49 | | ($58.27) | | RM/SS JT | |
| | 1/14/2009 | | Buy | | 1,800 | | $1.35 | | ($2,437.20) | | RM/SS JT | |
| | 1/14/2009 | | Buy | | 100 | | $1.30 | | ($130.40) | | RM/SS JT | |
| | 1/14/2009 | | Buy | | 100 | | $1.35 | | ($135.40) | | RM/SS JT | |
| | 1/13/2009 | | Buy | | 1,900 | | $1.57 | | ($2,990.60) | | RM/SS JT | |
| | 1/13/2009 | | Buy | | 1,000 | | $1.54 | | ($1,548.00) | | RM/SS JT | |
| | 1/13/2009 | | Buy | | 1,500 | | $1.54 | | ($2,318.00) | | RM/SS JT | |
| | 1/13/2009 | | Buy | | 100 | | $1.54 | | ($154.40) | | RM/SS JT | |
| | 1/6/2010 | | Buy | | 400 | | $1.28 | | ($520.00) | | SS IRA | |
| | 2/24/2010 | | Buy | | 900 | | $1.25 | | ($1,133.95) | | MS TRUST | |
| | 2/24/2010 | | Buy | | 2,000 | | $1.28 | | ($2,568.95) | | MS TRUST | |
| | 2/24/2010 | | Buy | | 1,600 | | $1.24 | | ($1,992.95) | | MS TRUST | |
| | 12/16/2009 | | Buy | | 1,400 | | $1.34 | | ($1,882.96) | | MS TRUST | |
| | 12/16/2009 | | Buy | | 400 | | $1.30 | | ($521.99) | | MS TRUST | |
| | 12/14/2009 | | Buy | | 300 | | $1.33 | | ($401.99) | | MS TRUST | |
| | 12/14/2009 | | Buy | | 500 | | $1.32 | | ($662.47) | | MS TRUST | |
| | 12/14/2009 | | Buy | | 100 | | $1.33 | | ($133.99) | | MS TRUST | |
| | 12/3/2009 | | Buy | | 200 | | $1.30 | | ($261.79) | | MS TRUST | |
| | 12/3/2009 | | Buy | | 800 | | $1.28 | | ($1,031.16) | | MS TRUST | |
| | 12/3/2009 | | Buy | | 200 | | $1.33 | | ($267.79) | | MS TRUST | |
| | 12/3/2009 | | Buy | | 800 | | $1.28 | | ($1,031.16) | | MS TRUST | |
| | 9/24/2009 | | Buy | | 850 | | $1.80 | | ($1,538.95) | | MS TRUST | |
| | 5/27/2009 | | Buy | | 1,600 | | $1.34 | | ($2,166.36) | | MS TRUST | |
| | 5/27/2009 | | Buy | | 400 | | $1.31 | | ($527.59) | | MS TRUST | |
| | 1/29/2009 | | Sell | | 200 | | $1.40 | | $288.95 | | MS TRUST | |
| | 1/28/2009 | | Buy | | 200 | | $1.40 | | ($288.95) | | MS TRUST | |
| | 1/28/2009 | | Buy | | 200 | | $1.40 | | ($288.95) | | MS TRUST | |
| | 2/11/2008 | | Buy | | 150 | | $4.52 | | ($687.95) | | MS TRUST | |
| | 3/8/2010 | | Buy | | 10,000 | | $1.25 | | ($12,659.00) | | MS TRUST | |
| | 12/31/2009 | | Buy | | 5,000 | | $1.21 | | ($6,040.75) | | MS TRUST | |
| | 12/31/2009 | | Buy | | 2,300 | | $1.21 | | ($2,812.44) | | MS TRUST | |
| | 12/31/2009 | | Buy | | 1,500 | | $1.25 | | ($1,891.50) | | MS TRUST | |
| | 12/30/2009 | | Buy | | 5,000 | | $1.21 | | ($6,040.75) | | MS TRUST | |
| | 12/29/2009 | | Buy | | 2,300 | | $1.21 | | ($2,812.44) | | MS TRUST | |
| | 12/17/2009 | | Buy | | 2,256 | | $1.13 | | ($2,571.84) | | MS TRUST | |
| | 12/15/2009 | | Buy | | 1,293 | | $1.25 | | ($1,635.64) | | MS TRUST | |
| | 12/14/2009 | | Buy | | 5,100 | | $1.29 | | ($6,636.12) | | MS TRUST | |
| | 12/9/2009 | | Buy | | 18,500 | | $1.30 | | ($24,225.75) | | MS TRUST | |
| | 12/8/2009 | | Buy | | 17,486 | | $1.15 | | ($20,283.76) | | MS TRUST | |
| | 10/1/2009 | | Buy | | 3,101 | | $1.70 | | ($5,290.62) | | MS TRUST | |
| | 9/1/2009 | | Buy | | 2,700 | | $1.74 | | ($4,748.49) | | MS TRUST | |
| | 5/28/2009 | | Buy | | 18,108 | | $1.33 | | ($24,295.50) | | MS TRUST | |
| | 5/20/2009 | | Buy | | 14,392 | | $1.28 | | ($18,551.29) | | MS TRUST | |
| | 5/15/2009 | | Buy | | 5,000 | | $1.10 | | ($5,535.00) | | MS TRUST | |
| | 5/14/2009 | | Buy | | 7,500 | | $1.10 | | ($8,325.00) | | MS TRUST | |
| | 5/13/2009 | | Buy | | 20,000 | | $1.17 | | ($23,622.00) | | MS TRUST | |
| | 5/12/2009 | | Buy | | 5,000 | | $1.04 | | ($5,272.00) | | MS TRUST | |
| | 5/8/2009 | | Buy | | 10,000 | | $1.15 | | ($11,587.00) | | MS TRUST | |
| | 5/5/2009 | | Buy | | 2,500 | | $1.17 | | ($2,950.75) | | MS TRUST | |
| | 5/4/2009 | | Buy | | 7,500 | | $1.16 | | ($8,767.50) | | MS TRUST | |
| | 4/30/2009 | | Buy | | 5,937 | | $1.13 | | ($6,739.09) | | MS TRUST | |
| | 4/29/2009 | | Buy | | 2,900 | | $1.10 | | ($3,210.88) | | MS TRUST | |
| | 4/20/2009 | | Buy | | 1,163 | | $1.08 | | ($1,276.74) | | MS TRUST | |
| | 4/9/2009 | | Buy | | 4,820 | | $1.18 | | ($5,745.79) | | MS TRUST | |
| | 4/9/2009 | | Buy | | 2,680 | | $1.18 | | ($3,199.73) | | MS TRUST | |
| | 3/28/2008 | | Buy | | 8,500 | | $4.01 | | ($34,266.90) | | MS TRUST | |
| | 3/27/2008 | | Buy | | 1,500 | | $3.65 | | ($5,512.05) | | MS TRUST | |
| | 1/28/2009 | | Buy | | 2,000 | | $1.51 | | ($3,025.75) | | RM IRA | |
| | 2/11/2009 | | Buy | | 1,500 | | $1.51 | | ($2,268.30) | | RM IRA | |
| | 2/11/2009 | | Buy | | 3,000 | | $1.51 | | ($4,540.65) | | RM IRA | |
| | 3/10/2009 | | Buy | | 1,500 | | $1.29 | | ($1,938.75) | | RM IRA | |
| | 3/10/2009 | | Buy | | 2,000 | | $1.30 | | ($2,605.75) | | RM IRA | |
| | 4/29/2009 | | Buy | | 1,300 | | $1.06 | | ($1,380.32) | | RM IRA | |
| | 4/29/2009 | | Buy | | 1,700 | | $1.06 | | ($1,810.50) | | RM IRA | |
| | 5/13/2009 | | Buy | | 900 | | $1.21 | | ($1,090.86) | | RM IRA | |
| | 5/13/2009 | | Buy | | 1,100 | | $1.20 | | ($1,316.50) | | RM IRA | |
| | 5/13/2009 | | Buy | | 1,600 | | $1.21 | | ($1,936.21) | | RM IRA | |
| | 7/15/2009 | | Buy | | 1,000 | | $1.27 | | ($1,270.85) | | RM IRA | |
| | 9/21/2009 | | Buy | | 111 | | $1.81 | | ($201.45) | | RM IRA | |
| | 9/21/2009 | | Buy | | 800 | | $1.81 | | ($1,450.87) | | RM IRA | |
| | 9/21/2009 | | Buy | | 900 | | $1.86 | | ($1,675.86) | | RM IRA | |
| | 9/21/2009 | | Buy | | 6,489 | | $1.81 | | ($11,773.49) | | RM IRA | |
| | 9/22/2009 | | Buy | | 200 | | $1.75 | | ($349.00) | | RM IRA | |
| | 9/22/2009 | | Buy | | 200 | | $1.79 | | ($357.98) | | RM IRA | |
| | 9/22/2009 | | Buy | | 1,100 | | $1.75 | | ($1,925.00) | | RM IRA | |
| | 11/3/2009 | | Buy | | 500 | | $1.37 | | ($682.95) | | RM IRA | |
| | 2/9/2010 | | Buy | | 250 | | $1.34 | | ($333.95) | | RM IRA | |
| | 2/9/2010 | | Buy | | 450 | | $1.34 | | ($601.91) | | RM IRA | |
| | 11/2/2009 | | Buy | | 2,600 | | $1.41 | | ($3,676.50) | | RM IBKR | |
| | 10/29/2009 | | Buy | | 2,700 | | $1.45 | | ($3,928.00) | | RM IBKR | |
| | 10/27/2009 | | Buy | | 5,300 | | $1.46 | | ($7,732.50) | | RM IBKR | |
| | 10/22/2009 | | Buy | | 3,000 | | $1.59 | | ($4,755.00) | | RM IBKR | |
| | 8/5/2009 | | Buy | | 2,000 | | $1.43 | | ($2,866.00) | | RM IBKR | |
Richard van den Broek
| | Transaction Type | | Trade Date | | Quantity | | Trade Amount | |
| | BUY | | 12/31/2008 | | 3,800 | | $4,057.64 | |
| | BUY | | 1/20/2009 | | 1,300 | | $1,660.75 | |
| | BUY | | 2/19/2009 | | 75,000 | | $79,500.00 | |
| | BUY | | 2/19/2009 | | 100 | | $123.50 | |
| | BUY | | 2/23/2009 | | 100,000 | | $106,000 | |
| | BUY | | 2/2/2010 | | 200 | | $281.50 | |
| | BUY | | 2/3/2010 | | 200 | | $282.00 | |
| | BUY | | 2/4/2010 | | 100 | | $141.50 | |
| | BUY | | 2/5/2010 | | 100 | | $138.00 | |
| | BUY | | 2/8/2010 | | 100 | | $137.00 | |
| | BUY | | 2/10/2010 | | 100 | | $135.50 | |
| | BUY | | 2/11/2010 | | 200 | | $271.00 | |
| | BUY | | 2/12/2010 | | 100 | | $135.00 | |
| | BUY | | 2/17/2010 | | 100 | | $134.00 | |
| | BUY | | 2/18/2010 | | 100 | | $135.00 | |
| | BUY | | 2/19/2010 | | 100 | | $131.50 | |
| | BUY | | 2/23/2010 | | 100 | | $124.00 | |
| | BUY | | 2/24/2010 | | 100 | | $125.00 | |
| | BUY | | 3/2/2010 | | 200 | | $253.00 | |
| | BUY | | 3/3/2010 | | 200 | | $236.00 | |
| | BUY | | 3/4/2010 | | 300 | | $353.00 | |
| | BUY | | 3/8/2010 | | 100 | | $123.00 | |
| | BUY | | 3/9/2010 | | 100 | | $138.00 | |
PRELIMINARY COPY - SUBJECT TO COMPLETION
WHITE PROXY CARD
RESPONSE GENETICS, INC.
2010 ANNUAL MEETING OF STOCKHOLDERS
THIS PROXY IS SOLICITED ON BEHALF
OF
SPECIAL SITUATIONS FUND III QP, L.P.
SPECIAL SITUATIONS CAYMAN FUND, L.P.
SPECIAL SITUATIONS LIFE SCIENCES FUND, L.P.
PROXY
Special Situations Fund III QP, L.P., Special Situations Cayman Fund L.P. and Special Situations Life Sciences Fund, L.P. (“SSF” or “we”) are the beneficial owner of 3,350,174 shares of common stock, par value $0.01 per share (“Common Stock”) of Response Genetics, Inc. (“Response” or the “Company”), representing approximately 18.3% of the outstanding Common Stock of the Company.
The undersigned acknowledges receipt of Special Situations Fund III QP, L.P., Special Situations Cayman Fund L.P. and Special Situations Life Sciences Fund, L.P. (collectively “SSF”) proxy materials and hereby appoints Austin W. Marxe and David Sable, M.D., as attorneys and agents with full power of substitution to vote all shares of Common Stock of Response Genetics, Inc. (the “Company”) which the undersigned would be entitled to vote if personally present at the Annual Meeting of Stockholders of the Company scheduled to be held on [_________, _____ __, 2010], at [______], at [__________] and including at any adjournments or postponements thereof and at any meeting called in lieu thereof (the “Annual Meeting”).
The undersigned hereby revokes any other proxy or proxies heretofore given to vote or act with respect to the shares of Common Stock of the Company held by the undersigned, and hereby ratifies and confirms all action the herein named attorneys and proxies, their substitutes, or any of them may lawfully take by virtue hereof. If properly executed, this Proxy will be voted as directed on the reverse side and in the discretion of the herein named attorneys and proxies or their substitutes with respect to any other matters as may properly come before the Annual Meeting which SSF is not aware of a reasonable time before this solicitation.
UNLESS OTHERWISE SPECIFIED IN THE SQUARES OR SPACES PROVIDED IN THIS PROXY, THIS PROXY WILL BE VOTED FOR EACH OF SSF’S NOMINEES FOR DIRECTOR AND FOR THE RATIFICATION OF BDO SEIDMAN, LLP AS THE COMPANY’S INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM. SHOULD OTHER MATTERS, WHICH SSF IS NOT AWARE OF A REASONABLE TIME BEFORE THIS SOLICITATION, BE BROUGHT BEFORE THE ANNUAL MEETING, THE PERSONS NAMED AS PROXIES WILL VOTE ON SUCH MATTERS IN THEIR DISCRETION.
This Proxy will be valid until the sooner of one year from the date indicated on the reverse side and the completion of the Annual Meeting.
IMPORTANT: PLEASE SIGN, DATE AND MAIL THIS PROXY CARD PROMPTLY!
CONTINUED AND TO BE SIGNED ON REVERSE SIDE
WHITE PROXY CARD
1. ELECTION OF DIRECTORS:
Please mark vote as in this example
APPROVAL OF SSF’S PROPOSAL TO ELECT DIRECTORS:
SSF RECOMMENDS A VOTE “FOR” THE NOMINEES LISTED BELOW IN PROPOSAL NO. 1
| Name of Nominee | For All Nominees | Withhold Authority to Vote For All Nominees | For All Except the Nominees Written Below |
| Tom R. DeMeester | o | o | o |
| |
| David M. Greenhouse |
| |
| Raj Maheshwari |
| |
| Robert J. Majteles |
| |
| Austin W. Marxe |
| |
| David B. Sable |
| |
| Michael J. Tillman |
| |
| Richard van den Broek |
| |
| David M. Wurzer |
SSF INTENDS TO USE THIS PROXY TO VOTE “FOR” MESSRS. DEMEESTER, GREENHOUSE, MAHESHWARI, MAJTELES, MARXE, SABLE, TILLMAN, VAN DEN BROEK AND WURZER.
NOTE: IF YOU DO NOT WISH FOR YOUR SHARES TO BE VOTED “FOR” A PARTICULAR SSF NOMINEE, MARK THE “FOR ALL EXCEPT THE NOMINEE(S) WRITTEN BELOW” BOX AND WRITE THE NAME(S) OF THE NOMINEE(S) YOU DO NOT SUPPORT ON THE LINE BELOW. YOUR SHARES WILL BE VOTED FOR THE REMAINING SSF NOMINEE(S).
2. APPROVAL OF THE COMPANY’S PROPOSAL TO RATIFY APPOINTMENT OF BDO SEIDMAN, LLP AS INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE COMPANY’S YEAR ENDING DECEMBER 31, 2010.
| | FOR | | AGAINST | | ABSTAIN | |
| | | | | | | |
DATED: ____________________________
____________________________________
(Signature)
____________________________________
(Signature, if held jointly)
____________________________________
(Title)
WHEN SHARES ARE HELD JOINTLY, JOINT OWNERS SHOULD EACH SIGN. EXECUTORS, ADMINISTRATORS, TRUSTEES, ETC., SHOULD INDICATE THE CAPACITY IN WHICH SIGNING. PLEASE SIGN EXACTLY AS NAME APPEARS ON THIS PROXY.
