Exhibit 99(D)(11)
TENDER AND STOCKHOLDER SUPPORT AGREEMENT
TENDER AND STOCKHOLDER SUPPORT AGREEMENT, dated as of February
5, 2001 (the "AGREEMENT"), by and among Flipside, Inc., a Delaware corporation
("PURCHASER"), Flipside Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of Purchaser ("MERGER SUB"), and Richard Janssen (the
"STOCKHOLDER") whose address is 29345 Castlehill Drive, Agoura Hills, CA 91301.
RECITALS
WHEREAS, Purchaser, Merger Sub and Uproar Inc., a Delaware
corporation (the "COMPANY"), propose to enter into an Agreement and Plan of
Merger, dated as of February 5, 2001 (as the same may be amended or supplemented
from time to time, the "MERGER AGREEMENT"), which provides, among other things,
that Merger Sub will make a cash tender offer (the "OFFER") for all of the
outstanding capital stock of the Company and, after expiration of the Offer,
will merge with and into the Company (the "MERGER"), in each case upon the terms
and subject to the conditions in the Merger Agreement (including EXHIBIT A
thereto) (with all capitalized terms used but not defined herein having the
meanings set forth in the Merger Agreement);
WHEREAS, the Stockholder owns 135,994 shares of common stock,
par value $0.01 per share, of the Company (the "COMMON STOCK") (such shares of
Common Stock, together with any other shares of capital stock of the Company
acquired (whether beneficially or of record) by the Stockholder after the date
hereof and during the term of this Agreement, including any shares acquired by
means of purchase, dividend or distribution, or issued upon the exercise of any
warrants or options, and the conversion of any convertible securities or
otherwise being collectively referred to herein as, the "SUBJECT SHARES");
WHEREAS, as a condition to the willingness of Purchaser and
Merger Sub to enter into the Merger Agreement and make the Offer, Purchaser has
required that the Stockholder agree and, in order to induce Purchaser and Merger
Sub to enter into the Merger Agreement, the Stockholder has agreed, to enter
into this Agreement.
NOW, THEREFORE, to induce Purchaser and Merger Sub to enter
into, and in consideration of their entering into, the Merger Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The Stockholder
hereby represents and warrants to Purchaser and Merger Sub as of the date
hereof in respect of himself as follows:
(a) AUTHORITY. The Stockholder has the legal capacity and all requisite
power and authority to execute and deliver this Agreement and to
perform his obligations and consummate the transactions contemplated
hereby. To the extent applicable, the execution, delivery and
performance by the Stockholder of this Agreement and the consummation
by him of the transactions contemplated hereby have been duly and
validly
authorized by the Stockholder and no other action or proceedings on
the part of the Stockholder are necessary to authorize the execution
and delivery by him of this Agreement and the consummation by him of
the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by the Stockholder, and
constitutes a valid and binding obligation of the Stockholder
enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(b) THE SUBJECT SHARES. The Stockholder is the record and beneficial owner
of, and has good and marketable title to, the Subject Shares, free and
clear of any and all Encumbrances, except as disclosed on ANNEX A. The
Stockholder does not own, of record or beneficially, any shares of
capital stock of the Company (or rights to acquire any such shares)
other than the Subject Shares. Except as otherwise set forth herein,
the Stockholder has the sole right to vote, sole power of disposition,
sole power to issue instructions with respect to the matters set forth
in Sections 3, 4 and 5 hereof, sole power to demand appraisal rights
and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Stockholder's
Subject Shares, with no material limitations, qualification or
restrictions on such rights, subject to applicable federal securities
laws and the terms of this Agreement.
(c) NO CONFLICTS. (A) No material filing with, and no material permit,
authorization, consent or approval of, any state, federal or foreign
public body or authority is necessary for the execution of this
Agreement by the Stockholder and the consummation by the Stockholder of
the transactions contemplated hereby, (B) the execution and delivery of
this Agreement by the Stockholder do not, and the consummation by him
of the transactions contemplated hereby and compliance with the terms
hereof will not, conflict with, or result in any violation of, or
breach or default (with or without notice or lapse of time or both)
under (1) any provision of any material trust, loan or credit
agreement, note, bond, mortgage, indenture, guarantee, lease, license,
contract or other agreement to which he is a party or by which he is
bound, or (2) any material franchise, judgment, order, writ,
injunction, notice, decree, statute, law, ordinance, rule or regulation
applicable to the Stockholder or his property or assets, and (C) the
execution and delivery of this Agreement by the Stockholder do not, and
the consummation by him of the transactions contemplated hereby will
not, violate any material laws applicable to the Stockholder.
(d) The execution and delivery of this Agreement is not conditioned upon
the execution and delivery of any similar agreement by any other
stockholder. The Stockholder is entering into this Agreement
voluntarily without regard to the actions of any other stockholder.
(e) Notwithstanding the foregoing, the Stockholder does not make any
representations and warranties with respect to its Subject Shares to
the extent the
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Stockholder is unable to make such representations and
warranties pursuant to the restrictions set forth in ANNEX A.
2. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGER SUB. Each of
Purchaser and Merger Sub hereby, jointly and severally, represents and
warrants to the Stockholder as of the date hereof as follows:
(a) ORGANIZATION. Each of Purchaser and Merger Sub is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization.
(b) AUTHORITY. Each of Purchaser and Merger Sub has the requisite corporate
power and authority to execute and deliver this Agreement and to
perform its respective obligations and consummate the transactions
contemplated hereby. The execution, delivery and performance by
Purchaser and Merger Sub of this Agreement and the consummation by them
of the transactions contemplated hereby, have been duly and validly
authorized by the Board of Directors of Purchaser and Merger Sub and no
other corporate or other action or proceedings on the part of Purchaser
and Merger Sub are necessary to authorize the execution and delivery by
them of this Agreement and the consummation by them of the transactions
contemplated hereby. This Agreement has been duly and validly executed
and delivered by Purchaser and Merger Sub, and constitutes a valid and
binding obligation of Purchaser and Merger Sub enforceable in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing.
(c) NO CONFLICTS. Except for (i) the filings provided for in Section 2.3 of
the Merger Agreement and the filings required under the Exchange Act
and the Securities Act, (ii) the filings required under the HSR Act,
and any other applicable law governing antitrust or competition
matters, and any Consents required or permitted to be obtained pursuant
to the laws of any Foreign Antitrust Laws, (iii) the filings required
under the rules and regulations of the NASD, (iv) the applicable
requirements of state securities, takeover or Blue Sky laws, and (v)
such notifications, filings, authorizing actions, orders and approvals
as may be required under other laws, (A) no material filing with, and
no material permit, authorization, consent or approval of, any state,
federal or foreign public body or authority is necessary for the
execution of this Agreement by Purchaser and Merger Sub and the
consummation by Purchaser and Merger Sub of the transactions
contemplated hereby, (B) the execution and delivery of this Agreement
by Purchaser and Merger Sub do not, and the consummation by them of the
transactions contemplated hereby and compliance with the terms hereof
will not, conflict with, or result in any violation of, or breach or
default (with or without notice or lapse of time or both) under (1) the
charter documents of Purchaser or Merger Sub, (2) any provision of any
material trust, loan or credit agreement, note, bond, mortgage,
indenture, guarantee, lease, license, contract or other agreement to
which Purchaser or Merger Sub is a party or by which it is bound, or
(3) any material franchise, judgment, order, writ, injunction, notice,
decree,
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statute, law, ordinance, rule or regulation applicable to
Purchaser or Merger Sub or their respective properties or assets, and
(C) the execution and delivery of this Agreement by Purchaser and
Merger Sub do not, and the consummation by them of the transactions
contemplated hereby will not, violate any laws applicable to Purchaser
or Merger Sub, except in the case of clauses (B)(2), (B)(3) and (C)
above, for any such conflicts, violations, breaches or defaults that
would not have a material adverse effect on the ability of Purchaser or
Merger Sub to consummate the transactions contemplated hereby.
3. TENDER OF SUBJECT SHARES.
(a) Purchaser and Merger Sub jointly and severally agree subject to the
conditions of the Offer set forth in Exhibit A to the Merger Agreement
and the other terms and conditions of the Merger Agreement, that (i)
Merger Sub will commence the Offer within ten business days after the
date of the Merger Agreement and (ii) Merger Sub will accept for
payment, purchase and pay for, in accordance with the terms of the
Offer and the Merger Agreement, all shares of Common Stock validly
tendered pursuant to the Offer.
(b) The Stockholder agrees (i) to tender the Subject Shares into the Offer
promptly, and in any event no later than the fifth business day
following the commencement of the Offer, or, if the Stockholder has not
received the Offer Documents by such time, within two business days
following receipt of such documents but in any event prior to the date
of expiration of such Offer, in each case, free and clear of any
Encumbrances except those arising from this Agreement and (ii) not to
withdraw any Subject Shares so tendered. If the Stockholder acquires
Subject Shares after the date hereof, the Stockholder shall tender (or
cause the record holder to tender) such Subject Shares on or before
such fifth business day or, if later, on or before the second business
day after such acquisition and shall not withdraw any such Subject
Shares. The Stockholder acknowledges and agrees that Purchaser's and
Merger Sub's obligation to accept for payment and pay for the Subject
Shares in the Offer is subject to the terms and conditions of the
Offer. Notwithstanding the foregoing, to the extent the Stockholder's
rights to tender its Subject Shares (or take any other action) pursuant
to this Section 3(b) are restricted as set forth on ANNEX A hereto,
with respect to such Subject Shares, the Stockholder agrees only to use
his reasonable best efforts to cause such tender (and other actions) to
occur.
(c) The Stockholder will receive the same Offer Consideration received by
other stockholders of the Company in the Offer with respect to Subject
Shares tendered by him in the Offer. In the event that, notwithstanding
the provisions of the first sentence of Section 3(b), any Subject
Shares are for any reason withdrawn from the Offer, such Subject Shares
will remain subject to the terms of this Agreement.
(d) The Stockholder hereby agrees to permit Purchaser to publish and
disclose in the Offer Documents and, if approval of the stockholders of
the Company is required under applicable law, the Proxy Statement
(including all documents and schedules filed with the SEC), his
identity and ownership of Common Stock and the
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nature of the Stockholder's commitments, arrangements and
understandings under this Agreement.
4. AGREEMENT TO VOTE. The Stockholder agrees that:
(a) At any meeting of stockholders of the Company called to vote upon the
Merger Agreement and the transactions contemplated thereby, however
called, or at any adjournment thereof or in connection with any written
consent of the holders of Common Stock or in any other circumstances
upon which a vote, consent or other approval with respect to the Merger
Agreement and the transactions contemplated thereby is sought, the
Stockholder shall be present (in person or by proxy) and shall vote (or
cause to be voted) all Subject Shares then held of record or
beneficially owned by the Stockholder in favor of the Merger and the
Merger Agreement and the transactions contemplated thereby.
(b) At any meeting of stockholders of the Company, however called, or at
any adjournment thereof or in connection with any written consent of
the holders of Common Stock or in any other circumstances upon which a
vote, consent or other approval is sought, the Stockholder shall vote
(or cause to be voted) all Subject Shares then held of record or
beneficially owned by the Stockholder against any action or agreement
(other than the Merger Agreement or the transactions contemplated
thereby) that would impede, interfere with, delay, postpone or attempt
to discourage the Merger, the Offer or the other transactions
contemplated by this Agreement and the Merger Agreement, including, but
not limited to: (i) any Acquisition Proposal; (ii) any action that is
likely to result in a breach in any respect of any representation,
warranty, covenant or any other obligation or agreement of the Company
under the Merger Agreement or result in any of the conditions set forth
in Exhibit A to the Merger Agreement not being fulfilled; (iii) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company and/or its
Subsidiaries; (iv) a sale, lease or transfer of a material amount of
assets of the Company and its Subsidiaries or a reorganization,
recapitalization, dissolution, winding up or liquidation of the Company
and/or its Subsidiaries; (v) any change in the management or board of
directors of the Company, except as otherwise agreed to in writing by
Purchaser; (vi) any material change in the present capitalization or
dividend policy of the Company; or (vii) any other material change in
the Company's corporate structure, business, certificate of
incorporation or bylaws.
(c) The Stockholder understands and acknowledges that Purchaser and Merger
Sub are entering into the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Agreement.
(d) Except as expressly set forth in this Section 4, the Stockholder shall
retain all of its voting rights with respect to the Subject Shares.
(e) Notwithstanding the foregoing Sections (a) through (d), to the extent
the Stockholder's voting rights (and rights to take such other actions
specified in Sections
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4(a) and (b)) are restricted as set forth on ANNEX A, with respect
to such Subject Shares, the Stockholder agrees only to use his
reasonable best efforts to cause the actions specified in Sections
(a) through (d) hereof.
5. RESTRICTION ON TRANSFER. The Stockholder agrees not (a) to
sell, transfer, pledge, encumber, assign or otherwise dispose of (collectively,
"TRANSFER"), or enter into any contract, option or other arrangement or
understanding with respect to the Transfer by the Stockholder of, any of the
Subject Shares or offer any interest in any thereof to any Person other than
pursuant to the terms of the Offer, the Merger or this Agreement, (b) to enter
into any voting arrangement or understanding, whether by proxy, power of
attorney, voting agreement, voting trust or otherwise with respect to the
Subject Shares, or (c) take any action that would make any representation or
warranty of the Stockholder contained herein untrue or incorrect in any material
respect or have the effect of preventing or disabling the Stockholder from
performing its obligations under this Agreement.
6. NO SOLICITATION OF ACQUISITION PROPOSALS. The Stockholder
shall not, and shall not authorize, permit or cause any of its employees, agents
and representatives (including the Financial Advisor or any investment banker,
attorney or accountant retained by the Company or any of its Subsidiaries) to,
directly or indirectly, (i) initiate, solicit, or otherwise encourage any
inquiries or the making of any proposal or offer with respect to an Acquisition
Proposal or (ii) initiate or engage in any negotiations concerning, or provide
any confidential information or data to, or have any discussions with, any
person or entity relating to an Acquisition Proposal, whether made before or
after the date of this Agreement, or otherwise facilitate any effort or attempt
to make or implement or consummate an Acquisition Proposal. The Stockholder
shall immediately communicate to Purchaser, to the same extent as is required by
the Company pursuant to Section 8.9(c) of the Merger Agreement, the terms, and
other information concerning, any proposal, discussion, negotiation or inquiry
and the identity of the party making such proposal or inquiry which the
Stockholder may receive in respect of any such Acquisition Proposal. Any action
taken or omitted to be taken by the Company or any member of the Board of
Directors of the Company, including any action taken by the Stockholder in the
Stockholder's capacity as a director or officer of the Company, in accordance
with Section 8.9(b) of the Merger Agreement shall be deemed not to violate this
Section 6.
7. FURTHER ASSURANCES. Upon the terms and subject to the
conditions hereof, each of the parties hereto shall use its reasonable best
efforts to take, or cause to be taken, all appropriate action, and to do or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement. Without limiting the foregoing, each party
hereto will, from time to time and without further consideration, execute and
deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments and shall take all such other action
as any other party may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement, including (a)
vesting good title to the Subject Shares in Merger Sub and (b) using its
reasonable best efforts to make promptly all regulatory filings and
applications, including, without limitation, under the HSR Act, and to obtain
all licenses, permits, consents, approvals, authorizations, qualification and
orders of governmental authorities and parties to contracts as are necessary for
the consummation of the transactions
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contemplated by this Agreement. Without in any way limiting the foregoing,
the Stockholder shall, as soon as practicable but in no event later than the
date on which the Stockholder is obligated to tender his Subject Shares
pursuant to Section 3(b) or Section 3(c), obtain the release of the
Encumbrances set forth on ANNEX A hereto.
8. TERMINATION. Except for Section 10 (and Sections 7 and 11
through 15 to the extent they relate thereto), which shall terminate in
accordance with the terms set forth therein, this Agreement, and all
obligations, agreements and waivers hereunder, will terminate and be of no
further force and effect on the earlier of: (a) 180 days after the date the
Merger Agreement is terminated in accordance with its terms; and (b) the
Effective Time; PROVIDED, HOWEVER, that nothing herein shall relieve any party
from liability for any breach hereof.
9. WAIVER OF APPRAISAL AND DISSENTER'S RIGHTS. The Stockholder
waives and agrees not to exercise any dissent from the Merger that the
Stockholder may have with respect to the Stockholder's Subject Shares.
10. STOCKHOLDER CAPACITY. The Stockholder signs solely in its
capacity as the record holder and beneficial owner of the Stockholder's Subject
Shares and nothing herein shall limit or affect any actions taken by the
Stockholder in his capacity as an officer or director of the Company to the
extent not prohibited by the Merger Agreement. This Section shall survive
termination of this Agreement.
11. PURCHASER GUARANTEE. Purchaser hereby guarantees the due
performance of any and all obligations and liabilities of Merger Sub under or
arising out of this Agreement and the transactions contemplated hereby.
12. ENFORCEMENT. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to the remedy of
specific performance of such provisions and to an injunction or injunctions
and/or such other equitable relief as may be necessary to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any federal or state court located in New York, New York or Los
Angeles, California, this being in addition to any other remedy to which they
are entitled at law or in equity. In addition, each of the parties hereto (a)
consents to submit such party to the personal jurisdiction of any federal or
state court located in New York, New York or Los Angeles, California in the
event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (b) agrees that such party will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, (c) agrees that such party will not bring any action relating to
this Agreement or the transactions contemplated hereby in any court other than a
federal or state court sitting in New York, New York or Los Angeles, California
and (d) waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
13. STOP TRANSFER ORDER; LEGEND. In furtherance of this
Agreement, concurrently herewith, the Stockholder shall, and hereby does
authorize the Company or its
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counsel, to notify the Company's transfer agent that there is a stop transfer
order with respect to all of the Subject Shares (and that this Agreement
places limits on the voting and transfer of such shares). If requested by
Purchaser, the Stockholder agrees as promptly as is reasonably practicable to
apply a legend to all certificates representing the Subject Shares referring
to any and all rights granted to Purchaser by this Agreement; PROVIDED that,
no such legend shall restrict the transfer of the Subject Shares if such
transfer is made pursuant to the Offer.
14. ADJUSTMENTS TO PREVENT DILUTION, ETC. In the event of a stock
dividend or distribution, or any change in the Company's Common Stock by reason
of any stock dividend, split-up, reclassification, recapitalization,
combination, exchange of shares or the like, the term "Subject Shares" shall be
deemed to refer to and include the Subject Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Subject Shares may be changed or exchanged. In such event, the amount to be
paid per share by Purchaser shall be proportionately adjusted.
15. GENERAL PROVISIONS.
(a) AMENDMENTS. This Agreement may not be modified, altered,
supplemented or amended except by an instrument in writing signed by
each of the parties hereto.
(b) NOTICE. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally
or sent by overnight courier (providing proof of delivery) to Purchaser
or Merger Sub in accordance with Section 11.2 of the Merger Agreement
and to the Stockholder at the address set forth above (or to such other
address as any party may have furnished to the other parties in writing
in accordance herewith).
(c) INTERPRETATION. When a reference is made in this Agreement
to Sections, such reference shall be to a Section to this Agreement
unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(d) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of the
counterparts have been signed by each of the parties and delivered to
the other party, it being understood that each party need not sign the
same counterpart.
(e) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (including, without limitation, the documents and instruments
referred to herein), (i) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof and
(ii) is not intended to confer upon any person or entity other than the
parties hereto any rights or remedies hereunder.
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(f) BINDING AGREEMENT. This Agreement and the obligations
hereunder shall attach to the Subject Shares and shall be binding upon
the parties and any person or entity to which legal or beneficial
ownership of the Subject Shares shall pass, whether by operation of law
or otherwise, including, without limitation, the Stockholder's
administrators or successors. Notwithstanding any transfer of Subject
Shares, the transferor shall remain liable for the performance of all
obligations of the transferor under this Agreement.
(g) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware,
without reference to the conflict of laws principles thereof.
(h) COSTS AND EXPENSES. Whether or not the Offer or the Merger
is consummated, all costs and expenses incurred in connection with this
Agreement and the consummation of the transactions contemplated hereby
shall be paid by the party incurring such expenses.
(i) ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of
Stockholder or Merger Sub and Purchaser, as the case may be, PROVIDED
that Merger Sub or Purchaser may assign, in its respective sole
discretion, its rights and obligations hereunder to any direct or
indirect subsidiary of Purchaser.
(j) SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner
as to be effective and valid under applicable law but if any provision
or portion of any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal
or unenforceable provision or portion of any provision had never been
contained herein.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, Purchaser, Merger Sub and the Stockholder
have caused this Agreement to be signed by an authorized person as of the date
first written above.
PURCHASER:
FLIPSIDE, INC.
By: /s/ Hubert Joly
-------------------------------------
Name: Hubert Joly
Title: Chairman
MERGER SUB:
FLIPSIDE ACQUISITION CORPORATION
By: /s/ Scott Tollefsen
--------------------------------------
Name: Scott Tollefsen
Title: Secretary
STOCKHOLDER
RICHARD JANSSEN
/s/ Richard Janssen
--------------------------------------
S-1
ANNEX A
1. Mr. Janssen is restricted from transferring 135,994 Subject Shares pursuant
to a letter agreement between him and the Company in connection with the
acquisition by the Company of iwin.com, Inc., a corporation organized under
the laws of Delaware. Certain rights with respect to such shares of Mr,
Janssen are also restricted pursuant to the Target Affiliate Agreement, dated
October 20, 2000, by and among Messrs. Janssen, Kaufman and Krueger, the
Company, Kevin Wendle and Fred Nazem. As of the date hereof, the Stockholder
has received written consent from the Company to enter into this Agreement
and take all necessary actions pursuant hereto.
2. 13,599 Subject Shares held by Mr. Janssen are held in escrow pursuant to the
Escrow Agreement made by and among the Company, Mr. Krueger and The Chase
Manhattan Bank, dated October 20, 2000. Such shares are also included in
the shares described in Footnote 1.
A-1