EXHIBIT 9.1
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of August 2, 2000,
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is entered into by and among Morgan Stanley Capital Partners III, L.P., Morgan
Stanley Capital Investors, L.P., MSCP III 892 Investors, L.P., James A. Cusumano
and Ricardo B. Levy (each a "Stockholder Party"), Synotex Company, Inc. a
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Delaware corporation ("Parent"), and Catalytica, Inc., a Delaware corporation
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(the "Company").
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WHEREAS, simultaneously with the execution of this Agreement, Parent,
Synotex Acquisition Corporation, a wholly owned subsidiary of Parent ("Sub"),
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and the Company are entering into an Agreement and Plan of Merger, dated as of
the date hereof (as the same may be amended or supplemented, the "Merger
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Agreement"), providing, among other things, for Sub to merge with and into the
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Company (the "Merger"); and
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WHEREAS, as of the date hereof, each Stockholder Party is the
Beneficial Owner (as defined below) of, and has the sole right to vote and
dispose of, (a) the shares of common stock, par value $0.001 per share
("Ordinary Common Stock"), of the Company, (b) the shares of Class A common
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stock, par value $0.001 per share ("Class A Common Stock"), of the Company
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and/or (c) the shares of Class B common stock, par value $0.001 per share
("Class B Common Stock" and, together with the Ordinary Common Stock and the
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Class A Common Stock, "Common Stock"), of the Company set forth in Schedule A
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(the "Owned Shares"), in each case together with the associated preferred stock
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purchase rights issued pursuant to that certain Rights Agreement, dated as of
October 23, 1996, as amended as of July 28, 1997 and as amended as of the date
hereof, between the Company and ChaseMellon Shareholder Services, L.L.P., a New
Jersey limited liability company; and
WHEREAS, as an inducement and a condition to its entering into the
Merger Agreement and incurring the obligations set forth therein, Parent has
required that each Stockholder Party enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained herein
and in the Merger Agreement, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Certain Definitions. Capitalized terms used but not defined in
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this Agreement are used in this Agreement with the meanings given to such terms
in the Merger Agreement. In addition, for purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any Person
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that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified. For
purposes of this Agreement, with respect to any Stockholder Party, "Affiliate"
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shall not include the Company and the Persons that directly, or indirectly
through one or more intermediaries, are controlled by the Company.
"Alternative Transaction" has the meaning set forth in Section 2(b)
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hereof.
"Beneficially Owned" or "Beneficial Ownership" with respect to any
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securities means having beneficial ownership of such securities (as determined
pursuant to Rule 13d-3
under the Exchange Act, disregarding the phrase "within 60 days" in paragraph
(d)(1)(i) thereof), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all Affiliates of such Person and
all other Persons with whom such Person would constitute a "Group" within the
meaning of Section 13(d) of the Exchange Act and the rules promulgated
thereunder.
"Beneficial Owner" with respect to any securities means a Person who
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has Beneficial Ownership of such securities.
"Company Meeting" has the meaning set forth in Section 3 hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Person" means an individual, corporation, partnership, limited
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liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Proposed Business Combination" means the transactions contemplated by
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the Merger Agreement.
"Transfer" means, with respect to a security, the sale, transfer,
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pledge, hypothecation, encumbrance, assignment or disposition of such security
or the Beneficial Ownership thereof, the offer to make such a sale, transfer or
other disposition, and each option, agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing. As a verb, "Transfer"
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shall have a correlative meaning.
2. No Disposition or Solicitation.
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(a) Each Stockholder Party agrees that from and after the date hereof
through the record date with respect to the Company Meeting (as defined below),
except as contemplated by this Agreement, such Stockholder Party will not
Transfer or agree to Transfer any Common Stock Beneficially Owned by such
Stockholder Party other than with Parent's prior written consent, or grant any
proxy or power-of-attorney with respect to any such Common Stock other than
pursuant to this Agreement; provided, however, that any Transfer after the
record date with respect to the Company Meeting shall not include a proxy or
other ability of the transferee to vote such shares.
(b) Each Stockholder Party agrees that from and after the date hereof,
except as contemplated by Section 12 of this Agreement, such Stockholder Party
and its Affiliates and representatives, will not directly or indirectly solicit,
initiate, or encourage any inquiries or proposals from, discuss or negotiate
with, or provide any non-public information to, any Person relating to, or
otherwise facilitate any tender or exchange offer, proposal for a merger,
consolidation or other business combination involving the Company or any of its
subsidiaries or any proposal or offer to acquire in any manner a substantial
equity interest in, or a substantial portion of the assets of, the Company or
any of its subsidiaries other than the Proposed Business Combination (an
"Alternative Transaction").
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(c) Each Stockholder Party agrees that unless required by applicable
law, neither such Stockholder Party nor any of such Stockholder Party's
Affiliates shall make any press release, public announcement or other
communication with respect to Parent or the business or affairs of the Company
or its subsidiaries, including this Agreement and the Merger Agreement and the
transactions contemplated hereby and thereby, without the prior written consent
of Parent. Each Stockholder Party acknowledges and agrees that the terms of this
Agreement shall be disclosed in connection with the announcement of the Merger
Agreement.
3. Stockholder Vote. Each Stockholder Party agrees that (i) at such
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time as the Company conducts a meeting of or otherwise seeks a vote or consent
of its stockholders for the purpose of approving and/or adopting the Merger
Agreement and the Merger (such meeting or any adjournment thereof, or such
consent process, the "Company Meeting"), such Stockholder Party will vote, or
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provide a consent with respect to, all Common Stock having voting rights
(including the Owned Shares) then Beneficially Owned by such Stockholder Party
in favor of the Merger Agreement and the Merger and (ii) such Stockholder Party
will (at any meeting of stockholders or in connection with any consent
solicitation) vote its shares of Common Stock (including the Owned Shares)
against, and it will not consent to, any Alternative Transaction or any action
that would delay, prevent or frustrate the transactions contemplated by the
Merger Agreement.
Without limiting the foregoing, it is understood that the obligations
under clause (i) above shall remain applicable in respect of each meeting of
stockholders of the Company duly called for the purpose of approving the Merger
Agreement and the Merger regardless of the position of the Company's board of
directors as to the Merger or the Proposed Business Combination at the time of
such meeting, and that the obligations under clause (ii) above shall continue to
the extent set forth in Section 10.
4. Reasonable Efforts to Cooperate. Each Stockholder Party will (a)
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use all reasonable efforts to cooperate with the Company in connection with the
transactions contemplated by the Merger Agreement, (b) promptly take such
reasonable actions as are necessary or appropriate to consummate such
transactions, and (c) provide any information reasonably requested by the
Company, Parent or Sub for any regulatory application or filing made or approval
sought for such transactions (including filings with the Securities and Exchange
Commission).
5. Additional Stock. Each Stockholder Party agrees that any
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additional shares of Common Stock acquired by such Stockholder Party or over
which it acquires Beneficial Ownership, whether pursuant to existing stock
option agreements, warrants or otherwise, shall be subject to the provisions of
this Agreement.
6. Proxy Matters. Each Stockholder Party represents and warrants to
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Parent that any proxies heretofore given in respect of its shares of Common
Stock are not irrevocable, and that any such proxies are hereby revoked.
7. Covenant of Stockholder Parties. Each Stockholder Party agrees
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that it will take all action necessary to (i) permit (a) such Stockholder
Party's Owned Shares to be acquired in the Merger and (b) the voting of such
Stockholder Party's Owned Shares in accordance with
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the terms of this Agreement and (ii) prevent creditors in respect of any pledge
of such Stockholder Party's Owned Shares from exercising their rights under such
pledge.
8. Representations, Warranties and Covenants of Stockholder Parties.
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Each Stockholder Party hereby represents and warrants to, and agrees with,
Parent as follows:
(a) Such Stockholder Party has all necessary power and authority and
legal capacity to execute and deliver this Agreement and perform its obligations
hereunder. In the case of each Stockholder Party who is not a natural person, no
other proceedings or actions on the part of such Stockholder Party are necessary
to authorize the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and delivered by
such Stockholder Party and constitutes the valid and binding agreement of such
Stockholder Party, enforceable against such Stockholder Party in accordance with
its terms except to the extent limited by (i) applicable bankruptcy, insolvency
or similar laws affecting creditors' rights or (ii) general equity principles,
whether at law or in equity.
(c) Each Stockholder Party is the sole Beneficial Owner of such
Stockholder Party's Owned Shares. Each Stockholder Party has good and marketable
title (which may include holding in nominee or "street" name) to all of such
Stockholder Party's Owned Shares, free and clear of all liens, claims, options,
proxies, voting agreements and security interests (other than as created by this
Agreement and the restrictions on Transfer under applicable securities laws).
The Owned Shares constitute all of the capital stock of the Company Beneficially
Owned by such Stockholder Party and neither such Stockholder Party nor any of
such Stockholder Party's Affiliates is the Beneficial Owner of, or has any right
to acquire (whether currently upon lapse of time, following the satisfaction of
any conditions, upon the occurrence of any event or any combination of the
foregoing) any Common Stock or any securities convertible into or exchangeable
or exercisable for Common Stock.
(d) Neither the execution and delivery of this Agreement by such
Stockholder Party nor the consummation of the transactions contemplated hereby
will (i) conflict with, result in any violation of, require any consent under or
constitute a default (whether with notice or lapse of time or both) by such
Stockholder Party under any mortgage, bond, indenture, agreement, instrument or
obligation to which such Stockholder Party is a party or by which such
Stockholder Party or any of the Owned Shares is bound (or, in the case of each
Stockholder Party that is not a natural person, such Stockholder Party's
constituent documents); (ii) violate any judgment, order, injunction, decree or
award of any court, administrative agency or governmental body that is binding
on such Stockholder Party; or (iii) constitute a violation by such Stockholder
Party of any law or regulation of any jurisdiction.
(e) Each Stockholder Party understands and acknowledges that Parent
and Sub are entering into the Merger Agreement in reliance upon such Stockholder
Party's execution, delivery and performance of this Agreement.
9. Representations and Warranties of Parent. Parent represents and
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warrants to the Stockholder Parties that Parent has full corporate power and
authority to execute and deliver
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this Agreement and to perform its obligations hereunder. The execution, delivery
and performance of this Agreement by Parent will not constitute a violation of,
conflict with or result in a default under, (i) any contract, understanding or
arrangement to which Parent is a party or by which it is bound or requires the
consent of any other Person or any party pursuant thereto, (ii) any judgment,
decree or order applicable to Parent, or (iii) any law, rule or regulation of
any governmental body, in each case except for violations, conflicts or defaults
that would not have a material adverse effect on the ability of the Parent to
perform its obligations under this Agreement; and this Agreement constitutes a
legal, valid and binding agreement on the part of Parent, enforceable against
Parent in accordance with its terms, except as such enforceability may be
limited by principles applicable to creditors' rights generally or governing the
availability of equitable relief. The execution and delivery by Parent of this
Agreement and the consummation by Parent of the transactions contemplated hereby
have been duly and validly authorized by the Board of Directors of Parent and no
other corporate proceedings on the part of Parent are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Parent.
10. Termination. This Agreement, and all rights and obligations of
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the parties hereunder, shall terminate on the earliest of (a) the Effective Time
and (b) the date upon which the Merger Agreement is terminated.
11. Miscellaneous.
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(a) This Agreement represents the entire understanding of the parties
hereto with reference to the subject matter hereof and supersedes any and all
other oral or written agreements and understandings among the parties heretofore
made.
(b) Except as otherwise provided in this Agreement, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
(c) Except with respect to a Transfer permitted by this Agreement
after the record date with respect to the Company Meeting, this Agreement and
all of the provisions hereof shall be binding upon and inure to the benefit of
the parties and their respective successors, personal or legal representatives,
executors, administrators, heirs, distributees, devisees, legatees and permitted
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party (whether by operation of
law or otherwise) without the prior written consent of the other parties;
provided, that Parent may assign any or all rights under this Agreement to Sub
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or any other subsidiary of Parent. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
(d) This Agreement may not be amended, changed, supplemented, or
otherwise modified or terminated, except upon the execution and delivery of a
written agreement executed by the parties hereto; provided, that Parent may
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waive compliance by any other party with any representation, agreement or
condition otherwise required to be complied with by any other party
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under this Agreement or release any other party from its obligations under this
Agreement, but any such waiver or release shall be effective only if in writing
executed by Parent.
(e) All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) transmitter's confirmation of a
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or when delivered by hand or (c) the expiration of five
business days after the day when mailed by certified or registered mail, postage
prepaid, addressed at the address for such party set forth below.
(i) If to a Stockholder Party, to such Stockholder Party at the
address set forth beside its name on Schedule A hereto with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, N.Y. 10017
Fax: (212) 450-3800
Attention: John Bick, Esq.
and to:
Wilson Sonsini Goodrich & Rosati,
Professional Corporation
One Market, Spear Tower
San Francisco, California 94105
Fax: (415) 947-2099
Attention: Michael J. Kennedy, Esq.
(ii) If to Parent, to:
Synotex Company, Inc.
One Columbia Nitrogen Road
Augusta, GA 30903
Fax: (706) 849-6999
Attention: Corporate Secretary
(iii) With a copy to:
DSM, N.V.
Legal Department
Het Overloon 1, Heerlen
P.O. Box 6500, 6401 JH Heerlen
The Netherlands
Fax: 011-31-45-5787087
Attention: Ton C. M. van der Put, Esq.
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and
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Fax: (212) 225-3999
Attention: William A. Groll, Esq.
(iv) if to the Company:
Catalytica, Inc.
430 Ferguson Drive
Mountain View, California 94043
Fax: (650) 960-8754
Attention: Chief Financial Officer
with a copy to:
Wilson Sonsini Goodrich & Rosati,
Professional Corporation
One Market, Spear Tower
San Francisco, California 94105
Fax: (415) 947-2099
Attention: Michael J. Kennedy, Esq.
or to such other address or facsimile number as the Person to whom notice is
given shall have previously furnished to the others in writing in the manner set
forth above.
(f) If any term, provision, covenant or restriction contained in this
Agreement is held by a court or a federal or state regulatory agency of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions and covenants and restrictions contained in this Agreement
shall remain in full force and effect, and shall in no way be affected, impaired
or invalidated.
(g) Each Stockholder Party acknowledges and agrees that in the event
of any breach of this Agreement, Parent would be irreparably and immediately
harmed and could not be made whole by monetary damages. It is accordingly agreed
that (a) each Stockholder Party will waive, in any action for specific
performance, the defense of adequacy of a remedy at law, and (b) Parent shall be
entitled, in addition to any other remedy to which it may be entitled at law or
in equity, to compel specific performance of this Agreement.
(h) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at
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law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
(i) This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of Delaware.
(j) The section and paragraph captions herein are for convenience of
reference only, do not constitute part of this Agreement and shall not be deemed
to limit or otherwise affect any of the provisions hereof.
(k) This Agreement may be executed in one or more counterparts, each
of which shall be deemed to constitute an original.
12. Stockholder Capacity. No Stockholder Party executing this
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Agreement who is or becomes during the term hereof a director or officer of the
Company makes any agreement or understanding herein in his or her capacity as
such a director or officer. Each Stockholder Party executing this Agreement does
so solely in such Stockholder Party's capacity as the record and/or beneficial
owner of the Owned Shares and nothing herein shall limit or affect any actions
taken or omitted to be taken by a Stockholder Party in his or her capacity as an
officer or director of the Company; provided, that nothing in this Section 12
shall be deemed to permit any Stockholder Party to take any action prohibited by
the Merger Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
MORGAN STANLEY CAPITAL PARTNERS III, L.P.
MORGAN STANLEY CAPITAL INVESTORS, L.P.
MSCP III 892 INVESTORS, L.P.
By: MSCP III, LLC, as General Partner of each
of the limited partnerships named above
By: Morgan Stanley Capital Partners III, Inc.,
as Member
By: /s/ Howard Hoffen
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Howard Hoffen
Managing Director
JAMES A. CUSUMANO
/s/ James A. Cusumano
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RICARDO B. LEVY
/s/ Ricardo B. Levy
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SIGNATURE PAGE TO VOTING AGREEMENT
SYNOTEX COMPANY, INC.
By: /s/ Arnold Gratama van Andel
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Arnold Gratama van Andel
Chairman and President
SIGNATURE PAGE TO VOTING AGREEMENT
CATALYTICA, INC.
By: /s/ Ricardo B. Levy
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Ricardo B. Levy
President and Chief Executive Officer
SIGNATURE PAGE TO VOTING AGREEMENT
SCHEDULE A
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STOCKHOLDER PARTIES
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Name and Address Shares
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Morgan Stanley Capital Partners III, L.P. Class A Common Stock: 11,738,101
1221 Avenue of the Americas Class B Common Stock: 10,375,880
New York, New York 10020
Fax: (212) 762-7951
Attention: Howard Hoffen
Morgan Stanley Capital Investors, L.P. Class A Common Stock: 1,201,776
1221 Avenue of the Americas Class B Common Stock: 1,062,308
New York, New York 10020
Fax: (212) 762-7951
Attention: Howard Hoffen
MSCP III 892 Investors, L.P. Class A Common Stock: 330,123
1221 Avenue of the Americas Class B Common Stock: 291,812
New York, New York 10020
Fax: (212) 762-7951
Attention: Howard Hoffen
James A. Cusumano Ordinary Common Stock: 660,984
430 Ferguson Drive Options exercisable in 60 days: 75,356
Mountain View, California 94043-5272
Fax: (805) 646-2450
Ricardo B. Levy Ordinary Common Stock: 760,368
430 Ferguson Drive Options exercisable in 60 days: 161,312
Mountain View, California 94043-5272
Fax: (650) 968-8754