Exhibit 8
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 ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the
"Stockholder") whose address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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 5,343,775
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
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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
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the 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
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bound, or (3) any material franchise, judgment, order,
writ, injunction, notice, decree, 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
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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 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.
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(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
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
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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 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
rights of appraisal or rights to 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
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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
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)
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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.
(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/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Chairman
MERGER SUB:
FLIPSIDE ACQUISITION CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Secretary
STOCKHOLDER
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
S-1
ANNEX A
1. ▇▇. ▇▇▇▇▇▇▇ is restricted from transferring
3,967,288 Subject Shares pursuant to letter agreement
between him and the Company in connection with the
acquisition by the Company of ▇▇▇▇.▇▇▇, Inc., a
corporation organized under the laws of Delaware.
Certain rights with respect to such shares of ▇▇.
▇▇▇▇▇▇▇ are also restricted pursuant to the Target
Affiliate Agreement, dated October 20, 2000, by and
among Messrs. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, the
Company, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇. 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. 396,728 Subject Shares held by ▇▇. ▇▇▇▇▇▇▇ are held
in escrow pursuant to the Escrow Agreement made by
and among the Company, ▇▇. ▇▇▇▇▇▇▇ and The Chase
Manhattan Bank, dated October 20, 2000. Such shares
are also included in the shares described in Footnote
1.
3. ▇▇. ▇▇▇▇▇▇▇ is restricted from transferring 1,311,386
of his Subject Shares pursuant to a letter agreement
between him and the Company in connection with the
acquisition by the Company of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
Inc., a corporation organized under the laws of
Delaware ("TMP"). As of the date hereof, he has
received written consent from the Company to enter
into this Agreement and take all necessary actions
pursuant hereto.
4. 131,193 Subject Shares held by ▇▇. ▇▇▇▇▇▇▇ are held
in escrow pursuant to the Escrow Agreement by and
among the Company, ▇▇. ▇▇▇▇▇▇▇ and certain former
stockholders of TMP, dated December 14, 2000. Such
shares are also included in the shares described in
Footnote 3.
5. 529,307 Subject Shares held by ▇▇. ▇▇▇▇▇▇▇ are held
in escrow pursuant to the Nasdaq Escrow Agreement by
and among the Company, ▇▇. ▇▇▇▇▇▇▇ and certain former
stockholders of TMP, dated as of December 14, 2000.
Such shares are also included in the shares described
in Footnote 3.
A-1