exv10w1



 





Exhibit 10.1




STOCKHOLDER AGREEMENT




     This STOCKHOLDER AGREEMENT (the “Agreement”) is made and entered into as
of March 3, 2004, between Ask Jeeves, Inc., a Delaware corporation
(“Acquiror”), and the undersigned stockholder (“Holder”) of Interactive Search
Holdings, Inc., a Delaware corporation (“Target”).



RECITALS




     A. Pursuant to an Agreement and Plan of Reorganization dated as of March
3, 2004 (the “Merger Agreement”) by and among Acquiror, Aqua Acquisition Corp.,
a Delaware corporation and wholly-owned subsidiary of Acquiror (“Merger Sub”),
Aqua Acquisition Holdings LLC, a single member Delaware limited liability
company (“Surviving Company”) and wholly-owned subsidiary of Acquiror, and
Target, Merger Sub is merging (the “Step One Merger”) with and into Target,
with Target as the interim surviving corporation (the “Interim Surviving
Corporation”), and immediately thereafter and as part of the same plan, the
Interim Surviving Corporation will be merged with and into the Surviving
Company (the “Step Two Merger,” and together with the Step One Merger, the
“Mergers”) and Target, upon completion of the Step One Merger, will thereby
become a wholly-owned subsidiary of Acquiror.



     B. In order to induce Acquiror to enter into the Merger Agreement, Holder
has entered into this Agreement with Acquiror.



AGREEMENT




     For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:




	 	1.	 	Agreement to Retain Shares.





          (a) Transfer and Encumbrance. Except as contemplated in the Merger
Agreement, Holder agrees not to transfer (except for transfers required to
comply with rules and regulations governing ownership thresholds for bank
holding companies and their affiliates, grants of participation interests
consistent with past business practices, or as may be specifically required by
court order), sell, exchange, pledge or otherwise dispose of or encumber in any
way that would interfere with or prevent Holder from voting the Shares (as
defined below) or any New Shares (as defined in Section 1(b)) in accordance
with this Agreement or the granting and effectiveness of the Proxy with respect
thereto, any shares of the outstanding Common Stock and/or Preferred Stock,
$0.0001 par value per share respectively, of Target held by Holder (in such
number as is indicated on the final page of this Agreement) (the “Shares”) or
any New Shares, or to make any offer or agreement relating thereto, at any time
prior to the Expiration Date (as defined below), except to the extent any
transferee to which any such Shares or New Shares, or any interest therein, is
or may be transferred shall have (i) executed a counterpart of this Agreement
and a proxy in the form attached hereto as Exhibit A (a “Proxy”), and (ii)
agreed in writing to hold such Shares and New Shares, or such interest therein,
subject to all of the terms and conditions set forth in this Agreement. As
used herein, the term “Expiration Date” shall mean the earlier to occur of (i)
such date and time as the Step One Merger shall become effective



 









 







in accordance with the terms and provisions of the Merger Agreement and
Delaware law, or (ii) the date of termination of the Merger Agreement.



          (b) New Shares. Holder agrees that any shares of capital stock of Target
that Holder purchases or with respect to which Holder otherwise acquires
beneficial ownership after the date of this Agreement and prior to the
Expiration Date (“New Shares”) shall be subject to the terms and conditions of
this Agreement to the same extent as if they constituted Shares.



     2. Agreement to Vote Shares. At every meeting of the stockholders of
Target called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders
of Target with respect to any of the following, Holder shall vote the Shares
and any New Shares (i) in favor of approval of the Merger Agreement and the
Mergers and any matter necessary to facilitate the Mergers, and (ii) against
any proposal for any recapitalization, merger, sale of assets or other business
combination (other than the Mergers) between Target and any person or entity
other than Acquiror, or a wholly-owned subsidiary of Acquiror, or any other
action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Target under
the Merger Agreement or which could reasonably be expected to result in any of
the conditions to Target’s obligations under the Merger Agreement not being
fulfilled. This Agreement is intended to bind Holder as a stockholder of Target
only with respect to the specific matters set forth herein.



     3. Irrevocable Proxy. Concurrently with the execution of this Agreement,
Holder agrees to deliver to Acquiror a Proxy, which shall be irrevocable to the
extent provided in Section 212 of the Delaware General Corporation Law,
covering the total number of Shares and New Shares beneficially owned or as to
which beneficial ownership is acquired (as such term is defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) by
Holder set forth therein.



     4. No Solicitation.



          (a) No Solicitation or Negotiation. Except as set forth in this Section
4, Holder shall not, nor shall Holder authorize or permit any of its
subsidiaries or any of its or its subsidiaries’ respective directors, officers,
employees, affiliates [JP MORGAN AGMT TO HAVE SAME LIST OF AFFILIATES AS IN
STANDSTILL AGMT AND HAVE COMMUNICATIONS COVENANTS], investment bankers,
attorneys, accountants or other advisors or representatives (collectively,
“Holder Representatives”) to, directly or indirectly:



                    (i) solicit, initiate, induce, encourage or take any other action to
facilitate any inquiries or the making of any proposal or offer that
constitutes, or could reasonably be expected to lead to, any Acquisition
Proposal (as defined below), including amending or granting any waiver or
release under any standstill or similar agreement with respect to any Target
Capital Stock (as defined in the Merger Agreement);



                    (ii) enter into, continue or otherwise participate in any discussions or
negotiations regarding, furnish to any person any nonpublic information with
respect to, assist or



2









 







participate in any effort or attempt by any person with respect to, or
otherwise cooperate in any way with, any Acquisition Proposal; or



                    (iii) approve, endorse or recommend any Acquisition Proposal or enter into
any letter of intent or agreement relating to any Acquisition Proposal.


Holder agrees that any violation of the restrictions set forth in this Section
4 by any Holder Representative or any affiliate of Holder or any Holder
Representative, whether or not such Person is purporting to act on behalf of
Holder, shall constitute a breach by Holder of this Section 4; provided,
however, that actions taken by or on behalf of Target or its Board of Directors
in accordance with the terms of the Merger Agreement shall not be deemed a
violation of such restrictions by an affiliate of Holder hereunder.




          (b) Notices; Additional Negotiations. Upon obtaining knowledge of any
Acquisition Proposal, Holder shall promptly advise Acquiror orally, with
written confirmation to follow promptly (and in any event within 24 hours), of
any Acquisition Proposal or any request for nonpublic information in connection
with any Acquisition Proposal, or of any inquiry with respect to, or that could
reasonably be expected to lead to, any Acquisition Proposal, the material terms
and conditions of any such Acquisition Proposal or inquiry and the identity of
the person making any such Acquisition Proposal or inquiry. Holder shall not
provide any information to or participate in discussions or negotiations with
the Person making any Acquisition Proposal. Holder shall (i) keep Acquiror
fully informed of the status and details (including any change to the terms) of
any such Acquisition Proposal or inquiry (whether written or oral) on a
reasonably current basis and (ii) provide to Acquiror as soon as practicable
after receipt or delivery thereof copies of all correspondence and other
written material sent or provided to Holder from any third party in connection
with any Acquisition Proposal or sent or provided by Holder, if permitted
hereunder, to any third party in connection with any Acquisition Proposal. In
the event Holder does not notify Acquiror per the terms of this Section 4(b),
Holder shall nonetheless be deemed to have satisfied its obligations to notify
Acquiror as provided in this Section 4(b) if Target shall have satisfied its
obligation to timely provide the relevant information to Acquiror under the
Merger Agreement.



          (c) Cessation of Ongoing Discussions. Holder shall, and shall cause the
Holder Representatives to, cease immediately all discussions and negotiations
regarding any proposal that constitutes, or could reasonably be expected to
lead to, an Acquisition Proposal.



          (d) Definitions. For purposes of this Agreement, “Acquisition Proposal”
means, with respect to Target, any offer or proposal (other than an offer or
proposal by Acquiror, the merger of iWon Holdings, Inc. with and into Focus
Interactive, Inc., or the merger of MyWay, Inc. with and into Focus
Interactive, Inc.) received by Holder relating to any transaction or series of
related transactions other than the transactions contemplated by the Merger
Agreement involving: (i) any acquisition or purchase by any person or “Group”
(as defined under Section 13(d) of the Exchange Act and the rules and
regulations thereunder) of more than a fifteen percent (15%) interest in the
total outstanding voting securities of Target or any of its subsidiaries or any
tender offer or exchange offer that if consummated would result in any person
or Group beneficially owning fifteen percent (15%) or more of the total
outstanding voting securities of Target or any of its subsidiaries or any
merger, consolidation, business



3









 







combination or similar transaction involving Target pursuant to which the
stockholders of such party immediately preceding such transaction hold less
than eighty-five percent (85%) of the equity interests in the surviving or
resulting entity of such transaction, (ii) any sale, lease (other than in the
ordinary course of business), exchange, transfer, license (other than in the
ordinary course of business), acquisition or disposition of more than fifteen
percent (15%) of the assets of Target and its subsidiaries, taken as a whole,
or of any Material Subsidiary (as defined in the Merger Agreement) (iii) any
liquidation, dissolution, recapitalization or other significant corporate
reorganization involving more than fifteen percent (15%) of the assets of
Target and its subsidiaries, taken as a whole, or any Material Subsidiary, (iv)
any other transaction the consummation of which could reasonably be expected to
impede, interfere with, prevent or materially delay the Mergers, or (v) any
public announcement by or on behalf of Target or any of its Representatives or
any of their affiliates (for purposes of this Agreement, as defined in Rule
12b-2 promulgated under the Securities Exchange Act of 1934) or by any third
party of a proposal, plan or intention to do any of the foregoing or any
agreement to engage in any of the foregoing. “Person” shall mean any natural
person, company, corporation, limited liability company, general partnership,
limited partnership, trust, proprietorship, joint venture or business
organization.



          (e) Notwithstanding anything to the contrary stated herein, this Section 4
shall not (i) apply to Holder in his capacity as either an officer or director
of Target (and any actions undertaken or omissions by Holder in any such
capacity shall be governed exclusively by the Merger Agreement) or (ii) limit
the right of any Holder Representative to advise and represent Target in
connection with any unsolicited Acquisition Proposal to the extent Target is
permitted to act with regard to such Acquisition Proposal under the Merger
Agreement.




	 	5.	 	Capture.





          (a) If the Merger Agreement is terminated pursuant to Section 7.1(d) or
7.1(e) thereof (a “Triggering Termination”) and any of the Shares or New Shares
are sold, transferred, exchanged, cancelled or disposed of in connection with,
or as a result of, any Acquisition Proposal (i) that has been consummated prior
to the twelve month anniversary of the date of the Merger Agreement or (ii)
with respect to which Target shall have entered into a definitive agreement
prior to the twelve month anniversary of the date of the Merger Agreement and
such Acquisition Proposal is consummated within twelve months of the date of
such definitive agreement (an “Alternative Disposition”) then, subject to
Section 5(c) below, within three business days after the closing of such
Alternative Disposition, Holder shall tender and pay to, or shall cause to be
tendered and paid to, Acquiror, or its designee, in immediately available
funds, 75% of the Profit (as defined below) realized by Holder from such
Alternative Disposition. For purposes of this Section 5(a), “Profit” means an
amount equal to the excess, if any, of (i) the Alternative Transaction
Consideration (as defined below) over (ii) the Current Transaction
Consideration (as defined below). “Alternative Transaction Consideration”
shall mean all cash, securities, settlement or termination amounts, notes or
other debt instruments, and other consideration received or to be received,
directly or indirectly, by Holder and Holder’s affiliates in connection with or
as a result of such Alternative Disposition or any agreements or arrangements
(including, without limitation, any employment agreement (for the shorter of
the term of such agreement or one year), consulting agreement, non-competition
agreement, confidentiality agreement, settlement agreement and/or release
agreement) entered into, directly



4









 







or indirectly by Holder or any of Holder’s affiliates as a part of or in
connection with the Alternative Disposition or associated Acquisition Proposal.
“Current Transaction Consideration” means all amounts that would have been
payable directly or indirectly by Acquiror to Holder in respect of Holder’s
Shares and New Shares pursuant to the Merger Agreement if the Mergers had
occurred, determined based on the average closing price of Acquiror common
stock on the Nasdaq National Market for the ten (10) trading day period ending
on the trading day prior to the date of the Triggering Termination, plus any
amounts payable to Holder by Acquiror in connection with any agreements or
arrangements (including, without limitation, any employment agreement (for the
shorter of the term of such agreement or one year), consulting agreement,
non-competition agreement, confidentiality agreement, settlement agreement
and/or release agreement). For the sake of clarity, to the extent Acquiror has
already received all or a portion of such Profit from an affiliate of Holder,
Acquiror shall not be entitled to receive from Holder any such amount already
received by Acquiror.



          (b) For the purposes of determining and paying Profit hereunder: (i) all
non-cash items shall be valued based upon the fair market value thereof as
determined by an Independent Expert (as defined below), (ii) all deferred
payments or consideration shall be discounted to reflect a market rate of net
present value thereof as determined by the Independent Expert, (iii) the
payment of Profit on all contingent payments shall be made upon payment of such
contingent payments and (iv) if less than all of Holder’s Shares are subject to
the Alternative Disposition, then the Current Transaction Consideration shall
be deemed to be an amount equal to the Current Transaction Consideration
multiplied by a fraction, the numerator of which is the number of Holder’s
Shares and New Shares sold, transferred, exchanged, cancelled or disposed of in
such Alternative Disposition and the denominator of which is the total number
of Holder’s Shares and New Shares. For purposes of this Agreement, the
Independent Expert shall be jointly selected by Acquiror and Holder; provided,
however, that if Acquiror and Holder cannot agree on the independent expert,
such determination shall be made by a panel of three independent experts which
shall consist of one expert selected by each of Acquiror and Holder and a third
expert selected jointly by the two experts selected by Acquiror and Holder
(whether a single expert or a panel of three experts, the “Independent
Expert”);



          (c) In the event that, after the date of this Agreement, Acquiror agrees
with Target and/or its stockholders to increase the amount of the Current
Transaction Consideration to be paid by Acquiror for the Shares and New Shares
(a “Second Transaction”), then, as may be requested by Acquiror, (i) Holder
shall, and shall cause each of its affiliates who beneficially own any of
Holder’s Shares or New Shares, to either execute and deliver to Acquiror such
documents or instruments as may be necessary to waive the right to receive the
amount of such increase to the extent that such increase would result in any
Profit to Holder or (ii) Holder shall tender and pay, or cause to be tendered
and paid, to Acquiror, or its designee, in immediately available funds and
promptly after receipt thereof, 75% of the Profit to Holder realized from such
Second Transaction. For purposes of this Section 5(c), “Profit” shall mean an
amount equal to the excess, if any, of (i) the Second Transaction Consideration
(as defined below) over (ii) the Current Transaction Consideration. “Second
Transaction Consideration” shall mean all cash, securities, settlement or
termination amounts, notes or other debt instruments, and other consideration
received or to be received, directly or indirectly, by Holder and Holder’s
affiliates in connection with or as a result of such Second Transaction or any
agreements or arrangements (including, without limitation, any employment
agreement (for the shorter of the term of such



5









 







agreement or one year), consulting agreement, non-competition agreement,
confidentiality agreement, settlement agreement and/or release agreement)
entered into, directly or indirectly by Holder or any of Holder’s affiliates as
a part of or in connection with the Second Transaction. For the sake of
clarity, to the extent Acquiror has already received all or a portion of such
Profit from an affiliate of Holder, Acquiror shall not be entitled to receive
from Holder any such amount already received by Acquiror



     6. Representations, Warranties and Covenants of Holder. Holder hereby
represents, warrants and covenants to Acquiror that (i) Holder is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of the
Shares, which at the date of this Agreement and at all times from the date of
this Agreement until and including the Expiration Date will be free and clear
of any liens, claims, options, charges or other encumbrances (except pursuant
to marital property laws) that would interfere with or prevent Holder from
voting the Shares or any New Shares in accordance with this Agreement or the
granting and effectiveness of the Proxy with respect thereto; (ii) Holder does
not beneficially own any shares of capital stock of Target other than the
Shares (excluding shares as to which Holder currently disclaims beneficial
ownership in accordance with applicable law); (iii) Holder has full power and
authority to make, enter into and carry out the terms of this Agreement and the
Proxy; and (iv) the execution and delivery of this Agreement by Holder and the
consummation by Holder of the transactions contemplated hereby have been duly
authorized by all necessary action, if any, on the part of Holder.



     7. Additional Documents. Holder hereby covenants and agrees to execute
and deliver any additional documents necessary or reasonably desirable to carry
out the purpose and intent of this Agreement.



     8. Consent and Waiver. Holder hereby gives any consents or waivers that
are reasonably required for the consummation of the Mergers under the terms of
any agreement to which Holder is a party or pursuant to any rights Holder may
have.



     9. Termination. This Agreement and the Proxy shall terminate and shall
have no further force or effect as of the Expiration Date, except that Section
5 shall survive termination of this Agreement.



     10. Appraisal Rights. Holder agrees not to exercise any rights (including
any rights under Section 262 of the Delaware General Corporation Law) to demand
appraisal of any Shares which may arise in connection with the Mergers.



     11. Miscellaneous.



          (a) Amendments and Waivers. Any term of this Agreement may be amended or
waived with the written consent of the parties or their respective successors
and assigns. Any amendment or waiver effected in accordance with this Section
11(a) shall be binding upon the parties and their respective successors and
assigns.



          (b) Governing Law. This Agreement and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of law. Each of the parties
to this Agreement consents to the exclusive



6









 







jurisdiction and venue of the state and federal courts located in or for
the State of Delaware in connection with any matter based upon or arising out
of this Agreement or the matters contemplated herein, agrees that process may
be served upon it in any manner authorized by the laws of the State of Delaware
for such persons and waives and covenants not to assert or plead any objection
which it might otherwise have to such jurisdiction and such process.



          (c) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.



          (d) Titles and Subtitles. 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.



          (e) Notices. Any notice required or permitted by this Agreement shall be
in writing and shall be deemed sufficient upon receipt, when delivered
personally or by same-day courier, overnight delivery service or confirmed
facsimile, provided that if delivered on a date that is not a business day or
after 5:00 p.m. on a business day (in each case at the place of delivery), such
notice shall be deemed delivered on the next succeeding business day, if such
notice is delivered to the party to be notified at such party’s address or
facsimile number as set forth below, or as subsequently modified by written
notice. If the notice is to be given to Acquiror, a copy of such notice shall
also be sent to O’Melveny & Myers LLP, 2765 Sand Hill Road, Menlo Park,
California, Attention: Karen Dreyfus, Fax: 650-473-2601.



          (f) Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith, in order to maintain the position enjoyed by each
party as close as possible to that under the provision rendered unenforceable.
In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement shall be
enforceable in accordance with its terms.



          (g) Assignment. This Agreement and all of the terms and provisions hereof
shall be binding upon, and inure to the benefit of, the parties hereto and
their respective successors and permitted assigns, but, except as otherwise
specifically provided herein, neither this Agreement nor any of the rights,
interests or obligations of either party may be assigned without the prior
written consent of the other party (any such attempted assignment shall be
void).



          (h) Remedies Cumulative; Specific Performance. Except as otherwise
provided herein, any and all remedies herein expressly conferred upon a party
will be deemed cumulative with and not exclusive of any other remedy conferred
hereby, or by law or equity upon such party, and the exercise by a party of any
one remedy will not preclude the exercise of any other remedy. Each party
hereto acknowledges that, in view of the uniqueness of the transactions
contemplated by this Agreement, the other party would not have an adequate
remedy at law for money damages in the event that this Agreement has not been
performed in



7









 







accordance with its terms. Each party therefore agrees that the other
party shall be entitled to specific enforcement of the terms hereof in addition
to any other remedy to which it may be entitled, at law or in equity. Holder
acknowledges that nothing in the Merger Agreement, including without limitation
Article Eight thereof, shall limit the liability of Holder for breach of this
Agreement.



[Signature Page Follows]




8









 








     The parties have caused this Agreement to be duly executed on the date
first above written.



	 	 	 	 	 
	 	 	ACQUIROR
	 
	 	 	 	 
	 	 	ASK JEEVES, INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	Name:
	 	Steven Berkowitz
	

	 	Title:
	 	Chief Executive Officer







	 	 	 	 	 
	 

	 	Address:
	 	5858 Horton Street, Suite 350

Emeryville, CA 94608

Attention: Chief Financial Officer

Facsimile No.: (510) 985-7400

Telephone No.: (510) 985-7412







	 	 	 	 	 
	 
	 	 	 	 
	 	 	HOLDER:
	 
	 	 	 	 
	 	 	[NAME]
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	Name:	 	 
	

	 	Title:	 	 
	 
	 	 	 	 
	 	 	Holder’s Address for Notice:
	 
	 	 	 	 
	 	 	

	 
	 	 	 	 
	 	 	

	 
	 	 	 	 
	 	 	

	 
	 	 	 	 
	 	 	Shares beneficially owned:







	 	 	 	 	 
	 	 	Class of Shares
	 	Number

	 	 	 	 	 
	

	 	Common Stock
	 	 
	

	 	Series A Preferred Stock
	 	 
	 
	 	 	 	 







 









 








EXHIBIT A




IRREVOCABLE PROXY TO VOTE STOCK OF TARGET




     The undersigned stockholder of Interactive Search Holdings, Inc., a
Delaware corporation (“Target”), hereby irrevocably (to the full extent
permitted by Section 212 of the Delaware General Corporation Law) appoints the
Chief Executive Officer and Chief Financial Officer from time to time
(currently Steven Berkowitz and Steve Sordello, respectively) of Ask Jeeves,
Inc., a Delaware corporation (“Acquiror”), and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Target that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Target issued or issuable in respect thereof on or
after the date hereof (collectively, the “Shares”) in accordance with the terms
of this Proxy. The Shares beneficially owned by the undersigned stockholder of
Target as of the date of this Proxy are listed on the final page of this Proxy.
Upon the undersigned’s execution of this Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares and this subject matter until after the Expiration Date (as defined
below).



     This Proxy is irrevocable (to the extent permitted by Section 212 of the
Delaware General Corporation Law), is granted pursuant to that certain
Stockholder Agreement of even date herewith, by and among Acquiror and the
undersigned stockholder (the “Stockholder Agreement”), and is granted in
consideration of Acquiror entering into that certain Agreement and Plan of
Reorganization, of even date herewith, by and among Target, Acquiror, Aqua
Acquisition Corp., a Delaware corporation (“Merger Sub”) and wholly-owned
subsidiary of Acquiror, and Aqua Acquisition Holdings LLC, a Delaware single
member limited liability company (the “Surviving Company”) and wholly-owned
subsidiary of Acquiror (the “Merger Agreement”). The Merger Agreement provides
for the merger (the “Step One Merger”) of Merger Sub with and into Target, with
Target as the interim surviving corporation (the “Interim Surviving
Corporation”), and immediately thereafter and as part of the same plan, the
merger of the Interim Surviving Corporation into the Surviving Company (the
“Step Two Merger,” and together with the Step One Merger, the “Mergers”). As
used herein, the term “Expiration Date” shall mean the earlier to occur of (i)
such date and time as the Step One Merger shall become effective in accordance
with the terms and provisions of the Merger Agreement and Delaware law, or (ii)
the date of termination of the Merger Agreement.



     The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned’s attorney and proxy to vote the
Shares, and to exercise all voting and other rights of the undersigned with
respect to the Shares (including, without limitation, the power to execute and
deliver written consents pursuant to Section 228 of the Delaware General
Corporation Law), at every annual, special or adjourned meeting of the
stockholders of Target and in every written consent in lieu of such meeting (i)
in favor of approval of the Mergers and the Merger



A-1









 







Agreement and in favor of any matter necessary to facilitate the Mergers,
and (ii) against any proposal for any recapitalization, merger, sale of assets
or other business combination (other than the Mergers) between Target and any
person or entity other than Acquiror, or any wholly-owned subsidiary of
Acquiror, or any other action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
Target under the Merger Agreement or which could reasonably be expected to
result in any of the conditions to Target’s obligations under the Merger
Agreement not being fulfilled. The attorneys and proxies named above may not
exercise this Proxy on any other matter except as provided above. The
undersigned stockholder may vote the Shares on all other matters.



     Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.



	 	 	 
	Dated: March 3, 2004
	 	 
	

	 	

	

	 	(Signature of Holder)
	 
	 	 
	

	 	

	

	 	(Print Name of Holder)
	 
	 	 
	

	 	Shares beneficially owned:







	 	 	 	 	 
	 	 	Class of Shares
	 	Number

	 	 	 	 	 
	

	 	Common Stock
	 	 
	

	 	Series A Preferred Stock
	 	 
	 
	 	 	 	 








A-2