UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Under Rule 14a-12
EXEGENICS INC.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the
amount on which the filing fee is calculated and state how it
was determined):
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4) Proposed maximum aggregate value of transaction:
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5) Total fee paid:
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing:
1) Amount previously paid:
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2) Form, Schedule or Registration Statement No:
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3) Filing party:
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4) Date Filed:
PRELIMINARY COPY - SUBJECT TO COMPLETION, DATED JUNE 25, 2003
[EXEGENICS INC. LETTERHEAD]
___________, 2003
Dear Fellow Stockholder:
As you are probably aware, on May 29, 2003, EI Acquisition Inc., a
wholly owned subsidiary of Foundation Growth Investments LLC, commenced an
unsolicited tender offer for all shares of common stock and Series A Convertible
preferred stock of eXegenics Inc. at a cash price of $0.40 per share. After
careful consideration, including a thorough review of the offer with independent
financial and legal advisors, your Board of Directors, by unanimous vote, has
determined that the offer is inadequate and not in the best interests of
eXegenics or its stockholders. The Board's reasons for rejecting Foundation's
offer and for recommending that eXegenics' stockholders reject the offer are set
forth in detail in eXegenics' Schedule 14D-9, a copy of which you should have
received by mail (and which is available on the eXegenics web site at
www.exegenicsinc.com).
Now, in an effort to facilitate its inadequate offer, Foundation is
trying to take control of your company's Board by removing all of the existing
directors and appointing a new slate of directors consisting of Foundation's own
nominees. Foundation proposes to do this by soliciting your consent to two
separate proposals, as described in the enclosed document. In considering
Foundation's consent proposals, it is essential to keep in mind that these
proposals are designed to benefit the interests of Foundation, and are NOT in
the best interests of eXegenics' other stockholders.
SIMPLY DO NOT SIGN FOUNDATION'S WHITE CONSENT CARD.
Foundation has made clear that it expects its nominees, if elected, to
push through Foundation's takeover, which your Board has concluded is grossly
INADEQUATE and UNFAIR to eXegenics' stockholders. Foundation has also indicated
that it plans to repeal certain anti-takeover measures that were adopted by your
Board for the protection of eXegenics' stockholders.
DO NOT BE MISLED BY FOUNDATION'S EFFORTS.
BY CONSENTING TO THEIR BOARD NOMINEES, YOU ARE CONSENTING TO THEIR
GROSSLY INADEQUATE OFFER FOR YOUR SHARES.
Your Board is acutely aware of its fiduciary duties and will at all
times continue to act in a manner consistent with those duties. Unlike the three
Foundation nominees, each of whom has a direct financial stake in Foundation,
our obligation and objective is to protect the interests of eXegenics and its
stockholders.
You can reject Foundation and its efforts to take control of your
company. If you have previously signed a white consent card, you can easily
revoke that consent by signing, dating and mailing the enclosed BLUE Revocation
of Consent Card immediately. Even if you have not signed Foundation's consent
card, you can show your support for your Board by signing, dating and mailing
the enclosed BLUE Revocation of Consent Card.
As always, we will keep you fully informed as events unfold in the
coming weeks and months. In the meantime, the Board of eXegenics Inc. believes
that it is in your best interests NOT to consent to Foundation's proposals and
NOT to tender any of your shares.
We thank you for your continued trust and support.
Sincerely,
Ronald L. Goode
Chairman, President and Chief Executive Officer
PRELIMINARY COPY - SUBJECT TO COMPLETION, DATED JUNE 25, 2003
A DEFINITIVE CONSENT STATEMENT WILL BE FILED FOLLOWING SEC REVIEW
EXEGENICS INC.
2110 RESEARCH ROW
DALLAS, TEXAS 75235
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CONSENT REVOCATION STATEMENT
BY THE BOARD OF DIRECTORS OF EXEGENICS INC. IN OPPOSITION TO THE
SOLICITATION OF CONSENTS BY FOUNDATION GROWTH INVESTMENTS LLC
AND EI ACQUISITION INC.
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_____________, 2003
This Consent Revocation Statement and the accompanying BLUE Revocation
of Consent Card are being furnished by the Board of Directors (sometimes
hereinafter referred to as the "Board") of eXegenics Inc., a Delaware
corporation ("eXegenics"), to the record holders as of July 3, 2003 of
outstanding shares of eXegenics' common stock, par value $0.01 per share
("Common Stock"), and Series A Convertible preferred stock, par value $0.01 per
share ("Preferred Stock"), in opposition to the solicitation by Foundation
Growth Investments LLC ("Foundation") and its wholly owned subsidiary, EI
Acquisition Inc. ("EI" and, together with Foundation, "Foundation"), of written
consents from eXegenics' stockholders.
On May 29, 2003, Foundation publicly announced its intention to
commence an unsolicited offer to purchase all outstanding shares of eXegenics'
Common Stock and Preferred Stock at a price of $0.40 per share, net to the
seller in cash. On the same day, Foundation, through EI, commenced its
unsolicited tender offer to purchase all outstanding shares of eXegenics' Common
Stock and Preferred Stock at a price of $0.40 per share (the "Foundation
Offer").
Foundation is now seeking to take control of eXegenics' Board of
Directors by removing all of the existing members of the Board and electing
three of its own nominees (the "Foundation Nominees"). Foundation proposes to
accomplish this takeover by soliciting consents from eXegenics' stockholders to
remove all directors from the eXegenics Board and elect the Foundation Nominees
to the Board. Foundation's two proposals are referred to herein as the
"Foundation Proposals." The Foundation Nominees, if elected, would comprise the
entire eXegenics Board; therefore, a consent in favor of the Foundation
Proposals is a consent to turn over control of your Board and your company to
the Foundation Nominees. We believe that the Foundation Nominees, if elected,
will cause the Board to take action to facilitate Foundation's takeover of
eXegenics at a price that the current Board has determined to be grossly
inadequate and unfair. CONSEQUENTLY, EXEGENICS' BOARD OF DIRECTORS UNANIMOUSLY
OPPOSES THE FOUNDATION CONSENT SOLICITATION AND URGES YOU NOT TO SIGN THE WHITE
CONSENT CARD SENT TO YOU BY FOUNDATION BUT INSTEAD TO SIGN AND RETURN THE BLUE
CARD INCLUDED WITH THESE MATERIALS.
EVEN IF YOU PREVIOUSLY SIGNED AND RETURNED FOUNDATION'S WHITE CONSENT
CARD, YOU HAVE EVERY RIGHT TO CHANGE YOUR VOTE. WE URGE YOU TO SIGN, DATE AND
MAIL THE ENCLOSED BLUE REVOCATION OF CONSENT CARD IN THE POSTAGE-PAID ENVELOPE
PROVIDED. YOUR PROMPT ACTION IS CRITICAL. PLEASE RETURN THE BLUE REVOCATION OF
CONSENT CARD TODAY, EVEN IF YOU HAVE NOT PREVIOUSLY SIGNED A WHITE CARD.
IF YOUR SHARES ARE HELD IN "STREET NAME," ONLY YOUR BROKER OR BANKER
CAN VOTE YOUR SHARES. PLEASE CONTACT THE PERSON RESPONSIBLE FOR YOUR ACCOUNT AND
INSTRUCT HIM OR HER TO VOTE A BLUE REVOCATION OF CONSENT CARD ON YOUR BEHALF
TODAY.
This Consent Revocation Statement and the enclosed BLUE Revocation of
Consent Card are first being mailed to stockholders on or about ______________,
2003.
If you have any questions about this process or require assistance,
please call Georgeson Shareholder Communications Inc. ("Georgeson"), the firm
assisting eXegenics in this solicitation, at the phone numbers shown below:
GEORGESON SHAREHOLDER COMMUNICATIONS INC.
17 STATE STREET - 10TH FLOOR
NEW YORK, NEW YORK 10004
CALL TOLL FREE: (888) 964-0733
BANKS & BROKERS CALL: (212) 440-9800
IMPORTANT NOTE REGARDING FORWARD-LOOKING STATEMENTS
We urge you to read this entire document carefully. The information
contained in this document includes forward-looking statements within the
meaning of Section 21E of the Securities Exchange Act of 1934, as amended. It
has not been judicially determined that the safe harbor provided by Section 21E
of the Exchange Act applies to forward-looking statements in a proxy
solicitation conducted in connection with a tender offer. The preparation of
forward-looking statements requires the use of estimates of future
profitability, revenues, expenses, activity levels and economic and market
conditions, many of which are outside our control. Such statements are indicated
by words or phrases such as "anticipates," "estimates," "projects," "believes,"
"intends," "expects" and similar words and phrases. Actual results might vary
materially from those indicated by the forward-looking statements as a result of
various factors. Discussion of these and other risks and uncertainties are
provided in detail in eXegenics' periodic filings with the SEC, including
eXegenics' Annual Report on Form 10-K, as amended. Given these uncertainties,
you are cautioned not to place undue reliance on such forward-looking
statements. In addition, there can be no assurance that our business strategy
will deliver any particular level of value to our stockholders or that earnings
estimates will be met or exceeded. Other factors and assumptions not identified
above are also involved in the preparation of forward-looking statements, and
the failure of such other factors and assumptions to be realized might also
cause actual results to differ materially from those discussed.
THE FOUNDATION PROPOSALS
The Foundation Proposals are described below:
PROPOSAL TO REMOVE THE EXISTING DIRECTORS
Foundation has proposed to immediately remove from office all of the
existing members of the eXegenics Board.
PROPOSAL TO ELECT THE FOUNDATION NOMINEES
Foundation has proposed to elect the following three individuals, who
have been chosen by Foundation: Timothy Leonard, Terry Robbins and Michael
Pachette.
Timothy Leonard is a director and the President of EI. Terry Robbins is
a director and the Treasurer of EI. Michael Pechette is a director and the
Secretary of EI. Each of the Foundation Nominees is also a founding member of
Foundation Growth Investments LLC, the managing member of Foundation.
REASONS FOR OPPOSING THE FOUNDATION SOLICITATION
The Foundation Proposals are designed to enable Foundation to take
control of your Board and ultimately of eXegenics itself. Foundation has stated
that the purpose of its proposals is to elect a Board that would take actions to
facilitate (i) Foundation's takeover of eXegenics at $0.40 per share, a price
that the eXegenics Board, with the advice of independent financial and legal
advisors, unanimously determined to be grossly unfair and inadequate, and (ii)
following the successful completion of the Foundation Offer, a subsequent merger
whereby eXegenics will merge with and into EI, Foundation's wholly-owned
subsidiary. eXegenics has sent to you, posted on its web site and filed with the
Securities and Exchange Commission a document called "Schedule 14D-9" which
contains a description of the background of the Foundation Offer and a detailed
explanation of why the eXegenics Board believes the Foundation offer is grossly
inadequate and unfair to you. We urge you to read the Schedule 14D-9 carefully.
THE FOUNDATION NOMINEES WILL NOT SERVE THE INTERESTS OF EXEGENICS' STOCKHOLDERS
Foundation has admitted that the purpose of the Foundation Offer is for
Foundation, through EI, to acquire for cash as many shares of eXegenics as is
necessary for it to gain effective control of eXegenics and to facilitate a
merger of eXegenics with EI. However, Foundation has provided very little
information in the tender offer with respect to the proposed merger. No
assurance can be given that the terms of the proposed merger will be fair to
eXegenics' stockholders, from a financial point of view or otherwise.
While the eXegenics Board recognizes that the Foundation Nominees, if
elected, would have certain state law obligations to eXegenics and its
stockholders, the Board firmly believes that the Foundation Nominees, each of
whom is a director and executive officer of EI and a founding member of
Foundation's managing member, would act in furtherance of the interests of
Foundation. Foundation is seeking to secure control of eXegenics by proposing
nominees whose own pecuniary interests are inextricably linked to Foundation.
Each of the three directors is a founder of and currently holds a high level
executive position within EI and Foundation's managing member and therefore has
a direct financial stake in the Offer. As a result, if Foundation's consent
solicitation is approved, each and every member of the Board of Directors will
have irreconcilable conflicts of interest.
The eXegenics Board relied on a number of factors to arrive at their
determination that the Foundation Offer is inadequate. Among those factors was
the Board's reliance on the opinion of eXegenics' independent financial advisor,
Petkevich & Partners, LLC, that, as of June 10, 2003, the Offer was inadequate
to the holders of the Shares from a financial point of view. The Foundation
Nominees are clearly attempting to acquire eXegenics at a substantial discount
to the Company's cash value, to the detriment of eXegenics' stockholders.
Further, given Foundation's failure to consider the possible negative tax
implications of the tender offer on certain eXegenics stockholders, Foundation
is clearly perpetuating its own self-interest. The eXegenics Board has confirmed
that the receipt of cash for shares pursuant to the Foundation Offer, and
pursuant to the proposed merger, will be a taxable transaction to eXegenics'
stockholders for United States income tax purposes to the extent that their
adjusted tax basis in the shares is less than the offer price (and also may be a
taxable transaction under applicable state, local, foreign and other income tax
laws).
The Board also determined that the Foundation Offer is inconsistent
with the Board's objective of enhancing and maximizing stockholder value.
eXegenics believes there is a reasonable chance of obtaining an alternative
offer with terms that are superior to the Offer, and which would be "tax-free".
Based on Foundation's own statements, it is unlikely, however, that once
elected, the Foundation Nominees would work for the benefit of eXegenics'
stockholders and seek a transaction that is superior to the Foundation Offer.
The Board believes that the interests of eXegenics and its stockholders will be
best served if eXegenics' current directors - who will act entirely
independently of the interests of Foundation and themselves - continue to manage
eXegenics.
FOUNDATION HAS ATTEMPTED TO MISLEAD EXEGENICS' STOCKHOLDERS
In what can only be construed as a blatant attempt to mislead
eXegenics' stockholders, Foundation incorrectly refers to the "impending
delisting" of eXegenics' Common Stock from The Nasdaq Stock Market ("Nasdaq").
As eXegenics has previously disclosed in its public filings, on October 25,
2002, eXegenics transferred from the Nasdaq National Market to the Nasdaq
SmallCap Market as a result of its failure to comply with the minimum bid price
requirement of $1.00 per share, and was provided with a grace period to comply
with the requirement. On January 21, 2003, eXegenics received from Nasdaq a
180-day extension (through July 21, 2003) to comply with the listing
requirement. In eXegenics' Quarterly Report on Form 10-Q for the quarter ended
March 31, 2003, which was filed by eXegenics on May 13, 2003 16 days prior to
the filing of Foundation's Schedule TO, eXegenics disclosed that it may be
eligible to receive an additional 90-day compliance period if, as of July 21,
2003, it continues to comply with certain initial listing criteria of the Nasdaq
SmallCap Market. During this additional extended period, eXegenics' stock must
trade at or above $1.00 per share for a minimum of ten consecutive trading days
or its stock will be delisted from the Nasdaq SmallCap Market at the end of such
extended period. eXegenics is, at this time, in compliance with the required
listing criteria, and therefore, has no reason to believe that it will not
receive the 90-day extension. Consequently, Foundation's assertion about
eXegenics' impending delisting from Nasdaq is mere speculation and without
truth.
In addition, Foundation inaccurately surmises that eXegenics had no
prior commitment or intention to adopt anti-takeover measures, such as
eXegenics' Stockholder Rights Plan (the "Stockholder Rights Plan"), which was
adopted by the Board on June 9, 2003. Contrary to Foundation's allegations,
eXegenics, after consultation with independent legal and financial advisors, had
long considered the adoption and implementation of such a protective measure.
Ironically, it should also be borne in mind that Foundation's sustained
efforts to take over eXegenics at a steep discount are forcing eXegenics to
waste funds in connection with the defense of its stockholders, thus eroding the
treasury and threatening the financial interests of eXegenics' stockholders.
FOUNDATION NOMINEES WILL SEEK TO AVOID EXEGENICS' STOCKHOLDER RIGHTS PLAN
Foundation seeks to manipulate and flout eXegenics' duly adopted
Stockholder Rights Plan so as to render the Stockholder Rights Plan inapplicable
to the Foundation Offer. By attempting to elect certain nominees to the Board of
Directors, Foundation aims to contravene eXegenics' Stockholder Rights Plan by
amending or terminating the instruments associated with the Stockholder Rights
Plan. However, eXegenics' adoption of the Stockholder Rights Plan protects the
interests of eXegenics' stockholders by, among other things, encouraging
potential acquirers of eXegenics to negotiate with the Board of Directors so as
to enhance the Board's ability to achieve the best possible value for all
eXegenics' stockholders. Through its attempt to exempt itself from the
Stockholder Rights Plan, Foundation is effectively depriving eXegenics'
stockholders of the protection explicitly afforded them by the existing Board.
Accordingly, Foundation's strategy to avoid the Stockholder Rights Plan wholly
disregards the best interests of eXegenics' stockholders, and serves as an
opportunistic approach entirely inconsistent with the Board's objective of
enhancing and maximizing stockholder value.
Under the Stockholder Rights Plan, each holder of eXegenics Common
Stock as of the close of business on June 9, 2003, received, as a non-taxable
dividend, one right for each share of Common Stock held. Each right entitles the
holder to purchase from eXegenics one one-thousandth of a share of Series B
Junior Participating Preferred Stock at an exercise price of $4.50, subject to
adjustment. If a person or group acquires beneficial ownership of 15 percent or
more of eXegenics' Common Stock, each right will entitle its holder (other than
the acquiring person or members of the acquiring group) to purchase, at the
right's then current exercise price (initially $4.50), a number of eXegenics'
shares of Common Stock having a market value of twice such price (initially
$9.00).
In addition, if eXegenics is acquired in a merger or other business
combination transaction after a person has acquired beneficial ownership of 15
percent or more of its Common Stock, each right will entitle its holder to
purchase, at the rights' then current exercise price (initially $4.50), a number
of the acquiring company's shares of common stock having a market value of twice
such price (initially $9.00). Following the acquisition by a person or group of
beneficial ownership of 15 percent of eXegenics' common stock and prior to an
acquisition of beneficial ownership of 50 percent or more of its Common Stock
the Board of Directors may exchange the rights (other than rights owned by such
acquiring person or group, which will have become null and void and
nontransferable), in whole or in part, at an exchange ratio of one share of
Common Stock (or one one-thousandth of a share of Series B Junior Participating
Preferred Stock) per right.
eXegenics may redeem the rights at a price of $.001 per right at any
time prior to the time a person becomes the beneficial owner of 15% or more of
eXegenics' outstanding common stock. The rights will expire on June 9, 2013,
unless earlier exchanged or redeemed.
FOUNDATION NOMINEES WILL SEEK EXEMPTION FOR FOUNDATION FROM DELAWARE
ANTI-TAKEOVER LAW
In what can only be construed as a transparent attempt to avoid
well-established Delaware law designed to protect stockholders, Foundation seeks
exemption for Foundation from the application of the Delaware anti-takeover
statute, codified in Section 203 of the Delaware General Corporation Law (the
"Delaware Business Combinations Statute"). Neither eXegenics' Certificate of
Incorporation as amended, nor its Amended and Restated Bylaws excludes eXegenics
from the coverage of the Delaware Business Combinations Statute. Moreover,
unless Foundation's acquisition of 15% or more of the eXegenics Common Stock or
the proposed merger is approved by the Board of Directors of eXegenics before
the Foundation Offer closes, the Delaware Business Combinations Statute will
prohibit consummation of the proposed merger for a period of three years
following consummation of the Foundation Offer unless the Proposed Merger is
approved by the Board and 66 2/3% of eXegenics' stockholders, excluding
Foundation, or unless Foundation acquires at least 85% of the Common Stock in
the tender offer. Accordingly, Foundation's attempt to skirt the Delaware
Business Combinations Statute can only be perceived as a ploy to dismantle the
intrinsic corporate protections eXegenics has long provided its stockholders.
FOUNDATION NOMINEES WILL SEEK TO REPEAL AMENDMENTS TO EXEGENICS' AMENDED AND
RESTATED BYLAWS
In yet another self-serving attempt to usurp power from eXegenics'
stockholders, Foundation has indicated that, if elected, the Foundation Nominees
will repeal all amendments to the eXegenics Amended and Restated Bylaws
(the "Bylaws") in order to expedite the consummation of the Foundation Offer and
a subsequent merger. In 2002, the eXegenics Board amended the Bylaws to provide,
among other things, certain procedures for stockholder proposals and nominations
to be presented at stockholder meetings and for stockholders taking action by
written consent. Such procedures were implemented in order to afford eXegenics'
stockholders with a stronger voice in the management and affairs of eXegenics.
The amendments to the Bylaws were intended to protect stockholders from the very
abuse of power in which the removal of the existing Board of Directors and
election of the Foundation Nominees will result.
GIVEN THESE REASONS, YOUR BOARD OF DIRECTORS UNANIMOUSLY OPPOSES THE
FOUNDATION CONSENT SOLICITATION AND URGES THAT YOU NOT SIGN THE WHITE CONSENT
CARD SENT TO YOU BY FOUNDATION. INSTEAD, YOU ARE URGED TO INDICATE YOUR
OPPOSITION TO THE FOUNDATION OFFER BY SIGNING AND RETURNING THE ENCLOSED BLUE
REVOCATION OF CONSENT CARD.
EVEN IF YOU PREVIOUSLY SIGNED AND RETURNED FOUNDATION'S WHITE CONSENT
CARD, YOU HAVE EVERY RIGHT TO CHANGE YOUR VOTE. WE URGE YOU TO SIGN, DATE AND
MAIL THE ENCLOSED BLUE REVOCATION OF CONSENT CARD IN THE POSTAGE-PAID ENVELOPE
PROVIDED.
IF YOU HAVE ANY QUESTIONS, PLEASE CALL GEORGESON TOLL-FREE AT (888)
964-0733. BANKS AND BROKERS SHOULD CALL AT (212) 440-9800.
THE CONSENT PROCEDURE
VOTING SECURITIES AND RECORD DATE
Pursuant to the request of Foundation and in accordance with the
provisions of eXegenics' By-laws, the eXegenics Board has set July 3, 2003 as
the record date for the determination of stockholders entitled to express or
withhold their consent to the Foundation Proposals or to grant revocations of
such consents. As of July 3, 2003, there were ___________ shares of eXegenics'
Common Stock outstanding and___________ shares of eXegenics' Preferred Stock
outstanding. Each share is entitled to one vote and only such holders as of the
record date are entitled to express or withhold consent to the Foundation
Proposals or to grant revocations of such consents.
EFFECTIVENESS OF CONSENTS
Under Delaware law, unless otherwise provided in a corporation's
certificate of incorporation, stockholders may act without a meeting, without
prior notice and without a vote, if consents in writing setting forth the action
to be taken are signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. eXegenics' Certificate of Incorporation does not prohibit stockholder
action by written consent. Therefore, in order to be approved by eXegenics'
stockholders, the Foundation Proposals require consents signed by the holders of
a majority of eXegenics' Common Stock and Preferred Stock outstanding at the
close of business on July 3, 2003. Under Delaware law, corporate action by
written consent may not occur more than 60 days after the date of the earliest
dated consent has been properly delivered to eXegenics.
EFFECT OF BLUE REVOCATION OF CONSENT CARD
eXegenics' Board of Directors is soliciting AGAINST the Foundation
Proposals. If you have already voted on the Foundation consent card, you may
revoke that consent by signing and dating the BLUE card. By executing the BLUE
card, stockholders will essentially be voting against the Foundation Proposals
and will revoke any earlier dated consent card solicited by Foundation which
they may have signed. Shares represented by the BLUE card will be voted as
indicated thereon as a revocation of consent as to all shares held by the
stockholder in all capacities.
Any stockholder executing and delivering the enclosed BLUE card may
revoke such action by signing and returning a later dated consent card solicited
by Foundation.
The Board urges you NOT to sign or return any consent card sent to you
by Foundation. Whether or not you have previously executed a consent card, the
Board urges you to show your support for the Board by executing and dating the
enclosed BLUE card solicited by the Board, and to mail it in the enclosed
postage prepaid envelope as soon as possible.
eXegenics has retained Georgeson Shareholder Communication Inc.
("Georgeson") to assist in communicating with stockholders in connection with
the Foundation consent solicitation and to assist in our efforts to obtain
consent
revocations. If you have any questions about how to complete or submit your BLUE
Revocation of Consent Card or any other questions, Georgeson will be pleased to
assist you. You may call Georgeson toll-free at (888) 964-0733. Banks and
brokers should call at (212) 440-9800.
IF YOU DO NOT SUPPORT THE FOUNDATION PROPOSALS, YOU MAY SHOW YOUR
OPPOSITION TO THE FOUNDATION CONSENT PROPOSALS BY SIGNING, DATING AND RETURNING
THE ENCLOSED BLUE REVOCATION OF CONSENT CARD. THIS WILL BETTER ENABLE EXEGENICS
TO KEEP TRACK OF HOW MANY STOCKHOLDERS OPPOSE THE FOUNDATION PROPOSALS.
BACKGROUND OF THE FOUNDATION OFFER
On May 29, 2003, Foundation issued a press release announcing its
intention to commence a tender offer for all outstanding shares of eXegenics'
Common Stock and Preferred Stock at a price of $0.40 per share. Later that day,
Foundation filed a Schedule T-O with the Securities and Exchange Commission (the
"SEC"), thereby commencing the tender offer. Foundation also presented eXegenics
with a written request for a list of stockholders of eXegenics.
On May 30, 2003, eXegenics issued a press release announcing the tender
offer and indicated that eXegenics' management, Board of Directors and
professional advisors would evaluate the offer, and advise eXegenics'
stockholders of its response to the offer no later than June 12, 2003.
On June 2, 2003, eXegenics retained Georgeson to act as Information
Agent in response to the Foundation Offer. In its capacity as Information Agent,
Georgeson reviews Foundation's Offer documents, provides strategic advice with
respect to the offer, assists in preparation and posting of advertisements and
news releases, disseminates offer documents to the banking and brokerage
community and communicates with the banking and brokerage community during the
Offer period. Accordingly, on June 5, 2003, after communication with Foundation
and its legal counsel, eXegenics provided Foundation with a list of stockholders
of eXegenics.
On June 9, 2003, after consultation with independent financial and
legal advisors, eXegenics announced the adoption of a stockholder rights plan
designed to protect the interests of eXegenics' stockholders by, among other
things, encouraging potential acquirers of eXegenics to negotiate with the Board
of Directors so as to enhance the Board's ability to achieve the best possible
value for all eXegenics' stockholders. Under the Stockholder Rights Plan, each
holder of eXegenics' common stock as of the close of business on June 9, 2003
received, as a non-taxable dividend, one right for each share of common stock
held. Each right entitles the holder to purchase from eXegenics one
one-thousandth of a share of Series B Junior Participating Preferred Stock at an
exercise price of $4.50, subject to adjustment. If a person or group acquires
beneficial ownership of 15 percent or more of eXegenics' common stock, each
right will entitle its holder (other than the acquiring person or members of the
acquiring group) to purchase, at the right's then current exercise price
(initially $4.50), a number of eXegenics' shares of common stock having a market
value of twice such price (initially $9.00).
In the ensuing days and after careful consideration, including
consultation with independent financial and legal advisors, the eXegenics Board
of Directors unanimously concluded that the Foundation Offer is inadequate and
that it would recommend that eXegenics' stockholders reject the offer. The Board
of Directors noted its belief that the offer was opportunistic, significantly
undervalued eXegenics' shares, and was not consistent with the Board's objective
of enhancing and maximizing stockholder value.
On June 12, 2003, eXegenics filed a Schedule 14D-9
Solicitation/Recommendation Statement with the SEC on June 12, 2003, and
thereafter mailed copies of the Statement to its stockholders. In connection
with the filing and distribution of the Schedule 14D-9, eXegenics issued a press
release on June 12, 2003, announcing the Board's unanimous rejection of the
Foundation Offer and the Board's recommendation to eXegenics' stockholders not
to tender their shares.
On June 16, 2003, Foundation issued a press release expressing its
purported disappointment at the Board's adoption of a Stockholder Rights Plan.
Later that day, Foundation announced its intention to solicit consents from the
stockholders of eXegenics in order to remove all directors from the eXegenics
Board of Directors and appoint a new slate of directors.
On June 17, 2003, eXegenics announced the results of certain issues
voted upon at its 2003 annual meeting of stockholders, which was held earlier
that day. Over 87% of the shares owned by stockholders of record voted in person
or by proxy at the meeting. Of the shares voted, over 96% voted in favor of the
election of the incumbent directors, Joseph M. Davie, M.D., Ph.D., Mr. Robert J.
Easton, Ronald L. Goode, Ph.D. and Walter M. Lovenberg, Ph.D.
Moreover, 99% of the shares voted to ratify the appointment of Ernst & Young LLP
as eXegenics' independent public accountants. eXegenics asked its stockholders
to read the Schedule 14D-9, which was filed with the SEC by eXegenics and mailed
to all stockholders on June 12, 2003. Finally, eXegenics reiterated the Board's
recommendation that stockholders reject the Foundation Offer and not tender
their shares.
On June 18, 2003, Foundation filed preliminary proxy materials with the
SEC in connection with the Foundation Proposals. Accordingly, counsel to
eXegenics advised the eXegenics Board of Directors of the Foundation filing,
and, after significant discussion, the Board of Directors authorized eXegenics'
counsel to prepare this Consent Revocation Statement.
Additional information regarding the Foundation Offer and eXegenics'
response to the offer is contained in eXegenics' Schedule 14D-9, as amended,
which is available at eXegenics' web site on www.eXegenicsinc.com, on the
Securities and Exchange Commission's web site at www.sec.gov or by contacting
eXegenics' information agent, Georgeson Shareholder Communications Inc.,
toll-free at (888) 964-0733; banks and brokers call (212) 440-9800.
LEGAL PROCEEDINGS
On May 15, 2003, a lawsuit was filed by The M&B Weiss Family Limited
Partnership of 1996 in the Delaware Court of Chancery against eXegenics,
purportedly as a class action on behalf of the plaintiff and on behalf of all
other similarly situated stockholders of eXegenics, and as a derivative action
on behalf of eXegenics against certain directors and senior officers of
eXegenics. The complaint alleges, among other things, that the defendants have
mismanaged eXegenics, have made unwarranted and wasteful loans and payments to
certain directors and third parties, have disseminated a materially false and
misleading proxy statement in connection with the 2003 annual meeting of
eXegenics' stockholders and have breached their fiduciary duties to act in the
best interests of eXegenics and its stockholders. The complaint seeks, among
other things, court orders mandating that the defendants cooperate with parties
proposing bona fide transactions to maximize stockholder value, make corrective
disclosures with respect to the latest proxy statement and account to eXegenics
and the plaintiffs for damages suffered as a result of the actions alleged in
the complaint. The plaintiffs are in addition seeking an award of costs and
attorneys' fees and expenses.
eXegenics and the individual defendant officers and directors believe
the suit to be totally without merit. Accordingly, on June 9, 2003, the
defendants filed a joint motion with the Delaware Court of Chancery to dismiss
the complaint. eXegenics cannot predict at this point the length of time that
this litigation will be ongoing.
MANAGEMENT
The information contained below was disseminated to eXegenics
stockholders in eXegenics' Proxy Statement dated April 15, 2003 in connection
with our 2003 Annual Meeting of Stockholders which was held on June 17, 2003.
Such information pertains to the year ended December 31, 2002. Subsequent to the
mailing of the Proxy Statement, the following changes occurred in eXegenics'
management:
o on May, 15, 2003, Dr. Ira J. Gelb and Mr. Irwin C. Gerson
resigned as directors of eXegenics;
o on May 19, 2003, the service of Mr. Gary Frashier as a
director of and consultant to eXegenics ended; and
o on May 19, 2003, eXegenics announced that Joseph M. Davie,
M.D., Ph.D. had been elected to the Audit Committee of the
Board and that Walter M. Lovenberg, Ph.D had been elected lead
director.
THE BOARD OF DIRECTORS
Information regarding eXegenics' current Board of Directors appears
below:
Name Age Position with eXegenics
---- --- -----------------------
Joseph M. Davie, M.D. Ph.D. 63 Director
Robert J. Easton 58 Director
Ronald L. Goode, Ph.D. 59 President, Chief Executive Officer,
Chairman of the Board and Director
Walter M. Lovenberg, Ph.D. 66 Director
JOSEPH M. DAVIE, M.D., PH.D. was elected a director in 2003. He has
held key management positions at Biogen (Vice President and then Senior Vice
President of Research 1993-2000), and G.D. Searle (Senior Vice President of
Research, 1987-1989; President of Research and Development, 1987-1992; Corporate
Senior Vice President of Science and Technology, 1993). Prior to that, he was a
professor at Washington University School of Medicine, St. Louis, first as
Associate Professor of Pathology (1972-1975), then as Professor and Head of the
Department of Microbiology and Immunology (1975-1987). His training includes a
Ph.D. from Indiana University (1966), an M.D. from Washington University (1968),
internship and residency training in pathology from Barnes Hospital, St. Louis,
and the National Cancer Institute, Bethesda, MD, and post-doctoral training at
Washington University and the National Institutes of Health. He has served on a
variety of advisory panels and councils and was elected to the Institute of
Medicine in 1987. He currently serves on the boards of one Nasdaq-listed
company, Targeted Genetics Corporation, and several private companies.
ROBERT J. EASTON was elected to the Board of Directors in December
2000. Mr. Easton is Chairman of Easton Associates LLC. Prior to this latest
venture, he spent 19 years as a management consultant, most recently as Managing
Director with IBM Healthcare Consulting ("IBM"). Prior to IBM, Mr. Easton served
as President of the Wilkerson Group, also a health care consulting concern. Mr.
Easton has executed proprietary studies in a wide variety of medical products
and service fields. His areas of expertise include pharmaceuticals,
biotechnology and in vitro diagnostics. Mr. Easton is a frequent speaker for
medical industry and investment groups in the U.S. and Europe. He is a director
of CollaGenex Pharmaceuticals and Cepheid, Inc., both Nasdaq-listed companies.
Mr. Easton is also a director of a private company, the former President of the
Biomedical Marketing Association and Special Limited Partner of Advanced
Technology Ventures. Mr. Easton received an M.B.A. from Harvard Graduate School
of Business Administration and undergraduate degrees in Chemical Engineering
from Rice University.
RONALD L. GOODE, PH.D. was named President and Chief Executive Officer
and elected to the Board of Directors on March 21, 2001. On December 9, 2002,
Dr. Goode was elected as Chairman of the Board of Directors. Dr. Goode has held
key management positions at G. D. Searle & Co. (Corporate Senior Vice President
and President of Asia/Pacific World Area from 1995 to 1997, President of Searle
International from 1991 to 1995, and Senior Vice President of Commercial
Development from 1986 to 1989) and before that at Pfizer Pharmaceuticals (Vice
President of Clinical Research and Scientific Affairs from 1985 to 1986 and
Director of Marketing Research in 1980). He has an extensive record of success
in business development, having been responsible for many of Searle's
acquisitions, including DayPro(R), which became Searle's largest selling drug.
Dr. Goode has supervised clinical development programs that led to the filing of
over a dozen New Drug Approval applications, including Procardia XL(R) and
Ambien(R). From 1997 to 1999, Dr. Goode was President and CEO of Unimed
Pharmaceuticals, Inc. He formed the consulting company Pharma-Links in 1999 with
the mission of being the "link" between pharmaceutical companies to help them
create alliances, form joint ventures and effect various transactions. In 2000,
Dr. Goode and his wife spent a sabbatical with his 'charity of choice', Mercy
Ships. Dr. Goode also serves on the Board of Directors of several not-for-profit
organizations. Dr. Goode received his Ph.D. in Microbiology from the University
of Georgia.
WALTER M. LOVENBERG, PH.D. has been one of our directors since August
1995. From 1989 to 1993, Dr. Lovenberg served as Executive Vice President and
member of the Board of Directors of Marion Merrell Dow Inc. Dr. Lovenberg also
served as President of the Marion Merrell Dow Research Institute from 1989 to
1993 and Vice President from 1986 through 1989. Prior to joining Marion Merrell
Dow in 1958, Dr. Lovenberg was a Senior Scientist and Chief of Biochemical
Pharmacology at the National Institutes of Health. Dr. Lovenberg has served as
President of Lovenberg Associates, Inc. since 1993. From 1997 to 2000, Dr.
Lovenberg served as Chief Executive Officer of Helicon Therapeutics Inc., a
private company. Dr. Lovenberg currently serves as a director of the following
public companies: OSI Pharmaceuticals, Inc., and Inflazyme, Inc. Dr. Lovenberg
serves on the Scientific Advisory Board of Guilford Pharmaceuticals, Inc., a
Nasdaq listed company. Dr. Lovenberg is also a director of several private
biotechnology companies including Helicon Therapeutics, Inc., Proquest
Pharmaceuticals, Inc., and Merrimack Pharmaceuticals, Inc. Dr. Lovenberg
received a Ph.D. in Biochemistry from George Washington University in 1962, and
prior to that, a B.S. in Biochemistry and a M.S. in Agriculture from Rutgers
University. Dr. Lovenberg, who serves as Executive Editor of Analytical
Biochemistry, is a consulting editor to several scientific journals. Dr.
Lovenberg has been the recipient of many awards, including a Fulbright-Hays
Senior Scholar Award and a Public Health Service Superior Service Award. Dr.
Lovenberg is a member of the American College of Neuropsychopharmacology, the
American Society of Neurochemistry and the American Society of Biochemistry and
Molecular Biology.
The business address of each of the directors is c/o eXegenics Inc.,
2110 Research Row, Dallas, TX 75235.
COMMITTEES OF THE BOARD OF DIRECTORS AND MEETINGS
Committee Structure. During 2002, our Board had three permanent
committees (Audit Committee, Compensation and Organization Committee and
Nominating Committee) and one ad hoc committee (Business Development Task
Force). Subsequent to the enactment of the Sarbanes-Oxley Act of 2002, our Board
determined it to be in the best interest of our shareholders to begin
reorganizing the Board's committee structure in anticipation of implementation
of provisions of Sarbanes-Oxley that will address said committees. On May 24,
2003, the Board's committee structure was reorganized such that the Compensation
and Organization Committee and the Nominating Committee were eliminated and
replaced, respectively, with a new Compensation Committee and a Nominating and
Governance Committee. The Audit Committee and the Business Development Task
Force were unaffected by this reorganization.
Meeting Attendance. During the year ended December 31, 2002, there were
14 meetings of our Board of Directors, and the various committees of the Board
met a total of 13 times. No director attended fewer than 75% of the total number
of meetings of the Board and of committees of the Board on which he served
during fiscal 2002.
Audit Committee. Our Audit Committee met five times during 2002. This
committee had three members during fiscal 2002, Irwin Gerson (Chairman) and Ira
J. Gelb, both of whom resigned from the eXegenics Board on May 15, 2003, and
Walter M. Lovenberg, Ph.D. On May 19, 2003, the Board appointed Joseph M. Davie,
M.D., Ph.D. to the Audit Committee and our Audit Committee is now comprised of
two members, Joseph M. Davie, M.D., Ph.D. and Walter M. Lovenberg, Ph.D. Our
Audit Committee reviews the engagement of our independent accountants, reviews
annual financial statements, considers matters relating to accounting policy and
internal controls and reviews the scope of annual audits. Please also see the
report of the Audit Committee set forth elsewhere in this proxy statement. Dr.
Davie and Dr. Lovenberg are "independent" as defined by current National
Association of Securities Dealers' listing standards. The Audit Committee
operates under a written Charter approved by the Board of Directors.
Compensation and Organization Committee. Our Compensation and
Organization Committee met three times during fiscal 2002, and had three
members: Gary E. Frashier (Chairman), whose service as a director ended on May
19, 2003, Irwin C. Gerson, who resigned on May 15, 2003 and Robert J. Easton. On
May 24, 2003, a new Compensation Committee replaced the existing Compensation
and Organization Committee, and is presently comprised of Joseph M. Davie, M.D.,
Ph.D., Robert J. Easton and Walter M. Lovenberg, Ph.D. The Compensation and
Organization Committee reviews, approves and makes recommendations regarding our
compensation policies, practices and procedures to ensure that legal and
fiduciary responsibilities of the Board of Directors are carried out and that
such policies, practices and procedures contribute to our success. The
Compensation Committee operates under a written Charter approved by the Board of
Directors.
Nominating Committee. During the last fiscal year, we had a Nominating
Committee, which consisted of Gary E. Frashier (Chairman), whose service as a
director ended on May 19, 2003, Ira J. Gelb, who resigned on May 15, 2003, and
Walter M. Lovenberg, Ph.D. The Committee held no meetings during fiscal 2002. On
May 24, 2003, the Nominating Committee was replaced by a new Nominating and
Governance Committee, and is currently comprised of three members, Joseph M.
Davie, M.D., Ph.D., Robert J. Easton and Walter M. Lovenberg, Ph.D. The
committee's role, following consultation with all other members of the Board of
Directors, is to make recommendations to the full Board as to the size and
composition of the Board and to make recommendations as to particular nominees.
Our Nominating and Governance Committee will consider nominees recommended by
stockholders. Stockholders may submit recommendations with regard to nominees
for election to the Board of Directors by notice in writing, received by our
Secretary at least 55 days prior to the anniversary date of the date in the
prior year on which we first mailed our proxy materials for the prior year's
annual meeting of shareholders, but not earlier than 75 days prior to that date.
Each notice of nomination by a shareholder must set forth (i) such information
relating to a nominee that is required by Regulation 14A under the Securities
Exchange Act of 1934, (ii) the nominee's written consent to being named as a
nominee and to serving as a director, if elected, (iii) the name, address and
eXegenics stock ownership information of the stockholder giving notice and the
beneficial owner, if any, on whose behalf the nomination is made, and (iv)
whether such stockholder or beneficial owner intends to deliver proxy materials
to a sufficient number of stockholders required to elect such nominee. The
Nominating Committee operates under a written Charter approved by the Board of
Directors.
Compensation Committee Interlocks and Insider Participation. None of
the members of our current Compensation Committee serve as a member of the Board
of Directors or Compensation Committee of any entity that has one or more
executive officers serving as a member of our Board of Directors or Compensation
Committee. Please see the section entitled "Certain Relationships and Related
Transactions" set forth elsewhere in this proxy statement for a description of
transactions between us and Messrs. Gary E. Frashier, one of our former
directors, and Robert J. Easton.
Business Development Task Force. Our Business Development Task Force
met five times during fiscal 2002. The committee had four members, Gary E.
Frashier (Chairman), whose service as a director ended on May 19, 2003, Ronald
L. Goode, Ph.D., Robert J. Easton and Walter M. Lovenberg, Ph.D. This committee
had reviewed potential business alliances.
COMPENSATION OF DIRECTORS
In December 2002, the Directors agreed to a reduction of approximately
33% in their compensation for the monthly service fee and the meeting fees, from
$1,500 to $1,000. We currently pay each non-employee director a monthly fee of
$1,000 for service as a director, plus $1,000 for each day of a Board of
Directors meeting attended, $1,000 for each Board of Directors conference call
meeting in which he participated, $750 for each committee meeting attended and
$750 for each committee conference call meeting in which he participated. We
reimburse directors for all expenses incurred for attending our Board meetings
and committee meetings.
Directors are eligible to participate in our Amended and Restated 2000
Stock Option Plan (the "Plan"). The Board of Directors previously approved an
option grant schedule for non-employee directors that provides for an option to
purchase 50,000 shares of our common stock upon first joining the Board and then
annual grants to be awarded at the beginning of each calendar year as follows:
(i) an option to purchase 25,000 shares of our common stock until a total of
150,000 options is reached, (ii) an option to purchase 15,000 shares of our
common stock until a total of 200,000 options is reached, then (iii) an option
to purchase 10,000 shares of our common stock every year thereafter. The initial
grant of an option to purchase 50,000 shares of our common stock has an exercise
price equivalent to the fair market value of our common stock on the date of
issuance, while each annual option grant has an exercise price equivalent to the
fair market value of our common stock on the second Friday of January of the
year in which it was granted. In addition, directors are eligible to receive
other periodic grants of options from time to time under the Plan. Options
granted under the Plan to non-employee directors are immediately exercisable on
the date of grant. Options to purchase a total of 90,000 shares were granted
under this formula during fiscal 2002 to Robert J. Easton and Walter M.
Lovenberg and to former directors, Gary E. Frashier, Ira J. Gelb and Irwin C.
Gerson. Options granted during fiscal 2002 to Arthur P. Bollon and Ronald L.
Goode, Ph.D. are reported under "Executive Compensation -- Option Grants in Last
Fiscal Year" set forth elsewhere in this proxy statement.
We paid Easton Associates L.L.C., of which Robert J. Easton, one of our
directors, is the Chairman, $62,500 during fiscal 2002 for consulting services
for strategy and market planning services. This payment is in addition to the
remuneration Mr. Easton receives as a director.
During fiscal 2002, Gary E. Frashier, one of our former directors, was
also employed by us as a consultant in addition to his responsibilities as a
director. Mr. Frashier's total remuneration for consulting services during
fiscal 2002 was $67,500. This payment was in addition to the remuneration Mr.
Frashier received as a director.
EXECUTIVE OFFICERS
DAVID E. RIGGS, age 51, our Vice President, Chief Business Officer and
Chief Financial Officer, is presently our only executive officer who is not also
a director.
David E. Riggs joined us in March 2003 as Vice President, Chief
Business Officer and Chief Financial Officer. Mr. Riggs most recently was
Founder and President of EMLIN Bioscience. From 2000 to 2001 he was Senior Vice
President and Chief Financial Officer of Celera Genomics Group (previously Axys
Pharmaceuticals, Inc. - Nasdaq: AXPH). From 1992 to 2000 he was with Unimed
Pharmaceuticals, Inc. (previously Nasdaq: UMED) where he was Senior Vice
President of Business Operations and prior to that, Chief Financial Officer and
Secretary. Mr. Riggs also served as Chief Financial Officer of NeoPharm, Inc.
(Nasdaq: NEOL) and VideoCart, Inc. (formerly Nasdaq: VCRT). He has held
financial management positions at Fujisawa Healthcare, Inc. and GATX
Corporation. He is a certified public accountant having earned a B.S. from the
University of Illinois and an M.B.A. from DePaul University.
The business address of Mr. Riggs is c/o eXegenics Inc., 2210 Research
Row, Dallas, Texas 75235. Biographical information with respect to Dr. Goode
appears above under the caption "Board of Directors."
EXECUTIVE COMPENSATION
The information contained below was disseminated to eXegenics
stockholders in eXegenics' Proxy Statement dated April 15, 2003 in connection
with our 2003 Annual Meeting of Stockholders which was held on June 17, 2003.
Such information pertains to the year ended December 31, 2002. Subsequent to
December 31, 2002, Arthur P. Bollon, a former director and Executive Vice
President, Robert J. Rousseau, the former Vice President of Business Development
and Licensing, and Joan Gillett, the former Vice President, Controller and
Principal Accounting Officer, resigned from their respective positions at
eXegenics.
SUMMARY COMPENSATION TABLE
The following Summary Compensation Table sets forth summary information
as to compensation received by our Chief Executive Officer and each of our other
most highly compensated executive officers who were employed by us at the end of
fiscal 2002 for services rendered to us in all capacities during the three
fiscal years ended December 31, 2000, 2001 and 2002, and who earned in excess of
$100,000 for services rendered to us during fiscal 2002.
LONG-TERM
ANNUAL COMPENSATION COMPENSATION
----------------------------------------------- ------------
SECURITIES
OTHER ANNUAL UNDERLYING
NAME AND PRINCIPAL POSITION YEAR SALARY BONUS COMPENSATION OPTIONS (#)
------------------------------ ---- -------- -------- ------------ -----------
Ronald L. Goode, Ph.D ................. 2002 $373,333 -- $ 12,000(2) 300,000
President, CEO, Chairman and Director 2001 $275,512 $105,000 $ 81,312(1) 400,000
2000 -- -- -- --
Arthur P. Bollon, Ph.D ................ 2002 $250,000 -- $ 6,000(2) 25,000
Former Executive Vice President 2001 $254,487 $ 25,000 $ 6,038(2) 100,000
and Director(3) 2000 $220,769 -- $ 6,000(2) 75,000
Joan H. Gillett ....................... 2002 $141,500 -- $ 6,000(2) 35,000
Vice President and Controller (4) 2001 $133,667 $ 14,000 $ 4,884(2) --
2000 $ 24,000 -- -- 35,000
Robert J. Rousseau, Ph.D .............. 2002 $151,667 -- $ 6,000(2) 15,000
Former Vice President of Business 2001 $111,873 -- $ 27,668(6) 50,000
Development and Licensing (5) 2000 -- -- -- --
------
(1) Other annual compensation for Dr. Goode during fiscal 2001 consisted of
$70,812 toward relocation expenses and $10,500 toward car expenses.
(2) Other annual compensation for these named executive officers consisted
of a car allowance.
(3) Dr. Bollon served as our Executive Vice President and a Director until
his resignation on January 10, 2003.
(4) Ms. Gillett served as our Vice President, Controller and Principal
Accounting Officer until her resignation, which was effective as of
April 30, 2003.
(5) Dr. Rousseau served as our Vice President of Business Development and
Licensing until his resignation which was effective as of January 31,
2003.
(6) Other annual compensation for Dr. Rousseau for fiscal 2001 consisted of
$22,691 toward relocation expenses and $4,977 toward car expenses.
OPTION GRANTS IN OUR LAST FISCAL YEAR
The following table shows grants of stock options that we made during
the fiscal year ended December 31, 2002 to each of our executive officers named
in the Summary Compensation Table, above.
INDIVIDUAL GRANTS
----------------------------------------------------- POTENTIAL REALIZABLE
VALUE AT ASSUMED
NUMBER OF ANNUAL RATES OF STOCK
SECURITIES % OF TOTAL PRICE APPRECIATION FOR
UNDERLYING OPTIONS OPTION TERM (5)
OPTIONS GRANTED TO EXERCISE OR ----------------------
GRANTED EMPLOYEES IN BASE PRICE EXPIRATION
NAME (#) FISCAL YEAR ($/SHARE) DATE 5% 10%
------------------------------------ ---------- ------------ ----------- ---------- -------- --------
Ronald L. Goode, Ph.D. (1) ......... 300,000 52.49 $ 1.00 12/09/2012 $189,297 $479,716
Arthur P. Bollon, Ph.D. (2) ........ 25,000 4.37 $ 1.77 3/3/2012 $ 27,829 $ 70,523
Joan Gillett (3) ................... 35,000 6.12 $ 1.07 12/09/2012 $ 23,489 $ 59,526
Robert J. Rousseau, Ph.D.(4) ....... 15,000 2.62 $ 1.77 3/3/2012 $ 16,697 $ 42,314
--------------
(1) The options are non-qualified stock options, granted pursuant to
eXegenics' Amended and Restated 2000 Stock Option Plan. Options to
purchase 100,000 shares of Common Stock, at an exercise price of $1.93
per share, vest annually in three equal installments commencing one
year from the date of grant. Options to purchase 200,000 shares of
Common Stock, at an exercise price of $0.54 per share, vested at the
time of the grant.
(2) The options are non-qualified stock options, granted pursuant to
eXegenics' Amended and Restated 2000 Stock Option Plan. Options to
purchase 25,000 shares of Common Stock, at an exercise price of $1.77
per share, vest annually in three equal installments commencing one
year from the date of grant.
(3) The options are non-qualified stock options, granted pursuant to
eXegenics' Amended and Restated 2000 Stock Option Plan. Options to
purchase 15,000 shares of Common Stock, at an exercise price of $1.77
per share, vest annually in three equal installments commencing one
year from the date of grant. Options to purchase 20,000 shares of
Common Stock, at an exercise price of $0.54 per share, vested at the
time of the grant.
(4) The options are non-qualified stock options, granted pursuant to
eXegenics' Amended and Restated 2000 Stock Option Plan. Options to
purchase 15,000 shares of Common Stock, at an exercise price of $1.77
per share, vest annually in three equal installments commencing one
year from the date of grant.
(5) In accordance with the rules of the SEC, we show in these columns the
potential realizable value over the term of the option (the period from
the grant date to the expiration date). We calculate this assuming that
the fair market value of our Common Stock on the date of grant
appreciates at the indicated annual rate, 5% and 10% compounded
annually, for the entire term of the option and that the option is
exercised and sold on the last day of its term for the appreciated
stock price. These amounts are based on assumed rates of appreciation
and do not represent an estimate of our future stock price. Actual
gains, if any, on stock option exercises will depend on the future
performance of our Common Stock, the option holder's continued
employment with us through the option exercise period, and the date on
which the option is exercised.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION
VALUES
The following table shows information regarding exercises of options to
purchase our common stock by each executive officer named in the Summary
Compensation Table during the fiscal year ended December 31, 2002. The table
also shows the aggregate value of options held by each executive officer named
in the Summary Compensation Table as of December 31, 2002. The value of the
unexercised in-the-money options at fiscal year end is based on a value of $0.35
per share, the closing price of our stock on the Nasdaq SmallCap Market on
December 31, 2002 (the last trading day prior to the fiscal year end), less the
per share exercise price.
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF THE UNEXERCISED
OPTIONS AT FISCAL IN-THE-MONEY OPTIONS
SHARES YEAR-END AT FISCAL YEAR-END
ACQUIRED ON VALUE -------------------------- --------------------------
NAME EXERCISE REALIZED(1) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
------------------------------- ----------- ----------- ----------- ------------- ----------- -------------
Ronald L. Goode, Ph.D ......... -- $0 600,000 100,000 $0 $0
Arthur P. Bollon, Ph.D ........ -- $0 495,000 75,000 $0 $0
Joan H. Gillett ............... -- $0 55,000 15,000 $0 $0
Robert J. Rousseau, Ph.D ...... -- $0 25,000 40,000 $0 $0
--------------
(1) Amounts shown in this column do not necessarily represent actual value
realized from the sale of the shares acquired upon exercise of the
option because in many cases the shares are not sold on exercise but
continue to be held by the executive officer exercising the option. The
amounts shown represent the difference between the option exercise
price and the market price on the date of exercise, which is the amount
that would have been realized if the shares had been sold immediately
upon exercise.
EMPLOYMENT CONTRACTS, TERMINATION OF EMPLOYMENT AND CHANGE-IN-CONTROL
ARRANGEMENTS
Ronald L. Goode, Ph.D. entered into an employment agreement with us on
March 21, 2001 to serve as our President and Chief Executive Officer until March
20, 2004. The employment agreement provides for the payment to Dr. Goode of a
base salary of $375,000 per year with an annual bonus payment of up to 60% of
Dr. Goode's base salary, at the discretion of the Board of Directors. On
December 9, 2003, Dr. Goode's base salary was increased to $405,000 and he was
awarded a bonus, payable in January 2003, of $105,000. The employment agreement
provides that in the event Dr. Goode's employment is terminated by us without
cause, Dr. Goode terminates his employment for good reason, or upon a change of
control, Dr. Goode shall receive severance payments of equal monthly
installments at the base rate until the expiration of 18 months following the
date of termination, if such date is after March 21, 2003. Dr. Goode also
receives a car expense allowance of $1,000 per month under the employment
agreement. The employment agreement contains a two-year post-termination
non-compete, non-solicitation and non-disclosure agreement.
Arthur P. Bollon, Ph.D. was employed by us under an employment
agreement that provided for payment of his salary through November 6, 2003,
which was automatically renewable absent notice from us of our intent not to
renew; Dr. Bollon and we mutually agreed as to the termination of his employment
on January 10, 2003. The employment agreement provided for the payment to Dr.
Bollon of a base salary of $250,000 per year. In addition, in the event Dr.
Bollon was terminated without cause or due to a disability, the employment
agreement provided that Dr. Bollon would have received severance payments of
equal monthly installments at his base rate until the expiration of the term.
Dr. Bollon also received a car expense allowance of approximately $600 per month
under the employment agreement. The employment agreement contained a one year
post-termination non-compete and non-solicitation agreement.
David E. Riggs entered into an employment agreement with us on March
10, 2003, to serve as our Vice President, Chief Business Officer and Chief
Financial Officer until March 9, 2006, to be automatically renewed for
additional one-year periods, unless sooner terminated. The employment agreement
provides for the payment to Mr. Riggs of a base salary of $235,000 per year with
an annual bonus payment of up to 30% of Mr. Riggs's base salary, at the
discretion of the Board of Directors. The employment agreement provides that in
the event Mr. Riggs' employment is terminated by us without cause or by Mr.
Riggs for good reason, Mr. Riggs shall receive severance payments of equal
monthly installments at the then current base rate until either (i) the
expiration of 12 months following the date of termination, if such date is prior
to March 10, 2004, (ii) the expiration of nine months following the date of
termination, if such date is before March 10, 2005, (iii) the expiration of six
months following the date of termination, if such date is before March 9, 2006,
or (iv) the expiration of six months following the date of termination, if such
date is during a renewal period. The employment agreement contains a one-year
post-termination non-compete, non-solicitation and non-disclosure agreement.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires our directors, officers and
persons who own more than 10% of our common stock, to file with the Securities
and Exchange Commission initial reports of beneficial ownership and reports of
changes in beneficial ownership of our common stock and other equity securities.
Officers, directors and greater than 10% beneficial owners are required by SEC
regulation to furnish us with copies of all Section 16(a) forms they file.
To our knowledge, based solely on review of the copies of such reports
furnished to us and written representations that no other reports were required,
during the fiscal year ended December 31, 2002, all Section 16(a) filing
requirements applicable to our officers, directors and greater than 10%
beneficial owners were complied with, except that two reports filed by Ronald L.
Goode, Ph.D. each covering one stock option grant were filed late and two
reports, each covering one stock option grant, were not timely filed by Joan
Gillett. Reports, each covering one stock option grant, were also filed late by
former directors and/or officers Arthur P. Bollon, Ph.D., Gary M. Frashier, Ira
J. Gelb, M.D., Irwin C. Gerson and Robert J. Rousseau, Ph.D. as well as by
Robert J. Easton and Walter M. Lovenberg, Ph.D.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The table below shows the number of shares of our Common Stock and
Preferred Stock beneficially owned as of June 20, 2003 by the following persons:
o each stockholder known by us to beneficially own more than 5%
of the outstanding shares of either the Common Stock or
Preferred Stock;
o each current member of the Board of Directors;
o our President and Chief Executive Officer and each of our next
most highly compensated executive officers who earned more
than $100,000 during the fiscal year ended December 31, 2002,
collectively referred to below as our named executive
officers; and
o all directors and named executive officers as a group.
Contrary to Foundation's allegation in its press release dated June 13,
2003, the number of shares of Common Stock and Preferred Stock of eXegenics
outstanding as of June 11, 2003, as reflected in our Schedule 14D-9, was
accurate, as verified by our transfer agent, The American Stock Transfer & Trust
Company.
To our knowledge and unless otherwise indicated, each person in the
table has sole voting power and investment power, or shares such power with his
or her spouse, with respect to all shares of capital stock listed as owned by
such person.
The number of shares beneficially owned by each stockholder is
determined under the rules promulgated by the SEC. The information is not
necessarily indicative of beneficial ownership for any other purpose. Under
these rules, beneficial ownership includes any shares as to which the individual
has sole or shared voting power or investment power and any shares as to which
the individual has the right to acquire beneficial ownership within 60 days
after June 20, 2003 through the exercise of any option, warrant or other right.
The inclusion in the following table of those shares, however, does not
constitute an admission that the named stockholder is a direct or indirect
beneficial owner of those shares.
COMMON STOCK SERIES A PREFERRED STOCK
------------------------- ------------------------
PERCENT PERCENT PERCENT OF ALL
NAME AND ADDRESS OF BENEFICIAL OWNER (1) NUMBER OF CLASS (2) NUMBER OF CLASS (3) VOTING SECURITIES (4)
----------------------------------------- --------- ------------ ------ ------------ ---------------------
Bruce Meyers (5) ........................ 1,855,270 9.56% 35,433 3.89% 9.31%
Joseph M. Davie, Ph.D. (6) .............. -- * -- -- *
Robert J. Easton (7) .................... 70,835 * -- -- *
Ronald L. Goode, Ph.D. (8) .............. 745,030 3.84% -- -- 3.67%
Walter M. Lovenberg, Ph.D, (9) .......... 178,000 * -- -- *
David E. Riggs (10) ..................... 82,200 *
Directors and executive officers as a
group (5 persons) (11) ................ 1,076,065 5.55% 5.30%
----------
* Less than 1%
Except as otherwise indicated, each of the persons named has sole voting and
investment power with respect to the shares shown below.
(1) Except as otherwise indicated, the address of each beneficial owner is
c/o eXegenics Inc., 2110 Research Row, Dallas, Texas 75235.
(2) Calculated on the basis of 16,184,486 shares of Common Stock
outstanding as of June 20, 2003 except that shares of Common Stock
underlying options and warrants exercisable within 60 days of the date
hereof are deemed to be outstanding for purposes of calculating the
beneficial ownership of securities of the holder of such options or
warrants. This calculation excludes shares of Common Stock issuable
upon the conversion of Preferred Stock.
(3) Calculated on the basis of 910,822 shares of Preferred Stock
outstanding.
(4) Calculated on the basis of an aggregate of 16,184,486 shares of Common
Stock and 910,822 shares of the Preferred Stock outstanding as of June
20, 2003, except that shares of Common Stock underlying options and
warrants exercisable within 60 days of the date hereof are deemed to be
outstanding for purposes of calculating beneficial ownership of
securities of the holder of such options or warrants. This calculation
excludes shares of Common Stock issuable upon the conversion of the
Preferred Stock.
(5) Mr. Meyers' address is c/o Roan/Meyers Associates, L.P., 45 Broadway,
New York, New York 10004. Mr. Meyers is the sole stockholder, officer
and director of the corporate general partner of Roan/Meyers
Associates, L.P., or RMA (formerly, Janssen-Meyers Associates, L.P.).
Mr. Meyers' beneficial ownership consists of 35,800 shares of Common
Stock held by The Meyers Foundation, of which Mr. Meyers has voting
control, and the following securities owned by RMA: (i) 1,444,470
shares of Common Stock, (ii) 125,000 shares of Common Stock issuable
upon the exercise of currently exercisable two-year warrants issued in
2001 to RMA, and (iii) 250,000 shares of Common Stock issuable upon the
exercise of currently exercisable five-year warrants issued in 2002 to
RMA. Does not include 35,433 shares of Common Stock issuable upon the
conversion of 35,433 shares of Preferred Stock. Except with respect to
the warrants issued in 2001 and 2002, this information was obtained
from the last Schedule 13D filed by Mr. Meyers, which was filed with
the SEC on June 1, 2000.
(6) Does not include options to purchase 50,000 shares of Common Stock not
exercisable within 60 days of the date hereof.
(7) Ownership consists of options to purchase 70,835 shares of Common Stock
currently exercisable or exercisable within 60 days of the date hereof.
Does not include options to purchase 54,165 shares of Common Stock not
exercisable within 60 days of the date hereof.
(8) Ownership consists of 111,700 shares of Common Stock and options to
purchase 633,330 shares of Common Stock that are currently exercisable
or exercisable within 60 days of the date hereof. Does not include
options to purchase 66,670 shares of Common Stock not exercisable
within 60 days of the date hereof.
(9) Ownership consists of 4,500 shares of Common Stock and options to
purchase 173,500 shares of Common Stock currently exercisable or
exercisable within 60 days of the date hereof. Does not include options
to purchase 31,500 shares of Common Stock not exercisable within 60
days of the date hereof.
(10) Ownership consists of 7,200 shares of Common Stock and options to
purchase 75,000 shares of Common Stock currently exercisable or
exercisable within 60 days of the date hereof. Does not include options
to purchase 150,000 shares of Common Stock not exercisable within 60
days of the date hereof.
(11) Ownership consists of 125,400 shares of Common Stock and options to
purchase an aggregate of 1,619,665 shares of Common Stock which are
currently exercisable or exercisable within 60 days of the date hereof.
Does not include options to purchase 353,334 shares of Common Stock not
exercisable within 60 days of the date hereof.
The following table sets forth information regarding all purchases and
sales of eXegenics' Common Stock since June 20, 2001 by each of eXegenics'
directors and executive officers:
NAME DATE PURCHASED OR SOLD NUMBER OF SHARES
---------------------- ---------- ----------------- ----------------
Ronald L. Goode, Ph.D. 02/04/2002 Purchased 2,500
12/20/2001 Purchased 4,400
12/04/2001 Purchased 5,000
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Easton Associates L.L.C.
In December 2000, we entered into an agreement with Easton Associates
L.L.C. for strategy and market planning services. Under this agreement, Easton
Associates was paid $62,500 for services rendered in 2002. Mr. Easton, one of
our directors, is the chairman of Easton Associates.
Gary E. Frashier
In December 2000, we entered into an agreement with Gary E. Frashier,
one of our former directors, for consulting services. Mr. Frashier was paid
$67,500 for his consulting services during fiscal 2002. This consulting
agreement terminated as of May 19, 2003.
Ronald L. Goode, Ph.D.
In May 2001, we sold 100,000 shares of Common Stock to our President
and Chief Executive Officer, Ronald L. Goode, Ph.D., for a purchase price of
$3.25 per share, the fair market value at the time of the transaction. Dr. Goode
paid the purchase price of $325,000 with $25,000 in cash and $300,000 by issuing
a five-year promissory note to us bearing interest at a rate of 4.71% per annum,
payable semi-annually. To date, Dr. Goode is current on all loan payments and
had made $22,325 in interest payments as of December 31, 2002.
Roan/Meyers Associates, L.P.
On August 13, 2002, we entered into an agreement with Roan/Meyers
Associates, L.P. for financial advisory services. Pursuant to the terms of this
agreement, we paid Roan/Meyers Associates a retainer of $50,000 and must pay
them $6,500 per month through July 2003. In addition, we issued them warrants to
purchase 125,000 shares of our Common Stock at a purchase price of $1.00 per
share, with an expiration date of August 13, 2007, and additional warrants to
purchase 125,000 shares of our Common Stock at a purchase price of $0.55 per
share, with an expiration date of August 13, 2007. Roan/Meyers Associates is
also entitled to reimbursement for reasonable out-of-pocket expenses.
STOCKHOLDER PROPOSALS
To be considered for inclusion in the proxy statement relating to our
Annual Meeting of Stockholders to be held in 2004, stockholder proposals must be
received not later than February 18, 2004 nor earlier than January 29, 2004.
Proposals received after February 18, 2004 will not be voted on at the 2004
Annual Meeting. If a proposal is received before that date, the proxies that
management solicits for the meeting may still exercise discretionary voting
authority on the proposal under circumstances consistent with the proxy rules of
the SEC. All stockholder proposals should be marked for the attention of
Secretary, eXegenics Inc., 2110 Research Row, Dallas, Texas 75235.
APPRAISAL RIGHTS
Stockholders of eXegenics are not entitled to appraisal rights in
connection with the Foundation Proposals or this Consent Revocation Statement.
SOLICITATION OF REVOCATIONS
The cost of the solicitation of revocations of consent will be borne by
eXegenics. eXegenics estimates that the total expenditures in connection with
such solicitation (including the fees and expenses of eXegenics' attorneys,
public relations advisers and solicitors, including the fees to be paid to
Georgeson, as set forth below, and advertising, printing, mailing, travel and
other costs, but excluding salaries and wages of officers and employees), will
be approximately $150,000, of which approximately $50,000 has been incurred to
date. Directors and executive officers of eXegenics may, without additional
compensation, solicit revocations by mail, in person, by telecommunication or by
other electronic means.
eXegenics has retained Georgeson, at an estimated fee of $40,000 plus
reasonable out-of-pocket expenses, to assist in the solicitation of revocations,
as well as to assist eXegenics with its communications with its stockholders
with respect to, and to provide other services to eXegenics in connection with,
eXegenics' opposition to the Foundation Offer and the Foundation consent
solicitation. Approximately 15 persons will be utilized by Georgeson in its
efforts. eXegenics will reimburse brokerage houses, banks, custodians and other
nominees and fiduciaries for out-of-pocket expenses incurred in forwarding
eXegenics' consent revocation materials to, and obtaining instructions relating
to such materials from, beneficial owners of Common Stock. eXegenics has agreed
to indemnify Georgeson against certain liabilities and expenses in connection
with its engagement.
PARTICIPANTS IN THE SOLICITATION
Under applicable regulations of the Securities and Exchange Commission,
each member of the Board and each of the executive officers of eXegenics may be
deemed to be a "participant" in eXegenics' solicitation of revocations of
consent. The principal occupations and business addresses of each participant
are set forth under "Management." Information about the present ownership of
eXegenics' Common Stock by directors and executive officers is provided under
"Security Ownership of Certain Beneficial Owners and Management." Other than as
described in this document, there are no agreements or understandings between
eXegenics and any of its executive officers or directors relating to employment
with eXegenics or any future transactions.
ADDITIONAL INFORMATION
If you have any questions about the Foundation Offer, the Foundation
Proposals or this Consent Revocation Statement, please contact our information
agent:
GEORGESON SHAREHOLDER COMMUNICATIONS INC.
17 STATE STREET - 10TH FLOOR
NEW YORK, NEW YORK 10004
CALL TOLL FREE: (888) 964-0733
BANKS & BROKERS CALL: (212) 440-9800
_________, 2003
IMPORTANT
1. If your shares are registered in your own name, please sign, date and mail
the enclosed BLUE Revocation of Consent Card to Georgeson in the postage-paid
envelope provided.
2. If you have previously signed and returned a white consent card to
Foundation, you have every right to change your vote. Only your latest dated
card will count. You may revoke any white consent card already sent to
Foundation by signing, dating and mailing the enclosed BLUE Revocation of
Consent Card in the postage-paid envelope provided.
3. If your shares are held in the name of a brokerage firm, bank nominee or
other institution, only it can sign a consent revocation with respect to your
shares and only after receiving your specific instructions. Accordingly, please
sign, date and mail the enclosed BLUE Revocation of Consent Card in the
postage-paid envelope provided. To ensure that your shares are voted, you should
also contact the person responsible for your account and give instructions for a
BLUE Revocation of Consent Card to be issued representing your shares.
4. After signing the enclosed BLUE Revocation of Consent Card, do not sign or
return the white consent card. Do not even use Foundation's white consent card
to indicate your opposition to the Foundation Consent Proposals.
If you have any questions about giving your revocation of consent or
require assistance, please call:
GEORGESON SHAREHOLDER COMMUNICATIONS INC.
17 STATE STREET - 10TH FLOOR
NEW YORK, NEW YORK 10004
CALL TOLL FREE: (888) 964-0733
BANKS & BROKERS CALL: (212) 440-9800
PRELIMINARY COPY
SUBJECT TO COMPLETION - DATED JUNE 25, 2003]
[FORM OF REVOCATION OF CONSENT CARD - BLUE]
EXEGENICS INC.
THIS REVOCATION OF CONSENT IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF
EXEGENICS INC. IN OPPOSITION TO THE SOLICITATION BY FOUNDATION GROWTH
INVESTMENTS LLC AND EI ACQUISITION INC.
The undersigned, a holder of shares of common stock, $0.01 par value
(the "Common Stock") and/or Series A Convertible preferred stock, $0.01 par
value (the "Preferred Stock" and, together with the Common Stock, the "Shares"),
of eXegenics Inc. ("eXegenics"), acting with respect to all of the Shares held
by the undersigned, hereby revokes any and all consents that the undersigned may
have given with respect to each of the following proposals:
THE BOARD OF DIRECTORS OF EXEGENICS UNANIMOUSLY RECOMMENDS THAT YOU "REVOKE
CONSENT" ON EACH PROPOSAL SET FORTH BELOW. PLEASE SIGN, DATE AND MAIL THIS
REVOCATION OF CONSENT CARD TODAY.
1. Proposal made by Foundation to remove all directors of eXegenics.
[ ] REVOKE CONSENT [ ] DO NOT REVOKE CONSENT [ ] ABSTAIN
2. Proposal made by Foundation to elect the following three nominees to fill
the vacancies on eXegenics' Board of Directors which would be created if
Proposal 1 is approved: Timothy Leonard, Terry Robbins and Michael Pechette
(collectively, the "Foundation Nominees").
[ ] REVOKE CONSENT [ ] DO NOT REVOKE CONSENT [ ] ABSTAIN
INSTRUCTIONS: To revoke consent, withhold revocation of consent or abstain from
consenting to the election of the Foundation Nominees, check the appropriate
box. If you wish to revoke the consent to the election of certain of such
nominees, but not all of them, check the "REVOKE CONSENT" box and write the name
of each such person as to whom you do not wish to REVOKE CONSENT in the
following space:
If no direction is made with respect to one or more of the foregoing proposals,
or if you mark either the "REVOKE CONSENT" or "ABSTAIN" box with respect to one
or more of the foregoing proposals, this revocation card will revoke all
previously executed consents with respect to such proposals.
Please sign your name below exactly as it appears hereon. If shares are
held jointly, each stockholder should sign. When signing as attorney, executor,
administrator, trustee or guardian, please give full title as such. If a
corporation, please sign in full corporate name by the president or other
authorized officer. If a partnership, please sign in partnership name by an
authorized person.
Dated: , 2003
-------------------------
--------------------------------------
Signature:
Title:
--------------------------------------
Signature: (if held jointly)
Title:
PLEASE SIGN, DATE AND RETURN THIS REVOCATION OF CONSENT CARD IN THE
POSTAGE-PAID ENVELOPE PROVIDED.