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o
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Preliminary
Information Statement
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¨
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Confidential, for Use of the
Commission Only (as permitted by Rule
14c-5(d)(2))
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x
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Definitive
Information Statement
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x
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No
fee required.
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¨
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Fee
computed below per Exchange Act Rules 14c-5(g) and
0-11.
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(1)
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Title
of each class of securities to which transaction
applies:
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(2)
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Aggregate
number of securities to which transaction
applies:
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(3)
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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)
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Proposed
maximum aggregate value of
transaction:
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(5)
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Total
fee paid:
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¨
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Fee
paid previously with preliminary
materials.
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1)
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Amount
Previously Paid:
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2)
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Form,
Schedule or Registration Statement
No.:
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3)
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Filing
Party:
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4)
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Date
Filed:
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By
Order of the Board of Directors
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/s/
Peter Giacalone
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Peter
Giacalone
Chairman
of the Board
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November
18, 2010
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·
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29,857,065
shares of our Common Stock;
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·
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638,284
options outstanding (319,357 of which are vested) to purchase shares of
Common Stock at a weighted average exercise price of $64.77;
and
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·
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310,842
warrants outstanding (239,757 of which are vested) to purchase shares of
Common Stock at a weighted average exercise price of
$41.91.
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·
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The
reverse split will qualify as a recapitalization for U.S. federal income
tax purposes. As a result:
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·
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Stockholders
should not recognize any gain or loss as a result of the reverse
split.
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·
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The
aggregate basis of a stockholder’s pre-reverse split shares will become
the aggregate basis of the shares held by such stockholder immediately
after the reverse split.
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·
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The
holding period of the shares owned immediately after the reverse split
will include the stockholder’s holding period before the reverse
split.
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·
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each of our
directors, executive officers and our executive officers and directors as
a group; and
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·
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each
person owning of record or known by us, based on information provided to
us by the persons named below, to own beneficially at least 5% of our
Common Stock.
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Holder
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Common Stock |
Total
Number of Shares of
Common |
Percentage Ownership |
|||||||||||
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Sector
Performance Fund, LP (a)
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8,057,676 | 8,057,676 | (2) | 26.99 | % | |||||||||
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HM
Unitek Coinvest,
LLP (a)
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475,702 | 475,702 | (3) | 1.59 | % | |||||||||
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SPF SBS LP
(a)
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509,124 | 509,124 | (4) | 1.71 | % | |||||||||
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Peter Brodsky,
Director
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9,042,501 | 9,042,501 | (5) | 30.29 | % | |||||||||
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Joe Colonnetta,
Director
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9,042,501 | 9,042,501 | (6) | 30.29 | % | |||||||||
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Daniel Hopkin,
Director
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- | - | (7) | - | ||||||||||
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Richard B.
Berliner, Director and Chief Marketing
Officer
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268,343 | 268,343 | (8) | * | ||||||||||
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Old Berliner
Liquidating Trust
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467,333 | 467,333 | (9) | 1.57 | % | |||||||||
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Sigma
Opportunity Fund,
LLC
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280,172 | 286,422 | (10) | * | ||||||||||
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C. Scott Hisey,
Director and Chief Executive
Officer
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65,374 | 166,316 | (11) | * | ||||||||||
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Peter Giacalone,
Executive Chairman
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99,337 | 142,195 | (12) | * | ||||||||||
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Ronald Lejman,
Chief Financial Officer
and Treasurer
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- | 14,286 | (13) | * | ||||||||||
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Dan Yannantuono,
CEO DirectSat
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6,552 | 29,703 | (14) | * | ||||||||||
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Chris Perkins,
CEO FTS USA
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- | 6,917 | (15) | * | ||||||||||
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Scott Lochhead,
CEO Advanced Communications LLC
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- | 18,572 | (16) | * | ||||||||||
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Elizabeth Downey,
Chief Administration Officer
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2,199 | 19,177 | (17) | * | ||||||||||
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Kyle Hall,
General Counsel and Secretary
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- | - | - | - | ||||||||||
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Nicholas Day,
Former General Counsel
and Secretary
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1,094 | 5,916 | (18) | * | ||||||||||
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Dean MacDonald,
Director
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43,662 | 45,448 | (19) | * | ||||||||||
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Mark S. Dailey,
Director
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1,935 | 3,721 | (20) | * | ||||||||||
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Richard
Siber,
Director
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- | - | * | |||||||||||
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Raymond A.
Cardonne, Jr., former Chief Financial Officer and Treasurer of
BCI
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- | 1,786 | (21) | * | ||||||||||
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Michael S.
Gurriero, former Chief
Operating Officer of BCI
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- | 18,840 | (22) | * | ||||||||||
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Peter Mixter,
Former Director
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893 | 2,685 | (23) | * | ||||||||||
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Mehran Nazari,
Former Director
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1,935 | 3,721 | (20) | * | ||||||||||
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John Stevens
Robling, Jr., Former Director
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893 | 2,685 | (23) | * | ||||||||||
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Thom Waye, Former
Director
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280,172 | 286,422 | (24) | * | ||||||||||
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Executive
Officers and Directors as a
Group (nineteen persons)
(25)
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9,814,889 | 10,079,233 | (26) | 33.46 | % | |||||||||
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(a)
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Address
is c/o HM Capital, 200 Crescent Ct, Suite 1600, Dallas, Texas
75201.
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(1)
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For
purposes of this column, a person is deemed to have beneficial ownership
of the number of shares of Common Stock that such person has
the right to acquire within 60 days of November 16,
2010. Percentages have been based on 29,857,065 shares of
Common Stock outstanding. For purposes of computing the
percentage of outstanding shares of Common Stock held by any individual
listed in this table, any shares of Common Stock that such person has the
right to acquire pursuant to the exercise of stock options or warrants
exercisable within 60 days of November 16, 2010, is deemed to be
outstanding, but is not deemed to be outstanding for the purpose of
computing the percentage ownership of any other
person.
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(2)
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Sector
Performance Fund, LP (“Sector Performance Fund”) is the direct beneficial
owner of 8,057,676 shares of Common Stock. Sector Performance
GP, LP (“Sector Performance GP”) is the general partner of Sector
Performance Fund. As a result, Sector Performance GP may be
deemed to share beneficial ownership with respect to these
securities. Sector Performance LLC (“Ultimate GP”) is the
general partner of Sector Performance GP and, as a result, Ultimate GP may
be deemed to share beneficial ownership with respect to these
securities. Except to the extent of any pecuniary interests,
each of Sector Performance GP and Ultimate GP disclaims the existence of
such beneficial ownership. A six-person committee (consisting
of Joe Colonnetta, Peter S. Brodsky, Jason H. Downie, Edward Herring, John
R. Muse and Andrew Rosen) exercise, on behalf of Ultimate GP and Sector
Performance GP, voting and dispositive powers over the securities held by
Sector Performance Fund.
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(3)
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HM
Unitek Coinvest, LP (“Coinvest”) is the direct beneficial owner of
475,702 shares of Common Stock, consisting of 475,702 shares of
Common Stock. Ultimate GP is the general partner of Coinvest
and, as a result, Ultimate GP may be deemed to share beneficial ownership
with respect to these securities. Except to the extent of any
pecuniary interests, Ultimate GP disclaims such beneficial
ownership. A six-person committee (consisting of Joe
Colonnetta, Peter S. Brodsky, Jason H. Downie, Edward Herring, John R.
Muse and Andrew Rosen) exercise, on behalf of Ultimate GP, voting and
dispositive powers over the securities held by
Coinvest.
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(4)
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SPF
SBS LP (“SPF”) is the direct beneficial owner of 509,124 shares of Common
Stock. Ultimate GP is the general partner of SPF and, as a
result, Ultimate GP may be deemed to share beneficial ownership with
respect to these securities. Except for pecuniary interests,
Ultimate GP disclaims such beneficial ownership. A six-person
committee (consisting of Joe Colonnetta, Peter S. Brodsky, Jason H.
Downie, Edward Herring, John R. Muse and Andrew Rosen) exercises, on
behalf of Ultimate GP, voting and dispositive powers over the securities
held by SPF.
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(5)
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No
securities are directly beneficially owned by Mr. Brodsky. Mr.
Brodsky holds a direct or indirect interest in Sector Performance Fund,
Coinvest, and SPF (collectively, the “Investment Funds”), which
beneficially own an aggregate of 9,042,501 shares of Common Stock. Mr.
Brodsky is an executive officer and member of Ultimate GP. Mr.
Brodsky is a member of a six-person committee (consisting of Mr. Brodsky,
Joe Colonnetta, Jason H. Downie, Edward Herring, John R. Muse and Andrew
Rosen) that exercises, on behalf of Ultimate GP, voting and dispositive
powers over the securities held by the Investment Funds. No
single member of the committee has sole dispositive and/or voting power
over the securities held by the Investment Funds. Mr. Brodsky
may be deemed to beneficially own all or a portion of the shares of Common
Stock beneficially owned by the Investment Funds; however, Mr. Brodsky
disclaims beneficial ownership of the shares of Common Stock, except to
the extent of any pecuniary interest
therein.
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(6)
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No
securities are directly beneficially owned by Mr.
Colonnetta. Mr. Colonnetta holds a direct or indirect interest
in the Investment Funds, which beneficially own an aggregate of 9,042,501
shares of Common Stock. Mr. Colonnetta is an executive officer
and member of Ultimate GP. Mr. Colonnetta is a member of
a six-person committee (consisting of Mr. Colonnetta, Peter S. Brodsky,
Jason H. Downie, Edward Herring, John R. Muse and Andrew Rosen) that
exercises, on behalf of Ultimate GP, voting and dispositive powers over
the securities held by the Investment Funds. No single member
of the committee has sole dispositive and/or voting power over the
securities held by the Investment Funds. Mr. Colonnetta may be
deemed to beneficially own all or a portion of the shares of Common Stock
beneficially owned by the Investment Funds; however, Mr. Colonnetta
disclaims beneficial ownership of the shares of Common Stock, except to
the extent of any pecuniary interest
therein.
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(7)
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No
securities are directly beneficially owned by Mr. Hopkin. Mr.
Hopkin is an officer of Ultimate GP; however, in that role, Mr. Hopkin has
no voting or dispositive power over the securities held by the Investment
Funds.
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(8)
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Represents
268,343 shares directly held by the Old Berliner Liquidating Trust (the
“Trust”). The Trust owns 467,333 shares of Common Stock and Mr.
Berliner beneficially owns 57% of the Trust’s assets as a beneficiary
under the Trust.
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(9)
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The
Trust owns 467,333 shares of Common Stock. John X. Adiletta is
sole trustee of the Trust and has sole voting and dispositive power over
the securities held by the Trust.
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(10)
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These
shares include (i) 160,350 shares of Common Stock held by Sigma
Opportunity Fund, LLC (“Sigma”); (ii) 77,515 shares of Common Stock held
by Sigma Berliner, LLC (“SBLLC”), an affiliate of Sigma; (iii) 47,664
shares of Common Stock, which includes 6,250 shares of Common Stock
issuable upon the exercise of warrants with an initial exercise price of
$15.40 per share, held by Sigma’s affiliate, Sigma Capital Advisors, LLC
(“Advisors”) and (iv) 893 shares of Common Stock held by Thom
Waye. Advisors, Sigma Capital Partners, LLC (“Partners”) and
Thom Waye may be deemed to be indirect 5% owners of the Company by virtue
of Advisors being the managing member of Sigma, Partners being the sole
member of Advisors and Mr. Waye being the sole member of
Partners. Mr. Waye, Advisors and Partners have disclaimed
beneficial ownership of the shares owned by Sigma and SBLLC except to the
extent of their pecuniary interest therein. The address of
each of Sigma, SBLLC, Advisors, Partners and Mr. Waye is c/o Sigma Capital
Advisors, LLC, 800 Third Avenue, Suite 1701, New York,
NY 10022. Information related to Sigma in this footnote is
based upon the Schedule 13D filed by Sigma on March 2,
2010.
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(11)
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Mr.
Hisey is the direct beneficial owner of 166,316 shares of Common Stock,
including vested options to purchase 93,129 shares of Common
Stock. 40% of these options become exercisable only when the
closing price per share of the Common Stock is equal to or greater than
$84.00 for twenty (20) consecutive trading days on which at least 179
shares of Common Stock are traded, as reported on the principal exchange
on which the Common Stock is then traded. Also includes
warrants to purchase 7,813 shares of Common
Stock.
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(12)
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Mr.
Giacalone is the direct beneficial owner of 142,195 shares of Common
Stock, including vested options to purchase 42,858 shares of Common
Stock. 40% of these options become exercisable only when the
closing price per share of the Common Stock is equal to or greater than
$84.00 for twenty (20) consecutive trading days on which at least 179
shares of Common Stock are traded, as reported on the principal exchange
on which the Common Stock is then
traded.
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(13)
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Represents
vested options to purchase 14,286 shares of Common Stock. 40%
of these options become exercisable only when the closing price per share
of the Common Stock is equal to or greater than $84.00 for twenty (20)
consecutive trading days on which at least 179 shares of Common Stock are
traded, as reported on the principal exchange on which the Common Stock is
then traded.
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(14)
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Includes
6,552 shares and vested options to purchase 21,699 shares of Common
Stock. 40% of these options become exercisable only when the
closing price per share of the Common Stock is equal to or greater than
$84.00 for twenty (20) consecutive trading days on which at least 179
shares of Common Stock are traded, as reported on the principal exchange
on which the Common Stock is then traded. Also includes
warrants to purchase 1,452 shares of Common
Stock.
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(15)
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Represents
options to purchase 6,738 shares of Common Stock. 40% of these
options become exercisable only when the closing price per share of the
Common Stock is equal to or greater than $84.00 for twenty (20)
consecutive trading days on which at least 5,000 shares of Common Stock
are traded, as reported on the principal exchange on which the Common
Stock is then traded. Also includes warrants to purchase 179
shares of Common Stock.
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(16)
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Represents
options to purchase 18,572 shares of Common Stock. 40% of these
options become exercisable only when the closing price per share of the
Common Stock is equal to or greater than $84.00 for twenty (20)
consecutive trading days on which at least 179 shares of Common Stock are
traded, as reported on the principal exchange on which the Common Stock is
then traded.
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(17)
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Includes
(i) 2,199 shares of Common Stock, (ii) warrants to purchase 179 shares of
common stock, and (iii) vested options to purchase 16,799 shares of common
stock. 40% of these options become exercisable only when the
closing price per share of the Common Stock is equal to or greater than
$84.00 for twenty (20) consecutive trading days on which at least 179
shares of Common Stock are traded, as reported on the principal exchange
on which the Common Stock is then traded.
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(18)
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Includes
vested options to purchase 4,822 shares of Common Stock. Also
includes 1,094 shares of Common Stock held by the Trust for which Mr. Day
is the beneficiary. Excludes the remainder of the securities held by the
Trust, in which Mr. Day disclaims all beneficial
ownership.
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(19)
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Mr.
MacDonald is the direct beneficial owner of 45,448 including vested
options to purchase 1,786 shares of Common Stock. 40% of these
options become exercisable only when the closing price per share of the
Common Stock is equal to or greater than $84.00 for twenty (20)
consecutive trading days on which at least 179 shares of Common Stock are
actually traded, as reported on the principal exchange on which the Common
Stock is then
traded.
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(20)
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Includes
1,935 shares of Common Stock and vested options to purchase 1,786 shares
of Common Stock.
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(21)
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Represents
options to purchase 1,786 shares of Common
Stock.
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(22)
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Represents
options to purchase 18,840 shares of Common
Stock.
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(23)
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Includes
893 shares of Common Stock and vested options to purchase 1,792 shares of
Common Stock.
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(24)
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Thom
Waye may be deemed to be an indirect owner of the shares held by Sigma by
virtue of Mr. Waye being the manager of Sigma. Mr. Waye has disclaimed
beneficial ownership of the shares owned by Sigma except to the extent of
his pecuniary interest therein. Includes 893 shares of Common Stock owned
directly by Mr. Waye.
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(25)
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Includes
Peter Brodsky, Joe Colonnetta, Daniel Hopkin, Peter Giacalone, C. Scott
Hisey, Richard B. Berliner, Mark S. Dailey, Richard Siber, Dean MacDonald,
Dan Yannantuono, Chris Perkins, Scott Lochhead, Elizabeth Downey, Kyle
Hall, Ronald Lejman, Raymond A. Cardonne, Jr., Michael S.
Guerriero, Peter Mixter, Mehran Nazari, John Stevens Robling, Jr., Thom
Waye and Nicholas Day.
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(26)
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Consists
of (i) 9,814,889 shares of Common Stock, (ii) warrants to
purchase 15,872 shares of Common Stock, and (iv) vested options to
purchase 248,472 shares of Common
Stock.
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By
Order of the Board of Directors
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/s/ Peter Giacalone
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Peter
Giacalone
Chairman
of the Board
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November 18, 2010
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C.
Scott Hisey
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Chief
Executive Officer
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