================================================================================
SCHEDULE 14A
(RULE 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF
THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )
Filed by the Registrant [_]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
[_] Preliminary Proxy Statement
[_] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[_] Definitive Proxy Statement
[X] Definitive Additional Materials
[_] Soliciting material Pursuant to Rule 14a-11(c) or Rule 14a-12
BALLY TOTAL FITNESS HOLDING CORPORATION
--------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
PARDUS EUROPEAN SPECIAL OPPORTUNITIES MASTER FUND L.P., PARDUS CAPITAL
MANAGEMENT L.P., PARDUS CAPITAL MANAGEMENT LLC, KARIM SAMII, JOSEPH R.
THORNTON, CHARLES J. BURDICK, BARRY R. ELSON AND DON R. KORNSTEIN
--------------------------------------------------------------------------------
(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:____________
2) Aggregate number of securities to which transaction applies:_______________
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):_______________________________
4) Proposed maximum aggregate value of transaction:___________________________
5) Total fee paid:____________________________________________________________
[_] 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:____________________________________________________
2) Form, Schedule or Registration Statement No.:______________________________
3) Filing Party:
4) Date Filed:_______________________________________________
================================================================================
On January 10, 2006 Pardus European Special Opportunities Master Fund
L.P., a limited partnership formed under the laws of the Cayman Islands (the
"Fund"), Pardus Capital Management L.P., a Delaware limited partnership ("PCM"),
Pardus Capital Management LLC, a Delaware limited liability company ("PCM LLC")
and Mr. Karim Samii, the sole member of PCM LLC, filed Amendment Number 13 (the
"Amendment") to the Schedule 13D (as amended, the "Schedule 13D") originally
filed by PCM with the Securities and Exchange Commission on September 6, 2005.
The Amendment amends the previously filed Item 4 disclosure in the Schedule 13D
by adding the following:
"On or about January 10, 2006, the Fund sent a letter to the Company's
stockholders urging them to support the Fund's nominees for election to the
Company's board of directors and to vote according to the Fund's recommendation
on a number of other proposals in connection with the 2005 annual meeting of
stockholders to be held on January 26, 2006. A copy of the January 10, 2006
letter to stockholders has been attached hereto as Exhibit 13.
Except as otherwise described in this Item 4 of this Schedule 13D, as
amended, the acquisition of the Shares by the Fund is for investment purposes on
behalf of the Fund."
On or about January 10, 2006, the Fund delivered a letter to
stockholders of Bally Total Fitness Holding Corporation (the "Company") urging
them to support the Fund's nominees for election to the Company's board of
directors and to vote according to the Fund's recommendation on a number of
other proposals in connection with the 2005 annual meeting of stockholders to be
held on January 26, 2006. A copy of the January 10, 2006 letter to stockholders
is attached hereto as Exhibit 1.
The Fund is the beneficial owner of 5,500,000 shares of the common
stock, par value $0.01 per share (the "Shares"), of the Company, including 1000
shares of common stock owned of record in the name of the Fund and 1000 shares
of common stock owned of record in the name Pardus Capital A/C Pardus European
Special Opportunities Master Fund L.P. PCM serves as the investment manager of
the Fund and possesses sole power to vote and direct the disposition of all
Shares held by the Fund. PCM LLC, as the general partner of PCM, and Mr. Karim
Samii, as the sole member of PCM LLC, may be deemed to be the beneficial owners
of all the Shares held by the Fund; however, PCM LLC and Mr. Karim Samii
disclaim beneficial ownership of all the Shares held by the Fund. Mr. Joseph R.
Thornton, a portfolio manager of PCM, may also earn fees and incentive
allocations on account of the Fund's investment in the Shares. Charles J.
Burdick, Barry R. Elson and Don R. Kornstein do not beneficially own any
securities of the Company and do not have any personal ownership interest,
direct or indirect, in any securities of the Company. Mr. Burdick currently
serves on the PCM Advisory Board which advises PCM and its affiliates from time
to time with respect to investment strategies, assessing business viability,
sourcing transactions and valuing potential investments. The PCM Advisory Board
members do not have any oversight responsibility or discretion over the
investments made by or on behalf of PCM and its affiliates and the PCM Advisory
Board members do not (except to the extent publicly disclosed by the Fund) have
any knowledge of the investments held by PCM and its affiliates from time to
time. Mr. Burdick does not receive and is not entitled to any compensation or
remuneration for serving on the PCM Advisory Board from the Fund or any of its
affiliates. The PCM Advisory Board members have the ability to invest up to an
aggregate of $10,000,000 in the Fund and certain of its affiliates. Mr. Burdick
does not have any investment interest in the Fund or any of its affiliates.
The persons filing this Schedule 14A are PCM, the Fund, PCM LLC and
Messrs. Samii, Thornton, Burdick, Elson and Kornstein (collectively, the
"Reporting Persons"). Based on information provided by the Company, as of
December 20, 2005 there were 38,285,905 shares of the Company's common stock
issued and outstanding. Thus, the Fund and PCM are deemed to beneficially own,
and PCM LLC and Mr. Karim Samii may be deemed to beneficially own, 5,500,000
Shares, or approximately 14.4% of the shares of the Company's issued and
outstanding common stock.
2
SECURITY HOLDERS ARE ADVISED TO READ THE DEFINITIVE PROXY STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 27, 2005 AND OTHER DOCUMENTS
RELATED TO SOLICITATION OF PROXIES BY THE REPORTING PERSONS BECAUSE THEY CONTAIN
IMPORTANT INFORMATION. A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY HAVE
BEEN MAILED TO STOCKHOLDERS OF THE COMPANY AND ARE AVAILABLE AT NO CHARGE AT THE
SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV. INFORMATION
RELATING TO THE PARTICIPANTS IN A PROXY SOLICITATION IS CONTAINED IN THIS
SCHEDULE 14A AND THE SCHEDULE 13D FILED BY PCM WITH THE SECURITIES AND EXCHANGE
COMMISSION ON SEPTEMBER 6, 2005, AS AMENDED BY AMENDMENT NO. 1, DATED SEPTEMBER
6, 2005, AMENDMENT NO. 2, DATED SEPTEMBER 6, 2005, AMENDMENT NO. 3, DATED
SEPTEMBER 8, 2005, AMENDMENT NO. 4, DATED SEPTEMBER 15, 2005, AMENDMENT NO. 5,
DATED SEPTEMBER 23, 2005, AMENDMENT NO. 6, DATED OCTOBER 6, 2005, AMENDMENT NO.
7, DATED OCTOBER 17, 2005, AMENDMENT NO. 8, DATED OCTOBER 24, 2005, AMENDMENT
NO. 9, DATED NOVEMBER 17, 2005, AMENDMENT NO. 10, DATED NOVEMBER 23, 2005,
AMENDMENT NO. 11, DATED DECEMBER 8, 2005, AMENDMENT NO. 12, DATED DECEMBER 29,
2005 AND AMENDMENT NO. 13, DATED JANUARY 10, 2006, FILED BY THE FUND, PCM, PCM
LLC AND MR. SAMII (AS AMENDED, THE "SCHEDULE 13D"), WITH RESPECT TO BALLY TOTAL
FITNESS HOLDING CORPORATION. THE SCHEDULE 13D IS CURRENTLY AVAILABLE AT NO
CHARGE ON THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT
HTTP://WWW.SEC.GOV.
------------------
3
EXHIBIT 1
---------
PARDUS EUROPEAN SPECIAL OPPORTUNITIES MASTER FUND L.P.
C/O PARDUS CAPITAL MANAGEMENT L.P.
1001 AVENUE OF THE AMERICAS, SUITE 1100
NEW YORK, NY 10018
January 10, 2006
Dear Fellow Bally Stockholder:
We own 5,500,000 shares of common stock of Bally Total Fitness Holding
Corporation (the "Company" or "Bally") and are Bally's largest stockholder. You
should have recently received our proxy materials urging you to elect our
candidates to the board of directors at Bally, and to support our positions on
various other proposals at the 2005 annual meeting of stockholders on January
26th. We believe that management has placed Bally's stockholders at grave risk
and we need your support to put things right. OUR INTERESTS ARE ALIGNED WITH
YOURS. Our program for Bally is simple:
o Stop management from diluting your ownership and lining its pockets at
your expense.
o Restore proper corporate governance and oversight at Bally.
o Maximize stockholder value now.
As our proxy materials and other public filings indicate, we have been extremely
disappointed with the current board and management team. We are deeply concerned
for Bally's future. We stockholders are the ones at risk. We believe management
has consistently exercised poor judgment and the board has demonstrated equally
poor oversight and direction. As stockholders, we all deserve better. The time
has come for a change.
THE CURRENT BOARD AND MANAGEMENT TEAM HAVE CONSISTENTLY
DEMONSTRATED POOR JUDGMENT
Consider the following examples of how Bally's board and management have
exercised poor judgment:
o POOR JUDGMENT: MANAGEMENT'S THREATS TO TRIGGER THE POISON PILL. On
December 23, 2005, Bally's management threatened to trigger the
Company's poison pill, which could lead to massive litigation, disrupt
the ongoing sale process, threaten to destroy all stockholder value and
potentially render the Company unable to refinance its debt. In short,
triggering the pill could lead to bankruptcy and a total loss of
investment for all stockholders. Yet, management knows it has no basis
whatsoever to trigger the pill. Do you want your management threatening
to use the poison pill - in effect threatening bankruptcy - to save its
own job? This reckless act demonstrates that management will stop at
2
nothing in its efforts to silence its largest stockholder and prevent
it from raising important issues of corporate governance and seeking to
maximize stockholder value.
o Unbelievably, we have been advised that late last evening Bally's
management has recklessly and baselessly sued Pardus as well as its
principals in their individual capacity, seeking to trigger the poison
pill and potentially unleash the destructive consequences outlined
above. We will communicate with our fellow stockholders further as soon
as we have an opportunity to review the lawsuit, but we can imagine no
other justification than management's desire to further entrench
itself.
o POOR JUDGMENT: MANAGEMENT'S STOCK SALES. Mr. Paul Toback, your
President, CEO and Chairman sold most of his holdings of Bally's common
stock THE DAY AFTER the earnings release and conference call in which
he trumpeted the size of his stake in the Company. We estimate that Mr.
Toback sold $2.9 million in those trades. Why would Mr. Toback sell in
light of his claim of good operating results and the announcement of
J.P. Morgan's engagement to sell the Company, presumably at a premium?
In our view, Mr. Toback was confident that he could bully Pardus and
other stockholders into approving a new equity compensation plan,
thereby giving him and his minions 2.5 million newly-issued shares
which would vest on a change of control and provide them with
undeserved windfall payments.
o POOR JUDGMENT: THREATENED DILUTION. As the largest stockholder we
oppose any dilutive transaction. In this respect, when we started
accumulating shares on July 11, 2005, the number of shares outstanding
was 34.1 million shares versus the 38.3 million outstanding today. As a
result of what we believe was a botched bondholder consent
solicitation, management issued 2.5 million shares and paid $7.8
million in cash because it couldn't keep its promises about delivering
financials. Based on the Company's current stock price, we estimate the
total cost of these consent solicitation payments at $25.3 million, not
counting further millions spent on lawyers and advisors. Since March
2005, management received half a million additional shares and options.
Any further dilution is unacceptable. The proposed new equity incentive
package for management is unacceptable in its current form, as it would
leave open a blank check for the issuance of another 2.5 million shares
with NO assurance that the board will place proper limits on equity
grants or align management incentives with those of stockholders. We
have been steadfast in our insistence that appropriate performance
hurdles accompany any grants of new equity to management. In our view,
this has been one of the main obstacles to a settlement between Pardus
and Bally's management.
o POOR JUDGMENT: ALIENATION OF INVESTMENT COMMUNITY. Mr. Toback foolishly
wasted the Company's first earnings call in 18 months slamming another
stockholder. We think that Mr. Toback has lost all objectivity. We
believe he has little credibility with investors. Rather than focus on
forward-
3
looking, value-creating opportunities, management chose to open old
wounds and rehash the past. We have lost confidence in his ability to
lead the Company, in the sale process or otherwise.
o POOR JUDGMENT: ASSET FIRE SALES. We believe management rushed to sell
Crunch at a discounted and undervalued deal price. The Company agreed
to sell Crunch for $45 million, which is half of what the Company paid
to acquire the fitness chain in 2001, at a time when the Company could
not provide potential buyers with normal representations and warranties
related to the asset. This reflects either poor judgment about how the
capital markets work or, worse, a willingness to set a low price on a
Company asset. Given that the closing of the transaction would occur
after the Company released its financial results, why would management
rush to sell this asset so cheaply? Why has management not optimized
its real estate portfolio as opposed to selling Crunch? With the
possibility of a strategic transaction on the horizon, what has
management done to convince you that it won't sell the entire Company
on the cheap?
o POOR JUDGMENT: CRIPPLING THE STRATEGIC PROCESS. Management conducted a
shadow process to sell all or a substantial portion of the Company
BEFORE it completed its earnings restatement. After the Crunch fire
sale, management began letting select private equity buyers conduct due
diligence on Bally, potentially leading to a cheap sale of the Company
or a very dilutive transaction. Management stopped this inappropriate
process only after we began to question it. We think management was
looking for a management-friendly partner to buy the Company on the
cheap and secure management's position with the Company - at the
expense of the Company's stockholders.
o POOR JUDGMENT: FAILING TO KEEP PROMISES. Management failed to complete
the restatement of financials within the first waiver period obtained
from the Company's bondholders. Management obviously grossly
underestimated the length of time it needed to complete the restatement
when it paid for the first waiver. Rather than squarely addressing the
problem and dealing with noteholders early in the process, we believe
this management team alienated the noteholders who, based on the
Company's January 9, 2006 closing stock price, ultimately extracted
approximately $25.3 million in total value from the Company in the form
of additional waiver fees. Is this management up to the challenges
facing Bally's in the future?
BALLY'S ATTEMPTS TO DISCREDIT PARDUS:
LET'S SET THE RECORD STRAIGHT
Bally would like you to believe that Pardus has been unreasonable in
settlement negotiations with the Company. UNTRUE. Our settlement proposal does
not involve any veto over the strategic process, it involves only minority
representation on the board, seeks no special benefit for Pardus, and would
permit both Mr. Langshur and Mr.
4
Kornstein to serve on the board. The Company is fully aware of these facts but
has chosen to distort the truth.
Bally's would like you to think that it is our objective to somehow buy
the Company cheaply. UNTRUE. We believe that due to the failures of management
the Company IS TRADING at a deep discount to its peers. We had asked management,
privately and publicly, to allow us to purchase more stock, to which they
responded with a poison pill. We believe our purchases, which we note would not
have given us a control position in the Company, would have resulted in a higher
share price and in turn allowed the Company to achieve a higher price in the
sale process. We find it ironic that management sold most of its shares and is
now asking for a grant of 2.5 million additional shares while at the same time
using a poison pill to stop stockholders from acquiring additional shares. We
are interested in seeing an open, fair sales process led by a truly independent
board committee that is not beholden to management or any other constituency. We
think this will lead to maximizing stockholder value.
Management would like you to believe that Mr. Kornstein is not
qualified to serve on Bally's board. UNTRUE. Mr. Kornstein's 17 year tenure as
an investment banker at Bear Stearns makes him particularly well-suited to lead
a restructuring, recapitalization or sale of the Company. Mr. Kornstein has
served on the boards of three publicly-traded companies and was responsible for
the successful restructuring and sale of three telecom and internet business of
First World Communications in 2000. While Mr. Langshur does not share the same
turnaround experience as Mr. Kornstein, we have proposed to the Company the
establishment of an independent board of directors that includes both Mr.
Kornstein and Mr. Langshur.
Management would like you to think Pardus is seeking control. UNTRUE.
We have proposed three highly qualified individuals who are independent of us.
Three out of nine directors does not constitute control.
Management would like you to think that the nomination of Mr. Burdick
and Mr. Elson was a concession to Pardus. UNTRUE. Bally conducted a search for
director nominees and interviewed Messrs. Burdick and Elson and found them to be
highly qualified individuals that should make a strong contribution to the
board. We do not think the board would have nominated these individuals if it
did not believe them to be the most qualified people they interviewed.
WE NEED YOUR HELP TO GET BALLY BACK ON TRACK
Supporting our nominees sends an important message that you refuse to tolerate
further erosion of the Company's stock value and irresponsible governance. The
time has come for a positive change.
Stockholders should ask themselves, where has the board been these past months?
We do not think the board has provided the oversight and direction that Bally's
needs. We have made several proposals that would empower the board:
5
o Separate the chairmanship from the CEO roles, in keeping with best
corporate practices.
o Create a fully empowered independent strategic board committee charged
with running the strategic process independent of management, subject
only to any transaction being approved by the full board of directors.
o Review recent management stock sales for propriety. We and others have
raised serious questions about Mr. Toback's stock sales, in light of
the other announcements he made to the market, the Company's later
financial statement corrections, his role in the sale process and his
knowledge of the other ongoing material matters involving the Company.
To date, the board has not acted on our proposals, nor have they looked into
management stock sales. Why would the board NOT want these powers to control and
review management? Moreover, the only affirmative action taken by Bally
management has been to sue the Company's two largest stockholders in an attempt
to stifle stockholder democracy and to further entrench management. This is your
time to speak and send a message to management and the board that Bally's
stockholders are unhappy and want fundamental change. Send that message now.
Vote FOR the Pardus nominees and in accordance with our recommendation on the
other proposals to be voted on at the upcoming annual meeting by signing, dating
and returning the enclosed GREEN proxy card.
Do not sign the white proxy card from Bally or the gold proxy card from
Liberation Investments. If you have already done so you may revoke your proxy by
delivering a later-dated GREEN proxy card in the enclosed postage-prepaid
envelope.
If you have any questions about voting, or for more information, please call our
proxy solicitors, D.F. King & Co., Inc., toll-free at 888-644-6071.
Very truly yours,
PARDUS EUROPEAN SPECIAL
OPPORTUNITIES MASTER FUND L.P.
By: Pardus Capital Management L.P., its
investment manager
By: Pardus Capital Management LLC, its
general partner
By: /s/ Karim Samii
------------------------------------
Name: Karim Samii
Title: Sole Member
6
IMPORTANT
On December 27, 2005, Pardus European Special Opportunities Master Fund L.P.,
Pardus Capital Management L.P., Pardus Capital Management LLC, Karim Samii,
Joseph R. Thornton, Charles J. Burdick, Barry R. Elson and Don R. Kornstein
filed a definitive proxy statement with the SEC to solicit proxies in connection
with the 2005 annual meeting of stockholders of Bally Total Fitness Holding
Corporation to be held on January 26, 2006. Company stockholders are encouraged
to read the definitive proxy statement and other proxy materials relating to the
2005 annual meeting because they contain important information, including a
description of who may be deemed to be "participants" in the solicitation of
proxies and the direct or indirect interests, by security holdings or otherwise,
of the participants in the solicitation. Such proxy materials are available at
no charge on the SEC's website at http//www.sec.gov. In addition, stockholders
may also obtain a free copy of the definitive proxy statement and other proxy
materials by contacting D.F. King & Co., Inc. at 888-644-6071 (toll-free) or
212-269-5550 (collect).
7
GREEN PROXY CARD
----------------
BALLY TOTAL FITNESS HOLDING CORPORATION
2005 ANNUAL MEETING OF STOCKHOLDERS
THIS PROXY IS SOLICITED ON BEHALF OF
PARDUS EUROPEAN SPECIAL OPPORTUNITIES MASTER FUND L.P.,
PARDUS CAPITAL MANAGEMENT L.P., PARDUS CAPITAL MANAGEMENT LLC,
KARIM SAMII, JOSEPH R. THORNTON, CHARLES J. BURDICK,
BARRY R. ELSON AND DON R. KORNSTEIN
The undersigned appoints and constitutes Karim Samii and Joseph R. Thornton, and
each of them, as proxies, with full power of substitution, to represent the
undersigned at the Annual Meeting of Stockholders of Bally Total Fitness Holding
Corporation, a Delaware corporation (the "Company"), to be held at 8:30 a.m.
(local time) on January 26, 2006 at the Renaissance Chicago O'Hare Hotel, 8500
West Bryn Mawr Avenue, Chicago, Illinois, and at any adjournment, postponement
or any special meeting that may be called in lieu thereof (the "2005 Annual
Meeting"), hereby revoking any proxies previously given, to vote all shares of
common stock of the Company held or owned by the undersigned as directed below,
and in their discretion upon such other matters as may come before the meeting.
IF NO SPECIFICATION IS MADE, THE SHARES WILL BE VOTED (A) "FOR" THE ELECTION OF
CHARLES J. BURDICK, BARRY R. ELSON AND DON R. KORNSTEIN TO CLASS III OF THE
COMPANY'S BOARD OF DIRECTORS, (B) "FOR" THE APPROVAL AND ADOPTION OF THE BY-LAW
RESOLUTION TO REPEAL EACH PROVISION OR AMENDMENT OF THE BY-LAWS OF THE COMPANY,
IF ANY, ADOPTED BY THE BOARD OF DIRECTORS WITHOUT THE APPROVAL OF THE COMPANY'S
STOCKHOLDERS SUBSEQUENT TO MAY 25, 2005 (PURPORTEDLY THE LAST DATE OF REPORTED
CHANGES) AND PRIOR TO THE APPROVAL AND ADOPTION OF SUCH RESOLUTION AT THE 2005
ANNUAL MEETING, (C) "AGAINST" THE ADOPTION OF THE 2006 OMNIBUS EQUITY
COMPENSATION PLAN, (D) "FOR" THE RATIFICATION OF KPMG LLP AS THE COMPANY'S
INDEPENDENT AUDITOR FOR THE FISCAL YEAR ENDING DECEMBER 31, 2005, AND (E) "FOR"
GRANTING TO THE PROXY HOLDERS DISCRETION ON THE LIBERATION PROPOSALS, IF
PROPERLY BROUGHT BEFORE THE 2005 ANNUAL MEETING, AND ALL OTHER MATTERS AS MAY
PROPERLY COME BEFORE THE MEETING.
(Continued and to be signed on the reverse side)
8
Pardus European Special Opportunities Master Fund, L.P. and certain of its
affiliates and associates recommends a vote "FOR" the election of all of the
nominees listed in Proposal 1 below, "FOR" Proposal 2 below, "AGAINST" Proposal
3 below, "FOR" Proposal 4 below, and "FOR" granting the proxy holders discretion
on the Liberation Proposals, if properly brought before the 2005 Annual Meeting,
and on all other matters as may properly come before the meeting. (Please mark
each matter with an "X" in the appropriate box.)
Pardus European Special Opportunities Master Fund, L.P. (the "Fund") and certain
of its affiliates and associates recommends a vote "FOR ALL" with respect to the
election of all of the nominees listed in Proposal 1 below.
1. Election of Directors:
Nominees: Charles J. Burdick, Barry R. Elson and Don R. Kornstein
[ ] FOR ALL
[ ] WITHHOLD AUTHORITY TO VOTE FOR ALL NOMINEES
[ ] FOR ALL EXCEPT NOMINEE WRITTEN BELOW
INSTRUCTION: To withhold authority to vote for any
individual nominee, mark the "FOR ALL EXCEPT' box and
write the name(s) of the nominee(s) you do not support on
the line below. Your shares will be voted for the
remaining nominee(s).
________________________________________________________
The Fund recommends a vote "FOR" Proposal 2 below.
2. Proposal to repeal provisions in the Company's By-laws that were
adopted after May 25, 2005 (purportedly the last date of reported
changes) and prior to the approval and adoption of this Proposal 2 at
the 2005 Annual Meeting of stockholders:
FOR [ ] AGAINST [ ] ABSTAIN [ ]
The Fund recommends a vote "AGAINST" Proposal 3 below.
3. Approval of the 2006 Omnibus Equity Compensation Plan
FOR [ ] AGAINST [ ] ABSTAIN [ ]
The Fund recommends a vote "FOR" Proposal 4 below.
4. Ratification of the appointment of KPMG LLP as independent auditor for
the Company for the fiscal year ending December 31, 2005
FOR [ ] AGAINST [ ] ABSTAIN [ ]
9
The Fund recommends a vote "FOR" Proposal 5 below.
5. In their discretion on all other matters as may properly come before
the annual meeting, including any motion to adjourn or postpone the
meeting or other matters incidental to the conduct of the meeting.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
Please be sure to sign and date this Proxy
DATED: _________________________________
________________________________
(Signature)
________________________________
(Signature, if held jointly)
________________________________
(Title)
Please sign exactly as name appears on this Proxy. When shares are held jointly,
joint owners should each sign. Executors, administrators, trustees, etc., should
indicate the capacity in which signing.
IMPORTANT: PLEASE SIGN, DATE AND RETURN THIS PROXY CARD PROMPTLY!