![]() Investor
and Media Relations:
Marty
Tullio, Managing Partner
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McCloud
Communications, LLC
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949.553.9748
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marty@mccloudcommunications.com
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Brandt cannot “reconvene” a
special meeting on August 26. He claims that the August
26 meeting is
a continuation of the meeting he initially noticed on June
20. Under Delaware law, that meeting (including any
“reconvened” meeting) must be held no later than August 21. He also
improperly adjourned an earlier reconvened meeting, which brought the
special meeting to an end – there’s nothing left to
“reconvene.”
The
Company wishes to again make clear to its stockholders that any
communications from Brandt or others working with him do not come from or
reflect the opinions or views of the Company, are not communications from
the Company or the Board of Directors and have not been authorized by or
consented to by them
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Brandt cannot notice and hold a
“new” special meeting on August 26. He also cannot hold
a “new” meeting to elect directors, as that is precluded by CNS bylaws
that took effect in July 2009.
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Brandt cannot assure you that
you are entitled to vote August 26. Only stockholders of
record (people owning stock on the record date) are entitled to vote at
the meeting. Brandt is aware that on July 20, 2009, the CNS Response Board
set August 27, 2009, as the record date. So why would he want
to hold a meeting before the record
date? This confuses stockholders as to their eligibility to
vote.
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The preliminary proxy statement
sent to you by Brandt cannot be used for any August 26 meeting and is not
the most recent preliminary proxy statement he has filed with the
SEC. He cannot give you a proxy card and have you return
it to him based on the preliminary proxy statement he distributed by email
on August 17 – that would violate the SEC’s proxy rules. In addition, he
made another filing with the SEC within hours of sending out that email
and that new filing includes a variety of changes in his disclosure and he
also cannot use that filing to give you a proxy card and have you return
it to him.
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Brandt cannot provide adequate
time for your review of his definitive proxy
statement. It is now August 21 and he has not yet
delivered definitive proxy materials to you. These materials propose
replacing all directors, other than himself, and radically changing CNS
Response’s business plan. You may get a week to consider his proposals. Is
this indicative of someone who is really concerned about ensuring
participation by well-informed
stockholders?
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Brandt has tried to effect a
change control of CNS Response FIVE TIMES WITHOUT your vote at FIVE
purported special meetings. Unless you were willing to
travel to Dover, Delaware on July 3 (a holiday), July 12 (a Sunday), July
21, July 30 and August 17, you did not have an opportunity to vote at his
“special” meeting. Do you think that if he had been able to get a quorum
at those meetings he would be trying to get your proxy now? Or do you
think he would just have taken a vote, claim that he and his group elected
new directors and simply shared that information with you after the
fact?
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Brandt called his “meetings”
with the bare minimum notice required by law. But while serving as the CNS
Response Chairman, he didn’t call stockholder meetings for THREE years.
His public statements NOW stress the urgency
of not waiting for the announced September meeting of stockholders
scheduled by the CNS Board of Directors. As chairman and CEO for over
three years, Brandt was in no hurry to call a meeting even
as the bylaws gave him the power to do so without anyone’s
consent.
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Brandt’s original meeting
notice did not identify who was trying to hold the
meeting. This notice even neglected to identify his
director nominees. Is that consistent with his assertions that
he wants the views of the stockholders to be
heard?
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Brandt still has a fiduciary
duty to all CNS stockholders. As long as he serves as a
director of CNS Response, Mr. Brandt owes the Company and its stockholders
his loyalty and his good faith efforts on behalf of all stockholders, and,
as a director, must not put his personal interests ahead of his
duty.
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Brandt claims to have had
numerous recent contacts with potential investors, but has not provided
their names to our Board nor given the Board or CNS Response management
the opportunity to meet with them. Mr. Brandt is still a director of the
Company and has fiduciary duties to CNS Response and its stockholders. He
knows the company has been pursuing additional financing, but to date has
not arranged for any introduction of these potential investors with the
Board or CNS Response
management.
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Brandt has encouraged key CNS
Response employees to resign. Following his dismissal as
CEO in April, Mr. Brandt, who was and is still a director of the Company,
attempted to convince two senior CNS Response executives to resign. As a
director of the company, activity of this nature is not considered
appropriate nor in the best interests of the
stockholders.
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Brandt has improperly disclosed
confidential CNS information. In his efforts to gain
support for his personal agenda, including his attempts to unseat other
directors, Mr. Brandt has discussed confidential information with parties
outside of the Company without
authorization.
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Brandt shared first priority
security interest in all of CNS Response’s assets and 250% coverage puts
him at the head of the line if CNS fails and is liquidated, while his
significant shareholdings will reward him if CNS Response
succeeds. He acquired that security interest in
connection with a loan he made to the Company while he was still its
Chairman and CEO. We have since offered to repay the loan twice (which
would eliminate his security interest), but Mr. Brandt has rejected those
offers.
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Brandt wants you to give him a
proxy for “any meeting” of CNS Response stockholders. Mr. Brandt’s
most recent SEC filing says he wants your proxy for “any meeting,” but not
in any event later than the next Annual Meeting.” Can he assure
you that your vote will be effective at “any meeting” under federal law?
We don’t think so and believe your giving him your proxy will most likely
result in your vote being invalid.
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