exv4wa



 





Exhibit
4-A



EXECUTION COPY




VOTING AGREEMENT




BY AND AMONG




ELC HOLDINGS CORPORATION




AND




THE PERSONS LISTED ON SCHEDULE I HERETO




DATED AS OF JULY 19, 2006




 









 








VOTING AGREEMENT




     This VOTING AGREEMENT (this “Agreement”) is entered into as of July 19, 2006, by and
between ELC Holdings Corporation, a Delaware corporation (“Parent”), and the stockholder
listed on Schedule I hereto (together with any permitted assigns hereunder, “Stockholder”).



W I T N E S S E T H:




     WHEREAS, as of the date hereof, Stockholder beneficially owns and is entitled to dispose of
(or to direct the disposition of) certain shares of Common Stock (“Common Stock”) of
Excelligence Learning Corporation, a Delaware corporation (the “Company”);



     WHEREAS, Parent and the Company propose to enter into an Agreement and Plan of Merger, dated
as of the date hereof, by and among the Company, ELC Acquisition Corporation, a Delaware
corporation (“Merger Sub”), and Parent (the “Merger Agreement”), pursuant to which,
subject to the terms and conditions of the Merger Agreement, Merger Sub will merge with and into
the Company with the Company being the surviving corporation; and



     WHEREAS, concurrently with the execution and delivery of the Merger Agreement and as a
condition and inducement to Parent’s willingness to enter into the Merger Agreement, Stockholder is
executing this Agreement whereby Stockholder agrees to vote all of Stockholder’s Subject Common
Shares (as defined below) pursuant to the terms and conditions of this Agreement.



     NOW, THEREFORE, in consideration of the foregoing and the mutual promises, representations,
warranties, covenants and agreements contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:



ARTICLE I




DEFINITIONS; INTERPRETATION




     Section 1.1 Capitalized Terms. For purposes of this Agreement, capitalized terms used
and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.



     Section 1.2 Other Definitions. For purposes of this Agreement:



          (a) “Subject Common Shares” means the number of shares of Common Stock set forth
opposite Stockholder’s name on Schedule I hereto, together with any shares of Common Stock acquired
by Stockholder after the date hereof; provided, however, that, notwithstanding anything to the
contrary in this Agreement, Stockholder is in no way required by this Agreement to exercise any
options or warrants to purchase Common Stock.




 









 








          (b) “Proxy Term” shall mean the period from the execution of this Agreement until the
termination of this Agreement in accordance with Section 6.1 hereof.




     Section 1.3 Interpretation. The words “hereof,” “herein” and “hereunder” and words of
similar import when used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section references are to this Agreement unless
otherwise specified. Whenever the words “include,” “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation.” The headings
contained in this Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. No provision of this Agreement shall be construed to
require Parent, Stockholder or any of their respective Subsidiaries or Affiliates to take any
action that would violate any applicable Law.



ARTICLE II




VOTING




     Section 2.1 Agreement to Vote the Stockholder’s Subject Common Shares. During the
Proxy Term, Stockholder agrees that at any annual, special or other meeting of the stockholders of
the Company called to vote upon the Merger and/or the Merger Agreement, and at any adjournment or
postponement thereof, and in connection with any action of the stockholders of the Company taken by
written consent to approve the Merger and approve and adopt the Merger Agreement, Stockholder will:



               (a) appear in person or by proxy at each such meeting or otherwise cause Stockholder’s Subject
Common Shares to be counted as present at such meeting for purposes of calculating a quorum; and



               (b) vote (or cause to be voted) all of Stockholder’s Subject Common Shares (i) in favor of the
adoption of the Merger Agreement (including any amendments thereto) and the approval of the Merger
and the other transactions contemplated by the Merger Agreement and any actions required in
furtherance thereof and (ii) (other than the transactions contemplated by the Merger Agreement)
against any action, proposal, transaction or agreement that would reasonably be expected to (A)
result in a breach in any material respect of any covenant, representation or warranty or any other
obligation or agreement of the Company contained in the Merger Agreement or (B) impede, interfere
or be inconsistent with, delay, postpone, discourage or adversely affect the transactions
contemplated by the Merger Agreement or this Agreement. Any such vote shall be cast or consent
shall be given in accordance with such procedures relating thereto so as to ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of recording the
results of such vote or consent.



               (c) Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement
shall limit or restrict Stockholder or any of its Representatives or Affiliates from acting in such
Person’s capacity as an officer or director of the Company (it being understood that this Agreement
shall apply to



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Stockholder solely in Stockholder’s capacity as a stockholder of the Company) or voting in
Stockholder’s sole discretion on any matter other than those matters referred to in subsection (b)
above.




     Section 2.2 Grant of Irrevocable Proxy. If requested by Parent, Stockholder will
constitute and appoint Parent, or any nominee of Parent, or will cause Parent, or any nominee of
Parent, to be constituted or appointed, with full power of substitution and re-substitution, during
and for the Proxy Term, as Stockholder’s true and lawful attorney in fact and irrevocable proxy,
for and in Stockholder’s name, place and stead, to vote each of the Subject Common Shares as
Stockholder’s proxy, at any annual, special or other meeting of the stockholders of the Company
called to vote upon the Merger and/or the Merger Agreement, and at any adjournment or postponement
thereof, and in connection with any action of the stockholders of the Company taken by written
consent to approve the Merger and approve and adopt the Merger Agreement, or, as applicable, to
instruct and direct the Depository Trust & Clearing Corporation or any other holder of record of
such Subject Common Shares to vote such Subject Common Shares at any annual, special or other
meeting of the stockholders of the Company called to vote upon the Merger and/or the Merger
Agreement, and at any adjournment or postponement thereof, and in connection with any action of the
stockholders of the Company taken by written consent to approve the Merger and approve and adopt
the Merger Agreement, (i) in favor of the adoption of the Merger Agreement (including any
amendments thereto) and the approval of the Merger and the other transactions contemplated by the
Merger Agreement and any actions required in furtherance thereof and (ii) (other than as otherwise
contemplated by the Merger Agreement) against any action, proposal, transaction or agreement that
would reasonably be expected to (A) result in a breach in any material respect of any covenant,
representation or warranty or any other obligation or agreement of the Company contained in the
Merger Agreement or (B) impede, interfere or be inconsistent with, delay, postpone, discourage or
adversely affect the transactions contemplated by the Merger Agreement or this Agreement.



     Section 2.3 Nature of Irrevocable Proxy. ANY PROXY AND POWER OF ATTORNEY GRANTED
PURSUANT TO SECTION 2.2 BY ANY STOCKHOLDER SHALL BE IRREVOCABLE DURING THE PROXY TERM, SHALL BE
DEEMED TO BE COUPLED WITH AN INTEREST SUFFICIENT IN LAW TO SUPPORT AN IRREVOCABLE PROXY AND SHALL
REVOKE ANY AND ALL PRIOR PROXIES GRANTED BY STOCKHOLDER TO THE EXTENT THAT THEY CONFLICT WITH THE
PROXY AND POWER OF ATTORNEY GRANTED HEREIN. Any power of attorney granted by Stockholder pursuant
to Section 2.2 shall be a durable power of attorney and shall survive the dissolution, bankruptcy,
death or incapacity of Stockholder and any obligation of Stockholder under this Agreement and shall
be binding upon the heirs, personal representatives, successors and assigns of Stockholder.
Stockholder hereby revokes all other proxies and powers of attorney with respect to all of
Stockholder’s Subject Common Shares that may have heretofore been appointed or granted to the
extent that they conflict with the proxy and power of attorney granted herein, and, except as
expressly contemplated by this Agreement, no subsequent proxy or power of attorney shall be given
(and if given, shall not be effective) by Stockholder with respect to any annual, special or other
meeting of the stockholders of the Company called



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to vote upon the Merger and/or the Merger Agreement, and at any adjournment or postponement
thereof, and in connection with any action of the stockholders of the Company taken by written
consent to approve the Merger and approve and adopt the Merger Agreement.




ARTICLE III




COVENANTS




     Section 3.1 Generally.



               (a) Stockholder agrees that, except as expressly contemplated by the terms of this Agreement
or the Merger Agreement, Stockholder shall not (i) sell, transfer, tender, pledge, give, encumber,
assign, convert into another class of securities of the Company or otherwise dispose of
(collectively, a “Transfer”) or enter into any contract, option or other agreement with
respect to, or consent to, a Transfer of or grant a proxy or power of attorney, deposit into any
voting trust, enter into any voting agreement, or create or permit to exist any Liens of any nature
whatsoever with respect to, any or all of Stockholder’s Subject Common Shares or (ii) take any
action that would reasonably be expected to have the effect of preventing, impeding or materially
and adversely affecting Stockholder’s ability to perform Stockholder’s obligations under this
Agreement. Notwithstanding the foregoing, Stockholder may make Transfers (A) by will or by
operation of law, in which case this Agreement shall bind the transferee, (B) to any other Person
who shall have executed a counterpart or otherwise become party to this Agreement (whether by
joinder, an accession agreement, an amendment to this agreement or otherwise) and who is legally
bound by the terms hereof and/or (C) as Parent may otherwise consent in writing in its sole
discretion (such consent not to be unreasonably withheld).



               (b) Stockholder agrees not to take any action that would reasonably be expected to (i) make
any representation or warranty of Stockholder contained herein untrue or incorrect in any material
respect or (ii) have the effect of preventing or disabling Stockholder from performing
Stockholder’s obligations under this Agreement.



               (c) In the event of a stock dividend or distribution, or any change in the Common Stock by
reason of any stock dividend or distribution, split-up, recapitalization, combination, exchange of
shares or the like, the term “Subject Common Shares”, when used with respect to
Stockholder, shall be deemed to refer to and include Stockholder’s then-existing Subject Common
Shares as well as all such stock dividends and distributions and any securities into which or for
which any or all of Stockholder’s Subject Common Shares may be changed or exchanged or which are
received in such transaction.



     Section 3.2 Exercise of Options. Stockholder may (but is not hereby obligated to)
purchase or acquire any additional shares of Common Stock pursuant to the exercise of Company Stock
Options; provided, however, that any such shares of Common Stock



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received by Stockholder in respect thereof shall be deemed “Subject Common Shares”
respectively for all purposes of this Agreement without any action by any Person. Schedule II
attached hereto sets forth a list of all outstanding Company Stock Options held by Stockholder, the
vesting schedule for each and the expiration or similar dates thereof.




     Section 3.3 Public Disclosure. Stockholder shall not issue or cause the publication
of any press release or other public announcement (to the extent not previously issued or made in
accordance with the Merger Agreement) with respect to this Agreement, the Merger Agreement, the
Merger or the other transactions contemplated by the Merger Agreement without the prior consent of
Parent.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS




     Stockholder hereby represents and warrants to Parent, severally and not jointly, as follows:



     Section 4.1 Authority. (i) Stockholder has all necessary legal capacity, power and
authority to execute and deliver this Agreement and to consummate the transactions contemplated
hereby, (ii) the execution and delivery of this Agreement by Stockholder and the consummation by
Stockholder of the transactions to be consummated by it as contemplated hereby have been duly and
validly authorized by Stockholder, and no other proceedings on the part of Stockholder are
necessary to authorize the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby, and (iii) this Agreement has been duly and validly executed and
delivered by Stockholder and, assuming the due authorization, execution and delivery by Parent,
constitutes a valid and binding obligation of Stockholder, enforceable against Stockholder in
accordance with its terms, subject to the Bankruptcy Exceptions.



     Section 4.2 Ownership of Shares. As of the date hereof, Stockholder is the lawful
record and beneficial owner of the shares of Common Stock denoted as being owned by Stockholder on
Schedule I and has the sole power to vote (or cause to be voted) Stockholder’s shares of Common
Stock in accordance with the provisions of this Agreement and the sole power of disposition with
respect to such shares, with no restrictions, subject to applicable federal securities laws.
Stockholder has good and valid title to the Common Stock denoted as being owned by Stockholder on
Schedule I, free and clear of any Liens that would adversely affect the ability of Stockholder to
carry out the terms of this Agreement. Stockholder has not prior to the date hereof appointed or
granted any proxy which is still in effect with respect to any of Stockholder’s Subject Common
Shares that will conflict with the proxy granted herein.



     Section 4.3 Consents and Approvals. The execution and delivery of this Agreement by
Stockholder does not, and the performance by Stockholder of Stockholder’s obligations under this
Agreement will not, require Stockholder to obtain any consent, approval, authorization or permit
of, or to make any filing with or



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notification to, any Governmental Authority based on the Law of any applicable Governmental
Authority, except for (a) any filing(s) (including amendments) that Stockholder may be required to
make pursuant to any applicable provision of the Exchange Act and (b) such consents, approvals,
authorizations or permits of, filings with or notifications to any Governmental Authority that
would not reasonably be expected to adversely affect the ability of Stockholder to carry out the
terms of this Agreement.




     Section 4.4 No Conflicts. Neither the execution and delivery of this Agreement by
Stockholder, the consummation by Stockholder of the transactions contemplated hereby nor compliance
by Stockholder with any of the provisions hereof shall (a) conflict with or violate the certificate
of incorporation, by-laws or other organizational documents of Stockholder, (b) result in, or give
rise to, a violation or breach of or a default (or an event that with notice or lapse of time or
both would become a default) under any of the terms of any contract, understanding, agreement or
other instrument or obligation to which any of Stockholder’s Subject Common Shares may be bound or
affected or (c) conflict with or violate any applicable Governmental Order or Law applicable to
Stockholder, except in the case of clauses (b) and (c) for any such violations, conflicts, breaches
or defaults that would not reasonably be expected to adversely affect the ability of Stockholder to
carry out the terms of this Agreement.



     Section 4.5 Reliance by Parent. Stockholder understands and acknowledges that Parent
is entering into the Merger Agreement in reliance upon the execution and delivery of this Agreement
by Stockholder.



ARTICLE V




REPRESENTATIONS AND WARRANTIES OF PARENT




Parent hereby represents and warrants to Stockholder as follow:



     Section 5.1 Authority. (i) Parent has all requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions contemplated hereby, (ii) the
execution and delivery of this Agreement by Parent and the consummation by Parent of the
transactions to be consummated by it as contemplated hereby have been duly and validly authorized
by Parent, and no other proceedings on the part of Parent are necessary to authorize the execution
and delivery of this Agreement or the consummation of the transactions contemplated hereby, and
(iii) this Agreement has been duly and validly executed and delivered by Parent and, assuming the
due authorization, execution and delivery by Stockholder, constitutes a valid and binding
obligation of Parent, enforceable against Parent in accordance with its terms, subject to the
Bankruptcy Exceptions.



     Section 5.2 Consents and Approvals. The execution and delivery of this Agreement by
Parent does not, and the performance by Parent of Parent’s obligations under this Agreement will
not, require Parent to obtain any consent, approval, authorization or permit of, or to make any
filing with or notification to, any Governmental Authority based on the Law of any applicable
Governmental Authority,



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except for (a) any filing(s) (including amendments) that Parent may be required to make
pursuant to any applicable provision of the Exchange Act and (b) such consents, approvals,
authorizations or permits of, filings with or notifications to any Governmental Authority that
would not reasonably be expected to adversely affect the ability of Parent to carry out the terms
of this Agreement.




     Section 5.3 No Conflicts. Neither the execution and delivery of this Agreement by
Parent, the consummation by Parent of the transactions contemplated hereby nor compliance by Parent
with any of the provisions hereof shall (a) conflict with or violate the certificate of
incorporation or by-laws of Parent, (b) result in, or give rise to, a violation or breach of or a
default (or an event that with notice or lapse of time or both would become a default) under any of
the terms of any contract, understanding, agreement or other instrument or obligation to which
Parent is a party or by which Parent or any of Parent’s assets may be bound or affected or (c)
conflict with or violate any applicable Governmental Order or Law applicable to Parent, except in
the case of clauses (b) and (c) for any such violations, conflicts, breaches or defaults that would
not reasonably be expected to adversely affect the ability of Parent to carry out the terms of this
Agreement.



     Section 5.4 Reliance by Stockholder. Parent understands and acknowledges that
Stockholder is entering into this Agreement in reliance upon, and agrees that Stockholder is
entitled to rely upon, the execution, delivery and performance of the Merger Agreement by Parent
and Merger Sub.



ARTICLE VI




TERMINATION




     Section 6.1 Termination. This Agreement shall terminate, and neither Parent nor
Stockholder shall have any further rights or obligations hereunder, upon the earliest to occur of
(a) the mutual consent of Parent and Stockholder, (b) the Effective Time and (c) the termination of
the Merger Agreement in accordance with its terms. Notwithstanding the foregoing, this Section 6.1
and Article VII of this Agreement shall survive the termination of this Agreement.



ARTICLE VII




MISCELLANEOUS




     Section 7.1 Appraisal Rights. Stockholder hereby irrevocably and unconditionally
waives, and agrees to prevent the exercise of, any rights of appraisal, any dissenters’ rights and
any similar rights relating to the Merger or any related transaction that Stockholder may directly
or indirectly have by virtue of the ownership of any Subject Common Shares.



     Section 7.2 Publication. Stockholder hereby permits Parent to publish and disclose in
any document and/or schedule filed by Parent or any of its Affiliates with the



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SEC Stockholder’s identity and ownership of shares of Common Stock and Company Stock Options
and the nature of Stockholder’s commitments, arrangements and understandings pursuant to this
Agreement; subject to Parent (i) providing Stockholder with a reasonable opportunity to review any
such document and/or schedule and (ii) accepting any comments or corrections reasonably suggested
by Stockholder to any such document and/or schedule that are provided no later than three (3)
Business Days after Stockholder’s receipt thereof.




     Section 7.3 Further Actions. Stockholder agrees that it will, upon the request of
Parent, execute and deliver such documents (the form and content of which to be reasonably
acceptable to Stockholder) and take such actions as may be reasonably requested by Parent to
effectuate the purpose of this Agreement.



     Section 7.4 Amendments, Waivers, etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified, except upon the execution and delivery of a written
agreement executed by each of the parties hereto. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in respect hereof at
law or in equity, or to insist upon compliance by any other party hereto with its obligations
hereunder, and any custom or practice of the parties at variance with the terms hereof shall not
constitute a waiver by such party of its right to exercise any such or other right, power or remedy
or to demand such compliance.



     Section 7.5 Specific Performance. The parties hereto agree that if for any reason any
party hereto shall have failed to perform Stockholder’s obligations under this Agreement, then the
party seeking to enforce this Agreement against such non-performing party shall be entitled to
specific performance and injunctive and other equitable relief. This provision is without
prejudice to any other rights or remedies, whether at law or in equity, that any party hereto may
have against any other party hereto for any failure to perform Stockholder’s obligations under this
Agreement.



     Section 7.6 Notices. All notices or other communications hereunder shall be deemed to
have been duly given and made if in writing and if served by personal delivery upon the party for
whom it is intended, if delivered by registered or certified mail, return receipt requested, or by
a national courier service, or if sent by facsimile or by e-mail transmission, in each case as set
forth below. Any such notice shall be deemed delivered (a) on the date delivered if by personal
delivery, (b) on the date upon which the return receipt is signed or delivery is refused or the
notice is designated by the postal authorities as not deliverable, as the case may be, if mailed by
registered or certified mail, (c) on the next succeeding Business Day if sent by national courier
service, (d) on the date sent by facsimile if the appropriate facsimile confirmation is received by
the sender or (e) on the date sent if by email.



          If to Parent, addressed to it at:




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ELC Holdings Corporation

c/o Thoma Cressey Equity Partners, Inc.

9200 Sears Tower

233 South Wacker Drive

Chicago, IL 60606-6331

Attention:     Carl D. Thoma, Managing Partner

Telephone:    (312) 777-4420

Facsimile:     (312) 777-4421





with a copy to:


Goodwin Procter LLP

901 New York Ave., N.W.

Washington, DC 20001

Attention:     J. Hovey Kemp, Esq.

Telephone:    (202) 346-4283

Facsimile:     (202) 346-4444



and



Goodwin Procter LLP

53 State Street

Boston, MA 02109

Attention:     Kathy A. Fields, Esq.

Telephone:    (617) 570-1304

Facsimile:     (617) 523-1231





If to Stockholder, addressed to Stockholder at the address and facsimile number set
forth on Schedule III hereto, with a copy to:


Latham & Watkins LLP

633 W. Fifth St., Suite 400

Los Angeles, CA 90071-2007

Attention: Jeffrey L. Kateman, Esq.

                  Paul D. Tosetti, Esq.

Telephone: (213) 891-8705

Facsimile: (213) 891-8763




     Section 7.7 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.



     Section 7.8 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any applicable Law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such



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determination that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.




     Section 7.9 Entire Agreement. This Agreement (together with the Merger Agreement, to
the extent referred to herein) constitutes the entire agreement of the parties and supersedes all
prior agreements and undertakings, both written and oral, between the parties, or any of them, with
respect to the subject matter hereof.



     Section 7.10 Assignment. This Agreement shall not be assigned by operation of law or
otherwise without the prior written consent of each of the parties, except that Parent may assign
and transfer its rights and obligations hereunder to any direct or indirect wholly owned subsidiary
of Parent.



     Section 7.11 Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their respective successors and assigns, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any other Person any
right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.



     Section 7.12 Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury.



          (a) This Agreement and the transactions contemplated hereby, and all disputes between the
parties under or related to the Agreement or the facts and circumstances leading to its execution,
whether in contract, tort or otherwise, shall be governed by and construed in accordance with the
Laws of the State of Delaware, without regard to the application of Delaware principles of
conflicts of laws.




          (b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the non-exclusive jurisdiction of any Delaware or California state court, or
federal court of the United States of America, sitting in Delaware or California, and any appellate
court from any thereof, in any action or proceeding arising out of or relating to this Agreement or
the agreements delivered in connection herewith or the transactions contemplated hereby or thereby
or for recognition or enforcement of any judgment relating thereto, and each of the parties hereby
irrevocably and unconditionally (i) agrees that any claim in respect of any such action or
proceeding may be heard and determined in any such Delaware or California state court or, to the
extent permitted by applicable Law, in any such federal court, (ii) waives, to the fullest extent
it may legally and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in any such Delaware or California state or
federal court, and (iii) waives, to the fullest extent permitted by applicable Law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in any such Delaware or
California state or federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by applicable Law. Each party to this Agreement
irrevocably

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consents to service of process in the manner provided for notices in Section 7.6. Nothing in
this Agreement shall affect the right of any party to this Agreement to serve process in any other
manner permitted by applicable Law.




          (c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE
AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 7.12(c).




     Section 7.13 Counterparts. This Agreement may be executed in two or more
counterparts, including facsimile counterparts, each of which when executed shall be deemed to be
an original but all of which taken together shall constitute one and the same agreement.


[Remainder of page intentionally left blank.]





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     IN WITNESS WHEREOF, Parent and Stockholder have caused this Agreement to be duly executed
as of the day and year first above written.



	 	 	 	 	 
	 	 	PARENT
	 
	 	 	 	 
	 	 	ELC HOLDINGS CORPORATION
	 
	 	 	 	 
	 

	 	By: 
	/s/ Carl D. Thoma
	 

	 	 	 	 
	 

	 	 	 	Name: Carl D. Thoma
	 

	 	 	 	Title: President
	 
	 	 	 	 
	 	 	STOCKHOLDER
	 
	 	 	 	 
	 	 	WILLIAM E. SIMON & SONS PRIVATE EQUITY PARTNERS, L.P.
	 
	 	 	 	 
	 

	 	By:
	William E. Simon & Sons Private Equity, L.L.C.,
	 

	 	 	 	its General Partner






	 	 	 	 	 	 	 
	 

	 	 	 	By: 
	/s/ Robert MacDonald
	 

	 	 	 	 	 
	 

	 	 	 	Name: 
	Robert MacDonald
	 

	 	 	 	Title:
	President






[Signature Page to Voting Agreement]




 









 








Schedule I

Beneficial and Record Ownership of Common Stock 




	 	 	 	 	 
	 	 	Number of Shares
	Name of Stockholder	 	of Common Stock Owned
	William E. Simon & Sons Private Equity Partners, L.P.
	 	 	1,478,700	 






 









 





Schedule II

Company Stock Options




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Number of Outstanding	 	 	Vesting	 	 	Expiration	 
	Name of Stockholder	 	Company Stock Options	 	 	Date(s)	 	 	Date(s)	 
	Not Applicable
	 	 	 	 	 	 	 	 	 	 	 	 






 









 





Schedule III

Notice to Stockholders




Name and Address of Stockholder




William E. Simon & Sons Private Equity Partners, L.P.

310 South Street

Morristown, NJ 07962