ex101to8k01124_01292008.htm


     

    Exhibit
      10.1

     

    
      STOCKHOLDERS’
        AGREEMENT

       

      STOCKHOLDERS’
        AGREEMENT, dated as of January 29, 2008 (this “Agreement”),
        among NuCO2
        Acquisition Corp., a Delaware corporation (“Parent”),
        NuCO2,
        Inc., a Florida corporation (the “Company”),
        and
        the stockholders of the Company listed on the signature pages hereto (each
        a
“Stockholder”
        and collectively, the “Stockholders”).

       

      WHEREAS,
        Parent, NuCO2
        Merger Co., a Florida corporation and a wholly-owned subsidiary of Parent
        (“Merger
        Sub”),
        and the Company propose to simultaneously herewith enter into an Agreement
        and
        Plan of Merger dated as of the date hereof (as the same may be amended or
        supplemented, the “Merger
        Agreement”; capitalized terms used but not defined herein shall
        have the meanings set forth in the Merger Agreement) providing for the merger
        of
        Merger Sub with and into the Company;

       

      WHEREAS,
        as of the date hereof, each Stockholder is the record or beneficial owner
        (as
        such term is defined in Rule 13d-3 under the Exchange Act) of that number
        of
        shares of Company Common Stock set forth next to such Stockholder’s name on
Schedule A to
        this Agreement (subject to adjustment as contemplated herein, the “Owned
        Shares”); and

       

      WHEREAS,
        as a condition to the willingness of Parent and Merger Sub to enter into
        the
        Merger Agreement, and as an inducement and in consideration therefor, Parent
        has
        requested that the Stockholders enter into this Agreement.

       

      NOW,
        THEREFORE, the parties hereto agree as follows:

       

      Section
        1.  Representations,
        Warranties
        and Covenants of the Stockholders.  Each Stockholder, severally
        and not jointly, hereby represents and warrants to Parent as of the date
        hereof
        as follows:

       

      (a)           Authority.  The
        Stockholder has all requisite power and authority to execute this Agreement
        and
        to consummate the transactions contemplated hereby.  The execution and
        delivery by the Stockholder of this Agreement and consummation of the
        transactions contemplated hereby have been duly authorized by all necessary
        action on the part of the Stockholder.

       

      (b)           Execution;
        Delivery.  The Stockholder has duly executed and delivered this
        Agreement, and, assuming the due authorization, execution and delivery hereof
        by
        the other parties hereto, this Agreement constitutes the valid and binding
        obligation of the Stockholder, enforceable against the Stockholder in accordance
        with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
        reorganization, moratorium and similar laws of general applicability relating
        to
        or affecting creditors rights and to general principles of equity.  No
        consent of, or registration or filing with, any Governmental Authority is
        required to be obtained or made by or with respect to the Stockholder in
        connection with the execution, delivery and performance of this Agreement
        or the
        consummation of the transactions contemplated hereby, other than (i) such
        reports, schedules or statements under the Exchange Act as may be required
        to be
        filed by the Stockholder in connection with this Agreement and the transactions
        contemplated hereby and (ii) such consents, registrations or filings by the
        Stockholder the failure of
        which
        to be obtained or made would not have an adverse effect on the Stockholder’s
        ability to timely perform its obligations hereunder.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      (c)           The
        Owned
        Shares.  As of the date hereof, the Stockholder is the record
        or beneficial owner of the Owned Shares set forth next to such Stockholder’s
        name on Schedule A, free
        and clear of (i) any Encumbrances (other than the Merger Agreement and this
        Agreement) and (ii) any restrictions whatsoever with respect to the
        ownership, transfer or voting of the Owned Shares that would, individually
        or in
        the aggregate, reasonably be expected to impair the ability of the Stockholder
        to timely perform its obligations under this Agreement or prevent or delay
        the
        consummation of the transactions contemplated by the Merger Agreement, subject
        to applicable federal or state securities Laws.  None of such Owned
        Shares are subject to any voting trust or other voting agreement, except
        as
        contemplated by this Agreement.  Except for the Owned Shares and for
        stock options disclosed in the Company Disclosure Letter, on the date hereof,
        the Stockholder does not own beneficially or of record any common stock or
        other
        voting securities of the Company and does not, directly or indirectly, own
        or
        have any option, warrant or other right to acquire any common stock or other
        securities of the Company that are or may by their terms become entitled
        to vote
        or any securities that are convertible or exchangeable into or exercisable
        for
        any securities of the Company that are or may by their terms become entitled
        to
        vote under the Company’s articles of incorporation, applicable Law or
        otherwise.

       

      (d)           No
        Conflicts.  Except for required filings by the Stockholder
        under the Exchange Act (which the Stockholder agrees to make as and to the
        extent required by the Exchange Act), to the extent applicable, the execution
        and delivery of this Agreement do not, and the consummation of the transactions
        contemplated hereby and compliance with the provisions hereof will not, conflict
        with, result in a violation or breach of, or constitute a default (or an
        event
        that, with notice or lapse of time or both, would result in a default) or
        give
        rise to any right of termination or acceleration under, (i) any loan or
        credit agreement, bond, note, mortgage, indenture, lease or any other contract,
        agreement or instrument to which the Stockholder is a party or by which the
        Stockholder or any of its Owned Shares is bound or (ii) any Law or Order
        applicable to the Stockholder, except for any such violation, breach, default
        or
        right of termination or acceleration that does not impair or materially delay
        the Stockholder’s ability to perform its obligations hereunder.

       

      Section
        2.  Representations
        and
        Warranties of Parent.  Parent hereby represents and warrants to
        the Stockholder as follows:

       

      (a)           Authority.  Parent
        is duly organized, validly existing and in good standing under the laws of
        the
        jurisdiction of its organization.  Parent has all requisite corporate
        power and authority to execute this Agreement and to consummate the transactions
        contemplated hereby.  The execution and delivery by Parent of this
        Agreement and consummation of the transactions contemplated hereby have been
        duly authorized by all necessary action on the part of Parent.

       

      (b)           Execution;
        Delivery.  Parent has duly executed and delivered this
        Agreement, and, assuming the due authorization, execution and delivery hereof
        by
        the other parties hereto, this Agreement constitutes the valid and binding
        obligation of Parent, enforceable against Parent in accordance with its terms,
        subject to bankruptcy, insolvency, fraudulent transfer,
        reorganization, moratorium and similar laws of general applicability relating
        to
        or affecting creditors rights and to general principles of equity.  No
        consent of, or registration or filing with, any Governmental Authority is
        required to be obtained or made by or with respect to Parent in connection
        with
        the execution, delivery and performance of this Agreement or the consummation
        of
        the transactions contemplated hereby, other than as set forth in the Merger
        Agreement.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      (c)           No
        Conflicts.  Subject to compliance by Parent with the regulatory
        filings set forth in the Merger Agreement, neither the execution and delivery
        of
        this Agreement nor the performance by Parent of its obligations hereunder
        will
        result in a violation or breach of, or constitute a default (or an event
        that,
        with notice or lapse of time or both, would result in a default) or give
        rise to
        any right of termination or acceleration under, (i) Parent’s certificate of
        incorporation or similar constituent documents, (ii) any loan or credit
        agreement, bond, note, mortgage, indenture, lease or any other contract,
        agreement or instrument to which Parent is a party or by which Parent is
        bound,
        or (iii) any Law or Order applicable to Parent; except, in the case of
        clauses (ii) and (iii) above, for any such violation, breach, default or
        right
        of termination or acceleration that does not impair or materially delay the
        Parent’s ability to perform its obligations hereunder.

       

      Section
        3.  Restrictions on
        Owned
        Shares.

       

      (a)           Agreement
        to
        Vote.  Each Stockholder severally (and not jointly) agrees
        that, during the term of this Agreement, at any duly called meeting of the
        stockholders of the Company, such Stockholder shall vote (or cause to be
        voted)
        all of its Owned Shares (i) in favor of the Merger, the adoption of the Merger
        Agreement and each other action contemplated by the Merger Agreement and
        any
        actions required in furtherance hereof or thereof and (ii) against the adoption
        of any Acquisition Proposal.  The foregoing provision shall also apply
        to the extent appropriate in the event of stockholder action by written consent
        to the extent permitted in the Company’s articles of
        incorporation.  Concurrently with this Agreement, each Stockholder has
        duly executed and delivered an irrevocable proxy in the form attached as
Exhibit A hereto
        (the “Irrevocable
        Proxy”) appointing Parent and any of its authorized
        Representatives during the term of this Agreement as such Stockholder’s proxy
        with the power to vote, at any duly called meeting of stockholders of the
        Company, or in any other circumstance upon which the vote or other approval
        of
        holders of Company Common Stock is sought, all of such Stockholder’s Owned
        Shares:  (i) in favor of the Merger, the adoption of the Merger
        Agreement and each other action contemplated by the Merger Agreement and
        any
        actions required in furtherance hereof or thereof and (ii) against the adoption
        of any Acquisition Proposal.  It is agreed that Parent and any of its
        authorized Representatives shall use the irrevocable proxy granted hereby
        only
        in accordance with applicable Law.  In addition to the other covenants
        and agreements of such Stockholder provided for elsewhere in this Agreement,
        from the execution of this Agreement until the first to occur of the Effective
        Time or the Termination Date, none of the Stockholders shall enter into any
        agreement, arrangement or understanding with any person or entity to refrain
        from taking any of the actions described in clause (i) or (ii) of the foregoing
        sentence, or the effect of which would be inconsistent with or violate the
        provisions and agreements contained in this Section 3, in any
        case without the prior written consent of Parent.

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      (b)           No
        Transfers.  Other than pursuant to this Agreement or as
        contemplated by the Merger Agreement, the Stockholder shall not: (i) sell,
        transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
        into any contract, option or other agreement or instrument with respect to
        or
        consent to the sale, transfer, tender, pledge, encumbrance, assignment or
        other
        disposition of (collectively, “Transfer”)
        any
        of its Owned Shares to any third party, unless such person to which such
        Owned
        Shares are Transferred executes a counterpart of this Agreement and agrees
        to
        hold such Owned Shares subject to all of the terms and provisions of this
        Agreement; (ii) deposit any of its Owned Shares into a voting trust;
        (iii) grant any proxies or powers of attorney or enter into a voting
        agreement with respect to any of its Owned Shares; or (iv) enter into any
        other agreement or instrument with respect to the voting of any of its Owned
        Shares.  This Section 3(b) shall
        terminate upon a termination of this Agreement or the Merger
        Agreement.

       

      


      (c)           The
        parties acknowledge that this Agreement does not prohibit any Stockholder,
        after
        the termination of Section 3(b) hereof,
        from selling or Transferring any or all shares of Company Common Stock that
        constitute Owned Shares; and neither the Company nor any Stockholder shall
        have
        any liability, hereunder, under the Merger Agreement or otherwise, to Merger
        Sub
        or Parent if any such record or beneficial owner Transfers or sells any such
        shares of Company Common Stock at any time after such termination.

       

      (d)           Waiver
        of Appraisal
        Rights.  Each Stockholder hereby waives, and agrees not to
        seek, assert or perfect any appraisal rights under Section 607.1301, et seq., of the FBCA
        in
        connection with the Merger as it relates to its Owned Shares.

       

      Section
        4.  Solicitation.  Each
        Stockholder shall, and shall use commercially reasonable efforts to cause
        each
        agent and representative (including without limitation any investment banker,
        financial advisor, attorney, accountant or other representative retained
        by the
        Stockholder or any such representative) (each, a “Stockholder
        Representative”)
        of the
        Stockholder to, comply with the provisions of Section
        7.03
        of the Merger
        Agreement.  Notwithstanding anything in this Agreement to the
        contrary, (i) the provisions of this Agreement apply solely to the
Stockholder when acting in his capacity as a stockholder of the Company
        and not when acting or purporting to act as an officer or director of the
        Company (it being understood that the Company has separate and independent
        obligations under
        Section 7.03 of the Merger Agreement); (ii) none of the provisions of
        this Agreement shall be construed to prohibit, limit or restrict the Stockholder
        from exercising his fiduciary duties as a director or officer of the Company
        by
        voting or taking any other action whatsoever in his capacity as a director
        or
        officer of the Company; and (iii) no action taken by the Company in compliance
        with the terms of the Merger Agreement in respect of any Acquisition Proposal
        shall serve as the basis of a claim that the Stockholder is in breach of
        his
        obligations hereunder notwithstanding the fact that the Stockholder provided
        advice or assistance to the Company in connection therewith.

       

      Section
        5.  Termination.  This
        Agreement shall terminate upon the earliest to occur of (i) the Effective
        Time,
        (ii) the termination of the Merger Agreement, and (iii) upon written notice
        by
        such Stockholder to Parent from and after any amendment, waiver or modification
        to the terms of the Merger Agreement that changes the form of, or decreases
        the
        amount of, the Merger Consideration, or alters in any material respect the
        timing of payment of the Merger Consideration.

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      Section
        6.  General
        Provisions.

       

      (a)           Amendments.  This
        Agreement may not be amended except by an instrument in writing signed by
        each
        of the parties hereto.

       

      (b)           Reliance.  The
        Stockholder understands and acknowledges that Parent is entering into the
        Merger
        Agreement in reliance upon the Stockholder’s execution, delivery and performance
        under this Agreement.

       

      (c)           Further
        Assurances.  From time to time, at Parent’s reasonable request
        and without further consideration, the Stockholder shall execute and deliver
        such additional documents as may be reasonably necessary to consummate and
        make
        effective, in the most expeditious manner practicable, the transactions
        contemplated by this Agreement.

       

      (d)           Adjustments.  In
        the event (i) of any stock dividend, stock split, recapitalization,
        reclassification, combination or exchange of shares of capital stock or other
        securities of the Company on, of or affecting the Owned Shares or the like
        or
        any other action that would have the effect of changing the number of shares
        of
        Company Common Stock owned by the Stockholder or (ii) the Stockholder
        becomes the record or beneficial owner of any additional shares of Company
        Common Stock, then the terms of this Agreement will apply to all of the shares
        of Company Common Stock held by the Stockholder immediately following the
        effectiveness of the events described in clause (i) or clause
        (ii).  The Stockholder hereby agrees, while this Agreement is in
        effect, to promptly notify Parent of the number of any new shares of Company
        Common Stock acquired by the Stockholder, if any, after the date
        hereof.

       

      (e)           Disclosure.  The
        Stockholder hereby permits Parent and the Company to disclose, in all documents
        and schedules filed by Parent or the Company with the SEC, this Agreement
        and
        the information contained in this Agreement, to the extent this Agreement
        and
        such information are required by the rules and regulations of the SEC to
        be
        disclosed therein; provided, however,
        that such
        disclosure shall be subject to the prior review and comment by the Stockholder
        or, prior to the Effective Time, by the Company in accordance with Section 7.06 of the
        Merger Agreement.  Except as provided in this Agreement or in Section 7.06 of the
        Merger Agreement, the Stockholder shall not issue any press release or make
        any
        other public statement with respect to this Agreement, the Merger Agreement,
        the
        Merger or any other transactions contemplated by this Agreement, the Merger
        Agreement or the Merger without the prior written consent of
        Parent.

       

      (f)           Notices.
        All notices
        and other communications hereunder shall be in writing and shall be deemed
        given
        if delivered personally or sent by overnight courier (providing proof of
        delivery) to the Company and Parent in accordance with Section 10.02 of the
        Merger Agreement and to Stockholder at its address set forth on Schedule A hereto
        (or
        at such other address for a party as shall be specified by like
        notice.

       

      (g)           Interpretation.  The
        Section headings herein are for convenience of reference only, do not constitute
        part of this Agreement and shall not be deemed to limit or otherwise affect
        any
        of the provisions hereof.  Where a reference in this Agreement is made
        to a Section, such reference shall be to a Section of this Agreement unless
        otherwise indicated.  Unless
        otherwise indicated, whenever the words “include,” “includes” or “including” are
        used in this Agreement, they shall be deemed to be followed by the words
        “without limitation.”  Notwithstanding anything to the contrary
        contained herein, the obligations of the Stockholders hereunder shall be
        several
        and not joint.

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

       

      (h)           Severability.
        The
        provisions of this Agreement shall be deemed severable and the invalidity
        or
        unenforceability of any provision shall not affect the validity or
        enforceability of the other provisions hereof.  If any provision of
        this Agreement, or the application thereof to any person or any circumstance,
        is
        invalid or unenforceable, (a) a suitable and equitable provision shall be
        substituted therefor in order to carry out, so far as may be valid and
        enforceable, the intent and purpose of such invalid or unenforceable provision
        and (b) the remainder of this Agreement and the application of such provision
        to
        other persons or circumstances shall not be affected by such invalidity or
        unenforceability, nor shall such invalidity or unenforceability affect the
        validity or enforceability of such provision, or the application thereof,
        in any
        other jurisdiction.

       

      (i)           Counterparts.
        This
        Agreement may be executed in any number of counterparts, each such counterpart
        being deemed to be an original instrument, and all such counterparts shall
        together constitute the same agreement.

       

      (j)           Entire
        Agreement; No
        Third-Party Beneficiaries.  This Agreement and the Merger
        Agreement constitute the entire agreement, and supersede all other prior
        agreements, understandings, representations and warranties both written and
        oral, among the parties, with respect to the subject matter
        hereof.  This Agreement is not intended to confer upon any person
        other than the parties hereto any rights or remedies hereunder.

       

      (k)           Governing
        Law.  THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL
        RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
        WITH
        THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
        PRINCIPLES THEREOF.

       

      (l)           Waiver
        of Jury
        Trial.  THE PARTIES HEREBY IRREVOCABLY WAIVE ANY RIGHT TO TRIAL
        BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING
        TO
        THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS
        AGREEMENT.  EACH PARTY (I) CERTIFIES THAT 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 THE FOREGOING
        WAIVER AND (II) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS STOCKHOLDERS
        AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
        THIS SECTION
        6(L).

       

      (m)           Merger
        Agreement.   Each party acknowledges that the other
        parties have been induced to enter into this Agreement (and, in the case
        of
        Parent, the Merger Agreement) based on the terms and conditions of the Merger
        Agreement (and, in the case of Parent, this Agreement).

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

       

      (n)           Assignment.  Except
        as otherwise provided herein, no rights or obligations under this Agreement
        may
        be assigned or delegated by operation of Law or otherwise.  Any
        purported assignment or delegation in violation of this Agreement is
        void.

       

      (o)           Consent
        to
        Jurisdiction. Each of the parties hereto hereby irrevocably and
        unconditionally submits, for itself and its property, to the exclusive
        jurisdiction of the federal courts of New York County in the Borough of
        Manhattan in any action or proceeding arising out of or relating to this
        Agreement or the transactions contemplated hereunder or for recognition or
        enforcement of any judgment relating thereto, and each of the parties hereto
        hereby irrevocably and unconditionally agrees that all claims in respect
        of any
        such action or proceeding may be heard and determined in such 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
        law.  Each of the parties hereto irrevocably and unconditionally
        waives, to the fullest extent it or he may legally and effectively do so,
        any
        objection that it or he may now or hereafter have to the laying of venue
        of any
        suit, action or proceeding arising out of or relating to this Agreement or
        the
        transactions contemplated hereunder in the federal courts of New York County
        in
        the Borough of Manhattan.  Each of the parties hereto irrevocably
        waives, to the fullest extent permitted by law, the defense of an inconvenient
        forum to the maintenance of such action or proceeding in any such
        court.  The parties hereto further agree that the mailing by certified
        or registered mail, return receipt requested, of any process required by
        any
        such court shall constitute valid and lawful service of process against them,
        without the necessity for service by any other means provided by law, with
        respect to any matters for which it has submitted to jurisdiction pursuant
        to
        this Section
        6(o).  The foregoing consents to jurisdiction and appointments
        of agents to receive service of process shall not constitute general consents
        to
        service of process in the State of New York in the Borough of Manhattan for
        any
        purpose except as provided above and shall not be deemed to confer rights
        on any
        person other than the respective parties to this Agreement.

       

      [Signature
        Page Follows]

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

       

      IN
        WITNESS WHEREOF, each party has duly executed this Stockholders’ Agreement, all
        as of the date first written above.

      
        


        
          	 	
                  
                    NUCO2
                      INC.

                  

                
	 	 
	 	 
	 	
                  By:

                	 /s/
                  Michael E. DeDomenico
	 	 	
                  Name:

                	 Michael
                  E. DeDomenico
	 	 	
                  Title:

                	 Chairman
                  and Chief Executive Officer


        

        


        


        
          	 	
                  
                    
                      NUCO2
                        INC. ACQUISITION
                        CORP.

                    

                  

                
	 	 
	 	 
	 	
                  By:

                	 /s/
                  Timothy J. Hart
	 	 	
                  Name:

                	 Timothy
                  J. Hart
	 	 	
                  Title:

                	 V.P.,
                  Secretary and General Counsel


        

        


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

      

       

       

      
        
          	
                  STOCKHOLDERS:

                
	 
	 
	 /s/
                  Michael E. DeDomenico
	 
	 
	 
	 
	 /s/
                  Robert L. Frome
	 
	 
	 
	 
	 /s/
                  Steven J. Landwehr
	 
	 
	 
	 
	 /s/
                  Daniel Raynor
	 
	 
	 
	 
	 /s/
                  J. Robert Vipond
	 
	 
	 
	 
	 /s/
                  Christopher White
	 
	 
	 
	 
	 /s/
                  Randy Gold
	 
	 
	 
	 
	 /s/
                  Eric Wechsler
	 
	 
	 
	 
	 /s/
                  Robert Galvin
	 
	 
	 
	 
	 /s/
                  Scott Wade
	 


        

      

       

      
 

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

       

      EXHIBIT
        A

       

      IRREVOCABLE
        PROXY

       

      


       

      By
        its
        execution hereof, and in order to secure its obligations under the Stockholders’
Agreement of even date herewith (the “Agreement”) among NuCO2
        Acquisition Corp., a Delaware corporation, NuCO2
        Inc., a Florida corporation (the “Company”),
        the
        stockholders of the Company listed on the signature pages thereto and the
        undersigned, the undersigned hereby revokes all previous proxies and appoints
        NuCO2
        Acquisition Corp. and its duly appointed successors as proxy holder to attend
        and with the power to vote, at any duly called meeting of stockholders of
        the
        Company, or in any other circumstance upon which the vote or other approval
        of
        holders of Company Common Stock is sought, all of the undersigned’s Owned
        Shares, with the same effect as if the undersigned had personally attended
        the
        meeting or had personally voted the shares or had personally signed the written
        consent, in the manner provided in Section 3 of the Agreement.  The
        undersigned further appoints NuCO2
        Acquisition Corp. and its duly appointed successors to act as the undersigned’s
        representative and attorney in fact with respect to directing, or causing,
        the
        vote of all of the Owned Shares:  (i) in favor of the Merger, the
        adoption of the Merger Agreement and each other action contemplated by the
        Merger Agreement and any actions required in furtherance hereof or thereof
        and
        (ii) against the adoption of any Acquisition Proposal.

       

      The
        undersigned authorizes and directs the proxy holder to file this proxy
        appointment with the secretary of the Company and authorizes the proxy holder
        to
        substitute another person as proxy holder and to file the substitution
        instrument with the secretary of the Company. Capitalized terms used herein
        without definition shall have the meanings assigned to them in the
        Agreement.

       

      This
        proxy is coupled with an interest and irrevocable until the Effective Time,
        the
        termination of the Agreement or such other time as is provided in the
        Agreement.  This proxy terminates upon termination of the Agreement
        and is subject to the limitations set forth therein.

       

      Dated:  January
        29, 2008

       

      
         

        
          
            	
                    STOCKHOLDERS:

                  
	 
	 
	 /s/
                    Michael E. DeDomenico
	 
	 
	 
	 
	 /s/
                    Robert L. Frome
	 
	 
	 
	 
	 /s/
                    Steven J. Landwehr
	 
	 
	 
	 
	 /s/
                    Daniel Raynor
	 
	 
	 
	 
	 /s/
                    J. Robert Vipond
	 
	 
	 
	 
	 /s/
                    Christopher White
	 
	 
	 
	 
	 /s/
                    Randy Gold
	 
	 
	 
	 
	 /s/
                    Eric Wechsler
	 
	 
	 
	 
	 /s/
                    Robert Galvin
	 
	 
	 
	 
	 /s/
                    Scott Wade