exv10w1






Exhibit 10.1




Execution Version




VOTING AGREEMENT




     This Voting Agreement (“Agreement”) is entered into as of September 19, 2010, by
and between Rudy Acquisition Corp., a Delaware corporation (“Parent”), and
                    (“Stockholder”).



Recitals



     A. Stockholder is a holder of record and the “beneficial owner” (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of certain shares of common stock of Rae Systems
Inc., a Delaware corporation (the “Company”).



     B. Parent, Rudy Merger Sub Corp., a Delaware corporation and a wholly owned subsidiary of
Parent (“Merger Sub”), and the Company are entering into an Agreement and Plan of Merger of even
date herewith (the “Merger Agreement”) which provides (subject to the conditions set forth therein)
for the merger of Merger Sub into the Company (the “Merger”). Capitalized terms used herein,
unless otherwise defined herein, shall have the meanings ascribed to them in the Merger Agreement.



     C. In the Merger, the outstanding shares of common stock of the Company (other than the
Rollover Shares) are to be converted into the right to receive the Merger Consideration.



     D. In order to induce Parent to enter into the Merger Agreement, Stockholder is entering into
this Agreement.



Agreement



     The parties to this Agreement, intending to be legally bound, agree as follows:



SECTION 1. Certain Definitions. For purposes of this Agreement:




     1.1 “Company Common Stock” shall mean the common stock, par value $0.001 per share, of the
Company.



     1.2 Stockholder shall be deemed to “Own” or to have acquired “Ownership” of a security if
Stockholder: (a) is the record owner of such security; or (b) is the “beneficial owner” (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such security.



     1.3 “Person” shall mean any (a) individual, (b) corporation, limited liability company,
partnership or other entity, or (c) governmental authority.



     1.4 “Rollover Agreement” shall mean that certain Rollover Agreement dated as of the date
hereof between the Stockholder and Parent.



1.









 





     1.5 “Subject Securities” shall mean: (a) all securities of the Company (including all shares
of Company Common Stock and all options, warrants and other rights to acquire shares of Company
Common Stock) Owned by Stockholder as of the date of this Agreement; and (b) all additional
securities of the Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares of Company Common Stock) of which
Stockholder acquires Ownership during the period from the date of this Agreement through the Voting
Covenant Expiration Date.



     1.6 A Person shall be deemed to have effected a “Transfer” of a security if such Person
directly or indirectly: (a) sells, pledges, encumbers, grants an option with respect to, transfers
or disposes of such security or any interest in such security to any Person other than Parent; (b)
enters into an agreement or commitment for the sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any interest therein to any
Person other than Parent; (c) enters into a swap or similar transaction that transfers the
economic consequences of ownership of such security; or (d) reduces such Person’s beneficial
ownership of, interest in or risk relating to such security.



     1.7 “Voting Covenant Expiration Date” shall mean the earlier of the date upon which the Merger
Agreement is validly terminated, or the date upon which the Merger is consummated.



SECTION 2. Transfer of Subject Securities and Voting Rights




     2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the period
from the date of this Agreement through the Voting Covenant Expiration Date, Stockholder shall not,
directly or indirectly, cause or permit any Transfer of any of the Subject Securities to be
effected.



     2.2 Restriction on Transfer of Voting Rights. During the period from the date of this
Agreement through the Voting Covenant Expiration Date, Stockholder shall ensure that: (a) none of
the Subject Securities is deposited into a voting trust; and (b) no proxy is granted, and no voting
agreement or similar agreement is entered into, with respect to any of the Subject Securities.



     2.3 Permitted Transfers. Section 2.1 shall not prohibit a transfer of Company Common Stock by
Stockholder (a) to any member of his or her immediate family, or to a trust for the benefit of
Stockholder or any member of his or her immediate family, (b) upon the death of Stockholder, (c) if
Stockholder is a partnership or limited liability company, to one or more partners or members of
Stockholder or to an affiliated corporation under common control with Stockholder, or (d) the
consummation by Stockholder of the Rollover (as defined in the Rollover Agreement) pursuant to, and
in accordance with, Section 1(a) of the Rollover Agreement; provided, however, that a transfer
referred to clauses (a) through (c) of this sentence shall be permitted only if, as a precondition
to such transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance
to Parent, to be bound by the terms of this Agreement. Furthermore, nothing herein will be deemed
to restrict the ability of Stockholder to exercise any Company Options held by the Stockholder.



2.









 





SECTION 3. Voting of Shares




     3.1 Voting Covenant. Stockholder hereby agrees that, prior to the earlier to occur of the
valid termination of the Merger Agreement or the consummation of the Merger, at any meeting of the
stockholders of the Company, however called, and in any written action by consent of stockholders
of the Company, unless otherwise directed in writing by Parent, Stockholder shall cause the Subject
Securities to be voted:




     (a) in favor of the Merger, the execution and delivery by the Company of the Merger
Agreement and the adoption and approval of the Merger Agreement and the terms thereof; and




     (b) against any Acquisition Proposal; and




     (c) against any other action which would reasonably be expected to impede, interfere
with, delay, postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement.


Prior to the earlier to occur of the valid termination of the Merger Agreement or the consummation
of the Merger, Stockholder shall not enter into any agreement or understanding with any Person to
vote or give instructions in any manner inconsistent with clause “(a)”, “(b)”, or “(c)” of the
preceding sentence.




     3.2 Proxy; Further Assurances.




     (a) Contemporaneously with the execution of this Agreement: (i) Stockholder shall
deliver to Parent a proxy in the form attached to this Agreement as Exhibit A,
which shall be irrevocable to the fullest extent permitted by law (at all times prior to the
Voting Covenant Expiration Date) with respect to the shares referred to therein (the
“Proxy”); and (ii) Stockholder shall cause to be delivered to Parent an additional proxy (in
the form attached hereto as Exhibit A) executed on behalf of the record owner of
any outstanding shares of Company Common Stock that are owned beneficially (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934), but not of record, by
Stockholder.




     (b) Stockholder shall, at his, her or its own expense, perform such further acts and
execute such further proxies and other documents and instruments as may reasonably be
required to vest in Parent the power to carry out and give effect to the provisions of this
Agreement.



SECTION 4. Waiver of Appraisal Rights




     Stockholder hereby irrevocably and unconditionally waives, and agrees to cause to be waived
and 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 or any other Person may
have by virtue of any outstanding shares of Company Common Stock Owned by Stockholder.



3.









 





SECTION 5. Representations and Warranties of Stockholder




     Stockholder hereby represents and warrants to Parent as follows:



     5.1 Authorization, etc. Stockholder has the absolute and unrestricted right, power, authority
and capacity to execute and deliver this Agreement and the Proxy and to perform his, her or its
obligations hereunder and thereunder. This Agreement and the Proxy have been duly executed and
delivered by Stockholder and constitute legal, valid and binding obligations of Stockholder,
enforceable against Stockholder in accordance with their terms, subject to (a) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and (b) rules of law
governing specific performance, injunctive relief and other equitable remedies. If Stockholder is
a general or limited partnership, then Stockholder is a partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it was organized. If
Stockholder is a limited liability company, then Stockholder is a limited liability company duly
organized, validly existing and in good standing under the laws of the jurisdiction in which it was
organized.



     5.2 No Conflicts or Consents.




     (a) The execution and delivery of this Agreement and the Proxy by Stockholder do not,
and the performance of this Agreement and the Proxy by Stockholder will not: (i) conflict
with or violate any law, rule, regulation, order, decree or judgment applicable to
Stockholder or by which he, she or it or any of his, her or its properties is or may be
bound or affected; or (ii) result in or constitute (with or without notice or lapse of time)
any breach of or default under, or give to any other Person (with or without notice or lapse
of time) any right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any encumbrance or restriction
on any of the Subject Securities pursuant to, any contract to which Stockholder is a party
or by which Stockholder or any of his, her or its affiliates or properties is or may be
bound or affected, except, in the case of each of (i) and (ii) above, for such conflicts,
violations, breaches, defaults, terminations, amendments, accelerations, cancellations or
encumbrances or restrictions which would not, individually or in the aggregate, adversely
affect the ability of the Stockholder to fully perform its covenants and obligations under
this Agreement and the Proxy.




     (b) The execution and delivery of this Agreement and the Proxy by Stockholder do not,
and the performance of this Agreement and the Proxy by Stockholder will not, require any
consent or approval of any Person.



     5.3 Title to Securities. As of the date of this Agreement, Stockholder: (a) holds of record
(free and clear of any encumbrances or restrictions) the number of outstanding shares of Company
Common Stock set forth under the heading “Shares Held of Record” on the signature page hereof; (b)
holds (free and clear of any encumbrances or restrictions) the options, warrants and other rights
to acquire shares of Company Common Stock set forth under the heading “Options and Other Rights” on
the signature page hereof; (c) Owns the additional securities of the Company set forth under the
heading “Additional Securities Beneficially Owned” on the signature page hereof; and (d) does not
directly or indirectly Own any shares of capital stock or other securities of the Company, or any
option, warrant or other right to acquire (by purchase,



4.









 




conversion or otherwise) any shares of capital stock or other securities of the Company, other
than the shares and options, warrants and other rights set forth on the signature page hereof.




     5.4 Accuracy of Representations. The representations and warranties contained in this
Agreement are accurate in all respects as of the date of this Agreement, and, with the exception of
the representations and warranties given in Section 5.3 hereof which are given only as of the date
hereof, will be accurate in all respects at all times through the Voting Covenant Expiration Date
(except with respect to the exercise of Company Options between the date hereof and the Voting
Covenant Expiration Date).



SECTION 6. Additional Covenants of Stockholder




     6.1 Further Assurances. From time to time and without additional consideration, Stockholder
shall (at Stockholder’s sole expense) execute and deliver, or cause to be executed and delivered,
such additional transfers, assignments, endorsements, proxies, consents and other instruments, and
shall (at Stockholder’s sole expense) take such further actions, as Parent may request for the
purpose of carrying out and furthering the intent of this Agreement.



     6.2 Legends. If requested by Parent, immediately after the execution of this Agreement (and
from time to time upon the acquisition by Stockholder of Ownership of any shares of Company Common
Stock prior to the Voting Covenant Expiration Date), Stockholder shall cause each certificate
evidencing any outstanding shares of Company Common Stock or other securities of the Company Owned
by Stockholder to be surrendered so that the transfer agent for such securities may affix thereto a
legend in the following form:




THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF A
VOTING AGREEMENT DATED AS OF SEPTEMBER 19, 2010, AS IT MAY BE AMENDED, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.



SECTION 7. Miscellaneous




     7.1 Survival of Representations, Warranties and Agreements. All representations, warranties,
covenants and agreements made by Stockholder in this Agreement shall survive (a) the consummation
of the Merger, (b) any termination of the Merger Agreement, and (c) the Voting Covenant Expiration
Date.



     7.2 Expenses. All costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs and expenses.



     7.3 Notices. Any notice or other communication required or permitted to be delivered to
either party under this Agreement shall be in writing and shall be deemed properly delivered, given
and received when delivered (by hand, by registered mail, by courier or express delivery service or
by facsimile) to the address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or facsimile telephone number as such party shall have specified in
a written notice given to the other party):



5.









 




if to Stockholder:



at the address set forth on the signature page hereof; and



if to Parent:



Rudy Acquisition Corp.

c/o Battery Ventures

930 Winter Street, Suite 2500

Waltham, MA 02451

Attention: Morgan Jones

Facsimile: (781) 478-6601



with a copy (which shall not constitute notice) to:



Cooley LLP

500 Boylston Street

Boston, MA 02116

Attention: Alfred L. Browne III

Facsimile: 617-937-2400




     7.4 Severability. Any term or provision of this Agreement that is invalid or unenforceable in
any situation in any jurisdiction shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties
hereto agree that the court making such determination shall have the power to limit the term or
provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified. In the event such court does not exercise the power granted
to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term
or provision with a valid and enforceable term or provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid or unenforceable term.



     7.5 Entire Agreement. This Agreement, the Proxy and any other documents delivered by the
parties in connection herewith constitute the entire agreement between the parties with respect to
the subject matter hereof and thereof and supersede all prior agreements and understandings between
the parties with respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon either party unless made in writing and signed by both parties.



     7.6 Confidentiality. Stockholder shall hold any information regarding this Agreement and the
Merger in strict confidence and shall not divulge any such information to any third person until
the Parent has publicly disclosed the Merger and this Agreement. Neither the Stockholder, nor any
of its affiliates shall issue or cause the publication of any press release or other public
announcement with respect to this Agreement, the Merger, the Merger Agreement or the other
transactions contemplated thereby without the prior written consent of the Parent,



6.









 




except as may be required by law or by any listing agreement with, or the policies of, The New
York Stock Exchange Amex in which circumstance such announcing party shall make reasonable efforts
to consult with the Parent to the extent practicable.




     7.7 Assignment; Binding Effect. Except as provided herein, neither this Agreement nor any of
the interests or obligations hereunder may be assigned or delegated by Stockholder, and any
attempted or purported assignment or delegation of any of such interests or obligations shall be
void. Subject to the preceding sentence, this Agreement shall be binding upon Stockholder and his
or her heirs, estate, executors and personal representatives and his, her or its successors and
assigns, and shall inure to the benefit of Parent and its successors and assigns. Without limiting
any of the restrictions set forth in Section 2 or Section 6.1 or elsewhere in this Agreement, this
Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Nothing
in this Agreement is intended to confer on any Person (other than Parent and its successors and
assigns) any rights or remedies of any nature.



     7.8 Indemnification. Stockholder shall hold harmless and indemnify Parent and Parent’s
affiliates from and against, and shall compensate and reimburse Parent and Parent’s affiliates for,
any loss, damage, claim, liability, fee (including attorneys’ fees), demand, cost or expense
(regardless of whether or not such loss, damage, claim, liability, fee, demand, cost or expense
relates to a third-party claim) that is directly or indirectly suffered or incurred by Parent or
any of Parent’s affiliates, or to which Parent or any of Parent’s affiliates otherwise becomes
subject, and that arises directly or indirectly from, or relates directly or indirectly to, (a) any
inaccuracy in or breach of any representation or warranty contained in this Agreement, or (b) any
failure on the part of Stockholder to observe, perform or abide by, or any other breach of, any
restriction, covenant, obligation or other provision contained in this Agreement or in the Proxy.



     7.9 Specific Performance. The parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement or the Proxy were not performed in accordance with
their specific terms or were otherwise breached. Stockholder agrees that, in the event of any
breach or threatened breach by Stockholder of any covenant or obligation contained in this
Agreement or in the Proxy, Parent shall be entitled (in addition to any other remedy that may be
available to it, including monetary damages) to seek and obtain (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or obligation, and (b) an
injunction restraining such breach or threatened breach. Stockholder further agrees that neither
Parent nor any other Person shall be required to obtain, furnish or post any bond or similar
instrument in connection with or as a condition to obtaining any remedy referred to in this Section
7.9, and Stockholder irrevocably waives any right he, she or it may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.



     7.10 Non-Exclusivity. The rights and remedies of Parent under this Agreement are not
exclusive of or limited by any other rights or remedies which it may have, whether at law, in
equity, by contract or otherwise, all of which shall be cumulative (and not alternative). Without
limiting the generality of the foregoing, the rights and remedies of Parent under this Agreement,
and the obligations and liabilities of Stockholder under this Agreement, are in addition to their
respective rights, remedies, obligations and liabilities under common law requirements and under
all applicable statutes, rules and regulations.



7.









 





     7.11 Governing Law; Venue.




     (a) This Agreement and the Proxy shall be construed in accordance with, and governed in
all respects by, the laws of the State of Delaware (without giving effect to principles of
conflicts of laws).




     (b) Any legal action or other legal proceeding relating to this Agreement or the Proxy
or the enforcement of any provision of this Agreement or the Proxy may be brought or
otherwise commenced in any state or federal court located in the State of Delaware.
Stockholder:




     (i) expressly and irrevocably consents and submits to the jurisdiction of each
state and federal court located in the State of Delaware in connection with any such
legal proceeding;




     (ii) agrees that service of any process, summons, notice or document by U.S.
mail addressed to him, her or it at the address set forth on the signature page
hereof shall constitute effective service of such process, summons, notice or
document for purposes of any such legal proceeding;




     (iii) agrees that each state and federal court located in the State of Delaware
shall be deemed to be a convenient forum; and




     (iv) agrees not to assert (by way of motion, as a defense or otherwise), in any
such legal proceeding commenced in any state or federal court located in the State
of Delaware, any claim that Stockholder is not subject personally to the
jurisdiction of such court, that such legal proceeding has been brought in an
inconvenient forum, that the venue of such proceeding is improper or that this
Agreement or the subject matter of this Agreement may not be enforced in or by such
court.




Nothing contained in this Section 7.11 shall be deemed to limit or otherwise affect the
right of Parent to commence any legal proceeding or otherwise proceed against Stockholder in
any other forum or jurisdiction.




     (c) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY
LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION
OF THIS AGREEMENT OR THE PROXY.



     7.12 Counterparts. This Agreement may be executed in separate counterparts, each of which
when so executed and delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.



     7.13 Captions. The captions contained in this Agreement are for convenience of reference
only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection
with the construction or interpretation of this Agreement.



8.









 





     7.14 Attorneys’ Fees. If any legal action or other legal proceeding relating to this
Agreement or the enforcement of any provision of this Agreement is brought against Stockholder, the
prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements
(in addition to any other relief to which the prevailing party may be entitled).



     7.15 Waiver. No failure on the part of Parent to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of Parent in exercising any power, right,
privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege
or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
Parent shall not be deemed to have waived any claim available to Parent arising out of this
Agreement, or any power, right, privilege or remedy of Parent under this Agreement, unless the
waiver of such claim, power, right, privilege or remedy is expressly set forth in a written
instrument duly executed and delivered on behalf of Parent; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is given.



     7.16 Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary: (a)
Stockholder makes no agreement or understanding herein in any capacity other than in Stockholder’s
capacity as a record holder and beneficial owner of the Subject Securities, and not in such
Stockholder’s capacity as a director, officer or employee of the Company or any of the Company’s
Subsidiaries or in such Stockholder’s capacity as a trustee or fiduciary of any Company Benefit
Plan, and (b) nothing herein will be construed to limit or affect any action or inaction by
Stockholder or any representative of Stockholder, as applicable, serving on the Board of Directors
or on the board of directors of any Subsidiary of the Company or as an officer or fiduciary of the
Company or any Subsidiary of the Company, acting in such person’s capacity as a director, officer,
employee or fiduciary of the Company or any Subsidiary of the Company.



     7.17 Construction.




     (a) For purposes of this Agreement, whenever the context requires: the singular number
shall include the plural, and vice versa; the masculine gender shall include the feminine
and neuter genders; the feminine gender shall include the masculine and neuter genders; and
the neuter gender shall include masculine and feminine genders.




     (b) The parties agree that any rule of construction to the effect that ambiguities are
to be resolved against the drafting party shall not be applied in the construction or
interpretation of this Agreement.




     (c) As used in this Agreement, the words “include” and “including,” and variations
thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be
followed by the words “without limitation.”




     (d) Except as otherwise indicated, all references in this Agreement to “Sections” and
“Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this
Agreement.



9.









 





     In Witness Whereof, Parent and Stockholder have caused this Agreement to be executed
as of the date first written above.



	 	 	 	 	 
	 	Rudy Acquisition Corp.

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 



10.









 






	 	 	 	 	 




     In Witness Whereof, Parent and Stockholder have caused this Agreement to be executed
as of the date first written above.



	 	 	 	 	 	 	 

	 	 	Stockholder	 	 
	 
	 	 	 	 	 	 
	 	 	[                                                        ]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:	 	 	 	 
	 

	 	 	 	 

	 	 






11.









 







	 	 	 	 	 
	 	 	 	 	Additional
	 	 	 	 	Securities
	Shares Held Of Record	 	Options And Other Rights	 	Beneficially Owned
	[                    ]                                   

	 	[                    ]	 	[                    ]








			
		 	




12.









 










Exhibit A

Form Of Irrevocable Proxy




     The undersigned stockholder (the “Stockholder”) of Rae Systems Inc., a Delaware
corporation (the “Company”), hereby irrevocably (to the fullest extent permitted by law) appoints
and constitutes Battery Ventures VIII, L.P., Battery Ventures VIII Side Fund, L.P. and
Rudy Acquisition Corp., a Delaware corporation (“Parent”), and each of them, the attorneys
and proxies of the Stockholder with full power of substitution and resubstitution, to the full
extent of the Stockholder’s rights with respect to (i) the outstanding shares of capital stock of
the Company owned of record by the Stockholder as of the date of this proxy, which shares are
specified on the final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the Stockholder may acquire on or after the date hereof. (The shares of the
capital stock of the Company referred to in clauses “(i)” and “(ii)” of the immediately preceding
sentence are collectively referred to as the “Shares.”) Upon the execution hereof, all prior
proxies given by the Stockholder with respect to any of the Shares are hereby revoked, and the
Stockholder agrees that no subsequent proxies will be given with respect to any of the Shares.



     This proxy is irrevocable, is coupled with an interest and is granted in connection with the
Voting Agreement, dated as of the date hereof, between Parent and the Stockholder (the “Voting
Agreement”), and is granted in consideration of Parent entering into the Agreement and Plan of
Merger, dated as of the date hereof, among Parent, Rudy Merger Sub Corp., a Delaware corporation
and the wholly owned subsidiary of Parent (“Merger Sub”) and the Company (the “Merger Agreement”).
This proxy will terminate on the Voting Covenant Expiration Date (as defined in the Voting
Agreement).



     The attorneys and proxies named above will be empowered, and may exercise this proxy, to vote
the Shares at any time until the earlier to occur of the valid termination of the Merger Agreement
or the effective time of the merger contemplated thereby (the “Merger”) at any meeting of the
stockholders of the Company, however called, and in connection with any written action by consent
of stockholders of the Company:




     (i) in favor of the Merger, the execution and delivery by the Company of the Merger
Agreement and the adoption and approval of the Merger Agreement and the terms thereof; and




     (ii) against any Acquisition Proposal; and




     (iii) against any other action which would reasonably be expected to impede, interfere
with, delay, postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement.



     The Stockholder may vote the Shares on all other matters not referred to in this proxy, and
the attorneys and proxies named above may not exercise this proxy with respect to such other
matters.



     This proxy shall be binding upon the heirs, estate, executors, personal representatives,
successors and assigns of the Stockholder (including any transferee of any of the Shares).



     Any term or provision of this proxy that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the remaining terms and



A-1









 




provisions hereof or the validity or enforceability of the offending term or provision in any
other situation or in any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or unenforceable, the
Stockholder agrees that the court making such determination shall have the power to limit the term
or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term
or provision with a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and this proxy shall be
enforceable as so modified. In the event such court does not exercise the power granted to it in
the prior sentence, the Stockholder agrees to replace such invalid or unenforceable term or
provision with a valid and enforceable term or provision that will achieve, to the extent possible,
the economic, business and other purposes of such invalid or unenforceable term.



Dated: ____________, 2010




	 	 	 

	 

	 	 
	 

	 	Name
	 
	 	 
	 

	 	Number of shares of common stock of the
Company owned of record as of the date of this
proxy:
	 
	 	 
	 

	 	 






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