exv10w1






Exhibit 10.1




EXECUTION VERSION




VOTING AGREEMENT




by and among



Catalyst Holdings, Inc.



and



the Stockholders named herein



dated as of November 24, 2010



 









 





VOTING AGREEMENT




     This Voting Agreement (this “Agreement”) is entered into as of November 24, 2010, by
and among Catalyst Holdings, Inc., a Delaware corporation (“Parent”) and the undersigned
stockholders (each a “Stockholder” and collectively, the “Stockholders”) of CPI
International, Inc. (the “Company”). Capitalized terms used but not defined herein shall
have the meanings set forth in the Agreement and Plan of Merger (the “Merger Agreement”),
dated as of November 24, 2010, by and among Parent, Catalyst Acquisition, Inc., a Delaware
corporation and wholly owned subsidiary of Parent (“Merger Sub”), and the Company.



WITNESSETH:




     WHEREAS, as of the date hereof, the Stockholders “beneficially own” (as such term is defined
in Rule 13d-3 promulgated under the Exchange Act) (including entitlement to dispose of (or to
direct the disposition of) and have the right to vote (or to direct the voting of)) 8,868,738
shares of common stock, par value $0.01 per share (the “Company Stock”), of the Company
(such shares of Company Stock, together with any other shares of Company Stock the voting power
over which is directly or indirectly acquired by any Stockholder until the termination of this
Agreement pursuant to the terms hereof, are collectively referred to herein as the “Stockholder
Owned Shares”);



     WHEREAS, simultaneously herewith, Parent, Merger Sub and the Company are entering into the
Merger Agreement, pursuant to which Merger Sub will merge with and into the Company, with the
Company surviving as a wholly owned subsidiary of Parent (the “Merger”); and



     WHEREAS, as a condition to the willingness of Parent to enter into the Merger Agreement, and
as an inducement and in consideration therefor, the Stockholders are executing 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



     Section 1.1 Other Definitions. For purposes of this Agreement:



          (a) “Affiliate” means, with respect to any specified Person, any Person that directly,
or indirectly through one or more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified.




          (b) “Company Subject Shares” means shares of Company Stock which the Stockholders
“beneficially own” and have the right to vote (or to direct the voting of), together with any other
shares of Company Stock the voting power over which is directly






 









 







or indirectly acquired by any Stockholder until the termination of this Agreement pursuant to
the terms hereof, equal to forty-nine and nine tenths percent (49.9%) of the total number of
outstanding shares of Company Stock.




          (c) “Person” means an individual, corporation, limited liability company, general or
limited partnership, association, trust, unincorporated organization, other entity or group.




          (d) “Representative” means, with respect to any particular Person, any director,
officer, employee, accountant, consultant, legal counsel, investment banker, advisor, agent or
other representative of such Person.




ARTICLE II




VOTING AGREEMENT AND GRANT OF IRREVOCABLE PROXY



     Section 2.1 Agreement to Vote the Company Subject Shares.



          (a) Subject to Section 2.1(b) of this Agreement, from and after the date hereof, at any
meeting of the Company’s stockholders (or any adjournment or postponement thereof), however called:





          (i) the Stockholders shall vote (or cause to be voted) in person or by proxy all of
the Company Subject Shares:




               (1) in favor of the adoption of the Merger Agreement and any of the other
transactions contemplated by the Merger Agreement, including the Merger (and in
favor of any actions and proposals required, or submitted for approval at any
meeting of the Company stockholders, in furtherance thereof);




               (2) against any action, proposal, transaction or agreement that is intended,
or would reasonably be expected, directly or indirectly, to result in a breach of
any covenant, representation, warranty or other obligation or agreement of the
Company set forth in the Merger Agreement or of the Stockholders set forth in this
Agreement; and




               (3) against the following actions or proposals (other than the transactions
contemplated by the Merger Agreement): (A) any Acquisition Proposal; (B) any
change in the individuals who constitute the board of directors of the Company;
(C) any material change in the present capitalization of the Company or any
amendment of the Company’s certificate of incorporation or bylaws; (D) any other
material change in the Company’s corporate structure or business; or (E) any other
action or proposal involving the Company or any of its subsidiaries that is
intended, or would reasonably be expected, to prevent, impede, interfere with,
delay, postpone or adversely affect the transactions contemplated by the Merger
Agreement; and



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          (ii) the Stockholders, in their sole discretion, shall vote (or cause to be voted), in
person or by proxy, all of Stockholder Owned Shares in excess of the Company Subject Shares
in any manner they each may choose.



          (b) Notwithstanding Section 2.1(a) of this Agreement, in the event of a Board Recommendation
Change made pursuant to Section 7.2(c)(ii) of the Merger Agreement and in compliance with the
Merger Agreement (including Section 7.2(d) thereof), the obligation of the Stockholders to vote the
Company Subject Shares as to which the Stockholders control the right to vote in the manner set
forth in Section 2.1(a) of this Agreement shall be modified (without any further notice or any
action by the Company or a Stockholder) such that:





          (i) the Stockholders shall vote (or cause to be voted) such number of Company Subject
Shares equal to twenty-five percent (25.0%) of the total number of outstanding shares of
Company Stock (the “Lock-Up Subject Shares”) as provided in Section 2.1(a); and




          (ii) the Stockholders, in their sole discretion, shall be entitled to vote (or cause
to be voted), in person or by proxy, all of the remaining Stockholder Owned Shares in
excess of the Lock-Up Shares in any manner they each may choose.



          (c) In connection with any vote contemplated by this Section 2.1 of this Agreement, the
Stockholders shall cause all of the Stockholder Owned Shares to be duly counted for purposes of
determining that a quorum is present and shall comply with all necessary procedures in connection
with recording the results of such vote. Each Stockholder agrees not to enter into any agreement
or commitment with any Person the effect of which would violate or be inconsistent with the
provisions and agreements set forth in this Article II.




     Section 2.2 Notice of Board Recommendation Change. Any Board Recommendation Change
made pursuant to Section 7.2(c)(ii) of the Merger Agreement and in compliance with the Merger
Agreement (including Section 7.2(d) thereof) shall be deemed to be notice from each Stockholder
that the number of Company Subject Shares covered by the agreement to vote in the manner set forth
in Section 2.1(a) of this Agreement, in each case, shall be limited to twenty-five percent (25.0%)
of the total number of outstanding shares of Common Stock as provided in Section 2.1(b). Parent
and the Stockholders shall take such further action or execute such other instruments as may be
necessary under applicable Law to effectuate the intent of such modification of such voting
agreement.



     Section 2.3 Irrevocable Proxy.



          (a) In furtherance of each Stockholder’s agreement in Section 2.1 of this Agreement, but
subject to Sections 2.3(b) and (c), such Stockholder hereby appoints Parent and Parent’s designees,
and each of them individually, as such Stockholder’s proxy and attorney-in-fact (with full power of
substitution), for and in the name, place






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and stead of such Stockholder, to vote all Company Subject Shares owned by such Stockholder
(at any meeting of the Company’s stockholders (or any adjournment or postponement thereof), however
called), or to execute one or more written consents in respect of such Company Subject Shares:





          (i) in favor of the adoption of the Merger Agreement and any of the other transactions
contemplated by the Merger Agreement, including the Merger (and in favor of any actions and
proposals required, or submitted for approval at any meeting of the Company stockholders,
in furtherance thereof);




          (ii) against any action, proposal, transaction or agreement that is intended, or would
reasonably be expected, directly or indirectly, to result in a breach of any covenant,
representation, warranty or other obligation or agreement of the Company set forth in the
Merger Agreement or of the Stockholders set forth in this Agreement; and




          (iii) against the following actions or proposals (other than the transactions
contemplated by the Merger Agreement): (A) any Acquisition Proposal; (B) any change in the
individuals who constitute the board of directors of the Company; (C) any material change
in the present capitalization of the Company or any amendment of the Company’s certificate
of incorporation or bylaws; (D) any other material change in the Company’s corporate
structure or business; or (E) any other action or proposal involving the Company or any of
its subsidiaries that is intended, or would reasonably be expected, to prevent, impede,
interfere with, delay, postpone or adversely affect the transactions contemplated by the
Merger Agreement.



          (b) Notwithstanding Section 2.3(a) of this Agreement, in the event of a Board Recommendation
Change made pursuant to Section 7.2(c)(ii) of the Merger Agreement and in compliance with the
Merger Agreement (including Section 7.2(d) thereof), the right and proxy of Parent and its
designees to vote or to execute one or more written consents in respect of the Company Subject
Shares owned by the Stockholders in the manner set forth in Section 2.3(a) of this Agreement, and
appointment as attorney-in-fact (collectively, the “Proxy”), shall be modified (without any further
notice or any action by the Company or a Stockholder) such that:





          (i) the Proxy shall be limited to the Lock-Up Subject Shares as provided in Section
2.3(a); and




          (ii) the Stockholders, in their sole discretion, shall be entitled to vote (or cause
to be voted), in person or by proxy, all of the remaining Stockholder Owned Shares in
excess of the Lock-Up Subject Shares any manner they each may choose;




provided, that to the extent that Parent or its designees do not vote or execute one
or more consents in respect of such Lock Up Subject Shares, the Stockholders



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shall be entitled to vote such Lock Up Subject Shares or to execute one or more
consents in respect thereof, as provided in Section 2.3(a);



          (c) Such proxy shall (A) be valid and irrevocable until the termination of this Agreement in
accordance with (or as otherwise provided in) Article VI hereof and (B) automatically terminate
upon the termination of this Agreement in accordance with (or as otherwise provided in) Article VI
hereof. Each Stockholder represents that any and all other proxies heretofore given in respect of
the Company Subject Shares owned by such Stockholder are revocable, and that such other proxies
have been revoked. Each Stockholder affirms that the foregoing proxy is: (x) given (I) in
connection with the execution of the Merger Agreement and (II) to secure the performance of such
Stockholder’s duties under this Agreement, (y) coupled with an interest and may not be revoked
except as otherwise provided in this Agreement and (z) intended to be irrevocable prior to
termination of this Agreement or as otherwise provided in Article VI hereof. All authority herein
conferred shall survive the death or incapacity of each Stockholder and shall be binding upon the
heirs, estate, administrators, personal representatives, successors and assigns of such
Stockholder.




ARTICLE III




STANDSTILL AND NO-SOLICITATION IN RESPECT OF COMPANY SHARES



     Section 3.1 Standstill in Respect of Stockholder Owned Shares. Each of the
Stockholders hereby agrees that, from and after the date hereof until the earlier of the Effective
Time of the Merger and the termination of the Merger Agreement, such Stockholder shall not,
directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated
by the terms of this Agreement or the Merger Agreement:



          (a) sell, transfer, tender, pledge, encumber, assign 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, any or all of the Stockholder Owned Shares;




          (b) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or
otherwise, any assets of the Company or any subsidiary or division thereof;




          (c) make, or in any way participate in, directly or indirectly, any “solicitation” of
“proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote,
or seek to advise or influence any Person with respect to the voting of, any voting securities of
the Company (including by making publicly known such Stockholder’s position on any matter presented
to stockholders), other than to recommend that stockholders of the Company vote in favor of the
Merger and the Merger Agreement;




          (d) submit to the Company any stockholder proposal under Rule 14a-8 under the Exchange Act;







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          (e) make any public announcement with respect to, or submit a proposal for, or offer of (with
or without conditions) any extraordinary transaction involving the Company or its securities or
assets;




          (f) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under
the Exchange Act) in connection with any of the foregoing;




          (g) seek, in any way which may be reasonably likely to require, involve or trigger public
disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1
amended, modified or waived; or




          (h) otherwise take, directly or indirectly, any actions with the purpose of avoiding or
circumventing any provision of this Section 3.1 or which could reasonably be expected to have the
effect of preventing, impeding, interfering with or adversely affecting the consummation of the
transactions contemplated by the Merger Agreement or its ability to perform the Company’s
obligations under this Agreement.




     Section 3.2 Dividends, Distributions, Etc. in Respect of Stockholder Owned Shares. In
the event of a stock dividend or stock distribution, or any change in the Company Stock by reason
of any stock dividend or stock distribution, split-up, recapitalization, combination, exchange of
shares or the like, the term “Stockholder Owned Shares” shall be deemed to refer to and include the
Stockholder Owned Shares as well as all such stock dividends and stock distributions and any
securities into which or for which any or all of the Stockholder Owned Shares may be changed or
exchanged or which are received in such transaction.



     Section 3.3 Acquisition Proposals in Respect of Stockholder Owned Shares. (a) Each
Stockholder shall, and each Stockholder shall cause each of its Representatives to, immediately
cease and cause to be terminated any existing activities, discussions or negotiations with any
Third Party conducted prior to the date hereof with respect to any Acquisition Proposal. Each of
the Stockholders shall not, nor in the case of clauses (i) and (ii) shall it permit any of its
Affiliates to, nor shall it authorize or knowingly permit any Representative of, the Stockholders
or in the case of clauses (i) and (ii) any of their Affiliates to, (i) solicit or initiate, or take
any action to knowingly encourage, or knowingly facilitate or knowingly induce, directly or
indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal from any
Third Party; (ii) participate in any discussions or negotiations regarding any Acquisition
Proposal, or furnish to any Person any non-public information or data with respect to or access to
the properties of the Company in connection with an Acquisition Proposal; or (iii) enter into any
agreement, arrangement or understanding with respect to any Acquisition Proposal or enter into any
agreement requiring it to abandon, terminate or fail to consummate the Merger and the transactions
contemplated by this Agreement. Notwithstanding the foregoing sentence or any other provision of
this Agreement, if, after the date hereof and prior to the receipt of stockholder approval of the
Merger Agreement, the Stockholders receive or the Company receives a bona fide Acquisition Proposal
by a Third Party and such Acquisition Proposal did not result, directly or indirectly, from a
breach of this Section 3.3 or Section 7.2 of the Merger Agreement, which, in accordance with the



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applicable provisions of Section 7.2 of the Merger Agreement, the Company Board or Committee
determines in good faith (after consulting outside legal and financial advisors) that such
Acquisition Proposal constitutes, or would reasonably be expected to lead to a Superior Acquisition
Proposal, and the Company or the Stockholders receives from such Third Party an executed
confidentiality agreement having provisions that are no less restrictive than those of the
Confidentiality Agreement with respect to Parent (except with respect to any “standstill” provision
or other provision having similar effect in the Confidentiality Agreement; provided that the
Confidentiality Agreement has been deemed amended on or prior to the date of such confidentiality
agreement with such Third Party by removing paragraph 9 of the Confidentiality Agreement), then the
Stockholders may, in response to such Acquisition Proposal, subject to compliance with this Section
3.3 (and following such determination of the Company Board or Committee described above) and after
giving notice to Parent (x) furnish information or data or access with respect to the Company and
its Subsidiaries to, and (y) participate in discussions and negotiations directly or through their
Representatives with, such Third Party; provided that the Stockholders shall provide or make
available, to the extent not previously provided or made available to Parent or its
representatives, to Parent any material non-public information with respect to the Stockholders
that is provided to the Third Party making such Acquisition Proposal prior to or substantially
concurrently with the time it is provided or made available to such Third Party; provided further,
however, that nothing in this Section 3.3 shall require the Stockholders to provide or make
available to Parent information that it is not legally permitted to disclose or the disclosure of
which would contravene any applicable Law or binding order; provided further that if the
Stockholders had made such information available to such Third Party the Stockholders shall use all
reasonable best efforts to make such information available to Parent.




          (b) Each Stockholder shall advise Parent orally and in writing, promptly (but in no event
later than 24 hours) after receipt thereof, of (i) any proposal for an Acquisition Proposal
received by any Representative of any Stockholder, and (ii) the material terms of such Acquisition
Proposal (including the identity of the entity proposing the Acquisition Proposal), and provide a
copy of such proposal for an Acquisition Proposal to Parent if such proposal is in writing. Each
Stockholder shall keep Parent reasonably informed on a reasonably current basis of the status of,
and any material changes to, the terms of any such Acquisition Proposal and the status of
discussions and negotiations with respect thereto of which it is aware. Performance by the Company
of its obligations under Section 7.2 of the Merger Agreement shall be deemed performance by the
Stockholders of the provisions of this Section 3.3(b) with respect to the same matter so long as
any such activities by the Stockholders are consistent in all material respects with the
discussions or activity underlying the required disclosure by the Company to Parent.




          (c) Each Stockholder agrees that it will promptly inform its Representatives and its
Affiliates’ Representatives of the obligations undertaken in this Article III.







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          (d) Notwithstanding any provision in this Agreement to the contrary, the Stockholders enter
into the agreements and understandings herein solely in their capacity as the beneficial owners of
the Stockholder Owned Shares, and nothing herein shall limit or affect any actions taken by any
Representative of a Stockholder in such Representative’s capacity as a director of the Company or
cause a Stockholder to become obligated to take or effect any action hereunder.




     Section 3.4 Certain Provisions.



          (a) Notwithstanding anything to the contrary in this Article III, (1) no provision of this
Article III shall prohibit, limit or otherwise restrict a Representative of a Stockholder in his
capacity as a director or officer of the Company, and (2) from and after a Board Recommendation
Change made in compliance with the Merger Agreement in connection with a Superior Acquisition
Proposal, Section 2.1(a) shall apply only with respect to the Lock-Up Subject Shares and, for the
avoidance of doubt, the Stockholders, in their sole discretion, shall be able to enter into any
voting agreement, proxy, consent or power of attorney with respect to the remaining Stockholder
Owned Shares. Notwithstanding anything to the contrary in this Agreement, the restrictions in this
Article III shall terminate and be of no further force and effect upon the termination of this
Agreement or the consummation of the Merger.




          (b) For the purposes of this Agreement, the Company shall be deemed not to be an Affiliate or
Subsidiary of any one or more of the Stockholders, and any officer, director, employee, agent or
advisor of the Company (in each case, in their capacities as such) shall be deemed not to be a
Representative of a Stockholder.




ARTICLE IV




REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS



     The Stockholders hereby represent and warrant, jointly and severally, to Parent as follows:



     Section 4.1 Corporate Organization. Each Stockholder is duly organized, validly
existing and in good standing under the Laws of its jurisdiction of formation.



     Section 4.2 Authority Relative to This Agreement. Each Stockholder has the requisite
corporate power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement and the consummation by each Stockholder of the
transactions contemplated hereby have been duly and validly authorized by the board of directors,
general partner or similar governing body of each Stockholder, and no other corporate proceedings
on the part of each Stockholder are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly executed and delivered
by each Stockholder and, assuming that this Agreement constitutes the valid and binding agreement
of Parent, constitutes the valid and binding agreement of each Stockholder, enforceable against
each Stockholder in accordance with its terms, except that such



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enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or
other similar Laws now or hereafter in effect relating to creditors’ rights generally, and (ii)
general principles of equity (regardless of whether enforceability is considered in a proceeding in
equity or at law).




     Section 4.3 Ownership of Shares. The Stockholders beneficially own 8,868,738 shares
of Company Stock as of the date hereof. The Stockholders have the sole power to vote (or cause to
be voted) such shares of Company Stock and have good and valid title to the Company Stock, free and
clear of any and all pledges, mortgages, liens, charges, proxies, voting agreements, encumbrances,
adverse claims, options, security interests and demands of any nature or kind whatsoever, other
than those created by this Agreement.



     Section 4.4 No Conflicts. Neither the execution and delivery of this Agreement by the
Stockholders, nor the consummation by the Stockholders of the transactions contemplated hereby,
will (i) conflict with or result in any breach of the organizational documents of any Stockholder;
(ii) require any Permit from any or Governmental Entity or any authorization, consent or approval
from any other Person; (iii) result in, or give rise to, a violation or breach of or a default
under any of the terms of any material contract, understanding, agreement or other instrument or
obligation to which any Stockholder is a party or by which any Stockholder or any of the
Stockholder Owned Shares or the Stockholder’s assets may be bound, or (iv) violate any applicable
Law, except, with respect to any of the foregoing clauses (i) through (iv), as does not and could
not reasonably be expected to impair any Stockholder’s ability to perform its obligations under
this Agreement.



     Section 4.5 Reliance by Parent. Each Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon the Stockholder’s execution and
delivery of this Agreement and the representations and warranties of Stockholder contained herein.
The Stockholder understands and acknowledges that the Merger Agreement governs the terms of the
Merger and the other transactions contemplated thereby.



ARTICLE V




REPRESENTATIONS AND WARRANTIES OF PARENT



     Parent hereby represents and warrants to the Stockholders as follows:



     Section 5.1 Corporate Organization. Parent is a corporation duly organized, validly
existing and in good standing under the Laws of its jurisdiction of incorporation.



     Section 5.2 Authority Relative to This Agreement. Parent has the requisite corporate
power and authority to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement and the consummation by Parent of the transactions
contemplated hereby have been duly and validly authorized by the board of directors of Parent, and
no other corporate proceedings on the part of Parent are



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necessary to authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Parent and, assuming that this
Agreement constitutes the valid and binding agreement of the Stockholders, constitutes the valid
and binding agreement of Parent, enforceable against Parent in accordance with its terms, except
that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium
or other similar Laws now or hereafter in effect relating to creditors’ rights generally, and (ii)
general principles of equity (regardless of whether enforceability is considered in a proceeding in
equity or at law).




     Section 5.3 No Conflicts. Neither the execution and delivery of this Agreement by
Parent, nor the consummation by Parent of the transactions contemplated hereby, will (i) conflict
with or result in any breach of the Restated Certificate of Incorporation or the Amended and
Restated By-Laws of Parent; (ii) require any Permit from any Governmental Entity; (iii) result in,
or give rise to, a violation or breach of or a default under any of the terms of any material
contract, understanding, agreement or other instrument or obligation to which Parent is a party, or
(iv) violate any applicable Law, except, with respect to any of the foregoing clauses (i) through
(iv), as does not and could not reasonably be expected to impair Parent’s ability to perform its
obligations under this Agreement.



ARTICLE VI




TERMINATION



     Section 6.1 Termination.



          (a) Subject to Section 6.1(b), this Agreement shall terminate and none of Parent or any
Stockholder shall have any rights or obligations hereunder upon the earliest to occur of: (i) the
termination of this Agreement by mutual written consent of Parent and the Stockholders, (ii) the
termination of the Merger Agreement in accordance with its terms, and (iii) the Effective Time of
the Merger.




          (b) Notwithstanding Section 6.1(a), (i) termination of this Agreement shall not prevent any
party hereunder from seeking any remedies (at law or in equity) against any other party hereto for
such party’s breach of any of the terms of this Agreement, and (ii) Section 7.2 through Section
7.15, inclusive, of this Agreement shall survive the termination of this Agreement.




ARTICLE VII




MISCELLANEOUS



     Section 7.1 Publication. The Stockholders hereby permit Parent to publish and
disclose in the Proxy Statement (including all documents and schedules filed with the SEC), and any
other filing with a governmental authority or self regulatory authority that may be reasonably
necessary, their identity and ownership of shares of Company Stock



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and the nature of their commitments, arrangements and understandings pursuant to this
Agreement; provided, however, that such publication and disclosure shall be subject to prior
approval by the Stockholders, such approval not to be unreasonably withheld or delayed. In
furtherance of the foregoing, to the extent not provided by the Company, the Stockholders shall
promptly provide such other information with respect to the Stockholders’ ownership of Company
Stock reasonably requested by Parent that Parent reasonably determines is required for inclusion in
any such filings, documents or schedules.




     Section 7.2 Appraisal Rights. To the extent permitted by applicable Law, each
Stockholder hereby waives and agrees not to exercise any rights of appraisal or rights to dissent
from the Merger that it may have under applicable Law.



     Section 7.3 Further Actions. Each of the parties hereto agrees that it will use its
reasonable best efforts to do all things necessary to effectuate this Agreement.



     Section 7.4 Waivers. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party hereto, nor any failure or delay on the part of any
party hereto in the exercise of any right hereunder, shall be deemed to constitute a waiver by the
party taking such action of compliance of any representations, warranties, covenants or agreements
contained in this Agreement. The waiver by any party hereto of a breach of any provision hereunder
shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any
other provision hereunder.



     Section 7.5 Counterparts. For the convenience of the parties hereto, this Agreement
may be executed in any number of counterparts (including by facsimile or electronic transmission),
each such counterpart being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.



     Section 7.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the principles of conflict of
laws thereof.



     Section 7.7 Jurisdiction; Enforcement; Waiver of Jury Trial.



          (a) The parties hereto agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their specific terms or were
otherwise breached and that monetary damages, even if available, would not be an adequate remedy
therefor. It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement, without proof of actual damages, in the Court of Chancery of the
State of Delaware in and for New Castle County (the “Chancery Court”) or, if the Chancery
Court lacks subject matter jurisdiction, in any federal court of the United States located in the
State of Delaware, this being in addition to any other remedy to which they are entitled at law or
in equity. Each party hereto agrees not to oppose the granting of such relief in the event a court
determines that such a breach has occurred, and to waive any requirement for the






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securing or posting of any bond in connection with any such remedies. In addition, each of
the parties hereto (i) consents to submit itself to the personal jurisdiction of the Chancery Court
or, if the Chancery Court lacks subject matter jurisdiction, any federal court located in the State
of Delaware in the event any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court and (iii) agrees
that it will not bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than the Chancery Court or, if the Chancery Court
lacks subject matter jurisdiction, a federal court sitting in the State of Delaware.
Notwithstanding the foregoing, each of the parties hereto agrees that it will not bring or support
any action, cause of action, claim, cross-claim or third-party claim of any kind or description,
whether in law or in equity, whether in contract or in tort or otherwise, against the Financing
Sources in any way relating to the Merger Agreement or any of the transactions contemplated by the
Merger Agreement, including but not limited to any dispute arising out of or relating in any way to
the Debt Commitment Letter (as defined in the Merger Agreement) or the performance thereof, in any
forum other than the Supreme Court of the State of New York, County of New York, or, if under
applicable law exclusive jurisdiction is vested in the federal courts, the United States District
Court for the Southern District of New York (and, in either case, appellate courts thereof).




          (b) EACH OF PARENT AND THE STOCKHOLDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE DEBT FINANCING.




     Section 7.8 Notices. All notices, requests, instructions or other documents to be
given hereunder by any party to the other parties shall be in writing and shall be deemed duly
given (i) upon delivery, when delivered personally, (ii) one (1) Business Day after being sent by
overnight courier or when sent by facsimile transmission (with a confirming copy sent by overnight
courier), and (iii) three (3) Business Days after being sent by registered or certified mail,
postage prepaid, as follows:


If to Parent to:



Catalyst Holdings, Inc.

c/o Veritas Capital Fund Management, L.L.C.

590 Madison Avenue

New York, NY 10022

Attn: Robert B. McKeon

Facsimile No.: (212) 688-9411



with a copy to:



Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square




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New York, NY 10036-6522

Attn: Eileen T. Nugent

Kenneth M. Wolff

Telephone: (212) 735-3000

Facsimile No.: (212) 735-2000



If to the Stockholders, to:

Cypress Advisors Inc.

65 East 55th Street

New York, NY 10022

Attention: Jeffrey Hughes

Telephone: (212) 705-0150

Facsimile: (212) 705-0199]



with a copy to:



Golenbock Eiseman Assor Bell & Peskoe LLP

437 Madison Avenue

New York, NY 10022

Attention: Lawrence M. Bell, Esq.

Telephone: (212) 907-7300

Facsimile: (212) 754-0330




     Section 7.9 Entire Agreement; Assignment. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and understandings, both written and
oral, among the parties hereto, or any of them, with respect to the subject matter hereof. This
Agreement may not be assigned by any of the parties hereto by operation of law or otherwise, except
that Parent may assign its rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of Parent or to an entity under common control with Parent, in each case, to which it
also assigns its obligations under the Merger Agreement after providing written notice to the
Stockholders.



     Section 7.10 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. Subject to
Section 2.3, nothing in this Agreement, express or implied, is intended to or shall confer upon any
other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement; the provisions of Section 4.5 and 7.7 shall inure to the benefit of and be enforceable
by each Financing Source and its successors and assigns. This Agreement is intended to create a
contractual relationship between each Stockholder, on the one hand, and Parent, on the other hand,
and is not intended to create, and does not create, any agency, partnership, joint venture or any
like relationship among the parties hereto. Without limiting the generality of the foregoing, none
of the Stockholders or Parent, by entering into this Agreement, intends to form a “group” for
purposes of Rule 13d-5(b)(1) of the Exchange Act or any other similar provision of applicable Law
with Parent or any other shareholder of the Company.



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     Section 7.11 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of 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
a manner adverse to any party. Upon such 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 the transactions contemplated hereby are fulfilled to the
fullest extent possible.



     Section 7.12 Certain Interpretations. For purposes of this Agreement:



          (a) Unless otherwise specified, all references in this Agreement to Articles and Sections
shall be deemed to refer to Articles and Sections of this Agreement.




          (b) The Article and Section captions 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.




          (c) Unless the context otherwise requires, words describing the singular number shall include
the plural and vice versa, and words denoting any gender shall include all genders.




          (d) The words “include,” includes” and “including,” when used herein shall be deemed in each
case to be followed by the words “without limitation.”




          (e) The parties hereto agree that they have been represented by legal counsel during the
negotiation and execution of this Agreement and, therefore, waive the application of any Law,
regulation, holding or rule of construction providing that ambiguities in an agreement or other
document shall be construed against the party drafting such agreement or document.




     Section 7.13 Fees and Expenses. Except as otherwise provided herein, whether or not
the Merger is consummated, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.



     Section 7.14 Ownership Interest. Nothing contained in this Agreement shall be deemed
to vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to
any Stockholder Owned Shares. All rights, ownership and economic benefits of and relating to the
Stockholder Owned Shares shall remain vested in and belong to the Stockholders, and Parent shall
have no authority to direct the Stockholders in the voting or disposition of any of the Stockholder
Owned Shares, except as otherwise provided in this Agreement.



     Section 7.15 Capacity as a Stockholder. The Stockholders do not make any agreement or
understanding herein in their capacity as being associated with a director of the Company. The
Stockholders make their agreements and understandings herein solely



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in their capacities as the record holder and beneficial owner of the Stockholder Owned Shares
and, notwithstanding anything to the contrary herein, nothing herein shall limit or affect any
actions taken by a Representative of a Stockholder in his capacity as a director of the Company.




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



	 	 	 	 	 
	 	CATALYST HOLDINGS, INC.

 	 
	 	By:  	/s/ Robert B. Mckeon
 	 
	 	 	Name:  	Robert B. McKeon 	 
	 	 	Title:  	President	 
	 
	 	CYPRESS MERCHANT BANKING PARTNERS II L.P.

 	 
	 	By:  	/s/ Jeffrey Hughes
 	 
	 	 	Name:  	Jeffrey Hughes 	 
	 	 	Title:  	Managing Member 	 
	 
	 	

CYPRESS MERCHANT B II C.V.

 	 
	 	By:  	/s/ Jeffrey Hughes
 	 
	 	 	Name:  	Jeffrey Hughes 	 
	 	 	Title:  	Managing Member 	 
	 
	 	55TH STREET PARTNERS II L.P.

 	 
	 	By:  	/s/ Jeffrey Hughes
 	 
	 	 	Name:  	Jeffrey Hughes 	 
	 	 	Title:  	Managing Member 	 
	 



[Signature Page to Voting Agreement]