EXHIBIT 10.1


 


STOCKHOLDER AND VOTING AGREEMENT


 


THIS STOCKHOLDER AND VOTING AGREEMENT (this “Agreement”), dated as of May 13,
2010, is made and entered into among Merit Medical Systems, Inc., a Utah
corporation (the “Buyer”), and Cerberus Partners, L.P. and Cerberus
International, Ltd. (each a “Stockholder” and collectively, the “Stockholders”).


 


RECITALS


 


A.            The Buyer and Biosphere Medical, Inc.,
a Delaware corporation (the “Company”), have entered into an Agreement and Plan
of Merger, dated as of the date hereof (the “Transaction Agreement”), pursuant
to which and subject to the conditions set forth therein, a wholly owned
subsidiary of the Buyer will merge with the Company, and the Buyer will thereby
acquire the business and assets of the Company. 
Except as otherwise defined herein, capitalized terms used herein, but
not otherwise defined, have the respective meanings ascribed thereto in the
Transaction Agreement.


 


B.            As of the date
hereof, the Stockholders beneficially own and are entitled to dispose of (or to
direct the disposition of) and to vote (or to direct the voting of) that number
of shares of the Series A Preferred Stock, par value $0.01 per share, of
the Company, as set forth on the attached Exhibit A (which is incorporated
herein by this reference) (the “Shares”), which Shares entitle the Stockholders
to vote on all matters presented to the stockholders of the Company.  The Shares owned by the Stockholders,
together with any other Shares of the Company the beneficial ownership of which
is acquired by the Stockholders, subsequent to the date of this Agreement, are
collectively referred to herein as “Subject Shares.”


 


C.            As a condition and
inducement to the Buyer’s willingness to enter into the Transaction Agreement,
the Company has requested that the Stockholders agree, and the Stockholders
have agreed, to enter into this Agreement.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the foregoing and the representations, warranties, covenants,
and agreements contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:


 


ARTICLE
I


 


VOTING AGREEMENT


 


1.1           Agreement to Vote Subject Shares.  From the date hereof through the earlier of: (a) the
closing of the transactions contemplated by the Transaction Agreement; (b) the
termination of the Transaction Agreement in accordance with its terms and (c) such
time as the Company Board withholds, withdraws or modifies its recommendation
with respect to the Company Voting Proposal, (the periods set forth in such
clauses (a), (b) or (c), the “Pre-Closing Period”), at any meeting of the
stockholders of the Company called to consider and vote upon the adoption and
approval of the Merger and the other transactions contemplated by the
Transaction Agreement (and at any and all postponements and adjournments
thereof), and in connection with any other action to be taken in respect of the
adoption and approval of the Transaction Agreement by written consent of
stockholders of Company, the Stockholders shall vote or cause to be voted
(including by written consent, if applicable) all of the Subject Shares,
whether heretofore owned or hereinafter acquired, in favor of the adoption and
approval of the Merger and in favor of any other matter necessary for the
consummation of the transactions contemplated by the Transaction Agreement
(collectively, the “Transaction”), and considered and voted upon at any such
meeting or made the subject of any such written consent, as applicable.  During the Pre-Closing Period, at any meeting
of the stockholders of the Company called to consider and vote upon any Other
Proposal (as hereinafter defined) (and at any and all


 

















 


postponements and adjournments thereof), and in connection with any
action to be taken in respect of any Other Proposal by written consent of
stockholders of Company, the Stockholders shall vote or cause to be voted
(including by written consent, if applicable) all of the Subject Shares against
such Other Proposal.  For purposes of
this Agreement, the term “Other Proposal” means any (x) proposal to
acquire the stock or assets of the Company made by any person or group other
than the Buyer or (y) other action which is intended or could reasonably
be expected to impede, interfere with, delay or materially and adversely affect
the contemplated economic benefits to the Buyer of the Transaction or any of
the other transactions contemplated by this Agreement; provided, however, that neither the
Transaction nor any other transaction contemplated by the Transaction Agreement
to be consummated by the Buyer and the Company in connection therewith shall
constitute an Other Proposal.  The
Stockholders shall not enter into any agreement or understanding with any
person or entity the effect of which would be a violation of the provisions and
agreements contained in this Section 1.1. 
For avoidance of doubt, this Agreement is not a voting trust pursuant to
Delaware law.


 


1.2           Irrevocable Proxy.


 


(a)           Grant of Proxy.  SOLELY IN THE EVENT OF A FAILURE BY A
STOCKHOLDER TO VOTE ITS SUBJECT SHARES IN ACCORDANCE WITH ITS OBLIGATIONS IN SECTION 1.1
OF THIS AGREEMENT, UPON SUCH EVENT EACH SUCH STOCKHOLDER HEREBY APPOINTS THE
BUYER AND ANY DESIGNEE OF THE BUYER, EACH OF THEM INDIVIDUALLY, EACH
STOCKHOLDER’S PROXY, WITH THE IRREVOCABLE FULL POWER OF SUBSTITUTION AND
RESUBSTITUTION, TO VOTE OR ACT BY WRITTEN CONSENT WITH RESPECT TO THE SUBJECT
SHARES ONLY TO VOTE THE SUBJECT SHARES AS INDICATED IN SECTION 1.1
HEREOF.  THIS PROXY IS GIVEN TO SECURE
THE PERFORMANCE OF THE DUTIES OF EACH STOCKHOLDER UNDER THIS AGREEMENT.  EACH STOCKHOLDER AFFIRMS THAT THIS PROXY IS
COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE.  EACH STOCKHOLDER SHALL TAKE SUCH FURTHER
ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE
THE INTENT OF THIS PROXY.


 


(b)           Other Proxies Revoked.  Each Stockholder, severally and not jointly,
represents that any proxies heretofore given in respect of the Subject Shares
of such Stockholder are not irrevocable, and that all such proxies are hereby
revoked.


 


1.3           No
Ownership Interest.  Nothing
contained in this Agreement shall be deemed to vest in the Buyer, the
Transitory Subsidiary, or the Company any direct or indirect ownership or
incidence of ownership of or with respect to any Subject Shares.  Subject to the terms of this Agreement, all
rights, ownership and economic benefits of and relating to the Subject Shares
shall remain vested in and belong to the Stockholders, and the Buyer, the Transitory
Subsidiary, and the Company shall have no authority to manage, direct,
superintend, restrict, regulate, govern, or administer any of the policies or
operations of the Company or exercise any power or authority to direct the
Stockholders in the voting of any of the Subject Shares, except as otherwise
specifically provided herein, or in the performance of the Stockholders’ duties
or responsibilities as stockholders of the Company.


 


1.4           Stockholder Capacity.  Each Stockholder is entering into this Agreement
solely in its capacity as a record holder and/or beneficial owner of Subject
Shares and nothing in this Agreement shall be deemed to impose any obligation,
restriction, limitation or liability on such Stockholder, or any of such
Stockholder’s officers, directors, employees, partners, members, agents or
representatives (as the case may be), in any other manner or capacity
including, without limitation in any capacity as an officer, director,
employee, agent or representative of the Company.  Nothing in this Agreement shall be deemed to
impose any obligation, restriction, limitation or liability on any Stockholder
as a result of any action or inaction of any other stockholder of the
Company.  In no event shall any
Stockholder have any liability for any breach by any other Stockholder of any
representation, warranty, covenant or other agreement made by such other
Stockholder pursuant to this Agreement.


 


2

















 


ARTICLE
II


 


REPRESENTATIONS AND WARRANTIES


 


2.1           Certain
Representations and Warranties of Each Stockholder.  Each Stockholder, severally and not jointly,
hereby represents and warrants to the Company that:


 


(a)           Power and Authority; Execution and
Delivery.  Such Stockholder has all
requisite legal capacity, power, and authority to enter into this Agreement and
to consummate the transactions contemplated hereby.  The execution and delivery of this Agreement
by such Stockholder and the consummation by such Stockholder of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of such Stockholder. 
This Agreement has been duly executed and delivered by such Stockholder
and, assuming that this Agreement constitutes the valid and binding obligation
of the other parties hereto, constitutes a valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, and similar laws affecting creditors’ rights and
remedies generally and to general principles of equity.


 


(b)           No Conflicts.  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: 
(i) conflict with or result in any breach of any organizational
documents applicable to such Stockholder; or (ii) conflict with, result in
a breach or violation of, or default (with or without notice or lapse of time
or both) under, or give rise to a material obligation, a right of termination,
cancellation, or acceleration of any material obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
any agreement, instrument, undertaking, law, rule, regulation, judgment, order,
injunction, decree, determination, or award binding on such Stockholder, other
than any such conflicts, breaches, violations, defaults, obligations, rights,
or losses that individually or in the aggregate would not:  (x) materially impair the ability of
such Stockholder to perform such Stockholder’s obligations under this
Agreement; or (y) prevent or materially delay the consummation of any of
the transactions contemplated hereby.


 


2.2           Certain
Representations and Warranties of the Buyer.  The Buyer hereby represents and warrants to
each Stockholder that:


 


(a)           Power and Authority; Execution and
Delivery.  The Buyer has all
requisite legal capacity, power, and authority to enter into this Agreement and
to consummate the transactions contemplated hereby.  The execution and delivery of this Agreement
by the Buyer and the consummation by the Buyer of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the
Buyer.  This Agreement has been duly
executed and delivered by the Buyer and, assuming that this Agreement
constitutes the valid and binding obligation of the other parties hereto,
constitutes a valid and binding obligation of the Buyer, enforceable against
the Buyer in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws
affecting creditors’ rights and remedies generally and to general principles of
equity.


 


(b)           No Conflicts.  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: 
(i) conflict with or result in any breach of any organizational
documents applicable to the Buyer; or (ii) conflict with, result in a
breach or violation of, or default (with or without notice or lapse of time or
both) under, or give rise to a material obligation, a right of termination,
cancellation, or acceleration of any material obligation or a loss of a material
benefit under, or require notice to or the consent of any person under any
agreement, instrument, undertaking, law, rule, regulation, judgment, order,
injunction, decree, determination, or award binding on the Buyer, other than
any such conflicts, breaches, violations, defaults, obligations, rights, or
losses that individually or in the aggregate would not: (x) materially
impair the ability of the Buyer to perform the Buyer’s obligations under this
Agreement; or (y) prevent or materially delay the consummation of any of
the transactions contemplated hereby.


 


3

















 


ARTICLE III


 


CERTAIN COVENANTS


 


3.1           Certain Covenants
of the Stockholders.


 


(a)           Restriction on Transfer of Subject
Shares, Proxies and Noninterference. 
During the Pre-Closing Period, each Stockholder agrees not to, directly
or indirectly, except pursuant to or permitted by the terms and conditions of
this Agreement: (i) offer for sale, sell, transfer, tender, loan, pledge,
encumber, assign, or otherwise dispose of, or enter into any contract, option,
or other arrangement or understanding with respect to or consent to the offer
for sale, sale, transfer, tender, pledge, encumbrance, assignment, or other
disposition of, grant any rights with respect to, or enter into any transaction
which is designed to, or might be reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) of any right, title and interest any or
all of the Subject Shares; (ii) grant any proxies or powers of attorney,
deposit any of the Subject Shares into a voting trust or enter into a voting
agreement with respect to any of the Subject Shares; or (iii) take any
action that would make any representation or warranty contained herein untrue,
inaccurate or incorrect in any material respect or have the effect of
materially impairing the ability of such Stockholder to perform such
Stockholder’s obligations under this Agreement or preventing or materially
delaying the consummation of any of the transactions contemplated hereby or by
the Transaction Agreement; provided, however, that
notwithstanding the foregoing provisions of this Section 3.1(a), a
Stockholder may take any of the actions described in Section 3.1(a)(i), (ii) and
(iii) if (x) the person receiving all or any portion of the Subject
Shares or interest therein or (y) the person receiving the proxy or
entering into any voting trust, power-of-attorney or other agreement or
arrangement with respect to any voting of any Subject Shares during the term of
this Agreement, agrees in writing, in an instrument reasonably acceptable to
the Buyer, to be bound by this Agreement as a Stockholder.  Notwithstanding the foregoing, each
Stockholder may convert its shares of Company Series A Preferred Stock
into Company Common Stock (which resulting shares of Company Common Stock would
remain subject to the terms of this Agreement as “Subject Shares”) and each
Stockholder may take such actions as may be required in connection with a
redemption by the Company of shares of Company Series A Preferred Stock.


 


(b)           No Solicitation.  From and after the time of the No-Shop Start
Date, each Stockholder shall not, nor shall it authorize or permit any
director, officer, employee or any investment banker, attorney or other advisor
or representative of, such Stockholder (collectively, the “Stockholder
Representatives”) to, directly or indirectly, knowingly (A) initiate,
solicit or encourage any Acquisition Proposal, or (B) participate or
engage in any discussions or negotiations with, or provide any information to,
any person making any Acquisition Proposal. 
From and after the time of the No-Shop Start Date, each Stockholder
shall immediately cease and terminate, and shall cause its Stockholder
Representatives to immediately cease and cause to be terminated, all existing
discussions or negotiations with any persons conducted heretofore with respect
to an Acquisition Proposal.  Notwithstanding
anything to the contrary in this Agreement, (x) if the Company, its
subsidiaries or any of their respective Representatives has provided
information to or entered into discussions or negotiations with, in each case
in compliance with the provisions of Section 6.1 of the Transaction
Agreement, any person or persons in response to an Acquisition Proposal made by
such person or persons, then each Stockholder and its Stockholder
Representatives may provide information to and engage in discussions or
negotiations with such person or persons as and to the extent that the Company,
its subsidiaries or their respective Representatives is permitted to do so
pursuant to the terms of the Transaction Agreement and (y) each
Stockholder shall be permitted to comply with its disclosure obligations under
applicable law.


 


3.2           Timing of Payment.  On account of the Stockholders entering into
this Agreement, the Buyer shall pay (or cause to be paid) concurrent with the
Effective Time the Common Merger Consideration to each Stockholder for the
shares of Company Common Stock that are owned by each such Stockholder as of
immediately prior to the Effective Time (including any shares of Company Common
Stock issued upon a conversion of shares of Company Series A Preferred
Stock), by wire transfer in immediately available funds pursuant to wire
transfer instructions provided by each such Stockholder to the Buyer prior to
the Effective Time.  The Buyer’s
obligations under this Section 3.2 to each Stockholder are subject to its
receipt from a Stockholder prior to the Effective Time of 


 


4

















 


fully executed
letters of transmittal in a form provided by the Buyer that is reasonable and
customary for the Company Common Stock (“Letters of Transmittal”).  The Buyer agrees to deliver or cause to be
delivered to each Stockholder, not less than ten (10) full calendar days
prior to the Effective Time, one or more Letters of Transmittal to be completed
by each such Stockholder. 
Notwithstanding the foregoing, in the event that the Buyer fails to
deliver such Letters of Transmittal to a Stockholder within such ten (10) full
calendar day period, such Stockholder shall not be obligated to complete such
Letters of Transmittal as a condition of receiving the Common Merger
Consideration concurrent with the Effective Time as provided in this Section 3.2.


 


ARTICLE
IV


 


MISCELLANEOUS


 


4.1           Fees and Expenses.  Each party hereto shall pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and
the consummation of the transactions contemplated hereby, except as otherwise
provided herein.


 


4.2           Amendment.  This Agreement may not be amended, except by
an instrument in writing signed on behalf of each of the parties hereto.


 


4.3           Termination.  Unless the parties otherwise agree in
writing, this Agreement shall automatically terminate and be null and void and
have no effect upon the earliest to occur of (a) the mutual written
consent of the Buyer and each of the Stockholders, (b) the Effective Time,
(c) the termination of the Transaction Agreement in accordance with its
terms, (d) the withholding, withdrawal or modification by the Company
Board of its recommendation with respect to the Company Voting Proposal, and (e) at
each Stockholder’s option (but only with respect to such Stockholder), upon
written notice by such Stockholder to the Buyer from and after any amendment,
waiver or modification to the terms of the Transaction Agreement that (i) changes
the form of, or decreases the amount of, or alters the timing of payment from
what is set forth in the Transaction Agreement of the Common Merger
Consideration and/or the Series A Merger Consideration or (ii) otherwise
materially and adversely affects such Stockholder in its capacity as a holder
of capital stock in the Company; provided that Article IV shall survive
any such termination; and, provided, further, that Section 3.2 shall
survive any termination of this Agreement described in clause (b) above.  Nothing in this Section 4.3 shall be
deemed to release any party from any liability for any breach by such party of
the terms and provisions of this Agreement.


 


4.3           Extension; Waiver.  Any agreement on the part of a party to waive
any provision of this Agreement, or to extend the time for any performance
hereunder, shall be valid only if set forth in an instrument in writing signed
on behalf of such party.  The failure of
any party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.


 


4.4           Entire Agreement; No Third-Party
Beneficiaries.  This Agreement
constitutes the entire agreement of the parties hereto, and supersedes all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter of this Agreement, and is not intended to
confer upon any person other than the parties hereto any rights or remedies.


 


4.5           Governing Law.  This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.


 


4.6           Notices.  All notices, requests, claims, demands, and
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, or sent by overnight courier or telecopy
(providing proof of delivery) to the address set forth below (or, in each case,
at such other address as shall be specified by like notice).


 


5

















 


If to the Buyer, to:


 


Merit Medical Systems, Inc.


1600 West Merit Parkway


South Jordan, UT 84095


Attn:  Fred Lampropoulos


Telecopy:  (801) 253-1688


 


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


 


Merit Medical Systems, Inc.


1600 West Merit Parkway


South Jordan, UT 84095


Attention:  Rashelle
Perry


Telecopy:  (801)
208-4302


 


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


 


Parr Brown Gee & Loveless, PC


185 S. State St., Suite 800


Salt Lake City, UT 84111


Attn:  Scott W.
Loveless


Telecopy:  (801)
532-7750


 


If to the Stockholders, to the addresses set forth on
the signature page hereto.


 


4.7           Assignment.  Except to a wholly owned subsidiary or an
Affiliate or as permitted by Section 3.1(a), neither this Agreement nor
any of the rights, interests, or obligations under this Agreement may be
assigned or delegated, in whole or in part, by operation of law or otherwise,
by a Stockholder without the prior written consent of the Buyer, and any such
assignment or delegation that is not consented to shall be null and void other
than an assignment or delegation to a wholly owned subsidiary or an Affiliate
or as permitted by Section 3.1(a). 
This Agreement, together with any rights, interests, or obligations of
the Buyer hereunder, may be assigned or delegated, in whole or in part, by the
Buyer without the consent of or any action by the Stockholders upon notice by
the Buyer to the Stockholders as provided herein; provided that, such assignment and delegation is made to a
person (an “Assignee”) to whom the rights and interests of the Buyer under the
Transaction Agreement are assigned. 
Subject to the foregoing, this Agreement shall be binding upon, inure to
the benefit of, and be enforceable by, the parties and their respective
successors and assigns (including, without limitation, any person to whom any
Subject Shares are sold, transferred, assigned, or passed, whether by operation
of law or otherwise).


 


4.8           Confidentiality.  The Stockholders recognize that successful
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to the matters referred to herein.  In this connection, pending public disclosure
of the transactions contemplated by the Transaction Agreement, each Stockholder
hereby agrees not to disclose or discuss such matters with anyone not a party
to this Agreement (other than its counsel and advisors, if any) without the
prior written consent of the Buyer, except for filings required pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder, including filing this Agreement as an exhibit to any such filings,
it being acknowledged by the Buyer that the Stockholders may be required to
file an amendment to a Schedule 13D disclosing, among other things, the
existence of this Agreement and the transactions contemplated hereby, or
disclosures its counsel advises are necessary in order to fulfill its
obligations imposed by law, in which event the Stockholders shall give notice
of such disclosure to the Buyer as promptly as practicable so as to enable the
Buyer to seek a protective order promptly from a court of competent
jurisdiction with respect thereto.


 


6

















 


4.9           Further Assurances.  The Stockholders shall execute and deliver
such other documents and instruments and take such further actions as may be
necessary or appropriate and reasonably requested by the Buyer in order to
ensure that the Buyer receives the full benefit of this Agreement at the Buyer’s
sole cost and expense.


 


4.10         Enforcement.  Irreparable damage may 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.  Accordingly, the parties shall be entitled to
apply for an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement.


 


4.11         Severability.  Whenever possible, each provision or portion
of any provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal, or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality, or unenforceability shall not affect any other
provision or portion of any provision in such jurisdiction, and this Agreement
shall be reformed, construed, and enforced in such jurisdiction as if such
invalid, illegal, or unenforceable provision or portion of any provision had
never been contained herein.


 


4.12         Descriptive Headings.  The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.


 


4.13         Counterparts.  This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same instrument and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other parties.


 


[remainder of page intentionally
left blank; signature page follows]


 


7

















 


IN WITNESS WHEREOF, each of the parties hereto has caused this
Stockholder and Voting Agreement to be signed as of the day and year first
written above.


 


	
   

  	
  The Buyer:

  
	
   

  	
   

  
	
   

  	
  MERIT MEDICAL SYSTEMS, INC.:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Fred Lampropoulos

  
	
   

  	
  Name:

  	
  Fred Lampropoulos

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  The Stockholders:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  CERBERUS PARTNERS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Cerberus Associates,
  L.L.C.,

  
	
   

  	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Seth P. Plattus

  
	
   

  	
   

  	
  Name: Seth P. Plattus

  
	
   

  	
   

  	
  Title: Senior Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CERBERUS INTERNATIONAL,
  LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Partridge Hill Overseas
  Management, LLC,

  
	
   

  	
   

  	
   

  	
  its investment manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   By:

  	
  /s/ Seth P. Plattus

  
	
   

  	
   

  	
  Name: Seth P. Plattus

  
	
   

  	
   

  	
  Title: Senior Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Addresses for the
  Stockholders pursuant to Section 4.6:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  c/o Cerberus Capital Management, L.P.

  
	
   

  	
   

  	
  299 Park Avenue

  
	
   

  	
   

  	
  New York, NY 10171

  
	
   

  	
   

  	
  Attention: General
  Counsel

  
	
   

  	
   

  	
  Facsimile: (212)
  891-1540

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lowenstein Sandler PC

  
	
   

  	
   

  	
  65 Livingston Avenue

  
	
   

  	
   

  	
  Roseland, NJ 07068

  
	
   

  	
   

  	
  Attention: Robert G.
  Minion, Esq.

  
	
   

  	
   

  	
  Facsimile: (973)
  597-2400

  
					



 


8

















 


EXHIBIT A


 


Series A
Preferred Stockholders


 


	
  Stockholder

  	
   

  	
  Number of Series A Preferred Shares

  (on an as converted basis)

  
	
  Cerberus
  International, Ltd.

  	
   

  	
  3,171 shares of
  Series A Preferred Stock (792,750 shares of common stock on an as
  converted basis)

  
	
   

  	
   

  	
   

  
	
  Cerberus
  Partners, L.P.

  	
   

  	
  1,645 shares of
  Series A Preferred Stock (411,250 shares of common stock on an as
  converted basis)

  



 


9