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Exhibit 99.5
VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is made and entered into as of July
23, 2001 by and among Sun Catalina Holdings, LLC, a Delaware limited liability
company ("Sun"), Catalina Lighting, Inc., a Florida corporation ("Catalina"),
and the undersigned shareholder ("Shareholder") of Catalina.
RECITALS
WHEREAS, on the date hereof, Sun is entering into an Amended and
Restated Stock Purchase Agreement (the "Stock Purchase Agreement") with
Catalina, providing for the Catalina's issuance of its common stock, par value
$0.01 (the "Common Stock"), to Sun;
WHEREAS, on the date hereof, Sun is entering into an Amended and
Restated Note Purchase Agreement (the "Note Purchase Agreement" and, together
with the Stock Purchase Agreement, the "Purchase Agreements") with Catalina,
providing for the Catalina's issuance of certain promissory notes to Sun;
WHEREAS, Shareholder is the holder of record and the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) of the number of shares of the capital stock of Catalina
indicated on the signature page of this Agreement (the "Shares"); and
WHEREAS, as a condition to its execution and delivery of the Purchase
Agreements and to induce the execution and delivery of the Purchase Agreements
by Sun, Shareholder is willing to agree to vote all shares of Catalina capital
stock owned by Shareholder in accordance with the terms of this Agreement, as
more fully described below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Agreement to Vote Shares. Shareholder agrees that until the earlier
of (i) the date on which Shareholder no longer beneficially owns shares of
capital stock of Catalina and no longer has any options, whether vested or
unvested, to purchase shares of capital stock of Catalina, or (ii) July ___,
2004 (the earliest thereof being hereinafter referred to as the "Termination
Date"), Shareholder shall vote all Shares owned by Shareholder at the time of
such vote, and any other shares of capital stock of Catalina that Shareholder
has the right to vote, whether pursuant to a voting agreement, proxy or
otherwise, at any meeting of the Catalina Shareholders (whether annual or
special and whether or not an adjourned meeting), or, if applicable, take action
by written consent, as directed by Sun. Any such vote shall be cast or consent
shall be given in accordance with such procedures relating thereto as shall
ensure that it is duly counted for purposes of determining that a quorum is
present and for purposes of recording the results of such vote or consent.
Shareholder further agrees that, until the shareholders of Catalina approve an
increase in the authorized capitalization as set forth in Section 5.13 of the
Stock Purchase Agreement, the Shareholder shall not sell or transfer any of the
Shares.
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2. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Shareholder, in furtherance of the transactions contemplated hereby
and by the Purchase Agreements, and in order to secure the performance by
Shareholder of his duties under this Agreement, shall promptly execute, in
accordance with the applicable provisions of the Florida 1989 Business
Corporation Act, as amended, and deliver to Sun an irrevocable proxy,
substantially in the form of Annex A hereto (the "Proxy"), and irrevocably
appoint Sun or its designees, with full power of substitution, his attorney and
proxy to vote, or, if applicable, to give consent with respect to, all of the
Shares owned by Shareholder, and any other shares of capital stock of Catalina
that Shareholder has the right to vote in respect of any of the matters set
forth in, and in accordance with the provisions of Section 1. Shareholder
acknowledges that the Proxy shall be coupled with an interest, shall constitute,
among other things, an inducement for Sun to enter into the Purchase Agreements,
shall be irrevocable and shall not be terminated by operation of law upon the
occurrence of any event, including, without limitation, the death or incapacity
of Shareholder. Notwithstanding any provision contained in the Proxy, the Proxy
shall terminate upon the Termination Date.
3. Representations, Warranties and Covenants of Shareholder.
Shareholder hereby represents and warrants to, and covenants with, Sun as
follows:
(a) Shareholder (i) as of the date of this Agreement, is the
holder of record and beneficial owner of the Shares free and clear of any liens,
claims, options, charges or other encumbrances that would interfere with the
voting of the Shares or the granting of any proxy with respect thereto, (ii) as
of the date of this Agreement, does not beneficially own any shares of capital
stock of Catalina other than the Shares (except to the extent that Shareholder
currently disclaims beneficial ownership in accordance with the Exchange Act)
and (iii) has full power and authority to make, enter into, deliver and carry
out the terms of this Agreement and the Proxy.
(b) Between the date of this Agreement and the expiration or
termination of this Agreement, Shareholder will not, and will not permit any
entity under Shareholder's control to, deposit any shares of Catalina capital
stock held by Shareholder or such entity in a voting trust or subject any shares
of Catalina capital stock held by such Shareholder or such entity to any
arrangement or agreement with respect to the voting of such shares of capital
stock, other than agreements entered into with Sun.
(c) This Agreement constitutes the legal, valid and binding
obligation of Shareholder. Neither the execution of this Agreement by
Shareholder nor the consummation of the transactions contemplated herein will
violate or result in a breach of (i) any provision of any trust, charter,
partnership agreement or other charter document applicable to Shareholder, (ii)
any agreement to which Shareholder is a party or by which Shareholder is bound,
(iii) any decree, judgment or order to which Shareholder is subject, or (iv) any
law or regulation now in effect applicable to Shareholder.
4. Adjustments; Additional Shares. In the event (a) of any stock
dividend, stock split, merger, recapitalization, reclassification, combination,
exchange of shares or the like of the capital stock of Catalina on, of or
affecting the Shares or (b) that Shareholder shall become the beneficial owner
of any additional shares of capital stock or other securities of Catalina
entitling the holder thereof to vote or give consent with respect to the matters
set forth in Section 1, then the terms of this Agreement shall apply to the
shares of capital stock or other instruments or documents held by Shareholder
immediately following the effectiveness of the events described
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in clause (a) or Shareholder becoming the beneficial owner thereof as described
in clause (b), as though, in either case, they were Shares hereunder.
5. Termination. Notwithstanding any other provision contained herein,
this Agreement and the Proxy, and all obligations of Shareholder hereunder and
thereunder, shall terminate upon the Termination Date
6. Legend. Concurrently with the execution of this Agreement,
Shareholder is surrendering to Catalina the certificates representing the
Shares, and is hereby requesting the following legend be placed on the
certificates representing such Shares and shall request such legend remain
thereon until the Termination Date:
"THE SHARES OF CAPITAL STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A VOTING AGREEMENT, DATED AS OF JULY __, 2001, BETWEEN
SHAREHOLDER AND SUN CATALINA HOLDINGS, LLC WHICH AGREEMENT SUBJECTS THE
SHARES TO AN IRREVOCABLE PROXY IN ACCORDANCE WITH THE PROVISIONS OF THE
FLORIDA 1989 BUSINESS CORPORATION ACT, AS AMENDED."
In the event Shareholder shall become the beneficial owner of any
additional shares of Common Stock or other securities (whether by the exercise
of options or otherwise) entitling the holder thereof to vote or give consent
with respect to the matters set forth in Section 1, Shareholder shall, upon
acquiring such beneficial ownership, surrender to Catalina the certificates
representing such shares or securities and request the foregoing legend be
placed on such certificates and remain thereon until the Termination Date.
Shareholder shall provide Sun with satisfactory evidence of his compliance with
this Section 6 on or prior to the date ten (10) business days after the
execution hereof or of the request relating to Shareholder's Proxy, as the case
may be.
7. Specific Performance. Shareholder acknowledges the agreements
contained in this Agreement are an integral part of the transactions
contemplated by the Purchase Agreements, and, without these agreements, Sun
would not enter into the Purchase Agreements, and acknowledges damages would be
an inadequate remedy for any breach by him of the provisions of this Agreement.
Accordingly, Shareholder and Sun each agree the obligations of the parties
hereunder shall be specifically enforceable and neither party shall take any
action to impede the other from seeking to enforce such right of specific
performance.
8. Notices. All notices, demands, requests, Consents, approvals or
other communications (collectively, "Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall be personally served, delivered by reputable air courier service with
charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile,
addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice. Notice shall be deemed given on the
date of service or transmission if personally served or transmitted by telegram,
telex or facsimile. Notice otherwise sent as provided herein shall be deemed
given on the next business day following delivery of such notice to a reputable
air courier service.
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To Catalina: Catalina Lighting, Inc.
18191 NW 68th Avenue
Miami, Florida 33015
Attention: Robert Hersh
Telefax: (305) 827-3994
with a copy to: Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Attention: John F. Olson, Esquire or
Ronald O. Mueller, Esquire
Telefax: (202) 467-0539
and
J. Parker Ailstock, PA
2615 N.W. 5th Place
Gainesville, Florida 32607
Telefax: (352) 378-5879
To Sun:
Sun Catalina Holdings, LLC
c/o Sun Capital Partners, Inc.
5355 Town Center Road
Suite 802
Boca Raton, Florida 33486
Attention: Marc J. Leder, Rodger R. Krouse
and C. Deryl Couch, Esq.
Telefax: (561) 394-0540
with a copy to:
Morgan, Lewis & Bockius LLP
One Oxford Centre, Thirty-Second Floor
301 Grant Street
Pittsburgh, PA 15219
Attention: David A. Gerson, Esq.
Telefax: (412) 560-3399
To Shareholder: To the address listed on the signature
page hereto.
9. Miscellaneous.
(a) Binding Effect; Survival. This Agreement shall become
effective as to Shareholder at the time Shareholder executes and delivers this
Agreement. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, personal representatives, successors
and assigns.
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(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida applicable to
agreements made and to be performed entirely within such State.
(c) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be an original and all of which together shall
constitute one and the same agreement.
(d) Effect of Headings. The section headings herein are for
convenience of reference only and shall not affect the construction hereof.
(e) Additional Agreements; Further Assurance. Subject to the
terms and conditions herein provided, Shareholder agrees to use all reasonable
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make effective
the transactions contemplated by this Agreement. Shareholder will provide Sun
with all documents which may reasonably be requested by Sun and will take
reasonable steps to enable Sun to obtain all rights and benefits provided it
hereunder.
(f) Amendment; Waiver. No amendment or waiver of any provision
of this Agreement or consent to departure therefrom shall be effective unless in
writing and signed by Sun and Shareholder, in the case of an amendment, or by
the party which is the beneficiary of any such provision, in the case of a
waiver or a consent to depart therefrom.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
SUN CATALINA HOLDINGS, LLC
By: _____________________________
Name:
Title:
CATALINA LIGHTING, INC.
By: _____________________________
Name:
Title:
SHAREHOLDER
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Shareholder's Address for Notice:
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Number of Shares owned beneficially:
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Number of Shares owned of record
(if different from above):
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ANNEX A
IRREVOCABLE PROXY
In order to secure the performance of the duties of the undersigned
pursuant to the Voting Agreement, dated as of July 23, 2001 (the "Voting
Agreement"), between the undersigned, Catalina Lighting, Inc., a Florida
corporation, and Sun Catalina Holdings, LLC, a Delaware limited liability
company ("Sun"), a copy of such agreement being attached hereto and incorporated
by reference herein, the undersigned hereby irrevocably appoints _________ and
________, and each of them, the attorneys, agents and proxies, with full power
of substitution in each of them, for the undersigned and in the name, place and
stead of the undersigned, in respect of any of the matters set forth in Section
1 of the Voting Agreement, to vote or, if applicable, to give written consent,
in accordance with the provisions of said Section 1 and otherwise act
(consistent with the terms of the Voting Agreement) with respect to all shares
of Common Stock, par value $0.01 per share (the "Shares"), of Catalina Lighting,
Inc., a Florida corporation ("Catalina"), whether now owned or hereafter
acquired, which the undersigned is or may be entitled to vote at any meeting of
Catalina held after the date hereof, whether annual or special and whether or
not an adjourned meeting, or, if applicable, to give written consent with
respect thereto. This Proxy is given in consideration of the certain Amended and
Restated Note Purchase Agreement and the certain Amended and Restated Stock
Purchase Agreement, each dated as of July __, 2001, by and between Catalina and
Sun, and as such is coupled with an interest, shall be irrevocable and binding
on any successor in interest of the undersigned and shall not be terminated by
operation of law upon the occurrence of any event, including, without
limitation, the death or incapacity of the undersigned. This Proxy shall operate
to revoke any prior proxy as to the Shares heretofore granted by the
undersigned. This proxy shall terminate on the Termination Date (as defined in
the Voting Agreement). This Proxy has been executed in accordance with the
Florida General Corporation Act.
Dated: July __, 2001
SHAREHOLDER
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Shares beneficially owned by Shareholder: ___________________
Shares owned of record by Shareholder: ___________________