FORM OF TENDER AND VOTING AGREEMENT
Exhibit 2.2
FORM OF TENDER AND VOTING AGREEMENT
This Tender and Voting Agreement, dated as of December 18, 2010 (this “Agreement”), is by and
among Raytheon Company, a Delaware corporation (“Parent”), RN Acquisition Company, a California
corporation (“Merger Sub”), and the shareholders of APPLIED SIGNAL TECHNOLOGY, INC., a California
corporation (the “Company”), set forth on the signature page hereto (collectively, the
“Shareholder”).
WHEREAS, as of the date hereof, the Shareholder is the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of the number of shares of Company Common Stock (all such shares of
Company Common Stock, together with any shares of Company Common Stock or other equity interests in
the Company that are hereafter issued to or otherwise acquired or owned (beneficially or otherwise)
by the Shareholder prior to the termination of this Agreement, being hereinafter referred to as the
“Shares”) and holds Company Stock Options to acquire the number of shares of Company Common Stock
and Company Restricted Shares, in each case, as set forth on the signature page hereto;
provided, however, that Company Stock Options and Company Restricted Shares
beneficially owned by the Shareholder as of the date hereof shall not be considered Shares prior to
their exercise or vesting, as the case may be, and shares of Company Common Stock issued upon
exercise of the Company Stock Options and/or vesting of the Company Restricted Shares shall be
considered Shares; and
WHEREAS, Parent, Merger Sub and the Company have entered into an Agreement and Plan of Merger,
dated as of the date hereof (as amended from time to time, the “Merger Agreement”), which provides,
among other things, for Merger Sub to make a tender offer (as it may be amended from time to time
as permitted under the Merger Agreement, the “Offer”) to purchase all of the outstanding shares of
Company Common Stock for consideration of a price per share of Company Common Stock as set forth in
the Merger Agreement and that, following the acceptance of and payment for shares of Company Common
Stock pursuant to the Offer, upon the terms and subject to the conditions therein, Merger Sub will
merge with and into the Company (the “Merger”); and
WHEREAS, as a condition to the willingness of Parent and Merger Sub to enter into the Merger
Agreement, Parent and Merger Sub have requested that the Shareholder agree, and in order to induce
Parent and Merger Sub to enter into the Merger Agreement, the Shareholder has agreed, to enter into
this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the representations,
warranties, covenants and agreements set forth herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to the terms and
conditions set forth herein, the parties hereto hereby agree as follows:
ARTICLE 1
1.01 Certain Definitions. Capitalized terms used but not otherwise defined herein
have the meanings ascribed to such terms in the Merger Agreement.
1.02 Representations and Warranties of the Shareholder. Each Shareholder represents
and warrants to Parent and Merger Sub as follows:
(a) The Shareholder is the sole beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of, and has good title to, the Shares, free and clear of any Liens (including any restriction
on the right to vote, sell or otherwise dispose of the Shares), except as set forth in this
Agreement and pursuant to any applicable restrictions on transfer under the Securities Act.
(b) Other than the Company Stock Options set forth on the signature page hereto and the
Company Restricted Shares set forth on the signature page hereto, the Shares constitute all of the
securities (as defined in Section 3(10) of the Exchange Act, which definition will apply to all
uses of the term “securities” contained in this Agreement) of the Company beneficially owned,
directly or indirectly, by the Shareholder and any of the Shareholder’s affiliates or associates
(as such terms are defined in Rule 12b-2 under the Exchange Act, which definitions will apply to
all uses of the terms “affiliates” and “associates,” respectively, contained in this Agreement).
(c) Except for the Shares, the Company Stock Options set forth on the signature page hereto
and the Company Restricted Shares set forth on the signature page hereto, neither the Shareholder
nor any of his or her affiliates or associates, directly or indirectly, beneficially owns or has
any option, warrant or other right to acquire (whether currently, upon lapse of time, following the
satisfaction of any conditions, upon the occurrence of any event or any combination of the
foregoing) any securities of the Company that are or may by their terms become entitled to vote or
any securities that are convertible or exchangeable into or exercisable for any securities of the
Company that are or may by their terms become entitled to vote, nor is the Shareholder or any of
his or her affiliates or associates subject to any Contract other than this Agreement that
obligates the Shareholder or any of such affiliates or associates to vote, transfer, dispose of or
acquire any securities of the Company. The Shareholder holds, and will hold at all times during
the term of this Agreement, exclusive power to vote and dispose of the Shares and to issue
instructions with respect to the matters set forth in this Agreement, in each case with no
limitations, qualifications or restrictions on such rights, and has not granted a proxy to or
entered into any voting agreement with any other Person to vote or dispose of the Shares, subject
to the limitations set forth in this Agreement.
(d) The Shareholder has the legal capacity to execute, deliver and perform the Shareholder’s
obligations under this Agreement. The Shareholder has duly executed and delivered this Agreement.
This Agreement is the Shareholder’s valid and legally binding obligation, enforceable against the
Shareholder in accordance with its terms (except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors’ rights or by general equity principles).
(e) No consents or approvals of, or filings or registrations with, any Governmental Entity or
with any third party are required to be made or obtained by the Shareholder in connection with the
execution, delivery or performance by the Shareholder of this Agreement.
(f) The execution, delivery and performance of this Agreement by the Shareholder does not and
will not constitute a violation of any Law or any judgment, decree or
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order, or conflict with any Contract, to which the Shareholder or any of the Shareholder’s
properties is subject or bound.
(g) There is no suit, claim, action, investigation or proceeding pending or, to the knowledge
of the Shareholder, threatened against, or otherwise affecting, the Shareholder or any of his or
her properties or assets (including the Shares) at law or in equity before or by any Governmental
Entity that could reasonably be expected to impair the ability of the Shareholder to perform his or
her obligations hereunder or consummate the transactions contemplated hereby on a timely basis.
(h) No broker, investment banker, financial advisor or other Person is entitled to any
broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of the Shareholder
(other than in such Shareholder’s capacity as an officer or director of the Company and as
disclosed pursuant to the Merger Agreement).
(i) The Shareholder has received and reviewed a copy of the Merger Agreement. The Shareholder
understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in
reliance upon the Shareholder’s execution, delivery and performance of this Agreement.
1.03 Representations and Warranties of Parent and Merger Sub. Parent and Merger Sub
represent and warrant to the Shareholder as follows:
(a) Each of Parent and Merger Sub is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation. Each of Parent and Merger
Sub is duly qualified to do business and is in good standing in all jurisdictions where its
ownership or leasing of property or assets or its conduct of business requires it to be so
qualified.
(b) Each of Parent and Merger Sub has the corporate power and authority to execute, deliver
and perform its obligations under this Agreement. Each of Parent and Merger Sub has duly
authorized, executed and delivered this Agreement. This Agreement has been duly authorized by all
necessary corporate action of each of Parent and Merger Sub. This Agreement is each of Parent’s
and Merger Sub’s valid and legally binding obligation, enforceable against each of them in
accordance with its terms (except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors’ rights or by general equity principles).
(c) No consent or approval of, or filing or registration with, any Governmental Entity or with
any third party are required to be made or obtained by either Parent or Merger Sub in connection
with the execution, delivery or performance by Parent and Merger Sub of this Agreement except for
the filing with the SEC of any Schedule 13D or any amendments thereto, filings under Section 16 of
the Exchange Act and filings under the HSR Act.
(d) The execution, delivery and performance of this Agreement by Parent and Merger Sub does
not and will not constitute (i) a violation of any Law or any judgment, decree
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or order to which Parent or Merger Sub or any of their properties is subject or bound or (ii)
a breach or violation of, or a default under, the Certificate of Incorporation or By-laws of Parent
or the Articles of Incorporation or Bylaws of Merger Sub.
ARTICLE 2
2.01 Transfer of the Shares. During the term of this Agreement, except as otherwise
provided herein, the Shareholder will not (a) tender into any tender or exchange offer or otherwise
directly or indirectly sell, transfer, pledge, assign or otherwise dispose of, or encumber with any
Lien, any of the Shares or any interest therein, (b) deposit the Shares into a voting trust, enter
into any other voting agreement or arrangement with respect to the Shares or grant any proxy or
power of attorney with respect to the Shares, (c) enter into any Contract, option or other
arrangement or undertaking with respect to the direct or indirect acquisition or sale, transfer,
pledge, assignment or other disposition of any interest in or the voting of any shares of Company
Common Stock or any other securities of the Company or (d) take any other action that would make
any representation or warranty of the Shareholder contained herein untrue or incorrect in any
material respect or in any way restrict, limit or interfere in any material respect with the
performance of the Shareholder’s obligations hereunder or the transactions contemplated by the
Merger Agreement; provided, however, that the actions described in clauses (a) and
(b) above shall be permitted hereunder in the event such action is (1) imposed by applicable Law or
required pursuant to this Agreement, or (2) the result of any donative transfer to any immediate
family member of the Shareholder, any charity to which the Shareholder wishes to contribute and/or
any entity controlled by such family member or charity, or a trust, including, but not limited to,
a charitable remainder trust, for the exclusive benefit of the Shareholder, any immediate family
member of the Shareholder, any charity to which the Shareholder wishes to contribute and/or any
entity controlled by such trusts, in each case prior to the date specified in Section 3.01;
provided, further that prior to such transfer, the transferee shall agree in a
valid, binding and enforceable instrument to be bound by the terms hereof (a copy of which
instrument shall promptly be provided to Parent) and such transfer shall not relieve the
Shareholder of any of his or her obligations hereunder. Any attempted sale, transfer, pledge,
assignment or other disposition of any Shares or any interest therein in violation of this Section
2.01 shall be null and void ab initio.
2.02 Adjustments.
(a) In the event of any stock dividend, stock split, recapitalization, reclassification,
combination or exchange of shares of capital stock or other securities of the Company on, of or
affecting the Shares or the like or any other action that would have the effect of changing the
Shareholder’s ownership of Company Common Stock or other securities of the Company, then the terms
of this Agreement will apply to the shares of capital stock or any other equity interest in the
Company held by the Shareholder immediately following the effectiveness of such events as though
they were Shares hereunder.
(b) The Shareholder hereby agrees, while this Agreement is in effect, to promptly notify
Parent of the number of any new shares of Company Common Stock acquired by the Shareholder, if any,
after the date hereof.
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ARTICLE 3
3.01 Tender of Shares. The Shareholder will validly tender (or cause the record owner
of such Shares to validly tender) into the Offer (and not withdraw) and sell, pursuant to and in
accordance with the terms of the Offer and the Offer Documents, the Shares not later than the tenth
Business Day after commencement of the Offer, or with respect to any Shares acquired after such
date, prior to the expiration of the Offer. In furtherance and without limiting the generality of
the foregoing, no later than the tenth Business Day after the commencement of the Offer, the
Shareholder shall (i) deliver or cause to be delivered to the depositary designated in the Offer
Documents (A) a letter of transmittal with respect to his or her Shares in the form included in the
Offer Documents and otherwise complying with the terms of the Offer, (B) any certificates
representing his or her Shares or an “agent’s message” (or such other evidence, if any, of transfer
the depositary may reasonably request) in the case of book-entry transfer of any Shares and (C) any
and all other documents or instruments required to be delivered pursuant to the terms of the Offer
or the Offer Documents, (ii) instruct and cause any other Person who is the holder of record of any
Shares beneficially owned by the Shareholder (including the Shareholder’s broker) to validly tender
into the Offer (and not withdraw) and sell such Shares pursuant to and in accordance with the terms
and conditions of the Offer and the Offer Documents and (iii) take any and all other actions
reasonably necessary to accomplish the foregoing. Merger Sub shall pay the Shareholder for any
Shares validly tendered into the Offer (and not withdrawn) on the Expiration Date pursuant to the
Offer in accordance with the provisions of the Merger Agreement. Upon the purchase of all the
Shares by Merger Sub pursuant to the Offer in accordance with this Section 3.01, this Agreement
will automatically terminate without any notice or other action required by any of the parties
hereto, in accordance with Section 4.01 hereof. In the event that, notwithstanding the provisions
of the first sentence of this Section 3.01, any Shares are for any reason not purchased pursuant to
the Offer, such Shares will remain subject to the terms of this Agreement. The Shareholder
acknowledges that Merger Sub’s obligation to accept for payment and pay for the Shares in the Offer
is subject to all the terms and conditions of the Offer. Notwithstanding anything in this
Agreement to the contrary, nothing herein shall require the Shareholder to exercise any Company
Stock Option to purchase shares of Company Common Stock.
3.02 Voting Agreement. The Shareholder, by this Agreement, does hereby constitute and
appoint Parent and Merger Sub, or any nominee thereof, with full power of substitution, during and
for the term of this Agreement, as the Shareholder’s true and lawful attorney and proxy for and in
the Shareholder’s name, place and stead, to vote all the Shares that the Shareholder beneficially
owns at the time of such vote, at any annual, special, postponed or adjourned meeting of the
shareholders of the Company or to grant a consent or approval in respect of the Shares in any
written consent in lieu of such a meeting (and to appear at each such meeting or otherwise cause
all of the Shares to be counted as present thereat for purposes of calculating a quorum) (a) in
favor of approval and adoption of the Merger Agreement (including, for purposes of this proxy, as
it may be modified or amended from time to time), the approval of the Merger and the other
transactions contemplated by the Merger Agreement, the other transactions contemplated thereby and
any other matter that must be approved by the shareholders of the Company in order for the
transactions contemplated by the Merger Agreement to be consummated, (b) in favor of any
adjournment or postponement recommended by the Company with respect to any shareholder meeting with
respect to the Merger Agreement
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and the Merger and (c) against (w) any Takeover Proposal or any proposal relating to any
Takeover Proposal, (x) any merger (other than the Merger), consolidation or other business
combination involving the Company or its Subsidiaries or a reorganization, recapitalization,
dissolution or liquidation of the Company or its Subsidiaries, (y) to the extent submitted to a
shareholder vote, any change in the business, management or Board of Directors of the Company
(other than as directed by Parent, Merger Sub or any Parent Subsidiary) or (z) any other action,
proposal or agreement that would (1) reasonably be expected, to impede, interfere with, materially
delay or postpone the Merger and the other transactions contemplated by the Merger Agreement, (2)
result in a breach in any respect of any covenant, representation or warranty, or any other
obligation or agreement of the Company under the Merger Agreement, (3) result in any of the
conditions set forth in Article VII or Exhibit A of the Merger Agreement not being fulfilled or
satisfied or (4) change in any manner the dividend policy or capitalization of, including the
voting rights of any class of equity interests in, the Company. The Shareholder shall not commit
or agree to take any action inconsistent with the foregoing. This proxy and power of attorney is a
proxy and power coupled with an interest, and the Shareholder declares that it is irrevocable
during and for the term of this Agreement and that such proxy shall be revoked automatically,
without any notice or other action by any Person, upon termination of this Agreement in accordance
with its terms. The Shareholder hereby represents to Parent and Merger Sub that any proxies
heretofore given in respect of the Shares are not irrevocable and hereby revokes all and any other
proxies with respect to the Shares that the Shareholder may have heretofore made or granted. The
Shareholder hereby ratifies and confirms all that this proxy may lawfully do or cause to be done by
virtue hereof. Without limiting the generality of the foregoing, this proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 7613 of the California
Corporations Code. For the avoidance of doubt, if for any reason this proxy is not irrevocable,
the Shareholder shall vote his or her Shares in accordance with this Section 3.02. For Shares as
to which the Shareholder is the beneficial but not the record owner, the Shareholder shall use the
Shareholder’s reasonable best efforts to cause the record owner of any such Shares to grant to
Parent and Merger Sub a proxy to the same effect as that contained herein.
3.03 Non-Solicitation. Except as set forth in Section 4.05 hereof, the Shareholder
hereby agrees that the Shareholder shall not, nor shall it authorize any of his or her controlled
Affiliates’ directors, officers, employees, investment bankers, attorneys, accountants or other
advisors or representatives (collectively, his or her “Representatives”) to, directly or
indirectly, (a) solicit, initiate, propose or encourage, or take any other action to knowingly
facilitate, any Takeover Proposal or any inquiries or offers or the making of any proposal or any
other effort or attempt that could reasonably be expected to lead to a Takeover Proposal, (b) enter
into, continue or otherwise participate in any communications or negotiations regarding, or furnish
to any Person any information with respect to, or otherwise knowingly cooperate in any way with any
Person with respect to, any Takeover Proposal or any inquiries or offers or the making of any
proposal or any other efforts or attempt that could reasonably be expected to lead to a Takeover
Proposal, (c) approve or recommend, or publicly propose to approve or recommend, any Takeover
Proposal, (d) make any statement or proposal inconsistent with the Company Recommendation or (e)
enter into any Acquisition Agreement constituting or relating to, or which is intended to or is
reasonably likely to lead to, any Takeover Proposal or enter into any agreement or agreement in
principle requiring the Shareholder to abandon, terminate or breach his or her obligations
hereunder or fail to consummate the transactions contemplated hereby.
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The Shareholder shall, and shall direct his or her Representatives to, immediately cease and
cause to be terminated all existing communications and negotiations with any Person conducted prior
to the execution of this Agreement by or on behalf of the Shareholder or any of his or her
Representatives with respect to any Takeover Proposal. The Shareholder shall as promptly as
possible (and in any event within 24 hours) (i) notify Parent of the identity of any Person
approaching the Shareholder with a Takeover Proposal or indication by any Person that it is
considering making a Takeover Proposal and (ii) provide Parent a copy of any such Takeover Proposal
(or, where no such copy is available, a reasonably detailed description of such Takeover Proposal,
indication, inquiry or request), including draft agreements or term sheets submitted in connection
therewith (or, where no such copy is available, a reasonably detailed description of such Takeover
Proposal, including any modifications thereto), unless, in each case, the Company has previously
provided such notice and such copy to Parent. Any violation of the foregoing restrictions by any
controlled Affiliate of the Shareholder (other than the Company) or any of the Shareholder’s or his
or her controlled Affiliates’ Representatives (other than the Company’s Representatives) shall be
deemed to be a breach of this Section 3.03 by the Shareholder.
3.04 Waiver of Appraisal and Dissenters’ Rights and Actions. The Shareholder hereby
(a) waives and agrees not to exercise any rights of appraisal or rights to dissent from the Merger
that the Shareholder may have and (b) agrees not to commence or join in, and agrees to take all
actions necessary to opt out of any class in any class action with respect to, any claim, suit,
action or proceeding, derivative or otherwise, against Parent, Merger Sub, the Company or any of
their respective successors relating to the negotiation, execution or delivery of this Agreement or
the Merger Agreement or the consummation of the Offer or the Merger, including any claim, suit,
action or proceeding (i) challenging the validity of, or seeking to enjoin the operation of, any
provision of this Agreement or the Merger Agreement or (ii) alleging a breach of any fiduciary duty
of any person in connection with the Merger Agreement or the transactions contemplated thereby.
ARTICLE 4
4.01 Termination. This Agreement will automatically terminate without any notice or
other action by any of the parties hereto upon the earliest to occur of (a) the purchase of all of
the Shares pursuant to the Offer in accordance with Section 3.01, (b) the Effective Time, (c) the
date the Merger Agreement is terminated in accordance with its terms, and (d) the mutual consent of
the Shareholder and Parent; provided, that nothing herein shall relieve any party hereto
from liability for any breach of this Agreement and this Section 4.01 and Section 4.06 shall
survive any termination of this Agreement.
4.02 Expenses. Except as may otherwise be specifically provided herein, all costs and
expenses incurred in connection with this Agreement and the transactions contemplated hereby will
be paid by the party incurring such expenses, whether or not the Offer or the Merger is
consummated.
4.03 Further Assurances. Subject to the terms and conditions of this Agreement, each
of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable
Laws to consummate and make effective the transactions contemplated hereby. Each party hereto will
execute and deliver all such further instruments, documents and agreements and take
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all such further action as may be necessary or desirable in order to consummate the
transactions contemplated hereby. The Stockholder shall notify Parent in writing of any
development occurring after the date hereof that causes, or that would reasonably be expected to
cause, any breach of any of the representations, warranties, covenants or agreements of the
Stockholder set forth herein.
4.04 Press Releases. Unless required by applicable Law, the Shareholder shall not,
and shall cause his or her Representatives not to, issue any press release, public announcement or
other communication with respect to the business or affairs of the Company, Parent or Merger Sub,
including with respect to this Agreement and the Merger Agreement and the transactions contemplated
hereby and thereby, without the prior written consent of Parent.
4.05 Shareholder Capacity. No person executing this Agreement, or any Representative
of such person, who is or becomes during the term of this Agreement a director or officer of the
Company shall be deemed to make any agreement or understanding in this Agreement in such person’s
capacity as a director or officer. The Shareholder is entering into this Agreement solely in the
Shareholder’s capacity as the owner of the Shares (beneficially and in any other capacity) and
nothing herein shall in any way restrict or limit the Shareholder from taking (or omitting to take)
any action solely in the Shareholder’s capacity as a director or officer of the Company (including,
without limitation, pursuant to Section 5.2 of the Merger Agreement) or otherwise fulfilling the
Shareholder’s fiduciary obligations as a director or officer of the Company, in each case subject
to the limitations set forth in the Merger Agreement.
4.06 Miscellaneous.
(a) In furtherance of this Agreement, the Shareholder hereby authorizes and instructs the
Company (including through the Company’s transfer agent) to enter a stop transfer order at and upon
the direction of Parent with respect to all of his or her Shares and to legend the certificates
evidencing the Shares. The Shareholder agrees that, to the extent requested by Parent, it shall
authorize and instruct the Company as promptly as practicable following such request (i) to make a
notation on his or her records and give instructions to the transfer agent for any Shares not to
permit, during the term of this Agreement, the transfer of such Shares and (ii) to place (or cause
the transfer agent for such Shares to place) on any certificates evidencing such Shares a legend
stating that such Shares are subject to this Agreement.
(b) Any provision of this Agreement may be (i) waived by the party benefited by the provision,
but only in writing, or (ii) amended or modified at any time, but only by a written agreement
executed in the same manner as this Agreement. The failure or delay by any party to this Agreement
to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such
rights nor shall any single or partial exercise by any party to this Agreement of any of its rights
under this Agreement preclude any other or further exercise of such rights or any other rights
under this Agreement.
(c) This Agreement constitutes the final, exclusive and entire agreement and supersedes all
prior agreements and understandings, both written and oral, among the parties hereto with respect
to the subject matter of this Agreement. This Agreement is not intended to and does not confer
upon any Person other than the parties hereto (and their respective
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successors and permitted assigns) any rights (legal, equitable or otherwise) or remedies,
whether as third party beneficiaries or otherwise.
(d) 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 conflicts of Laws thereof or that would cause the Laws of any jurisdiction other than the State
of Delaware to apply. Each of the parties hereto irrevocably and unconditionally submits to the
exclusive jurisdiction of the Delaware Court of Chancery (and if the Delaware Court of Chancery
shall be unavailable, in any Delaware State court or the Federal court of the United States of
America sitting in the State of Delaware) for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated by this Agreement (and agrees that no
such action, suit or proceeding relating to this Agreement shall be brought by it or any of its
Subsidiaries except in such courts). Each of the parties further agrees that, to the fullest
extent permitted by applicable Law, service of any process, summons, notice or document by U.S.
registered mail to such Person’s respective address set forth above shall be effective service of
process for any action, suit or proceeding in the State of Delaware with respect to any matters to
which it has submitted to jurisdiction as set forth above in the immediately preceding sentence.
Each of the parties hereto irrevocably and unconditionally waives (and agrees not to plead or
claim) any objection to the laying of venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated by this Agreement in the Delaware Court of Chancery (and
if the Delaware Court of Chancery shall be unavailable, in any Delaware State court or the Federal
court of the United States of America sitting in the State of Delaware) or that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient forum.
(e) Each party hereto hereby knowingly and voluntarily waives, to the fullest extent permitted
by applicable Law, any right it may have to a trial by jury in respect of any suit, action or other
proceeding directly or indirectly arising out of, under or in connection with this Agreement. Each
party hereto (i) certifies that no representative of any other party has represented, expressly or
otherwise, that such party would not, in the event of any action, suit or proceeding, seek to
enforce the foregoing waiver and (ii) acknowledges that he or it and the other parties hereto have
been induced to enter into this Agreement, by, among other things, the mutual waiver and
certifications in this Section 4.06(e).
(f) The Section headings contained in this Agreement are for reference purposes only and do
not limit or otherwise affect any of the substance of this Agreement.
(g) All notices or other communications required or permitted to be given hereunder shall be
in writing and shall be delivered by hand or sent by facsimile or sent, postage prepaid, by
registered, certified or express mail or reputable overnight courier service and shall be deemed
given when so delivered by hand or sent by facsimile, or if mailed, three days after mailing (one
Business Day in the case of express mail or overnight courier service), as follows (or at such
other address for a party as shall be specified by notice given in accordance with this Section
4.06(g)):
If to the Shareholder to the address set forth on the signature page hereto.
If to Parent or Merger Sub, to:
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Raytheon Company
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxx X. Xxxxxxxx, Senior Vice President, General Counsel and Secretary
with a copy to:
Hunton & Xxxxxxxx LLP
Riverfront Plaza, East Tower
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Riverfront Plaza, East Tower
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
(h) This Agreement may be executed in one or more counterparts (including by facsimile), all
of which shall be considered one and the same agreement and shall become effective when one or more
such counterparts have been signed by each of the parties and delivered to the other parties.
(i) Neither this Agreement nor any of the rights, interests or obligations hereunder shall be
assigned, in whole or in part, by operation of Law or otherwise by any of the parties without the
prior written consent of the other parties, except that Merger Sub may assign, in its sole
discretion, any of or all its rights, interests and obligations under this Agreement to Parent or
to any direct or indirect wholly-owned Subsidiary of Parent, but no such assignment shall relieve
Merger Sub of any of its obligations hereunder. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns
(j) The parties 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. It is accordingly agreed that the parties hereto shall be entitled to seek and
obtain an injunction or injunctions to prevent breaches of this Agreement and a decree or order to
enforce specifically the terms and provisions of this Agreement in the Delaware Court of Chancery
(and if the Delaware Court of Chancery shall be unavailable, in any Delaware State court or the
Federal court of the United States of America sitting 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 agrees
that it will not oppose the granting of an injunction, specific performance or other equitable
relief on the basis that the party seeking such injunction, specific performance or other equitable
relief has an adequate remedy at law or that any award of specific performance is not an
appropriate remedy for any reason at law or equity. In the event that any party seeks an
injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the
terms and provisions of this Agreement, such party shall not be required to provide any bond or
other security in connection with any such injunction or other Judgment.
10
(k) All rights, powers and remedies provided under this Agreement or otherwise available in
respect hereof at law or in equity will be cumulative and not alternative, and the exercise of any
thereof by any party will not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
(l) If any provision of this Agreement or the application of any such provision to any Person
or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of
competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other
provision hereof.
[Signatures on following page]
11
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first
above written.
| RAYTHEON COMPANY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| RN ACQUISITION COMPANY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
SHAREHOLDER
Number of Shares:
Number of Company Stock Options:
Number of Company Restricted Shares:
Number of Company Stock Options:
Number of Company Restricted Shares:
Address:
2
