Contract
Exhibit
99.2
This
STOCKHOLDER
VOTING
AGREEMENT (this “Agreement”), dated as of December 21, 2007, is
by and between BAE Systems, Inc., a Delaware corporation (“Parent”),
Xxxxxx X. Xxxx (the “Individual Stockholder”) and Xxxxx Enterprises Limited
Partnership III (together with the Individual Stockholder, each, a
“Stockholder” and collectively, the “Stockholders”).
WHEREAS,
Parent, Mira Acquisition Sub
Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger
Sub”), and MTC Technologies, Inc., a Delaware corporation (the
“Company”), propose to enter into an Agreement and Plan of Merger, dated
as of the date hereof (as the same may be amended or supplemented, the
“Merger Agreement”; capitalized terms used but not defined herein shall
have the meanings set forth in the Merger Agreement), providing for the merger
of Merger Sub with and into the Company;
WHEREAS,
each Stockholder owns the
number of Shares set forth opposite such Stockholder’s name on Schedule A
hereto (such Shares together with any other capital stock of the Company,
including New Shares, acquired by each Stockholder after the date hereof
and
during the term of this Agreement, being collectively referred to herein,
with
respect to the applicable Shareholder, as the “Subject Shares”);
and
WHEREAS,
as a condition to their
willingness to enter into the Merger Agreement, Parent and Merger Sub have
requested that the Stockholders enter into this Agreement.
NOW,
THEREFORE, the parties hereto
agree as follows:
SECTION
1.
Representations and Warranties of the Stockholders. Each
Stockholder jointly and severally hereby represents and warrants to Parent
as of
the date hereof as follows:
(a) Authority;
Execution and Delivery; Enforceability. If such Stockholder is
not a natural person, such stockholder is duly organized, validly existing
and
in good standing under the laws of the jurisdiction in which it is organized
and
the execution and delivery by such Stockholder of this Agreement and the
performance of its obligations hereunder and compliance with the terms hereof
have been duly authorized by all necessary action on the part of such
Stockholder, its governing body, members, shareholders and trustees, as
applicable. Such Stockholder has all requisite power and authority to
execute this Agreement and to consummate the transactions contemplated
hereby. Such Stockholder has duly executed and delivered this
Agreement, and, assuming due authorization, execution and delivery by Parent,
this Agreement constitutes the valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms. If
such Stockholder is not a natural person, each of the persons executing this
Agreement on behalf of such Stockholder has full power and authority to execute
and deliver this Agreement on behalf of such Stockholder and to thereby bind
such Stockholder. If such Stockholder is married and the Subject
Shares of such Stockholder constitute community property or if spousal or
other
approval is required for this Agreement to be legal, valid and binding, this
Agreement has been duly authorized, executed and delivered by, and constitutes
a
valid and binding agreement of, the Stockholder’s spouse, enforceable against
such spouse in accordance with its terms. The execution, delivery and
performance of this Agreement by such Stockholder do not, and the consummation
of the transactions contemplated hereby and compliance with
the
terms
hereof will not, conflict with, or result in any violation of, or default
(with
or without notice or lapse of time, or both) under, or give rise to a right
of,
or result in, termination, amendment, cancelation or acceleration of any
obligation or to loss of a material benefit under, or to increased, additional,
accelerated or guaranteed rights or entitlements of any Person under, or
result
in the creation of any Encumbrance upon any of the Subject Shares under,
(A) any
provision of any written contract, permit, license, loan or credit agreement,
note, bond, mortgage, indenture, lease or other property agreement, partnership
or joint venture agreement or other legally binding agreement, (each, a
“Contract”) to which such Stockholder is a party or by which any Subject
Shares are bound, (B) if such Stockholder is not a natural person, any trust
or
other organizational document of such Stockholder, or (C) subject to the
filings
and other matters referred to in the next sentence, any Order or any Law
applicable to the Subject Shares. No consent, approval, order or
authorization (collectively, “Consent”) of, or registration, declaration
or filing with, any Governmental Entity or other Person (including with respect
to natural persons, any spouse, and with respect to trusts, any co-trustee
or
beneficiary) is required to be obtained or made by or with respect to such
Stockholder in connection with the execution, delivery and performance of
this
Agreement or the consummation of the transactions contemplated hereby other
than
compliance with and filings under the HSR Act, if applicable.
(b) The
Subject Shares. Such Stockholder is the record and beneficial
owner of, or is the trustee of a trust that is the record holder of, the
Subject
Shares set forth opposite such Stockholder’s name on Schedule A hereto,
free and clear of any Encumbrances. Except as set forth on
Schedule A, such Stockholder does not: (i) own beneficially or
of record, or have the right to acquire, any Shares or any shares of capital
stock or other equity interests or voting securities of the Company, (ii)
have
any other interest in any Shares or any shares of capital stock or other
equity
interests or voting securities of the Company or (iii) have any voting rights
with respect to any Shares or any shares of capital stock or other equity
interests or voting securities of the Company. Such Stockholder has
the sole right to vote the Subject Shares and has not given any proxies with
respect to any of the Subject Shares, and none of the Subject Shares is subject
to any voting trust or other agreement, arrangement or restriction with respect
to the voting of the Subject Shares, except as contemplated by this
Agreement.
(c) Information. None
of the information relating to such Stockholder provided by or on behalf
of such
Stockholder for including in the Proxy Statement or any filing required to
be
made with the SEC by the Company or Parent will, at the respective times
such
documents are filed with the SEC, are first published, sent or given to
shareholders, at the time of any amendment or supplement of such documents
and
at the time of the Special Meeting, contain any untrue statement of material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
SECTION
2.
Representations and Warranties of Parent. Parent hereby
represents and warrants to each Stockholder as follows: Parent has
all requisite corporate power and authority to execute this Agreement and
to
consummate the transactions contemplated hereby. The execution and
delivery by Parent of this Agreement and consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on
the
part of Parent. Parent has duly executed and delivered this
Agreement, and, assuming due authorization, execution and delivery by each
Stockholder, this Agreement constitutes the valid and binding obligation
of
Parent, enforceable against Parent in accordance with its terms. The
execution and delivery by Parent of this Agreement do not, and the consummation
of the transactions contemplated hereby and compliance with the terms hereof
will not, conflict with, or result in any violation of, or default (with
or
without notice or lapse of time, or both) under, or give rise to a right
of
termination, cancelation or acceleration of any obligation or to loss of
a
material benefit under, or to increased, additional, accelerated or guaranteed
rights or entitlements of any Person under, or result in the creation of
any
Encumbrance upon any of the properties or assets of Parent under, the
organizational documents of Parent, any provision of any Contract to which
Parent is a party or by which any properties or assets of Parent are bound
or,
subject to the filings and other matters referred to in the next sentence,
any
provision of any Order or any Law applicable to Parent or the properties
or
assets of Parent. No Consent of, or registration, declaration or
filing with, any Governmental Entity or other Person is required to be obtained
or made by or with respect to Parent in connection with the execution, delivery
and performance of this Agreement or the consummation of the transactions
contemplated hereby, other than as contemplated by the Merger
Agreement.
2
SECTION
3. Covenants of the Stockholders. Each
Stockholder covenants and agrees as follows:
(a) (1) At
any meeting of the stockholders of the Company, or at any postponement or
adjournment thereof, called to seek the affirmative vote of the holders of
a
majority of the outstanding Shares to adopt the Merger Agreement (the
“Requisite Stockholder Vote”) or in any other circumstances upon which a
vote, consent or other approval (including by written consent) with respect
to
the Merger Agreement, the Merger or other Transactions is sought, such
Stockholder shall vote (or cause to be voted or provide written consent with
respect to) the Subject Shares in favor of granting the Requisite Stockholder
Vote.
|
|
(2)
|
IRREVOCABLE
PROXY. Each Stockholder hereby irrevocably grants to, and
appoints, Parent, Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx, or any of
them, and any individual designated in writing by any of them,
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 and stead
of such
Stockholder, to vote the Subject Shares, or grant a consent or
approval in
respect of the Subject Shares in a manner consistent with this
Section
3. Each Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon such
Stockholder’s execution and delivery of this Agreement. Each
Stockholder hereby affirms that the irrevocable proxy set forth
in this
Section 3(a)(2) is given in connection with the execution of the
Merger Agreement and is therefore coupled with an
interest. Each Stockholder hereby further affirms that the
irrevocable proxy may under no circumstances be revoked. Such
irrevocable proxy is executed and intended to be irrevocable in
accordance
with the provisions of Section 212 of the DGCL. The irrevocable
proxy granted hereunder shall automatically terminate upon the
termination
of this Agreement in accordance with its
terms.
|
(b) At
any meeting of stockholders of the Company or at any postponement or adjournment
thereof or in any other circumstances upon which each Stockholder’s vote,
consent or other approval (including by written consent) is sought, each
Stockholder shall vote (or cause to be voted) the Subject Shares against
and
withhold consent with respect to (i) any merger agreement or merger (other
than
the Merger Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by the Company, (ii) any Company Takeover Proposal, and
(iii) any other action, agreement or transaction that would reasonably be
expected to result in a breach of any covenant, representation or warranty
or
any other obligation or agreement of the Company contained in the Merger
Agreement or of the Stockholders contained in this Agreement or that would
impede, interfere or be inconsistent with, delay, postpone, discourage or
adversely affect the timely consummation the Merger. Each Stockholder
shall not commit or agree to take any action inconsistent with the
foregoing.
(c) Other
than this Agreement, each Stockholder shall not (i) sell, transfer, exchange,
pledge, assign, hypothecate, encumber, or tender or otherwise create an
Encumbrance on or dispose of (including by gift) (collectively,
“Transfer”), or enter into any Contract, option or other arrangement
(including any profit sharing arrangement) with respect to the Transfer of,
any
Subject Shares or any rights to acquire any securities or equity interests
of
the Company to any Person other than (I) pursuant to the Merger Agreement
or
(II) the Transfer by the Individual Stockholder to a non-profit family
foundation controlled by the Individual Stockholder, subject to the conditions
that such Individual Stockholder retains all voting rights over such Subject
Shares after such Transfer and such foundation agrees to be bound by all
obligations of a Stockholder hereunder as if named as a party hereto or (ii)
grant any proxies or enter into any voting trust or other agreement or
arrangement, whether by proxy, voting agreement or otherwise, with respect
to
any Subject Shares or any rights to acquire any securities or equity interests
of the Company and shall not commit or agree to take any of the foregoing
actions. As used in this Agreement, the term “Transfer,” shall
also include any pledge, hypothecation, encumbrance, assignment or other
disposition of such security or the record or beneficial ownership thereof,
the
offer to make a sale, transfer or other disposition, and each agreement,
arrangement or understanding whether or not in writing, to effect any of
the
foregoing.
3
(d) Each
Stockholder hereby consents to and approves the actions taken by the Company
Board in approving the Merger. Each Stockholder hereby waives, and
agrees not to exercise or assert, any appraisal rights under Section 262
of the
DGCL in connection with the Merger.
(e) Each
Stockholder hereby agrees that, in the event (i) of any stock dividend, stock
split, recapitalization, reclassification, combination or exchange of shares
of
capital stock of the Company of, or affecting, the Subject Shares, (ii) that
such Stockholder purchases or otherwise acquires beneficial ownership of
or an
interest in any shares of capital stock of the Company after the execution
of
this Agreement (including by conversion) or (iii) that such Stockholder
voluntarily acquires the right to vote or share in the voting of any shares
of
capital stock of the Company other than the Subject Shares (collectively,
the
“New Shares”), such Stockholder shall deliver promptly to Parent written
notice of its acquisition of New Shares which notice shall state the number
of
New Shares so acquired. Each Stockholder agrees that any New Shares
acquired or purchased by such Stockholder shall be subject to the terms of
this
Agreement, including the representations and warranties set forth in Section
1, and shall constitute Subject Shares to the same extent as if those
New
Shares were owned by such Stockholder on the date of this
Agreement.
(f) Each
Stockholder agrees that it will not, and will not authorize, permit or cause
its
Representatives and agents to, directly or indirectly: (i) solicit,
initiate, facilitate or encourage the submission of any Company Takeover
Proposal, (ii) enter into any agreement with respect to any Company
Takeover Proposal, or resolve, agree or propose to take any such action or
(iii)
provide any non-public information regarding the Company to any third party
or
engage in any negotiations or discussions in connection with, or otherwise
cooperate in any way with, any Company Takeover Proposal. Each
Stockholder shall, and shall cause its Representatives to, immediately cease
and
cause to be terminated any existing activities, discussions or negotiations
with
any person conducted heretofore with respect to any Company Takeover
Proposal. Each Stockholder shall promptly (but in no case later than
24 hours after receipt) advise Parent, orally and in writing, of the receipt
of
any Company Takeover Proposal and of the price and other material terms and
conditions of any such Company Takeover Proposal (including the identity
of the
Person making such Company Takeover Proposal) and of any changes or supplements
thereto. The provisions of this Section 3(f) shall not limit,
prohibit or restrict in any manner any Stockholder, or any director, officer,
employee, investment banker, financial advisor or other representative or
agent
of any Stockholder, who is also a director, officer, employee, investment
banker, financial advisor or other representative or agent of the Company
or any
of its Subsidiaries from taking actions permitted by the Merger Agreement
in
connection with performing his duties (including fiduciary duties) as a
director, officer, employee, investment banker, financial advisor or other
representative or agent of the Company.
(g) Such
Stockholder shall not issue any press release or make any other public statement
with respect to the Merger or the Transactions without the prior consent
of
Parent, except as may be required by applicable Law or court process after
consultation with, and having provided an opportunity for review and comment
on
such press release or other public statement by Parent.
(h) Each
Stockholder agrees that (i) all contracts or other agreements to which such
Stockholder is a party that are listed in Section 3.21 of the Company Disclosure
Letter shall terminate immediately prior to the Closing without the payment
of
any fees, expenses or other amounts thereunder, other than as disclosed in
Section 5.1(b) of the Company Disclosure Letter, (ii) any contracts or other
agreements to which such Stockholder is a party that would be required to
be
included in Section 3.21 of the Company Disclosure Letter but were not listed
therein shall, at Parent’s option, terminate immediately prior to the Closing
without the payment of any fees, expenses or other amounts thereunder and
(iii)
the Company shall not make any payments or commit or agree to make any payments
under any contract or agreement described in (i) and (ii) between the date
of
this Agreement and the Closing, other than as disclosed in Section 5.1(b)
of the
Company Disclosure Letter.
4
SECTION
4.
Additional Payments.
(a) If
the Merger Agreement is terminated in circumstances under which Parent is
or may
become entitled to a payment under Section 8.2(b) of the Merger Agreement
and
either the Company or any of its Subsidiaries has entered into or enters
into a
definitive agreement with respect to any Company Takeover Proposal or the
transactions contemplated by any Company Takeover Proposal are consummated
within 12 months of such termination, then subject to consummation of such
Company Takeover Proposal (or another Company Takeover Proposal consummated
in
lieu of such Company Takeover Proposal), the Stockholders shall jointly and
severally pay to Parent an amount in cash equal to 50% of the Excess Profit
(as
defined below), if any, of the Stockholders from such consummated Company
Takeover Proposal. Any payment of Excess Profit under this Section
4(a) shall be paid within two Business Days after consummation of the applicable
Company Takeover Proposal by wire transfer of same day funds to an account
designated by Parent to the extent the Stockholder receives cash in an amount
equal to or greater than the Excess Profit from the consummation of such
Company
Takeover Proposal. To the extent the Stockholder does not receive
cash in an amount equal to or greater than the Excess Profit from the
consummation of such Company Takeover Proposal, the Excess Profit paid under
this Section 4(a) shall be paid within five Business Days after consummation
of
such Company Takeover Proposal by wire transfer of same day funds to an account
designated by Parent or within two Business Days of the determination of
Fair
Market Value pursuant to Section 4(c) below, if later.
(b) For
purposes of this Section 4, the “Excess Profit” of any Stockholder from any
Company Takeover Proposal (including as a result of any amendment to the
Merger
Agreement) shall equal, if positive, the product of (i)(A) the aggregate
consideration received by such Stockholder pursuant to such Company Takeover
Proposal, valuing any non-cash consideration (including any residual interest
in
the Company or its Subsidiaries retained immediately following consummation
of
such Company Takeover Proposal) at its Fair Market Value (as defined below)
on
the date of such consummation, minus (B) $24.00, and (ii) the number of Subject
Shares set forth opposite such Stockholder's name on Schedule A hereto plus
the
number of New Shares.
(c) For
purposes of this Section 4, the Fair Market Value of any non-cash consideration
consisting of:
(i) securities
listed or quoted on a national or international securities exchange or quotation
system shall be equal to the average closing price per share of such security
as
reported on such exchange for the five trading days prior to the date of
determination; and
(ii) consideration
which is other than securities of the form specified in clause (i) above
shall
be determined by a nationally recognized independent investment banking firm
mutually agreed upon by the parties within five Business Days of the event
requiring selection of such banking firm; provided, however, that if the
parties
are unable to agree within five Business Days after the date of such event
as to
the investment banking firm, then the parties shall each select one firm,
and
those firms shall within five Business Days select a third investment banking
firm, which third firm shall make such determination, provided further, that
the
reasonable and customary fees and expenses of all such investment banking
firms
shall be borne equally by Parent, on the one hand, and the Stockholders,
on the
other hand. The determination of the Fair Market Value of any
non-cash consideration by the investment banking firm shall be binding upon
the
parties.
5
SECTION
5.
Termination. Except for Section 4 hereof which shall
terminate upon the expiration of all rights of Parent thereunder, this Agreement
(including the irrevocable proxy granted in Section 3(a)(2)) shall terminate
upon the earliest of (i) the Effective Time and (ii) the termination
of the Merger Agreement in accordance with its terms. No party hereto
shall be relieved from any liability for any intentional breach of this
Agreement prior to any such termination.
SECTION
6.
Additional Matters. Each Stockholder shall, from time to time,
execute and deliver, or cause to be executed and delivered, such additional
or
further consents, documents and other instruments as Parent may reasonably
request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
SECTION
7. General
Provisions.
(a) Amendments. This
Agreement may not be amended except by an instrument in writing signed by
each
of the parties hereto.
(b) Notice. Any
and all notices or other communications or deliveries required or permitted
to
be provided hereunder shall be in writing and provided by facsimile, by a
nationally recognized overnight courier service or by registered mail and
shall
be deemed given and effective on the earliest of (i) the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section 7(b) prior to 5:00 p.m. (New
York City time) on a Business Day and a copy is sent on such Business Day
by
nationally recognized overnight courier service, (ii) the Business Day after
the
date of transmission, if such notice or communication is delivered via facsimile
at the facsimile telephone number specified in this Section 7(b) later
than 5:00 p.m. (New York time) on any date and earlier than 12 midnight (New
York City time) on the following date and a copy is sent no later than such
date
by nationally recognized overnight courier service, (iii) when received,
if sent
by nationally recognized overnight courier service (other than in the cases
of
clauses (i) and (ii) above), or (iv) upon actual receipt by the party to
whom
such notice is required to be given if sent by registered mail. The
address for such notices and communications shall be as follows:
if
to the Stockholders, to the
addresses set forth on Schedule A; and
if
to
Parent:
BAE
Systems, Inc.
0000
Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx,
XX 00000
Telephone
No.: (000)
000-0000
Facsimile
No.: (000) 000-0000
Attention: Xxxxxx
X. Xxxxxxx, Esq.
6
with
a copy to:
Cravath,
Swaine & Xxxxx
LLP
000
Xxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Telephone
No.: (000)
000-0000
Facsimile
No.:
(000) 000-0000
Attention: Xxxxxx
Xxxxxxxx, Esq.
(c) Other
Definitional and Interpretative Provisions. The words “hereof,”
“herein” and “hereunder” and words of like import used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of
this
Agreement. Terms defined in the singular in this Agreement shall also
include the plural and vice versa. The captions and headings herein
are included for convenience of reference only and shall be ignored in the
construction or interpretation hereof. References to Articles,
Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and
Schedules of this Agreement unless otherwise specified. Whenever the
words “include,” “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation,” whether or not
they are in fact followed by those words or words of like import. The
phrases “the date of this Agreement,” “the date hereof” and phrases of similar
import, unless the context otherwise requires, shall be deemed to refer to
the
date set forth in the Preamble. The word “extent” in the phrase “to
the extent” shall mean the degree to which a subject or other thing extends, and
such phrase shall not mean simply “if”. The word “will” shall be
construed to have the same meaning as the word “shall”. The term “or”
is not exclusive. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. If any ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden
of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
(d) Severability. Any
term or provision of this Agreement that is held by a court of competent
jurisdiction or other Governmental Entity to be invalid, void or unenforceable
in any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions of this Agreement or
the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction or other Governmental Entity declares that
any
term or provision of this Agreement is invalid, void or unenforceable, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible and the parties
agree
that the court asking such determination shall have the power to reduce the
scope, duration, area or applicability of the term or provision, to delete
specific words or phrases, or to replace any invalid, void or unenforceable
term
or provision with a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable
term
or provision.
(e) Counterparts. This
Agreement may be executed in two or more counterparts, each of which will
be
deemed an original but all of which will constitute one instrument.
7
(f) Entire
Agreement; No Third-Party Beneficiaries. This Agreement
(including the schedules and annexes to this Agreement) constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter of this
Agreement. Nothing herein, express or implied, is intended to or
shall confer upon any Person other than the parties to this Agreement and
their
permitted assigns any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
(g) Governing
Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Delaware without giving effect to
the
principles of conflicts of law of the Laws of the State of
Delaware.
(h) Assignment. Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned by any of the parties to this Agreement (whether
by
operation of Law or otherwise) without the prior written consent of the other
parties. Any attempted assignment in violation of this Section
7(h) shall be void. Subject to the foregoing, this Agreement will
be binding upon, inure to the benefit of and be enforceable by the parties
and
their respective successors and assigns.
(i) Specific
Enforcement. 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. The parties accordingly agree that the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement in
any
federal court located in the State of Delaware or a Delaware state court,
this
being in addition to any other remedy to which they are entitled at law or
in
equity.
(j) Consent
to Jurisdiction; Waiver of Jury Trial.
(1) Each
of the parties hereto (i) consents to submit itself to the personal
jurisdiction of the state and federal courts of the State of Delaware in
the
event that any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (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 hereby in any other
court.
(2) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED
IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK
TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED
THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY,
AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
7(j)(2).
8
(k) Expenses. All
fees, costs and expenses (including all legal, accounting, broker, finder
or
investment banker fees) incurred in connection with this Agreement and the
transactions contemplated hereby are to be paid by the party incurring such
fees, costs and expenses.
[Signatures
are on the following page(s)]
9
IN
WITNESS WHEREOF, each party has duly
executed this Agreement, all as of the date first written above.
| BAE SYSTEMS, INC. | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Name Xxxxxx X. Xxxxxxx | |||
| Title Senior Vice President and General Counsel | |||
IN
WITNESS WHEREOF, each party has duly
executed this Agreement, all as of the date first written above.
| Xxxxxx X. Xxxx | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxx | |
IN
WITNESS WHEREOF, each party has duly
executed this Agreement, all as of the date first written above.
| XXXXX ENTERPRISES LIMITED | |||
| PARTNERSHIP III, an Ohio limited partnership | |||
| By: Vimol, LLC, an Ohio limited liability company, | |||
| its general partner | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxx | |
| Name: Xxxxxx X. Xxxx | |||
| Title: Managing Member | |||
SCHEDULE
A
|
Name
and Address of Stockholder
|
Number
of Shares
Owned
as of the Date of the Agreement
|
|
Xxxxxx
X. Xxxx
|
1,716,6931
|
|
00
X. Xxxxx Xxxxxx
Xxxxx
000
Xxxxxx,
Xxxx 00000
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
|
|
|
Xxxxx
Enterprises Limited Partnership III
|
3,896,194
|
|
00
X. Xxxxx Xxxxxx
Xxxxx
000
Xxxxxx,
Xxxx 00000
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
Attention: Xxxxxx
X. Xxxx
|
|
|
Total
|
5,612,887
|
