FORM OF TENDER AND VOTING AGREEMENT
Exhibit 1
(EAGLE FAMILY)
FORM OF TENDER AND VOTING AGREEMENT
This TENDER AND VOTING AGREEMENT (this “Agreement”) dated September 20, 2009, among
Dell Inc., a Delaware corporation (“Parent”), DII — Holdings Inc., a Delaware corporation
and a direct wholly-owned subsidiary of Parent (“Merger Sub”), [STOCKHOLDER]
(“Stockholder”), and Xxxxx Systems Corporation, a Delaware corporation (“Company”).
WHEREAS, concurrently herewith, Parent, Merger Sub and the Company are entering into an
Agreement and Plan of Merger (as such agreement may hereafter be amended from time to time, the
“Merger Agreement), pursuant to which Merger Sub will be merged with and into the Company
(the “Merger”);
WHEREAS, in furtherance of the Merger, on the terms and subject to the conditions set forth in
the Merger Agreement, Merger Sub has agreed to commence an offer to purchase for cash all of the
issued and outstanding shares of the Common Stock, including all of the outstanding Shares
Beneficially Owned by Stockholder; and
WHEREAS, as a condition and material inducement to entering into the Merger Agreement, Parent
and Merger Sub have required that Stockholder agrees, and Stockholder has agreed, to enter into
this Agreement.
NOW, THEREFORE, in consideration of the premises and of the representations, warranties,
covenants and agreements contained herein, and intending to be legally bound hereby, the parties
agree as follows:
1. Definitions. For purposes of this Agreement:
(a) “Beneficially Own” or “Beneficial Ownership” with respect to any
securities shall mean having “beneficial ownership” of such securities (as determined pursuant to
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)),
including pursuant to any agreement, arrangement or understanding, whether or not in writing.
Without duplicative counting of the same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a “group” within the meaning of Section 13(d)(3) of the Exchange Act and
Rule 13d-5(b)(1) under the Exchange Act.
(b) Capitalized terms used and not defined herein and defined in the Merger Agreement have the
respective meanings ascribed to such terms in the Merger Agreement notwithstanding any termination
of the Merger Agreement.
2. Tender of Shares.
(a) Stockholder hereby agrees to validly tender or cause to be tendered to Merger Sub pursuant
to and in accordance with the terms of the Offer, not later than the 5th Business Day after
commencement of the Offer pursuant to Section 1.1 of the Merger
Agreement and Rule 14d-2 under the Exchange Act, the number of outstanding shares of Common
Stock set forth on Schedule I hereto (the “Existing Shares”), and not to withdraw the Existing
Shares, or cause the Existing Shares to be withdrawn, from the Offer at any time (except
following the termination or expiration of the Offer without Merger Sub purchasing all shares of
Common Stock tendered pursuant to the Offer in accordance with its terms). If Stockholder acquires
record ownership of any outstanding shares of Common Stock after the date hereof and prior to the
termination of this Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means of purchase,
dividend, distribution or otherwise (together with the Existing Shares, the “Shares”), Stockholder
shall validly tender or cause to be tendered to Merger Sub pursuant to and in accordance with the
Offer, not later than the 5th Business Day after commencement of the Offer pursuant to Section 1 of
the Merger Agreement and Rule 14d-2 of the Exchange Act or, if acquired later than such time, on or
before the 5th Business Day after such acquisition but in any event prior to the Expiration Date
and not withdraw such Shares, or cause such Shares to be withdrawn, from the Offer at any time
(except following the termination or expiration of the Offer without Merger Sub purchasing all
shares of Common Stock tendered pursuant to the Offer in accordance with its terms).
Notwithstanding anything in this Agreement to the contrary, nothing herein shall require
Stockholder to exercise any option to purchase shares of Common Stock or to tender any securities
not outstanding at the relevant time. Stockholder acknowledges that his, her or its obligations to
tender or cause to be tendered, and not to withdraw or cause to be withdrawn, the Shares to Merger
Sub contained herein require Stockholder to tender the Shares to Merger Sub in the event that
Parent or Merger Sub adjust the terms and conditions of the Merger Agreement in response to a
Superior Proposal pursuant to Parent’s and Merger Sub’s “match” rights under Section 5.3(c) of the
Merger Agreement; provided, that following any such adjustment to the Merger Agreement (1) the
terms and conditions of the Offer shall be no less favorable to Stockholder than as described in
the Merger Agreement on the date hereof and (2) the consideration paid to the Stockholder for
Shares tendered in the Offer is the highest consideration paid to any other holder of Common Stock
for shares of Common Stock tendered in the Offer; provided further, that the Stockholder’s
obligations to tender or cause to be tendered, and not to withdraw or cause to be withdrawn, the
Shares shall cease to be binding on the Stockholder in the event that Parent or Merger Sub adjusts
the terms and conditions of the Merger Agreement in any way other than as provided in items (1) and
(2) of the foregoing proviso. Notwithstanding anything in this Agreement to the contrary, any
shares acquired by Stockholder after the date hereof and prior to the termination of this Agreement
from any Person who is obligated under an agreement among such Person, Parent and Merger Sub, which
Agreement is substantially similar to this Agreement (a “Parallel Agreement”) that do not
constitute “Shares” under such Parallel Agreement shall not constitute Shares under this Agreement
for any purpose.
(b) Stockholder hereby acknowledges and agrees that the obligation of Merger Sub to accept for
payment and pay for any Shares in the Offer, including the Shares Beneficially Owned by
Stockholder, shall be subject to the terms and conditions of the Offer.
(c) Parent and Merger Sub shall return to Stockholder all materials tendered by Stockholder to
Merger Sub, promptly after the termination or expiration of the Offer without Merger Sub purchasing
all Shares of Common Stock tendered pursuant to the Offer in accordance with its terms.
(d) Stockholder hereby agrees to permit Parent and Merger Sub to publish and disclose in the
Offer Documents, and, if Company Stockholder Approval is required under
2
applicable Law, the Proxy
Statement (including all documents and schedules filed with the SEC), his, her or its identity and
ownership of Common Stock and the nature of his, her or its obligations, commitments, arrangements
and understandings under this Agreement.
3. Provisions Concerning Company Common Stock.
(a) Except as otherwise agreed to in writing by Parent in advance, during the term of this
Agreement, the Stockholder irrevocably agrees to vote (or cause to be voted) the Shares, whether
currently owned or hereafter acquired, at any meeting of the holders of Common Stock, however
called, or in connection with any written consent of the holders of Common Stock: (i) in favor of
the adoption of the Merger Agreement and the approval of the terms thereof, the approval of the
Merger and each of the other actions contemplated by the Merger Agreement and this Agreement and
any actions required in furtherance thereof and hereof; (ii) against the following actions,
agreements or transactions (other than the Merger, and the transactions contemplated by the Merger
Agreement): (A) any extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its Subsidiaries, (B) a sale, lease or
transfer of a material amount of assets of the Company or any of its Subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or any of its
Subsidiaries, (C) (1) any change in a majority of the persons who constitute the Board of
Directors, (2) any change in the present capitalization of the Company or any amendment of the
Certificate of Incorporation or Bylaws, (3) any other material change in the Company’s corporate
structure or business, or (4) any other action which, in the case of each of the matters referred
to in clauses (C) (1), (2) or (3) is intended or could reasonably be expected to impede, interfere
with, delay, postpone, discourage, frustrate the purpose of or adversely affect the Merger or the
other transactions contemplated by this Agreement and the Merger Agreement. Stockholder shall not
enter into any Contract with any Person, the effect of which would be inconsistent with or
violative of the provisions and agreements contained in this Section 3.
(b) Nothing contained in this Agreement shall in any way restrict or limit the Stockholder
from taking (or omitting to take) any action in his or her capacity as a director or officer of the
Company or otherwise fulfilling his or her fiduciary obligations as a director or officer of the
Company.
4. Other Covenants, Representations and Warranties. As of the date of this Agreement,
Stockholder hereby represents, warrants, covenants and agrees as follows:
(a) Ownership of Shares. Stockholder is the record and Beneficial Owner of the number
of Shares set forth on Schedule I hereof. Stockholder has good, valid and marketable title
to the Existing Shares and, immediately prior to the transfer of Shares to Merger Sub in the Offer
will have good, valid and marketable title to the Shares, in each case, free and clear of all
Encumbrances (other than Encumbrances created by the Merger Agreement or this Agreement and other
than restrictions on transfer under applicable securities laws). Without limiting the foregoing,
Stockholder has sole voting power and sole power to issue instructions with respect to the matters
set forth in Sections 2 and 3 hereof, sole power of disposition, sole power of
conversion, sole power to demand appraisal rights and sole power to enter into and perform all
of his, her or its obligations under this Agreement, in each case, with respect to all of the
Existing
3
Shares set forth on Schedule I hereto, with no limitations, qualifications or
restrictions on such rights. If Stockholder acquires Beneficial Ownership but not record
ownership, of any outstanding shares of Common Stock after the date hereof and prior to the
termination of this Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means of purchase, dividend
or distribution or otherwise, Stockholder shall (i) on or prior to the acquisition of Beneficial
Ownership of such shares or, if later, as soon as practicable after Stockholder has actual
knowledge that Stockholder has acquired Beneficial Ownership thereof, direct and use commercially
reasonable efforts to cause the record owner of such shares to agree in writing to be bound by the
terms hereof, in form and substance reasonably satisfactory to Parent and (ii) direct and use
commercially reasonable efforts to cause the record owner of such shares to (1) validly tender such
shares to Merger Sub pursuant to and in accordance with the terms of the Offer, and not to withdraw
such shares from the Offer, at the time or times and in the same manner as provided for the Shares
in Section 2(a), and (2) vote such shares in the same manner as provided for the Shares in Section
3(a). The foregoing sentence shall not apply to any shares acquired by Stockholder after the date
hereof and prior to the termination of this Agreement from any Person who is obligated under a
Parallel Agreement that do not constitute “Shares” under such Parallel Agreement.
(b) Power; Binding Agreement. Stockholder has the full legal capacity, power and
authority to enter into and perform all of Stockholder’s obligations under this Agreement. The
execution, delivery and performance of this Agreement by Stockholder will not violate any other
agreement to which Stockholder is a party including any voting agreement, stockholders agreement or
voting trust. This Agreement has been duly and validly executed and delivered by Stockholder and
constitutes a valid and binding agreement of Stockholder, enforceable against Stockholder in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other
laws relating to creditors’ rights and to general principles of equity. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust of which Stockholder is Trustee
whose consent is required for the execution and delivery of this Agreement or the consummation by
Stockholder of the transactions contemplated hereby. If Stockholder is married and Stockholder’s
Shares constitute community property, this Agreement has been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, Stockholder’s spouse, enforceable
against such person in accordance with its terms.
(c) No Conflicts. Except for filings under the HSR Act or any other Antitrust Laws,
if applicable, (i) no filing with, and no permit, authorization, consent or approval of, any state
or federal public body or authority is necessary for the execution of this Agreement by Stockholder
and the consummation by Stockholder of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by Stockholder, the consummation by Stockholder of the
transactions contemplated hereby or compliance by Stockholder with any of the provisions hereof
shall (A) conflict with or result in any breach of any applicable organizational documents of
Stockholder, if any, (B) result in a violation or breach of, or constitute (with or without notice
or lapse of time or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms, conditions or
provisions of any Contract or other instrument or obligation of any kind to
which Stockholder is a party or by which Stockholder or any of Stockholder’s properties or
4
assets may be bound, or (C) violate any Law or Order applicable to Stockholder or any of
Stockholder’s properties or assets.
(d) No Encumbrances. Except as applicable in connection with the transactions
contemplated by Section 2 hereof, Stockholder’s Shares and any certificates representing such
Shares are now, and at all times during the term of this Agreement will be, held by Stockholder, or
by a nominee or custodian for the benefit of Stockholder, free and clear of all Encumbrances,
proxies, voting trusts or agreements, understandings or arrangements, except for any such
Encumbrances, proxies, voting trusts or agreements, understandings or arrangements arising
hereunder.
(e) No Finder’s Fees. No broker, investment banker, financial adviser or other Person
is entitled to any broker’s, finder’s, financial adviser’s or other similar fee or commission from
Stockholder in connection with the transactions contemplated hereby based upon arrangements made by
Stockholder.
(f) No Solicitation. Stockholder shall not, in his, her or its capacity as such,
directly or indirectly, solicit, initiate, endorse or knowingly take any actions to encourage or
facilitate (including by way of furnishing non-public information) any inquiry, proposal or offer
with respect to, or the making or completion of, any Acquisition Proposal or any inquiry, proposal
or offer that is reasonably likely to result in an Acquisition Proposal, except as permitted by
Section 5.3 of the Merger Agreement. If Stockholder receives any such inquiry or proposal, then
Stockholder shall promptly advise the Company of the existence thereof. Stockholder will
immediately cease and cause to be terminated all existing discussions or negotiations with any
Person (other than Parent and its affiliates) conducted by Stockholder heretofore with respect to
any Acquisition Proposal.
(g) Restrictions on Transfer, Proxies and Non-interference. Except as applicable in
connection with the transactions contemplated by Section 2 hereof, Stockholder shall not, directly
or indirectly: (i) except (A) as contemplated by this Agreement and (B) for transfers to
Stockholder’s family or trusts established for the benefit of members of Stockholder’s family
(provided that the transferee of such shares agrees in writing to be bound by the terms hereof in
form and substance satisfactory to Parent), offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any Contract or other arrangement or
understanding with respect to, or consent to the offer for sale, sale, transfer, trade, pledge,
encumbrance, assignment or other disposition of, any or all of the Shares or any interest therein;
(ii) except as contemplated by this Agreement, grant any proxies or powers of attorney, deposit any
Shares into a voting trust or enter into a voting agreement with respect to any Shares; or (iii)
take any action that would make any representation or warranty of Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling Stockholder from performing
Stockholder’s obligations under this Agreement.
(h) Waiver of Appraisal Rights. Stockholder hereby waives any rights of appraisal or
rights to dissent from the Merger that Stockholder may have.
(i) Reliance on Agreement. Stockholder understands and acknowledges that Parent is
entering into, and causing Merger Sub to enter into, the Merger Agreement in reliance
5
upon
Stockholder’s execution and delivery of this Agreement and acknowledges that this Agreement is
granted in consideration for the execution and delivery of the Merger Agreement by Parent and
Merger Sub.
5. Parent and Merger Sub Representations and Warranties. As of the date of this
Agreement, Parent and Merger Sub each hereby represent and warrant as follows:
(a) Power; Binding Agreement. Parent and Merger Sub each has the full legal capacity,
power and authority to enter into and perform all of Parent’s and Merger Sub’s respective
obligations under this Agreement. The execution, delivery and performance of this Agreement by
Parent and Merger Sub will not violate any other agreement to which Parent or Merger Sub is a
party. This Agreement has been duly and validly executed and delivered by each of Parent and
Merger Sub and constitutes a valid and binding agreement of Parent and Merger Sub, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other
laws relating to creditors’ rights and to general principles of equity.
(b) No Conflicts. Except for filings under the HSR Act or any other Antitrust Laws,
if applicable, (i) no filing with, and no permit, authorization, consent or approval of, any state
or federal public body or authority is necessary for the execution of this Agreement by Parent and
Merger Sub and the consummation by Parent or Merger Sub of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by Parent and Merger Sub, the
consummation by Parent and Merger Sub of the transactions contemplated hereby or compliance by
Parent and Merger Sub with any of the provisions hereof shall (A) conflict with or result in a
breach of any applicable organizational documents of Parent or Merger Sub, if any, (B) result in a
violation or breach of, or constitute (with or without notice or lapse of time or both) a default
(or give rise to any third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any Contract or other instrument
or obligation of any kind to which Parent or Merger Sub is a party or by which Parent or Merger Sub
or any of their respective material properties or assets may be bound, or (C) violate any Law or
Order applicable to Parent or Merger Sub or any of Parent’s or Merger Sub’s respective material
properties or assets.
6. No Transfer Requests. Stockholder covenants and agrees that Stockholder shall not
request that the Company, and Company shall not, register the transfer (book-entry or otherwise) of
any certificate or uncertificated interest representing any of Stockholder’s Shares, unless such
transfer is made in compliance with this Agreement (including the provisions of Sections 2
and 4(g)). In the event of a stock dividend or distribution, or any change in the Company
Common Stock by reason of any stock dividend, split-up, recapitalization, combination, exchange of
shares or the like, the term “Shares” shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which or for which any or
all of the Shares may be changed or exchanged. While this Agreement is in effect, Stockholder will
notify Parent promptly (and in any event within two Business Days after the acquisition thereof) if
Stockholder acquires legal or Beneficial Ownership of any Shares after the date of this Agreement.
6
7. Termination. The covenants and agreements contained herein shall terminate upon
the earlier of the Effective Time (except for Section 4(h), which shall continue in effect
after the Effective Time) or the termination of the Merger Agreement in accordance with its terms;
provided, however, that (i) nothing herein shall relieve any party from liability for any breach of
this Agreement, and (ii) this Section 6 and Section 10 shall survive any
termination of this Agreement.
8. Stockholder Capacity. No Person executing this Agreement who is or becomes during
the term hereof a director of the Company makes any agreement or understanding herein in his or her
capacity as such director. Stockholder is signing this Agreement solely in his or her capacity as
the record and beneficial owner of, or the trustee of a trust whose beneficiaries are the
beneficial owners of, Shares.
9. Confidentiality. Stockholder recognizes 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 thereof, Stockholder
hereby agrees not to disclose or discuss such matters with anyone not a party to this Agreement
(other than Stockholder’s counsel and advisors, if any) without the prior written consent of
Parent, except for disclosures permitted by the Merger Agreement, filings required pursuant to the
Exchange Act and the rules and regulations thereunder or disclosures Stockholder’s counsel advises
are necessary in order to fulfill Stockholder’s obligations imposed by law, in which event
Stockholder shall give notice of such disclosure to Parent as promptly as practicable so as to
enable Parent to seek a protective order from a court of competent jurisdiction with respect
thereto.
10. Miscellaneous.
(a) Entire Agreement. This Agreement, together with the Merger Agreement and the
other documents referred to herein, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all other prior agreements and understandings,
both written and oral, between the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and the obligations
hereunder shall attach to Stockholder’s Shares and shall be binding upon any Person to which legal
or Beneficial Ownership of such Shares shall pass, whether by operation of law or otherwise,
including Stockholder’s heirs, guardians, administrators or successors. Notwithstanding any
transfer of Shares, the transferor shall remain liable for the performance of all obligations of
the transferor under this Agreement.
(c) Assignment. This Agreement shall not be assigned by any of the parties, by
operation of law or otherwise, without the prior written consent of all of the other parties to
this Agreement; provided, that Parent may assign, its rights and obligations hereunder to any
direct or indirect wholly owned subsidiary of Parent, but no such assignment shall relieve Parent
of its obligations hereunder if such assignee does not perform such obligations.
7
(d) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the execution and delivery of
a written agreement executed by Parent, Merger Sub, Stockholder and, if creating or changing
obligations of the Company, the Company.
(e) Further Assurances. From time to time, at any party’s request and without further
consideration, each party hereto shall execute and deliver such additional documents and take all
such further lawful action as may be necessary or desirable to consummate and make effective, in
the most expeditious manner practicable, the transactions contemplated by this Agreement.
(f) Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be delivered personally, facsimile with confirmation of
receipt, or by next day courier service, providing proof of delivery. Any such notice shall be
effective upon receipt, if delivered personally or by facsimile, or one day after delivery to a
courier service for next-day delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
| If to Stockholder: | ||||||
| Attention: | ||||||
| Facsimile: | ||||||
| copy to: | Xxxxxx and Xxxxx, LLP | |||||
| 0000 Xxxxxxx Xxxxxx | ||||||
| Xxxxx 000 | ||||||
| Xxxxxx, Xxxxx 00000-0000 | ||||||
| Attention: Xxxxxxx X. Xxxxx and Xxx X. Xxxxxx | ||||||
| Facsimile: (000) 000-0000 | ||||||
| If to Parent: | Dell Inc. | |||||
| Xxx Xxxx Xxx, XX0-00 | ||||||
| Xxxxx Xxxx, Xxxxx 00000-0000 | ||||||
| Attention: Xxxxx X. Xxxxxx | ||||||
| Facsimile: (000) 000-0000 | ||||||
| copy to: | Xxxxxx & Xxxxxx L.L.P. | |||||
| Xxxxxxxx Xxxx Center | ||||||
| 0000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
| Xxxxxx, Xxxxx 00000 | ||||||
| Attention: Xxxxxx X. Xxxxxxx | ||||||
| Facsimile: (000) 000-0000 | ||||||
8
| If to Company: | Xxxxx Systems Corporation | |||||
| 0000 Xxxx Xxxxx Xxxxxxx | ||||||
| Xxxxx, Xxxxx 00000 | ||||||
| Attention: Xxxxxx X. Xxxxxxxx | ||||||
| Facsimile: (000) 000-0000 | ||||||
| copy to: | Xxxxx Xxxxx LLP | |||||
| 0000 Xxxx Xxxxxx | ||||||
| Xxxxxx, Xxxxx 00000-0000 | ||||||
| Attention: Xxxxx Xxxxxxxxx | ||||||
| Facsimile: (000) 000-0000 |
or to such other address as the Person to whom notice is given may have previously furnished to the
others in writing in the manner set forth above.
(g) Severability. Whenever possible, each provision or portion of any provision of
this Agreement will 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 will not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will 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.
(h) Specific Performance. Stockholder agrees that irreparable damage would occur and
that Parent and Merger Sub would not have any adequate remedy at law in the event that any of the
provisions of this Agreement were not performed in accordance with the terms hereof or were
otherwise breached. It is accordingly agreed that Parent and Merger Sub shall be entitled to an
injunction or injunctions to prevent breaches by Stockholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement in addition to any other remedy at law or
equity.
(i) Remedies Cumulative. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not
alternative, and the exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(j) No Waiver. The failure of any party hereto to exercise any right, power or remedy
provided under this Agreement or otherwise available in respect hereof at law or in equity, or to
insist upon compliance by any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to demand such
compliance.
(k) No Third Party Beneficiaries. This Agreement is not intended to be for the
benefit of, and shall not be enforceable by, any Person who or which is not a party hereto.
9
(l) Governing Law; Jurisdiction.
(i) This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware, without giving effect to any choice or conflict of law provision or
rule (whether of the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
(ii) Each of the parties hereto irrevocably agrees that any legal action or proceeding
with respect to this Agreement and the rights and obligations arising hereunder, or for
recognition and enforcement of any judgment in respect of this Agreement and the rights and
obligations arising hereunder brought by the other party hereto or its successors or
assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and
any state appellate court therefrom within the State of Delaware (or, if the Delaware Court
of Chancery declines to accept jurisdiction over a particular matter, any state or federal
court within the State of Delaware). Each of the parties hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect of its property, generally
and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it
will not bring any action relating to this Agreement or any of the transactions contemplated
by this Agreement in any court other than the aforesaid courts. Each of the parties hereby
irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any
action or proceeding with respect to this Agreement, (a) any claim that it is not personally
subject to the jurisdiction of the above named courts for any reason other than the failure
to serve in accordance with this Section 10(l), (b) any claim that it or its property is
exempt or immune from jurisdiction of any such court or from any legal process commenced in
such courts (whether through service of notice, attachment prior to judgment, attachment in
aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest
extent permitted by the applicable Law, any claim that (i) the suit, action or proceeding in
such court is brought in an inconvenient forum, (ii) the venue of such suit, action or
proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
(m) Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
(n) Headings. The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or interpretation of this
Agreement.
(o) Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original, but all of which, taken together, shall constitute one and the same
Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, Parent, Merger Sub, Stockholder and the Company have caused this Agreement
to be duly executed as of the day and year first above written.
| DELL INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| DII — HOLDINGS INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to
Tender and Voting Agreement
Tender and Voting Agreement
IN WITNESS WHEREOF, Parent, Merger Sub, Stockholder and the Company have caused this Agreement
to be duly executed as of the day and year first above written.
| [STOCKHOLDER] | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to
Tender and Voting Agreement
Tender and Voting Agreement
IN WITNESS WHEREOF, Parent, Merger Sub, Stockholder and the Company have caused this Agreement
to be duly executed as of the day and year first above written.
| XXXXX SYSTEMS CORPORATION | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to
Tender and Voting Agreement
Tender and Voting Agreement
SCHEDULE I
Shares of Common Stock
