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Exhibit(c)(2)
TENDER AND OPTION AGREEMENT
TENDER AND OPTION AGREEMENT (this "Agreement"), dated as of
December 18, 1997, by and between Tel-Save Holdings, Inc., a Delaware
corporation ("Parent"), and _______________ ("Seller").
W I T N E S S E T H :
WHEREAS, the respective Boards of Directors of Parent, TSHCo, Inc.,
a Delaware corporation and wholly-owned subsidiary of the Parent ("Purchaser"),
and Symetrics Industries, Inc., a Florida corporation (the "Company"), have
entered into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement") pursuant to which the Purchaser will make a tender offer (the
"Offer") for all of the outstanding shares of common stock, par value $.25 per
share, of the Company (the "Common Stock"), at a price of $15.00 in cash per
share to be followed by a merger of the Purchaser with and into the Company; and
WHEREAS, as of the date hereof, Seller beneficially owns shares of
Common Stock (such shares, together with any shares of Common Stock acquired
after the date hereof and prior to the termination hereof, whether upon the
exercise of options or otherwise, collectively referred to herein as "Shares");
and
WHEREAS, as a condition of Parent's willingness to enter into the
Merger Agreement and Purchaser's willingness to make the Offer, Parent has
required that Seller agree to tender in the Offer all of the Shares;
NOW THEREFORE, in consideration of the premises and mutual
agreements, provisions and covenants herein contained, the parties hereby agree
as follows:
1. Agreement To Tender and Vote
1.1 Tender. Seller hereby agrees to validly tender pursuant to the
Offer, and not withdraw, all of the Shares.
1.2 Voting. Seller hereby agrees that, during the time this
Agreement is in effect, at any meeting of the stockholders of the Company,
however called, Seller shall (a) vote the Shares in favor of the Merger; (b)
vote the Shares against any action or agreement that to the best of Seller's
knowledge would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement; and (c) vote the Shares against any action or
agreement (other than the Merger Agreement or the transactions contemplated
thereby) that to the best of Seller's knowledge would impede, interfere with,
delay, postpone or attempt to discourage the Merger or the Offer, including but
not limited to (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company and its
subsidiaries; (ii) a sale or transfer of a material amount of assets of the
Company and its subsidiaries or a reorganization, recapitalization or
liquidation of the Company and its subsidiaries; or (iii) any change in the
Company's management or in the board of directors of the Company (the "Board")
except as otherwise agreed to in writing by Parent.
1.3 Expiration. Seller's obligation to tender and vote the Shares
as provided herein shall terminate on the first to
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occur of (a) the Effective Time and (b) termination of the Merger Agreement.
2. Option.
2.1 Grant of Option. Effective on the date hereof, Parent shall
have, and Seller hereby grants to Parent, the right and option to purchase (the
"Option") from the Seller, at a price of $15.00 per share (the "Exercise
Price"), the Shares. If the Shares shall not have been tendered and purchased in
accordance with Section 1.1 hereof, the Option shall be exercisable by Parent,
in whole or, from time to time, in part, for six months from the date hereof
only in the event that (i) a third party makes an Acquisition Proposal, as
defined in Section 6.5 of the Merger Agreement, or (ii) the Seller intends to
sell some or all of the Shares to a third party, in which case the Seller must
notify the Parent five business days before the proposed sale, and the Parent
then shall have three business days within which to exercise the Option. This
Option may be exercised by tender to the Seller of cash in payment of the
exercise price therefor, whereupon the Seller shall promptly deliver the Shares
to Parent,
2.2 Exercise of Option. If Parent wishes to exercise the Option, it
shall send to Seller a written notice (the date of which being herein referred
to as the "Notice Date") specifying (i) the total number of shares of Common
Stock it will purchase pursuant to such exercise, and (ii) a place and date not
earlier than three business days nor later than 10 business days from the Notice
Date for the closing of such purchase (the "Closing Date"); provided that, if
prior notification to or approval of any federal or state regulatory agency is
required in connection with such purchase, the Parent shall promptly file the
required notice or application for approval and shall expeditiously process the
same and the period of time that otherwise would run pursuant to this sentence
shall run instead from the date on which any required notification period has
expired or been terminated or such approval has been obtained and any requisite
waiting period shall have passed.
2.3. Payment and Delivery of Certificates.
(a) At the closing referred to in Section 2.2 hereof, Parent shall
pay to Seller the aggregate purchase price for the Shares purchased pursuant to
the exercise of the Option in immediately available funds by a wire transfer to
a bank account designated by the Seller.
(b) At such closing, simultaneously with the delivery of cash as
provided in subsection (a), Seller shall deliver to Parent a certificate or
certificates representing the number of Shares purchased by Parent.
3. Representations and Warranties.
3.1 Representations and Warranties of Parent.
Parent hereby represents and warrants to Seller as
follows:
(a) Due Authorization. This Agreement has been duly
authorized by all necessary corporate action on the part of Parent,
has been duly executed and delivered on behalf of Parent by a duly
authorized officer of Parent and is valid, binding and enforceable
against Parent in accordance with its terms, except to the extent
that enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to
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or affecting the enforcement of creditors' rights generally or by
equitable principles. The execution, delivery and performance of
this Agreement by Parent and the consummation by it of the
transactions contemplated hereunder do not require the consent,
waiver, approval, license or authorization of or any filing with
any person or domestic public authority (other than in compliance
with the Xxxx-Xxxxx-Xxxxxx Act, the rules of the Nasdaq Stock
Market, or the securities or blue sky laws) and will not violate,
result in a breach of or the acceleration of any obligation under,
or constitute a default under, any provision of Parent's charter or
by-laws, or any indenture, mortgage, lease, agreement, contract,
instrument, order, judgment, ordinance, regulation or decree
specifically applicable to Parent, the effect of which could impair
the ability of Parent to perform its obligations under this
Agreement. Parent is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and
has the full corporate power and authority to execute, deliver and
perform this Agreement.
(b) Distribution. Parent is acquiring the Shares for
its own account for investment only and not with a view to the
distribution or resale of the Shares so acquired. Any sale,
transfer or other disposition of the Shares by Parent will be made
in compliance with all applicable provisions of the Securities Act
of 1933, as amended (the "1933 Act"), and the rules and regulations
thereunder.
3.2 Representations and Warranties of Seller. Seller hereby
represents and warrants to Parent as follows:
(a) Due Authorization. This Agreement is valid,
binding and enforceable against the Seller in accordance with its
terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights generally or by equitable
principles. The execution, delivery and performance of this
Agreement by Seller and the consummation by Seller of the
transactions contemplated hereunder do not require the consent,
waiver, approval, license or authorization or any filing (other
than in compliance with the Xxxx-Xxxxx-Xxxxxx Act, the rules of the
Nasdaq Stock Market, or the securities or blue sky laws), with any
person or domestic public authority and will not violate, result in
a breach of or the acceleration of any obligation under, or
constitute a default under, any indenture, mortgage, lease,
agreement, contract, instrument, order, judgment, ordinance,
regulation or decree specifically applicable to Seller, the effect
of which would be material and adverse to the ability of Seller to
consummate the transactions contemplated in this Agreement.
(b) Shares. Seller beneficially owns all of the
Shares, and has good and marketable title thereto, free and clear
of all claims, liens, encumbrances, security interests and charges
of any nature whatsoever (together, "Liens"). Upon the tender and
acceptance of the Shares pursuant to the Offer, Seller shall
transfer to Parent good and valid title to the Shares free and
clear of all Liens.
4. Certain Covenants of Seller. Except in accordance with the terms
of this Agreement and the Merger Agreement, Seller hereby covenants and agrees
as follows:
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4.1 No Solicitation. Seller shall not, directly or indirectly,
solicit any proposal by any person or entity (other than Parent or any affiliate
of Parent) which constitutes, or may reasonably be expected to lead to, an
Acquisition Proposal. Seller will immediately cease and cause to be terminated
any existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
4.2 Restrictions on Transfer, Proxies and Non-Interference. Seller
hereby agrees, while this Agreement is in effect, and except as contemplated
hereby, not to (i) sell, transfer, pledge, encumber, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to the sale, transfer, pledge, encumbrance, assignment or other
disposition of, any of the Shares or (ii) grant any proxies, 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
Seller contained herein untrue or incorrect or have the effect of preventing or
disabling Seller from performing Seller's obligations under this Agreement.
5. Fiduciary Duties. Notwithstanding anything in this Agreement to
the contrary, the covenants and agreements set forth herein shall not prevent
the Seller, when serving on the Board, from taking any action, subject to the
applicable provisions of the Merger Agreement, in Seller's capacity as a
director of the Company.
6. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
7. Miscellaneous.
7.1 Entire Agreement; Assignment. This Agreement (i) constitutes
the entire agreement among 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 and (ii)
shall not be assigned by operation of law or otherwise, 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.
7.2 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
7.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, mail
(registered or certified mail, postage prepaid, return receipt requested) or
courier service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses:
If to Parent:
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Tel-Save Holdings, Inc.
0000 Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
copy to:
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
If to Seller
____________________
____________________
____________________
Fax: ______________
copy to:
____________________
____________________
____________________
Fax: ______________
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.
7.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
7.5 Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach, the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled at law or in equity.
7.6 Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an originally, but both of
which shall constitute one and the same Agreement.
7.7 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
7.8 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 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
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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 provision had never been contained herein.
7.9 Capitalized Terms. Capitalized terms used but not defined
herein shall have the meanings set forth in the Merger Agreement.
IN WITNESS WHEREOF, Parent and Seller have caused this Agreement to
be duly executed as of the date and year first above written.
TEL-SAVE HOLDINGS, INC.
By:_________________________
Name:
Title:
[SELLER]
________________________
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