Exhibit (d)(2)
STOCKHOLDER TENDER AND VOTING AGREEMENT
This STOCKHOLDER TENDER AND VOTING AGREEMENT (this "Agreement") is entered
into as of March 10, 2004, by and between Crossbow, a corporation organized
under the laws of the Province of Quebec (the "Parent"), CGI Virginia
Corporation, a Delaware corporation and a subsidiary of the Parent (the "Merger
Sub"), and Xxxxxx X. Xxxxxxx, (referred to as the "Stockholder").
BACKGROUND
As of the date of this Agreement, the Stockholder "beneficially owns" (as
such term is defined in Rule 13d-3 promulgated under the Exchange Act) and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of shares of common stock, par value $0.01 per
share (the "Common Stock"), of Arrow, a Delaware corporation (the "Company"),
set forth opposite the Stockholder's name on Schedule I to this Agreement (such
shares of Common Stock, together with any other shares of Common Stock the power
to dispose of or vote over which the Stockholder acquires during the period from
and including the date of this Agreement through and including the date on which
this Agreement is terminated in accordance with its terms, are collectively
referred to in this Agreement as the "Subject Shares"). The Parent, the Merger
Sub and the Company propose to enter into an Agreement and Plan of Merger, dated
as of the date of this Agreement (the "Merger Agreement"), which provides for
the Merger Sub to commence a tender offer (the "Offer") for all of the issued
and outstanding shares of the Common Stock and the merger of the Merger Sub with
and into the Company, with the Company surviving as a wholly-owned subsidiary of
the Parent (the "Merger"). As a condition to the willingness of the Parent and
the Merger Sub to enter into the Merger Agreement, and as an inducement and in
consideration for their entering into this Agreement, the Stockholder is
executing this Agreement.
Accordingly, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained in this
Agreement, the parties, intending to be legally bound agree as follows:
ARTICLE I
TENDER AGREEMENT AND IRREVOCABLE PROXY
Section 1.1 Tender Agreement. The Stockholder agrees that unless this
Agreement is terminated pursuant to Article V of this Agreement, (i) the
Stockholder shall (except with respect to Subject Shares that are restricted
stock) validly tender or cause to be validly tendered, the Subject Shares to the
Merger Sub pursuant to and in accordance with the terms of the Offer as promptly
as practicable, and in any event no later than: (a) the fifth Business Day,
following the commencement of the Offer pursuant to Section 1.1 of the Merger
Agreement, and (b) in the case of any Subject Shares acquired after the date of
this Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or otherwise,
the third succeeding Business Day after acquisition thereof; and (ii) the
Stockholder shall not withdraw any Subject Shares so tendered unless the Offer
is terminated or has expired without the Merger Sub purchasing all shares of
Common Stock validly tendered in the Offer. Notwithstanding the provisions of
the preceding sentence, in the event that any Subject Shares are for any reason
withdrawn from the Offer or are not purchased pursuant to the Offer, such
Subject Shares shall remain subject to the terms of this Agreement. The parties
to this Agreement acknowledge and agree that the obligation of the Merger Sub to
accept for payment and pay for Shares validly tendered in the Offer, including
the Subject Shares, is subject to the conditions set forth in Annex A to the
Merger Agreement.
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Section 1.2 Grant of Irrevocable Proxy. (a) The Stockholder hereby
appoints the Parent and any designee of the Parent, and each of them
individually, as the Stockholder's proxy and attorney-in-fact, with full power
of substitution and resubstitution, to vote at any meeting (or any adjournment
or postponement of such meeting) of the holders of any class or classes of the
capital stock of the Company, however called, or act by written consent with
respect to the Subject Shares: (i) in favor of the approval of the terms of the
Merger Agreement, the Merger and the other transactions contemplated by the
Merger Agreement (and any actions required in furtherance thereof); (ii) against
any action, proposal, transaction or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation or agreement of the Company contained in the Merger Agreement or of
the Stockholder contained in this Agreement; and (iii) against the following
actions or proposals (other than the transactions contemplated by the Merger
Agreement): (A) (1) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
Subsidiaries and any Acquisition Proposal; or (2) a sale, lease or transfer of
all or substantially all of the assets of the Company or any of its
Subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or any of its Subsidiaries; and (B) (1) any change in the persons
who constitute the board of directors of the Company as such board is
constituted as of the date of this Agreement (or their successors who were so
approved by the Parent); (2) any material change in the present capitalization
of the Company or amendment of the Company's certificate of incorporation or
bylaws; (3) any other material change in the Company's corporate structure or
business; or (4) any other action or proposal involving the Company or any of
its Subsidiaries that is intended, or could reasonably be expected, to prevent,
impede, interfere with, delay, postpone or adversely affect in a material manner
the transactions contemplated by the Merger Agreement. Any such vote shall be
cast or consent shall be given in accordance with such procedures relating
thereto so as to ensure that it is duly counted for purposes of determining that
a quorum is present and for purposes of recording the results of such vote or
consent. The Stockholder agrees not to enter into any agreement or commitment
with any Person the effect of which would be inconsistent with or violative of
the provisions and agreements contained in this Article I. This proxy is given
to secure the performance of the duties of the Stockholder under this Agreement.
The Stockholder shall promptly cause a copy of this Agreement to be deposited
with the Company at its principal place of business. The Stockholder shall take
such further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy. Notwithstanding the foregoing, no proxy
shall be provided as to Subject Shares that are restricted stock if prohibited
by the terms of the restrictions on such subject shares.
(b) The proxy and power of attorney granted pursuant to this
Section 1.2 by the Stockholder is executed in accordance with Section 212 of the
Delaware General Corporation Law and shall be irrevocable during the term of
this Agreement, shall be deemed to be coupled with an interest sufficient in law
to support an irrevocable proxy and shall revoke any and all prior proxies
granted by the Stockholder in relation to any or all of his Subject Shares. The
power of attorney granted by the Stockholder is a durable power of attorney and
shall survive the dissolution, bankruptcy, death or incapacity of the
Stockholder. The proxy and power of attorney granted under this Agreement shall
terminate upon the termination of this Agreement.
(c) The Parent and the Merger Sub acknowledge and agree that
no provision of this Agreement shall limit or otherwise restrict a Stockholder
with respect to any act or omission that a Stockholder may undertake or
authorize in the Stockholder's capacity as a director or officer of the Company,
including, without limitation, any vote the Stockholder may make as a director
or officer of the Company with respect to any matter presented to the Company's
board of directors.
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ARTICLE II
COVENANTS
Section 2.1 Generally. (a) The Stockholder agrees that prior to the
termination of this Agreement, except as contemplated by the terms of this
Agreement, the Stockholder shall not, directly or indirectly, (i) sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of
(collectively, a "Transfer"), or enter into any contract, option or other
agreement or arrangement with respect to, or consent to, a Transfer of, any or
all of the Subject Shares or (ii) take any action in his capacity as a
Stockholder that would have the effect of preventing, impeding, interfering with
or adversely affecting in a material manner the Stockholder's ability to perform
his obligations under this Agreement.
(b) In the event of a stock dividend or distribution, or any
change in the Common Stock by reason of any stock dividend or distribution,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Subject Shares" shall be deemed to refer to and include the Subject Shares
as well as all such stock dividends and distributions and any securities into
which or for which any or all of the Subject Shares may be changed or exchanged
or which are received in such transaction. The Stockholder agrees, while this
Agreement is in effect, to notify Parent and Merger Sub promptly of the number
of any additional shares of capital stock and the number and type of any other
voting securities of the Company acquired by the Stockholder, if any, after the
date of this Agreement.
Section 2.2 Standstill Obligations of the Stockholder. The Stockholder
covenants and agrees with each of the Parent and the Merger Sub that:
(a) Except as permitted by Section 1.2(c) of this Agreement,
the Stockholder shall not, nor shall the Stockholder act in concert with or with
any Person to make, or in any manner participate in, directly or indirectly, a
"solicitation" of "proxies" (as such terms are used in the rules promulgated by
the SEC) or powers of attorney or similar rights to vote, or seek to advise or
influence any Person with respect to the voting of, any shares of Common Stock
in connection with any vote or other action on any matter, other than to
recommend that stockholders of the Company accept the Offer, tender their shares
in the Offer, vote in favor of the Merger and the Merger Agreement and otherwise
as expressly provided by Article II of this Agreement.
(b) The Stockholder shall not, nor shall the Stockholder act
in concert with any Person to, deposit any shares of Common Stock in a voting
trust or subject any shares of Common Stock to any arrangement or agreement with
any Person with respect to the voting of such shares of Common Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to the Parent and the
Merger Sub as follows:
Section 3.1 Authority. The Stockholder has all necessary legal
capacity, power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated by this Agreement. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
by this Agreement by the Stockholder has been duly authorized by all necessary
action on the part of the Stockholder.
Section 3.2 Ownership of Shares. Schedule I sets forth, opposite the
Stockholder's name, the number of shares of Common Stock over which the
Stockholder has record and beneficial ownership as of the date of this
Agreement. The Stockholder is the lawful owner of the shares of Common Stock
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denoted as being owned by the Stockholder on Schedule I and has the sole power
to dispose of (or cause to be disposed of) or vote (or cause to be voted) such
shares of Common Stock. The Stockholder has good and valid title to the Common
Stock denoted as being owned by the Stockholder on Schedule I, free and clear of
any and all Liens, other than those Liens created by this Agreement.
Section 3.3 No Conflicts. None of the execution and delivery of this
Agreement by the Stockholder, the consummation by the Stockholder of the
transactions contemplated by this Agreement or compliance by the Stockholder
with any of the provisions of this Agreement shall (A) result in, or give rise
to, a violation or breach of or a default under any of the terms of any material
contract, understanding, agreement or other instrument or obligation to which
the Stockholder is a party or by which the Stockholder or any of the
Stockholder's Subject Shares or assets may be bound; or (B) violate any
applicable order, writ, injunction, decree, judgment, statute, rule or
regulation.
Section 3.4 Reliance by the Parent and the Merger Sub. The Stockholder
understands and acknowledges that each of the Parent and the Merger Sub is
entering into the Merger Agreement in reliance upon the execution and delivery
of this Agreement by the Stockholder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE MERGER SUB
Each of the Parent and the Merger Sub hereby represents and warrants to
the Stockholder as follows:
Section 4.1 Due Organization, etc. Each of the Parent and the Merger
Sub is a corporation duly organized and validly existing under the laws of the
jurisdiction of its incorporation or organization. Each of the Parent and Merger
Sub has all necessary corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated by this Agreement. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement by the Parent and the Merger Sub
have been duly authorized by all necessary action on the part of the Parent and
the Merger Sub.
Section 4.2 Reliance by the Stockholder. Each of the Parent and Merger
Sub understands and acknowledges that the Stockholder is entering into this
Agreement in reliance upon the execution and delivery of the Merger Agreement by
the Parent and Merger Sub.
ARTICLE V
TERMINATION
Section 5.1 Termination. This Agreement shall terminate, and neither
the Parent, the Merger Sub, nor the Stockholder shall have any rights or
obligations under this Agreement and this Agreement shall become null and void
and have no effect upon the earliest to occur of: (i) the mutual consent of the
Parent, the Merger Sub and the Stockholder, (ii) the Effective Time, and (iii)
the date of termination of the Merger Agreement in accordance with its terms;
provided, however, that termination of this Agreement shall not prevent any
party under this Agreement from seeking any remedies (at law or in equity)
against any other party to this Agreement for such party's breach of any of the
terms of this Agreement. Notwithstanding the foregoing, Sections 6.1, 6.4, 6.5
and 6.13 of this Agreement shall survive the termination of this Agreement.
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ARTICLE VI
MISCELLANEOUS
Section 6.1 Publication. The Stockholder hereby permits the Parent and
the Merger Sub to publish and disclose in the Offer Documents and, if approval
of the stockholders of the Company is required under applicable Legal
Requirements, the Proxy/Information Statement, his identity and ownership of
shares of Common Stock and the nature of their commitments, arrangements and
understandings pursuant to this Agreement.
Section 6.2 Further Actions. The Stockholder shall, upon the request of
the Parent or the Merger Sub, at the Parent's sole cost and expense, execute and
deliver any additional documents and take such further actions as may reasonably
be deemed by the Parent or the Merger Sub to be necessary or desirable to carry
out the provisions of this Agreement, including without limitation, to
effectuate the intent of the proxy granted pursuant to Section 1.2.
Section 6.3 Amendments, Waivers, etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified, except upon the
execution and delivery of a written agreement executed by each of the parties to
this Agreement. The failure of any party to this Agreement to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect of this Agreement at law or in equity, or to insist upon compliance by
any other party to this Agreement with its obligations under this Agreement, and
any custom or practice of the parties at variance with the terms of this
Agreement 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.
Section 6.4 Specific Performance. The parties shall be entitled to seek
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
Section 6.5 Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) on the date of
delivery if delivered personally, (ii) on the date of confirmation of receipt
(or, the first Business Day following such receipt if the date is not a Business
Day) of transmission by telecopy or telefacsimile, or (iii) on the date of
confirmation of receipt (or, the first Business Day following such receipt if
the date is not a Business Day) if delivered by a nationally recognized courier
service. All notices under this Agreement shall be delivered as set forth below,
or pursuant to such other instructions as may be designated in writing by the
party to receive such notice:
(a) if to the Parent
or the Merger Sub, to: 0000 Xxxxxxxxxx Xxxxxx West
5th Floor
Montreal, Quebec
Canada H3A 2M8
Attention: Xxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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with copies to: XxXxxxxx Xxxxxxxx LLP
Le Windsor, 0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Attention: Xxxx-Xxxx Xxxxxxxx, Esquire
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
Holland & Knight LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esquire
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
(b) if to the Stockholder, at the address listed in Schedule I.
Section 6.6 Capitalized Terms. For purposes of this Agreement,
capitalized terms used and not defined in this Agreement shall have the
respective meanings ascribed to them in the Merger Agreement.
Section 6.7 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 6.8 Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the greatest extent possible,
the economic, business and other purposes of such void or unenforceable
provision.
Section 6.9 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter of this Agreement. It being
understood that this Agreement is not intended to confer upon any Person not a
party to this Agreement any rights or remedies under this Agreement.
Section 6.10 Assignment. No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other parties. Any purported assignment in violation of this
Section 6.10 shall be void.
Section 6.11 Parties in Interest. Subject to Section 6.10, this
Agreement shall be binding upon and inure solely to the benefit of each party to
this Agreement and their respective successors and assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
Section 6.12 Mutual Drafting. Each party to this Agreement has
participated in the drafting of this Agreement, which each party acknowledges is
the result of extensive negotiations between the parties.
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Section 6.13 Governing Law; Consent to Jurisdiction; Waiver of Trial by
Jury.
(a) This Agreement shall be governed by and construed in
accordance with the laws of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of law thereof.
(b) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any Delaware state court or Federal court of the United States
of America sitting in Delaware, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement or the
agreements delivered in connection herewith or the transactions contemplated
hereby or thereby or for recognition or enforcement of any judgment relating
thereto, and each of the parties hereby irrevocably and unconditionally (a)
agrees not to commence any such action or proceeding except in such courts, (b)
agrees that any claim in respect of any such action or proceeding may be heard
and determined in such Delaware state court or, to the extent permitted by Law,
in such Federal court, (c) waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in any such Delaware state or
Federal court, and (d) waives, to the fullest extent permitted by Law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such Delaware state or Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by Law. Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 6.5. Nothing in
this Agreement shall affect the right of any party to this Agreement to serve
process in any other manner permitted by Law.
(c) 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 (A) 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, (B) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.13 (c).
Section 6.14 Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
Section 6.15 Capacity. The Stockholder, in executing this Agreement if
he is a director or officer of the Company makes no agreement or understanding
in this Agreement as a director or officer of the Company. The Stockholder
executes this Agreement solely in his capacity as a record and beneficial owner
of the Subject Shares, and nothing in this Agreement shall limit or affect any
actions taken in his capacity as an officer or director of the Company.
* * * * *
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IN WITNESS WHEREOF, the Parent, the Merger Sub and the Stockholder have
caused this Agreement to be duly executed as of the day and year first above
written.
CGI GROUP INC.
a corporation organized under the laws of the
Province of Quebec
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Chairman of the Board and
Chief Executive Officer
CGI VIRGINIA CORPORATION
a Delaware corporation
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Chairman of the Board and
Chief Executive Officer
STOCKHOLDER:
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
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SCHEDULE I
Ownership of Common Stock
Name Address of Stockholder Number of Shares Owned
--------------------------- ----------------------
Xxxxxx X. Xxxxxxx
c/o AMS
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000 55,782*
* Includes 17,188 shares of restricted stock.
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