WARRANT CANCELLATION AGREEMENT
Exhibit
3.1
This
Warrant Cancellation Agreement (this "Agreement") dated as
of August 16, 2010 is entered into by and between Xxxxxxxx XX L.P. ("Holder") and ICx
Technologies, Inc., a Delaware corporation (the “Company”). Reference
is made to the Agreement and Plan of Merger, dated as of the date hereof (the
"Merger
Agreement"), by and among FLIR Systems, Inc., an Oregon corporation
("Parent"), and
Indicator Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary
of Parent ("Merger
Sub"), and the Company, pursuant to which Merger Sub shall merge with and
into the Company with the Company as the surviving corporation (the "Merger"). Capitalized
terms used and not defined herein have the meanings ascribed to them in the
Merger Agreement.
THE
UNDERSIGNED hereby acknowledges and agrees that:
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1.
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Holder
is the holder of a warrant, dated as of February 3, 2006, as amended as of
September 8, 2009, which entitles the holder to purchase 127,250 shares of
Company Common Stock (the "Warrant");
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2.
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As
a condition to their willingness to enter into the Merger Agreement,
Parent and Merger Sub have requested that Holder, and in order to induce
Parent and Merger Sub to enter into the Merger Agreement, Holder has
agreed to, enter into this Agreement;
and
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3.
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Subject
to the consummation of the Merger and without any further action on the
part of Holder, the Warrant, if not theretofore exercised, will be
canceled as of the Effective Time in exchange for the right to receive
from the Company, as of the Effective Time, cash, without interest, in an
amount equal to (a) the product of (i) the number of Shares subject to the
Warrants and (ii) the Merger Consideration minus (b) the product of (i)
the number of Shares subject to the Warrants and (ii) the per share
exercise price of the Warrant immediately prior to the Effective Time,
subject to any applicable withholding of Taxes and the terms of the Merger
Agreement.
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4.
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In
the event that the Merger Agreement shall be terminated without the
Effective Time having occurred, this Agreement shall terminate at the same
time as such termination.
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5.
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The
parties will, from time to time, execute and deliver, or cause to be
executed and delivered, such additional documents or take, or cause to be
taken, such additional acts as may be necessary to give full effect to the
terms and intent of this Agreement.
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6.
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The
parties hereto may only modify or amend this Agreement by a written
agreement executed and delivered by duly authorized signatories of the
respective parties which expressly states that it is intended to modify or
amend this Agreement.
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7.
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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 laws 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.
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8.
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This
Agreement, together with the Warrant, constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter
hereof.
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9.
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This
Agreement may be executed in multiple counterparts, all of which shall
together be considered one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed by their respective authorized
signatories as of the date and year first written above:
XXXXXXXX
XX L.P.
By:
Xxxxxxxx XX GP LLC, its G.P.
By: /s/ Xxxxxx X.
Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title: President
ICX
TECHNOLOGIES, INC.
By: /s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title: Chief
Executive Officer
