VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of December 29, 1997 by and
between THE TITAN CORPORATION, a California corporation ("Parent"), and
((Name)) ("Shareholder").
RECITALS
A. Parent; EAGLE ACQUISITION SUB, INC., ("Merger Sub") a Florida
corporation and a wholly owned subsidiary of Titan Defense Systems
Corporation, a Delaware corporation and wholly owned subsidiary of Parent;
and DBA SYSTEMS, INC., a Florida corporation (the "Company"), are entering
into an Agreement and Plan of Merger and Reorganization of even date herewith
(as amended from time to time, the "Merger Agreement;" capitalized terms used
but not otherwise defined in this Voting Agreement have the meanings assigned
to such terms in the Merger Agreement), which provides (subject to the
conditions set forth therein) for the merger of Merger Sub into the Company
(the "Merger").
B. As of the date hereof, Shareholder owns in aggregate (including
shares held both beneficially and of record) the number of shares of Company
Common Stock set forth below Shareholder's name on the signature page hereof.
C. As a condition to the willingness of Parent and Merger Sub to enter
into the Merger Agreement, Parent and Merger Sub have required that
Shareholder agree, and in order to induce Parent and Merger Sub to enter into
the Merger Agreement Shareholder has agreed, to enter into this Voting
Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. NO TRANSFER OF SUBJECT SHARES
1.1 SUBJECT SHARES. The shares described above held by Shareholder,
together with any shares of Company capital stock that may hereafter be
acquired by Shareholder (whether upon exercise of options or otherwise), are
referred to herein as the "Subject Shares."
1.2 NO DISPOSITION OR ENCUMBRANCE OF SUBJECT SHARES.
(a) Shareholder hereby covenants and agrees that, prior to the
Expiration Date (as defined below), Shareholder will not, directly or
indirectly, (i) offer, sell, offer to sell, contract to sell, pledge, grant
any option to purchase or otherwise dispose of or transfer (or announce any
offer, sale, offer of sale, contract of sale or grant of any option to
purchase or other disposition or transfer of) any Subject Shares to any
Person other than Parent or Parent's designee, (ii) create or permit to exist
any Encumbrance with respect to any of the Subject Shares, (iii) reduce his
beneficial ownership of, interest in or risk relating to any of the Subject
Shares or (iv) commit or agree to do any of the foregoing.
1.
(b) As used in this Voting Agreement, the term "Expiration Date"
shall mean the earlier of the date upon which the Merger Agreement is validly
terminated or the Effective Time of the Merger.
1.3 NO TRANSFER OF VOTING RIGHTS. Shareholder covenants and agrees
that, prior to the Expiration Date, Shareholder will not deposit any of the
Subject Shares into a voting trust or grant any proxy (except as provided
herein) or enter into any other voting agreement, or any other agreement or
arrangement with respect to the voting of any of the Subject Shares.
SECTION 2. VOTING OF SUBJECT SHARES
2.1 VOTING AGREEMENT. Shareholder hereby agrees that, prior to the
earlier to occur of the valid termination of the Merger Agreement or the
Effective Time, at any meeting of the shareholders of the Company, however
called, and in any written action by consent of shareholders of the Company,
unless otherwise directed in writing by Parent, Shareholder shall vote the
Subject Shares:
(i) in favor of (1) the adoption and approval of the Merger
Agreement and the Merger; and (2) each of the other actions contemplated by
the Merger Agreement and any action required in furtherance hereof and
thereof; and
(ii) against any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of the Company
in the Merger Agreement.
Prior to the earlier to occur of the valid termination of the Merger
Agreement or the Effective Time, Shareholder shall not enter into any
agreement or understanding with any Person to vote or give instructions in
any manner inconsistent with clause "(i)" or "(ii)" of the preceding sentence.
2.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Voting Agreement,
Shareholder shall deliver to Parent a proxy in the form attached hereto as
Exhibit A, which shall be irrevocable to the fullest extent permitted by law
prior to the Expiration Date, with respect to the Subject Shares (the
"Proxy").
(b) Shareholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
Parent the power to carry out and give effect to the provisions of this
Voting Agreement.
SECTION 3. WAIVER OF APPRAISAL RIGHTS.
Shareholder hereby waives any rights of appraisal and any dissenters'
rights that Shareholder may have in connection with the Merger.
2.
SECTION 4. NO SOLICITATION.
Shareholder acknowledges that Shareholder is a Representative of the
Company. Shareholder covenants and agrees that, during the period commencing
on the date of this Voting Agreement and ending on the Expiration Date,
Shareholder shall not, directly or indirectly, or authorize or permit any
Representative of Shareholder, directly or indirectly, except to the extent
permitted by Section 4.4 of the Merger Agreement, to: (i) solicit, initiate,
encourage or induce the making, submission or announcement of any Acquisition
Proposal or take any action that could reasonably be expected to lead to an
Acquisition Proposal; (ii) furnish any nonpublic information regarding any of
the Acquired Corporations to any Person in connection with or in response to
an Acquisition Proposal or potential Acquisition Proposal; (iii) engage in
discussions with any Person with respect to any Acquisition Proposal or
potential Acquisition Proposal (iv) approve, endorse or recommend any
Acquisition Proposal; or (v) enter into any letter of intent or other similar
document or any Contract contemplating or otherwise relating to any
Acquisition Transaction. Shareholder acknowledges that breach of the
foregoing provision would cause the Company to breach its obligations set
forth in Section 4.4 of the Merger Agreement. The foregoing provisions of
this Section 4 shall not prevent Shareholder from acting, in respect of any
Acquisition Proposal, in accordance with Shareholder's fiduciary duties as a
director or officer, as applicable, of the Company, provided that such
actions are in compliance with the provisions of Section 4.4 of the Merger
Agreement and do not affect Shareholder's obligations, other than in such
capacities, under this Agreement. Shareholder shall immediately cease and
cause to be terminated any existing discussions with any Person that relate
to any Acquisition Proposal.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder hereby represents and warrants to Parent as follows:
5.1 DUE AUTHORIZATION, ETC. Shareholder has all requisite power and
capacity to execute and deliver this Voting Agreement and the Proxy and to
perform his obligations hereunder and thereunder. This Voting Agreement has
been duly executed and delivered by Shareholder and constitutes a legal,
valid and binding obligation of Shareholder, enforceable against Shareholder
in accordance with its terms, subject to (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules
of law governing specific performance, injunctive relief and other equitable
remedies.
5.2 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Voting Agreement and the
Proxy by Shareholder do not, and the performance of this Voting Agreement by
Shareholder, and the actions taken pursuant to the terms of the Proxy, will
not: (i) conflict with or violate any order, decree or judgment applicable to
Shareholder or by which he or any of his properties is bound or affected; or
(ii) result in any breach of or constitute a default (with notice or lapse of
time, or both) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of an Encumbrance
on the Subject Shares pursuant to, any Contract to
3.
which Shareholder is a party or by which Shareholder or any of his properties
is bound or affected.
(b) The execution and delivery of this Voting Agreement and the
Proxy by Shareholder do not, and the performance of this Voting Agreement by
Shareholder and the voting of the Subject Shares pursuant to the Proxy will
not, require any Consent of any Person.
5.3 TITLE TO SUBJECT SHARES. Shareholder owns of record and
beneficially the Subject Shares and rights to acquire shares of capital stock
of the Company set forth under Shareholder's name on the signature page
hereof and does not directly or indirectly own, either beneficially or of
record, any shares of capital stock of the Company, or rights to acquire any
shares of capital stock of the Company, other than the Subject Shares set
forth below Shareholder's name on the signature page hereof.
5.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the
date of this Voting Agreement, will be accurate in all respects at all times
through the Expiration Date and will be accurate in all respects as of the
date of the consummation of the Merger as if made on that date.
SECTION 6. COVENANTS OF SHAREHOLDER
6.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Shareholder will execute and deliver, or cause to be executed
and delivered, such additional or further arrangements, proxies, consents and
other instruments as Parent may reasonably request for the purpose of
effectively carrying out and furthering the intent of this Voting Agreement.
SECTION 7. MISCELLANEOUS
7.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made by Shareholder and Parent in
this Voting Agreement shall promptly terminate upon the Expiration Date.
7.2 INDEMNIFICATION. Without in any way limiting any of the rights or
remedies otherwise available to Parent, Shareholder shall hold harmless and
indemnify Parent from and against any Damages (regardless of whether or not
such Damages relate to a third party claim) which are directly or indirectly
suffered or incurred at any time by Parent, or to which Parent otherwise
becomes subject and that arise from any breach of any representation,
warranty, covenant or obligation of Shareholder contained herein.
7.3 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
7.4 NOTICES. Any notice or other communication required or permitted
to be delivered to either party under this Voting Agreement shall be in
writing and shall be deemed
4.
properly delivered, given and received when delivered (by hand, by registered
mail, by courier or express delivery service or by facsimile) to the address
or facsimile telephone number set forth beneath the name of such party below
(or to such other address or facsimile telephone number as such party shall
have specified in a written notice given to the other party hereto):
if to the Parent:
THE TITAN CORPORATION
with a copy to:
Cooley Godward LLP
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
Attention: X. Xxxxxxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
if to Shareholder:
at the address set forth below Shareholder's signature on the
signature page hereto;
7.5 SEVERABILITY. Any term or provision of this Voting Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Voting Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Voting Agreement in
any other jurisdiction. If any provision of this Voting Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
7.6 ENTIRE AGREEMENT. This Voting Agreement and any documents
delivered by the parties in connection herewith, including the Proxy,
constitute the entire agreement between the parties with respect to the
subject matter hereof and thereof and supersede all prior agreements and
understandings between the parties with respect thereto. No addition to or
modification of any provision of this Voting Agreement shall be binding upon
either party hereto unless made in writing and signed by both parties hereto.
The parties hereto waive trial by jury in any action at law or suit in
equity based upon, or arising out of, this Voting Agreement or the subject
matter hereof.
7.7 ASSIGNMENT, BINDING EFFECT. Neither this Voting Agreement nor any
portion hereof shall be assignable (whether by operation of law or otherwise
and including, for this purpose, a change in control as an assignment).
Subject to the preceding sentence, this Voting
5.
Agreement shall be binding upon and shall inure to the benefit of (i)
Shareholder and his heirs, successors and assigns and (ii) Parent and its
successors and assigns. Notwithstanding anything contained in this Voting
Agreement to the contrary, nothing in this Voting Agreement, expressed or
implied, is intended to confer on any Person other than the parties hereto or
their respective heirs, successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Voting Agreement.
7.8 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Voting
Agreement or the Proxy was not performed in accordance with its specific
terms or was otherwise breached. It is accordingly agreed that Parent shall
be entitled to an injunction or injunctions to prevent breaches of this
Voting Agreement and the Proxy and to enforce specifically the terms and
provisions hereof and thereof, this being in addition to any other remedy to
which Parent is entitled at law or in equity.
7.9 OTHER AGREEMENTS. Nothing in this Voting Agreement shall limit any
of the rights or remedies of Parent or any of the obligations of Shareholder
under any Affiliate Agreement between Parent and Shareholder.
7.10 GOVERNING LAW. This Voting Agreement shall be governed in all
respects by the laws of the State of Florida, as applied to contracts entered
into and to be performed entirely within the State of Florida.
7.11 COUNTERPARTS. This Voting Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
7.12 CONSTRUCTION.
(a) Headings of the Sections of this Voting Agreement are for the
convenience of the parties only, and shall be given no substantive or
interpretive effect whatsoever.
(b) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(c) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Voting Agreement.
(d) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
6.
(e) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of
this Voting Agreement and Exhibits to this Voting Agreement.
7.
IN WITNESS WHEREOF, Parent and Shareholder have caused this Voting
Agreement to be executed as of the date first written above.
THE TITAN CORPORATION
By:
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Name:
Title:
SHAREHOLDER:
---------------------------------------------------------------
((Name))
Number of Shares of Company Common Stock owned as of the
date of this Voting Agreement:
------------------------------------------------------------
Description (including number of underlying shares) of
rights to acquire shares of capital stock of the Company:
------------------------------------------------------------
------------------------------------------------------------
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8.
EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned Shareholder of DBA Systems, Inc., a Florida corporation (the
"Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes The Titan Corporation, a Delaware corporation
("Parent"), the attorney-in-fact and proxy of the undersigned, with full
power of substitution, with respect to (i) the shares of capital stock of the
Company owned by the undersigned as of the date of this proxy, which shares
are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire
after the date hereof. (The shares of the capital stock of the Company
referred to in clauses (i) and (ii) of the immediately preceding sentence are
collectively referred to as the "Shares.") Upon the execution hereof, all
prior proxies given by the undersigned with respect to any of the Shares are
hereby revoked, and no subsequent proxies will be given with respect to any
of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, Eagle Acquisition
Sub, Inc., a Florida corporation and wholly owned subsidiary of Titan Defense
Systems Corporation, a Delaware corporation and wholly owned subsidiary of
Parent, and the Company (the "Merger Agreement"). Capitalized terms used but
not otherwise defined in this proxy have the meanings ascribed to such terms
in the Merger Agreement.
The attorney and proxy named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Merger Agreement or the Effective Time at any
meeting of the Shareholders of the Company, however called, or in any written
action by consent of Shareholders of the Company:
(i) in favor of (1) the adoption and approval of
the Merger Agreement and the approval of the Merger; and (2) each of the
other actions contemplated by the Merger Agreement and any action
required in furtherance hereof and thereof; and
(ii) against any action or agreement that would
result in a breach of any representation, warranty, covenant or
obligation of the Company in the Merger Agreement.
The undersigned Shareholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
heirs, successors and assigns of the undersigned (including any transferee of
any of the Shares).
1.
This proxy shall terminate upon the Expiration Date.
Dated: December 29, 1997
SHAREHOLDER
----------------------------------------
((Name))
----------------------------------------
Number of Shares of Company Common
Stock:
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2.
