VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of December 29, 1997 by and
between DBA SYSTEMS, INC., a Florida corporation (the "Company"), and
Name ("Stockholder").
RECITALS
A. THE TITAN CORPORATION, a Delaware corporation ("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 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, Stockholder owns in aggregate (including
shares held both beneficially and of record) the number of shares of Parent
Common Stock set forth below Stockholder's name on the signature page hereof.
C. As a condition to the willingness of the Company to enter into the
Merger Agreement, the Company has required that Stockholder agree, and in
order to induce the Company to enter into the Merger Agreement Stockholder
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 Stockholder,
together with any shares of Parent capital stock that may hereafter be
acquired by Stockholder (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) Stockholder hereby covenants and agrees that prior to the
Expiration Date (as defined below), Stockholder 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, (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. Stockholder 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 Stockholders of Parent, however called,
and in any written action by consent of stockholders of Parent, unless
otherwise directed in writing by the Company, stockholder shall vote the
Subject Shares in favor of the adoption and approval of the Merger Agreement
and the Merger. Prior to the earlier to occur of the valid termination of the
Merger Agreement or the Effective Time, Stockholder shall not enter into any
agreement or understanding with any Person to vote or give instructions in
any manner inconsistent with the preceding sentence.
2.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Voting Agreement,
Stockholder shall deliver to the Company 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) Stockholder shall perform such further acts and execute such further
documents and instruments as may reasonably be required to vest in the
Company the power to carry out and give effect to the provisions of this
Voting Agreement.
SECTION 3. WAIVER OF APPRAISAL RIGHTS.
Stockholder hereby waives any rights of appraisal and any dissenters'
rights that Stockholder may have in connection with the Merger.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to the Company as follows:
4.1 DUE AUTHORIZATION, ETC. Stockholder 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 Stockholder and constitutes a legal,
valid and binding obligation of Stockholder, enforceable against Stockholder
in accordance with its terms, subject to (i) laws of general application
2.
relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules
of law governing specific performance, injunctive relief and other equitable
remedies.
4.2 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS.
(c) The execution and delivery of this Voting Agreement and the
Proxy by Stockholder do not, and the performance of this Voting Agreement by
Stockholder, 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
Stockholder 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 which Stockholder is a
party or by which Stockholder or any of his properties is bound or affected.
(d) The execution and delivery of this Voting Agreement and the
Proxy by Stockholder do not, and the performance of this Voting Agreement by
Stockholder and the voting of the Subject Shares pursuant to the Proxy will
not, require any Consent of any Person.
4.3 TITLE TO SUBJECT SHARES. Stockholder owns of record and
beneficially the Subject Shares and rights to acquire shares of capital stock
of the Company set forth under Stockholder'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 Parent, or rights to acquire any
shares of capital stock of Parent, other than the Subject Shares set forth
below Stockholder's name on the signature page hereof.
4.4 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 5. COVENANTS OF STOCKHOLDER
5.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder will execute and deliver, or cause to be executed
and delivered, such additional or further arrangements, proxies, consents and
other instruments as the Company may reasonably request for the purpose of
effectively carrying out and furthering the intent of this Voting Agreement.
SECTION 6. MISCELLANEOUS
6.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made by Stockholder and the
Company in this Voting Agreement shall promptly terminate upon the Expiration
Date.
3.
6.2 INDEMNIFICATION. Without in any way limiting any of the rights or
remedies otherwise available to the Company, Stockholder shall hold harmless
and indemnify the Company from and against any damages suffered or incurred
by the Company and that arise from any breach of any representation,
warranty, covenant or obligation of Stockholder contained herein.
6.3 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.
6.4 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 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 Stockholder:
at the address set forth below Stockholder's signature on the
signature page hereto;
if to Company:
DBA Systems, Inc.
with a copy to:
Arent Fox
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X., 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
6.5 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.
6.6 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
4.
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.
6.7 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 Agreement shall be binding
upon and shall inure to the benefit of (i) Stockholder and his heirs,
successors and assigns and (ii) the Company 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.
6.8 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.
6.9 OTHER AGREEMENTS. Nothing in this Voting Agreement shall limit any
of the rights or remedies of the Company or any of the obligations of
Stockholder under any Affiliate Agreement between the Company and Stockholder
or any other agreement.
6.10 GOVERNING LAW. This Voting Agreement shall be governed in all
respects by the laws of the State of Delaware, as applied to contracts
entered into and to be performed entirely within the State of Delaware.
6.11 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.
6.12 CONSTRUCTION.
(e) 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.
(f) 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.
5.
(g) 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.
(h) 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."
(i) 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.
IN WITNESS WHEREOF, Parent and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
DBA SYSTEMS, INC.
By:
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Name:
Title:
STOCKHOLDER:
----------------------------------------
Name
address
fax
Number of Shares of Parent 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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6.
EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned Stockholder of The Titan Corporation, Inc., a Delaware
corporation ("Parent"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes DBA Systems, Inc., a Florida corporation
(the "Company"), 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
the Company and the undersigned (the "Voting Agreement"), and is granted in
consideration of the Company 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 Stockholders of Parent, however called, or in any written
action by consent of Stockholders of Parent in favor of the adoption and
approval of the Merger Agreement and the Merger.
The undersigned Stockholder may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, successors and assigns of the
undersigned (including any transferee of any of the Shares).
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).
This proxy shall terminate upon the Expiration Date.
Dated: December 29, 1997
STOCKHOLDER
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Name
Number of Shares of Parent Common Stock:
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2.
