TENDER AND SUPPORT AGREEMENT
Exhibit
9.1
TENDER AND
SUPPORT AGREEMENT (this "Agreement") dated as
of August 16, 2010 by and among FLIR Systems, Inc., an Oregon corporation
("Parent"),
Indicator Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary
of Parent ("Merger
Sub"), and each stockholder listed on Annex I (each, a "Stockholder" and
collectively, the "Stockholders"), each
an owner of Shares of ICx Technologies, Inc., a Delaware corporation (the "Company").
WHEREAS,
as of the date hereof, each Stockholder is the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of the number of Shares set forth opposite
such Stockholder's name under the heading "Shares Beneficially Owned" on Annex I
(all such directly owned Shares which are outstanding as of the date hereof and
which may hereafter be acquired pursuant to acquisition by purchase, stock
dividend, distribution, stock split, split-up, combination, merger,
consolidation, reorganization, recapitalization, combination or similar
transaction, being referred to herein as the "Subject Shares;"
provided that
"Subject
Shares" shall not include Shares beneficially owned in the form of
Company Options or restricted stock, but only to the extent such Shares remain
unvested, restricted or unexercised, as the case may be);
WHEREAS,
as a condition to their willingness to enter into the Agreement and Plan of
Merger (the "Merger
Agreement") dated as of the date hereof by and among Parent, Merger Sub
and the Company, Parent and Merger Sub have requested that each Stockholder, and
in order to induce Parent and Merger Sub to enter into the Merger Agreement,
each Stockholder (only in such Stockholder's capacity as a stockholder of the
Company) has agreed to, enter into this Agreement;
WHEREAS,
capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Merger Agreement.
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration given to each party hereto, the receipt of which is hereby
acknowledged, the parties agree as follows:
ARTICLE
I
AGREEMENT TO TENDER AND
VOTE
Section
1.1 Agreement to Tender. Each
Stockholder shall duly tender, in the Offer, all of the Subject Shares pursuant
to and in accordance with the terms of the Offer, provided the Offer Price does
not decrease. Promptly, but in any event no later than ten Business
Days after the commencement of the Offer, each Stockholder shall (i) deliver to
the depositary designated in the Offer (the "Depositary") (A) a letter of
transmittal with respect to its Subject Shares complying with the terms of the
Offer, (B) a certificate or certificates representing such Subject Shares or an
"agent's message" (or such other evidence, if any, of transfer as the Depositary
may reasonably request) in the case of a book-entry transfer of any
uncertificated Subject Shares and (C) all other documents or instruments
required to be delivered pursuant to the terms of the Offer, and/or (ii)
instruct such Stockholder's broker or such other person that is the holder of
record of any Subject Shares beneficially owned by such Stockholder to tender
such Subject Shares pursuant to and in accordance with the terms of the
Offer. Each Stockholder shall duly tender to Merger Sub during any
Subsequent Offering Period provided by Merger Sub in accordance with the terms
of the Offer, all of the Subject Shares, if any, which shall have been issued
after the Initial Expiration Time. Each Stockholder agrees that once
its Subject Shares are tendered pursuant to the terms hereof, such Stockholder
will not withdraw any tender of such Subject Shares, unless and until (i) the
Offer shall have been terminated or shall have expired, in each case, in
accordance with the terms of the Merger Agreement, or (ii) this Agreement shall
have been terminated in accordance with Section 2.3 hereof.
Section
1.2 Voting of
Subject Shares. At every
meeting of the stockholders of the Company called for such purpose, and at every
adjournment or postponement thereof, each Stockholder shall, or shall cause the
holder of record on any applicable record date to, vote its Subject Shares (to
the extent that any of such Stockholder's Subject Shares are not purchased in
the Offer and provided that neither the Offer Price nor the Merger Consideration
was decreased) (i) in favor of the adoption of the Merger Agreement and the
transactions contemplated thereby, (ii) against (A) any agreement or arrangement
related to any Acquisition Proposal, and (B) any liquidation, dissolution,
recapitalization, extraordinary dividend or other significant corporate
reorganization of the Company or any of its Subsidiaries, and (iii) in favor of
any other matter necessary for consummation of the transactions contemplated by
the Merger Agreement which is considered at any such meeting of stockholders,
and in connection therewith, such Stockholder shall execute any documents which
are necessary or appropriate in order to effectuate the
foregoing. Each Stockholder shall retain at all times the right to
vote its Subject Shares in its sole discretion and without any other limitation
on those matters other than those set forth in this Section 1.2 that are at any time or from time to time
presented for consideration to the Company's stockholders
generally. In the event that any meeting of the stockholders of the
Company is held, such Stockholder shall, or shall cause the holder of record on
any applicable record date to, appear at such meeting or otherwise cause its
Subject Shares (to the extent that any of such Stockholder's Subject Shares are
not purchased in the Offer) to be counted as present thereat for purposes of
establishing a quorum.
Section
1.3 No Transfers;
No Inconsistent Arrangements. Except as
provided hereunder or under the Merger Agreement, such Stockholder shall not,
directly or indirectly, (i) transfer (which term shall include any sale,
assignment, gift, pledge, hypothecation or other disposition), or consent to or
permit any such transfer of, any or all of such Stockholder's Subject Shares or
any interest therein (except where the transferee or third party agrees in
writing to be bound by the terms hereof), or create or permit to exist any Lien
that would prevent such Stockholder from tendering its Subject Shares in
accordance with this Agreement or from complying with its other obligations
under this Agreement, other than any restrictions imposed by applicable Law or
pursuant to this Agreement, on any such Subject Shares, (ii) enter into any
contracts inconsistent with the terms hereof with respect to any transfer of
such Subject Shares or any interest therein, (iii) grant or permit the grant of
any proxy, power of attorney or other authorization in or with respect to such
Subject Shares relating to the subject matter hereof, (iv) deposit or permit the
deposit of such Subject Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Subject Shares, or (v) take or
permit any other action that would in any way restrict, limit or interfere with
the performance of its obligations hereunder or the transactions contemplated
hereby.
Section
1.4 Appraisal Rights.
Each
Stockholder agrees not to exercise any appraisal rights in respect of its
Subject Shares which may arise with respect to the Merger under Section 262 of
the DGCL or otherwise.
Section
1.5 Documentation
and Information. Each
Stockholder (i) consents to and authorizes the publication and disclosure by
Parent of its identity and holding of Subject Shares, and the nature of its
commitments, arrangements and understandings under this Agreement, in any press
release, the Offer Documents, or any other disclosure document required in
connection with the Offer, the Merger and any transactions contemplated by the
Merger Agreement, and (ii) agrees as promptly as practicable to give to Parent
any information reasonably related to the foregoing that it may reasonably
require for the preparation of any such disclosure documents. Each
Stockholder agrees as promptly as practicable to notify Parent of any required
corrections with respect to any written information supplied by such Stockholder
specifically for use in any such disclosure document, if and to the extent such
Stockholder becomes aware that any such information shall have become false or
misleading in any material respect.
Section
1.6 Changes to Shares.
In the
event of any stock dividend or distribution, or any change to the Shares by
reason of any stock dividend or distribution, split-up, recapitalization,
combination, exchange of shares or any other similar transaction, the term
"Shares" as used in this Agreement shall be deemed to refer to and include the
Shares and all such stock dividends and distributions and any securities into
which or for which any or all of the Shares may be changed or exchanged or which
are received in the relevant transaction.
Section
1.7 Representations
and Warranties.Each
Stockholder represents and warrants to Parent and Merger Sub as
follows:
This
Agreement has been duly and validly executed and delivered by such Stockholder
and, assuming this Agreement constitutes a valid and binding obligation of each
of Parent and Merger Sub, constitutes a legal, valid and binding agreement of
such Stockholder enforceable against such Stockholder in accordance with its
terms. The execution, delivery and performance by such Stockholder of
this Agreement and the consummation of the transactions contemplated hereby do
not and will not conflict with, or result in the breach or termination of or
constitute a default (with or without the giving of notice or the lapse of time
or both) under, any provision of any contract binding upon such Stockholder or
any of its Affiliates, except for any such conflicts, breaches, terminations and
defaults which would not, individually or in the aggregate, be reasonably
expected to prevent, delay or impair the consummation by such Stockholder of the
transactions contemplated by this Agreement. Each Stockholder has,
and on the date Merger Sub becomes obligated to accept for payment, purchase and
pay for such Stockholders' Shares such Stockholder will have, good and valid
title to the Subject Shares, free and clear of any Liens, proxies, voting trusts
or agreements, understandings or arrangements. Other than this
Agreement, there are no options or rights to acquire or any agreements to which
such Stockholder is a party or is subject relating to the Subject Shares. The
Stockholder is not party to any agreement which would preclude such
Stockholder's ability to sell the Subject Shares pursuant to the
Offer. As of the date hereof, the Shares Beneficially Owned by each
Stockholder as listed on Annex I represent all of the Shares beneficially owned
(within the meaning of Rule 13d 3 under the Exchange Act) by such
Stockholder.
ARTICLE
II
MISCELLANEOUS
Section
2.1 Notices.All
notices, consents and other communications hereunder shall be all other parties
to this Agreement and to the Company in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by hand delivery, by prepaid
overnight courier (providing written proof of delivery), by confirmed facsimile
transmission or by certified or registered mail (return receipt requested and
first class postage prepaid), addressed as follows:
(a) if
to Parent or Merger Sub, to:
FLIR
Systems, Inc.
00000 XX
Xxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: General
Counsel
with a
copy to:
Sidley
Austin LLP
Xxx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile: (000)
000-0000
Attention:
Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxxxxxx
(b) if
to the Stockholders, to:
000 Xxxx
Xxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxx
Xxxxx and Xxxxxx Xxxxxx
(c) if
to the Company, to:
ICx
Technologies, Inc.
0000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxx
X. Xxxxxxx
with a
copy to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxx
Xxxxx Xxxxxx and Xxxxxxx X. Xxxx
or to
such other address or facsimile number for a party as shall be specified in a
notice given in accordance with this section; provided that any
notice received by facsimile transmission or otherwise at the addressee's
location on any Business Day after 5:00 P.M. (addressee's local time) shall be
deemed to have been received at 9:00 A.M. (addressee's local time) on the next
Business Day; provided further that notice
of any change to the address or any of the other details specified in or
pursuant to this section shall not be deemed to have been received until, and
shall be deemed to have been received upon, the later of the date specified in
such notice or the date that is five Business Days after such notice would
otherwise be deemed to have been received pursuant to this section. A
party's rejection or other refusal to accept notice hereunder or the inability
of another party to deliver notice to such party because of such party's changed
address or facsimile number of which no notice was given by such party shall be
deemed to be receipt of the notice by such party as of the date of such
rejection, refusal or inability to deliver. Nothing in this section
shall be deemed to constitute consent to the manner or address for service of
process in connection with any legal proceeding, including litigation arising
out of or in connection with this Agreement.
Section
2.2 Further
Assurances.Each
Stockholder will, from time to time, execute and deliver, or cause to be
executed and delivered, such additional documents as Parent or Merger Sub may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
Section
2.3 Termination.This
Agreement shall terminate in its entirety upon the earliest to occur of (i) the
termination of the Merger Agreement in accordance with its terms, (ii) the
Effective Time or (iii) any reduction of the Offer Price or the Merger
Consideration or waiver or amendment of the Minimum Condition. In
addition, upon a Change in Recommendation under and in compliance with the
Merger Agreement, the provisions set forth in Sections 1.1, 1.2 and 1.3 of this
Agreement shall not apply for so long as such Change in Recommendation shall
remain in effect; provided, however, that if the Board of Directors of the
Company withdraws such Change of Recommendation and recommends that the
stockholders of the Company accept the Offer, tender their Shares in the Offer
and, to the extent required under applicable law, approve the Merger and adopt
the Merger Agreement (a “Renewed Recommendation”), the provisions of Sections
1.1, 1.2 and 1.3 of this Agreement shall thereafter remain in full force and
effect for so long as such Renewed Recommendation remains in
effect. Notwithstanding the foregoing, (i) termination of this
Agreement shall not prevent any party hereunder from seeking any remedies (at
Law or in equity) against any other party hereto for such party’s breach of any
of the terms of this Agreement, and (ii) Section 1.7 and Section 2.1 through
Section 2.15, inclusive, of this Agreement shall survive the termination of this
Agreement.
Section
2.4 Amendments and
Waivers
(a) 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.
(b) Any
failure of any of the parties to comply with any obligation, covenant, agreement
or condition herein may be waived by the party or parties entitled to the
benefits thereof only by a written instrument signed by the party expressly
granting such waiver, which expressly states that it is intended to waive a
right hereunder, but such waiver or failure to insist upon strict compliance
with such obligation, covenant, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other
failure.
Section
2.5 Expenses.
All costs
and expenses incurred in connection with this Agreement shall be paid by the
party incurring such costs and expenses, whether or not the transactions
contemplated by this Agreement or the Merger Agreement are
consummated.
Section
2.6 Binding Effect; Benefit;
Assignment.Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto without the prior written consent of
the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors (including by operation of law) and permitted
assigns.
Section
2.7 Governing
Law.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.
Section
2.8 Counterparts.This
Agreement may be executed in multiple counterparts, all of which shall together
be considered one and the same agreement.
Section
2.9 Jurisdiction.
Each of
the parties hereto hereby (a) expressly and irrevocably submits to the exclusive
personal jurisdiction of the Delaware Court of Chancery, any other court of the
State of Delaware and any Federal court sitting in the State of Delaware in the
event any dispute arises out of this Agreement, (b) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (c) agrees that such party will not bring
any action relating to this Agreement in any court other than the Delaware Court
of Chancery, any other court of the State of Delaware and any Federal court
sitting in the State of Delaware and (d) agrees that each of the other parties
shall have the right to bring any action or proceeding for enforcement of a
judgment entered by the Delaware Court of Chancery, any other court of the State
of Delaware and any Federal court sitting in the State of
Delaware. Each of Parent, Merger Sub and each Stockholder agrees that
a final judgment in any 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.
Section
2.10 Service of
Process.Each
party irrevocably consents to the service of process outside the territorial
jurisdiction of the courts referred to in Section 2.09 hereof in any such action
or proceeding by mailing copies thereof by registered or certified United States
mail, postage prepaid, return receipt requested, to such party's address as
specified in or pursuant to Section 2.01 hereof. However, the
foregoing shall not limit the right of a party to effect service of process on
the other party by any other legally available method.
Section
2.11 Entire Agreement; Third
Party Beneficiaries.This
Agreement (a) 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 and (b) is not intended to confer upon any
Person other than the parties hereto any rights or remedies
hereunder.
Section
2.12 Severability.If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void, unenforceable or
against its regulatory policy, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
Section
2.13 Specific
Performance.Each of
the parties hereto acknowledges and agrees that, in the event of any breach of
this Agreement, each nonbreaching party would be irreparably and immediately
harmed and could not be made whole by monetary damages. It is
accordingly agreed that the parties hereto (a) will waive, in any action for
specific performance, the defense of adequacy of a remedy at law and (b) shall
be entitled, in addition to any other remedy to which they may be entitled at
law or in equity, to compel specific performance of this Agreement in any action
instituted in accordance with Section 2.09.
Section
2.14 Stockholder
Capacity.Notwithstanding
any provision of this Agreement to the contrary, nothing in this Agreement shall
(or shall require any Stockholder to attempt to) affect or limit any Stockholder
who is a director or officer of the Company from acting in such capacity it
being understood that this Agreement shall apply to each Stockholder solely in
each Stockholder's capacity as a stockholder of the Company.
Section
2.15 Stockholder
Obligations Several and Not Joint.The
obligations of each Stockholder hereunder shall be several and not joint and no
Stockholder shall be liable for any breach of the terms of this Agreement by any
other Stockholder.
[REMAINDER
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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 day and year first
above written.
FLIR
SYSTEMS, INC.
By: /s/ Xxxxxxx X.
Xxxxxxxxxxx
Name: Xxxxxxx
X. Xxxxxxxxxxx
Title: President,
Government
|
|
Systems
Division
|
INDICATOR
MERGER SUB, INC.
By: /s/ Xxxxxxx X.
Xxxxxxxxxxx
Name: Xxxxxxx
X. Xxxxxxxxxxx
Title: President
THE
STOCKHOLDERS:
DPI
LLC
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx X.
Xxxxxx
Title: President
XXXXXXXX
XX, L.P.
By:
Xxxxxxxx XX GP LLC, its general partner
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx X.
Xxxxxx
Title: President
WEXFORD
SPECTRUM INVESTORS LLC
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx X.
Xxxxxx
Title: President
WEXFORD
CATALYST INVESTORS LLC
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx X.
Xxxxxx
Title: President
XXXXXXX
INVESTORS LLC
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
ANNEX
I
|
Stockholder
|
Shares
Beneficially
Owned as of August 16, 2010
|
Subject
Shares
Outstanding
as of
August
16, 2010
|
|
DPI
LLC
|
16,876,166
|
16,876,166
|
|
XXXXXXXX
XX, L.P.1
|
2,804,306
|
2,677,056
|
|
WEXFORD
SPECTRUM INVESTORS LLC
|
1,000,000
|
1,000,000
|
|
WEXFORD
CATALYST INVESTORS LLC
|
670,000
|
670,000
|
|
XXXXXXX
INVESTORS LLC
|
260,000
|
260,000
|
1The
beneficial ownership information by Xxxxxxxx XX L.P. includes 127,250 shares
issuable upon exercise of warrants.
