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Exhibit (d)(2)
VOTING AND TENDER AGREEMENT
THIS VOTING AND TENDER AGREEMENT (this "AGREEMENT"), dated as of April
2, 2001, is by and among XXXXXX CORPORATION, a Delaware corporation
("ACQUIROR"), MANATEE MERGER CORP., a Delaware a corporation and a wholly owned
subsidiary of Acquiror ("ACQUIROR SUB"), and the undersigned stockholder (the
"STOCKHOLDER") of Exigent International, Inc., a Delaware corporation (the
"TARGET").
WHEREAS, Acquiror, Acquiror Sub and the Target, propose to enter into
an Agreement and Plan of Merger dated as of even date herewith (as the same may
be amended or supplemented, the "MERGER AGREEMENT") to provide for (i) the
making of a cash tender offer (as such offer may be amended from time to time,
the "OFFER") by Acquiror Sub for any and all shares of common stock, $0.01 par
value, of the Target (the "SHARES") at the Per Share Amount, and (ii) the merger
of the Target and Acquiror Sub (the "MERGER");
WHEREAS, unless otherwise set forth herein or unless the context
requires otherwise, capitalized terms used herein shall have the meaning
assigned to such term in the Merger Agreement;
WHEREAS, the Stockholder legally and/or beneficially owns that number
of Shares appearing on the signature page hereof (such Shares, as they may be
increased upon any acquisition of legal or beneficial ownership of other Shares,
including upon purchase or upon exercise of any option or warrant to purchase
Shares, as they may be adjusted by any stock dividend, stock split,
recapitalization, combination or exchange of shares, merger, consolidation,
reorganization or other change or transaction of or by the Target being referred
to herein as the "ACQUIROR SUBJECT SHARES"); and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Acquiror and Acquiror Sub have requested that the Stockholder enter
into this Agreement;
NOW, THEREFORE, to induce Acquiror and Acquiror Sub to enter into, and
in consideration of their entering into, the Merger Agreement, and in
consideration of the premises and the representations, warranties, covenants and
agreements contained herein, the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The Stockholder
hereby represents and warrants to Acquiror and Acquiror Sub as follows:
(a) AUTHORITY. The Stockholder has all requisite capacity,
power and authority to enter into this Agreement and to consummate the
transactions contemplated to be taken by Stockholder hereby. This Agreement has
been duly authorized, executed and delivered by the Stockholder and constitutes
a valid and binding obligation of the Stockholder enforceable in accordance with
its terms. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time or both) under any provision of, any
trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
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lease or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or regulation
applicable to the Stockholder or to the Stockholder's property or assets. Except
for informational filings with the SEC, no consent, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic, foreign or supranational, is required by or with
respect to the Stockholder in connection with the execution and delivery of this
Agreement or the consummation by the Stockholder of the transactions
contemplated hereby.
(b) THE ACQUIROR SUBJECT SHARES. The Stockholder has good and
marketable title to the Acquiror Subject Shares, free and clear of any claims,
liens, encumbrances and security interests whatsoever. The Stockholder owns no
Shares other than the Acquiror Subject Shares. The Stockholder owns options to
purchase Shares as described in Section 3.10 of the Target Disclosure Schedule
of the Merger Agreement.
2. REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND ACQUIROR SUB.
Acquiror and Acquiror Sub hereby represent and warrant to the Stockholder that
each of Acquiror and Acquiror Sub has all requisite corporate power and
authority to enter into this Agreement and the Merger Agreement and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Merger Agreement by Acquiror and Acquiror
Sub, and the consummation of the transactions contemplated hereby and thereby,
have been duly authorized by all necessary corporate action on the part of
Acquiror and Acquiror Sub. This Agreement and the Merger Agreement have been
duly executed and delivered by Acquiror and Acquiror Sub and constitutes valid
and binding obligations of Acquiror and Acquiror Sub enforceable in accordance
with their respective terms.
3. COVENANTS OF THE STOCKHOLDER. The Stockholder agrees as follows:
(a) At any meeting of stockholders of the Target called to
vote upon the Merger and the Merger Agreement or at any adjournment thereof or
in any other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought, the Stockholder shall
vote (or cause to be voted) the Acquiror Subject Shares, in favor of the Merger,
the approval of the Merger Agreement and the approval of the terms thereof and
each of the other transactions contemplated by the Merger Agreement.
(b) At any meeting of stockholders of the Target or at any
adjournment thereof or in any other circumstances upon which the Stockholder's
vote, consent or other approval is sought, the Stockholder shall vote (or cause
to be voted) the Acquiror Subject Shares against (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Target or any other Business
Combination Proposal or (ii) any amendment of the Target's Certificate of
Incorporation or By-laws or other proposal or transaction involving the Target
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or any of its affiliates, which amendment or other proposal or transaction would
in any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement (including any profit sharing arrangement) with respect to the sale,
transfer, pledge, assignment or other disposition of, the Acquiror Subject
Shares to any person other than Acquiror Sub or Acquiror Sub's designee or (ii)
enter into any voting arrangement, whether by proxy, voting agreement or
otherwise, in connection, directly or indirectly, with any Business Combination
Proposal.
(d) So long as the Merger Agreement has not been terminated
and the Offer is not amended in a manner prohibited by the Merger Agreement),
the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the
Shares owned by him.
(e) The Stockholder hereby consents and agrees that upon the
Effective Time, each outstanding Option held by him shall be canceled, and that
the Stockholder shall be entitled to receive from Acquiror Sub at the same time
as payment for the Shares is made by the Acquiror Sub in connection with the
Merger, in consideration for the cancellation of such Option, an amount in cash
equal to the product of (i) the number of Shares previously subject to such
Option and (ii) the excess, if any, of the Per Share Amount over the exercise
price per Share previously subject to such Option.
4. ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties, except that Acquiror Sub may assign
any or all of its rights, interests and obligations hereunder, in its sole
discretion, to Acquiror or, with the consent of the Stockholder, which consent
shall not be unreasonably withheld or delayed, to any direct or indirect wholly
owned subsidiary of Acquiror. 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 and assigns and, in the case of the Stockholder,
the heirs, executors and administrators of the Stockholder.
5. TERMINATION. This Agreement shall terminate upon the earliest of the
following events (each a "TERMINATION EVENT"):
(a) the Effective Time;
(b) the termination of the Merger Agreement pursuant to
Section 8.01 thereof, provided, however, in the event the Merger Agreement is
terminated pursuant to the following provisions of the Merger Agreement, 90 days
after such termination:
(i) a termination under Section 8.01(c) thereof
because the Board of Directors of the Target or any committee thereof has
withdrawn or modified its approval or recommendation of the Offer, the Merger or
the Merger Agreement, as provided in paragraph d of Annex A to the Merger
Agreement, or because the Board of Directors of the Target or any committee
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thereof has adopted a resolution to effect any of the foregoing, as provided in
paragraph d of Annex A to the Merger Agreement, if prior to the time of such
withdrawal or modification, or the adoption of such resolution, a Superior
Proposal shall have been made; or
(ii) a termination under Section 8.01(c) thereof
because the Board of Directors of the Target or any committee thereof has
approved or recommended a Superior Proposal, as provided in paragraph d of Annex
A to the Merger Agreement, or because the Board of Directors of the Target or
any committee thereof has adopted a resolution to effect such approval or
recommendation, as provided in paragraph d of Annex A to the Merger Agreement;
or
(iii) a termination of the Merger Agreement under
Section 8.01(d)(ii) thereof;
(c) the amendment of the Merger Agreement in a manner adverse
to the Stockholder without the Stockholder's consent, which consent shall not be
unreasonably withheld or delayed; or
(d) the failure of the Acquiror Sub to make the Offer in
accordance with the Merger or failure to comply with the terms of such Offer.
6. NO LIMITATIONS ON ACTIONS OF THE STOCKHOLDER AS A DIRECTOR, OFFICER
OR EMPLOYEE. Notwithstanding anything to the contrary in this Agreement, nothing
in this Agreement is intended or shall be construed to require the Stockholder
to take or in any way limit any action that the Stockholder may take to
discharge the Stockholder's duties as a director, officer or employee of the
Target, including fiduciary duties.
7. RELIANCE ON COUNSEL AND OTHER ADVISORS. Each of the parties hereto
has consulted with such legal, financial, technical or other experts it deems
necessary or desirable before entering into this Agreement. Each of the parties
hereto represents and warrants that it has read, knows, understands and agrees
with the terms and conditions of this Agreement. None of the parties hereto has
relied upon any oral representations of the other party in entering into this
Agreement.
8. GENERAL PROVISIONS.
(a) EXPENSES. Except as otherwise expressly provided herein or
in the Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
(b) SPECIFIC PERFORMANCE. The parties recognize and agree that
if for any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
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an adequate remedy. Accordingly, each party agrees that, in addition to other
remedies, the other party shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this Agreement. In the
event that any action should be brought in equity to enforce the provisions of
the Agreement, none of the parties will allege, and each of the parties hereby
waives the defense, that there is an adequate remedy at law.
(c) JURISDICTION; VENUE. Each party hereby irrevocably submits
to the exclusive jurisdiction of the United States District Court for the
Northern District of Florida in any action, suit or proceeding arising in
connection with this Agreement, and agrees that any such action, suit or
proceeding shall be brought only in such courts (and waives any objection based
on forum non convenience or any other objection to venue therein).
(d) NOTICE. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given or delivered
(i) when delivered personally, (ii) if transmitted by Fax when confirmation of
transmission is received, or (iii) if sent by registered or certified mail,
return receipt requested, or by private courier, when received; and shall be
addressed as follows:
if to Acquiror or Acquiror Sub, to:
Xxxxxx Corporation
0000 Xxxx XXXX Xxxx.
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: 000-000-0000
with a copy (which shall
not constitute notice) to:
Holland & Knight LLP
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: T. Xxxxxxx Xxxxxx, Esq.
Facsimile: 000-000-0000
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if to the Stockholder, to:
Xxxxxx Xxxxxxx
000 Xxx X0X, #000
Xxxxxxxxx Xxxxx, XX 00000
or to such other address as such party may indicate by a notice delivered to the
other parties in accordance with this section.
(e) PARTIES IN INTEREST. Nothing in this Agreement, expressed
or implied, is intended to confer upon any Person other than Acquiror, Acquiror
Sub or the Stockholder, or their permitted successors or assigns, any rights or
remedies under or by reason of this Agreement.
(f) ENTIRE AGREEMENT; AMENDMENTS; WAIVER. This Agreement
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties or any of them with respect to the subject
matter hereof. This Agreement may be amended by the parties hereto and the terms
and conditions hereof may be waived only by an instrument in writing signed on
behalf of each of the parties hereto, or, in the case of a waiver, by an
instrument signed on behalf of the party waiving compliance.
(g) HEADINGS. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
(h) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be considered an original instrument, but all
of which shall be considered one and the same agreement, and shall become
binding when such counterparts have been signed by each of the parties hereto
and delivered to each of the other parties.
(i) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws (as opposed to the conflicts of
law provisions) of the State of Delaware.
(j) CAPITALIZED TERMS. Capitalized terms not otherwise defined
in this Agreement shall have the meanings set forth in the Merger Agreement.
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(k) SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other terms, conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic and
legal substance of the transactions contemplated hereby are not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated by this Agreement may be
consummated as originally contemplated to the fullest extent possible.
(l) WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY OR DISPUTE THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (I) 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 THE FOREGOING WAIVER, (II) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III)
EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS CLAUSE (l).
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IN WITNESS WHEREOF, each of Acquiror and Acquiror Sub has caused this
Agreement to be signed by its officer thereunto duly authorized and the
Stockholder has signed this Agreement, all as of the date first written above.
XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President, Government
Communications Systems Division
MANATEE MERGER CORP.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXX XXXXXXX
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Number of Shares owned by the
Stockholder on the date hereof:
139,100
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