EXHIBIT 10.1
VOTING AGREEMENT
by and among
DRS Technologies, Inc.,
IDT Holding, L.L.C.,
The Veritas Capital Fund, L.P.
and
Veritas Capital Management, L.L.C.,
dated as of August 15, 2003
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is entered into as of
August 15, 2003, by and among DRS Technologies, Inc., a Delaware corporation
("Parent"), Veritas Capital Management, L.L.C., a Delaware limited liability
company ("Capital Management"), The Veritas Capital Fund, L.P., a Delaware
limited partnership of which Capital Management is the sole general partner
("Capital Fund"), and IDT Holding, L.L.C., a Delaware limited liability
company in which Capital Fund owns 86.4% of the membership interests and is
the sole manager ("IDT Holding," and, collectively with Capital Management and
Capital Fund, the "Stockholders"). Capitalized terms used but not defined
herein shall have the meanings set forth in the Agreement and Plan of Merger
(the "Merger Agreement"), dated as of August 15, 2003, among Parent, MMC3
Corporation, a Delaware corporation and wholly-owned subsidiary of Parent
("Merger Sub"), and Integrated Defense Technologies, Inc., a Delaware
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, as of the date hereof, the Stockholders "beneficially
own" (as such term is defined in Rule 13d-3 promulgated under the Exchange
Act) (including entitlement to dispose of (or to direct the disposition of)
and to vote (or to direct the voting of)) 11,750,992 shares of common stock,
par value $0.01 per share (the "Common Stock"), of the Company (such shares of
Common Stock, together with any other shares of Common Stock the voting power
over which is directly or indirectly acquired by any Stockholder until the
termination of this Agreement pursuant to the terms hereof, are collectively
referred to herein as the "Subject Shares");
WHEREAS, simultaneously herewith, Parent, Merger Sub and the
Company are entering into the Merger Agreement, pursuant to which Merger Sub
will merge with and into the Company, with the Company surviving as a
wholly-owned subsidiary of Parent (the "Merger"); and
WHEREAS, as a condition to the willingness of Parent to enter
into the Merger Agreement, and as an inducement and in consideration therefor,
the Stockholders are executing this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements
contained herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Other Definitions. For purposes of this Agreement:
(a) "Affiliate" means, with respect to any specified Person, any
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified.
(b) "Person" means an individual, corporation, limited liability
company, general or limited partnership, association, trust, unincorporated
organization, other entity or group.
(c) "Representative" means, with respect to any particular Person,
any director, officer, employee, accountant, consultant, legal counsel,
investment banker, advisor, agent or other representative of such Person.
ARTICLE II
VOTING AGREEMENT AND IRREVOCABLE PROXY
Section 2.1 Agreement to Vote the Subject Shares.
(a) From and after the date hereof, at any meeting of the
Company's stockholders (or any adjournment or postponement thereof), however
called, or in connection with any action by written consent or other action of
the Company's stockholders, the Stockholders shall vote (or cause to be voted)
all of the Subject Shares:
(i) in favor of the adoption and approval of the terms of the
Merger Agreement, the Merger and the other transactions contemplated by
the Merger Agreement (and any actions required in furtherance thereof);
(ii) against any action, proposal, transaction or agreement
that would directly or indirectly result in a breach of any covenant,
representation, warranty or other obligation or agreement of the Company
set forth in the Merger Agreement or of the Stockholders set forth in
this Agreement; and
(iii) except with the prior written consent of Parent, against
the following actions or proposals (other than the transactions
contemplated by the Merger Agreement): (A) any Alternative Proposal; (B)
any change in the persons who constitute the board of directors of the
Company; (C) any material change in the present capitalization of the
Company or any amendment of the Company's certificate of incorporation or
bylaws; (D) any other material change in the Company's corporate
structure or business; or (E) any other action or proposal involving the
Company or any of its subsidiaries that is intended, or would reasonably
be expected, to prevent, impede, interfere with, delay, postpone or
adversely affect the transactions contemplated by the Merger Agreement.
(b) Any such vote shall be cast or consent shall be given in
accordance with such procedures relating thereto so as to ensure that it is
duly counted for purposes of determining that a quorum is present and for
purposes of recording the results of such vote or consent. Each Stockholder
agrees not to enter into any agreement or commitment with any Person the
effect of which would violate or be inconsistent with the provisions and
agreements set forth in this Article II.
Section 2.2 Grant of Proxy. Each Stockholder hereby appoints
Parent and any designee of Parent, and each of them individually, as such
Stockholder's proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent with respect the Subject
Shares in accordance with Section 2.1. This proxy is given to secure the
performance of the duties of each Stockholder under this Agreement. The
Stockholders shall promptly cause a copy of this Agreement to be deposited
with the Company at its principal place of business. Each Stockholder shall
take such further action or execute such other instruments as may be necessary
under applicable Law to effectuate the intent of this proxy.
Section 2.3 Irrevocability of Proxy. The proxy and power of
attorney granted pursuant to this Article 2 by the Stockholders shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in Law to support an irrevocable proxy and shall
revoke any and all prior proxies granted thereby. The power of attorney
granted by the Stockholders herein is a durable power of attorney and shall
survive the dissolution, bankruptcy or incapacity of the Stockholders. The
proxy and power of attorney granted hereunder shall terminate upon the
termination of this Agreement.
ARTICLE III
STANDSTILL AND NO-SOLICITATION
Section 3.1 Standstill. The Stockholders hereby agree that, from
and after the date hereof, the Stockholders and their Affiliates shall not,
directly or indirectly, unless (i) specifically requested by Parent or (ii)
expressly contemplated by the terms of this Agreement or the Merger Agreement:
(a) sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of (collectively, a "Transfer"), or enter into any contract, option or
other agreement with respect to, or consent to, a Transfer of, any or all of
the Subject Shares;
(b) acquire, offer to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any securities or direct or indirect
rights to acquire Common Stock or any other securities of the Company, or any
assets of the Company or any subsidiary or division thereof;
(c) make, or in any way participate in, directly or indirectly,
any "solicitation" of "proxies" (as such terms are used in the rules of the
Securities and Exchange Commission) to vote (including by consent), or seek to
advise or influence any person or entity with respect to the voting of, any
voting securities of the Company (including, without limitation, by making
publicly known your position on any matter presented to stockholders), other
than to recommend that stockholders of the Company vote in favor of the Merger
and the Merger Agreement;
(d) submit to the Company any stockholder proposal under Rule
14a-8 under the Exchange Act;
(e) make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions) any extraordinary
transaction involving the Company or its securities or assets;
(f) form, join or in any way participate in a "group" (as defined
in Section 13(d)(3) under the Exchange Act) in connection with any of the
foregoing;
(g) seek in any way, directly or indirectly, to have any provision
of this Section 3.1 amended, modified or waived; or
(h) otherwise take, directly or indirectly, any actions with the
purpose or effect of avoiding or circumventing any provision of this Section
3.1 or which could reasonably be expected to have the effect of preventing,
impeding, interfering with or adversely affecting the consummation of the
transactions contemplated by the Merger Agreement or its ability to perform
its obligations under this Agreement.
Section 3.2 Dividends, Distributions, Etc. In the event of a stock
dividend or distribution, or any change in the Common Stock by reason of any
stock dividend or distribution, split-up, recapitalization, combination,
exchange of shares or the like, the term "Subject Shares" shall be deemed to
refer to and include the Subject Shares as well as all such stock dividends
and distributions and any securities into which or for which any or all of the
Subject Shares may be changed or exchanged or which are received in such
transaction.
Section 3.3 Alternative Proposals. (a) The Stockholders shall not,
and they shall cause their Representatives not to, directly or indirectly
initiate, solicit, or knowingly encourage any inquiries or the making or
implementation of any Alternative Proposal or participate in any discussions
or negotiations concerning, or provide any confidential information or data
to, or have any discussions with, any Person relating to an Alternative
Proposal, or otherwise facilitate any effort or attempt to make or implement
an Alternative Proposal. Notwithstanding the foregoing, in connection with any
Alternative Proposal, the Stockholders may provide information and engage in
discussions with the Person making the Alternative Proposal to the same extent
as the Company is permitted to engage in discussions and provide information
pursuant to Section 5.1(a) of the Merger Agreement; provided, that a copy of
any information provided by the Stockholders with respect to such Acquisition
Proposal is simultaneously provided to Parent if it has not previously been
furnished or made available to Parent, but the Stockholders shall not be
subject to the requirements of clauses (w), (x), and (y) of Section 5.1(a) of
the Merger Agreement.
(b) The Stockholders shall promptly advise Parent of any request
for information or the submission or receipt of any Alternative Proposal, or
any inquiry with respect to or which could lead to any Alternative Proposal,
the material terms and conditions of such request, Alternative Proposal or
inquiry, and the identity of the Person making any such request, Alternative
Proposal or inquiry and its response or responses thereto. The Stockholders
shall keep Parent fully informed on a prompt basis of the status and details
(including amendments or proposed amendments) of any such request, Alternative
Proposal or inquiry, to the extent such Stockholders have knowledge thereof.
The Stockholders shall promptly provide to Parent copies of all written
correspondence or other written material, including material in electronic
form, between the Stockholders and any Person making any such request,
Alternative Proposal or inquiry. The Stockholders will immediately cease and
cause to be terminated any existing activities, discussions or negotiations
with any parties conducted heretofore with respect to any of the foregoing.
(c) The Stockholders agree that they will promptly inform their
and their Affiliates' Representatives of the obligations undertaken in this
Article 3.
(d) Notwithstanding the foregoing, each individual who is both (i)
a Representative of any Stockholder and (ii) a Representative of the Company
shall be entitled to take any action with respect to any Acquisition Proposal
solely in its capacity as a Representative of the Company that it would
otherwise be permitted to take in the absence of this Section 3.3.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
The Stockholders hereby represent and warrant, jointly and severally,
to Parent as follows:
Section 4.1 Due Organization, etc. Each Stockholder is duly organized
and validly existing under the Laws of the jurisdiction of formation. Each
Stockholder has all necessary power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by each Stockholder have been duly authorized
by all necessary action on the part of such Stockholder.
Section 4.2 Ownership of Shares. The Stockholders beneficially own
11,750,992 shares of Common Stock as of the date hereof, of which IDT Holding
is the record owner. As of the date hereof, IDT Holding is the lawful owner of
such shares of Common Stock. The Stockholders have the sole power to vote (or
cause to be voted) such shares of Common Stock. IDT Holding has good and valid
title to the Common Stock, free and clear of any and all pledges, mortgages,
liens, charges, proxies, voting agreements, encumbrances, adverse claims,
options, security interests and demands of any nature or kind whatsoever,
other than those created by this Agreement.
Section 4.3 No Conflicts. (i) No filing with any Governmental Entity
and no authorization, consent or approval of any other Person is necessary for
the execution of this Agreement by the Stockholders and the consummation by
the Stockholders of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by the Stockholders, the consummation
by any Stockholder of the transactions contemplated hereby or compliance by
any Stockholder with any of the provisions hereof shall (A) conflict with or
result in any breach of the organizational documents of any Stockholder, (B)
result in, or give rise to, a violation or breach of or a default under any of
the terms of any material contract, understanding, agreement or other
instrument or obligation to which any Stockholder is a party or by which any
Stockholder or any of the Subject Shares or the Stockholder's assets may be
bound, or (C) violate any applicable Law, except for any of the foregoing as
does not and could not reasonably be expected to impair any Stockholder's
ability to perform its obligations under this Agreement.
Section 4.4 Reliance by Parent. Each Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance
upon the execution and delivery of this Agreement by such Stockholder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to the Stockholders as follows:
Section 5.1 Due Organization, etc. Parent is a company duly organized
and validly existing under the Laws of the jurisdiction of its incorporation.
Parent has all necessary corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by Parent have been duly authorized by all
necessary action on the part of Parent.
Section 5.2 Conflicts. (i) No filing with any governmental authority,
and no authorization, consent or approval of any other Person is necessary for
the execution of this Agreement by Parent and the consummation by Parent of
the transactions contemplated hereby and (ii) neither the execution and
delivery of this Agreement by Parent nor the consummation by Parent of the
transactions contemplated hereby shall (A) conflict with or result in any
breach of the organizational documents of Parent, (B) result in, or give rise
to, a violation or breach of or a default under any of the terms of any
material contract, understanding, agreement or other instrument or obligation
to which Parent is a party or by which Parent or any of its assets may be
bound, or (C) violate any applicable Law, except for any of the foregoing as
does not and could not reasonably be expected to impair Parent's ability to
perform its obligations under this Agreement.
ARTICLE VI
TERMINATION
Section 6.1 Termination.
(a) Subject to Section 6.1(b), this Agreement shall terminate and
none of Parent or any Stockholder shall have any rights or obligations
hereunder upon the earliest to occur of: (i) the termination of this Agreement
by mutual written consent of Parent and the Stockholders, (ii) the Effective
Time, and (iii) the termination of the Merger Agreement in accordance with its
terms.
(b) 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 7.1 and Sections 7.3 through 7.15,
inclusive, of this Agreement shall survive the termination of this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Appraisal Rights. To the extent permitted by applicable
Law, each Stockholder hereby waives any rights of appraisal or rights to
dissent from the Merger that it may have under applicable Law.
Section 7.2 Publication. The Stockholders hereby permit Parent to
publish and disclose in the Proxy Statement and Registration Statement
(including all documents and schedules filed with the SEC) their identity and
ownership of shares of Common Stock and the nature of their commitments,
arrangements and understandings pursuant to this Agreement; provided, however,
that such publication and disclosure shall be subject to the prior review and
comment by the Stockholders and their advisors.
Section 7.3 Further Actions. Each of the parties hereto agrees that
it will use its reasonable best efforts to do all things necessary to
effectuate this Agreement.
Section 7.4 Notices. All notices and other communications given or
made pursuant hereto shall be in writing (including facsimile or similar
writing) and shall be deemed to have been duly given or made as of the date of
receipt and shall be delivered personally or mailed by registered or certified
mail (postage prepaid, return receipt requested), sent by overnight courier or
sent by facsimile (but only if the appropriate facsimile transmission
confirmation is received), to the applicable party at the following addresses
or facsimile numbers (or at such other address or telecopy number for a party
as shall be specified by like notice):
If to Parent to:
DRS Technologies, Inc.
0 Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Stockholders, to:
Veritas Capital Management, L.L.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Winston & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 7.5 Assignment; Binding Effect. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto, in whole or in part (whether by operation of Law or
otherwise), without the prior written consent of the other parties. Any
attempt to make any such assignment without such consent shall be null and
void, except that Parent may assign, in its sole discretion, any or all of its
rights, interests and obligations under this Agreement to any direct or
indirect wholly owned subsidiary of Parent without the consent of the Company,
but no such assignment shall relieve Parent of its obligations hereunder.
Subject to the preceding sentences, this Agreement will be binding upon, inure
to the benefit of and be enforceable by, the parties and their respective
successors and permitted assigns.
Section 7.6 Third Party Beneficiaries. Notwithstanding anything
contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to or shall confer on any Person other than
the parties hereto or their respective permitted successors and assigns any
rights, benefits, remedies, obligations or liabilities whatsoever under or by
reason of this Agreement.
Section 7.7 Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect thereto.
Section 7.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Delaware without regard
to its rules of conflict of Laws. Each of Parent and the Stockholders hereby
irrevocably and unconditionally: (i) consents to submit to the exclusive
jurisdiction of the Delaware Courts for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any litigation relating thereto except in such courts),
(ii) waives any objection to the laying of venue of any such litigation in the
Delaware Courts and (iii) agrees not to plead or claim in any Delaware Court
that such litigation brought therein has been brought in an inconvenient
forum. Each of the parties hereto irrevocably waive any and all rights to
trial by jury in any proceedings arising out of or related to this Agreement
or the transactions contemplated hereby.
Section 7.9 Fee and Expenses. Except as otherwise provided herein,
whether or not the Merger is consummated, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such costs and expenses.
Section 7.10 Headings. Headings of the articles and sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
Section 7.11 Interpretation. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, words denoting any gender shall include all genders and
words denoting natural Persons shall include corporations and partnerships and
vice versa. Whenever the words "include," "includes" or "including" are used
in this Agreement, they shall be understood to be followed by the words
"without limitation."
Section 7.12 Waivers. No action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
nor any failure or delay on the part of any party hereto in the exercise of
any right hereunder, shall be deemed to constitute a waiver by the party
taking such action of compliance of any representations, warranties, covenants
or agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a
waiver of any prior or subsequent breach of the same or any other provision
hereunder.
Section 7.13 Severability. Any term or provision of this Agreement
that is invalid, illegal 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 Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
Section 7.14 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any Delaware
Court, this being in addition to any other remedy to which they are entitled
at Law or in equity.
Section 7.15 Counterparts. This Agreement may be executed by the
parties hereto in two or more separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original. All such
counterparts shall together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof, each signed by less than
all, but together signed by all, of the parties hereto.
IN WITNESS WHEREOF, each of Parent and each Stockholder has
caused this Agreement to be duly executed as of the day and year first above
written.
DRS TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman, President and
Chief Executive Officer
VERITAS CAPITAL MANAGEMENT, L.L.C.
By: /s/ Xxxxxx X. XxXxxx
---------------------------
Name: Xxxxxx X. XxXxxx
Title: Authorized Signatory
THE VERITAS CAPITAL FUND, L.P.
By: /s/ Xxxxxx X. XxXxxx
---------------------------
Name: Xxxxxx X. XxXxxx
Title: Authorized Signatory
IDT HOLDING, L.L.C.
By: /s/ Xxxxxx X. XxXxxx
---------------------------
Name: Xxxxxx X. XxXxxx
Title: Authorized Signatory
