Exhibit 3.5
EXECUTION COPY
Annex B-5
SHAREHOLDER TENDER AND VOTING AGREEMENT
This SHAREHOLDER TENDER AND VOTING AGREEMENT (this "Agreement") is entered
into as of October 23, 2002, by and between DRS Technologies, Inc., a Delaware
corporation ("Parent"), Prince Merger Corporation, a Florida corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and X. Xxxxxx Xxxxxxxx, an
individual (the "Shareholder").
W I T N E S S E T H:
WHEREAS, as of the date hereof, Shareholder "beneficially owns" (as such
term is defined in Rule 13d-3 promulgated under the Exchange Act) and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of shares of common stock, par value $0.015 per
share (the "Common Stock"), of [Prince] Inc., a Florida corporation (the
"Company"), set forth opposite such Shareholder's name on Schedule I hereto
(such shares of Common Stock, together with any other shares of Common Stock the
power to dispose of or vote over which such Shareholder acquires during the
period from and including the date hereof through and including the date on
which this Agreement is terminated in accordance with its terms, are
collectively referred to herein as the "Subject Shares");
WHEREAS, Parent, Merger Sub and the Company propose to enter into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides for Merger Sub to commence a tender offer (the
"Offer") for all of the issued and outstanding shares of the Common Stock and
the merger of Merger Sub 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
Shareholder is 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
TENDER AGREEMENT AND IRREVOCABLE PROXY
Section 1.1 Tender Agreement. The Shareholder hereby agrees that
unless this Agreement is terminated pursuant to Article V hereof, (a) the
Shareholder shall tender the Subject Shares to Merger Sub in the Offer as
promptly as practicable, and in any event no later than the tenth Business Day,
following the commencement of the Offer pursuant to Section 1.1 of the Merger
Agreement, and (b) the Shareholder shall not
withdraw any Subject Shares so tendered unless the Offer is terminated or has
expired without Purchaser purchasing all shares of Common Stock validly tendered
in the Offer.
Section 1.2 Grant of Irrevocable Proxy. Shareholder hereby appoints
Parent and any designee of Parent, and each of them individually, as
Shareholder'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 (x) in favor of the 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), (y) against any action, proposal,
transaction or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company contained in the Merger Agreement or of the Shareholder contained in
this Agreement, and (z) except with the written consent of Parent, against the
following actions or proposals (other than the transactions contemplated by the
Merger Agreement): (i) any Acquisition Proposal; and (ii) (A) any change in the
persons who constitute the board of directors of the Company as such board is
constituted as of the date of this Agreement (or their successors who were so
approved); (B) any material change in the present capitalization of the Company
or any amendment of the Company's articles of incorporation or bylaws; (C) any
other material change in the Company's corporate structure or business; or (D)
any other action or proposal involving the Company or any of its Subsidiaries
that is intended, or could reasonably be expected, to prevent, impede, interfere
with, delay, postpone or adversely affect the transactions contemplated by the
Merger Agreement; provided, however, that nothing in this Agreement shall limit
or affect Shareholder from acting in accordance with his fiduciary duties as an
officer or director of the Company. 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. Shareholder
agrees not to enter into any agreement or commitment with any Person the effect
of which would be inconsistent with or violative of the provisions and
agreements contained in this Article I. This proxy is given to secure the
performance of the duties of Shareholder under this Agreement. Shareholder shall
promptly cause a copy of this Agreement to be deposited with the Company at its
principal place of business. Shareholder shall take such further action or
execute such other instruments as may be necessary to effectuate the intent of
this proxy.
(a) The proxy and power of attorney granted pursuant to
Section 1.2(a) by the Shareholder is executed in accordance with Section
607.0722 of Florida Law and 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
by such Shareholder. The power of attorney granted by Shareholder herein is a
durable power of attorney and shall survive the dissolution, bankruptcy, death
or incapacity of the Shareholder. The proxy and power of attorney granted
hereunder shall terminate upon the termination of this Agreement.
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ARTICLE II
COVENANTS
Section 2.1 Generally. The Shareholder agrees that prior to the
termination of this Agreement, except as contemplated by the terms of this
Agreement, he shall not (i) 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, or (ii) take any action that would have the effect of
preventing, impeding, interfering with or adversely affecting its ability to
perform its obligations under this Agreement.
(a) 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.
(b) The Shareholder agrees to surrender to the Company, or to
the transfer agent for the Company, certificates evidencing the Subject Shares,
and shall use its reasonable best efforts to cause the Company or the transfer
agent for the Company to place the following legend on any and all certificates
evidencing the Shares:
(c) THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT CERTAIN TENDER
AND VOTING AGREEMENT, DATED AS OF OCTOBER 23, 2002, BY AND AMONG DRS
TECHNOLOGIES INC., PRINCE MERGER CORPORATION AND THE SHAREHOLDER. ANY TRANSFER
OF SUCH SHARES OF COMMON STOCK IN VIOLATION OF THE TERMS AND PROVISIONS OF SUCH
AGREEMENT SHALL BE NULL AND VOID AND OF NO EFFECT WHATSOEVER.
Section 2.2 Standstill Obligations of Shareholder. The Shareholder
covenants and agrees with Parent that:
(a) the Shareholder shall not, nor shall Shareholder permit
any of his affiliates to, nor shall Shareholder act in concert with or permit
any of his affiliates to act in concert with any Person to make, or in any
manner participate in, directly or indirectly, a "solicitation" of "proxies" (as
such terms are used in the rules of the SEC) or powers of attorney or similar
rights to vote, or seek to advise or influence any Person with respect to the
voting of, any shares of Common Stock in connection with any vote or other
action on any matter, other than to recommend that shareholders of the Company
accept the Offer, tender their shares in the Offer, vote in favor of the Merger
and the Merger Agreement and otherwise as expressly provided by Article II of
this Agreement.
(b) the Shareholder shall not, nor shall the Shareholder
permit any of his affiliates to, nor shall such Shareholder act in concert with
or permit any of his
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affiliates to act in concert with any Person to, deposit any shares of Common
Stock in a voting trust or subject any shares of Common Stock to any arrangement
or agreement with any Person with respect to the voting of such shares of Common
Stock.
(c) the Shareholder shall not, and shall direct its
Representatives not to, directly or indirectly, enter into, solicit, initiate,
conduct or continue any discussions or negotiations with, or knowingly encourage
or respond to any inquiries or proposals by, or provide any information to, any
Person, other than Parent, relating to any Acquisition Proposal. Shareholder
hereby represents that he is not now engaged in discussions or negotiations with
any party other than Parent with respect to any Acquisition Proposal. Promptly
after receipt of any Acquisition Proposal or any request for nonpublic
information or inquiry which he reasonably believes could lead to an Acquisition
Proposal, Shareholder shall provide Parent with written notice of the material
terms and conditions of such Acquisition Proposal, request or inquiry, and the
identity of the person or group making any such Acquisition Proposal, request or
inquiry, and a copy of all written materials provided in connection with such
Acquisition Proposal, request or inquiry. After receipt of the Acquisition
Proposal, request or inquiry, Shareholder shall promptly keep Parent informed in
all material respects of the status and details (including material amendments
or proposed material amendments) of any such Acquisition Proposal, request or
inquiry.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
The Shareholder hereby represents and warrants, to Parent as follows:
Section 3.1 Authority. The Shareholder has all necessary legal
capacity, 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
the Shareholder have been duly authorized by all necessary action on the part of
such Shareholder.
Section 3.2 Ownership of Shares. Schedule I sets forth, opposite the
Shareholder's name, the number of shares of Common Stock over which the
Shareholder has record and beneficial ownership as of the date hereof. The
Shareholder is the lawful owner of the shares of Common Stock denoted as being
owned by the Shareholder on Schedule I and has the sole power to dispose of (or
cause to be disposed of) or vote (or cause to be voted) such shares of Common
Stock. Shareholder has good and valid title to the Common Stock denoted as being
owned by such Shareholder on Schedule I, free and clear of any and all Liens,
other than those Liens created by this Agreement.
Section 3.3 No Conflicts. (i) Except for filings under the HSR Act
and the Exchange Act, no filing with any Governmental Entity, and no
authorization, consent or approval of any other Person is necessary for the
execution of this Agreement
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by Shareholder and the consummation by the Shareholder of the transactions
contemplated hereby and (ii) none of the execution and delivery of this
Agreement by Shareholder, the consummation by the Shareholder of the
transactions contemplated hereby or compliance by the Shareholder with any of
the provisions hereof shall (A) 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 Shareholder
is a party or by which Shareholder or any of its Subject Shares or assets may be
bound, or (B) violate any applicable order, writ, injunction, decree, judgment,
statute, rule or regulation.
Section 3.4 Reliance by Parent. The Shareholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance upon
the execution and delivery of this Agreement by the Shareholder.
Section 3.5 No Finder's Fees. No broker, investment banker,
financial advisor or other person is entitled to any broker's, finder's,
financial adviser's or other similar fee or commission in connection with the
transactions contemplated hereby based upon the Shareholder' execution and
delivery of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to the Shareholder as follows:
Section 4.1 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 4.2 Conflicts. (i) Except for filings under the HSR Act and
the Exchange Act, 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 Parent and the consummation by Parent of the transactions
contemplated hereby and (ii) none of the execution and delivery of this
Agreement by Parent or 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 order, writ, injunction, decree, judgment, statute, rule or
regulation.
Section 4.3 Reliance by Shareholder. Parent understands and
acknowledges that the Shareholder is entering into this Agreement in reliance
upon the
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execution and delivery of the Merger Agreement by Parent.
ARTICLE V
TERMINATION
Section 5.1 Termination. This Agreement shall terminate, and neither
Parent nor the Shareholder shall have any rights or obligations hereunder and
this Agreement shall become null and void and have no effect upon the earliest
to occur of (i) the mutual consent of Parent and the Shareholder, (ii) the
Effective Time, and (iii) the date of termination of the Merger Agreement in
accordance with its terms; provided, however, that 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. Notwithstanding the foregoing, Sections 6.1, 6.5, 6.6
and 6.14 of this Agreement shall survive the termination of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Publication. The Shareholder hereby permits Parent and
Merger Sub to publish and disclose in the Offer Documents and, if approval of
the shareholders of the Company is required under applicable Legal Requirements,
the Proxy Statement his identity and ownership of shares of Common Stock and the
nature of its commitments, arrangements and understandings pursuant to this
Agreement.
Section 6.2 HSR Requirements. The Shareholder agrees promptly to
make all necessary filings, if any, and thereafter make any other required
submissions, if any, with respect to the Merger Agreement, the Merger and the
transactions contemplated by the Merger Agreement required under the HSR Act,
any antitrust and competition laws of any other applicable jurisdiction and any
other applicable Legal Requirements. The Shareholder shall cooperate with Parent
in connection with the making of any such filings referenced in the preceding
sentence, including providing copies of all such documents to Parent and its
advisors prior to filing and, if requested, to accept all reasonable additions,
deletions or changes suggested in connection therewith.
Section 6.3 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 6.4 Amendments, Waivers, etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified, except upon the
execution and delivery of a written agreement executed by each of the parties
hereto. The failure of any party hereto to exercise any right, power or remedy
provided under this Agreement or otherwise available in respect hereof at law or
in equity, or to insist upon
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compliance by any other party hereto with its obligations hereunder, and any
custom or practice of the parties at variance with the terms hereof shall not
constitute a waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
Section 6.5 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not to be performed in accordance with the terms hereof and that
the parties shall be entitled to specific performance of the terms hereof in
addition to any other remedies at law or in equity.
Section 6.6 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed duly given (i) on the date of delivery
if delivered personally, (ii) on the date of confirmation of receipt (or, the
first business day following such receipt if the date is not a business day) of
transmission by telecopy or telefacsimile, or (iii) on the date of confirmation
of receipt (or, the first business day following such receipt if the date is not
a business day) if delivered by a nationally recognized courier service. All
notices hereunder shall be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:
(a) if to Parent or Merger Sub, to:
DRS Technologies, Inc.
0 Xxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxx
Telephone No.: (000) 000-0000
Telecopy No.:
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
(b) if to Shareholder, to:
X. Xxxxxx Xxxxxxxx
000 Xxxxx Xxxx
Xxxxxx, Xxxx 00000
Section 6.7 Capitalized Terms. For purposes of this Agreement,
capitalized terms used and not defined herein shall have the respective meanings
ascribed
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to them in the Merger Agreement.
Section 6.8 Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 6.9 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 conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is 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 hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
Section 6.10 Entire Agreement. This Agreement (together with the
Merger Agreement, to the extent referred to herein) constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
Section 6.11 Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of each of the
parties, except that each of Parent and Merger Sub may assign and transfer its
rights and obligations hereunder to any direct or indirect Subsidiary of Parent.
Section 6.12 Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and their respective
successors and assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
Section 6.13 Mutual Drafting. Each party hereto has participated in
the drafting of this Agreement, which each party acknowledges is the result of
extensive negotiations between the parties.
Section 6.14 Governing Law; Consent to Jurisdiction; Waiver of Trial
by Jury.
(a) This Agreement and the transactions contemplated hereby,
and all disputes between the parties under or related to the Agreement or the
facts and circumstances leading to its execution, whether in contract, tort or
otherwise, shall be governed by and construed in accordance with the laws of the
State of Delaware, without regard to the application of Delaware principles of
conflicts of laws.
(b) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any
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Delaware State court, or Federal court of the United States of America, sitting
in Delaware, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the agreements
delivered in connection herewith or the transactions contemplated hereby or
thereby or for recognition or enforcement of any judgment relating thereto, and
each of the parties hereby irrevocably and unconditionally (i) agrees not to
commence any such action or proceeding except in such courts, (ii) agrees that
any claim in respect of any such action or proceeding may be heard and
determined in such Delaware State court or, to the extent permitted by law, in
such Federal court, (iii) waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in any such Delaware State or
Federal court, and (iv) waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such Delaware State or Federal court. Each of the parties hereto agrees
that a final judgment in any such 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. Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 6.6. Nothing in
this Agreement shall affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE
AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. 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 EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV)
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.14(c).
Section 6.15 Counterparts. This Agreement may be executed in
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
Section 6.16 Capacity. Shareholder makes no agreement or
understanding herein as a director or officer of the Company. Shareholder signs
this Agreement solely in his capacity as a record and beneficial owner of the
Subject Shares, and nothing herein shall limit or affect any actions taken in
his capacity as an officer or director of the Company.
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* * * * *
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IN WITNESS WHEREOF, Parent, Merger Sub and the Shareholder have caused
this Agreement to be duly executed as of the day and year first above written.
DRS TECHNOLOGIES, INC.,
a Delaware corporation
By: _______________________________
Name: Xxxx X. Xxxxxx
Title: Chairman, President and
Chief Executive Officer
PRINCE MERGER CORPORATION,
a Florida corporation
By: _______________________________
Name: Xxxx X. Xxxxxx
Title: President
___________________________________
X. Xxxxxx Xxxxxxxx
Schedule I
Ownership of Common Stock
Name and Address of Shareholder Number of Shares
------------------------------- ----------------
X. Xxxxxx Xxxxxxxx 677,410
000 Xxxxx Xxxx
Xxxxxx, Xxxx 00000
