FORM OF VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of January __, 2002, by and
between THE TITAN CORPORATION, a Delaware corporation ("Parent"), and [NAME]
("Shareholder").
RECITALS
WHEREAS, Parent, THUNDERBIRD ACQUISITION CORP., a California
corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and JAYCOR,
INC., a California corporation (the "Company"), are entering into an Agreement
and Plan of Merger and Reorganization of even date herewith (the "Merger
Agreement") which provides (subject to the conditions set forth therein) for the
merger of Merger Sub with and into the Company (the "Merger"). Capitalized terms
not otherwise defined herein shall have the meanings given to them in the Merger
Agreement.
WHEREAS, in order to induce Parent and Merger Sub to enter into the
Merger Agreement, Shareholder, in his or its capacity as a Shareholder of the
Company, is entering into this Voting Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Voting Agreement:
(a) "ASSOCIATED PARTIES," when used herein with respect to
Shareholder, shall mean and include: (i) Shareholder's predecessors, successors,
executors, administrators, heirs and estate; (ii) Shareholder's present and
future assigns; (iii) each entity that Shareholder has the power to bind (by
Shareholder's acts or signature) or over which Shareholder directly or
indirectly exercises control; and (iv) each entity of which Shareholder owns,
directly or indirectly, at least 50% of the outstanding equity, beneficial,
proprietary, ownership or voting interests.
(b) "CLAIMS" shall mean and include all past, present and future
disputes, claims, controversies, demands, rights, obligations, liabilities,
actions and causes of action of every kind and nature, including: (i) any
unknown, unsuspected or undisclosed claim; (ii) any claim or right that may be
asserted or exercised by a Releasor in such Releasor's capacity as a
Shareholder, director, officer or employee of Company or in any other capacity;
and (iii) any claim, right or cause of action based upon any breach of any
express, implied, oral or written contract or agreement.
(c) "COMPANY COMMON STOCK" shall mean the common stock, no par
value, of the Company.
1.
(d) "EXPIRATION DATE" shall mean the earlier of (i) the date upon
which the Merger Agreement is validly terminated, or (ii) the Effective Time.
(e) Shareholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if: (i) Shareholder is the record owner of such
security; (ii) the security is allocated to the Shareholder under the Company's
Employee Stock Ownership Plan ("ESOP"); or (iii) Shareholder is the "beneficial
owner" (within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934) of such security, except as set forth in (ii) above; PROVIDED, HOWEVER,
that Shareholder shall not be deemed to Own a security solely because of
Shareholder's status as an executive officer, director, partner, member of a
Person that owns such security, or member of the committee that acts as the Plan
Administrator under the ESOP.
(f) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) Governmental
Body.
(g) "RELEASED CLAIMS" shall mean and include each and every Claim
that (i) any Releasor or any Associated Party of any Releasor may have had in
the past, may now have or may have in the future against any of the Releasees,
and (ii) has arisen or arises directly or indirectly out of, or relates directly
or indirectly to, any circumstance, agreement, activity, action, omission, event
or matter occurring or existing on or prior to the date of consummation of the
Merger (excluding only such Releasor's rights, if any, under the Merger
Agreement).
(h) "RELEASEES" shall mean and include: (i) Parent; (ii) each of
the direct and indirect subsidiaries of Parent; (iii) Company; (iv) each of the
direct and indirect subsidiaries of Company; (v) each other affiliate of
Company; and (vi) the successors and past, present and future assigns,
directors, officers, employees, agents, attorneys and representatives of the
respective entities identified or otherwise referred to in clauses "(i)" through
"(v)" of this sentence, other than the Shareholder and the other shareholders of
the Company who have entered into voting agreements of even date herewith
(collectively, the "Releasors").
(i) "SUBJECT SECURITIES" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock and all options, warrants
and other rights to acquire shares of Company Common Stock) Owned by Shareholder
as of the date of this Agreement; and (ii) all additional securities of the
Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares of Company
Common Stock) of which Shareholder acquires Ownership during the period from the
date of this Agreement through the Expiration Date.
(j) A Person shall be deemed to have effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein; or (iii) reduces such Person's beneficial ownership interest
in or risk relating to any such security.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Subject to Section 2.3, Shareholder agrees that, during the period from the date
of this Voting Agreement through the Expiration Date, Shareholder shall not
cause or permit any Transfer of any of the Subject Securities to be effected.
2.2 TRANSFER OF VOTING RIGHTS. Shareholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date,
Shareholder shall ensure that: (a) none of the Subject Securities are deposited
into a voting trust; and (b) no proxy is granted, and no voting agreement or
similar agreement is entered into, with respect to any of the Subject
Securities.
2.3 PERMITTED TRANSFERS. Section 2.1 shall not prohibit a transfer of
Company Common Stock by Shareholder (i) to any member of his immediate family,
or to a trust for the benefit of Shareholder or any member of his immediate
family, (ii) upon the death of Shareholder, or (iii) if Shareholder is a
partnership or limited liability company, to one or more partners or members of
Shareholder or to an affiliated corporation under common control with
Shareholder; PROVIDED, HOWEVER, that a transfer referred to in this sentence
shall be permitted only if, as a precondition to such transfer, the transferee
agrees in a writing, reasonably satisfactory in form and substance to Parent, to
be bound by the terms of this Agreement.
SECTION 3. VOTING OF SHARES
3.1 VOTING AGREEMENT. Shareholder agrees that, during the period from
the date of this Voting Agreement through the Expiration Date, at any meeting of
shareholders of the Company, however called, and in any action by written
consent of the shareholders of the Company, Shareholder shall, unless otherwise
directed in writing by Parent, vote the Subject Securities or, to the extent
Shareholder may be legally able to do so, cause the Subject Securities to be
voted:
(a) in favor of approval of the Merger, the execution and delivery
by the Company of the Merger Agreement and the approval of the principal terms
thereof and in favor of any other matter proposed to be approved by the holders
of the Subject Securities pursuant to the terms of the Merger Agreement and in
connection with the Merger;
(b) against any action or agreement that would result in a breach
of any representation, warranty, covenant or obligation of the Company in the
Merger Agreement;
(c) against any action or agreement that would cause any provision
contained in Sections 6 or 7 of the Merger Agreement to not be satisfied;
(d) in favor of any action necessary or required to render
inapplicable to the Merger, the Merger Agreement or any Related Agreement (as
defined in the Merger Agreement) and the transactions contemplated therein and
thereby (i) any state takeover law that may purport to be applicable to the
Merger and the transactions contemplated by the Merger Agreement and the Related
Agreements, (ii) any takeover provision in the Company Constituent Documents and
3.
(iii) any takeover provision in any Contract to which the Company is a party or
by which it or its properties may be bound; and
(e) against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (i) any Company Acquisition
Transaction; (ii) any amendment to the Company's Articles of Incorporation or
bylaws; (iii) any material change in the capitalization of the Company or the
Company's corporate structure; (iv) any change in a majority of the board of
directors of the Company; and (v) any other action which could reasonably be
expected to impede, interfere with, delay or postpone the Merger or any of the
other transactions contemplated by the Merger Agreement or this Voting
Agreement.
Prior to the Expiration Date, Shareholder shall not enter into any
agreement or understanding with any Person to vote or give instructions in any
manner inconsistent with this Section 3.
3.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Voting Agreement:
(i) Shareholder shall execute and deliver to Parent a proxy in the form attached
to this Voting Agreement as EXHIBIT A, which shall be irrevocable to the fullest
extent permitted by law, with respect to the shares referred to therein (the
"Proxy"); and (ii) Shareholder shall undertake diligent efforts to cause to be
delivered to Parent an additional proxy (in the form attached hereto as EXHIBIT
A) executed on behalf of the record owner of any outstanding shares of Company
Common Stock that are Owned by the Shareholder if other than the Shareholder.
(b) Shareholder shall, at his or its own expense, perform such
further acts and execute such further proxies and other documents and
instruments as may reasonably be required to vest in Parent the power to carry
out and give effect to the provisions of this Voting Agreement.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Shareholder hereby irrevocably and unconditionally waives, and agrees
to undertake diligent efforts to cause to be waived and to prevent the exercise
of, any rights of appraisal, any dissenters' rights and any similar rights
relating to the Merger or any related transaction that Shareholder or any other
Person may have by virtue of any outstanding shares of Company Common Stock
Owned by Shareholder.
SECTION 5. NO SOLICITATION
Shareholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Shareholder shall not, directly or
indirectly, and Shareholder shall not permit his Representatives to, directly or
indirectly: (i) solicit, initiate, encourage or facilitate the initiation or
submission of any expression of interest, inquiry, proposal or offer from any
Person (other than Parent) relating to a possible Company Acquisition
Transaction or take any action that could reasonably be expected to lead to a
Company Acquisition Transaction;
4.
(ii) furnish any information regarding the Company or any direct or indirect
subsidiary of the Company to any Person in connection with or in response to a
possible Company Acquisition Transaction; (iii) engage in discussions or
negotiations with any Person with respect to any possible Company Acquisition
Transaction; (iv) approve, endorse or recommend any Company Acquisition
Transaction; or (v) enter into any letter of intent or similar document or any
agreement or understanding contemplating or otherwise relating to any Company
Acquisition Transaction. Shareholder shall immediately cease and discontinue,
and Shareholder shall not permit his Representatives to immediately cease and
discontinue, any existing discussions with any Person that relate to any
possible Company Acquisition Transaction.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder hereby represents and warrants as follows:
6.1 AUTHORIZATION, ETC. Shareholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform his or its obligations hereunder and
thereunder. This Voting Agreement and the Proxy have been duly executed and
delivered by Shareholder and constitute legal, valid and binding obligations of
Shareholder and is enforceable against Shareholder in accordance with their
terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies. If Shareholder is a
general or limited partnership, then Shareholder is a partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it was organized. If Shareholder is a limited liability
company, then Shareholder is a limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it was
organized.
6.2 NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Voting Agreement and the
Proxy by Shareholder do not, and the performance of this Voting Agreement and
the Proxy by Shareholder will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Shareholder or by which
Shareholder or any of its properties is or may be bound or affected; or (ii)
result in or constitute (with or without notice or lapse of time) any breach of
or default under, or give to any other Person (with or without notice or lapse
of time) any right of termination, amendment, acceleration or cancellation of,
or result (with or without notice or lapse of time) in the creation of any
Encumbrance or restriction on any of the Subject Securities pursuant to, any
contract or other instrument to which Shareholder is a party or by which
Shareholder or any of Shareholder's affiliates or properties is or may be bound
or affected.
(b) The execution and delivery of this Voting Agreement and the
Proxy by Shareholder do not, and the performance of this Voting Agreement and
the Proxy by Shareholder will not, require any authorization, instruction,
consent or approval of any Person.
6.3 TITLE TO SECURITIES. As of the date of this Voting Agreement: (a)
Shareholder holds of record (free and clear of any Encumbrances or restrictions
except as specifically
5.
disclosed on the signature page hereof) the number of outstanding shares of
Company Common Stock set forth under the heading "Shares Held of Record" on the
signature page hereof; (b) Shareholder holds (free and clear of any Encumbrances
or restrictions except as specifically disclosed on the signature page hereof)
the options, warrants and other rights to acquire shares of Company Common Stock
set forth under the heading "Options, Warrants and Other Rights" on the
signature page hereof; (c) Shareholder beneficially owns the allocated shares of
Company Common Stock under the ESOP listed under the heading "ESOP Allocated
Shares"; (d) Shareholder Owns the additional securities of the Company set forth
under the heading "Additional Securities Beneficially Owned" on the signature
page hereof (other than shares of Company Common Stock allocated under the
ESOP); and (e) Shareholder does not directly or indirectly Own any shares of
Company Common Stock or other securities of the Company, or any option, warrant
or other right to acquire (by purchase, conversion or otherwise) any shares of
Company Common Stock or other securities of the Company, other than the shares
and options, warrants and other rights set forth on the signature page hereof.
6.4 MISCELLANEOUS.
(a) Shareholder has not assigned, transferred, conveyed or
otherwise disposed of any Claim against any of the Releasees, or any direct or
indirect interest in any such Claim, in whole or in part;
(b) to Shareholder's knowledge, no other person or entity has any
interest in any of the Released Claims;
(c) to Shareholder's knowledge, no Associated Party of Shareholder
has or had any Claim against any of the Releasees;
(d) no Associated Party of Shareholder will in the future have any
Claim against any Releasee that arises directly or indirectly from or relates
directly or indirectly to any circumstance, agreement, activity, action,
omission, event or matter occurring or existing on or before the date of this
Voting Agreement;
(e) this Voting Agreement has been duly and validly executed and
delivered by Shareholder; and
(f) there is no action, suit, proceeding, dispute, litigation,
claim, complaint or investigation by or before any court, tribunal, governmental
body, governmental agency or arbitrator pending or, to the knowledge of
Shareholder, threatened against Shareholder or any of Shareholder's Associated
Parties that challenges or would challenge the execution and delivery of this
Voting Agreement or the taking of any of the actions required to be taken by
Shareholder under this Voting Agreement.
6.5 The representations and warranties contained in this Voting
Agreement are accurate in all respects as of the date of this Voting Agreement,
will be accurate in all respects at all times through the Expiration Date and
will be accurate in all respects as of the date of the consummation of the
Merger as if made on that date.
6.
SECTION 7. ADDITIONAL COVENANTS OF SHAREHOLDER
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Shareholder shall (at Shareholder's sole expense) execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
(at Shareholder's sole expense) take such further actions, as Parent may
reasonably request for the purpose of carrying out and furthering the intent of
this Voting Agreement.
7.2 LEGENDS. If requested by Parent, immediately after the execution
of this Voting Agreement (and from time to time upon the acquisition by
Shareholder of Ownership of any shares of Company Common Stock prior to the
Expiration Date), Shareholder shall cause each certificate evidencing any
outstanding shares of Company Common Stock or other securities of the Company
Owned by Shareholder to be surrendered so that the transfer agent for such
securities may affix thereto a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE
WITH THE TERMS AND PROVISIONS OF A VOTING AGREEMENT DATED AS OF [____________,
2002], AS IT MAY BE AMENDED, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE ISSUER.
7.3 MERGER AGREEMENT. Shareholder agrees and acknowledges that
Shareholder shall be responsible for Damages to the extent and in the manner
provided for in Section 9.4(b) of the Merger Agreement.
SECTION 8. GENERAL RELEASE
8.1 RELEASE. Effective as of the Effective Time of the Merger,
Shareholder, for himself or itself and for each of such Shareholder's Associated
Parties (as defined in Section 1), hereby generally, irrevocably,
unconditionally and completely releases and forever discharges each of the
Releasees (as defined in Section 1) from, and hereby irrevocably,
unconditionally and completely waives and relinquishes, each of the Released
Claims (as defined in Section 1).
8.2 CIVIL CODE SS. 1542. Shareholder (a) represents, warrants and
acknowledges that he or it has been fully advised by his or its attorney of the
contents of Section 1542 of the Civil Code of the State of California, and (b)
hereby expressly waives the benefits thereof and any rights Shareholder may have
thereunder. Section 1542 of the Civil Code of the State of California provides
as follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him must
have materially affected his settlement with the debtor."
7.
Shareholder also hereby waives the benefits of, and any rights Shareholder may
have under, any statute or common law principle of similar effect in any
jurisdiction.
SECTION 9. MISCELLANEOUS
9.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Shareholder in
this Voting Agreement shall survive until the Expiration Date.
9.2 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid solely by the
party incurring such costs and expenses.
9.3 NOTICES. Any notice or other communication required or permitted
to be delivered to either party under this Voting Agreement shall be in writing
and shall be deemed properly delivered, given and received when delivered (by
hand, by registered mail, by courier or express delivery service or by
facsimile, in each case with confirmation of delivery) to the address or
facsimile telephone number set forth beneath the name of such party below (or to
such other address or facsimile telephone number as such party shall have
specified in a written notice given to the other party):
IF TO PARENT:
Xxxxxxxx X. Xxxxxxxx, Esq.
The Titan Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
WITH A COPY TO (WHICH COPY SHALL NOT CONSTITUTE NOTICE):
Xxxxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxxxxxx, Esq.
Xxxxxx Godward LLP
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
Facsimile No. (000) 000-0000
IF TO THE SHAREHOLDER:
at the address set forth below Shareholder's signature on the
signature page hereof
WITH COPIES TO (WHICH COPIES SHALL NOT CONSTITUTE NOTICE):
Xxxxx Xxxxxxx, Esq.
Xxxx Xxxx Xxxx & Freidenrich LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
8.
Xxx Xxxxx XX 00000
9.4 SEVERABILITY. If any provision of this Voting Agreement or any
part of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement. If
any provision of this Voting Agreement or any part of such provision is held to
be unenforceable against any Releasor, then the unenforceability of such
provision or part thereof against such Releasor shall not affect the
enforceability thereof against any other Releasor. Each provision of this Voting
Agreement is separable from every other provision of this Voting Agreement, and
each part of each provision of this Voting Agreement is separable from every
other part of such provision.
9.5 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision of
this Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
9.6 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither
this Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by Shareholder or Parent without the prior written consent
of the non-assigning party, which consent shall not be unreasonably withheld,
and any attempted or purported assignment or delegation of any of such interests
or obligations shall be void. Subject to the preceding sentence, this Voting
Agreement shall be binding upon, and inure to the benefit of, Shareholder and
his or its heirs, estate, executors, personal representatives, successors and
assigns (as the case may be), and shall be binding upon, and inure to the
benefit of, Parent and its successors and assigns. Without limiting any of the
restrictions set forth in Section 2 or elsewhere in this Voting Agreement, this
Voting Agreement shall be binding upon any Person to whom any Subject Securities
are Transferred. Nothing in this Voting Agreement is intended to confer on any
Person (other than Parent and its successors and assigns) any rights or remedies
of any nature.
9.7 INDEMNIFICATION. Without in any way limiting any of the rights or
remedies otherwise available to any Releasee, Shareholder shall hold harmless
and indemnify Parent, Parent's affiliates and all other Releasees from and
against, and shall compensate and reimburse Parent, Parent's affiliates and all
other Releasees for, any loss, damage, injury, harm, detriment, lost
opportunity, claim, liability, exposure, fee (including attorneys' fees),
demand, settlement, judgment, award, fine, penalty, tax, charge, cost or expense
(regardless of whether or not such
9.
any loss, damage, injury, harm, detriment, lost opportunity, claim, liability,
exposure, fee, demand, settlement, judgment, award, fine, penalty, tax, charge,
cost or expense relates to a third-party claim) that is directly or indirectly
suffered or incurred by Parent, any of Parent's affiliates or any other
Releasee, or to which Parent, any of Parent's affiliates or any other Releasee
otherwise becomes subject at any time, and that arises directly or indirectly
from, or relates directly or indirectly to, (a) any inaccuracy in or breach of
any representation or warranty contained in this Voting Agreement, (b) any
failure on the part of Shareholder to observe, perform or abide by, or any other
breach of, any restriction, covenant, obligation, representation, warranty or
other provision contained in this Voting Agreement or in the Proxy, or (c) the
assertion or purported assertion of any of the Released Claims by Shareholder or
any of Shareholder's Associated Parties.
9.8 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any provision of this Voting Agreement or the
Proxy was, or is, not performed in accordance with its specific terms or was, or
is, otherwise breached. Shareholder agrees that, in the event of any breach or
threatened breach by Shareholder of any covenant or obligation contained in this
Voting Agreement or in the Proxy, Parent shall be entitled (in addition to any
other remedy that may be available to it, including monetary damages) to (a) a
decree or order of specific performance to enforce the observance and
performance of such covenant or obligation, and (b) an injunction restraining
such breach or threatened breach. Shareholder further agrees that neither Parent
nor any other Person shall be required to obtain, furnish or post any bond or
similar instrument in connection with or as a condition to obtaining any remedy
referred to in this Section 9.8, and Shareholder irrevocably waives any right he
may have to require the obtaining, furnishing or posting of any such bond or
similar instrument.
9.9 NON-EXCLUSIVITY. The rights and remedies of Parent under this
Voting Agreement are not exclusive of or limited by any other rights or remedies
which it may have, whether at law, in equity, by contract or otherwise, all of
which shall be cumulative (and not alternative). Without limiting the generality
of the foregoing, the rights and remedies of Parent under this Voting Agreement,
and the obligations and liabilities of Shareholder under this Voting Agreement,
are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations. Nothing in this Voting Agreement shall limit any of
Shareholder's obligations, or the rights or remedies of Parent, under any
agreement between Parent and Shareholder; and nothing in any such agreement
shall limit any of Shareholder's obligations, or any of the rights or remedies
of Parent, under this Voting Agreement.
9.10 GOVERNING LAW; VENUE.
(a) This Voting Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State of
California (without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this
Voting Agreement or the Proxy or the enforcement of any provision of this Voting
Agreement or the
10.
Proxy may be brought or otherwise commenced in any state or federal court
located in the State of California. Shareholder and Parent each:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the State of California
(and each appellate court located in the State of California), in connection
with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or
document by U.S. mail addressed to him at the address set forth in Section 9.3
shall constitute effective service of such process, summons, notice or document
for purposes of any such legal proceeding;
(iii) agrees that each state and federal court located in the
State of California, shall be deemed to be a convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any state or federal court
located in the State of California, any claim by either Shareholder or Parent
that it is not subject personally to the jurisdiction of such court, that such
legal proceeding has been brought in an inconvenient forum, that the venue of
such proceeding is improper or that this Voting Agreement or the subject matter
of this Voting Agreement may not be enforced in or by such court.
Nothing contained in this Voting Agreement shall be deemed to limit or otherwise
affect the right of either party or any Releasee (1) to commence any legal
proceeding or to otherwise proceed against any of the Releasors or any other
person or entity in any other forum or jurisdiction, or (2) to raise this Voting
Agreement as a defense in any legal proceeding in any other forum or
jurisdiction.
(c) SHAREHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE PROXY.
9.11 COUNTERPARTS. This Voting Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
9.12 CAPTIONS. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
9.13 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought against Shareholder, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and disbursements (in
addition to any other relief to which the prevailing party may be entitled).
11.
9.14 WAIVER. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Parent in exercising any power, right, privilege or remedy under this Voting
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Parent shall not be deemed to have waived any claim
available to Parent arising out of this Voting Agreement, or any power, right,
privilege or remedy of Parent under this Voting Agreement, unless the waiver of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of Parent; and any such
waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
9.15 CONSTRUCTION.
(a) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Voting Agreement and Exhibits to this Voting Agreement.
9.16 SHAREHOLDER CAPACITY. No person executing this Voting Agreement
who is a director or officer of the Company makes any agreement or understanding
herein in his capacity as such director or officer. Without limiting the
generality of the foregoing, Shareholder executes this Voting Agreement solely
in its capacity as Owner of Subject Securities and nothing herein shall limit or
affect any actions taken by Shareholder in its capacity as an officer or
director of the Company in exercising the Company's rights under the Merger
Agreement, PROVIDED, that no obligation of Shareholder to the Company as an
officer or director of the Company shall affect, impair or impede Shareholder's
obligations under this Voting Agreement including the obligation to vote the
Subject Securities in accordance with Section 3 hereof.
[SIGNATURE PAGE TO FOLLOW]
12.
IN WITNESS WHEREOF, Parent and Shareholder have caused this Voting
Agreement to be executed as of the date first written above.
THE TITAN CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
[NAME]
By:
-------------------------------------
Name:
Address:
--------------------------------
--------------------------------
Facsimile:
------------------------------
Shares Held of Options, Warrants and Additional Securities
Record Other Rights ESOP Allocated Shares Beneficially Owned
---------------- --------------------- --------------------- ---------------------
[SIGNATURE PAGE OF VOTING AGREEMENT]
FORM OF IRREVOCABLE PROXY
The undersigned shareholder of JAYCOR, INC., a California corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes XXXXXXXX X. XXXXXXXX, XXXX X. XXXXXXX and THE
TITAN
CORPORATION, a Delaware corporation ("Parent"), and each of them, the attorneys
and proxies of the undersigned with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
(i) the outstanding shares of Company Common Stock or other securities owned of
record by the undersigned as of the date of this proxy, which shares are
specified on the final page of this proxy, and (ii) any and all other shares of
Company Common Stock or other securities which the undersigned may acquire on or
after the date hereof. (The shares of the Company Common Stock or other
securities referred to in clauses "(i)" and "(ii)" of the immediately preceding
sentence, except for shares which are not Subject Securities (as defined in the
Voting Agreement), are collectively referred to in this proxy as the "Shares").
Upon the execution hereof, all prior proxies given by the undersigned with
respect to any of the Shares are hereby revoked, and the undersigned agrees that
no subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, THUNDERBIRD
ACQUISITION CORP., a California Corporation and a wholly owned subsidiary of
Parent, and the Company (the "Merger Agreement"). Capitalized terms used herein
and not otherwise defined shall have the meanings given to such terms in the
Merger Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any meeting of the shareholders of
the Company, however called, and in any action by written consent of the
Shareholders of the Company at any time until the earlier to occur of (i) the
valid termination of the Merger Agreement or (ii) the Effective Time:
(i) in favor of approval of the Merger, the execution and delivery by
the Company of the Merger Agreement and the approval of the principal terms
thereof and in favor of any other matter proposed to be approved by the holders
of the Subject Securities pursuant to the terms of the Merger Agreement and in
connection with the Merger;
(ii) against any action or agreement that would result in a breach of
any representation, warranty, covenant or obligation of the Company in the
Merger Agreement;
(iii) against any action or agreement that would cause any provision
contained in Sections 6 or 7 of the Merger Agreement to not be satisfied;
(iv) in favor of any action necessary or required to render
inapplicable to the Merger, the Merger Agreement or any Related Agreement and
the transactions contemplated therein and thereby (i) any state takeover law
that may purport to be applicable to the Merger and the transactions
contemplated by the Merger Agreement and the Related Agreements, (ii) any
1.
takeover provision in the Company Constituent Documents and (iii) any takeover
provision in any Contract to which the Company is a party or by which it or its
properties may be bound; and
(v) against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (i) any Company Acquisition
Transaction; (ii) any amendment to the Company's Articles of Incorporation or
bylaws; (iii) any material change in the capitalization of the Company or the
Company's corporate structure; (iv) any change in a majority of the board of
directors of the Company; and (v) any other action which could reasonably be
expected to impede, interfere with, delay or postpone the Merger or any of the
other transactions contemplated by the Merger Agreement or this Voting
Agreement.
The undersigned may vote the Shares on all other matters not referred
to in this proxy.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is
held under any circumstances to be invalid or unenforceable in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this proxy. Each provision of this
proxy is separable from every other provision of this proxy, and each part of
each provision of this proxy is separable from every other part of such
provision.
[SIGNATURE PAGE TO FOLLOW]
2.
This proxy shall terminate upon the earlier of the valid termination of
the Merger Agreement and the Effective Time.
Dated: January ____, 2002.
_________________________________________
Name
Number of shares of common stock of the
Company owned of record or beneficially
as of the date of this irrevocable proxy:
_________________________________________
[SIGNATURE PAGE TO FORM OF IRREVOCABLE PROXY]
