EXHIBIT B
FORM OF STOCKHOLDER TENDER AGREEMENT
THIS STOCKHOLDER TENDER AGREEMENT is entered into as of June 24, 2001, by
and between THE TITAN CORPORATION, a Delaware corporation ("PARENT"), and [NAME]
("STOCKHOLDER").
RECITALS
A. Parent, Gem Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Parent ("MERGER SUB"), and Datron Systems Incorporated, a Delaware
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 offer by Merger Sub to
purchase all outstanding shares of the Company Common Stock and the subsequent
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.
B. In order to induce Parent and Merger Sub to enter into the Merger
Agreement, Stockholder, solely in its capacity as a Stockholder of the Company,
is entering into this Stockholder Tender Agreement.
AGREEMENT
The parties to this Stockholder Tender Agreement, intending to be legally
bound, agree as follows:
SECTION 1. TENDER AND VOTING OF SHARES
1.1 AGREEMENT TO TENDER. Unless Parent shall otherwise request, the
Stockholder hereby agrees to tender, or cause to be tendered, pursuant to and in
accordance with the terms of the Offer, the Subject Securities, and agrees that
it will not withdraw or permit the withdrawal of the tender of the Subject
Securities. Within ten (10) business days after commencement of the Offer, the
Stockholder shall (x) deliver to the depository designated in the Offer (i) a
letter of transmittal with respect to the Subject Securities complying with the
terms of the Offer, (ii) certificates representing the Subject Securities and
(iii) all other documents or instruments required to be delivered pursuant to
the terms of the Offer, and/or (y) instruct its broker or such other Person who
is the holder of record of any Subject Securities beneficially owned by the
Stockholder to promptly tender such Subject Securities for exchange in the Offer
pursuant to the terms and conditions of the Offer. Provided that the conditions
to the Offer are satisfied, or waived by Parent, Parent shall purchase the
Subject Securities in accordance with the terms of the Offer.
1.2 VOTING. Stockholder agrees that, during the period from the date of
this Stockholder Tender Agreement through the Expiration Date, at any meeting of
stockholders of the Company, however called, and in any action by written
consent of the stockholders of the Company, Stockholder shall, unless otherwise
directed in writing by Parent, vote the Subject Securities or cause the Subject
Securities to be voted (to the extent such securities are entitled to be voted)
in such Stockholder's sole capacity as a stockholder:
(a) 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;
(b) against any action or agreement that would cause any provision
contained in Section 6 or ANNEX I of the Merger Agreement to not be
satisfied; and
(c) against the following actions (other than the Offer, the Merger and
the transactions contemplated by the Merger Agreement): (i) any Company
Acquisition Proposal; (ii) any change in a majority of the members of the
board of directors of the Company, other than any change contemplated by
Section 1.3 of the Merger Agreement; or (iii) any other action which is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or
adversely affect the consummation of the Offer, the Merger or any of the
other transactions contemplated by the Merger Agreement or this Stockholder
Tender Agreement.
1.3 PROXY; FURTHER ASSURANCES. Contemporaneously with the execution of
this Stockholder Tender Agreement: (i) Stockholder shall execute and deliver to
Parent a proxy in the form attached to this Stockholder Tender 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) Stockholder shall 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
Stockholder.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS
AGREEMENT. Stockholder agrees that, during the period from the date of this
Stockholder Tender Agreement through the Expiration Date, Stockholder shall not
(i) cause or permit any Transfer of any of the Subject Securities to be effected
(other than pursuant to the Offer); (ii) tender any of the Subject Securities to
any Person (other than Merger Sub and Parent) or (iii) create or permit to exist
any Encumbrance with respect to any Subject Securities (other than Encumbrances
which do not affect the right to tender such Subject Securities pursuant to the
Offer and Encumbrances which do not affect, directly or indirectly, the right of
Parent to vote the Subject Securities as provided herein).
2.2 TRANSFER OF VOTING RIGHTS. Stockholder agrees that, during the period
from the date of this Stockholder Tender Agreement through the Expiration Date,
Stockholder 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.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
3.1 AUTHORIZATION, ETC. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Stockholder
Tender Agreement and the Proxy and to perform its obligations hereunder and
thereunder. This Stockholder Tender Agreement and the Proxy have been duly
executed and delivered by Stockholder and constitute legal, valid and binding
obligations of Stockholder, enforceable against Stockholder 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.
3.2 NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Stockholder Tender Agreement and
the Proxy by Stockholder do not, and the performance of this Stockholder
Tender Agreement and the Proxy by Stockholder will not: (i) conflict with or
violate any law, rule, regulation, order, decree or judgment applicable to
Stockholder or by which it 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 to which Stockholder is a party
or by which Stockholder or any of his affiliates or properties is or may be
bound or affected.
(b) The execution and delivery of this Stockholder Tender Agreement and
the Proxy by Stockholder do not, and the performance of this Stockholder
Tender Agreement and the Proxy by Stockholder will not, require any consent
or approval of any Person.
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3.3 TITLE TO SECURITIES. As of the date of this Stockholder Tender
Agreement: (a) Stockholder holds of record (free and clear of any Encumbrances
or restrictions except as specifically 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) Stockholder
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) Stockholder Owns
the additional securities of the Company set forth under the heading "Additional
Securities Beneficially Owned" on the signature page hereof; and
(d) Stockholder 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.
SECTION 4. MISCELLANEOUS
4.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Stockholder in
this Stockholder Tender Agreement shall survive until the Expiration Date.
4.2 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Stockholder Tender Agreement shall be paid
solely by the party incurring such costs and expenses.
4.3 NOTICES. Any notice or other communication required or permitted to be
delivered to any party under this Stockholder Tender Agreement shall be in
writing and shall be deemed properly delivered, given and received when actually
delivered (by hand, by registered mail, by courier or express delivery service
or by facsimile) 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
parties hereto); PROVIDED, HOWEVER, that a written notice delivered via
facsimile shall be deemed delivered only if at the time of, or shortly after,
such facsimile transmission the party giving the notice confirms by telephone
the actual receipt by the other party of such facsimile transmission:
IF TO PARENT:
The Titan Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq., General Counsel
WITH A COPY TO (WHICH COPY SHALL NOT CONSTITUTE NOTICE):
Xxxx X. Xxxxxxx, Esq.
Xxxxxx Godward llp
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
Facsimile No. (000) 000-0000
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IF TO THE STOCKHOLDER:
at the address set forth below Stockholder's signature on
the signature page hereof
WITH COPIES TO (WHICH COPIES SHALL NOT CONSTITUTE NOTICE):
Xxxxxx X. Xxxxxx, Esq.
Xxxxxx Xxxxxx White & XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Facsimile No. (000) 000-0000
4.4 WAIVER OF APPRAISAL RIGHTS. Stockholder hereby irrevocably and
unconditionally waives, and agrees to cause to be waived and to prevent the
exercise of, any rights of appraisal, any dissenters' rights (including under
Section 262 of the Delaware General Corporations Law) and any similar rights
relating to the Merger or any related transaction that Stockholder or any other
Person may have by virtue of the ownership of any outstanding shares of Company
Common Stock Owned by Stockholder.
4.5 NO SOLICITATION. Stockholder agrees that, during the period from the
date of this Stockholder Tender Agreement through the Expiration Date,
Stockholder shall not, directly or indirectly, and Stockholder shall ensure that
his Representatives (as defined in the Merger Agreement) do not, directly or
indirectly: (i) solicit, initiate, encourage or induce the making, submission or
announcement of any Company Acquisition Proposal (as defined in the Merger
Agreement) or take any action that could reasonably be expected to lead to a
Company Acquisition Proposal; (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 Company Acquisition Proposal; or (iii) engage in
discussions or negotiations with any Person with respect to any Company
Acquisition Proposal. Stockholder shall immediately cease and discontinue, and
Stockholder shall ensure that his Representatives immediately cease and
discontinue, any existing discussions with any Person that relate to any Company
Acquisition Proposal.
4.6 SEVERABILITY. If any provision of this Stockholder Tender 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 Stockholder Tender
Agreement. Each provision of this Stockholder Tender Agreement is separable from
every other provision of this Stockholder Tender Agreement, and each part of
each provision of this Stockholder Tender Agreement is separable from every
other part of such provision.
4.7 ENTIRE AGREEMENT. This Stockholder Tender 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 Stockholder Tender Agreement shall be binding upon either party unless made
in writing and signed by both parties.
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4.8 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Stockholder Tender Agreement nor any of the interests or obligations hereunder
may be assigned or delegated by Stockholder 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
Stockholder Tender Agreement shall be binding upon, and inure to the benefit of,
Stockholder and 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 Stockholder
Tender Agreement, this Stockholder Tender Agreement shall be binding upon any
Person to whom any Subject Securities are Transferred. Nothing in this
Stockholder Tender Agreement is intended to confer on any Person (other than
Parent and its successors and assigns) any rights or remedies of any nature.
4.9 SPECIFIC PERFORMANCE. The parties agree that irreparable damage would
occur in the event that any provision of this Stockholder Tender Agreement or
the Proxy was, or is, not performed in accordance with its specific terms or
was, or is, otherwise breached. Stockholder agrees that, in the event of any
breach or threatened breach by Stockholder of any covenant or obligation
contained in this Stockholder Tender 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. Stockholder 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 4.9, and
Stockholder irrevocably waives any right he may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
4.10 NON-EXCLUSIVITY. The rights and remedies of Parent under this
Stockholder Tender 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 Stockholder Tender Agreement, and the obligations and liabilities of
Stockholder under this Stockholder Tender 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 Stockholder Tender Agreement shall limit any of Stockholder's
obligations, or the rights or remedies of Parent, under any agreement between
Parent and Stockholder; and nothing in any such agreement shall limit any of
Stockholder's obligations, or any of the rights or remedies of Parent, under
this Stockholder Tender Agreement.
4.11 GOVERNING LAW; VENUE.
(a) This Stockholder Tender 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
Stockholder Tender Agreement or the Proxy or the enforcement of any
provision of this Stockholder Tender Agreement or the Proxy may be brought
or otherwise commenced in any state or federal court located in the State of
California. Stockholder 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;
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(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 4.3
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
Stockholder 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 Stockholder Tender Agreement or the subject matter of this
Stockholder Tender Agreement may not be enforced in or by such court.
Nothing contained in this Section 4.11 shall be deemed to limit or otherwise
affect the right of either party to commence any legal proceeding or otherwise
proceed against the other party in any other forum or jurisdiction.
(c) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS STOCKHOLDER TENDER
AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS
STOCKHOLDER TENDER AGREEMENT OR THE PROXY.
4.12 COUNTERPARTS. This Stockholder Tender 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.
4.13 CAPTIONS. The captions contained in this Stockholder Tender Agreement
are for convenience of reference only, shall not be deemed to be a part of this
Stockholder Tender Agreement and shall not be referred to in connection with the
construction or interpretation of this Stockholder Tender Agreement.
4.14 WAIVER. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Stockholder Tender Agreement, and no delay
on the part of Parent in exercising any power, right, privilege or remedy under
this Stockholder Tender 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 Stockholder Tender
Agreement, or any power, right, privilege or remedy of Parent under this
Stockholder Tender 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.
4.15 CONSTRUCTION.
(a) For purposes of this Stockholder Tender 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 Stockholder Tender
Agreement.
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(c) As used in this Stockholder Tender 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 Stockholder
Tender Agreement to "Sections" and "Exhibits" are intended to refer to
Sections of this Stockholder Tender Agreement and Exhibits to this
Stockholder Tender Agreement.
4.16 STOCKHOLDER CAPACITY. No person executing this Stockholder Tender
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, Stockholder executes this Stockholder
Tender Agreement solely in its capacity as Owner of Subject Securities and
nothing herein shall limit or affect any actions taken by Stockholder 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 Stockholder
to the Company as an officer or director of the Company shall affect, impair or
impede Stockholder's obligations under this Stockholder Tender Agreement
including the obligation to vote the Subject Securities in accordance with
Section 1.2 hereof.
4.17 OBLIGATION TO EXERCISE OPTIONS. The Stockholder shall not be required
to exercise options, warrants or other rights to acquire shares of Company
Common Stock which are vested as of the date of this Stockholder Tender
Agreement or which become vested prior to the Offer Acceptance Time (the
"SUBJECT OPTIONS"); PROVIDED, HOWEVER, the Stockholder hereby covenants and
agrees to immediately exercise all Subject Options and immediately tender all
Company Common Stock received upon such exercise if (x) the number of Shares
validly tendered and not withdrawn in accordance with the terms of the Offer two
business days prior to the expiration date of the Offer (as it may be extended
from time to time), together with the Shares then owned by Parent and Merger Sub
(if any) (the "TENDERED SHARES"), do not satisfy the Minimum Condition, and
(y) the aggregate number of shares of Company Common Stock issuable upon
exercise of the Subject Options Owned collectively by the officers and directors
of the Company who are parties to Stockholder Tender Agreements, together with
the Tendered Shares, would satisfy the Minimum Condition. Notwithstanding
anything in this Section 4.17 to the contrary, the Stockholder shall not be
required to exercise any Subject Option unless the Subject Option is considered
to be "in the money." A Subject Option shall be considered to be "in the money"
if the price of Parent Common Stock multiplied by the Exchange Ratio exceeds the
exercise price of such Subject Option on the Price Determination Date. At the
request of the Stockholder in connection with any exercise of Subject Options
pursuant to this Section 4.17, Parent or its designees will provide to the
Stockholder a loan on commercially reasonable terms equal to the exercise price
of the Subject Options exercised pursuant to this Section 4.17 which loan shall
be secured solely by the shares of Company Common Stock received by the
Stockholder in such exercise of any Subject Options.
SECTION 5. CERTAIN DEFINITIONS
For purposes of this Stockholder Tender Agreement:
(a) "COMPANY COMMON STOCK" shall mean the common stock, par value $.01
per share, of the Company.
(b) "EXPIRATION DATE" shall mean the earlier of (i) the date upon which
the Merger Agreement is terminated, or (ii) the Offer Acceptance Time.
(c) Stockholder shall be deemed to "OWN" or to have acquired "OWNERSHIP"
of a security if Stockholder is the: (i) record owner of such security; or
(ii) "beneficial owner" (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934) of such security; PROVIDED, HOWEVER, that
Stockholder shall not be deemed to Own a security solely because of
Stockholder's status as an executive officer, director, partner or member of
a Person that owns such security.
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(d) "PERSON" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) Governmental Body.
(e) "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 Stockholder
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 Stockholder acquires Ownership during the period from
the date of this Agreement through the Expiration Date.
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.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, Parent and Stockholder have caused this Stockholder
Tender Agreement to be executed as of the date first written above.
THE TITAN CORPORATION
By:
-----------------------------------------
Name:
--------------------------------------
[NAME]
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Address:
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Facsimile:
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SHARES HELD OF RECORD OPTIONS WARRANTS AND OTHER RIGHTS ADDITIONAL SECURITIES BENEFICIALLY OWNED
--------------------- --------------------------------- ----------------------------------------
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IRREVOCABLE PROXY
The undersigned stockholder of DATRON SYSTEMS INCORPORATED, a Delaware
corporation (the "COMPANY"), hereby irrevocably (to the fullest extent permitted
by law) appoints Xxxx XxXxxxx, Xxxxxxxx Xxxxxxxx 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 Stockholder Tender 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 Stockholder Tender Agreement, dated as of the date hereof,
between Parent and the undersigned (the "STOCKHOLDER TENDER 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, GEM
ACQUISITION CORP., a Delaware 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 stockholders of the
Company, however called, and in any action by written consent of the
Stockholders of the Company at any time until the earlier to occur of (i) the
termination of the Merger Agreement, or (ii) the Offer Acceptance Time:
(i) 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;
(ii) against any action or agreement that would cause any provision
contained in Section 6 or ANNEX I of the Merger Agreement to not be satisfied;
and
(iii) against the following actions (other than the Offer, the Merger and the
transactions contemplated by the Merger Agreement): (A) any Company Acquisition
Proposal (B) any change in a majority of the members of the board of directors
of the Company, other than any change contemplated by Section 1.3 of the Merger
Agreement; or (C) any other action which is intended, or could reasonably be
expected to, impede, interfere with, delay, postpone, discourage or adversely
affect the consummation of the Offer, the Merger or any of the other
transactions contemplated by the Merger Agreement or this Stockholder Tender
Agreement.
The undersigned may vote the Shares on all other matters.
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
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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.
[next page is a signature page]
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This proxy shall terminate upon the earlier of the termination of the Merger
Agreement and the Offer Acceptance Time.
Dated: June , 2001.
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[NAME]
Number of shares of common stock of the Company owned of
record or beneficially as of the date of this
irrevocable proxy:
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