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Exhibit
10.1
Execution Copy
This STOCKHOLDER VOTING
AGREEMENT (this “ Agreement ”), dated as of
December 21, 2007, is by and between BAE Systems, Inc., a
Delaware corporation (“ Parent ”), Rajesh K.
Soin (the “Individual Stockholder”) and Rivas
Enterprises Limited Partnership III (together with the Individual
Stockholder, each, a “ Stockholder ” and
collectively, the “ Stockholders ”).
WHEREAS, Parent, Mira
Acquisition Sub Inc., a Delaware corporation and a wholly owned
subsidiary of Parent (“ Merger Sub ”), and MTC
Technologies, Inc., a Delaware corporation (the “
Company ”), propose to enter into an Agreement and
Plan of Merger, dated as of the date hereof (as the same may be
amended or supplemented, the “ Merger Agreement
”; capitalized terms used but not defined herein shall have
the meanings set forth in the Merger Agreement), providing for the
merger of Merger Sub with and into the Company;
WHEREAS, each Stockholder
owns the number of Shares set forth opposite such
Stockholder’s name on Schedule A hereto (such Shares
together with any other capital stock of the Company, including New
Shares, acquired by each Stockholder after the date hereof and
during the term of this Agreement, being collectively referred to
herein, with respect to the applicable Shareholder, as the “
Subject Shares ”); and
WHEREAS, as a condition to
their willingness to enter into the Merger Agreement, Parent and
Merger Sub have requested that the Stockholders enter into this
Agreement.
NOW, THEREFORE, the parties
hereto agree as follows:
SECTION 1. Representations
and Warranties of the Stockholders . Each Stockholder jointly
and severally hereby represents and warrants to Parent as of the
date hereof as follows:
(a) Authority; Execution
and Delivery; Enforceability . If such Stockholder is not a
natural person, such stockholder is duly organized, validly
existing and in good standing under the laws of the jurisdiction in
which it is organized and the execution and delivery by such
Stockholder of this Agreement and the performance of its
obligations hereunder and compliance with the terms hereof have
been duly authorized by all necessary action on the part of such
Stockholder, its governing body, members, shareholders and
trustees, as applicable. Such Stockholder has all requisite power
and authority to execute this Agreement and to consummate the
transactions contemplated hereby. Such Stockholder has duly
executed and delivered this Agreement, and, assuming due
authorization, execution and delivery by Parent, this Agreement
constitutes the valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms.
If such Stockholder is not a natural person, each of the persons
executing this Agreement on behalf of such Stockholder has full
power and authority to execute and deliver this Agreement on behalf
of such Stockholder and to thereby bind such Stockholder. If such
Stockholder is married and the Subject Shares of such Stockholder
constitute community property or if spousal or other approval is
required for this Agreement to be legal, valid and binding, this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the
Stockholder’s spouse, enforceable against such spouse in
accordance with its terms. The execution, delivery and performance
of this
Agreement by such Stockholder do not,
and the consummation of the transactions contemplated hereby and
compliance with the terms hereof will not, conflict with, or result
in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of, or result in,
termination, amendment, cancelation or acceleration of any
obligation or to loss of a material benefit under, or to increased,
additional, accelerated or guaranteed rights or entitlements of any
Person under, or result in the creation of any Encumbrance upon any
of the Subject Shares under, (A) any provision of any written
contract, permit, license, loan or credit agreement, note, bond,
mortgage, indenture, lease or other property agreement, partnership
or joint venture agreement or other legally binding agreement,
(each, a “ Contract ”) to which such Stockholder
is a party or by which any Subject Shares are bound, (B) if
such Stockholder is not a natural person, any trust or other
organizational document of such Stockholder, or (C) subject to
the filings and other matters referred to in the next sentence, any
Order or any Law applicable to the Subject Shares. No consent,
approval, order or authorization (collectively, “
Consent ”) of, or registration, declaration or filing
with, any Governmental Entity or other Person (including with
respect to natural persons, any spouse, and with respect to trusts,
any co-trustee or beneficiary) is required to be obtained or made
by or with respect to such Stockholder in connection with the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby other than
compliance with and filings under the HSR Act, if
applicable.
(b) The Subject Shares
. Such Stockholder is the record and beneficial owner of, or is the
trustee of a trust that is the record holder of, the Subject Shares
set forth opposite such Stockholder’s name on Schedule
A hereto, free and clear of any Encumbrances. Except as set
forth on Schedule A , such Stockholder does not:
(i) own beneficially or of record, or have the right to
acquire, any Shares or any shares of capital stock or other equity
interests or voting securities of the Company, (ii) have any
other interest in any Shares or any shares of capital stock or
other equity interests or voting securities of the Company or
(iii) have any voting rights with respect to any Shares or any
shares of capital stock or other equity interests or voting
securities of the Company. Such Stockholder has the sole right to
vote the Subject Shares and has not given any proxies with respect
to any of the Subject Shares, and none of the Subject Shares is
subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting of the Subject Shares,
except as contemplated by this Agreement.
(c) Information . None
of the information relating to such Stockholder provided by or on
behalf of such Stockholder for including in the Proxy Statement or
any filing required to be made with the SEC by the Company or
Parent will, at the respective times such documents are filed with
the SEC, are first published, sent or given to shareholders, at the
time of any amendment or supplement of such documents and at the
time of the Special Meeting, contain any untrue statement of
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
SECTION 2. Representations
and Warranties of Parent . Parent hereby represents and
warrants to each Stockholder as follows: Parent has all requisite
corporate power and authority to execute this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery by Parent of this Agreement and consummation of the
transactions contemplated hereby have been duly authorized by all
necessary action on the part of Parent. Parent has duly executed
and delivered this Agreement, and, assuming due
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authorization, execution and delivery by
each Stockholder, this Agreement constitutes the valid and binding
obligation of Parent, enforceable against Parent in accordance with
its terms. The execution and delivery by Parent of this Agreement
do not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict
with, or result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancelation or acceleration of any obligation or to
loss of a material benefit under, or to increased, additional,
accelerated or guaranteed rights or entitlements of any Person
under, or result in the creation of any Encumbrance upon any of the
properties or assets of Parent under, the organizational documents
of Parent, any provision of any Contract to which Parent is a party
or by which any properties or assets of Parent are bound or,
subject to the filings and other matters referred to in the next
sentence, any provision of any Order or any Law applicable to
Parent or the properties or assets of Parent. No Consent of, or
registration, declaration or filing with, any Governmental Entity
or other Person is required to be obtained or made by or with
respect to Parent in connection with the execution, delivery and
performance of this Agreement or the consummation of the
transactions contemplated hereby, other than as contemplated by the
Merger Agreement.
SECTION 3. Covenants of
the Stockholders . Each Stockholder covenants and agrees as
follows:
(a) (1) At any meeting of the
stockholders of the Company, or at any postponement or adjournment
thereof, called to seek the affirmative vote of the holders of a
majority of the outstanding Shares to adopt the Merger Agreement
(the “ Requisite Stockholder Vote ”) or in any
other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger
Agreement, the Merger or other Transactions is sought, such
Stockholder shall vote (or cause to be voted or provide written
consent with respect to) the Subject Shares in favor of granting
the Requisite Stockholder Vote.
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(2) |
IRREVOCABLE PROXY . Each Stockholder hereby irrevocably
grants to, and appoints, Parent, Sheila C. Cheston and Robert T.
Murphy, or any of them, and any individual designated in writing by
any of them, and each of them individually, as such
Stockholder’s proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such
Stockholder, to vote the Subject Shares, or grant a consent or
approval in respect of the Subject Shares in a manner consistent
with this Section 3 . Each Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in
reliance upon such Stockholder’s execution and delivery of
this Agreement. Each Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 3(a)(2) is
given in connection with the execution of the Merger Agreement and
is therefore coupled with an interest. Each Stockholder hereby
further affirms that the irrevocable proxy may under no
circumstances be revoked. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of
Section 212 of the DGCL. The irrevocable proxy granted
hereunder shall automatically terminate upon the termination of
this Agreement in accordance with its terms. |
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(b) At any meeting of
stockholders of the Company or at any postponement or adjournment
thereof or in any other circumstances upon which each
Stockholder’s vote, consent or other approval (including by
written consent) is sought, each Stockholder shall vote (or cause
to be voted) the Subject Shares against and withhold consent with
respect to (i) any merger agreement or merger (other than the
Merger Agreement and the Merger), consolidation, combination, sale
of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company,
(ii) any Company Takeover Proposal, and (iii) any other
action, agreement or transaction that would reasonably be expected
to result in a breach of any covenant, representation or warranty
or any other obligation or agreement of the Company contained in
the Merger Agreement or of the Stockholders contained in this
Agreement or that would impede, interfere or be inconsistent with,
delay, postpone, discourage or adversely affect the timely
consummation the Merger. Each Stockholder shall not commit or agree
to take any action inconsistent with the foregoing.
(c) Other than this
Agreement, each Stockholder shall not (i) sell, transfer,
exchange, pledge, assign, hypothecate, encumber, or tender or
otherwise create an Encumbrance on or dispose of (including by
gift) (collectively, “ Transfer ”), or enter
into any Contract, option or other arrangement (including any
profit sharing arrangement) with respect to the Transfer of, any
Subject Shares or any rights to acquire any securities or equity
interests of the Company to any Person other than (I) pursuant
to the Merger Agreement or (II) the Transfer by the Individual
Stockholder to a non-profit family foundation controlled by the
Individual Stockholder, subject to the conditions that such
Individual Stockholder retains all voting rights over such Subject
Shares after such Transfer and such foundation agrees to be bound
by all obligations of a Stockholder hereunder as if named as a
party hereto or (ii) grant any proxies or enter into any
voting trust or other agreement or arrangement, whether by proxy,
voting agreement or otherwise, with respect to any Subject Shares
or any rights to acquire any securities or equity interests of the
Company and shall not commit or agree to take any of the foregoing
actions. As used in this Agreement, the term “
Transfer ,” shall also include any pledge,
hypothecation, encumbrance, assignment or other disposition of such
security or the record or beneficial ownership thereof, the offer
to make a sale, transfer or other disposition, and each agreement,
arrangement or understanding whether or not in writing, to effect
any of the foregoing.
(d) Each
Stockholder
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