Exhibit 2.2
VOTING AGREEMENT
This Voting
Agreement (“ Agreement ”) is made and entered
into as of February 20, 2008, by and between Kratos
Defense & Security Solutions, Inc., a Delaware
corporation (the “ Parent ”) and, the undersigned
shareholder (“ Shareholder ”) of SYS, a
California corporation (the “ Company ”). Certain
capitalized terms used in this Agreement that are not defined
herein shall have the meaning given to such terms in the Merger
Agreement (as defined below).
RECITALS
WHEREAS ,
Shareholder is the holder of record and the “beneficial
owner” (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934) of certain shares of common stock
of the Parent;
WHEREAS ,
concurrently with the execution and delivery of this Agreement,
Parent, White Shadow, Inc., a California corporation and
wholly owned subsidiary of Parent (“ Merger Sub ”) and the Company are
entering into an Agreement and Plan of Merger and Reorganization
(the “ Merger
Agreement ”) which provides, upon the terms and
subject to the conditions set forth therein, for the merger of
Merger Sub with and into the Company (the “ Merger ”); and
WHEREAS , as a
condition and inducement to Parent’s willingness to enter
into the Merger Agreement, Shareholder has agreed to execute and
deliver this Agreement.
NOW, THEREFORE ,
the parties to this Agreement, intending to be legally bound, agree
as follows:
1.
Agreement to Vote Shares. Prior to the Termination Date,
at every meeting of the shareholders of the Company called with
respect to any of the following, and at every adjournment or
postponement thereof, and on every action or approval by written
consent of the shareholders of the Company with respect to any of
the following, Shareholder shall vote the Subject Securities:
(a) in favor of approval and adoption of the Merger and the
Merger Agreement and in favor of any matter that could reasonably
be expected to facilitate the Merger, (b) against any proposal
for any Acquisition Transaction, other than the Merger, between the
Company and any person or entity (other than Parent or Merger Sub)
and (c) against any other action or agreement that would
result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Merger
Agreement or which could result in any of the conditions to the
consummation of the Merger under the Merger Agreement not being
fulfilled.
2.
Irrevocable Proxy. Concurrently with the execution of
this Agreement, Shareholder agrees to deliver to Parent a proxy in
the form attached hereto (the “ Proxy ”), which shall be
irrevocable to the extent provided in Section 705 of the
California General Corporation Law, with respect to the shares
referred to therein.
3.
Agreement to Retain Shares.
(a)
Restriction on Transfer . Except as otherwise provided
in Section 3(c), during the period from the date of this
Agreement through the Termination Date, Shareholder
shall not,
directly or indirectly, cause or permit any Transfer of any of the
Subject Securities to be effected.
(b)
Restriction on Transfer of Voting Rights. During the
period from the date of this Agreement through the Termination
Date, Shareholder shall ensure that: (a) none of the
Subject Securities is deposited into a voting trust; and
(b) no proxy (other than the Proxy granted herein) is granted,
and no voting agreement or similar agreement is entered into, with
respect to any of the Subject Securities.
(c)
Permitted Transfers . Section 3(a) shall not
prohibit a transfer of Company Common Stock by Shareholder
(a) if Shareholder is an individual, (i) to any member of
Shareholder’s immediate family, or to a trust for the benefit
of Shareholder or any member of Shareholder’s immediate
family, or (ii) upon the death of Shareholder, or (b) 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 and delivers a proxy to Parent in
substantially the form of the Proxy attached hereto.
4.
Waiver of Appraisal Rights. Shareholder hereby
irrevocably and unconditionally waives any rights of appraisal, any
dissenters’ rights and any similar rights relating to the
Merger or any related transaction that Shareholder may have by
virtue of any outstanding shares of Company Common Stock Owned by
Shareholder.
5.
Representations, Warranties and Covenants of
Shareholder. Shareholder hereby represents and warrants
to Parent as follows:
(a)
Due Authorization, Etc . All consents, approvals,
authorizations and orders necessary for the execution and delivery
by Shareholder of this Agreement and the Proxy have been obtained,
and Shareholder has full right, power and authority to enter into
this Agreement and the Proxy. This Agreement and the Proxy
have been duly executed and delivered by Shareholder and constitute
valid and binding agreements of Shareholder enforceable in
accordance with their terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect relating to creditors’ rights
generally and subject to general principles of equity.
(b)
No Conflict . The execution and delivery of this
Agreement and the Proxy by Shareholder do not, and the performance
of this 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 he or it
or any of his or its properties is or may be bound or affected; or
(ii) result in or constitute any breach of or default under,
or give to any other Person any right of termination, amendment,
acceleration or cancellation of, or result in the creation of any
encumbrance or restriction on any of the Subject Securities
pursuant to, any contract to which Shareholder is a party or by
which Shareholder or any of his or its affiliates or properties is
or may be bound or affected.
2
(c)
Title to Securities . As of the date of this
Agreement: (a) Shareholder holds of record (free and
clear of any encumbrances or restrictions) 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) the options, warrants and other
rights to acquire shares of Company Common Stock set forth under
the heading “Options and Other Rights” on the signature
page hereof; (c) Shareholder Owns the additional
securities of the Parent set forth under the heading
“Additional Securities Beneficially Owned” on the
signature page hereof; and (d) Shareholder does not
directly or indirectly Own any shares of capital stock or other
securities of the Parent, or any option, warrant or other right to
acquire (by purchase, conversion or otherwise) any shares of
capital stock or other securities of the Parent, other than the
shares and options, warrants and other rights set forth on the
signature page hereof.
(d)
Accuracy of Representations . The representations and
warranties contained in this Agreement are accurate in all respects
as of the date of this Agreement, and will be accurate in all
respects at all times through the Termination Date.
6.
Additional Covenants of Shareholder.
(a)
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
Compnay may request for the purpose of carrying out and furthering
the intent of this Agreement.
7.
Miscellaneous.
(a)
Survival of Representations, Warranties and Agreements
. All representations and warranties made by Shareholder in
this Agreement shall survive (i) the consummation of the
Merger, and (ii) the Termination Date.
(b)
Assignment; Binding Effect . Except as provided
herein, neither this Agreement nor any of the interests or
obligations hereunder may be assigned or delegated by Shareholder,
and any attempted or purported assignment or delegation of any of
such interests or obligations shall be void. Subject to the
preceding sentence, this Agreement shall be binding upon
Shareholder and his heirs, estate, executors and personal
representatives and his or its successors and assigns, and shall
inure to the benefit of Parent and its successors and
assigns. Without limiting any of the restrictions set forth
in Section 3(a) or elsewhere in this Agreement, this
Agreement shall be binding upon any Person to whom any Subject
Securities are transferred. Nothing in this Agreement is
intended to confer on any Person (other than Parent and its
successors and assigns) any rights or remedies of any
nature.
(c)
Specific Performance . The parties agree that
irreparable damage would occur in the event that any of the
provisions of this Agreement or the Proxy were not performed in
accordance with its specific terms or were otherwise
breached. Shareholder agrees that, in the event of any breach
or threatened breach by Shareholder of any covenant or obligation
contained
3
in this
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 seek and obtain (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. Shareholde
|
