Exhibit 2.3
VOTING AGREEMENT
This Voting
Agreement (“ Agreement ”) is made and entered
into as of February 20, 2008, by and between SYS, a California
corporation (“ Company ”), and the undersigned
Stockholder (“ Stockholder ”) of Kratos
Defense & Security Solutions, Inc., a Delaware
corporation (the “ Parent ”). 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 ,
Stockholder 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 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 the Company’s willingness to
enter into the Merger Agreement, Stockholder 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 Stockholders of Parent 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
Stockholders of Parent with respect to any of the following,
Stockholder shall vote the Subject Securities: (a) in
favor of the issuance of additional shares of Parent Common Stock
in connection with the Merger and in favor of any matter that could
reasonably be expected to facilitate the Merger, and
(b) 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 Parent 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, Stockholder agrees to deliver to the Company a proxy in
the form attached hereto (the “ Proxy ”), which shall be
irrevocable to the extent provided in Section 212 of the
Delaware 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, Stockholder 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, Stockholder 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 Stockholder
(a) if Stockholder is an individual, (i) to any member of
Stockholder’s immediate family, or to a trust for the benefit
of Stockholder or any member of Stockholder’s immediate
family, or (ii) upon the death of Stockholder, or (b) if
Stockholder is a partnership or limited liability company, to one
or more partners or members of Stockholder or to an affiliated
corporation under common control with Stockholder;
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. Stockholder 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 Stockholder may have by
virtue of any outstanding shares of Company Common Stock Owned by
Stockholder.
5.
Representations, Warranties and Covenants of Stockholder.
Stockholder 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 Stockholder of this Agreement and the Proxy have been obtained,
and Stockholder 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 Stockholder and constitute
valid and binding agreements of Stockholder 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 Stockholder do not, and the performance
of this 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 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
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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 or its affiliates or properties is or may be bound or
affected.
(c)
Title to Securities . As of the date of this
Agreement: (a) Stockholder 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 of this Agreement; (b) Stockholder 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 of this Agreement; (c) Stockholder
Owns the additional securities of the Company set forth under the
heading “Additional Securities Beneficially Owned” on
the signature page of this Agreement; and (d) Stockholder
does not directly or indirectly Own any shares of capital stock or
other securities of the Company, or any option, warrant or other
right to acquire (by purchase, conversion or otherwise) any shares
of capital stock or other securities of the Company, other than the
shares and options, warrants and other rights set forth on the
signature page of this Agreement.
(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
Stockholder.
(a)
Further Assurances . From time to time and without
additional consideration, Stockholder shall (at Stockholder’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
Stockholder’s sole expense) take such further actions, as
Parent 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 Stockholder 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 Stockholder,
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
Stockholder 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 the Company and its
successors and assigns) any rights or remedies of any nature.
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(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. Stockholder agrees that, in the event of any breach
or threatened breach by Stockholder of any covenant or obligation
contained 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 t
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