VOTING AGREEMENT,
dated as of November 9, 2005 (this “ Agreement
”), by and between Devcon International Corp., a Florida
corporation (“ Parent ”) and the undersigned
(the “ Stockholder ”).
WHEREAS,
concurrently herewith, Parent, Devcon Acquisition, Inc., a Florida
corporation and a wholly owned subsidiary of Parent (“
Merger Sub ”), and Guardian International, Inc., a
Florida corporation (the “ Company ”), are
entering into an Agreement and Plan of Merger (the “
Merger Agreement ”; capitalized terms used but not
defined herein shall have the meanings set forth in the Merger
Agreement), pursuant to which (and subject to the terms and
conditions set forth therein) the Merger Sub shall merge with and
into Company (the “ Merger ”), and each issued
and outstanding share of the Common Stock (the “ Company
Common Stock ”), will be converted into the right to
receive the Merger Consideration and the Preferred Stock will be
redeemed or converted into the right to receive the Redemption
Amount;
WHEREAS,
Stockholder beneficially owns shares of Company Common Stock as set
forth on Schedule A hereto (the “ Owned
Shares ” and, together with any shares of Company Common
Stock or other Company securities with voting rights, including,
but not limited to, certain shares of Series D Preferred
Stock, of which the Stockholder acquires beneficial ownership after
the date hereof and prior to the termination hereof, whether upon
exercise of options, warrants, conversion of other convertible
securities or otherwise, are collectively referred to herein as the
“ Covered Shares ”);
WHEREAS, in order
to induce Parent to enter into the Merger Agreement and proceed
with the Merger, Parent and Stockholder are entering into this
Agreement; and
WHEREAS,
Stockholder acknowledges that Parent is entering into the Merger
Agreement in reliance on the representations, warranties, covenants
and other agreements of Stockholder set forth in this Agreement and
would not enter into the Merger Agreement if Stockholder did not
enter into this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound
hereby, Parent and Stockholder hereby agree as follows:
(a) Prior
to any termination of this Agreement, Stockholder hereby agrees
that it shall, and shall cause any other holder of record of its
Covered Shares (which it has the authority to direct) to, at any
meeting of the stockholders of the Company (whether annual or
special and whether or not an adjourned or postponed meeting),
however called, (i) when a meeting is held, appear at such
meeting or otherwise cause the Covered Shares to be counted as
present thereat for the purpose of establishing a quorum,
(ii) vote (or cause to be voted) in person or by proxy all
Covered Shares in favor of the Merger and any other matters
necessary for the consummation of the Transactions and
(iii) vote (or cause to be voted) all Covered Shares against
(A) any proposal for any recapitalization, reorganization,
liquidation, merger, sale of assets or other business combination
between the Company and any other Person (other than the
Merger) and
(B) any other action that could reasonably be expected to,
impede, interfere with, delay, postpone or adversely affect the
consummation of the Merger or any of the Transactions, or result in
a breach in any material respect of any covenant, representation or
warranty or other obligation or agreement of the Company under the
Merger Agreement. For the purposes of this Agreement, the term
“Person” means a natural person, corporation, trust,
partnership, joint venture, association, limited liability company
or other business or other legal entity of any kind.
(b) IN
THE EVENT THE STOCKHOLDER FAILS TO VOTE THE COVERED SHARES AS
INDICATED IN CLAUSE (a) OF THIS SECTION 1, STOCKHOLDER INDIVIDUALLY
HEREBY GRANTS TO, AND APPOINTS, PARENT, THE PRESIDENT OF PARENT AND
THE SECRETARY OF PARENT, IN THEIR RESPECTIVE CAPACITIES AS OFFICERS
OF PARENT, AND ANY OTHER DESIGNEE OF PARENT, EACH OF THEM
INDIVIDUALLY, THE STOCKHOLDER’S IRREVOCABLE (UNTIL THE
TERMINATION DATE, AS DEFINED BELOW) PROXY AND ATTORNEY-IN-FACT
(WITH FULL POWER OF SUBSTITUTION) TO VOTE THE COVERED SHARES AS
INDICATED IN CLAUSE (a) OF THIS SECTION 1. STOCKHOLDER INTENDS
THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION DATE, AS
DEFINED BELOW) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH
FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE
NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKE
ANY PROXY PREVIOUSLY GRANTED BY SUCH STOCKHOLDER WITH RESPECT TO
THE COVERED SHARES IF AND ONLY TO THE EXTENT SUCH PROXY RELATES TO
THE MATTERS COVERED BY CLAUSE (a) OF THIS SECTION
1.
(c) Stockholder
shall not be restricted from voting in favor of, against or
abstaining with respect to any matter presented to the stockholders
of the Company, except as set forth in clause (a) of this
Section 1. In addition, nothing in this Agreement shall give
Parent or any of its officers or designees the right to vote any
Covered Shares in connection with the election of
directors.
(d) In
the event that Stockholder receives an offer to purchase any of the
Covered Shares held by Stockholder (other than pursuant to the
Merger Agreement), Stockholder hereby agrees that it shall
(i) promptly notify Company and notify any other Person who is
entitled to purchase the Covered Shares that Stockholder has
received an offer to purchase its Covered Shares, and (ii) promptly
reject any first offer right that Stockholder may have to purchase
any Covered Shares or securities of the Company convertible into
Covered Shares insofar as such first offer right arises from the
execution of the Merger Agreement or consummation of the
Merger.
2.
No Inconsistent Agreements . Stockholder hereby covenants
and agrees that, except as contemplated by this Agreement and by
any agreement listed in Schedule B , attached hereto,
it (a) has not entered into, and shall not enter into at any
time while this Agreement remains in effect, any voting agreement
or voting trust with respect to the Covered Shares and (b) has not
granted, and shall not grant at any time while this Agreement
remains in effect, a proxy or power of attorney with respect to the
Covered Shares, in either case, which is inconsistent with its
obligations pursuant to this Agreement.
2
3.
Termination . This Agreement shall terminate upon the
earliest of (a) the Effective Time, (b) the termination
of the Merger Agreement in accordance with its terms, and (c)
written notice of termination of this Agreement by Parent to
Stockholder, such earliest date being referred to herein as the
“ Termination Date ”.
4.
Representations and Warranties .
(a)
Representations and Warranties of Parent . Parent hereby
represents and warrants to Stockholder as follows:
(i) Valid
Existence . Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Florida and has the requisite corporate power and authority and all
necessary governmental approvals to own, lease and operate its
properties and to carry on its business as it is now being
conducted.
(ii) Authority
Relative to This Agreement . Parent has all necessary corporate
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and to consummate the
transactions contemplated by the Merger Agreement. The execution,
delivery and performance of this Agreement by Parent and the
consummation by Parent of the transactions contemplated by the
Merger Agreement have been duly and validly authorized by all
necessary corporate action, and no other corporate or shareholder
proceedings on the part of Parent are necessary to authorize this
Agreement or to consummate the transactions contemplated by the
Merger Agreement. This Agreement has been duly and validly
authorized, executed and delivered by Parent and, assuming due
authorization, execution and delivery by Stockholder, constitutes a
legal, valid and binding obligation of Parent, enforceable against
Parent in accordance with its terms.
(iii) No
Conflicts . Except for the applicable requirements of the
Exchange Act and HSR Act, (A) no filing with, and no permit,
authorization, consent or approval of, any Governmental Authority
is necessary on the part of Parent for the execution and delivery
of this Agreement by Parent and the consummation by Parent of the
transactions contemplated by the Merger Agreement and
(B) neither the execution and delivery of this Agreement by
Parent nor the consummation by Parent of the transactions
contemplated by the Merger Agreement nor compliance by Parent with
any of the provisions hereof or thereof shall (1) conflict
with or violate the Articles of Incorporation or Bylaws of Parent,
(2) result in any breach or violation of, or constitute a
default (or an event which, with notice or lapse of time or both,
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result
in the creation of a Lien on any property or asset of Parent
pursuant to, any Contract to which Parent is a party or by which
Parent or any property or asset of Parent is bound or affected or
(3) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to Parent or a
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