TENDER AGREEMENT
TENDER AGREEMENT (this "Agreement"), dated as of March 1, 1999, among
L-3 Communications Corporation, a Delaware corporation ("Parent"), and the
other parties set forth on the signature page hereof (collectively, the
"Stockholders").
RECITALS
Concurrently herewith, Parent, Angel Acquisition Corp., a Delaware
corporation and a direct, wholly owned subsidiary of Parent ("Sub"), and Aydin
Corporation, a Delaware corporation (the "Company"), are entering into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement), pursuant to which Sub agrees to
make an offer (the "Offer") for all outstanding shares of common stock, par
value $1.00 per share (the "Common Stock"), of the Company, at a price of
$13.50 per share (the "Offer Price"), net in cash, to be followed by a merger
(the "Merger") of Sub with and into the Company.
As a condition to their willingness to enter into the Merger Agreement
and make the Offer, Parent and Sub have required that the Stockholders agree,
and the Stockholders have agreed, among other things, to tender the number of
shares of Common Stock of each Stockholder set forth on Annex A hereto,
together with any additional shares when and if they are acquired (such shares,
and any additional shares when and if they are acquired, being referred to
herein as the "Shares") pursuant to the Offer and not withdraw any Shares
therefrom on the terms and conditions provided for herein.
The Board of Directors of the Company has exempted this Agreement, the
Merger Agreement and the transactions contemplated hereby and thereby so as to
render inapplicable Section 203 of the Delaware General Corporation Law
("DGCL") to the transactions contemplated hereby and thereby.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. Agreement to Tender. The Stockholders hereby agree to validly
tender (or cause the record owner to validly tender) all of their Shares
pursuant to and in accordance with the terms of the Offer and not withdraw any
Shares therefrom.
2. Voting of Shares. Each Stockholder hereby agrees to (a) vote the
Shares in favor of the approval of the Merger Agreement; (b) vote the Shares
against any action or agreement that would result in a breach in any material
respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement; and (c) vote the Shares against any action or agreement (other than
the Merger Agreement or the transactions contemplated thereby) that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
the Offer. Each Stockholder shall not hereafter purport to vote (or execute a
consent with respect to) such Shares (other than in accordance with the
requirements of this Section 2) or grant any other proxy or power of attorney
with respect to any Shares, deposit any Shares into a voting trust or enter
into any agreement (other than this Agreement), arrangement or understanding
with any person, directly or indirectly, to vote, grant any proxy or give
instructions with respect to the voting of such Shares.
3. Representations and Warranties.
3.1 Representations and Warranties of Parent. Parent hereby represents
and warrants to the Stockholders as follows:
(a) Due Authorization. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been duly and validly authorized by the Board of Directors of Parent,
and no other corporate proceedings on the part of Parent are necessary to
authorize this Agreement or to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by
Parent and constitutes a valid and binding agreement of Parent,
enforceable against Parent in accordance with its terms, except that such
enforceability (i) may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting or relating to enforcement of creditors'
rights generally and (ii) is subject to general principles of equity.
(b) No Conflicts. Except for (i) filings under the HSR Act,
if applicable, (ii) the applicable requirements of the Exchange Act and
the Securities Act, (iii) the applicable requirements of state securities,
takeover or blue sky laws and (iv) such notifications, filings,
authorizing actions, orders and approvals as may be required under other
laws, no filing with, and no permit, authorization, consent or approval of
any state, federal, foreign public body or authority is necessary for the
execution of this Agreement by Parent.
(c) Good Standing. Parent is a corporation duly organized,
validly existing and in good standing under the laws of Delaware and has
all requisite corporate power and authority to execute and deliver this
Agreement.
3.2 Representations and Warranties of Stockholders. Each Stockholder,
individually and solely as to itself hereby represents and warrants to Parent
as follows:
(a) Ownership of Shares. Each Stockholder is the record or
beneficial owner of the Shares set forth opposite its name on Annex A
hereto and has the power to vote and dispose of such Shares. To each
Stockholder's knowledge, such Shares are validly issued, fully paid and
nonassessable, with no personal liability attaching to the ownership
thereof. Each Stockholder has good title to the Shares, free and clear of
any
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agreements, liens, adverse claims or encumbrances whatsoever with respect
to the ownership of or the right to vote such Shares.
(b) Power; Binding Agreement. Each Stockholder has the
legal capacity, power and authority to enter into and perform all of its
obligations under this Agreement. The execution, delivery and performance
of this Agreement by each Stockholder will not violate any other agreement
to which such Stockholder is a party including, without limitation, any
voting agreement, stockholders agreement or voting trust. This Agreement
has been duly and validly authorized, executed and delivered by each
Stockholder and constitutes a valid and binding agreement of each
Stockholder, enforceable against each Stockholder in accordance with its
terms, except that such enforceability (i) may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally and (ii) is subject to general
principles of equity.
(c) No Conflicts. Except for (i) filings under the HSR Act,
if applicable, (ii) the applicable requirements of the Exchange Act and
the Securities Act, (iii) the applicable requirements of state securities,
takeover or blue sky laws and (iv) such notifications, filings,
authorizing actions, orders and approvals as may be required under other
laws, (A) no filing with, and no permit, authorization, consent or
approval of, any state, federal or foreign public body or authority is
necessary for the execution of this Agreement by each Stockholder and the
consummation by each Stockholder of the transactions contemplated hereby
and (B) neither the execution and delivery of this Agreement by each
Stockholder nor the consummation by each Stockholder of the transactions
contemplated hereby nor compliance by each Stockholder with any of the
provisions hereof shall (1) conflict with or result in any breach of any
provision of the certificate of incorporation, by-laws, trust or
charitable instruments (or similar documents) of such Stockholder, (2)
result in a violation or breach of, or constitute (with or without notice
or lapse of time or both) a default (or give rise to any third party right
of termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, agreement or other instrument or obligation
to which such Stockholder is a party or by which they or any of their
properties or assets may be bound or (3) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to such
Stockholder or any of his or its properties or assets, except in the case
of (2) or (3) for violations, breaches or defaults which would not in the
aggregate materially impair the ability of such Stockholder to perform its
obligations hereunder.
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4. Certain Covenants of Stockholder. Each Stockholder hereby covenants
and agrees, individually and solely, as to itself as follows:
4.1 No Solicitation. No Stockholder nor any employee, representative
or agent of any Stockholder shall, directly or indirectly, encourage, solicit,
participate in or initiate discussions or negotiations with, or provide any
information to, any corporation, partnership, person or other entity or group
(other than Parent and Sub, any affiliate or associate of Parent and Sub or any
designees of Parent or Sub) concerning any merger, sale of all or any material
portion of the assets, sale of shares of capital stock or similar transactions
(including an exchange of stock or assets) involving the Company or any
subsidiary or division of the Company. If any Stockholder, or any employee,
representative or agent of any Stockholder, receives an inquiry or proposal
with respect to the sale of Shares, then such Stockholder shall promptly inform
Parent of the terms and conditions, if any, of such inquiry or proposal and the
identity of the person making it. Each Stockholder shall, and shall cause his
or its employees, representatives and agents to, immediately cease and cause to
be terminated any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any of the foregoing.
4.2 Restriction on Transfer and NonInterference. Each Stockholder
hereby agrees, while this Agreement is in effect, and except as contemplated
hereby, not to (a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any Shares; provided that any Stockholder
may transfer Shares to any other Stockholder; provided further that as a
condition to such transfer, such other Stockholder agrees in writing on terms
reasonably acceptable to Parent to become a party to, and agrees to be bound
by, to the same extent as the transferring Stockholder, the terms of this
Agreement or (b) take any action that would make any representation or warranty
of such Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling such Stockholder from performing or its obligations
under this Agreement.
4.3 Legending of Certificates; Nominees Shares. If requested by
Parent, the Stockholders agree to submit to Parent contemporaneously with or
promptly following execution of this Agreement all certificates representing
their Shares so that Parent may note thereon a legend referring to the rights
granted to it by this Agreement. If any of the Shares beneficially owned by the
Stockholders are held of record by a brokerage firm in "street name" or in the
name of any other nominee (a "Nominee," and, as to such Shares, "Nominee
Shares"), the Stockholders agree that, upon written notice by Parent requesting
it, the Stockholders will within five days of the giving of such notice execute
and deliver to Parent a limited power of attorney in such form as shall be
reasonably satisfactory to Parent solely to enable Parent to require the
Nominee to (i) enter into an agreement to the same effect as Section 2 hereof
with respect to the Nominee Shares held by such Nominee, (ii) tender such
Nominee Shares in the Offer pursuant to Section 1 hereof and (iii) submit to
Parent the certificates representing such Nominee Shares for notation of the
above-referenced legend thereon.
4.4 Stop Transfer Order. In furtherance of this Agreement,
concurrently herewith, the Stockholders shall and hereby do authorize the
Company's counsel to notify the Company's transfer agent that, except as
permitted pursuant to Section 4.2 of this Agreement,
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there is a stop transfer order with respect to all of the Shares (and that this
Agreement places limits on the transfer of such Shares).
5. Further Assurances. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate the transactions contemplated by this Agreement.
6. Adjustments to Prevent Dilution. In the event of a stock dividend
or distribution, or any change in the Company's Common Stock by reason of any
stock dividend, split-up, reclassification, recapitalization, combination or
the exchange of shares, the term "Shares" shall be deemed to refer to and
include the Shares as well as all such stock dividends and distributions and
any shares into which or for which any or all of the Shares may be changed or
exchanged. In such event, the definitions of "Set Amount" and "Initial Amount"
shall be proportionally adjusted.
7. Miscellaneous.
7.1 Entire Agreement; Assignment. This Agreement (i) constitutes the
entire agreement among the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof and (ii)
shall not be assigned by operation of law or otherwise, provided that Parent
may assign its rights and obligations hereunder to any direct or indirect
wholly owned parent company or subsidiary of Parent, but no such assignment
shall relieve Parent of its obligations hereunder if such assignee does not
perform such obligations.
7.2 Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
7.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram,
telex or telecopy, or by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered to
the respective parties at the following addresses:
If to the Stockholders: c/o Steel Partners II, L.P.
150 East 52nd Street
21st Floor
New York, New York 10022
Attention: Warren G. Lichtenstein
copy to: Olshan Grundman Frome Rosenzweig & Wolosky,
LLP
505 Park Avenue
New York, New York 10022
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Attention: Steven Wolosky, Esq.
If to Parent: L-3 Communications Corporation
600 Third Avenue
New York, New York 10016
Attention: Christopher Cambria, Esq.
copy to: Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: William E. Curbow, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
7.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
7.5 Termination. This Agreement shall terminate on the earlier of (i)
the Effective Time or (ii) the termination of the Merger Agreement in
accordance with its terms.
7.6 Waiver of Dissenter's and Appraisal Rights. The Stockholders agree
that they will not exercise any rights to dissent from the Merger or request
appraisal rights of their Shares pursuant to Section 262 of the DGCL or any
other similar provisions of law in connection with the transactions
contemplated hereby.
7.7 Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore, each of
the parties hereto agrees that in the event of any such breach the aggrieved
party shall be entitled to the remedy of specific performance of such covenants
and agreements and injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity.
7.8 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall be deemed to be an original, and all
of which shall constitute one and the same agreement.
7.9 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
7.10 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under
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applicable law but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any provision
in such jurisdiction, and this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
7.11 Duty of Directors. Nothing contained in Section 4.1 shall limit
the right of any officer, director, employee or representative of a Stockholder
who is a director of the Company from exercising his or her fiduciary
responsibility as a director, consistent with the terms of the Merger
Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
L-3 COMMUNICATIONS CORPORATION
By: /s/ Christopher C. Cambria
--------------------------------------------------
Name: Christopher C. Cambria
Title: Vice President and General Counsel
STEEL PARTNERS II, L.P.
By: Steel Partners, L.L.C., General Partner
By: /s/ Warren G. Lichtenstein
--------------------------------------------------
Warren G. Lichtenstein, Chief Executive Officer
SANDERA PARTNERS, L.P.
By: Sandera Capital Management L.P., General Partner
By: Sandera Capital L.L.C., General Partner
By: /s/ Mark E. Schwarz
--------------------------------------------------
Mark E. Schwarz, Vice President and Managing Member
NEWCASTLE PARTNERS, L.P.
By: /s/ Mark E. Schwarz
--------------------------------------------------
Mark E. Schwarz, General Partner
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ANNEX A
Number of Shares
Name of Common Stock
- ---- ---------------
Steel Partners II, L.P. 492,600
Sandera Partners, L.P. 125,000
Newcastle Partners, L.P. 3,100
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