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EXHIBIT (a)(5)
AGREEMENT
AGREEMENT dated as of June 15, 2000 among Yavapai Acquisition Corp., a
Delaware corporation ("BUYER"), and the holders (the "STOCKHOLDERS") of the
shares of common stock, $0.02 par value (the "SHARES"), of Comptek Research,
Inc., a New York corporation (the "COMPANY"), listed on the signature pages
hereof.
In order to induce Buyer and Northrop Grumman Corporation, a Delaware
corporation ("PARENT"), to enter into an Agreement and Plan of Merger (the
"MERGER AGREEMENT") with the Company, Buyer has requested that the Stockholders,
and the Stockholders have agreed to, enter into this Agreement.
The parties hereto agree as follows:
ARTICLE I
TENDER OFFER
SECTION 1.1. TENDER OF SHARES. (a) Each Stockholder hereby agrees,
pursuant to the terms and subject to the conditions set forth herein, to tender
for exchange in the Offer (as defined in the Merger Agreement) all Shares
currently owned by such Stockholder as set forth on the signature page hereto
and any additional Shares acquired by such Stockholder (whether by purchase or
otherwise) after the date of this Agreement (such "STOCKHOLDER'S SHARES" and,
collectively, the "STOCKHOLDER SHARES").
(b) Not later than two days prior to the expiration of the Offer (and
within five business days of any acquisition by each Stockholder of any
additional Shares), each Stockholder shall, as appropriate, (x) deliver to the
Exchange Agent (the "EXCHANGE AGENT") designated in the Offer (i) a letter of
transmittal with respect to such Stockholder's Shares complying with the terms
of the Offer together with instructions directing the Exchange Agent to make
payment for such Shares directly to the Stockholder, (ii) a certificate or
certificates representing such Stockholder's Shares and (iii) all other
documents or instruments required to be delivered pursuant to the terms of the
Offer (such documents in clauses (i) through (iii) collectively being
hereinafter referred to as the "TENDER DOCUMENTS"), and/or (y) instruct its
broker or such other person who is the holder of record of any Shares
Beneficially Owned (as defined herein) by such Stockholder to tender such Shares
for exchange in the Offer pursuant to the terms and conditions of the Offer.
(c) No Stockholder shall withdraw any tender effected in accordance with
Section 1.1(b).
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ARTICLE II
GRANT OF PROXY
SECTION 2.1. PROXY. Each Stockholder hereby revokes any and all previous
proxies granted with respect to such Stockholder's Shares. Each Stockholder, by
this Agreement, with respect to such Stockholder's Shares, does hereby
constitute and appoint Buyer, or any nominee of Buyer, with full power of
substitution, as its true and lawful attorney and proxy, for and in its name,
place and stead, to vote each of such Stockholder's Shares as its proxy, at
every annual, special or adjourned meeting, or solicitation of consents, of the
stockholders of the Company (including the right to sign its name (as
stockholder) to any consent, certificate or other document relating to the
Company that the law of the State of New York may permit or require) (i) in
favor of the adoption of the Merger Agreement and this Agreement and approval of
the Merger (as defined in the Merger Agreement) and the other transactions
contemplated hereby and by the Merger Agreement, (ii) against any proposal for
any recapitalization, merger, sale of assets or other business combination
between the Company and any person or entity (other than the Merger) or 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 not being fulfilled and (iii) in favor of any other
matter necessary for the consummation of the transactions contemplated by the
Merger Agreement and this Agreement. Each Stockholder further agrees to cause
such Stockholder's Shares that are outstanding and owned by it beneficially to
be voted in accordance with the foregoing. The proxy granted by each
Stockholder pursuant to this Article II is irrevocable, is coupled with an
interest and is granted in consideration of Buyer's entering into this Agreement
and the Merger Agreement; provided, however, that such proxy shall be revoked
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upon termination of the Merger Agreement in accordance with its terms.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders severally represents and warrants to the Buyer
that:
SECTION 3.1. VALID TITLE. Such Stockholder is the sole, true, lawful and
beneficial owner of such Stockholder's Shares with no restrictions on such
Stockholder's voting rights or rights of disposition pertaining thereto, except
for any such restrictions contemplated herein. Except as may be the case under
the arrangements referenced in the footnotes at the end of this Agreement, none
of such Stockholder's Shares is subject to any voting trust or other agreement
or arrangement with respect to the voting of such Shares.
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SECTION 3.2. NON-CONTRAVENTION. The execution, delivery and performance by
such Stockholder of this Agreement and, subject to compliance with the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), and
securities laws, as applicable, the consummation of the transactions
contemplated hereby (i) are within such Stockholder's powers, have been duly
authorized by all necessary action (including any consultation, approval or
other action by or with any other person), (ii) require no action by or in
respect of, or filing with, any governmental body, agency, official or authority
and (iii) do not and will not contravene or constitute a default under, or give
rise to a right of termination, cancellation or acceleration of any right or
obligation of such Stockholder or to a loss of any material benefit of such
Stockholder under, any provision of applicable law or regulation or of any
agreement, judgment, injunction, order, decree, or other instrument binding on
such Stockholder or result in the imposition of any lien on any asset of such
Stockholder other than any such conflicts, breaches, violations, defaults,
obligations, rights or losses that individually or in the aggregate would not
(a) materially impair the ability of Stockholder to perform such Stockholder's
obligations under this Agreement or (b) prevent or delay the consummation of any
of the transactions contemplated hereby. No consent, approval, order or
authorization of, or registration, declaration or filing with or exemption by
any Federal, state or local government or any court, administrative or
regulatory agency or commission or other governmental authority or agency,
domestic or foreign, is required by or with respect to such Stockholder in
connection with the execution and delivery of this Agreement by such Stockholder
or the consummation by such Stockholder of the transactions contemplated by this
Agreement, except for applicable requirements, if any, of Sections 13 and 16 of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the
rules and regulations thereunder. If this Agreement is being executed in a
representative or fiduciary capacity, the person signing this Agreement has full
power and authority to enter into and perform such Agreement.
SECTION 3.3. BINDING EFFECT. This Agreement has been duly executed and
delivered by such Stockholder and, assuming that this Agreement constitutes the
valid and binding obligations of the other parties hereto, is the valid and
binding agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general principles of equity.
SECTION 3.4. TOTAL SHARES. Each Stockholder is the record and Beneficial
Owner of the number of Shares set forth next to such Stockholder's name on the
signature pages hereto. Such Shares constitute all of the Shares owned of
record or Beneficially Owned by such Stockholder as of the date hereof. Except
as set forth on such signature pages, neither such Stockholder nor any
beneficial owner or owners of such Stockholder's Shares own any options to
purchase or rights to subscribe for or otherwise acquire any securities of the
Company. Each Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Article II of this
Agreement, sole power of disposition, sole power of conversion and sole power to
agree to all of the
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matters set forth in this Agreement, in each case with respect to all of the
Shares beneficially owned by such Stockholder with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement. The terms "BENEFICIALLY OWN" or
"BENEFICIAL OWNERSHIP" with respect to any securities shall mean having
"BENEFICIAL OWNERSHIP" of such securities as determined pursuant to Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT").
SECTION 3.5. FINDER'S FEES. No investment banker, broker or finder is
entitled to a commission or fee from Buyer in respect of this Agreement based
upon any arrangement or agreement made by or on behalf of such Stockholder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer represents and warrants to each of the Stockholders:
SECTION 4.1. CORPORATE POWER AND AUTHORITY. Buyer has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by Buyer of this
Agreement and the consummation by Buyer of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Buyer. This Agreement has been duly executed and delivered by Buyer and is a
valid and binding agreement of Buyer, enforceable against it in accordance with
its terms.
SECTION 4.2. NON-CONTRAVENTION. The execution, delivery and performance by
Buyer of this Agreement and, subject to compliance with the HSR Act and
securities laws, as applicable, the consummation of the transactions
contemplated hereby (i) require no action by or in respect of, or filing with,
any governmental body, agency, official or authority and (ii) do not and will
not contravene or constitute a default under, or give rise to a right of
termination, cancellation or acceleration of any right or obligation of Buyer or
to a loss of any material benefit of Buyer under, any provision of applicable
law or regulation or of any agreement, judgment, injunction, order, decree, or
other instrument binding on Buyer or result in the imposition of any lien on any
asset of Buyer other than any such conflicts, breaches, violations, defaults,
obligations, rights or losses that individually or in the aggregate would not
(a) materially impair the ability of Buyer to perform Buyer's obligations under
this Agreement or (b) prevent or delay the consummation of any of the
transactions contemplated hereby. No consent, approval, order or authorization
of, or registration, declaration or filing with or exemption by any Federal,
state or local government or any court, administrative or regulatory agency or
commission or other governmental authority or agency, domestic or foreign, is
required by or with respect to Buyer in connection with the execution and
delivery of this Agreement by Buyer or the consummation by Buyer of the
transactions contemplated by this Agreement, except for applicable requirements,
if any, of the HSR Act, the Securities
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Act of 1933, Sections 13 and 16 of the Exchange Act and the rules and
regulations thereunder.
ARTICLE V
COVENANTS OF THE STOCKHOLDERS
Each of the Stockholders hereby covenants and agrees that:
SECTION 5.1. NO PROXIES FOR OR ENCUMBRANCES ON STOCKHOLDER SHARES. Except
pursuant to the terms of this Agreement or the Tender Documents, such
Stockholder shall not, without the prior written consent of Buyer, directly or
indirectly, (i) grant any proxies (other than proxies relating to the election
of management's slate of directors at an annual meeting of the Company's
stockholders, and other routine matters which would not require the filing of a
preliminary proxy statement under Rule 14a-6(a) of the Exchange Act) or enter
into any voting trust or other agreement or arrangement with respect to the
voting of any such Stockholder's Shares or (ii) sell, assign, transfer, encumber
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to the direct or indirect sale, assignment,
transfer, encumbrance or other disposition of, any such Stockholder's Shares
during the term of this Agreement. Except as permitted by the preceding
sentences, such Stockholder shall not seek or solicit any such sale, assignment,
transfer, encumbrance or other disposition or any such contract, option or other
arrangement or assignment or understanding and agrees to notify Buyer promptly
and to provide all details requested by Buyer if such Stockholder shall be
approached or solicited, directly or indirectly, by any person with respect to
any of the foregoing.
SECTION 5.2. NO SHOPPING. Such Stockholder, in the capacity as a
stockholder, shall not directly or indirectly (i) subject to the fiduciary duty
under applicable law of such Stockholder as a director of the Company (if such
Stockholder is such a director) as further provided in the Merger Agreement,
solicit, initiate or encourage (or authorize any person to solicit, initiate or
encourage) any inquiry, proposal or offer from any person to acquire the
business, property or capital stock of the Company or any direct or indirect
subsidiary thereof, or any acquisition of a substantial equity interest in, or a
substantial amount of the assets of, the Company or any direct or indirect
subsidiary thereof, whether by merger, purchase of assets, tender offer or other
transaction or (ii) subject to the fiduciary duty under applicable law of such
Stockholder as a director of the Company (if such Stockholder is such a
director) as further provided in the Merger Agreement, participate in any
discussion or negotiations regarding, or furnish to any other person any
information with respect to, or otherwise cooperate in any way with, or
participate in, facilitate or encourage any effort or attempt by any other
person to do or seek any of the foregoing. Such Stockholder shall promptly
advise Buyer of the terms of any communications it may receive in the capacity
as a stockholder relating to any of the foregoing.
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SECTION 5.3. CONDUCT OF STOCKHOLDERS. Such Stockholder will not (i) take,
agree or commit to take any action that would make any representation and
warranty of such Stockholder hereunder inaccurate in any respect as of any time
prior to the termination of this Agreement or (ii) omit, or agree or commit to
omit, to take any action necessary to prevent any such representation or
warranty from being inaccurate in any respect at any such time.
SECTION 5.4. DISCLOSURE. Each Stockholder hereby permits Buyer to publish
and disclose in the offer documents and, if approval of the Company's
stockholders is required under applicable law, a proxy statement (including all
documents and schedules filed with the SEC) their identity and ownership of the
Shares and the nature of their commitments, arrangements and understandings
under this Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. EXPENSES. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
SECTION 6.2. ADDITIONAL AGREEMENTS. Subject to the terms and conditions of
this Agreement, each of the Buyer and each Stockholder, in the capacity as a
Stockholder, agrees to use all reasonable efforts to take, or cause to be taken,
all action and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations and which may be required under
any agreements, contracts, commitments, instruments, understandings,
arrangements or restrictions of any kind to which such party is a party or by
which such party is governed or bound, to consummate and make effective the
transactions contemplated by this Agreement.
SECTION 6.3. TERMINATION. This Agreement and the proxies granted pursuant
to Section 2.1 will terminate immediately upon the termination of the Merger
Agreement in accordance with its terms.
SECTION 6.4. SPECIFIC PERFORMANCE. The parties hereto agree that the Buyer
may be irreparably damaged if for any reason any Stockholder failed to tender in
the Offer, and to not withdraw, such Stockholder's Shares (or other securities
covered by this Agreement) in accordance with the terms of this Agreement or to
perform any of its other obligations under this Agreement, and that the Buyer
would not have an adequate remedy at law for money damages in such event.
Accordingly, the Buyer shall be entitled to specific performance and injunctive
and other equitable relief to enforce the performance of this Agreement by each
Stockholder. This provision is without prejudice to any other rights that the
Buyer may have against any Stockholder for any failure to perform its
obligations under this Agreement.
SECTION 6.5. NOTICES. All notices, requests, claims, demands and other
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communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 6.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in this Agreement shall not survive
delivery of and payment for the Stockholder Shares or the termination of this
Agreement.
SECTION 6.7. AMENDMENTS. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by all the parties hereto.
SECTION 6.8. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that Buyer may assign its rights and
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obligations to any affiliate of Buyer and provided, further, that no Stockholder
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may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the Buyer.
SECTION 6.9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF, EXCEPT TO THE EXTENT NEW
YORK OR FEDERAL LAW MANDATORILY GOVERNS.
SECTION 6.10. JURISDICTION. Each of the parties hereto (a) consents to
submit itself to the exclusive personal jurisdiction of any court of the United
States located in the State of New York or of any New York state court in the
event any dispute arises out of this Agreement or the transactions contemplated
by this Agreement, and (b) agrees that it will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any such
court.
SECTION 6.11. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
YAVAPAI ACQUISITION CORP.
By: /s/ Albert F. Myers
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Albert F. Myers, President
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Name:
Title:
/s/ Laura L. Benedetti
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Laura L. Benedetti
Address: 2732 Transit Road
Buffalo, New York 14224
Phone: (716) 677-0023
Number of Shares: 2,401
Number of Options: 57,685
Total: 60,086
/s/ John R. Cummings
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John R. Cummings
Address: 822 Crown Ridge Road
Sedona, Arizona 86351
Phone: (520) 284-2471
Number of Shares: 187,000
Number of Options: 34,000
Total: 221,000
/s/ Bradley H. Feldmann
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Bradley H. Feldmann
Address: 2732 Transit Road
Buffalo, New York 14224
Phone: (716) 677-0023
Number of Shares: 177
Number of Options: 35,000
Total: 35,177
/s/ G. Wayne Hawk
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G. Wayne Hawk
Address: 1634 Hubbard Road
East Aurora, New York 14052
Phone: (716) 652-1930
Number of Shares: 197,138
Number of Options: 36,000
Total: 233,138
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/s/ Christopher A. Head
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Christopher A. Head
Address: 2732 Transit Road
Buffalo, New York 14224
Phone: (716) 677-0023
Number of Shares: 11,474
Number of Options: 88,568
Total: 100,042
/s/ James D. Morgan
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James D. Morgan
Address: 2732 Transit Road
Buffalo, New York 14224
Phone: (716) 677-0023
Number of Shares: 320,938
Number of Options: 16,900
Total: 337,838
/s/ John J. Sciuto
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John J. Sciuto
Address: 2732 Transit Road
Buffalo, New York 14224
Phone: (716) 677-0023
Number of Shares: 58,464
Number of Options: 158,074
Total: 216,538
/s/ Henry P. Semmelhack
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Henry P. Semmelhack
Address: Barrister Global
Services Network, Inc.
290 Ellicott Street
Buffalo, New York 14203
Phone: (716) 845-5010
Number of Shares: 179,786
Number of Options: 36,000
Total: 215,786
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Exceptions to the Representations and Warranties contained in Article III and
the Covenants in Article V:
1. Prior to the date of this Agreement and continuing as of the date of this
Agreement, Henry P. Semmelhack has pledged certain of his shares of Comptek
Common Stock to Manufacturers and Traders Trust Company.
2. Prior to the date of this Agreement and continuing as of the date of this
Agreement, James D. Morgan has pledged certain of his shares of Comptek Common
Stock to Manufacturers and Traders Trust Company.
