EXHIBIT 2
PARENT VOTING AGREEMENT
This PARENT VOTING AGREEMENT (this "Agreement") is made and entered
into as of March 28, 2001 between Mayan Networks Corporation, a California
corporation ("Company" or "M-Co"), and the undersigned stockholders (each a
"Stockholder" and collectively the "Stockholders") of Ariel Corporation, a
Delaware corporation ("Parent"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings set forth in the Merger
Agreement described below.
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of
March, 2001 between Parent and Company (such agreement as it may be amended is
hereinafter referred to as the "Merger Agreement"), the Company will be merged
with and into Parent and the shareholders of the Company will receive shares of
Parent Common Stock as set forth in the Merger Agreement (the "Merger");
WHEREAS, in order to induce the Company to enter into the Merger
Agreement and consummate the Merger, Parent has agreed to use its reasonable
efforts to cause certain stockholders of Parent to execute and deliver to the
Company a Voting Agreement upon the terms set forth herein; and
WHEREAS, each Stockholder is the owner of the number of shares of the
capital stock of Parent indicated on the signature page of this Parent Voting
Agreement (the "Shares").
NOW, THEREFORE, the parties agree as follows:
1. Agreement to Retain Shares.
1.1. Transfer and Encumbrance. Each Stockholder represents and
warrants to the Company that (i) such Stockholder is a record or beneficial
owner of the Shares, with power to vote the Shares or cause the Shares to be
voted and, except as otherwise set forth on the signature page hereto,
Stockholder (A) has held such Shares at all times since the date set forth on
such signature page, and (B) did not acquire any Shares in contemplation of the
Merger; (ii) the Shares set forth on the signature page hereto constitute such
Stockholder's entire interest in the outstanding capital stock and voting
securities of Parent, other than Shares that are subject to employee stock
options; (iii) no other person or entity not a signatory to this Agreement has a
beneficial interest in or a right to acquire such Shares or any portion of such
Shares; (iv) the Shares are and will be at all times up until the Expiration
Date (as hereinafter defined) free and clear of any liens, claims, options,
charges or other encumbrances; and (v) such Stockholder's address is accurately
set forth on the signature page hereto.
1.2. New Shares. Each Stockholder agrees that any shares of capital
stock or voting securities of Parent ("New Shares") that such Stockholder
purchases or with respect to which Stockholder otherwise acquires beneficial
ownership after the date of this Agreement and prior to the Expiration Date
shall be subject to the terms and conditions of this Agreement to the
same extent as if they constituted Shares. As used herein, the term "Expiration
Date" shall mean the earlier to occur of (i) the Effective Time or (ii)
termination of the Merger Agreement in accordance with the terms thereof.
2. Agreement to Vote Shares and Take Certain Other Action. Prior to the
Expiration Date, at every meeting of the stockholders of Parent at which any of
the following matters is considered or voted upon, 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 matters, each
Stockholder shall vote the Shares and any New Shares: (a) in favor of approval
of the issuance of shares of Parent Common Stock pursuant to the Merger
Agreement, adoption of the Merger Agreement and the terms thereof, and each of
the other transactions contemplated by the Merger Agreement, and any matter
which would, or could reasonably be expected to, facilitate the Merger and each
of the transactions contemplated by the Merger Agreement; (b) against approval
of any proposal made in opposition to or competition with consummation of the
Merger and the Merger Agreement; (c) against any merger, consolidation or other
business combination of Parent with, sale of assets or stock of Parent to, or
reorganization or recapitalization involving Parent, other than as contemplated
or permitted by the Merger Agreement; (d) against any amendment to the
certificate of incorporation of Parent that relates to the issuance of
additional shares of Parent Common Stock in connection with any financing; (e)
against any liquidation, or winding up of Parent; and (f) against any other
proposal or action which would, or could reasonably be expected to, prohibit or
discourage the Merger, including any amendment of the certificate of
incorporation or bylaws of Parent not previously contemplated under the Merger
Agreement which would dilute in any material respect the benefits to the Company
of the Merger or change in any manner the voting rights of any shares of Parent
Capital Stock.
Prior to the Expiration Date, each Stockholder, as the holder of voting
stock of Parent, shall be present, in person or by proxy at all meetings of
stockholders of Parent at which any matter referred to in this Section 2 is to
be voted upon so that all Shares and New Shares are counted for the purposes of
determining the presence of a quorum at such meetings.
This Parent Voting Agreement is intended to bind Stockholder only with
respect to the specific matters set forth herein, and shall not prohibit
Stockholder from acting in accordance with Stockholder's fiduciary duties as an
officer or director of Parent.
3. Irrevocable Proxy. Each Stockholder hereby agrees to timely deliver
to the Company a duly executed proxy in the form attached hereto as Annex A (the
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"Proxy"), such Proxy to cover the issued and outstanding Shares and all issued
and outstanding New Shares in respect of which such Stockholder is the record
holder and is entitled to vote at each meeting of the stockholders of Parent
(including, without limitation, each written consent in lieu of a meeting) prior
to the Expiration Date. In the event that any Stockholder is unable to provide
any such Proxy in a timely manner, such Stockholder hereby grants the Company a
power of attorney to execute and deliver such Proxy for and on behalf of such
Stockholder, such power of attorney, which being coupled with an interest, shall
survive any death, disability, bankruptcy, or any other such impediment of such
Stockholder. Upon the execution of this Agreement by each Stockholder, such
Stockholder hereby revokes any and all prior proxies or powers of attorney given
by such Stockholder with respect to voting of the Shares on the matters referred
to in
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Section 2 and agrees not to (a) grant any subsequent proxies or powers of
attorney with respect to the voting of the Shares, (b) deposit any of the Shares
into a voting trust, or (c) enter into a voting agreement with respect to any of
the Shares, until after the Expiration Date.
4. Representations, Warranties and Covenants of Stockholder. Each
Stockholder hereby represents, warrants and covenants to the Company as follows:
(a) Such Stockholder has full power and legal capacity to execute and
deliver this Agreement and to perform his or her obligations hereunder. This
Agreement has been duly and validly executed and delivered by such Stockholder
and constitutes the valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms, except as may
be limited by (i) the effect of bankruptcy, insolvency, conservatorship,
arrangement, moratorium or other laws affecting or relating to the rights of
creditors generally, or (ii) the rules governing the availability of specific
performance, injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a proceeding in equity
or at law. The execution and delivery of this Agreement by such Stockholder
does not, and the performance of such Stockholder's obligations hereunder will
not, result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any right to terminate, amend, accelerate or cancel any right or obligation
under, or result in the creation of any lien or encumbrance on any Shares or New
Shares pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
such Stockholder is a party or by which such Stockholder or the Shares or New
Shares are or will be bound or affected.
(b) Such Stockholder agrees not to transfer, sell, exchange, pledge or
otherwise dispose of or encumber any of the Shares, or make any offer or
agreement relating thereto, at any time prior to the Expiration Date other than
to a transferee that agrees to be bound by the terms of this voting agreement
and the proxy attached hereto. Each Stockholder understands and agrees that if
such Stockholder attempts to transfer, vote or provide any other person with the
authority to vote any of the Shares other than in compliance with this
Agreement, Parent shall not, and each Stockholder hereby unconditionally and
irrevocably instructs Parent to not, permit any such transfer on its books and
records, issue a new certificate representing any of the Shares or record such
vote unless and until such Stockholder shall have complied with the terms of
this Agreement.
(c) Such Stockholder waives, as of the Effective Time, any claims it may
have in its capacity as a stockholder and has no knowledge of any pending or
threatened claims against the Parent by any other security holder of the Parent.
(d) Until the Expiration Date, such Stockholder will not (and will use all
requisite reasonable efforts to cause Parent, its affiliates, officers,
directors and employees and any investment banker, attorney, accountant or other
agent retained by such Stockholder or them, not to): (i) solicit, initiate,
encourage or take any other action to facilitate directly or indirectly, any
proposal, plan or offer to acquire all or any part of the business, assets,
capital stock or other securities of Parent, whether by merger, purchase of
assets, purchase of stock or other securities, exclusive license, joint venture,
or otherwise, or to liquidate Parent or otherwise distribute to the Stockholders
of Parent all or any substantial part of the business, properties or capital
stock of
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Parent (each, an "Opposing Proposal"); (ii) initiate, directly or indirectly,
any contact with any person in an effort to or with a view towards soliciting
any Opposing Proposal; (iii) furnish information concerning Parent's business,
properties or assets to any corporation, partnership, person or other entity or
group (other than the Company, or any associate, agent or representative of the
Company) under any circumstances that could reasonably be expected to relate to
an actual or potential Opposing Proposal; (iv) negotiate or enter into
discussions or any agreement, directly or indirectly, with any entity or group
with respect to any potential Opposing Proposal; or (v) otherwise cooperate in
any way with, or assist or participate in any effort or attempt by any person
with respect to, any Opposing Proposal. In the event Stockholder shall receive
or become aware of any Opposing Proposal subsequent to the date hereof,
Stockholder shall promptly inform the Company as to any such matter and the
details thereof to the extent possible without breaching any other agreement to
which Stockholder is a party or violating its fiduciary duties.
(e) Stockholder agrees not to take any action that would make any
representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of Stockholder to perform its obligations under
this Agreement or preventing or delaying the consummation of any of the
transactions contemplated hereby.
5. Additional Documents. Each Stockholder hereby covenants and agrees
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of the Company, to carry out the purpose and intent of this
Agreement.
6. Consent and Waiver. Each Stockholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreement to which such Stockholder is a party or pursuant to
any rights such Stockholder may have provided, however, that such Stockholder
shall not be required by this Section 6 to give any consent or waiver in his or
her capacity as a director or officer of Parent.
7. Termination. This Agreement and the Proxy delivered in connection
herewith and all obligations of each Stockholder hereunder and thereunder, shall
terminate and shall have no further force or effect as of the Expiration Date.
8. Miscellaneous.
8.1. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
8.2. Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without the prior written consent of the other. This Agreement
is intended to bind each Stockholder solely as a securityholder of Parent only
with respect to the specific matters set forth herein.
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8.3. Amendment and Modification. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
8.4. Specific Performance; Injunctive Relief. The parties hereto
acknowledge that the Company will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements
of each Stockholder set forth herein. Therefore, it is agreed that, in addition
to any other remedies that may be available to the Company upon any such
violation, the Company shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to the Company at law or in equity and each Stockholder hereby waives
any and all defenses which could exist in its favor in connection with such
enforcement and waives any requirement for the security or posting of any bond
in connection with such enforcement.
8.5. Notices. All notices, requests, demands or other communications
that are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed to have been duly given (a) when delivered, if
delivered by hand, (b) one business day after transmitted, if transmitted by a
nationally recognized overnight courier service, (c) when telecopied, if
telecopied (which is confirmed), or (d) three business days after mailing, if
mailed by registered or certified mail (return receipt requested), to the
parties at the following addresses:
(a) If to any Stockholder, at the address set forth below such
Stockholder's signature at the end hereof.
(b) if to Company, to:
MAYAN NETWORKS CORPORATION
0000 X'Xxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Facsimile No.: (000) 000-0000
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
8.6. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California without
giving effect to the principles of conflicts or choice of law rules of any
jurisdiction.
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8.7. Entire Agreement. This Agreement and the Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
8.8. Counterpart. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
8.9. Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
M-CO STOCKHOLDER
By:__________________________ _________________________________
Name:________________________ (Signature)
Title:_______________________
_________________________________
(Print Name of Stockholder)
_________________________________
(Print Xxxxxx Xxxxxxx)
_________________________________
(Print City, State and Zip)
_________________________________
(Print Telephone Number)
Total Number of Shares of Parent Common Stock owned directly on the date hereof:
Common Stock:_____________________
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
ANNEX A
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IRREVOCABLE PROXY
TO VOTE STOCK OF
ARIEL CORPORATION
The undersigned stockholder of Ariel Corporation, a Delaware
corporation ("Parent"), hereby irrevocably appoints the members of the Board of
Directors of Mayan Networks Corporation, a California corporation ("Company"),
and each of them, or any other designee of the Company, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting rights (to the
full extent that the undersigned is entitled to do so) with respect to all of
the issued and outstanding shares of capital stock of Parent that now are owned
of record by the undersigned, (collectively, the "Shares") in accordance with
the terms of this Irrevocable Proxy. The Shares owned of record by the
undersigned stockholder of Parent as of the date of this Irrevocable Proxy are
listed on the final page of this Irrevocable Proxy. Upon the undersigned's
execution of this Irrevocable Proxy, any and all prior proxies given by the
undersigned with respect to the voting of any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to such
Shares until after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the fullest extent permitted
by California law), is coupled with an interest, and is granted in consideration
of the Company entering into that certain Agreement and Plan of Merger (the
"Merger Agreement") by and between Parent and the Company, which Merger
Agreement provides for the merger of the Company with and into Parent (the
"Merger"). As used herein, the term "Expiration Date" shall mean the earlier to
occur of (i) such date and time as the Merger shall become effective in
accordance with the terms and provisions of the Merger Agreement, and (ii) the
date of termination of the Merger Agreement.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting rights of the undersigned with respect to the Shares
(including, without limitation, the power to execute and deliver written
consents), at every annual, special or adjourned meeting of the stockholders of
Parent and in every written consent in lieu of such meeting: (a) in favor of
adoption of the Merger Agreement and the terms thereof, and each of the other
transactions contemplated by the Merger Agreement, and any matter which would,
or could reasonably be expected to, facilitate the Merger; (b) against approval
of any proposal made in opposition to or competition with consummation of the
Merger and the Merger Agreement; (c) against any merger, consolidation or other
business combination of Parent with, sale of assets or stock of Parent to, or
reorganization or recapitalization involving Parent, other than as contemplated
or permitted by the Merger Agreement; (d) against any liquidation, or winding up
of Parent; and (e) against any other proposal or action which would, or could
reasonably be expected to, prohibit or discourage the Merger, including any
amendment of the certificate of incorporation or bylaws of Parent not previously
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contemplated under the Merger Agreement which would dilute in any material
respect the benefits to the Company of the Merger or change in any manner the
voting rights of any shares of Parent Capital Stock.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The undersigned
stockholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity
of the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: __, 2001
_________________________________
(Signature of Stockholder)
_________________________________
(Print Name of Stockholder)
Shares owned of record:
_______________________ shares of
Parent Common Stock
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