VOTING AGREEMENT
Exhibit 10.2
VOTING AGREEMENT, dated as of June 24, 2006 (the “Agreement”), by and among Telmar
Network Technology, Inc., a Delaware corporation (“Parent”), Telmar Acquisition Corp., a
Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and certain
stockholders of Xxxxxx Communications, Inc., a Delaware corporation (the “Company”), whose
names appear on Schedule I hereto (each a “Stockholder” and collectively, the
“Stockholders”).
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution and delivery of this Agreement, Merger Sub and
the Company are entering into an Agreement and Plan of Merger, dated as of the date hereof (as such
agreement may hereafter be amended from time to time, the “Merger Agreement”), which
provides for, upon the terms and subject to the conditions set forth therein, the merger of Merger
Sub with and into the Company (the “Merger”);
WHEREAS, as of the date hereof, each Stockholder owns beneficially the number of shares of
common stock, par value $0.001 per share, of the Company (the “Company Common Stock”) set
forth opposite such Stockholder’s name on Schedule I hereto (all such shares so owned and
which may hereafter be acquired by such Stockholder prior to the termination of this Agreement,
whether upon the exercise of options, conversion of convertible securities, exercise of warrants or
by means of purchase, dividend, distribution or otherwise, being referred to herein as such
Stockholder’s “Shares”);
WHEREAS, approval of the Merger Agreement by the Company’s stockholders is required in order
to consummate the Merger;
WHEREAS, as a condition to Merger Sub’s willingness to enter into the Merger Agreement, Merger
Sub has requested that each Stockholder enter into this Agreement; and
WHEREAS, in order to induce Merger Sub to enter into the Merger Agreement, each of the
Stockholders is willing to 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, Merger Sub and the Stockholders
hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES; AND
OTHER COVENANTS OF THE STOCKHOLDERS
OTHER COVENANTS OF THE STOCKHOLDERS
SECTION 1.1. Voting of Shares. From the date hereof until the termination of this
Agreement pursuant to Section 4.2 hereof (the “Term”), at any meeting of the stockholders
of the Company, however called and at any adjournment or postponement thereof, and in any action by
consent of the stockholders of the Company, each Stockholder shall (A) appear at such meeting or
otherwise cause its Shares to be counted as present thereat for purposes of establishing a quorum
and (B) vote (or cause to be voted) its Shares (i) in favor of the Merger, the Merger Agreement and
all the other transactions contemplated thereby, (ii) against (a) any Takeover Proposal, (b) any
proposal for 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 or which is
reasonably likely to result in any of the conditions of the Company’s obligations under the Merger
Agreement not being fulfilled, (c) any change in the directors of the Company, (d) any change in
the present capitalization of the Company or any amendment to the Company’s Restated Certificate of
Incorporation, as amended, or By-Laws or (e) any other change in the Company’s corporate structure
or business or change in any manner of the voting rights of the Company’s capital stock, or any
other action, which in the case of each of the matters referred to in this clause (ii) could
reasonably be expected to impede, interfere with, delay, postpone or materially adversely
affect the transactions contemplated by the Merger Agreement or the likelihood of such transactions
being consummated and (iii) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement which is considered at any such meeting of
stockholders or in such consent, and in connection therewith to execute any documents which are
necessary or appropriate in order to effectuate the foregoing, including the ability for Merger Sub
or its nominees to vote such Shares directly.
SECTION 1.2. No Inconsistent Arrangements. Except as contemplated by this Agreement,
each Stockholder shall not during the Term (i) transfer (which term shall include,
without limitation, any sale, assignment, gift, pledge, hypothecation or other
disposition), or consent to any transfer of, any or all of such Stockholder’s Shares or any
interest therein, or create or permit to exist any lien or other encumbrance on such Shares, (ii)
enter into any contract, option or other agreement or understanding with respect to any transfer of
any or all of such Shares or any interest therein, (iii) grant any proxy, power-of-attorney or
other authorization in or with respect to such Shares, (iv) deposit such Shares into a voting trust
or enter into a voting agreement or arrangement with respect to such Shares, or (v) take any other
action that would in any way restrict, limit or interfere with the performance of its obligations
hereunder or the transactions contemplated hereby or by the Merger Agreement.
SECTION 1.3. Proxy; Reliance. Each Stockholder hereby revokes any and all prior
proxies or powers of attorney in respect of any of such Stockholder’s Shares and constitutes and
appoints Merger Sub and Parent, or any nominee of Merger Sub and Parent, with full power of
substitution and resubstitution, at any time during the Term, as its true and lawful attorney and
proxy (its “Proxy”), for and in its name, place and stead, to demand that the Secretary of
the Company call a special meeting of the stockholders of the Company for the purpose of
considering any matter referred to in Section 1.1 and to vote each of such Shares as its Proxy, at
every annual, special, adjourned or postponed meeting 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 General Corporation Law of the State of Delaware may permit or require as
provided in Section 1.1. Each Stockholder understands and acknowledges that Merger Sub has entered
into the Merger Agreement in reliance upon each Stockholders’ execution and delivery of this
Agreement.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST
THROUGHOUT THE TERM.
SECTION 1.4. Waiver of Appraisal Rights. Each Stockholder hereby waives any rights of
appraisal or rights to dissent from the Merger.
SECTION 1.5. Stop Transfer. Each Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of such Stockholder’s Shares, unless such transfer is made in compliance with this
Agreement.
SECTION 1.6. No Solicitation. During the Term, each Stockholder shall not, nor shall
it permit or authorize any of its stockholders, officers, directors, employees, affiliates, agents
or representatives (collectively, the “Representatives”) to, directly or indirectly, (i)
solicit, initiate, encourage, induce, entertain or facilitate the making, submission or
announcement of any Takeover Proposal or take any action that would reasonably be expected to lead
to an Takeover Proposal; (ii) furnish any information or data to any Person in connection with or
in response to an Takeover Proposal or an inquiry or indication of interest that would reasonably
be expected to lead to an Takeover Proposal; (iii) participate or engage in discussions or
negotiations with any Person with respect to any Takeover Proposal; (iv) approve, endorse or
recommend any Takeover Proposal; or (v) enter into any letter of intent or similar document or any
contract or agreement contemplating or otherwise relating to any Acquisition Transaction. Upon
execution of this Agreement, each Stockholder shall, and shall cause its Representatives 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.
Notwithstanding any provision of this Section 1.6 to the contrary, if any Stockholder or any
of its Representatives is a member of the Board of Directors, such member of the Board of Directors
may take actions in such capacity to the extent permitted by Section 5.3 of the Merger Agreement.
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SECTION 1.7. Public Announcements. Each Stockholder shall consult with Parent before
issuing, and shall first provide Parent the reasonable opportunity to review and comment upon, any
press release or other public statements with respect to the existence or terms of this Agreement,
the Merger, the Merger Agreement and the other transactions contemplated thereby, and shall not
issue any such press release or make any such public statement without the prior written consent of
Parent, except to the extent necessary in response to a judicial or similar investigative inquiry
(including a discovery request in a lawsuit), in which case such Stockholder shall make such
disclosure pursuant thereto only after first providing reasonable notice to Parent and affording
Parent the opportunity to seek to limit, prevent or protect such disclosure.
SECTION 1.8. Legending of Certificates. If requested by Parent, such Stockholder
agrees to submit to the Company contemporaneously with or as promptly as practicable following
execution of this Agreement all certificates representing its Shares so that the Company may note
thereon a legend, in form and substance reasonably satisfactory to Parent, referring to the Proxy
and other rights granted to Parent by this Agreement.
SECTION 1.9. Additional Shares. Such Stockholder hereby agrees, while this Agreement
is in effect, to promptly notify Parent of the number of any new Shares acquired (whether upon the
exercise of options, conversion of convertible securities, exercise of warrants or by means of
purchase, dividend, distribution or otherwise) by such Stockholder, if any, after the date hereof.
SECTION 1.10. Disclosure. Each Stockholder hereby authorizes Parent and Merger Sub to
publish and disclose in the Proxy Statement (including all documents and schedules filed with the
SEC), its identity and ownership of the Company Common Stock and the nature of its commitments,
arrangements and understandings under this Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby, severally and not jointly, represents and warrants to Parent and
Merger Sub as follows:
SECTION 2.1. Due Authorization, etc. Such Stockholder has all requisite power and
authority to execute, deliver and perform this Agreement, to appoint Merger Sub and Parent as its
Proxy and to consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement, the appointment of Merger Sub and Parent as Stockholder’s Proxy and
the consummation of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of Stockholder. This Agreement has been duly executed and delivered by or on
behalf of such Stockholder and constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other similar laws and except
that the availability of equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding for such remedy may be brought. There is no
beneficiary or holder of a voting trust certificate or other interest of any trust of which such
Stockholder is trustee whose consent is required for the execution and delivery of this Agreement
or the consummation by such Stockholder of the transactions contemplated hereby.
SECTION 2.2. No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by such Stockholder does not, and the
performance of this Agreement by such Stockholder will not, (i) conflict with or violate any trust
agreement or other similar documents relating to any trust of which such Stockholder is trustee,
(ii) conflict with or violate any law applicable to such Stockholder or by which such Stockholder
or any of such Stockholder’s properties is bound or affected or (iii) 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 rights of termination, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any assets of such Stockholder, including,
without limitation, such Stockholder’s 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 any
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of such Stockholder’s assets is bound or affected, except, in the case of clauses (ii) and
(iii), for any such breaches, defaults or other occurrences that would not prevent or delay the
performance by such Stockholder of such Stockholder’s obligations under this Agreement.
(b) The execution and delivery of this Agreement by such Stockholder does not, and the
performance of this Agreement by such Stockholder will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental or regulatory
authority (other than any necessary filing under the Exchange Act), domestic or foreign, except
where the failure to obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or delay the performance by such Stockholder of such
Stockholder’s obligations under this Agreement.
SECTION 2.3. Ownership of Shares. Such Stockholder is the record and beneficial owner
of the Shares set forth opposite its name on Schedule I hereto. On the date hereof, such
Shares constitute all of the Shares owned of record or beneficially by such Stockholder. Such
Stockholder has, with respect to such Shares, or will have, with respect to any other Shares of
such Stockholder, sole voting power, sole power of disposition and sole power to agree to all of
the matters set forth in this Agreement with respect to all of such Shares, with no restrictions,
subject to applicable securities laws, on such Stockholder’s voting power or rights of disposition
pertaining thereto. Such Stockholder has good, valid and marketable title to such Shares, free and
clear of all claims, liens, encumbrances, mortgages, security interests and charges of any nature
whatsoever (“Encumbrances”) (other than the Encumbrance created by this Agreement), and
shall not be subject to any preemptive right of any stockholder of the Company.
SECTION 2.4. No Finder’s Fees. No broker, investment banker, financial advisor or
other person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or
commission in connection with the transactions contemplated hereby based upon arrangements made by
or on behalf of such Stockholder. Such Stockholder, on behalf of itself and its affiliates, hereby
acknowledges that it is not entitled to receive any broker’s, finder’s, financial advisor’s or
other similar fee or commission in connection with the transactions contemplated hereby or by the
Merger Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
PARENT AND MERGER SUB
PARENT AND MERGER SUB
Parent and Merger Sub hereby, jointly and severally, represent and warrant to the Stockholders
as follows:
SECTION 3.1. Due Organization, Authorization, etc. Merger Sub and Parent are duly
organized, validly existing and in good standing under the laws of the State of Delaware. Merger
Sub and Parent have all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby by each of Merger Sub
and Parent have been duly authorized by all necessary corporate action on the part of Merger Sub
and Parent, respectively. This Agreement has been duly executed and delivered by each of Merger
Sub and Parent and constitutes a legal, valid and binding obligation of each of Merger Sub and
Parent, enforceable against Merger Sub and Parent in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other similar laws and except
that the availability of equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding for such remedy may be brought.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1. Definitions. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Merger Agreement. Each Stockholder
acknowledges that such Stockholder has been provided with a copy of the Merger Agreement.
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SECTION 4.2. Termination. This Agreement shall terminate and be of no further force
and effect (i) by the written mutual consent of the parties hereto, (ii) automatically and without
any required action of the parties hereto upon the Effective Time or (iii) upon termination of the
Merger Agreement in accordance with its terms. No such termination of this Agreement shall relieve
any party hereto from any liability for any willful breach of this Agreement prior to termination.
SECTION 4.3. Further Assurance. From time to time, at another party’s request and
without 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 and make effective, in
the most expeditious manner practicable, the transactions contemplated by this Agreement.
SECTION 4.4. Certain Events. Each Stockholder agrees that this Agreement and such
Stockholder’s obligations hereunder shall attach to such Stockholder’s Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including, without limitation, such Stockholder’s
heirs, guardians, administrators or successors. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all its obligations under this Agreement.
SECTION 4.5. No Waiver. The failure of any party hereto to exercise any right, power
or remedy provided under this agreement or otherwise available in respect hereof at law or in
equity, or to insist upon compliance by any other party hereto with its obligations hereunder, or
any custom or practice of the parties at variance with the terms hereof shall not constitute a
waiver by such party of its right to exercise any such or other right, power or remedy or to demand
such compliance.
SECTION 4.6. Specific Performance. Each Stockholder acknowledges that if such
Stockholder fails to perform any of its obligations under this Agreement, immediate and irreparable
harm or injury would be caused to Parent and Merger Sub for which money damages would not be an
adequate remedy. In such event, each Stockholder agrees that each of Parent and Merger Sub shall
have the right, in addition to any other rights it may have, to specific performance of this
Agreement. Accordingly, if Parent or Merger Sub should institute an action or proceeding seeking
specific enforcement of the provisions hereof, each Stockholder hereby waives the claim or defense
that Parent or Merger Sub, as the case may be, has an adequate remedy at law and hereby agrees not
to assert in any such action or proceeding the claim or defense that such a remedy at law exists.
Each Stockholder further agrees to waive any requirements for the securing or posting of any bond
in connection with obtaining any such equitable relief.
SECTION 4.7. Notice. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made (i) as of the date
delivered or sent by facsimile if delivered personally or by facsimile, and (ii) on the third
business day after deposit in the U.S. mail, if mailed by registered or certified mail (postage
prepaid, return receipt requested), in each case to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice, except that notices of changes
of address shall be effective upon receipt):
| (a) | If to Parent or Merger Sub: | |||
| c/o Telmar Network Technology, Inc. | ||||
| 00000 Xxxxxx Xxxxxx Xxxx | ||||
| Xxxxxx, XX 00000 | ||||
| Attention: Xxxx Xxxxxxx | ||||
| Facsimile: (000) 000-0000 | ||||
| With a copy to: | ||||
| Xxxxxxx Xxxx & Xxxxxxxxx LLP | ||||
| 000 Xxxxxxx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 |
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| Attention: Xxxxxx X. Xxxxxxx | ||||
| Facsimile: (000) 000-0000; and |
(b) If to a Stockholder, at the address set forth below such Stockholder’s name on
Schedule I hereto.
SECTION 4.8. Expenses. Except as otherwise expressly set forth herein, all fees,
costs and expenses incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such fees, costs and expenses.
SECTION 4.9. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
SECTION 4.10. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner adverse to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible
in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the
maximum extent possible.
SECTION 4.11. Entire Agreement; No Third-Party Beneficiaries. This Agreement
constitutes the entire agreement and supersedes any and all other prior agreements and
undertakings, both written and oral, among the parties, or any of them, with respect to the subject
matter hereof, and this Agreement is not intended to confer upon any other person any rights or
remedies hereunder.
SECTION 4.12. Assignment. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by operation of law or
otherwise.
SECTION 4.13. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware applicable to contracts executed in and to be
performed entirely within that State.
SECTION 4.14. Amendment. This Agreement may not be amended except by an instrument in
writing signed on behalf of Parent, Merger Sub and each Stockholder to be affected thereby.
SECTION 4.15. Waiver. Any party hereto may (a) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties of the other parties hereto contained herein or in any document
delivered pursuant hereto and (c) waive compliance by the other parties hereto with any of their
agreements or conditions contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only as against such party and only if set forth in an
instrument in writing signed by such party. The failure of any party hereto to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of those rights.
SECTION 4.16. Descriptive Headings; Interpretation. The descriptive headings 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.
SECTION 4.17. Counterparts. This Agreement may be executed (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but all of which shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, Parent, Merger Sub and each of the Stockholders have caused this Agreement
to be executed as of the date first written above.
| TELMAR NETWORK TECHNOLOGY, INC. | ||||||
| By: | /s/ XXXX XXXXXXX | |||||
| Name: | Xxxx Xxxxxxx | |||||
| Title: | President | |||||
| TELMAR ACQUISITION CORP. | ||||||
| By: | /s/ XXXXXX XXXXX | |||||
| Name: | Xxxxxx Xxxxx | |||||
| Title: | President | |||||
| SUMMIT VENTURES V, L.P. | ||||||
| By: | Summit Partners V, L.P., its General Partner | |||||
| By: | Summit Partners, L.L.C., its General Partner | |||||
| By: | /s/ XXXXXX X. XXXXXXXXX | |||||
| Managing Member | ||||||
| SUMMIT V ADVISORS (QP) FUND, L.P. | ||||||
| By: | Summit Partners V, L.P., its General Partner | |||||
| By: | Summit Partners, L.L.C., its General Partner | |||||
| By: | /s/ XXXXXX X. XXXXXXXXX | |||||
| Managing Member | ||||||
| SUMMIT V ADVISORS FUND, L.P. | ||||||
| By: | Summit Partners V, L.P., its General Partner | |||||
| By: | Summit Partners, L.L.C., its General Partner | |||||
| By: | /s/ XXXXXX X. XXXXXXXXX | |||||
| Managing Member | ||||||
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| SUMMIT INVESTORS III, L.P. | ||||||
| By: | /s/ XXXXXX X. XXXXXXXXX | |||||
| Authorized Signatory | ||||||
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Schedule I
| Name and Address of Stockholder | Number of Shares Beneficially Owned | |||
SUMMIT VENTURES V, L.P. |
1,108,258 | |||
c/o Summit Partners 000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxx Xxxx, XX 00000 Fax: ( ) Attention: |
||||
SUMMIT V ADVISORS (QP) FUND, L.P. |
63,507 | |||
c/o Summit Partners 000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxx Xxxx, XX 00000 Fax: ( ) Attention: |
||||
SUMMIT V ADVISORS FUND, L.P. |
19,407 | |||
c/o Summit Partners 000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxx Xxxx, XX 00000 Fax: ( ) Attention: |
||||
SUMMIT INVESTORS III, L.P. |
17,060 | |||
c/o Summit Partners 000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxx Xxxx, XX 00000 Fax: ( ) Attention: |
||||
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