EXHIBIT 99.5
PARADYNE VOTING AGREEMENT
THIS PARADYNE VOTING AGREEMENT (this "Agreement") is made and entered
into as of December 27, 2001 by and between Elastic Networks Inc., a Delaware
corporation ("Elastic"), and the undersigned stockholder ("Stockholder") of
Paradyne Networks, Inc., a Delaware corporation ("Paradyne").
RECITALS
A. Concurrently with the execution and delivery hereof, Paradyne,
Phoenix Merger Sub, Inc., a Delaware corporation and a direct wholly owned
subsidiary of Paradyne ("Sub"), and Elastic are entering into an Agreement and
Plan of Merger of even date herewith (the "Merger Agreement"), which provides
for the merger (the "Merger") of Sub with and into Elastic in accordance with
its terms.
B. Stockholder is the record owner of such number of shares of
the outstanding capital stock of Paradyne and shares subject to outstanding
options as is indicated on the signature page of this Agreement.
C. In consideration of the execution and delivery of the Merger
Agreement by Elastic, Stockholder (in Stockholder's capacity as such) desires to
agree to vote the Shares (as defined herein) and other such shares of capital
stock of Paradyne over which Stockholder has voting power so as to facilitate
the consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto
hereby agree as follows:
1. Certain Definitions. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed thereto in the Merger Agreement.
For all purposes of and under this Agreement, the following terms shall have the
following respective meanings:
(a) "Expiration Date" means the earlier to occur of (i)
such date and time as the Merger Agreement shall have been validly terminated
pursuant to the terms of Article 10 thereof, or (ii) the Effective Time.
(b) "Person" means any individual, corporation, limited
liability company, general or limited partnership, unincorporated association,
joint venture, or other business enterprise or entity.
(c) "Paradyne Common Stock" means the shares of common
stock, $0.001 par value per share, of Paradyne.
(d) "Shares" means all shares of Paradyne Common Stock
and other voting securities of Paradyne owned of record by Stockholder as of the
record date for every annual, special, postponed or adjourned meeting of
stockholders of Paradyne at which the
Paradyne Stockholder Proposals are considered and voted upon, and in every
written consent in lieu of such a meeting.
2. Transfer of Voting Rights. At all times during the period
commencing with the execution and delivery of this Agreement and expiring on the
Expiration Date, Stockholder shall not deposit (or permit the deposit of) any
Shares in a voting trust or grant any proxy or enter into any voting agreement
or similar agreement in contravention of the obligations of Stockholder under
this Agreement with respect to any of the Shares.
3. Agreement to Vote Shares. Prior to the Expiration Date, at
every meeting of the stockholders of Paradyne called, and at every adjournment
or postponement thereof, and on every action or approval by written consent of
the stockholders of Paradyne, Stockholder (in Stockholder's capacity as such)
shall appear at the meeting or otherwise cause the Shares to be present thereat
for purposes of establishing a quorum and shall cause the Shares to be voted in
favor of the Paradyne Stockholder Proposals.
4. Irrevocable Proxy. Concurrently with the execution and
delivery of this Agreement, Stockholder shall deliver to Elastic an Irrevocable
Proxy in the form attached hereto as Exhibit A (the "Proxy"), which shall be
irrevocable to the fullest extent permitted by applicable law and coupled with
an interest, with respect to the Shares.
5. Representations and Warranties of the Stockholder. Stockholder
hereby represents and warrants to Elastic as follows: (i) Stockholder is the
beneficial or record owner of the shares of Paradyne Common Stock indicated on
the signature page of this Agreement, free and clear of any Liens, (ii)
Stockholder does not beneficially own any securities of Paradyne other than the
shares of Paradyne Common Stock and options to purchase shares of Paradyne
Common Stock set forth on the signature page of this Agreement and other than
shares of Paradyne Common Stock held in trusts of which Stockholder is trustee,
and (iii) Stockholder has full power and authority to make, enter into and carry
out the terms of this Agreement and the Proxy.
6. Additional Documents. Stockholder (in Stockholder's capacity
as such) hereby covenants and agrees to execute and deliver any additional
documents necessary or desirable, in the reasonable opinion of Elastic, to carry
out the intent of this Agreement.
7. Termination. This Agreement shall terminate and be of no
further force or effect whatsoever as of the Expiration Date.
8. Severability. If any term or other provision of this Agreement
is held invalid, illegal or incapable of being enforced by any court of
competent jurisdiction, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party hereto. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
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 the transactions
contemplated hereby are fulfilled to the fullest extent possible.
9. 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, including, without
limitation, upon the death of the Stockholder (if the Stockholder is a natural
person), his estate, provided, however, that 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
hereto without prior written consent of the other party hereto.
10. Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by each of the parties hereto; provided
that any provision of this Agreement may be waived, or the time for its
performance may be extended, by the party or parties entitled to the benefit
thereof by a writing signed by such party or an authorized representative
thereof.
11. Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Elastic shall be irreparably harmed and that there shall be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth in this Agreement. Therefore, Stockholder hereby agrees
that, in addition to any other remedies that may be available to Elastic upon
any such violation, Elastic shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to Elastic at law or in equity.
12. Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to Elastic: Elastic Networks Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to: Xxxxxx & Xxxxxxxx
Xxxx xx Xxxxxxx Xxxxx, Xxxxx 0000
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: W. Tinley Xxxxxxxx, III
Xxxxxxx X. Xxxxxx, III
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Stockholder: To the address for notice set forth
on the signature page hereof.
and to: Paradyne Networks, Inc.
0000 000xx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile (000) 000-0000
and to: Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(a) Governing Law. This Agreement shall be governed by
the laws of the State of Delaware, without reference to principles of conflicts
of law.
(b) Entire Agreement. This Agreement and the Proxy,
together with the documents expressly referred to herein, 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.
(c) Officers and Directors. To the extent that
Stockholder is or becomes (during the term hereof) a director or officer of
Paradyne, he or she makes no agreement or understanding herein in his or her
capacity as such director or officer, and nothing herein shall limit or affect,
or give rise to any liability to Stockholder by virtue of, any actions taken by
Stockholder in his or her capacity as an officer or director of Paradyne in
exercising its rights under the Merger Agreement.
(d) Effect of Headings. The section headings are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
(e) Counterparts. 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.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first above written.
ELASTIC NETWORKS, INC. STOCKHOLDER:
By: /s/ Xxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------ -----------------------------------
Xxxxxx X. Xxxxx
Name: Xxx X. Xxxx
------------------------------
Title: President and CEO
-----------------------------
Address:
c/o Paradyne Networks, Inc.
0000 000xx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Shares:
0 shares of Paradyne Common Stock
20,000 shares of Paradyne Common Stock
issuable upon the exercise of
outstanding options
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Paradyne Networks, Inc., a Delaware
corporation ("Paradyne"), does hereby irrevocably (to the fullest extent
permitted by law) appoint Elastic Networks Inc. ("Elastic") and each of its
officers, and any of them, as the sole and exclusive attorneys and proxies of
the undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and related rights (to the full extent that the undersigned
is entitled to do so) with respect to all of the shares of capital stock and any
other voting securities of Paradyne that are owned of record, by the undersigned
as of the record date for every annual, special, postponed or adjourned meeting
of stockholders of Paradyne at which the Paradyne Stockholder Proposals (as
defined in the Merger Agreement (as defined below)) are considered and voted
upon, and in every written consent in lieu of such a meeting (the "Shares") in
accordance with the terms of this Irrevocable Proxy. The shares owned of record
by the undersigned stockholder of Paradyne 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 any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the fullest extent permitted
by applicable law), is coupled with an interest and is granted pursuant to that
certain Paradyne Voting Agreement of even date herewith by and among Elastic,
and the undersigned stockholder (the "Voting Agreement"), and is granted in
consideration of Elastic entering into that certain Agreement and Plan of Merger
(the "Merger Agreement"), by and among Paradyne, Phoenix Merger Sub, Inc., a
Delaware corporation and a direct wholly owned subsidiary of Paradyne ("Sub")
and Elastic. The Merger Agreement provides for the merger (the "Merger") of Sub
with and into Elastic in accordance with its terms. As used herein, the term
"Expiration Date" shall mean the earlier to occur of (i) such date and time as
the Merger Agreement shall have been validly terminated by either Paradyne or
Elastic pursuant to Article 10 thereof, and (ii) such date and time as the
Merger shall become effective in accordance with the terms and provisions 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, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special, postponed or adjourned meeting of
stockholders of Paradyne, and in every written consent in lieu of such meeting,
as and to the extent provided in Section 3 of the Voting Agreement.
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.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned. The undersigned is executing this
Irrevocable Proxy only in its capacity as a stockholder. Such signature in no
way affects its obligations as an officer or director of Paradyne.
This Irrevocable Proxy is coupled with an interest and is irrevocable
(to the fullest extent permitted by applicable law). This Irrevocable Proxy
shall terminate, and be of no further force and effect, automatically upon the
Expiration Date.
Dated: December ____, 2001
By:
---------------------------------------
Stockholder
Shares:
__________ shares of Paradyne Common Stock
__________ shares of Paradyne Common Stock
issuable upon the exercise of outstanding
options
