Exhibit 2.5
-----------
Execution Copy
--------------
ONEX COMMUNICATIONS CORPORATION
VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into in as of
---------
August 16, 2001 between TranSwitch Corporation, a Delaware corporation
("Parent"), and the undersigned stockholder ("Stockholder") of Onex
------ -----------
Communications Corporation, a Delaware corporation ("Company").
-------
RECITALS
A. Concurrently with the execution of this Agreement, Parent, Company,
Opal Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of Parent ("Merger Sub"), and certain stockholders of the Company,
----------
have entered into an Agreement and Plan of Reorganization (the "Reorganization
--------------
Agreement"), which provides for the merger (the "Merger") of the Company with
--------- ------
and into Merger Sub. Pursuant to the Merger, shares of capital stock of the
Company will be converted into Common Stock of Parent on the basis described in
the Reorganization Agreement.
B. The Stockholder is the record holder and beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of such number of shares of the outstanding Common Stock and/or
-------------
Preferred Stock of the Company as is indicated on the final page of this
Agreement (including any and all other shares or securities issued or issuable
in respect thereof on or after the date hereof, the "Shares").
------
C. Prior to the execution and delivery of this Agreement by the
Stockholder, the Stockholder or his, her or its authorized agent has received a
copy of the Reorganization.
D. Parent desires the Stockholder to agree, and the Stockholder is
willing to agree: (i) not to transfer or otherwise dispose of any of the Shares,
or any other shares of capital stock of the Company acquired hereafter and prior
to the Expiration Date (as defined in Section 1.1 below), except as otherwise
permitted hereby; (ii) to vote the Shares and any other such shares of capital
stock of the Company so as to facilitate consummation of the Merger; (iii) upon
the written request of Parent, to call a special meeting of the stockholders of
the Company for the purpose of voting upon the Merger and the transactions
contemplated thereby; and (iv) to waive the relevant notice periods contained in
the Company's certificate of incorporation, by-laws and/or other primary charter
and organizational documents (collectively, the "Charter Documents") in
connection with the calling of any meeting of the stockholders, the taking of
any action or the setting of any record date, in each case, with respect to the
Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Retain Shares.
--------------------------
1.1 Transfer and Encumbrance. Stockholder agrees not to transfer,
------------------------
sell, exchange, pledge or otherwise dispose of or encumber any of the Shares or
any New Shares (as defined in
Section 1.2 below), or to make any offer or agreement relating thereto, at any
time prior to the Expiration Date; provided, however, that Stockholder shall be
permitted to transfer Shares or any New Shares (i) by will or by operation of
law, in which case this Agreement shall bind the transferee, (ii) in connection
with estate and tax planning purposes, including transfers to relatives, trusts
and charitable organizations and (iii) to an "affiliate," as such term is
defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended, in
the case of clauses (ii) and (iii), subject to the transferee agreeing in
writing to be bound by the terms of this Agreement. 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 Reorganization Agreement and (ii) such date and time as the Reorganization
Agreement shall be terminated pursuant to Article XII thereof.
1.2 Additional Purchases. Stockholder agrees that any shares of
--------------------
capital stock of the Company that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the execution of this
Agreement and prior to the Expiration Date ("New Shares") shall be subject to
----------
the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. Agreement to Vote Shares. Until termination of this Agreement in
------------------------
accordance with Section 7 hereof, at every meeting of the stockholders of the
Company called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders
of the Company with respect to any of the following, Stockholder shall vote the
Shares and any New Shares: (i) in favor of approval of the terms of the
Reorganization Agreement and the Merger and any matter that could reasonably be
expected to facilitate the Merger; (ii) against approval of any proposal made in
opposition to or competition with consummation of the Merger and against any
merger, consolidation, sale of all or substantially all assets, reorganization
or recapitalization, with any party other than with Parent and its affiliates
and against any liquidation or winding up of the Company (each of the foregoing
is hereinafter referred to as an "Opposing Proposal"); and (iii) to waive the
-------- --------
relevant notice periods contained in the Charter Documents in connection with
the calling of any meeting of the stockholders, the taking of any action or the
setting of any record date, in each case, with respect to the Merger. Upon the
written request of Parent, Stockholder agrees to call a meeting of the
stockholders of the Company for the purpose of voting upon the Merger and the
transactions contemplated thereby. Until termination of this Agreement in
accordance with Section 7 hereof, Stockholder agrees not to take any actions
contrary to or that conflict with Stockholder's obligations under this Agreement
and will not grant any proxies or powers of attorney, deposit any of the Shares
or any New Shares into a voting trust or enter into a voting agreement,
understanding or arrangement with respect to any of the Shares or any New
Shares. The Stockholder hereby waives any rights of appraisal or rights to
dissent from the Merger that the Stockholder may have.
3. Irrevocable Proxy. Concurrently with the execution of this Agreement,
-----------------
Stockholder agrees to deliver to Parent a proxy in the form attached hereto as
Exhibit A (the "Proxy"), which shall be irrevocable (until termination of this
--------- -----
Agreement in accordance with Section 7 hereof), with the total number of shares
of capital stock of the Company beneficially owned (as such term is defined in
Rule 13d-3 under the Exchange Act) by Stockholder and subject to the Proxy set
forth therein.
-2-
4. Representations, Warranties and Covenants of the Stockholder.
------------------------------------------------------------
Stockholder hereby represents, warrants and covenants to Parent as follows:
4.1 Ownership of Shares. Stockholder (i) is the beneficial owner of
-------------------
the Shares, which at the date hereof and at all times up until the Expiration
Date will be free and clear of any liens, claims, options, charges or other
encumbrances, other than any such liens, claims, options, charges or other
encumbrances created by this Agreement; (ii) does not beneficially own any
shares of capital stock of the Company other than the Shares; and (iii) has full
power and authority to make, enter into and carry out the terms of this
Agreement and the Proxy.
4.2 No Proxy Solicitations. Stockholder, in his or her capacity as a
----------------------
Stockholder of the Company, will not and will not permit any entity under
Stockholder's control to: (i) solicit proxies with respect to an Opposing
Proposal or otherwise encourage or assist any party in taking or planning any
action that would compete with, restrain or otherwise serve to interfere with or
inhibit the timely consummation of the Merger in accordance with the terms of
the Reorganization Agreement; (ii) initiate a stockholders' vote or action by
consent of the Company stockholders with respect to an Opposing Proposal; or
(iii) become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of the Company with respect
to an Opposing Proposal.
5. Additional Documents. Stockholder hereby covenants and agrees to execute
--------------------
and deliver any additional documents necessary or desirable, in the reasonable
opinion of Parent or Stockholder, as the case may be, to carry out the intent of
this Agreement.
6. Termination. This Agreement and the Proxy delivered in connection
-----------
herewith shall be valid until the Expiration Date and shall terminate and shall
have no further force or effect as of the Expiration Date.
7. Miscellaneous.
-------------
7.1 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.
7.2 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 prior written consent of the other.
7.3 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 the parties hereto.
7.4 Specific Performance; Injunctive Relief. The parties hereto
---------------------------------------
acknowledge that Parent 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
Stockholder set forth herein. Therefore, it is
-3-
agreed that, in addition to any other remedies that may be available to Parent
upon any such violation, Parent shall have the right to enforce such covenants
and agreements by specific performance, injunctive relief or by any other means
available to Parent at law or in equity.
7.5 Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent by mail (registered or certified
mail, postage prepaid, return receipt requested) or overnight courier (prepaid)
to the respective parties as follows:
If to Parent: TranSwitch Corporation
Three Enterprise Drive
Shelton, CT 06484
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
With a copy to: Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to the Stockholder: To the address for notice set forth on the
last page hereof.
with a copy to: Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
7.6 Governing Law. This Agreement shall be governed by, and construed
-------------
and enforced in accordance with, the laws of the State of Delaware without
giving effect to the conflict of laws provision thereof.
7.7 Consent of Spouse. Stockholder agrees that if Stockholder is
-----------------
married, should marry or remarry subsequent to the date of this Agreement,
Stockholder shall within thirty (30) days obtain Stockholder's spouse's
acknowledgement of the existence and binding effect of all of the restrictions
contained in this Agreement in the form attached hereto as Exhibit B. Such
---------
consent shall not be deemed to confer or convey to the spouse any rights in the
Shares or any New Shares that do not otherwise exist by operation of law.
7.8 Entire Agreement. This Agreement contains the entire understanding
----------------
of the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter.
-4-
7.9 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.
7.10 Effect of Headings. The section headings herein are for
------------------
convenience only and shall not affect the construction of interpretation of this
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-5-
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
TRANSWITCH CORPORATION
By: ______________________________________________
Name: ______________________________________________
Title: ______________________________________________
STOCKHOLDER:
_____________________________________________________
Print ______________________________________________
Name: ______________________________________________
Name of Signatory (if different from name of
Stockholder):
Title of Signatory
(if applicable):
Stockholder's Address for Notice:
_____________________________________________________
_____________________________________________________
_____________________________________________________
Shares beneficially owned:
________ shares of Common Stock
________ shares of Series A Convertible Preferred Stock
________ shares of Series B Convertible Preferred Stock
________ shares of Series C Convertible Preferred Stock
-6-
EXHIBIT A
---------
IRREVOCABLE PROXY
The undersigned stockholder of Onex Communications Corporation, a Delaware
corporation ("Company"), hereby irrevocably appoints [________________] and
-------
[________________] of TranSwitch Corporation, a Delaware corporation ("Parent"),
------
and each of them, as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to the shares of capital stock
of the Company beneficially owned by the undersigned, which shares are listed on
the final page of this Proxy (the "Shares"), and any and all other shares or
------
securities issued or issuable in respect thereof on or after the date hereof,
until such time as that certain Agreement and Plan of Reorganization dated as of
[August 6], 2001 (the "Reorganization Agreement"), among Parent, Opal
------------------------
Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary of
Parent ("Merger Sub"), Company, and certain stockholders of Company shall be
----------
terminated in accordance with its terms or the Merger (as defined in the
Reorganization Agreement) is effective, whichever first occurs. Upon the
execution hereof, all prior proxies given by the undersigned with respect to the
Shares and any and all other shares or securities issued or issuable in respect
thereof on or after the date hereof are hereby revoked and no subsequent proxies
will be given.
This proxy is irrevocable, is granted pursuant to the Voting Agreement
dated as of [August 6], 2001 between Parent and the undersigned stockholder (the
"Voting Agreement"), and is granted in consideration of Parent entering into the
----------------
Reorganization Agreement. The attorneys and proxies named above will be
empowered at any time prior to termination of the Reorganization Agreement to
exercise all voting and other rights (including, without limitation, the power
to execute and deliver written consents with respect to the Shares, to call a
special meeting of stockholders for the purpose of voting on the matters
described herein, and to waive the relevant notice periods contained in the
certificate of incorporation, by-laws and/or other primary charter and
organizational documents (the "Charter Documents") of the Company in connection
with the calling of any meeting of the stockholders, the taking of any action or
the setting of any record date, in each case with respect to the matters
described herein) of the undersigned at every annual, special or adjourned
meeting of Company stockholders, and in every written consent in lieu of such a
meeting, or otherwise, in favor of approval of the Merger and the Reorganization
Agreement and any matter that could reasonably be expected to facilitate the
Merger, and against any proposal made in opposition to or competition with the
consummation of the Merger and against any merger, consolidation, sale of
assets, reorganization or recapitalization of the Company with any party other
than Parent and its affiliates and against any liquidation or winding up of the
Company.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto at any time prior to termination of the Reorganization
Agreement at every annual, special or adjourned meeting of the stockholders of
Company and in every written consent in lieu of such meeting, in favor of
approval of the Merger and the Reorganization Agreement and any matter that
could reasonably be expected to facilitate the Merger, and against any merger,
consolidation, sale of assets, reorganization or recapitalization of Company
with any party other
than Parent and its affiliates, and against any liquidation or winding up of the
Company, and may not exercise this proxy on any other matter. 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.
This proxy is irrevocable and shall be valid and remain in effect until the
termination of the Reorganization Agreement.
Dated: [August __], 2001
Signature of Stockholder: _________________________________
Print Name of Stockholder: _________________________________
Shares beneficially owned:
__________ shares of Common Stock
__________ shares of Series A Convertible Preferred Stock
__________ shares of Series B Convertible Preferred Stock
__________ shares of Series C Convertible Preferred Stock
EXHIBIT B
---------
CONSENT OF SPOUSE
-----------------
The undersigned, being the spouse of _______________________, does
hereby acknowledge reading and being familiar with the provisions of the
foregoing Voting Agreement and hereby agrees thereto and joins therein to the
extent, if any, that such agreement and joinder may be necessary: and hereby
further agrees that "Stockholder" as defined in the Voting Agreement may join in
any further amendment or modification of the Voting Agreement without any
further signature, acknowledgment or agreement by the undersigned.
Date: _________ __________________________________
Name: ____________________________
