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EXHIBIT 2
VOTING AGREEMENT
THIS VOTING AGREEMENT dated as of February 7, 2000 (the
"Agreement"), is made by and among LUCENT TECHNOLOGIES INC., a Delaware
corporation ("Lucent"), SOLARA ACQUISITION INC., a Delaware corporation
("Acquisition"), and SUMITOMO OSAKA CEMENT CO., LTD., a corporation organized
under the laws of Japan ("Stockholder").
PRELIMINARY STATEMENTS
Concurrently with the execution of this Agreement, Xxxxx
Corporation, a Delaware corporation (the "Company"), Lucent and Acquisition have
entered into a Agreement and Plan of Merger (as the same may be amended from
time to time, the "Merger Agreement"), providing for the merger of Acquisition
with and into the Company, with the Company being the surviving corporation (the
"Merger"), which Merger is subject to the approval of the holders of shares of
capital stock of the Company as provided in the Merger Agreement, the Delaware
General Corporation Law, as amended, and the Company's Certificate of
Incorporation, as amended.
Stockholder owns 2,349,964 shares of the Company common stock, par
value $.001 per share (the "Common Stock"). As used herein, the term "Shares"
includes all shares of such Common Stock as to which Stockholder (at any time
prior to the termination of this Agreement) is the beneficial owner or is
otherwise able to direct the voting thereof and all securities issued or
exchanges with respect to any such Shares upon any reclassification,
recapitalization, reorganization, merger, consolidation, spin-off, stock split,
combination, stock or other dividend or any other change in the Company's
capital structure.
To induce Lucent and Acquisition to enter into the Merger Agreement,
the Company has agreed, upon the terms and subject to the conditions set forth
herein, to cause Stockholder to execute this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties to this
Agreement agree as follows:
1. Stockholder's Representations and Warranties. Stockholder
represents and warrants to Lucent and Acquisition that (i) except as set forth
in Schedule 1 hereto, Stockholder owns the Shares, as the case may be, free and
clear of any mortgage, pledge, lien, security interest, claim, restriction on
voting or otherwise or other encumbrance and (ii) Stockholder has the right to
vote such Shares free of any mortgage, pledge, lien, security interest, claim,
restriction on voting or otherwise or other encumbrance (other than any general
fiduciary obligation imposed by law).
2. No Voting Trusts. Stockholder hereby revokes any and all
proxies and voting instructions with respect to the Shares previously given by
Stockholder and Stockholder agrees that it will not grant or give any other
proxies or voting instructions with respect to the voting of the Shares, enter
into any voting trust or other arrangement or agreement with respect
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to the voting of the Shares (and if given or executed, such proxies, voting
instructions, voting trust or other arrangement or agreement shall not be
effective), or agree, in any manner, to vote the Shares for or against any
proposal submitted to the stockholders of the Company except in furtherance of
the proposals set forth in paragraph 3 hereof.
3. Agreements with Respect to the Shares. (a) Stockholder agrees
during the term of this Agreement:
(i) to vote the Shares, to the extent entitled to vote, (y) in
favor of the approval of the Merger Agreement and the Merger, at every
meeting of the stockholders of the Company at which such matters are
considered and at every adjournment thereof and (z) with respect to all
other proposals the approval or disapproval of which are, directly or
indirectly, reasonably necessary to consummate the Merger, in such manner
as Acquisition or Lucent may direct;
(ii) not to solicit, encourage or recommend to other stockholders
of the Company that (w) they vote their shares of Common Stock or any such
other securities in any contrary manner, (x) they not vote their shares of
Common Stock at all, (y) they tender, exchange or otherwise dispose of
their shares of Common Stock pursuant to a Competing Transaction, as
hereinafter defined, or (z) they attempt to exercise any statutory
appraisal or other similar rights they may have; and
(iii) to take such action as required on the part of Stockholder to
satisfy conditions to closing set forth in the Merger Agreement including
without limitation entering into any such agreements, arrangements or
understandings contemplated by Section 6 thereof.
(b) Unless otherwise instructed in writing by Lucent or
Acquisition, during the term of this Agreement, Stockholder will vote the Shares
against any Competing Transaction.
(c) Except with the prior written consent of Lucent or
Acquisition, during the term of this Agreement, Stockholder agrees that
Stockholder will not, and shall use its reasonable best efforts not to permit
any employee, attorney, accountant, investment banker or other agent or
representative of Stockholder to initiate, solicit, negotiate, encourage, or
provide confidential information in order to facilitate, any Competing
Transaction.
(d) For purposes of this Agreement, a "Competing Transaction"
shall mean a transaction of any kind (including, without limitation, a merger,
consolidation, share exchange, reclassification, reorganization,
recapitalization, sale or encumbrance of substantially all the assets of the
Company outside the ordinary course of business, or sale or exchange by
stockholders of the Company of all or substantially all the shares of the
Company's capital stock) proposed by any person(s) in lieu of or in opposition
to the Merger Agreement and the Merger.
4. Proxies. In furtherance of the foregoing, Stockholder is
granting to Xxxxxxx Xxxxxxxx, the Vice President of Acquisition, and/or Xxxx
Xxxxx, the Vice President and
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Secretary of Acquisition, or to his or her designee(s), irrevocable proxies and
powers of attorney (which may be in the form annexed hereto or such other form
consistent with the terms hereof and thereof as Lucent or Acquisition may
specify) to vote the Shares, to the extent such Shares are entitled to vote, and
hereby specifically agrees not to revoke such proxies granted under any
circumstances:
(a) at any and all meetings of stockholders of the Company, notice
of which meetings are given prior to the due and proper termination of
this Agreement, with respect to matters presented to the Company's
stockholders for vote which are, directly or indirectly, reasonably
necessary to approve or disapprove (i) the Merger or the Merger Agreement;
and (ii) any Competing Transaction; or
(b) with respect to actions to be taken by written consent of the
stockholders of the Company which, directly or indirectly, relates to or
affects any of the foregoing, and which consent is solicited prior to the
due and proper termination of this Agreement.
5. Limitation on Sales. During the term of this Agreement, except
pursuant to the Merger, Stockholder agrees not to sell, assign, transfer, loan,
tender, pledge, hypothecate, exchange, encumber or otherwise dispose of, or
issue an option or call with respect to, any of the Shares, or impair
Stockholder's Shares.
6. Termination of Agreements. Stockholder hereby consents to the
termination of the Key Shareholder Agreement dated as of March 26, 1990, among
the Company, Stockholder and certain other Key Shareholders described therein,
and the Agreement Concerning Certain Financing and Business Arrangements dated
as of March 26, 1990, between the Company and Stockholder, in each case as of
the Closing Date. Effective as of the Closing Date, Lucent hereby agrees to
cause the Surviving Corporation (as defined in the Merger Agreement) to continue
to comply with all of the terms and conditions of the International Distributor
and Selling Representative Agreement between the Company and Stockholder dated
as of July 1, 1995.
7. Specific Performance. Stockholder acknowledges that it will be
impossible to measure in money the damage to Lucent or Acquisition if
Stockholder fails to comply with the obligations imposed by this Agreement, and
that, in the event of any such failure, neither Lucent nor Acquisition will have
an adequate remedy at law or in damages. Accordingly, Stockholder agrees that
injunctive relief or any other equitable remedy, in addition to any remedies at
law or damages, is the appropriate remedy for any such failure and will not
oppose the granting of any such remedy on the basis that Lucent or Acquisition
has an adequate remedy at law. Stockholder agrees not to seek, and agrees to
waive any requirement for, the securing or posting of a bond in connection with
Lucent or Acquisition seeking or obtaining such equitable relief.
8. Reasonable Efforts. Stockholder will use all reasonable
efforts to cause to be satisfied the conditions to the obligations of the
Company to effect the Closing under the Merger Agreement.
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9. Publicity. Stockholder agrees that, from the date hereof
through the Closing Date, Stockholder shall not issue any public release or
announcement concerning the transactions contemplated by this Agreement and the
Merger Agreement without the prior consent of Lucent, except (i) Stockholder may
file an amendment to its Schedule 13G originally filed with the Securities and
Exchange Commission on April 24, 1995, and (ii) as such release or announcement
may, in the opinion of Stockholder's counsel, be required by applicable law, in
which case Stockholder shall allow Lucent reasonable time to comment on such
release or announcement in advance of such issuance.
10. Term of Agreement; Termination.
(a) The term of this Agreement shall commence on the date hereof
and shall terminate upon the earliest to occur of (i) the Effective Time of the
Merger (as defined in the Merger Agreement) and (ii) the due and proper
termination of the Merger Agreement in accordance with its terms. Upon such
termination, no party shall have any further obligations or liabilities
hereunder.
(b) The obligations of Stockholder set forth in this Agreement
shall not be effective or binding upon Stockholder until after such time as the
Merger Agreement is executed and delivered by Lucent, Acquisition and the
Company.
11. Miscellaneous. (a) Entire Agreement. This Agreement
constitutes the entire agreement among the parties with respect to the subject
matter of this Agreement and supersedes all prior written and oral and all
contemporaneous oral agreements and understandings with respect to the subject
matter of this Agreement.
(b) Notices. Any notice, request, instruction or other document to
be given hereunder by any party to the others shall be in writing and shall be
deemed to have been duly given on the next business day after the same is sent,
if delivered personally or sent by telecopy or overnight delivery, or five
calendar days after the same is sent, if sent by registered or certified mail,
return receipt requested, postage prepaid, as set forth below, or to such other
persons or addresses as may be designated in writing in accordance with the
terms hereof by the party to receive such notice.
If to Acquisition or Lucent:
Lucent Technologies Inc.
Microelectronics and Communications Technologies Group
0 Xxx Xxx
Xxxxxxx Xxxxxxx, Xxx Xxxxxx 00000-0000
Att: President
Telecopy: separately supplied
with a copy to:
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Lucent Technologies Inc.
000 Xxxxxxxx Xxxxxx
Room 6A 000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Att: Xxxxxx X. Xxxxxx
Vice President and Secretary
Telecopy: separately supplied
If to Stockholder:
Sumitomo Osaka Cement Co., Ltd.
0 Xxxxx, Xxxxxxxxx-xxx
Xxxxxxx-xx, Xxxxx, 000-0000
Xxxxx
Att: Tatsutoku Honda, Managing Director
Telecopy: separately supplied
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York as applied to
contracts made and fully performed in such state without giving effect to the
principles of conflict of laws thereof and except insofar as the Delaware
General Corporation Law, as amended, shall be mandatorily applicable to the
Merger and the rights of the stockholders of the Company in connection
therewith.
(d) Rules of Construction. The descriptive headings in this
Agreement 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. Words
used in this Agreement, regardless of the gender and number specifically used,
shall be deemed and construed to include any other gender, masculine or
feminine, or neuter, and any other number, singular or plural, as the context
requires. As used in this Agreement, the word "including" is not limiting, and
the word "or" is not exclusive.
(e) Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of the parties to this Agreement and their legal
successors-in-interest, and nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, but all such counterparts together shall constitute but one
instrument.
(g) Assignment. No party hereto shall assign its rights and
obligations under this Agreement or any part thereof, nor shall any party assign
or delegate any of its rights or duties hereunder without the prior written
consent of the other party, and any assignment made
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without such consent shall be void. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
(h) Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of all the parties.
(i) Extension; Waiver. Any party to this Agreement may extend the
time for the performance of any of the obligations or other acts of any of the
other parties to this Agreement or waive compliance by any other party with any
of the agreements or conditions contained herein or any breach thereof. Any
agreement on the part of any party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
(j) Severability. The provisions of this Agreement are severable
and, if any thereof are invalid or unenforceable in any jurisdiction, the same
and the other provisions hereof shall not be rendered otherwise invalid or
unenforceable.
(k) Fiduciary Duty as Director. The parties hereto acknowledge and
agree that Stockholder's obligations hereunder are solely in its capacity as a
stockholder of the Company, and that none of the provisions herein set forth
shall be deemed to restrict or limit any fiduciary duty any of the undersigned
or any of their respective affiliates, directors, officers or employees may have
as a member of the Board of Directors of the Company, as an executive officer of
the Company, or otherwise as a fiduciary to any person (other than any of the
stockholders of the Company) resulting from any circumstances other than as a
stockholder of the Company; provided that, no such duty shall excuse Stockholder
from its obligations as a stockholder of the Company to vote the Shares, to the
extent that they may be so voted, or otherwise perform any obligation as herein
provided and to otherwise comply with the terms and conditions of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound hereby, have duly executed this Voting Agreement on the date first above
written.
LUCENT TECHNOLOGIES INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Executive VP and CEO, Microelectronics
and Communications Technologies
SOLARA ACQUISITION INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
SUMITOMO OSAKA CEMENT CO., LTD.
By: /s/ Tatsutoku Honda
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Name: Tatsutoku Honda
Title: Managing Director
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FORM OF
IRREVOCABLE PROXY AND POWER OF ATTORNEY
The undersigned hereby appoints Xxxxxxx Xxxxxxxx, the Vice President
of Solara Acquisition Inc. ("Acquisition") and/or Xxxx Xxxxx, the Vice President
and Secretary of Acquisition, as the undersigned's attorney-in-fact and proxy,
with full power of substitution, for and in the undersigned's name, to vote,
express consent or disapproval, or otherwise act in such manner (including
pursuant to written consent, but excluding the right to assert, perfect and
prosecute dissenters' rights of appraisal) upon such matters as set forth in
Sections 3(a) and 3(b) of the Voting Agreement with respect to all of the shares
of Common Stock, par value $.001 per share, of Xxxxx Corporation., a Delaware
corporation (the "Company"), owned of record by the undersigned.
The proxy granted hereby shall be irrevocable and may be exercised
at any meeting of stockholders, notice of which is given, or in respect of any
written consent which is solicited prior to the due and proper termination of,
and subject to and in accordance with the terms and conditions of, the Voting
Agreement, dated of even date herewith, among the undersigned, Lucent
Technologies Inc., Acquisition and the stockholders of the Company signatory
thereto. This proxy is coupled with an interest sufficient in law to support
such proxy.
Dated: February 7, 2000
SUMITOMO OSAKA CEMENT CO., LTD.
By: /s/ Tatsutoku Honda
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Name: Tatsutoku Honda
Title: Managing Director
