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EXHIBIT 99.1
STOCKHOLDERS PROXY AGREEMENT
STOCKHOLDERS PROXY AGREEMENT (this "Agreement"), dated as of June 4,
1998, among WAXS INC., a Delaware corporation ("Parent"), and each other person
and entity listed on the signature pages hereof (each, a "Stockholder").
W I T N E S S E T H:
WHEREAS, as of the date hereof each Stockholder owns (either
beneficially or of record) the number of shares of common stock, par value $0.01
per share ("Company Common Stock"), of Telco Systems, Inc., a Delaware
corporation (the "Company"), set forth opposite such Stockholder's name on
Exhibit A hereto (all such shares of Company Capital Stock owned by the
Stockholders and any shares of Company Capital Stock hereafter acquired by the
Stockholders prior to the termination of this Agreement being referred to herein
as the "Shares");
WHEREAS, (i) Xxxx Investment Advisors, Inc. ("Xxxx") has "investment
power" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended ("Rule 13d-3")) with respect to 3,614,569 Shares owned by clients who
have the right to terminate their advisory agreements with Xxxx ("Client
Shares"), and (ii) Xxxx has "voting power" (as defined in Rule 13d-3) with
respect to 415,600 Client Shares ("Client Voting Shares") (the Client Shares
that are not Client Voting Shares are referred to herein as "Client Advisory
Shares");
WHEREAS, Parent and the Company, among others, propose to enter into an
Agreement and Plan of Merger and Reorganization, dated as of the date hereof (as
the same may be amended from time to time, the "Merger Agreement"; capitalized
terms herein not otherwise defined herein shall have the meanings ascribed
thereto in the Merger Agreement), which provides, upon the terms and subject to
the conditions thereof, for the merger of a subsidiary of Parent with and into
the Company (the "Merger"); and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has requested that each Stockholder agree, and, in
order to induce Parent to enter into the Merger Agreement, each Stockholder has
agreed, to grant Parent proxies to vote such Stockholder's Shares;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
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ARTICLE I
TRANSFER AND VOTING OF SHARES
SECTION 1.01. TRANSFER OF SHARES. During the term of this Agreement,
and except as otherwise provided herein, each Stockholder (other than Xxxx with
respect to the Client Shares) shall not (a) sell, pledge or otherwise dispose of
any of its Shares if such transaction would result in the Stockholder no longer
having the power to vote or cause to be voted the Shares, (b) deposit its Shares
into a voting trust or enter into a voting agreement or arrangement with respect
to such Shares or grant any proxy with respect thereto or (c) enter into any
contract, option or other arrangement or undertaking with respect to the direct
or indirect acquisition or sale, assignment, transfer or other disposition of
any of the Company Capital Stock if such transaction would result in the
Stockholder no longer having the power to vote or cause to be voted the Shares.
SECTION 1.02. VOTING OF SHARES; FURTHER ASSURANCES. (a) Each
Stockholder, by this Agreement, with respect to those Shares that it owns of
record, does hereby constitute and appoint Parent, or any nominee of Parent,
with full power of substitution, during and for the term of this Agreement, as
its true and lawful attorney and proxy, for and in its name, place and stead, to
vote each of such Shares as its proxy, at every annual, special or adjourned
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 law of the State of Delaware may permit or require) (i) in
favor of the adoption of the Merger Agreement and approval of the Merger and the
other transactions contemplated by the Merger Agreement, (ii) against any
proposal for any recapitalization, merger, sale of assets or other business
combination between the Company and any person or entity (other than the Merger)
or any other 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 could result in any of the conditions to the
Company's obligations under the Merger Agreement not being fulfilled, and (iii)
in favor of any other matter relating to consummation of the transactions
contemplated by the Merger Agreement. Each Stockholder further agrees to cause
the Shares owned by it beneficially to be voted in accordance with the
foregoing. Each Stockholder acknowledges receipt and review of a copy of the
Merger Agreement. Notwithstanding anything in this Section 1.02(a) to the
contrary, the Client Advisory Shares shall not be subject to this Section
1.02(a) and the Client Voting Shares shall cease to be subject to this Section
1.02(a) if and when the owner of such Client Voting Shares terminates its
advisory agreement with Xxxx.
(b) Each Stockholder shall perform such further acts and
execute such further documents and instruments as may reasonably be required to
vest in Parent the power to carry out the provisions of this Agreement.
(c) Nothing contained in this Agreement shall be deemed to
restrict a Stockholder who is also a director of the Company from taking actions
in his capacity as a director as may be permitted under the Merger Agreement.
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SECTION 1.03. TERM OF AGREEMENT. This Agreement shall be effective as
of the date hereof and shall expire on the earlier of (a) the Effective Time and
(b) the date of the termination of the Merger Agreement pursuant to its terms.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and
warrants to Parent as follows:
SECTION 2.01. DUE ORGANIZATION, ETC. Such Stockholder (if it is a
corporation, partnership or other legal entity) is duly organized and validly
existing under the laws of the jurisdiction of its organization. Such
Stockholder has full power and authority (corporate or otherwise) 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 have been duly authorized by all necessary
action (corporate or otherwise) on the part of such Stockholder. This Agreement
has been duly executed and delivered by or on behalf of such Stockholder and,
assuming its due authorization, execution and delivery by Parent, constitutes a
legal, valid and binding obligation of such Stockholder, enforceable against
such Stockholder in accordance with its terms, subject to the effect of any
applicable bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to enforceability, to the
effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 2.02. NO CONFLICTS; REQUIRED FILINGS AND CONSENTS. (a) The
execution and delivery of this Agreement by such Stockholder do not, and the
performance of this Agreement by such Stockholder will not, (i) conflict with or
violate the Certificate of Incorporation or ByLaws or similar organizational
documents of such Stockholder (in the case of a Stockholder that is a
corporation, partnership or other legal entity), (ii) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to such
Stockholder or by which it or any of its 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, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the property or assets of
such Stockholder or (if such Stockholder is a corporation) any of its
subsidiaries 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 of its
properties is bound or affected, except for any such breaches, defaults or other
occurrences that would not cause or create a material risk of non-performance or
delayed performance by such Stockholder of its obligations under this Agreement.
(b) The execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such Stockholder
will not, require any consent,
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approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, except (i) for
applicable requirements, if any, of the Exchange Act, and the HSR Act and (ii)
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 its obligations under this Agreement.
SECTION 2.03. TITLE TO SHARES. Other than with respect to Xxxx to the
extent described in its Schedule 13D dated May 13, 1998 and in Exhibit A hereto,
such Stockholder is the record or beneficial owner of its Shares free and clear
of any proxy or voting restriction other than pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to each Stockholder as follows:
SECTION 3.01. DUE ORGANIZATION, ETC. Parent is a corporation duly
organized and validly existing under the laws of the State of Delaware. Parent
has all necessary 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 Parent have been duly authorized by all necessary
corporate action on the part of Parent. This Agreement has been duly executed
and delivered by Parent and, assuming its due authorization, execution and
delivery by the Stockholders, constitutes a legal, valid and binding obligation
of Parent, enforceable against Parent in accordance with its terms.
SECTION 3.02. NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The
execution and delivery of this Agreement by Parent do not, and the performance
of this Agreement by Parent will not, (i) conflict with or violate the
Certificate of Incorporation or By-laws of Parent, (ii) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to Parent or by
which Parent or any of its 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, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the property or assets of Parent
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which Parent is
a party or by which it or any of its properties is bound or affected, except for
any such breaches, defaults or other occurrences that would not cause or create
a material risk of non-performance or delayed performance by Parent of its
obligations under this Agreement.
(b) The execution and delivery of this Agreement by Parent do
not, and the performance of this Agreement by Parent will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign, except (i)
for applicable requirements, if any, of the Exchange Act and the HSR Act
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and (ii) 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 Parent of its obligations under this Agreement.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01. NOTICES. 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 as of the date delivered, mailed or transmitted, and shall be
effective upon receipt, if delivered personally, mailed by registered or
certified mail (postage prepaid, return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like changes of address) or sent by electronic transmission to the telecopier
number specified below:
(a) If to Parent
WAXS INC.
000 X. Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx LLP
2700 International Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxx
Telecopier No.: (000) 000-0000
(b) If to a Stockholder, to such Stockholder's address set
forth on Exhibit A.
SECTION 4.02. 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 4.03. 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
materially 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
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as possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
extent possible.
SECTION 4.04. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
SECTION 4.05. ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise; provided, however, that Parent may assign its
rights, interests and obligations hereunder to any successor or parent entity of
Parent whose shares are registered under Section 12 of the Exchange Act (or will
be so registered at the Closing).
SECTION 4.06. PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION 4.07. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 4.08. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS EXECUTED AND TO BE PERFORMED ENTIRELY WITHIN THAT STATE. PARENT AND
EACH OF THE STOCKHOLDERS EACH HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY DELAWARE STATE OR FEDERAL COURT SITTING IN THE CITY OF WILMINGTON, DELAWARE,
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
PARENT AND EACH OF THE STOCKHOLDERS HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
DELAWARE STATE COURT OR SUCH FEDERAL COURT. PARENT AND EACH OF THE STOCKHOLDERS
EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING.
SECTION 4.09. COUNTERPARTS. This Agreement may be executed 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
taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first written above.
WAXS INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Chairman and Chief Executive Officer
STOCKHOLDERS:
/s/ XXXX X. XXXXXXXX
-------------------------------------------
XXXX X. XXXXXXXX
/s/ STEWARD A. FLASCHEN
-------------------------------------------
STEWARD A. FLASCHEN
-------------------------------------------
XXXXXX X. XXXXXXXX
/s/ XXXXXXX XXXXXX
-------------------------------------------
XXXXXXX XXXXXX
/s/ XXXXXXX X. XXXXX
-------------------------------------------
XXXXXXX X. XXXXX
/s/ XXXXXXX X. XXXXXX
-------------------------------------------
XXXXXXX X. XXXXXX
/s/ XXXXXXX X. XXXXXXX
-------------------------------------------
XXXXXXX X. XXXXXXX
/s/ XXXXXX X. XXXXXX
-------------------------------------------
XXXXXX X. XXXXXX
/s/ XXXXX X. XXXXXX
-------------------------------------------
XXXXX X. XXXXXX
[Signatures continued on next page]
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/s/ XxXxx X. Xxxx
-----------------------------------------------
XxXxx X. Xxxx
/s/ XxXxx X. Xxxx
-----------------------------------------------
XxXxx X. Xxxx Individual Retirement Account
Xxxx Investment Advisors, Inc. Profit Sharing Trust
By: /s/ XxXxx X. Xxxx
-----------------------------------------------
XxXxx X. Xxxx as Trustee
Xxxx Family Foundation
By: /s/ XxXxx X. Xxxx
-----------------------------------------------
XxXxx X. Xxxx, Director
Xxxx Investment Advisors, Inc., for itself and as attorney-in-fact for certain
of its clients
By: /s/ XxXxx X. Xxxx
-----------------------------------------------
XxXxx X. Xxxx, President
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EXHIBIT A
LIST OF STOCKHOLDERS
========================================================================================================================
NUMBER OF SHARES OF COMPANY COMMON
NAME AND ADDRESS OF STOCKHOLDER STOCK OWNED BENEFICIALLY AND OF RECORD
------------------------------------------------------------------------------------------------------------------------
XxXxx X. Xxxx 100,000
c/o Kopp Investment Advisors, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------
XxXxx X. Xxxx XXX 130,000
c/o Kopp Investment Advisors, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------
Xxxx Investment Advisors, Inc. 7,000
Profit Sharing Trust
c/o Kopp Investment Advisors, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------
Xxxx Family Foundation 30,000
c/o Kopp Investment Advisors, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------
Xxxx Investment Advisors, Inc. 200,000
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------
Xxxx Investment Advisors, Inc. 3,614,569
as attorney-in-fact*
c/o Kopp Investment Advisors, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
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EXHIBIT A
LIST OF STOCKHOLDERS
========================================================================================================================
NUMBER OF SHARES OF COMPANY COMMON
NAME AND ADDRESS OF STOCKHOLDER STOCK OWNED BENEFICIALLY AND OF RECORD
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxxxx 0
Telco Systems, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
------------------------------------------------------------------------------------------------------------------------
Xx. Xxxxxxx X. Xxxxxxxx 51,458**
Telco Systems, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx 0
Telco Systems, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
------------------------------------------------------------------------------------------------------------------------
Xx. Xxxxxxx Xxxxxx 0
Telco Systems, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
------------------------------------------------------------------------------------------------------------------------
Xx. Xxxxxxx X. Xxxxx, President & CEO 10,422
Telco Systems, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx, VP & CFO 400
Telco Systems, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx 1,838
Telco Systems, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
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EXHIBIT A
LIST OF STOCKHOLDERS
========================================================================================================================
NUMBER OF SHARES OF COMPANY COMMON
NAME AND ADDRESS OF STOCKHOLDER STOCK OWNED BENEFICIALLY AND OF RECORD
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 0
Telco Systems, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
------------------------------------------------------------------------------------------------------------------------
Xxxxx X. XxXxxx 1,022
Telco Systems, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
========================================================================================================================
* Xxxx disclaims beneficial ownership of all Client Shares as they are managed
on behalf of clients under agreements terminable at will. Except for this
Agreement, Xxxx has no agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any Shares in the Company.
** Includes 29,958 shares held indirectly by Xx. Xxxxxxxx in the Xxxxxxx X.
Xxxxxxxx Revocable Investment Trust, 16,042 shares held indirectly by Xx.
Xxxxxxxx in the Xxxxx X. Xxxxxxxx Revocable Investment Trust and 5,458 shares
held indirectly by Xx. Xxxxxxxx in the Xxxxxxx X.Xxxxxxxx Defined Benefit
Pension Plan.
