Exhibit 2.2
VOTING AGREEMENT
VOTING AGREEMENT (this "AGREEMENT"), dated as of November 2, 2000,
among Sonus Networks, Inc., a Delaware corporation ("BUYER"), the individuals
named on ATTACHMENT A hereto (collectively, the "STOCKHOLDERS"), beneficially
owning certain shares of Class A common stock, no par value (the "COMMON
SHARES"), of telecom technologies, inc., a Texas corporation (the "COMPANY"),
and the Company. Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms in the Agreement and Plan of Merger and
Reorganization (the "MERGER AGREEMENT"), dated as of November 2, 2000, by and
among the Company, Buyer and Storm Merger Sub, Inc., a Texas corporation
("MERGER SUB").
W I T N E S S E T H:
WHEREAS, the Company, Buyer and Merger Sub intend to enter into the
Merger Agreement providing for the Merger, on the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, each Stockholder beneficially owns the
number of Voting Shares set forth opposite such Stockholder's name on ATTACHMENT
A hereto (the "OWNED SHARES");
WHEREAS, the Stockholders desire to express their support for the
Merger and the transactions contemplated by the Merger Agreement; and
WHEREAS, as a condition to its willingness to enter into and perform
its obligations under the Merger Agreement, Buyer has requested that each
Stockholder agree, and each Stockholder has agreed, to vote, or execute a
written consent in respect of, all the Owned Shares, together with any Common
Shares acquired after the date of this Agreement, whether upon the exercise of
options, conversion of convertible securities or otherwise, and any other voting
securities of the Company (whether acquired heretofore or hereafter) that are
beneficially owned by such Stockholder or over which such Stockholder has,
directly or indirectly, the right to vote (collectively, the "VOTING SHARES"),
in favor of the Merger and any other matters submitted to the holders of Common
Shares in furtherance of the Merger.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. AGREEMENT TO VOTE AND IRREVOCABLE PROXY.
1.1. AGREEMENT TO VOTE. Each Stockholder hereby agrees that,
during the time this Agreement is in effect, at any meeting of the Stockholders
of the Company, however called, or any adjournment thereof, or by written
consent, such Stockholder shall be present (in person or by proxy) and vote (or
cause to be voted), or execute a written consent in respect of, all of its
Voting Shares (a) in favor of approval of the Merger Agreement and any other
matter that is required to facilitate the transactions contemplated by the
Merger Agreement, and (b) against any action or agreement that would result in a
breach in any material respect of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Merger Agreement or
that would otherwise prevent or materially delay the consummation of the Merger
or of the other transactions contemplated by the Merger Agreement.
1.2. IRREVOCABLE PROXY.
(a) Each of the Stockholders other than MSD Portfolio, L.P. -
Investments, Black Marlin Investments, LLC and Vermeer Investments, LLC (the
"MSD STOCKHOLDERS") hereby appoints Xxxxx X. Xxxxx, until termination of this
Agreement, as such Stockholder's attorney and proxy with full power of
substitution, to vote, and otherwise act (by written consent or otherwise) with
respect to the Voting Common Shares of such Stockholder, on the matters and in
the manner specified in Section 1.1 hereof.
(b) In the event any of the MSD Stockholders shall fail to comply with
the provisions of Section 1.1 hereof, each such MSD Stockholder agrees that such
failure shall result, without any further action by such MSD Stockholder, in the
irrevocable appointment of Xxxxx X. Xxxxx, until termination of this Agreement,
as such MSD Stockholder's attorney and proxy with full power of substitution, to
vote, and otherwise act (by written consent or otherwise) with respect to the
Voting Common Shares of such MSD Stockholder, on the matters and in the manner
specified in Section 1.1 hereof.
(c) THE PROXIES AND POWER OF ATTORNEY GRANTED PURSUANT TO THE ABOVE
PARAGRAPHS ARE IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder hereby
revokes all other proxies and powers of attorney on the matters specified in
Section 1.1 or to the extent inconsistent with the matters set forth in Section
1.1 with respect to the Shares which such Stockholder may have heretofore
appointed or granted, and no subsequent proxy or power of attorney shall be
given or written consent executed (and if given or executed, shall not be
effective) by such Stockholder with respect thereto. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of
each Stockholder and any obligation of a Stockholder under this Agreement shall
be binding upon the heirs, personal representatives and successors of such
Stockholder.
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2. TERMINATION.
2.1. TERMINATION OF THIS AGREEMENT. This Agreement shall
terminate on the earlier of (a) the consummation of the Merger, or (b) the
termination of the Merger Agreement in accordance with its terms.
2.2. EFFECT OF TERMINATION. In the event of termination of
this Agreement pursuant to Section 2.1, this Agreement shall become void and of
no effect with no liability on the part of any party hereto; PROVIDED, however,
no such termination shall relieve any party hereto from any liability for any
breach of this Agreement occurring prior to such termination.
3. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. Each Stockholder hereby
represents and warrants to Buyer, solely as to such Stockholder, as follows,
PROVIDED, that the MSD Stockholders shall not be deemed to make any of the
representations and warranties set forth in paragraph 3.6 below other than that
contained in the first sentence thereof:
3.1. DUE ORGANIZATION. Each such Stockholder that is not an
individual has been duly organized, is validly existing and is in good standing,
as applicable, under the laws of the jurisdiction of its organization.
3.2. POWER; DUE AUTHORIZATION; BINDING AGREEMENT. Such
Stockholder has full legal capacity, power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by any such
Stockholder that is a trust have been duly and validly authorized by all
necessary action on the part of such Stockholder's trustees, and no other
proceedings on the part of such Stockholder are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by such Stockholder and
constitutes a valid and binding agreement of such Stockholder, enforceable
against such Stockholder in accordance with its terms, except that
enforceability may be subject to the effect of any applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting or
relating to the enforcement of creditors rights generally and to general
principles of equity.
3.3. OWNERSHIP OF SHARES. On the date hereof, the Owned Shares
set forth opposite such Stockholder's name on ATTACHMENT A hereto are owned of
record or beneficially by such Stockholder and constitute all of the Voting
Shares owned of record or beneficially by such Stockholder, free and clear of
any claims, liens, encumbrances and security interests, except pursuant to the
Company Stockholder Agreements (as defined below) and for such claims, liens and
encumbrances as are specified on ATTACHMENT B hereto. As of the date hereof each
Stockholder has, and as of the date of the Stockholder meeting (or action by
written consent) in connection with the Merger Agreement and the transactions
contemplated thereby, such Stockholder will have
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(except as otherwise permitted by this Agreement or pursuant to the matters
referred to in the preceding sentence), sole voting power and sole dispositive
power with respect to all of the Owned Shares of such Stockholder.
3.4. NO CONFLICTS. The execution and delivery of this
Agreement by each such Stockholder does not, and the performance of the terms of
this Agreement by each such Stockholder will not, (a) require such Stockholder
to obtain the consent or approval of, or make any filing with or notification
to, any governmental or regulatory authority, domestic or foreign, (b) in the
case of a Stockholder that is a trust, conflict with or violate the Declaration
of Trust or other trust agreement of such Stockholder, (c) require the consent
or approval of any other person pursuant to any material agreement, obligation
or instrument binding on such Stockholder or its properties and assets, (d)
conflict with or violate any organizational document or law, rule, regulation,
order, judgment or decree applicable to such Stockholder or by which any
property or asset of such Stockholder is bound or (e) violate any other
agreement to which such Stockholder is a party including, without limitation,
any voting agreement, stockholders agreement, irrevocable proxy or voting trust,
except for any consent, approval, filing or notification which has been obtained
as of the date hereof or the failure of which to obtain, make or give would not,
or any conflict or violation which would not, prevent, delay or materially
adversely affect the consummation of the transactions contemplated by this
Agreement or the Merger Agreement.
3.5. ACKNOWLEDGMENT. Each Stockholder understands and
acknowledges that Buyer is entering into the Merger Agreement in reliance upon
such Stockholder's execution and delivery of this Agreement with Buyer.
3.6. INVESTMENT REPRESENTATIONS. The Stockholder is an
"Accredited Investor" as defined in Rule 501 of Regulation D promulgated under
the Securities Act of 1933, as amended, and was not organized for the purpose of
acquiring any shares of the common stock, $0.01 par value per share, of the
Buyer ("BUYER COMMON STOCK") in the Merger. The Stockholder has such knowledge
and experience in financial and business matters that the Stockholder is capable
of evaluating the merits and risks of the investment in Buyer Common Stock that
the Stockholder is making by reason of the Merger and the other transactions
contemplated by the Merger Agreement. The Stockholder's financial condition is
such that the Stockholder is able to bear all economic risks of investment in
Buyer Common Stock, including a complete loss of the Stockholder's investment.
Buyer has provided the Stockholder with adequate access to financial and other
information concerning Buyer (including, without limitation, Buyer's SEC
Reports, as defined in the Merger Agreement) and Stockholder has had the
opportunity to ask questions of and receive answers from Buyer concerning the
Merger and the other transactions contemplated by the Merger Agreement and to
obtain from Buyer additional information regarding an investment in Buyer.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents and
warrants to each Stockholder as follows: Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the state of Delaware.
Buyer has
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full corporate power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation by Buyer of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of Buyer, and
no other proceedings on the part of Buyer are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by Buyer and constitutes a
valid and binding agreement of Buyer, except that enforceability may be subject
to the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting or relating to the enforcement of
creditors rights generally and to general principles of equity.
5. CERTAIN COVENANTS OF STOCKHOLDERS. Each Stockholder hereby covenants
and agrees (solely as to such Stockholder) as follows:
5.1. RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE.
(a) Except as set forth in Section 5.1(b), each
Stockholder hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to (i) sell, transfer, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, or limitation on the voting rights of, any
of the Voting Shares, (ii) grant any proxies or powers of attorney other than
that which may arise pursuant to Section 1.2, deposit any Voting Shares into a
voting trust or enter into a voting agreement with respect to any Voting Shares,
(iii) take any action that would cause any representation or warranty of such
Stockholder contained herein to become untrue or incorrect or have the effect of
preventing or disabling such Stockholder from performing its obligations under
this Agreement or (iv) commit or agree to take any of the foregoing actions. Any
transfer of Voting Shares not permitted hereby shall be null and void. Each
Stockholder agrees that any such prohibited transfer may and should be enjoined.
If any involuntary transfer of any of the Voting Shares shall occur (including,
but not limited to, a sale by a Stockholder's trustee in bankruptcy, or a sale
to a purchaser at any creditor's or court sale), the transferee (which term, as
used herein, shall include any and all transferees and subsequent transferees of
the initial transferee) shall take and hold such Voting Shares subject to all of
the restrictions, liabilities and rights under this Agreement, which shall
continue in full force and effect.
(b) This Agreement shall not restrict any Stockholder
from (i) using Voting Shares as collateral or a pledge for borrowings from a
financial institution, provided such financial institution agrees in writing
with the Buyer to be bound by all of the terms hereof; or (ii) transferring
Voting Shares to other entities controlled by such Stockholder, or in connection
with tax, estate or financial planning, provided any such transferee agrees in
writing with the Buyer to be bound by all of the terms of this Agreement.
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5.2. ADDITIONAL SHARES. Each Stockholder hereby agrees, while
this Agreement is in effect, to promptly notify Buyer of the number of any new
Voting Shares acquired by such Stockholder, if any, after the date hereof. Any
such shares shall be subject to the terms of this Agreement.
5.3. NO LIMITATIONS ON ACTIONS. No Stockholder executing this
Agreement who is or becomes during the term hereof a director or officer of the
Company makes (or shall be deemed to have made) any agreement or understanding
herein in such person's capacity as such director or officer, and the parties
hereto acknowledge that any such Stockholder has fiduciary and other obligations
to the Company in that capacity. Without limiting the generality of the
foregoing, each Stockholder signs this Agreement solely in such person's
capacity as the record and/or beneficial owner, as applicable, of such
Stockholder's Owned Shares, and nothing herein shall limit or affect any actions
taken by such Stockholder in such person's capacity as an officer or director of
the Company or the Company's rights in connection with the Merger Agreement.
6. FURTHER ASSURANCES. From time to time, at Buyer's request and without
further consideration, each Stockholder shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate and make effective the transactions contemplated by
Section 1 and Section 2 of this Agreement.
7. STOP TRANSFER ORDER. In furtherance of this Agreement, and concurrently
herewith, each Stockholder shall and hereby does authorize the Company or the
Company's counsel to notify the Company's transfer agent that there is a stop
transfer order with respect to all of such Stockholder's Voting Shares.
8. MISCELLANEOUS.
8.1. NON-SURVIVAL. The representations and warranties made
herein shall not survive the termination of this Agreement, which shall occur
upon termination of the Merger Agreement.
8.2. ENTIRE AGREEMENT; ASSIGNMENT; LIMITED THIRD PARTY
BENEFICIARIES.
(a) This Agreement (i) constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof, (ii) shall not be assigned by operation of
law or otherwise, except as set forth in paragraph 8.2(b) below, and (iii) 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 other Person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement, except that Buyer shall be entitled to
enforce Section 1.1 hereof against each of the Stockholders as an intended
third-party beneficiary of their obligations thereunder.
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(b) The Company hereby assigns its rights and remedies for the
enforcement of Section 1.1 of this Agreement against each of the Stockholders to
Buyer.
8.3. AMENDMENTS. 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.
8.4. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, by facsimile
transmission or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to a Stockholder, to such Stockholder's address set forth on the
signature pages hereto, with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Buyer:
Sonus Networks, Inc.
0 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq. and Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
8.5. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
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8.6. REMEDIES. Each Stockholder recognizes and acknowledges
that a breach by it of any covenants or agreements contained in this Agreement
will cause Buyer to sustain irreparable injury and damages, for which money
damages would not provide an adequate remedy, and therefore each Stockholder
agrees that in the event of any such breach Buyer shall be entitled to the
remedy of specific performance of such covenants and agreements and injunctive
and other equitable relief. Notwithstanding any provision of this Agreement to
the contrary, or any principle of law or of equity, Buyer agrees that its sole
remedy for breach of this Agreement shall be specific performance by each
Stockholder of the terms of this Agreement, and that in no case shall Buyer be
entitled to monetary or other damages in connection with this Agreement, whether
liquidated, special, consequential or punitive or in any other form whatsoever.
As a condition to each Stockholder's willingness to enter into this Agreement,
Buyer hereby, on its behalf and on that of its affiliates, irrevocably and
unconditionally waives any such claim for damages that it may have, whether in
law or in equity, in any jurisdiction and forum whatsoever.
8.7. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same Agreement.
8.8. DESCRIPTIVE HEADINGS. The descriptive headings used
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.
8.9. SEVERABILITY. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
8.10. OBLIGATIONS SEVERAL. The obligations of the Stockholders
under this Agreement are several and not joint.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
SONUS NETWORKS, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name:
Title:
TELECOM TECHNOLOGIES, INC.
0000 X. Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxx, XX 00000
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Chairman & CEO
/s/ Xxxxxxxx Xxxxxx
-----------------------------------
XXXXXXXX XXXXXX
c/o telecom technologies, inc.
0000 X. Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxx, Xxxxx 00000
/s/ Xxxxx Xxxxxx
-----------------------------------
XXXXX XXXXXX
c/o telecom technologies, inc.
0000 X. Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxx, Xxxxx 00000
ANSARI ENTERPRISES, LLC
c/o Xxxxxxxx Xxxxxx
0000 X. Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxx, Xxxxx 00000
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name:
Title:
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ANSARI AA INVESTMENTS, LTD.
c/o Xxxxxxxx Xxxxxx
0000 X. Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxx, Xxxxx 00000
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name:
Title:
ANSARI AR INVESTMENTS, LTD.
c/o Xxxxxxxx Xxxxxx
0000 X. Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxx, Xxxxx 00000
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name:
Title:
XXXXXX XX INVESTMENTS, LTD.
c/o Xxxxxxxx Xxxxxx
0000 X. Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxx, Xxxxx 00000
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name:
Title:
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MSD PORTFOLIO, L.P. - INVESTMENTS
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: /s/ Xxxx Xxxxxx
-------------------------------
Name:
Title:
BLACK MARLIN INVESTMENTS,
LLC 000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: /s/ Xxxx Xxxxxx
-------------------------------
Name:
Title:
VERMEER INVESTMENTS, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: /s/ Xxxx Xxxxxx
-------------------------------
Name:
Title:
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