EXHIBIT 2
FORM OF COMPANY VOTING AGREEMENT
THIS COMPANY VOTING AGREEMENT (this "AGREEMENT") is dated as of March 27,
2003 between SR Telecom Inc. ("PARENT"), a corporation organized under the
Canada Business Corporations Act (the "CBCA"), and the undersigned stockholder
("STOCKHOLDER") of Xxxxx Corporation, a Delaware corporation (the "COMPANY"),
and, if applicable, the undersigned spouse of Stockholder ("SPOUSE").
RECITALS
A. Concurrently with the execution and delivery of this Agreement,
Parent, the Company and Norway Acquisition Corporation, a Delaware corporation
and a wholly owned subsidiary of Parent ("MERGER SUB"), have entered into an
Agreement and Plan of Merger of even date herewith (the "MERGER AGREEMENT"),
pursuant to which the parties thereto have agreed, upon the terms and subject to
the conditions set forth therein, to merge Merger Sub with and into the Company
(the "MERGER").
B. Stockholder is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended) of the number of shares of
common stock, par value $0.001 per share, of the Company (the "COMPANY STOCK"),
as indicated on the signature page of this Agreement (such shares of Company
Stock, together with any other shares of capital stock of the Company acquired
by such Stockholder after the date hereof and during the term of this Agreement
(including through the exercise of any stock options, warrants or similar
instruments), being collectively referred to herein as the "SECURITIES" of
Stockholder).
C. In consideration of the execution of the Merger Agreement by Parent,
and as inducement and a condition to entering into the Merger Agreement, Parent
has required Stockholder to agree, and Stockholder has agreed, to enter into
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
In addition to the terms defined elsewhere herein, capitalized terms
used but not otherwise defined herein shall have the respective meanings
ascribed to them in the Merger Agreement. For purposes of this Agreement:
1.1 "TRANSFER", when used as a verb, shall mean to sell, pledge,
assign, encumber, dispose of or otherwise transfer (including by merger,
testamentary disposition, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law), or, when used as a noun,
shall mean a sale, pledge,
assignment, encumbrance, disposition or other transfer (including a merger,
testamentary disposition, interspousal disposition pursuant to a domestic
relations proceeding or other transfer by operation of law).
2. VOTING OF SECURITIES.
Stockholder hereby agrees to appear, or cause the holder of record on
any applicable record date to appear, for the purpose of obtaining a quorum at
any annual or special meeting of stockholders of the Company and at any
postponement or adjournment thereof. At every meeting of the stockholders of the
Company, and at every postponement or adjournment thereof, and on every action
or approval by written consent of the stockholders of the Company, Stockholder
hereby irrevocably agrees to vote the Securities, or cause the Securities to be
voted, (a) in favor of approval and adoption of the Merger Agreement and the
approval of the Merger and all other actions contemplated by the Merger
Agreement and this Agreement and any action required in furtherance thereof or
hereof and (b) against (i) any Acquisition Proposal, (ii) any dissolution,
liquidation or winding up of or by the Company and (iii) any amendment of the
Company's certificate of incorporation or by-laws or other proposal or
transaction involving the Company, which amendment or other proposal or
transaction would (x) in any manner impede, frustrate, delay, prevent, nullify
or adversely affect any transaction contemplated by the Merger Agreement
(including the Merger) or the likelihood of consummation thereof, (y) result in
a breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or (z) would result in any
of the conditions to the Company's or Parent's obligations under the Merger
Agreement not being fulfilled. Stockholder shall not commit or agree to take any
action, or enter into any agreement or understanding with any person, the effect
of which would be inconsistent with or violative of any provision contained in
this Section 2.
3. IRREVOCABLE PROXY.
Stockholder is hereby delivering to Parent an irrevocable proxy in the
form attached hereto as Exhibit A (the "IRREVOCABLE PROXY"), such Irrevocable
Proxy to cover the total number of Securities in respect of which Stockholder is
entitled to vote. Upon the execution of this Agreement by Stockholder,
Stockholder hereby revokes any and all prior proxies, powers of attorney or
similar authorizations given thereby with respect to the Securities and agrees
not to grant any subsequent proxies, powers of attorney or similar
authorizations with respect to the Securities.
4. RESTRICTION ON TRANSFER OF SECURITIES.
Prior to the Expiration Date (as defined herein), Stockholder shall
not, either directly or indirectly, consent to any Transfer of, or enter into
any contract, agreement, obligation, commitment, arrangement, understanding,
instrument, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, any Securities (or any interest
therein); PROVIDED that, the foregoing requirements shall not prohibit any
Transfer under Stockholder's will or pursuant to the laws of descent and
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distribution or any such Transfer to an immediate family member or a family
trust for the benefit of immediate family member(s), so long as, in each case,
as a precondition to such Transfer the transferee: (i) executes a counterpart of
this Agreement and an Irrevocable Proxy in the form attached hereto as Exhibit A
(with such modifications as Parent may reasonably request); and (ii) agrees in
writing to hold such Securities (or interest in such Securities) subject to all
of the terms and provisions of this Agreement. Stockholder agrees that
Stockholder shall not (a) deposit (or permit the deposit of) any Securities in a
voting trust or grant any proxy, power of attorney or similar authority (other
than for fulfilling the terms of this Agreement) 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 Securities or (b)
take any action that would make any representation or warranty of Stockholder
contained herein untrue or incorrect or that would in any way restrain, limit or
interfere with the performance of Stockholder's obligations under this Agreement
or the transactions contemplated hereby and by the Merger Agreement.
5. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER.
5.1 Stockholder (i) is the sole record and beneficial owner of, and
has good and marketable title to, the Securities set forth on the signature page
of this Agreement, which at the date of this Agreement and at all times until
the termination of this Agreement, will be free and clear of any liens, claims,
options, rights of first refusal, co-sale rights, charges or other encumbrances;
(ii) does not own, of record or beneficially, any shares of capital stock of the
Company other than the Securities set forth opposite his, her or its name on the
signature page of this Agreement; and (iii) has the sole right to vote such
Securities (except to the extent that such Securities are issuable upon the
exercise of options or warrants that have not been exercised by such
Stockholder). Except as contemplated by this Agreement, none of the Securities
is subject to any voting trust or other agreement, arrangement or restriction
with respect to the voting of such Securities. If Stockholder is married, and
Stockholder's Securities constitute community property or otherwise need spousal
or other approval for this Agreement to be legal, valid and binding, this
Agreement has been duly authorized, executed and delivered by, and constitutes a
valid and binding agreement of, Stockholder's spouse, enforceable against such
spouse in accordance with its terms. No trust of which Stockholder is a trustee
requires the consent of any beneficiary to the execution and delivery of this
Agreement or to the consummation of the transactions contemplated hereby. If
this Agreement is being executed in a representative or fiduciary capacity, the
Person signing this Agreement has full power and authority to enter into and
perform this Agreement.
5.2 Stockholder has all requisite power and authority to execute
and deliver this Agreement and the Irrevocable Proxy, to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution, delivery and performance by Stockholder of this
Agreement and consummation of the transactions contemplated hereby and thereby
have been duly authorized by all necessary action on the part of Stockholder and
no other proceedings on the part of Stockholder are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby and thereby.
Each of this Agreement and the
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Irrevocable Proxy has been duly and validly executed and delivered by
Stockholder and constitutes the valid and binding obligations of Stockholder,
enforceable against Stockholder in accordance with its respective terms. The
execution and delivery of this Agreement and the Irrevocable Proxy by
Stockholder do not, and the performance of Stockholder's obligations hereunder
will not, (a) 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 right to terminate, amend, accelerate or cancel any right or
obligation under, or result in the creation of any lien or encumbrance on any
Securities pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligations
to which Stockholder is a party or by which Stockholder or the Securities are or
will be bound or affected or (b) violate any order, writ, injunction, decree,
judgment, statute, rule or regulation applicable to Stockholder or any of
Stockholder's properties or assets. No consent, approval, order or authorization
of, or registration, declaration or filing with, or notice to, any state or
federal public body or authority is required by or with respect to Stockholder
in connection with the execution and delivery of this Agreement and the
Irrevocable Proxy by Stockholder or the consummation by Stockholder of any of
the transactions contemplated hereby or thereby.
6. ADDITIONAL DOCUMENTS.
Stockholder (in his or her capacity as such) hereby covenants and
agrees to execute and deliver any additional documents necessary or desirable,
in the reasonable opinion of Parent, to carry out the purpose and intent of this
Agreement.
7. LEGENDING OF SECURITIES.
Stockholder agrees that it shall forthwith surrender all certificates
representing the Securities so that they shall bear a conspicuous legend stating
that they are subject to this Agreement (and the restrictions on transfer
provided for herein) and to an Irrevocable Proxy. Stockholder agrees that it
shall not Transfer the Securities without first having the aforementioned legend
affixed to the certificates representing the Securities (and subject, in any
event, to the limitations set forth in Section 4). In furtherance of this
Agreement, Stockholder shall, and hereby authorizes Parent to, notify the
Company's transfer agent that the Securities are subject to a "stop transfer"
order.
8. NO SOLICITATION.
8.1 Stockholder acknowledges that he or she also has read, and
understands, the restrictions set forth in Section 6.03 of the Merger Agreement
and agrees to comply with them as if a party to such Merger Agreement.
8.2 Until the Expiration Date, Stockholder shall use all reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or
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advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by the Merger
Agreement.
9. CONFIDENTIALITY.
Stockholder agrees (i) to hold any information regarding this
Agreement and the Merger in strict confidence and (ii) not to divulge any such
information to any third person, except to the extent any of the same is
hereafter publicly disclosed by Parent.
10. STOCKHOLDER CAPACITY.
Stockholder is executing and delivering into this Agreement solely in
its capacity as the owner of the Securities. If Stockholder is a natural person,
nothing contained in this Agreement shall restrict Stockholder from taking any
action required by his or her fiduciary duties solely in his or her capacity as
an officer, director or employee of the Company.
11. TERMINATION.
This Agreement, and all rights and obligations of the parties
hereunder, shall be effective as of the date hereof and shall terminate upon the
earlier of (i) the date upon which the Merger Agreement is terminated in
accordance with its terms and (ii) the Effective Time (the "EXPIRATION DATE") of
the Merger.
12. GENERAL PROVISIONS.
12.1 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.
12.2 BINDING EFFECT AND ASSIGNMENT. This Agreement 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, or in the case of Parent, Section 11.06 of the Merger Agreement, neither
this Agreement nor any of the rights, interests or obligations of the parties
hereto may be assigned by any of the parties without prior written consent of
the others. Nothing contained in this Agreement, express or implied, is intended
to confer upon any person other than the parties hereto and their respective
successors and permitted assigns any rights or remedies of any nature whatsoever
by reason of this Agreement.
12.3 AMENDMENTS AND MODIFICATION. This Agreement may be amended by
the parties hereto and the terms and conditions hereof may be waived only by an
instrument in writing signed on behalf of each of the parties hereto or, in the
case of a waiver, by an instrument signed on behalf of the party waiving
compliance. The failure
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of any party hereto to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of these rights.
12.4 SPECIFIC PERFORMANCE. The parties hereto acknowledge that
Parent shall be immediately and irreparably harmed and injured if for any reason
any of the provisions of this Agreement are not performed in accordance with
their specific terms or are otherwise breached by any of the other parties
hereto. Therefore, it is 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. If Parent brings
an action in equity to enforce the provisions of this Agreement, Stockholder
will not allege, and Stockholder waives the defense, that there is an adequate
remedy at law.
12.5 NOTICE. 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, sent by
facsimile if confirmation is received by sender, 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 Parent, to:
SR Telecom Inc.
0000 Xxxxx-Xxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with copies to:
Fasken Xxxxxxxxx
Stock Exchange Tower
X.X. Xxx 000, Xxxxx 0000
000 Xxxxx-Xxxxxxxx
Xxxxxxxx, Xxxxxx, Xxxxxx X0X
Attention: Xxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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and
Pillsbury Winthrop LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Xx., Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
if to Stockholder, to the address for notice set forth on the
signature page hereof,
with copies to:
Xxxxx Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
0
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and
Xxxxx Xxxx & Xxxxxxxx
0000 Xx Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
12.6 GOVERNING LAW; JURISDICTION. 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 law thereof. Any suit, action or proceeding seeking to enforce any provision
of, or based on any matter arising out of or in connection with, this Agreement
or the transactions contemplated hereby shall be brought exclusively in any
federal court located in the State of Delaware or any state court of the State
of Delaware, and each of the parties hereto consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient form. Process in any such suit,
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action or proceeding may be served on any party anywhere in the world, whether
within or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as provided
in Section 12.5 shall be deemed effective service of process on such party.
12.7 ENTIRE AGREEMENT. This Agreement and the Irrevocable Proxy,
together with the Company Affiliate Letter, in the form attached as Exhibit A to
the Merger Agreement, 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.
12.8 DESCRIPTIVE HEADINGS. The section headings are for convenience
only and shall not affect the construction or interpretation of this Agreement.
12.9 INTERPRETATION. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. 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. Wherever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
12.10 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be deemed to be an original, but all of which, taken
together, will constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement.
12.11 EXPENSES. All fees, costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such fees, costs and expenses.
12.12 EFFECTIVENESS. This Agreement shall become effective
simultaneously with the execution and delivery of the Merger Agreement.
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IN WITNESS WHEREOF, the parties have caused this Company Voting
Agreement to be executed as of the date first above written.
SR TELECOM INC.
By:
------------------------------
Name:
Title:
STOCKHOLDER SPOUSE
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
--------------------------------- ---------------------------------
--------------------------------- ---------------------------------
Print Address Print Address
--------------------------------- ---------------------------------
Telephone Telephone
--------------------------------- ---------------------------------
Facsimile No. Facsimile No.
Number of Securities beneficially owned:
________ shares of Company Stock of the Company
________ shares of Company Stock of the Company issuable
upon exercise of outstanding options or warrants
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Xxxxx Corporation, a Delaware corporation
(the "COMPANY"), hereby irrevocably (to the fullest extent permitted by law)
appoints the members of the Board of Directors of SR Telecom Inc. ("PARENT"), a
corporation organized under the Canada Business Corporations Act (the "CBCA"),
and each of them, or any other designee of Parent, as the sole and exclusive
attorneys-in-fact 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 (i) all of the outstanding shares of common stock, par value $0.001
per share, of the Company ("COMPANY STOCK") owned of record by Stockholder as of
the date of this Irrevocable Proxy and (ii) any and all other shares of capital
stock of the Company (including through the exercise of any stock options,
warrants or similar instruments) which Stockholder may acquire on or after the
date hereof (collectively, the "SECURITIES") in accordance with the terms of
this Irrevocable Proxy. The Securities beneficially owned by the undersigned
Stockholder of the Company as of the date of this Irrevocable Proxy are listed
on the signature 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 Securities are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Securities.
This proxy is irrevocable, is coupled with an interest and is granted
pursuant to that certain Company Voting Agreement of even date between Parent
and the undersigned stockholder (the "VOTING AGREEMENT"), and is granted in
consideration of and as a condition to Parent entering into that certain
Agreement and Plan of Merger (the "MERGER AGREEMENT"), by and among Parent,
Norway Acquisition Corporation, a Delaware corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), and the Company. The Merger Agreement
provides for the merger of the Merger Sub with and into the Company in
accordance with its terms (the "MERGER").
The attorneys-in-fact and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time set forth in the Voting
Agreement, to act as the undersigned's attorney-in-fact and Irrevocable Proxy to
demand that the Secretary of the Company call a special meeting of stockholders
of the Company for the purpose of considering any action related to the Merger
Agreement and to vote the Securities, and to exercise all voting, consent and
similar rights of the undersigned with respect to the Securities (including,
without limitation, the power to execute and deliver written consents) at every
annual, special, postponed or adjourned meeting of stockholders of the Company
and in every written consent in lieu of such meeting (a) in favor of approval
and adoption of the Merger Agreement and the approval of the Merger and in favor
of each other action contemplated by the Merger Agreement and any action
required in furtherance hereof or thereof and (b) against (i) any Acquisition
Proposal, (ii) any dissolution, liquidation or winding up of or by the Company
or (iii) any amendment of the Company's certificate of incorporation or by-laws
or other proposal or transaction involving the Company, which amendment or other
proposal or transaction would (x) in any manner impede, frustrate, delay,
prevent, nullify or adversely affect any transaction contemplated by the Merger
Agreement (including the Merger) or the likelihood of consummation thereof, (y)
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or (z) would
result in any of the conditions to the Company's or Parent's obligations under
the Merger Agreement not being fulfilled.
If any provision of this Irrevocable Proxy or any part of any such
provision is held under any circumstances to be invalid or unenforceable in any
jurisdiction, then (a) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this Irrevocable Proxy. Each provision
of this Irrevocable Proxy is separable from every other provision of this
Irrevocable Proxy, and each part of each provision of this Irrevocable Proxy is
separable from every other part of such provision.
This proxy granted by Stockholder shall be revoked upon termination of the
Voting Agreement in accordance with its terms.
Any obligation of the undersigned hereunder shall be binding upon the
heirs, estate, executors, personal representatives, and permitted successors and
assigns of the undersigned.
Dated: Xxxxx 00, 0000
XXXXXXXXXXX SPOUSE
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
Number of shares beneficially owned:
________ shares of the company stock of the Company
________ shares of the company stock of the Company
issuable upon exercise of outstanding
options or warrants
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