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EXHIBIT 2.3
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of March 15, 1999 (this
"Agreement"), by the undersigned stockholder (the "Stockholder") of OMNIA
COMMUNICATIONS, INC., a Delaware corporation (the "Company"), for the benefit of
CIENA CORPORATION, a Delaware corporation ("CIENA").
RECITALS
WHEREAS, CIENA and the Company are entering into an Agreement and
Plan of Merger, dated as of March 15, 1999 (the "Merger Agreement"), whereby,
upon the terms and subject to the conditions set forth in the Merger Agreement,
each issued and outstanding share of capital stock of the Company ("Company
Capital Stock"), not owned directly or indirectly by CIENA or the Company, will
be converted into shares of Common Stock, par value $.01 per share, of CIENA
("CIENA Common Stock");
WHEREAS, the Stockholder owns of record and/or holds stock options,
warrants or convertible securities to acquire (whether or not vested) that
number and class of shares of Company Capital Stock appearing on the signature
page hereof (such shares of Company Capital 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, being collectively referred
to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, CIENA has required that the Stockholder agree, and in order to induce
CIENA to enter into the Merger Agreement, the Stockholder has agreed, to enter
into this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, the Stockholder agrees as follows:
1. COVENANTS OF STOCKHOLDER. Until the termination of this Agreement
in accordance with Section 4, Stockholder agrees as follows:
(a) At the Company Stockholder Meeting (or at any adjournment
thereof) or in any other circumstances upon which a vote, consent or other
approval with respect to the Merger and the Merger Agreement is sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the
Merger, the adoption of the Merger Agreement and the approval of the terms
thereof and each of the other transactions contemplated by the Merger Agreement;
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(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the Stockholder's
vote, consent or other approval is sought, the Stockholder shall vote (or cause
to be voted) the Subject Shares against any amendment of the Company's Restated
Certificate of Incorporation or By-Laws, which amendment would in any manner
impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement or change in any
manner the voting rights of any class of capital stock of the Company. The
Stockholder further agrees not to commit or agree to take any action
inconsistent with the foregoing;
(c) The Stockholder agrees not to (i) sell, transfer, pledge,
assign or otherwise dispose of (including by gift) (collectively, "Transfer"),
or enter into any contract, option or other arrangement (including any
profit-sharing arrangement) with respect to the Transfer of the Subject Shares
to any person or (ii) enter into any voting arrangement, whether by proxy,
voting agreement or otherwise, in relation to the Subject Shares, and agrees not
to commit or agree to take any of the foregoing actions;
(d) The Stockholder shall not, nor shall the Stockholder
permit any affiliate, director, officer, employee, investment banker, attorney
or other advisor or representative of the Stockholder to, (i) directly or
indirectly solicit, initiate or knowingly encourage the submission of, any
Acquisition Proposal or (ii) directly or indirectly participate in any
discussions or negotiations regarding, or furnish to any person any information
with respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes or may reasonably be expected to lead
to, any Acquisition Proposal; and
(e) The Stockholder shall use the Stockholder's best efforts
to take, or cause to be taken, all actions, and to do, or cause to be done, and
to assist and cooperate with CIENA in doing, all things necessary, proper or
advisable to support and to consummate and make effective, in the most
expeditious manner practicable, the Merger and the other transactions
contemplated by the Merger Agreement.
2. REPRESENTATIONS AND WARRANTIES. The Stockholder represents and
warrants to CIENA as follows:
(a) The Stockholder is the record and beneficial owner of, and
has good and marketable title to, the Subject Shares. The Stockholder does not
own, of record or beneficially, any shares of capital stock of the Company other
than the Subject Shares. The Stockholder has the sole right to vote, and the
sole power of disposition with respect to, the Subject Shares, and none of the
Subject Shares is subject to any voting trust, proxy or other agreement,
arrangement or restriction
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with respect to the voting or disposition of such Subject Shares, except as
contemplated by this Agreement;
(b) This Agreement has been duly executed and delivered by the
Stockholder. Assuming the due authorization, execution and delivery of this
Agreement by CIENA, this Agreement constitutes the valid and binding agreement
of the Stockholder enforceable against the Stockholder in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general application which
may affect the enforcement of creditors' rights generally and by general
equitable principles. The execution and delivery of this Agreement by the
Stockholder does not and will not conflict with any agreement, order or other
instrument binding upon the Stockholder, nor require the Stockholder to make or
obtain any regulatory filing or approval.
3. AFFILIATE LETTER. The Stockholder is concurrently executing and
delivering an Affiliate Letter in the form of EXHIBIT A to the Merger Agreement,
if requested by CIENA.
4. TERMINATION. The obligations of the Stockholder hereunder shall
terminate upon the earlier of the termination of the Merger Agreement pursuant
to SECTION 9.5 thereof or the Effective Time.
5. FURTHER ASSURANCES. The Stockholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as CIENA may reasonably
request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
6. SUCCESSORS, ASSIGNS AND TRANSFEREES BOUND. Any successor,
assignee or transferee (including a successor, assignee or transferee as a
result of the death of the Stockholder, such as an executor or heir) shall be
bound by the terms hereof, and the Stockholder shall take any and all actions
necessary to obtain the written confirmation from such successor, assignee or
transferee that it is bound by the terms hereof.
7. REMEDIES. The Stockholder acknowledges that money damages would
be both incalculable and an insufficient remedy for any breach of this Agreement
by it, and that any such breach would cause CIENA irreparable harm. Accordingly,
the Stockholder agrees that in the event of any breach or threatened breach of
this Agreement, CIENA, in addition to any other remedies at law or in equity it
may have, shall be entitled, without the requirement of posting a bond or other
security, to equitable relief, including injunctive relief and specific
performance.
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8. SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement in any jurisdiction shall not affect the validity or
enforceability of any other provision of this Agreement in such jurisdiction, or
the validity or enforceability of any provision of this Agreement in any other
jurisdiction. If in the opinion of CIENA's independent accountants, any
provision hereof would cause the Merger to be ineligible for "pooling of
interest" accounting treatment, it shall be deemed to be ineffective and
inapplicable.
9. AMENDMENT. This Agreement may be amended only by means of a
written instrument executed and delivered by both the Stockholder and CIENA.
10. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance 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.
11. CAPITALIZED TERMS. Capitalized terms used in this Agreement that
are not defined herein shall have such meanings as set forth in the Merger
Agreement.
12. COUNTERPARTS. For the convenience of the parties, this Agreement
may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
13. NO LIMITATION ON ACTIONS OF THE STOCKHOLDER AS DIRECTOR. In the
event the Stockholder is a director of the Company, notwithstanding anything to
the contrary in this Agreement, nothing in this Agreement is intended or shall
be construed to require the Stockholder to take or in any way limit any action
that the Stockholder may take to discharge the Stockholder's fiduciary duties as
a director of the Company.
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(print or type name)
Number and class of shares of Company
Capital Stock owned or subject to
acquisition on the date hereof:
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Accepted and Agreed to as of the date set forth above:
CIENA CORPORATION
By:
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Name: G. Xxxx Xxxxxxxxx
Title: Senior Vice President,
General Counsel and Secretary
