Exhibit 2
FORM OF
VOTING AGREEMENT
VOTING AGREEMENT (the "Agreement"), dated as of November 9, 2001, by and
among Occam Networks Inc., a California corporation ("Occam"), Accelerated
Networks, Inc., a Delaware corporation ("ANI") and the undersigned stockholders
(the "Stockholders") of ANI and is for the benefit of Occam. Except as
otherwise provided herein, capitalized terms that are used but not otherwise
defined herein shall have the meaning assigned to such terms in the Merger
Agreement (as defined below).
WHEREAS, contemporaneously with the execution of this Agreement, Occam and
ANI are entering into an Agreement and Plan of Merger and Reorganization (the
"Merger Agreement"), providing for, among other things, the merger of a
wholly-owned subsidiary of ANI into Occam (the "Merger") and the conversion of
the outstanding shares of common stock of Occam into the right to receive
shares of common stock of ANI pursuant to the Merger, and setting forth certain
representations, warranties, covenants and agreements of the parties thereto in
connection therewith; and
WHEREAS, the Merger Agreement contemplates the execution and delivery of
this Agreement; and
WHEREAS, in order to induce Occam to enter into the Merger Agreement, the
Stockholders are entering into this Agreement in their respective capacities as
stockholders of ANI and not in their respective capacities as directors or
officers of ANI, if applicable.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Representations of Stockholders. Each of the Stockholders represents and
warrants to Occam that (a) such Stockholder lawfully owns beneficially (as such
term is defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) and of record that number of shares of ANI Common
Stock set forth opposite such Stockholder's name on Exhibit A (collectively,
the "Shares"), respectively, free and clear of any mortgage, pledge, security
interest, encumbrance, charge or other lien (whether arising by contract or
operation of law) and, except for this Agreement, there are no options,
warrants or other rights, agreements, arrangements or commitments of any
character to which such Stockholder is a party relating to the pledge,
disposition or Voting (as defined herein) of any shares of capital stock of ANI
and there are no Voting trusts, proxies or Voting agreements with respect to
such Shares, (b) such Stockholder does not beneficially own (as such term is
defined in Rule 13d-3 under the Exchange Act) any additional shares of ANI
Common Stock other than the Shares and, except as disclosed on Exhibit A, does
not have any options, warrants or other rights to acquire any additional shares
of capital stock of ANI or any security exercisable for or convertible into
shares of capital stock of ANI, and (c) such Stockholder has full power and
authority to enter into, execute and deliver this Agreement and any proxy
delivered pursuant to Section 3 and to perform such Stockholder's obligations
hereunder and thereunder. Each of the Stockholders further represents and
warrants to Occam that the execution and delivery of this Agreement do not and
the execution and delivery of any proxy delivered pursuant to Section 3 by such
Stockholder and the performance of this Agreement and any proxy delivered
pursuant to Section 3 by such Stockholder will not: (a) conflict with or
violate any law, rule, regulation, order, decree or judgment applicable to such
Stockholder or by which it or any of its assets is or may be bound or affected;
(b) result in or constitute (with or without notice or lapse of time) any
breach of or default under, or give to any other individual or entity (with or
without notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result (with or without notice or lapse of
time) in the creation of any encumbrance or restriction on any of the Subject
Securities (as defined herein) pursuant to, any contract to which such
Stockholder is a party or by which such Stockholder or any of such
Stockholder's affiliates or assets is or may be bound or affected; or (c)
require any consent or approval of any other Person. For purposes of this
Agreement, "Vote" shall include voting of Shares in person or by proxy in favor
of or against any action or consenting to any action in accordance with the
Delaware General Corporation Law, and "Voting" shall have a correlative
meaning. For purposes of this Agreement, "Subject Securities" shall mean: (i)
all securities of ANI (including all shares of capital stock of ANI and all
options, warrants and other rights to acquire shares of capital stock of ANI)
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owned beneficially or of record by a Stockholder as of the date of this
Agreement; and (ii) all additional securities of ANI (including all additional
shares of capital stock of ANI and all additional options, warrants and other
rights to acquire shares of capital stock of ANI) which a Stockholder acquires
or becomes the owner of beneficially or of record during the period from the
date of this Agreement through the Termination Date (as defined below).
2. Agreement to Vote Shares. During the period from the date of this
Agreement through the Termination Date, each of the undersigned Stockholders
hereby agrees to Vote all Subject Securities (to the extent then entitled to
Vote) at every meeting of the stockholders of ANI and at any adjournment or
postponement thereof, and on every matter submitted for action or approval by
written consent of the stockholders of ANI (a) IN FAVOR OF the approval of the
Merger and the issuance of ANI Common Stock in the Merger, each of the other
actions contemplated by the Merger Agreement and any action in furtherance of
any of the foregoing and (b) AGAINST (1) any ANI Acquisition or any agreement
relating thereto, (2) any action that is intended, or could reasonably be
expected, to facilitate the consummation of any ANI Acquisition or (3) any
action or agreement that would result in a breach in any material respect of
any covenant, representation or warranty or any other obligation of ANI under
the Merger Agreement. The agreement contained in this Section 2 is irrevocable
to the fullest extent permitted under Delaware law.
3. Irrevocable Proxy. Each Stockholder hereby agrees (a) to deliver to Occam
one or more proxies which shall be irrevocable to the fullest extent permitted
by Delaware law, with respect to the Shares owned of record by such Stockholder
and (b) cause to be delivered to Occam any additional proxies executed on
behalf of the record owner of any outstanding Shares that were owned
beneficially (within the meaning of Rule 13d-3 under the Exchange Act), but not
of record, by such Stockholder. Such proxies shall provide for the Voting set
forth in Section 2.
4. No Voting Trusts. Each of the Stockholders agrees that, prior to the
Termination Date, such Stockholder will not, nor will such Stockholder permit
any Person under such Stockholder's control to, deposit any of the Subject
Securities in a voting trust or subject any of the Subject Securities to any
proxy or arrangement with respect to the Voting of the Subject Securities other
than agreements entered into with Occam.
5. No Solicitation. Each Stockholder agrees that such Stockholder shall not
directly or indirectly take any action that if taken by ANI would violate
Section 5.3(a) of the Merger Agreement.
6. Transfer and Encumbrance. Each of the Stockholders agrees that, prior to
the Termination Date, such Stockholder shall not transfer, sell, offer,
exchange, pledge or otherwise dispose of or encumber (or enter into an
agreement to do any of the foregoing) any of the Subject Securities . This
Section 6 shall not prohibit a transfer of Subject Securities by a Stockholder
(i) to any member of such Stockholder's immediate family, or to a trust for the
benefit of such Stockholder or any member of such Stockholder's immediate
family or (ii) upon the death of Stockholder; provided, however, that a
transfer referred to in clause "(i)" or "(ii)" of this sentence shall be
permitted only if, as a precondition to such transfer, each transferee agrees
in a writing, reasonably satisfactory in form and substance to Occam, to be
bound by the terms of this Agreement.
7. Legending of Shares; Other Actions. If so requested by Occam, each
Stockholder agrees that the Shares shall bear a legend stating that they are
subject to this Agreement. From time to time and without additional
consideration, each Stockholder shall execute and deliver, or cause to be
executed and delivered, such additional proxies, consents and other
instruments, and shall take such further actions, as Occam may reasonably
request for the purpose of carrying out and furthering the intent of this
Agreement.
8. Specific Performance. Each Stockholder hereto acknowledges that it will
be impossible to measure in money the damages to Occam if such Stockholder
fails to comply with any of the obligations imposed by this Agreement and that,
in the event of any such failure, Occam will not have an adequate remedy at law
or damages. Accordingly, each Stockholder hereto agrees that injunctive relief
or other equitable remedy, in
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addition to remedies at law or damages, is the appropriate remedy for any such
failure and will not oppose the granting of such relief on the basis that Occam
has an adequate remedy at law.
9. Entire Agreement, Amendment, Waiver. This Agreement (including the
exhibits hereto) supersedes all prior agreements, written or oral, among the
parties hereto with respect to the subject matter hereof and contains the
entire agreement among the parties with respect to the subject matter hereof.
This Agreement may not be amended, supplemented or modified, and no provisions
hereof may be modified or waived, except by an instrument in writing signed by
all the parties hereto. No waiver of any provisions hereof by any party shall
be deemed a waiver of any other provisions hereof by any such party, nor shall
any such waiver be deemed a continuing waiver of any provision hereof by such
party.
10. Notices. All notices, requests, claims, demands or other communications
hereunder shall be in writing and shall be deemed given when delivered
personally, upon receipt of a transmission confirmation if sent by fax or like
transmission and on the next business day when sent by Federal Express, Express
Mail or other reputable overnight courier service to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to ANI:
Accelerated Networks, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: H. Xxxxxxx Xxxxx, III, Chief Financial Officer
Facsimile: (000) 000-0000
With a copy to:
Cooley Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
If to Occam:
Occam Networks Inc.
00 Xxxxx Xxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Kumar Shah, President
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
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If to a Stockholder, to the address or fax number set forth for such
Stockholder on the signature page hereof, or to such other Persons or addresses
as may be designated in writing by the party to receive such notice as provided
above.
11. Miscellaneous.
(a) Governing Law. This agreement and the rights and obligations of the
parties hereto shall be governed by and construed in accordance with and
subject to the laws of the State of Delaware, without reference to conflicts
of laws principles.
(b) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 11(b).
(c) Severability. In the event that any provision of the Agreement is
held to be illegal, invalid or unenforceable in a final, unappealable order
or judgment (each such provision, an "invalid provision"), then such invalid
provision shall be severed from this Agreement and shall be inoperative and
the parties promptly shall negotiate in good faith a lawful, valid and
enforceable provision that is as similar to the invalid provision as may be
possible and that preserves the original intentions and economic positions
of the parties as set forth herein to the maximum extent feasible, while the
remaining provisions of this Agreement shall remain binding on the parties
hereto. Without limiting the generality of the foregoing sentence, in the
event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties
shall negotiate in good faith a modification to such obligation to the
extent necessary to comply with such law, rule or regulation that is as
similar in terms to the original obligation as may be possible while
preserving the original intentions and economic positions of the parties as
set forth herein to the maximum extent feasible.
(d) Counterpart. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.
(e) Termination. This Agreement shall terminate upon the earlier to occur
of (i) the Effective Time and (ii) the date which is forty-five (45) days
after the termination of the Merger Agreement pursuant to Article VII of the
Merger Agreement (the "Termination Date").
(f) Headings, Recitals. All Section headings and the recitals herein are
for convenience of reference only and are not part of this Agreement, and no
construction or reference shall be derived therefrom.
(g) Third Party Beneficiaries. Nothing in this agreement, express or
implied, is intended to confer upon any third party any rights or remedies
of any nature whatsoever under or by reason of this agreement.
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EXECUTED as of the date first set forth above.
OCCAM NETWORKS INC.
By:
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Name:
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Title:
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ACCELERATED NETWORKS, INC.
By:
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Name:
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Title:
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STOCKHOLDER
By:
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Name:
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Title:
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Stockholder's Address:
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Facsimile:
(Signature Page to Voting Agreement)
EXHIBIT A
Shares Held Shares Held
Name of Stockholder Class of Shares of Record Beneficially
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Exceptions to Representations:
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