EXHIBIT 99.3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 22, 2000 (the "AGREEMENT"),
by and among ADC Telecommunications, Inc., a Minnesota corporation ("Buyer"),
and each stockholder of PairGain Technologies, Inc., a Delaware Corporation (the
"COMPANY"), whose signature is set forth on the signature pages to this
Agreement (each a "STOCKHOLDER" and, collectively, the "STOCKHOLDERS").
Capitalized terms which are used but not defined herein shall have the meanings
ascribed to them in the Merger Agreement (as defined below).
WITNESSETH:
WHEREAS, simultaneously with the execution and delivery of this
Agreement, Buyer and the Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "MERGER AGREEMENT"), which provides for
a wholly owned subsidiary of Buyer to be merged with and into the Company in
accordance with the General Corporation Law of the State of Delaware and the
terms of the Merger Agreement, as a result of which the Company will be the
surviving corporation and will be a wholly owned subsidiary of Buyer;
WHEREAS, the Stockholders own in the aggregate approximately ___%
of the Company Common Stock issued and outstanding; and
WHEREAS, the Stockholders desire that the Company and Buyer
consummate the Merger contemplated by the Merger Agreement and are willing to
enter into this Agreement to induce Buyer to enter into the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth herein, the parties hereto, intending to be
legally bound, agree as follows:
1. AGREEMENT TO VOTE. At such time as the Company convenes a meeting
of, solicits written consents from or otherwise seeks a vote of, the Company's
stockholders for the purpose of considering and approving the Merger and the
other transactions contemplated by the Merger Agreement, each of the
Stockholders hereby agrees to vote all shares of Company Common Stock owned by
such Stockholder (whether held directly or beneficially) in favor of the Merger
and the other transactions contemplated by the Merger Agreement and all other
actions necessary or desirable for the consummation of the Merger. If the
Merger contemplated by the Merger Agreement is restructured by the parties as a
tender offer, each of the Stockholders hereby agrees to tender all shares of
Company Common Stock owned by such Stockholder to the Buyer.
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2. LIMITATION. Each Stockholder shall retain at all times the right
to vote such Stockholder's shares of Company Common Stock in that Stockholder's
sole discretion on all matters, other than those set forth in Section 1, that
are at any time or from time to time presented for consideration by the
Company's stockholders generally.
3. NO SOLICITATION.
(a) Immediately upon execution of this Agreement, the
Stockholders shall (and shall use reasonable efforts to cause the Company and
its officers, directors, employees, investment bankers, attorneys and other
agents or representatives to) cease all discussions, negotiations, responses to
inquiries and other communications with all third parties who, prior to the date
hereof, may have expressed or otherwise indicated any interest in pursuing an
Acquisition Proposal with the Company.
(b) Prior to termination of this Agreement pursuant to Section
7 hereof, each Stockholder hereby covenants and agrees that he or she will not,
and each Stockholder shall use reasonable efforts to cause the Company and its
officers, directors, employees, investment bankers, attorneys and other agents
or representatives not to, directly or indirectly, (i) initiate, solicit or
encourage, directly or indirectly, any inquiries or the making of any proposal
that constitutes an Acquisition Proposal, (ii) except as permitted below, engage
or participate in negotiations or discussions with, or furnish any information
or data to, or take any other action to, facilitate any inquiries or making any
proposal by, any third party relating to an Acquisition Proposal, or (iii)
except as permitted below, enter into any agreement with respect to any
Acquisition Proposal or approve an Acquisition Proposal. Notwithstanding
anything to the contrary contained in this Section 3 (or in Section 5.6 or any
other provision of the Merger Agreement), prior to the Company Stockholders
Meeting, the Company and its Board of Directors (the "COMPANY BOARD") may
participate in discussions or negotiations with or furnish information to any
third party making an unsolicited Acquisition Proposal (a "POTENTIAL ACQUIROR")
or approve or recommend an unsolicited Acquisition Proposal if both (A) a
majority of the directors of the Company Board, without including directors who
may be considered Affiliates (as defined in Rule 405 under the Securities Act),
of any person making an Acquisition Proposal ("DISINTERESTED DIRECTORS")
determines in good faith, after receiving advice from its independent financial
advisor, that a Potential Acquiror has submitted to the Company an Acquisition
Proposal that is a Superior Proposal (as hereinafter defined), and (B) a
majority of the disinterested directors of the Company Board determines in good
faith, after receiving advice from reputable outside legal counsel experienced
in such matters (and the parties hereto agree that the law firm of Xxxxxxxxx
Xxxxx Xxxxxxx & Xxxxx is so experienced), that the failure to participate in
such discussions or negotiations or to furnish such information or to approve or
recommend such unsolicited Acquisition Proposal is inconsistent with the Company
Board's fiduciary duties under applicable law. In the event that any
Stockholder shall receive any Acquisition Proposal, he or she shall promptly
(and in no event later than 24 hours after receipt thereof) furnish to Buyer the
identity of the Potential Acquiror, the terms of such Acquisition Proposal,
copies of all information requested by the Potential Acquiror, and shall further
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promptly inform Buyer in writing as to the fact such information is to be
provided after compliance with the terms of the preceding sentence. Without
limiting the foregoing, each of the Stockholders understands and agrees that any
violation of the restrictions set forth in this Section 3 by any Stockholder,
whether or not such Stockholder is purporting to act on behalf of the Company or
any of its Subsidiaries or otherwise, shall be deemed to be a breach of Section
5.6(b) of the Merger Agreement sufficient to enable Buyer to terminate the
Merger Agreement pursuant to Section 7.1(d)(i) thereof.
(c) For the purposes of this Agreement, "ACQUISITION PROPOSAL"
shall mean any proposal, whether in writing or otherwise, made by any person
other than Buyer and its Subsidiaries to acquire "beneficial ownership" (as
defined under Rule 13(d) of the Exchange Act) of 20% or more of the assets of,
or 20% or more of the outstanding capital stock of any of the Company or its
Subsidiaries pursuant to a merger, consolidation, exchange of shares or other
business combination, sale of shares of capital stock, sales of assets, tender
offer or exchange offer or similar transaction involving the Company or its
Subsidiaries.
(d) The term "SUPERIOR PROPOSAL" means any BONA FIDE
Acquisition Proposal to acquire, directly or indirectly, for consideration
consisting of cash and/or securities, more than 50% of the Company Common Stock
then outstanding or all or substantially all the assets of the Company, and
otherwise on terms that a majority of the disinterested directors determines, in
good faith, to be more favorable to the Company and its stockholders than the
Merger (after receiving advice from the Company's independent financial advisor
that the Acquisition Proposal is more favorable to the Company's stockholders,
from a financial point of view, than the Merger) and for which financing, to the
extent required, is then committed.
4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. The
Stockholders severally, but not jointly, hereby represent and warrant to Buyer
that:
(a) Each Stockholder has the requisite legal capacity and
authority to execute and deliver this Agreement, to perform the obligations of
the Stockholder under this Agreement and to consummate the transactions
contemplated by this Agreement. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a valid and legally binding
obligation of such Stockholder enforceable in accordance with its terms, except
to the extent that enforceability thereof may be limited by bankruptcy and other
similar laws and general principles of equity;
(b) Each Stockholder's execution, delivery and performance of
this Agreement will not result in the creation of any Lien upon any of the
shares of Company Common Stock held by such Stockholder under any of the terms,
conditions or provisions of any contract to which such Stockholder is a party;
(c) No filing or registration with or notification to and no
permit, authorization, consent or approval of, any court, commission,
governmental body, regulatory
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authority, agency or tribunal wherever located is required to be obtained,
made or given by any Stockholder in connection with the execution, delivery
and performance by any Stockholder of this Agreement; and
(d) The signature page of this Agreement correctly sets forth
the number of shares of Company Common Stock owned by each Stockholder as of the
date of this Agreement. Each Stockholder has good title to all of the shares of
Company Common Stock set forth below his name on the signature page hereto free
and clear of all liens, security interests and encumbrances or any restrictions
on transfer.
5. CAPACITY. The parties hereby agree that the Stockholders are
executing this Agreement solely in their capacity as Stockholders of the
Company. Nothing contained in this Agreement shall limit or otherwise affect
the conduct or exercise of the Stockholders' fiduciary duties as officers or
directors of the Company.
6. FURTHER ASSURANCES. Each Stockholder will, upon the request of
Buyer, execute and deliver such documents and take such action reasonably
requested by Buyer to effectuate the purposes of this Agreement and to
consummate the transactions contemplated by the Merger Agreement.
7. TERMINATION. This Agreement shall terminate upon the earlier of
(i) the Effective Time and (ii) the termination of the Merger Agreement in
accordance with its terms. In the event this Agreement is terminated, this
Agreement shall immediately become void, there shall be no liability under this
Agreement on the part of Buyer, its officers or directors or the Stockholders,
and all rights and obligations of the parties to this Agreement shall cease.
8. EXPENSES. Each party hereto shall pay its own expenses incurred
in connection with this Agreement, except as otherwise specified in the Merger
Agreement.
9. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement, without the
necessity of proving damages or posting any bond, and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
10. NOTICE. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the party for whom it is intended or if sent by
telex or facsimile (with receipt electronically confirmed) to the person at the
address set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such person:
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(a) if to a Stockholder: To the address set forth on the
signature page(s) hereto
with a copy to:
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) if to Buyer:
ADC Telecommunications, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx LLP
Pillsbury Center South
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
11. PARTIES IN INTEREST. This Agreement shall inure to the benefit of
and be binding upon the parties named herein and their respective successors and
assigns. Nothing in this Agreement, expressed or implied, is intended to confer
upon any Person other than the Stockholders or Buyer, or their permitted
successors or assigns, any rights or remedies under or by reason of this
Agreement.
12. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, together with the
Merger Agreement and the other documents referred to therein, constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements and understandings, both
written or oral, between the parties with respect to the subject matter hereof.
This Agreement may not be changed, amended or modified orally, but only by an
agreement in writing signed by the party against whom any waiver, change,
amendment, modification or discharge may be sought.
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13. ASSIGNMENT. No party to this Agreement may assign any of its
rights or delegate any of its obligations under this Agreement (whether by
operation of law or otherwise) without the prior written consent of the other
party hereto.
14. INTERPRETATION. The language used in this Agreement shall be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction shall be applied against any party. The
headings of articles and sections herein are for convenience of reference, do
not constitute a part of this Agreement, and shall not be deemed to limit or
affect any of the provisions hereof.
15. COUNTERPARTS. This Agreement may be executed via facsimile in two
or more counterparts, each of which, when executed, shall be deemed to be an
original and all of which together shall constitute one and the same document.
16. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of laws thereof.
17. VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the extent possible.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to
be executed as of the day and year first written above.
ADC TELECOMMUNICATIONS, INC.
By: __________________________________
Xxxx Xxxxx
Senior Vice President,
President Broadband Access and
Transport Group
STOCKHOLDERS
By: __________________________________
Name:
Address:
Number of Shares Held:
By: __________________________________
Name:
Address:
Number of Shares Held:
By: __________________________________
Name:
Address:
Number of Shares Held:
