Exhibit 2.3
FORM OF
VOTING AND CONVERSION AGREEMENT
This VOTING AND CONVERSION AGREEMENT (the "Agreement"), is entered into as
of November 9, 2001, by and among Occam Networks Inc., a California corporation
("Occam"), the undersigned shareholders (the "Shareholders") of Occam and
Accelerated Networks, Inc., a Delaware corporation ("ANI"), and is for the
benefit of ANI. 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 ANI to enter into the Merger Agreement, the
Shareholders are entering into this Agreement in their respective capacities as
shareholders of Occam and not in their respective capacities as directors or
officers of Occam, 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 Shareholders. Each of the Shareholders represents and
warrants to ANI that (a) such Shareholder 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 Occam
Preferred Stock and Occam Common Stock, set forth opposite such Shareholder'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 Shareholder is a
party relating to the pledge, disposition or Voting (as defined herein) of any
shares of capital stock of Occam and there are no Voting trusts, proxies or
Voting agreements with respect to such Shares, (b) such Shareholder does not
beneficially own (as such term is defined in Rule 13d-3 under the Exchange Act)
any additional shares of Occam Preferred Stock or Occam 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
Occam or any security exercisable for or convertible into shares of capital
stock of Occam, and (c) such Shareholder 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 Shareholder's obligations hereunder and
thereunder. Each of the Shareholders further represents and warrants to ANI
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 Shareholder and
the performance of this Agreement and any proxy delivered pursuant to Section 3
by such Shareholder will not: (a) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to such Shareholder 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 Shareholder is a party
or by which such Shareholder or any of such Shareholder'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 Chapter 6 of the
1
California General Corporation Law, and "Voting" shall have a correlative
meaning. For purposes of this Agreement, "Subject Securities" shall mean: (i)
all securities of Occam (including all shares of capital stock of Occam and all
options, warrants and other rights to acquire shares of capital stock of Occam)
owned beneficially or of record by a Shareholder as of the date of this
Agreement; and (ii) all additional securities of the Occam (including all
additional shares of capital stock of Occam and all additional options,
warrants and other rights to acquire shares of capital stock of Occam) which a
Shareholder 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 Shareholders
hereby agrees to Vote all Subject Securities (to the extent then entitled to
Vote) at every meeting of the shareholders of Occam and at any adjournment or
postponement thereof, and on every matter submitted for action or approval by
written consent of the shareholders of Occam (a) IN FAVOR OF the approval and
adoption of the Merger Agreement and the approval of 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 Occam Acquisition
or any agreement relating thereto, (2) any action that is intended, or could
reasonably be expected, to facilitate the consummation of any Occam 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
Occam under the Merger Agreement. The agreement contained in this Section 2 is
irrevocable to the fullest extent permitted under California law.
3. Irrevocable Proxy. Each Shareholder hereby agrees (a) to deliver to ANI
one or more proxies which shall be irrevocable to the fullest extent permitted
by California law, with respect to the Shares owned of record by such
Shareholder and (b) cause to be delivered to ANI 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 Shareholder. Such proxies shall provide for the
Voting set forth in Section 2.
4. No Voting Trusts. Each of the Shareholders agrees that, prior to the
Termination Date, such Shareholder will not, nor will such Shareholder permit
any Person under such Shareholder'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 ANI.
5. No Dissenters' Rights; No Solicitation. Each of the Shareholders hereby
irrevocably and unconditionally waives, and agrees that such Shareholder will
not assert, nor will such Shareholder permit any Person under such
Shareholder's control to assert, any "dissenters" rights" pursuant to Chapter
13 of the California General Corporation Law, any rights of appraisal or any
other similar rights in connection with the Merger. Each Shareholder further
agrees that such Shareholder shall not directly or indirectly take any action
that if taken by Occam would violate Section 5.4(a) of the Merger Agreement.
6. Transfer and Encumbrance. Each of the Shareholders agrees that, prior to
the Termination Date, such Shareholder 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 Shareholder
(i) to any member of such Shareholder's immediate family, or to a trust for the
benefit of such Shareholder or any member of such Shareholder's immediate
family or (ii) upon the death of Shareholder; 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 ANI, to be bound
by the terms of this Agreement.
7. Legending of Shares; Other Actions. If so requested by ANI, each
Shareholder 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 Shareholder 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 ANI may reasonably request
for the purpose of carrying out and furthering the intent of this Agreement.
2
8. Conversion of Preferred Stock. Each Shareholder who owns or becomes the
owner, beneficially (as such term is defined in Rule 13d-3 under the Exchange
Act) or of record, as of the date of this Agreement or at any time prior to the
Termination Date (including pursuant to the First Financing), any shares of
Occam Preferred Stock hereby (a) agrees that immediately prior to the Effective
Time, all such shares of Occam Preferred Stock (including those Shares set
forth in Exhibit A) shall be automatically converted into Occam Common Stock at
the respective conversion prices determined in accordance with Occam's Articles
of Incorporation, as amended, (b) agrees that such Shareholder shall execute
and deliver any and all documents necessary to confirm Shareholder's agreement
herein to effect the conversion of such shares of Occam Preferred Stock and (c)
acknowledges that pursuant to this Section 8, such Shareholder shall be deemed
to have irrevocably delivered its written consent authorizing and approving
(and to otherwise have voted in favor of) the conversion of all outstanding
shares of Occam Preferred Stock pursuant to Section 3(a)(ii) of Occam's
Articles of Incorporation, as amended. Notwithstanding the foregoing, in the
event the Merger is not consummated, no conversion of the Preferred Stock shall
occur.
9. Specific Performance. Each Shareholder hereto acknowledges that it will
be impossible to measure in money the damages to ANI if such Shareholder fails
to comply with any of the obligations imposed by this Agreement and that, in
the event of any such failure, ANI will not have an adequate remedy at law or
damages. Accordingly, each Shareholder hereto agrees that injunctive relief or
other equitable remedy, in 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 ANI has an adequate remedy at law.
10. 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.
11. 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.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: H. ▇▇▇▇▇▇▇ ▇▇▇▇▇, III, Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ Godward LLP
Five Palo Alto Square
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
3
If to Occam:
Occam Networks Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Kumar Shah, President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Shareholder, to the address or fax number set forth for such
Shareholder 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.
12. 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 California, 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 12(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.
4
(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.
5
EXECUTED as of the date first set forth above.
OCCAM NETWORKS INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
----------------------------------
ACCELERATED NETWORKS, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
----------------------------------
SHAREHOLDER
By:
-----------------------------------
Name:
---------------------------------
Title:
----------------------------------
Shareholder's Address:
--------------------------------------
--------------------------------------
Facsimile:
(Signature Page to Voting Agreement)
EXHIBIT A
Shares Held Shares Held
Name of Shareholder Class of Shares of Record Beneficially
------------------- --------------- --------- ------------
Exceptions to Representations:
7