EXHIBIT 2.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made as of the 28th day of
April, 2004, by and between Verilink Corporation, a Delaware corporation
("Verilink"), and the stockholders listed on the signature pages hereto (the
"Stockholders", and each a "Stockholder").
WHEREAS, the Stockholders own the number of shares and class or series
of capital stock of Larscom Incorporated, a Delaware corporation ("Larscom"),
set forth opposite each Stockholder's name on Schedule 1 hereto (all of such
shares now owned and any additional shares of capital stock of Larscom which may
hereafter be acquired by a Stockholder from any source prior to the termination
of this Agreement, the "Larscom Shares"); and
WHEREAS, Larscom, Verilink and Landspeed Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Verilink (the "Merger Sub"), have
entered into that certain Agreement and Plan of Merger of even date herewith
(the "Merger Agreement") pursuant to which the Merger Sub will merge with and
into Larscom (the "Merger") with Larscom as the surviving corporation
(capitalized terms used and not defined herein have the respective meaning
ascribed to them in the Merger Agreement); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Verilink has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement.
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Definitions. For purposes of this Agreement, "Person" shall
mean an individual, corporation, partnership, joint venture, association, trust,
unincorporated organization or other entity. "Beneficial ownership,"
"beneficially own" and similar terms shall refer to beneficial ownership within
the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and Rule 13d-3 thereunder.
2. Provisions Concerning the Larscom Shares. During the period
commencing on the date hereof and continuing until the first to occur of (a) the
Effective Time, (b) termination of the Merger Agreement in accordance with its
terms or (c) the written agreement of the parties hereto to terminate this
Agreement (the "Voting Expiration Date"), each Stockholder agrees that it shall,
at any meeting (or any adjournment thereof) of the holders of Larscom Common
Stock, however called, or in connection with any written consent of the holders
of Larscom Common Stock, vote (or cause to be voted) the Larscom Shares then
held of record or beneficially owned by each such Stockholder (unless such
shares are otherwise voted pursuant to the proxy granted hereunder), (i) for
approval and adoption of the Larscom Voting Proposal, including the Merger, the
Merger Agreement and the transactions contemplated thereby, (ii) against
any action or agreement that could reasonably be expected to result in a breach
in any material respect of any covenant, representation or warranty or any other
obligation of Larscom under the Merger Agreement, or could reasonably be
expected to result in any of the conditions set forth in Article VII of the
Merger Agreement not being fulfilled, (iii) against any Acquisition Proposal
other than the Merger, the Merger Agreement and transactions contemplated
thereby, and (iv) against (A) any other extraordinary corporate transaction
other than the Merger, the Merger Agreement and the transactions contemplated
thereby, such as a merger, consolidation, business combination, reorganization,
recapitalization or liquidation involving Larscom or any of its Subsidiaries or
(B) any other proposal or transaction not covered by the foregoing which is
intended, or could be reasonably be expected to, impede, frustrate, prevent,
hinder, delay or nullify the Merger, the Merger Agreement and the transactions
contemplated thereby. Each Stockholder agrees not to enter into any agreement or
understanding with any Person the effect of which would be inconsistent with or
violative of the provisions and agreements contained in this Section 2.
Each Stockholder, in furtherance of the transactions contemplated
hereby and by the Merger Agreement, and in order to secure the performance of
such Stockholder's duties under this Agreement, shall concurrently with the
execution of this Agreement execute and deliver to Verilink an irrevocable proxy
in the form of Exhibit A hereto, and irrevocably appoints Verilink or its
designees, with full power of substitution, its attorney, agent and proxy to
vote (or cause to be voted) or, if applicable, to give consent with respect to,
all of the Larscom Shares in the manner, and with respect to the matters, set
forth above. Each Stockholder acknowledges that the proxy executed and delivered
by it shall be coupled with an interest, shall constitute, among other things,
an inducement for Verilink to enter into the Merger Agreement, shall be
irrevocable and binding on any successor in interest of such Stockholder and
shall not be terminated by operation of law upon the occurrence of any event.
Such proxy shall operate to revoke and render void any prior proxy as to any of
the Larscom Shares heretofore granted by the Stockholders. Such proxy shall
terminate upon the Voting Expiration Date. Each Stockholder shall promptly cause
to be delivered to Verilink an additional proxy substantially in the form
attached hereto as Exhibit A executed on behalf of the record owner of any
outstanding shares of Larscom Common Stock that such Stockholder owned
beneficially (but not of record).
3. Covenants, Representations and Warranties of Stockholder. Each
Stockholder, severally and not jointly, hereby represents and warrants to and
agrees with Verilink as follows:
(a) Ownership of Larscom Shares. Stockholder is the record and
beneficial owner of the Larscom Shares set forth on Schedule 1 hereto. On the
date hereof, the Larscom Shares constitute all of the capital stock of Larscom
that Stockholder has the right to vote with respect to the Larscom Voting
Proposal. Stockholder has sole voting power, sole power of disposition, sole
power of conversion, sole power to demand appraisal or dissenter's rights and
sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of Stockholder's Larscom Shares, with no
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limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any other agreement to which Stockholder is a party
including, without limitation, any voting agreement, proxy arrangement, pledge
agreement, shareholders' agreement or voting trust. This Agreement has been duly
and validly executed and delivered by Stockholder and constitutes a valid and
binding agreement of Stockholder, enforceable against Stockholder in accordance
with its terms. There is no beneficiary or holder of a voting trust certificate
or other interest of any trust of which Stockholder is a trustee whose consent
is required for the execution and delivery of this Agreement or the consummation
by Stockholder of the transactions contemplated hereby.
(c) No Conflicts. None of the execution and delivery of this
Agreement by Stockholder, the consummation by Stockholder of the transactions
contemplated hereby or compliance by Stockholder with any of the provisions
hereof will (i) conflict with or result in any breach of any applicable
organizational documents applicable to Stockholder, (ii) result in a violation
or breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
modification or acceleration (herein collectively, a "Default")) under any of
the terms, conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which Stockholder is a party or
by which Stockholder or any of its properties or assets may be bound, (iii)
violate any order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to Stockholder or any of its properties or assets or (iv)
require any filing with, authorization, consent or approval of (herein
collectively, a "Consent"), any state or federal authority; which Default or
violation or the failure to obtain any Consent, in the case of clauses (ii),
(iii) and (iv) above, would have a material adverse effect on the ability of
Stockholder to perform Stockholder's obligations hereunder.
(d) No Encumbrances. The Larscom Shares and the certificates
representing such Larscom Shares are now, and at all times during the term
hereof will be, held by Stockholder, or by a nominee or custodian for the
benefit of Stockholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances or proxies
arising hereunder.
(e) No Solicitation or Negotiation.
(i) During the term of this Agreement, Stockholder shall
not, and shall cause its Representatives not to on Stockholder's
behalf, in both cases in Stockholder's capacity as a Stockholder of
Larscom, directly or indirectly, (A) solicit, initiate, knowingly
encourage or take any other action to facilitate any
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inquiries or the making, submission or announcement of any proposal or
offer that constitutes, or could reasonably be expected to lead to, any
Acquisition Proposal, with respect to Larscom, (B) enter into, continue
or otherwise participate in any discussions or negotiations regarding,
furnish to any Person any information with respect to, knowingly assist
or participate in any effort or attempt by any Person with respect to,
or otherwise knowingly cooperate in any way with any proposal or offer
that constitutes, or could reasonably be expected to lead to, any
Acquisition Proposal with respect to Larscom, except discussions as to
the existence of these provisions, (C) approve, endorse or recommend
any Acquisition Proposal with respect to Larscom or (D) enter into any
letter of intent or similar document or any contract, agreement or
commitment contemplating or otherwise relating to any Acquisition
Proposal or transaction contemplated thereby with respect to Larscom.
(ii) Stockholder shall immediately advise Verilink orally,
with written confirmation to follow within 48 hours, of any Acquisition
Proposal with respect to Larscom or any request for nonpublic
information in connection with any such Acquisition Proposal, or of any
inquiry with respect to, or that could reasonably be expected to lead
to, any Acquisition Proposal with respect to Larscom, the material
terms and conditions of any such Acquisition Proposal or inquiry and
the identity of the Person making any such Acquisition Proposal or
inquiry.
(f) Non-Interference. During the term of this Agreement,
Stockholder shall not, directly or indirectly, take any action that would
knowingly take any representation or warranty of Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling Stockholder
from performing its obligations under this Agreement.
(g) Reliance by Verilink. Stockholder understands and acknowledges
that Verilink is entering into the Merger Agreement in reliance upon
Stockholder's execution and delivery of this Agreement.
(h) Transfer of Title. During the term of this Agreement,
Stockholder covenants and agrees not to directly or indirectly sell, assign,
pledge, hypothecate, transfer, exchange, convert or dispose of (collectively
"Transfer"), or enter into any contract, option or other arrangement with
respect to the Transfer of, any of the Larscom Shares, any options or warrants
to purchase capital stock of Larscom or any interest therein or deposit any of
the Larscom Shares into a voting trust or enter into a voting trust agreement or
arrangement with respect to the Larscom Shares, or take any other action with
respect to the Larscom Shares, or otherwise permit or authorize any of the
foregoing actions, other than pursuant to the Merger Agreement or this
Agreement.
(i) Waiver of Appraisal Rights. Stockholder hereby irrevocably and
unconditionally waives, and agrees to cause to be waived and to prevent the
exercise of, any rights of appraisal, any dissenter's rights and any similar
rights relating to the Merger
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or any related transaction that Stockholder or any other Person may have by
virtue of Stockholder's beneficial or record ownership of any shares of Larscom
Common Stock. This waiver does not affect Stockholder's appraisal or dissenters'
rights with respect to any other transaction.
4. Further Assurances. From time to time, at Verilink's request
and without further consideration, each Stockholder shall execute and deliver
such additional documents and take all such further lawful action as may be
reasonably necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
5. Stop Transfer. During the term of this Agreement, each
Stockholder hereby agrees and consents to the entry of stop transfer
instructions with Larscom's transfer agent against the transfer of any Larscom
Shares, consistent with the terms of Section 3(h). During the term of this
Agreement, each Stockholder further agrees that it shall not request that
Larscom or any other Person register the transfer (by book-entry or otherwise)
of any certificate or uncertificated interest representing any of such
Stockholder's Larscom Shares, unless such transfer is made in compliance with
this Agreement and unless the transferee agrees in writing, in form and
substance satisfactory to Verilink, to be bound by the provisions hereof for the
benefit of Verilink.
6. Standstill. During the term of this Agreement and except as
contemplated by the Merger Agreement, each Stockholder shall not, nor shall such
Stockholder permit any of its Representatives on Stockholder's behalf, in both
cases in such Stockholder's capacity as a stockholder of Larscom, in any manner,
directly or indirectly, to effect, or seek, offer, or propose (whether publicly
or otherwise) to effect, or cause or participate in any acquisition of (a) any
securities (or beneficial ownership thereof) of Verilink or Larscom or (b) any
direct or indirect rights or options to acquire any capital stock of Verilink or
Larscom, (c) any merger, consolidation, tender or exchange offer, or other
business combination involving Verilink or Larscom.
7. Termination. This Agreement shall terminate upon the Voting
Expiration Date.
8. Confidentiality. Each Stockholder recognizes that successful
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure thereof, each Stockholder agrees that such
Stockholder shall not, and shall cause its Representatives not to, disclose or
discuss such matters with anyone not a party to this Agreement (other than
Stockholder's and Larscom's Representatives) without the prior written consent
of Verilink, except for disclosures which Stockholder's counsel advises are
necessary in order to fulfill such Stockholder's obligations imposed by law, in
which event Stockholder shall give prior notice of such disclosure to Verilink
as promptly as practicable and in any event prior to the time any such
disclosure is made.
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9. No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in Verilink any direct or indirect ownership or
incidence of ownership of or with respect to any Larscom Shares. All rights,
ownership and economic benefits of and relating to the Larscom Shares shall
remain vested in and belong to the Stockholders, and Verilink shall have no
authority to manage, direct, superintend, restrict, regulate, govern, or
administer any of the policies or operations of Larscom or exercise any power or
authority to direct the Stockholders in the voting of any of the Larscom Shares,
except as otherwise provided herein.
10. No Group. Each Stockholder is acting individually and not as
part of a "group" as defined in the Exchange Act, except that the Stockholders
identified on the signature pages hereof as SV entities are members of a group
consisting of the SV entities, and the Stockholders identified on the signature
pages hereof as AJ Entities are members of a group consisting of the AJ
entities.
11. Miscellaneous.
(a) Entire Agreement. This Agreement and the proxy contains the
entire understanding of the parties with respect to the matters covered herein
and supersedes all prior agreements and understandings, written or oral, between
the parties relating to the subject matter hereof.
(b) Binding Agreement. This Agreement and the obligations
hereunder shall attach to the Larscom Shares and shall be binding upon any
Person to which record or beneficial ownership of such Larscom Shares shall
pass, whether by operation of law or otherwise. Notwithstanding any transfer of
Larscom Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
(c) Assignment. This Agreement shall not be assignable by
operation of law or otherwise without the prior written consent of the other
parties.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. Unless otherwise provided, any notice, request,
demand or other communication required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given upon delivery to the
party to be notified when sent by telecopier (with receipt confirmed), or
overnight courier service, or upon deposit with the United States Post Office,
by registered or certified mail, postage prepaid and addressed as follows (or at
such other address as a party may designate by notice to the other):
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If to Verilink:
Verilink Corporation
127 Jetplex Circle
Madison, AL 35758-8989
Attn: Chief Executive Officer
with a copy to:
Powell, Goldstein, Frazer & Murphy LLP
191 Peachtree Street
16th Floor
Atlanta, Georgia 30303
Attention: Eliot Robinson, Esq.
Facsimile No.: (404) 572-6999
If to the Stockholders:
To the addresses set forth on the signature pages hereto.
(f) Severability. If one or more provisions of this Agreement are
held to be unenforceable, invalid or void by a court of competent jurisdiction,
such provision shall be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provision were so excluded and shall
be enforceable in accordance with its terms.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and, therefore, in the
event of any such breach, the aggrieved party shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be entitled, at
law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any right,
power or remedy by any party shall not preclude the simultaneous or later
exercise of any other right, power or remedy by such party.
(i) No Waiver. The observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the party against whom such
waiver is sought to be enforced. No waiver by either party of any default with
respect to any provision, condition or requirement hereof shall be deemed to be
a continuing waiver in the future thereof or a waiver of any other provision,
condition or requirement hereof; nor
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shall any delay or omission of either party to exercise any right hereunder in
any manner impair the exercise of any such right accruing to it thereafter.
(j) No Third Party Beneficiaries. This Agreement is not intended
to be for the benefit of, and shall not be enforceable by, any Person that is
not a party hereto.
(k) Several Obligations; Capacity. Notwithstanding anything herein
to the contrary, (i) the representations, warranties, covenants, agreements and
conditions of this Agreement applicable to the Stockholders are several and not
joint, (ii) the covenants and agreements of the Stockholders under this
Agreement shall not require the Representatives of any Stockholder to act (or
refrain from acting) in their capacity as an officer or director of Larscom and
shall not affect the duties and obligations of any Representative of Stockholder
acting in his or her capacity as an officer or director of Larscom and (iii) no
action or failure to take action by any of Stockholder's Representatives in
their capacity as an officer or director of Larscom shall be deemed to be an
action taken by such Stockholder in its capacity as a stockholder of Larscom.
(l) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(m) Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. Any reference in this Agreement to a
statutory provision or rule or regulation promulgated thereunder shall be deemed
to include any similar successor statutory provision or rule or regulation
promulgated thereunder.
(n) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Signature Pages Attached On Following Pages]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
VERILINK CORPORATION
By: /s/ Leigh S. Belden
-----------------------
Name: Leigh S. Belden
Title: President and Chief Executive Officer
STOCKHOLDERS:
AXEL JOHNSON, INC.
By:/s/ Desmond P. Wilson III
-------------------------------
Name: Desmond P. Wilson III
Title: Managing Director
Address: 300 Atlantic Street
Stamford, CT 06901-3530
Tel: (203) 326-5258
Fax: (203) 326-5282
SIERRA VENTURES V, L.P.
By:/s/ Jeffrey M. Drazan
-------------------------------
Name: Jeffrey M. Drazan
Title: General Partner
Address: 2884 Sand Hill Road
Suite 100
Menlo Park, CA 94025
Tel: (650) 854-1000
Fax: (650) 854-5593
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SV ASSOCIATES V, L.P.,
By: /s/ Jeffrey M. Drazan
------------------------------
Name: Jeffrey M. Drazan
Title: General Partner
Address: 2884 Sand Hill Road
Suite 100
Menlo Park, CA 94025
Tel: (650) 854-1000
Fax: (650) 854-5593
SIERRA VENTURES VI, L.P.
By: /s/ Jeffrey M. Drazan
------------------------------
Name: Jeffrey M. Drazan
Title: General Partner
Address: 2884 Sand Hill Road
Suite 100
Menlo Park, CA 94025
Tel: (650) 854-1000
Fax: (650) 854-5593
SV ASSOCIATES VI, L.P.,
By: /s/ Jeffrey M. Drazan
------------------------------
Name: Jeffrey M. Drazan
Title: General Partner
Address: 2884 Sand Hill Road
Suite 100
Menlo Park, CA 94025
Tel: (650) 854-1000
Fax: (650) 854-5593
10
SIERRA VENTURES VII, L.P.
By: /s/ Jeffrey M. Drazan
------------------------------
Name: Jeffrey M. Drazan
Title: General Partner
Address: 2884 Sand Hill Road
Suite 100
Menlo Park, CA 94025
Tel: (650) 854-1000
Fax: (650) 854-5593
SIERRA VENTURES ASSOCIATES VII, LLC
as nominee for its members
By: /s/ Jeffrey M. Drazan
------------------------------
Name: Jeffrey M. Drazan
Title: General Partner
Address: 2884 Sand Hill Road
Suite 100
Menlo Park, CA 94025
Tel: (650) 854-1000
Fax: (650) 854-5593
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EXHIBIT A
IRREVOCABLE PROXY
In order to secure the performance of the duties of the undersigned
pursuant to the Voting Agreement, dated as of April ___, 2004 (the "Voting
Agreement"), between the undersigned and Verilink Corporation, a Delaware
corporation, a copy of such agreement being attached hereto and incorporated by
reference herein, the undersigned hereby irrevocably appoints Leigh S. Belden
and C.W. Smith, and each of them, as the sole and exclusive attorneys, agents
and proxies, with full power of substitution in each of them, for the
undersigned, and in the name, place and stead of the undersigned, to vote (or
cause to be voted), and exercise all voting and related rights or, if
applicable, to give consent, in such manner as each such attorney, agent and
proxy or his/her substitute shall in his/her sole discretion deem proper to
record such vote (or consent) in the manner, and with respect to the matters,
set forth in Section 2 of the Voting Agreement with respect to all of the
Larscom Shares (as such term is defined in the Voting Agreement) of Larscom
Incorporated, a Delaware corporation ("Larscom"), which the undersigned is or
may be entitled to vote at any meeting of Larscom held after the date hereof,
whether annual or special and whether or not an adjourned meeting, or, if
applicable, to give written consent with respect thereto. The Stockholder may
vote the Larscom Shares on all matters not referred to in this proxy and the
attorneys, agents and proxies named above may not exercise this proxy with
respect to such other matters. This proxy is coupled with an interest, shall be
irrevocable and binding on any successor in interest of the undersigned and
shall not be terminated by operation of law upon the occurrence of any event,
including, without limitation, the death or incapacity of the undersigned. This
proxy shall operate to revoke and render void any prior proxy as to the Larscom
Shares heretofore granted by the undersigned, and the undersigned agrees that no
subsequent proxies will be given by the undersigned with respect to any of the
Larscom Shares. This proxy shall terminate upon the termination of the Voting
Agreement. If any provision of this proxy or any part of such provision is held
to be invalid or unenforceable in any circumstances and in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such circumstance
and jurisdiction, be deemed amended to conform to applicable law so as to be
valid and enforceable to the fullest extent possible, and (b) the invalidity or
unenforceability of such provision or part of a provision under such
circumstances and in such jurisdiction shall not affect the validity or
enforceability (i) of such provision or part thereof under any other
circumstance or in any other jurisdiction, (ii) of the remainder of such
provision or (iii) of any other provision of this proxy.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Dated:______________, 2004
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