EXHIBIT 2.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made as of the 28th day of
April, 2004, by and between Larscom Incorporated, a Delaware corporation
("Larscom"), 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 Verilink Corporation, a Delaware corporation ("Verilink"),
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 "Verilink Shares"); and
WHEREAS, Larscom, Verilink and Larscom 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, Larscom 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 Verilink 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 Verilink Common
Stock, however called, or in connection with any written consent of the holders
of Verilink Common Stock, vote (or cause to be voted) the Verilink 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 Verilink Voting Proposal, including the Merger, the
Merger Agreement and the transactions contemplated thereby, (ii) against
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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 Verilink 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 Larscom an irrevocable proxy
in the form of Exhibit A hereto, and irrevocably appoints Larscom 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 Verilink 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 Larscom 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 Verilink Shares heretofore granted by the Stockholders. Such proxy shall
terminate upon the Voting Expiration Date. Each Stockholder shall promptly cause
to be delivered to Larscom an additional proxy substantially in the form
attached hereto as Exhibit A executed on behalf of the record owner of any
outstanding shares of Verilink 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 Larscom as follows:
(a) Ownership of Verilink Shares. Stockholder is the record and
beneficial owner of the Verilink Shares set forth on Schedule 1 hereto. On the
date hereof, the Verilink Shares constitute all of the capital stock of Verilink
that Stockholder has the right to vote with respect to the Verilink 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 Verilink 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 Verilink Shares and the certificates
representing such Verilink 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
Verilink, 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 Verilink, (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 Verilink, except
discussions as to the existence of these provisions, (C) approve,
endorse or recommend any Acquisition Proposal with respect to Verilink
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 Verilink.
(ii) Stockholder shall immediately advise Larscom orally,
with written confirmation to follow within 48 hours, of any Acquisition
Proposal with respect to Verilink 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 Verilink, 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 Larscom. Stockholder understands and acknowledges
that Larscom 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 Verilink Shares, any options or warrants
to purchase capital stock of Verilink or any interest therein or deposit any of
the Verilink Shares into a voting trust or enter into a voting trust agreement
or arrangement with respect to the Verilink Shares, or take any other action
with respect to the Verilink 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 Verilink
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 Larscom'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 Verilink's transfer agent against the transfer of any Verilink
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
Verilink or any other Person register the transfer (by book-entry or otherwise)
of any certificate or uncertificated interest representing any of such
Stockholder's Verilink Shares, unless such transfer is made in compliance with
this Agreement and unless the transferee agrees in writing, in form and
substance satisfactory to Larscom, to be bound by the provisions hereof for the
benefit of Larscom.
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 Verilink, 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 Larscom or Verilink or
(b) any direct or indirect rights or options to acquire any capital stock of
Larscom or Verilink, (c) any merger, consolidation, tender or exchange offer, or
other business combination involving Larscom or Verilink.
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 Verilink's Representatives) without the prior written consent
of Larscom, 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 Larscom 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 Larscom any direct or indirect ownership or incidence
of ownership of or with respect to any Verilink Shares. All rights, ownership
and economic benefits of and relating to the Verilink Shares shall remain vested
in and belong to the Stockholders, and Larscom shall have no authority to
manage, direct, superintend, restrict, regulate, govern, or administer any of
the policies or operations of Verilink or exercise any power or authority to
direct the Stockholders in the voting of any of the Verilink Shares, except as
otherwise provided herein.
10. 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 Verilink Shares and shall be binding upon any
Person to which record or beneficial ownership of such Verilink Shares shall
pass, whether by operation of law or otherwise. Notwithstanding any transfer of
Verilink 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):
If to Larscom:
Larscom Incorporated
1845 McCandless Drive
Milpitas, California 95035
Attn: Chief Executive Officer
with a copy to:
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Cooley Godward LLP
One Maritime Plaza
20th Floor
San Francisco, California 94111
Attention: Jamie E. Chung, Esq.
Facsimile No.: (415) 951-3699
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 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
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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 Stockholder or Stockholder's Representatives to act (or refrain from
acting) in their capacity as an officer or director of Verilink and shall not
affect the duties and obligations of Stockholder or Stockholder's
Representatives acting in his capacity as an officer or director of Verilink and
(iii) no action or failure to take action by any Stockholder or Stockholder's
Representatives in his capacity as an officer or director of Verilink shall be
deemed to be an action taken by such Stockholder in his capacity as a
stockholder of Verilink.
(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 Page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
LARSCOM INCORPORATED
By: /s/ Daniel L. Scharre
-----------------------
Name: Daniel L. Scharre
Title: President and Chief Executive Officer
STOCKHOLDERS:
LEIGH S. BELDEN
/s/ Leigh S. Belden
- -------------------
Address: 127 Jetplex Circle
Madison, Alabama
Tel: (256) 327-2300
Fax: (256) 327-2521
BELTECH, INC.
By: /s/ Leigh S. Belden
-------------------
Name: Leigh S. Belden
Title: President
Address: 127 Jetplex Circle
Madison, Alabama
Tel: (256) 327-2300
Fax: (256) 327-2521
LEIGH S. BELDEN AND DEBORAH TINKER BELDEN, OR THEIR SUCCESSORS, TRUSTEES U/A
DATED 12/09/88
By: /s/ Leigh S. Belden
--------------------
Name: Leigh S. Belden
Title: Trustee
Address: 127 Jetplex Circle
Madison, Alabama
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Tel: (256) 327-2300
Fax: (256) 327-2521
STEVEN C. TAYLOR
/s/ Steven C. Taylor
- --------------------
Address: 127 Jetplex Circle
Madison, Alabama
Tel: (256) 327-2001
Fax: (256) 327-2521
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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 28, 2004 (the "Voting
Agreement"), between the undersigned and Larscom Incorporated, a Delaware
corporation, a copy of such agreement being attached hereto and incorporated by
reference herein, the undersigned hereby irrevocably appoints Daniel L. Scharre
and Donald W. Morgan, 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
Verilink Shares (as such term is defined in the Voting Agreement) of Verilink
Corporation, a Delaware corporation ("Verilink"), which the undersigned is or
may be entitled to vote at any meeting of Verilink 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 Verilink 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 Verilink
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
Verilink 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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