VOTING AGREEMENT
----------------
THIS VOTING AGREEMENT (this "AGREEMENT") is made this 13th day
of December, 1999, by and among Robert C. Penny III and Melvin J. Simon (the
"TRUSTEES"), as trustees pursuant to a Voting Trust Agreement dated February 23,
1994, as amended (the "VOTING TRUST"), among Messrs. Penny and Simon, as
trustees, and certain stockholders of Westell Technologies, Inc., a Delaware
Corporation ("PARENT"), Robert C. Penny III, individually and as trustee of any
Holder (as defined in the Voting Trust) under the Voting Trust, Melvin J. Simon,
individually and as trustee of any Holder (as defined in the Voting Trust) under
the Voting Trust, and Teltrend Inc., a Delaware corporation (the "COMPANY").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement, an Agreement and Plan of Merger (as such agreement may be amended
from time to time, the "MERGER AGREEMENT") is being entered into by and among
the Company, Parent and Theta Acquisition Corp., a Delaware corporation
("SUBSIDIARY"), pursuant to which Subsidiary has agreed to merge with and into
the Company, with the Company continuing as the surviving corporation (the
"MERGER");
WHEREAS, in connection with the Merger Agreement, the
stockholders of Parent must approve the issuance of Parent Stock (as such term
and each other capitalized term used and not otherwise defined herein is defined
in the Merger Agreement) in connection with the Merger (the "PARENT STOCK
ISSUANCE ") and the amendment to Parent's Amended and Restated Certificate of
Incorporation to increase the number of authorized shares of Parent Stock (the
"PARENT CHARTER AMENDMENT");
WHEREAS, the affirmative vote of stockholders of Parent
required for approval of (i) the Parent Stock Issuance, is a majority of the
total votes cast thereon, in person or by proxy at a meeting of such
stockholders, by holders of Parent Stock and Parent Class B Common Stock, voting
together as a single class, and (ii) the Parent Charter Amendment, is a majority
of the voting power of the outstanding shares of Parent Stock and Parent Class B
Common Stock, voting together as a single class; and
WHEREAS, as a condition to, and in consideration for, the
Company's willingness to enter into the Merger Agreement and to consummate the
transactions contemplated thereby, the Company has required that the
Stockholders (as defined below) enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements contained herein,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
"PARENT SECURITIES" shall mean the Parent Stock and Parent
Class B Common Stock.
"PERMITTED TRANSFER" means the transfer by any Stockholder of
Parent Class B Common Stock in a transaction pursuant to which either (i) such
shares of Parent Class B Common Stock (A) are converted into shares of Parent
Stock pursuant to the provisions of the Amended and Restated Certificate of
Incorporation, as amended, of Parent in effect as of the date hereof and (B) are
transferred to an Unaffiliated Person, or (ii) such shares of Parent Class B
Common Stock are transferred to a Person who prior to such transfer agrees in
writing to become a Stockholder hereunder and to assume, observe and perform all
agreements, restrictions and limitations contained in this Agreement with
respect to such shares (and any shares into which they are converted pursuant to
such transfer or otherwise), except that such Person shall not be required to
make the representations and warranties contained in Section 4 hereof.
"PERSON" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
"SHARES" shall mean (i) 18,651,622 shares of Parent Class B
Common Stock held by the Trustees pursuant to the Voting Trust (the "TRUST
SHARES"), (ii) all other Parent Securities which any Stockholder owns or has or
shares the power to vote or cause to be voted of as of the date hereof (which
Parent Securities are set forth on SCHEDULE I hereto), (iii) any shares of
Parent Securities distributed prior to the termination of this Agreement in
respect of the shares described in the foregoing clauses (i) or (ii) by reason
of a stock dividend, split-up, recapitalization, reclassification, combination,
merger, exchange of shares or otherwise, and (iv) any other shares of the Parent
Securities of which any Stockholder acquires the power to vote or cause to be
voted, either directly or indirectly, prior to the Effective Time.
"STOCKHOLDERS" shall mean (i) the Trustees in their capacities
as trustees of the Voting Trust, (ii) Robert C. Penny III, in his individual
capacity and as trustee of any Holder under the Voting Trust, (iii) Melvin J.
Simon, in his individual capacity and as trustee of any Holder under the Voting
Trust, and (iv) any Person who becomes a Stockholder pursuant to clause (ii) of
the definition of Permitted Transfers.
"UNAFFILIATED PERSONS" shall mean all Persons who are not (i)
the Stockholders, (ii) directors of Parent, (iii) officers (as such term is
defined in Rule 405 under the Securities Act of 1933, as amended, as in effect
as of the date hereof) of Parent, or (iv) members of the family of any
Stockholder.
2. AGREEMENT TO VOTE SHARES. The Stockholders shall, at any
meeting of the holders of any class or classes of Parent Securities, however
such meeting is called and regardless of whether such meeting is a special or
annual meeting of the stockholders of Parent, or in connection with any written
consent of the stockholders of
Parent, vote (or cause to be voted) the Shares in favor of the Parent Stock
Issuance, the Parent Charter Amendment and each of the other actions
contemplated by the Merger Agreement, if, in the case of such matter, a majority
of the votes cast with respect to such matter by holders of Parent Stock who are
Unaffiliated Persons are voted in favor of such matter. Nothing contained herein
shall be construed as to prevent or prohibit the Stockholders from voting in
favor of any such matter if the condition described in the immediately
preceeding sentence is not satisfied.
3. COVENANTS OF THE STOCKHOLDERS. Each Stockholder hereby
agrees and covenants that:
(a) Restriction on Transfers. Except as may otherwise be
agreed by the Company and except for Permitted Transfers, the Stockholder shall
not (i) transfer, or consent to any transfer of, any or all of the Shares, or
any interest therein if such transfer would result in the Stockholder no longer
having the power to vote or cause to be voted the Shares or (ii) enter into any
contract, option or other agreement or understanding with respect to any such
transfer of any or all of the Shares, or any interest therein. As used herein,
the term "TRANSFER", when used as a verb, means to sell, pledge, assign,
encumber, dispose of or otherwise transfer (including by merger, testamentary
disposition, interspousal disposition pursuant to a domestic relations
proceeding or otherwise or other transfer by operation of law), or, when used as
a noun, means a sale, pledge, assignment, encumbrance, disposition, or other
transfer (including a merger, testamentary disposition, interspousal disposition
pursuant to a domestic relations proceeding or otherwise or other transfer by
operation of law).
(b) Restrictions on Proxies and Voting Arrangements. Except as
otherwise expressly provided herein, the Stockholder shall not: (i) grant any
proxy, power-of-attorney or other authorization in or with respect to the
Shares; (ii) deposit the Shares into a voting trust (other than the Voting
Trust) or enter into a voting agreement or arrangement with respect to the
Shares (other than the Voting Trust); or (iii) amend, revoke or terminate, or
consent to the amendment, revocation or termination of, the Voting Trust in any
manner that would impair the ability of any Stockholder to perform the
agreements contained herein or otherwise be inconsistent with the provisions
hereof or the transactions contemplated hereby.
(c) Stop Transfer. The Stockholder shall not request that
Parent register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares, unless such transfer is
made in compliance with this Agreement.
(d) No Inconsistent Arrangements. The Stockholder shall not
take any other action that would in any way restrict, limit or interfere with
the performance of the Stockholder's obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement.
4. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. Each
Stockholder hereby represents and warrants to the Company as follows:
(a) Ownership of Securities . On the date hereof, the
Stockholder owns, directly or indirectly, or has the power to direct the voting
of (either individually or together with another Stockholder), (i) the Trust
Shares and (ii) the Parent Securities set forth next to the Stockholder's name
on Schedule I hereto (the "OTHER SHARES"). The Trust Shares are owned of record
by the Trustees, as trustees under the Voting Trust, and the Other Shares are
owned of record by the Stockholders (as set forth on Schedule I). On the date
hereof, the Trust Shares and Other Shares constitute all of the shares of voting
capital stock of Parent owned of record or otherwise by such Stockholder or as
to which such Stockholder has or shares the power to direct the voting of the
shares. Each Stockholder has (or shares with another Stockholder) sole voting
power and sole power to issue instructions with respect to the matters set forth
in Section 2 hereof, sole power of disposition, sole power of conversion, sole
power (if any) to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of such
Stockholder's Shares with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. The Stockholder has the power
and authority to enter into and perform all of the Stockholder's obligations
under this Agreement. Any proxies heretofore given in respect to the Shares are
not irrevocable, and any such proxies are hereby revoked. The execution,
delivery and performance of this Agreement by the Stockholder will not violate
any other agreement to which the Stockholder is a party including, without
limitation, the Voting Trust. There are no other voting agreements, proxy
arrangements, pledge agreements, shareholders agreements, voting trusts or trust
agreements in respect of any of the Trust Shares or Other Shares. This Agreement
has been duly and validly executed and delivered by the Stockholder and
constitutes a valid and binding agreement of the Stockholder, enforceable
against the Stockholder in accordance with its terms, except as the
enforceability thereof may be limited by (a) applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect that affect the enforcement
of creditors rights generally or (b) general principles of equity, whether
considered in a proceeding at law or in equity. There is no Person, including
without limitation a beneficiary or holder of a voting trust certificate or
other interest of any trust of which the Stockholder is a trustee, whose consent
is required for the execution and delivery of this Agreement or the compliance
by the Stockholder with the terms hereof.
(c) No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any governmental entity or regulatory
authority is required for the execution of this Agreement by the Stockholder and
the consummation by the Stockholder of the transactions contemplated hereby.
None of the execution and delivery of this Agreement by the Stockholder, the
consummation by the Stockholder of the transactions contemplated hereby or
compliance by the Stockholder with any of the provisions hereof shall (A)
conflict with, or result in any breach of, any organizational documents
applicable to the Stockholder (including the Voting Trust), (B) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) 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 the Stockholder is a party or by
which the Stockholder or any of the Stockholder's properties or assets may be
bound, or (C) violate any order, writ, injunction, decree, judgment, order,
statute, arbitration award, rule or regulation applicable to the Stockholder or
any of the Stockholder's properties or assets.
(d) No Liens. Except as established hereby, the Trust Shares
and Other Shares are now and, at all times during the term hereof, will be held
by the Stockholder, or by a nominee or custodian for the benefit of the
Stockholder, free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever.
5. TERMINATION. Except for Section 6(c) hereof (which shall
survive any termination of this Agreement), this Agreement and the covenants,
representations and warranties and agreements contained herein or granted
pursuant hereto shall terminate upon the earlier to occur of (i) the termination
of the Merger Agreement in accordance with Article IX thereof and (ii) the
consummation of the transactions contemplated by the Merger Agreement. Upon any
termination of this Agreement, this Agreement shall thereupon become void and of
no further force and effect, and there shall be no liability in respect of this
Agreement or of any transactions contemplated hereby on the part of any party
hereto; provided, however, that nothing herein shall relieve any party from any
liability for such party's willful breach of this Agreement.
6. MISCELLANEOUS.
(a) Specific Performance. Each party hereto recognizes and
agrees that if for any reason any of the provisions of this Agreement are not
performed by the other parties in accordance with their specific terms or are
otherwise breached, immediate and irreparable harm or injury would be caused to
the non-breaching parties for which money damages would not be an adequate
remedy. Accordingly, the parties agree that, in addition to any other available
remedies, the non-breaching parties shall be entitled to an injunction
restraining any violation or threatened violation of the provisions of this
Agreement without the necessity of the non-breaching parties posting a bond or
other form of security. In the event that any action should be brought in equity
to enforce the provisions of this Agreement, the breaching party will not
allege, and the breaching party hereby waives the defense, that there is an
adequate remedy at law.
(b) Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of this Agreement
in any other jurisdiction. Without limiting the foregoing, with respect to any
provision of this Agreement, if it is determined by a court of competent
jurisdiction to be excessive as to duration or scope, it is the parties'
intention that such provision nevertheless be enforced to the fullest extent
which it may be enforced.
(c) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ACTIONS OF PARENT, THE COMPANY, OR SUBSIDIARY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
(d) Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject matter hereof.
(e) Descriptive Headings; Interpretation. The descriptive
headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement.
(f) Assignment; Binding Agreement. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto without the prior written consent of the other parties
hereto; provided, however, that the Company shall be permitted to assign, in
whole or in part, this Agreement or any of the rights, interests or obligations
hereunder to any of its subsidiaries or Affiliates. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by and against the
parties hereto and their respective heirs, legal representatives, successors and
permitted assigns. Nothing in this Agreement, express or implied, is intended to
confer on any other Person other than the parties hereto, and their respective
heirs, legal representatives, successors and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
(g) Amendment, Modification and Waiver. This Agreement may not
be amended, modified or waived except by an instrument or instruments in writing
signed and delivered on behalf of the party hereto against whom such amendment,
modification or waiver is sought to be entered.
(h) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Voting
Agreement executed as of the day and year first above written.
/s/ Robert C. Penny III
Robert C. Penny III, as Trustee pursuant to
that certain Voting Trust Agreement dated
February 23, 1994, as amended among
Robert C. Penny III and Melvin J. Simon
as Trustees, and certain stockholders of Parent
/s/ Melvin J. Simon
Melvin J. Simon, as Trustee pursuant to that
certain Voting Trust Agreement dated February
23, 1994, as amended among Robert C. Penny,
III and Melvin J. Simon as
Trustees, and certain stockholders
of Parent
TELTREND INC.
By: /s/ Douglas P. Hoffmeyer
Name: Dougplas P. Hoffmeyer
Title: Sr. Vice President, Finance
/s/ Robert C. Penny III
Robert C. Penny III, in the capacities specified
herein
/s/ Melvin J. Simon
Melvin J. Simon, in the capacities specified
herein
SCHEDULE I
OTHER SHARES
Name Shares
- ---- ------
Robert C. Penny III 0 Shares
Melvin J. Simon 256,286 Shares of Parent Class B Common
Stock held in trust for the benefit of
Makayla G. Penny
2,000 Shares of Parent Stock held in trust for
the benefit of Makayla G. Penny