EXHIBIT 10.23
VOTING AGREEMENT
VOTING AGREEMENT, dated as of March 20 2005 (this "AGREEMENT"), by
and among Verilink Corporation, a Delaware corporation (the "COMPANY"), and
___________ (the "STOCKHOLDER").
WHEREAS, the Company and certain investors (each, an "INVESTOR", and
collectively, the "INVESTORS") have entered into a Securities Purchase
Agreement, dated as of the date hereof (the "SECURITIES PURCHASE AGREEMENT"),
pursuant to which, among other things, the Company has agreed to issue and sell
to the Investors and the Investors have, severally but not jointly, agreed to
purchase (i) senior secured convertible notes of the Company (the "NOTES"),
which Notes shall be convertible into the Company's common stock, $.01 par value
per share (the "COMMON STOCK"), (ii) warrants to purchase shares of Common Stock
and (iii) a right to acquire additional Notes.
WHEREAS, as of the date hereof, the Stockholder owns shares of
Common Stock, which represents (i) approximately [ %] of the total issued and
outstanding Common Stock of the Company, and (ii) approximately [ %] of the
total voting power of the Company;
WHEREAS, as a condition to the willingness of the Investors to enter
into the Securities Purchase Agreement and to consummate the transactions
contemplated thereby (collectively, the "TRANSACTION"), the Investors have
required that the Stockholder agree, and in order to induce the Investors to
enter into the Securities Purchase Agreement, the Stockholder has agreed, to
enter into this Agreement with respect to all the Common Stock now owned and
which may hereafter be acquired by the Stockholder and any other securities, if
any, which Stockholder is currently entitled to vote, or after the date hererof
becomes entitled to vote, at any meeting of the stockholders of the Company (the
"OTHER SECURITIES").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING AGREEMENT OF THE STOCKHOLDER
SECTION 1.01. Voting Agreement. Subject to the last sentence of this
Section 1.01, the Stockholder hereby agrees that at any meeting of the
stockholders of the Company, however called, and in any action by written
consent of the Company's stockholders, the Stockholder shall vote the Common
Stock and the Other Securities: (a) in favor of the Stockholder Approval (as
defined in the Securities Purchase Agreement) as described in Section 4(r) of
the Securities Purchase Agreement; and (b) against any proposal or any other
corporate action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Transaction Documents (as defined in the Securities Purchase
Agreement) or which could result in any of the conditions to the Company's
obligations under the Transaction Documents not being fulfilled. The Stockholder
acknowledges receipt and review of a copy of the Securities Purchase Agreement
and the other Transaction Documents. The obligations of the Stockholder under
this Section 1.01 shall terminate immediately following the occurrence of the
Stockholder Approval.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to the Company and
each of the Investors as follows:
SECTION 2.01. Authority Relative to this Agreement. The Stockholder
has the capacity to execute and deliver this Agreement, to perform his
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the Stockholder and
constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms, except (a) as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws now or
hereafter in effect relating to, or affecting generally, the enforcement of
creditors' and other obligees' rights and (b) where the remedy of specific
performance or other forms of equitable relief may be subject to certain
equitable defenses and principles and to the discretion of the court before
which the proceeding may be brought.
SECTION 2.02. No Conflict. (a) The execution and delivery of this
Agreement by the Stockholder does not, and the performance of this Agreement by
the Stockholder shall not, (i) conflict with or violate any federal, state or
local law, statute, ordinance, rule, regulation, order, judgment or decree
applicable to the Stockholder or by which the Common Stock or the Other
Securities owned by the Stockholder are bound or affected or (ii) result in any
breach of or constitute a default (or an event that with notice or lapse of time
or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the Common Stock or the Other
Securities owned by the Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Stockholder is a party or by which the
Stockholder or the Common Stock or Other Securities owned by the Stockholder is
bound.
(b) The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental entity by the Stockholder.
SECTION 2.03. Title to the Stock. As of the date hereof, the
Stockholder is the owner of [________] shares of Common Stock, entitled to vote,
without restriction, on all matters brought before holders of capital stock of
the Company, which Common Stock represents on the date hereof approximately [ %]
of the outstanding stock and approximately [ %] of the voting power of the
Company. Such Common Stock is all the securities of the Company owned, either of
record or beneficially, by the Stockholder. Such Common Stock is owned free and
clear of all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on the Stockholder's voting rights,
charges and other
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encumbrances of any nature whatsoever. The Stockholder has not appointed or
granted any proxy, which appointment or grant is still effective, with respect
to the Common Stock or Other Securities owned by the Stockholder.
ARTICLE III
COVENANTS
SECTION 3.01. No Disposition or Encumbrance of Stock. Until
Stockholder Approval, the Stockholder hereby covenants and agrees that the
Stockholder shall not offer or agree to sell, transfer, tender, assign,
hypothecate or otherwise dispose of, grant a proxy or power of attorney with
respect to, or create or permit to exist any security interest, lien, claim,
pledge, option, right of first refusal, agreement, limitation on Stockholder's
voting rights, charge or other encumbrance of any nature whatsoever
("ENCUMBRANCE") with respect to the Common Stock or Other Securities, directly
or indirectly, or initiate, solicit or encourage any person to take actions
which could reasonably be expected to lead to the occurrence of any of the
foregoing.
SECTION 3.02. Company Cooperation. The Company hereby covenants and
agrees that it will not, and the Stockholder irrevocably and unconditionally
acknowledges and agrees that the Company will not (and waives any rights against
the Company in relation thereto), recognize any Encumbrance or agreement on any
of the Common Stock or Other Securities subject to this Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Further Assurances. The Stockholder shall execute and
deliver such further documents and instruments and take all further action as
may be reasonably necessary in order to consummate the transactions contemplated
hereby.
SECTION 4.02. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that any Investor (without
being joined by any other Investor) shall be entitled to specific performance of
the terms hereof, in addition to any other remedy at law or in equity. Any
Investor shall be entitled to its reasonable attorneys' fees in any action
brought to enforce this Agreement in which it is the prevailing party.
SECTION 4.03. Entire Agreement. This Agreement constitutes the
entire agreement among the Company and the Stockholder (other than the
Securities Purchase Agreement and the other Transaction Documents to which the
Stockholder is a party) with respect to the subject matter hereof and supersedes
all prior agreements and understandings, both written and oral, among the
Company and the Stockholder with respect to the subject matter hereof.
SECTION 4.04. Amendment. This Agreement may not be amended except by
an instrument in writing signed by the parties hereto.
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SECTION 4.05. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
SECTION 4.06. Governing Law. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by the internal laws of the State of Delaware, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of Delaware or any other jurisdictions) that would cause the application of the
laws of any jurisdictions other than the State of Delaware. The parties hereby
agree that all actions or proceedings arising directly or indirectly from or in
connection with this Agreement shall be litigated only in the Supreme Court of
the State of New York or the United States District Court for the Southern
District of New York located in New York County, New York. The parties consent
to the jurisdiction and venue of the foregoing courts and consent that any
process or notice of motion or other application to any of said courts or a
judge thereof may be served inside or outside the State of New York or the
Southern District of New York by registered mail, return receipt requested,
directed to the party being served at its address set forth on the signature
ages to this Agreement (and service so made shall be deemed complete three (3)
days after the same has been posted as aforesaid) or by personal service or in
such other manner as may be permissible under the rules of said courts. Each of
the Company and the Stockholder irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such suit, action, or proceeding brought in such a court and
any claim that suit, action, or proceeding has been brought in an inconvenient
forum. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES
NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
SECTION 4.07. Third-Party Beneficiaries. The Investors shall be
intended third party beneficiaries of this Agreement to the same extent as if
they were parties hereto, and shall be entitled to enforce the provisions
hereof.
SECTION 4.08. Termination. This Agreement shall terminate
immediately following the occurrence of the Stockholder Approval or upon the
mutual consent of the Stockholder and the Investors holding at least a majority
of the aggregate principal amount of Notes outstanding.
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IN WITNESS WHEREOF, the Stockholder and the Company has duly executed this
Agreement.
COMPANY:
VERILINK CORPORATION
By: _______________________________
Name:
Title:
Address: 11551 E. Arapahoe Rd.,
Suite 150
Centennial, Colorado 80112
STOCKHOLDER:
__________________________________
Print Name:
Address: