Exhibit 10.2
VOTING AGREEMENT
VOTING AGREEMENT, dated July 7, 2005
(this “Agreement”), by and among Zhone Technologies,
Inc., a Delaware corporation (“Parent”), Parrot
Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Parent (“Merger Sub”), and each of the
persons listed on Schedule A hereto (each a
“Stockholder” and, collectively, the
“Stockholders”).
WHEREAS, each of the Stockholders
is, as of the date hereof, the record and beneficial owner of that
number of shares of Common Stock, par value $0.001 per share (the
“Company Common Stock”), of Paradyne Networks, Inc., a
Delaware corporation (the “Company”), set forth
opposite such Stockholder’s name on Schedule A
hereto;
WHEREAS, Parent, Merger Sub and the
Company concurrently with the execution and delivery of this
Agreement are entering into an Agreement and Plan of Merger, dated
as of the date hereof (as the same may be amended or supplemented,
the “Merger Agreement”), providing for, among other
things, the merger (the “Merger”) of Merger Sub with
and into the Company upon the terms and subject to the conditions
set forth in the Merger Agreement (capitalized terms used and not
otherwise defined herein shall have the meanings attributed thereto
in the Merger Agreement); and
WHEREAS, as a condition to the
willingness of Parent and Merger Sub to enter into the Merger
Agreement, and in order to induce Parent and Merger Sub to enter
into the Merger Agreement, the Stockholders have agreed to enter
into this Agreement.
NOW, THEREFORE, in consideration of
the execution and delivery by Parent and Merger Sub of the Merger
Agreement and the mutual representations, warranties, covenants and
agreements contained herein and therein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
Section 1 . Representations and Warranties of the
Stockholders . Each of the Stockholders hereby represents and
warrants to Parent and Merger Sub, severally and not jointly, as
follows:
(a) Such Stockholder is the
beneficial owner (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) and unless otherwise indicated, the record owner of
the shares of Company Common Stock (as may be adjusted from time to
time pursuant to Section 5 hereof, the “Shares”) set
forth opposite such Stockholder’s name on Schedule A
to this Agreement and such Shares represent all of the shares of
Company Common Stock beneficially owned by such Stockholder as of
the date hereof. For purposes of this Agreement, the term
“Shares” shall include any shares of Company Common
Stock issuable to such Stockholder upon exercise or conversion of
any existing right, contract, option, or warrant to purchase, or
securities convertible into or exchangeable for, Company Common
Stock (“Stockholder Rights”) that are currently
exercisable or convertible or
become exercisable or convertible
and any other shares of Company Common Stock such Stockholder may
acquire or beneficially own during the term of this
Agreement.
(b) Such Stockholder has all
requisite power and authority and, if an individual, the legal
capacity, to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. This Agreement has been
validly executed and delivered by such Stockholder and, assuming
that this Agreement constitutes the legal, valid and binding
obligation of the other parties hereto, constitutes the legal,
valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms (except
insofar as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally, or by principles governing the
availability of equitable remedies).
(c) The execution and delivery of
this Agreement by such Stockholder does not, and the performance of
this Agreement by such Stockholder will not, (i) conflict with the
Certificate of Incorporation or By-laws or similar organizational
documents of such Stockholder as presently in effect (in the case
of a Stockholder that is a legal entity), (ii) conflict with or
violate any judgment, order, decree, statute, law, ordinance, rule
or regulation applicable to such Stockholder or by which it is
bound or affected, (iii)(A) 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, (B) give to any other person any
rights of termination, amendment, acceleration or cancellation of,
or (C) result in the creation of any pledge, claim, lien, charge,
encumbrance or security interest of any kind or nature whatsoever
upon any of the properties or assets of the Stockholder under, any
agreement, contract, indenture, note or instrument to which such
Stockholder is a party or by which it is bound or affected, except
for such breaches, defaults or other occurrences that would not
prevent or materially delay the performance by such Stockholder of
any of such Stockholder’s obligations under this Agreement,
or (iv) except for applicable requirements, if any, of the Exchange
Act, the Securities Act of 1933, as amended (the “Securities
Act”), or the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the “HSR Act”), require any filing by
such Stockholder with, or any permit, authorization, consent or
approval of, any governmental or regulatory authority, except where
the failure to make such filing or obtain such permit,
authorization, consent or approval would not prevent or materially
delay the performance by Stockholder of any of such
Stockholder’s obligations under this Agreement.
(d) The Shares and the certificates
representing the Shares owned by such Stockholder are now and at
all times during the term hereof will be held by such Stockholder,
or by a nominee or custodian for the benefit of such Stockholder,
free and clear of all pledges, liens, charges, 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 or under applicable
federal and state securities laws or under the agreements set forth
on Schedule B hereto.
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Such Stockholder owns of record or
beneficially no shares of Company Common Stock other than such
Stockholder’s Shares.
(e) As of the date hereof, neither
such Stockholder, nor any of its respective properties or assets is
subject to any order, writ, judgment, injunction, decree,
determination or award that would prevent or delay the consummation
of the transactions contemplated hereby.
(f) Such Stockholder understands and
acknowledges that Parent is entering into, and causing Merger Sub
to enter into, the Merger Agreement in reliance upon the
Stockholder’s execution and delivery of this
Agreement.
Section 2 . Representations and Warranties of Parent
and Merger Sub . Parent and Merger Sub hereby jointly and
severally represent and warrant to the Stockholders as
follows:
(a) Each of Parent and Merger Sub is
a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. Each of Parent and Merger
Sub has all requisite power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement. This Agreement has been duly
executed and delivered by each of Parent and Merger Sub and,
assuming that this Agreement constitutes the legal, valid and
binding obligation of the other parties hereto, constitutes the
legal, valid and binding obligation of each of Parent and Merger
Sub, enforceable against each of them in accordance with its terms
(except insofar as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally, or by principles
governing the availability of equitable remedies).
(b) The execution and delivery of
this Agreement by each of Parent and Merger Sub does not, and the
performance of this Agreement by each of Parent and Merger Sub will
not, (i) conflict with the Certificate of Incorporation or By-laws
or similar organizational documents of each of Parent and Merger
Sub as presently in effect, (ii) conflict with or violate any
judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Parent or Merger Sub or by which either is
bound or affected, (iii) (A) 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, (B) give to others any rights of
termination, amendment, acceleration or cancellation of, or (C)
result in the creation of any pledge, claim, lien, charge,
encumbrance or security interest of any kind or nature whatsoever
upon any of the properties or assets of Parent or Merger Sub under,
any agreement, contract, indenture, note or instrument to which
Parent or Merger Sub is a party or by which it is bound or
affected, except for such breaches, defaults or other occurrences
that would not prevent or materially delay the performance by
Parent or Merger Sub of their obligations under this Agreement, or
(iv) except for applicable
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requirements, if any, of the
Exchange Act, the Securities Act or the HSR Act, require any filing
by Parent or Merger Sub with, or any permit, authorization, consent
or approval of, any governmental or regulatory authority, except
where the failure to make such filing or obtain such permit,
authorization, consent or approval would not prevent or materially
delay the performance by Parent or Merger Sub of their obligations
under this Agreement.
Section 3 . Covenants of the Stockholders . Each of
the Stockholders, severally and not jointly, agrees as
follows:
(a) Such Stockholder shall not,
except as contemplated by the terms of this Agreement, sell,
transfer, pledge, assign or otherwise dispose of, or enter into any
contract, option or other arrangement (including any profit-sharing
arrangement) or understanding with respect to the sale, transfer,
pledge, assignment or other disposition of, the Shares (including
any options or warrants to purchase Company Common Stock) to any
person other than Merger Sub or Merger Sub’s designee (any
such action, a “Transfer”). For purposes of
clarification, the term “Transfer” shall include,
without limitation, any short sale (including any “short sale
against the box”), pledge, transfer, and the establishment of
any open “put equivalent position” within the meaning
of Rule 16a-1(h) under the Exchange Act. Notwithstanding the
foregoing, (i) Transfers of Shares as bona fide gifts, (ii)
distributions of Shares to partners, members, stockholders,
subsidiaries, affiliates, affiliated partnerships or other
affiliated entities of the undersigned, (iii) Transfers of Shares
by will or intestacy, and (iv) Transfers of Shares to (A) the
undersigned’s immediate family or (B) a trust, the
beneficiaries of which are the undersigned and/or members of the
undersigned’s immediate family, shall not be prohibited by
this Agreement; provided that in the case of any such transfer or
distribution pursuant to clause (i), (ii), (iii) or (iv), each
donee or distributee shall execute and deliver to Parent a valid
and binding counterpart to this Agreement.
(b) Such Stockholder shall not,
except as contemplated by the terms of this Agreement (i) enter
into any voting arrangement, whether by proxy, voting agreement,
voting trust, power-of-attorney or otherwise, with respect to the
Shares or (ii) take any other action that would in any way
restrict, limit or interfere with the performance of his/her
obligations hereunder or the transactions contemplated hereby or
make any representation or warranty of such Stockholder herein
untrue or incorrect in any material respect.
(c) Until the Merger is consummated
or this Agreement is terminated, except to the extent specifically
permitted by the Merger Agreement, such Stockholder shall not, and
shall use its reasonable best efforts to cause any investment
banker, financial adviser, attorney, accountant or other
representative or agent of such Stockholder not to, directly or
indirectly (i) solicit, initiate, knowingly encourage or take any
other action designed to, or which could reasonably be expected to,
facilitate an Acquisition Proposal or the making, submission or
announcement of, any Acquisition Proposal or (ii) participate
or
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engage in any discussions or
negotiations regarding, or furnish to any person any nonpublic
information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes or may
reasonably be expected to lead to, any Acquisition Proposal or
(iii)
