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EXHIBIT 2.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement"), dated as of November 5,
2004,
is entered into between TechInvest Holding
Company, Inc. ("Parent") and the
stockholder named on the signature page
hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Cypress Communications Holding Co., Inc., a Delaware
corporation (the "Company"), Parent and
TechInvest Acquisition, Inc., a Delaware
corporation and a wholly owned subsidiary
of Parent ("Sub"), have entered into
an Agreement and Plan of Merger, dated as
of the date hereof (as the same may be
amended or supplemented, the "Merger
Agreement"), pursuant to which Sub will be
merged with and into the Company upon the
terms and subject to the conditions
set forth in the Merger Agreement with the
Company continuing as the surviving
corporation and as a wholly owned
subsidiary of Parent (the "Merger");
WHEREAS, the Stockholder is the sole record and beneficial
owner
(including sole voting power) of the shares
of Common Stock set forth on the
signature page hereto (the "Existing
Shares" and, together with any shares of
Common Stock or other voting capital stock
of the Company acquired by
Stockholder after the date hereof, the
"Shares");
WHEREAS, concurrently with the execution and delivery of the
Merger
Agreement and as a condition and inducement
to Parent's willingness to enter
into the Merger Agreement, the Stockholder
has agreed to vote all the Shares
pursuant to the terms and conditions of
this Agreement; and
WHEREAS, capitalized terms used in this Agreement and not
defined
herein shall have the respective meanings
given to such terms in the Merger
Agreement;
NOW, THEREFORE, in consideration of the foregoing and in
consideration
of the mutual covenants and agreements
contained herein and in the Merger
Agreement and intending to be legally
bound, the parties agree as follows:
1.
Voting of Shares. Until the termination of this Agreement in
accordance with the terms hereof, the
Stockholder hereby agrees that, at any
annual, special or other meeting of the
stockholders of the Company, and at any
adjournment or adjournments thereof, and in
connection with any action of the
stockholders of the Company taken by
written consent, the Stockholder will:
(a) appear at
each such meeting or otherwise cause the
Shares owned beneficially or of record by
the Stockholder to be counted as
present at such meeting for purposes of
calculating a quorum; and
(b) (i) unless
Parent votes such Shares directly pursuant
to the proxy granted in Section 2 hereof,
vote (or cause to be voted), in person
or by proxy, or deliver a written consent
with respect to such Shares in favor
of adoption of the Merger Agreement,
approval of
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the Merger and any other action of the
holders of the Common Stock (the "Company
Stockholders") requested in furtherance
thereof; (ii) unless Parent votes such
Shares directly pursuant to the proxy
granted in Section 2 hereof, vote (or
cause to be voted), in person or by proxy,
against, and not deliver any written
consent with respect to such Shares in
favor of (x) any action or agreement
submitted for approval of the Company
Stockholders that would reasonably be
expected to result in a breach of any
covenant, representation or warranty or
any other obligation or agreement of the
Company contained in the Merger
Agreement or of the Stockholder contained
in this Agreement; and (y) any
Acquisition Proposal or any other action,
agreement or transaction submitted for
approval to the Company Stockholders that
is intended, or could reasonably be
expected, to impede, interfere or be
inconsistent with, delay, postpone,
discourage or adversely affect the Merger
or this Agreement, including: (A) any
extraordinary corporate transaction, such
as a merger, consolidation or other
business combination involving the Company
or its Subsidiaries (other than the
Merger); or (B) a sale, lease or transfer
of a material amount of assets of the
Company or any of its Subsidiaries or a
reorganization, recapitalization or
liquidation of the Company or any of its
Subsidiaries.
2.
Proxy.
2.1 The
Stockholder, by this Agreement does hereby constitute and
appoint Parent, or any nominee of Parent,
with full power of substitution,
during and for the Proxy Term (as
hereinafter defined), as Stockholder's true
and lawful attorney and irrevocable proxy,
for and in Stockholder's name, place
and stead, to vote each of the Shares as
Stockholder's proxy, at every meeting
of the Company Stockholders or any
adjournment thereof or in connection with any
written consent of the Company
Stockholders, (i) in favor of approval and
adoption of the Merger Agreement, approval
of the Merger and any other action of
the Company Stockholders requested in
furtherance thereof; (ii) against any
action or agreement submitted for approval
of the Company Stockholders that
would reasonably be expected to result in a
breach of any covenant,
representation or warranty or any other
obligation or agreement of the Company
contained in the Merger Agreement or of the
Stockholder contained in this
Agreement; and (iii) against any
Acquisition Proposal or any other action,
agreement or transaction submitted for
approval to the Company Stockholders that
is intended, or could reasonably be
expected, to impede, interfere or be
inconsistent with, delay, postpone,
discourage or adversely affect the Merger or
this Agreement, including: (A) any
extraordinary corporate transaction, such as
a merger, consolidation or other business
combination involving the Company or
its Subsidiaries (other than the Merger);
or (B) a sale, lease or transfer of a
material amount of assets of the Company or
any of its Subsidiaries or a
reorganization, recapitalization or
liquidation of the Company or any of its
Subsidiaries.
2.2 For
purposes of this Agreement, "Proxy Term" shall mean the
period from the execution of this Agreement
until the termination of this
Agreement in accordance with Section 7.1
hereof.
3.
Acknowledgment of Reliance. Stockholder understands and
acknowledges that Parent is entering into
the Merger Agreement in reliance upon
Stockholder's execution and delivery of
this Agreement.
4. No
Inconsistent Agreements. The Stockholder hereby covenants
and agrees that, except for this Agreement,
the Stockholder (a) has not entered,
and the Stockholder shall not
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enter at any time while this Agreement
remains in effect, into any voting
agreement or voting trust with respect to
the Shares owned beneficially or of
record by the Stockholder and (b) has not
granted, and the Stockholder shall not
grant at any time while this Agreement
remains in effect, a proxy, a consent or
a power of attorney with respect to the
Shares owned beneficially or of record
by the Stockholder, other than the proxy
granted pursuant to Section 2 hereof.
5.
Representations and Warranties of The Stockholder. The
Stockholder hereby represents and warrants
to Parent as follows:
5.1
Authorization; Validity of Agreement; Necessary Action. The
Stockholder has full power and authority to
execute and deliver this Agreement,
to perform its obligations hereunder and to
consummate the transactions
contemplated hereby. The execution,
delivery and performance by the Stockholder
of this Agreement and the consummation by
it of the transactions contemplated
hereby have been duly and validly
authorized by the Stockholder, and no other
actions or proceedings on the part of the
Stockholder are necessary to authorize
the execution and delivery by it of this
Agreement and the consummation by it of
the transactions contemplated hereby. This
Agreement has been duly executed and
delivered by the Stockholder and, assuming
this Agreement constitutes a valid
and binding obligation of Parent,
constitutes a valid and binding obligation of
the Stockholder, enforceable against it in
accordance with its terms, except as
enforceability may be limited by applicable
bankruptcy, insolvency,
reorganization, moratorium or other laws
affecting creditors' rights generally
and to general equity principles.
5.2 Ownership.
The Existing Shares are, and such Existing Shares
and any additional Shares will be, owned
beneficially and of record by the
Stockholder. As of the date hereof, the
number of shares of Common Stock owned
by the Stockholder is listed opposite the
Stockholder's name on the signature
page hereto. As of the date hereof, the
Existing Shares constitute all of the
shares of Common Stock held of record,
owned by or for which voting power or
disposition power is held or shared by the
Stockholder or any of its affiliates
(except for shares owned beneficially and
of record by any affiliates of the
Stockholder that are parties to a Voting
Agreement with Parent in the form of
this Agreement). For purposes of this
Agreement, (i) "affiliates" shall mean
persons controlled by, under the control of
or under common control with
Stockholder and (ii) "control" of a person
or entity shall mean the possession,
directly or indirectly, of the power to
direct the management and policies of
such person or entity, whether through the
ownership of voting securities,
contracts or otherwise. The Stockholder has
and will have at all times through
the Effective Time sole voting power, sole
power of disposition, sole power to
issue instructions with respect to the
matters set forth in Sections 1, 2, 4 and
6 hereof, and sole power to agree to all of
the matters set forth in this
Agreement, in each case with respect to all
of the Existing Shares and with
respect to all of the Shares at the
Effective Time, with no limitations,
qualifications or restrictions on such
rights, subject to applicable federal
securities laws and the terms of this
Agreement. The Stockholder has good and
marketable title to the Existing Shares,
free and clear of any security
interests, liens, claims, pledges, options,
rights of first refusal, agreements,
limitations on voting rights, charges and
encumbrances of any nature whatsoever
("Liens"), and the Stockholder will have
good and marketable title to such
Existing Shares and any additional Shares,
free and clear of any Liens.
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5.3 No
Violation. The execution and delivery of this Agreement by
the Stockholder does not, and the
performance by the Stockholder of its
obligations under this Agreement will not,
(i) conflict with or violate any law,
ordinance or regulation of any Governmental
Entity applicable to the Stockholder
or by which any of its assets or properties
is bound or (ii) conflict with,
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 require
payment under, or require redemption or
repurchase of or otherwise require the
purchase or sale of any securities, or
result in the creation of any Lien on the
properties or assets of 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 any of its assets or p
