Exhibit 10.1
VOTING AGREEMENT
VOTING AGREEMENT, dated July 7, 2005
(this “Agreement”), by and among Paradyne Networks,
Inc., a Delaware corporation (the “Company”), 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
“Parent Common Stock”), of Zhone Technologies, Inc., a
Delaware corporation (“Parent”), set forth opposite
such Stockholder’s name on Schedule A
hereto;
WHEREAS, Parent, Parrot Acquisition
Corp., a Delaware corporation and wholly-owned subsidiary of 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 the Company to enter into the Merger Agreement, and
in order to induce the Company 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 the Company 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 the Company, 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 Parent 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
Parent 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 Parent 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, Parent Common
Stock (“Stockholder Rights”) that are currently
exercisable or convertible or become exercisable or
convertible and any other shares of
Parent 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 Parent 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 the Company is entering into the Merger Agreement
in reliance upon the Stockholder’s execution and delivery of
this Agreement.
Section 2 . Representations and Warranties of the
Company . The Company hereby represents and warrants to the
Stockholders as follows:
(a) The Company is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Company 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
the Company 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 the Company,
enforceable against the Company 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 the Company does not, and the performance of this
Agreement by the Company will not, (i) conflict with the
Certificate of Incorporation or By-laws or similar organizational
documents of the Company as presently in effect, (ii) conflict with
or violate any judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to the Company or by which the
Company 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 the Company under, any
agreement, contract, indenture, note or instrument to which the
Company 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 the Company of its
obligations under this Agreement, or (iv) except for applicable
requirements, if any, of the Exchange Act, the Securities Act or
the HSR Act, require any filing by the Company with, or any permit,
authorization, consent or approval of, any governmental
or
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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 the Company of its 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 Parent Common Stock) to any
person (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 the Company 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) At any meeting of Stockholders
of Parent called to vote upon the Merger, the Merger Agreement, the
issuance of shares of Parent Common Stock pursuant to the Merger or
any other transaction contemplated by the Merger Agreement or at
any adjournment thereof or in any other circumstances upon which a
vote, consent or other approval (including by written consent) with
respect to such matters is sought, each Stockholder shall vote (or
cause to be voted), or shall consent, execute a consent or cause to
be executed a consent in respect of, such Stockholder’s
Shares in favor of the Merger, the adoption by Parent of the Merger
Agreement, the issuance of shares of Parent Common Stock pursuant
to the Merger and the approval of any other transactions
contemplated by the Merger Agreement. At any meeting of
Stockholders of Parent or at
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any adjournment thereof or in any
other circumstances upon which the Stockholder’s vote,
consent or other approval is sought, such Stockholder shall vote
(or cause to be voted) such Stockholder’s Shares against any
amendment of Parent’s certificate of incorporation or by-laws
or other proposal, action or transaction involving Parent or any of
its Subsidiaries, which amendment or other proposal, action or
transaction would in any manner impede, frustrate, prevent or
nullify the Merger, the Merger Agreement, the issuance of shares of
Parent Common Stock pursuant to the Merger or any of the other
transactions contemplated by the Merger Agreement (collectively,
“Frustrating Transactions”).
(d) Such Stockholder agrees to
permit the Company to publish and disclose in the Proxy Statement
and related filings under the secur
