1
Exhibit (c)(3)
SHAREHOLDER AGREEMENT (YP)
THIS SHAREHOLDER AGREEMENT dated as of March 1, 1999 (this
"Agreement") is by and among Alcatel, a French corporation ("Parent"), Zeus
Acquisition Corp. a California corporation ("Purchaser"), Xxxx Xxxxxxx
("Shareholder"), and Xxxxxxx 1995 Irrevocable Trust, Xxxxxxx Trust, Xxxxxxx
Irrevocable Children's Trust (collectively, the "Trusts" and, for all purposes
under this Agreement other than Sections 10 and 12, "Shareholder" shall include
the Trusts).
W I T N E S S E T H:
WHEREAS, simultaneously with the execution of this Agreement,
Parent, Purchaser and Xylan Corporation, a California corporation (the
"Company"), have entered into an Agreement and Plan of Merger (as amended from
time to time, the "Merger Agreement"), pursuant to which Purchaser has agreed,
among other things, to commence a cash tender offer (as such tender offer may
hereafter be amended from time to time, the "Offer") to purchase all shares of
common stock, $.001 par value, of the Company (the "Company Common Stock");
WHEREAS, as an inducement and a condition to its entering into the
Merger Agreement and incurring the obligations set forth therein, including the
Offer and the Merger, Parent has required that Shareholder enter into this
Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained herein
and in the Merger Agreement, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Certain Definitions. Capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement. In
addition, for purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any Person
that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the Person specified; including,
without limitation, any partnership or joint venture in which the Person
specified (either alone, or through or together with any other subsidiary) has,
directly or indirectly, an interest of 10% or more. For purposes of this
Agreement, with respect to Shareholder, "Affiliate" shall not include the
Company and the Persons that directly, or indirectly through one or more
intermediaries, are controlled by the Company.
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3
2
under the Exchange Act ), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all Affiliates of such Person and
all other Persons with whom such Person would constitute a "group" within the
meaning of Section 13(d) of the Exchange Act and the rules promulgated
thereunder.
"Covered Shares" means the Owned Shares and the Shares Under Option.
"Encumbrances" shall mean any and all liens, charges, security
interests, options, claims, mortgages, pledges, proxies, voting trusts or
agreements, obligations, understandings or arrangements or other restrictions of
any nature whatsoever.
"Owned Shares" means all the shares of Company Common Stock
Beneficially Owned by Shareholder on the date hereof (other than Shares Under
Option), including the shares listed on Annex I attached hereto, and any other
securities of the Company entitled, or which may be entitled, to vote generally
in the election of directors that are Beneficially Owned by Shareholder.
"Person" means an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
"Representative" means, with respect to any Person, such Person's
officers, directors, employees, agents and representatives (including any
investment banker, financial advisor, agent, representative or expert retained
by or acting on behalf of such Person or its subsidiaries).
"Shares Under Option" means all the shares of Company Common Stock
that are subject to options, securities convertible into exchangeable or
exercisable for any such shares, or any Voting Debt of the Company Beneficially
Owned by Shareholder, including those listed on Annex I attached hereto.
"Transfer" means, with respect to a security, the sale, transfer,
pledge, gift, hypothecation, encumbrance, assignment or disposition of such
security or the Beneficial Ownership thereof, the offer to make such a sale,
transfer or other disposition, and each option, agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing. As a
verb, "Transfer" shall have a correlative meaning.
2. Representations and Warranties of Shareholder. Shareholder hereby
represents and warrants to Parent and Purchaser as follows:
(a) The Covered Shares constitute all of the capital stock of the
Company Beneficially Owned by Shareholder. Without limiting the foregoing, the
Covered Shares
2
3
include all shares of Company Common Stock held of record or Beneficially by any
relative, trust or other Affiliate of Shareholder of which Shareholder has or
shares any voting power or power of disposition. Except as described on Annex I,
Shareholder is the record and Beneficial Owner, has sole voting power, sole
power of disposition and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to the Covered Shares. Shareholder has
good and marketable title to the Owned Shares, free and clear of all
Encumbrances. As to any shares that Shareholder indicates he does not have such
sole powers, Shareholder shall use his reasonable best efforts to cause all of
his obligations under this Agreement to be complied with by any person having
such powers.
(b) Shareholder has the legal capacity to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by Shareholder and, assuming
the due authorization, execution and delivery of this Agreement of each of
Parent and Purchaser, constitutes the legal, valid and binding obligation of
Shareholder, enforceable against such Shareholder in accordance with its terms
except (i) to the extent limited by applicable bankruptcy, insolvency or similar
laws affecting creditors rights and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c) Neither of the execution and delivery of this Agreement by
Shareholder, the consummation by Shareholder of the transactions contemplated
hereby nor the compliance by Shareholder with any of the provisions hereof shall
(i) result in any breach of, or constitute a default (or an event which with
notice or lapse of time or both would become 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, contract, license, agreement, lease,
permit or other instrument or obligation to which Shareholder is a party or by
which Shareholder or any of his properties or assets (including the Covered
Shares) may be bound, except as may be set forth in existing option agreements,
(ii) require on the part of Shareholder any filing with, or permit,
authorization, consent or approval of, any Governmental Entity, or (iii) violate
any order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to Shareholder or any of his properties or assets, excluding from the
foregoing such violations, breaches, defaults or failures to make any filing or
to obtain any permit, authorization, consent or approval which would not,
individually or in the aggregate, impair the ability of Shareholder to
consummate the transactions contemplated hereby.
3. Representations and Warranties of Parent and Purchaser. Parent
and Purchaser hereby represent and warrant to Shareholder as follows:
(a) Each of Parent and Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all necessary corporate power and authority to execute and
deliver this Agreement and perform its
3
4
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery by Parent and Purchaser of this Agreement and the
performance by Parent and Purchaser of their respective obligations hereunder
have been duly and validly authorized by all necessary corporate action on the
part of Parent and Purchaser and no other corporate proceedings on the part of
Parent or Purchaser are necessary to authorize the execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby.
(b) This Agreement has been duly and validly executed and delivered
by Parent and Purchaser and, assuming the due authorization, execution and
delivery of this Agreement by Shareholder, constitutes the legal, valid and
binding obligation of each of Parent and Purchaser, enforceable against each of
them in accordance with its terms except (i) to the extent limited by applicable
bankruptcy, insolvency or similar laws affecting creditors rights and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(c) Neither the execution and delivery of this Agreement by Parent
or Purchaser, the consummation by Parent or Purchaser of the transactions
contemplated hereby nor the compliance by Parent or Purchaser with any of the
provisions hereof shall (i) conflict with or violate the statuts of Parent or
the articles of incorporation or by-laws of Purchaser, (ii) result in any breach
of or constitute a default (or an event which with notice or lapse of time or
both would become 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, contract, license, agree ment, lease, permit or other instrument or
obligation to which Parent or Purchaser is a party or by which Parent or
Purchaser or any of their respective properties or assets may be bound, (iii)
require on the part of Parent or Purchaser any filing with, or permit,
authorization, consent or approval of, any Governmental Entity, other than any
filing required to be made under the Securities Act, the Exchange Act, the HSR
Act, the EC Merger Regulations or nonUnited States laws regulating competition,
antitrust, investment and exchange controls or (iv) violate any order, writ,
injunction, decree, judgment, statute, rule or regulation applicable to Parent
or Purchaser or any of their respective properties or assets, excluding from the
foregoing such violations, breaches, defaults or failures to make any filing or
to obtain any permit, authorization, consent or approval which would not,
individually or in the aggregate, materially impair the ability of Parent or
Purchaser to consummate the transactions contemplated hereby.
4. Tender of Shares. Shareholder shall tender or cause the record
owner thereof to tender all the Owned Shares into the Offer promptly, and in any
event no later than the tenth business day following the commencement of the
Offer pursuant to Section 1.01 of the Merger Agreement, and Shareholder shall
not, and shall cause the record owner thereof not to, withdraw any Owned Shares
so tendered unless the Offer is terminated or has expired,
4
5
except for shares that Shareholder is contractually obligated, consistent with
past practice, to withdraw in order to transfer to the Xxxxxxx Blind Trust.
5. Voting of Owned Shares; Proxy. (a) During the period commencing
on the date hereof and continuing until the earlier of (x) the consummation of
the Offer and (y) the termination of this Agreement (such period being referred
to as the "Voting Period"), at any meeting (whether annual or special, and
whether or not an adjourned or postponed) of the Company's shareholders, however
called, or in connection with any written consent of the Company's shareholders,
subject to the absence of a preliminary or permanent injunction or other
requirement under applicable law by any United States federal, state or foreign
court barring such action, Shareholder shall vote (or cause to be voted) all
Owned Shares: (i) in favor of the Merger, the execution and delivery by the
Company of the Merger Agreement and the approval and adoption of the Merger and
the terms thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance thereof and
hereof; and (ii) against any action or agreement that would impede, interfere
with, or prevent the Merger, including any Acquisition Proposal. Shareholder
shall not enter into any agreement, arrangement or understanding with any Person
the effect of which would be inconsistent or violative of the provisions and
agreements contained in this Section 5.
(b) By its execution hereof and in order to secure its obligations
under this Agreement, during the Voting Period, Shareholder irrevocably grants
to, and appoints, Parent and Olivier Houssin and Xxxxxx Xxxxxx-Xxxxxxx, or
either of them, in their respective capacities as employees of Parent, and any
individual who shall hereafter succeed to either of their respective positions
at Parent, and each of them individually, as its true and lawful proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of such Shareholder to vote the Owned Shares or grant a consent or
approval in respect of the Owned Shares (i) in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the approval
and adoption of the Merger and the terms thereof and each of the other actions
contemplated by the Merger Agreement and any action required in furtherance
thereof and hereof and (ii) against any action or agreement that would impede,
interfere with, or prevent the Offer or the Merger, including any Acquisition
Proposal ("Irrevocably Proxy"). Shareholder hereby represents that any proxies
heretofore given in respect of the Owned Shares are not irrevocable, and that
any such proxies are hereby revoked.
(c) Shareholder understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon its execution and delivery of this
Irrevocable Proxy. Shareholder hereby affirms that this Irrevocable Proxy is
given in connection with the execution of this Agreement and the Merger
Agreement, and further affirms that this Irrevocable Proxy is coupled with an
interest and is intended to be irrevocable in accordance with the provisions of
Section 705 of the CGCL. Shareholder hereby ratifies and confirms all that this
Irrevocable Proxy may lawfully do or cause to be done by virtue hereof.
5
6
(d) In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of the
Company affecting the Company Common Stock or the acquisition of additional
shares of Company Common Stock or other securities or rights of the Company by
the Shareholder (through the exercise of Shares Under Option or otherwise), this
Agreement and the obligations hereunder shall attach to any additional shares of
Company Common Stock or other securities or rights of the Company issued to or
acquired by the Shareholder.
6. Option. (a) Shareholder hereby grants Purchaser an irrevocable
option (the "Option") to purchase any or all Owned Shares and Shares Under
Option (to the extent exercisable on the date that Parent notifies Shareholder
that it intends to exercise the Option) at a price per share equal to the Offer
Price (the "Option Price"). The Option shall become exercisable immediately
prior to, but contingent upon, the consummation of a transaction contemplated by
the Acquisition Proposal referred to in clause (ii), below, if: (i) the Merger
Agreement is terminated and Parent would be entitled, or following such time may
be entitled, to receive the Fee in connection with such termination pursuant to
Section 9.03(b) of the Merger Agreement, and (ii) the Company enters into a
letter of intent or definitive agreement with respect to a transaction
contemplated by an Acquisition Proposal within six (6) months after such
termination, and shall cease to be exercisable immediately following the
consummation of the transaction referred to in clause (ii).
(b) Subject to the other provisions of this Agreement, the Option
shall become and remain exercisable so that Purchaser shall have the right and
ability to exercise the Option and deliver the shares issuable upon such
exercise and to receive the consideration payable for such shares in connection
with the consummation of the transaction contemplated by the Acquisition
Proposal. Shareholder shall give Purchaser and Parent notice of the date
scheduled for consummation of a transaction contemplated by the Acquisition
Proposal as far in advance as is reasonably practicable. If Purchaser wishes to
exercise the Option, it or Parent shall send a written notice to Shareholder
specifying the place and date for the closing of the purchase. Nothing herein
shall be construed to limit Purchaser's right to exercise the Option in a timely
manner in connection with such transaction regardless of when such notice is
given by Shareholder or when Parent or Purchaser delivers a notice of exercise
to Shareholder; provided, however, that if at the scheduled closing date for the
transaction contemplated by the Acquisition Proposal, Parent or the Purchaser
shall be legally prohibited from exercising the Option as to all or a portion of
the Owned Shares or Shares Under Option (including by reason of a failure on the
part of Parent and the Purchaser to fully comply with the requirements of the
HSR Act or the EC Merger Regulations), such legal prohibition shall not serve to
delay or otherwise prevent consummation of such transaction at its scheduled
closing date.
(c) It is understood that Purchaser shall not be entitled to
purchase the Covered Shares pursuant to the Option if Purchaser shall have
failed to purchase the Shares pursuant to the Offer in breach of its obligations
under the Merger Agreement.
6
7
(d) Notwithstanding anything herein to the contrary, whenever the
Option is exercisable Purchaser may elect, instead of exercising the Option, to
require Shareholder upon consummation of the transaction contemplated by the
Acquisition Proposal to pay to Purchaser a portion of the consideration per
Covered Share (the "Consideration") received by Shareholder at the consummation
of such transaction equal to the amount of the excess, if any, of the
Consideration over the Offer Price, multiplied by the number of Covered Shares
acquired in such transaction. Such payment shall be made as and when paid in
connection with such transaction.
7. Restrictions on Transfer, Other Proxies; No Solicitation.
(a) Shareholder shall not, until the termination of this Agreement,
directly or indirectly: (i) except as provided in Sections 4, 5 or 6 hereof,
Transfer to any Person any or all Covered Shares; or (ii) grant any proxies or
powers of attorney, deposit any Covered Shares into a voting trust or enter into
a voting agreement, understanding or arrangement with respect to such Covered
Shares. Nothing contained herein shall prevent Shareholder from transferring any
or all of the Covered Shares to an Affiliate of Shareholder which agrees to be
bound by this Agreement; provided that Shareholder shall continue to remain
liable for all its obligations under this Agreement. The Covered Shares and the
certificates represented thereby owned by such Shareholder are now and at all
times during the term hereof will be held by such Shareholder, or by a nominee
or custodian as provided in Section 7(a) hereof, free and clear of all
Encumbrances, except for such Encumbrances arising hereunder.
(b) Shareholder hereby agrees, in its capacity as a Shareholder of
the Company, that it and its Affiliates shall not, and Shareholder shall cause
its Representatives not to, directly or indirectly, (i) initiate, solicit or
encourage (including by way of furnishing non-public information) participate
in, or otherwise facilitate any inquiries or the making of any proposal or offer
that constitutes or is reasonably likely to lead to an Acquisition Proposal or
(ii) engage in any negotiations concerning, or provide any non-public
information or data to, or have any discussions with, any third party relating
to an Acquisition Proposal. Shareholder will notify Parent promptly (but in any
event within 24 hours) if any such inquiries, proposals or offers are received
by, any such information requested from, or any such discussions or negotiations
are sought to be initiated or continued with such Shareholder or its
Representatives (if any) in each case in connection with any Acquisition
Proposal indicating, in connection with such notice, the name of such person and
the material terms and conditions of any proposals or offers and thereafter
shall keep Parent informed, on a current basis, on the status and terms of any
such proposals or offers and the status of any such negotiations or discussions.
Shareholder agrees that it will immediately cease and cause to be terminated any
existing activities or discussion with any parties conducted heretofore with
respect to an Acquisition Proposal and will request from each person that has
heretofore executed a confidentiality agreement in connection with its
consideration of an Acquisition Proposal to return all confidential information
heretofore furnished to such person by or on behalf of it or any of its
subsidiaries. The foregoing shall be subject to Shareholder's fiduciary duties
as a director and/or officer of the Company. Any
7
8
action taken by the Company or any member of the Company Board in his capacity
as such in accordance with the terms of the Merger Agreement shall be deemed not
to violate this Section 7(b).
8. Stop Transfer. Shareholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Owned Shares, unless such
transfer is made in compliance with this Agreement.
9. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
10. Non-Competition. In consideration of the transactions
contemplated hereunder and under the Merger Agreement, Shareholder agree that,
commencing on the Effective Date and for a period ending two (2) years after the
Effective Date, Shareholder shall not, directly or indirectly:
(i) own, manage, control or participate in the ownership,
management, or control of, or be employed or engaged by or otherwise
affiliated or associated as a consultant, independent contractor or
otherwise with any other corporation, partnership, proprietorship,
firm, association or other business entity engaged in the business
of designing, manufacturing and/or selling enterprise data LAN
switching, ATM switching and/or Gigabit Ethernet switching products
to customers in the enterprise and/or carrier markets; provided,
however, that the following shall not be deemed a violation of this
covenant: (A) the ownership of not more than three percent (3%) of
any class of publicly traded securities of any entity; and (B)
passive investments in venture capital funds or similar entities
established by persons who are not affiliated with or related to
Shareholder and over which Shareholder has no power to direct the
management or investment decisions;
(ii) offer to employ or otherwise engage, any Person who is then (or
was at any time within one year prior to the time of such
employment, engagement or offer thereof) an employee, sales
representative or agent of the Company; or
(iii) solicit any business from any Person or entity that is at the
time of such solicitation a customer of the Company in a manner
likely to result in a discontinuance or reduction of the extent of
such Person's or entity's business relationship with the Company, or
induce or influence any customer, supplier or other person that has
a business relationship with the Company to discontinue or reduce
the extent of such relationship with the Company.
8
9
11. Waiver of Appraisal Rights. Shareholder hereby waives any rights
of appraisal or rights to dissent from the Merger that it may have.
12. Cancellation of Change of Control Agreements; Agreement to
Rollover Shares Under Option; Option Vesting.
(a) In consideration of the transactions contemplated hereunder and
under the Merger Agreement, Shareholder hereby waives, effective at, and
contingent upon the occurrence of, the Effective Time of the Merger, any and all
claims, rights and entitlements that he has, has had or may ever have with
respect to or arising under the Change of Control Agreement between Shareholder
and the Company (the "CIC Agreement") and releases, effective at, and contingent
upon the occurrence of, the Effective Time of the Merger, the Company and its
officers, directors, shareholders, employees and representatives and any of
their successors and assigns from any and all such claims, rights and
entitlements relating to or arising under the CIC Agreement. Shareholder
acknowledges that the CIC Agreement shall become null and void at the Effective
Time of the Merger. This provision shall survive indefinitely notwithstanding
anything herein to the contrary.
(b) Shareholder shall not exercise, sell or otherwise Transfer (or
attempt to exercise, sell or otherwise Transfer) any of his outstanding options
to purchase shares of the Company (whether vested or unvested) (the "Shareholder
Options"). Shareholder shall take any and all actions necessary to ensure that
all of his Shareholder Options are converted in accordance with Section 7.03(a)
of the Merger Agreement and shall elect the option conversion under Section
7.03(b)(ii) of the Merger Agreement.
(c) As of the Effective Date, the Company and the Shareholder hereby
agree that the Shareholder Options shall be amended to provide that: (I) the
Shareholder Options will not terminate following the termination of the
Shareholder's employment for any reason other than for cause; (II) the
Shareholder shall continue to vest in the Shareholder Options in accordance with
the applicable option plan or agreements for the Shareholder Options on the same
basis as if the Shareholder continued to be employed, provided that the
Shareholder continues to fulfill all obligations with respect to the restrictive
covenant set forth in Section 10 hereof; and (III) if the Shareholder fulfills
such restrictive covenant obligations, the Shareholder shall be entitled to
exercise such Shareholder Options at any time within the thirty (30) day period
following the satisfaction of the restrictive covenant. Notwithstanding anything
herein to the contrary, unless terminated earlier as contemplated hereunder,
under the applicable option plan or under the agreements for the Shareholder
Options, the Shareholder Options shall automatically expire on their
originally-specified expiration dates. For purposes hereof, "cause" shall mean
(1) the Shareholder's fraud, embezzlement or similar activities; or (2) the
Shareholder's conviction of, or plea of guilty or no contest to, any felony or
any crime involving fraud, embezzlement or other defalcation or any crime
involving moral turpitude; or (3) the Shareholder's commission of any act of
dishonesty or series of repeated acts of dishonesty which
9
10
are not in the best interests of the Company, or which are injurious to the
business reputation of the Company; or (4) the Shareholder's willful and
repeated failure to perform his material duties of employment, which failure has
not been cured within thirty (30) business days after the Company gives written
notice thereof to the Shareholder.
13. Termination. This Agreement, and all rights and obligations of
the parties hereunder, shall terminate upon the earlier of (a) the date upon
which the Parent shall have purchased and paid for all of the Owned Shares of
Shareholder in accordance with the terms of the Offer, (b) if the Merger
Agreement shall be terminated in circumstances that do not give rise to the
payment of the Fee pursuant to Section 9.03(b) thereof, the date on which the
Merger Agreement shall be terminated, (c) if the Merger Agreement shall be
terminated in circumstances that give rise to the payment of the Fee pursuant to
Section 9.03(b) and the Company shall not have entered into a letter of intent
or definitive agreement with respect to a transaction contemplated by an
Acquisition Proposal within six months following such date of termination, six
months following the date on which the Merger Agreement shall be terminated, and
(d) if the Merger Agreement shall be terminated in circumstances that give rise
to the payment of the Fee pursuant to Section 9.03(b) and the Company shall have
entered into a letter of intent or definitive agreement with respect to a
transaction contemplated by a Acquisition Proposal within six months following
such date of termination, the date on which such transaction shall be
consummated.
14. Miscellaneous.
(a) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
(b) Shareholder agrees that this Agreement and the respective rights
and obligations of Shareholder hereunder shall attach to all Covered Shares.
(c) All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
(d) This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, personal or legal representatives, executors, administrators, heirs,
distributees, devisees, legatees and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by either party (whether by operation of law or otherwise) without the
prior written consent of the other party; provided, that Parent and Purchaser
may assign all or any of their rights and obligations hereunder to any assignee
of such parties' rights and obligations under the Merger Agreement or to any
other subsidiary of Parent. Nothing in this Agreement,
10
11
express or implied, is intended to or shall confer upon any other Person any
rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
(e) This Agreement may not be amended, changed, supplemented, or
otherwise modified or terminated, except upon the execution and delivery of a
written agreement executed by each of the parties hereto. The parties may waive
compliance by the other parties hereto with any representation, agreement or
condition otherwise required to be complied with by such other party hereunder,
but any such waiver shall be effective only if in writing executed by the
waiving party.
(f) All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
as of the date delivered or mailed if delivered personally or mailed by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like changes of address shall be effective upon receipt)
or sent by electronic transmission, with confirmation received, to the telecopy
number specified below:
If to Parent or Purchaser:
Xxxxxxx
00, xxx Xx Xxxxxx
00000 Xxxxx
Xxxxxx
Telecopier No.: 00-0-0000-0000
Attention: Xxxxxx Xxxxxx-Xxxxxxx, Esq.
With a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx, Esq.
11
12
If to Shareholder:
Xxxx Xxxxxxx
0000 Xxxxxxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
Copy to:
Xxxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
(g) If any term or other provision of this Agreement shall be held
to be invalid, illegal or unenforceable by any rule of law or public policy,
such clause or provision shall be construed and enforced as if it had been more
narrowly drawn so as not to be construed and enforced as if it had been more
narrowly drawn so as not to be invalid or unenforceable, and such invalidity or
unenforceability shall not affect or render invalid or unenforceable any other
provision of this Agreement.
(h) Each of the parties hereto acknowledges and agrees that in the
event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (a) will waive, in any
action for specific performance, the defense of adequacy of a remedy at law and
(b) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement.
(i) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(j) Notwithstanding anything herein to the contrary, nothing set
forth herein shall in any way restrict any director in the exercise of his or
her fiduciary duties as a director of the Company.
12
13
(k) This Agreement shall be governed and construed in accordance
with the laws of the State of California without giving effect to the principles
of conflicts of law thereof.
(l) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(m) This Agreement may be executed in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
13
14
IN WITNESS WHEREOF, Parent, Purchaser and Shareholder have caused
this Agreement to be duly executed as of the day and year first above written.
ALCATEL
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman and Chief
Executive Officer
ZEUS ACQUISITION CORP.
By: /s/ Olivier Houssin
------------------------------------
Name: Olivier Houssin
Title: Chairman
Shareholder
/s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title:
AGREED TO FOR PURPOSES
OF SECTION 12
XYLAN CORPORATION
By: /s/ Xxxxx X. Xxx
-----------------------------
Name: Xxxxx X. Xxx
Title: President and Chief
Executive Officer
14
15
XXXXXXX 1995 IRREVOCABLE TRUST
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Whittier Trust Company
Title: Co-Trustee
XXXXXXX TRUST
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Trustee
XXXXXXX IRREVOCABLE
CHILDREN'S TRUST
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Whittier Trust Company
Title: Xx-Xxxxxxx
00
00
ANNEX I (YP)
Owned Shares
Xxxxxxx Trust 1,825,000
Xxxxxxx Children's Irrevocable Trust 225,000
Xxxxxxx 1995 Irrevocable Trust 15,000
Shares Under Option
16
