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EXHIBIT 2
VOTING AGREEMENT
This Voting Agreement is entered into as of August 27, 2000, by and between
Applied Micro Circuits Corporation, a Delaware corporation ("Parent"), and
("Stockholder").
Recitals
A. Parent, Mercury Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), and MMC Networks, Inc., a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of Merger
and Reorganization of even date herewith (the "Reorganization Agreement") which
provides (subject to the conditions set forth therein) for the merger of Merger
Sub with and into the Company (the "Merger"). Capitalized terms not otherwise
defined herein shall have the meanings given to them in the Reorganization
Agreement.
B. In order to induce Parent and Merger Sub to enter into the Reorganization
Agreement, Stockholder, in its capacity as a Stockholder of the Company, is
entering into this Voting Agreement.
Agreement
The parties to this Voting Agreement, intending to be legally bound, agree
as follows:
SECTION 1. Certain Definitions
For purposes of this Voting Agreement:
(a) "Company Common Stock" shall mean the common stock, par value $.001 per
share, of the Company.
(b) "Expiration Date" shall mean the earlier of (i) the date upon which the
Reorganization Agreement is validly terminated, or (ii) the Effective Time (as
defined in the Reorganization Agreement).
(c) Stockholder shall be deemed to "Own" or to have acquired "Ownership" of
a security if Stockholder is the: (i) record owner of such security; or (ii)
"beneficial owner" (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934) of such security; provided, however, that Stockholder
shall not be deemed to Own a security solely because of Stockholder's status as
an executive officer, director, partner or member of a Person that owns such
security.
(d) "Person" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental
authority.
(e) "Subject Securities" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) Owned by Stockholder as
of the date of this Agreement; and (ii) all additional securities of the
Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares of Company
Common Stock) of which Stockholder acquires Ownership during the period from
the date of this Agreement through the Expiration Date; provided, however, that
securities sold by the Stockholder pursuant to the proviso in the definition of
"Transfer" below shall not be Subject Securities for purposes of this
Agreement.
(f) A Person shall be deemed to have a effected a "Transfer" of a security
if such Person directly or indirectly: (i) sells, pledges, encumbers, grants an
option with respect to, transfers or disposes of such security or any interest
in such security; (ii) enters into an agreement or commitment contemplating the
possible sale of,
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pledge of, encumbrance of, grant of an option with respect to, transfer of or
disposition of such security or any interest therein; or (iii) reduces such
Person's beneficial ownership of interest in or risk relating to any such
security; provided, however, that, notwithstanding anything in this Agreement
to the contrary, a sale by the Stockholder of up to an aggregate of five
percent (5%) of the Subject Securities Owned by Stockholder as of the date
hereof shall not constitute a Transfer.
SECTION 2. Transfer Of Subject Securities
2.1 Transferee of Subject Securities to be Bound by this
Agreement. Stockholder agrees that, during the period from the date of this
Voting Agreement through the Expiration Date, Stockholder shall not (i) cause
or permit any Transfer of any of the Subject Securities to be effected; or (ii)
create or permit to exist any Encumbrance with respect to any Subject
Securities (other than Encumbrances which do not affect the right to vote such
securities that may exist with respect to such Subject Securities as of the
date of this Voting Agreement and Encumbrances which do not affect, directly or
indirectly, the right of Parent to vote the Subject Securities as provided
herein) unless each Person, in either (i) or (ii) above, to which any of such
Subject Securities, or any interest in any of such Subject Securities, is or
may be transferred shall have: (a) executed a counterpart of this Voting
Agreement and a proxy in the form attached hereto as Exhibit A (with such
modifications as Parent may reasonably request); and (b) agreed to hold such
Subject Securities (or interest in such Subject Securities) subject to all of
the terms and provisions of this Voting Agreement.
2.2 Transfer of Voting Rights. Stockholder agrees that, during the period
from the date of this Voting Agreement through the Expiration Date, Stockholder
shall ensure that: (a) none of the Subject Securities is deposited into a
voting trust; and (b) no proxy is granted, and no voting agreement or similar
agreement is entered into, with respect to any of the Subject Securities (other
than such proxy, voting agreement or similar agreement which does not affect,
impair or impede, directly or indirectly, the right of Parent to vote the
Subject Securities as provided herein).
SECTION 3. Voting Of Shares
3.1 Voting Agreement. Stockholder agrees that, during the period from the
date of this Voting Agreement through the Expiration Date, at any meeting of
stockholders of the Company, however called, and in any action by written
consent of the stockholders of the Company, Stockholder shall, unless otherwise
directed in writing by Parent, vote the Subject Securities or cause the Subject
Securities to be voted (to the extent such securities are entitled to be
voted):
(a) in favor of the adoption of the Reorganization Agreement and in favor of
any other matter proposed to be approved by the holders of the Subject
Securities pursuant to the terms of the Reorganization Agreement;
(b) against any action or agreement that would cause any provision contained
in Sections 6 or 7 of the Reorganization Agreement to not be satisfied; and
(c) against the following actions (other than the Merger and the
transactions contemplated by the Reorganization Agreement): (i) any Acquisition
Proposal; (ii) any change in a majority of the members of the board of
directors of the Company; or (iii) any other action which is intended, or could
reasonably be expected to, impede, interfere with, delay, postpone, discourage
or adversely affect the consummation of the Merger or any of the other
transactions contemplated by the Reorganization Agreement, the Stock Option
Agreement or this Voting Agreement.
3.2 Proxy; Further Assurances.
Contemporaneously with the execution of this Voting Agreement: (i)
Stockholder shall execute and deliver to Parent a proxy in the form attached to
this Voting Agreement as Exhibit A, which shall be irrevocable to the fullest
extent permitted by law, with respect to the shares referred to therein (the
"Proxy"); and (ii) Stockholder
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shall cause to be delivered to Parent an additional proxy (in the form attached
hereto as Exhibit A) executed on behalf of the record owner of any outstanding
shares of Company Common Stock that are Owned.
SECTION 4. Representations And Warranties Of Stockholder
Stockholder hereby represents and warrants to Parent as follows:
4.1 Authorization, etc. Stockholder has the absolute and unrestricted right,
power, authority and capacity to execute and deliver this Voting Agreement and
the Proxy and to perform its obligations hereunder and thereunder. This Voting
Agreement and the Proxy have been duly executed and delivered by Stockholder
and constitute legal, valid and binding obligations of Stockholder, enforceable
against Stockholder in accordance with their terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive
relief and other equitable remedies.
4.2 No Conflicts or Consents
(a) The execution and delivery of this Voting Agreement and the Proxy by
Stockholder do not, and the performance of this Voting Agreement and the Proxy
by Stockholder will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Stockholder or by which it
or any of its properties is or may be bound or affected; or (ii) result in or
constitute (with or without notice or lapse of time) any breach of or default
under, or give to any other Person (with or without notice or lapse of time)
any right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any Encumbrance or
restriction on any of the Subject Securities pursuant to, any contract to which
Stockholder is a party or by which Stockholder or any of his affiliates or
properties is or may be bound or affected.
(b) The execution and delivery of this Voting Agreement and the Proxy by
Stockholder do not, and the performance of this Voting Agreement and the Proxy
by Stockholder will not, require any consent or approval of any Person.
4.3 Title to Securities. As of the date of this Voting Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions
except as specifically disclosed on the signature page hereof) the number of
outstanding shares of Company Common Stock set forth under the heading "Shares
Held of Record" on the signature page hereof; (b) Stockholder holds (free and
clear of any Encumbrances or restrictions except as specifically disclosed on
the signature page hereof) the options, warrants and other rights to acquire
shares of Company Common Stock set forth under the heading "Options, Warrants
and Other Rights" on the signature page hereof; (c) Stockholder Owns the
additional securities of the Company set forth under the heading "Additional
Securities Beneficially Owned" on the signature page hereof; and (d)
Stockholder does not directly or indirectly Own any shares of Company Common
Stock or other securities of the Company, or any option, warrant or other right
to acquire (by purchase, conversion or otherwise) any shares of Company Common
Stock or other securities of the Company, other than the shares and options,
warrants and other rights set forth on the signature page hereof.
SECTION 5. Miscellaneous
5.1 Survival of Representations, Warranties and Agreements. All
representations, warranties, covenants and agreements made by Stockholder in
this Voting Agreement shall survive until the Expiration Date.
5.2 Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid solely by the
party incurring such costs and expenses.
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5.3 Notices. Any notice or other communication required or permitted to be
delivered to either party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received when delivered (by hand,
by registered mail, by courier or express delivery service or by facsimile, in
each case with confirmation of delivery) to the address or facsimile telephone
number set forth beneath the name of such party below (or to such other address
or facsimile telephone number as such party shall have specified in a written
notice given to the other party):
if to Parent:
David Mersten
Applied Micro Circuits Corporation
6290 Sequence Drive
San Diego, CA 92121
Facsimilie: (858) 535-6800
with a copy to (which copy shall not constitute notice):
Frederick T. Muto, Esq.
Cooley Godward LLP
4365 Executive Drive
Suite 1100
San Diego, CA 92121-2128
Facsimile No. (858) 453-3555
if to the Stockholder:
at the address set forth below Stockholder's signature on the signature
page hereof
with copies to (which copies shall not constitute notice):
Aaron J. Alter, Esq.
Steve L. Camahort, Esq.
Wilson Sonsini Goodrich & Rosati, Professional Corporation
One Market
Spear Tower, Suite 3300
San Francisco, CA 94105
Facsimile No. (415) 947-2099
5.4 Severability. If any provision of this Voting Agreement or any part of
any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement.
Each provision of this Voting Agreement is separable from every other provision
of this Voting Agreement, and each part of each provision of this Voting
Agreement is separable from every other part of such provision.
5.5 Entire Agreement. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision
of this Voting Agreement shall be binding upon either party unless made in
writing and signed by both parties.
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5.6 Assignment; Binding Effect. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by Stockholder or Parent without the prior written
consent of the non-assigning party, which consent shall not be unreasonably
withheld, and any attempted or purported assignment or delegation of any of
such interests or obligations shall be void. Subject to the preceding sentence,
this Voting Agreement shall be binding upon, and inure to the benefit of,
Stockholder and its heirs, estate, executors, personal representatives,
successors and assigns (as the case may be), and shall be binding upon, and
inure to the benefit of, Parent and its successors and assigns. Without
limiting any of the restrictions set forth in Section 2 or elsewhere in this
Voting Agreement, this Voting Agreement shall be binding upon any Person to
whom any Subject Securities are transferred. Nothing in this Voting Agreement
is intended to confer on any Person (other than Parent and its successors and
assigns) any rights or remedies of any nature.
5.7 Specific Performance. The parties agree that irreparable damage would
occur in the event that any provision of this Voting Agreement or the Proxy
was, or is, not performed in accordance with its specific terms or was, or is,
otherwise breached. Stockholder agrees that, in the event of any breach or
threatened breach by Stockholder of any covenant or obligation contained in
this Voting Agreement or in the Proxy, Parent shall be entitled (in addition to
any other remedy that may be available to it, including monetary damages) to
(a) a decree or order of specific performance to enforce the observance and
performance of such covenant or obligation, and (b) an injunction restraining
such breach or threatened breach. Stockholder further agrees that neither
Parent nor any other Person shall be required to obtain, furnish or post any
bond or similar instrument in connection with or as a condition to obtaining
any remedy referred to in this Section 5.7, and Stockholder irrevocably waives
any right he may have to require the obtaining, furnishing or posting of any
such bond or similar instrument.
5.8 Non-Exclusivity. The rights and remedies of Parent under this Voting
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Parent under this Voting Agreement,
and the obligations and liabilities of Stockholder under this Voting Agreement,
are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations. Nothing in this Voting Agreement shall limit any of
Stockholder's obligations, or the rights or remedies of Parent, under any
agreement between Parent and Stockholder; and nothing in any such agreement
shall limit any of Stockholder's obligations, or any of the rights or remedies
of Parent, under this Voting Agreement.
5.9 Governing Law; Venue.
(a) This Voting Agreement and the Proxy shall be construed in accordance
with, and governed in all respects by, the laws of the State of Delaware
(without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this Voting
Agreement or the Proxy or the enforcement of any provision of this Voting
Agreement or the Proxy may be brought or otherwise commenced in any state or
federal court located in the State of Delaware. Stockholder and Parent each:
(i) expressly and irrevocably consents and submits to the jurisdiction
of each state and federal court located in the State of Delaware (and each
appellate court located in the in the State of Delaware), in connection
with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or document by
U.S. mail addressed to him at the address set forth in Section 5.3 shall
constitute effective service of such process, summons, notice or document
for purposes of any such legal proceeding;
(iii) agrees that each state and federal court located in the State of
Delaware, shall be deemed to be a convenient forum; and
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(iv) agrees not to assert (by way of motion, as a defense or otherwise),
in any such legal proceeding commenced in any state or federal court
located in the State of Delaware, any claim by either Stockholder or Parent
that it is not subject personally to the jurisdiction of such court, that
such legal proceeding has been brought in an inconvenient forum, that the
venue of such proceeding is improper or that this Voting Agreement or the
subject matter of this Voting Agreement may not be enforced in or by such
court.
Nothing contained in this Section 5.9 shall be deemed to limit or otherwise
affect the right of either party to commence any legal proceeding or otherwise
proceed against the other party in any other forum or jurisdiction.
(c) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION
WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT OR THE PROXY OR THE
ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE PROXY.
5.10 Counterparts. This Voting Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
5.11 Captions. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
5.12 Waiver. No failure on the part of Parent to exercise any power, right,
privilege or remedy under this Voting Agreement, and no delay on the part of
Parent in exercising any power, right, privilege or remedy under this Voting
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Parent shall not be deemed to have waived any claim
available to Parent arising out of this Voting Agreement, or any power, right,
privilege or remedy of Parent under this Voting Agreement, unless the waiver of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of Parent; and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
5.13 Construction.
(a) For purposes of this Voting Agreement, whenever the context requires:
the singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender shall
include the masculine and neuter genders; and the neuter gender shall include
masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
(d) Except as otherwise indicated, all references in this Voting Agreement
to "Sections" and "Exhibits" are intended to refer to Sections of this Voting
Agreement and Exhibits to this Voting Agreement.
5.14 Stockholder Capacity. No person executing this Voting Agreement who is
a director or officer of the Company makes any agreement or understanding
herein in his capacity as such director or officer. Without limiting the
generality of the foregoing, Stockholder executes this Voting Agreement solely
in its capacity as Owner of Subject Securities and nothing herein shall limit
or affect any actions taken by Stockholder in its capacity as an officer or
director of the Company in exercising the Company's rights under the
Reorganization
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Agreement, provided, that no obligation of Stockholder to the Company as an
officer or director of the Company shall affect, impair or impede Stockholder's
obligations under this Voting Agreement including the obligation to vote the
Subject Securities in accordance with Section 3 hereof.
5.15 No Obligation to Exercise Options. Notwithstanding any provisions of
this Voting Agreement to the contrary, nothing in this Voting Agreement shall
obligate Stockholder to exercise any option, warrant or other right to acquire
shares of Company Common stock.
[signature page to follow]
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In Witness Whereof, Parent and Stockholder have caused this Voting Agreement
to be executed as of the date first written above.
Applied Micro Circuits Corporation
By___________________________________
Name:
[STOCKHOLDER]
_____________________________________
Name:
Address: ____________________________
Facsimile: __________________________
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<CAPTION>
Shares Held of Record Options Warrants and Other Rights Additional Securities Beneficially Owned
--------------------- --------------------------------- ----------------------------------------
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</TABLE>
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Exhibit A
Form Of Irrevocable Proxy
The undersigned stockholder of MMC Network, Inc., a Delaware corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes David Rickey, David Mersten and Applied Micro Circuits
Corporation, a Delaware corporation ("Parent"), and each of them, the attorneys
and proxies of the undersigned with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
(i) the outstanding shares of Company Common Stock or other securities owned of
record by the undersigned as of the date of this proxy, which shares are
specified on the final page of this proxy, and (ii) any and all other shares of
Company Common Stock or other securities which the undersigned may acquire on
or after the date hereof. (The shares of the Company Common Stock or other
securities referred to in clauses "(i)" and "(ii)" of the immediately preceding
sentence, except for shares which are not Subject Securities (as defined in the
Voting Agreement), are collectively referred to in this proxy as the "Shares").
Upon the execution hereof, all prior proxies given by the undersigned with
respect to any of the Shares are hereby revoked, and the undersigned agrees
that no subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, Mercury Acquisition
Corp., a Delaware Corporation and a wholly owned subsidiary of Parent, and the
Company (the "Reorganization Agreement"). Capitalized terms used herein and not
otherwise defined shall have the meanings given to such terms in the
Reorganization Agreement.
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Reorganization Agreement or the Effective Time and at
any meeting of the stockholders of the Company, however called, and in any
action by written consent of the Stockholders of the Company:
(i) in favor of the adoption of the Reorganization Agreement and in
favor of any other matter proposed to be approved by the holders of the
Subject Securities pursuant to the terms of the Reorganization Agreement;
(ii) against any action or agreement that would result in a breach of
any representation, warranty, covenant or obligation of the Company in the
Reorganization Agreement; and
(iii) against the following actions (other than the Merger and the
transactions contemplated by the Reorganization Agreement): (A) any
Acquisition Proposal (B) any change in a majority of the members of the
board of directors of the Company; or (C) any other action which is
intended, or could reasonably be expected to, impede, interfere with,
delay, postpone, discourage or adversely affect the Merger or any of the
other transactions contemplated by the Reorganization Agreement or this
Voting Agreement.
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part
thereof under such circumstances and in such jurisdiction shall not affect the
validity or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the
validity or enforceability of the remainder
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of such provision or the validity or enforceability of any other provision of
this proxy. Each provision of this proxy is separable from every other
provision of this proxy, and each part of each provision of this proxy is
separable from every other part of such provision.
This proxy shall terminate upon the earlier of the valid termination of the
Reorganization Agreement or the effective time of the Merger.
Dated: August 27, 2000.
_____________________________________
Name:
Number of shares of common stock of
the Company owned of record or
beneficially as of the date of this
irrevocable proxy:
_____________________________________
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