Voting Agreement

 

Exhibit 10.4
VOTING AGREEMENT
     VOTING AGREEMENT, dated as of June 24, 2006 (the “Agreement”), by and among TelmarNetwork Technology, Inc., a Delaware corporation (“Parent”), Telmar Acquisition Corp., aDelaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and DavidPeters (the “Stockholder”), a stockholder of 17,500 shares of Somera Communications, Inc.(the “Company”).
W I T N E S S E T H:
     WHEREAS, contemporaneously with the execution and delivery of this Agreement, Merger Sub andthe Company are entering into an Agreement and Plan of Merger, dated as of the date hereof (as suchagreement may hereafter be amended from time to time, the “Merger Agreement”), whichprovides for, upon the terms and subject to the conditions set forth therein, the merger of MergerSub with and into the Company (the “Merger”);
     WHEREAS, as of the date hereof, the Stockholder owns beneficially the number of shares ofcommon stock, par value $0.001 per share, of the Company (the “Company Common Stock”) setforth above (all such shares so owned and which may hereafter be acquired by the Stockholder priorto the termination of this Agreement, whether upon the exercise of options, conversion ofconvertible securities, exercise of warrants or by means of purchase, dividend, distribution orotherwise, being referred to herein as the Stockholder’s “Shares”);
     WHEREAS, approval of the Merger Agreement by the Company’s stockholders is required in orderto consummate the Merger;
     WHEREAS, as a condition to Merger Sub’s willingness to enter into the Merger Agreement, MergerSub has requested that the Stockholder enter into this Agreement; and
     WHEREAS, in order to induce Merger Sub to enter into the Merger Agreement, the Stockholder iswilling to enter into this Agreement.
     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreementsherein contained, and intending to be legally bound hereby, Parent, Merger Sub and the Stockholderhereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES; AND
OTHER COVENANTS OF THE STOCKHOLDER
     SECTION 1.1. Voting of Shares. From the date hereof until the termination of thisAgreement pursuant to Section 4.2 hereof (the “Term”), at any meeting of the stockholdersof the Company, however called and at any adjournment or postponement thereof, and in any action byconsent of the stockholders of the Company, the Stockholder shall (A) appear at such meeting orotherwise cause its Shares to be counted as present thereat for purposes of establishing a quorumand (B) vote (or cause to be voted) its Shares (i) in favor of the Merger, the Merger Agreement andall the other transactions contemplated thereby, (ii) against (a) any Takeover Proposal, (b) anyproposal for action or agreement that would result in a breach of any covenant, representation orwarranty or any other obligation or agreement of the Company under the Merger Agreement or which isreasonably likely to result in any of the conditions of the Company’s obligations under the MergerAgreement not being fulfilled, (c) any change in the directors of the Company, (d) any change inthe present capitalization of the Company or any amendment to the Company’s Restated Certificate ofIncorporation, as amended, or By-Laws or (e) any other change in the Company’s corporate structureor business or change in any manner of the voting rights of the Company’s capital stock, or anyother action, which in the case of each of the matters referred to in this clause (ii) couldreasonably be expected to impede, interfere with, delay, postpone or materially adversely affectthe transactions contemplated by the Merger Agreement or the likelihood of such transactions beingconsummated and (iii) in favor

 


 

of any other matter necessary for consummation of the transactions contemplated by the MergerAgreement which is considered at any such meeting of stockholders or in such consent, and inconnection therewith to execute any documents which are necessary or appropriate in order toeffectuate the foregoing, including the ability for Merger Sub or its nominees to vote such Sharesdirectly.
     SECTION 1.2. No Inconsistent Arrangements. Except as contemplated by this Agreement,the Stockholder shall not during the Term (i) transfer (which term shall include,without limitation, any sale, assignment, gift, pledge, hypothecation or otherdisposition), or consent to any transfer of, any or all of the Stockholder’s Shares or any interesttherein, or create or permit to exist any lien or other encumbrance on such Shares, (ii) enter intoany contract, option or other agreement or understanding with respect to any transfer of any or allof such Shares or any interest therein, (iii) grant any proxy, power-of-attorney or otherauthorization in or with respect to such Shares, (iv) deposit such Shares into a voting trust orenter into a voting agreement or arrangement with respect to such Shares, or (v) take any otheraction that would in any way restrict, limit or interfere with the performance of its obligationshereunder or the transactions contemplated hereby or by the Merger Agreement.
     SECTION 1.3. Proxy; Reliance. The Stockholder hereby revokes any and all priorproxies or powers of attorney in respect of any of the Stockholder’s Shares and constitutes andappoints Merger Sub and Parent, or any nominee of Merger Sub and Parent, with full power ofsubstitution and resubstitution, at any time during the Term, as its true and lawful attorney andproxy (its “Proxy”), for and in its name, place and stead, to demand that the Secretary ofthe Company call a special meeting of the stockholders of the Company for the purpose ofconsidering any matter referred to in Section 1.1 and to vote each of such Shares as its Proxy, atevery annual, special, adjourned or postponed meeting of the stockholders of the Company, includingthe right to sign its name (as stockholder) to any consent, certificate or other document relatingto the Company that the General Corporation Law of the State of Delaware may permit or require asprovided in Section 1.1. The Stockholder understands and acknowledges that Merger Sub has enteredinto the Merger Agreement in reliance upon the Stockholder’s execution and delivery of thisAgreement.
     THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTERESTTHROUGHOUT THE TERM.
     SECTION 1.4. Waiver of Appraisal Rights. The Stockholder hereby waives any rights ofappraisal or rights to dissent from the Merger.
     SECTION 1.5. Stop Transfer. The Stockholder shall not request that the Companyregister the transfer (book-entry or otherwise) of any certificate or uncertificated interestrepresenting any of the Stockholder’s Shares, unless such transfer is made in compliance with thisAgreement.
     SECTION 1.6. No Solicitation. During the Term, the Stockholder shall not, nor shallit permit or authorize any of its stockholders, officers, directors, employees, affiliates, agentsor representatives (collectively, the “Representatives”) to, directly or indirectly, (i)solicit, initiate, encourage, induce, entertain or facilitate the making, submission orannouncement of any Takeover Proposal or take any action that would reasonably be expected to leadto an Takeover Proposal; (ii) furnish any information or data to any Person in connection with orin response to an Takeover Proposal or an inquiry or indication of interest that would reasonablybe expected to lead to an Takeover Proposal; (iii) participate or engage in discussions ornegotiations with any Person with respect to any Takeover Proposal; (iv) approve, endorse orrecommend any Takeover Proposal; or (v) enter into any letter of intent or similar document or anycontract or agreement contemplating or otherwise relating to any Acquisition Transaction. Uponexecution of this Agreement, the Stockholder shall, and shall cause its Representatives to,immediately cease and cause to be terminated any existing activities, discussions or negotiationswith any parties conducted heretofore with respect to any of the foregoing.
     Notwithstanding any provision of this Section 1.6 to the contrary, if any Stockholder or anyof its Representatives is a member of the Board of Directors, such member of the Board of Directorsmay take actions in such capacity to the extent permitted by Section 5.3 of the Merger Agreement.
     SECTION 1.7. Public Announcements. The Stockholder shall consult with Parent beforeissuing, and shall first provide Parent the reasonable opportunity to review and comment upon, anypress release or other

 


 

public statements with respect to the existence or terms of this Agreement, the Merger, theMerger Agreement and the other transactions contemplated thereby, and shall not issue any suchpress release or make any such public statement without the prior written consent of Parent, exceptto the extent necessary in response to a judicial or similar investigative inquiry (including adiscovery request in a lawsuit), in which case the Stockholder shall make such disclosure pursuantthereto only after first providing reasonable notice to Parent and affording Parent the opportunityto seek to limit, prevent or protect such disclosure.
     SECTION 1.8. Legending of Certificates. If requested by Parent, the Stockholderagrees to submit to the Company contemporaneously with or as promptly as practicable followingexecution of this Agreement all certificates representing its Shares so that the Company may notethereon a legend, in form and substance reasonably satisfactory to Parent, referring to the Proxyand other rights granted to Parent by this Agreement.
     SECTION 1.9. Additional Shares. The Stockholder hereby agrees, while this Agreementis in effect, to promptly notify Parent of the number of any new Shares acquired (whether upon theexercise of options, conversion of convertible securities, exercise of warrants or by means ofpurchase, dividend, distribution or otherwise) by the Stockholder, if any, after the date hereof.
     SECTION 1.10. Disclosure. The Stockholder hereby authorizes Parent and Merger Sub topublish and disclose in the Proxy Statement (including all documents and schedules filed with theSEC), its identity and ownership of the Company Common Stock and the nature of its commitments,arrangements and understandings under this Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
     The Stockholder hereby represents and warrants to Parent and Merger Sub as follows:
     SECTION 2.1. Due Authorization, etc. The Stockholder has all requisite power andauthority to execute, deliver and perform this Agreement, to appoint Merger Sub and Parent as itsProxy and to consummate the transactions contemplated hereby. The execution, delivery andperformance of this Agreement, the appointment of Merger Sub and Parent as Stockholder’s Proxy andthe consummation of the transactions contemplated hereby have been duly authorized by all necessaryaction on the part of Stockholder. This Agreement has been duly executed and delivered by or onbehalf of the Stockholder and constitutes a legal, valid and binding obligation of the Stockholder,enforceable against the Stockholder in accordance with its terms, except as enforcement may belimited by bankruptcy, insolvency, moratorium or other similar laws and except that theavailability of equitable remedies, including specific performance, is subject to the discretion ofthe court before which any proceeding for such remedy may be brought. There is no beneficiary orholder of a voting trust certificate or other interest of any trust of which the Stockholder istrustee whose consent is required for the execution and delivery of this Agreement or theconsummation by the Stockholder of the transactions contemplated hereby.
     SECTION 2.2. No Conflicts; Required Filings and Consents.
     (a) The execution and delivery of this Agreement by the Stockholder does not, and theperformance of this Agreement by the Stockholder will not, (i) conflict with or violate any trustagreement or other similar documents relating to any trust of which the Stockholder is trustee,(ii) conflict with or violate any law applicable to the Stockholder or by which the Stockholder orany of the Stockholder’s properties is bound or affected or (iii) result in any breach of orconstitute 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, acceleration or cancellation of, or result inthe creation of a lien or encumbrance on any assets of the Stockholder, including,without limitation, the Stockholder’s Shares, pursuant to, any note, bond, mortgage,indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligationto which the Stockholder is a party or by which the Stockholder or any of the Stockholder’s assetsis bound or affected, except, in the case of clauses (ii) and (iii), for any such breaches,defaults or other occurrences that would not prevent or delay the performance by the Stockholder ofthe Stockholder’s obligations under this Agreement.

 


 

     (b) The execution and delivery of this Agreement by the Stockholder does not, and theperformance of this Agreement by the Stockholder will not, require any consent, approval,authorization or permit of, or filing with or notification to, any governmental or regulatoryauthority (other than any necessary filing under the Exchange Act), domestic or foreign, exceptwhere the failure to obtain such consents, approvals, authorizations or permits, or to make suchfilings or notifications, would not prevent or delay the performance by the Stockholder of theStockholder’s obligations under this Agreement.
     SECTION 2.3. Ownership of Shares. The Stockholder is the record and beneficial ownerof the Shares indicated in the preamble hereto. On the date hereof, such Shares constitute all ofthe Shares owned of record or beneficially by the Stockholder. The Stockholder has, with respectto such Shares, or will have, with respect to any other Shares of the Stockholder, sole votingpower, sole power of disposition and sole power to agree to all of the matters set forth in thisAgreement with respect to all of such Shares, with no restrictions, subject to applicablesecurities laws, on the Stockholder’s voting power or rights of disposition pertaining thereto.The Stockholder has good, valid and marketable title to such Shares, free and clear of all claims,liens, encumbrances, mortgages, security interests and charges of any nature whatsoever(“Encumbrances”) (other than the Encumbrance created by this Agreement), and shall not besubject to any preemptive right of any stockholder of the Company.
     SECTION 2.4. No Finder’s Fees. No broker, investment banker, financial advisor orother person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee orcommission in connection with the transactions contemplated hereby based upon arrangements made byor on behalf of the Stockholder. The Stockholder, on behalf of itself and its affiliates, herebyacknowledges that it is not entitled to receive any broker’s, finder’s, financial advisor’s orother similar fee or commission in connection with the transactions contemplated hereby or by theMerger Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
PARENT AND MERGER SUB
     Parent and Merger Sub hereby, jointly and severally, represent and warrant to the Stockholderas follows:
     SECTION 3.1. Due Organization, Authorization, etc. Merger Sub and Parent are dulyorganized, validly existing and in good standing under the laws of the State of Delaware. MergerSub and Parent have all requisite corporate power and authority to execute and deliver thisAgreement and to consummate the transactions contemplated hereby. The execution and delivery ofthis Agreement and the consummation of the transactions contemplated hereby by each of Merger Suband Parent have been duly authorized by all necessary corporate action on the part of Merger Suband Parent, respectively. This Agreement has been duly executed and delivered by each of MergerSub and Parent and constitutes a legal, valid and binding obligation of each of Merger Sub andParent, enforceable against Merger Sub and Parent in accordance with its terms, except asenforcement may be limited by bankruptcy, insolvency, moratorium or other similar laws and exceptthat the availability of equitable remedies, including specific performance, is subject to thediscretion of the court before which any proceeding for such remedy may be brought.
ARTICLE IV.
MISCELLANEOUS
     SECTION 4.1. Definitions. Capitalized terms used but not otherwise defined hereinshall have the meanings ascribed to such terms in the Merger Agreement. The Stockholderacknowledges that the Stockholder has been provided with a copy of the Merger Agreement.
     SECTION 4.2. Termination. This Agreement shall terminate and be of no further forceand effect (i) by the written mutual consent of the parties hereto, (ii) automatically and withoutany required action of the parties hereto upon the Effective Time or (iii) upon termination of theMerger Agreement in accordance with its

 


 

terms. No such termination of this Agreement shall relieve any party hereto from anyliability for any willful breach of this Agreement prior to termination.
     SECTION 4.3. Further Assurance. From time to time, at another party’s request andwithout consideration, each party hereto shall execute and deliver such additional documents andtake all such further action as may be necessary or desirable to consummate and make effective, inthe most expeditious manner practicable, the transactions contemplated by this Agreement.
     SECTION 4.4. Certain Events. The Stockholder agrees that this Agreement and theStockholder’s obligations hereunder shall attach to the Stockholder’s Shares and shall be bindingupon any person or entity to which legal or beneficial ownership of such Shares shall pass, whetherby operation of law or otherwise, including, without limitation, the Stockholder’sheirs, guardians, administrators or successors. Notwithstanding any transfer of Shares, thetransferor shall remain liable for the performance of all its obligations under this Agreement.
     SECTION 4.5. No Waiver. The failure of any party hereto to exercise any right, poweror remedy provided under this agreement or otherwise available in respect hereof at law or inequity, or to insist upon compliance by any other party hereto with its obligations hereunder, orany custom or practice of the parties at variance with the terms hereof shall not constitute awaiver by such party of its right to exercise any such or other right, power or remedy or to demandsuch compliance.
     SECTION 4.6. Specific Performance. The Stockholder acknowledges that if theStockholder fails to perform any of its obligations under this Agreement, immediate and irreparableharm or injury would be caused to Parent and Merger Sub for which money damages would not be anadequate remedy. In such event, the Stockholder agrees that each of Parent and Merger Sub shallhave the right, in addition to any other rights it may have, to specific performance of thisAgreement. Accordingly, if Parent or Merger Sub should institute an action or proceeding seekingspecific enforcement of the provisions hereof, the Stockholder hereby waives the claim or defensethat Parent or Merger Sub, as the case may be, has an adequate remedy at law and hereby agrees notto assert in any such action or proceeding the claim or defense that such a remedy at law exists.The Stockholder further agrees to waive any requirements for the securing or posting of any bond inconnection with obtaining any such equitable relief.
     SECTION 4.7. Notice. All notices and other communications given or made pursuanthereto shall be in writing and shall be deemed to have been duly given or made (i) as of the datedelivered or sent by facsimile if delivered personally or by facsimile, and (ii) on the thirdbusiness day after deposit in the U.S. mail, if mailed by registered or certified mail (postageprepaid, return receipt requested), in each case to the parties at the following addresses (or atsuch other address for a party as shall be specified by like notice, except that notices of changesof address shall be effective upon receipt):
     (a) If to Parent or Merger Sub:
c/o Telmar Network Technology, Inc.
15776 Laguna Canyon Road
Irvine, CA 92618
Attention: John Kidwell
Facsimile: (949) 250-9039



With a copy to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Attention: Steven J. Gartner
Facsimile: (212) 728-8111; and



     (b) If to the Stockholder:

 


 

David Peters
2605 Clipper Court
Richardson, Texas 75082
Facsimile: ___________


     SECTION 4.8. Expenses. Except as otherwise expressly set forth herein, all fees,costs and expenses incurred in connection with this Agreement and the transactions contemplatedhereby shall be paid by the party incurring such fees, costs and expenses.
     SECTION 4.9. Headings. The headings contained in this Agreement are for referencepurposes only and shall not affect in any way the meaning or interpretation of this Agreement.
     SECTION 4.10. Severability. If any term or other provision of this Agreement isinvalid, illegal or incapable of being enforced by any rule of law or public policy, all otherconditions and provisions of this Agreement shall nevertheless remain in full force and effect solong as the economic or legal substance of the transactions contemplated hereby is not affected inany manner adverse to any party. Upon such determination that any term or other provision isinvalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faithto modify this Agreement so as to effect the original intent of the parties as closely as possiblein an acceptable manner to the end that transactions contemplated hereby are fulfilled to themaximum extent possible.
     SECTION 4.11. Entire Agreement; No Third-Party Beneficiaries. This Agreementconstitutes the entire agreement and supersedes any and all other prior agreements andundertakings, both written and oral, among the parties, or any of them, with respect to the subjectmatter hereof, and this Agreement is not intended to confer upon any other person any rights orremedies hereunder.
     SECTION 4.12. Assignment. Neither this Agreement nor any of the rights, interests orobligations under this Agreement shall be assigned, in whole or in part, by operation of law orotherwise.
     SECTION 4.13. Governing Law. This Agreement shall be governed by, and construed inaccordance with, the laws of the State of Delaware applicable to contracts executed in and to beperformed entirely within that State.
     SECTION 4.14. Amendment. This Agreement may not be amended except by an instrument inwriting signed on behalf of Parent, Merger Sub and the Stockholder to be affected thereby.
     SECTION 4.15. Waiver. Any party hereto may (a) extend the time for the performance ofany of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in therepresentations and warranties of the other parties hereto contained herein or in any documentdelivered pursuant hereto and (c) waive compliance by the other parties hereto with any of theiragreements or conditions contained herein. Any agreement on the part of a party hereto to any suchextension or waiver shall be valid only as against such party and only if set forth in aninstrument in writing signed by such party. The failure of any party hereto to assert any of itsrights under this Agreement or otherwise shall not constitute a waiver of those rights.
     SECTION 4.16. Descriptive Headings; Interpretation. The descriptive headings hereinare inserted for convenience of reference only and are not intended to be part of or to affect themeaning or interpretation of this Agreement.
     SECTION 4.17. Counterparts. This Agreement may be executed (including by facsimiletransmission) in one or more counterparts, and by the different parties hereto in separatecounterparts, each of which when executed shall be deemed to be an original but all of which shallconstitute one and the same agreement.
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     IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholder have caused this Agreement to beexecuted as of the date first written above.
                 
    TELMAR NETWORK TECHNOLOGY, INC.    
 
               
 
               
 
               
    By:      /s/ JOHN KIDWELL    
             
 
         Name:   John Kidwell    
 
         Title:   President    
 
               
 
               
 
               
    TELMAR ACQUISITION CORP.    
 
               
 
               
 
               
    By:      /s/ GEORGE ALLEN    
             
 
         Name:   George Allen    
 
         Title:   President    
 
               
 
               
 
               
           /s/ DAVID PETERS    
         
           David Peters