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EXHIBIT 99.(c)(2)
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of April 27,
1999, is made by and among InterVoice, Inc., a Texas corporation ("Parent"),
InterVoice Acquisition Subsidiary III, Inc., a Nevada corporation and a wholly
owned subsidiary of Parent (the "Purchaser") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇ (on his own behalf, as well as on behalf of his minor
children for whom ▇▇. ▇▇▇▇▇ acts as custodian for 80,000 shares of Common Stock
(as hereinafter defined) beneficially owned by his minor children), ▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
▇▇▇▇ ▇. ▇▇▇▇▇▇, III (collectively, the "Stockholders").
WHEREAS, the Stockholders are, as of the date hereof, the record and
beneficial owners of approximately 3,090,541 shares (as may be adjusted from
time to time pursuant to Section 6 hereof, the "Shares") of common stock, no par
value (the "Common Stock") of Brite Voice Systems, Inc., a Kansas corporation
(the "Company");
WHEREAS, certain of the Stockholders also own options to purchase
shares of Common Stock (the "Stock Options") pursuant to various stock option
plans maintained by the Company;
WHEREAS, Parent, the Purchaser and the Company concurrently herewith
are entering into an Acquisition Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"), which provides, among other things, for
the acquisition of the Company by Parent by means of a cash tender offer (the
"Offer") for up to 9,158,155 shares of Common Stock and for the subsequent
merger (the "Merger") of the Purchaser with and into the Company upon the terms
and subject to the conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and the Purchaser
to enter into the Merger Agreement, and in order to induce Parent and the
Purchaser 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
Parent and the Purchaser of the Merger Agreement, the foregoing preamble and the
mutual representations, warranties, covenants and agreements set forth 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
Stockholder hereby, severally and not jointly, represents and warrants to Parent
and the Purchaser as follows:
(a) Such Stockholder is the record and beneficial owner of that number
of shares of Common Stock set forth below opposite such Stockholder's name:
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Shares
Name of Common Stock
---- ---------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,141,962
---------------
▇▇▇ ▇▇▇▇▇▇▇ 25,000
---------------
▇▇▇▇ ▇. ▇▇▇▇▇ 1,225,106
---------------
▇▇▇▇ ▇. ▇▇▇▇▇, as custodian 80,000
---------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ 472,621
---------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ 25,321
---------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ 115,000
---------------
▇▇▇ ▇. ▇▇▇▇▇▇ 0
---------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 3,698
---------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, III 1,833
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(b) Such Stockholder holds Stock Options covering that number of shares
of Common Stock set forth below opposite such Stockholder's name:
Share of Common Stock
Name Covered by Stock Options
---- ------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4,500
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▇▇▇ ▇▇▇▇▇▇▇ 0
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▇▇▇▇ ▇. ▇▇▇▇▇ 4,500
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▇▇▇▇ ▇. ▇▇▇▇▇, as custodian 0
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▇▇▇▇▇ ▇. ▇▇▇▇▇ 0
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ 139,000
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▇▇▇▇ ▇. ▇▇▇▇▇▇ 50,000
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▇▇▇ ▇. ▇▇▇▇▇▇ 140,000
------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 142,750
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▇▇▇▇ ▇. ▇▇▇▇▇▇, III 23,500
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(c) Such Stockholder has all requisite power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby, and has taken any necessary action to authorize the execution, delivery
and performance of this Agreement.
(d) This Agreement has been duly authorized, executed and delivered by
such Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
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(e) Neither the execution and delivery of this Agreement nor the
consummation by such Stockholder of the transactions contemplated hereby will
result in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction of any
kind to which such Stockholder is a party or bound or to which those Shares or
Stock Options owned by such Stockholder are subject. Consummation by such
Stockholder of the transactions contemplated hereby will not violate, or require
any consent, approval, or notice under, any provision of any judgment, order,
decree, statute, law, rule or regulation applicable to such Stockholder or those
Shares or Stock Options owned by such Stockholder, except for any necessary
filing under Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), or state takeover laws.
(f) The certificates representing those 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 liens, 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.
SECTION 2. Representations and Warranties of Parent and the Purchaser.
Each of Parent and the Purchaser hereby, jointly and severally, represents and
warrants to the Stockholders as follows:
(a) Each of Parent and the Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the States of Texas and
Nevada, respectively, has all requisite corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby, and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
each of Parent and the Purchaser and constitutes the legal, valid and binding
obligation of each of Parent and the Purchaser, enforceable against each of them
in accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) the availability
of the remedy of specific performance or injunctive or other forms of equitable
relief may be subject to equitable defenses and would be subject to the
discretion of the court before which any proceeding therefor may be brought.
(c) Neither the execution and delivery of this Agreement nor the
consummation by each of Parent and the Purchaser of the transactions
contemplated hereby will result in a violation of, or a default under, or
conflict with, any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which Parent or the Purchaser is a
party or bound. The consummation by each of Parent and the Purchaser of the
transactions contemplated hereby will not violate, or require any consent,
approval, or notice under, any provision of any judgment, order, decree,
statute, law, rule or regulation applicable to either Parent or the Purchaser,
except for any necessary filing under the HSR Act or state takeover laws.
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SECTION 3. Purchase and Sale of the Shares. Each Stockholder hereby
agrees, severally but not jointly, that he or she shall tender the Shares into
the Offer promptly, and in any event no later than the third (3RD) business day
following the commencement of the Offer, and that the Stockholders shall not
withdraw any Shares so tendered. The Purchaser hereby agrees to purchase all the
Shares so tendered at a price per Share equal to Thirteen and 40/100s Dollars
($13.40) (the "Offer Price") or any higher price that may be paid in the Offer;
provided, however, that the Purchaser's obligation to accept for payment and pay
for the Shares in the Offer is subject to all the terms and conditions of the
Offer set forth in the Merger Agreement and Annex I thereto.
SECTION 4. Transfer of the Shares. Prior to the termination of this
Agreement, except as otherwise provided herein, each Stockholder agrees,
severally but not jointly, not to: (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of the Shares
or the Stock Options; (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of those Shares or
Stock Options owned by such Stockholder or any interest therein; (iii) grant any
proxy, power-of-attorney or other authorization or consent in or with respect to
those Shares owned by such Stockholder or grant any power of attorney or other
authorization or consent in or with respect to those Stock Options owned by such
Stockholder; (iv) deposit those Shares owned by such Stockholder into a voting
trust or enter into a voting agreement or arrangement with respect to such
Shares or (v) take any other action that would in any way restrict, limit or
interfere with the performance of such Stockholder's obligations hereunder or
the transactions contemplated hereby.
SECTION 5. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Each Stockholder hereby irrevocably grants to, and appoints, Parent
and any nominee thereof, as such Stockholder's respective proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of such Stockholder, to vote those Shares owned by such Stockholder,
or grant a consent or approval in respect of such Shares, in connection with any
meeting of the stockholders of the Company (i) in favor of the Merger, and (ii)
against any action or agreement which would impede, interfere with or prevent
the Merger, including any other extraordinary corporate transaction, such as a
merger, reorganization or liquidation involving the Company and a third party or
any other proposal of a third party to acquire the Company.
(b) Each Stockholder represents, severally but not jointly, that any
proxies, if any, heretofore given in respect of those Shares owned by such
Stockholder are not irrevocable, and that such proxies are hereby revoked.
(c) Each Stockholder hereby affirms, severally but not jointly, that
such Stockholder's irrevocable proxy set forth in this Section 5 is given in
connection with the execution of the Merger Agreement, and that such irrevocable
proxy is given to secure the performance of the duties of such Stockholder under
this Agreement. Each Stockholder hereby further affirms, severally but not
jointly,
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that such Stockholder's irrevocable proxy is coupled with an interest and,
except as set forth in Section 9 hereof, is intended to be irrevocable in
accordance with the provisions of Section 17-6502 of the Kansas General
Corporation Code (the "KGCC").
SECTION 6. Certain Events. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock or the acquisition
of additional shares of Common Stock or other securities or rights of the
Company by the Stockholders, the number of Shares and the number of shares of
Common Stock covered by the Stock Options shall be adjusted appropriately, and
this Agreement and the obligations hereunder shall attach to any additional
shares of Common Stock or other securities or rights of the Company issued to or
acquired by the Stockholders.
SECTION 7. Stock Option Cash-Out. Subject to the completion of the
Merger, each Stockholder that holds Stock Options as of the date hereof hereby
agrees, severally but not jointly, that he or she shall, in accordance with
Section 2.4 of the Merger Agreement, surrender such Stock Options to the Company
for cancellation prior to the Effective Time (as defined in the Merger
Agreement). Subject to the conditions set forth in the immediately preceding
sentence and within ten (10) days after the Effective Time of the Merger, the
Company will pay the respective holders of those Stock Options that are "in the
money" an amount, in cash, equal to product of (i) the difference between the
Offer Price and the respective per share exercise prices of such Stock Options,
multiplied by (ii) the number of shares of Common Stock covered by the
respective Stock Options.
SECTION 8. Certain Other Agreements.
(a) Except as provided in this Section 8 hereof, each Stockholder will
not, and will ensure that such Stockholder's, employees, investment bankers,
attorneys, accountants and other agents do not, directly or indirectly: (i)
initiate, solicit or encourage, or take any action to facilitate the making of,
any offer or proposal which constitutes or is reasonably likely to lead to any
Acquisition Proposal (as defined in the Merger Agreement), (ii) enter into any
agreement with respect to any Acquisition Proposal, or (iii) in the event of an
unsolicited Acquisition Proposal for the Company, engage in negotiations or
discussions with, or provide any information or data to, any Person (as defined
in the Merger Agreement) (other than Parent, any of its affiliates or
representatives) relating to any Acquisition Proposal; provided, however, that
nothing contained in this Section 8 or any other provision hereof shall prohibit
Stockholders, on behalf of the Company or the Company's Board of Directors, from
(i) taking and disclosing to the Company's stockholders, its position with
respect to a tender or exchange offer by a third party pursuant to Rules 14d-9
and 14e-2 promulgated under the Exchange Act or (ii) making such disclosure to
the Company's stockholders as is reasonably deemed necessary, in the good faith
judgment of the Company's Board of Directors after receipt of advice from
outside legal counsel to the Company that such disclosure is required under
applicable law and that the failure to make such disclosure would cause the
Company's Board of Directors to violate its fiduciary duties to the Company's
stockholders under applicable law.
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(b) Notwithstanding the foregoing, prior to the acceptance of Shares
pursuant to the Offer, each Stockholder may furnish information concerning the
Company's business, properties or assets to any Person pursuant to a
confidentiality agreement with terms no less favorable to such Stockholder and
the Company than those contained in the Confidentiality Agreement, dated March
12, 1999 entered into between Parent and the Company (the "Confidentiality
Agreement") and may negotiate and participate in discussions and negotiations
with such Person concerning an Acquisition Proposal if (x) such entity or group
has on an unsolicited basis submitted a bona fide written proposal to the
Company relating to any such transaction which the Company's Board of Directors
determines in good faith, after receiving advice from a nationally recognized
investment banking firm, represents a superior transaction to the Offer and the
Merger and (y) the Company's Board of Directors determines in good faith, only
after receipt of written advice from outside legal counsel to the Company, that
the failure to provide such information or access or to engage in such
discussions or negotiations would cause the Company's Board of Directors to
violate its fiduciary duties to the Company's stockholders under applicable law
(an Acquisition Proposal which satisfies clauses (x) and (y) being referred to
herein as a "Superior Proposal"). Each Stockholder shall promptly, and in any
event within one (1) business day following receipt of a Superior Proposal,
notify Parent of the receipt of the same and prior to providing any such party
with any material non-public information. Each Stockholder shall promptly
provide to Parent any material non-public information regarding the Company
provided to any other party which was not previously provided to Parent.
(c) Except as set forth herein, no Stockholder shall (i) approve or
recommend or propose to approve or recommend, any Acquisition Proposal or (ii)
enter into any agreement with respect to any Acquisition Proposal.
Notwithstanding the foregoing, prior to the time of acceptance for payment of
Shares in the Offer, each Stockholder may (subject to the terms of this sentence
and the following sentence) enter into an acquisition agreement with respect to
a Superior Proposal, in which event each Stockholder may take any of the actions
set forth in clauses (i) through (ii) of the immediately preceding sentence;
provided, however, that no Stockholder shall enter into an acquisition agreement
with respect to a Superior Proposal unless the Company shall have furnished
Parent with written notice not later than the first to occur of (i) 12:00 noon
three (3) business days in advance of any date that it intends to enter into
such acquisition agreement or (ii) two (2) business days prior to the expiration
of the Offer; and shall have caused its financial and legal advisors to
negotiate with Parent to make such adjustments in the terms and conditions of
this Agreement as would enable the Stockholder to proceed with the Transactions
contemplated herein on such adjusted terms.
SECTION 9. Further Assurances. Each Stockholder shall, upon request of
Parent or the Purchaser, execute and deliver any additional documents and take
such further actions as may reasonably be deemed by Parent or the Purchaser to
be necessary or desirable to carry out the provisions hereof and to vest in
Parent the power to vote those Shares owned by such Stockholder as contemplated
by Section 5 hereof.
SECTION 10. Termination. This Agreement, and all rights and obligations
of the parties hereunder, shall terminate immediately upon the earliest of (a)
the termination of the Merger Agreement in accordance with its terms, (b) the
Effective Time (as defined in the Merger Agreement),
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or (c) written notice by Parent that Parent, in its sole discretion determines
to terminate this Agreement; provided, however, that Section 11 hereof shall
survive any termination of this Agreement.
SECTION 11. Expenses. All fees and expenses incurred by any one party
hereto shall be borne by the party incurring such fees and expenses.
SECTION 12. Public Announcements. The initial press release with
respect to the execution of this Agreement and the Merger Agreement shall be a
joint press release acceptable to Parent, the Purchaser and the Stockholders.
Thereafter, so long as this Agreement is in effect, neither the Parent,
Purchaser, nor the Stockholders, nor any of their respective affiliates shall
issue or cause the publication of any press release or other announcement with
respect to the Merger Agreement, this Agreement or the other Transactions (as
defined in the Merger Agreement) without the prior consultation of the other
party, except as such party believes, after receiving the advice of outside
counsel, may be required by law or by any listing agreement with a national
securities exchange or trading market. Stockholders hereby designate the Company
to represent them in connection with any press releases and announcements.
SECTION 13. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to such terms in the Merger
Agreement.
(b) All notices and other communications hereunder shall be in writing
and shall be deemed given upon (i) transmitter's confirmation of a receipt of a
facsimile transmission, (ii) confirmed delivery by a standard overnight carrier
or when delivered by hand or (iii) the expiration of five (5) business days
after the day when mailed in the United States by certified or registered mail,
postage prepaid, addressed at the following addresses (or at such other address
for a party as shall be specified by like notice):
(A) if to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, to:
c/o Brite Voice Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(B) if to ▇▇▇ ▇▇▇▇▇▇▇, to:
c/o Brite Voice Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(C) if to ▇▇▇▇ ▇. ▇▇▇▇▇, Individually or as Custodian, to:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(D) if to ▇▇▇▇▇ ▇. ▇▇▇▇▇, to:
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: _______________
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(E) if to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, to:
c/o Brite Voice Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(F) if to ▇▇▇▇ ▇. ▇▇▇▇▇▇, to:
c/o Brite Voice Systems, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(G) if to ▇▇▇ ▇. ▇▇▇▇▇▇, to:
c/o Brite Voice Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(H) if to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, to:
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c/o Brite Voice Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(I) if to ▇▇▇▇ ▇. ▇▇▇▇▇▇, III, to:
c/o The Kelsey Group
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
and
(J) if to Parent or the Purchaser, to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Vice President and Corporate Counsel
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
(c) 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.
(d) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall be considered one and
the same agreement.
(e) This Agreement (including the Merger Agreement and any other
documents and instruments referred to herein) constitutes the entire agreement,
and supersedes all prior agreements and understandings, whether written and
oral, among the parties hereto with respect to the subject matter hereof.
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(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Texas without giving effect to the principles of
conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by, the parties and their respective
successors and assigns, and the provisions of this Agreement are not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(h) If any term, provision, covenant, restriction or part of the
Agreement herein is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable (either generally or with respect to
certain of the Shares) or against its regulatory policy, the remainder of the
terms, provisions, covenants, restrictions and parts of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired,
invalidated or removed.
(i) 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 (i) will waive, in any
action for specific performance, the defense of adequacy of a remedy at law and
(ii) 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
in any action instituted in any state or federal court sitting in Dallas, Texas.
The parties hereto consent to personal jurisdiction in any such action brought
in any state or federal court sitting in Dallas, Texas and to service of process
upon it in the manner set forth in Section 12(b) hereof.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by
such party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Parent, the Purchaser and the Stockholders have
caused this Agreement to be duly executed and delivered as of the date first
written above.
INTERVOICE, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Chairman and Chief Executive
--------------------------------
Officer
--------------------------------
INTERVOICE ACQUISITION SUBSIDIARY III,
INC.
By /s/ ▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: President
--------------------------------
STOCKHOLDERS
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ (on his own behalf and on
behalf of his minor children with
respect to those Shares for which he
acts as custodian)
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
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STOCKHOLDERS (continued)
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, III
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, III
12
