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TENDER AND VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS TENDER AND VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of May 31,
1999 (this "Agreement"), is entered into by and between Intel Corporation, a
Delaware corporation ("Parent"), and Intel LMH Acquisition Corporation, a New
Jersey corporation and wholly-owned subsidiary of Parent ("Acquisition"), on the
one hand, and Xxxxxxx X. Xxxxxxxxx ("Stockholder"), on the other hand.
WITNESSETH:
WHEREAS, concurrently herewith, Parent, Acquisition, and Dialogic
Corporation, a New Jersey corporation (the "Company"), have entered into an
Agreement and Plan of Merger, of even date herewith (as such agreement may
hereafter be amended from time to time, the "Merger Agreement"; initially
capitalized and other terms used but not defined herein shall have the meanings
ascribed to them in the Merger Agreement), pursuant to which Acquisition will
make a tender offer (the "Offer") for all outstanding shares of common stock, no
par value, of the Company ("Company Common Stock") and, after Acquisition has
accepted tendered shares for payment (the date on which such acceptance occurs,
the "Acceptance Date"), the Company and Acquisition will merge with the Company
as the surviving corporation and wholly-owned subsidiary of Parent (the
"Merger");
WHEREAS, Stockholder Beneficially Owns (as defined herein) 1,443,050 shares
of Company Common Stock (the "Shares"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent and Acquisition have requested that Stockholder agree, and
Stockholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
1. Provisions Concerning Company Common Stock.
(a) Tender of Shares. Stockholder hereby agrees with Parent and
Acquisition that, subject to Section 4(f), Stockholder will, promptly after the
date of commencement of the Offer (but in all events not later than five (5)
business days thereafter), tender to Acquisition all Shares Beneficially Owned
by Stockholder on such date (the "Tendered Shares"). Stockholder further agrees
to tender to Acquisition promptly after Stockholder's acquisition thereof (but
in all events not later than five (5) business days thereafter) all other shares
of Company Common Stock acquired and Beneficially Owned by Stockholder at any
time prior to the Acceptance Date or the date on which the Offer is terminated
or expires without Acquisition's having accepted shares for payment; all such
subsequently tendered Shares shall constitute "Tendered Shares" for all purposes
of this Agreement. Stockholder agrees not to withdraw any of the Tendered Shares
unless the Offer is terminated or has expired without Acquisition's having
accepted the Tendered Shares for payment. Stockholder acknowledges and agrees
that Acquisition's obligation to accept for payment and pay for the Tendered
Shares is subject to all the terms and conditions of the Offer.
(b) Voting Agreement. Stockholder hereby agrees with Parent and
Acquisition that, at any meeting of the Company's stockholders, however called,
or in connection with any written consent of the Company's stockholders,
Stockholder shall, subject to Section 4(f) vote the Shares Beneficially Owned by
Stockholder, whether heretofore owned or hereafter acquired, (i) in favor of
approval of the Merger Agreement and any actions required in furtherance of the
transactions contemplated thereby, including without limitation voting such
shares in favor of the election to the Company Board of each person designated
by Parent for nomination thereto pursuant to Section 1.3(a) of the Merger
Agreement at any meeting of the Company's stockholders called for the election
of directors; (ii) against any action or agreement that would result in a breach
in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement; and (iii)
except as otherwise agreed to in writing in advance by Parent, against: (A) any
Third Party Acquisition, (B) any change in a majority of the individuals
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who, as of the date hereof, constitute the Board of Directors of the Company
(other than as contemplated by Section 1.3 of the Merger Agreement), (C) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its subsidiaries and any
Third Party, (D) a sale, lease, transfer or disposition of any assets of the
Company's or any of its subsidiaries' business outside the ordinary course of
business, or any assets which are material to its business whether or not in the
ordinary course of business, or a reorganization, recapitalization, dissolution
or liquidation of the Company or any of its subsidiaries, (E) any change in the
present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or bylaws, (F) any other material change in the
Company's corporate structure or affecting its business, or (G) any other action
which is intended, or could reasonably be expected, to impede, interfere with,
delay, postpone or materially adversely affect the Offer, the Merger or any of
the other transactions contemplated by the Merger Agreement or the Stock Option
Agreement, or any of the transactions contemplated by this Agreement.
Stockholder shall not enter into any agreement or understanding with any person
the effect of which would be inconsistent or violative of the provisions and
agreements contained herein. For purposes of this Agreement, "Beneficially Own"
or "Beneficial Ownership" with respect to any securities shall mean
Stockholder's having such ownership, control or power to direct the voting with
respect to, or otherwise enables Stockholder to legally act with respect to,
such securities as contemplated hereby, including pursuant to any agreement,
arrangement or understanding, whether or not in writing but shall not include
the shares listed on Exhibit A hereto. Securities Beneficially Owned by
Stockholder shall include securities Beneficially Owned by all other persons
with whom Stockholder would constitute a "group" as within the meaning of
Section 13(d)(3) of the Exchange Act of 1934, as amended (the "Exchange Act")
but shall not include the shares listed on Exhibit a hereto. Stockholder and
Parent acknowledge and agree that nothing in this subsection (b) shall require
or be construed to require Stockholder to take any action in his capacity as a
member of the Company Board.
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Acquisition, which
shall act by and through Xxxx Xxxxxxx and Xxx X. Xxxxxxx (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement, the Merger or any of the
other transactions contemplated by the Merger Agreement, or any Third Party
Acquisition, or to execute a written consent of stockholders in lieu of any such
meeting, all Shares Beneficially Owned by Stockholder as of the date of such
meeting or written consent in favor of the approval of the Merger Agreement, the
Merger and the other transactions contemplated by the Merger Agreement, with
such modifications to the Merger Agreement as the parties thereto may make, or
against a Third Party Acquisition, as the case may be. Such proxy shall be
limited strictly to the power to vote the Shares in the manner set forth in the
preceding sentence and shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Parent and Acquisition acknowledge and
agree that no provision of this Agreement shall limit or otherwise restrict
Stockholder with respect to any act or omission that Stockholder may undertake
or authorize in his capacity as a director of Dialogic, including, without
limitation, any vote that Stockholder may make as a director of Dialogic with
respect to any matter presented to the Board of Directors of Dialogic.
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4. Other Covenants, Representations and Warranties. Stockholder hereby
represents and warrants to Parent and Acquisition as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of all
the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except as
expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any existing discussions or negotiations, if any, with any persons
conducted heretofore with respect to any acquisition of all or any material
portion of the assets of, or any equity interest in, the Company or any of its
subsidiaries, or any business combination with the Company or its subsidiaries,
in his, her or its capacity as such; (ii) from and after the date hereof until
the earlier of the termination of the Merger Agreement in accordance with its
terms and the Effective Time, shall not, in such capacity, directly or
indirectly, initiate, solicit or knowingly encourage (including, without
limitation, by way of furnishing non-public information or assistance), or take
any other action to facilitate knowingly, any inquiries or the making of any
Third Party Acquisition; and (iii) shall promptly notify Parent of any proposals
for, or inquiries with respect to, a potential Third Party Acquisition received
by Stockholder or of which Stockholder otherwise has knowledge.
(e) Reliance by Parent and Acquisition. Stockholder understands and
acknowledges that Parent and Acquisition are entering into the Merger Agreement
in reliance upon Stockholder's execution and delivery of this Agreement.
(f) Permitted Transfers.
(i) Stockholder shall have the right to transfer to one or more
charitable entities an aggregate of 72,152 Shares, free and clear of any of the
restrictions set forth in this Agreement.
(ii) Stockholder shall have the right to transfer, assign, pledge
or otherwise dispose of any or all of the Shares to a Permitted Transferee,
provided that, prior to the transfer such proposed Permitted Transferee executes
an agreement substantially similar to this Agreement and otherwise in form and
substance reasonably satisfactory to Parent confirming that such transferred
Shares shall be held by the proposed Permitted Transferee subject to the terms
and conditions of this Agreement. For purposes of this Agreement, the term
"Permitted Transferee" means any corporation duly and validly organized and
existing under the laws of one of the states of the United States and controlled
by Stockholder.
5. Stop Transfer. Stockholder agrees with, and covenants to, Parent and
Acquisition that Stockholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares, unless such transfer is made pursuant to this
Agreement. In the event of a stock dividend or distribution, or any change in
the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall
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be deemed to refer to and include the Shares as well as all such stock dividends
and distributions and any shares into which or for which any or all of the
Shares may be changed or exchanged.
6. Termination. The proxy granted pursuant to Section 2 hereof and
Stockholder's covenants and agreements contained herein with respect to the
Shares shall terminate upon the earliest to occur of: (a) the termination of the
Merger Agreement in accordance with its terms; (b) the Acceptance Date; and (c)
June 30, 2000.
7. Miscellaneous.
(a) Entire Agreement. 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, among the
parties with respect to the subject matter hereof.
(b) Certain Events. Subject to Section 4(f)(i) Stockholder agrees
that this Agreement and the obligations hereunder shall attach to the Shares and
shall be binding upon any person to which legal or beneficial ownership of any
Shares shall pass, whether by operation of law or otherwise. Notwithstanding any
transfer of Shares, the transferor shall remain liable for the performance of
all obligations under this Agreement of the transferor.
(c) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other party; provided,
however, that Parent may, in its sole discretion, assign its rights and
obligations hereunder to any direct wholly-owned subsidiary of Parent.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: 00X Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
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with a copy to: Dialogic Corporation
0000 Xxxxx 00
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
Pitney Xxxxxx Xxxx & Xxxxx
Park Avenue
Xxxxxx County Box 1945
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxx Xxxxx, Esq.
and
Xxxxxxxxxx Xxxxxxx P.C.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
If to Parent or Acquisition: Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
and
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Treasurer
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain
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damage for which it would not have an adequate remedy at law for money damages,
and therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity.
(h) No Waiver. 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.
(i) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New Jersey, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, Parent, Acquisition and Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
INTEL CORPORATION, a Delaware
corporation
By: /s/ XXXXXX XXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Treasurer
Intel LMH Acquisition Corporation,
a New Jersey corporation
By: /s/ XXXXXX XXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Treasurer
STOCKHOLDER:
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
[SIGNATURE PAGE FOR INTEL/DIALOGIC STOCKHOLDER TENDER AND
VOTING AND IRREVOCABLE PROXY]
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EXHIBIT A
Xxxxxxx X. Xxxxxxxxx shall not be deemed to be the Beneficial Owner of the
103,500 shares of Dialogic Common Stock held by Xxxxxx Xxxxxxxxx in trust for
Xxxxxxx Xxxx Xxxxxxxxx, III, Xxxxxxxxxxx X. Xxxxxxxxx and Xxxxxxxx X. Xxxxxxxxx.
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