NOVA VOTING AGREEMENT
NOVA VOTING AGREEMENT
This Voting Agreement (“Agreement”) is made and
entered into as of May 9, 2005, by and between ScanSoft,
Inc., a Delaware corporation (“Saturn”), and
the undersigned stockholder (“Stockholder”) of
Nuance Communications, Inc., a Delaware corporation
(“Nova”).
RECITALS
A. Saturn, Nova Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of Saturn
(“Sub I”), Nova Acquisition LLC, a Delaware
limited liability company and a wholly-owned subsidiary of
Saturn (“Sub II” and together with
Sub I, the “Subs”), and Nova have entered
into an Agreement and Plan of Merger dated as of
May , 2005 (the
“Merger Agreement”), which provides for
(i) the merger of Sub I with and into Nova (the
“First Step Merger”), with Nova being the
surviving corporation (the “Interim Surviving
Corporation”), and (ii) the subsequent merger of
the Interim Surviving Corporation with and into Sub II (the
“Second Step Merger” and, taken together with
the First Step Merger, the “Merger”), with
Sub II being the surviving entity. Pursuant to the Merger,
all outstanding capital stock of Nova shall be converted into
the right to receive cash and common stock of Saturn.
B. Stockholder is the holder of record and the beneficial
owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”)) of such number of shares of the outstanding
capital stock of Nova, and such number of shares of capital
stock of Nova issuable upon the exercise of outstanding options
and warrants, as is indicated on the signature page of this
Agreement.
C. In consideration of the execution of the Merger
Agreement by Saturn, Stockholder (in his or her capacity as
such) has agreed to vote the Shares (as defined below) and such
other shares of capital stock of Nova over which Stockholder has
voting power, so as to facilitate consummation of the
transactions contemplated by the Merger Agreement.
NOW, THEREFORE, intending to be legally bound hereby, the
parties hereto hereby agree as follows:
| 1. Certain Definitions. Capitalized terms used but not defined herein shall have the respective meanings ascribed thereto in the Merger Agreement. For all purposes of and under this Agreement, the following terms shall have the following respective meanings: |
| 1.1 “Expiration Date” shall mean the earlier to occur of (i) such date and time as the Merger Agreement shall have been validly terminated pursuant to its terms, or (ii) such date and time as the Merger shall become effective in accordance with the terms and conditions set forth in the Merger Agreement. | |
| 1.2 “Person” shall mean any individual, any corporation, limited liability company, general or limited partnership, business trust, unincorporated association or other business organization or entity, or any governmental authority. | |
| 1.3 “Shares” shall mean: (i) all securities of Nova (including all shares of Nova Common Stock and all options, warrants and other rights to acquire shares of Nova Common Stock) Owned by Stockholder as of the date of this Agreement, and (ii) all additional securities of Nova (including all additional shares of Nova Common Stock and all additional options, warrants and other rights to acquire shares of Nova Common Stock) of which Stockholder acquires Ownership during the period commencing with the execution and delivery of this Agreement until the Expiration Date. Stockholder shall be deemed to “Own” or to have acquired “Ownership” of a security if Stockholder: (i) is the record owner of such security; or (ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of such security. | |
| 1.4 “Transfer”. A Person shall be deemed to have effected a “Transfer” of a security if such Person directly or indirectly (i) sells, tenders, pledges, encumbers, hypothecates, grants an |
| option with respect to, transfers, assigns or otherwise disposes of such security or any interest therein, or (ii) enters into an agreement, arrangement, understanding or commitment, whether or not in writing, to effect any of the foregoing, or (iii) reduces such Person’s Ownership of such security. |
| 2. Transfer of Shares. | |
| 2.1 Restriction on Transfer of Shares. Subject to Section 2.2, Stockholder shall not, during the term of this Agreement, directly or indirectly: (i) cause or permit any Transfer of any or all of the Shares or any interest therein; (ii) grant any proxies or powers of attorney with respect to any Shares not Transferred or deposit any Shares not Transferred into a voting trust or enter into a voting agreement with respect to any Shares not Transferred, 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 (it being understood that nothing contained in this Agreement shall be deemed to restrict the ability of Stockholder to exercise (but not Transfer) any Nova Options held by Stockholder prior to the Expiration Date). Stockholder further agrees with and covenants to Saturn that Stockholder shall not request that Nova register the Transfer of any certificate or uncertificated interest representing any of the Shares, unless such Transfer is made in compliance with this Agreement. Stockholder agrees that, in order to ensure compliance with the restrictions referred to herein, Nova may issue appropriate “stop transfer” instructions to its transfer agent. | |
| 2.2 Permitted Transfers. Section 2.1 shall not prohibit (i) a Transfer of Shares expressly contemplated by this Agreement or the Merger Agreement, (ii) sales of Shares by Stockholder in connection with 10b5-1 plans of Nova currently in effect, (iii) pledges in effect as of the date hereof and disclosed on Schedule 2.2 hereto, (iv) a Transfer or Transfers by Stockholder of not more than 20,000 Shares in the aggregate after the date hereof, or (v) a Transfer of Shares by Stockholder: (A) if Stockholder is an individual, to any member of Stockholder’s immediate family or to a trust established for the benefit of Stockholder and/or for the benefit of one or more members of Stockholder’s immediate family or upon the death of Stockholder or (B) if Stockholder is a partnership or limited liability company, to one or more partners or members of Stockholder or to an affiliated corporation under common control with Stockholder, provided that a Transfer referred to in clause (v) shall be permitted only if, as a precondition to such transfer, the transferee of such Shares agrees to be bound by the terms and conditions of this Agreement. | |
| 3. Agreement to Vote Shares. Until the Expiration Date, at every meeting of stockholders of Nova called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of stockholders of Nova with respect to any of the following, Stockholder shall vote, to the extent not voted by the Person(s) appointed under the Proxy (as defined in Section 4 hereof), the Shares Owned by Stockholder: |
| 3.1 in favor of (i) the approval of the Merger and the adoption and approval of the Merger Agreement, (ii) each of the other actions contemplated by the Merger Agreement, as the Merger Agreement may be modified or amended from time to time, and (iii) the Proxy and any action required in furtherance thereof; | |
| 3.2 against approval of any proposal made in opposition to, or in competition with, consummation of the Merger and the transactions contemplated by the Merger Agreement; | |
| 3.3 against any amendment to Nova’s certificate of incorporation or bylaws; | |
| 3.4 against any other action that 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 Merger Agreement; | |
| 3.5 against any proposal that would result in a breach by Nova of the Merger Agreement; and |
2
| 3.6 against the election of a group of individuals to replace a majority or more of the individuals on the Board of Directors of Nova as of the date of this Agreement. |
| In all other matters, the Shares shall be voted by and in a manner determined by Stockholder in Stockholder’s sole discretion. | |
| Prior to the Expiration Date, Stockholder shall not enter into any agreement or understanding with any Person to vote or give instructions in any manner inconsistent with the terms of this Section 3. | |
| 4. Irrevocable Proxy. Concurrently with the execution of this Agreement, Stockholder agrees to deliver to Saturn a proxy in the form attached hereto as Exhibit A (the “Proxy”), which shall be irrevocable to the fullest extent permissible by applicable law, with respect to the Shares. | |
| 5. Representations, Warranties and Covenants of Stockholder. | |
| 5.1 Stockholder hereby represents and warrants to Saturn that, as of the date hereof and at all times until the Expiration Date, (i) Stockholder is and will be the beneficial owner of the shares of Nova Common Stock (unless otherwise Transferred in accordance with this Agreement), and the options, warrants and other rights to purchase shares of Nova Common Stock, set forth on signature page of this Agreement, with full power to vote or direct the voting of the Shares; (ii) the Shares are and will be, unless otherwise Transferred in accordance with this Agreement, free and clear of any liens, pledges, security interests, claims, options, rights of first refusal, co-sale rights, charges or other encumbrances of any kind or nature (other than pursuant to the terms of restricted stock agreements as in effect on the date hereof and except for applicable restrictions on transfer under applicable securities laws or under this Agreement and except for applicable community property laws); (iii) Stockholder does not Own any securities of Nova other than the shares of Nova Common Stock, and options, warrants and other rights to purchase shares of Nova Common Stock, set forth on the signature page of this Agreement; (iv) with respect to the Shares, Stockholder has and will have full power and authority to make, enter into and carry out the terms of this Agreement and the Proxy (unless such Shares are otherwise Transferred in accordance with this Agreement) and to perform Stockholder’s obligations hereunder and thereunder; (v) the execution, delivery and performance of this Agreement by Stockholder will not violate any agreement or court order to which the Shares are subject, including, without limitation, any voting agreement or voting trust; and (vi) this Agreement has been duly and validly executed and delivered by Stockholder and constitutes a valid and binding agreement of Stockholder, enforceable against Stockholder in accordance with its terms, subject to: (A) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (B) rules of law governing specific performance, injunctive relief and other equitable remedies. | |
| 5.2 Stockholder agrees that it will not bring, commence, institute, maintain, prosecute, participate in or voluntarily aid any action, claim, suit or cause of action, in law or in equity, in any court or before any governmental entity, which (a) challenges the validity of or seeks to enjoin the operation of any provision of this Agreement or (b) alleges that the execution and delivery of this Agreement by Stockholder, either alone or together with the other Nova voting agreements and proxies to be delivered in connection with the execution of the Merger Agreement, or the approval of the Merger Agreement by the board of directors of Nova, breaches any fiduciary duty of the board of directors of Nova or any member thereof; provided, that Stockholder may defend against, contest or settle any such action, claim, suit or cause of action brought against Stockholder that relates solely to Stockholder’s capacity as a director or officer of Nova. | |
| 6. Additional Documents. Stockholder and Saturn hereby covenant and agree to execute and deliver any additional documents reasonably necessary or desirable to carry out the purpose and intent of this Agreement. | |
| 7. Legending of Shares. If so requested by Saturn, Stockholder hereby agrees that the Shares shall bear a legend stating that they are subject to this Agreement and to an irrevocable proxy. |
3
| 8. Termination. This Agreement shall terminate automatically and be of no further force or effect as of the Expiration Date. | |
| 9. Fiduciary Duties. Each Stockholder is signing this Agreement solely in such Stockholder’s capacity as an owner of his, her or its respective Shares, and nothing herein shall affect, limit, prohibit, prevent or preclude such Stockholder from taking or not taking any action in his or her capacity as an officer or director of Nova, to the extent permitted by the Merger Agreement. | |
| 10. Miscellaneous. | |
| 10.1 Waiver. No waiver by any party hereto of any condition or any breach of any term or provision set forth in this Agreement shall be effective unless in writing and signed by each party hereto. The waiver of a condition or any breach of any term or provision of this Agreement shall not operate as or be construed to be a waiver of any other previous or subsequent breach of any term or provision of this Agreement. | |
| 10.2 Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision. | |
| 10.3 Binding Effect; Assignment. Except as provided or required herein, neither party may assign or delegate, in whole or in part, by operation of law or otherwise, either this Agreement or any of the rights, interests, or obligations hereunder without the prior written approval of the other party, and any such assignment without such prior written consent shall be null and void. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. | |
| 10.4 Amendments. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by each of the parties hereto. A copy of such written agreement shall be provided to Nova promptly following execution thereof. | |
| 10.5 Other Remedies; Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy and nothing in this Agreement shall be deemed a waiver by any party of any right to specific performance or injunctive relief. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled at law or in equity. | |
| 10.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The parties hereto hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the Federal courts of the United States of America located within Newcastle County in the State of Delaware solely in respect of the interpretation and enforcement of the provisions of this Agreement and of the documents referred to in this Agreement, and in respect of the transactions contemplated hereby and thereby, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or thereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts, |
4
| and the parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such a Delaware State or Federal court. The parties hereby consent to and grant any such court jurisdiction over the Person of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 10.8 or in such other manner as may be permitted by applicable law, shall be valid and sufficient service thereof. With respect to any particular action, suit or proceeding, venue shall lie solely in Newcastle County, Delaware. | |
| 10.7 Entire Agreement. This Agreement and the Proxy and the other agreements referred to in this Agreement set forth the entire agreement and understanding of Saturn and Stockholder with respect to the subject matter hereof and thereof, and supersede all prior discussions, agreements and understandings between Saturn and Stockholder, both oral and written, with respect to the subject matter hereof and thereof. | |
| 10.8 Notices. All notices and other communications pursuant to this Agreement shall be deemed given or made as follows (i) on the date of delivery, delivered personally or by commercial delivery service, or (ii) on the date of confirmation of receipt, if sent via telecopy (receipt confirmed) to the parties at the following addresses or telecopy numbers (or at such other address or telecopy numbers for a party as shall be specified by like notice): |
(a) if to Saturn, to:
ScanSoft,
Inc.
0
Xxxxxxxxxx Xxxxx
Xxxxxxx,
XX 00000
Attention:
General Counsel
Telephone
No.: (000) 000-0000
Telecopy
No.: (000) 000-0000
with
a copy to:
Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx
Professional
Corporation
000
Xxxx Xxxx Xxxx
Xxxx
Xxxx, Xxxxxxxxxx 00000-0000
Attention:Xxxxxxxxx
X. Xxxxxx
Xxxxxx
Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
(b) if to Stockholder, to the address for notice set forth
on the last page hereof,
or to such other address as any party may have furnished to the
other in writing in accordance herewith, except that notices of
change of address shall only be effective upon receipt.
| 10.9 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. | |
| 10.10 Effect of Headings. The section headings herein are for convenience only and shall not affect the construction or interpretation of this Agreement. |
[Remainder of Page Intentionally Left Blank]
5
IN WITNESS WHEREOF, the parties have caused this Voting
Agreement to be duly executed on the date and year first above
written.
| SATURN, INC. |
| By: |
|
|
|
| Chairman and Chief Executive Officer |
| STOCKHOLDER: |
|
|
|
| (Print Stockholder Name) |
| By: |
|
|
|
| (Signature) |
| Name: |
|
|
|
| (Print Name) |
| Title: |
|
|
|
|
| Telephone | |
|
|
|
| Facsimile No. | |
| Shares Owned: | |
| shares of Nova Common Stock | |
| shares of Nova Common Stock issuable upon the exercise of outstanding options, warrants or other rights | |
| Address: | |
|
|
|
|
|
6
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Nova, Inc., a Delaware
corporation (“Nova”), hereby irrevocably (to
the fullest extent permitted by law) appoints the directors on
the Board of Directors of Saturn, Inc., a Delaware corporation
(“Saturn”), and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full
power of substitution and resubstitution, to vote and exercise
all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to all of the
shares of capital stock of Nova that now are or hereafter may be
beneficially owned by the undersigned, and any and all other
shares or securities of Nova issued or issuable in respect
thereof on or after the date hereof (collectively, the
“Shares”) in accordance with the terms of this
Proxy. The Shares beneficially owned by the undersigned
stockholder of Nova as of the date of this Proxy are listed on
the final page of this Proxy. Upon the execution of this Proxy
by the undersigned, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and
the undersigned hereby agrees not to grant any subsequent
proxies with respect to the Shares until after the Expiration
Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by
law), is coupled with an interest and is granted pursuant to
that certain Voting Agreement of even date herewith by and
between Saturn and the undersigned stockholder (the
“Voting Agreement”), and is granted in
consideration of Saturn entering into that certain Agreement and
Plan of Merger (the “Merger Agreement”), by and
among Saturn, Subs and Nova, which provides for (i) the
merger of Sub I with and into Nova (the “First Step
Merger”), with Nova being the surviving corporation
(the “Interim Surviving Corporation”), and
(ii) the subsequent merger of the Interim Surviving
Corporation with and into Sub II (the “Second Step
Merger” and, taken together with the First Step Merger,
the “Merger”), with Sub II being the
surviving entity. This Proxy shall terminate, and be of no
further force and effect, automatically upon the Expiration
Date. As used herein, the term “Expiration
Date” shall mean the earlier to occur of (i) such
date and time as the Merger Agreement shall have been validly
terminated pursuant to its terms, or (ii) such date and
time as the Merger shall become effective in accordance with the
terms and conditions set forth in the Merger Agreement.
The attorneys and proxies named above, and each of them, are
hereby authorized and empowered by the undersigned, at any time
prior to the Expiration Date, to act as the undersigned’s
attorney and proxy to vote the Shares, and to exercise all
voting, consent and similar rights of the undersigned with
respect to the Shares (including, without limitation, the power
to execute and deliver written consents) at every annual,
special, adjourned or postponed meeting of stockholders of Nova
and in every written consent in lieu of such meeting:
(i) in favor of (A) the approval of the Merger and the
adoption and approval of the Merger Agreement, (B) each of
the other actions contemplated by the Merger Agreement, as the
Merger Agreement may be modified or amended from time to time,
and (C) the Proxy and any action required in furtherance
thereof; (ii) against approval of any proposal made in
opposition to, or in competition with, consummation of the
Merger and the transactions contemplated by the Merger
Agreement; (iii) against any amendment to Nova’s
certificate of incorporation or bylaws; (iv) against any
other action that 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 Merger Agreement; (v) against any
proposal that would result in a breach by Nova of the Merger
Agreement; (vi) against the election of a group of
individuals to replace a majority or more of the individuals on
the Board of Directors of Nova as of the date of this Agreement.
The attorneys and proxies named above may not exercise this
Proxy to vote, consent or act on any other matter except as
provided above. The undersigned stockholder may vote the Shares
on all other matters.
Any obligation of the undersigned hereunder shall be binding
upon the successors and assigns of the undersigned other than
with respect to any Shares sold in open market transactions and
in accordance with Section 2 of the Voting Agreement.
| Signature of Stockholder: |
|
| Print Name of Stockholder: |
|
| Shares beneficially owned: |
| shares of Nova Common Stock | |
| shares of Nova Common Stock issuable upon the exercise of outstanding options, warrants or other rights |
Dated: May , 2005
****IRREVOCABLE PROXY****
