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STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Stock Option Agreement"), dated as of
May 31, 1999, is by and between Intel Corporation, a Delaware corporation
("Grantee"), and Dialogic Corporation, a New Jersey corporation ("Issuer").
RECITALS
A. Grantee, Intel LMH Acquisition Corporation, a New Jersey corporation and
wholly-owned subsidiary of Grantee ("Acquisition"), and Issuer are
simultaneously entering into an Agreement and Plan of Merger (the "Merger
Agreement") which provides, among other things, that upon the terms and subject
to the conditions thereof, Acquisition will commence a tender offer (the
"Offer") for all the issued and outstanding shares of Issuer's common stock, no
par value ("Issuer Common Stock"), and, after accepting for payment the shares
tendered in the Offer (the "Tendered Shares"), Acquisition will merge with and
into Issuer with Issuer to continue as the surviving corporation as a
wholly-owned subsidiary of Grantee (the "Merger").
B. As a condition to its willingness to enter into the Merger Agreement,
Grantee has required that Issuer agree, and Issuer has agreed, to enter into
this Stock Option Agreement, which provides, among other things, that Issuer
grant to Grantee an option to purchase shares of Issuer Common Stock, upon the
terms and subject to the conditions provided for herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements contained in this Stock Option Agreement and the Merger Agreement,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Grant of Option. Issuer hereby grants to Grantee an irrevocable
option (the "Option") to purchase Three Million, Four Hundred Thousand
(3,400,000) shares of Issuer Common Stock (the "Option Shares"), in the manner
set forth below, at an exercise price of Forty-Four Dollars ($44.00) per share
of Issuer Common Stock, subject to adjustment as provided below (the "Option
Price"). Initially capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement. Issuer represents and warrants to
Grantee that the number of Option Shares constitutes less than twenty percent
(20%) of the number of outstanding shares of Issuer's Common Stock on the date
hereof.
2. Exercise of Option.
(a) Subject to the satisfaction or waiver of the conditions set forth
in Section 9 of this Stock Option Agreement, prior to the termination of this
Stock Option Agreement in accordance with its terms, Grantee may exercise the
Option, in whole or in part, at any time or from time to time on or after the
occurrence of a Triggering Event (as defined below). The Option shall terminate
and not be exercisable at any time following the Expiration Date (as defined in
Section 11). The term "Triggering Event" means the earlier to occur of (i) the
time immediately prior to the occurrence of any of the events (or series of
events) specified in Section 7.3(a) of the Merger Agreement giving rise to the
obligation of the Company to pay the fee specified in Section 7.3(a) and (ii)
the date on which Acquisition has accepted for payment the Tendered Shares;
provided, however, that clause (ii) of this sentence shall only constitute a
Triggering Event if the number of Option Shares plus the number of Tendered
Shares will, upon issuance of the Option Shares, equal at least ninety percent
(90%) of the issued and outstanding shares of Issuer Common Stock.
(b) If Grantee wishes to exercise the Option at such time as the
Option is exercisable and has not terminated, Grantee shall deliver written
notice (the "Exercise Notice") to Issuer specifying Grantee's intention to
exercise the Option, the total number of Option Shares it wishes to purchase and
a date and time for the closing of such purchase (a "Closing"), which date shall
not be less than two (2) nor more than thirty (30) business days after the later
of (i) the date such Exercise Notice is given and (ii) the expiration or
termination of any applicable waiting period under the HSR Act. If, subsequent
to a Triggering Event and prior to the Expiration Date, any Third Party shall
have acquired fifteen percent (15%) or more of the then outstanding shares of
Issuer Common Stock (a "Share Acquisition"), or Issuer shall have entered into a
written definitive agreement with any Third Party providing for a Company
Acquisition (as defined below),
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then Grantee, in lieu of exercising the Option, shall have the right at any time
thereafter (for so long as the Option is exercisable under Section 2(a) hereof)
to request in writing that Issuer pay, and promptly (but in any event not more
than twenty (20) business days) after the giving by Grantee of such request,
Issuer shall pay to Grantee, in cancellation of the Option, an amount in cash
(the "Cancellation Amount") equal to the lesser of:
(i) (1) the excess over the Option Price of the greater of (A)
the last sale price of a share of Issuer Common Stock as reported on the Nasdaq
National Market on the last trading day prior to the date of the Exercise
Notice, and (B)(I) the highest price per share of Issuer Common Stock offered to
be paid or paid by any Third Party pursuant to or in connection with such Share
Acquisition or Company Acquisition or (II) if such Company Acquisition consists
of a purchase and sale of assets, the sum of (a) the aggregate consideration
offered to be paid or paid in any transaction or proposed transaction in
connection with a Company Acquisition and (b) the amount of cash receivable by
Issuer upon the exercise or conversion of outstanding in-the-money options,
warrants, rights or convertible securities, divided by the sum of (x) the number
of shares of Issuer Common Stock then outstanding plus (y) the number of shares
issuable upon exercise or conversion of outstanding in-the-money options,
warrants, rights or convertible securities, multiplied by (2) the number of
Option Shares then covered by the Option and
(ii) Five Million Dollars ($5,000,000).
If all or a portion of the price per share of Issuer Common Stock
offered, paid or payable or the aggregate consideration offered, paid or payable
for the stock or assets of Issuer, each as contemplated by the immediately
preceding sentence, consists of non-cash consideration, such price or aggregate
consideration shall be the cash consideration, if any, plus the fair market
value of the non-cash consideration as determined jointly by the investment
bankers of Issuer and the investment bankers of Grantee.
(c) Notwithstanding anything to the contrary herein, if Grantee
(including any of its affiliates) receives proceeds in connection with any sale
or other disposition of Option Shares (or any rights thereto or thereof),
together with any proceeds in connection with any dividends or distributions
received by Grantee on any Option Shares, in an aggregate amount that exceeds
the sum of (x) Five Million Dollars ($5,000,000), plus (y) the Option Price
multiplied by the number of Option Shares purchased hereunder, then all proceeds
to Grantee or its affiliates in excess of such sum shall be remitted to Issuer
promptly following receipt thereof.
(d) As used herein, "Company Acquisition" means the occurrence of any
of the following events: (i) the acquisition by a Third Party of fifteen percent
(15%) or more of the assets of Issuer and its subsidiaries taken as a whole; or
(ii) the acquisition by a Third Party of fifteen percent (15%) or more of the
outstanding shares of Issuer Common Stock or any securities convertible into or
exchangeable or exercisable for shares of Issuer Common Stock that would
constitute fifteen percent (15%) or more of the outstanding shares upon such
conversion or exchange or exercise, or any combination of the foregoing; or
(iii) the acquisition by Issuer of the assets or stock of a Third Party if, as a
result of which the outstanding shares of Issuer Common Stock immediately prior
thereto are increased by fifteen percent (15%) or more; or (iv) the merger,
consolidation or business combination of Issuer with or into a Third Party,
where, following such merger, consolidation or business combination, the
stockholders of Issuer (other than the Third Party or its affiliates) prior to
such transaction do not hold, immediately after such transaction, securities of
the surviving entity constituting more than fifty percent (50%) of the total
voting power of the surviving entity.
3. Payment of Option Price and Delivery of Certificate. Any Closings under
Section 2 of this Stock Option Agreement shall be held at the principal
executive offices of Issuer, or at such other place as Issuer and Grantee may
agree. At any Closing hereunder, (a) Grantee or its designee shall make payment
to Issuer of the aggregate price for the Option Shares being so purchased by
delivery of a certified check, official bank check or wire transfer of funds
pursuant to Issuer's instructions payable to Issuer in an amount equal to the
product obtained by multiplying the Option Price by the number of Option Shares
to be purchased, and (b) upon receipt of such payment, Issuer shall deliver to
Grantee or its designee a certificate or certificates representing the number of
validly issued, fully paid and non-assessable Option Shares so purchased, in the
denominations and registered in such names designated to Issuer in writing by
Grantee.
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4. Registration and Listing of Option Shares.
(a) Grantee may, by written notice (a "Registration Notice"), request
at any time or from time to time within two (2) years following a Triggering
Event (the "Registration Period"), in order to permit the sale, transfer or
other disposition of the Option Shares that have been acquired by or are
issuable to Grantee upon exercise of the Option ("Registrable Securities"), that
Issuer register under the Securities Act of 1933, as amended (the "Act"), the
offering, sale and delivery, or other transfer or disposition, of the
Registrable Securities by Grantee. Any such Registration Notice must relate to a
number of Registrable Securities equal to at least twenty percent (20%) of the
Option Shares, unless the remaining number of Registrable Securities is less
than such amount, in which case Grantee shall be entitled to exercise its rights
hereunder but only for all of the remaining Registrable Securities (a 'Permitted
Offering"). Grantee's rights hereunder shall terminate at such time as Grantee
shall be entitled to sell all of the remaining Registrable Securities pursuant
to Rule 144(k) under the Act. Issuer shall use all reasonable efforts to qualify
any Registrable Securities Grantee desires to sell or otherwise dispose of under
applicable state securities or "blue sky" laws; provided, however, that Issuer
shall not be required to qualify to do business, consent to general service of
process or submit to taxation in any jurisdiction by reason of this provision.
Except as otherwise required pursuant to agreements disclosed to Grantee on or
before the date hereof, without Grantee's prior written consent (which may be
withheld in its sole discretion), no other securities may be included in any
such registration. Issuer will use all reasonable efforts to cause each such
registration statement to become effective as promptly as possible, to obtain
all consents or waivers of other persons that are required therefor and to keep
such registration statement effective for a period of at least ninety (90) days
from the day such registration statement first becomes effective. The
obligations of Issuer hereunder to file a registration statement and to maintain
its effectiveness may be suspended for one or more periods not exceeding ninety
(90) days in the aggregate if the Board of Directors of Issuer shall have
determined in good faith that the filing of such registration statement or the
maintenance of its effectiveness would require disclosure of nonpublic
information that would materially and adversely affect Issuer, or Issuer is
required under the Act to include audited financial statements for any period in
such registration statement and such financial statements are not yet available
for inclusion in such registration statement. Grantee shall be entitled to make
up to two (2) requests for registration of Options Shares under this Section
4(a). For purposes of determining whether the two (2) requests have been made
under this Section 4(a), only requests relating to a registration statement that
has become effective under the Act will be counted.
(b) If, during the Registration Period, Issuer shall propose to
register under the Act the offering, sale and delivery of Issuer Common Stock
for cash for its own account or for any other stockholder of Issuer pursuant to
a firm commitment underwriting, it will, in addition to Issuer's other
obligations under this Section 4, allow Grantee the right to participate in such
registration so long as Grantee participates in such underwriting on terms
reasonably satisfactory to the managing underwriters of such offering; provided,
however, that, if the managing underwriter of such offering advises Issuer in
writing that in its opinion the number of shares of Issuer Common Stock
requested to be included in such registration exceeds the number that it would
be in the best interests of Issuer to sell in such offering, Issuer will, after
fully including therein all shares of Issuer Common Stock to be sold by Issuer,
include the shares of Issuer Common Stock requested to be included therein by
Grantee pro rata (based on the number of shares of Issuer Common Stock requested
to be included therein) with the shares of Issuer Common Stock requested to be
included therein by persons other than Issuer and persons to whom Issuer owes a
contractual obligation (other than any director, officer or employee of Issuer
to the extent any such person is not currently owed such contractual
obligation).
(c) The expenses associated with the preparation and filing of any
registration statement pursuant to this Section 4 and any sale covered thereby
(including any fees related to blue sky qualifications and filing fees in
respect of SEC or the National Association of Securities Dealers, Inc.)
("Registration Expenses") will be paid by Issuer, except for underwriting
discounts or commissions or brokers' fees in respect of Option Shares to be sold
by Grantee and the fees and disbursements of Grantee's counsel; provided,
however, that Issuer will not be required to pay for any Registration Expenses
with respect to such registration if the registration request is subsequently
withdrawn at the request of Grantee unless Grantee agrees to forfeit its right
to request one registration; provided further, however, that, if at the time of
such withdrawal Grantee
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has learned of a material adverse change in the results of operations,
condition, business or prospects of Issuer not known to Grantee at the time of
the request and has withdrawn the request within a reasonable period of time
following disclosure by Issuer to Grantee of such material adverse change, then
Grantee shall not be required to pay any of such expenses and shall not forfeit
such right to request one registration. Grantee will provide all information
reasonably requested by Issuer for inclusion in any registration statement to be
filed hereunder.
(d) In connection with each registration under this Section 4, Issuer
shall indemnify and hold each holder of the Option or Option Shares
participating in such offering (a "Holder"), its underwriters and each of their
respective affiliates harmless against any and all losses, claims, damage,
liabilities and expenses (including, without limitation, investigation expenses
and fees and disbursements of counsel and accountants), joint or several, to
which such Holder, its underwriters and each of their respective affiliates may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any registration statement (including any prospectus therein),
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, other
than such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) that arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in written information
furnished by a Holder to Issuer expressly for use in such registration
statement.
(e) In connection with any registration statement pursuant to this
Section 4, Grantee shall cause each Holder to contractually agree to furnish
Issuer with such information concerning itself and the proposed sale or
distribution as shall reasonably be required in order to ensure compliance with
the requirements of the Act and to provide representations and warranties
customary for selling stockholders who are unaffiliated with the issuer. In
addition, Grantee shall, and Grantee shall cause each Holder to contractually
agree to, indemnify and hold Issuer, its underwriters and each of their
respective affiliates harmless against any and all losses, claims, damages,
liabilities and expenses (including, without limitation, investigation expenses
and fees and disbursement of counsel and accountants), joint or several, to
which Issuer, its underwriters and each of their respective affiliates may
become subject under the Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in written information furnished by any Holder to Issuer
expressly for use in such registration statement; provided, however, that in no
event shall any indemnification amount contributed by a Holder hereunder exceed
the proceeds of the offering received by such Holder.
(f) Upon the issuance of Option Shares hereunder, Issuer will use all
commercially reasonable efforts to promptly list such Option Shares on the
Nasdaq National Market or with such national or other exchange on which the
shares of Issuer Common Stock are at the time listed.
5. Representations and Warranties of Issuer. Issuer hereby represents
and warrants to Grantee as follows:
(a) Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the State of New Jersey and has all requisite
corporate power and authority to enter into and perform its obligations under
this Stock Option Agreement.
(b) The execution and delivery of this Stock Option Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of Issuer and no other corporate
proceedings on the part of Issuer are necessary to authorized this Stock Option
Agreement or to consummate the transactions contemplated hereby. The Board of
Directors of Issuer has duly approved the issuance and sale of the Option
Shares, upon the terms and subject to the conditions contained in this Stock
Option Agreement, and the consummation of the transactions contemplated hereby.
(c) Issuer has taken all necessary action to authorize and reserve
for issuance and to permit it to issue, and at all times from the date of this
Stock Option Agreement through the date of expiration of the
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Option will have reserved for issuance upon exercise of the Option, a sufficient
number of authorized shares of Issuer Common Stock for issuance upon exercise of
the Option, each of which shares, upon issuance pursuant to this Stock Option
Agreement and when paid for as provided herein, will be validly issued, fully
paid and nonassessable, and shall be delivered free and clear of all claims,
liens, charges, encumbrances and security interests (other than those imposed by
Grantee, its affiliates or by Applicable Law).
(d) The execution, delivery and performance of this Stock Option
Agreement by Issuer and the consummation by it of the transactions contemplated
hereby, except as required by the HSR Act and any material foreign competition
authorities (if applicable), and, with respect to Section 4 hereof, compliance
with the provisions of the Act and any applicable state securities laws, do not
require the consent, waiver, approval, license or authorization of or result in
the acceleration of any obligation under, or constitute a default under, any
term, condition or provision of the Certificate of Incorporation or bylaws, or
any indenture, mortgage, lien, lease, agreement, contract, instrument, order,
judgment, ordinance, regulation or decree or any restriction to which Issuer or
any property of Issuer or its subsidiaries is bound, except where failure to
obtain such consents, waivers, approvals, licenses or authorizations or where
such acceleration or defaults could not, individually or in the aggregate,
reasonably be expected to materially and adversely affect Grantee's rights
hereunder or to have a Material Adverse Effect on Issuer.
6. Representations and Warranties of Grantee. Grantee hereby represents
and warrants to Issuer that:
(a) Grantee is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has all requisite
corporate power and authority to enter into and perform its obligations under
this Stock Option Agreement.
(b) The execution and delivery of this Stock Option Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of Grantee and no other corporate
proceedings on the part of Grantee are necessary to authorize this Stock Option
Agreement or to consummate the transactions contemplated hereby. This Stock
Option Agreement has been duly and validly executed and delivered by Grantee
and, assuming this Stock Option Agreement has been duly executed and delivered
by Issuer, constitutes a valid and binding obligation of Grantee enforceable
against Grantee in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting or relating to
creditors' rights generally; the availability of injunctive relief and other
equitable remedies; and limitations imposed by law on indemnification for
liability under federal securities laws.
(c) Grantee is acquiring the Option and it will acquire the Option
Shares issuable upon the exercise thereof for its own account and not with a
view to the distribution or resale thereof in any manner not in accordance with
Applicable Law.
7. Covenants of Grantee. Grantee agrees not to transfer or otherwise
dispose of the Option or the Option Shares, or any interest therein, except that
Grantee may transfer or dispose of the Option Shares so long as such transaction
is in compliance with the Act and any applicable state securities laws. Grantee
further agrees to the placement of the following legend on the certificates
representing the Option Shares (in addition to any legend required under
applicable state securities laws) and any legend referring to the provisions of
Section 12 hereof:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER EITHER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
APPLICABLE STATE LAW GOVERNING THE OFFER AND SALE OF SECURITIES. NO
TRANSFER OR OTHER DISPOSITION OF THESE SHARES, OR OF ANY INTEREST
THEREIN, MAY BE MADE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND SUCH OTHER STATE LAWS OR PURSUANT TO
EXEMPTIONS FROM REGISTRATION UNDER THE ACT, SUCH OTHER STATE LAWS, AND
THE RULES AND REGULATIONS PROMULGATED THEREUNDER."
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8. HSR Compliance Efforts. Grantee and Issuer shall take, or cause to be
taken, all commercially reasonable actions to consummate and make effective the
transactions contemplated by this Stock Option Agreement, including, without
limitation, reasonable efforts to obtain any necessary consents of third parties
and Governmental Entities and the filing by Grantee and Issuer promptly of any
required HSR Act notification forms and the documents required to comply with
the HSR Act.
9. Certain Conditions. The obligation of Issuer to issue Option Shares
under this Stock Option Agreement upon exercise of the Option shall be subject
to the satisfaction or waiver of the following conditions:
(a) any waiting periods applicable to the acquisition of the Option
Shares by Grantee pursuant to this Stock Option Agreement under the HSR Act and
any material foreign competition laws shall have expired or been terminated; and
(b) no statute, rule or regulation shall be in effect, and no order,
decree or injunction entered by any court of competent jurisdiction or
Governmental Entity in the United States shall be in effect that prohibits the
exercise of the Option or acquisition or issuance of Option Shares pursuant to
this Stock Option Agreement.
10. Adjustments Upon Changes in Capitalization. In the event of any
change in the number of issued and outstanding shares of Issuer Common Stock by
reason of any stock dividend, stock split, recapitalization, merger, rights
offering, share exchange or other change in the corporate or capital structure
of Issuer, Grantee shall receive, upon exercise of the Option, the stock or
other securities, cash or property to which Grantee would have been entitled if
Grantee had exercised the Option and had been a holder of record of shares of
Issuer Common Stock on the record date fixed for determination of holders of
shares of Issuer Common Stock entitled to receive such stock or other
securities, cash or property at the same aggregate price as the aggregate Option
Price of the Option Shares.
11. Expiration. The Option shall expire at the earlier of (y) the
Effective Time and (z) 5:00 p.m., California time, on the day that is the one
year anniversary of the date on which the Merger Agreement has been terminated
in accordance with the terms thereof (such expiration date is referred to as the
"Expiration Date").
12. Issuer Call. If Grantee has acquired Option Shares pursuant to
exercise of the Option (the date of any closing relating to any such exercise
herein referred to as an "Exercise Date") and no Company Acquisition with
respect to Issuer has been consummated at any time after the date of this
Agreement and prior to one year following the date hereof (and Issuer has not
entered into a definitive agreement or letter of intent with respect to such a
Company Acquisition which agreement or letter of intent remains in effect at the
end of such year), then, at any time after the date thirteen (13) months
following the date hereof and prior to nineteen (19) months following such
Exercise Date, Issuer may require Grantee, upon delivery to Grantee of written
notice, to sell to Issuer any Option Shares held by Grantee as of the date that
is ten (10) business days after the date of such notice, up to a number of
shares equal to the number of Option Shares acquired by Grantee pursuant to
exercise of the Option in connection with such Exercise Date. The per share
purchase price for such sale (the "Issuer Call Price") shall be equal to the
Option Price less any dividends paid on the Option Shares to be purchased by
Issuer pursuant to this Section 12. The closing of any sale of Option Shares
pursuant to this Section 12 shall take place at the principal offices of Issuer
at a time and on a date designated by Issuer in the aforementioned notice to
Grantee, which date shall be no more than twenty (20) and no less than twelve
(12) business days from the date of such notice. The Issuer Call Price shall be
paid in immediately available funds.
13. General Provisions.
(a) Survival. All of the representations, warranties and covenants
contained herein shall survive a Closing and shall be deemed to have been made
as of the date hereof and as of the date of each Closing.
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(b) Further Assurances. If Grantee exercises the Option, or any
portion thereof, in accordance with the terms of this Stock Option Agreement,
Issuer and Grantee will execute and deliver all such further documents and
instruments and use all reasonable efforts to take all such further action as
may be necessary in order to consummate the transactions contemplated thereby.
(c) Severability. It is the desire and intent of the parties that the
provisions of this Stock Option Agreement be enforced to the fullest extent
permissible under the law and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, in the event that any provision of
this Stock Option Agreement would be held in any jurisdiction to be invalid,
prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Stock Option Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not be invalid,
prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Stock Option Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
(d) Assignment; Transfer of Stock Option. This Stock Option Agreement
shall be binding on and inure to the benefit of the parties hereto and their
respective successors and permitted assigns; provided, however, that Issuer and
Grantee, without the prior written consent of the other party, shall not be
entitled to assign or otherwise transfer any of its rights or obligations
hereunder and any such attempted assignment or transfer shall be void; provided
further, that Grantee shall be entitled to assign or transfer this Stock Option
Agreement or any rights hereunder to any wholly-owned subsidiary of Grantee
without Issuer's consent so long as such wholly-owned subsidiary agrees in
writing to be bound by the terms and provisions hereof.
(e) Specific Performance. The parties acknowledge and agree that in
the event of a breach of any provision of this Stock Option Agreement, the
aggrieved party would be without an adequate remedy at law. The parties
therefore agree that in the event of a breach of any provision of this Stock
Option Agreement, the aggrieved party may elect to institute and prosecute
proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach of such provisions, as well as to
obtain damages for breach of this Stock Option Agreement. By seeking or
obtaining any such relief, the aggrieved party will not be precluded from
seeking or obtaining any other relief to which it may be entitled.
(f) Amendments. This Stock Option Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by Grantee and Issuer.
(g) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to be
sufficient if contained in a written instrument and shall be deemed given if
delivered personally, telecopied, sent by nationally-recognized, overnight
courier or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the other party at the following addresses (or such other
address for a party as shall be specified by like notice):
If to Grantee: Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxx and
Xxxxxxx X. Xxxxxxx
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If to Issuer: Dialogic Corporation
0000 Xxxxx 00
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
with a copy to: Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
and
Winthrop, Stimson, Xxxxxx &
Xxxxxxx
Xxx Xxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
(h) Headings. The headings contained in this Stock Option Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Stock Option Agreement.
(i) Counterparts. This Stock Option Agreement may be executed in one
or more counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
(j) Governing Law and Venue; Waiver of Jury Trial.
(1) THIS STOCK OPTION AGREEMENT SHALL BE DEEMED TO BE MADE IN AND
IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT
OF LAW PRINCIPLES THEREOF. The parties hereby irrevocably submit to the
jurisdiction of the courts of the State of Delaware and the Federal courts of
the United States of America located in the State of Delaware solely in respect
of the interpretation and enforcement of the provisions of this Stock Option
Agreement and of the documents referred to in this Stock Option Agreement, and
in respect of the transactions contemplated hereby, and hereby waive, and agree
not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, 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 Stock Option Agreement or any such document may not be enforced in
or by such courts, 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
12(g) or in such other manner as may be permitted by Applicable Law, shall be
valid and sufficient service thereof.
(2) The parties agree that irreparable damage would occur and
that the parties would not have any adequate remedy at law in the event that any
of the provisions of this Stock Option 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 an injunction or
injunctions to prevent breaches of this Stock Option Agreement and to enforce
specifically the terms and provisions of this Stock Option Agreement in any
Federal court located in the State of Delaware or in Delaware state court, this
being in addition to any other remedy to which they are entitled at law or in
equity.
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(3) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS STOCK OPTION AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii)
EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS STOCK OPTION AGREEMENT BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(j).
(k) Entire Agreement. This Stock Option Agreement and the Merger
Agreement, and any documents and instruments referred to herein and therein,
constitute the entire agreement between the parties hereto and thereto with
respect to the subject matter hereof and thereof and supersede all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof and thereof. Nothing in this Stock Option
Agreement shall be construed to give any person other than the parties to this
Stock Option Agreement or their respective successors or permitted assigns any
legal or equitable right, remedy or claim under or in respect of this Stock
Option Agreement or any provision contained herein.
(l) Expenses. Except as otherwise provided in this Stock Option
Agreement, each party shall pay its own expenses incurred in connection with
this Stock Option Agreement and the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties have caused this Stock Option Agreement to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
INTEL CORPORATION, a Delaware
corporation
By: /s/ XXXX X. X. XXXXX
------------------------------------
Name: Xxxx X. X. Xxxxx
Title: Vice President
DIALOGIC CORPORATION,
a New Jersey corporation
By: /s/ XXXXXX XXXX
------------------------------------
Name: Xxxxxx Xxxx
Title: President
[SIGNATURE PAGE TO INTEL/DIALOGIC STOCK OPTION AGREEMENT]
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