COMPANY VOTING AGREEMENT
THIS COMPANY VOTING AGREEMENT (this "AGREEMENT") is made and entered into as
of December 5, 2000, between Polycom, Inc., a Delaware corporation ("PARENT"),
and the undersigned shareholder (the "SHAREHOLDER") of Accord Networks Ltd., an
Israeli corporation (the "COMPANY").
RECITALS
A. The Company, Merger Sub (as defined below) and Parent have entered into
an Agreement and Plan of Merger and Reorganization of even date herewith (the
"REORGANIZATION AGREEMENT"), which provides for the merger (the "MERGER") of
Merger Sub Ltd., a wholly-owned subsidiary of Parent ("MERGER SUB"), with and
into the Company. Pursuant to the Merger, all outstanding capital stock of the
Company shall be converted into common stock of Parent, as set forth in the
Reorganization Agreement;
B. Shareholder is 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 ordinary shares of the outstanding capital stock of the Company and ordinary
shares issuable upon exercise of outstanding options and/or warrants as is
indicated on the signature page of this Agreement; and
C. In consideration of the execution of the Reorganization Agreement by
Parent, Shareholder (in its, his or her capacity as such) agrees to vote the
Shares (as defined below) and other such shares of capital stock of the Company
over which Shareholder has voting power so as to facilitate consummation of the
Merger on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
1. CERTAIN DEFINITIONS. Capitalized terms not defined herein shall have the
meanings ascribed to them in the Reorganization Agreement. For purposes of this
Agreement:
(a) "EXPIRATION DATE" shall mean the earlier to occur of (i) such date
and time as the Reorganization Agreement shall have been terminated pursuant to
Article VII thereof, or (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Reorganization
Agreement.
(b) "PERSON" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental authority.
(c) "SHARES" shall mean: (i) all securities of the Company (including
ordinary shares and all options, warrants and other rights to acquire ordinary
shares) owned by Shareholder as of the date of this Agreement; and (ii) all
additional securities of the Company (including all additional Company ordinary
shares and all additional options, warrants and other rights to acquire Company
ordinary shares) of which Shareholder acquires ownership during the period from
the date of this Agreement through the Expiration Date.
(d) TRANSFER. A Person shall be deemed to have effected a "TRANSFER" of
a security if such person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; or (ii) enters into an agreement or commitment
providing for the sale of, pledge of, encumbrance of, grant of an option with
respect to, transfer of or disposition of such security or any interest therein.
2. TRANSFER OF SHARES.
(a) TRANSFEREE OF SHARES TO BE BOUND BY THIS AGREEMENT. During the
period from the date of this Agreement through the Expiration Date, Shareholder
shall not cause or permit any Transfer of any of the Shares to be effected
unless such Transfer is in accordance with any affiliate agreement between
Shareholder and Parent contemplated by the Reorganization Agreement and each
Person to which any of such Shares, or any interest in any of such Shares, is or
may be transferred shall have: (a) executed a counterpart of this Agreement and
a proxy in the form attached hereto as EXHIBIT A (the "PROXY");
and (b) agreed in writing to hold such Shares (or interest in such Shares)
subject to all of the terms and provisions of this Agreement.
(b) TRANSFER OF VOTING RIGHTS. During the period from the date of this
Agreement through the Expiration Date, Shareholder shall not deposit (or permit
the deposit of) any Shares in a voting trust or grant any proxy or enter into
any voting agreement or similar agreement in contravention of the obligations of
Shareholder under this Agreement with respect to any of the Shares.
Notwithstanding anything to the contrary contained herein, nothing in this
Agreement shall prohibit Shareholder from granting any proxy with respect to the
voting of any of the Shares on any matter other than approval and adoption of
the Reorganization Agreement and the approval of the Merger, so long as any such
proxy is not inconsistent with the obligations of Shareholder set forth in
Section 3 below.
3. AGREEMENT TO VOTE SHARES. At every meeting of the Shareholders of the
Company called, and at every adjournment thereof, and on every action or
approval by written consent of the Shareholders of the Company, Shareholder (in
his, her or its capacity as such) shall cause the Shares to be voted in favor of
approval and adoption of the Reorganization Agreement and in favor of approval
of the Merger. Notwithstanding any provision of this Agreement to the contrary,
nothing in this Agreement shall limit or restrict Shareholder from acting in
Shareholder's capacity as a director or officer of Company (it being understood
that this Agreement shall apply to Shareholder solely in Shareholder's capacity
as a Shareholder of Company) or voting in Shareholder's sole discretion on any
matter other than those matters referred to in the preceding sentence.
4. IRREVOCABLE PROXY. Concurrently with the execution of this Agreement,
Shareholder agrees to deliver to Parent a duly executed Proxy, which shall be
irrevocable to the fullest extent permissible by law, with respect to the
Shares.
5. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. Shareholder (i) is
the beneficial owner of the Company ordinary shares and the options to purchase
Company ordinary shares of the Company indicated on the signature page of this
Agreement, which are free and clear of any liens, adverse claims, charges or
other encumbrances (except encumbrances arising under securities laws or as are
disclosed on such signature page); (ii) does not beneficially own any securities
of the Company other than the Company ordinary shares and options and/or
warrants to purchase Company ordinary shares indicated on the signature page of
this Agreement; and (iii) has full power and authority to make, enter into and
carry out the terms of this Agreement and the Proxy.
6. ADDITIONAL DOCUMENTS. Shareholder (in his, her or its capacity as such)
and Parent hereby covenant and agree to execute and deliver any additional
documents as are reasonably necessary or desirable to carry out the intent of
this Agreement.
7. LEGENDING OF SHARES. If so requested by Parent, Shareholder agrees that
the certificates representing Shares shall bear a legend stating that they are
subject to this Agreement and to an irrevocable proxy.
8. TERMINATION. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Date.
9. MISCELLANEOUS.
(a) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
(b) BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any
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of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without prior written consent of the other.
(c) AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
(d) SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Parent shall be irreparably harmed and that there shall be no
adequate remedy at law for a violation of any of the covenants or agreements of
Shareholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity.
(e) NOTICES. All notices and other communications pursuant to this
Agreement shall be in writing and 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
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to Parent:
Polycom, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and to:
Xxxxx Xxxxx & Xx.
00 Xxxxxx Xxxxxx
Xxxxxxxxx 0000, Israel
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telecopy No.: (000-0) 000-0000
If to Shareholder:
To the address for notice set forth on the signature page hereof.
(f) GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Delaware, without reference to rules of conflicts of law.
(g) ENTIRE AGREEMENT. This Agreement and the Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
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(h) EFFECT OF HEADINGS. The section headings are for convenience only
and shall not affect the construction or interpretation of this Agreement.
(i) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(j) NO OBLIGATION TO EXERCISE OPTIONS. Notwithstanding any provision of
this Agreement to the contrary, nothing in this Agreement shall obligate
Shareholder to exercise any option, warrant or other right to acquire any
ordinary shares of the Company.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
POLYCOM, INC. SHAREHOLDER
By: --------------------------------------- By: ---------------------------------------
Signature of Authorized Signatory Signature
Name: ------------------------------------- Name: -------------------------------------
Title: ----------------------------------- Title: -----------------------------------
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Print Address
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Telephone
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Facsimile No.
Share beneficially owned:
------------ Company ordinary shares
------------ Company ordinary shares
issuable upon exercise of outstanding
options
------------ Company ordinary shares
issuable upon exercise of outstanding
warrants
[SIGNATURE PAGE TO VOTING AGREEMENT]
IRREVOCABLE PROXY
The undersigned Shareholder (the "SHAREHOLDER") of Accord Networks Ltd., an
Israeli corporation (the "COMPANY"), hereby irrevocably (to the fullest extent
permitted by law) appoints the directors on the Board of Directors of
Polycom, Inc., a Delaware corporation ("PARENT"), 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 (i) securities of the Company (including ordinary shares and all
options, warrants and other rights to acquire ordinary shares) owned by
Shareholder as of the date hereof and (ii) any and all additional securities of
the Company (including ordinary shares and all additional options, warrants and
other rights to acquire ordinary shares) of which Shareholder acquires ownership
after the date hereof (collectively, the "SHARES") in accordance with the terms
of this Proxy until the Expiration Date (as defined below). Upon the
undersigned's execution of this Proxy, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to the Shares until
after the Expiration Date.
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and made for the benefit of third parties and is
granted pursuant to that certain Voting Agreement of even date herewith by and
among Parent and the undersigned Shareholder (the "VOTING AGREEMENT"), and is
granted in consideration of Parent entering into that certain Agreement and Plan
of Merger and Reorganization of even date herewith (the "REORGANIZATION
AGREEMENT"), among Parent, Accord Acquisition Corp., an Israeli corporation and
a wholly-owned subsidiary of Parent ("MERGER SUB"), and the Company. The
Reorganization Agreement provides for the merger of Merger Sub with and into the
Company in accordance with its terms (the "MERGER"). As used herein, the term
"EXPIRATION DATE" shall mean the earlier to occur of (i) such date and time as
the Reorganization Agreement shall have been validly terminated pursuant to
Article VII thereof or (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Reorganization
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 or adjourned meeting of Shareholders
of the Company and in every written consent in lieu of such meeting in favor of
approval and adoption of the Reorganization Agreement and in favor of approval
of the Merger.
The attorneys and proxies named above may not exercise this Proxy on any
other matter. The undersigned Shareholder may vote the Shares on all other
matters.
All authority herein conferred shall survive the death or incapacity of the
undersigned to the extent permitted by law, and any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned.
This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
Dated: December , 2000
Signature of Shareholder: --------------------------
Print Name of Shareholder: ------------------------
Share beneficially owned:
------------ Company ordinary shares
------------ Company ordinary shares issuable upon
exercise of outstanding options
------------ Company ordinary shares issuable upon
exercise of outstanding warrants
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
