EXHIBIT 2
COMPANY VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of April
23, 2003, between SCANSOFT, INC., a Delaware corporation ("PARENT"), and the
undersigned stockholder ("STOCKHOLDER") of SPEECHWORKS INTERNATIONAL, INC., a
Delaware corporation (the "COMPANY").
RECITALS
A. Parent, Spiderman Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of Parent ("MERGER SUB"), and the Company have entered
into an Agreement and Plan of Reorganization dated as of April 23, 2003 (the
"REORGANIZATION AGREEMENT"), which provides for the merger (the "MERGER") of
Merger Sub with and into the Company, with the Company being the surviving
corporation. Pursuant to the Merger, all outstanding capital stock of the
Company shall be converted into the right to receive common stock of Parent.
B. The Stockholder 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 shares of the outstanding capital stock of the Company, and such
number of shares of capital stock of the Company 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 Reorganization Agreement by
Parent, the 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 the Company
over which the Stockholder has voting power, so as to facilitate consummation of
the Merger.
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 Reorganization
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 Reorganization 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
Reorganization Agreement, or (iii) such date and time as the Stockholder's
employment with the Company has been terminated by action of the Company.
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 the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) owned by the Stockholder
as of the date of this Agreement, and (ii) all additional securities of the
Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares of Company
Common Stock) of which the Stockholder acquires beneficial ownership during the
period commencing with the execution and delivery of this Agreement until the
Expiration Date.
1.4 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 otherwise disposes of
such security or any interest therein, 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.
1.5 Beneficial Ownership. Notwithstanding anything to the contrary
set forth herein or under Rule 13d-3 promulgated under the Securities Exchange
Act of 1934, as amended, the terms "beneficially own," "beneficial owner,"
"beneficial ownership" and the like shall not include shares of Company Common
Stock held of record by Atlas Venture Fund II, L.P. and Xxxxxxx River
Partnership VII.
2. Restriction on Transfer of Shares. Except (x) as expressly contemplated
by this Agreement or the Reorganization Agreement or (y) sales of shares of
Company Common Stock by Stockholder issued after the date of initial filing of
the Prospectus/Proxy Statement with the SEC pursuant to the valid exercise of
stock options by such Stockholder, during the term of 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 (except that Stockholder may transfer any or all of the Shares to a
trust established for the benefit of Stockholder and/or for the benefit of one
or more members of Stockholder's immediate family, provided that in the event of
such transfer or gift, the transferee of such Shares agrees to be bound by the
terms and conditions of this Agreement); (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. Stockholder further agrees with
and covenants to Parent that Stockholder shall not request that the Company
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, the Company may issue appropriate "stop
transfer" instructions to its transfer agent.
3. Agreement to Vote Shares. Until the Expiration Date, at every meeting
of stockholders of the Company 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 the Company with respect to any of the
following, the Stockholder shall vote, to
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the extent not voted by the person(s) appointed under the Proxy (as defined in
Section 4 hereof), the Shares beneficially owned by the Stockholder:
3.1 in favor of approval of the Merger and the adoption and approval
of the Reorganization Agreement, and in favor of each of the other actions
contemplated by the Reorganization Agreement, as the Reorganization Agreement
may be modified or amended from time to time, and 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 Reorganization Agreement;
3.3 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
Reorganization Agreement;
3.4 against any proposal that would result in a breach by the
Company of the Reorganization Agreement; and
3.5 against the election of a group of individuals to replace a
majority or more of the individuals on the Board of Directors of the Company as
of the date of this Agreement.
Prior to the Expiration Date, the 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,
the Stockholder agrees to deliver to Parent 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 and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Parent that, as of the date hereof and at all
times until the Expiration Date, (i) the Stockholder is and will be the
beneficial owner of the shares of Company Common Stock, and the options,
warrants and other rights to purchase shares of Company Common Stock, set forth
on signature page of this Agreement and not Transferred, with full power to vote
or direct the voting of the Shares not Transferred for and on behalf of all
beneficial owners of the Shares not Transferred; (ii) the Shares are and will
be, unless Transferred, 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); (iii) the
Stockholder does not beneficially own any securities of the Company other than
the shares of Company Common Stock, and options, warrants and other rights to
purchase shares of Company Common Stock, set forth on the signature page of this
Agreement; (iv) with respect to the Shares not Transferred, the Stockholder has
and will have full power and authority to make, enter into and carry out the
terms of this Agreement and the Proxy; (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
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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.
6. Legending of Shares. If so requested by Parent, the Stockholder hereby
agrees that the Shares shall bear a legend stating that they are subject to this
Agreement and to an irrevocable proxy.
7. Termination. This Agreement shall terminate and be of no further force
or effect as of the Expiration Date.
8. 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 prohibit, prevent or preclude such Stockholder from
taking or not taking any action in his or her capacity as an officer or director
of the Company, to the extent permitted by the Reorganization Agreement.
9. Miscellaneous.
9.1 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.
9.2 Severability. In the event that any term, provision, covenant or
restriction set forth in this Agreement, or the application of any such term,
provision, covenant or restriction to any person, entity or set of
circumstances, shall be determined by a court of competent jurisdiction to be
invalid, unlawful, void or unenforceable to any extent, the remainder of the
terms, provisions, covenants and restrictions set forth in this Agreement, and
the application of such terms, provisions, covenants and restrictions to
persons, entities or circumstances other than those as to which it is determined
to be invalid, unlawful, void or unenforceable, shall remain in full force and
effect, shall not be impaired, invalidated or otherwise affected and shall
continue to be valid and enforceable to the fullest extent permitted by
applicable law.
9.3 Binding Effect; Assignment. This Agreement and all of the terms
and 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
of the rights, interests or obligations of the Stockholder may be assigned to
any other Person without the prior written consent of Parent. 9.4 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.
9.5 Specific Performance; Injunctive Relief. Each of the parties
hereto hereby acknowledge that (i) the representations, warranties, covenants
and restrictions set forth in this Agreement are necessary, fundamental and
required for the protection of Parent and to preserve
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for Parent the benefits of the Merger; (ii) such covenants relate to matters
which are of a special, unique, and extraordinary character that gives each such
representation, warranty, covenant and restriction a special, unique, and
extraordinary value; and (iii) a breach of any such representation, warranty,
covenant or restriction, or any other term or provision of this Agreement, will
result in irreparable harm and damages to Parent which cannot be adequately
compensated by a monetary award. Accordingly, Parent and the Stockholder hereby
expressly agree that in addition to all other remedies available at law or in
equity, Parent shall be entitled to the immediate remedy of specific
performance, a temporary and/or permanent restraining order, preliminary
injunction, or such other form of injunctive or equitable relief as may be used
by any court of competent jurisdiction to restrain or enjoin any of the parties
hereto from breaching any representations, warranties, covenants or restrictions
set forth in this Agreement, or to specifically enforce the terms and provisions
hereof.
9.6 Governing Law. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the internal laws of the
State of Delaware without giving effect to any choice or conflict of law
provision, rule or principle (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware.
9.7 Entire Agreement. This Agreement and the Proxy and the other
agreements referred to in this Agreement set forth the entire agreement and
understanding of Parent and the Stockholder with respect to the subject matter
hereof and thereof, and supersede all prior discussions, agreements and
understandings between Parent and the Stockholder, both oral and written, with
respect to the subject matter hereof and thereof.
9.8 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
respective parties at the following address (or at such other address for a
party as shall be specified by like notice):
(a) if to Parent, to:
SCANSOFT, INC.
0 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
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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.
9.9 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.
9.10 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]
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
SCANSOFT, INC.
By:
-----------------------------------
Xxxx X. Xxxxx
Chairman and Chief Executive
Officer
****VOTING AGREEMENT ****
STOCKHOLDER:
(Print Stockholder Name)
By:
-----------------------------------
(Signature)
Name:
---------------------------------
(Print Name)
Title:
--------------------------------
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Telephone
--------------------------------------
Facsimile No.
Shares beneficially owned:
___ shares of the Company Common Stock
___ shares of the Company Common Stock
issuable upon the exercise of
outstanding options, warrants or
other rights
Address:
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****VOTING AGREEMENT ****
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of SPEECHWORKS INTERNATIONAL, Inc., a Delaware
corporation (the "COMPANY"), hereby irrevocably (to the fullest extent permitted
by law) appoints the directors on the Board of Directors of SCANSOFT, 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 of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned by the undersigned, and any and all other shares or
securities of the Company issued or issuable in respect thereof on or after the
date hereof (collectively, the "SHARES") in accordance with the terms of this
Proxy. Notwithstanding anything to the contrary set forth herein or under Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as amended, the
terms "beneficially own," "beneficial owner," "beneficial ownership" and the
like shall not include shares of Company Common Stock held of record by Atlas
Venture Fund II, L.P. and Xxxxxxx River Partnership VII. The Shares beneficially
owned by the undersigned stockholder of the Company 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 Parent and the undersigned
stockholder (the "VOTING AGREEMENT"), and is granted in consideration of Parent
entering into that certain Agreement and Plan of Reorganization (the
"REORGANIZATION AGREEMENT"), by and among Parent, Merger Sub and the Company,
which provides for the merger of the Merger Sub with and into the Company in
accordance with its terms (the "MERGER"). 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 Reorganization 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
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, adjourned or postponed meeting of
stockholders of the Company and in every written consent in lieu of such
meeting: (i) in favor of approval of the Merger and the adoption and approval of
the Reorganization Agreement, and in favor of each of the other actions
contemplated by the Reorganization Agreement 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
Reorganization Agreement; (iii) 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 Reorganization Agreement; (iv) against any proposal that
would result in a breach by the Company of the Reorganization Agreement; and (v)
against the election of a group of individuals to replace a majority or more of
the individuals on the Board of Directors of the Company as of the date of this
Proxy.
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.
[Remainder of Page Intentionally Left Blank]
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Dated: April __, 2003
Signature of Stockholder:
___________________
Print Name of Stockholder:
__________________
Shares beneficially owned:
______ shares of the Company Common Stock
______ shares of the Company Common Stock
issuable upon the exercise of outstanding
options, warrants or other rights
**** IRREVOCABLE PROXY ****
