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EXHIBIT B
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
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Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act"), but shall exclude securities held, in the
ordinary course of business, in Stockholder's capacity as a market maker.
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Xxxx X. Xxxxxxx and Xxxxxx Xxxxxxxxx (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted
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herein, and any attempt to do so shall be void. The power of attorney granted
herein is a durable power of attorney and shall survive the death or incapacity
of Stockholder.
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement (and except in the ordinary course
of business in Stockholder's capacity as a market maker), Stockholder shall not,
directly or indirectly: (i) offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Shares or any interest therein; (ii) grant any
proxies or powers of attorney or deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares; or (iii) take any action
that would make any representation or warranty of Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling Stockholder
from performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of
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the Merger Agreement in accordance with its terms and the Effective Time, shall
not, in any capacity, directly or indirectly, initiate, solicit or knowingly
encourage (including, without limitation, by way of furnishing non-public
information or assistance), or take any other action to facilitate knowingly,
any inquiries or the making of any Third Party Acquisition; (iii) shall promptly
(and in any event within one business day after becoming aware thereof) notify
Intel of any proposals for, or inquiries with respect to, a potential Third
Party Acquisition received by Stockholder or of which Stockholder otherwise has
knowledge (including the terms and conditions thereof and the identity of the
party submitting such proposal or inquiry); (iv) shall provide to Intel a copy
of any written agreements, proposals or other materials the Stockholder receives
from any such person or group (or its representatives); and (v) shall advise
Intel from time to time of the status, at any time upon Intel's request, and
promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which
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legal or beneficial ownership of any Shares shall pass, whether by operation of
law or otherwise. Notwithstanding any transfer of Shares, the transferor shall
remain liable for the performance of all obligations under this Agreement of the
transferor.
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Chief Financial Officer
and
Heller, Ehrman, White & XxXxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier:(000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
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If to Intel: Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
and
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Treasurer
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
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waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Treasurer
STOCKHOLDER:
XXXXX & COMPANY INCORPORATED
NUMBER OF SHARES: 3,225,846* By: /s/ Xxx Xxxxxxx
--------------------------------------
Name: Xxx Xxxxxxx
Title: Chief Financial Officer and
Managing Director
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
* Includes 271,800 shares of common stock into which Stockholder's
Preferred is convertible.
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
