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EXHIBIT 99.1
EXECUTION COPY
VOTING AGREEMENT
This Voting Agreement (the "Agreement"), dated as of April 2, 1999, is
made by and among Lucent Technologies Inc., a Delaware corporation ("Lucent"),
Noah Acquisition Inc., a Washington corporation ("Acquisition"), and each of the
undersigned shareholders (each, a "Shareholder" and collectively, the
"Shareholders") of Mosaix, Inc., a Washington corporation (the "Company").
PRELIMINARY STATEMENTS
Concurrently with the execution of this Agreement, the Company, Lucent
and Acquisition have entered into an Agreement and Plan of Merger (as the same
may be amended from time to time, the "Merger Agreement"), providing for the
merger of Acquisition with and into the Company, with the Company being the
surviving corporation (the "Merger"), which Merger is subject to the approval of
the holders of shares of capital stock of the Company as provided in the Merger
Agreement, the Washington Business Corporation Act, and the Company's Articles
of Incorporation, as amended.
The Shareholders own the shares of the Company's common stock, $0.01 par
value per share (the "Common Stock"), set forth opposite their respective names
on Exhibit A hereto. As used herein, the term "Shares" includes all shares of
such Common Stock as to which each Shareholder (at any time prior to the
termination of this Agreement) is the beneficial owner or is otherwise able to
direct the voting thereof and all securities issued or exchanges with respect to
any such Shares upon any reclassification, recapitalization, reorganization,
merger, consolidation, spin-off, stock split, combination, stock or other
dividend or any other change in the Company's capital structure.
To induce Lucent and Acquisition to enter into the Merger Agreement, the
Company has agreed, upon the terms and subject to the conditions set forth
herein, to cause the Shareholders of Common Stock to execute this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties to this
Agreement agree as follows:
1. Shareholders' Representations and Warranties. Each Shareholder,
as to itself only, represents and warrants to Lucent and Acquisition that (i)
except as set forth in Schedule 1 hereto, such shareholder owns the Shares set
forth on Exhibit A hereto, free and clear of any mortgage, pledge, lien,
security interest, claim, restriction on voting or otherwise or other
encumbrance and (ii) has the right to vote such shares free of any mortgage,
pledge, lien, security interest, claim, restriction on voting or otherwise or
other encumbrance (other than any general fiduciary obligation imposed by law).
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2. No Voting Trusts. Each Shareholder hereby revokes any and all
proxies and voting instructions with respect to the Shares previously given by
the Shareholder and the Shareholder agrees that it will not grant or give any
other proxies or voting instructions with respect to the voting of the Shares,
enter into any voting trust or other arrangement or agreement with respect to
the voting of the Shares (and if given or executed, such proxies, voting
instructions, voting trust or other arrangement or agreement shall not be
effective), or agree, in any manner, to vote the Shares for or against any
proposal submitted to the shareholders of the Company except in furtherance of
the proposals set forth in paragraph 3.
3. Agreements with Respect to the Shares.
(a) Each Shareholder agrees during the term of this Agreement:
(i) to vote the Shares, to the extent entitled to vote, (x) in
favor of the approval of the Merger Agreement and the Merger, at every meeting
of the shareholders of the Company at which such matters are considered and at
every adjournment thereof and (y) with respect to all other proposals submitted
to the shareholders of the Company which, directly or indirectly, in any way
relate to the Merger, in such manner as Acquisition or Lucent may direct; and
(ii) not to solicit, encourage or recommend to other
shareholders of the Company that (w) they vote their shares of Common Stock or
any such other securities in any contrary manner, (x) they not vote their shares
of Common Stock at all, (y) they tender, exchange or otherwise dispose of their
shares of Common Stock pursuant to a Competing Transaction, as hereinafter
defined, or (z) they attempt to exercise any statutory appraisal or other
similar rights they may have.
(b) Unless otherwise instructed in writing by Lucent or Acquisition,
during the term of this Agreement, each Shareholder will vote the shares against
any Competing Transaction.
(c) Except with the prior written consent of Lucent or Acquisition,
during the term of this Agreement, each Shareholder agrees that such Shareholder
will not, and shall use its reasonable best efforts not to permit any employee,
attorney, accountant, investment banker or other agent or representative of such
Shareholder to initiate, solicit, negotiate, encourage, or provide confidential
information in order to facilitate any Competing Transaction.
(d) For purposes of this Agreement, a "Competing Transaction" shall
mean a transaction of any kind (including, without limitation, a merger,
consolidation, share exchange, reclassification, reorganization,
recapitalization, sale or encumbrance of substantially all the assets of the
Company outside the ordinary course of business, or sale or exchange by
shareholders of the Company of all or substantially all the shares of the
Company's capital stock) proposed by any person(s) in lieu of or in opposition
to the Merger Agreement and the Merger.
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4. Proxies. In furtherance of the foregoing, each Shareholder is
granting to Xxxxxx Xxxxxx, the Vice President of Acquisition, and/or Xxxx Xxxxx,
the Secretary of Acquisition, or to his or her designee(s), irrevocable proxies
and powers of attorney (which may be in the form annexed or such other form
consistent with the terms hereof and thereof as Lucent or Acquisition may
specify) to vote the Shares, to the extent such Shares are entitled to vote, and
hereby specifically agrees not to revoke such proxies granted under any
circumstances:
(a) at any and all meetings of shareholders of the Company, notice
of which meetings are given prior to the due and proper termination of this
Agreement, with respect to matters presented to the Company's shareholders for
vote which, directly or indirectly, in any way relate to or affect (i) the
Merger or the Merger Agreement or the approval of either thereof and (ii) any
Competing Transaction; or
(b) with respect to actions to be taken by written consent of the
shareholders of the Company which, directly or indirectly, in any way relates to
or affects any of the foregoing, and which consent is solicited prior to the due
and proper termination of this Agreement.
5. Limitation on Sales. During the term of this Agreement, except
pursuant to the Merger, each Shareholder agrees not to sell, assign, transfer,
loan, tender, pledge, hypothecate, exchange, encumber or otherwise dispose of,
or issue an option or call with respect to, any of the Shares, or impair such
Shareholder's Shares; provided, that any Shareholder may sell or otherwise
dispose of any of his or her Shares provided that the transferee of such Shares
shall have entered into a voting agreement substantially identical to this
Agreement in form and substance acceptable to Lucent and shall have entered into
such other agreements as Lucent may require.
6. Specific Performance. Each Shareholder acknowledges that it will
be impossible to measure in money the damage to Lucent or Acquisition if the
Shareholder fails to comply with the obligations imposed by this Agreement, and
that, in the event of any such failure, neither Lucent nor Acquisition will have
an adequate remedy at law or in damages. Accordingly, each Shareholder agrees
that injunctive relief or any other equitable remedy, in addition to any
remedies at law or damages, is the appropriate remedy for any such failure and
will not oppose the granting of any such remedy on the basis that Lucent or
Acquisition has an adequate remedy at law. Each Shareholder agrees not to seek,
and agrees to waive any requirement for, the securing or posting of a bond in
connection with Lucent or Acquisition seeking or obtaining such equitable
relief.
7. Reasonable Efforts. Each Shareholder will use all reasonable
efforts to cause to be satisfied the conditions to the obligations of the
Company to effect the Closing under the Merger Agreement.
8. Publicity. Each Shareholder agrees that, from the date hereof
through the Closing Date, such Shareholder shall not issue any public release or
announcement concerning
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the transactions contemplated by this Agreement and the Merger Agreement without
the prior consent of Lucent, except as such release or announcement may be
required by applicable law, in which case such Shareholder shall allow Lucent
reasonable time to comment on such release or announcement in advance of such
issuance.
9. Term of Agreement; Termination.
(a) The term of this Agreement shall commence on the date hereof and
shall terminate upon the earliest to occur of (i) the Effective Time of the
Merger (as defined in the Merger Agreement) and (ii) the due and proper
termination of the Merger Agreement in accordance with its terms. Upon such
termination, no party shall have any further obligations or liabilities
hereunder.
(b) The obligations of the Shareholders set forth in this Agreement
shall not be effective or binding upon any Shareholder until after such time as
the Merger Agreement is executed and delivered by Lucent, Acquisition and the
Company.
10. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter of this Agreement
and supersedes all prior written and oral and all contemporaneous oral
agreements and understandings with respect to the subject matter of this
Agreement.
(b) Notices. Any notice, request, instruction or other document to
be given hereunder by any party to the others shall be in writing and shall be
deemed to have been duly given on the next business day after the same is sent,
if delivered personally or sent by telecopy or overnight delivery, or five
calendar days after the same is sent, if sent by registered or certified mail,
return receipt requested, postage prepaid, as set forth below, or to such other
persons or addresses as may be designated in writing in accordance with the
terms hereof by the party to receive such notice.
If to Acquisition or Lucent:
Lucent Technologies Inc.
000 Xxxxx Xxxx Xxxx
0X000
Xxxxxxx Xxxxx, XX 00000
Att: President-BCS
Telepone No: separately supplied
Facsimile No: separately supplied
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with a copy to:
Lucent Technologies Inc.
000 Xxxxxxxx Xxxxxx
Room 6A 000
Xxxxxx Xxxx, XX 00000
Att: Xxxxxx X. Xxxxxx
Vice President-Law
Telepone No: separately supplied
Facsimile No: separately supplied
If to a Shareholder, to the address set forth below such
Shareholder's name on Exhibit A hereto, with copies to:
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000-0000
Att: Xxxxxxx Xxxxxxxxx, Esq.
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York as applied to contracts
made and fully performed in such state without giving effect to the principles
of conflict of laws thereof and except insofar as the Washington Business
Corporation Act shall be mandatorily applicable to the transactions contemplated
by this Agreement.
(d) Rules of Construction. The descriptive headings in this
Agreement are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement. Words
used in this Agreement, regardless of the gender and number specifically used,
shall be deemed and construed to include any other gender, masculine or
feminine, or neuter, and any other number, singular or plural, as the context
requires. As used in this Agreement, the word "including" is not limiting, and
the word "or" is not exclusive.
(e) Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of the parties to this Agreement and their legal
successors-in-interest, and nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, but all such counterparts together shall constitute but one
instrument.
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(g) Assignment. No party hereto shall assign its rights and
obligations under this Agreement or any part thereof, nor shall any party assign
or delegate any of its rights or duties hereunder without the prior written
consent of the other party, and any assignment made without such consent shall
be void. Except as otherwise provided herein, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(h) Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of all the parties.
(i) Extension; Waiver. Any party to this Agreement may extend the
time for the performance of any of the obligations or other acts of any of the
other parties to this Agreement or waive compliance by any other party with any
of the agreements or conditions contained herein or any breach thereof. Any
agreement on the part of any party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
(j) Severability. The provisions of this Agreement are severable
and, if any thereof are invalid or unenforceable in any jurisdiction, the same
and the other provisions hereof shall not be rendered otherwise invalid or
unenforceable.
(k) Fiduciary Duty as Director. The parties hereto acknowledge and
agree that each Shareholder's obligations hereunder are solely in his capacity
as a shareholder of the Company, and that none of the provisions herein set
forth shall be deemed to restrict or limit any fiduciary duty any of the
undersigned or any of their respective affiliates may have as a member of the
Board of Directors of the Company, as an executive officer of the Company, or
otherwise as a fiduciary to any person (other than any of the shareholders)
resulting from any circumstances other than as a shareholder of the Company;
provided that, no such duty shall excuse the Shareholder from his obligations as
a shareholder of the Company to vote the Shares, to the extent that they may be
so voted, or otherwise perform any obligation as herein provided and to
otherwise comply with the terms and conditions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound hereby, have duly executed this Voting Agreement on the date first above
written.
LUCENT TECHNOLOGIES INC.
By:
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Name:
Title:
NOAH ACQUISITION INC.
By:
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Name:
Title:
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COMMON SHAREHOLDERS:
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By:
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Name:
Title:
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EXHIBIT A
HOLDINGS OF COMMON STOCK AS OF APRIL 2, 1999
Name of Shareholder:
Address:
Telephone No.:
Facsimile No.:
Number of Shares of Common Stock:
Name of Shareholder:
Address:
Telephone No.:
Facsimile No.:
Number of Shares of Common Stock:
Name of Shareholder:
Address:
Telephone No.:
Facsimile No.:
Number of Shares of Common Stock:
Name of Shareholder:
Address:
Telephone No.:
Facsimile No.:
Number of Shares of Common Stock:
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FORM OF
IRREVOCABLE PROXY AND POWER OF ATTORNEY
The undersigned hereby appoints Xxxxxx Xxxxxx, the Vice
President of Noah Acquisition Inc. and/or Xxxx Xxxxx, the Secretary of Noah
Acquisition Inc., as the undersigned's attorney-in-fact and proxy, with full
power of substitution, for and in the undersigned's name, to vote, express
consent or disapproval, or otherwise act in such manner (including pursuant to
written consent, but excluding the right to assert, perfect and prosecute
dissenters' rights of appraisal) and upon such matters as Xxxxxx Xxxxxx and/or
Xxxx Xxxxx or their respective proxy or substitutes shall, in their sole
discretion, deem proper with respect to all of the shares of Common Stock of
Mosaix, Inc., a Washington corporation, owned of record by the undersigned.
The proxy granted hereby shall be irrevocable and may be
exercised at any meeting of shareholders, notice of which is given, or in
respect of any written consent which is solicited prior to the due and proper
termination of, and subject to and in accordance with the terms and conditions
of, the Voting Agreement, dated of even date herewith, among the undersigned,
Lucent Technologies Inc., Noah Acquisition Inc. and the other shareholders of
Mosaix, Inc. signatory thereto. This proxy is coupled with an interest
sufficient in law to support such proxy.
Dated: April 2, 1999
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By:
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Name:
Title:
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CONSENT OF SPOUSE
I, _________________________, spouse of _________________________
("Holder"), have read and approved the foregoing Voting Agreement. In
consideration of Lucent Technologies Inc., a Delaware corporation, and Noah
Acquisition Inc., a Washington corporation ("Acquisition"), entering into the
Merger Agreement providing for the merger of Acquisition with and into Mosaix,
Inc., a Washington corporation (the "Company"), I hereby appoint Holder as my
attorney-in-fact, with full power of substitution, in respect of the exercise of
any rights or performance of obligations under the foregoing Voting Agreement
insofar as I may have any rights in said Voting Agreement or in any shares of
Common Stock of the Company issued to Holder.
Dated: April 2, 1999
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