EXHIBIT 2
STOCKHOLDER AGREEMENT dated as of August 9, 1999
(this "Agreement"), between LUCENT TECHNOLOGIES INC., a
Delaware corporation ("Lucent"), and the stockholders
listed on Schedule A attached hereto (collectively, the
"Stockholder").
WHEREAS Lucent, Intrepid Merger Inc., a Delaware corporation and
a wholly owned subsidiary of Lucent ("Sub"), and International Network
Services, a Delaware corporation (the "Company"), propose to enter into an
Agreement and Plan of Merger dated as of the date hereof (as the same may
be amended or supplemented, the "Merger Agreement"; defined terms used but
not defined herein have the meanings set forth in the Merger Agreement),
providing for, among other things, the merger of Sub with and into the
Company, upon the terms and subject to the conditions set forth in the
Merger Agreement;
WHEREAS the Stockholder beneficially owns the number of shares of
capital stock of the Company set forth opposite the Stockholder's name on
Schedule A attached hereto (such shares of capital stock of the Company,
together with any other shares of capital stock of the Company acquired by
the Stockholder after the date hereof and during the term of this Agreement
(including through the exercise of any stock options, warrants or similar
instruments), being collectively referred to herein as the "Subject
Shares"); and
WHEREAS as a condition to its willingness to enter into the
Merger Agreement, Lucent has requested that the Stockholder enter into this
Agreement.
NOW, THEREFORE, to induce Lucent to enter into, and in
consideration of its entering into, the Merger Agreement, and in
consideration of the premises and the representations, warranties and
agreements contained herein, the parties hereto agree as follows:
1. Agreement to Vote Shares. The Stockholder agrees during the
term of this Agreement to vote, or cause to be voted, its Subject Shares,
in person or by proxy, (i) in favor of the Merger, the adoption and
approval of the Merger Agreement and the approval of the transactions
contemplated by the Merger Agreement at every meeting of the stockholders
of the Company at which such matters are considered and at every
adjournment thereof and (ii) in such manner as Lucent may direct with
respect to all other
proposals submitted to the stockholders of the Company which, directly or
indirectly, in any way relate to the Merger; provided, however, that clause
(ii) of this Section 1 shall not be construed to require any action which
would contravene paragraph 47(c) of Opinion 16 of the Accounting Principles
Board and applicable SEC rules and regulations.
2. Grant of Irrevocable Proxy. The Stockholder hereby irrevocably
grants to, and appoints, Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx and any other
individual who shall hereafter be designated by Lucent, and each of them,
the Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of the Stockholder, to
vote, or cause to be voted, the Stockholder's Subject Shares, or grant a
consent or approval in respect of such Subject Shares, at any meeting of
stockholders of the Company or at any adjournment thereof or in any other
circumstances upon which their vote, consent or other approval is sought,
in favor of the Merger, the adoption and approval of the Merger Agreement
and the approval of the transactions contemplated by the Merger Agreement.
3. No Other Grant of Proxy. The Stockholder will not, directly or
indirectly, grant any proxies or powers of attorney with respect to his
Subject Shares to any person in connection with or directly affecting the
Merger other than as set forth in Section 2.
4. Transfers. Other than this Agreement, the Stockholder will
not, nor will the Stockholder permit any entity under the Stockholder's
control to, sell, transfer, pledge, assign or otherwise dispose of
(including by gift) (collectively, "Transfer"), or consent to any Transfer
of, any Subject Shares or any interest therein or enter into any contract,
option or other agreement or arrangement (including any profit sharing or
other derivative arrangement) with respect to the Transfer of, any Subject
Shares or any interest therein to any person, unless prior to any such
Transfer the transferee of such Subject Shares enters into a stockholder
agreement with Lucent on terms substantially identical to the terms of this
Agreement; provided, however, that such restriction shall not be applicable
to any of the Subject Shares that have been pledged by the Stockholder
pursuant to a margin loan account prior to the date of this Agreement.
5. No Voting Trusts. The Stockholder agrees that it will not
enter into any voting trust or other arrangement or agreement with respect
to the voting of the Subject Shares (and if entered into or executed, such
voting trust or other arrangement or agreement shall not be effective),
or agree, in any manner, to vote the Subject Shares for or against any
proposal in connection with or directly affecting the Merger submitted to
the stockholders of the Company except in furtherance of the proposals as
set forth in Section 1 hereof.
6. No Solicitation. Until the Merger is consummated or the Merger
Agreement is terminated, the Stockholder shall not, nor shall he permit any
investment banker, attorney or other advisor or representative of the
Stockholder to, directly or indirectly through another person, solicit,
initiate or encourage, or take any other action to facilitate, any
inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any Takeover Proposal.
7. Affiliate Agreement. (a) If, at the time the Merger Agreement
is submitted for approval to the stock holders of the Company, the
Stockholder is an "affiliate" of the Company for purposes of Rule 145 under
the Securities Act or for purposes of qualifying the Merger for pooling of
interests accounting treatment under Opinion 16 of the Accounting
Principles Board and applicable SEC rules and regulations, the Stockholder
shall deliver to Lucent at least 30 days prior to the Closing a written
agreement substantially in the form attached as Exhibit A to the Merger
Agreement.
(b) The Stockholder shall use reasonable efforts to cause the
transactions contemplated by the Merger Agreement, including the Merger, to
be accounted for as a pooling of interests transaction under Opinion 16 of
the Accounting Principles Board and applicable SEC rules and regulations.
The Stockholder agrees that it shall take no action that would cause such
accounting treatment not to be obtained.
8. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Lucent in respect of himself
as follows:
(a) Authority. The Stockholder has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes a valid and binding obligation
of the Stockholder enforceable against the Stockholder in accordance with
its terms. The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with
the terms hereof will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under any
provision of, any trust agreement,
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license, judgment,
order, notice, decree, statute, law, ordinance, rule or regulation
applicable to the Stockholder or to the Stockholder's property or assets.
Except for informational filings with the SEC, no consent, approval, order
or authorization of, or registration, declaration or filing with any
Governmental Entity is required by or with respect to the Stockholder in
connection with the execution and delivery of this Agreement or the
consummation by the Stockholder of the transactions contemplated hereby.
(b) The Subject Shares. The Stockholder has good and marketable
title to the Subject Shares, free and clear of all Liens, except for the
Subject Shares that have been pledged by the Stockholder pursuant to a
margin loan account prior to the date of this Agreement.
9. Representations and Warranties of Lucent. Lucent hereby
represents and warrants to the Stockholder that Lucent has all requisite
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by Lucent, and the consummation of the transactions
contemplated hereby, has been duly authorized by all necessary corporate
action on the part of Lucent. This Agreement has been duly executed and
delivered by Lucent and constitutes a valid and binding obligation of
Lucent enforceable against Lucent in accordance with its terms. The
execution and delivery of this Agreement do not, and the consummation of
the transactions contemplated hereby and compliance with the terms hereof
will not, conflict with, or result in any violation of, or default (with or
without notice or lapse of time or both) under any provision of, any trust
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to Lucent or to Lucent's property or assets. Except
for the informational filings with the SEC, no consent, approval, order or
authorization of, or registration, declaration or filing with any
Governmental Entity is required by or with respect to Lucent in connection
with the execution and delivery of this Agreement or the consummation by
Lucent of the transactions contemplated hereby.
10. Enforcement. 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 Agreement were not performed in
accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties will be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any
Federal court located in the State of Delaware or in Delaware state court,
the foregoing being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties hereto (i)
consents to submit itself to the personal jurisdiction of any Federal court
located in the State of Delaware or any Delaware state court in the event
any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (ii) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (iii) agrees that it will not bring any
action relating to this Agreement or any of the transactions contemplated
by this Agreement in any court other than a Federal court sitting in the
State of Delaware or a Delaware state court.
11. Term and Termination. Subject to Section 16(f), the term of
this Agreement shall commence on the date hereof and shall terminate upon
the earlier of (i) the Effective Time and (ii) 10 business days after the
termination of the Merger Agreement in accordance with its terms.
12. Certain Events. The Stockholder agrees that this Agreement
and the obligations hereunder shall attach to the Stockholder's Subject
Shares and shall be binding upon any Person to which legal or beneficial
ownership of such Subject Shares shall pass, whether by operation of law or
otherwise, including the Stockholder's heirs, guardians, administrators or
successors. In the event of any stock split, stock dividend, merger,
reorganization, recapitaliza tion or other change in the capital structure
of the Company affecting the Subject Shares, or the acquisition of
additional shares of the Company's capital stock by the Stockholder, the
number of Subject Shares listed on Schedule A beside the name of the
Stockholder shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares of the
Company's capital stock issued to or acquired by the Stockholder.
13. Stockholder Capacity. No person executing this Agreement who
is or becomes during the term hereof a director or officer of the Company
makes (or shall be deemed to have made) any agreement or understanding
herein in his or her capacity as such director or officer. Without limiting
the generality of the foregoing, the Stockholder signs solely in his
capacity as the record and/or beneficial owner, as applicable, of the
Stockholder's Subject Shares
and nothing herein shall limit or affect any actions taken by the
Stockholder (or a designee of the Stockholder) in his capacity as an
officer or director of the Company in exercising his rights under the
Merger Agreement.
14. Entire Agreement; No Third Party Beneficiaries; Amendment;
Waiver. This Agreement (including the documents and instruments referred to
herein) (i) constitutes the entire agreement and supersedes all prior
agreements and understandings, written or oral, among the parties with
respect to the subject matter hereof and (ii) is not intended to confer
upon any Person other than the parties hereto any rights or remedies
hereunder. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by each party to be charged. No waiver of any provisions
hereof by any party shall be deemed a waiver of any other provisions hereof
by any such party, nor shall any such waiver be deemed a continuing waiver
of any provision hereof by such party.
15. Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein shall be in writing
and shall be deemed to have been duly given if mailed, by first class or
registered mail, three business days after deposit in the United States
Mail, or if telexed or telecopied, sent by telegram, or delivered by hand
or reputable overnight courier, when confirmation is received, in each case
as follows:
If to the Stockholder, to the address listed on
Schedule A hereto;
If to Lucent, in accordance with Section 8.02 of the
Merger Agreement;
or to such other persons or addresses as may be designated in writing by
the party to receive such notice.
16. Miscellaneous. (a) When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
(b) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware regardless of the laws
that might otherwise govern under applicable principles of conflicts of
laws.
(c) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy,
all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in an acceptable manner and to
the end that the transactions contemplated hereby are fulfilled to the
extent possible.
(d) This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement, and shall
become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other parties, it being understood
that each party need not sign the same counterpart.
(e) This Agreement shall not be assigned by the Stockholder, on
the one hand, without the prior written consent of Lucent, or by Lucent, on
the other hand, without the prior written consent of the Stockholder,
except that Lucent may assign, in its sole discretion, any or all of its
rights, interests and obligations hereunder to any direct or indirect
wholly owned subsidiary of Lucent; provided that notwithstanding such
assignment, Lucent shall remain liable for performance of its obligations
hereunder. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.
(f) The obligations of the Stockholder set forth in this
Agreement shall not be effective or binding upon the Stockholder until
after such time as the Merger Agreement is executed and delivered by
Lucent, Sub and the Company.
IN WITNESS WHEREOF, Lucent has caused this Agreement to be signed
by its officer thereunto duly authorized and the Stockholder has signed
this Agreement, all as of the date first written above.
LUCENT TECHNOLOGIES INC.,
by
/s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice
President, Strategy
and Corporate
Operations
STOCKHOLDERS:
/s/ Xxxxxx X. XxXxxxxx
Xxxxxx X. XxXxxxxx
THE XXXXXXXX FAMILY TRUST,
by
/s/ Xxxxxx X. XxXxxxxx
Xxxxxx X. XxXxxxxx, Trustee
SCHEDULE A
Number of Percentage of
Outstanding Voting Power of
Stockholder Shares Owned the Company
Xxxxxx X. XxXxxxxx 1,316,999 2.28%
Xxxxxx X. XxXxxxxx, 14,473,465 25.07%
Trustee of the XxXxxxxx
Family Trust
Includes 416,999 shares subject to options which are exercisable
within 60 days of the date of this Agreement.