STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER VOTING AGREEMENT, dated as of August 18, 2005 (this
"Agreement"), between the stockholder identified on the signature page hereto
(the "Stockholder"), and EAS Group, Inc., a Delaware corporation ("Buyer").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Merger Agreement referred to below.
WHEREAS, as of the date hereof, the Stockholder owns of record and
beneficially shares of common stock, par value $0.01 per share, and owns of
record or beneficially options and other rights to acquire shares of common
stock, of Brooktrout, Inc., a Massachusetts corporation (the "Company"), as set
forth on the signature page hereto (such shares and options, or any other voting
or equity securities of the Company hereafter acquired by any Stockholder prior
to the termination of this Agreement, being referred to herein collectively as
the "Shares");
WHEREAS, concurrently with the execution of this Agreement, Buyer and the
Company are entering into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), pursuant to which, upon the terms and subject
to the conditions thereof, a subsidiary of Buyer will be merged with and into
the Company, and the Company will be the surviving corporation (the "Merger");
and
WHEREAS, as a condition to the willingness of Buyer to enter into the
Merger Agreement, Buyer has required that the Stockholder agree, and in order to
induce Buyer to enter into the Merger Agreement, the Stockholder is willing to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows:
Section 1. Voting of Shares.
(a) The Stockholder covenants and agrees that until the termination of
this Agreement in accordance with the terms hereof, the Stockholder shall (a)
appear at the Company Meeting or any other meeting of the stockholders of the
Company, however called, or otherwise cause his, her or its Shares to be counted
as present thereat for purposes of calculating a quorum, (b) vote in favor of
any proposal to adjourn such meeting if necessary to permit the further
solicitation of proxies in the event that there are not sufficient votes at the
time of such meeting to approve the Merger Agreement, (c) vote, or cause to be
voted, all of his, her or its Shares (i) in favor of the approval of the Merger
Agreement, and (ii) against approval of any Alternative Acquisition Agreement.
(b) Subject to the last sentence of this Section 1(b), the Stockholder
hereby irrevocably (to the extent permitted by law) grants to, and appoints, the
Buyer as its proxy and attorney-in-fact (with full power of substitution), for
and in its name, place and stead, to vote his, her or its Shares, if the
Stockholder is unable to perform his, her or its obligations under this
Agreement, at any meeting of the stockholders of the Company called with respect
to any of the matters specified in, and solely in accordance and consistent
with, Section 1(a). The Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 1(b) is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the obligations of the Stockholder under this Agreement. Except
as otherwise provided for herein, the Stockholder hereby affirms that the
appointment of the proxy is coupled with an interest and intended to be
irrevocable in accordance with the provisions of Section 7.22 of the
Massachusetts Business Corporation Act. Notwithstanding any other provisions of
this Agreement, the irrevocable proxy granted hereunder shall automatically
terminate upon the termination of this Agreement.
Section 2. Transfer of Shares. The Stockholder covenants and agrees that,
prior to the conclusion of the Company Meeting, the Stockholder will not
directly or indirectly (i) sell, assign, transfer,
pledge, encumber or otherwise dispose of any of the Shares, (ii) deposit any of
the Shares into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares or grant any proxy or power of attorney with respect
thereto which is inconsistent with this Agreement or (iii) enter into any
contract, option or other arrangement or undertaking with respect to the direct
or indirect sale, assignment, transfer or other disposition of any Shares prior
to the conclusion of the Company Meeting. Notwithstanding the foregoing, the
Stockholder may make (i) transfers by will, or by operation of law, in which
case this Agreement shall bind the transferee, (ii) transfers in connection with
estate and charitable planning purposes, including transfers to relatives,
trusts and charitable organizations, subject to the transferee agreeing in
writing to be bound by the terms of, and perform the obligations of the
Stockholder under, this Agreement and (iii) as the Buyer may otherwise agree in
writing.
Section 3. Representations and Warranties. The Stockholder represents and
warrants to Buyer as of the date hereof as follows:
(a) Ownership of Shares. The Stockholder beneficially owns all of the
Shares and options to acquire Shares as set forth on the signature page hereto.
The Stockholder owns no shares of Company Common Stock other than the Shares as
set forth on the signature page hereto. The Stockholder has sole voting power
with respect to all of the Shares.
(b) Power, Binding Agreement. The Stockholder has the legal capacity and
all requisite power and authority to enter into and perform all of its
obligations under this Agreement. This Agreement has been duly and validly
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, subject to the Bankruptcy and Equity Exception.
(c) No Conflicts. The execution and delivery of this Agreement do not, and
the performance of this Agreement by the Stockholder will not, conflict with or
violate (i) any contract, agreement, license, instrument or permit to which the
Stockholder is a party or by which the Stockholder is bound, or (ii) any law
applicable to the Stockholder or by which the Stockholder is bound. Except as
expressly contemplated hereby, the Stockholder is not a party to, and the Shares
are not subject to or bound in any manner by, any contract or agreement relating
to the Shares, including without limitation, any voting agreement, option
agreement, purchase agreement, stockholders' agreement, partnership agreement or
voting trust.
(d) No Restraints. As of the date hereof, there is no suit, action
investigation or proceeding pending or, to the knowledge of the Stockholder,
threatened against the Stockholder before or by any governmental entity or
person that could impair the ability of the Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on a
timely basis
Section 4. Termination. This Agreement shall terminate upon the earlier to
occur of (i) the Effective Time or (ii) any termination of the Merger Agreement.
Section 5. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 6. Fiduciary Duties. The 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 Merger Agreement.
Subject to the foregoing sentence, the Stockholder agrees, solely in his, her or
its capacity as a Stockholder to comply with Section 6.1 of the Merger Agreement
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Section 7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect thereto. This Agreement may not be amended,
modified or rescinded except by an instrument in writing signed by each of the
parties hereto.
(b) Severability. 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 a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts without regard to
the principles of conflicts of law thereof.
(d) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument.
(e) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly delivered (i) three business days after being
sent by registered or certified mail, return receipt requested, postage prepaid,
or (ii) one business day after being sent for next business day delivery, fees
prepaid, via a reputable nationwide overnight courier service, in each case to
the intended recipient as set forth below:
(i) if to the Stockholder to the address set forth on the signature
page of this Agreement; and
(ii) if to the Buyer to:
EAS Group, Inc.
00 Xxxxxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Xxxx Xxxxxx
with a copy to:
XxXxxxxxx, Will & Xxxxx LLP
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Xxxx Xxxxx Esq./Xxxxxx Xxxxxxxx, Esq.
(f) No Third Party Beneficiaries. This Agreement is not intended, and
shall not be deemed, to confer any rights or remedies upon any person other than
the parties hereto and their respective successors and permitted assigns, to
create any agreement of employment with any person or to otherwise create any
third-party beneficiary hereto.
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(g) Assignment. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement may be assigned or delegated, in whole or in
part, by operation of law or otherwise by any of the parties hereto without the
prior written consent of the other parties, and any such assignment without such
prior written consent shall be null and void. Subject to the preceding sentence,
this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties hereto and their respective successors and permitted
assigns.
(h) Interpretation. When reference is made in this Agreement to a Section,
such reference shall be to a Section of this Agreement, unless otherwise
indicated. The headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa. Any reference to any federal, state, local or foreign statute or law
shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." No summary of this Agreement
prepared by the parties shall affect in any way the meaning or interpretation of
this Agreement.
(i) Submission to Jurisdiction. Each of the parties to this Agreement (i)
consents to submit itself to the personal jurisdiction of any state or federal
court sitting in the Boston, Massachusetts in any action or proceeding arising
out of or relating to this Agreement or any of the transactions contemplated by
this Agreement, (ii) agrees that all claims in respect of such action or
proceeding may be heard and determined in any such court, (iii) 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 (iv) agrees not to bring any action or
proceeding arising out of or relating to this Agreement or any of the
transactions contemplated by this Agreement in any other court. Each of the
parties hereto waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety or other
security that might be required of any other party with respect thereto. Any
party hereto may make service on another party by sending or delivering a copy
of the process to the party to be served at the address and in the manner
provided for the giving of notices in Section 7(e). Nothing in this Section,
however, shall affect the right of any party to serve legal process in any other
manner permitted by law.
(j) WAIVER OF JURY TRIAL. EACH OF THE BUYER AND THE STOCKHOLDER HEREBY
IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE
ACTIONS OF THE BUYER OR THE STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.
[signature page to follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Stockholder
Voting Agreement to be signed individually or by its respective duly authorized
officer as of the date first written above.
BUYER
By: /s/Xxxx Xxxxxx
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Name:
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Title:
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STOCKHOLDER:
/s/Xxxx X. Xxxxx
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Signature
Xxxx X. Xxxxx
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Name
[address omitted]
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Address
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Address
Number of Shares:
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Number of Options:
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