VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of January 21, 2002, by
and among CLEARONE COMMUNICATIONS, INC. (formerly, Gentner Communications
Corporation), a Utah corporation ("Parent"), TUNDRA ACQUISITION CORPORATION, a
Delaware corporation ("Purchaser") and a wholly-owned subsidiary of Parent, and
each of the individuals listed on the Signature Pages hereto (each in his
individual capacity, a "Stockholder", and collectively, the "Stockholders").
A. Each of the Stockholders is, as of the date hereof, the record and
beneficial owner of the shares of common stock, par value $0.01 per share (the
"Common Stock"), of E.mergent, Inc., a Delaware corporation (the "Company") set
forth on Annex I hereto;
B. Parent, Purchaser and the Company concurrently herewith are entering
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement;" capitalized terms used but not defined herein have the meanings
ascribed to such terms in the Merger Agreement), which provides, among other
things, for the acquisition of the Company by Parent by means of a merger of the
Company with an into Purchaser (the "Merger") upon the terms and subject to the
conditions set forth in the Merger Agreement; and
C. As a condition to the willingness of Parent and Purchaser to enter into
the Merger Agreement, and in order to induce Parent and Purchaser to enter into
the Merger Agreement, the Stockholders have agreed (solely in their capacity as
stockholders of the Company) to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by Parent
and Purchaser of the Merger Agreement and the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein and
therein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Stockholder. Stockholder
(i) is the sole beneficial owner of the shares of Common Stock or other voting
securities and the options and warrants and other rights to purchase shares of
Common Stock indicated on Annex I of this Agreement (the "Shares"), free and
clear of any liens, claims, options, rights of first refusal, co-sale rights,
charges or other encumbrances that, in each case, would deprive Parent of the
benefits of this Agreement; (ii) does not beneficially own any securities of the
Company other than the Shares; and (iii) has full power and authority to make,
enter into and carry out the terms of this Agreement and the proxy contained
herein.
SECTION 2. Voting of the Shares. The Stockholders each agree 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 in favor of approval of the Merger and the adoption and
approval of the Merger Agreement and in favor of each of the other actions
contemplated by the Merger Agreement and any action required in furtherance
thereof, and against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the transactions contemplated
by the Merger Agreement.
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SECTION 3. Grant of Irrevocable Proxy; Appointment of Proxy. Concurrently
with the execution of this Agreement, the Stockholder each agree 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, and,
except as provided therein, with respect to the Shares.
SECTION 4. Transfer of the Shares. Each of the Stockholders hereby agrees
that, at all times during the period commencing with the execution and delivery
of this Agreement until the Effective Time or termination of the Merger
Agreement pursuant to Article VII thereof, he shall not cause or permit any
Transfer (as defined below) of any of the Shares to be effected, or discuss,
negotiate or make any offer regarding any Transfer of any of the Shares, unless
each person to which any such Shares, or any interest therein, is or may be
Transferred shall have (i) executed a counterpart of this Agreement and a proxy
in the form attached hereto as Exhibit A (with such modifications as Parent may
reasonably request), and (ii) agreed in writing to hold such Shares, or such
interest therein, subject to all of the terms and conditions set forth in this
Agreement. A Stockholder shall be deemed to have effected a "Transfer" of Shares
if such Stockholder directly or indirectly (i) sells, pledges, encumbers, grants
an option with respect to, transfers or otherwise disposes of such Shares 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 Shares or any interest therein. Each of the
Stockholders hereby also agrees that, at all times commencing with the execution
and delivery of this Agreement until the Expiration Date, he shall not deposit,
or permit the deposit of, any Shares in a voting trust, grant any proxy (other
than the Proxy) in respect of the Shares, or enter into any stockholder voting
agreement or similar arrangement or commitment in contravention of the
obligations of such Stockholder under this Agreement with respect to any of the
Shares.
SECTION 5. Certain Events. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Common Stock or the acquisition of
additional shares of Common Stock or other securities or rights of the Company
by any Stockholder, the number of Shares shall be adjusted appropriately, and
this Agreement and the rights and obligations hereunder shall attach to any
additional shares of Common Stock or other securities or rights of the Company
issued to or acquired by any such Stockholder.
SECTION 6. Certain Other Agreements. From and after the date of this
Agreement until the Effective Time or termination of the Merger Agreement
pursuant to Article VII thereof, no Stockholder will, nor will any Stockholder
authorize or permit any of such Stockholder's affiliates or any investment
banker, attorney or other advisor or representative retained by any of them to,
directly or indirectly, (i) solicit, initiate, encourage or induce the making,
submission or announcement of any Acquisition Proposal, (ii) participate in any
discussions or negotiations regarding, or furnish to any person any information
with respect to, 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 Acquisition Proposal, (iii) engage in discussions with any person with
respect to any Acquisition Proposal, (iv) approve, endorse or recommend any
Acquisition Proposal, or (v) enter into any letter of intent or similar document
or any contract, agreement or commitment contemplating or otherwise relating to
any Acquisition Transaction; provided, however, that nothing herein shall
prohibit a Stockholder from taking action in his capacity as a director or
officer of the Company to the extent otherwise permitted by the Merger
Agreement.
SECTION 7. Further Assurances. Each of the Stockholders shall, upon request
of Parent or Purchaser, execute and deliver any additional documents and take
such further actions as may reasonably be deemed by Parent or Purchaser to be
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necessary or desirable to carry out the provisions hereof and to vest in
Parent the power to vote the Shares as contemplated by Section 3 hereof.
SECTION 8. Termination. Except as otherwise provided in this Agreement,
this Agreement, and all rights and obligations of the parties hereunder, shall
terminate immediately upon the earlier of (i) the termination of the Merger
Agreement in accordance with its terms or (ii) the Effective Time; provided,
however, that Sections 9 and 11 shall survive any termination of this Agreement.
SECTION 9. Expenses. All fees and expenses incurred by any one party hereto
shall be borne by the party incurring such fees and expenses.
SECTION 10. Appraisal. Each Stockholder also agrees not to exercise any
rights (including, without limitation, under Section 262 of the General
Corporation Law of the State of Delaware) to demand appraisal of any Shares
which may arise with respect to the Merger.
SECTION 11. Certificate Legends. The Stockholders each hereby agree that
Parent shall have the discretion to include a legend on the certificates
representing the Shares indicating that the Shares are subject to this Agreement
and the Proxy.
SECTION 12. Miscellaneous.
(a) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment. This Agreement and all of the 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 parties hereto may be assigned by either of the
parties without prior written consent of the other.
(c) Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. The parties hereto acknowledge
that Parent shall be irreparably harmed and that there shall be no adequate
remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity
(e) 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
parties at the following address (or at such other address for a party as shall
be specified by like notice):
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If the Parent: Gentner Communications Corporation
1825 Research Way
Salt Lake City, UT 84119
Attention: Frances Flood and Randall J. Wichinski
Telecopy No.: (801) 974-3742
with a copy to: Jones Waldo Holbrook & McDonough
170 South Main Street, Suite 1500
Salt Lake City, UT 84101
Attention: James A. Valeo, Esq.
Telecopy No.: (801) 328-0537
If the Stockholders: To the address set forth on Annex I hereto
with a copy to: Fredrickson & Bryon, P.A.
1100 International Centre
900 Second Avenue South
Minneapolis, MN 55402
Telecopy No: (612) 347-7077
Attention: Robert Ribeiro, Esq.
(f) Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without giving effect to the conflicts of law principles
thereof.
(g) Entire Agreement. This Agreement and the Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(h) Effect of Headings. The section headings are for convenience only and
shall not affect the construction or interpretation of this Agreement.
(i) 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.
[signature page follows]
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IN WITNESS WHEREOF, each of Parent, the Purchaser and the Stockholders have
caused this Agreement to be duly executed and delivered as of the date first
written above.
CLEARONE COMMUNICATIONS, INC.
By: Frances Flood
-------------
President and
Chief Executive Officer
TUNDRA ACQUISITION CORPORATION
By: Randall J. Wichinski
--------------------
Randall J. Wichinski,
Vice President
STOCKHOLDERS
Robin Sheeley
-------------
Robin Sheeley
James Hansen
------------
James Hansen
Richard Craven
--------------
Richard Craven
Jill Larson
-----------
Jill Larson
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ANNEX I
SHARES
Shares of Company Common Stock Shares of Company Common
Stockholder Name and Address issuable upon the exercise of Stock beneficially owned
outstanding options, warrants or other
rights
- -----------------------------------------------------------------------------------------------------
Robin Sheeley 35,000 1,209,828
- -----------------------------------------------------------------------------------------------------
James Hansen 130,000 554,634
- -----------------------------------------------------------------------------------------------------
Richard Craven 28,000 625,448
- -----------------------------------------------------------------------------------------------------
Jill Larson 105,000 3,890
- -----------------------------------------------------------------------------------------------------
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of E.mergent, Inc., a Delaware corporation (the
"Company"), hereby irrevocably (to the fullest extent permitted by law), solely
in his capacity as a stockholder, appoints the directors on the Board of
Directors of ClearOne Communications, Inc. (formerly, Gentner Communications
Corporation), a Utah 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. 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, and is granted in consideration of Parent entering into that
certain Agreement and Plan of Merger (the "Merger Agreement"), by and among
Parent, Tundra Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of Parent ("Purchaser"), and the Company, which provides
for the merger of the Company with and into the Purchaser in accordance with its
terms (the "Merger"). As used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) such date and time as the Merger Agreement shall have
been terminated in accordance with 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 Merger Agreement. Upon the Expiration Date, this proxy shall be of
no further force or effect.
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 Merger Agreement, and in favor of each of the other
actions contemplated by the Merger 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 Merger Agreement; and
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(iii) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by
the Merger Agreement): (A) any merger, consolidation, business
combination, sale of assets, reorganization or recapitalization
of the Company or any subsidiary of the Company with any party,
(B) any sale, lease or transfer of any significant part of the
assets of the Company or any subsidiary of the Company, (C) any
reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any subsidiary of the Company, (D)
any material change in the capitalization of the Company or any
subsidiary of the Company, or the corporate structure of the
Company or any subsidiary of the Company, or (E) 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 Merger Agreement; and (iv) in favor of waiving any notice
that may have been or may be required relating to any
reorganization of the Company or any subsidiary of the Company,
any reclassification or recapitalization of the capital stock of
the Company or any subsidiary of the Company, or any sale of
assets, change of control, or acquisition of the Company or any
subsidiary of the Company by any other person, or any
consolidation or merger of the Company or any subsidiary of the
Company with or into any other person.
The attorneys and proxies named above may not exercise this Proxy 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.
This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
Dated: January [ ], 2002
Signature of ___________________________
Stockholder:
Print Name of
Stockholder: ___________________________
Shares of Company
Common Stock
beneficially owned: __________________
Shares of Company Common
Stock issuable
upon the exercise of
outstanding options,
warrants or other rights: __________________
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