VOTING AGREEMENT
VOTING AGREEMENT, dated as of September 30, 1999 (this "Agreement"), by
and between Netrix Corporation, a Delaware corporation (the "Company"), and
Steven T. Francesco, the holder (the "Holder") of shares of the common stock,
par value $.05 per share (the "Company Shares"), of the Company.
WITNESSETH:
WHEREAS, the Company and OpenROUTE Networks, Inc., a Massachusetts
corporation ("OpenROUTE"), propose to enter into an Agreement and Plan of Merger
dated as of the date hereof (the "Merger Agreement"; capitalized terms used
herein and not otherwise defined are used herein as defined in the Merger
Agreement), pursuant to which OpenROUTE will be merged (the "Merger") with and
into the Company, and each of the outstanding shares of OpenROUTE common stock
will be converted into the right to receive one share of the common stock, par
value $.05 per share, of the Company, pursuant to and in accordance with the
terms and conditions set forth in the Merger Agreement;
WHEREAS, the Holder, individually or as trustee or custodian, is the owner
of Company Shares (the "Subject Shares"); and
WHEREAS, as a condition of its entering into the Merger Agreement, the
Company has requested that the Holder agree, and the Holder has agreed, to vote
the Subject Shares and to grant the Company an irrevocable proxy to vote the
Subject Shares upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and the mutual agreements
and covenants hereinafter set forth, and intending to be legally bound hereby,
the parties hereto hereby agree as follows:
1. AGREEMENT TO VOTE SHARES. At every annual or special meeting of the
shareholders of the Company and at every continuation or adjournment thereof,
and on every action or approval by written consent of the shareholders of the
Company in lieu of any such meeting, the Holder: (i) shall vote the Subject
Shares in favor of approval of the Merger Agreement and the Merger and any
matter that could reasonably be expected to facilitate the Merger; and (ii)
shall vote the Subject Shares against any proposal made in opposition to
consummation of the Merger.
2. IRREVOCABLE PROXY. Concurrently with the execution of this Agreement,
the Holder is delivering to the Company a proxy in the form attached hereto as
Exhibit A, which shall be irrevocable to the full extent permitted by law, with
respect to the Subject Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE HOLDER. The Holder hereby
represents and warrants to the Company that:
(a) This Agreement has been duly executed and delivered by the Holder, and
is the legal, valid and binding obligation of the Holder;
(b) No consent of any court, governmental authority, beneficiary,
co-trustee or other person is necessary for the execution, delivery
and performance of this Agreement by the Holder;
(c) The Subject Shares are owned free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind,
other than this Agreement;
(d) The Holder has the present power and right to vote all of the Subject
Shares; and
(e) Except as provided herein, the Holder has not: (i) granted any
power-of-attorney or other authorization or interest with respect to
any of the Subject Shares; (ii) deposited any of the Subject Shares
into a voting trust; or (iii) entered into any voting agreement or
other arrangement with respect to the voting of any of the Subject
Shares.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Holder that:
(a) This Agreement has been duly executed and delivered by the Company,
and is the legal, valid and binding obligation of the Company;
(b) No consent of any court, governmental authority, beneficiary,
co-trustee or other person is necessary for the execution, delivery
and performance of this Agreement by the Company; and
(c) All of the Subject Shares have been duly authorized and validly issued
and are fully paid and nonassessable.
5. COVENANTS OF THE HOLDER. The Holder hereby agrees and covenants that
any shares of capital stock of the Company (including Company Shares) that the
Holder purchases or with respect to which the Holder otherwise acquires
beneficial ownership after the date of this Agreement and prior to the
termination of this Agreement pursuant to Section 8 shall be considered "Subject
Shares" and subject to each of the terms and conditions of this Agreement.
6. COVENANTS OF THE COMPANY. The Company hereby agrees and covenants
that:
(a) The Company will not, and will cause its stock transfer agent not
to, register the transfer of any of the Subject Shares on the stock
transfer ledger of the Company at any time prior to the termination
of this Agreement pursuant to Section 8; and
(b) The Company agrees that any shares of capital stock of the Company
(including the Company Shares) that the Holder purchases or with
respect to which the Holder otherwise acquires beneficial ownership
after the date of this Agreement and prior to the termination of
this Agreement pursuant to Section 8 shall be considered "Subject
Shares" and subject to each of the terms and conditions of this
Agreement.
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. In the event of any changes
in the Company Shares by reason of stock dividends, split-ups,
recapitalizations, combinations, exchanges of shares or the like, the number of
Subject Shares shall be adjusted appropriately.
8. TERMINATION. This Agreement shall terminate on the earlier of: (a) the
Effective Time; (b) at any time upon written notice by the Company to the Holder
terminating this Agreement; or (c) the later of March 31, 2000 or 30 calendar
days after the date on which the Merger Agreement is terminated.
9. NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
as of the date delivered, mailed or transmitted, and shall be effective upon
receipt, if delivered personally or mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or to such other address for a party as shall be specified by like
change of address), or sent by electronic transmission with confirmation
received, to the telecopy number specified below, if any:
(a) if to the Holder:
Steven T. Francesco
c/o Netrix Corporation
13595 Dulles Technology Drive
Herndon, VA 20171
(b) if to the Company:
Netrix Corporation
Attention: Chief Executive Officer
13595 Dulles Technology Drive
Herndon, VA 20171
10. HEADINGS. 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.
11. 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 so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. 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 in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof and,
except as otherwise expressly provided herein, are not intended to confer upon
any other person any rights or remedies hereunder.
13. ASSIGNMENT. This Agreement shall not be assigned by operation of
law or otherwise.
14. AMENDMENT. This Agreement may not be modified, amended or waived in
any manner except by an instrument in writing signed by each of the parties
hereto. Except as is provided in Section 8, this Agreement may only be
terminated in a writing signed by each of the parties hereto. The waiver by any
party of compliance with any provision of this Agreement by any other party
shall not operate or be construed as a waiver of any other provision of this
Agreement, or of any subsequent breach by such party of a provision of this
Agreement.
15. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
16. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specified terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Agreement has been executed by each of the
parties hereto individually, by its duly authorized officer or in its capacity
as a duly authorized trustee or custodian, all as of the date first above
written.
Netrix Corporation
By: /s/ Peter Kendrick
------------------------------
Name: Peter Kendrick
Title: Chief Financial Officer
THE HOLDER
/s/ Steven T. Francesco
--------------------------------------
Name: Steven T. Francesco
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned shareholder of Netrix Corporation, a Delaware corporation
(the "Company"), hereby irrevocably (to the full extent permitted by law)
appoints and constitutes Peter J. Kendrick, Chief Financial Officer of the
Company, in his capacities as an officer of the Company, and any individual(s),
who shall hereafter succeed to such offices, and the Company, and each of them,
the attorneys and proxies of the undersigned with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
the shares of capital stock of the Company beneficially owned by the
undersigned, which shares are listed on the final page of this Proxy (the
"Shares"), and any and all other shares or securities issued or issuable in
respect thereof on or after the date hereof, until such time as the Voting
Agreement, dated as of September 30, 1999 (the "Voting Agreement"), between the
Company and the undersigned, shall be terminated in accordance with its terms.
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Shares and any and all other shares or securities issued or
issuable in respect thereof on or after the date hereof are hereby revoked and
no subsequent proxies will be given.
This proxy is irrevocable (to the full extent permitted by law) and is
granted in connection with the Voting Agreement and is granted in consideration
of the Company entering into the Agreement and Plan of Merger, dated as of
September 30, 1999 (the "Merger Agreement"), between the Company and OpenROUTE
Networks, Inc., a Massachusetts corporation.
The attorneys and proxies named above will be empowered at any time prior
to termination of the Voting Agreement to exercise all voting and other rights
(including, without limitation, the power to execute and deliver written
consents with respect to the Shares) of the undersigned at every annual or
special meeting of the shareholders of the Company and at every continuation or
adjournment thereof, and on every action or approval by written consent of the
shareholders of the Company in lieu of any such meeting, (i) in favor of
approval of the Merger Agreement and the Merger and any matter that could
reasonably be expected to facilitate the Merger and (ii) against approval of any
proposal made in opposition to consummation of the Merger.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto at any time prior to termination of the Voting
Agreement at every annual or special meeting of the shareholders of the Company
and at every continuation or adjournment thereof, and on every action or
approval by written consent of the shareholders of the Company in lieu of any
such meeting, (i) in favor of approval of the Merger Agreement and the Merger
and any matter that could reasonably be expected to facilitate the Merger and
(ii) against approval of any proposal made in opposition to or competition with
consummation of the Merger. The undersigned shareholder 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.
Dated: September 30, 1999
Signature of Shareholder:_____________________________________
Print name of Shareholder: Steven T. Francesco
Shares beneficially owned: ______________ shares