VOTING AGREEMENT
VOTING AGREEMENT, dated as of September 30, 1999 (this "Agreement"), by
and between OpenROUTE Networks, Inc., a Massachusetts corporation (the
"Company"), and Bryan Holley, the holder (the "Holder") of shares of the
common stock, par value $.01 per share (the "Company Shares"), of the Company.
WITNESSETH:
WHEREAS, the Company and Netrix Corporation, a Delaware corporation
("Netrix"), 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 the Company will be merged (the "Merger") with and into
Netrix, and each of the outstanding Company Shares will be converted into the
right to receive one share of the common stock, par value $.01 per share, of
Netrix (the "Acquiror Shares"), 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 the number of Company Shares set forth opposite the Holder's name on
Schedule I to this Agreement (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 premises 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, (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 of 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 and (c) the later of March 31, 2000 and 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:
Bryan Holley
c/o OpenROUTE Networks, Inc.
Nine Technology Drive
Westborough, Massachusetts 01581
(b) if to the Company:
OpenROUTE Networks, Inc.
Nine Technology Drive
Westborough, Massachusetts 01581
Attention: Chief Executive Officer
Facsimile: (508) 836-5396
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 Commonwealth of Massachusetts.
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.
OpenROUTE Networks, Inc.
By: /s/
-----------------------------
Name:
Title:
THE HOLDER
/s/ Bryan Holley
---------------------------------
Name: Bryan Holley
SCHEDULE I
HOLDER NUMBER OF SHARES
Bryan Holley
EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned shareholder of OpenROUTE Networks, a Massachusetts
corporation (the ACompany"), hereby irrevocably (to the full extent permitted
by law) appoints and constitutes Henry Barber, Vice President of Finance,
Chief Financial Officer, Treasurer and Clerk 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 Netrix Corporation, a Delaware 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: /s/ Bryan Holley
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Print name of Shareholder: Bryan Holley
Shares beneficially owned: 6,000 shares