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Exhibit 4.1
CONFIDENTIAL
TENDER AND VOTING AGREEMENT
THIS TENDER AND VOTING AGREEMENT (this " Agreement ") is
made and entered into as of
, 2007 by and between Polycom, Inc., a Delaware corporation ("
Parent "), and the undersigned stockholder (the "
Stockholder ") of SpectraLink Corporation, a Delaware
corporation (the " Company ").
RECITALS
A. Parent, a wholly-owned subsidiary of Parent (" Merger
Sub "), and the Company have entered into an Agreement and Plan
of Merger of even date herewith (as it may be amended from time to
time, the " Merger Agreement "), which provides for, among
other things, (i) an offer by Merger Sub (the " Offer
") to pay $11.75 in cash (the " Offer Price ") for each of
the issued and outstanding shares of common stock, par value $0.01
per share, of the Company (" Company Common Stock "), and
(ii) the merger of Merger Sub with and into the Company (the "
Merger ") pursuant to which all outstanding shares of
capital stock of the Company will be converted into the right to
receive the consideration set forth in the Merger Agreement.
B. The Stockholder is the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the " Exchange Act ")) of such number of shares of
the outstanding capital stock of the Company and options to
purchase such number of shares of capital stock of the Company as
is indicated on the signature page of this Agreement.
C. In consideration of the execution of the Merger Agreement by
Parent, the Stockholder (in the Stockholder’s capacity as
such) is hereby agreeing to tender and vote the Shares as described
herein.
NOW, THEREFORE, intending to be legally bound, the parties
hereto agree as follows:
1. Certain Definitions . All capitalized terms that are
used but not defined herein shall have the respective meanings
ascribed to them in the Merger Agreement. For all purposes of and
under this Agreement, the following terms shall have the following
respective meanings:
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(a) " Expiration Date " shall mean the earliest to occur
of (i) such date and time as the Merger Agreement shall have
been terminated pursuant to Article IX thereof, or
(ii) such date and time as the Merger shall become effective
in accordance with the terms and provisions of the Merger
Agreement, or (iii) such date and time as any amendment or
change to the Merger Agreement is effected without the
Stockholder’s consent that decreases the Offer Price.
(b) " Person " shall mean any individual, corporation,
limited liability company, general or limited partnership, trust,
unincorporated association or other entity of any kind or nature,
or any Governmental Entity.
(c) " Shares " shall mean (i) all securities of the
Company (including all shares of Company Common Stock and, to the
extent transferable by their terms, all options, warrants and other
rights to acquire shares of Company Common Stock) owned by the
Stockholder as of the date
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hereof, and (ii) all additional securities
of the Company (including all additional shares of Company Common
Stock and, to the extent transferable by their terms, all
additional options, warrants and other rights to acquire shares of
Company Common Stock) of which the Stockholder acquires ownership
during the period from the date of this Agreement through the
Expiration Date (including by way of stock dividend or
distribution, split-up, recapitalization, combination, exchange of
shares and the like).
(d) " Transfer " A Person shall be deemed to have
effected a " Transfer " of a Share if such person directly
or indirectly (i) sells, pledges, encumbers, assigns, grants
an option with respect to, transfers or disposes of such Share or
any interest in such Share, or (ii) enters into an agreement
or commitment providing for the sale of, pledge of, encumbrance of,
assignment of, grant of an option with respect to, transfer of or
disposition of such Share or any interest therein.
2. Transfer of Shares .
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(a) Transfer Restrictions . Subject to the following
sentence, the Stockholder shall not cause or permit any Transfer of
any of the Shares to be effected other than to Merger Sub or any
other subsidiary of Parent (or Parent on Merger Sub’s or the
other subsidiary’s behalf) pursuant to the Offer. The
preceding sentence shall not prohibit a Transfer of Shares by
Stockholder: (A) if Stockholder is an individual, to any
member of Stockholder’s immediate family or to a trust
established for the benefit of Stockholder and/or for the benefit
of one or more members of Stockholder’s immediate family or
upon the death of Stockholder or (B) if Stockholder is a
partnership or limited liability company, to one or more partners
or members of Stockholder or to an affiliated corporation under
common control with Stockholder, provided that any Transfer
permitted pursuant to (A) or (B) above shall be permitted
only if, as a precondition to such transfer, the transferee of such
Shares agrees in writing with Parent to be bound by the terms and
conditions of this Agreement.
(b) Transfer of Voting Rights . The Stockholder shall not
deposit (or permit the deposit of) any Shares in a voting trust or
grant any proxy or enter into any voting agreement or similar
agreement in contravention of the obligations of the Stockholder
under this Agreement with respect to any of the Shares.
3. Agreement to Vote Shares .
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(a) At every meeting of the stockholders of the Company called,
and at every adjournment or postponement thereof, and on every
action or approval by written consent of the stockholders of
Company, the Stockholder (in the Stockholder’s capacity as
such) shall, or shall cause the holder of record on any applicable
record date to, vote the Shares:
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(ii) against approval of any proposal made in
opposition to, or in competition with, consummation of the Offer,
the Merger or any other transactions contemplated by the Merger
Agreement; and
(iii) against any of the following actions (other than those
actions that relate to the Offer, the Merger and any other
transactions contemplated by the Merger Agreement): (A) any
merger, consolidation, business combination, sale of assets, or
reorganization of the Company or any subsidiary of the Company,
(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 Offer, the Merger or any other transactions
contemplated by the Merger Agreement.
(b) In the event that a meeting of the stockholders of the
Company is held, the Stockholder shall, or shall cause the holder
of record on any applicable record date to, appear at such meeting
or otherwise cause the Shares to be counted as present thereat for
purposes of establishing a quorum.
(c) The Stockholder shall not enter into any agreement or
understanding with any Person to vote or give instructions in any
manner inconsistent with the terms of this Section 3
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4. Agreement to Tender . The Stockholder shall tender
(and shall not withdraw), pursuant to and in accordance with the
terms of the Offer, the Shares. No later than two (2) business
days prior to the initial expiration date of the Offer, the
Stockholder shall (i) deliver to the depositary designated in
the Offer, (A) a letter of transmittal with respect to the
Shares complying with the terms of the Offer, (B) certificates
representing the Shares, and (C) all other documents or
instruments required to be delivered pursuant to the terms of the
Offer, and/or (ii) instruct its broker or such other person
who is the holder of record of any Shares beneficially owned by the
Stockholder to tender such Shares for exchange in the Offer
pursuant to the terms and conditions of the Offer. The Stockholder
shall not tender the Shares into any exchange or tender offer
commenced by a third party other than Parent, Merger Sub or any
other subsidiary of Parent.
5. Agreement Not to Exercise Appraisal Rights . The
Stockholder shall not exercise any rights (including, without
limitation, under Section 262 of the Delaware General
Corporation Law) to demand appraisal of any Shares that may arise
with respect to the Merger.
6. Directors and Officers . Notwithstanding any provision
of this Agreement to the contrary, nothing in this Agreement shall
(or require the Stockholder to attempt to) limit or restrict the
Stockholder or any designee of the Stockholder, to the extent that
any of them is a director or officer of the Company, from acting in
such director or officer capacity or voting in such person’s
sole discretion on any matter in such director or officer capacity
(it being understood that this Agreement shall apply to the
Stockholder solely in the Stockholder’s capacity as a
stockholder of the Company).
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7. Irrevocable Proxy . Concurrently with
the execution of this Agreement, the Stockholder shall 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 law, with respect to the Shares.
8. No Ownership Interest . Nothing contained in this
Agreement shall be deemed to vest in Parent any direct or indirect
ownership or incidence of ownership of or with respect to any
Shares. All rights, ownership and economic benefits of and relating
to the Shares shall remain vested in and belong to the Stockholder,
and Parent shall have no authority to manage, direct, superintend,
restrict, regulate, govern, or administer any of the policies or
operations of the Company or exercise any power or authority to
direct the Stockholder in the voting of any of the Shares, except
as otherwise provided herein.
9. Representations and Warranties of the Stockholder
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(a) Power; Binding Agreement . The Stockholder has full
power and authority to execute and deliver this Agreement and the
Proxy, to perform the Stockholder’s obligations hereunder and
to consummate the transactions contemplated hereby. The execution,
delivery and performance by the Stockholder of this Agreement, the
performance by the Stockholder of its obligations hereunder and the
consummation by the Stockholder of the transactions contemplated
hereby have been duly and validly authorized by the Stockholder and
no other actions or proceedings on the part of the Stockholder are
necessary to authorize the execution and delivery by it of this
Agreement, the performance by the Stockholder of its obligations
hereunder or the consummation by the Stockholder of the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Stockholder, and, assuming this
Agreement constitutes a valid and binding obligation of Parent,
constitutes a valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its
terms.
(b) No Conflicts . Except for filings that may be
required under the Exchange Act and filings under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
and any applicable foreign antitrust, competition or merger control
laws, no filing with, and no permit, authorization, consent, or
approval of, any state or federal public body or authority ("
Governmental Entity ") is necessary for the execution by the
Stockholder of this Agreement, the performance by the Stockholder
of its obligations hereunder and the consummation by the
Stockholder of the transactions contemplated hereby. None of the
execution and delivery by the Stockholder of this Agreement, the
performance by the Stockholder of its obligations hereunder or the
consummation by the Stockholder of the transactions contemplated
hereby will (i) conflict with or result in any breach of any
organizational documents applicable to the Stockholder,
(ii) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise
to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding,
agreement, or other instrument or obligation of any kind to which
the Stockholder is a party or by which the Stockholder or any of
the Stockholder’s properties or assets may be bound, or
(iii) violate any order, writ, injunction, decree, judgment,
order, statute, rule, or regulation applicable to the Stockholder
or any of the Stockholder’s properties or assets.
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(c) Ownership of Shares . The Stockholder
(i) is the beneficial owner of the shares of Company Common
Stock indicated on the signature page of this Agreement, all of
which are free and clear of any liens, adverse claims, charges,
security interests, pledges or options, proxies, voting trusts or
agreements, understandings or agreements, or any other rights or
encumbrances whatsoever (" Encumbrances ") (except any
Encumbrances arising under securities laws or arising hereunder),
(ii) is the owner of options that are exercisable for the
number of shares of Company Common Stock indicated on the signature
page of this Agreement, all of which options and shares of Company
Common Stock issuable upon the exercise of such options are free
and clear of any Encumbrances (except any Encumbrances arising
under securities laws or arising hereunder), and (iii) does
not own, beneficially or otherwise, any securities of the Company
other than the share
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