Exhibit 99.1
TENDER AND VOTING
AGREEMENT
T HIS T ENDER A ND V OTING A GREEMENT (this “ Agreement ”) is made
and entered into as of March 15, 2007 by and between Cisco
Systems, Inc., a California corporation (“ Parent
”), and the undersigned stockholder (the “
Stockholder ”) of WebEx Communications, Inc., a
Delaware corporation (the “ Company ”). All
capitalized terms that are used but not defined herein shall have
the respective meanings given to them in the Merger
Agreement.
R ECITALS
Wonder Acquisition Corp., a wholly
owned subsidiary of Parent (“ Acquisition 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 Acquisition Sub (the
“ Offer ”) to pay Fifty-Seven Dollars ($57.00)
in cash (the “ Offer Price ”) for each of the
issued and outstanding shares of common stock, par value $0.001 per
share, of the Company (“ Company Common Stock
”), and (ii) the merger of Acquisition 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.
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 and other rights to purchase such number of
shares of capital stock of the Company as is indicated on the
signature page of this Agreement.
In consideration of the execution of
the Merger Agreement by Parent, the Stockholder (solely in the
Stockholder’s capacity as such) is hereby agreeing to tender
and vote the Shares as described herein.
A GREEMENT
Intending to be legally bound, the
parties hereto agree as follows:
1. Agreement to Tender. No later than the
third business day after the commencement of the Offer, the
Stockholder shall tender (and shall not withdraw prior to the
Expiration Date), pursuant to and in accordance with the terms of
the Offer, the Shares. Prior to the Expiration Date, the
Stockholder shall not tender the Shares into any exchange or tender
offer commenced by a third party other than Parent, Acquisition Sub
or any other subsidiary of Parent. “ Shares ”
means all shares of Company Common Stock owned by the Stockholder
as of the date hereof and all shares of Company Common Stock of
which the Stockholder acquires ownership during the period from the
date of this Agreement through the Expiration Date.
2. Transfer
Restrictions.
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(a) Until the Expiration Date, the
Stockholder shall not cause or permit any Transfer of any of the
Shares to be effected other than to Acquisition Sub (or Parent on
Acquisition Sub’s behalf) pursuant to the Offer and 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.
(b) “ Expiration Date
” means the earliest to occur of (i) such date and time
as the Company Board effects an Adverse Recommendation Change in
accordance with Section 5.2(d) of the Merger Agreement;
(ii) such date and time as the Merger Agreement shall have
been terminated pursuant to Section 7 thereof; or
(iii) such date and time as the Merger shall become effective
in accordance with the terms and provisions of the Merger
Agreement. 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.
3. Agreement to
Vote.
(a) Prior to the Expiration Date, 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,
appear at such meeting or otherwise cause the Shares to be counted
as present thereat for purposes of establishing a quorum, and vote
the Shares:
(i) in favor of the adoption of the
Merger Agreement (as it may be amended from time to time), and in
favor of each of the other actions contemplated by the Merger
Agreement;
(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, reorganization, dissolution,
liquidation or winding up of the Company or any subsidiary of the
Company, or (B) any other action that is intended, or would
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) 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.
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(c) 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.
4. Directors and Officers. Notwithstanding
any provision of this Agreement to the contrary, nothing in this
Agreement shall limit or restrict the Stockholder from acting his
capacity as a director or officer of the Company (it being
understood that this Agreement shall apply to the Stockholder
solely in the Stockholder’s capacity as a stockholder of the
Company).
5. Representations and Warranties of the
Stockholder. 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. 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.
The execution and delivery by the Stockholder of this Agreement and
the performance by the Stockholder of its obligations hereunder
will not conflict with, result in a violation or breach of, or
constitute a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration)
under any contract to which the Stockholder is a party or by which
the Shares may be bound. The Stockholder (i) is the beneficial
owner of the shares of Company Common Stock and options, restricted
stock units and stock appreciation rights to purchase 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 except any encumbrances arising under
securities laws or arising hereunder, and (ii) does not own,
beneficially or otherwise, any securities of the Company other than
the shares of Company Common Stock, options, restricted stock units
or stock appreciation rights to purchase shares of Company Common
Stock, and shares of Company Common Stock issuable upon the
exercise of such options, restricted stock units or stock
appreciation rights indicated on the signature page of this
Agreement. T
