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:
(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
.
(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
.
(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:
(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;
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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 .
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 .
(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 agreem
