BOARD REPRESENTATION AND GOVERNANCE AGREEMENT
Exhibit 10.1
EXECUTION COPY
AGREEMENT, dated as of June 22, 2007 (the “Agreement”), by and between Intervoice, Inc., a
Texas corporation (the “Company”), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ (“▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇”), a natural person
residing in the State of Florida.
WHEREAS, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ is the beneficial owner of, in the aggregate, 1,429,162 shares of
common stock, no par value per share, of Intervoice (the “Common Stock”);
WHEREAS, on May 30, 2007, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ delivered to Intervoice a letter (the “Nomination
Letter”) detailing his intention to nominate himself, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
“▇▇▇▇” Fargo, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the “Original ▇▇▇▇▇▇▇▇▇▇▇
Nominees”) for election to the Intervoice Board of Directors and to solicit proxies from the
shareholders of Intervoice in connection therewith (the “▇▇▇▇▇▇▇▇▇▇▇ Proxy Solicitation”);
WHEREAS, on June 1, 2007, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ filed a Preliminary Proxy Statement (the
“▇▇▇▇▇▇▇▇▇▇▇ Proxy”) on Schedule 14A with the Securities and Exchange Commission (the “SEC”);
WHEREAS, on June 1, 2007, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇▇▇▇▇ Life Foundation, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (together, with ▇▇▇▇▇▇ ▇▇▇▇▇ “▇▇▇▇”
Fargo and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the “▇▇▇▇▇▇▇▇▇▇▇ Group”) filed a Schedule 13D with the SEC (the “Schedule
13D”);
WHEREAS, Saj-nicole ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ have resigned as directors
of the Company, leaving three vacancies on the Board; and
WHEREAS, Intervoice, on the one hand, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, on the other hand, wish to enter
into certain agreements relating to the future composition of the Board of Directors of Intervoice
(the “Board”), the governance of Intervoice, and for the termination of the pending proxy contest
for the election of directors at Intervoice’s 2007 Annual Meeting of Shareholders (including any
adjournments, continuations, postponements and reschedulings thereof, the “2007 Annual Meeting”).
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and
agreements contained in this Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
I. REPRESENTATIONS
1.1 Authority; Binding Agreement.
(a) Intervoice represents and warrants that it has the corporate power and authority to
execute, deliver and carry out the terms and provisions of this Agreement and to consummate the
transactions contemplated hereby. Intervoice further represents and warrants that this Agreement
and the performance by Intervoice of its obligations hereunder (i) have been duly authorized by the
Board and all necessary committees thereof, including, without limitation, the nominating
committee, (ii) have been duly executed and delivered by Intervoice, (iii) are a valid and binding
obligation of Intervoice, enforceable against Intervoice in accordance with its terms, (iv) do not
require the approval of the shareholders of Intervoice, and (v) do not and will not violate any
law, any order of any court or other agency of government, the Articles of Incorporation of
Intervoice (the “Articles of Incorporation”), the Third Amended and Restated Bylaws of Intervoice
(as amended and restated, the “Bylaws”) or any provision of any indenture, agreement or other
instrument to which Intervoice or any of its properties or assets is bound, or conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a default under any
such indenture, agreement or other instrument, or result in the creation or imposition of, or give
rise to, any lien, charge, restriction, claim, encumbrance or adverse penalty of any nature
whatsoever pursuant to any such indenture, agreement or other instrument.
(b) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ represents and warrants on his own behalf that this Agreement and the
performance by him of his obligations hereunder (i) have been duly executed and delivered by him,
and are a valid and binding obligation of his, enforceable against him in accordance with its
terms, (ii) do not require approval by any other party in order for him to bound (except as has
already been obtained) and (iii) do not and will not violate any law, any order of any court or
other agency of government or any provision of any agreement or other instrument to which he or any
of his properties or assets is bound, or conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any such agreement or other instrument, or
result in the creation or imposition of, or give rise to, any lien, charge, restriction, claim,
encumbrance or adverse penalty of any nature whatsoever pursuant to any such agreement or
instrument.
1.2 Defined Terms.
For purposes of this Agreement:
(a) “Adverse Determination of Fiduciary Duty” shall mean, following the occurrence of
a Triggering Event after the date hereof, the good faith determination of the Board made at a
Special Meeting of the Board, after consultation with its outside counsel and the receipt of a
Legal Opinion, that, given the occurrence of such Triggering Event, taking the action specified, or
refraining from taking the action specified, with respect to any Board member or any nominee for
the Board, as would otherwise be required hereby,
would be a breach of the fiduciary duties that the Board owes to Intervoice’s shareholders
under applicable law, including the Texas Business Corporation Act. An Adverse
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Determination of
Fiduciary Duty shall not be deemed to occur except in accordance with the following procedures.
Intervoice shall give all Board members written notice that it is considering making an Adverse
Determination of Fiduciary Duty, describing the Triggering Event and stating the date, time and
place of the Special Board Meeting of the Board called and held specifically and exclusively for
the purpose of making an Adverse Determination of Fiduciary Duty. Such Special Meeting of the
Board shall take place not less than five business days after the Board notifies all Board members
that a Triggering Event has occurred and that it is considering an Adverse Determination of
Fiduciary Duty. An Adverse Determination of Fiduciary Duty shall not be effective until a
resolution is duly adopted at such Special Board Meeting by the affirmative vote of at least
two-thirds of the entire membership of the Board stating that it has made an Adverse Determination
of Fiduciary Duty and specifying in reasonable detail in, or an attachment to, the resolution the
basis therefor, with any director who is the subject of the Triggering Event abstaining.
(b) “Affiliate” has the meaning set forth in Rule 12b-2 promulgated by the SEC under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(c) “Associate” has the meaning set forth in Rule 12b-2 promulgated by the SEC under
the Exchange Act.
(d) The terms “beneficial owner” and “beneficially own” have the same meanings
as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act.
(e) “▇▇▇▇▇▇▇▇▇▇▇ Representation Period” shall mean the period commencing with the
appointment of the ▇▇▇▇▇▇▇▇▇▇▇ Nominees to the Board and ending at the conclusion of the 2008
Annual Meeting of Shareholders of Intervoice; provided that the ▇▇▇▇▇▇▇▇▇▇▇ Representation Period
shall terminate at the 2007 Annual Meeting if ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ is not elected as a director of
Intervoice at such meeting.
(f) “Charter Documents” shall mean, collectively, (1) the Articles of Incorporation,
(2) the Bylaws, (3) the Shareholder Rights Plan, dated as of May 1, 2001, by and between Intervoice
and Computershare Investor Services, LLC, as rights agent, and (4) any certificates of designation
for any new class or series of common or preferred stock or any exiting certificates of
designation.
(g) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(h) “Legal Opinion” shall mean a written legal opinion of independent counsel to the
Board, who shall not be counsel to Intervoice or the ▇▇▇▇▇▇▇▇▇▇▇ Group.
(i) “Officer” has the meaning set forth in Rule 16a-1(f) promulgated by the SEC under
the Exchange Act;
(j) “Person” shall mean any individual, partnership, corporation, group, syndicate,
trust, government or agency thereof, or any other association or entity.
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(k) “Triggering Event” shall mean either of the following events which occur following
the date hereof with respect to a particular member of the Board or a nominee for election to the
Board and which have been shown to occur with clear and convincing evidence: (1) that Person’s
conviction (treating a nolo contendere plea as a conviction) of a felony involving (x) moral
turpitude or a (y) violation of federal or state securities laws, but specifically excluding any
conviction based entirely on vicarious liability; (2) that Person’s commission of any material act
of dishonesty (such as embezzlement) resulting or intended to result in material personal gain or
enrichment of such Person at the expense of Intervoice or any of its subsidiaries and which act, if
made the subject of criminal charges, would be reasonably likely to be charged as a felony; or (3)
that Person being adjudged legally incompetent by a court of competent jurisdiction.
II. COVENANTS
2.1 Directors.
(a) Appointment of ▇▇▇▇▇▇▇▇▇▇▇ Nominees. Intervoice agrees that, concurrently with
the execution of this Agreement, Intervoice and the Board, at a duly convened meeting of directors,
shall take all actions necessary to appoint with immediate effect, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the “▇▇▇▇▇▇▇▇▇▇▇ Nominees”) as directors to fill the three vacancies
on the Board, each to a term expiring at the 2007 Annual Meeting. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ represents and
warrants that, to the best of his knowledge, the information contained in the ▇▇▇▇▇▇▇▇▇▇▇ Proxy
with respect to the ▇▇▇▇▇▇▇▇▇▇▇ Nominees is true, correct and complete, in all material respects.
(b) 2007 Annual Meeting. Intervoice agrees that it will hold the 2007 Annual Meeting
at such time as is determined by the Board to be prudent; provided that in no event shall the
meeting be held later than July 29, 2007. Intervoice agrees that it and the Board will cause the
slate of nominees standing for election, and recommended by the Board, at the 2007 Annual Meeting
to include (unless the Board has made an Adverse Determination of Fiduciary Duty), ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, each of whom is an incumbent
director on the date hereof (the “Incumbent Slate”) and the ▇▇▇▇▇▇▇▇▇▇▇ Nominees (the Incumbent
Slate and the ▇▇▇▇▇▇▇▇▇▇▇ Nominees shall collectively be referred to herein as the “Revised
Slate”). Intervoice shall give no less than the same degree of support and use at least the same
efforts with respect to the ▇▇▇▇▇▇▇▇▇▇▇ Nominees as it gives and uses with respect to the Incumbent
Slate. Without limiting the foregoing, Intervoice agrees to:
(1) nominate each of the ▇▇▇▇▇▇▇▇▇▇▇ Nominees for election at the 2007 Annual Meeting as a
director of Intervoice with a term expiring at Intervoice’s 2008
Annual Meeting of Shareholders (including any adjournments, continuations, postponements and
reschedulings thereof, the “2008 Annual Meeting”), and, in connection
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with election of directors to
occur at the 2007 Annual Meeting, other than the members of the Incumbent Slate, not nominate any
other persons for election to the Board;
(2) recommend the ▇▇▇▇▇▇▇▇▇▇▇ Nominees for election as directors of Intervoice at the 2007
Annual Meeting, and, other than the members of the Incumbent Slate, not recommend any other persons
for election to the Board;
(3) use its reasonable best efforts to solicit proxies in favor of the election of each of the
▇▇▇▇▇▇▇▇▇▇▇ Nominees and members of the Incumbent Slate; and
(4) only vote valid proxies at the 2007 Annual Meeting and cause all valid proxies received by
Intervoice to be voted in the manner specified by such proxies; provided that such proxies shall
contain a statement notifying the Intervoice shareholders that if a proxy is returned without
express directions from the shareholder to the contrary, such proxy will be voted “FOR” all named
nominees in such manner as Intervoice’s management shall determine and, accordingly, if express
directions are not provided by the shareholder, all such proxies shall be voted in such manner as
will assure the election of each of the ▇▇▇▇▇▇▇▇▇▇▇ Nominees and each member of the Incumbent
Slate.
(c) Other Meetings or Actions of Shareholders. Intervoice agrees, during the
▇▇▇▇▇▇▇▇▇▇▇ Representation Period, to cause each member of the Incumbent Slate and each member of
Intervoice’s management to refrain from calling any special meetings of shareholders for the
purpose of removing any of the ▇▇▇▇▇▇▇▇▇▇▇ Nominees or taking any action which would have the
effect of curtailing the term of any of the ▇▇▇▇▇▇▇▇▇▇▇ Nominees (unless the Board has made an
Adverse Determination of Fiduciary Duty). Intervoice further agrees, during the ▇▇▇▇▇▇▇▇▇▇▇
Representation Period, with respect to any election of directors or any meeting of shareholders
called by Intervoice or any shareholder thereof occurring prior to the 2008 Annual Meeting of
Shareholders of Intervoice, that Intervoice will, and will cause each member of the Incumbent Slate
to, recommend against (unless the Board has made an Adverse Determination of Fiduciary Duty) any
proposal, consent or any other action seeking the removal of any ▇▇▇▇▇▇▇▇▇▇▇ Nominee then serving
as a director, or which would have the effect of curtailing the term of any of the ▇▇▇▇▇▇▇▇▇▇▇
Nominees, and shall use its or his reasonable best efforts to solicit proxies against any such
action. Each Brandenburg Nominee agrees that, during the Brandenburg Representation Period, no
Brandenburg Nominee or any member of Intervoice’s management may call any special meetings of
shareholders for the purpose of removing any member of the Incumbent Slate or taking any action
which would have the effect of curtailing the term of any member of the Incumbent Slate (unless the
Board has made an Adverse Determination of Fiduciary Duty). Each ▇▇▇▇▇▇▇▇▇▇▇ Nominee further
agrees that, during the ▇▇▇▇▇▇▇▇▇▇▇ Representation Period, with respect to any election of
directors or any meeting of shareholders called by Intervoice or any shareholder thereof occurring
prior to the 2008 Annual Meeting of Shareholders of Intervoice, each ▇▇▇▇▇▇▇▇▇▇▇ Nominee shall
recommend against (unless the Board has
made an Adverse Determination of Fiduciary Duty) any proposal, consent or any other action
seeking the removal of any member of the Incumbent Slate then serving as a director, or which would
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have the effect of curtailing the term of any member of the Incumbent Slate, and shall use his
reasonable best efforts to solicit proxies against any such action.
(d) Charter Documents. Intervoice agrees to cause each member of the Incumbent Slate
and each member of Intervoice management to refrain from, without the consent of each Brandenburg
Nominee, during the Brandenburg Representation Period, making, proposing, facilitating or
encouraging, any amendments to, or taking any action (whether by resolution or otherwise) pursuant
to, any of the Charter Documents that would be inconsistent with the intent of this Agreement, or
would have the effect of frustrating the objectives of this Agreement or any of the obligations or
covenants contained herein, including, without limitation, any action that would increase the size
of the Board. Without limiting the generality of the foregoing, concurrently with the execution of
this Agreement, Intervoice and the Board, at a duly convened meeting of directors, shall take all
actions necessary to repeal each provision of the Bylaws and any and all amendments to the Bylaws
(whether effected by supplement to, deletion from or revision of the by-laws) since July 21, 2004
(the last date of reported changes) and before the seating of the ▇▇▇▇▇▇▇▇▇▇▇ Nominees on the
Board.
(e) Organizational Board Meeting. Immediately following the 2007 Annual Meeting, the
Board shall hold a duly convened organizational meeting (the “Organizational Meeting”) to take
action as further required or contemplated by this Agreement.
(f) Board Leadership. Concurrently with their respective appointments or elections as
members of the Board, and for the duration of the ▇▇▇▇▇▇▇▇▇▇▇ Representation Period, the Board
shall take all necessary action to appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as Chairman of the Board and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ as Vice Chairman of the Board. During the ▇▇▇▇▇▇▇▇▇▇▇ Representation Period, Intervoice
shall not take, and shall cause each member of the Incumbent Slate to refrain from taking, any
action, including, without limitation, pursuant to Sections 5.05 and 5.06 of the Bylaws, without
the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, that would have the effect of diminishing the
authority or assigning to any other director or person any of the powers or duties of the Chairman
or Vice Chairman. During the ▇▇▇▇▇▇▇▇▇▇▇ Representation Period, the Vice Chairman of the Board
shall, in the absence or disability of the Chairman, perform the duties and have the authority and
exercise the powers of the Chairman. The Vice Chairman shall perform such other duties and have
such other authority and powers as the Chairman may from time to time delegate.
(g) Committee Representation.
(1) Concurrently with their respective appointments or elections as members of the
Board, the Board shall take all necessary action to reconstitute its committees in
accordance with Exhibit A hereto. While it is understood that
some changes in the membership of such committees may occur from time to time, for the
duration of the Brandenburg Representation Period, unless ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ shall otherwise
consent in writing, the Board shall take all necessary action to
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appoint (i) ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ as a member and chair of the Executive Committee of the Board; (ii) ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ as a member and chair of the Finance and Strategic Planning Committee of the Board
and as a member of the Compensation Committee; and (iii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as a member and
chair of the Nominating Committee of the Board, as a member of the Audit Committee of the
Board and as a member of the Compensation Committee of the Board; provided,
however, that none of the ▇▇▇▇▇▇▇▇▇▇▇ Nominees shall be appointed to any such
committee of the Board if the Board receives a Legal Opinion to the effect that the
appointment of such director to any such committee of the Board would violate applicable
law or applicable stock exchange rules or regulations.
(2) Effective December 1, 2007, and continuing until the expiration of the ▇▇▇▇▇▇▇▇▇▇▇
Representation Period, the Board shall take all necessary action to appoint ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ as a member of the Nominating Committee of the Board.
(3) Intervoice hereby confirms that it is not Intervoice’s present intention to create
any other committee of the Board, but in the event that any other committee of the Board is
created at any time during the ▇▇▇▇▇▇▇▇▇▇▇ Representation Period, the Board shall afford at
least one ▇▇▇▇▇▇▇▇▇▇▇ Nominee the opportunity to serve on each such committee.
(4) Intervoice hereby agrees that all independent members of the Board shall be
entitled to attend, as an observer, all meetings of any committee of the Board and shall be
entitled to receive copies of all materials distributed at, or in advance of, any such
committee meetings. Intervoice agrees that it will maintain this practice throughout the
Brandenburg Representation Period.
(5) During the Brandenburg Representation Period, unless required by applicable law or
applicable stock exchange rules or with the prior approval of the ▇▇▇▇▇▇▇▇▇▇▇ Nominees
(which shall not be unreasonably withheld), (i) no committees of the Board may be
disbanded; and (ii) no amendments may be made to any of the charters of any of the Board
committees.
(h) Independence of Nominees. Intervoice acknowledges and confirms, based upon the
information set forth in the ▇▇▇▇▇▇▇▇▇▇▇ Proxy with respect to each of the ▇▇▇▇▇▇▇▇▇▇▇ Nominees and
in the completed director questionnaires provided by the ▇▇▇▇▇▇▇▇▇▇▇ Nominees to Intervoice that
(x) each of the Brandenburg Nominees, other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, shall be deemed “independent
directors” under Nasdaq Stock Market Rule 4200(a)15 and the independence standards applicable to
Intervoice under paragraph (a)(1) of Item 407 of Regulation S-K under the Exchange Act; and (y)
effective December 1, 2007, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, shall be deemed an “independent director” under
Nasdaq Stock Market Rule 4200(a)15 and the independence standards
applicable to Intervoice under paragraph (a)(1) of Item 407 of Regulation S-K under the
Exchange Act.
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(i) Role of ▇▇▇▇▇▇▇▇▇▇▇ Nominees and Incumbent Slate. Each of the ▇▇▇▇▇▇▇▇▇▇▇
Nominees and members of the Incumbent Slate, upon appointment or election to the Board, and
continuing through the ▇▇▇▇▇▇▇▇▇▇▇ Representation Period, will serve as an integral member of the
Board and be governed by the same protections and obligations regarding confidentiality, conflicts
of interests, fiduciary duties, trading and disclosure policies and other governance guidelines,
and shall have the same rights, privileges, powers and duties as all other non-employee directors,
and receive the same compensation and benefits as all other non-employee directors, including, but
not limited to, indemnification rights, exculpation protections associated with service on the
Board, and directors’ and officers’ liability insurance to the extent set forth in existing or
future policies for directors generally. Upon their election, each of the ▇▇▇▇▇▇▇▇▇▇▇ Nominees and
members of the Incumbent Slate shall be included by Intervoice as a named insured under all
Intervoice insurance policies where insurance is provided to directors, including, without
limitation, directors’ and officers’ liability insurance policies. The ▇▇▇▇▇▇▇▇▇▇▇ Nominees and
members of the Incumbent Slate will be reimbursed for expenses incurred in connection with their
Board service to the same extent, and on the same basis, as all other directors. For the avoidance
of doubt, the ▇▇▇▇▇▇▇▇▇▇▇ Nominees and members of the Incumbent Slate shall be entitled to separate
counsel, at Intervoice’s expense, if the ▇▇▇▇▇▇▇▇▇▇▇ Nominees or members of the Incumbent Slate (as
applicable), in their sole discretion, determine that such counsel is necessary or appropriate at
any time during the ▇▇▇▇▇▇▇▇▇▇▇ Representation Period in performing their respective obligations
under, or in connection with matters relating to, this Agreement.
(j) Replacement ▇▇▇▇▇▇▇▇▇▇▇ Nominees. If at any time during the Brandenburg
Representation Period any of the Brandenburg Nominees is or becomes unwilling or unable to serve as
a nominee or, following such person’s appointment or election, as a director of Intervoice, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ (or in the event of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇’▇ death or incapacity, the remaining ▇▇▇▇▇▇▇▇▇▇▇
Nominees) shall be entitled to appoint a replacement nominee or director, as the case may be;
provided that unless such proposed replacement is one of the seven individuals nominated by ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ in the Nomination Letter (each of whom Intervoice acknowledges will be qualified and
acceptable unless the Board shall have made an Adverse Determination of Fiduciary Duty), such
replacement nominee or director, as the case may be, shall be reasonably acceptable to the
Nominating Committee. Any such replacement nominee or director, as the case may be, shall be deemed
to be a ▇▇▇▇▇▇▇▇▇▇▇ Nominee for the purposes of this Agreement.
(k) Replacement Nominees with Respect to Incumbent Slate. If at any time during the
▇▇▇▇▇▇▇▇▇▇▇ Representation Period any member of the Incumbent Slate is or becomes unwilling or
unable to serve as a nominee or, following such person’s appointment or election, as a director of
Intervoice, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (or in the event of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇’▇ death or incapacity, the
remaining members of the Incumbent Slate)
shall be entitled to appoint a replacement nominee or director, as
the case may be; provided
that such replacement nominee or director, as the case may be, shall be reasonably acceptable to
the Nominating Committee. Any such replacement nominee or director, as
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the case may be, shall be
deemed to be a member of the Incumbent Slate for the purposes of this Agreement.
(l) Scheduling of Board Meetings. During the ▇▇▇▇▇▇▇▇▇▇▇ Representation Period, (i)
Intervoice will cause each member of the Incumbent Slate and each member of Intervoice management
to refrain from scheduling Board and committee meetings without first conferring in advance with,
and providing reasonable notice to, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; and (ii) reasonable efforts shall be made in
scheduling and noticing Board and committee meetings to accommodate the schedule of each Board and
committee member.
(m) Proxy Solicitation Materials. Intervoice agrees that as promptly as practicable
following the date hereof, Intervoice shall take all steps reasonably necessary to amend, and
re-file with the SEC, the Proxy Statement on Schedule 14A filed by Intervoice with the SEC on June
1, 2007 (the “Intervoice Proxy”) to include the ▇▇▇▇▇▇▇▇▇▇▇ Nominees and members of the Incumbent
Slate as “Nominees” (as defined in the Intervoice Proxy) thereunder. Intervoice and the Board agree
that the Intervoice Proxy (as amended pursuant to the terms of this Agreement) and all other
solicitation materials to be delivered to shareholders in connection with the 2007 Annual Meeting
shall be prepared in accordance with, and in furtherance of, this Agreement. Intervoice will
provide ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ with copies of any proxy materials or other solicitation materials
(including any supplements and amendments thereto) to be delivered to shareholders in connection
with the 2007 Annual Meeting at least three business days, in the case of proxy statements, and at
least two business days, in the case of other solicitation materials, in advance of filing such
materials with the SEC or disseminating the same in order to permit ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ a reasonable
opportunity to review and comment on such materials and Intervoice shall give due consideration to
all reasonable additions, deletions or changes suggested thereto by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and his
counsel. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ will provide, as promptly as reasonably practicable, all information
relating to the Brandenburg Nominees (and other information, if any) to the extent required under
applicable law to be included in Intervoice Proxy (as amended in accordance with the terms of this
Agreement) and any other solicitation materials to be delivered to shareholders in connection with
the 2007 Annual Meeting. The Intervoice Proxy, as amended pursuant to the terms of this Agreement,
shall, to the extent applicable and responsive to the requirements of Schedule 14A under the
Exchange Act, contain the same type of information concerning the ▇▇▇▇▇▇▇▇▇▇▇ Nominees as is
provided for the Incumbent Slate; provided that, for the avoidance of doubt, Intervoice makes no
representation or warranty with respect to statements made in the Intervoice Proxy based on
information supplied in writing by the Brandenburg Nominees expressly for inclusion in the
Intervoice Proxy. Intervoice agrees that it will forward to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and his
representatives copies of all comment letters received from the SEC with respect to the Intervoice
Proxy, as promptly as practicable following receipt.
(n) Filing of this Agreement. Intervoice shall file a copy of this Agreement with the
SEC as an Exhibit to a Current Report on Form 8-K. In connection with the
preparation of such filing on Form 8-K, Intervoice shall permit ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ a reasonable
opportunity to review and comment on such filing and Intervoice shall give due consideration to all
reasonable additions, deletions or changes suggested thereto by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and his counsel.
9
(o) Other Matters for Shareholder Approval. Intervoice agrees that no matters will be
presented by the Board for a vote of shareholders of Intervoice at the 2007 Annual Meeting other
than the election of directors (as specified herein) and the approval of Intervoice’s 2007 Stock
Incentive Plan (the “Stock Incentive Plan Proposal”). As a condition to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ agreeing
to support and vote his shares of Common Stock in favor of the Stock Incentive Plan Proposal,
Intervoice agrees that the disclosure regarding the Stock Incentive Plan Proposal, including,
without limitation, management’s plans for future grants thereunder, contained in the Intervoice
Proxy shall be reasonably acceptable to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.
(p) Publicity. Upon execution of this Agreement, Intervoice and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
shall issue a joint press release substantially in the form attached hereto as Exhibit B ( the
“Joint Press Release”), with such changes thereto as may be mutually agreed to by Intervoice and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇. None of the parties hereto shall make any public statements that are
inconsistent with, or are otherwise contrary to, the statements in the Joint Press Release. Nothing
contained herein shall preclude or prevent either Intervoice or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ from making
public statements that are neither contrary to nor inconsistent with the statements in the Joint
Press Release, provided that all such public statements shall be in compliance with applicable
securities laws and consistent with any such party’s fiduciary duties. Intervoice will consult
with ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ concerning the means by which Intervoice’s employees, customers, suppliers,
analysts and others having dealings with Intervoice will be informed of this Agreement and the
actions contemplated hereby, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ shall have the right to be present for any such
communications that are made in person or by telephone. During the Brandenburg Representation
Period, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, shall be consulted and provided with the opportunity to comment on all
press releases, investor presentations and other investor communications which relate to this
Agreement or the solicitation of proxies in connection with the 2007 Annual Meeting.
(q) Reimbursement of Expenses. As promptly as practicable after the date hereof,
Intervoice shall reimburse ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ for all out-of-pocket expenses incurred by him (the
“▇▇▇▇▇▇▇▇▇▇▇ Expense Reimbursement”) in connection with his initiation of a solicitation of proxies
from the shareholders of Intervoice in connection with the 2007 Annual Meeting, the preparation of
his related proxy statement and Schedule 13D, the preparation, negotiation and execution of this
Agreement and the consummation of the transactions contemplated hereby, including, without
limitation, the review of the revised Intervoice Proxy, the Current Report on Form 8-K of
Intervoice related to this Agreement, the preparation and filing of a Schedule 13D amendment
related to this Agreement, and other matters related or incidental thereto or hereto, provided that
the ▇▇▇▇▇▇▇▇▇▇▇ Expense Reimbursement shall not exceed $500,000. Such expenses shall include,
without limitation, expenditures for attorneys, accountants, public
relations or financial advisors, proxy solicitors, advertising, printing, transportation,
postage and related expenses. Notwithstanding the foregoing, in accordance with Section 2.1(i)
hereof, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ shall be entitled to reimbursement for his out-of-pocket legal and other
10
expenses incurred following the execution of this Agreement that are related to his service as
either a member of the Board or Chairman of the Board.
2.2 ▇▇▇▇▇▇▇▇▇▇▇ Voting Provisions.
(a) Withdrawal of Nomination Letter; Related Matters. Concurrently with appointment
of the ▇▇▇▇▇▇▇▇▇▇▇ Nominees as directors of Intervoice and their nomination for election to the
Board at the 2007 Annual Meeting in accordance with Sections 2.1(a) and (b) of this Agreement,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ shall (i) withdraw the Nomination Letter and terminate the pending proxy contest
with respect to the election of directors at the 2007 Annual Meeting; (ii) notify the SEC of the
termination of his proxy solicitation; (iii) withdraw his Revised Demand to Inspect Shareholder
Records dated May 31, 2007 and his Request Pursuant to Rule 14a-7 Under the Exchange Act dated June
4, 2007; and (iv) cause the ▇▇▇▇▇▇▇▇▇▇▇ Group to amend its Schedule 13D to indicate the termination
of their Schedule 13D “group” and to otherwise be consistent with the terms of this Agreement.
(b) Actions of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇. Commencing with the appointment of the ▇▇▇▇▇▇▇▇▇▇▇
Nominees as directors of Intervoice and their nomination for election at the 2007 Annual Meeting,
in accordance with Sections 2.1(a) and (b) of this Agreement, and thereafter for so long as at
least three ▇▇▇▇▇▇▇▇▇▇▇ Nominees are serving as members of the Board, and provided that this
Agreement has not been breached in any material respect by Intervoice and provided further that the
Board has not made an Adverse Determination of Fiduciary Duty, neither ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ nor any of
his Affiliates, will (except as participants in any “solicitation” (as such term is used in the
proxy rules of the SEC) conducted by or on behalf of Intervoice) (i) with respect to Intervoice,
make, engage or in any way participate in, directly or indirectly, any third party “solicitation”
of proxies or consents (whether or not relating to the election or removal of directors); (ii) seek
to advise, encourage or influence any person (other than his Affiliates) with respect to the voting
of any Common Stock except in accordance with the recommendations of the Board; (iii) except as
specifically and expressly set forth in this Agreement, seek, alone or in concert with others,
election or appointment to, or representation on, or nominate or propose the nomination of any
candidate to, the Board; or (iv) initiate, propose or otherwise “solicit” (as such term is used in
the proxy rules of the SEC) shareholders of Intervoice for the approval of shareholder proposals
whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or
encourage or attempt to cause or encourage any other person to initiate any such shareholder
proposal, regardless of its purpose, or otherwise communicate with Intervoice’s shareholders or
others pursuant to Rule 14a-1(l)(2)(iv)(A) under the Exchange Act.
(c) ▇▇▇▇▇▇▇▇▇▇▇ Voting Covenant. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ will cause all shares of Common
Stock beneficially owned by him and his Affiliates, including, without
limitation, the ▇▇▇▇▇▇▇▇▇▇▇ Life Foundation, as to which he is entitled to vote at the 2007
Annual Meeting to be voted (i) in favor of the election of each member of the Revised Slate; and
(ii) the approval of the Intervoice 2007 Stock Incentive Plan. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and his
Affiliates (including without limitation the ▇▇▇▇▇▇▇▇▇▇▇ Life Foundation) shall not, directly or
indirectly, sell, transfer or otherwise dispose of, or pledge, hypothecate or
11
otherwise encumber,
or transfer or convey in any manner any voting rights with respect to, any shares of Common Stock
beneficially owned by any of them at the time of the execution of this Agreement until after the
date which is the record date fixed by the Board for determining Intervoice’s shareholders entitled
to vote at the 2007 Annual Meeting. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ represents and warrants that the performance
by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ of his obligations under this Section 2.2(c) has been duly authorized by all
necessary consents (including community property consents) and corporate, partnership, trust or
other action with respect to his spouse and his Affiliates (including without limitation the
▇▇▇▇▇▇▇▇▇▇▇ Life Foundation) and will require no additional consent or action that has not been
taken as of the date of this Agreement.
2.3 ▇▇▇▇▇▇▇▇▇▇▇ Retirement Agreement. Reference is hereby made to that certain letter
agreement dated November 18, 2004 by and between Intervoice and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ which sets forth
the terms pursuant to which ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ retired from Intervoice (the “▇▇▇▇▇▇▇▇▇▇▇ Retirement
Agreement”). With the exception of Section 8 of the ▇▇▇▇▇▇▇▇▇▇▇ Retirement Agreement, which
provides for the reaffirmation of Intervoice’s obligation to continue certain indemnification and
insurance arrangements and which shall continue to be operative following the execution of this
Agreement, Intervoice and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ agree that neither party shall have any further duties
or obligations to the other pursuant to such agreement.
2.4 Actions with Respect to ▇▇▇▇▇▇▇▇▇▇▇ Initiatives. Intervoice acknowledges that a
material inducement for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ to enter into this Agreement is the prospect that the
Intervoice Board will take the following actions: (1) conduct a review of Intervoice’s selling,
general and administrative expenses to identify potential actions that would eliminate corporate
overhead without sacrificing Intervoice’s ability to generate revenue or service customers; (2)
explore opportunities to increase product sales revenue, including, but not limited to, expanding
the sales force; (3) evaluate the strategic direction of Intervoice’s current and future products
and services and the alignment of its research and development efforts with such strategic
direction; (4) explore the feasibility of monetizing Intervoice’s patent portfolio
through the implementation of a royalty generating licensing program; and (5) conduct
a review of performance-based compensation models as part of an effort to more closely align
executive and board compensation with the enhancement of shareholder value.
III. RELEASES
3.4 Release of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and Members of the ▇▇▇▇▇▇▇▇▇▇▇ Group. Subject to the
further provisions of this Section 3.4, and except as otherwise provided in Section 2.3 hereof,
Intervoice, on behalf of itself and its officers, directors, agents, employees, shareholders,
attorneys, insurers, subsidiaries, divisions, affiliates, and
representatives, hereby irrevocably and unconditionally releases, acquits, and fully and
forever discharges ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and all members of the ▇▇▇▇▇▇▇▇▇▇▇ Group, including their
employees, agents, attorneys and other representatives, to the maximum extent permitted by
applicable law (including without limitation the Texas Business Corporation Act), from and with
respect to any and all disputes, suits, complaints, claims,
12
counterclaims, actions, causes of
action, damages, debts, liabilities, losses, or expenses, whether at law or in equity, statutory or
otherwise, whether known or unknown, fixed or contingent, asserted or unasserted, of every kind and
nature whatsoever, that Intervoice ever had, now has, or hereafter can, will or may have against
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ or any member of the ▇▇▇▇▇▇▇▇▇▇▇ Group for, upon, or by reason of any matter,
cause of action, or thing, whatsoever from the beginning of the world to the date hereof, but
expressly excluding any claim relating to the performance of duties and obligations under this
Agreement or for breach of or to enforce this Agreement (collectively, the “Intervoice Excluded
Claims”). The claims released pursuant to this Section 3.4 are referred to herein as “Intervoice
Claims.” Intervoice hereby irrevocably covenants to refrain from asserting any claim or demand, or
commencing, instituting or causing to be commenced, any proceeding of any kind against ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ or any member of the ▇▇▇▇▇▇▇▇▇▇▇ Group based upon any Intervoice Claim.
3.5 Release of Intervoice. Subject to the further provisions of this Section 3.5, and
except as otherwise provided in Section 2.3 hereof, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, on behalf of himself, the
members of the ▇▇▇▇▇▇▇▇▇▇▇ Group and their respective attorneys, insurers, affiliates, associates
and representatives, hereby irrevocably and unconditionally releases, acquits, and fully and
forever discharges Intervoice and Intervoice’s directors, officers, employees, agents, attorneys
and other representatives, and affiliates, to the maximum extent permitted by applicable law
(including without limitation the Texas Business Corporation Act), from and with respect to any and
all disputes, suits, complaints, claims, counterclaims, actions, causes of action, damages, debts,
liabilities, losses, or expenses, whether at law or in equity, statutory or otherwise, whether
known or unknown, fixed or contingent, asserted or unasserted, of every kind and nature whatsoever,
that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ or any member of the ▇▇▇▇▇▇▇▇▇▇▇ Group or any of their attorneys, insurers,
affiliates, associates or representatives ever had, now has, or hereafter can, will or may have
against Intervoice or any of Intervoice’s employees, agents, attorneys or other representatives, or
affiliates for, upon, or by reason of any matter, cause of action, or thing, whatsoever from the
beginning of the world to the date hereof, but expressly excluding (i) any claim relating to the
performance of duties and obligations under this Agreement or for breach of or to enforce this
Agreement; (ii) any claims arising out of any member of the ▇▇▇▇▇▇▇▇▇▇▇ Group being a customer or
vendor of Intervoice; and (iii) any rights incident to their ownership of Common Stock
(collectively, the “▇▇▇▇▇▇▇▇▇▇▇ Excluded Claims”). The claims released pursuant to this Section
3.5 are referred to herein as the “▇▇▇▇▇▇▇▇▇▇▇ Claims”. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, on his own behalf and
on behalf of the ▇▇▇▇▇▇▇▇▇▇▇ Group, hereby irrevocably covenants to refrain from asserting any claim
or demand, or commencing, instituting or causing to be commenced, any proceeding of any kind
against Intervoice or any of Intervoice’s employees, agents, attorneys or other representatives or
affiliates based upon any ▇▇▇▇▇▇▇▇▇▇▇ Claim.
13
3.6 Indemnification.
(a) To the maximum extent permitted by applicable law (including without limitation the Texas
Business Corporation Act), Intervoice agrees to indemnify, defend and hold harmless ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ from and against any and all causes of actions, claims and demands of whatsoever kind
on account of all known, and unknown injuries, losses and damages, and specifically from any
claims, or joinders, third party claims, for sole liability, contribution, indemnity or otherwise
as a result of, arising from, or in any way related to or connected with the Intervoice Claims.
(b) To the maximum extent permitted by applicable law (including without limitation the Texas
Business Corporation Act), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ agrees to indemnify, defend and hold harmless
Intervoice from and against any and all causes of actions, claims and demands of whatsoever kind on
account of all known, and unknown injuries, losses and damages, and specifically from any claims,
or joinders, third party claims, for sole liability, contribution, indemnity or otherwise as a
result of, arising from, or in any way related to or connected with the ▇▇▇▇▇▇▇▇▇▇▇ Claims.
3.7 Transfer and Assignment. Each of the parties to this Agreement represents and
warrants that it has not heretofore transferred or assigned, or purported to transfer or assign, to
any person, firm, or corporation any claims, demands, obligations, losses, causes of action,
damages, penalties, costs, expenses, attorneys’ fees, liabilities or indemnities herein released.
Each of the parties hereto agrees to indemnify and hold harmless each other party hereto against
any claims, demands, obligations, losses, causes of action, damages, penalties, costs, expenses,
attorneys’ fees, liabilities, or indemnities arising out of or in connection with any such
transfer, assignment or purported or claimed transfer or assignment. Each of the parties
represents and warrants that neither it nor any assignee has filed any lawsuit against the other.
3.8 No Limitations on Releases. The parties to this Agreement waive any and all
rights (to the extent permitted by state law, federal law, principles of common law or any other
law) which may have the effect of limiting the releases as set forth in this Section 3. Without
limiting the generality of the foregoing, the Parties acknowledge that there is a risk that the
damages which they believe they have suffered or will suffer may turn out to be other than or
greater than those now known, suspected, or believed to be true. In addition, the cost and damages
they have incurred or have suffered may be greater than or other than those now known. Facts on
which they have been relying in entering into this Agreement may later turn out to be other than or
different from those now known, suspected or believed to be true. The parties acknowledge that in
entering into this Agreement, they have expressed that they agree to accept the risk of any such
possible unknown damages, claims, facts, demands, actions, and causes of action.
3.9 No Admission. This Agreement constitutes a compromise and settlement entered into
by each party hereto without any admission of liability to the others, but solely for the purpose
of avoiding litigation, uncertainty, controversy, and legal expense.
Nothing contained herein shall constitute or be taken or construed to be an admission by any
party
14
or as evidencing or indicating the truth or correctness of any allegations, claims or
defenses asserted by any party.
3.10 Representation by Counsel. Each party hereto acknowledges to the other that it
has been represented by independent legal counsel of its own choice throughout all of the
negotiations that preceded the execution of this Agreement. Each party further acknowledges that
it and its counsel have had adequate opportunity to make whatever investigation or inquiry they may
deem necessary or desirable in connection with the subject matter of this Agreement prior to the
execution hereof.
IV. MISCELLANEOUS PROVISIONS
4.1 Enforcement; Remedies.
(a) Specific Performance. Each party hereto hereby acknowledges and agrees, on behalf
of itself and its Affiliates, that irreparable harm would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their specific terms or were
otherwise breached and that money damages would not be an adequate remedy for any breach of this
Agreement. It is accordingly agreed that in any proceeding seeking specific performance each of
the parties will waive the defense of adequacy of a remedy at law. Each of the parties shall be
entitled to specific relief hereunder, including, without limitation, an injunction or injunctions
to prevent and enjoin breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof, in any state or federal court in the State of Texas, this being in
addition to any other remedy to which they are entitled at law or in equity. Any requirements for
the securing or posting of any bond with such remedy are hereby waived.
(b) Jurisdiction; Venue. Each party hereto agrees, on behalf of itself and its
Affiliates, that any actions, suits or proceedings arising out of or relating to this Agreement or
the transactions contemplated hereby will be brought solely and exclusively in any state or federal
court in the State of Texas (and the parties agree not to commence any action, suit or proceeding
relating thereto except in such courts), and further agrees that service of any process, summons,
notice or document by U.S. registered mail to the respective addresses set forth in Section 4.5
will be effective service of process for any such action, suit or proceeding brought against any
party in any such court. Each party, on behalf of itself and its Affiliates, irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement or the transactions contemplated hereby, in the state or federal
courts in the State of Texas, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an improper or inconvenient forum.
4.2 Entire Agreement. This Agreement, including the exhibits attached hereto,
constitutes the entire and only agreement between the parties and supersedes all previous
15
and contemporaneous oral and written agreements, discussions, communications, negotiations,
commitments, and writings with respect to the subject matter hereof.
4.3 Amendments. This Agreement may be amended only by a written instrument duly
executed by the parties hereto or their respective successors or assigns.
4.4 Notices. All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto shall be in writing and
shall be deemed validly given, made or served, if (a) given by telecopy, when such telecopy is
transmitted to the telecopy number set forth below and the appropriate confirmation is received or
(b) if given by any other means, when actually received at the address specified in this
subsection:
If to Intervoice:
Intervoice, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief Executive Officer
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief Executive Officer
with a copy to:
Fulbright & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
If to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Blank Rome LLP
One ▇▇▇▇▇ Square
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4.5 Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas, without regard to any conflict of laws provisions
thereof or of any other jurisdiction.
4.6 Waiver of Jury Trial. Each party hereby irrevocably and unconditionally waives
any right it may have to a trial by jury in respect of any litigation directly or indirectly
arising out of or relating to this agreement or any of the actions contemplated hereby. Each party
certifies and acknowledges that (a) no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the event of litigation,
seek to enforce either of such waivers, (b) it understands and has considered the implications of
such waivers, (c) it makes such waivers voluntarily, and (d) it has been induced to enter into this
agreement by, among other things, the mutual waivers and certifications in this section 4.7.
4.7 Further Assurances. Each party agrees to take or cause to be taken such further
actions, and to execute, deliver and file or cause to be executed, delivered and filed such further
documents and instruments, and to obtain such consents, as may be reasonably required or requested
by the other party in order to effectuate fully the purposes, terms and conditions of this
Agreement.
4.8 Binding Effect; Successors and Assigns. This Agreement shall inure to the benefit
of, be binding upon and shall be enforceable by the parties hereto and their respective successors
and assigns.
4.9 Interpretation; Construction. When a reference is made in this Agreement to
sections or exhibits, such reference shall be to a section of or exhibit to this Agreement unless
otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation.” The words
“hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular provision of this
Agreement. All terms defined in this Agreement shall have the defined meaning contained herein
when used in any document made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well as the plural forms
of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any
agreement or instrument defined or referred to herein or in any agreement or instrument that is
referred to herein means such agreement or instrument as from time to time
amended, modified or supplemented and attachments thereto and instruments incorporated
therein. References to a person are also to its permitted successors and assigns. The parties
have participated jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any
reference to any statute or law shall be deemed also to refer to any amendments thereto and all
rules and regulations promulgated thereunder, unless the context requires otherwise.
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4.10 Third Party Beneficiaries. Except for the provisions of Section 3 which are
intended for the benefit of, and shall be enforceable by, the Persons described therein, nothing
contained in this Agreement shall create any rights in, or be deemed to have been executed for the
benefit of, any Person or entity that is not a party hereto or a successor or permitted assign of
such a party.
4.11 Waivers. The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by any party in exercising any right,
power, or privilege under this Agreement or the documents referred to in this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial exercise of any
such right, power, or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right arising out of this Agreement or the documents
referred to in this Agreement can be discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for which it is given;
and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such
party or of the right of the party giving such notice or demand to take further action without
notice or demand as provided in this Agreement or the documents referred to in this Agreement.
4.12 Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Upon such a determination, the parties 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 in
order that the transactions contemplated hereby be consummated as originally contemplated to the
fullest extent possible.
4.13 Survival of Representations. All representations, warranties and agreements made
by the parties in this Agreement or pursuant hereto shall survive the date hereof.
4.14 Headings. The section headings contained in this Agreement are for reference
purposes only and shall not effect in any way the meaning or interpretation of this Agreement.
4.15 Counterparts. This Agreement may be executed manually or by facsimile by the
parties hereto, in any number of counterparts, each of which shall be considered one and the same
agreement and shall become effective when a counterpart hereof shall have been signed by each of
the parties and delivered to the other parties.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or caused the same
to be executed by its duly authorized representative as of the date first above written.
| INTERVOICE, INC. |
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | President and Chief Executive Officer | |||
| /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | ||||
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EXHIBIT A
COMPOSITION OF RECONSTITUTED BOARD COMMITTEES
AUDIT COMMITTEE:
| • | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ — Chair | ||
| • | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| • | ▇▇▇▇▇▇ ▇. ▇▇▇▇ |
COMPENSATION COMMITTEE:
| • | ▇▇▇▇▇▇ ▇. ▇▇▇▇ — Chair | ||
| • | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| • | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
EXECUTIVE COMMITTEE:
| • | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ — Chair | ||
| • | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| • | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
FINANCIAL AND STRATEGIC PLANNING COMMITTEE:
| • | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ — Chair | ||
| • | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| • | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
NOMINATING COMMITTEE:
| • | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ — Chair | ||
| • | ▇▇▇▇▇▇ ▇. ▇▇▇▇ |