<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. ___)*
Excalibur Technologies Corporation
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock
- --------------------------------------------------------------------------------
(Title of Class of Securities)
300651205
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(CUSIP Number)
F. Thomas Dunlap, Jr.
Vice President, General Counsel and Secretary
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telephone: (408) 765-8080
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 30, 2000
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ] .
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. 300651205 Page 2 of 12 Pages
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(1) NAMES OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
Intel Corporation
94-1672743
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS*
NOT APPLICABLE
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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(7) SOLE VOTING POWER
Number of 0
Shares --------------------------------------------------------
Beneficially (8) SHARED VOTING POWER
Owned by 4,276,621
Each --------------------------------------------------------
Reporting (9) SOLE DISPOSITIVE POWER
Person With 0
--------------------------------------------------------
(10) SHARED DISPOSITIVE POWER
0
--------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,276,621
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(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29%
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(14) TYPE OF REPORTING PERSON*
CO
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<PAGE> 3
SCHEDULE 13D
CUSIP No. 300651205 Page 3 of 12 Pages
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ITEM 1. SECURITY AND ISSUER:
(a): The name and address of the issuer is Excalibur Technologies
Corporation, a Delaware corporation (the "Company"), which has
its principal executive offices at 1921 Gallows Road, Suite 200,
Vienna, Virginia 22182.
(b) The title and class of equity securities to which this statement
relates is the common stock of the Company (the "Shares").
ITEM 2. IDENTITY AND BACKGROUND:
(a)-(c), (f): This statement is filed by Intel Corporation, a Delaware
corporation ("Intel" or the "Reporting Person"), which has its
principal executive offices at 2200 Mission College Blvd., Santa
Clara, California 95052-8119. Intel is the world's largest chip
maker and is also a leading manufacturer of computer, networking
and communications products.
Attached hereto as Appendix A is information required by this
Item 2 with respect to the executive officers and directors of
the Reporting Person. All such individuals are U.S. citizens,
except as otherwise indicated on Appendix A.
(d): During the last five years neither Intel nor any officer or
director of Intel has been convicted in any criminal proceeding
(excluding traffic violations or similar misdemeanors).
(e): During the last five years, neither Intel, nor, to Intel's
knowledge, any officer or director of Intel has been party to
any civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which such person would
have been subject to any judgment, decree or final order
enjoining future violations of or prohibiting or mandating
activities subject to Federal or State securities laws or
finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION:
In connection with the Agreement and Plan of Contribution and Merger,
dated as of April 30, 2000, among the Company, Intel, Exca Holdings,
Inc., a Delaware corporation and wholly owned subsidiary of the Company
("Newco"), and Excalibur Transitory, Inc., a Delaware corporation and
wholly owned subsidiary of Newco ("Transitory") (the "Agreement"), filed
as Exhibit A to this Schedule 13D, Intel and the directors, officers and
certain stockholders of the Company holding in the aggregate
approximately 29% of the outstanding common stock of the Company
(collectively, the "Proxy Grantors"), entered into the Voting Agreements
and Irrevocable Proxies attached hereto as Exhibits B to N (the "Voting
Agreements"), whereby each Proxy Grantor agreed to vote in favor of the
Agreement, the merger and the other transactions contemplated by the
Agreement and granted to Intel an irrevocable proxy for the term of the
Agreement to vote such Proxy Grantor's Shares in favor of the Merger and
the transactions contemplated by the Agreement.
ITEM 4. PURPOSE OF TRANSACTION:
(a) - (g), (j): In connection with the Agreement, Intel obtained
irrevocable proxies with respect to certain Shares from the
officers, directors and certain stockholders of the Company
pursuant to the Voting Agreements, authorizing Intel to vote
those Shares in favor of the Merger and the transactions
contemplated by the Agreement.
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SCHEDULE 13D
CUSIP No. 300651205 Page 4 of 12 Pages
--------------------- -------- --------
Pursuant to the Agreement, (i) Intel will contribute $150
million, certain technology and intellectual property (as set
forth in Exhibit A of the Agreement) and its Interactive Media
Services Division to Newco in exchange for 60 percent of Newco's
equity consisting of 14,168,655 shares of the Class A Common
Stock, $.01 par value per share, of Newco (the "Newco Common
Stock") and 12,865,738 shares of the Class B Common Stock, $.01
par value per share, of Newco (the "Newco Non-Voting Common
Stock"), subject to adjustment as provided in Section 1.1 of the
Agreement and (ii) Transitory will merge with and into the
Company (the "Merger"), with the Company surviving the Merger as
a wholly owned subsidiary of Newco. The holders of the Company's
common stock will receive one (1) share of Newco Common Stock
for each share of the common stock of the Company outstanding
immediately prior to the Effective Time (as defined in Section
2.2 of the Agreement) and the holders of the Company's preferred
stock will receive one (1) share of preferred stock of Newco for
each share of Company preferred stock outstanding immediately
prior to the Effective Time. After the Effective Time, the
former holders of the Company's common and preferred stock will
own 40 percent of Newco's equity.
Intel will, from time to time, evaluate market opportunities for
the sale of its shares and may sell all or a portion of its
shares in one or more sales pursuant to public or private
offerings.
(h) and (i): At the Effective Time, Shares of the Company will be
delisted from NASDAQ and become eligible for termination of
registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934, as amended.
Pursuant to the Agreement, Newco shall file an initial listing
application with NASDAQ relating to the shares of Newco Common
Stock to be issued in connection with the transactions
contemplated by the Agreement and use reasonable efforts to
cause such shares of Newco Common Stock to be listed prior to
the Effective Time.
Pursuant to the Agreement, the holders of the Company's common
stock will receive one (1) share of Newco Common Stock for each
share of the common stock of the Company outstanding immediately
prior to the Effective Time and the holders of the Company's
preferred stock will receive one (1) share of preferred stock of
Newco for each share of Company preferred stock outstanding
immediately prior to the Effective Time. After the Effective
Time, the former holders of the Company's common and preferred
stock will own 40 percent of Newco's equity.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) - (c): As a result of Intel's obtaining an irrevocable proxy
with respect to certain Shares pursuant to the Voting
Agreements, Intel may be deemed to own beneficially an aggregate
of 4,276,621 Shares (representing approximately 29% of the
Shares outstanding on April 30, 2000). Intel, however, disclaims
beneficial ownership of such Shares, and this statement shall
not be construed as an admission that Intel is, for any or all
purposes, the beneficial owner of such Shares.
(d): Until the Effective Time, each Proxy Grantor will retain the
right to receive dividends in respect of, and the proceeds from
the sale of, the Shares of such Proxy Grantor subject to the
Voting Agreement.
(e): Not applicable.
<PAGE> 5
SCHEDULE 13D
CUSIP No. 300651205 Page 5 of 12 Pages
--------------------- -------- --------
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER:
Except as disclosed in or contemplated by the Agreement and the Voting
Agreements, there are no contracts, arrangements, understandings or
relationships between Intel and any third person with respect to the
Shares.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS:
Exhibit A Agreement and Plan of Contribution and Merger, dated
as of April 30, 2000, among the Company, Intel, Newco
and Transitory (incorporated by reference to Exhibit 5.1
of the Company's Form 8-K as filed on May 3, 2000)
Exhibit B Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and Allen & Co.,
Inc.
Exhibit C Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and Richard M.
Crooks, Jr.
Exhibit D Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and Allen Holdings,
Inc.
Exhibit E Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and Herbert Allen
Exhibit F Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and Donald R.
Keough
Exhibit G Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and Patrick Condo
Exhibit H Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and John S.
Hendricks
Exhibit I Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and W. Frank King
III
Exhibit J Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and John G.
McMillian
Exhibit K Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and Philip J.
O'Reilly
Exhibit L Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and James H.
Buchanan
Exhibit M Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and Harry C. Payne
Exhibit N Voting Agreement and Irrevocable Proxy, dated as of
April 30, 2000, by and between Intel and Paul E. Nelson
<PAGE> 6
SCHEDULE 13D
CUSIP No. 300651205 Page 6 of 12 Pages
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
May 9, 2000
INTEL CORPORATION
By: /s/ F. THOMAS DUNLAP, JR.
--------------------------------------
Name: F. Thomas Dunlap, Jr.
Title: Vice President,
General Counsel and Secretary
<PAGE> 7
SCHEDULE 13D
CUSIP No. 300651205 Page 7 of 12 Pages
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APPENDIX A
DIRECTORS
The following is a list of all Directors of Intel Corporation and certain other
information with respect to each Director. All Directors are United States
citizens except as indicated below.
Name: Craig R. Barrett
Business Address: 2200 Mission College Boulevard,
Santa Clara, CA 95052
Principal Occupation: President and Chief Executive Officer
Name, principal Intel Corporation, a manufacturer of microcomputer
business and address of components, modules and systems.
corporation or other 2200 Mission College Boulevard
organization in which Santa Clara, CA 95052
employment is
conducted:
Name: John Browne
Business Address: BP Amoco p.l.c., Britannic House,
1 Finsbury Circus, London EC2M 7BA
Principal Occupation: Group Chief Executive
Name, principal The BP Amoco p.l.c., an integrated oil company.
business and address of Britannic House, 1 Finsbury Circus
corporation or other London EC2M7BA
organization in which
employment is
conducted:
Citizenship: British
<PAGE> 8
SCHEDULE 13D
CUSIP No. 300651205 Page 8 of 12 Pages
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Name: Winston H. Chen
Business Address: Paramitas Foundation, 3945 Freedom Circle,
Suite 760, Santa Clara, CA 95054
Principal Occupation: Chairman
Name, principal Paramitas Foundation, a charitable foundation.
business and address of 3945 Freedom Circle, Suite 760
corporation or other Santa Clara, CA 95054
organization in which
employment is conducted:
Name: Andrew S. Grove
Business Address: 2200 Mission College Boulevard,
Santa Clara, CA 95052
Principal Occupation: Chairman of the Board of Directors
Name, principal Intel Corporation, a manufacturer of microcomputer
business and address of components, modules and systems.
corporation or other 2200 Mission College Boulevard
organization in which Santa Clara, CA 95052
employment is
conducted:
Name: D. James Guzy
Business Address: 1340 Arbor Road, Menlo Park, CA 94025
Principal Occupation: Chairman
Name, principal The Arbor Company, a limited partnership engaged
business and address of in the electronics and computer industry.
corporation or other 1340 Arbor Road
organization in which Menlo Park, CA 94025
employment is
conducted:
<PAGE> 9
SCHEDULE 13D
CUSIP No. 300651205 Page 9 of 12 Pages
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Name: Gordon E. Moore
Business Address: 2200 Mission College Boulevard,
Santa Clara, CA 95052
Principal Occupation: Chairman Emeritus of the Board of Directors
Name, principal Intel Corporation, a manufacturer of microcomputer
business and address of components, modules and systems.
corporation or other 2200 Mission College Boulevard
organization in which Santa Clara, CA 95052
employment is
conducted:
Name: David S. Pottruck
Business Address: 101 Montgomery Street, San Francisco, CA 94104
Principal Occupation: President and Co-Chief Executive Officer
Name, principal The Charles Schwab Corporation,
business and address an investment company
of corporation or other 101 Montgomery Street
organization in which San Francisco, CA 94104
employment is conducted:
Name: Jane E. Shaw
Business Address: 1310 Orleans Drive, Sunnyvale, CA 94089
Principal Occupation: Chairman and Chief Executive Officer
Name, principal AeroGen, Inc.,
business and address of a private company specializing in controlled
corporation or other delivery of drugs to the lungs
organization in which 1310 Orleans Drive
employment is conducted: Sunnyvale, CA 94089
<PAGE> 10
SCHEDULE 13D
CUSIP No. 300651205 Page 10 of 12 Pages
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Name: Leslie L. Vadasz
Business Address: 2200 Mission College Boulevard,
Santa Clara, CA 95052
Principal Occupation: Executive Vice President; President, Intel Capital
Name, principal Intel Corporation, a manufacturer of microcomputer
business and address of components, modules and systems.
corporation or other 2200 Mission College Boulevard
organization in which Santa Clara, CA 95052
employment is
conducted:
Name: David B. Yoffie
Business Address: Harvard Business School, Morgan Hall 215,
Soldiers Field Park
Road, Boston, MA 02163
Principal Occupation: Max and Doris Starr Professor of
International Business Administration
Name, principal Harvard Business School,
business and address of an educational institution.
corporation or other Harvard Business School
organization in which Morgan Hall 215, Soldiers Field Park Road
employment is conducted: Boston, MA 02163
Name: Charles E. Young
Business Address: 10920 Wilshire Boulevard, Suite 1835,
Los Angeles, CA 90024
Principal Occupation: A. Chancellor Emeritus
B. Interim President
Name, principal A. University of California at Los Angeles,
business and address of an educational institution.
corporation or other 10920 Wilshire Boulevard, Suite 1835
organization in which Los Angeles, CA 90024
employment is
conducted: B. University of Florida
226 Tigert Hall
PO Box 113150
Gainesville, FL 32610
<PAGE> 11
SCHEDULE 13D
CUSIP No. 300651205 Page 11 of 12 Pages
--------------------- -------- --------
EXECUTIVE OFFICERS
The following is a list of all executive officers of Intel Corporation excluding
executive officers who are also directors. Unless otherwise indicated, each
officer's business address is 2200 Mission College Boulevard, Santa Clara,
California 95052-8119, which address is Intel Corporation's business address.
Name: Paul S. Otellini
Title: Executive Vice President; General Manager, Intel Architecture
Business Group
Name: Gerhard H. Parker
Title: Executive Vice President; General Manager, New Business Group
Name: Andy D. Bryant
Title: Senior Vice President, Chief Financial Officer, and
Enterprise Services Officer
Name: Sean M. Maloney
Title: Senior Vice President; Director, Sales and Marketing Group
Name: Michael R. Splinter
Title: Senior Vice President; General Manager, Technology and
Manufacturing Group
Name: Albert Y. C. Yu
Title: Senior Vice President; General Manager, Microprocessor
Products Group
Name: F. Thomas Dunlap, Jr.
Title: Vice President, General Counsel and Secretary
Name: Arvind Sodhani
Title: Vice President, Treasurer
<PAGE> 12
SCHEDULE 13D
CUSIP No. 300651205 Page 12 of 12 Pages
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EXHIBIT INDEX
Exhibit A Agreement and Plan of Contribution and Merger, dated as of
April 30, 2000, among the Company, Intel, Newco and
Transitory (incorporated by reference to Exhibit 5.1 of the
Company's Form 8-K as filed on May 3, 2000)
Exhibit B Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and Allen & Co., Inc.
Exhibit C Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and Richard M. Crooks, Jr.
Exhibit D Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and Allen Holdings, Inc.
Exhibit E Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and Herbert Allen
Exhibit F Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and Donald R. Keough
Exhibit G Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and Patrick Condo
Exhibit H Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and John S. Hendricks
Exhibit I Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and W. Frank King III
Exhibit J Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and John G. McMillian
Exhibit K Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and Philip J. O'Reilly
Exhibit L Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and James H. Buchanan
Exhibit M Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and Harry C. Payne
Exhibit N Voting Agreement and Irrevocable Proxy, dated as of April
30, 2000, by and between Intel and Paul E. Nelson
<PAGE> 1
EXHIBIT B
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act"), but shall exclude securities held, in the
ordinary course of business, in Stockholder's capacity as a market maker.
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted
2
<PAGE> 3
herein, and any attempt to do so shall be void. The power of attorney granted
herein is a durable power of attorney and shall survive the death or incapacity
of Stockholder.
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement (and except in the ordinary course
of business in Stockholder's capacity as a market maker), Stockholder shall not,
directly or indirectly: (i) offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Shares or any interest therein; (ii) grant any
proxies or powers of attorney or deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares; or (iii) take any action
that would make any representation or warranty of Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling Stockholder
from performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of
3
<PAGE> 4
the Merger Agreement in accordance with its terms and the Effective Time, shall
not, in any capacity, directly or indirectly, initiate, solicit or knowingly
encourage (including, without limitation, by way of furnishing non-public
information or assistance), or take any other action to facilitate knowingly,
any inquiries or the making of any Third Party Acquisition; (iii) shall promptly
(and in any event within one business day after becoming aware thereof) notify
Intel of any proposals for, or inquiries with respect to, a potential Third
Party Acquisition received by Stockholder or of which Stockholder otherwise has
knowledge (including the terms and conditions thereof and the identity of the
party submitting such proposal or inquiry); (iv) shall provide to Intel a copy
of any written agreements, proposals or other materials the Stockholder receives
from any such person or group (or its representatives); and (v) shall advise
Intel from time to time of the status, at any time upon Intel's request, and
promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which
4
<PAGE> 5
legal or beneficial ownership of any Shares shall pass, whether by operation of
law or otherwise. Notwithstanding any transfer of Shares, the transferor shall
remain liable for the performance of all obligations under this Agreement of the
transferor.
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
5
<PAGE> 6
If to Intel: Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
6
<PAGE> 7
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
7
<PAGE> 8
IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
--------------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
ALLEN & COMPANY INCORPORATED
NUMBER OF SHARES: 3,225,846* By: /s/ Kim Wieland
--------------------------------------
Name: Kim Wieland
Title: Chief Financial Officer and
Managing Director
Address: 711 Fifth Avenue
New York, NY 10022
* Includes 271,800 shares of common stock into which Stockholder's
Preferred is convertible.
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
<PAGE> 1
EXHIBIT C
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act").
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
<PAGE> 3
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein, provided that Stockholder may sell
Shares issuable upon exercise of options that would, by their terms, expire
unexercised during the term of this Agreement, to the extent necessary to recoup
the aggregate exercise price of such options and to satisfy taxes owed by
Stockholder with respect to such exercise, in accordance with the supplemental
wage withholding rate applicable to Stockholder; (ii) grant any proxies or
powers of attorney or deposit any Shares into a voting trust or enter into a
voting agreement with respect to any Shares; or (iii) take any action that would
make any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of
<PAGE> 4
the Merger Agreement in accordance with its terms and the Effective Time, shall
not, in any capacity, directly or indirectly, initiate, solicit or knowingly
encourage (including, without limitation, by way of furnishing non-public
information or assistance), or take any other action to facilitate knowingly,
any inquiries or the making of any Third Party Acquisition; (iii) shall promptly
(and in any event within one business day after becoming aware thereof) notify
Intel of any proposals for, or inquiries with respect to, a potential Third
Party Acquisition received by Stockholder or of which Stockholder otherwise has
knowledge (including the terms and conditions thereof and the identity of the
party submitting such proposal or inquiry); (iv) shall provide to Intel a copy
of any written agreements, proposals or other materials the Stockholder receives
from any such person or group (or its representatives); and (v) shall advise
Intel from time to time of the status, at any time upon Intel's request, and
promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares, except as permitted by Section 4(c)(i). In the event of
a stock dividend or distribution, or any change in the Company Common Stock by
reason of any stock dividend, split-up, recapitalization, combination, exchange
of shares or the like, the term "Shares" shall be deemed to refer to and include
the Shares as well as all such stock dividends and distributions and any shares
into which or for which any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
<PAGE> 5
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
<PAGE> 6
Intel Corporation
If to Intel: 2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
<PAGE> 7
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
<PAGE> 8
IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
-------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
NUMBER OF SHARES: 299,750 /s/ Richard M. Crooks, Jr.
-----------------------------
Richard M. Crooks, Jr.
Address:
-------------------------------
---------------------------------------
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
<PAGE> 1
EXHIBIT D
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act").
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
2
<PAGE> 3
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of the Merger Agreement in
accordance with its terms and the Effective Time, shall not, in any capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including,
without limitation, by way of furnishing non-public information or assistance),
or take any other action to facilitate knowingly, any inquiries or the making of
any Third Party Acquisition; (iii) shall
3
<PAGE> 4
promptly (and in any event within one business day after becoming aware thereof)
notify Intel of any proposals for, or inquiries with respect to, a potential
Third Party Acquisition received by Stockholder or of which Stockholder
otherwise has knowledge (including the terms and conditions thereof and the
identity of the party submitting such proposal or inquiry); (iv) shall provide
to Intel a copy of any written agreements, proposals or other materials the
Stockholder receives from any such person or group (or its representatives); and
(v) shall advise Intel from time to time of the status, at any time upon Intel's
request, and promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
4
<PAGE> 5
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
5
<PAGE> 6
Intel Corporation
If to Intel: 2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
6
<PAGE> 7
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
7
<PAGE> 8
IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
-------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
NUMBER OF SHARES: 31,323 ALLEN HOLDING INC.
By: /s/ Kim Weiland
-------------------------------
Name: Kim Weiland
Address: 711 Fifth Avenue
New York, NY 10022
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
8
<PAGE> 1
EXHIBIT E
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act").
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
2
<PAGE> 3
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of the Merger Agreement in
accordance with its terms and the Effective Time, shall not, in any capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including,
without limitation, by way of furnishing non-public information or assistance),
or take any other action to facilitate knowingly, any inquiries or the making of
any Third Party Acquisition; (iii) shall
3
<PAGE> 4
promptly (and in any event within one business day after becoming aware thereof)
notify Intel of any proposals for, or inquiries with respect to, a potential
Third Party Acquisition received by Stockholder or of which Stockholder
otherwise has knowledge (including the terms and conditions thereof and the
identity of the party submitting such proposal or inquiry); (iv) shall provide
to Intel a copy of any written agreements, proposals or other materials the
Stockholder receives from any such person or group (or its representatives); and
(v) shall advise Intel from time to time of the status, at any time upon Intel's
request, and promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
4
<PAGE> 5
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
5
<PAGE> 6
Intel Corporation
If to Intel: 2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
6
<PAGE> 7
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
7
<PAGE> 8
IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
-------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
NUMBER OF SHARES: 314,915 /s/ Herbert Allen
--------------------------------------
Herbert Allen
Address: Allen & Company, Incorporated
711 Fifth Avenue
New York, NY 10022
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
8
<PAGE> 1
EXHIBIT F
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act").
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
2
<PAGE> 3
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of the Merger Agreement in
accordance with its terms and the Effective Time, shall not, in any capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including,
without limitation, by way of furnishing non-public information or assistance),
or take any other action to facilitate knowingly, any inquiries or the making of
any Third Party Acquisition; (iii) shall
3
<PAGE> 4
promptly (and in any event within one business day after becoming aware thereof)
notify Intel of any proposals for, or inquiries with respect to, a potential
Third Party Acquisition received by Stockholder or of which Stockholder
otherwise has knowledge (including the terms and conditions thereof and the
identity of the party submitting such proposal or inquiry); (iv) shall provide
to Intel a copy of any written agreements, proposals or other materials the
Stockholder receives from any such person or group (or its representatives); and
(v) shall advise Intel from time to time of the status, at any time upon Intel's
request, and promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
4
<PAGE> 5
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
5
<PAGE> 6
Intel Corporation
If to Intel: 2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
6
<PAGE> 7
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
7
<PAGE> 8
IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
-------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
NUMBER OF SHARES: 155,500 /s/ Donald R. Keough
-------------------------------------
Donald R. Keough
Address: 711 5th Avenue
New York, NY
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
8
<PAGE> 1
EXHIBIT G
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act").
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
2
<PAGE> 3
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of the Merger Agreement in
accordance with its terms and the Effective Time, shall not, in any capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including,
without limitation, by way of furnishing non-public information or assistance),
or take any other action to facilitate knowingly, any inquiries or the making of
any Third Party Acquisition; (iii) shall
3
<PAGE> 4
promptly (and in any event within one business day after becoming aware thereof)
notify Intel of any proposals for, or inquiries with respect to, a potential
Third Party Acquisition received by Stockholder or of which Stockholder
otherwise has knowledge (including the terms and conditions thereof and the
identity of the party submitting such proposal or inquiry); (iv) shall provide
to Intel a copy of any written agreements, proposals or other materials the
Stockholder receives from any such person or group (or its representatives); and
(v) shall advise Intel from time to time of the status, at any time upon Intel's
request, and promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
4
<PAGE> 5
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
5
<PAGE> 6
Intel Corporation
If to Intel: 2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
6
<PAGE> 7
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
7
<PAGE> 8
IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
-------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
NUMBER OF SHARES: 1,825 /s/ Patrick C. Condo
-----------------------------------------
Patrick C. Condo
Address: 1013 Kimbler Place
Great Falls, VA 22066
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
8
<PAGE> 1
EXHIBIT H
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act").
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
2
<PAGE> 3
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of the Merger Agreement in
accordance with its terms and the Effective Time, shall not, in any capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including,
without limitation, by way of furnishing non-public information or assistance),
or take any other action to facilitate knowingly, any inquiries or the making of
any Third Party Acquisition; (iii) shall
3
<PAGE> 4
promptly (and in any event within one business day after becoming aware thereof)
notify Intel of any proposals for, or inquiries with respect to, a potential
Third Party Acquisition received by Stockholder or of which Stockholder
otherwise has knowledge (including the terms and conditions thereof and the
identity of the party submitting such proposal or inquiry); (iv) shall provide
to Intel a copy of any written agreements, proposals or other materials the
Stockholder receives from any such person or group (or its representatives); and
(v) shall advise Intel from time to time of the status, at any time upon Intel's
request, and promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
4
<PAGE> 5
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
5
<PAGE> 6
Intel Corporation
If to Intel: 2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
6
<PAGE> 7
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
7
<PAGE> 8
IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
-------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
NUMBER OF SHARES: /s/ John S. Hendricks
---------- -------------------------------
John S. Hendricks
Address:
-----------------------
-------------------------------
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
8
<PAGE> 1
EXHIBIT I
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act").
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
2
<PAGE> 3
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of the Merger Agreement in
accordance with its terms and the Effective Time, shall not, in any capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including,
without limitation, by way of furnishing non-public information or assistance),
or take any other action to facilitate knowingly, any inquiries or the making of
any Third Party Acquisition; (iii) shall
3
<PAGE> 4
promptly (and in any event within one business day after becoming aware thereof)
notify Intel of any proposals for, or inquiries with respect to, a potential
Third Party Acquisition received by Stockholder or of which Stockholder
otherwise has knowledge (including the terms and conditions thereof and the
identity of the party submitting such proposal or inquiry); (iv) shall provide
to Intel a copy of any written agreements, proposals or other materials the
Stockholder receives from any such person or group (or its representatives); and
(v) shall advise Intel from time to time of the status, at any time upon Intel's
request, and promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
4
<PAGE> 5
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
5
<PAGE> 6
Intel Corporation
If to Intel: 2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
6
<PAGE> 7
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
7
<PAGE> 8
IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
-------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
NUMBER OF SHARES: 13,000 /s/ W. Frank King III
--------------------------------
W. Frank King III
Address: 24 Pascal Lane
Austin, TX 78746
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
8
<PAGE> 1
EXHIBIT J
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act").
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
2
<PAGE> 3
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of the Merger Agreement in
accordance with its terms and the Effective Time, shall not, in any capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including,
without limitation, by way of furnishing non-public information or assistance),
or take any other action to facilitate knowingly, any inquiries or the making of
any Third Party Acquisition; (iii) shall
3
<PAGE> 4
promptly (and in any event within one business day after becoming aware thereof)
notify Intel of any proposals for, or inquiries with respect to, a potential
Third Party Acquisition received by Stockholder or of which Stockholder
otherwise has knowledge (including the terms and conditions thereof and the
identity of the party submitting such proposal or inquiry); (iv) shall provide
to Intel a copy of any written agreements, proposals or other materials the
Stockholder receives from any such person or group (or its representatives); and
(v) shall advise Intel from time to time of the status, at any time upon Intel's
request, and promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
4
<PAGE> 5
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
5
<PAGE> 6
Intel Corporation
If to Intel: 2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
6
<PAGE> 7
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
7
<PAGE> 8
IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
-------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
NUMBER OF SHARES: 5,000 /s/ John G. McMillian
---------------------------------
John G. McMillian
Address: 322 Centennial Cr.
Park City, UT 84060
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
8
<PAGE> 1
EXHIBIT K
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act").
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
2
<PAGE> 3
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of the Merger Agreement in
accordance with its terms and the Effective Time, shall not, in any capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including,
without limitation, by way of furnishing non-public information or assistance),
or take any other action to facilitate knowingly, any inquiries or the making of
any Third Party Acquisition; (iii) shall
3
<PAGE> 4
promptly (and in any event within one business day after becoming aware thereof)
notify Intel of any proposals for, or inquiries with respect to, a potential
Third Party Acquisition received by Stockholder or of which Stockholder
otherwise has knowledge (including the terms and conditions thereof and the
identity of the party submitting such proposal or inquiry); (iv) shall provide
to Intel a copy of any written agreements, proposals or other materials the
Stockholder receives from any such person or group (or its representatives); and
(v) shall advise Intel from time to time of the status, at any time upon Intel's
request, and promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
4
<PAGE> 5
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
5
<PAGE> 6
Intel Corporation
If to Intel: 2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
6
<PAGE> 7
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
7
<PAGE> 8
IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
-------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
NUMBER OF SHARES: 5,000 /s/ Philip J. O'Reilly
--------------------------------------
Philip J. O'Reilly
Address:
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
8
<PAGE> 1
EXHIBIT L
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act").
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
2
<PAGE> 3
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of the Merger Agreement in
accordance with its terms and the Effective Time, shall not, in any capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including,
without limitation, by way of furnishing non-public information or assistance),
or take any other action to facilitate knowingly, any inquiries or the making of
any Third Party Acquisition; (iii) shall
3
<PAGE> 4
promptly (and in any event within one business day after becoming aware thereof)
notify Intel of any proposals for, or inquiries with respect to, a potential
Third Party Acquisition received by Stockholder or of which Stockholder
otherwise has knowledge (including the terms and conditions thereof and the
identity of the party submitting such proposal or inquiry); (iv) shall provide
to Intel a copy of any written agreements, proposals or other materials the
Stockholder receives from any such person or group (or its representatives); and
(v) shall advise Intel from time to time of the status, at any time upon Intel's
request, and promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
4
<PAGE> 5
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
5
<PAGE> 6
Intel Corporation
If to Intel: 2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
6
<PAGE> 7
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
7
<PAGE> 8
IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
-------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
NUMBER OF SHARES: 1,640 /s/ James H. Buchanan
-----------------------------------
James H. Buchanan
Address: 1117 Grand Hamptins Drive
Herndon, VA 20170
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
8
<PAGE> 1
EXHIBIT M
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act").
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
2
<PAGE> 3
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of the Merger Agreement in
accordance with its terms and the Effective Time, shall not, in any capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including,
without limitation, by way of furnishing non-public information or assistance),
or take any other action to facilitate knowingly, any inquiries or the making of
any Third Party Acquisition; (iii) shall
3
<PAGE> 4
promptly (and in any event within one business day after becoming aware thereof)
notify Intel of any proposals for, or inquiries with respect to, a potential
Third Party Acquisition received by Stockholder or of which Stockholder
otherwise has knowledge (including the terms and conditions thereof and the
identity of the party submitting such proposal or inquiry); (iv) shall provide
to Intel a copy of any written agreements, proposals or other materials the
Stockholder receives from any such person or group (or its representatives); and
(v) shall advise Intel from time to time of the status, at any time upon Intel's
request, and promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
4
<PAGE> 5
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
5
<PAGE> 6
Intel Corporation
If to Intel: 2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
6
<PAGE> 7
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
7
<PAGE> 8
IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
-------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
NUMBER OF SHARES: /s/ Harry C. Payne__
-----------------------------------
Harry C. Payne
Address:
---------------------------
-----------------------------------
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
8
<PAGE> 1
EXHIBIT N
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of April 30, 2000
(this "Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Intel"), and the stockholder reflected as such on the signature
page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Intel, Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), Exca Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Newco"), Excalibur Transitory, Inc., a
Delaware corporation and a wholly-owned subsidiary of Newco ("Transitory"), have
entered into an Agreement and Plan of Contribution and Merger, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; initially capitalized and other terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement), pursuant to which (i) Intel will contribute certain assets to Newco
in exchange for shares of Newco Common Stock and Newco Non-Voting Common Stock
and (ii) Transitory will merge (the "Merger") with and into the Company, as a
result of which the Company will survive the Merger as a wholly-owned subsidiary
of Newco and the stockholders of the Company will receive shares of Newco Common
Stock in exchange for common stock of the Company and Newco Cumulative
Convertible Preferred Stock in exchange for Cumulative Convertible Preferred
Stock of the Company;
WHEREAS, the Stockholder Beneficially Owns (as defined herein) the
number of shares of Company Common Stock set forth next to the stockholder's
signature on the signature page hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Intel has requested that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Voting Agreement. Stockholder hereby agrees with Intel that, at
any meeting of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, Stockholder shall, subject to
Section 4(f), vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement, the Combination and any actions required in furtherance thereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company, Newco or
<PAGE> 2
Transitory under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Intel, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company, (C) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries and any Third
Party, (D) a sale, lease, transfer or disposition of any assets of the Company's
or any of its subsidiaries' business outside the ordinary course of business, or
any assets which are material to its business whether or not in the ordinary
course of business, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries, (E) any material
licensing, distribution or reseller agreement or arrangement involving the
Company, (F) any change in the present capitalization of the Company or any
amendment of the Certificate of Incorporation or By-Laws of the Company or its
subsidiaries, (G) any other material change in the Company's corporate structure
or affecting its business, or (H) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or materially
adversely affect the Combination or any of the transactions contemplated by the
Merger Agreement. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained herein. For purposes of
this Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean Stockholder's having such ownership, control or power to
direct the voting with respect to, or otherwise enables Stockholder to legally
act with respect to, such securities as contemplated hereby, including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Securities Beneficially Owned by Stockholder shall include securities
Beneficially Owned by all other persons with whom Stockholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act of 1934,
as amended (the "Exchange Act").
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Intel, which
shall act by and through Cary I. Klafter and Teresa Remillard (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's stockholders called for purposes of
considering whether to approve the Merger Agreement and the Combination, or any
Third Party Acquisition, or to execute a written consent of stockholders in lieu
of any such meeting, all Shares Beneficially Owned by Stockholder as of the
record date with respect to such meeting or written consent in favor of the
approval of the Merger Agreement and the Combination, with such modifications to
the Merger Agreement as the parties thereto may make, or against a Third Party
Acquisition, as the case may be. Such proxy shall be limited strictly to the
power to vote the Shares in the manner set forth in the preceding sentence and
shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
2
<PAGE> 3
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Intel acknowledges and agrees that no
provision of this Agreement shall limit or otherwise restrict Stockholder with
respect to any act or omission that Stockholder may undertake or authorize in
his capacity as a director of Company, including, without limitation, any vote
that Stockholder may make as a director of Company with respect to any matter
presented to the Board of Directors of Company.
4. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to Intel as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease any discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Third Party Acquisition; (ii) from and after the
date hereof until the earlier of the termination of the Merger Agreement in
accordance with its terms and the Effective Time, shall not, in any capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including,
without limitation, by way of furnishing non-public information or assistance),
or take any other action to facilitate knowingly, any inquiries or the making of
any Third Party Acquisition; (iii) shall
3
<PAGE> 4
promptly (and in any event within one business day after becoming aware thereof)
notify Intel of any proposals for, or inquiries with respect to, a potential
Third Party Acquisition received by Stockholder or of which Stockholder
otherwise has knowledge (including the terms and conditions thereof and the
identity of the party submitting such proposal or inquiry); (iv) shall provide
to Intel a copy of any written agreements, proposals or other materials the
Stockholder receives from any such person or group (or its representatives); and
(v) shall advise Intel from time to time of the status, at any time upon Intel's
request, and promptly following any developments concerning the same.
(e) No Agreements. Stockholder is not and at the Effective Time
will not be a party to any agreement, arrangement, understanding, plan or
intention involving any actual or constructive sale, exchange, transfer,
hypothecation, redemption, gift, contribution, risk reduction or other
transaction, to the extent any such action could cause all or any portion of
Stockholder's Newco Common Stock to be received in the Merger not to be taken
into account in determining whether the "control" requirement in Section 351(a)
of the Code will be satisfied with respect to the transactions contemplated by
the Merger Agreement (collectively, a "Sale"). Stockholder will take no action
that could result in a Sale.
(f) Reliance by Intel. Stockholder understands and acknowledges
that Intel is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Intel
that Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
6. Termination. This Agreement and the proxy granted pursuant to
Section 2 hereof shall terminate upon the earliest to occur of: (a) the
termination of the Merger Agreement in accordance with its terms; (b) the
Effective Time; and (c) December 31, 2000.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
4
<PAGE> 5
(c) Assignment. This Agreement shall not be assigned by operation
of law. Stockholder shall not assign this Agreement without the prior written
consent of Intel. Intel may, in its sole discretion, assign its rights and
obligations hereunder.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: to the address set forth on
the signature page hereto
with a copy to: Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Telecopier: (703) 761-1990
Attention: Chief Financial Officer
and
Heller, Ehrman, White & McAuliffe LLP
711 Fifth Avenue
New York, NY 10028
Telecopier:(212) 832-3353
Attention: Stephen M. Davis, Esq.
5
<PAGE> 6
Intel Corporation
If to Intel: 2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
with a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7360
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
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waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, Intel and Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
Intel Corporation, a Delaware corporation
By: /s/ Arvind Sodhani
-------------------------------
Name: Arvind Sodhani
Title: Treasurer
STOCKHOLDER:
NUMBER OF SHARES: 238,199 /s/ Paul E. Nelson
------------------------------------
Paul E. Nelson
Address: 10312 Wetherburn Rd.
Woodstock, MA 21163
[SIGNATURE PAGE FOR INTEL/EXCALIBUR
VOTING AGREEMENT AND IRREVOCABLE PROXY]
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