0001002638-12-000003.txt : 20120510 0001002638-12-000003.hdr.sgml : 20120510 20120509175534 ACCESSION NUMBER: 0001002638-12-000003 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 20120510 DATE AS OF CHANGE: 20120509 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EASYLINK SERVICES INTERNATIONAL CORP CENTRAL INDEX KEY: 0000894738 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING SERVICES [7371] IRS NUMBER: 133645702 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-48809 FILM NUMBER: 12827060 BUSINESS ADDRESS: STREET 1: 6025 THE CORNERS PARKWAY STREET 2: SUITE 100 CITY: NORCROSS STATE: GA ZIP: 30092 BUSINESS PHONE: 678-533-8000 MAIL ADDRESS: STREET 1: 6025 THE CORNERS PARKWAY STREET 2: SUITE 100 CITY: NORCROSS STATE: GA ZIP: 30092 FORMER COMPANY: FORMER CONFORMED NAME: INTERNET COMMERCE CORP DATE OF NAME CHANGE: 19980929 FORMER COMPANY: FORMER CONFORMED NAME: INFOSAFE SYSTEMS INC DATE OF NAME CHANGE: 19940914 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: OPEN TEXT CORP CENTRAL INDEX KEY: 0001002638 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 980154400 STATE OF INCORPORATION: A6 FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 275 FRANK TOMPA DRIVE STREET 2: WATERLOO CITY: ONTARIO CANADA STATE: A6 ZIP: N2L 0A1 BUSINESS PHONE: 519-888-7111 MAIL ADDRESS: STREET 1: 275 FRANK TOMPA DRIVE STREET 2: WATERLOO CITY: ONTARIO CANADA STATE: A6 ZIP: N2L 0A1 SC 13D 1 schedule13d.htm Schedule 13D



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
SCHEDULE 13D
Under the Securities Exchange Act of 1934
 
EasyLink Services International Corporation
(Name of Issuer)

Class A Common Stock, par value $0.01 per share
(Title of Class of Securities)

277858106
(CUSIP Number)

Gordon A. Davies
Open Text Corporation
275 Frank Tompa Drive
Waterloo, Ontario
Canada N2L OA1
Telephone: (519) 888-7111
Facsimile: (519) 888-0677

With a copy to:

James R. Stuart, III
Richard B. Holbrook Jr.
Crowell & Moring LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
(202) 624-2500
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

May 1, 2012
(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 that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ¨
__________________________________________________________________________________________________________________________________________________________________________

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 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).
__________________________________________________________________________________________________________________________________________________________________________






CUSIP No. 277858106
  1 
NAMES OF REPORTING PERSONS
 
Open Text Corporation
  2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a)  x        (b)  o
 
  3
SEC USE ONLY
 
  4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
WC
  5
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e)   o 
 
  6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Canada
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
-0-
8
SHARED VOTING POWER
 
3,374,098
9
SOLE DISPOSITIVE POWER
 
-0-
10
SHARED DISPOSITIVE POWER
 
-0-
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,374,098(1)
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)    o
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
9.63%(2)
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
CO
 
 
(1)
Beneficial ownership of the above referenced Common Stock is being reported hereunder solely because the Reporting Person may be deemed to have beneficial ownership of such Common Stock as a result of the Voting Agreements described below. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Person that it is the beneficial owner of any Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed.
(2)
The above calculations are based on 32,113,320 shares of Common Stock outstanding (as represented in the Merger Agreement described below) and 2,921,947 shares of Common Stock subject to outstanding options beneficially owned by the Stockholders subject to the Voting Agreements, whether or not such options are presently exercisable or exercisable within 60 days from the date hereof or thereafter.








CUSIP No. 277858106
  1 
NAMES OF REPORTING PERSONS
 
Epic Acquisition Sub Inc.
  2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a)  x        (b)  o
 
  3
SEC USE ONLY
 
  4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
WC
  5
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e)    o
 
  6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
-0-
8
SHARED VOTING POWER
 
3,374,098
9
SOLE DISPOSITIVE POWER
 
-0-
10
SHARED DISPOSITIVE POWER
 
-0-
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,374,098 (1)
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)    o
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
9.63%(2)
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
CO
 
 
(1)
Beneficial ownership of the above referenced Common Stock is being reported hereunder solely because the Reporting Person may be deemed to have beneficial ownership of such Common Stock as a result of the Voting Agreements described below. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Person that it is the beneficial owner of any Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed.
(2)
The above calculations are based on 32,113,320 shares of Common Stock outstanding (as represented in the Merger Agreement described below) and 2,921,947 shares of Common Stock subject to outstanding options beneficially owned by the Stockholders subject to the Voting Agreements, whether or not such options are presently exercisable or exercisable within 60 days from the date hereof or thereafter.







CUSIP No. 277858106

Item 1. Security and Issuer

This Schedule 13D (“Schedule 13D”) relates to shares of Class A Common Stock, $0.01 par value per share (the “Common Stock”), of EasyLink Services International Corporation, a Delaware corporation (the “Issuer”). The principal executive offices of the Issuer are located at 6025 The Corners Parkway, Suite 100, Norcross, GA 30092.
Item 2. Identity and Background
(a)-(c), (f) This Schedule 13D is being jointly filed, pursuant to a joint filing agreement included as Exhibit 1 hereto, by:
(1) Open Text Corporation, a Canadian corporation (“Open Text”). The address of the principal business and principal offices of Open Text is 275 Frank Tompa Drive, Waterloo, Ontario, Canada N2L OA1. Open Text is the world's largest independent provider of Enterprise Content Management software. Open Text's solutions manage information for all types of business, compliance and industry requirements in large companies, government agencies and professional service firms.
(2) Epic Acquisition Sub Inc., a Delaware corporation (“Merger Sub”, and together with Open Text, the “Reporting Persons”). The address of the principal business and principal offices of Merger Sub is 275 Frank Tompa Drive, Waterloo, Ontario, Canada N2L OA1. Merger Sub is a wholly-owned indirect subsidiary of Open Text. Merger Sub was formed solely for the purpose of effecting the transactions contemplated by the Merger Agreement (defined below) and has not engaged in any activities except in connection with these transactions.
To the best of the Reporting Persons' knowledge as of the date hereof, the name, business address, present principal occupation or employment and citizenship of each executive officer and director of the Reporting Persons, as the case may be, and the name, principal business and address of any corporation or other organization in which such employment is conducted is set forth in Schedule A hereto. The information contained in Schedule A is incorporated herein by reference.
(d)-(e) During the last five years, none of the Reporting Persons, or to the best of the Reporting Persons' knowledge, any of the executive officers or directors of the Reporting Persons, have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or have been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a 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
The total amount of funds required by Open Text to acquire Issuer, including the purchase all of the Common Stock pursuant to the Merger Agreement described in Item 4 (the terms of which are hereby incorporated by reference) and the Merger (as defined below), is estimated to be approximately $310 million, inclusive of debt. Open Text will use its working capital or other internally generated funds to complete the Merger.
The Voting Agreements described in Item 4 of this Schedule 13D (the terms of which are hereby incorporated by reference) were entered into among Open Text, Merger Sub and each of John S. Simon, Paul D. Lapides, Richard J. Berman, Kim D. Cooke, Patrick A. Harper, Mark J. Herold, Kevin R. Maloney, Glen E. Shipley, Teresa A. Deuel, and Thomas J. Stallings (collectively, the “Stockholders”). The Stockholders entered into the Voting Agreements as an inducement to Open Text to enter into the Merger Agreement. Open Text did not pay additional consideration to the Stockholders in connection with the execution and delivery of the Voting Agreements and no funds were used for such purpose.
Item 4. Purpose of Transaction
(a)-(b) On May 1, 2012, Open Text, Merger Sub and the Issuer entered into an Agreement and Plan of Merger (“Merger Agreement”) providing for the Merger of Merger Sub into the Issuer (the “Merger”) with the Issuer surviving the Merger as a wholly-owned subsidiary of Open Text, upon the terms and subject to the conditions set forth in the Merger Agreement. At the Effective Time (as defined in the Merger Agreement), each share of the Issuer's Common Stock will be converted into the right to receive $7.25 in cash, without interest. A copy of the Merger Agreement is included as Exhibit 2 hereto and the description of the Merger Agreement contained herein is qualified in its entirety by reference to Exhibit 2, which





is incorporated herein by reference.
The Merger Agreement has been included to provide investors and security holders with information regarding the terms of the Merger. It is not intended to provide any other factual information about the Issuer, Open Text or Merger Sub. The representations, warranties, covenants and agreements contained in the Merger Agreement, which were made only for purposes of that agreement and as of specific dates, were solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties (including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors and security holders. Investors and security holders are not third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties, covenants and agreements or any descriptions thereof as characterizations of the actual state of facts or condition of the Issuer, Open Text or Merger Sub or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Issuer's public disclosures.
To induce Open Text to enter into the Merger Agreement, the Stockholders entered into Voting Agreements with Open Text and Merger Sub, dated as of May 1, 2012 (the “Voting Agreements”). Pursuant to the Voting Agreements, the Stockholders have agreed to vote all securities of the Issuer (including all shares of Common Stock) owned by them in favor of the Merger and against any (i) Takeover Proposal (as defined in the Merger Agreement), (ii) reorganization, recapitalization, liquidation or winding up of the Issuer or any other extraordinary transaction involving the Issuer not contemplated by the Merger Agreement or (iii) corporate action, the consummation of which would frustrate the purposes, or prevent or delay the consummation of, the Merger or any other transactions contemplated by the Merger Agreement. In addition, each Stockholder has agreed to exercise its vested options upon the request of Open Text. The Voting Agreements terminate upon the earlier of (x) the consummation of the Merger and (y) the termination of the Merger Agreement in accordance with its terms.
Pursuant to the Voting Agreements, each Stockholder has irrevocably agreed to grant a proxy appointing Open Text and each of its corporate officers as such Stockholder's proxy to vote his or her shares of the Issuer. Any new shares of Common Stock of which beneficial ownership is acquired will automatically become subject to the terms of the Voting Agreements.
Copies of the Voting Agreements are included as Exhibits 3 through 12 hereto and the description of the Voting Agreements contained herein is qualified in its entirety by reference to Exhibits 3 through 12, which are incorporated herein by reference.
(c) No determination has been made with respect to the sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries after the Merger.
(d) It is intended that upon consummation of the Merger, the directors of Merger Sub shall be the directors of Issuer, until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified.
(e) No determinations have been made regarding material changes in the Issuer's capitalization or dividend policy after the Merger.
(f) Upon consummation of the Merger, the Issuer will become a wholly-owned subsidiary of Open Text. No determinations have been made regarding material changes in the Issuer's business or corporate structure after the Merger.
(g) Pursuant to the Merger Agreement, upon consummation of the Merger, the Certificate of Incorporation and Bylaws of the Issuer as the surviving corporation in the Merger will be amended.
(h) Upon the consummation of the Merger, the Common Stock will de-list and no longer be quoted on the Nasdaq Global Market.
(i) Upon consummation of the Merger, the Common Stock will become eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended.
(j) Other than as described above, none of the Reporting Persons currently has any plans or proposals which relate to, or would result in, any action similar to any of the matters listed in Items 4(a)-(i) of this Schedule 13D (although Open Text reserves the right to develop such plans, including by realigning corporate structures or by transferring assets within its corporate structure in accordance with past practice).





The description contained in this Item 4 of the transactions contemplated by the Merger Agreement and the Voting Agreements is qualified in its entirety by reference to the full texts of the Merger Agreement and the Voting Agreements, the terms of each of which are incorporated herein by reference to Exhibits 2 - 12 hereof. Except as set forth in this Schedule 13D, the Merger Agreement and the Voting Agreements, none of the Reporting Persons, and to the best of the Reporting Persons' knowledge, none of the individuals named in Schedule A hereto, have any plans or proposals which relate to or which would result in or relate to any of the actions specified in paragraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer
(a)-(b) By virtue of the Voting Agreements, the Reporting Persons may be deemed to share with the Stockholders the power to vote, and may be deemed to be the beneficial owner of 3,374,098 shares of Common Stock (including 2,921,947 shares subject to outstanding options beneficially owned, whether or not such options are presently exercisable or exercisable within 60 days from the date hereof or thereafter) representing approximately 9.63% of the outstanding shares of Common Stock. The Reporting Persons, however, hereby disclaim all beneficial ownership of such shares and this statement shall not be construed as an admission that either of the Reporting Persons is, for any and all purposes, the beneficial owner of securities covered by this statement.
(c) Except as described in this Schedule 13D, there have been no transactions in the shares of Common Stock effected by the Reporting Persons, or to the best of the Reporting Persons' knowledge, any person or entity identified on Schedule A hereto, during the last 60 days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
The information set forth under Items 3, 4 and 5 and each of the agreements set forth on the Exhibits attached hereto are incorporated herein by reference. As described in Item 4, the Reporting Persons anticipate that Open Text will acquire the entire common equity interest in the Issuer pursuant to the Merger Agreement. Other than the Merger Agreement and the Voting Agreements described in Item 4 and incorporated herein by reference, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between the Reporting Persons or, to the best of the Reporting Persons' knowledge, any person or entity listed on Schedule A hereto, and any person with respect to the securities of the Issuer, including, but not limited to, transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.







Item 7. Material to be Filed as Exhibits
Exhibit 1
Joint Filing Agreement, dated as of May 9, 2012, between Open Text Corporation and Epic Acquisition Sub Inc.
Exhibit 2
Agreement and Plan of Merger, dated as of May 1, 2012, by and among Open Text Corporation, Epic Acquisition Sub Inc. and EasyLink Services International Corporation (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Issuer on May 3, 2012).
Exhibit 3
Voting Agreement, dated as of May 1, 2012, among Open Text Corporation, Epic Acquisition Sub Inc. and John S. Simon.
Exhibit 4
Voting Agreement, dated as of May 1, 2012, among Open Text Corporation, Epic Acquisition Sub Inc. and Paul D. Lapides.
Exhibit 5
Voting Agreement, dated as of May 1, 2012, among Open Text Corporation, Epic Acquisition Sub Inc. and Richard J. Berman.
Exhibit 6
Voting Agreement, dated as of May 1, 2012, among Open Text Corporation, Epic Acquisition Sub Inc. and Kim D. Cooke.
Exhibit 7
Voting Agreement, dated as of May 1, 2012, among Open Text Corporation, Epic Acquisition Sub Inc. and Patrick A. Harper.
Exhibit 8
Voting Agreement, dated as of May 1, 2012, among Open Text Corporation, Epic Acquisition Sub Inc. and Mark J. Herold.
Exhibit 9
Voting Agreement, dated as of May 1, 2012, among Open Text Corporation, Epic Acquisition Sub Inc. and Kevin R. Maloney.
Exhibit 10
Voting Agreement, dated as of May 1, 2012, among Open Text Corporation, Epic Acquisition Sub Inc. and Glen E. Shipley.
Exhibit 11
Voting Agreement, dated as of May 1, 2012, among Open Text Corporation, Epic Acquisition Sub Inc. and Teresa A. Deuel.
Exhibit 12
Voting Agreement, dated as of May 1, 2012, among Open Text Corporation, Epic Acquisition Sub Inc. and Thomas J. Stallings.







SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: May 9, 2012

OPEN TEXT CORPORATION

By: /s/ Gordon A. Davies
Name: Gordon A. Davies
Title: Chief Legal Officer and Corporate Secretary







SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: May 9, 2012
EPIC ACQUISITION SUB INC.

By: /s/ Gordon A. Davies
Name: Gordon A. Davies
Title: Secretary








SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS OF OPEN TEXT
The name, business address, title and present principal occupation or employment of each of the directors and executive officers of Open Text are set forth below. If no address is given, the business address is 275 Frank Tompa Drive, Waterloo, Ontario, Canada N2L OA1.
Name, Title and Address
Present Principal Occupation, Including Name and Address of Employer
Citizenship
P. Thomas Jenkins
Executive Chairman, Chief Strategy Officer and Director of Open Text
Canada
Mark J. Barrenechea
President, Chief Executive Officer and Director of Open Text
United States
Paul McFeeters
Chief Financial Officer and Chief Administrative Officer of Open Text
Canada
Gordon A. Davies
Chief Legal Officer, Corporate Secretary and Compliance Officer of Open Text
Canada
Eugene Roman
Chief Technology Officer of Open Text
Canada
James Latham
Chief Marketing Officer of Open Text
United States
Steve Best
Senior Vice President, Americas Sales of Open Text
United States
Tony Preston
Senior Vice President, Human Resources of Open Text
United States
Walter Kohler
Senior Vice President, Worldwide Professional Services of Open Text
Germany
James McGourlay
Senior Vice President, Worldwide Customer Service of Open Text
Canada
Louis Mousseau
Senior Vice President, Portfolio Group of Open Text
Canada
Graham Pullen
Senior Vice President, APJ Sales of Open Text
Australia
David Wareham
Executive Vice President, EMEA Sales of Open Text
United Kingdom
Randy Fowlie
RDM Corporation
4-608 Weber Street North
Waterloo, Ontario N2V 1K4
Canada
Director of Open Text and President and Chief Executive Officer of RDM Corporation
Canada
Brian J. Jackman
Director of Open Text and President of the Jackman Group Inc.
United States
Stephen J. Sadler
Enghouse Systems Limited
80 Tiverton Court, Suite 800
Markham, ON L3R G4
Canada
Director of Open Text and Chairman and Chief Executive Officer of Enghouse Systems Limited
Canada
Michael Slaunwhite
Director of Open Text and Executive Chairman of Halogen Software Inc.
Canada
Gail E. Hamilton
Director of Open Text
United States
Katharine B. Stevenson
Stevenson Advisory
247 Davenport Road, Suite 303
Toronto, ON M5R 1J9
Canada
Director of Open Text and Principal of Stevenson Advisory
Canada
Deborah Weinstein
LaBarge Weinstein LLP
515 Legget Drive, Suite 800
Ottawa, Ontario K2K 3G4
Canada
Director of Open Text and Co-Founder and Partner of LaBarge Weinstein LLP
Canada







DIRECTORS AND EXECUTIVE OFFICERS OF MERGER SUB
The name, business address, title and present principal occupation or employment of each of the directors and executive officers of Merger Sub are set forth below. If no address is given, the business address is 275 Frank Tompa Drive, Waterloo, Ontario, Canada N2L OA1.
Name, Title and Address
Present Principal Occupation, Including Name and Address of Employer
Citizenship
Gordon A. Davies
Director, President, Treasurer, Secretary and Chief Financial Officer
Canada



EX-99.1 2 exhibit1.htm EXHIBIT 1 JOINT FILING AGREEMENT, DATED MAY 9, 2012 BETWEEN OPEN TEXT CORPORATION AND EPIC ACQUISITION SUB INC exhibit 1


Exhibit 1


JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, the undersigned hereby (i) agree to the joint filing with all other Reporting Persons (as such term is defined in the statement on Schedule 13D described below) of a statement on Schedule 13D (including amendments thereto) with respect to the Class A Common Stock, par value $0.01 per share, of EasyLink Services International Corporation and (ii) agree that this Agreement be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts all of which taken together shall constitute one and the same instrument.

Dated: May 9, 2012

    
OPEN TEXT CORPORATION

By: /s/ Gordon A. Davies
                             Name: Gordon A. Davies
Title: Chief Legal Officer and
Corporate Secretary

EPIC ACQUISITION SUB INC.

By: /s/ Gordon A. Davies
                             Name: Gordon A. Davies
Title: Secretary



EX-99.3 3 exhibit3.htm EXHIBIT 3 VOTING AGREEMENT, DATED AS OF MAY 1, 2012, AMONG OPEN TEXT CORPORATION, EPIC ACQUISITION SUB INC. AND JOHN S. SIMON exhibit 3


Exhibit 3

VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of May 1, 2012, is entered into by and among OPEN TEXT CORPORATION, a corporation incorporated pursuant to the laws of Canada (“Parent”), EPIC ACQUISITION SUB INC., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and the Person named under the heading “Stockholder” on the signature page hereto (“Stockholder”). Capitalized terms not defined herein have the meanings given to such terms in the Agreement and Plan of Merger (the “Merger Agreement”) to be entered into substantially in the form provided to Stockholder, by and among Parent, Merger Sub and EasyLink Services International Corporation, a Delaware corporation (the “Company”).
RECITALS
A.Stockholder is the beneficial owner of the shares of Company Common Stock set forth next to Stockholder's name on the signature page to this Agreement (together with any other shares of Company Common Stock or any other voting securities of the Company hereafter acquired or beneficially owned by Stockholder, and together with any and all Stockholder Rights associated with all of the foregoing, the “Shares”).
B.Parent, Merger Sub and the Company propose to enter into the Merger Agreement which provides for Merger Sub to merge with and into the Company (the “Merger”), on the terms and subject to the conditions set forth in the Merger Agreement. To induce Parent to enter into and perform its obligations under the Merger Agreement, Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the representations warranties, and agreements set forth herein and in the Merger Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1.    Affirmative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably:
(a)    Agrees to vote all of its Shares entitled to be voted at the Company Stockholders Meeting, together with any adjournment or postponement thereof (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(b)    Agrees that if any additional stockholders' meeting of the Company (or any adjournment or postponement thereof) is called, or any written consents are necessary or advisable in connection with the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger, to execute such written consents and to vote all of its Shares entitled to be voted at such meeting, together with any adjournment or postponement thereof, (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(c)    Agrees to (i) vote all of its Shares entitled to be voted at any stockholders' meeting of the Company (including, without limitation, the Company Stockholders Meeting), together with any adjournment or postponement thereof, (or to cause the same to be voted) against any (A) Takeover Proposal, (B) reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company not contemplated by the Merger Agreement or (C) corporate action (other than an adjournment of the Company Stockholders Meeting recommended by the Company Board) the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the Merger or any other transaction contemplated by the Merger Agreement and (ii) execute any written consents providing for the rejection of any of the actions described in clause (i) of this Section 1(c);
(d)    Agrees that Parent and the Company may publish and disclose facts concerning Stockholder's





identity, ownership of Shares and execution of this Agreement in all documents and schedules filed with the SEC or any other applicable Governmental Entities and communications to stockholders of the Company related to the Merger Agreement (or any amended version thereof) and the Merger;
(e)    Appoints Parent, and each of its corporate officers, as the sole, exclusive, true and lawful proxies of Stockholder, to (i) vote the Shares as proxies, for and in the name, place and stead of Stockholder at the Company Stockholders Meeting or any other stockholders' meeting of the Company called in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal and (ii) execute any written consents deemed necessary or advisable in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal, if Stockholder fails to vote such Shares or execute such written consents in accordance with this Agreement. This proxy is irrevocable and is coupled with an interest; and
(f)    Waives and agrees not to assert any rights which it may have with respect to any of its Shares as to appraisal, dissent or any similar or related matter with respect to the Merger.
2.    Negative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably undertakes and agrees not to, directly or indirectly:
(a)    Sell, transfer, pledge, assign, encumber (or otherwise dispose of or hypothecate) any of its Shares or any interest therein or rights thereto; grant any proxy, power-of-attorney or other authorization or consent with respect to any of its Shares (other than as contemplated hereby); or deposit any of its Shares into a voting trust or enter into a voting agreement, arrangement or understanding with respect to any of his or her Shares;
(b)    Initiate or participate in, knowingly encourage or take any other action (or permit its Representatives to do any of the foregoing) that may facilitate, any inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information with respect to, assist or participate in any effort or attempt by any Person with respect to, or otherwise cooperate in any way with, any Takeover Proposal; or
(c)    take any action, or omit to take any action which may be taken without more than immaterial expense, that would restrict, limit or interfere with his or her obligations hereunder.
3.    Limitations; Termination. Sections 1 and 2 shall not be binding upon Stockholder if the Merger Agreement is amended to materially decrease the Merger Consideration or change the form thereof. This Agreement shall automatically terminate upon the termination of the Merger Agreement in accordance with its terms; provided, that nothing in this Agreement shall relieve any party from liability for any fraud or willful breach by it of this Agreement prior to the effectiveness of such termination.
4.    Representations and Warranties. Stockholder hereby represents and warrants to Parent and Merger Sub that (a) this Agreement has been duly executed and delivered by Stockholder and constitutes the valid and legally binding obligations of Stockholder, enforceable against Stockholder in accordance with its terms; (b) Stockholder solely owns beneficially the Shares, free and clear of any Liens, and such Shares represent the only Company Securities owned by Stockholder; and (c) except for this Agreement, Stockholder is not a party to any option, warrant, purchase right, or other Contract that could require Stockholder to sell, transfer or otherwise dispose of any equity or ownership interest in the Company or any of its Subsidiaries.     
5.    Miscellaneous.
(a)    This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such State, without regard to any conflicts of law principles that would require the application of any other Law. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS





AGREEMENT. Each of the parties irrevocably consents to submit itself to the jurisdiction of the United States District Court for Delaware (and if such court shall decline to accept jurisdiction over any particular matter, the Supreme Court of the State of Delaware located in the County of Wilmington) in the event any dispute or Legal Action arises out of or relates to this Agreement.
(b)    The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by Stockholder. It is accordingly agreed that Parent shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specifically enforce this Agreement.
(c)    All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given to a party when (i) delivered by hand or by a nationally recognized overnight courier service (costs prepaid) or (ii) sent by registered or certified mail, postage prepaid, return receipt requested, in each case to the following: (A) if to Parent or Merger Sub, to the address set forth in the Merger Agreement, and (B) if to Stockholder, to the address set forth on the signature page hereto.

(d)    This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party (including, by operation of Law or in connection with a merger or sale of substantially all the assets, stock or membership interests of such party) without the prior written consent of the other parties hereto; provided, that Parent may assign all or any of its rights and obligations hereunder to an Affiliate without any need to obtain consent. This Agreement may not be amended except by an instrument in writing signed by each party hereto. This Agreement contains the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings relating to such subject matter. Whether or not the Merger or any other transaction contemplated by the Merger Agreement is consummated, each party will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement. This Agreement may be executed in counterparts, each of which shall be considered one and the same agreement, and shall become effective when all such counterparts have been signed by each of the parties and delivered to the other parties.
(e)    If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof and all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
(f)    Stockholder is not making any agreement or understanding herein in his or her capacity as a director or officer of the Company. Stockholder signs solely in his or her capacity as the beneficial owner of the Shares and nothing herein shall limit or affect any actions taken by Stockholder in his or her capacity as an officer or director of the Company to the extent permitted by the Merger Agreement.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.





OPEN TEXT CORPORATION


By:        /s/ Gordon A. Davies
Name: Gordon A. Davies
Title: Chief Legal Officer and Corporate Secretary
EPIC ACQUISITION SUB INC.


By:      /s/ Gordon A. Davies               
Name: Gordon A. Davies
Title: Secretary
STOCKHOLDER



          /s/ John S. Simon
Name: John S. Simon
Shares of Stockholder

0 shares of Company Common Stock

Notice Address of Stockholder
6025 The Corners Parkway
Suite 100
Norcross, Georgia 30092
Attn: John S. Simon

with a copy (which shall not constitute notice) to:

Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
Attention: Larry W. Shackelford



EX-99.4 4 exhibit4.htm EXHIBIT 4 VOTING AGREEMENT, DATED AS OF MAY 1, 2012, AMONG OPEN TEXT CORPORATION, EPIC ACQUISITION SUB INC. AND PAUL D. LAPIDES exhibit 4


Exhibit 4

VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of May 1, 2012, is entered into by and among OPEN TEXT CORPORATION, a corporation incorporated pursuant to the laws of Canada (“Parent”), EPIC ACQUISITION SUB INC., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and the Person named under the heading “Stockholder” on the signature page hereto (“Stockholder”). Capitalized terms not defined herein have the meanings given to such terms in the Agreement and Plan of Merger (the “Merger Agreement”) to be entered into substantially in the form provided to Stockholder, by and among Parent, Merger Sub and EasyLink Services International Corporation, a Delaware corporation (the “Company”).
RECITALS
A.Stockholder is the beneficial owner of the shares of Company Common Stock set forth next to Stockholder's name on the signature page to this Agreement (together with any other shares of Company Common Stock or any other voting securities of the Company hereafter acquired or beneficially owned by Stockholder, and together with any and all Stockholder Rights associated with all of the foregoing, the “Shares”).
B.Parent, Merger Sub and the Company propose to enter into the Merger Agreement which provides for Merger Sub to merge with and into the Company (the “Merger”), on the terms and subject to the conditions set forth in the Merger Agreement. To induce Parent to enter into and perform its obligations under the Merger Agreement, Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the representations warranties, and agreements set forth herein and in the Merger Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1.    Affirmative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably:
(a)    Agrees to vote all of its Shares entitled to be voted at the Company Stockholders Meeting, together with any adjournment or postponement thereof (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(b)    Agrees that if any additional stockholders' meeting of the Company (or any adjournment or postponement thereof) is called, or any written consents are necessary or advisable in connection with the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger, to execute such written consents and to vote all of its Shares entitled to be voted at such meeting, together with any adjournment or postponement thereof, (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(c)    Agrees to (i) vote all of its Shares entitled to be voted at any stockholders' meeting of the Company (including, without limitation, the Company Stockholders Meeting), together with any adjournment or postponement thereof, (or to cause the same to be voted) against any (A) Takeover Proposal, (B) reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company not contemplated by the Merger Agreement or (C) corporate action (other than an adjournment of the Company Stockholders Meeting recommended by the Company Board) the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the Merger or any other transaction contemplated by the Merger Agreement and (ii) execute any written consents providing for the rejection of any of the actions described in clause (i) of this Section 1(c);
(d)    Agrees that Parent and the Company may publish and disclose facts concerning Stockholder's





identity, ownership of Shares and execution of this Agreement in all documents and schedules filed with the SEC or any other applicable Governmental Entities and communications to stockholders of the Company related to the Merger Agreement (or any amended version thereof) and the Merger;
(e)    Appoints Parent, and each of its corporate officers, as the sole, exclusive, true and lawful proxies of Stockholder, to (i) vote the Shares as proxies, for and in the name, place and stead of Stockholder at the Company Stockholders Meeting or any other stockholders' meeting of the Company called in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal and (ii) execute any written consents deemed necessary or advisable in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal, if Stockholder fails to vote such Shares or execute such written consents in accordance with this Agreement. This proxy is irrevocable and is coupled with an interest; and
(f)    Waives and agrees not to assert any rights which it may have with respect to any of its Shares as to appraisal, dissent or any similar or related matter with respect to the Merger.
2.    Negative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably undertakes and agrees not to, directly or indirectly:
(a)    Sell, transfer, pledge, assign, encumber (or otherwise dispose of or hypothecate) any of its Shares or any interest therein or rights thereto; grant any proxy, power-of-attorney or other authorization or consent with respect to any of its Shares (other than as contemplated hereby); or deposit any of its Shares into a voting trust or enter into a voting agreement, arrangement or understanding with respect to any of his or her Shares;
(b)    Initiate or participate in, knowingly encourage or take any other action (or permit its Representatives to do any of the foregoing) that may facilitate, any inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information with respect to, assist or participate in any effort or attempt by any Person with respect to, or otherwise cooperate in any way with, any Takeover Proposal; or
(c)    take any action, or omit to take any action which may be taken without more than immaterial expense, that would restrict, limit or interfere with his or her obligations hereunder.
3.    Limitations; Termination. Sections 1 and 2 shall not be binding upon Stockholder if the Merger Agreement is amended to materially decrease the Merger Consideration or change the form thereof. This Agreement shall automatically terminate upon the termination of the Merger Agreement in accordance with its terms; provided, that nothing in this Agreement shall relieve any party from liability for any fraud or willful breach by it of this Agreement prior to the effectiveness of such termination.
4.    Representations and Warranties. Stockholder hereby represents and warrants to Parent and Merger Sub that (a) this Agreement has been duly executed and delivered by Stockholder and constitutes the valid and legally binding obligations of Stockholder, enforceable against Stockholder in accordance with its terms; (b) Stockholder solely owns beneficially the Shares, free and clear of any Liens, and such Shares represent the only Company Securities owned by Stockholder; and (c) except for this Agreement, Stockholder is not a party to any option, warrant, purchase right, or other Contract that could require Stockholder to sell, transfer or otherwise dispose of any equity or ownership interest in the Company or any of its Subsidiaries.     
5.    Miscellaneous.
(a)    This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such State, without regard to any conflicts of law principles that would require the application of any other Law. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS





AGREEMENT. Each of the parties irrevocably consents to submit itself to the jurisdiction of the United States District Court for Delaware (and if such court shall decline to accept jurisdiction over any particular matter, the Supreme Court of the State of Delaware located in the County of Wilmington) in the event any dispute or Legal Action arises out of or relates to this Agreement.
(b)    The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by Stockholder. It is accordingly agreed that Parent shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specifically enforce this Agreement.
(c)    All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given to a party when (i) delivered by hand or by a nationally recognized overnight courier service (costs prepaid) or (ii) sent by registered or certified mail, postage prepaid, return receipt requested, in each case to the following: (A) if to Parent or Merger Sub, to the address set forth in the Merger Agreement, and (B) if to Stockholder, to the address set forth on the signature page hereto.

(d)    This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party (including, by operation of Law or in connection with a merger or sale of substantially all the assets, stock or membership interests of such party) without the prior written consent of the other parties hereto; provided, that Parent may assign all or any of its rights and obligations hereunder to an Affiliate without any need to obtain consent. This Agreement may not be amended except by an instrument in writing signed by each party hereto. This Agreement contains the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings relating to such subject matter. Whether or not the Merger or any other transaction contemplated by the Merger Agreement is consummated, each party will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement. This Agreement may be executed in counterparts, each of which shall be considered one and the same agreement, and shall become effective when all such counterparts have been signed by each of the parties and delivered to the other parties.
(e)    If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof and all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
(f)    Stockholder is not making any agreement or understanding herein in his or her capacity as a director or officer of the Company. Stockholder signs solely in his or her capacity as the beneficial owner of the Shares and nothing herein shall limit or affect any actions taken by Stockholder in his or her capacity as an officer or director of the Company to the extent permitted by the Merger Agreement.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.





OPEN TEXT CORPORATION


By:        /s/ Gordon A. Davies
Name: Gordon A. Davies
Title: Chief Legal Officer and Corporate Secretary
EPIC ACQUISITION SUB INC.


By:      /s/ Gordon A. Davies               
Name: Gordon A. Davies
Title: Secretary
STOCKHOLDER



          /s/ Paul D. Lapides
Name: Paul D. Lapides
Shares of Stockholder

38,750 shares of Company Common Stock

Notice Address of Stockholder
6025 The Corners Parkway
Suite 100
Norcross, Georgia 30092
Attn: Paul D. Lapides

with a copy (which shall not constitute notice) to:

Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
Attention: Larry W. Shackelford
 
 



EX-99.5 5 exhibit5.htm EXHIBIT 5 VOTING AGREEMENT, DATED AS OF MAY 1, 2012, AMONG OPEN TEXT CORPORATION, EPIC ACQUISITION SUB INC. AND RICHARD J. BERMAN exhibit 5


Exhibit 5

VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of May 1, 2012, is entered into by and among OPEN TEXT CORPORATION, a corporation incorporated pursuant to the laws of Canada (“Parent”), EPIC ACQUISITION SUB INC., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and the Person named under the heading “Stockholder” on the signature page hereto (“Stockholder”). Capitalized terms not defined herein have the meanings given to such terms in the Agreement and Plan of Merger (the “Merger Agreement”) to be entered into substantially in the form provided to Stockholder, by and among Parent, Merger Sub and EasyLink Services International Corporation, a Delaware corporation (the “Company”).
RECITALS
A.Stockholder is the beneficial owner of the shares of Company Common Stock set forth next to Stockholder's name on the signature page to this Agreement (together with any other shares of Company Common Stock or any other voting securities of the Company hereafter acquired or beneficially owned by Stockholder, and together with any and all Stockholder Rights associated with all of the foregoing, the “Shares”).
B.Parent, Merger Sub and the Company propose to enter into the Merger Agreement which provides for Merger Sub to merge with and into the Company (the “Merger”), on the terms and subject to the conditions set forth in the Merger Agreement. To induce Parent to enter into and perform its obligations under the Merger Agreement, Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the representations warranties, and agreements set forth herein and in the Merger Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1.    Affirmative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably:
(a)    Agrees to vote all of its Shares entitled to be voted at the Company Stockholders Meeting, together with any adjournment or postponement thereof (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(b)    Agrees that if any additional stockholders' meeting of the Company (or any adjournment or postponement thereof) is called, or any written consents are necessary or advisable in connection with the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger, to execute such written consents and to vote all of its Shares entitled to be voted at such meeting, together with any adjournment or postponement thereof, (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(c)    Agrees to (i) vote all of its Shares entitled to be voted at any stockholders' meeting of the Company (including, without limitation, the Company Stockholders Meeting), together with any adjournment or postponement thereof, (or to cause the same to be voted) against any (A) Takeover Proposal, (B) reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company not contemplated by the Merger Agreement or (C) corporate action (other than an adjournment of the Company Stockholders Meeting recommended by the Company Board) the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the Merger or any other transaction contemplated by the Merger Agreement and (ii) execute any written consents providing for the rejection of any of the actions described in clause (i) of this Section 1(c);
(d)    Agrees that Parent and the Company may publish and disclose facts concerning Stockholder's





identity, ownership of Shares and execution of this Agreement in all documents and schedules filed with the SEC or any other applicable Governmental Entities and communications to stockholders of the Company related to the Merger Agreement (or any amended version thereof) and the Merger;
(e)    Appoints Parent, and each of its corporate officers, as the sole, exclusive, true and lawful proxies of Stockholder, to (i) vote the Shares as proxies, for and in the name, place and stead of Stockholder at the Company Stockholders Meeting or any other stockholders' meeting of the Company called in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal and (ii) execute any written consents deemed necessary or advisable in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal, if Stockholder fails to vote such Shares or execute such written consents in accordance with this Agreement. This proxy is irrevocable and is coupled with an interest; and
(f)    Waives and agrees not to assert any rights which it may have with respect to any of its Shares as to appraisal, dissent or any similar or related matter with respect to the Merger.
2.    Negative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably undertakes and agrees not to, directly or indirectly:
(a)    Sell, transfer, pledge, assign, encumber (or otherwise dispose of or hypothecate) any of its Shares or any interest therein or rights thereto; grant any proxy, power-of-attorney or other authorization or consent with respect to any of its Shares (other than as contemplated hereby); or deposit any of its Shares into a voting trust or enter into a voting agreement, arrangement or understanding with respect to any of his or her Shares;
(b)    Initiate or participate in, knowingly encourage or take any other action (or permit its Representatives to do any of the foregoing) that may facilitate, any inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information with respect to, assist or participate in any effort or attempt by any Person with respect to, or otherwise cooperate in any way with, any Takeover Proposal; or
(c)    take any action, or omit to take any action which may be taken without more than immaterial expense, that would restrict, limit or interfere with his or her obligations hereunder.
3.    Limitations; Termination. Sections 1 and 2 shall not be binding upon Stockholder if the Merger Agreement is amended to materially decrease the Merger Consideration or change the form thereof. This Agreement shall automatically terminate upon the termination of the Merger Agreement in accordance with its terms; provided, that nothing in this Agreement shall relieve any party from liability for any fraud or willful breach by it of this Agreement prior to the effectiveness of such termination.
4.    Representations and Warranties. Stockholder hereby represents and warrants to Parent and Merger Sub that (a) this Agreement has been duly executed and delivered by Stockholder and constitutes the valid and legally binding obligations of Stockholder, enforceable against Stockholder in accordance with its terms; (b) Stockholder solely owns beneficially the Shares, free and clear of any Liens, and such Shares represent the only Company Securities owned by Stockholder; and (c) except for this Agreement, Stockholder is not a party to any option, warrant, purchase right, or other Contract that could require Stockholder to sell, transfer or otherwise dispose of any equity or ownership interest in the Company or any of its Subsidiaries.     
5.    Miscellaneous.
(a)    This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such State, without regard to any conflicts of law principles that would require the application of any other Law. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS





AGREEMENT. Each of the parties irrevocably consents to submit itself to the jurisdiction of the United States District Court for Delaware (and if such court shall decline to accept jurisdiction over any particular matter, the Supreme Court of the State of Delaware located in the County of Wilmington) in the event any dispute or Legal Action arises out of or relates to this Agreement.
(b)    The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by Stockholder. It is accordingly agreed that Parent shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specifically enforce this Agreement.
(c)    All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given to a party when (i) delivered by hand or by a nationally recognized overnight courier service (costs prepaid) or (ii) sent by registered or certified mail, postage prepaid, return receipt requested, in each case to the following: (A) if to Parent or Merger Sub, to the address set forth in the Merger Agreement, and (B) if to Stockholder, to the address set forth on the signature page hereto.

(d)    This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party (including, by operation of Law or in connection with a merger or sale of substantially all the assets, stock or membership interests of such party) without the prior written consent of the other parties hereto; provided, that Parent may assign all or any of its rights and obligations hereunder to an Affiliate without any need to obtain consent. This Agreement may not be amended except by an instrument in writing signed by each party hereto. This Agreement contains the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings relating to such subject matter. Whether or not the Merger or any other transaction contemplated by the Merger Agreement is consummated, each party will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement. This Agreement may be executed in counterparts, each of which shall be considered one and the same agreement, and shall become effective when all such counterparts have been signed by each of the parties and delivered to the other parties.
(e)    If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof and all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
(f)    Stockholder is not making any agreement or understanding herein in his or her capacity as a director or officer of the Company. Stockholder signs solely in his or her capacity as the beneficial owner of the Shares and nothing herein shall limit or affect any actions taken by Stockholder in his or her capacity as an officer or director of the Company to the extent permitted by the Merger Agreement.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.





OPEN TEXT CORPORATION


By:        /s/ Gordon A. Davies
Name: Gordon A. Davies
Title: Chief Legal Officer and Corporate Secretary
EPIC ACQUISITION SUB INC.


By:      /s/ Gordon A. Davies               
Name: Gordon A. Davies
Title: Secretary
STOCKHOLDER



         /s/ Richard J. Berman
Name: Richard J. Berman
Shares of Stockholder

77,006 shares of Company Common Stock

Notice Address of Stockholder
6025 The Corners Parkway
Suite 100
Norcross, Georgia 30092
Attn: Richard J. Berman

with a copy (which shall not constitute notice) to:

Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
Attention: Larry W. Shackelford
 
 



EX-99.6 6 exhibit6.htm EXHIBIT 6 VOTING AGREEMENT, DATED AS OF MAY 1, 2012, AMONG OPEN TEXT CORPORATION, EPIC ACQUISITION SUB INC. AND KIM D. COOKE exhibit 6


Exhibit 6

VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of May 1, 2012, is entered into by and among OPEN TEXT CORPORATION, a corporation incorporated pursuant to the laws of Canada (“Parent”), EPIC ACQUISITION SUB INC., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and the Person named under the heading “Stockholder” on the signature page hereto (“Stockholder”). Capitalized terms not defined herein have the meanings given to such terms in the Agreement and Plan of Merger (the “Merger Agreement”) to be entered into substantially in the form provided to Stockholder, by and among Parent, Merger Sub and EasyLink Services International Corporation, a Delaware corporation (the “Company”).
RECITALS
A.Stockholder is the beneficial owner of the shares of Company Common Stock set forth next to Stockholder's name on the signature page to this Agreement (together with any other shares of Company Common Stock or any other voting securities of the Company hereafter acquired or beneficially owned by Stockholder, and together with any and all Stockholder Rights associated with all of the foregoing, the “Shares”).
B.Parent, Merger Sub and the Company propose to enter into the Merger Agreement which provides for Merger Sub to merge with and into the Company (the “Merger”), on the terms and subject to the conditions set forth in the Merger Agreement. To induce Parent to enter into and perform its obligations under the Merger Agreement, Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the representations warranties, and agreements set forth herein and in the Merger Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1.    Affirmative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably:
(a)    Agrees to vote all of its Shares entitled to be voted at the Company Stockholders Meeting, together with any adjournment or postponement thereof (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(b)    Agrees that if any additional stockholders' meeting of the Company (or any adjournment or postponement thereof) is called, or any written consents are necessary or advisable in connection with the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger, to execute such written consents and to vote all of its Shares entitled to be voted at such meeting, together with any adjournment or postponement thereof, (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(c)    Agrees to (i) vote all of its Shares entitled to be voted at any stockholders' meeting of the Company (including, without limitation, the Company Stockholders Meeting), together with any adjournment or postponement thereof, (or to cause the same to be voted) against any (A) Takeover Proposal, (B) reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company not contemplated by the Merger Agreement or (C) corporate action (other than an adjournment of the Company Stockholders Meeting recommended by the Company Board) the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the Merger or any other transaction contemplated by the Merger Agreement and (ii) execute any written consents providing for the rejection of any of the actions described in clause (i) of this Section 1(c);
(d)    Agrees that Parent and the Company may publish and disclose facts concerning Stockholder's





identity, ownership of Shares and execution of this Agreement in all documents and schedules filed with the SEC or any other applicable Governmental Entities and communications to stockholders of the Company related to the Merger Agreement (or any amended version thereof) and the Merger;
(e)    Appoints Parent, and each of its corporate officers, as the sole, exclusive, true and lawful proxies of Stockholder, to (i) vote the Shares as proxies, for and in the name, place and stead of Stockholder at the Company Stockholders Meeting or any other stockholders' meeting of the Company called in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal and (ii) execute any written consents deemed necessary or advisable in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal, if Stockholder fails to vote such Shares or execute such written consents in accordance with this Agreement. This proxy is irrevocable and is coupled with an interest; and
(f)    Waives and agrees not to assert any rights which it may have with respect to any of its Shares as to appraisal, dissent or any similar or related matter with respect to the Merger.
2.    Negative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably undertakes and agrees not to, directly or indirectly:
(a)    Sell, transfer, pledge, assign, encumber (or otherwise dispose of or hypothecate) any of its Shares or any interest therein or rights thereto; grant any proxy, power-of-attorney or other authorization or consent with respect to any of its Shares (other than as contemplated hereby); or deposit any of its Shares into a voting trust or enter into a voting agreement, arrangement or understanding with respect to any of his or her Shares;
(b)    Initiate or participate in, knowingly encourage or take any other action (or permit its Representatives to do any of the foregoing) that may facilitate, any inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information with respect to, assist or participate in any effort or attempt by any Person with respect to, or otherwise cooperate in any way with, any Takeover Proposal; or
(c)    take any action, or omit to take any action which may be taken without more than immaterial expense, that would restrict, limit or interfere with his or her obligations hereunder.
3.    Limitations; Termination. Sections 1 and 2 shall not be binding upon Stockholder if the Merger Agreement is amended to materially decrease the Merger Consideration or change the form thereof. This Agreement shall automatically terminate upon the termination of the Merger Agreement in accordance with its terms; provided, that nothing in this Agreement shall relieve any party from liability for any fraud or willful breach by it of this Agreement prior to the effectiveness of such termination.
4.    Representations and Warranties. Stockholder hereby represents and warrants to Parent and Merger Sub that (a) this Agreement has been duly executed and delivered by Stockholder and constitutes the valid and legally binding obligations of Stockholder, enforceable against Stockholder in accordance with its terms; (b) Stockholder solely owns beneficially the Shares, free and clear of any Liens, and such Shares represent the only Company Securities owned by Stockholder; and (c) except for this Agreement, Stockholder is not a party to any option, warrant, purchase right, or other Contract that could require Stockholder to sell, transfer or otherwise dispose of any equity or ownership interest in the Company or any of its Subsidiaries.     
5.    Miscellaneous.
(a)    This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such State, without regard to any conflicts of law principles that would require the application of any other Law. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS





AGREEMENT. Each of the parties irrevocably consents to submit itself to the jurisdiction of the United States District Court for Delaware (and if such court shall decline to accept jurisdiction over any particular matter, the Supreme Court of the State of Delaware located in the County of Wilmington) in the event any dispute or Legal Action arises out of or relates to this Agreement.
(b)    The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by Stockholder. It is accordingly agreed that Parent shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specifically enforce this Agreement.
(c)    All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given to a party when (i) delivered by hand or by a nationally recognized overnight courier service (costs prepaid) or (ii) sent by registered or certified mail, postage prepaid, return receipt requested, in each case to the following: (A) if to Parent or Merger Sub, to the address set forth in the Merger Agreement, and (B) if to Stockholder, to the address set forth on the signature page hereto.

(d)    This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party (including, by operation of Law or in connection with a merger or sale of substantially all the assets, stock or membership interests of such party) without the prior written consent of the other parties hereto; provided, that Parent may assign all or any of its rights and obligations hereunder to an Affiliate without any need to obtain consent. This Agreement may not be amended except by an instrument in writing signed by each party hereto. This Agreement contains the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings relating to such subject matter. Whether or not the Merger or any other transaction contemplated by the Merger Agreement is consummated, each party will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement. This Agreement may be executed in counterparts, each of which shall be considered one and the same agreement, and shall become effective when all such counterparts have been signed by each of the parties and delivered to the other parties.
(e)    If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof and all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
(f)    Stockholder is not making any agreement or understanding herein in his or her capacity as a director or officer of the Company. Stockholder signs solely in his or her capacity as the beneficial owner of the Shares and nothing herein shall limit or affect any actions taken by Stockholder in his or her capacity as an officer or director of the Company to the extent permitted by the Merger Agreement.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.





OPEN TEXT CORPORATION


By:        /s/ Gordon A. Davies
Name: Gordon A. Davies
Title: Chief Legal Officer and Corporate Secretary
EPIC ACQUISITION SUB INC.


By:      /s/ Gordon A. Davies               
Name: Gordon A. Davies
Title: Secretary
STOCKHOLDER



        /s/ Kim D. Cooke
Name: Kim D. Cooke
Shares of Stockholder

140,395 shares of Company Common Stock

Notice Address of Stockholder
6025 The Corners Parkway
Suite 100
Norcross, Georgia 30092
Attn: Kim D. Cooke

with a copy (which shall not constitute notice) to:

Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
Attention: Larry W. Shackelford
 
 




EX-99.7 7 exhibit7.htm EXHIBIT 7 VOTING AGREEMENT, DATED AS OF MAY 1, 2012, AMONG OPEN TEXT CORPORATION, EPIC ACQUISITION SUB INC. AND PATRICK A. HARPER exhibit 7


Exhibit 7

VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of May 1, 2012, is entered into by and among OPEN TEXT CORPORATION, a corporation incorporated pursuant to the laws of Canada (“Parent”), EPIC ACQUISITION SUB INC., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and the Person named under the heading “Stockholder” on the signature page hereto (“Stockholder”). Capitalized terms not defined herein have the meanings given to such terms in the Agreement and Plan of Merger (the “Merger Agreement”) to be entered into substantially in the form provided to Stockholder, by and among Parent, Merger Sub and EasyLink Services International Corporation, a Delaware corporation (the “Company”).
RECITALS
A.Stockholder is the beneficial owner of the shares of Company Common Stock set forth next to Stockholder's name on the signature page to this Agreement (together with any other shares of Company Common Stock or any other voting securities of the Company hereafter acquired or beneficially owned by Stockholder, and together with any and all Stockholder Rights associated with all of the foregoing, the “Shares”).
B.Parent, Merger Sub and the Company propose to enter into the Merger Agreement which provides for Merger Sub to merge with and into the Company (the “Merger”), on the terms and subject to the conditions set forth in the Merger Agreement. To induce Parent to enter into and perform its obligations under the Merger Agreement, Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the representations warranties, and agreements set forth herein and in the Merger Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1.    Affirmative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably:
(a)    Agrees to vote all of its Shares entitled to be voted at the Company Stockholders Meeting, together with any adjournment or postponement thereof (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(b)    Agrees that if any additional stockholders' meeting of the Company (or any adjournment or postponement thereof) is called, or any written consents are necessary or advisable in connection with the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger, to execute such written consents and to vote all of its Shares entitled to be voted at such meeting, together with any adjournment or postponement thereof, (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(c)    Agrees to (i) vote all of its Shares entitled to be voted at any stockholders' meeting of the Company (including, without limitation, the Company Stockholders Meeting), together with any adjournment or postponement thereof, (or to cause the same to be voted) against any (A) Takeover Proposal, (B) reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company not contemplated by the Merger Agreement or (C) corporate action (other than an adjournment of the Company Stockholders Meeting recommended by the Company Board) the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the Merger or any other transaction contemplated by the Merger Agreement and (ii) execute any written consents providing for the rejection of any of the actions described in clause (i) of this Section 1(c);
(d)    Agrees that Parent and the Company may publish and disclose facts concerning Stockholder's





identity, ownership of Shares and execution of this Agreement in all documents and schedules filed with the SEC or any other applicable Governmental Entities and communications to stockholders of the Company related to the Merger Agreement (or any amended version thereof) and the Merger;
(e)    Appoints Parent, and each of its corporate officers, as the sole, exclusive, true and lawful proxies of Stockholder, to (i) vote the Shares as proxies, for and in the name, place and stead of Stockholder at the Company Stockholders Meeting or any other stockholders' meeting of the Company called in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal and (ii) execute any written consents deemed necessary or advisable in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal, if Stockholder fails to vote such Shares or execute such written consents in accordance with this Agreement. This proxy is irrevocable and is coupled with an interest; and
(f)    Waives and agrees not to assert any rights which it may have with respect to any of its Shares as to appraisal, dissent or any similar or related matter with respect to the Merger.
2.    Negative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably undertakes and agrees not to, directly or indirectly:
(a)    Sell, transfer, pledge, assign, encumber (or otherwise dispose of or hypothecate) any of its Shares or any interest therein or rights thereto; grant any proxy, power-of-attorney or other authorization or consent with respect to any of its Shares (other than as contemplated hereby); or deposit any of its Shares into a voting trust or enter into a voting agreement, arrangement or understanding with respect to any of his or her Shares;
(b)    Initiate or participate in, knowingly encourage or take any other action (or permit its Representatives to do any of the foregoing) that may facilitate, any inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information with respect to, assist or participate in any effort or attempt by any Person with respect to, or otherwise cooperate in any way with, any Takeover Proposal; or
(c)    take any action, or omit to take any action which may be taken without more than immaterial expense, that would restrict, limit or interfere with his or her obligations hereunder.
3.    Limitations; Termination. Sections 1 and 2 shall not be binding upon Stockholder if the Merger Agreement is amended to materially decrease the Merger Consideration or change the form thereof. This Agreement shall automatically terminate upon the termination of the Merger Agreement in accordance with its terms; provided, that nothing in this Agreement shall relieve any party from liability for any fraud or willful breach by it of this Agreement prior to the effectiveness of such termination.
4.    Representations and Warranties. Stockholder hereby represents and warrants to Parent and Merger Sub that (a) this Agreement has been duly executed and delivered by Stockholder and constitutes the valid and legally binding obligations of Stockholder, enforceable against Stockholder in accordance with its terms; (b) Stockholder solely owns beneficially the Shares, free and clear of any Liens, and such Shares represent the only Company Securities owned by Stockholder; and (c) except for this Agreement, Stockholder is not a party to any option, warrant, purchase right, or other Contract that could require Stockholder to sell, transfer or otherwise dispose of any equity or ownership interest in the Company or any of its Subsidiaries.     
5.    Miscellaneous.
(a)    This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such State, without regard to any conflicts of law principles that would require the application of any other Law. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS





AGREEMENT. Each of the parties irrevocably consents to submit itself to the jurisdiction of the United States District Court for Delaware (and if such court shall decline to accept jurisdiction over any particular matter, the Supreme Court of the State of Delaware located in the County of Wilmington) in the event any dispute or Legal Action arises out of or relates to this Agreement.
(b)    The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by Stockholder. It is accordingly agreed that Parent shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specifically enforce this Agreement.
(c)    All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given to a party when (i) delivered by hand or by a nationally recognized overnight courier service (costs prepaid) or (ii) sent by registered or certified mail, postage prepaid, return receipt requested, in each case to the following: (A) if to Parent or Merger Sub, to the address set forth in the Merger Agreement, and (B) if to Stockholder, to the address set forth on the signature page hereto.

(d)    This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party (including, by operation of Law or in connection with a merger or sale of substantially all the assets, stock or membership interests of such party) without the prior written consent of the other parties hereto; provided, that Parent may assign all or any of its rights and obligations hereunder to an Affiliate without any need to obtain consent. This Agreement may not be amended except by an instrument in writing signed by each party hereto. This Agreement contains the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings relating to such subject matter. Whether or not the Merger or any other transaction contemplated by the Merger Agreement is consummated, each party will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement. This Agreement may be executed in counterparts, each of which shall be considered one and the same agreement, and shall become effective when all such counterparts have been signed by each of the parties and delivered to the other parties.
(e)    If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof and all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
(f)    Stockholder is not making any agreement or understanding herein in his or her capacity as a director or officer of the Company. Stockholder signs solely in his or her capacity as the beneficial owner of the Shares and nothing herein shall limit or affect any actions taken by Stockholder in his or her capacity as an officer or director of the Company to the extent permitted by the Merger Agreement.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.





OPEN TEXT CORPORATION


By:        /s/ Gordon A. Davies
Name: Gordon A. Davies
Title: Chief Legal Officer and Corporate Secretary
EPIC ACQUISITION SUB INC.


By:      /s/ Gordon A. Davies               
Name: Gordon A. Davies
Title: Secretary
STOCKHOLDER



    /s/ Patrick A. Harper
Name: Patrick A. Harper
Shares of Stockholder

1,000 shares of Company Common Stock

Notice Address of Stockholder
6025 The Corners Parkway
Suite 100
Norcross, Georgia 30092
Attn: Patrick A. Harper

with a copy (which shall not constitute notice) to:

Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
Attention: Larry W. Shackelford



EX-99.8 8 exhibit8.htm EXHIBIT 8 VOTING AGREEMENT, DATED AS OF MAY 1, 2012, AMONG OPEN TEXT CORPORATION, EPIC ACQUISITION SUB INC. AND MARK J. HEROLD Exhibit 8


Exhibit 8

VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of May 1, 2012, is entered into by and among OPEN TEXT CORPORATION, a corporation incorporated pursuant to the laws of Canada (“Parent”), EPIC ACQUISITION SUB INC., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and the Person named under the heading “Stockholder” on the signature page hereto (“Stockholder”). Capitalized terms not defined herein have the meanings given to such terms in the Agreement and Plan of Merger (the “Merger Agreement”) to be entered into substantially in the form provided to Stockholder, by and among Parent, Merger Sub and EasyLink Services International Corporation, a Delaware corporation (the “Company”).
RECITALS
A.Stockholder is the beneficial owner of the shares of Company Common Stock set forth next to Stockholder's name on the signature page to this Agreement (together with any other shares of Company Common Stock or any other voting securities of the Company hereafter acquired or beneficially owned by Stockholder, and together with any and all Stockholder Rights associated with all of the foregoing, the “Shares”).
B.Parent, Merger Sub and the Company propose to enter into the Merger Agreement which provides for Merger Sub to merge with and into the Company (the “Merger”), on the terms and subject to the conditions set forth in the Merger Agreement. To induce Parent to enter into and perform its obligations under the Merger Agreement, Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the representations warranties, and agreements set forth herein and in the Merger Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1.    Affirmative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably:
(a)    Agrees to vote all of its Shares entitled to be voted at the Company Stockholders Meeting, together with any adjournment or postponement thereof (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(b)    Agrees that if any additional stockholders' meeting of the Company (or any adjournment or postponement thereof) is called, or any written consents are necessary or advisable in connection with the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger, to execute such written consents and to vote all of its Shares entitled to be voted at such meeting, together with any adjournment or postponement thereof, (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(c)    Agrees to (i) vote all of its Shares entitled to be voted at any stockholders' meeting of the Company (including, without limitation, the Company Stockholders Meeting), together with any adjournment or postponement thereof, (or to cause the same to be voted) against any (A) Takeover Proposal, (B) reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company not contemplated by the Merger Agreement or (C) corporate action (other than an adjournment of the Company Stockholders Meeting recommended by the Company Board) the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the Merger or any other transaction contemplated by the Merger Agreement and (ii) execute any written consents providing for the rejection of any of the actions described in clause (i) of this Section 1(c);
(d)    Agrees that Parent and the Company may publish and disclose facts concerning Stockholder's





identity, ownership of Shares and execution of this Agreement in all documents and schedules filed with the SEC or any other applicable Governmental Entities and communications to stockholders of the Company related to the Merger Agreement (or any amended version thereof) and the Merger;
(e)    Appoints Parent, and each of its corporate officers, as the sole, exclusive, true and lawful proxies of Stockholder, to (i) vote the Shares as proxies, for and in the name, place and stead of Stockholder at the Company Stockholders Meeting or any other stockholders' meeting of the Company called in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal and (ii) execute any written consents deemed necessary or advisable in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal, if Stockholder fails to vote such Shares or execute such written consents in accordance with this Agreement. This proxy is irrevocable and is coupled with an interest; and
(f)    Waives and agrees not to assert any rights which it may have with respect to any of its Shares as to appraisal, dissent or any similar or related matter with respect to the Merger.
2.    Negative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably undertakes and agrees not to, directly or indirectly:
(a)    Sell, transfer, pledge, assign, encumber (or otherwise dispose of or hypothecate) any of its Shares or any interest therein or rights thereto; grant any proxy, power-of-attorney or other authorization or consent with respect to any of its Shares (other than as contemplated hereby); or deposit any of its Shares into a voting trust or enter into a voting agreement, arrangement or understanding with respect to any of his or her Shares;
(b)    Initiate or participate in, knowingly encourage or take any other action (or permit its Representatives to do any of the foregoing) that may facilitate, any inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information with respect to, assist or participate in any effort or attempt by any Person with respect to, or otherwise cooperate in any way with, any Takeover Proposal; or
(c)    take any action, or omit to take any action which may be taken without more than immaterial expense, that would restrict, limit or interfere with his or her obligations hereunder.
3.    Limitations; Termination. Sections 1 and 2 shall not be binding upon Stockholder if the Merger Agreement is amended to materially decrease the Merger Consideration or change the form thereof. This Agreement shall automatically terminate upon the termination of the Merger Agreement in accordance with its terms; provided, that nothing in this Agreement shall relieve any party from liability for any fraud or willful breach by it of this Agreement prior to the effectiveness of such termination.
4.    Representations and Warranties. Stockholder hereby represents and warrants to Parent and Merger Sub that (a) this Agreement has been duly executed and delivered by Stockholder and constitutes the valid and legally binding obligations of Stockholder, enforceable against Stockholder in accordance with its terms; (b) Stockholder solely owns beneficially the Shares, free and clear of any Liens, and such Shares represent the only Company Securities owned by Stockholder; and (c) except for this Agreement, Stockholder is not a party to any option, warrant, purchase right, or other Contract that could require Stockholder to sell, transfer or otherwise dispose of any equity or ownership interest in the Company or any of its Subsidiaries.     
5.    Miscellaneous.
(a)    This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such State, without regard to any conflicts of law principles that would require the application of any other Law. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS





AGREEMENT. Each of the parties irrevocably consents to submit itself to the jurisdiction of the United States District Court for Delaware (and if such court shall decline to accept jurisdiction over any particular matter, the Supreme Court of the State of Delaware located in the County of Wilmington) in the event any dispute or Legal Action arises out of or relates to this Agreement.
(b)    The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by Stockholder. It is accordingly agreed that Parent shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specifically enforce this Agreement.
(c)    All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given to a party when (i) delivered by hand or by a nationally recognized overnight courier service (costs prepaid) or (ii) sent by registered or certified mail, postage prepaid, return receipt requested, in each case to the following: (A) if to Parent or Merger Sub, to the address set forth in the Merger Agreement, and (B) if to Stockholder, to the address set forth on the signature page hereto.

(d)    This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party (including, by operation of Law or in connection with a merger or sale of substantially all the assets, stock or membership interests of such party) without the prior written consent of the other parties hereto; provided, that Parent may assign all or any of its rights and obligations hereunder to an Affiliate without any need to obtain consent. This Agreement may not be amended except by an instrument in writing signed by each party hereto. This Agreement contains the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings relating to such subject matter. Whether or not the Merger or any other transaction contemplated by the Merger Agreement is consummated, each party will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement. This Agreement may be executed in counterparts, each of which shall be considered one and the same agreement, and shall become effective when all such counterparts have been signed by each of the parties and delivered to the other parties.
(e)    If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof and all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
(f)    Stockholder is not making any agreement or understanding herein in his or her capacity as a director or officer of the Company. Stockholder signs solely in his or her capacity as the beneficial owner of the Shares and nothing herein shall limit or affect any actions taken by Stockholder in his or her capacity as an officer or director of the Company to the extent permitted by the Merger Agreement.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.





OPEN TEXT CORPORATION


By:        /s/ Gordon A. Davies
Name: Gordon A. Davies
Title: Chief Legal Officer and Corporate Secretary
EPIC ACQUISITION SUB INC.


By:      /s/ Gordon A. Davies               
Name: Gordon A. Davies
Title: Secretary
STOCKHOLDER



             /s/ Mark J. Herold
Name: Mark J. Herold
Shares of Stockholder

0 shares of Company Common Stock

Notice Address of Stockholder
6025 The Corners Parkway
Suite 100
Norcross, Georgia 30092
Attn: Mark J. Herold

with a copy (which shall not constitute notice) to:

Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
Attention: Larry W. Shackelford
 
 



EX-99.9 9 exhibit9.htm EXHIBIT 9 VOTING AGREEMENT, DATED AS OF MAY 1, 2012, AMONG OPEN TEXT CORPORATION, EPIC ACQUISITION SUB INC. AND KEVIN R. MALONEY exhibit 9


Exhibit 9

VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of May 1, 2012, is entered into by and among OPEN TEXT CORPORATION, a corporation incorporated pursuant to the laws of Canada (“Parent”), EPIC ACQUISITION SUB INC., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and the Person named under the heading “Stockholder” on the signature page hereto (“Stockholder”). Capitalized terms not defined herein have the meanings given to such terms in the Agreement and Plan of Merger (the “Merger Agreement”) to be entered into substantially in the form provided to Stockholder, by and among Parent, Merger Sub and EasyLink Services International Corporation, a Delaware corporation (the “Company”).
RECITALS
A.Stockholder is the beneficial owner of the shares of Company Common Stock set forth next to Stockholder's name on the signature page to this Agreement (together with any other shares of Company Common Stock or any other voting securities of the Company hereafter acquired or beneficially owned by Stockholder, and together with any and all Stockholder Rights associated with all of the foregoing, the “Shares”).
B.Parent, Merger Sub and the Company propose to enter into the Merger Agreement which provides for Merger Sub to merge with and into the Company (the “Merger”), on the terms and subject to the conditions set forth in the Merger Agreement. To induce Parent to enter into and perform its obligations under the Merger Agreement, Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the representations warranties, and agreements set forth herein and in the Merger Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1.    Affirmative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably:
(a)    Agrees to vote all of its Shares entitled to be voted at the Company Stockholders Meeting, together with any adjournment or postponement thereof (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(b)    Agrees that if any additional stockholders' meeting of the Company (or any adjournment or postponement thereof) is called, or any written consents are necessary or advisable in connection with the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger, to execute such written consents and to vote all of its Shares entitled to be voted at such meeting, together with any adjournment or postponement thereof, (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(c)    Agrees to (i) vote all of its Shares entitled to be voted at any stockholders' meeting of the Company (including, without limitation, the Company Stockholders Meeting), together with any adjournment or postponement thereof, (or to cause the same to be voted) against any (A) Takeover Proposal, (B) reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company not contemplated by the Merger Agreement or (C) corporate action (other than an adjournment of the Company Stockholders Meeting recommended by the Company Board) the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the Merger or any other transaction contemplated by the Merger Agreement and (ii) execute any written consents providing for the rejection of any of the actions described in clause (i) of this Section 1(c);
(d)    Agrees that Parent and the Company may publish and disclose facts concerning Stockholder's





identity, ownership of Shares and execution of this Agreement in all documents and schedules filed with the SEC or any other applicable Governmental Entities and communications to stockholders of the Company related to the Merger Agreement (or any amended version thereof) and the Merger;
(e)    Appoints Parent, and each of its corporate officers, as the sole, exclusive, true and lawful proxies of Stockholder, to (i) vote the Shares as proxies, for and in the name, place and stead of Stockholder at the Company Stockholders Meeting or any other stockholders' meeting of the Company called in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal and (ii) execute any written consents deemed necessary or advisable in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal, if Stockholder fails to vote such Shares or execute such written consents in accordance with this Agreement. This proxy is irrevocable and is coupled with an interest; and
(f)    Waives and agrees not to assert any rights which it may have with respect to any of its Shares as to appraisal, dissent or any similar or related matter with respect to the Merger.
2.    Negative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably undertakes and agrees not to, directly or indirectly:
(a)    Sell, transfer, pledge, assign, encumber (or otherwise dispose of or hypothecate) any of its Shares or any interest therein or rights thereto; grant any proxy, power-of-attorney or other authorization or consent with respect to any of its Shares (other than as contemplated hereby); or deposit any of its Shares into a voting trust or enter into a voting agreement, arrangement or understanding with respect to any of his or her Shares;
(b)    Initiate or participate in, knowingly encourage or take any other action (or permit its Representatives to do any of the foregoing) that may facilitate, any inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information with respect to, assist or participate in any effort or attempt by any Person with respect to, or otherwise cooperate in any way with, any Takeover Proposal; or
(c)    take any action, or omit to take any action which may be taken without more than immaterial expense, that would restrict, limit or interfere with his or her obligations hereunder.
3.    Limitations; Termination. Sections 1 and 2 shall not be binding upon Stockholder if the Merger Agreement is amended to materially decrease the Merger Consideration or change the form thereof. This Agreement shall automatically terminate upon the termination of the Merger Agreement in accordance with its terms; provided, that nothing in this Agreement shall relieve any party from liability for any fraud or willful breach by it of this Agreement prior to the effectiveness of such termination.
4.    Representations and Warranties. Stockholder hereby represents and warrants to Parent and Merger Sub that (a) this Agreement has been duly executed and delivered by Stockholder and constitutes the valid and legally binding obligations of Stockholder, enforceable against Stockholder in accordance with its terms; (b) Stockholder solely owns beneficially the Shares, free and clear of any Liens, and such Shares represent the only Company Securities owned by Stockholder; and (c) except for this Agreement, Stockholder is not a party to any option, warrant, purchase right, or other Contract that could require Stockholder to sell, transfer or otherwise dispose of any equity or ownership interest in the Company or any of its Subsidiaries.     
5.    Miscellaneous.
(a)    This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such State, without regard to any conflicts of law principles that would require the application of any other Law. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS





AGREEMENT. Each of the parties irrevocably consents to submit itself to the jurisdiction of the United States District Court for Delaware (and if such court shall decline to accept jurisdiction over any particular matter, the Supreme Court of the State of Delaware located in the County of Wilmington) in the event any dispute or Legal Action arises out of or relates to this Agreement.
(b)    The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by Stockholder. It is accordingly agreed that Parent shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specifically enforce this Agreement.
(c)    All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given to a party when (i) delivered by hand or by a nationally recognized overnight courier service (costs prepaid) or (ii) sent by registered or certified mail, postage prepaid, return receipt requested, in each case to the following: (A) if to Parent or Merger Sub, to the address set forth in the Merger Agreement, and (B) if to Stockholder, to the address set forth on the signature page hereto.

(d)    This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party (including, by operation of Law or in connection with a merger or sale of substantially all the assets, stock or membership interests of such party) without the prior written consent of the other parties hereto; provided, that Parent may assign all or any of its rights and obligations hereunder to an Affiliate without any need to obtain consent. This Agreement may not be amended except by an instrument in writing signed by each party hereto. This Agreement contains the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings relating to such subject matter. Whether or not the Merger or any other transaction contemplated by the Merger Agreement is consummated, each party will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement. This Agreement may be executed in counterparts, each of which shall be considered one and the same agreement, and shall become effective when all such counterparts have been signed by each of the parties and delivered to the other parties.
(e)    If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof and all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
(f)    Stockholder is not making any agreement or understanding herein in his or her capacity as a director or officer of the Company. Stockholder signs solely in his or her capacity as the beneficial owner of the Shares and nothing herein shall limit or affect any actions taken by Stockholder in his or her capacity as an officer or director of the Company to the extent permitted by the Merger Agreement.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.





OPEN TEXT CORPORATION


By:        /s/ Gordon A. Davies
Name: Gordon A. Davies
Title: Chief Legal Officer and Corporate Secretary
EPIC ACQUISITION SUB INC.


By:      /s/ Gordon A. Davies               
Name: Gordon A. Davies
Title: Secretary
STOCKHOLDER



     /s/ Kevin R. Maloney
Name: Kevin R. Maloney
Shares of Stockholder

20,000 shares of Company Common Stock

Notice Address of Stockholder
6025 The Corners Parkway
Suite 100
Norcross, Georgia 30092
Attn: Kevin R. Maloney

with a copy (which shall not constitute notice) to:

Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
Attention: Larry W. Shackelford



EX-99.10 10 exhibit10.htm EXHIBIT 10 VOTING AGREEMENT, DATED AS OF MAY 1, 2012, AMONG OPEN TEXT CORPORATION, EPIC ACQUISITION SUB INC. AND GLEN E. SHIPLEY exhibit 10


Exhibit 10

VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of May 1, 2012, is entered into by and among OPEN TEXT CORPORATION, a corporation incorporated pursuant to the laws of Canada (“Parent”), EPIC ACQUISITION SUB INC., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and the Person named under the heading “Stockholder” on the signature page hereto (“Stockholder”). Capitalized terms not defined herein have the meanings given to such terms in the Agreement and Plan of Merger (the “Merger Agreement”) to be entered into substantially in the form provided to Stockholder, by and among Parent, Merger Sub and EasyLink Services International Corporation, a Delaware corporation (the “Company”).
RECITALS
A.Stockholder is the beneficial owner of the shares of Company Common Stock set forth next to Stockholder's name on the signature page to this Agreement (together with any other shares of Company Common Stock or any other voting securities of the Company hereafter acquired or beneficially owned by Stockholder, and together with any and all Stockholder Rights associated with all of the foregoing, the “Shares”).
B.Parent, Merger Sub and the Company propose to enter into the Merger Agreement which provides for Merger Sub to merge with and into the Company (the “Merger”), on the terms and subject to the conditions set forth in the Merger Agreement. To induce Parent to enter into and perform its obligations under the Merger Agreement, Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the representations warranties, and agreements set forth herein and in the Merger Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1.    Affirmative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably:
(a)    Agrees to vote all of its Shares entitled to be voted at the Company Stockholders Meeting, together with any adjournment or postponement thereof (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(b)    Agrees that if any additional stockholders' meeting of the Company (or any adjournment or postponement thereof) is called, or any written consents are necessary or advisable in connection with the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger, to execute such written consents and to vote all of its Shares entitled to be voted at such meeting, together with any adjournment or postponement thereof, (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(c)    Agrees to (i) vote all of its Shares entitled to be voted at any stockholders' meeting of the Company (including, without limitation, the Company Stockholders Meeting), together with any adjournment or postponement thereof, (or to cause the same to be voted) against any (A) Takeover Proposal, (B) reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company not contemplated by the Merger Agreement or (C) corporate action (other than an adjournment of the Company Stockholders Meeting recommended by the Company Board) the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the Merger or any other transaction contemplated by the Merger Agreement and (ii) execute any written consents providing for the rejection of any of the actions described in clause (i) of this Section 1(c);
(d)    Agrees that Parent and the Company may publish and disclose facts concerning Stockholder's





identity, ownership of Shares and execution of this Agreement in all documents and schedules filed with the SEC or any other applicable Governmental Entities and communications to stockholders of the Company related to the Merger Agreement (or any amended version thereof) and the Merger;
(e)    Appoints Parent, and each of its corporate officers, as the sole, exclusive, true and lawful proxies of Stockholder, to (i) vote the Shares as proxies, for and in the name, place and stead of Stockholder at the Company Stockholders Meeting or any other stockholders' meeting of the Company called in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal and (ii) execute any written consents deemed necessary or advisable in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal, if Stockholder fails to vote such Shares or execute such written consents in accordance with this Agreement. This proxy is irrevocable and is coupled with an interest; and
(f)    Waives and agrees not to assert any rights which it may have with respect to any of its Shares as to appraisal, dissent or any similar or related matter with respect to the Merger.
2.    Negative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably undertakes and agrees not to, directly or indirectly:
(a)    Sell, transfer, pledge, assign, encumber (or otherwise dispose of or hypothecate) any of its Shares or any interest therein or rights thereto; grant any proxy, power-of-attorney or other authorization or consent with respect to any of its Shares (other than as contemplated hereby); or deposit any of its Shares into a voting trust or enter into a voting agreement, arrangement or understanding with respect to any of his or her Shares;
(b)    Initiate or participate in, knowingly encourage or take any other action (or permit its Representatives to do any of the foregoing) that may facilitate, any inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information with respect to, assist or participate in any effort or attempt by any Person with respect to, or otherwise cooperate in any way with, any Takeover Proposal; or
(c)    take any action, or omit to take any action which may be taken without more than immaterial expense, that would restrict, limit or interfere with his or her obligations hereunder.
3.    Limitations; Termination. Sections 1 and 2 shall not be binding upon Stockholder if the Merger Agreement is amended to materially decrease the Merger Consideration or change the form thereof. This Agreement shall automatically terminate upon the termination of the Merger Agreement in accordance with its terms; provided, that nothing in this Agreement shall relieve any party from liability for any fraud or willful breach by it of this Agreement prior to the effectiveness of such termination.
4.    Representations and Warranties. Stockholder hereby represents and warrants to Parent and Merger Sub that (a) this Agreement has been duly executed and delivered by Stockholder and constitutes the valid and legally binding obligations of Stockholder, enforceable against Stockholder in accordance with its terms; (b) Stockholder solely owns beneficially the Shares, free and clear of any Liens, and such Shares represent the only Company Securities owned by Stockholder; and (c) except for this Agreement, Stockholder is not a party to any option, warrant, purchase right, or other Contract that could require Stockholder to sell, transfer or otherwise dispose of any equity or ownership interest in the Company or any of its Subsidiaries.     
5.    Miscellaneous.
(a)    This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such State, without regard to any conflicts of law principles that would require the application of any other Law. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS





AGREEMENT. Each of the parties irrevocably consents to submit itself to the jurisdiction of the United States District Court for Delaware (and if such court shall decline to accept jurisdiction over any particular matter, the Supreme Court of the State of Delaware located in the County of Wilmington) in the event any dispute or Legal Action arises out of or relates to this Agreement.
(b)    The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by Stockholder. It is accordingly agreed that Parent shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specifically enforce this Agreement.
(c)    All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given to a party when (i) delivered by hand or by a nationally recognized overnight courier service (costs prepaid) or (ii) sent by registered or certified mail, postage prepaid, return receipt requested, in each case to the following: (A) if to Parent or Merger Sub, to the address set forth in the Merger Agreement, and (B) if to Stockholder, to the address set forth on the signature page hereto.

(d)    This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party (including, by operation of Law or in connection with a merger or sale of substantially all the assets, stock or membership interests of such party) without the prior written consent of the other parties hereto; provided, that Parent may assign all or any of its rights and obligations hereunder to an Affiliate without any need to obtain consent. This Agreement may not be amended except by an instrument in writing signed by each party hereto. This Agreement contains the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings relating to such subject matter. Whether or not the Merger or any other transaction contemplated by the Merger Agreement is consummated, each party will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement. This Agreement may be executed in counterparts, each of which shall be considered one and the same agreement, and shall become effective when all such counterparts have been signed by each of the parties and delivered to the other parties.
(e)    If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof and all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
(f)    Stockholder is not making any agreement or understanding herein in his or her capacity as a director or officer of the Company. Stockholder signs solely in his or her capacity as the beneficial owner of the Shares and nothing herein shall limit or affect any actions taken by Stockholder in his or her capacity as an officer or director of the Company to the extent permitted by the Merger Agreement.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.





OPEN TEXT CORPORATION


By:        /s/ Gordon A. Davies
Name: Gordon A. Davies
Title: Chief Legal Officer and Corporate Secretary
EPIC ACQUISITION SUB INC.


By:      /s/ Gordon A. Davies               
Name: Gordon A. Davies
Title: Secretary
STOCKHOLDER



        /s/ Glen E. Shipley
Name: Glen E. Shipley
Shares of Stockholder

30,000 shares of Company Common Stock

Notice Address of Stockholder
6025 The Corners Parkway
Suite 100
Norcross, Georgia 30092
Attn: Glen E. Shipley

with a copy (which shall not constitute notice) to:

Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
Attention: Larry W. Shackelford
 
 



EX-99.11 11 exhibit11.htm EXHIBIT 11 VOTING AGREEMENT, DATED AS OF MAY 1, 2012, AMONG OPEN TEXT CORPORATION, EPIC ACQUISITION SUB INC. AND TERESA A. DEUEL exhibit 11


Exhibit 11

VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of May 1, 2012, is entered into by and among OPEN TEXT CORPORATION, a corporation incorporated pursuant to the laws of Canada (“Parent”), EPIC ACQUISITION SUB INC., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and the Person named under the heading “Stockholder” on the signature page hereto (“Stockholder”). Capitalized terms not defined herein have the meanings given to such terms in the Agreement and Plan of Merger (the “Merger Agreement”) to be entered into substantially in the form provided to Stockholder, by and among Parent, Merger Sub and EasyLink Services International Corporation, a Delaware corporation (the “Company”).
RECITALS
A.Stockholder is the beneficial owner of the shares of Company Common Stock set forth next to Stockholder's name on the signature page to this Agreement (together with any other shares of Company Common Stock or any other voting securities of the Company hereafter acquired or beneficially owned by Stockholder, and together with any and all Stockholder Rights associated with all of the foregoing, the “Shares”).
B.Parent, Merger Sub and the Company propose to enter into the Merger Agreement which provides for Merger Sub to merge with and into the Company (the “Merger”), on the terms and subject to the conditions set forth in the Merger Agreement. To induce Parent to enter into and perform its obligations under the Merger Agreement, Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the representations warranties, and agreements set forth herein and in the Merger Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1.    Affirmative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably:
(a)    Agrees to vote all of its Shares entitled to be voted at the Company Stockholders Meeting, together with any adjournment or postponement thereof (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(b)    Agrees that if any additional stockholders' meeting of the Company (or any adjournment or postponement thereof) is called, or any written consents are necessary or advisable in connection with the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger, to execute such written consents and to vote all of its Shares entitled to be voted at such meeting, together with any adjournment or postponement thereof, (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(c)    Agrees to (i) vote all of its Shares entitled to be voted at any stockholders' meeting of the Company (including, without limitation, the Company Stockholders Meeting), together with any adjournment or postponement thereof, (or to cause the same to be voted) against any (A) Takeover Proposal, (B) reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company not contemplated by the Merger Agreement or (C) corporate action (other than an adjournment of the Company Stockholders Meeting recommended by the Company Board) the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the Merger or any other transaction contemplated by the Merger Agreement and (ii) execute any written consents providing for the rejection of any of the actions described in clause (i) of this Section 1(c);
(d)    Agrees that Parent and the Company may publish and disclose facts concerning Stockholder's identity, ownership of Shares and execution of this Agreement in all documents and schedules filed with the SEC or





any other applicable Governmental Entities and communications to stockholders of the Company related to the Merger Agreement (or any amended version thereof) and the Merger;
(e)    Appoints Parent, and each of its corporate officers, as the sole, exclusive, true and lawful proxies of Stockholder, to (i) vote the Shares as proxies, for and in the name, place and stead of Stockholder at the Company Stockholders Meeting or any other stockholders' meeting of the Company called in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal and (ii) execute any written consents deemed necessary or advisable in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal, if Stockholder fails to vote such Shares or execute such written consents in accordance with this Agreement. This proxy is irrevocable and is coupled with an interest; and
(f)    Waives and agrees not to assert any rights which it may have with respect to any of its Shares as to appraisal, dissent or any similar or related matter with respect to the Merger.
2.    Negative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably undertakes and agrees not to, directly or indirectly:
(a)    Sell, transfer, pledge, assign, encumber (or otherwise dispose of or hypothecate) any of its Shares or any interest therein or rights thereto; grant any proxy, power-of-attorney or other authorization or consent with respect to any of its Shares (other than as contemplated hereby); or deposit any of its Shares into a voting trust or enter into a voting agreement, arrangement or understanding with respect to any of his or her Shares;
(b)    Initiate or participate in, knowingly encourage or take any other action (or permit its Representatives to do any of the foregoing) that may facilitate, any inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information with respect to, assist or participate in any effort or attempt by any Person with respect to, or otherwise cooperate in any way with, any Takeover Proposal; or
(c)    take any action, or omit to take any action which may be taken without more than immaterial expense, that would restrict, limit or interfere with his or her obligations hereunder.
3.    Limitations; Termination. Sections 1 and 2 shall not be binding upon Stockholder if the Merger Agreement is amended to materially decrease the Merger Consideration or change the form thereof. This Agreement shall automatically terminate upon the termination of the Merger Agreement in accordance with its terms; provided, that nothing in this Agreement shall relieve any party from liability for any fraud or willful breach by it of this Agreement prior to the effectiveness of such termination.
4.    Representations and Warranties. Stockholder hereby represents and warrants to Parent and Merger Sub that (a) this Agreement has been duly executed and delivered by Stockholder and constitutes the valid and legally binding obligations of Stockholder, enforceable against Stockholder in accordance with its terms; (b) Stockholder solely owns beneficially the Shares, free and clear of any Liens, and such Shares represent the only Company Securities owned by Stockholder; and (c) except for this Agreement, Stockholder is not a party to any option, warrant, purchase right, or other Contract that could require Stockholder to sell, transfer or otherwise dispose of any equity or ownership interest in the Company or any of its Subsidiaries.     
5.    Miscellaneous.
(a)    This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such State, without regard to any conflicts of law principles that would require the application of any other Law. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT. Each of the parties irrevocably consents to submit itself to the jurisdiction of the United States





District Court for Delaware (and if such court shall decline to accept jurisdiction over any particular matter, the Supreme Court of the State of Delaware located in the County of Wilmington) in the event any dispute or Legal Action arises out of or relates to this Agreement.
(b)    The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by Stockholder. It is accordingly agreed that Parent shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specifically enforce this Agreement.
(c)    All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given to a party when (i) delivered by hand or by a nationally recognized overnight courier service (costs prepaid) or (ii) sent by registered or certified mail, postage prepaid, return receipt requested, in each case to the following: (A) if to Parent or Merger Sub, to the address set forth in the Merger Agreement, and (B) if to Stockholder, to the address set forth on the signature page hereto.

(d)    This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party (including, by operation of Law or in connection with a merger or sale of substantially all the assets, stock or membership interests of such party) without the prior written consent of the other parties hereto; provided, that Parent may assign all or any of its rights and obligations hereunder to an Affiliate without any need to obtain consent. This Agreement may not be amended except by an instrument in writing signed by each party hereto. This Agreement contains the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings relating to such subject matter. Whether or not the Merger or any other transaction contemplated by the Merger Agreement is consummated, each party will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement. This Agreement may be executed in counterparts, each of which shall be considered one and the same agreement, and shall become effective when all such counterparts have been signed by each of the parties and delivered to the other parties.
(e)    If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof and all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
(f)    Stockholder is not making any agreement or understanding herein in his or her capacity as a director or officer of the Company. Stockholder signs solely in his or her capacity as the beneficial owner of the Shares and nothing herein shall limit or affect any actions taken by Stockholder in his or her capacity as an officer or director of the Company to the extent permitted by the Merger Agreement.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.





OPEN TEXT CORPORATION


By:        /s/ Gordon A. Davies
Name: Gordon A. Davies
Title: Chief Legal Officer and Corporate Secretary
EPIC ACQUISITION SUB INC.


By:      /s/ Gordon A. Davies               
Name: Gordon A. Davies
Title: Secretary
STOCKHOLDER



     /s/ Teresa A. Deuel
Name: Teresa A. Deuel
Shares of Stockholder

20,000 shares of Company Common Stock

Notice Address of Stockholder
6025 The Corners Parkway
Suite 100
Norcross, Georgia 30092
Attn: Teresa A. Deuel

with a copy (which shall not constitute notice) to:

Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
Attention: Larry W. Shackelford



EX-99.12 12 exhibit12.htm EXHIBIT 12 VOTING AGREEMENT, DATED AS OF MAY 1, 2012, AMONG OPEN TEXT CORPORATION, EPIC ACQUISITION SUB INC. AND THOMAS J. STALLINGS exhibit 12


Exhibit 12

VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of May 1, 2012, is entered into by and among OPEN TEXT CORPORATION, a corporation incorporated pursuant to the laws of Canada (“Parent”), EPIC ACQUISITION SUB INC., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and the Person named under the heading “Stockholder” on the signature page hereto (“Stockholder”). Capitalized terms not defined herein have the meanings given to such terms in the Agreement and Plan of Merger (the “Merger Agreement”) to be entered into substantially in the form provided to Stockholder, by and among Parent, Merger Sub and EasyLink Services International Corporation, a Delaware corporation (the “Company”).
RECITALS
A.Stockholder is the beneficial owner of the shares of Company Common Stock set forth next to Stockholder's name on the signature page to this Agreement (together with any other shares of Company Common Stock or any other voting securities of the Company hereafter acquired or beneficially owned by Stockholder, and together with any and all Stockholder Rights associated with all of the foregoing, the “Shares”).
B.Parent, Merger Sub and the Company propose to enter into the Merger Agreement which provides for Merger Sub to merge with and into the Company (the “Merger”), on the terms and subject to the conditions set forth in the Merger Agreement. To induce Parent to enter into and perform its obligations under the Merger Agreement, Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the representations warranties, and agreements set forth herein and in the Merger Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1.    Affirmative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably:
(a)    Agrees to vote all of its Shares entitled to be voted at the Company Stockholders Meeting, together with any adjournment or postponement thereof (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(b)    Agrees that if any additional stockholders' meeting of the Company (or any adjournment or postponement thereof) is called, or any written consents are necessary or advisable in connection with the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger, to execute such written consents and to vote all of its Shares entitled to be voted at such meeting, together with any adjournment or postponement thereof, (or to cause the same to be voted) in favor of the adoption and approval of the Merger Agreement (or any amended version thereof) and the authorization of the Merger;
(c)    Agrees to (i) vote all of its Shares entitled to be voted at any stockholders' meeting of the Company (including, without limitation, the Company Stockholders Meeting), together with any adjournment or postponement thereof, (or to cause the same to be voted) against any (A) Takeover Proposal, (B) reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company not contemplated by the Merger Agreement or (C) corporate action (other than an adjournment of the Company Stockholders Meeting recommended by the Company Board) the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the Merger or any other transaction contemplated by the Merger Agreement and (ii) execute any written consents providing for the rejection of any of the actions described in clause (i) of this Section 1(c);
(d)    Agrees that Parent and the Company may publish and disclose facts concerning Stockholder's





identity, ownership of Shares and execution of this Agreement in all documents and schedules filed with the SEC or any other applicable Governmental Entities and communications to stockholders of the Company related to the Merger Agreement (or any amended version thereof) and the Merger;
(e)    Appoints Parent, and each of its corporate officers, as the sole, exclusive, true and lawful proxies of Stockholder, to (i) vote the Shares as proxies, for and in the name, place and stead of Stockholder at the Company Stockholders Meeting or any other stockholders' meeting of the Company called in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal and (ii) execute any written consents deemed necessary or advisable in connection with the consideration of the Merger Agreement (or any amended version thereof), the Merger or any Takeover Proposal, if Stockholder fails to vote such Shares or execute such written consents in accordance with this Agreement. This proxy is irrevocable and is coupled with an interest; and
(f)    Waives and agrees not to assert any rights which it may have with respect to any of its Shares as to appraisal, dissent or any similar or related matter with respect to the Merger.
2.    Negative Agreements. Unless and until the Merger Agreement is terminated in accordance with its terms, Stockholder hereby irrevocably undertakes and agrees not to, directly or indirectly:
(a)    Sell, transfer, pledge, assign, encumber (or otherwise dispose of or hypothecate) any of its Shares or any interest therein or rights thereto; grant any proxy, power-of-attorney or other authorization or consent with respect to any of its Shares (other than as contemplated hereby); or deposit any of its Shares into a voting trust or enter into a voting agreement, arrangement or understanding with respect to any of his or her Shares;
(b)    Initiate or participate in, knowingly encourage or take any other action (or permit its Representatives to do any of the foregoing) that may facilitate, any inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information with respect to, assist or participate in any effort or attempt by any Person with respect to, or otherwise cooperate in any way with, any Takeover Proposal; or
(c)    take any action, or omit to take any action which may be taken without more than immaterial expense, that would restrict, limit or interfere with his or her obligations hereunder.
3.    Limitations; Termination. Sections 1 and 2 shall not be binding upon Stockholder if the Merger Agreement is amended to materially decrease the Merger Consideration or change the form thereof. This Agreement shall automatically terminate upon the termination of the Merger Agreement in accordance with its terms; provided, that nothing in this Agreement shall relieve any party from liability for any fraud or willful breach by it of this Agreement prior to the effectiveness of such termination.
4.    Representations and Warranties. Stockholder hereby represents and warrants to Parent and Merger Sub that (a) this Agreement has been duly executed and delivered by Stockholder and constitutes the valid and legally binding obligations of Stockholder, enforceable against Stockholder in accordance with its terms; (b) Stockholder solely owns beneficially the Shares, free and clear of any Liens, and such Shares represent the only Company Securities owned by Stockholder; and (c) except for this Agreement, Stockholder is not a party to any option, warrant, purchase right, or other Contract that could require Stockholder to sell, transfer or otherwise dispose of any equity or ownership interest in the Company or any of its Subsidiaries.     
5.    Miscellaneous.
(a)    This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such State, without regard to any conflicts of law principles that would require the application of any other Law. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS





AGREEMENT. Each of the parties irrevocably consents to submit itself to the jurisdiction of the United States District Court for Delaware (and if such court shall decline to accept jurisdiction over any particular matter, the Supreme Court of the State of Delaware located in the County of Wilmington) in the event any dispute or Legal Action arises out of or relates to this Agreement.
(b)    The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by Stockholder. It is accordingly agreed that Parent shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specifically enforce this Agreement.
(c)    All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given to a party when (i) delivered by hand or by a nationally recognized overnight courier service (costs prepaid) or (ii) sent by registered or certified mail, postage prepaid, return receipt requested, in each case to the following: (A) if to Parent or Merger Sub, to the address set forth in the Merger Agreement, and (B) if to Stockholder, to the address set forth on the signature page hereto.

(d)    This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any party (including, by operation of Law or in connection with a merger or sale of substantially all the assets, stock or membership interests of such party) without the prior written consent of the other parties hereto; provided, that Parent may assign all or any of its rights and obligations hereunder to an Affiliate without any need to obtain consent. This Agreement may not be amended except by an instrument in writing signed by each party hereto. This Agreement contains the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings relating to such subject matter. Whether or not the Merger or any other transaction contemplated by the Merger Agreement is consummated, each party will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement. This Agreement may be executed in counterparts, each of which shall be considered one and the same agreement, and shall become effective when all such counterparts have been signed by each of the parties and delivered to the other parties.
(e)    If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof and all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
(f)    Stockholder is not making any agreement or understanding herein in his or her capacity as a director or officer of the Company. Stockholder signs solely in his or her capacity as the beneficial owner of the Shares and nothing herein shall limit or affect any actions taken by Stockholder in his or her capacity as an officer or director of the Company to the extent permitted by the Merger Agreement.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.





OPEN TEXT CORPORATION


By:        /s/ Gordon A. Davies
Name: Gordon A. Davies
Title: Chief Legal Officer and Corporate Secretary
EPIC ACQUISITION SUB INC.


By:      /s/ Gordon A. Davies               
Name: Gordon A. Davies
Title: Secretary
STOCKHOLDER



     /s/ Thomas J. Stallings
Name: Thomas J. Stallings
Shares of Stockholder

125,000 shares of Company Common Stock

Notice Address of Stockholder
6025 The Corners Parkway
Suite 100
Norcross, Georgia 30092
Attn: Thomas J. Stallings

with a copy (which shall not constitute notice) to:

Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
Attention: Larry W. Shackelford