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1
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LETTER OPINION
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EXTRACTED KEY WORDS
DAVOX MERGER AGREEMENT ESCROWED SHARES BAYLESS ANSWERSOFT ARBITRATION CLAUSE DISPUTE REPRESENTATIVES STOCKHOLDERS COURT COMPLAINT ESQUIRE STOCK ESCROW AGENT RESOLUTION CLAUSE POST-MERGER CLAIMS DAVOX ARBITRATE PROVISIONS COVERED CLAIMS DISPUTED CLAIMS WILMINGTON SET ASIDE JURISDICTION CLASS ASSERTS COMPLAINT CONTENDS ARBITRATION PROCESS ACQUISITION VEHICLE GOVERN DISPUTES INTERPRETATION |
C O U R T O F C H A N C E R Y
OF THE
S TATE OF D ELAWARE
LEO E. STRINE, J R.
"ICECHANCELLOR
March I,2000
A. Gilchrist Sparks, III, Esquire
Alan J. Stone, Esquire
Stephanie L. Nagel, Esquire
Morris Nichols Arsht & Tunnel1
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899-1347
Ronald A. Brown, Jr., Esquire
Prickett, Jones & Elliott
13 10 King Street
P.O. Box 1328
Wilmington, DE 19899
RE: Bavless v. Davox Corn.. C.A. No. 17560
Dear Counsel:
The representatives of the class of stockholders who owned shares of
capital stock of AnswerSoft, Inc. as of May 6, 1998 (the "Class") brought
this action to enforce the Class's alleged right to 238,445 shares of Davox
Corporation stock (the "Escrowed Shares"). The Escrowed Shares
constituted 10% of the total shares of Davox common stock which were to
be received by the Class in a merger of AnswerSoft and Davox.
Under the merger agreement and an escrow agreement, the Escrowed
Shares were set aside as security for certain post-merger claims Davox might
Bayless v. Davox, C.A. 17560
March 1,200O
Page 2
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2
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REPLY BRIEF OF DEFENDANT DAVOX IN SUPPORT OF MOTION TO DISMISS OR STAY
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EXTRACTED KEY WORDS
COURT AGREEMENT DAVOX ESCROW AGREEMENT ARBITRATION CLAUSE DISPUTE ESQ PARTIES DAVOX CORPORATION HIGH STREET DEFENDANT DAVOX SUPPORT MERGER AGREEMENT DELAWARE MOTION DISMISS FORUM SELECTION ESCROW SHARES JURISDICTION PLAIN LANGUAGE PROVISIONS CHANCERY WILMINGTON ADEQUATE REMEDY OPPOSITION ESCROW AGENT THIBEAULT MARTINEZ STREET TOWER BOSTON |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
JON W. BAYLESS and JOSEPH C.
ARAGONA,
Plaintiffs, )
>
V.
i C. A. No. 17560-NC
DAVOX CORPORATION and :,
DUKE ACQUISITION
CORPORATION, 1
Defendants. ) -_
REPLY BRIEF OF DEFENDANT DAVOX CORPORATION
IN SUPPORT OF ITS MOTION TO DISMISS OR STAY
PRICKETT, JONES & ELLIOTT
Ronald A. Brown, Jr., Esq.
1310 King Street
P.O. Box 1328
Wilmington, Del.aware 19899
(302) 888-6500
Attorneys for Defendant Davox
Corporation
Of Counsel:
TESTA, HURWITZ, & THIBEAULT, L.L.P.
David S. Godkin, Esq.
Carol E. Didget, Esq.
Janalyn M. Martinez, Esq.
125 High Street
High Street Tower
Boston. MA 02110
Dated: February 15, 2000
17143.1\108550v1
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3
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PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS OR STAY
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EXTRACTED KEY WORDS
MERGER AGREEMENT COURT DAVOX DEFENDANTS JURISDICTION PLAINTIFFS ESCROW DEL EQUITABLE RELIEF ARBITRATION CLAUSE MOTION CHANCERY ELF ATOCHEM STEELE DUKE ANSWERSOFT ESCROW AGENT ESCROW SHARES COMMONS CONDOMINIUM IBM CORN INDEMNIFICATION ARBITRATE FULBRIGHT JAWORSKI LLP APDOOUINIMINK SCH DIEBOLD COMPUTER LEAS PETTINARO CONST PARTRIDGE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IL
IN AND FOR NEW CASTLE COUNTY
JON W. BAYLESS and JOSEPH C.
ARAGONA,
Plaintiffs,
) Civil Action No. 17560-NC
V.
1
DAVOX CORPORATION and DUKE
ACQUISITION CORPORATION, 1
Defendants.
PLAINTIFFS' MEMORANDUM IN OPPOSITION
TO DEFENDANTS' MOTION TO DISMISS OR STAY
A. Gilchrist Sparks, III
Alan J. Stone
Stephanie L. Nagel
MORRIS, NICHOLS, ARSHT & TUNNELL
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899- 1347
(302) 658-9200
Attorneys for Plaintiffs
OF COUNSEL:
Mary Schaerdel Dietz
FULBRIGHT & JAWORSKI, LLP
600 Congress Avenue, Suite 2400
Austin, TX 78701
(512) 474-5201
February 3,200O
i.
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4
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OPENING BRIEF OF DEFENDANTS DAVOX AND DUKE ACQUISITION IN SUPPORT OF MOTION TO DISMISS
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EXTRACTED KEY WORDS
ARBITRATION PLAINTIFFS COURT MERGER AGREEMENT REMEDY DAVOX ADEQUATE LAW INCORPORATES DEFENDANTS EQUITY ESCROWED SHARES ARBITRATION CLAUSE CONTROVERSY DEL ARBITRATION PROVISION ARBITRATE LEGAL REMEDY JURISDICTION ANSWERSOFT COMPLAINT DUKE ACQUISITION HIGH STREET ENCOMPASSES MONETARY DAMAGES PUBLIC POLICY PETTINARO INDEMNIFICATION CLAIMS DECLARATORY JUDGMENT |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE -
IN AND FOR NEW CASTLE COUNTY
JON W. BAYLESS and JOSEPH C.
ARAGONA,
Plaintiffs, )
V. 1 C. A. No. 17560-NC
i
DAVOX CORPORATION and >
DUKE ACQUISITION
CORPORATION, ;
Defendants. )
OPENING BRIEF OF DEFENDANTS DAVOX CORPORATION AND DUKE
ACQUISITION CORPORATION IN
SUPPORT OF THEIR MOTION TO DISMISS OR STAY
PRICKETT, JONES & ELLIOTT
Ronald A. Brown, Jr., Esq.
1310 King Street
P.O. Box 1328
Wilmington, Delaware 19899
(302) 888-6500
Attorneys for Defendants Davox
Corporation and Duke Acquisition
Corporation
Of Counsel:
TESTA, HURWITZ, & THIBEAULT, L.L.P.
David S. Godkin, Esq.
Carol E. Didget, Esq.
Janalyn M. Martinez, Esq.
125 High Street
High Street Tower
Boston, MA 02110
Dated: January 20,2000
17133 1\106768vl
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5
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OPPOSITION TO PLAINTIFFS MOTION TO EXPEDITE PROCEEDINGS
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EXTRACTED KEY WORDS
EXPEDITE ESCROW EXPEDITED PROCEEDINGS IRREPARABLE HARM ESCROWED SHARES COMPLAINT DAVOX MOTION DEL EXHIBIT AGREEMENT HERETO COURT MERGER ANSWERSOFT DUKE REQUEST INJUNCTION ESCROW AGENT ALLEGATIONS INJURY EXPEDITED TREATMENT DEFENDANTS CORN SLIP DELAY LITIGATE COLORABLE CLAIM SEEKING |
2 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
I-~
11 ._.'
. ,.,
*,
JON W. BAYLESS and JOSEPH C. )I *_
ARAGONA, 11
11
Plaintiffs, :I:I ::
i "
V. :I C. A. No. 17560-NC ..-/
L.. `~8
:I .
DAVOX CORPORATION and 11
DUKE ACQUISITION 11
CORPORATION, :I:I
Defendants. :I11
OPPOSITION TO PLAINTIFFS' MOTION TO EXPEDITE PROCEEDINGS
Defendants Davox Corporati~on ("Davox") and Duke Acquisition Corporation
("Duke") hereby oppose the Motion to Expedite Proceedings filed by Plaintiffs Jon W.
Bayless and Joseph C. Aragona, on their own behalf and on behalf of all persons who
own shares of capital stock of AnswlzrSoft, Inc. ("AnswerSoft") as of May 6, 1998 (the
"Alleged Class"). Plaintiffs have wholly failed to demonstrate any irreparable harm
which they might suffer by proceeding under the Court's regular calendar and,
furthermore, Plaintiffs have delayed in filing and prosecuting this action, and therefore
should be barred from now requesting expedited proceedings.
STATEMENT OF THE CASE
On April 6, 1998, pursuant to the terms of an Amended and Restated Agreement
and Plan of Merger (the "Merger Agreement") among Davox, its wholly owned
subsidiary Duke, and AnswerSoft, .Duke was merged into Answer-Soft. On May 6, 1998,
in connection with the Merger, Davox, Duke, and Plaintiffs, as representatives of all
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6
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MOTION TO EXPEDITE PROCEEDINGS
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EXTRACTED KEY WORDS
SHARES ESCROW PLAINTIFFS MERGER COURT MERGER AGREEMENT EXPEDITE CHANCERY ANSWERSOFT MOTION EXPEDITE PROCEEDINGS LETTERS ESCROW AGENT DAVOX COMMON STRINE DELAWARE DEFENDANTS INDEMNIFICATION CLAIMS STOCK VOTE DISPOSE REASON MERITS BROWN REPRESENTING W/ENC ESQUIRE MARY SCHAERDEL DIETZ PURSUANT |
M ORRIS , N ICHOLS , A RSHT & T UNNELL
I 201 N ORTH M ARKET S TREET
P.O. Box 1347
W I L M I N G T O N . D E L A W A R E 19899-1347
T E L E P H O N E (302) 658-9200
TE-ECOPY (302) 658-3989
WG~TER'S DIRECT DIAL N UMBER :
(302)575-7276
December 3, 1999 ANDREW B.
DAVID A.
W A L T E R
The IHonorable Leo E. Strine, Jr.
Court of Chancery
1020 North King Street
Wilmington, Delaware 19801
Re: Bavless v. Davox Cornoration. C.A. No. 17560-NC
Dear Vice Chancellor Strine:
I write to request that the Court schedule a conference to consider the enclosed
motion to expedite in the captioned action. In this lawsuit, the plaintiffs, on behalf of the former
shareholders of AnswerSoft, Inc. ("AnswerSoft") seek to compel the defendant Davox Corporation
("Davox") to release certain shares of Davox that constitute a part of the consideration for a
between Davox and AnswerSoft that occurred last year. In connection with the merger, the shares
in d, spute were to be held in escrow and were to be used to satisfy possible legitimate
indemnification claims raised by Davox or, absent such indemnification claims, were to be released
to th.1: AnswerSoft shareholders. Davox has raised claims that we believe are not appropriate claims
for indemnification under the merger agreement between the parties, and we accordingly seek an
order compelling Davox to take all steps necessary to cause the release of the escrowed shares.
As set forth in our motion, each day that the Class is deprived of the use and
enjoyment of the escrowed shares, tlhe Class is irreparably harmed. The rights to hold, vote or
dispose OF the Davox shares on any given day are unique opportunities. Accordingly, we seek a
reasonably prompt trial on the merits so as to minimize the irreparable loss to the Class.
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7
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MOTION TO EXPEDITE PROCEEDINGS
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EXTRACTED KEY WORDS
SHARES DAVOX PLAINTIFFS MERGER AGREEMENT COURT EXPEDITE PROCEEDINGS ANSWERSOFT LETTERS MOTION STOCK ESCROW AGENT DEL SUFFICIENCY CHANCERY DEFENDANTS DAVOX COMMON COLORABLE CLAIM DELAWARE CASTLE COUNTY JON BAYLESS JOSEPH DUKE ACQUISITION CORPORATION ENTRY PURSUANT STOCKHOLDERS REPRESENTATIVES AMERICAN |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND F O R NEW CASTLE COUNTY
JON W. BAYLESS and JOSEPH C. :
ARAGONA, ..
:
Plaintiffs, : p,,: :,; :.:,, C1?7Ti
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8
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CLASS ACTION COMPLAINT
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EXTRACTED KEY WORDS
ESCROW SHARES DAVOX AGREEMENT MERGER AGREEMENT PLAINTIFFS ANSWERSOFT ESCROW AGENT INDEMNIFICATION REPRESENTATIVES ASSERT COMMON STOCK DEFENDANTS PURSUANT STOCKHOLDERS OBLIGATION ACTS LITIGATION DELIVERY LAW INSTRUCTIONS COUNSEL DELAWARE DUKE ACQUISITION CORPORATION BAYLESS ARAGONA CONNECTION PRIOR ABSENT COMPENSATE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
JON W. :BAYLESS and JOSEPH C. :
ARAGONA, ::
Plaintiffs, :.
V. C.A. No. j75'3 N(-,.
DAVOX CORPORATION and DUKE
ACQ1JISITION CORPORATION, . "
s . .
Defendants. I^.
c E
CLASS ACTION COMPLAINT
Plaintiffs, Jon W. Bayless and Joseph C. Aragona, on
their own behalf and on behalf of all persons who owned shares
of capital stock of AnswerSoft, Inc. ("AnswerSoft") as of May 6,
1998, (the "Class") for their Complaint, allege as follows:
NATURE OF THE ACTION
1. This is an action to compel defendant Davox
Corporation ("Davox") to take all necessary steps to cause
certain of its shares held in escrow to be released to the
Class.
2. Pursuant to the terms of an Amended and Restated
Agreement and Plan of Merger (the "Merger Agreement") among
Davox, its wholly owned subsidiary Duke Acquisition Corporation
(the "Company") and AnswerSoft dated April 6, 1998, AnswerSoft
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