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EXHIBIT 4.1.2
VOTING AGREEMENT RINZAI
This Voting Agreement is entered into as of July 29, 1997, by and
between Access Beyond, Inc., a Delaware corporation ("Access Beyond") and Rinzai
Limited ("Shareholder").
RECITALS
A. Access Beyond and Xxxxx Microcomputer Products, Inc., a Georgia
corporation ("Xxxxx"), have entered into an Agreement and Plan of Reorganization
of even date herewith (the "Merger Agreement", which term is deemed to include
all Exhibits and Schedules thereto), which provides (subject to the conditions
set forth therein) for the merger of a wholly-owned subsidiary of Access Beyond
("Newco") with and into Xxxxx in a reverse triangular merger (the "Merger"),
with Xxxxx to be the surviving corporation of the Merger. Capitalized terms used
but not otherwise defined in this Voting Agreement have the meanings ascribed to
such terms in the Merger Agreement.
B. As of the date hereof, Shareholder owns in the aggregate (including
shares held both beneficially and of record and other shares held either
beneficially or of record) the number of shares of the Common Stock, the Series
A Preferred Stock or the Series B Preferred Stock of Xxxxx set forth below
Shareholder's name on the signature page hereof (2,581,559 of such shares being
referred to herein as the "Subject Shares").
C. As a condition to the willingness of Access Beyond to enter into the
Merger Agreement, Access Beyond has required that Shareholder agree, and in
order to induce Access Beyond to enter into the Merger Agreement Shareholder has
agreed to enter into this Voting Agreement.
NOW, THEREFORE, the parties to this Voting Agreement, intending to be
legally bound, agree as follows:
1. RESTRICTIONS ON TRANSFER
1.1 NO DISPOSITION OF OR ENCUMBRANCES ON SUBJECT SHARES.
(a) Shareholder hereby covenants and agrees that prior to the
Expiration Date (as defined below), Shareholder will not, directly or
indirectly, (i) offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise dispose of or transfer (or announce any offer,
sale, offer of sale, contract of sale, or grant of any option to purchase or
other disposition or transfer of) any of the Subject Shares to any person or
entity (each, a "Person") other than Access Beyond, (ii) create, or permit to
exist any encumbrances on any of the Subject Shares or
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(iii) reduce its beneficial ownership of, interest in, or risk economic relating
to, any of the Subject Shares.
(b) As used in this Voting Agreement, the term "Expiration
Date" shall mean the earlier of (i) the date upon which the Merger Agreement is
validly terminated, (ii) the date upon which the Merger becomes effective, or
(iii) any waiver of either any closing condition in favor of Xxxxx or any
obligation of Access Beyond under or any amendment of the Merger Agreement, or
the giving of any required consent of Xxxxx under Section 4.3 or any other
provision of the Merger Agreement unless such waiver, amendment or consent is
approved either by the Board of Directors of Xxxxx or the Transaction Committee
thereof established by the Xxxxx Board on July 28, 1997.
1.2 TRANSFER OF VOTING RIGHTS. Shareholder covenants and agrees that,
prior to the Expiration Date, Shareholder will not deposit any of the Subject
Shares into a voting trust or grant a proxy or enter into a voting agreement
with respect to any of the Subject Shares, except as contemplated hereby.
1.3 POST-EFFECTIVE TIME MARKET STANDOFF.
(a) Shareholder hereby covenants and agrees that, in the event
the Merger is consummated, for a period of ninety (90) days after the
Effective Time of the Merger (the "Stand-Off Period"), Shareholder will
not, directly or indirectly, (i) offer, sell, offer to sell, contract
to sell, pledge, grant any option to purchase or otherwise, dispose of
or transfer (or announce any offer, sale, offer of sale, contract of
sale or grant of any option to purchase or other disposition or
transfer of) any of the Access Beyond Securities (as defined below) to
any Person, (ii) create or permit to exist any encumbrances on any of
the Access Beyond Securities or (iii) reduce its beneficial ownership
of, interest in, or risk relating to, any of the Access Beyond
Securities.
(b) As used in this Voting Agreement, the term "Access Beyond
Securities" shall mean all shares of capital stock of Access Beyond
received by Shareholder in the Merger or otherwise acquired or held by
Shareholder. The Access Beyond Securities shall not include the shares
of Xxxxxx X. Xxxxx pledged to certain shareholders of Xxxxx pursuant to
that certain Stock Pledge Agreement of even date between Xxxxxx X.
Xxxxx and certain other shareholders of Xxxxx.
2. VOTING AGREEMENTS
2.1 PRE-TERMINATION VOTING AGREEMENT. Shareholder hereby agrees that,
prior to the Expiration Date, at any meeting of the shareholders of Xxxxx,
however called, and in any written action by consent of shareholders of Xxxxx,
unless otherwise directed in writing by Access Beyond, Shareholder shall vote
the Subject Shares:
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(i) in favor of the Merger, the execution and delivery by
Xxxxx of the Merger Agreement and the adoption and approval of the
terms thereof and in favor of each of the other actions contemplated by
the Merger Agreement and any action required in furtherance hereof and
thereof;
(ii) against any Acquisition Proposal (other than the Merger)
and against any action or agreement that would result in a breach of
any covenant or obligation of Xxxxx in the Merger Agreement; and
(iii) against any other action which is intended, or could
reasonably be expected to, materially impede, interfere with, delay,
postpone, or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement.
Prior to the Expiration Date, Shareholder shall not enter into any agreement or
understanding with any Person to vote or give instructions in any manner
inconsistent with clause "(i)", "(ii)", or "(iii)" of the preceding sentence.
2.2 PROXY. Contemporaneously with the execution of this Voting
Agreement, Shareholder delivers to Xxxxxx X. Xxxxx a proxy in the form attached
hereto as Exhibit A (the "Proxy").
3. WAIVER OF APPRAISAL RIGHTS
Shareholder hereby irrevocably waives and agrees with respect to the
Subject Shares not to assert any and all rights of appraisal or dissenters'
rights that Shareholder may have or hereafter acquire pursuant to Article 13 of
the Georgia Business Corporation Code or any other applicable laws in connection
with the Merger.
4. NOTICE OF SHAREHOLDER MEETINGS AND PROPOSED CONSENTS
For the purpose of effectively carrying out and furthering the intent
of this Voting Agreement and allowing Access Beyond to exercise its rights
hereunder, Shareholder agrees to give Access Beyond prompt written notice of any
meeting of the shareholders of Xxxxx or proposed written consent of the
shareholders of Xxxxx with respect to the matters covered by the Proxy (which
notice shall, in any event be given in a manner to be received not later than
two (2) days before such meeting or consent). Access Beyond acknowledges that
the obligations of this Section 4 will be satisfied with respect to a given
meeting or proposed written consent once it has received notice with respect to
such meeting or proposed written consent from any of Shareholder, Xxxxx or any
other shareholder of Xxxxx executing a similar voting agreement.
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5. MISCELLANEOUS
5.1 INDEMNIFICATION. Shareholder shall hold harmless and indemnify
Access Beyond from and against any and all claims, demands, actions, losses,
costs, damages, liabilities and expenses including, without limitation,
attorney's fees (collectively "Damages") (regardless of whether or not such
Damages relate to a third-party claim) which are incurred by Access Beyond to
the extent that such Damages arise from any breach of any covenant or obligation
of Shareholder contained herein, excluding any action or omission of the holder
of the Proxy.
5.2 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses; provided, however, that the Shareholder's
legal costs and expenses shall be promptly paid by Xxxxx.
5.3 NOTICES. All notices, approvals, consents, requests and other
communications that any party is required or elects to give hereunder shall be
in writing and shall be deemed to have been given (a) upon personal delivery
thereof, including by appropriate international courier service, five (5) days
after delivery to the courier or, if earlier, upon delivery against a signed
receipt therefor or (b) upon transmission by facsimile or telecopier, which
transmission is confirmed, in either case addressed to the party to be notified
at the address set forth below or at such other address as such party shall have
notified the other parties hereto, by notice given in conformity with this
Section 5.3:
(a) If to Access Beyond:
Access Beyond, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: President/CEO
Facsimile: (000) 000-0000
with a copy to:
Morrison, Cohen, Singer & Xxxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to Shareholder:
Rinzai Limited
x/x Xxxx Xxxxxxx
Xxxxxx Xxxx Xxxx
0
0
Xxxxxxxxx 2661
Attention: President
Facsimile: 000 00 000-0000
with a copy to:
Jackson, Tufts, Xxxx & Black
00 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
Any party hereto may change its address specified for notices herein by
designating a new address by notice in accordance with this Section 5.3.
5.4 SEVERABILITY. Any term or provision of this Voting Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Voting Agreement or affecting the validity or enforceability of any of the terms
or provisions of this Voting Agreement in any other jurisdiction. If any
provision of this Voting Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
5.5 ENTIRE AGREEMENT. This Voting Agreement and any documents delivered
by the parties in connection herewith constitute the entire agreement between
the parties with respect to the subject matter hereof and thereof and supersede
all prior agreements and understandings between the parties with respect
thereto.
5.6 AMENDMENT AND WAIVERS. Any term or provision of this Voting
Agreement may be amended, and the observance of any term of this Voting
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only by a writing signed by the parties to be
bound thereby. The waiver by a party of any breach hereof or default in the
performance hereof will not be deemed to constitute a waiver of any other
default or any succeeding breach or default.
5.7 ASSIGNMENT, BINDING EFFECT. Except as provided herein, neither this
Voting Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by either of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party. Subject to the
preceding sentence, this Voting Agreement shall be binding upon and shall inure
to the benefit of (i) Shareholder and its heirs, successor and assigns and (ii)
Access Beyond and its successors and assigns.
5.8 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Voting
Agreement are not performed in
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accordance with its specific terms or was otherwise breached. It is accordingly
agreed that Access Beyond shall be entitled to an injunction or injunctions to
prevent breaches of this Voting Agreement and to enforce specifically the terms
and provisions hereof, this being in addition to any other remedy to which
Access Beyond is entitled at law or in equity.
5.9 OTHER AGREEMENTS. Nothing in this Voting Agreement shall limit any
of the rights or remedies of Access Beyond or Shareholder, or any of the
obligations of either party under any Affiliate Agreement between Access Beyond
and Shareholder or any other agreement.
5.10 GOVERNING LAW. The internal laws of the State of Georgia
(irrespective of its choice of law principles) will govern the validity of this
Voting Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto.
5.11 COUNTERPARTS. This Voting Agreement may be executed in
counterparts, each of which will be an original as regards any party whose name
appears thereon and all of which together will constitute one and the same
agreement. This Voting Agreement will become binding when one or more
counterparts hereof, individually or taken together, bear the signatures of all
parties reflected hereon as signatories. Facsimile copies with signatories of
the parties to this Voting Agreement, or their duly authorized representatives,
shall be legally binding and enforceable. All such facsimile copies are declared
as originals and, accordingly, are admissible in any jurisdiction or tribunal
having jurisdiction over any matter relating to this Voting Agreement.
5.12 CONSTRUCTION. The language hereof will not be construed for or
against either party. A reference to a section or exhibit will mean a section
in, or an exhibit to, this Voting Agreement, unless otherwise explicitly set
forth. The titles and headings in this Voting Agreement are for reference
purposes only and will not in any manner limit the construction of this Voting
Agreement. For the purposes of such construction, this Voting Agreement will be
considered as a whole.
5.13 XXXXX SHAREHOLDER AGREEMENT. Shareholder acknowledges that the
execution hereof by Shareholder and the execution by ANY other shareholders of
Xxxxx of similar agreements in connection with the Merger, is not a violation
of, and, in particular, does not constitute a "Transfer" or "Disposition" under,
the Shareholder Agreement among the shareholders of Xxxxx dated April 16, 1996.
Shareholder further acknowledges and agrees that the Merger and the transactions
contemplated thereby and by this Voting Agreement do not constitute any
liquidation or redemption event applicable to the Subject Shares under the
Articles of Incorporation, Bylaws or other organizational documents of Xxxxx, or
contracts to which such Shareholder is a party.
[EXECUTION ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Access Beyond and Shareholder have caused this
Voting Agreement to be executed as of the date first written above.
ACCESS BEYOND, INC.
By:_______________________________________
Name:
Title:
SHAREHOLDER:
RINZAI LIMITED
By:_______________________________________
Name:_______________________, President
Address: x/x Xxxx Xxxxxxx
Xxxxxx Xxxx Xxxx
Xxxxxxxxx 0000
Facsimile: 000 00 000-0000
Address of Shareholder's
counsel, if any, for copy
of Notices under Section
5.3:
Jackson, Tufts, Xxxx & Black
00 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
Shares of Xxxxx Common Stock owned as of the date hereof: None
Shares of Xxxxx Series A Preferred Stock owned as of the date hereof: 2,817,500
Shares of Xxxxx Series B Preferred Stock owned as of the date hereof: None
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned shareholder of Xxxxx Microcomputer Products,
Inc., a Georgia corporation ("Xxxxx"), hereby irrevocably (to the fullest extent
permitted by law) appoints and constitutes Xxxxxx X. Xxxxx the attorney and
proxy of the undersigned with full power of substitution and resubstitution, to
the full extent of the undersigned's rights with respect to __________ shares of
capital stock of Xxxxx owned by the undersigned as of the date of this proxy,
which shares are specified below. (The number of shares of the capital stock of
Xxxxx referred to above are referred to as the "Shares"). Upon the execution
hereof, all prior proxies given by the undersigned with respect to any of the
Shares are hereby revoked, and no subsequent proxies will be given with respect
to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is
granted in connection with the Voting Agreement, dated as of the date hereof,
between Access Beyond, Inc. ("Access Beyond") and the undersigned (the "Voting
Agreement"), and is granted in consideration of Access Beyond entering into the
Agreement and Plan of Reorganization, dated as of the date hereof, between
Access Beyond and Xxxxx (the "Merger Agreement"). Capitalized terms used but not
otherwise defined in this proxy have the meanings ascribed to such terms in the
Voting Agreement.
The attorney and proxy named above are hereby empowered, and
shall exercise this proxy, to vote the Shares at any time prior to the
Expiration Date at any meeting of the shareholders of Xxxxx, however called, or
in any written action by consent of shareholders of Xxxxx:
(i) in favor of the Merger, the execution and delivery by
Xxxxx of the Merger Agreement and the adoption and approval of the
terms thereof and in favor of each of the other actions contemplated by
the Merger Agreement and any action required in furtherance hereof and
thereof; and
(ii) against any Acquisition Proposal (other than the Merger)
and against any action or agreement that would result in a breach of
any covenant or obligation of Xxxxx in the Merger Agreement.
The undersigned Shareholder may vote the Shares on all other
matters. This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Dated:_______________, 1997 __________________________________________
Name:
Number of Shares of Xxxxx
Common Stock owned as of
the date of this Proxy:___________________
Number of Shares of Xxxxx
Series A Preferred Stock owned
as of the date of this Proxy:_____________
Number of Shares of Xxxxx
Series B Preferred Stock owned
as of the date of this Proxy:_____________
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