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EXHIBIT 4.3.1
MARKET STAND-OFF AGREEMENT
This Market Stand-Off Agreement (this "Agreement") is entered into as
of July 29, 1997 by Access Beyond, Inc., a Delaware corporation ("Access
Beyond") and Kaifa Technology (H.K.) Limited ("Shareholder").
RECITALS
A. Access Beyond and Xxxxx Microcomputer Products, Inc., a Georgia
corporation ("Xxxxx"), are entering into an Agreement and Plan of Reorganization
of even date herewith (as amended from time to time, the "Merger Agreement"),
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 Agreement have the meanings ascribed to such term 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 and the Series B Preferred Stock of Xxxxx set forth below
Shareholder's name on the signature page hereof (all such shares, together with
any shares of the Common Stock, the Series A Preferred Stock, the Series B
Preferred Stock or other shares of capital stock of Xxxxx that may hereafter be
acquired by Shareholder, being referred to herein as the "Subject Shares").
C. As a condition to closing the Merger and other transactions
contemplated by the Merger Agreement, Access Beyond has required that
Shareholder agree to enter into this Agreement.
NOW, THEREFORE, the parties to this Agreement, intending to be legally
bound, agree as follows:
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1. MARKET STAND-OFF
(a) Shareholder hereby covenants and agrees that, prior to
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 encumbrance 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. As used in this 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.
(b) Shareholder hereby covenants and agrees that in the event
the Merger is consummated, for a period of one hundred eighty (180)
days after 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 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; provided that paragraph 1(a) and (b)
shall not apply to any of the Subject Shares pledged by Chestnut
Capital, LLC pursuant to a Pledge Agreement of even date securing the
Subordinated Convertible Notes, as amended, described in the Xxxxx
Disclosure Letter; and, provided further that this paragraph 1(b) shall
not apply to any sale of the Subject Shares by Xxxxxx X. Xxxxx in an
amount not to exceed $3.0 Million.
2. MISCELLANEOUS
2.1 SEVERABILITY. Any term or provision of this 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
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
2.2 ENTIRE AGREEMENT. This Agreement and any documents delivered by the
parties in connection herewith constitute the entire agreement between the
parties with respect to the
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subject matter hereof and thereof and supersedes all prior agreements and
understandings between the parties with respect thereto.
2.3 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 2.3:
(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:
At the address set forth below Shareholder's
signature on the signature page hereto
with a copy to:
Counsel for Shareholder, if any, at the
address shown on the signature page hereto
Any party hereto may change its address specified for notices herein by
designating a new address by notice in accordance with this Section 2.3.
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2.4 AMENDMENT AND WAIVERS. Any term or provision of this Agreement may
be amended, and the observance of any term of this 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.
2.5 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
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 Agreement shall be binding upon and shall inure to the
benefit of (i) Shareholder and his heirs, successors and assigns, and (ii)
Access Beyond and its successors and assigns.
2.6 OTHER AGREEMENTS. Nothing in this Agreement shall limit any of the
rights or remedies of Access Beyond of any of the obligations of Shareholder
under any Affiliate Agreement between Access Beyond and Shareholder or any other
instrument.
2.7 GOVERNING LAW. The internal laws of the State of Georgia
(irrespective of its choice of law principles) will govern the validity of this
Agreement, the construction of its terms, and the interpretation and enforcement
of the rights and duties of the parties hereto.
2.8 COUNTERPARTS. This 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 Agreement
will become binding when one or more counterparts hereof, individually or taken
together, bear the signature of all parties reflected hereon as signatories.
2.9 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" under, the Shareholder
Agreement among the shareholders of Xxxxx dated April 16, 1996. Shareholder
further acknowledges and
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agrees that the Merger and the transactions contemplated thereby and by this
Market Stand-Off 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.
IN WITNESS WHEREOF, Access Beyond and Shareholder have caused this
Market Stand-Off Agreement to be executed as of the date first written above.
ACCESS BEYOND, INC.
By:_______________________________________
Name:
Title:
SHAREHOLDER:
KAIFA TECHNOLOGY (H.K.) LIMITED
FOR AND ON BEHALF OF
KAIFA TECHNOLOGY (H.K.) LTD.
__________________________________________
Name: TAM Man Chi
Authorized Signature
Address of Shareholder's counsel,
if any, for copy of Notices under
Section 2.3:
_________________________________
_________________________________
Facsimile:_______________________
Number of Shares of Xxxxx
Common Stock owned as of
the date hereof: None
Number of Shares of Xxxxx
Series A Preferred Stock owned
as of the date hereof: 816,667
Number of Shares of Xxxxx
Series B Preferred Stock owned
as of the date hereof: None
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