Exhibit 4.1
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (the "Agreement") is made and entered into as
of this 24th day of August, 2001, by and among BIZ INTERACTIVE ZONE, INC.
("BIZ"), XXXXXX X. XXXXXXX, individually, XXXXXX XXXXX, as Trustee of the
Xxxxxxx Children's Trust 1998, WAVE SYSTEMS CORP., a Delaware corporation, and
JAW FINANCIAL, L.P., a California limited partnership (collectively, the "BIZ
Stockholders," individually a "BIZ Stockholder"), XXXX XXXX, individually, XXXX
XXXX, as Trustee of the XXXXXXX X. XXXX TRUST, the XXXXX XXXX TRUST, and the
XXXX AND XXXXXXXXX XXXX FAMILY TRUST, XXXXX XXXX, as Trustee of the XXXXX XXXX
AND XXXXX XXXX AS TRUST, and XXXXXX XXXX, as Trustee of the XXXXXX X. XXXX AND
XXXXXXXX X. XXXX LIVING TRUST (collectively, the "Litronic Stockholders,"
individually, a "Litronic Stockholder") and LITRONIC INC. (now, SSP Solutions,
Inc.) ("SSP").
R E C I T A L S
WHEREAS, BIZ, the BIZ Stockholders, the Litronic Stockholders and SSP,
along with Litronic Merger Corp., a Delaware corporation which is no longer in
existence, have previously entered into that certain Voting Agreement dated July
3, 2001 (a copy of which is attached hereto as Exhibit A and which shall be
referred to herein as the "Voting Purchase Agreement"); and
WHEREAS, the parties hereto desire to terminate the Voting Agreement.
NOW THEREFORE, for full and valuable consideration, and based upon the
preceding facts, and on the terms and conditions set forth below, the parties
hereto agree as follows:
1. INCORPORATION OF RECITALS.
The foregoing recitals are incorporated in this Agreement as if set
forth in full.
2. TERMINATION OF VOTING AGREEMENT.
Upon the execution of this Agreement, the Voting Agreement will be
automatically terminated and thereafter, null and void and of no force or
effect.
3. BINDING EFFECT ON SUCCESSORS AND ASSIGNS.
This Agreement and all the terms and provisions hereof, shall be binding
upon and shall inure to the benefit of the parties and their respective heirs,
legal representatives, successors and assigns.
4. FACSIMILE SIGNATURES.
This Agreement may be executed by facsimile signature and facsimile
signatures shall be fully binding and effective for all purposes and shall be
given the same effect as original signatures. If any party delivers a copy of
this Agreement containing a facsimile signature, such
party shall promptly forward an originally executed copy to the other party;
however, the failure by any party to so deliver an originally executed copy
shall not affect in any way the binding nature of such party's facsimile
signature.
5. COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which
shall be considered an original but all of which shall constitute one agreement.
6. INTERPRETATION.
Should any portion, word, clause, phrase, sentence or paragraph of this
Agreement be declared void or unenforceable, such portion shall be considered
independent and severable from the remainder, the validity of which shall remain
unaffected.
7. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties who
have executed it and supersedes any and all other agreements, understandings,
negotiations, or discussions, either oral or in writing, express or implied,
between the parties to this Agreement. Neither this Agreement nor any term or
provision hereof may be amended or modified in any manner without the express
prior written consent of the parties hereto.
8. GOVERNING LAW.
This Agreement is made and entered into in the State of California and
shall in all respects be interpreted, enforced and governed under the laws of
said State.
9. KNOWING AND VOLUNTARY AGREEMENT.
This Agreement in all respects has been voluntarily and knowingly
executed by the parties hereto. The parties each specifically represent that
they have been advised to consult their respective attorneys, been given the
opportunity to do so, and have consulted their attorneys to the extent they deem
necessary. The parties each further represent that they have carefully read and
fully understand all of the provisions of this Agreement and are voluntarily
entering into this Agreement.
[SIGNATURES ON FOLLOWING PAGES]
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The parties have executed this Termination Agreement as of the date
first above written.
"BIZ STOCKHOLDERS" JAW FINANCIAL, L.P.,
a California limited partnership
BY: JAW LENDING, INC.,
a California corporation,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx, Vice President
XXXXXXX CHILDREN'S TRUST 1998
By: /s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx, Trustee
WAVE SYSTEMS CORP.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx, Chief Executive
Officer
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, individually
"LITRONIC STOCKHOLDERS" XXXXXXX X. XXXX TRUST
By: /s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx, Trustee
XXXXX XXXX TRUST
By: /s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx, Trustee
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XXXX AND XXXXXXXXX XXXX
FAMILY TRUST
By: /s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx, Trustee
XXXXX XXXX AND XXXXX XXXX AS TRUST
By: /s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx, Trustee
XXXXXX X. XXXX AND XXXXXXXX X.
XXXX LIVING TRUST
By: /s/ Xxxxxx Xxxx
------------------------------------
Xxxxxx Xxxx, Trustee
/s/ Xxxx Xxxx
----------------------------------------
XXXX XXXX, individually
"BIZ" BIZ INTERACTIVE ZONE, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx, President, Chief
Financial Officer and Secretary
"SSP" SSP SOLUTIONS, INC.
a Delaware corporation
By: /s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx, Co-Chairman, Co-Chief
Executive
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx, Chief Financial
Officer
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EXHIBIT A
VOTING AGREEMENT
(attached hereto)
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VOTING AGREEMENT
This Voting Agreement is entered into this 3rd day of July, 2001, by and
among BIZ Interactive Zone, Inc. ("BIZ"), Xxxxxx Xxxxxxx individually, Xxxxxx
Xxxxx, as Trustee of the Xxxxxxx Children's Trust 1998, Wave Systems Corp., a
Delaware corporation, and JAW Financial, L.P., a California limited partnership
(collectively, the "BIZ Stockholders," individually a "BIZ Stockholder"), Xxxx
Xxxx individually, Xxxx Xxxx, as Trustee of the Xxxxxxx X. Xxxx Trust, the Xxxxx
Xxxx Trust and the Xxxx and Xxxxxxxxx Xxxx Family Trust, Xxxxx Xxxx, as Trustee
of the Xxxxx Xxxx and Xxxxx Xxxx AS Trust, and Xxxxxx Xxxx, as Trustee of the
Xxxxxx X. Xxxx and Xxxxxxxx X. Xxxx Living Trust (collectively, the "Litronic
Stockholders," individually, a "Litronic Stockholder"), Litronic Inc.
("Litronic"), and Litronic Merger Corp., a wholly owned subsidiary of Litronic
("Litronic Merger Corp.").
PRELIMINARY STATEMENTS
A. Concurrently with the execution of this Agreement, BIZ, Litronic and
Litronic Merger Corp. have entered into an Agreement and Plan of Reorganization
(as the same may be amended from time to time, the "Reorganization Agreement"),
providing for the merger of Litronic Merger Corp. with and into BIZ, with BIZ
being the surviving corporation (the "Merger"), which Merger is subject to the
approval of the holders of shares of capital stock of BIZ and Litronic as
provided in the Merger Agreement, the Nasdaq Rules, the California Corporations
Code, as amended and the Delaware General Corporation Law, as amended.
Capitalized terms not otherwise defined herein shall have the same meaning as
the Reorganization Agreement.
B. The BIZ Stockholders own the shares of capital stock of BIZ ("BIZ
Stock") set forth opposite their respective names on Exhibit A hereto. The
Litronic Stockholders own the shares of capital stock of Litronic ("Litronic
Stock") set forth opposite their respective names on Exhibit B hereto. As used
herein, the terms BIZ Stock and Litronic Stock, as the case may be, includes all
shares of such stock, as to which each BIZ Stockholder or Litronic Stockholder,
as applicable (at any time prior to the termination of this Agreement) is the
beneficial or record owner or is otherwise able to direct the voting thereof and
all securities issued or exchanged with respect to any such shares upon any
reclassification, recapitalization, reorganization, merger, consolidation,
spin-off, stock split, combination, stock or other dividend or any other change
in BIZ's or Litronic's capital structure, as applicable.
C. To induce Litronic and Litronic Merger Corp. to enter into the
Reorganization Agreement, BIZ has agreed, upon the terms and subject to the
conditions set forth herein, to cause BIZ Stockholders to execute this
Agreement.
D. To induce BIZ to enter into the Reorganization Agreement, Litronic
has agreed, upon the terms and subject to the conditions set forth herein, to
cause Litronic Stockholders to execute this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties to this
Agreement agree as follows:
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1. REPRESENTATIONS AND WARRANTIES.
1.1 BIZ STOCKHOLDERS. Each BIZ Stockholder, severally and not jointly,
represents and warrants to BIZ, the Litronic Stockholders, Litronic and Litronic
Merger Corp. that (i) except as set forth in Schedule 1 hereto, such BIZ
Stockholder is the beneficial and record owner of the BIZ Stock set forth on
Exhibit A hereto, free and clear of any mortgage, pledge, lien, security
interest, claim, restriction on voting or otherwise or other encumbrance, (ii)
such BIZ Stockholder has the sole right to vote such BIZ Stock free of any
mortgage, pledge, lien, security interest, claim, restriction on voting or
otherwise or other encumbrance (other than any general fiduciary obligation
imposed by law), (iii) such BIZ Stockholder has the full and unrestricted legal
power, authority and right to enter into, execute and deliver this Agreement
without the consent or approval of any other person, (iv) this Agreement is the
valid and binding agreement of such BIZ Stockholder and (v) no investment
banker, broker or finder is entitled to a commission or fee from such BIZ
Stockholder or BIZ in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of the BIZ Stockholder.
1.2 LITRONIC STOCKHOLDERS. Each Litronic Stockholder, severally and not
jointly, represents and warrants to BIZ that (i) except as set forth in Schedule
2 hereto, such Litronic Stockholder is the beneficial and record owner of the
Litronic Stock set forth on Exhibit B hereto, free and clear of any mortgage,
pledge, lien, security interest, claim, restriction on voting or otherwise or
other encumbrance, (ii) such Litronic Stockholder has the sole right to vote
such Litronic Stock free of any mortgage, pledge, lien, security interest,
claim, restriction on voting or otherwise or other encumbrance (other than any
general fiduciary obligation imposed by law), (iii) such Litronic Stockholder
has the full and unrestricted legal power, authority and right to enter into,
execute and deliver this Agreement without the consent or approval of any other
person, (iv) this Agreement is the valid and binding agreement of such Litronic
Stockholder and (v) no investment banker, broker or finder is entitled to a
commission or fee from such Litronic Stockholder or Litronic in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Litronic Stockholder.
2. BIZ'S REPRESENTATIONS AND WARRANTIES.
BIZ hereby represents and warrants to the BIZ Stockholders, the Litronic
Stockholders, Litronic, and Litronic Merger Corp., as the date hereof, that BIZ
has all requisite corporate power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by BIZ, and the consummation of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action on the part
of BIZ. This Agreement has been duly executed and delivered by BIZ and
constitutes a valid and binding obligation of BIZ enforceable in accordance with
its terms. The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, materially conflict with, or result in any material
violation of, or material default (with or without notice or lapse of time or
both) under any provision of, the certificate of incorporation or bylaws of BIZ,
any material trust agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise,
license, judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to BIZ or to BIZ's property or assets.
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3. LITRONIC'S AND LITRONIC MERGER CORP.'s Representations and Warranties.
Litronic and Litronic Merger Corp. hereby represent and warrant to the
Litronic Stockholders, BIZ and the BIZ Stockholders, as of the date hereof, that
each of Litronic and Litronic Merger Corp. has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by each of
Litronic and Litronic Merger Corp., and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary corporate action
on the part of each of Litronic and Litronic Merger Corp. This Agreement has
been duly executed and delivered by each of Litronic and Litronic Merger Corp.
and constitutes a valid and binding obligation of each of Litronic and Litronic
Merger Corp. enforceable in accordance with its terms. The execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not, materially
conflict with, or result in any material violation of, or material default (with
or without notice or lapse of time or both) under any provision of, the
certificates of incorporation or bylaws of each of Litronic and Litronic Merger
Corp., any material trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree, statute, law, ordinance,
rule or regulation applicable to each of Litronic and Litronic Merger Corp. or
to their respective property or assets.
4. NO VOTING TRUSTS, AGREEMENTS OR ARRANGEMENTS.
4.1 BIZ STOCKHOLDERS. Each BIZ Stockholder hereby revokes any and all
proxies and voting instructions with respect to the BIZ Stock previously given,
if any, by such BIZ Stockholder and such BIZ Stockholder agrees that it will not
grant or give any other proxies or voting instructions with respect to the
voting of the BIZ Stock, enter into any voting trust, agreement or other
arrangement or agreement with respect to the voting of the BIZ Stock (and if
given or executed, such proxies, voting instructions, voting trust or other
arrangement or agreement shall not be effective), or agree, in any manner, to
vote the BIZ Stock for or against any proposal submitted to the stockholders of
BIZ except in furtherance of the proposals set forth in Section 5 hereof.
4.2 LITRONIC STOCKHOLDERS. Each Litronic Stockholder hereby revokes any
and all proxies and voting instructions with respect to the Litronic Stock
previously given, if any, by such Litronic Stockholder and such Litronic
Stockholder agrees that it will not grant or give any other proxies or voting
instructions with respect to the voting of the Litronic Stock, enter into any
voting trust, agreement or other arrangement or agreement with respect to the
voting of the Litronic Stock (and if given or executed, such proxies, voting
instructions, voting trust or other arrangement or agreement shall not be
effective), or agree, in any manner, to vote the Litronic Stock for or against
any proposal submitted to the stockholders of Litronic except in furtherance of
the proposals set forth in Section 5 hereof.
5. AGREEMENT TO VOTE SHARES.
Each of the BIZ Stockholders and the Litronic Stockholders shall vote
their BIZ Stock and Litronic Stock, respectively, as follows:
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5.1 THE MERGER.
(a) During the period from the date of this Agreement through the
earlier of (i) the date upon which the Merger Agreement is validly
terminated or (ii) the date upon which the Merger becomes effective (the
"Effective Date"), each of BIZ Stockholders and Litronic Stockholders
shall vote their BIZ Stock and Litronic Stock, as applicable in favor of
approval of the execution and delivery of the Merger Agreement, the
Merger, and other transactions contemplated by the Merger Agreement at
the meetings of the stockholders of BIZ and Litronic (or by written
consent if no meeting is held), as applicable.
(b) During the period from the date of this Agreement through the
earlier of (i) the date upon which the Merger Agreement is validly
terminated or (ii) the Effective Date, each of the BIZ Stockholders and
each of the Litronic Stockholders shall not solicit, encourage or
recommend to other stockholders of BIZ or Litronic, as applicable, that
they (A) vote their shares of capital stock of BIZ and Litronic, as
applicable, or any such other securities in any manner contrary to the
terms of the Reorganization Agreement and the transactions contemplated
thereby, (B) not vote their shares of capital stock of BIZ and Litronic,
as applicable, at all, (C) tender, exchange or otherwise dispose of
their shares of capital stock of BIZ and Litronic, as applicable,
pursuant to a Competing Transaction, as hereinafter defined, or (D)
attempt to exercise any statutory appraisal or other similar rights they
may have.
(c) Unless otherwise instructed in writing by BIZ, in the case of
the BIZ Stockholders, and Litronic or Litronic Merger Corp., in the case
of the Litronic Stockholders, during the term of this Agreement, each of
the BIZ Stockholders and each of the Litronic Stockholders will vote
their BIZ Stock and Litronic Stock against any Competing Transaction.
(d) Except with the prior written consent of BIZ, in the case of
the BIZ Stockholders, and Litronic or Litronic Merger Corp., in the case
of the Litronic Stockholders, during the term of this Agreement, each of
the BIZ Stockholders and each of the Litronic Stockholders agrees that
such BIZ Stockholder and Litronic Stockholder, as applicable, will not,
and shall use its commercially reasonable efforts not to permit any
employee, attorney, accountant, investment banker or other agent or
representative of such BIZ Stockholder or Litronic Stockholder, as
applicable, to initiate, solicit, negotiate, encourage, or provide
confidential information in order to facilitate any Competing
Transaction.
(e) For purposes of this Agreement, a "Competing Transaction"
means a transaction of any kind (including, without limitation, a
merger, consolidation, share exchange, reclassification, reorganization,
recapitalization, sale or encumbrance of substantially all the assets of
BIZ or Litronic or their respective capital stock) proposed by any
person(s) in lieu of or in opposition to the Merger Agreement and the
Merger.
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5.2 BOARD OF DIRECTORS.
(a) Subject to the Closing having occurred and for a period of
three (3) years after the termination of this Agreement as set forth in
Section 10, each of the BIZ Stockholders and Litronic Stockholders shall
vote all of his or its shares in the capital stock of Litronic, now
owned or hereafter acquired or which each party may be empowered to
vote, from time to time and at all times in whatever manner shall be
necessary, to ensure that at each Annual or Special Meeting of
Stockholders called for that purpose, the following persons are elected
to Litronic's Board of Directors: (a) three persons selected by Xxxxxx
Xxxxxxx (the "BIZ Nominees"); (b) three persons selected by Xxxx Xxxx
("Litronic Nominees"); and (c) one person selected jointly by Xxxxxx
Xxxxxxx and Xxxx Xxxx ("Joint Nominee"). Litronic shall take appropriate
action to cause the BIZ Nominees to be allocated as evenly as possible
among Litronic's three classes of directors. The first BIZ Nominee shall
be proposed by Litronic for the class having the longest unexpired term
and the remaining BIZ Nominees shall be proposed by Litronic for the
other classes sequentially, commencing with the class having the second
longest unexpired term.
(b) If any vacancy should occur in the Board of Directors of
Litronic due to death, disability, resignation or any other reasons,
Litronic shall cause that vacancy on its Board of Directors to be filled
by a person designated by Xxxxxx Xxxxxxx (in the event of a BIZ
Nominee), by Xxxx Xxxx (in the event of a Litronic Nominee) or jointly
by Xxxxxx Xxxxxxx and Xxxx Xxxx (in the event of a Joint Nominee). The
party that nominated the director shall be entitled to remove such
director, without or without cause; provided, however, in the event of
the removal of a Joint Nominee, both Xxxx Xxxx and Xxxxxx Xxxxxxx shall
agree to such removal.
(c) The BIZ Stockholders and Litronic Stockholders shall not vote
any BIZ Stock or Litronic Stock, as applicable, in favor of the removal
of a Litronic Nominee or a BIZ Nominee, respectively, unless the right
to nominate such director by the BIZ Stockholders (in the event of the
removal of a BIZ Nominee) or the Litronic Stockholders (in the event of
the removal of a Litronic Nominee) no longer exists pursuant to the
terms of this Agreement.
6. LIMITATION ON SALES.
During the Term of this Agreement, except pursuant to the Merger, each
of the BIZ Stockholders and each of the Litronic Stockholders agree not to sell,
assign, transfer, loan, tender, pledge, hypothecate, exchange, encumber or
otherwise dispose of, or issue an option or call with respect to, any of the BIZ
Stock and Litronic Stock, as applicable, or impair such BIZ Stockholder's and
Litronic Stockholder's shares; provided, that any of the BIZ Stockholders and
Litronic Stockholders may sell or otherwise dispose of any of his or her BIZ
Stock and Litronic Stock, as applicable, if the transferee of such BIZ Stock and
Litronic Stock, as applicable, agrees to be bound by and subject to the terms
and conditions of this Agreement as if such transferee had executed this
Agreement on the date hereof as a BIZ Stockholder or Litronic Stockholder, as
applicable.
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7. SPECIFIC PERFORMANCE.
7.1 Each of the Litronic Stockholders acknowledges that it will be
impossible to measure in money the damage to BIZ if such Litronic Stockholder
fails to comply with the obligations imposed by this Agreement, and that, in the
event of any such failure, BIZ will not have an adequate remedy at law or in
damages. Accordingly, each Litronic Stockholder agrees that injunctive relief or
any other equitable remedy in addition to any remedies at law or damages is the
appropriate remedy for any such failure and will not oppose the granting of any
such remedy on the basis that BIZ has an adequate remedy at law. Each of the
Litronic Stockholders agrees not to seek, and agrees to waive any requirement
for, the securing or posting of a bond in connection with BIZ seeking or
obtaining such equitable relief.
7.2 Each of the BIZ Stockholders acknowledges that it will be impossible
to measure in money the damage to Litronic and Litronic Merger Corp. if such BIZ
Stockholder fails to comply with the obligations imposed by this Agreement, and
that, in the event of any such failure, Litronic and Litronic Merger Corp. will
not have an adequate remedy at law or in damages. Accordingly, each BIZ
Stockholder agrees that injunctive relief or any other equitable remedy in
addition to any remedies at law or damages is the appropriate remedy for any
such failure and will not oppose the granting of any such remedy on the basis
that Litronic and Litronic Merger Corp. has an adequate remedy at law. Each of
the BIZ Stockholders agrees not to seek, and agrees to waive any requirement
for, the securing or posting of a bond in connection with Litronic and Litronic
Merger Corp. seeking or obtaining such equitable relief.
8. REASONABLE EFFORTS.
Each of the BIZ Stockholders and each of the Litronic Stockholders will
use all reasonable efforts to cause to be satisfied the conditions to the
obligations of BIZ, Litronic and Litronic Merger Corp., as the case may be, in
such stockholder's control to effect the Closing under the Merger Agreement and
the election of the directors of the Board of Directors of Litronic as set forth
in Section 4(b).
9. PUBLICITY.
Each of the BIZ Stockholders and each of the Litronic Stockholders agree
that, from the date hereof through the Closing Date, such stockholder shall not
issue any public release or announcement concerning the transactions
contemplated by this Agreement and the Merger Agreement without the prior
consent of BIZ and Litronic, except as such release or announcement may, in the
opinion of such stockholder's counsel, be required by applicable law, in which
case such stockholder shall allow BIZ and Litronic reasonable time to comment on
such release or announcement in advance of such issuance.
10. TERM OF AGREEMENT; TERMINATION.
10.1 The term of this Agreement shall commence on the date hereof and
shall terminate upon the earliest to occur of (i) the Effective Time of the
Merger (as defined in the Merger Agreement) and (ii) the due and proper
termination of the Merger Agreement in accordance with its terms ("Term"). Upon
such termination, no party shall have any further obligations or liabilities
hereunder; provided, however, the obligations to elect certain directors
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as set forth under Section 5(b) of this Agreement shall survive for a period of
three (3) years after the end of the Term of this Agreement.
10.2 The obligations of each of the BIZ Stockholders and each of the
Litronic Stockholders set forth in this Agreement shall not be effective or
binding upon any stockholder until after such time as the Reorganization
Agreement is executed and delivered by BIZ, Litronic and Litronic Merger Corp.
11. LEGEND.
Simultaneously with the execution of this Agreement, the BIZ
Stockholders and the Litronic Stockholders shall conspicuously inscribe on the
certificates representing their shares of stock of Litronic or BIZ legend in
substantially the following form:
"The shares represented by this certificate are subject to the
provisions of a Voting Agreement, dated July 3, 2001, a counterpart of
which has been deposited with the Secretary of the Corporation at its
principal office."
12. MISCELLANEOUS.
12.1 GOVERNING LAW. The internal laws of the State of California
(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.
12.2 ASSIGNMENT: BINDING UPON SUCCESSORS AND ASSIGNS. No party hereto
may assign any of its rights or obligations hereunder without the prior written
consent of the other parties hereto. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
12.3 SEVERABILITY. If any provision of this Agreement, or the
application thereof, will for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the interest of the parties hereto. The parties further agree to replace such
void or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the greatest extent possible, the economic,
business and other purpose of the void unenforceable provision.
12.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original as regards any party
whose signature appears thereon and all of which together will constitute one
and the same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
all the parties reflected hereon as signatories.
12.5 OTHER REMEDIES. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby or by law on such party,
and the exercise of any one remedy will not preclude the exercise of any other.
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12.6 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 party 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.
12.7 ATTORNEYS' FEES. Should suit be brought to enforce or interpret any
part of this Agreement, the prevailing party will be entitled to recover, as an
element of the costs of suit and not as damages, reasonable attorneys' fees to
be fixed by the court (including, without limitation, costs, expenses and fees
on any successful appeal).
12.8 NOTICES. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (at such other address for a party as shall be
specified by like notice):
If to BIZ Stockholders
or BIZ to: c/o Xxxxxx Xxxxxxx
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
With a copy to: Xxxx Xxxx Xxxx & Freidenrich
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
If to Litronic Stockholders
or Litronic to: c/o Xxxx Xxxx
Litronic Inc.
00000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
With a copy to: Xxxxx & Xxxxxx, LLP
000 Xxxxx Xxxx., Xxxxx 0000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Telecopier: (000) 000-0000
All notices and other communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of delivery, (b) in
the case of a telecopy, when the party receiving the copy shall have confirmed
receipt of the communication, (c) in the case of delivery
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by nationally-recognized overnight courier, on the business day following
dispatch, and (d) in the case of mailing, on the third business day following
such mailing.
12.9 CONSTRUCTION OF AGREEMENT. This Agreement has been negotiated by
the respective parties hereto and their attorneys and the language hereof will
not be construed for or against either party. A reference to a Section, a
Schedule or an Exhibit will mean a Section in, Schedule to or Exhibit to, this
Agreement unless otherwise explicitly set forth. The titles and headings herein
are for reference purposes only and will not in any manner limit the
construction of this Agreement which will be considered as a whole.
12.10 FURTHER ASSURANCES. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and agreements
and to give such further written assurances as may be reasonably requested by
any other party to evidence and reflect the transactions described herein and
contemplated hereby and to carry into effect the intents and purposes of this
Agreement.
[SIGNATURES ON FOLLOWING PAGE]
-14-
The parties have executed this Voting Agreement as of the date first
above written.
"BIZ STOCKHOLDERS" JAW Financial, L.P.
a California limited partnership
By:JAW Lending, Inc.,
a California corporation,
its general partner
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx, President
Xxxxxxx Children's Trust 1998
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Xxxxxx Xxxxx, Trustee
Wave Systems Corp.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO
/s/ Xxxxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxxxx
"LITRONIC STOCKHOLDERS" Xxxxxxx X. Xxxx Trust
By: /s/ Xxxx Xxxx
-----------------------------------
Xxxx Xxxx, Trustee
Xxxxx Xxxx Trust
By: /s/ Xxxx Xxxx
-----------------------------------
Xxxx Xxxx, Trustee
-15-
Xxxx and Xxxxxxxxx Xxxx Family Trust
By: /s/ Xxxx Xxxx
---------------------------------------
Xxxx Xxxx, Trustee
Xxxxxx X. Xxxx and Xxxxxxxx X. Xxxx
Living Trust
By: /s/ Xxxxxx X. Xxxx and Xxxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx Xxxx and Xxxxxxxx Xxxx
Title: Trustee
Xxxxx Xxxx and Xxxxx Xxxx as Trust
By: /s/ Xxxxx X. Xxxx and Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx and Xxxxx Xxxx
Title: Trustee
/s/ Xxxx Xxxx
-------------------------------------------
Xxxx Xxxx
"BIZ" BIZ Interactive Zone, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxxxx, President and Chief
Executive Officer
By: /s/ Xxx Xxxxxx
---------------------------------------
Xxx Xxxxxx, Chief Financial Officer
-16-
"LITRONIC" Litronic Inc.
By: /s/ Xxxx Xxxx
---------------------------------------
Xxxx Xxxx, Chairman and Chief Executive
Officer
By: /s/ Xxx X. Xxxx
---------------------------------------
Xxx X. Xxxx, Chief Financial Officer
"LITRONIC MERGER CORP." Litronic Merger Corp.,
a Delaware corporation
By: /s/ Xxxx Xxxx
---------------------------------------
Xxxx Xxxx, Chairman and Chief Executive
Officer
By: /s/ Xxx X. Xxxx
---------------------------------------
Xxx X. Xxxx, Chief Financial Officer
-17-
EXHIBIT A
BIZ Stockholders
NAME OF STOCKHOLDER SHARES
------------------- ------
JAW Financial, LP 14,250,000
The Xxxxxxx Children's Trust 1998 750,000
Xxxx and Xxxxxxxxx Xxxx Family Trust dated, 1,400,000
October 9, 1997
Wave Systems Corp., a Delaware Corporation 3,600,000
-18-
EXHIBIT B
Litronic Stockholders
NAME OF STOCKHOLDER SHARES
------------------- ------
Xxxx Xxxx 1,457,665
Xxxx Xxxx, as Trustee of the Xxxxxxx X. Xxxx 435,301
Trust
Xxxx Xxxx, as Trustee of the Xxxxx Xxxx Trust 435,301
Xxxx Xxxx, as Trustee of the Xxxx and Xxxxxxxxx 2,349,877
Shah Family Trust
Xxxxx Xxxx as Trustee of the Xxxxx Xxxx and 206,557
Xxxxx Xxxx AS Trust
Xxxxxx Xxxx, as Trustee of the Xxxxxx X. Xxxx 483,657
and Xxxxxxxx X. Xxxx Living Trust
-19-
SCHEDULE 1
No Exceptions.
-20-
SCHEDULE 2
No Exceptions.
-21-
