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EXHIBIT 4.3
ELECTION AGREEMENT
ELECTION AGREEMENT ("Agreement"), dated as of February _____, 2000,
effective at the Effective Time of the merger between Synergex International
Corporation, Registry Magic Incorporated and RMAG Acquisition Corp., between
Xxxxxxxx Xxxxx ("Xxxxx"), Xxxxxxx Xxxx ("Xxxx"), Xxxxxxx Xxxxxxx ("Xxxxxxx")
(individually "Shareholder" and collectively the "Shareholders") and Registry
Magic Incorporated, a Florida corporation ("RMAG").
A. The Shareholders are the record and beneficial owners of _________ issued and
outstanding shares, in the amounts indicated below (together with any shares
acquired after the date hereof, the "Shares") of common stock, par value $.001,
of RMAG:
Shareholder No. of Shares
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Xxxxx
Xxxx
Xxxxxxx
B. As a condition to the Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), by and between Synergex International
Corporation, a California corporation ("SIC"), RMAG and RMAG Acquisition Corp.,
a Delaware corporation and wholly owned subsidiary of RMAG, the Shareholders
shall enter into this Agreement with respect to the Shares. Pursuant to the
Merger Agreement, the number of directors of RMAG will be expanded to seven (7)
directors, and the intent of the Shareholders, RMAG and SIC is that it will
remain at seven (7) throughout the term of the Agreement.
C. Unless otherwise defined herein, all capitalized terms used in this Agreement
shall have the meanings given to them in the Merger Agreement.
D. For good and valuable consideration, the adequacy and receipt of which are
hereby acknowledged, RMAG and the Shareholders hereby agree as follows:
1. Covenants. At any meeting of shareholders of RMAG called to vote upon the
election of the Board of Directors or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval (including by written
consent) with respect to the election of the Board of Directors is sought, for
the next three (3) years, each Shareholder shall, including by initiating a
written consent solicitation if requested by RMAG, vote (or cause to be voted)
the Shareholders' Shares in favor of the election of each other Shareholder and
such designees as designated by Xxxxx as directors of RMAG. Provided, however,
that Xxxxx may only designate four additional directors. If a vacancy on the
Board of Directors of RMAG occurs due to the death or resignation of Xxxxxxx
during the term of this Agreement, Xxxx may designate a director to replace him.
If a vacancy on the Board of Directors of RMAG occurs due to the death or
resignation of Xxxx during the term of this Agreement, Xxxxxxx may designate a
director to replace her.
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2. Grant of Irrevocable Proxy Coupled with an Interest; Appointment of Proxy.
(a) Solely with respect to the election of the Board of Directors, each
Shareholder hereby irrevocably grants to and appoints any individual who shall
hereafter be designated by RMAG, and each of them, such Shareholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of such Shareholder, to vote such Shareholder's Shares, or grant a
consent or approval in respect of such Shares, at any meeting of shareholders of
the Company or at any adjournment thereof or in any other circumstances upon
which their vote, consent or other approval is sought in favor of each other
Shareholder's election as director of RMAG.
(b) The Shareholder represents that any proxies heretofore given in
respect of such Shareholders' Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) EACH SHAREHOLDER HEREBY AFFIRMS THAT THE PROXY SET FORTH IN THIS
SECTION 2 IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE UNTIL SUCH TIME AS THIS
AGREEMENT TERMINATES IN ACCORDANCE WITH ITS TERMS. Each Shareholder hereby
further affirms that the irrevocable proxy is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of such Shareholder under this Agreement.
Such Shareholder hereby ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of
Section 607.0722 of the Florida Business Corporation Act.
3. Representations and Warranties of the Shareholders. The Shareholders hereby
represent and warrant to RMAG as follows:
(a) Authorization. Each Shareholder has the legal capacity to execute,
deliver and perform this Agreement. This Agreement constitutes a valid and
binding obligation of each Shareholder enforceable against him or her in
accordance with its terms. If a Shareholder is married and the Shares constitute
community property under applicable law, the spouse of each Shareholder shall
consent to be bound by the provisions of this Agreement by executing the Consent
of Spouse attached hereto as Exhibit A and made a part hereof.
(b) No Conflict. The execution, delivery and performance by each
Shareholder of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) result in any breach or violation of
or be in conflict with or constitute a default under term of any law or
agreement or arrangement to which a Shareholder is a party or by which a
Shareholder is bound, (ii) require any filing with or authorization by any
governmental entity or (iii) require any consent or other action by any person
under, constitute a default under, or give rise to any right of termination,
cancellation or acceleration or to a loss of any benefit to which a Shareholder
is entitled under any provision of any agreement or other instrument binding on
each Shareholder.
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(c) Ownership of Shares. Each Shareholder is the record and beneficial
owner of the Shares free and clear of any and all liens, pledges, restrictions,
charges or other adverse claims of any kind or nature. Each Shareholder has the
sole voting power, sole power of disposition, sole power of conversion, sole
power to demand appraisal rights and sole power to agree to all the matters set
forth in this Agreement, in each case with respect to all of the Shares with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement. Except for certain
Voting Agreements dated ___________ by and between (i) Xxxxxxxx Xxxxx and SIC,
and (ii) Xxxxxxx Xxxxxxx, Xxxxxxx Xxxx and RMAG, none of the Shares are subject
to any voting trust or other agreement or arrangement with respect to the voting
of such Shares. The Shareholders Shares and the certificates representing such
Shares are now, and at all times during the term hereof will be, held by each
Shareholder, or by a nominee or custodian for the benefit of the Shareholder.
The Shareholder owns of record or beneficially no shares of RMAG Common Stock
other than such Shareholder's Shares.
4. Board Approval. The Board of Directors of RMAG has, to the extent required by
applicable law, duly and validly authorized and approved by all necessary
corporate action, this Agreement, the Merger Agreement and the transactions
contemplated hereby and thereby, so that by the execution and delivery hereof no
restrictive provision of any "fair price," "moratorium," "control-share
acquisition," "interested shareholders" or other similar anti-takeover statute
or regulation (including, without limitation, Sections 607.0901 and 607.0902 of
the Florida Business Corporation Act) or restrictive provision of any applicable
anti-takeover provision in the Articles of Incorporation or by-laws of RMAG is,
or will be, applicable to SIC, RMAG, the Shares, the Merger or any other
transaction contemplated by this Agreement.
5. Miscellaneous.
(a) Notices. All notices shall be in writing and shall be given as
follows:
if to Xxxxx to: if to Xxxx to: if to Xxxxxxx to:
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with a copy to: with a copy to: with a copy to:
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if to RMAG to:
Registry Magic Incorporated
0000 XXX Xxxxxxxxx, Xxxxx 000-000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
with a copy to:
Atlas, Xxxxxxxx, Trop & Borkson, P. A.
000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: 000-000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
or to such other address as may have been designated in a prior notice pursuant
to this Section. Notices shall be deemed effectively served and delivered upon
receipt.
(b) Binding Effect. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights or obligations
hereunder shall be assigned by a party without the prior written consent of all
other parties. Except as otherwise specifically provided in this Agreement,
nothing in this Agreement is intended or will be construed to confer on any
person other than the parties hereto any rights or benefits hereunder.
(c) Governing Law. This Agreement will be governed by and construed
under Florida law, without regard to conflict of laws principles thereof.
(d) Waivers. Compliance with the provisions. of this Agreement may be
waived only by a written instrument specifically referring to this Agreement and
signed by the party waiving compliance. No course of dealing, nor any failure or
delay in exercising any right, will be construed as a waiver, and no single or
partial exercise of a right will preclude any other or further exercise of that
or any other right.
(e) Modification. No supplement, modification or amendment of this
Agreement will be binding unless made in a written instrument that is signed by
all the parties hereto and that specifically refers to this Agreement.
(f) Entire Agreement. This Agreement and the Merger Agreement are the
exclusive statement of the agreement among the parties hereto concerning the
subject matter hereof.
(g) Severability. If any one or more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remaining provisions of this Agreement shall
not be affected thereby. To the extent
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permitted by applicable law, each party waives any provision of law which
renders any provision of this Agreement invalid, illegal or unenforceable in any
respect.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(i) Enforcement. The parties 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. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in a court of the United States. This
being in addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties hereto waives any right to trial by
jury with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
(j) Further Assurances. RMAG and each Shareholder will execute and
deliver, or cause to be executed and delivered, all further documents and
instruments and use their reasonable best efforts to take, or cause to be taken,
all actions necessary, proper or advisable under applicable law to consummate
and make effective the transactions contemplated by this Agreement and to vest
the power to vote the Shareholder Shares as contemplated by Sections 1 and 2.
(k) Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the earliest to occur of (i) three (3)
years from the consummation of the Merger, and (ii) the termination of the
Merger Agreement in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
REGISTRY MAGIC INCORPORATED
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: Chairman
SHAREHOLDERS:
/s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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