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VOTING AGREEMENT
VOTING AGREEMENT ("Agreement"), dated as of February 11, 2000, between
Xxxxxxx Xxxxxxx ("Xxxxxxx"), Xxxxxxx Xxxx ("Xxxx") (individually the
"Shareholder" and collectively the "Shareholders") and Registry Magic
Incorporated, a Florida corporation ("RMAG"). RMAG is sometimes herein referred
to as the "Company".
A. Each Shareholder is the record and beneficial owner of that number of issued
and outstanding shares (together with any shares acquired after the date hereof,
the "Shares") of Common Stock of Synergex International Corporation, a
California corporation ("SIC"), as indicated on Exhibit A attached hereto and
made a part hereof, which Shares represent approximately the percentages of the
currently issued and outstanding shares of SIC's Common Stock as indicated on
Exhibit A.
B. In order to induce RMAG to enter into the Agreement and Plan of Merger, dated
as of the date hereof (the "Merger Agreement"), by and between SIC and RMAG,
RMAG has requested that the Shareholders enter into this Agreement with respect
to the Shares.
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, and in order to induce RMAG to enter into the Merger
Agreement, RMAG and the Shareholders hereby agree as follows:
1. Covenants.
(a) At any meeting of shareholders of SIC called to vote upon the
Merger and the Merger Agreement 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 Merger and the Merger Agreement is sought, each
Shareholder shall, including by initiating a written consent solicitation if
requested by RMAG, vote (or cause to be voted) such Shareholder's Shares in
favor of the Merger, the adoption by SIC of the Merger Agreement and the
approval of the other transactions contemplated by the Merger Agreement.
(b) At any meeting of shareholders of SIC or at any adjournment thereof
or in any other circumstances upon which the Shareholders' vote, consent or
other approval is sought, each Shareholder shall vote (or cause to be voted)
such Shareholder's Shares against (i) any merger agreement or merger (other than
the Merger Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by SIC or its Subsidiaries or any other Transaction Proposal
(as defined in the Merger Agreement) affecting SIC (collectively, "Alternative
Transactions") or (ii) any amendment of SIC's Amended and Restated Articles of
Incorporation or by-laws or other proposal or transaction involving SIC
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or any of its subsidiaries, which amendment or other proposal or transaction
would in any manner impede, frustrate, prevent or nullify, the Merger, the
Merger Agreement or any of the other transactions contemplated by the Merger
Agreement (collectively, "Frustrating Transactions").
(c) During the Term of this Agreement, except pursuant to a certain
Election Agreement dated February 11, 2000 between Xxxxxxxx Xxxxx, Lidster,
Wong, RMAG and SIC, Xxxxxxx and Xxxx shall not, (i) sell, transfer, pledge,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement (including any profit sharing arrangement) or understanding with
respect to the sale, transfer, pledge, assignment or other disposition of, the
Shares to any person other than RMAG or SIC, or their respective designee, (ii)
enter into any voting arrangement, whether by proxy, voting agreement, voting
trust, power-of-attorney or otherwise, with respect to the Shares or (iii) take
any other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby.
2. Grant of Irrevocable Proxy Coupled with an Interest; Appointment of Proxy.
(a) Each Shareholder hereby irrevocably grants to and appoints any
individual who shall hereafter be designated by RMAG as 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 SIC or at any adjournment thereof or in any other circumstances upon which
their vote, consent or other approval is sought, (i) in favor of the Merger, the
adoption by SIC of the Merger Agreement and the approval of the other
transactions contemplated by the Merger Agreement and (ii) against any
Alternative Transaction or Frustrating Transaction.
(b) Each Shareholder represents that any proxies heretofore given in
respect of such Shareholder's 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. The 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
________________ of the ________________________________.
3. Representations and Warranties of the Shareholder The Shareholder hereby
represents and warrants to RMAG as follows:
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(a) Authorization. Each Shareholder has the legal capacity to execute,
deliver and perform this Agreement. This Agreement constitutes a valid and
binding obligation of the Shareholder enforceable against him or her in
accordance with its terms. If the 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 B and made a part
hereof.
(b) No Conflict. The execution, delivery and performance by the
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 the Shareholder is a party or by which the
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 the
Shareholder is entitled under any provision of any agreement or other instrument
binding on the Shareholder.
(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 the
Election Agreement referred to above none of the Shares are subject to any
voting trust or other agreement or arrangement with respect to the voting of
such Shares. Each Shareholder's Shares and the certificates representing such
Shares are now, and at all times during the term hereof will be, held by the
Shareholder, or by a nominee or custodian for the benefit of the Shareholder.
The Shareholder owns of record or beneficially no shares of SIC Common Stock
other than such Shareholder's Shares.
(d) Merger Agreement. Each Shareholder understands and acknowledges
that RMAG is entering into the Merger Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement.
4. Board Approval. The Board of Directors of RMAG have, 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,
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applicable to 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 Xxxx to: if to Xxxxxxx to:
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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 the Shareholder without the prior written consent
of RMAG. 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.
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(c) Governing Law. This Agreement will be governed by and construed
under California 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 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 the Shareholders 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 each Shareholder's Shares as contemplated by Sections 1 and 2.
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(k) Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the earliest to occur of (i)
consummation of the Merger, (ii) the termination of the Merger Agreement in
accordance with its terms, unless prior to such termination a person or entity
shall have made a Transaction Proposal and (iii) twenty-four months from the
date hereof. Sections 1(b) and 2(a)(ii) shall terminate on the earlier of (x)
the date computed in accordance with the preceding sentence and (y) six months
after the termination of the Merger Agreement in accordance with its terms.
Nothing in this Section 5(k) shall relieve the Shareholder from liability for
breach of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
REGISTRY MAGIC INCORPORATED
By:
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Name: Xxxxxxxx Xxxxx
Title: Chairman
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Xxxxxxx Xxxxxxx, a Shareholder
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Xxxxxxx X. Xxxx, a Shareholder
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EXHIBIT A
SHAREHOLDERS' OWNERSHIP OF SHARES OF SIC
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EXHIBIT B
CONSENT OF SPOUSE
The undersigned are the spouses of Xxxxxxx Xxxx and Xxxxxxx Xxxxxxx,
respectively. Each of them acknowledges that he or she has read the Voting
Agreement ("Agreement") between Xxxxxxx Xxxx and Xxxxxxx Xxxxxxx (individually
"Shareholder" and collectively the "Shareholders") and Registry Magic
Incorporated, a Florida corporation ("RMAG") and clearly understands its
provisions. Each of the undersigned is aware that, by the provisions of this
Agreement each of the undersigned and their respective spouses have agreed to
vote (or cause to be voted) the Shareholders' shares of SIC in accordance with
the terms and provisions of the Agreement and that the proxy provided for in the
Agreement is coupled with an interest and is irrevocable until the termination
of the Agreement. Each of the undersigned hereby expressly approves of and
agrees to be bound by the provisions of this Agreement in its entirety,
including, but not limited to, those provisions relating to the voting of their
shares in SIC. If any of the undersigned predeceases his or her spouse when his
or her spouse owns an interest in SIC, he or she hereby agrees not to devise or
bequeath whatever community property interest he or she may have in SIC in
contravention of this Agreement.
Dated: February , 2000,
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Dated: February , 2000,
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