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EXHIBIT 10.30
XXXXX MICROCOMPUTER PRODUCTS, INC.
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (the "Voting Trust") is made and
entered into this 16th day of April, 1996, by and among XXXXXX X. XXXXX, an
individual resident of Georgia ("Xxxxxx X. Xxxxx"), XXXXX MICROCOMPUTER
PRODUCTS, INC., a Georgia corporation (the "Corporation"), and G. XXXXXX
XXXXXXX, as Trustee herein (hereinafter, along with any successors, referred to
as "Trustee").
W I T N E S S E T H :
WHEREAS, Xxxxxx X. Xxxxx owns voting stock in the Corporation; and
WHEREAS, pursuant to the terms of that certain Shareholders' Agreement
dated April 16, 1996, by and between the Corporation, Xxxxxx X. Xxxxx, Rinzai
Limited, ("Rinzai"), Kaifa Technology (H.K.) Limited, Rolling Profit Holdings
Limited, Saliendra Pte. Ltd., Lao Hotel (H.K.) Limited, and S.P. Quek
Investments Pte Ltd., (as amended from time to time in accordance with the terms
thereof, the "Shareholders' Agreement,"), and the parties have agreed that
494,322 shares of the Corporation's stock owned by Xxxxxx X. Xxxxx shall be held
in a nonvoting trust on the terms and conditions herein set forth; and
WHEREAS, capitalized terms herein shall have the same meaning as
defined in the Shareholders' Agreement unless specified otherwise.
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein, the sum of Ten Dollars ($10.00) in hand paid, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. TRANSFER OF SHARES BY XXXXXX X. XXXXX. Upon the execution of this Voting
Trust, Xxxxxx X. Xxxxx shall transfer and deposit with the Trustee 494,322
shares of the Common Stock, which constitutes ten percent (10%) of the total
number of shares of Common Stock "owned or controlled" (as such terms are
defined in the Shareholders' Agreement) by him on the date hereof, by
delivering to the Trustee the certificates for such stock, duly endorsed in
blank or accompanied by proper instruments of assignment and transfer thereof
duly executed in blank, said shares to be held by the Voting Trust. All
shares of the Common Stock so transferred to the Trustee shall be registered
on the books and records of the Corporation as follows: "G. Xxxxxx Xxxxxxx as
Trustee of the XXXXX MICROCOMPUTER PRODUCTS, INC. VOTING TRUST under
agreement
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dated April 16, 1996." If G. Xxxxxx Xxxxxxx or any subsequent Trustee
ceases serving as Trustee herein, the shares of Common Stock held
herein shall be so registered in the name of the applicable successor
Trustee on behalf of the Voting Trust.
2. VOTING TRUST CERTIFICATES. Upon the receipt by the Trustee of the
certificates evidencing Xxxxxx X. Xxxxx' Common Stock, the Trustee
shall issue to Xxxxxx X. Xxxxx a certificate evidencing his interest in
the Voting Trust, said certificate to be in substantially the form set
forth on Exhibit "A" attached hereto and by this reference incorporated
herein (hereinafter referred to as the "Trust Certificate").
3. VOTING BY TRUSTEE. During the term of this Voting Trust, all shares
of Common Stock or any other interest in the Corporation with voting
rights held in the Voting Trust (such Common Stock or other interests
shall be referred to as the "Voting Interests") shall confer upon the
Trustee the full and complete right to vote on all applicable matters
of the Corporation for which such Voting Interests are entitled to
vote; however, the Trustee shall not vote the Voting Interests and
shall only abstain from voting on all such matters. Furthermore, the
Trustee shall not grant a proxy to anyone for such vote during the term
of this Voting Trust. It is expressly understood and agreed that no
voting right shall pass to any person or entity other than the Trustee
by or under the Trust Certificates or by or under this Voting Trust, or
by or under any other agreement, express or implied, until the
termination of the Voting Trust with respect to any Trust Property as
defined below in Section 4.
4. OTHER SHAREHOLDER ACTION. Subject to the restriction on exercising
any and all rights to vote associated with any of the property held in
the Voting Trust (all such property held in the Voting Trust herein
shall be referred to as the "Trust Property"), the Trustee shall be
entitled to all of the rights and privileges conferred upon an owner
of the Trust Property ("Nonvoting Rights"). With respect to the
Nonvoting Rights, the Trustee shall act or fail to act with respect to
the specific Trust Property which was contributed by, issued or
delivered on behalf of the respective holders of the Trust
Certificates, in accordance with the written instructions by such
holder (or his/its successors or permitted assigns) to the Trustee.
However, the Trustee shall not be required to act or fail to act with
respect to the Nonvoting Rights which the Trustee reasonably believes
will expose the Trustee to damages, claims, investigations, charges
(civil or criminal), costs or will otherwise result in any harm to the
Trustee. In the event the Trustee acts in accordance with such
instructions, then the holder of the Trust Certificate that provided
such instructions shall indemnify and hold the Trustee harmless against
damages, losses and costs of any kind (including costs of investigation
and attorneys fees) from any such action or omission by the Trustee. In
the event the Trustee shall not receive such written instructions with
respect to the exercise or failure to exercise Nonvoting Rights, the
Trustee may act or not act with respect to the Nonvoting Rights and
with respect to all other duties of the Trustee not specifically
addressed hereunder, in accordance with the exercise of the Trustee's
reasonable judgment. However, the Trustee shall assume no
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responsibility with respect to and shall not be liable for any action
taken or any omission by him or his agents and no Trustee shall incur
any responsibility by reason of any error of law or of any thing done
or omitted unless such act or omission was (i) grossly negligent, or
(ii) the result of willful misconduct. In the event the Trustee acts or
fails to act with respect to Nonvoting Rights without instruction by
the applicable holder of the Trust Certificate, and if the Trustee has
acted or failed to act in accordance with the preceding two sentences,
then the Holder of the applicable Trust Certificate shall indemnify and
hold the Trustee harmless against damages, losses and costs of any kind
(including costs of investigation and attorneys fees) from any such
action or omission by the Trustee. No Trustee shall be required to post
or give a bond or other security for the discharge of his or her
duties. In the event the Trustee, in his capacity as Trustee of the
Voting Trust, becomes party to, prosecutes, defends or intervenes in
any legal action or proceeding pertaining to the Trust Property, then
the holders of the Trust Certificates shall indemnify and hold the
Trustee harmless against damages, losses and costs of any kind
(including costs of investigation and attorneys fees) from any such
action or proceeding so long as the Trustee's participation in such
action or proceeding was in good faith and/or on the advice of counsel
and was neither grossly negligent nor constituted willful misconduct.
The Trustee shall not be an officer, director, shareholder, agent,
consultant (other than legal counsel) or employee of the Corporation.
5. DIVIDENDS. Throughout the term of this Voting Trust, the Trustee
shall, within ten (10) days of the date received, distribute to the
holders of the Trust Certificates ("Certificate Holders") all cash
dividends received by the Trustee with respect to the interests of each
such Certificate Holder in the Voting Trust. Such cash dividends shall
be distributed to each such Certificate Holder in an amount equal to
the amount the Certificate Holder would have received had such
Certificate Holder been the record owner of the interests represented
by the Trust Certificate. All stock dividends received by the Trustee
with respect to the Trust Property (including any stock splits) shall
be retained by the Trustee and all such stock shall be subject to the
terms of this Voting Trust as fully as if originally deposited by the
Shareholders pursuant to the terms of this Voting Trust; provided,
however, that upon the receipt of a stock dividend or following a stock
split, the Trustee shall issue to the Certificate Holders such
additional Trust Certificates as may be necessary to reflect the change
in the number of shares of stock being held by the Trustee.
6. COMPENSATION OF TRUSTEE. The Trustee shall receive reimbursement
for all expenses reasonably incurred in carrying out the provisions of
the Voting Trust and shall receive compensation for acting as Trustee
hereunder in a reasonable amount if the Trustee is not an attorney at
law and if the Trustee is an attorney at law, the Trustee shall receive
as compensation the standard hourly rate charged by such attorney at
law for all time expended herewith as Trustee. The Trustee may employ
counsel (and the Trustee shall be entitled to employ on behalf of the
Voting Trust attorneys at the law firm in which Trustee is a partner or
is employed) and such reasonable professional and other assistance as
may be convenient for the fulfillment of the purposes of the Voting
Trust. The cost
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of such compensation, expense reimbursement, counsel or other
assistance shall be borne by the Corporation.
7. SUCCESSOR TRUSTEE. In the event of the removal, death or resignation of
the Trustee, or the continued failure of the Trustee to act as Trustee,
the Certificate Holders shall select a successor Trustee by unanimous
vote. The Certificate Holders may by unanimous vote remove a Trustee.
8. TRANSFERS AND RECORD OWNERSHIP. Subject to the restrictions on
transfer of shares set forth in the Shareholders' Agreement, which
restrictions shall apply, mutatis mutandis, to the Trust Certificates,
the Trust Certificates shall be transferable at the office of the
Trustee by the registered holder thereof either in person or by
attorney duly authorized. Upon surrender thereof, according to such
rules as the Trustee may from time to time establish, and until so
transferred, the Trustee may treat the registered holder as the owner
thereof for all purposes whatsoever. Every transferee of a Trust
Certificate hereunder shall upon acceptance thereof become a party to
this Voting Trust with the same force and effect as if such transferee
had signed this Voting Trust and shall be included with the meaning of
the term "Xxxxxx X. Xxxxx" whenever used herein. The Trustee may, in
its sole discretion, appoint a registrar for the Trust Certificates and
may provide that Trust Certificates shall not be valid unless
registered and countersigned by such registrar.
9. TERM. This Voting Trust shall continue for a period of ten (10) years
from the date hereof, unless sooner terminated in accordance with the
following and if terminated, the Trust Property pertaining to the
applicable Certificate Holder shall be released from the Voting Trust
and promptly delivered to such Certificate Holder, along with such
other documents as may be necessary to transfer the ownership of the
Trust Property into the name of the Certificate Holder, in exchange for
such Trust Certificate:
(a) Upon the first to occur of the following:
(i) The total voting capital stock owned or
controlled by Xxxxxx X. Xxxxx, after giving
effect to such termination, constitutes less
than forty five percent (45%) of the total
voting capital stock of the Corporation;
(ii) At the time of the closing of an Initial
Public Offering;
(iii) at the time of the share exchange pursuant
to a merger of the Corporation (where the
Corporation is not the survivor);
(iv) upon the sale of the Corporation by the sale
of substantially all of its assets or any
other method of such sale;
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(v) upon the complete liquidation of the Corporation;
or
(vi) upon Rinzai or its Permitted Transferees (as such
term is defined in the Shareholders' Agreement)
ceasing to be a shareholder with Voting Rights in
the Company.
10. MISCELLANEOUS.
(a) Governing Law. This Voting Trust shall be
governed by and construed in accordance with the
laws of the State of Georgia.
(b) Binding Effect. This Voting Trust shall be
binding upon and inure to the benefit of the
parties hereto and their respective heirs,
successors and assigns.
(c) Headings. The headings used in this Voting Trust
are used for administrative purposes only and do
not constitute substantive matters to be
considered in construing the terms of this Voting
Trust.
(d) Legal Construction. If any one or more of the
provisions contained in this Voting Trust for any
reason are held to be invalid, illegal or
unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect
any other provision thereof and this Voting Trust
shall be construed as if such invalid, illegal or
unenforceable provision had never been contained
herein.
(e) Other Instruments. The parties agree that they
will execute such other and further instruments
and documents as are or may become necessary or
convenient to effectuate and carry out this
Voting Trust.
(f) Amendment. This Voting Trust may be amended or
modified by the parties from time to time but
only by a written instrument signed by all of the
parties hereto and only in accordance with
Section 10.7 of the Shareholders' Agreement.
(g) Notices. All notices required or permitted
hereunder shall be in writing and shall be deemed
to be delivered when deposited in the United
States mail, postage prepaid, certified mail,
return receipt requested and addressed to the
parties as follows:
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Xxxxxx X. Xxxxx
c/x Xxxxx Microcomputer Products, Inc.
0000 Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
G. Xxxxxx Xxxxxxx, Esq.
Parker, Johnson, Xxxx & Dunlevie
Suite 700
1275 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx 00000-0000
Telecopy: (000) 000-0000
Xxxxx Microcomputer Products, Inc.
0000 Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
IN WITNESS WHEREOF, the parties have hereunto set their hands
and seals as of the date first above written.
TRUSTEE:
/s/ G. Xxxxxx Xxxxxxx
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G. Xxxxxx Xxxxxxx, Trustee
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, Individually
XXXXX MICROCOMPUTER PRODUCTS, INC.
BY: /s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, Chairman
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