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EXHIBIT 10.43
PINNACLE MICRO, INC.
00 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx
December 8, 1996
Xx. Xxxxx X. Xxxx
Xx. Xxxxxxx X. Xxxx
Re: Stand-still and Voting Agreement with Pinnacle Micro, Inc.
Gentlemen:
1. The purpose of this letter is to confirm the agreements set
forth below between Pinnacle Micro, Inc. (the "Company") and each of Xxxxx X.
Xxxx, Xxxxxxx X. Xxxx, individually and as trustee and/or settler of certain
revocable trusts (individually a "Xxxx Family Trust" and collectively the "Xxxx
Family Trusts") (each a "Stockholder") relating to the Stockholders' ownership
of common stock of the Company ("Common Stock"), Board representation and
related matters.
2. Each Stockholder agrees not to acquire, agree to acquire or
make any proposal to acquire, directly or indirectly, any Common Stock, any
other securities issued by the Company, a material portion of the Company's
assets or property, any equity interest in the Company or any options or other
rights to purchase any such securities, assets, property or equity interest
(other than property transferred by the Company in the ordinary course of
business), except for
(a) Common Stock owned by it as of the date of this letter,
(b) with respect to Xxxxx Xxxx, any options that may be
granted to him in connection with his proposed severance
agreement with the Company,
(c) Common Stock acquired pursuant to the exercise of options
it already owns; or
(d) transfers from one Stockholder to another. Sales under the
registration statement described below will not be limited by
this Agreement.
3. Each Stockholder further agrees that, without the prior
written approval of the Company's Board of Directors, it will not
(a) propose to enter into or negotiate or agree for the
Company to enter into, directly or indirectly, any merger or
business combination involving the Company or an agreement
concerning the possible sale or purchase of, directly or
indirectly, a material portion of the assets of the Company,
(b) make, or in any way participate, directly or indirectly,
in any "solicitation" of "proxies" (as such terms are used in
the proxy rules of the United States Securities and
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Exchange Commission) to vote, or seek to advise or influence
any person with respect to the voting of, any voting
securities of the Company,
(c) form, join or in any way participate in a partnership,
limited partnership, syndicate or a "group" (within the
meaning of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended) with respect to any acquiring, holding,
voting or disposing of securities of the Company,
(d) otherwise act, alone or in concert with others, to seek to
change, control or influence the membership of the Board of
Directors, the management or policies of the Company or for
the purpose of acquiring, holding, voting or disposing of
Common Stock or other securities, assets, or property of the
Company or an equity interest in the Company,
(e) without the consent of the Board of Director's seek to
call or assist any other person to call, a special meeting of
the Company's stockholders or
(f) advise, assist or encourage any other persons in
connection with any of the foregoing.
Actions by Xxxxxxx Xxxx as a director will not be subject to
these restrictions.
4. Each Stockholder also agrees not to bind or obligate the
Company and not to sign any contracts, agreements or other documents or incur
any expense, liability or obligation or make any other commitments on behalf of
the Company, and not to negotiate or attempt to negotiate on behalf of the
Company, and not to solicit any person or entity for any possible sale of the
Company.
5. Each Stockholder also agrees that until the earlier of (i)
the first anniversary of the date of this letter and (ii) the date on which the
Stockholder no longer owns, directly or indirectly, any Common Stock or options
to acquire Common Stock, the Stockholder will vote all shares of Common Stock
owned by it and all other shares of Common Stock the voting of which is in its
control in favor of the slate of directors recommended by the Company's Board of
Directors and on all matters, except those described in clause 3(a) above, as
recommended by the Company's Board of Directors. The Company agrees to include
on the slate up to two (2) director(s) to be recommended by the Stockholders
(acting through Xxxxxxx X. Xxxx) that are reasonably acceptable to the Company's
Board of Directors and confirms that Xxxxxxx X. Xxxx is acceptable. Stockholders
agree not to recommend any person related to any Stockholder by birth or
marriage except for Xxxxxxx X. Xxxx. Any shares sold under a "shelf"
registration statement will not be subject to this voting requirement after the
sale.
6. In return for the agreements set forth above, the Company
agrees that within a reasonable time after it files its Form 10-K for the fiscal
year ending December 31, 1996, the Company will file with the Securities and
Exchange Commission a "shelf" registration statement providing for the orderly
sale, in the public market, of up to all shares of Common Stock owned by the
Stockholders (with the number of such shares to be specified by Xxxxxxx X. Xxxx
on behalf of the Stockholders except that Xxxxx Xxxx may require the inclusion
of up to all shares owned directly by him), pursuant to a registration rights
agreement to be entered into by the Company and the Stockholders. The
registration rights agreement will include customary terms (including customary
indemnification provisions and Company's agreement to keep the shelf
registration effective for one year) and will provide that all costs relating to
the registration customarily paid by stockholders in secondary offerings will be
borne by the Stockholders; provided however that the Stockholders will not be
required to reimburse the Company for the time spent by the Company's directors,
officers and other employees devoted to the preparation and filing of the
registration statement, or for any fees charged by the Company's outside
accountants except for a
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reasonable and customary fee for (i) consenting to the inclusion of such
accountants' opinion in the registration statement, or (ii) furnishing a "cold
comfort" letter requested by underwriters if Stockholders decide to retain an
underwriting firm.
7. Stockholders hereby agree that the Secretary of the Company
and the inspector of election at any meeting of the Company's stockholders may
treat this Agreement or a copy hereof as a valid proxy in favor of the proxy
holders named by the directors. Stockholders understand that the proxy hereby
granted is not revocable.
8. Stockholders will likely learn of material non-public
information regarding the Company. Accordingly, Stockholders agree to keep the
information confidential and agree not to use it to the detriment of the
Company. Stockholders are advised that receipt of such information may interfere
with their ability to trade in securities of the Company and other companies
that are the subject of the information.
9. Xxxxx Xxxx resigns as a director of the Company and
confirms he has resigned as an officer and employee. He agrees he waived notice
of and consented to the holding of, a special meeting of the board of directors
of the Company on December 8, 1996.
10. Please confirm and acknowledge your agreement with all of
the provisions set forth above by executing and returning the copy of this
letter included herewith to Xxxxxxxx Xxxxxxx, Esq., Pinnacle Micro, Inc., 00
Xxxxxxxxxx Xxxxx, Xxxxxx 00000, via facsimile at (000) 000-0000 and followed by
mail or courier, with a copy to Xxxxx X. Xxxxxxxx, Esq., Paul, Hastings,
Xxxxxxxx & Xxxxxx LLP, 000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxxxx Xxxxx, Xxxxxx
92626-1924 (facsimile 714-979-1921).
Sincerely,
ACKNOWLEDGED, CONFIRMED
AND AGREED
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Xxxxx Xxxx and Xxxxxxx Xxxx hereby confirm that they are signing on
behalf of all trusts established by either of them for any stock now or formerly
held by either of them, and confirm that they have authority to do so, and have
not appointed any other trustees, agents or other representatives to vote,
control or sell any shares of Pinnacle Micro, Inc.
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