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EXHIBIT (b)
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT ("Shareholders' Agreement"), is made as
of the 29th day of July, 1997 and is entered into by and among XXXXXX X. XXXXX,
a resident of the State of Georgia (the "Principal Shareholder"), Chestnut
Capital Limited Partnership ("Chestnut"), the persons or entities listed on
Schedule I hereto (the "Investors") (hereinafter the Principal Shareholder and
the Investors are sometimes referred to collectively as the "Shareholders" and
individually as a "Shareholder"), XXXXX MICROCOMPUTER PRODUCTS, INC., a Georgia
corporation ("Xxxxx Microcomputer Products"), ACCESS BEYOND, INC., a Delaware
corporation (hereinafter referred to as the "Company") and Xxxxxx X. Xxxxxx
("Xxxxxx") only for the purposes of Sections 8 and 11 of this Shareholders'
Agreement.
RECITALS
WHEREAS, Xxxxx Microcomputer Products is a duly organized and existing
corporation under the laws of the State of Georgia;
WHEREAS, the Company is a duly organized and existing corporation
under the laws of the State of Delaware;
WHEREAS, contemporaneously with the execution and delivery of the
Xxxxx Microcomputer Products, Inc. Shareholders' Agreement made as of the 16th
day of April, 1996, as amended by that certain Addendum and Amendment made as
of April 23, 1997 (the "Xxxxx Shareholders' Agreement"), the Shareholders (or
their successors in interest) acquired and obtained voting control in respect
of (A) an aggregate of 4,943,221 shares of the common stock, no par value, of
Xxxxx Microcomputer Products (the "Common Stock"), and (B) an aggregate of
4,900,000 shares of Series A Preferred Stock of Xxxxx Microcomputer Products
(the"Series A Preferred Stock") and 263,113 shares of Series B Preferred Stock
of Xxxxx Microcomputer Products (the "Series B Preferred Stock") which
constitute 100% of the issued and outstanding preferred stock of Xxxxx
Microcomputer Products on the date hereof, in each case as set forth with
respect to each Shareholder on Schedule I to this Shareholders' Agreement;
WHEREAS, the Company and Xxxxx Microcomputer Products have entered
into an Agreement and Plan of Reorganization dated as of the 29th day of July,
1997 (the "Merger Agreement"), pursuant to and subject to the ten-ns and
conditions of which a wholly-owned subsidiary of the Company will merge with
and into Xxxxx Microcomputer Products in a reverse triangular merger (the
"Merger"), with Xxxxx Microcomputer Products to be the surviving corporation of
the Merger;
WHEREAS, upon the effectiveness of the Merger, all the outstanding
capital stock of Xxxxx will be converted into capital stock of the Company in
the manner and on the basis determined in the Merger Agreement and the Company
will change its name to Xxxxx Communications, Inc.; and
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WHEREAS, the Shareholders wish to enter into this Shareholders'
Agreement pursuant to Section 14-2-731 of the Georgia Business Corporation Code
and Section 218(c) of the Delaware General Corporation Law for the purposes of
defining their respective rights and obligations with respect to the Stock (as
hereinafter defined) and making provision with respect to the termination of
the Xxxxx Shareholders' Agreement and for the regulation of the Company's
affairs subsequent to the consummation of the Merger;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged by all parties, it is agreed as
follows:
1. DEFINITIONS.
1. 1. Definitions. As used in this Shareholders' Agreement,
the following terms shall have the following meanings:
(a) "Balance" shall have the meaning ascribed to that ten-n
in Section 4.4 of this Shareholders' Agreement.
(b) "Board of Directors" shall mean the board of directors of
the Company, as constituted from time to time.
(c) "Chairman" shall mean the individual appointed as the
Chairman of the Board of Directors of the Company from time to time by
the Board of Directors.
(d) "Closing" shall mean the closing of the transactions
contemplated by the Merger Agreement and shall have the same meaning
as the phrase "the Closing" used in the Merger Agreement.
(e) "Common Stock" shall mean the $0.01 par value per share
voting common stock of the Company.
(f) "Director" shall mean a Person who is at the time in
question a member of the Board of Directors.
(g) "Effective Date" shall have the meaning ascribed to that
term in Section 2 of this Shareholders' Agreement.
(h) "Employee Plan" shall mean Xxxxx Microcomputer Products'
Profit Sharing, Savings and Stock Plan or any successor plan pursuant
to the Merger.
(i) "Exercise Notice" shall mean written notice, which shall
be irrevocable, by or on behalf of any Shareholder or the Company, as
applicable, entitled to exercise an option or election to purchase all
or any Offered Shares pursuant to Article 4 hereof given to any
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Transferor or selling Shareholder, or its representative, within the
acceptance period, specifying a date for the closing of the purchase,
if applicable, which closing date shall conform to the applicable
requirements of Article 4 and such notice shall specify the number of
Offered Shares which the purchasing Shareholder or the Company, as the
case may be, elects to purchase.
(j) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(k) "Expiration Date" shall have the meaning ascribed to that
term in Section 4.2 of this Shareholders' Agreement.
(l) "Holder" shall mean any Person owning or having the right
to acquire Registrable Securities or any assignee thereof in
accordance with Section 7.10 of this Shareholders' Agreement.
(m) "Initiating Holders" shall have the meaning ascribed to
that term in Section 7.1 of this Shareholders' Agreement.
(n) "Investors" shall mean those persons or entities set
forth on Schedule I hereto, who are sometimes individually referred to
herein as an "Investor."
(o) "Non-Offering Shareholders" shall have the meaning
ascribed to that term in Section 4.2 of this Shareholders' Agreement.
(p) "Offer" shall have the meaning ascribed to that term in
Section 4.1 of this Shareholders' Agreement.
(q) "Offered Shares" shall mean any and all Preferred Shares
required or desired to be offered for sale by a Shareholder to any
other Shareholder or Shareholders or the Company pursuant to the terms
of this Shareholders' Agreement.
(r) "Offer Date" shall have the meaning ascribed to that term
in Section 4.2 of the Shareholders' Agreement.
(s) The phrase "owned or controlled" (or corollary phrases)
when used in this Shareholders' Agreement to describe a Person's
rights with respect to shares of Stock shall mean that such Person has
voting control over such shares, provided that shares of Stock held in
the Employee Plan shall not be deemed to be "owned or controlled" by
the trustee of the Employee Plan at any time when the Principal
Shareholder is such trustee.
(t) "Person" shall mean any natural person, corporation,
partnership, venture, joint venture, association, or other entity
whatsoever.
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(u) "Preferred Shares" shall mean the issued and outstanding
shares of Series A Preferred Stock of the Company.
(v) "President and CEO" shall be the individual appointed to
be the President and Chief Executive Officer of the Company from time
to time by the Board of Directors.
(w) "Proportion" shall mean, with respect to any Shareholder
entitled to purchase Offered Shares, the proportion of the total
number of such Offered Shares which the total number of shares of
Stock owned by each Shareholder (or by the Principal Shareholder and
his Permitted Transferees) entitled to purchase Offered Shares bears
to the total number of shares of Stock owned by all Shareholders (or
by the Principal Shareholder and his Permitted Transferees) entitled
to purchase Offered Shares.
(x) "Register," "registered," and "registration" shall mean
a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act,
and the declaration or ordering of effectiveness of such registration
statement or document.
(y) "Registrable Securities" means the Stock.
(z) "Registrable Securities then outstanding" shall (i) mean
the number of shares of Common Stock outstanding which are Registrable
Securities and the number of shares of Common Stock issuable pursuant
to the exercise of warrants, options or other rights which are
Registrable Securities and (ii) the number of shares of Common Stock
issuable upon the conversion of convertible securities which are
exercisable for or convertible into Registrable Securities.
(aa) "Merger Agreement" shall have the meaning ascribed to
that term in the Recitals to this Shareholders' Agreement.
(bb) "Rinzai" shall mean Rinzai Limited, a Hong Kong company.
(cc) "SEC" shall mean the Securities and Exchange Commission.
(dd) "Securities Act" shall mean the Securities Act of 1933,
as amended.
(ee) "Stock" shall mean (1) the Common Stock issuable or
issued upon conversion of the Xxxxx Microcomputer Products capital
stock in accordance with the terms of the Merger Agreement; (2) the
Common Stock issuable or issued upon conversion of the Preferred
Shares; and (3) any Common Stock of the Company issued as (or issuable
upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with
respect to, or in exchange for or in replacement of, such
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securities, excluding in all cases, however, any Registrable
Securities sold by a Person in a transaction in which its registration
rights are not assigned.
(ff) "Terms" shall have the meaning ascribed to that term in
Section 4.3 of this Shareholders' Agreement.
(gg) "Transfer" shall have the meaning ascribed to that term
in Section 2.1 of this Shareholders' Agreement.
(hh) "Transferor" shall have the meaning ascribed to that
term in Section 4.1 of this Shareholders' Agreement.
(ii) "Violation" shall have the meaning ascribed to that term
in Section 7.7 of this Shareholders' Agreement.
2. EFFECTIVE DATE.
This Amendment shall be effective as of the Closing of the Merger (the
"Effective Date") and shall continue in full force and effect until terminated
in accordance with Section 9 of this Shareholders' Agreement, whereupon the
Company shall become a party hereto.
3. TERMINATION OF XXXXX SHAREHOLDERS' AGREEMENT, ANTI-
DILUTION WARRANT AND VOTING TRUST AGREEMENT.
3.1. Termination of Xxxxx Shareholders' Agreement. The
Shareholders agree that, effective as of the Effective Date, the Xxxxx
Shareholders' Agreement shall be terminated and all of the respective rights
and obligations of the Shareholders under the Xxxxx Shareholders' Agreement
shall be of no further force or effect.
3.2. Termination of Anti-Dilution Warrant. Rinzai hereby
agrees that its rights under that Warrant (No. 1) to Purchase Common Stock
dated April 16, 1996 issued by Xxxxx to Rinzai will terminate on the Effective
Date.
3.3. Termination of Voting Trust Agreement. The Shareholders
agree that, effective as of the Effective Date, the Voting Trust Agreement
shall be terminated and all of the respective rights and obligations of any of
the Shareholders under the Voting Trust Agreement shall be of no further force
or effect.
4. REQUIRED OFFER PRIOR TO SALE AND OTHER RESTRICTIONS.
4.1. Required Offer Prior to Sale. No Shareholder may sell,
give, bequeath, pledge, assign, transfer or encumber in any manner whatsoever
(all such dispositions being hereinafter referred to as a "transfer" or
"disposition" and shall be deemed included in the verb "to dispose") any
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Preferred Shares to any Person unless the Shareholder seeking to make the
transfer (the "Transferor") shall first have made the written offer to sell
described in Section 4.2 below (the "Offer") and that Offer has not been
accepted pursuant to the terms of this Shareholders' Agreement.
4.2. Offer by Transferor. The Offer referred to in Section
4.1 shall be given by the Transferor to the Company and to each of the other
Shareholders (,herein the "Non-Offering Shareholders") and shall consist of a
written Offer to sell all the Offered Shares which the Transferor then intends
to dispose of, to which Offer shall be attached a statement of intention to
dispose of the Offered Shares pursuant to a bona fide offer from a prospective
purchaser or purchasers (the "Transferee"), a description of the contemplated
disposition, the name and address of each bona fide Transferee, the number of
Preferred Shares involved in and other terms (the "Terms") of the proposed
disposition. The Terms shall include, without limitation, the purchase price
per Offered Share offered by each Transferee and the manner in which such
purchase price shall be paid to the Transferor. Such Offer shall be signed by
the Transferor and shall remain irrevocable until the earlier of (a) the time
at which all of the Offered Shares are accepted by the Company or the Non-
Offering Shareholders, as provided in Sections 4.3 and 4.4 or (b) one hundred
twenty (120) days after the "Offer Date," which date shall be the date on which
a notice is given to the Company and such Non-Offering Shareholders in
accordance with the terms of Section 12.1 of this Shareholders' Agreement. The
date on which the Offer becomes revocable is referred to herein as the
"Expiration Date."
4.3. Acceptance of Offer by the Company. The Company may, at
its option exercise within sixty (60) days after the Offer Date, elect to
purchase all or any portion of the Offered Shares on the Terms (with the
designees of the selling Shareholder abstaining on any vote of the Board of
Directors of the Company with respect to such purchase). If and to the extent
the Company does not accept the Offer in accordance with this Section 4.3 with
respect to all of the Offered Shares, the Offered Shares may be disposed of in
accordance with Section 4.4. The Company shall exercise its option under this
Section 4.3 by giving an Exercise Notice. The Exercise Notice shall be in
accordance with the Terms. Any purchase by the Company of one hundred percent
(100%) of the Offered Shares shall be completed not later than ninety (90) days
after the Offer Date (subject to any extension of time required to permit
necessary governmental or regulatory filings, notices or approvals).
4.4. Acceptance of Offer by Shareholders. If and to the
extent the Company does not accept the Offer with respect to all of the Offered
Shares in accordance with the provisions of Section 4.3, the remaining Offered
Shares shall be deemed to be offered to the Non-Offering Shareholders and each
Non-Offering Shareholder may, at its option exercised within ten (10) days
after (i) the last day of the exercise period pursuant to Section 4.3 or, if
earlier (ii) the date on which the Company notifies the Shareholders of its
election to purchase less than all (or none) of the Offered Shares, elect to
purchase not more than its Proportion of the remaining Offered Shares. Each
Non-Offering Shareholder who exercises its option to purchase its Proportion of
the Offered Shares shall do so by giving an Exercise Notice. In the event that
any such Non-Offering Shareholder gives an Exercise Notice covering less than
its Proportion of the Offered Shares
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available to be purchased by Non-Offering Shareholders (such shares not covered
by Exercise Notices being referred to as the "Balance"), each of the
Non-Offering Shareholders that time delivered an Exercise Notice covering its
full Proportion of the Offered Shares available to be purchased by Non-Offering
Shareholders, may, by a second Exercise Notice delivered within ten (10) days
after the expiration of the first ten (10) day period referred to above, elect
to purchase up to that number of Offered Shares that is equal to the product of
the Balance multiplied by a fraction, the numerator of which shall be such
Non-Offering Shareholder's Proportion of the number of Offered Shares first
made available for purchase by Non-Offering Shareholders pursuant to this
Section 4.4, and the denominator of which shall be the total number of such
Offered Shares covered by the first Exercise Notices timely delivered by all
Non-Offering Shareholders which purchased their respective full Proportions.
If, after the expiration of the second ten (10) day period any Offered Shares
remain available to be purchased, any Non-Offering Shareholder which has timely
delivered Exercise Notices covering the maximum number of Offered Shares
available to it, may notify the Company, within five (5) days after the
expiration of such second ten (10) day period of its desire to purchase
additional Offered Shares, specifying the maximum number of such Offered Shares
it is willing to purchase. If more than one such notice is received by the
Company, the number of additional Offered Shares shall be allocated to the
Non-Offering Shareholders delivering such notices in the same proportion as
their respective offers bear to the total number of Offered Shares available in
the third and final round.
4.5. Purchases by Company and Shareholders. If the Company
and the Non- Offering Shareholders together, or the Non-Offering Shareholders
(or any of them) alone, elect to purchase 100% of the Offered Shares, the sale
and purchase of such shares shall be completed not later than one hundred and
five (105) days after the Offer Date (subject to any extension of time required
to permit necessary governmental or regulatory filings, notices or approvals).
The Transferor shall not be obligated to sell any Offered Shares to the Company
or to any Non-Offering Shareholder unless the Company and/or the Non-Offering
Shareholders have agreed to purchase, and purchase, 100% of the Offered Shares.
"Completion" of any sale pursuant to this Article 4 shall mean, at a minimum,
delivery by the selling Shareholder to each purchaser of certificate(s)
representing the number of Preferred Shares to be sold, in form for transfer by
delivery, and payment by each purchaser of the purchase price therefor in
accordance with the Terms, or as may otherwise be agreed by the parties.
5. SALE OF OFFERED SHARES TO TRANSFEREE.
If the Non-Offering Shareholders and the Company do not elect to
purchase all of the Offered Shares in accordance with the terms of Sections 4.3
and 4.4 the Transferor shall not be obligated to sell any of the Offered Shares
to the Non-Offering Shareholders or the Company and shall be entitled to
dispose of all of the Offered Shares to the Transferee on the Terms, provided
that such disposition is consummated within one hundred fifty (150) days
(subject to any extension of time required to permit necessary governmental or
regulatory filings, notices or approvals) after the Offer Date and the
Transferee executes a counterpart of this Shareholders' Agreement and agrees to
remain bound by all terms of this Shareholders' Agreement. Any proposed
transfer on terms and conditions
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other than the Terms, as well as any subsequent proposed transfer of Preferred
Shares by such Shareholder, shall again be subject to the rights of the Company
and the Non-Offering Shareholders and shall require compliance by Transferor
with the procedures described in Article 4.
6. EFFECTS OF NON-PARTICIPATION.
The exercise or non-exercise of the rights of any Shareholder or the
Company under Article 4 to participate in one or more sales of shares of Stock
made by the Company or any Shareholder shall not adversely affect such
Shareholder's or the Company's right, as applicable, to participate in
subsequent sales of shares of Stock subject to Article 4.
7. REGISTRATION RIGHTS.
7.1. Company Registration. If at any time after the date of
this Shareholders' Agreement the Company proposes to register (including for
this purpose a registration effected by the Company for shareholders other than
the Holders) any of its stock or other securities under the Securities Act in
connection with the public offering of such securities solely for cash (other
than a registration relating solely to the sale of securities to participants
in a Company stock plan, or a registration relating to shares to be issued in
connection with the acquisition of another company, or a registration on any
form which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder made within (30) days after the Company shall have given such notice in
accordance with Section 12.1 hereof, the Company shall, subject to the
provisions of Section 7.5, use all reasonable efforts to cause to be registered
under the Securities Act all of the Registrable Securities that each such
Holder has requested to be registered.
7.2. Obligations of the Company. Whenever required under this
Article 7 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use all reasonable
efforts to cause such registration statement to become effective, and,
upon the request of the Holders of a majority of the Registrable
Securities registered thereunder, keep such registration statement
effective for up to one hundred twenty (120) days;
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement;
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(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they
may reasonably request in order to facilitate the disposition of
Registrable Securities owned by them;
(d) Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be
reasonably requested by the Holders, provided, however, that the
Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions; and
(e) Enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the managing
underwriter of such offering. Each Holder participating in such
underwriting shall also enter into and perform its obligations under
such an agreement.
7.3. Furnish Information. It shall be a condition precedent
to the obligations of the Company to take any action pursuant to this Article 7
that the selling Holders shall furnish to the Company such information
regarding themselves, the Registrable Securities held by them, and the intended
method of disposition of such securities as shall be reasonably and customarily
required to effect the registration of the Registrable Securities.
7.4. Expenses of Company Registration. The Company shall bear
and pay all, expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 7.1 for each Holder (which right may be assigned as
provided in Section 7.10), including (without limitation) all registration,
filing and qualification fees, printers' and accounting fees relating or
apportionable thereto and the reasonable fees and disbursements (not to exceed
US $50,000) of one counsel for the selling Holders selected by them, but
excluding underwriting discounts and commissions relating to Registrable
Securities.
7.5. Underwriting Requirements. In connection with any
offering involving an underwriting of shares being issued by the Company, the
Company shall not be required under Section 7.1 to include any of the Holders'
securities in such underwriting unless such Holder accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected
by the Company, and then only in such quantity as will not, in the opinion of
the underwriters, jeopardize the success of the offering by the Company. If the
total amount of securities, including Registrable Securities, requested by
shareholders to be included in an offering exceeds the amount of securities to
be sold other than by the Company that the underwriters reasonably believe
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of Registrable Securities which the
underwriters believe will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling
shareholders according to the total amount of securities requested to be
included therein
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owned by each selling shareholder or in such other proportions as shall
mutually be agreed to by such selling shareholders).
If any Person does not agree to the terms of any such
underwriting, it shall be excluded therefrom by written notice from the Company
or the underwriter. Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration. If shares are so
withdrawn from the registration, the Company shall then offer to all Persons
who have retained the right to include securities in the registration the right
to include additional securities in the registration in an aggregate amount
equal to the number of shares so withdrawn, with such shares to be allocated
among the Persons requesting additional inclusion pro rata according to the
total amount of securities requested to be included in such registration owned
by each such Person or in such other proportions as shall be mutually agreed by
such selling shareholders.
For purposes of the immediately preceding paragraph
concerning apportionment, for any selling shareholder which is a holder of
Registrable Securities and which is a partnership or corporation, the partners,
retired partners and shareholders of such Holder, or the estates and family
members of any such partners and retired partners, and any trusts for the
benefit of any of the foregoing Persons shall be deemed to be a single "selling
shareholder," and any pro rata reduction with respect to such "selling
shareholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling shareholder," as defined in this sentence.
7.6. Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Article 7.
7.7. Indemnification. In the event any Registrable Securities
are included in a registration statement under this Article 7:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the officers, directors,
partners, employees and legal counsel of each Holder, and each Person,
if any, who controls such Holder within the meaning of the Securities
Act or the Exchange Act, against any losses, claims, damages or
liabilities (joint or several) to which they may become subject under
the Securities Act, the Exchange Act or any other federal or state
law, rule or regulation insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations
(collectively, a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not
misleading in light of the circumstances in which they were made, or
(iii) any violation or alleged violation
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by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities law; and the
Company will reimburse each such Holder, officer, director, partner,
employee, legal counsel, underwriter or controlling Person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action or enforcing these indemnification provisions, as such expenses
are incurred; provided, however, that the indemnity agreement
contained in this subsection 7.7(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if
such settlement is effected without the consent of the Company, nor
shall the Company be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity
with written information shed expressly for use in connection with
such registration by any such Holder.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors and
officers, its legal counsel, each Person, if any, who controls the
Company within the meaning of the Securities Act, and any other Holder
selling securities in such registration statement or any of such other
Holder's directors, officers, employees, legal counsel or any Person
who controls such Holder, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such
director, officer, employee, legal counsel, or controlling Person, or
other such Holder or director, officer, employee, legal counsel or
controlling Person of such other Holder may become subject, under the
Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each
case to the extent (and only to the extent) that such Violation occurs
in reliance upon and in conformity with written information furnished
by such Holder expressly for use in connection with such registration;
and each such Holder will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer,
employee, legal counsel, controlling Person, other Holder, or officer,
director, employee, legal counsel, or controlling Person of such other
Holder in connection with investigating or defending any such loss.
claim, damage, liability, or action or enforcing these
indemnifications provisions, as such expenses are incurred; provided,
however, that the indemnity agreement contained in this subsection
7.7(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected
without the consent of the indemnifying Holder.
(c) Promptly after receipt by an indemnified party under this
Section 7.7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under
this Section 7.7, give to the indemnifying party a written notice of
the commencement thereof and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to
the parties; provided,
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however, that an indemnified party shall have the right to retain its
own counsel at its own expense if it so desires. Notwithstanding the
foregoing, if the indemnified party and the indemnifying party have
conflicting interests with respect to the action so that joint counsel
for them would be inappropriate (as determined by counsel to the
indemnified party and counsel to the indemnifying party), then the
indemnifying party shall pay reasonable fees and expenses of one
counsel to the indemnified party. Each indemnified party shall give
reasonably prompt notice to each indemnifying party or parties of any
action or proceeding commenced against it in respect of which
indemnity may be sought hereunder, but the failure to deliver written
notice to the indemnifying party within a reasonable time of the
commencement of any such action, shall not relieve such indemnifying
party of any liability to the indemnified party under this Section
7.7, unless the indemnifying party is materially prejudiced by such
failure to give notice.
(d) If the indemnification provided for in this Section 7.7
is held by a court of competent jurisdiction to be unavailable to an
indemnified party or insufficient to hold harmless an indemnified
party under subsection (a), (b), or (c) above, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a), (b), or (c) above, in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the
other in connection with the action, statement or omission that
resulted in such claims, as well as other equitable considerations.
The relative fault shall be determined with reference to, among other
things, whether the untrue statement or alleged omission to state a
material fact relates to information supplied by the indemnifying
party or such indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the foregoing provisions
of this Section 7.7, a Holder of Registrable Securities shall not, as
an indemnifying party, be required to contribute any amount in excess
of (x) the amount by which the total price at which the Registrable
Securities sold by such indemnifying party were offered to the public
exceeds (y) the amount of any damages which such indemnifying party
has otherwise been required to pay by reason of such action, untrue or
alleged untrue statement or omission or alleged omission. The Company
and each Holder of Registrable Securities agrees that it would not be
just and equitable if contribution pursuant to this Section 7.7(d)
were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 7.7(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages or
liabilities referred to above in this Section 7.7(d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigation or defense of any
such action or claim which is the subject of this subsection (d) or
enforcement of these contribution provisions.
(e) The obligations of the Company and Holders under this
Section 7.7 shall survive the completion of any offering of
Registrable Securities in a registration statement under this Article
7, and otherwise.
- 12 -
13
7.8. Reports Under Securities Exchange Act. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and
the Exchange Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement
by the Company that it has complied with the reporting requirements of
SEC Rule 144, the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), and (ii)
a copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company.
7.9. Form S-3 Registration. In case the Company shall receive
at any time after ninety (90) days from the Closing Date written request or
requests from a Holder that the Company effect a registration on Form S-3 and
any related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all
other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as
would permit or facilitate the sale and distribution of all such
portion of such Holder's or Holders' Registrable Securities as are
specified in such request, together with all or such portion of the
Registrable Securities of any other Holder or Holders joining in such
request as are specified in a written request made within thirty (30)
days after the Company shall have given such notice pursuant to
Section 12.1 hereof; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance
pursuant to this Section 7.9 (i) if Form S-3 is not available for such
offering by the Holders; (ii) if the Holders, together with the
holders of any other securities of the Company entitled to inclusion
in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public of less
than Five Million Dollars (US $5,000,000); (iii) if the Company shall
furnish to the Holders a certificate signed by the CEO stating that in
the good faith judgment of the Board of Directors it would be
seriously detrimental to the Company and its stockholders for such
Form S-3 Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3
Registration Statement for a period of not more than one hundred
eighty (180) days after receipt of the request of the Holder or
Holders
- 13 -
14
under this Section 7.9; provided, however, that the Company shall not
utilize this right more than once in any 12 month period; (iv) if the
Company within the nine month period preceding the date of such
request, already has effected one registration on Form S-3 for the
Holders pursuant to this Section 7.9 or within the 48 month period
preceding the date of such request already has effected five such
registrations and other similar provisions granting rights to the
registration on Form S-3; or (v) in any particular jurisdiction in
which the Company would be required to qualify to do business or to
execute a general consent to service of process in effecting such
registration, qualification or compliance.
Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other
securities so requested to be registered (including securities which
the Company wishes to issue), as soon as practicable after receipt of
the request or requests of the Holders. All expenses, other than
underwriting discounts and commissions, incurred in connection with
the registrations pursuant to this Section 7.9, including (without
limitation) all other registration, filing, qualification, printer's
and accounting fees shall be borne by the Company.
7.10. Assignment of Registration Rights. The rights to cause
the Company to register Registrable Securities pursuant to this Article 7 may
be assigned by a Holder to a transferee or assignee who has lawfully received
the shares in a private sale in accordance with all applicable laws and
regulations and with respect to Registrable Securities, the terms of this
Shareholders' Agreement; provided, however, in each case, the Company is,
within a reasonable period of time after such transfer, given written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; and provided,
further, that such assignment shall be effective only if (i) immediately
following such transfer the further disposition of any such securities by the
transferee or assignee is restricted under the Securities Act and (ii) the
transferee agrees to be bound by the terms of this Article 7.
7.11. Amendment of Registration Rights. Any provision of this
Article 7 may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
at least seventy percent (70%) of the Registrable Securities. Any amendment or
waiver effected in accordance therewith shall be binding upon each holder of
any securities purchased under this Shareholders' Agreement at the time
outstanding (including securities into which such securities are convertible),
each future holder of all such securities, and the Company; provided, however,
that no such amendment or the waiver of the observance of any provisions of
this Article 7 that adversely affect the rights of Vulcan Ventures Incorporated
may occur without Vulcan Ventures Incorporated's consent.
7.12. Termination of Registration Rights. The Company's
obligations pursuant to this Article 7 shall terminate with respect to each
Holder upon the earlier to occur of (i) five (5) years after the Closing Date
or (ii) such time as such Holder may sell all of its Registrable Securities
- 14 -
15
pursuant to Rule 144 of the Securities Act without being subject to the volume
limitations of Rule 144.
8. DIRECTORS.
8.1 Election of Directors. The Principal Shareholder,
Chestnut, Rinzai and Xxxxxx agree to vote their shares of Stock (or in the case
of Xxxxxx all shares of the Company held beneficially or of record by him) for
the election of directors as hereinafter set forth. Subject to the provisions
of Section 8.2 of this Shareholders' Agreement, each of the Principal
Shareholder, Chestnut, Rinzai and Xxxxxx shall vote (or cause to be voted) all
of the shares of Stock owned or controlled by him or it (or in the case of
Xxxxxx all shares of the Company held beneficially or of record by him) so as
to provide for the election to the Board of Directors, at any annual or special
meeting called for such purpose, of
8.1.1. With respect the Class I Directors as defined
in the Amended and Restated Certificate of Incorporation of
the Company: (i) one (1) individual designated by Rinzai and
(ii) one (1) individual to be approved by both the Principal
Shareholder and Rinzai in writing in their respective sole
and absolute discretion;
8.1.2. With respect to the Class 11 Directors as
defined in the Amended and Restated Certificate of
Incorporation of the Company: two (2) individuals to be
approved by both the Principal Shareholder and Rinzai in
writing in their respective sole and absolute discretion;
8.1.3. With respect to the Class III Directors as
defined in the Amended and Restated Certificate of
Incorporation of the Company: (i) one (1) individual to be
approved by both the Principal Shareholder and Rinzai in
writing in their respective sole and absolute discretion;
(ii) Xxxxxx; and (iii) the Principal Shareholder; and
8.1.4. In the event that the number of directors
making up any of the aforesaid Class I, II or III is
increased the individuals who make up the such additional
members of the Board of Directors shall be approved by both
the Principal Shareholder and Rinzai in writing in their
respective sole and absolute discretion;
provided, however, that in the event that both the Principal
Shareholder and Rinzai have not approved one or more of the individuals as
contemplated by this Section 8.1. not less than seventy five (75) days prior
to each annual general meeting of the Company, then Rinzai shall within ten
(10) days thereafter propose two (2) individuals (each of whom may not be, nor
have been, an affiliate of either the Company, Rinzai or the Principal
Shareholder) in respect of each such vacant position and the individual chosen
by the Principal Shareholder (such choice to be made within five (5) days of
receipt of such proposal) from Rinzai's nominations shall be deemed to have
been approved by both the Principal Shareholder and Rinzai for the purposes of
this Section 8.1.
- 15 -
16
8.2. Termination of Provisions under Certain Circumstances. If
at any time the number of shares of Stock owned or controlled by any of the
Principal Shareholder and Chestnut, or Rinzai (or by any transferee of any
thereof who is entitled, pursuant to the provisions of Section 8.1, to
designate Directors) shall be less than ten percent (10%) of the then issued
and outstanding shares of capital stock of the Company by reason of any sale or
other disposition made by either (i) the Principal Shareholder and Chestnut or
(ii) Rinzai, as applicable, this Article 8 shall terminate and be of no further
force and effect. 'This Agreement shall terminate as to Xxxxxx, and Xxxxxx
shall have no further rights or obligations hereunder, at such time as Xxxxxx
ceases to be Vice Chairman and Executive Vice President of the Company.
9. TERMINATION.
This Shareholders' Agreement shall continue until the first to occur
of (a) the tenth (10th) anniversary of this Shareholders' Agreement or (b) the
termination of all the rights of each Shareholder under this Shareholders'
Agreement pursuant to the terms hereof, provided, however, that if at any time
prior to the Effective Date, the Merger Agreement terminates in accordance with
its terms, this Shareholders' Agreement shall terminate concurrently with the
Merger Agreement.
10. RELEASE OF GUARANTEES.
Xxxxx Microcomputer Products (the "Releasors") hereby release and
forever discharge AC Limited (in respect of its guarantee of the obligations,
covenants and agreements of Rinzai), Xxxx'x International (Holdings) Limited
(in respect of its guarantee of the obligations, covenants and agreements of
Rolling Profit Holdings, Ltd.), X.X. Xxx Holdings Limited (in respect of its
guarantee of Saliendra Pte Ltd.), Xxxxxxx GTS Limited (in respect of its
guarantee of the obligations, covenants and agreement of Lao Hotel (H.K.)
Limited) and their respective stockholders, predecessors, assigns, successors,
subsidiaries, directors, officers, employees, agents, representatives,
attorneys and persons acting on its behalf (the "Releasees") from any and all
manner of actions, claims, lawsuits, liabilities and damages based on or
otherwise relating to Releasors' rights or obligations with respect to their
respective shareholders or any third party arising from or otherwise relating
to the Shareholders' Agreement. This Release is intended to release any and all
matters known, unknown, suspected, unsuspected or hereafter discovered or
ascertained with respect to the subject matter thereof. Releasors warrant and
represent to Releasees that they have not assigned, conveyed or transferred any
of the claims or possible claims against Releasees (or any interest therein)
which are released or referred to herein and that the Release herein is what
Releasors purport it to be. This Release is binding upon, and shall inure to
the benefit of, each of the parties and their respective officers, directors,
investors, agents, representatives, partners, predecessors, successors and
assigns. The parties hereto agree that ACMA Limited, Xxxx'x International
(Holdings) Limited, X.X. Xxx Holdings, and Xxxxxxx GTS Limited are express
third party beneficiaries of this Section 10.
- 16 -
17
11. SPECIFIC PERFORMANCE.
The Shareholders, the Company and Xxxxxx acknowledge and agree that
the recovery of money damages will not constitute an adequate remedy for breach
of the provisions of this Shareholders' Agreement. Accordingly, the parties
agree that the provisions of this Shareholders' Agreement may be specifically
enforced against them and transferees of securities of the Company which are
subject to this Shareholders' Agreement (in addition to any other remedies
available for breach of this Shareholders' Agreement), and the parties (for
themselves and, in the case of the Shareholders, transferees of their
securities of the Company), hereby waive the defense in any equitable
proceeding that there is an adequate remedy at law for any such breach.
12. MISCELLANEOUS.
12.1. Notices. All notices, approvals, consents, requests and
other communications that any party is required or elects to give hereunder
shall be in writing and shall be deemed to have been given (a) upon personal
delivery thereof, including by appropriate international courier (e.g. Fedex or
DHL) service, five (5) days after delivery to the courier or, if earlier, upon
delivery against a signed receipt therefor or (b) upon transmission by
facsimile or telecopier, which transmission is confirmed, in either case
addressed to the party to be notified at the address set forth below or at such
other address as such party shall have notified the other parties hereto, by
notice given in conformity with this Section 12.1:
The Company: Xxxxx Communications, Inc.
0000 Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
with a required copy to: G. Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Xxxxxx: Xxxxxx Xxxxxx
c/o Access Beyond
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
- 17 -
18
Kaifa: Kaifa Technology (H.K.) Limited
2201 Hong Kong Worsted Xxxxx Industrial Building
31-39 Wo Xxxx Xxxx Street
Xxxx Xxxxx, New Territories
Hong Kong
Attention: Xx. Xxx Man Chi, President
Telecopy: (000) 0000-0000
with a required copy to: Xxxxxx Xxxx & Company
00/X, Xxx Xxxxxxxx Xxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx Xxxx
Attention: Xx. Xxxxxx Xxxxxxx
Telecopy: (000) 0000-0000
RPH: Rolling Profit Holdings Limited
Arion Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxx 000
0-00 Xxxxx'x Xxxx Xxxx
Xxxx Xxxx
Xxxxxxxxx: President
Telecopy: (000) 0000-0000
with a required copy in
either case to: Xxxxxxx, Xxxxxx & Bruiniers
000 Xxxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
Rinzai: Rinzai Limited
x/x Xxxx Xxxxxxx
00 Xxxxxx Xxxx Xxxx
Xxxxxxxxx 0000
Attention: President
Telecopy: 000 00 000-0000
Lao Hotel: Lao Hotel (H.K.) Limited
x/x Xxxxxxx XXX Xxxxxxx
000Xxxx Xxxxxx # 00-00
Xxxxxxxxx 000000
Attention: Xx. Xxxxxx Xxx
Telecopy: 011 65 224-921 1
- 18 -
19
Saliendra Pte: Saliendra Pte Ltd.
c/o XX Xxx Holdings Limited
00 Xxxxxxx Xxxxx
#00-00 Xxxxx Xxxxx
Xxxxxxxxx 000000
Attention: Xx. Xxx Xxxxx Xxxx
Telecopy: 000 00 000-0000
S.P. Quek Investments: S.P. Quek Investments Pte Ltd.
x/x Xxxx Xxxxxxx
00 Xxxxxx Xxxx Xxxx
Xxxxxxxxx 000000
Attention: President
Telecopy: 000 00 000-0000
with a required copy in the case of any notice to Rinzai, Lao Hotel (H.K.)
Limited, Saliendra Pte Ltd., or S.P. Quek Investments Pte Ltd. to:
Xxxxxxx Xxxxx Xxxx & Black, LLP
00 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Principal Shareholder or Chestnut: Xxxxxx Xxxxx: Xxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
12.2. Governing Law. This Shareholders' Agreement shall be
governed by and construed under the laws of the State of Delaware without
reference to its conflicts of law principles. Any action brought hereunder
shall be heard by a court sitting in Xxxxxx County, Georgia.
12.3. Counterparts. This Shareholders' Agreement may be
executed in one or more counterparts, including counterparts transmitted by
telecopier or telefax, all of which shall be considered one and the same
agreement. Facsimile copies with signatures of the parties to this
Shareholders' Agreement, or their duly authorized representatives, shall be
legally binding and enforceable. All such facsimile copies are declared as
originals and accordingly admissible in any jurisdiction or tribunal having
jurisdiction over any matter relating to this Shareholders' Agreement.
- 19 -
20
12.4. Titles and Subtitles. The titles and subtitles used in
this Shareholders' Agreement are used for convenience only and are not to be
considered in construing or interpreting this Shareholders' Agreement.
12.5. Amendments and Waivers. Except as expressly provided in
Section 7.11 hereof, no amendment to this Shareholders' Agreement shall be
effective unless it is in writing and is signed by all the parties hereto, and
no waiver of any provision of this Shareholders' Agreement or consent to any
departure by any party from the terms hereof, shall in any event be effective
unless in writing and signed by the party or parties against whom such waiver
or consent is asserted and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose recited therein.
12.6. Severability. If one or more provisions of this
Shareholders' Agreement are held to be unenforceable under applicable law, such
provision shall be excluded from this Shareholders' Agreement and the balance
of this Shareholders' Agreement shall be interpreted as if such provision were
so excluded and shall be enforceable in accordance with its terms.
12.7. Entire Agreement. This Shareholders' Agreement, the
Merger Agreement and the other documents and agreements delivered pursuant
hereto and thereto constitute the full and entire understanding and agreement
among the parties with regard to the subjects hereof and thereof and supersedes
any prior agreements (including any memorandum of understanding or letters of
intent) between the parties regarding the subject matter hereof.
12.8. Execution of Certain Other Agreements. The Shareholders
and Xxxxx Microcomputer Products hereby acknowledge that neither the execution
by any of them of any Voting Agreement (and related Proxy), Affiliate
Agreement, Market Standoff, Pledge Agreement or other similar agreement
contemplated by the Merger Agreement or otherwise entered into in connection
with the Merger Agreement nor the consummation of any of the actions or
transaction contemplated thereby shall constitute a breach of the Xxxxx'
Shareholders Agreement.
IN WITNESS WHEREOF, the parties hereto have set forth their hand and
seal effective as of the date first above written.
- 20 -
21
SHAREHOLDERS:
/s/ Xxxxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxx
------------------------------ --------------------------------------
Witness Xxxxxx X. Xxxxx
RINZAI LIMITED
By: /s/ Chou Kong Seng
-----------------------------
Name: Chou Kong Seng
Title: Authorized Representative
KAIFA TECHNOLOGY (H.K.) LIMITED
By: /s/ Tam Man Chi
-----------------------------
Name: Tam Man Chi
Title: President
ROLLING PROFIT HOLDINGS LIMITED
By: /s/ Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Director
LAO HOTEL (H.K.) LIMITED
By: /s/ Xxxxx Xxx Xxx Xxxx
-----------------------------
Name: Xxxxx Xxx Xxx Xxxx
Title: Director
SALIENDRA PTE LTD.
By: /s/ Xxx Xxxxx Sang
------------------------------
Name: Xxx Xxxxx Sang
Title: Director
- 00 -
00
X. X. XXXX XXXXXXXXXXX XXX. LTD.
By: /s/ Sim Pin Quek
------------------------------------------
Name: Sim Pin Quek
Title: Director
VULCAN VENTURES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CHESTNUT
CHESTNUT CAPITAL LIMITED
PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
"XXXXXX"
XXXXXX X . XXXXXX
Only for the purposes of Sections of 8 and 11 of
this Shareholders' Agreement
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------------
"COMPANY"
ACCESS BEYOND, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
[CORPORATE SEAL]
ATTEST:
By:
-------------------------------
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