VOTING AGREEMENT
REGARDING VOTING OF SHARES OF
RENDITION, INC.
This Voting Agreement Regarding Voting of Shares of Rendition, Inc. (the
"Voting Agreement") is made and entered into as of June 22, 1998 (the "Effective
Date") between Micron Technology, Inc., a Delaware corporation (Micron"), and
each of the undersigned shareholders (collectively, the "Shareholders" and
individually a "Shareholder") of Rendition, Inc., a California corporation
("Rendition").
RECITALS
A. This Voting Agreement is entered into pursuant to that certain
Agreement and Plan of Reorganization dated as of June 22, 1998, as such may be
amended (the "Plan of Reorganization"), entered into by and between Micron and
Rendition. The Plan of Reorganization provides, among other things, for the
statutory merger of Rendition with and into Micron (the "Merger"), in accordance
with the terms and conditions of the Plan of Reorganization and the Agreement of
Merger to be entered into between Micron and Rendition in the form attached to
the Plan of Reorganization (the "Agreement of Merger"). The Plan of
Reorganization and the Agreement of Merger are collectively referred to herein
as the "Merger Agreements." Capitalized terms used herein and not defined herein
shall have the meanings that such terms have in the Plan of Reorganization.
B. The Merger Agreements provide for the conversion of all of the issued
and outstanding stock of Rendition at the Effective Time of the Merger into
shares of Micron Common Stock, all as more particularly set forth in the Merger
Agreements.
C. As a condition to the willingness of Micron to enter into the Plan of
Reorganization, Micron has required that each of the Shareholders agree, and in
order to induce Micron to enter into the Plan of Reorganization each of the
Shareholders has agreed, to enter into this Voting Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. VOTING OF RENDITION SECURITIES
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1.1 Rendition Securities. Exhibit A hereto sets forth all shares of
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Rendition capital stock and any other securities of Rendition owned by each
Shareholder, including all securities of Rendition as to which such Shareholder
has sole or shared voting or investment power, and all rights, options and
warrants to acquire shares of capital stock or other securities of Rendition
granted to or held by such Shareholder (such shares of Rendition capital stock,
rights, options and warrants to acquire shares of Rendition capital stock and
other securities of Rendition are hereinafter collectively referred to as
"Rendition Stock"). As used herein, the term "New Rendition Securities" means,
collectively, any and all shares of Rendition capital stock, other securities of
Rendition and rights, options and warrants to acquire shares of Rendition
capital stock and other securities of Rendition that a Shareholder may purchase
or otherwise acquire any interest in (whether of record or beneficially), on and
after the Effective Date of this Voting Agreement and prior to the Expiration
Date (as defined below). All New Rendition Securities will be subject to the
terms of this Voting Agreement to the same extent and in the same manner as if
they were Rendition Stock. The Rendition Stock and the New Rendition Securities
shall be collectively referred to herein as the "Rendition Securities." As used
herein, the term "Expiration Date" means the earliest to occur of (i) the
Effective Time of the Merger, or (ii) such time as the Plan of Reorganization is
terminated in accordance with its terms.
1.2 Voting Agreement. Each Shareholder hereby agrees with Micron that,
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prior to the Expiration Date, at any meeting of the shareholders of Rendition,
however called, and in any action by written consent of shareholders of
Rendition, unless otherwise directed or authorized in writing by Micron, such
Shareholder shall vote all of such Shareholder's Rendition Securities in favor
of the Merger, the execution and delivery by Rendition of the Merger Agreements
and the adoption and approval of the terms thereof and in favor of each of the
other actions contemplated by the Merger Agreements and any action required in
furtherance hereof and thereof.
Each Shareholder further agrees that prior to the Expiration Date, such
Shareholder shall not enter into any agreement or understanding with any person
to vote or give instructions in any manner inconsistent with this Section 1.2.
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1.3 Proxy; Further Assurances.
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(a) Contemporaneously with the execution of this Voting Agreement,
each Shareholder shall deliver to Micron a proxy in the form attached hereto as
Exhibit B, which shall be irrevocable to the fullest extent permitted by law,
with respect to the Rendition Securities (the "Proxy").
(b) Each Shareholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
Micron the power to carry out and give effect to the provisions of this Voting
Agreement.
2. WAIVER OF DISSENTERS' RIGHTS
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Each Shareholder hereby waives any dissenters' rights that such Shareholder
may have in connection with the Merger.
3. NO SOLICITATION
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Each Shareholder covenants and agrees with Micron that, during the period
commencing on the date of this Voting Agreement and ending on the Expiration
Date, such Shareholder shall not, directly or indirectly: (i) solicit or
initiate discussions or engage in negotiations with any person other than Micron
or take any action intended, designed or reasonably likely to facilitate the
efforts of any person, other than Micron or its affiliates, relating to the
possible acquisition of Rendition (whether by way of merger, purchase of its
capital stock, purchase of assets or otherwise) or any material portion of its
capital stock or assets ("Acquisition Proposal"), (ii) furnish any nonpublic
information regarding Rendition to any person in connection with or in response
to an Acquisition Proposal or potential Acquisition Proposal; (iii) engage in
discussions with any person with respect to any Acquisition Proposal; (iv)
endorse or recommend any Acquisition Proposal; or (v) enter into any letter of
intent or other similar document or any contract contemplating or otherwise
relating to any Acquisition Proposal. Each Shareholder shall immediately cease
any existing discussions with any persons other than Micron that relate to any
Acquisition Proposal.
4. OBLIGATIONS AS A DIRECTOR AND/OR OFFICER OF RENDITION
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If at any time prior to the Expiration Date a Shareholder or a
representative of a Shareholder is a member of the Board of Directors of
Rendition (a "Director") or an officer of Rendition, nothing in this Agreement
shall limit or restrict any such Director or officer in acting in such person's
capacity as a Director or officer, as the case may be, of Rendition and in the
exercise of such person's fiduciary duties and responsibilities in such
capacity, it being agreed and understood that this Agreement shall apply to such
Shareholder solely in such Shareholder's capacity as a shareholder of Rendition
and shall not
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apply to any Director's or officer's actions, judgments or decisions as a
Director or officer of Rendition. Each Director and officer of Rendition shall
be presumed to be acting in such person's capacity as a Director or officer, as
the case may be, of Rendition absent clear and convincing evidence to the
contrary.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDERS
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5.1 Representations, Warranties and Covenants of Shareholder. Each
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Shareholder represents, warrants and covenants as follows:
(a) Authority. Shareholder has full power and authority to enter
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into, execute, deliver and perform Shareholder's obligations under this Voting
Agreement and to make the representations, warranties and covenants herein
contained.
(b) Rendition Securities Owned. Except as otherwise disclosed in the
--------------------------
Rendition Disclosure Letter, at the date hereof, all the Rendition Stock owned
by Shareholder is, and at all times until and through the Expiration Date all
the Rendition Securities owned by Shareholder will be, free and clear of any
rights of first refusal, co-sale rights, security interests, liens, pledges,
claims, options, charges or other encumbrances.
(c) Transfers of Rendition Securities. From the Effective Date and
---------------------------------
through and including the Expiration Date, if Shareholder sells, transfers,
encumbers or otherwise disposes of any Rendition Securities, Shareholder shall
(i) provide written notice to Micron, as provided herein, immediately prior to
any such sale, transfer, encumbrance or other disposition, except in connection
with an exchange of Rendition Securities for securities of Micron in connection
with the consummation of the Merger in accordance with the terms of the Merger
Agreements, (ii) if requested by Micron, require the purchaser or other
transferee of any such securities to be bound by all of the terms and
obligations of this Voting Agreement, and (iii) if requested by Micron, provide
assurances, acceptable to Micron in its reasonable discretion, that such sale,
transfer, encumbrance or other disposition will not prevent the Merger from
being accounted for as a pooling-of-interests.
(d) Further Assurances. Shareholder agrees to execute and deliver
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any additional documents reasonably necessary or desirable, in the opinion of
Micron, to carry out the purposes and intent of this Voting Agreement.
6. MISCELLANEOUS
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6.1 Notices. Any notice or other communication required or permitted to
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be given under this Voting Agreement will be in writing, will be delivered
personally, by telecopier (with a hard copy also mailed), or by registered or
certified mail, postage prepaid and will be deemed given upon delivery, if
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delivered personally, one business day after transmission by telecopier with
confirmation of receipt, or three (3) days after deposit in the mails, if
mailed, to the following addresses:
(i) If to Micron:
Micron Technologies, Inc.
0000 X. Xxxxxxx Xxx
Xxxxx, XX 00000-0000
Attention: General Counsel
With a copy to:
Xxxxx Xxxxxxxx
Holland & Xxxx, LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000-0000
(ii) If to a Shareholder:
To the address for such Shareholder set forth
on Exhibit A hereof,
With a copy to:
Xxxxx Xxxx
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
or to such other address as a party may have furnished to the other parties in
writing pursuant to this Section 6.1.
6.2 Termination. This Voting Agreement shall be terminated and shall be
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of no further force and effect upon the termination of the Plan of
Reorganization pursuant to its terms.
6.3 Counterparts. This Voting Agreement may be executed in any number of
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counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Voting Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
all parties reflected hereon as signatories.
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6.4 Assignment; Binding Upon Successors and Assigns. Neither party hereto
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may assign any of its rights or obligations hereunder without the prior written
consent of the other party hereto. This Voting Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
6.5 Waiver and Amendment. The waiver by a party of any breach hereof or
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default in the performance hereof will not be deemed to constitute a waiver of
any other default or any succeeding breach or default. This Voting Agreement
may be amended by the parties hereto upon the execution and delivery of a
written agreement executed by the parties hereto.
6.6 Governing Law. The internal laws of the State of California
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(irrespective of its choice of law principles) will govern the validity of this
Voting Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto.
6.7 Severability. If any term, provision, covenant or restriction of this
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Voting Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Voting Agreement will remain in full force and effect and
will in no way be affected, impaired or invalidated. The parties further agree
to replace such invalid or unenforceable term with a valid and enforceable
provision that will achieve, to the greatest extent possible, the economic,
business and other purposes of the invalid or unenforceable provision.
6.8 Construction of Agreement. This Voting Agreement has been negotiated
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by the respective parties hereto and their attorneys and the language hereof
will not be construed for or against either party. A reference to a Section will
mean a Section in this Voting Agreement unless otherwise explicitly set forth.
The titles and headings herein are for reference purposes only and will not in
any manner limit the construction of this Voting Agreement which will be
considered as a whole.
6.9 Attorneys' Fees. Should suit be brought to enforce or interpret any
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part of this Voting Agreement, the prevailing party will be entitled to recover,
as an element of the costs of suit and not as damages, reasonable attorneys'
fees to be fixed by the court (including without limitation, costs, expenses and
fees on any appeal). The prevailing party will be entitled to recover its costs
of suit, regardless of whether such suit proceeds to final judgment.
6.10 Specific Performance; Injunctive Relief. The parties hereto
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acknowledge that Micron will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Shareholder set forth herein. Therefore it is agreed that, in addition to any
other remedies that may be available to Micron upon any such violation, Micron
shall
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have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Micron at law or in equity.
IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement
as of the date first set forth above.
MICRON:
Micron Technology, Inc.,
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, CEO and President
SHAREHOLDERS:
InterWest Partners V, L.P.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Company: InterWest Management Partners
Its: General Partner
InterWest Investors V, L.P.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Company: InterWest Management Partners V, L.P.
Its: General Partner
MATRIX PARTNERS III, L.P.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: General Partner
Company: Matrix Partners III, L.P.
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ENTERPRISE PARTNERS III, L.P.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: General Partner
Company: Enterprise Management Partners III
Its: General Partner
ENTERPRISE PARTNERS III ASSOCIATES, L.P.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: General Partner
Company: Enterprise Management partners III
Its: General Partner
APA EXCELSIOR IV, L.P.
By: APA Excelsior IV Partners, L.P.,
its General Partner
By: Patricof & Co. Managers, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
XXXXXX & CO. (CAYMAN) LTD,
Custodian for APA Excelsior IV/Offshore
By: Patricof & Co. Ventures, Inc.
its Investment Adviser
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Managing Director
[SIGNATURE PAGE TO VOTING AGREEMENT]
THE P/A FUND III, L.P.
By: APA Pennsylvania Partners III, L.P.,
its General Partner
By: Patricof & Co. Managers, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice-President
PATRICOF PRIVATE INVESTMENT CLUB, L.P.
By: APA Excelsior IV Partners, L.P.,
its General Partner
By: Patricof & Co. Managers, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
/s/ Xxxxxxx Xxxxx /s/ Xxx Xxxxxxxxx
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Xxxxxxx Xxxxx Xxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxxx /s/ Xxxx Xxxxxx
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Xxxxx Xxxxxxxx Xxxx Xxxxxx
[SIGNATURE PAGE TO VOTING AGREEMENT]
EXHIBIT A
RENDITION STOCK HELD BY SHAREHOLDERS
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Number of options,
warrants or other
Number of shares of Rendition convertible securities
capital stock of each class convertible into Rendition
Shareholder's Name and beneficially owned by each capital stock beneficially
Address Shareholder owned by each Shareholder
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Matrix Partners III, L.P. 1,643,426 Shares - Series A 60,993 Warrants -
474,286 Shares - Series B Series C
929,604 Shares - Series C
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InterWest Partners V, L.P. 1,633,155 Shares - Series A 60,612 Warrants -
96,536 Shares - Series B Series C
923,892 Shares - Series C
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InterWest Investors V 10,271 Shares - Series A 381 Warrants - Series C
2,964 Shares - Series B
5,810 Shares - Series C
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Enterprise Partners III, 1,109,847 Shares - Series A 42,877 Warrants -
L.P. 378,856 Shares - Series B Series C
653,833 Shares - Series C
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Enterprise Partners III 85,372 Shares - Series A 3,298 Warrants -
Associates, L.P. 29,142 Shares - Series B Series C
50,295 Shares - Series C
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APA Excelsior IV, L.P. 1,394,000 Shares - Series C
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Xxxxxx & Co. (Cayman) Ltd. 246,000 Shares - Series C
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The Patricof Private 26,667 Shares - Series C
Investment Club
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The P/A Fund III, L.P. 333,333 Shares - Series C
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Xxxxxxx Xxxxx 666,500 Shares - Common
159,363 Shares - Series A
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Xxxxx Xxxxxxxx 475,000 Shares - Common 150,000 Options -
Common
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Xxx Xxxxxxxxx 337,500 Shares - Common 120,000 Options -
Common
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Xxxx Xxxxxx 472,500 Shares - Common 12,500 Options -
Common
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EXHIBIT B
IRREVOCABLE PROXY
The undersigned shareholder of Rendition, Inc., a California corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes and Micron Technology, Inc., a Delaware
corporation ("Micron"), and each of them, the attorneys and proxies of the
undersigned with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to (i) the shares of capital
stock of the Company owned by the undersigned as of the date of this proxy,
which shares are specified on the final page of this proxy, and (ii) any and all
other shares of capital stock of the Company which the undersigned may acquire
after the date hereof until such time as this Proxy terminates in accordance
with its terms. (The shares of the capital stock of the Company referred to in
clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares.") Upon the execution hereof, all prior proxies
given by the undersigned with respect to any of the Shares are hereby revoked,
and during the term herein no subsequent proxies will be given with respect to
any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
Micron and the undersigned (the "Voting Agreement"), and is granted in
consideration of Micron entering into the Agreement and Plan of Reorganization,
dated as of the date hereof, between Micron and the Company (the "Reorganization
Agreement"), which Reorganization Agreement contemplates the merger of the
Company with and into Micron (the "Merger"). Capitalized terms used but not
otherwise defined in this proxy have the meanings ascribed to such terms in the
Reorganization Agreement.
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Reorganization Agreement or the Effective Time of the
Merger at any meeting of the shareholders of the Company, however called, or in
any action by written consent of shareholders of the Company in favor of the
Merger, the execution and delivery by the Company of the Plan of Reorganization
and the Agreement of Merger contemplated thereby (collectively the "Merger
Agreements"), and the adoption and approval of the terms thereof and in favor of
each of the other actions contemplated by the Merger Agreements and any action
required in furtherance thereof.
The undersigned shareholder may vote the Shares on all other matters. This
Proxy shall be binding upon the heirs, successors and assigns of the undersigned
(including any transferee of any of the Shares).
Any obligation of the undersigned hereby shall be binding upon the heirs,
successors and assigns of the undersigned (including any transferee of any of
the Shares).
This Proxy shall terminate upon the Expiration Date.
Dated: , 1998 Name:___________________________________
Signature:______________________________
Title:__________________________________
Number of Shares of Company Capital
Stock Held:
Common Stock:___________________________
Preferred Stock:________________________
