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EXHIBIT 4.2.3
▇▇▇▇▇ AFFILIATE AGREEMENT
This ▇▇▇▇▇ Affiliate Agreement (this "Affiliate Agreement") is made and
entered into as of July 29, 1997 (the "Effective Date") among Access Beyond,
Inc., a Delaware corporation ("Access Beyond"), ▇▇▇▇▇ Microcomputer Products,
Inc., a Georgia corporation ("▇▇▇▇▇") and Chestnut Capital Limited Partnership
("Shareholder") who is an affiliate of ▇▇▇▇▇.
RECITALS
A. This Affiliate Agreement is entered into pursuant to that certain
Agreement and Plan of Reorganization dated as of July 29, 1997 between Access
Beyond and ▇▇▇▇▇ (as such may be amended the "Merger Agreement") which provides
(subject to the conditions set forth therein) for the merger of a wholly owned
subsidiary of Access Beyond ("Newco") with and into ▇▇▇▇▇ in a reverse
triangular merger (the "Merger"), with ▇▇▇▇▇ to be the surviving corporation of
the Merger, all pursuant to the terms and conditions of the Merger Agreement and
the Agreement of Merger to be entered into between Newco and ▇▇▇▇▇ in the form
attached to the Merger Agreement (the "Agreement of Merger"). The Merger
Agreement and the Agreement of Merger are collectively referred to herein as the
"Merger Agreements." Capitalized terms used but not otherwise defined in this
Affiliate Agreement have the meanings ascribed to such terms in the Merger
Agreement.
B. The Merger Agreements provide that, in the Merger, the shares of
▇▇▇▇▇ Common Stock and shares of ▇▇▇▇▇ Series A Preferred Stock that are issued
and outstanding at the Effective Time of the Merger will be converted into
shares of Access Beyond Common Stock and the shares of ▇▇▇▇▇ Series B Preferred
Stock that are issued and outstanding at the Effective Time of the Merger will
be converted into shares of Access Beyond Series A Stock, all as more
particularly set forth in the Merger Agreement
C. Shareholder understands that Shareholder is deemed an "affiliate" of
▇▇▇▇▇ within the meaning of the Securities Act of 1933, as amended (the "1933
Act"), and that any shares of Access Beyond capital stock acquired by the
Shareholder in the Merger may be disposed of only in conformity with the
limitations described herein.
A G R E E M E N T
1. TAX TREATMENT, RELIANCE. Shareholder understands and agrees that it
is intended that the Merger will be treated as a tax-free reorganization for
federal income tax purposes and that such treatment requires that a sufficient
number of former stockholders of ▇▇▇▇▇ maintain a meaningful continuing equity
ownership interest in Access Beyond after the Merger. Shareholder understands
that the representations, warranties and covenants of Shareholder set forth
herein will be relied upon by ▇▇▇▇▇ and Access Beyond and their respective
counsel and accounting firms and by ▇▇▇▇▇' stockholders. Shareholder will rely
on Shareholder's own tax advisers as to the tax
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attributes of the Merger to Shareholder and understands that neither Access
Beyond, nor Access Beyond's counsel, ▇▇▇▇▇ or ▇▇▇▇▇' counsel has guaranteed nor
will guarantee to Shareholder that the Merger will be a tax-free reorganization,
nor shall any of them have any liability to Shareholder as a result of issuing
any opinion in respect thereof that may be required in connection with any
registration statement under the 1933 Act.
2. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF SHAREHOLDER.
Shareholder represents, warrants and covenants as follows.
(a) Authority; Affiliate Status. Shareholder has all requisite
right, power, legal capacity and authority to execute, deliver and perform this
Affiliate Agreement and to perform its obligations hereunder. Shareholder
further understands and agrees that Shareholder is deemed to be an "affiliate"
of ▇▇▇▇▇ within the meaning of the 1933 Act and, in particular, Rule 145
promulgated under the 1933 Act ("Rule 145"),
(b) ▇▇▇▇▇ Securities Owned. Attachment 1 hereto sets forth all
shares of ▇▇▇▇▇ capital stock and any other securities of ▇▇▇▇▇ owned by
Shareholder, including all securities of ▇▇▇▇▇ as to which 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 ▇▇▇▇▇ granted to or held
by Shareholder (such shares of ▇▇▇▇▇ capital stock, other securities of ▇▇▇▇▇
and rights, options and warrants to acquire shares of ▇▇▇▇▇ capital stock and
other securities of ▇▇▇▇▇ are hereinafter collectively referred to as "▇▇▇▇▇
Securities"). As used herein, the term "Expiration Date" means the earliest to
occur of (i) the closing, consummation and effectiveness of the Merger, or (ii)
such time as the Merger Agreement may be terminated in accordance with its
terms.
(c) New ▇▇▇▇▇ Securities. As used herein, the term "New ▇▇▇▇▇
Securities" means, collectively, any and all shares of ▇▇▇▇▇ capital stock,
other securities of ▇▇▇▇▇ and rights, options and warrants to acquire shares of
▇▇▇▇▇ capital stock and other securities of ▇▇▇▇▇ that Shareholder may purchase
or otherwise acquire any interest in (whether of record or beneficially), on and
after the Effective Date of this Affiliate Agreement and prior to the Expiration
Date. All New ▇▇▇▇▇ Securities will be subject to the terms of this Affiliate
Agreement to the same extent and in the same manner as if they were ▇▇▇▇▇
Securities.
(d) Merger Securities. As used herein, the term "Merger
Securities" means, collectively, all shares of Access Beyond Common Stock, and
Access Beyond Series A Stock that are or may be issued by Access Beyond in
connection with the Merger or the transactions contemplated by the Merger
Agreements, or to any former holder of ▇▇▇▇▇ options, warrants or rights to
acquire shares of ▇▇▇▇▇ Common Stock, and any securities that may be paid as a
dividend or otherwise distributed thereon or with respect thereto or issued or
delivered in exchange or substitution therefor or upon conversion thereof.
(e) Transfer Restrictions on Merger Securities. Shareholder
has been advised that the issuance of the shares of Access Beyond Common Stock
and Access Beyond Series A
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Stock in connection with the Merger is expected to be effectuated pursuant to a
Registration Statement on Form S-4 under the 1933 Act, and that the provisions
of Rule 145 will limit Shareholder's resales of such Merger Securities.
Shareholder accordingly agrees not to sell, transfer, exchange, pledge, or
otherwise dispose of, or make any offer or agreement relating to, any of the
Merger Securities and/or any option, right or other interest with respect to any
Merger Securities that Shareholder may acquire, unless: (i) such transaction is
permitted pursuant to Rules 145(c) and 145(d) under the 1933 Act; or (ii) legal
counsel representing Shareholder, which counsel is reasonably satisfactory to
Access Beyond, shall have advised Access Beyond in a written opinion letter
reasonably satisfactory to Access Beyond and Access Beyond's legal counsel, and
upon which Access Beyond and its legal counsel may rely, that no registration
under the 1933 Act would be required in connection with the proposed sale,
offer, exchange, pledge or other disposition of Merger Securities by
Shareholder, or (iii) a registration statement under the 1933 Act covering the
Merger Securities proposed to be sold, transferred, exchanged, pledged or
otherwise dispose of, describing the manner and terms of the proposed sale,
transfer, exchange, pledge or other disposition, and containing a current
prospectus, shall have been filed with the Securities and Exchange Commission
("SEC") and been declared effective by the SEC under the 1933 Act, or (iv) an
authorized representative of the SEC shall have rendered written advice to
Shareholder (sought by Shareholder or counsel to Shareholder, with a copy
thereof and all other related communications delivered to Access Beyond and its
legal counsel) to the effect that the SEC would take no action, or that the
staff of the SEC would not recommend that the SEC take action, with respect to
the proposed disposition of Merger Securities if consummated. Nothing herein
imposes upon Access Beyond any obligation to register any Merger Securities
under the 1933 Act.
(f) Intent. Shareholder does not now have, and as of the
Effective Time of the Merger will not have, any present plan or intention to
engage in a sale, exchange, transfer, distribution, pledge, disposition or any
other transaction which would result in a direct or indirect disposition (a
"Sale") of shares of Access Beyond voting common stock to be issued to ▇▇▇▇▇
shareholders in the Merger, which shares would have an aggregate fair market
value, as of the Effective Time of the Merger, in excess of 50% of the aggregate
fair market value, immediately prior to the Merger, of all outstanding shares of
▇▇▇▇▇ stock. For purposes of this representation, shares of ▇▇▇▇▇ stock (or the
portion thereof) (a) with respect to which a ▇▇▇▇▇ shareholder receives
consideration in the Merger other than Access Beyond voting common stock and/or
(b) with respect to which a Sale by a ▇▇▇▇▇ shareholder who owns 5% or more of
▇▇▇▇▇ stock or is an officer or director of ▇▇▇▇▇ occurs during the pre-merger
period shall be considered shares of outstanding ▇▇▇▇▇ stock exchanged for
Access Beyond voting common stock in the Merger and then disposed of pursuant to
a prearranged plan.
3. LEGENDS. Shareholder also understands and agrees that stop transfer
instructions will be given to Access Beyond's transfer agent with respect to
certificates evidencing the Merger Securities to enforce Shareholder's
compliance with Shareholder's representations in Sections 2(e) and Shareholder's
compliance with applicable securities laws regarding the Merger Securities, and
that there will be placed on the certificates evidencing such Merger Securities
a legend providing substantially as follows:
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"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD, PLEDGED, EXCHANGED, TRANSFERRED OR OTHERWISE
DISPOSED OF EXCEPT IN ACCORDANCE WITH THE REQUIREMENTS OF THE
SECURITIES ACT OF 1933, AS AMENDED, ANY APPLICABLE STATE
SECURITIES LAWS, AND THE OTHER CONDITIONS SPECIFIED IN THAT
CERTAIN ▇▇▇▇▇ AFFILIATE AGREEMENT DATED AS OF JULY 29, 1997
AMONG ACCESS BEYOND, INC. ("ACCESS BEYOND"), ▇▇▇▇▇
MICROCOMPUTER PRODUCTS, INC. AND THE HOLDER OF SUCH SHARES, A
COPY OF WHICH MAY BE INSPECTED BY THE HOLDER OF THIS
CERTIFICATE AT THE OFFICES OF THE ISSUER. THE ISSUER WILL
FURNISH WITHOUT CHARGE A COPY THEREOF TO THE HOLDER OF THIS
CERTIFICATE UPON WRITTEN REQUEST THEREFOR."
4. 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 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 4:
(a) If to Access Beyond:
Access Beyond, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President/CEO
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Morrison, Cohen, Singer & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) If to ▇▇▇▇▇:
(If via hand delivery or overnight courier)
▇▇▇▇▇ Microcomputer Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chairman of the Board and
Contracts Administration
(If via mail)
▇▇▇▇▇ Microcomputer Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chairman of the Board and
Contracts Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to Shareholder:
At the address for notice to such
Shareholder set forth on the last page
hereof
with a copy to:
Counsel for Shareholder, if any, at the
address shown on the signature page hereto
Any party hereto may change its address specified for notices herein by
designating a new address by notice in accordance with this Section 4.
5. SURVIVAL; TERMINATION. All representations, warranties and
agreements made by Shareholder in this Affiliate Agreement shall survive the
consummation of the Merger. This Affiliate Agreement shall be terminated and
shall be of no further force and effect upon the earlier to occur of (i) any
termination of the Merger Agreement pursuant to its terms, or (ii) any waiver of
either any closing condition in favor of ▇▇▇▇▇ or any obligation of Access
Beyond under or any amendment of the Merger Agreement, or the giving of any
required consent of ▇▇▇▇▇ under Section 4.3 or any other provision of the Merger
Agreement, unless such waiver, amendment or consent is approved either by the
Board of Directors of ▇▇▇▇▇ or any committee thereof consisting
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of at least two (2) members of the ▇▇▇▇▇ Board authorized to approve any such
amendment, waiver or consent, one of whom approving such amendment, waiver or
consent by action of either the full ▇▇▇▇▇ Board or such committee is a
representative of Rinzai Limited.
6. EXPENSES. All costs and expenses incurred in connection
with the transactions contemplated by this Affiliate Agreement shall be paid by
the party incurring such costs and expenses; provided, however, that the
Shareholder's legal costs and expenses shall be promptly paid by ▇▇▇▇▇.
7. COUNTERPARTS. This Affiliate Agreement may be executed in
counterparts, each of which will be an original as regards any party whose name
appears thereon and all of which together will constitute one and the same
agreement. This Affiliate Agreement will become binding when one or more
counterparts hereof, individually or taken together, bear the signatures of all
parties reflected hereon as signatories. Facsimile copies with signatories of
the parties to this 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 Agreement.
8. ASSIGNMENT, BINDING EFFECT. Except as provided herein,
neither this Affiliate Agreement nor any of the rights, interests or obligations
hereunder shall be assigned the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties hereto.
Subject to the preceding sentence, this Affiliate Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted signs.
9. AMENDMENT AND WAIVERS. Any term or provision of this
Affiliate Agreement may be amended, and the observance of any term of this
Affiliate Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively), only by a writing signed by the
parties to be bound thereby. The waiver by a party of any breach hereof or
default in the performance hereof will not be deemed to constitute a waiver of
any other default or any succeeding breach or default.
10. ENTIRE AGREEMENT. This Affiliate Agreement and any
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersedes all prior agreements and under standings between the
parties with respect thereto.
11. OTHER AGREEMENTS. Nothing in this Affiliate Agreement
shall limit any of the rights or remedies of Access Beyond or Shareholder or any
of the obligations of either party under any Voting Agreement between Access
Beyond and Shareholder or any other agreement.
12. SEVERABILITY. Any term or provision of this Affiliate
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
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terms and provisions of this Affiliate Agreement or affecting the validity or
enforceability of any of the terms and provisions of this Affiliate Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Affiliate Agreement in any other jurisdiction. If any provision of this
Affiliate Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
13. GOVERNING LAW. The internal laws of the State of Georgia
(irrespective of its choice of law principles) will govern the validity of this
Affiliate Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto.
14. CONSTRUCTION. The language hereof will not be construed
for or against either party. A reference to a section will mean a section of
this Affiliate Agreement, unless otherwise explicitly set forth. The titles and
headings in this Affiliate Agreement are for reference purposes only and will
not in any manner limit the construction of this Affiliate Agreement. For the
purposes of such construction, this Affiliate Agreement will be considered as a
whole.
15. ▇▇▇▇▇ SHAREHOLDER AGREEMENT. Shareholder acknowledges that
the execution hereof by Shareholder and the execution by any other shareholders
of ▇▇▇▇▇ of similar agreements in connection with the Merger, is not a violation
of, and, in particular, does not constitute a "Transfer" or "Disposition" under
the Shareholder Agreement among the shareholders of ▇▇▇▇▇ dated April 16, 1996.
Shareholder further acknowledges and agrees that this Affiliate Agreement does
not constitute any liquidation or redemption event applicable to the Merger
Securities under the Articles of Incorporation, Bylaws or other organizational
documents of ▇▇▇▇▇, or contracts to which such Shareholder is a party.
IN WITNESS WHEREOF, the parties hereto have caused this
Affiliate Agreement to be executed as of the date first written above.
ACCESS BEYOND, INC. ▇▇▇▇▇ MICROCOMPUTER PRODUCTS, INC.
By:______________________________ By:___________________________________
Name: Name:
Title: Title:
SHAREHOLDER:
CHESTNUT CAPITAL LIMITED PARTNERSHIP
BY:_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Partner
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ATTACHMENT 1
Affiliate's Address for Notice: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
with a copy to counsel Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
for Shareholder ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
Number of Shares of ▇▇▇▇▇
Common Stock owned as of the
date of this Affiliate Agreement: 4,400,000
Number of Shares of ▇▇▇▇▇
Series A Preferred Stock owned
as of the date of this Affiliate Agreement: N/A
Number of Shares of ▇▇▇▇▇
Series B Preferred Stock owned
as of the date of this Affiliate Agreement: N/A
Number of ▇▇▇▇▇ Options for
Common Stock owned as of
the date of this Affiliate Agreement: N/A
Number of ▇▇▇▇▇ Warrants for
Common Stock owned as of
the date of this Affiliate Agreement: N/A
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