EXHIBIT 99.1
VOTING AGREEMENT AND IRREVOCABLE PROXY
VOTING AGREEMENT AND IRREVOCABLE PROXY dated April 22, 1998, among the
several stockholders of ACCELGRAPHICS, INC., a Delaware corporation (the
"Company"), that are parties hereto (each, a "Stockholder" and, collectively,
the "Stockholders"), and XXXXX & XXXXXXXXXX COMPUTER CORPORATION, a Utah
corporation ("E&S").
WHEREAS, E&S and E&S Merger Corp., a Utah corporation and a wholly owned
subsidiary of E&S ("Merger Sub"), propose to enter into an Agreement and Plan
of Merger dated the date hereof (as amended from time to time, the "Merger
Agreement;" capitalized terms being used herein as defined therein unless
otherwise defined herein), with the Company, which provides, among other
things, that the Company will merge with and into Merger Sub (the "Merger");
WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of the number of shares of Common Stock, par value $.001 per
share, of the Company (the "Common Stock"), set forth on Exhibit A attached
hereto (with respect to each Stockholder, such Stockholder's "Existing Shares"
and, together with any shares of Company Common Stock acquired after the date
hereof, whether upon the exercise of warrants, options, conversion of
convertible securities or otherwise, such Stockholder's "Shares"); and
WHEREAS, as a condition to the willingness of E&S to enter into the Merger
Agreement, E&S has requested that the Stockholders agree, and in order to
induce E&S to enter into the Merger Agreement, the Stockholders have agreed,
to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
1.01 VOTING AGREEMENT. Each Stockholder, severally and not jointly, hereby
agrees that, from and after the date hereof and until this Agreement shall
have been terminated in accordance with Article IV hereof, at any meeting of
the stockholders of the Company, however called, and in any action by consent
of the stockholders of the Company, such Stockholder will vote (or cause to be
voted) such Stockholder's Shares: (a) in favor of the approval and adoption of
the Merger Agreement, the Merger and all the transactions contemplated by the
Merger Agreement and this Agreement and otherwise in such manner as may be
necessary to consummate the Merger; (b) except as otherwise agreed to in
writing in advance by E&S or except in the case of a Superior Proposal as
defined in Section 6.05 of the Merger Agreement, against any action, proposal,
agreement or transaction that would result in a breach of any covenant,
obligation, agreement, representation or warranty of the Company contained in
the Merger Agreement or of the Stockholder contained in this Agreement; and
(c) against any action, proposal, agreement or transaction (other than the
Merger Agreement or the transactions contemplated thereby) that could result
in any of the conditions to the Company's obligations under the Merger
Agreement not being fulfilled or that is intended, or could reasonably be
expected, to impede, interfere or be inconsistent with, delay, postpone,
discourage or adversely affect the Merger Agreement, the Merger or this
Agreement. No Stockholder shall enter into any agreement or understanding with
any person or entity to vote such Stockholder's shares or give instructions in
any manner inconsistent with this Section 1.01. The Stockholder acknowledges
receipt and review of a copy of the Merger Agreement.
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1.02 IRREVOCABLE PROXY. If, and only if, any Stockholder fails to comply
with the provisions of Section 1.01 (as determined by E&S in its sole
discretion), such Stockholder hereby agrees that such failure shall result,
without any further action by such Stockholder, in the irrevocable appointment
of E&S, and each of its officers, as such Stockholder's attorney-in-fact and
proxy pursuant to the provisions of Section 212(c) of the General Corporation
Law of the State of Delaware, with full power of substitution, to vote and
otherwise act (by written consent or otherwise) with respect to such
Stockholder's Shares at any meeting of stockholders of the Company (whether
annual or special and whether or not an adjourned or postponed meeting) or
consent in lieu of any such meeting or otherwise, on the matters and in the
manner specified in Section 1.01. THIS PROXY AND POWER OF ATTORNEY ARE
IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM A STOCKHOLDER
MAY TRANSFER ANY OF HIS SHARES IN BREACH OF THIS AGREEMENT. Each Stockholder
hereby revokes all other proxies and powers of attorney with respect to such
Stockholder's Shares with respect to the matters contemplated by Section 1.01
above that may have heretofore been appointed or granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by any Stockholder with respect
thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of any Stockholder and any obligation of the
Stockholder under this Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of such Stockholder.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and warrants
to E&S in respect of such Stockholder as follows:
2.01 AUTHORITY RELATIVE TO THIS AGREEMENT. Such Stockholder has all
necessary power and authority to execute and deliver this Agreement, to
perform such Stockholders' obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a legal, valid and binding
obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
2.02 NO CONFLICT.
(a) The execution and delivery of this Agreement by such Stockholder does
not, and the performance of this Agreement by such Stockholder shall not,
(i) conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to such Stockholder or by which the Shares owned by such
Stockholder are bound or affected or (ii) result in any breach of, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a
lien or encumbrance on any of the Shares owned by such Stockholder pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which such
Stockholder is a party or by which such Stockholder or the Shares owned by
such Stockholder are bound or affected.
(b) The execution and delivery of this Agreement by such Stockholder do
not, and the performance of this Agreement by such Stockholder shall not,
require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental authority, domestic or foreign, except
for applicable requirements, if any, of the Securities Exchange Act of
1934, as amended, or the HSR Act.
2.03 TITLE TO THE SHARES. As of the date hereof, such Stockholder is the
record and beneficial owner of the number of shares of Common Stock set forth
on Exhibit A attached hereto opposite the name of such Stockholder. Such
Shares are all the securities of the Company owned, either of record or
beneficially, by such Stockholder. The Shares owned by such Stockholder are
owned free and clear of all security interests, liens, claims, pledges,
options, rights of first refusal, agreements, limitations on such
Stockholder's voting rights,
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charges and other encumbrances of any nature whatsoever. Except as provided in
this Agreement, such Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares owned by
such Stockholder.
ARTICLE III
COVENANTS OF THE STOCKHOLDERS
3.01 NO DISPOSITION OR ENCUMBRANCE OF SHARES. Each Stockholder, severally
and not jointly, hereby agrees that, except as contemplated by the Merger
Agreement, such Stockholder shall not (i) sell, transfer, tender, assign,
contribute to the capital of any entity, hypothecate, give or otherwise
dispose of, grant a proxy or power of attorney with respect to, deposit into
any voting trust, or create or permit to exist any security interest, lien,
claim, pledge, option, right of first refusal, agreement, limitation on such
Stockholder's voting rights, charge or other encumbrance of any nature
whatsoever with respect to, any of such Stockholder's Shares (or agree or
consent to, or offer to do, any of the foregoing), (ii) take any action that
would make any representation or warranty of such Stockholder herein untrue or
incorrect in any material respect or have the effect of preventing or
disabling such Stockholder from performing his or her obligations or, (iii)
directly or indirectly, initiate, solicit or encourage any person to take
actions that could reasonably be expected to lead to the occurrence of any of
the foregoing.
3.02 NO SOLICITATION OF TRANSACTIONS. Each Stockholder, severally and not
jointly, agrees that between the date of this Agreement and the date of
termination of the Merger Agreement, such Stockholder will not (a) solicit,
initiate, consider, encourage or accept any other proposals or offers from any
person relating to any Competing Transaction, or (b) participate in any
discussions, conversations, negotiations and other communications regarding,
or furnish to any other person any information with respect to, or otherwise
cooperate in any way, assist or participate in, facilitate or encourage any
effort or attempt by any other person to seek a Competing Transaction. Each
Stockholder immediately shall cease and cause to be terminated all existing
discussions, conversations, negotiations and other communications with any
persons conducted heretofore with respect to any of the foregoing. Each
Stockholder shall notify E&S promptly if any such proposal or offer, or any
inquiry or other contact with any person with respect thereto, is made and
shall, in any such notice to E&S, indicate in reasonable detail the identity
of the person making such proposal, offer, inquiry or contact and the terms
and conditions of such proposal, offer, inquiry or other contact.
Notwithstanding any term of this Article III, all actions that may be taken
following the date hereof by the Stockholder or any affiliate of the
Stockholder in their capacity as a member of the Board of Directors of the
Company shall be governed solely by the terms of the Merger Agreement and not
by the terms of this Agreement.
ARTICLE IV
TERMINATION
4.01 TERMINATION. This Agreement shall terminate, and no party shall have
any rights or obligations hereunder, and this Agreement shall become null and
void and have no further effect upon the earliest of (a) the Effective Time of
the Merger or (b) the termination of the Merger Agreement pursuant to Section
8.01. Nothing in this Section 4.01 shall relieve any party of liability for
any breach of this Agreement.
ARTICLE V
MISCELLANEOUS
5.01. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner
in order that the terms of this Agreement remain as originally contemplated to
the fullest extent possible.
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5.02 FURTHER ASSURANCES. Each Stockholder and E&S will execute and deliver
all such further documents and instruments and take all such further action as
may be necessary in order to consummate the transactions contemplated hereby.
5.03 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at
law or in equity.
5.04 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between E&S and the Stockholders with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between E&S and the Stockholders with respect to the subject matter hereof.
5.05 AMENDMENT; WAIVER. This Agreement may not be amended except by an
instrument in writing signed by all the parties hereto. Any party to this
Agreement may (a) extend the time for the performance of any of the
obligations or other acts of the other party, (b) waive any inaccuracies in
the representations and warranties of the other party contained herein or in
any document delivered by the other party pursuant hereto or (c) waive
compliance with any of the agreements or conditions of the other party
contained herein. Any such extension or waiver shall be valid only if set
forth in an instrument in writing signed by the party to be bound thereby. Any
waiver of any term or condition shall not be construed as a waiver of any
subsequent breach or a subsequent waiver of the same term or condition, or a
waiver of any other term or condition, of this Agreement. The failure of any
party to assert any of its rights hereunder shall not constitute a waiver of
any of such rights.
5.06 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Utah applicable to contracts
executed in and to be performed in that State, without regard to the conflict
of law provisions thereof.
5.07 EXPENSES. Except as otherwise specified in this Agreement, all costs
and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses, whether or not the Closing shall have
occurred.
5.08 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by telecopy or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 5.08):
(a) if to any Stockholder, addressed to such Stockholder:
AccelGraphics, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
with a copy to:
Venture Law Group
A Professional Corporation
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
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(b) if to E&S:
Xxxxx & Xxxxxxxxxx Computer Corporation
000 Xxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx
with copies to:
Xxxxx & Xxxxxx, L.L.P.
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
5.09 HEADINGS. The descriptive headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
5.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
XXXXX AND XXXXXXXXXX COMPUTER CORPORATION
/s/ Xxxxx X. Xxxxx
By: _________________________________
Name:Xxxxx X. Xxxxx
Title:Chief Executive Officer
[VOTING AGREEMENT SIGNATURE PAGE]
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/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxx
-------------------------------------
Xxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxx X. Xxxxxxx
-------------------------------------
Xxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
[VOTING AGREEMENT SIGNATURE PAGE]
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/s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx Xxx
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Xxxxxx Xxx
ADVANCED TECHNOLOGY VENTURES IV,
L.P.
By: ATV Associates IV, L.P.
/s/ Xxx X. Xxxxxxx
Name:--------------------------------
(print)
General Partner
Title:
---------------------------------
STF II, L.P.
c/o IndoSuez Ventures
/s/ Xxxxx X. Gold
By:----------------------------------
Xxxxx X. Gold
Name:--------------------------------
(print)
General Partner
Title:
---------------------------------
ASSET MANAGEMENT ASSOCIATES 1996,
L.P.
By: AMC Partners 96, L.P.,
its General Partner
/s/ W. Xxxxxxx Xxxxxxx
By:----------------------------------
W. Xxxxxxx Xxxxxxx
Name:--------------------------------
(print)
General Partner
Title:
---------------------------------
[VOTING AGREEMENT SIGNATURE PAGE]
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AVI CAPITAL, L.P.
By: AVI Capital Management, L.P.,
its General Partner
/s/ Xxxxx Xxxxxx
Name:--------------------------------
(print)
General Partner
Title:
---------------------------------
ASSOCIATED VENTURE INVESTORS II,
L.P.
By: AVI Management Partners III,
L.P.
/s/ Xxxxx Xxxxxx
Name:--------------------------------
(print)
General Partner
Title:
---------------------------------
AVI PARTNERS GROWTH FUND II, L.P.
By: AVI Management Partners III,
L.P.
/s/ Xxxxx Xxxxxx
Name:--------------------------------
(print)
General Partner
Title:
---------------------------------
AVI SILICON VALLEY PARTNERS, L.P.
By: AVI Management Partners III,
L.P.
/s/ Xxxxx Xxxxxx
Name:--------------------------------
(print)
General Partner
Title:
---------------------------------
[VOTING AGREEMENT SIGNATURE PAGE]
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