EXHIBIT 10.15
BOARD REPRESENTATION AGREEMENT
AGREEMENT dated as of __________ among Xxxxxx Micro Inc., a Delaware
corporation ("Micro"), and each Person listed on the signature pages hereof.
WHEREAS, Micro believes it is in the best interest of Micro and its
stockholders to become a free standing corporation rather than a subsidiary of
Xxxxxx Industries Inc. ("Industries"); and
WHEREAS, Micro believes that the proposed Split-Off (as defined herein)
from Industries will facilitate its ability to raise capital, including its
initial public offering, and will allow Micro to more effectively design
incentives for its employees, all to the benefit of Micro and its
stockholders; and
WHEREAS, the Family Stockholders (as defined herein) are willing to
relinquish certain rights in exchange for the bargained for provisions of this
Agreement (all of which are, and are intended to be, an inducement for the
Family Stockholders to effect the Split-Off); and
WHEREAS, the parties hereto desire to provide for certain rights and
obligations relating to the composition and qualifications of the board of
directors of Micro following the date hereof;
Accordingly, in consideration of the mutual promises herein contained
and other good and valuable consideration, the receipt, sufficiency and
mutuality of which are hereby acknowledged by each of the parties hereto, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions.
(a) The following terms, as used herein, have the following meanings:
"Approving Family Stockholders" means the QTIP Marital Trust created
under the E. Xxxxxxx Xxxxxx Revocable Trust Agreement dated January 4, 1995,
Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, XX, Xxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxx
X. Xxxxxx Xxxxxx, E. Xxxxxxx Xxxxxx 1995 Charitable Remainder 5% Unitrust,
Xxxxxx and Xxxxxxx Xxxxxx Foundation, Trust for Xxxxx Xxxxx Xxxxxx, XX, under
Agreement with E. Xxxxxxx Xxxxxx dated October 27, 1967, Trust for the Benefit
of Xxxxx Xxxxx Xxxxxx, XX, under Agreement with E. Xxxxxxx Xxxxxx dated June
14, 1968, Trust for Xxxxx Xxxxx Xxxxxx, XX, under Agreement with Xxxxxxxx X.
Xxxxxx dated December 22, 1975, The Xxxxx X. Xxxxxx Irrevocable Trust dated
July 9, 1992, Trust for the Benefit of Xxxxx X. Xxxxxx established by Xxxxxx
X. Xxxxxx under Agreement of Trust originally dated April 30, 1982, as
amended, Trust for Xxxx Xxxxxx Xxxxxx, under Agreement with E. Xxxxxxx Xxxxxx
dated October 27, 1967, Trust for Xxxx Xxxxxx Xxxxxx, under Agreement with
Xxxxxxxx X. Xxxxxx dated December 22, 1975, The Xxxx X. Xxxxxx Irrevocable
Trust dated July 9, 1992, Trust for the Benefit of Xxxx X. Xxxxxx established
by Xxxxxx X. Xxxxxx under Agreement of Trust originally dated April 30, 1982,
as amended, The Xxxx and Xxxxxxxxx Xxxxxx Family 1996 Generation Skipping
Trust, Trust for Xxxxx X. Xxxxxx, under Agreement with Xxxxxxxx X. Xxxxxx
dated December 22, 1975, The Xxxxx X. Xxxxxx Irrevocable Trust dated July 9,
1992, Trust for the Benefit of Xxxxx X. Xxxxxx established by Xxxxxx X.
Xxxxxx under Agreement of Trust originally dated April 30, 1982, as amended,
Xxxxx and Xxxxx Xxxxxx Family 1996 Generation Skipping Trust, Trust for Xxxxx
Xxxxxxx Xxxxxx, under Agreement with E. Xxxxxxx Xxxxxx dated October 27, 1967,
Trust for Xxxxx Xxxxxxx Xxxxxx, under Agreement with Xxxxxxxx X. Xxxxxx dated
December 22, 1975, The Xxxxx Xxxxxx Xxxxxx Irrevocable Trust, dated July 9,
1992 and Trust for the Benefit of Xxxxx X. Xxxxxx established by Xxxxxx X.
Xxxxxx under Agreement of Trust originally dated April 30, 1982, as amended,
and all Permitted Transferees of each such Person.
"Approving Voting Power" means, as of any date, the number of votes able
to be cast pursuant to Section 2.5(d) by the Approving Family Stockholders
consistent with Exhibit A hereto.
"Board" means the board of directors of Micro.
"Fair Market Value" means with respect to the Micro Common Shares, as of
any given date or dates, the reported closing price of a share of such class
of common stock on such exchange or market as is the principal trading market
for such class of common stock. If such class of common stock is not traded
on an exchange or principal trading market on such date, the fair market value
of a Micro Common Share shall be determined by the Board in good faith taking
into account as appropriate recent sales of the Micro Common Shares, recent
valuations of the Micro Common Shares, the lack of liquidity of the Micro
Common Shares, the fact that the Micro Common Shares may represent a minority
interest and such other factors as the Committee shall in its discretion deem
relevant or appropriate.
"Family Agent" means a Person appointed by a majority of the Approving
Voting Power of the Approving Family Stockholders from time to time as
provided in Section 3.13 of this Agreement.
"Family Stockholders" means the Persons listed on the signature pages
hereof (other than Micro) and all Permitted Transferees of each such Person.
"Independent" means, with respect to any Person, a Person who shall (i)
not be an executive officer or other employee of Micro and (ii) not be a
member of the Ingram Family.
"Ingram Family" means Xxxxxx X. Xxxxxx, her descendants (including
adopted persons and their descendants) and their respective spouses.
"Micro Common Shares" means the shares of common stock of Micro,
including the Class B common stock and the Class A common stock, par value
$0.01 per share, of Micro.
"Outstanding Voting Power" means, as of any date, the number of votes
able to be cast for the election of directors represented by all Micro Common
Shares outstanding on such date.
"Permitted Transferee" means, with respect to any Family Stockholder,
any of the other Family Stockholders or any of their respective spouses,
descendants (including adopted persons and their descendants), estates,
affiliates or any trust or other entities for the benefit of any of the
foregoing Persons and beneficiaries of the E. Xxxxxxx Xxxxxx QTIP Marital Trust
upon the death of Xxxxxx X. Xxxxxx, whether the transfer occurs voluntarily
during life or at death, whether by appointment, will or intestate descent or
distribution. Without limiting the generality of the foregoing, transfers
from the QTIP Marital Trust created under the E. Xxxxxxx Xxxxxx Revocable
Trust Agreement dated January 4, 1995 to the Xxxxxx and Xxxxxxx Xxxxxx
Foundation, the Xxxxxx Charitable Fund or any of the other beneficiaries
thereof shall be deemed to be transfers to Permitted Transferees.
"Person" means an individual, corporation, partnership, limited
liability company, trust, association or any other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Split-Off" means the contemplated distribution by Industries of all the
stock of Micro and Xxxxxx Entertainment Inc. to certain stockholders of
Industries effected in accordance with Section 355 of the Internal Revenue
Code of 1986, as amended.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
---- -------
Approving Family Stockholder Notice.... 2.5
Date of Confirmation................... 2.5
Family Directors....................... 2.2
Independent Directors.................. 2.2
Management Director.................... 2.2
Significant Actions.................... 2.5
ARTICLE 2
BOARD COMPOSITION AND CORPORATE GOVERNANCE
SECTION 2.1 Number of Directors; Term; Quorum; Vote. The bylaws of
Micro shall provide for a Board consisting of at least seven and no more than
nine members. The term of each director will be one year, commencing
immediately following the annual meeting of stockholders at which such
director is to be elected and ending at such time after the next annual
meeting of stockholders as his or her successor is elected and qualified or
upon such director's death, or earlier resignation or removal in accordance
with this Agreement or applicable law. Except as otherwise provided herein,
the bylaws of Micro shall provide that the vote of a majority of the entire
Board of directors shall be required for all actions of the Board.
SECTION 2.2 Qualifications of Directors; Subsequent Nominations of
Directors.
(a) Composition and Qualifications of the Board. The Family
Stockholders agree to vote their shares of Micro Common Shares to cause the
Board, from and after the date of this Agreement and until their successors
and additional directors are duly elected and qualified in accordance with law
and the terms of this Agreement, to consist of the chief executive officer of
Micro, three individuals named by the Family Stockholders and who may be Family
Stockholders, and three individuals who shall be Independent and who shall
have been approved by the Family Stockholders. All subsequent nominations of
persons for election to the Board contained in proxy soliciting material
distributed on behalf of Micro during the term of this Agreement will be made
by the Nominating Committee, and all persons proposed to fill vacancies on the
Board, shall in each case be consistent with the provisions of Micro's bylaws
which shall provide the following qualifications for directors:
(i) Three individuals who are designated by the Family Stockholders
and who need not be Independent and may be Family Stockholders
(the "Family Directors");
(ii) One individual who is designated by the chief executive officer of
Micro, who need not be Independent and who may be the chief
executive officer of Micro (the "Management Director"); and
(iii) Three (in the case of a board consisting of seven directors), four
(in the case of a board consisting of eight directors) or five (in
the case of a board consisting of nine directors) individuals, as
the case may be from time to time, who shall be Independent (the
"Independent Directors").
(b) Addition of Eighth or Ninth Director. After the election and
qualification of the seven directors as set forth in this Section 2.2 above,
the Board may be expanded to eight or nine directors by the affirmative vote
of a majority of such seven or eight directors, as the case may be. Such
eighth and ninth directors shall have the qualifications of being nominated
by a majority of the Nominating Committee and shall be Independent. After the
initial qualification and election of such eighth and ninth directors as set
forth in this Section 2.2(b), any vacancy created by the death, resignation or
removal of such director shall be filled pursuant to Section 2.3 below.
SECTION 2.3 Filling of Vacancies. The bylaws of Micro shall provide
that if, as a result of the death, resignation or removal of a director, a
vacancy is created on the Board, the vacancy shall be filled in the following
manner with individuals with the following qualifications: (a) if the vacancy
resulted from the death, resignation or removal of a Family Director, the
vacancy shall be filled by vote of a majority of the remaining Family
Directors; (b) if the vacancy resulted from the death, resignation or removal
of the Management Director, the vacancy shall be filled by a person qualifying
to be a Management Director as designated by the chief executive officer of
Micro; and (c) if the vacancy resulted from the death, resignation or removal
of an Independent Director, the vacancy shall be filled by a person qualifying
to be an Independent Director nominated by the Nominating Committee and
approved by a majority of the entire Board then in office. The bylaws of Micro
shall provide that if such vacancy on the Board also creates a vacancy on any
committee thereof, the Board will appoint such replacement director elected in
accordance with this Section 2.3 to fill the committee position or positions
held by his or her predecessor.
SECTION 2.4 Committees.
(a) General. The bylaws of Micro shall provide for the designation,
qualification and composition of the Board committees as set forth below and
shall provide that all committees shall act by vote of the majority of the
entire number of directors which constitute the committee.
i. Nominating Committee. The Nominating Committee will consist
of three (3) directors, two of whom will be Family
Directors, and one of whom will be the Management Director.
ii. Executive Committee. The Executive Committee will consist
of three (3) directors, one of whom will be a Family
Director, one of whom will be the Management Director and
one of whom will be an Independent Director.
iii. Compensation Committee. The Compensation Committee will
consist of three (3) directors, one of whom will be a Family
Director, and two of whom will be Independent Directors.
The Compensation Committee shall establish the
compensation of all executive officers of Micro and shall
administer all stock option, purchase and equity
incentive plans.
iv. Audit Committee. The Audit Committee will consist of at
least three (3) directors. At least a majority of the
members of the Audit Committee will be Independent
Directors.
(b) Selection and Removal of Committee Members. The bylaws shall
provide that the Nominating Committee shall name the directors to serve on the
Board committees and shall direct the Nominating Committee to follow the
qualification requirements set forth in Sections 2.2 and 2.4(a). A Committee
member shall be subject to removal from his or her position as a Committee
member by the vote of a majority of the members of the Nominating Committee.
SECTION 2.5 Actions Requiring Consent of Approving Family Stockholders.
(a) Significant Actions. In addition to any vote required by
applicable law, the bylaws shall provide that so long as this Agreement
remains effective, the following actions ("Significant Actions") will not be
taken by or on behalf of Micro without the written approval of Approving
Family Stockholders, acting in their sole discretion, holding at least a
majority of the Approving Voting Power held by all of the Approving Family
Stockholders:
(i) any sale or other disposition or transfer of all or
substantially all of the assets of Micro (considered together with its
subsidiaries);
(ii) any merger, consolidation or share exchange involving Micro,
other than mergers effected for administrative reasons of subsidiaries
owned at least 90% by Micro which under applicable law can be effected
without stockholder approval;
(iii) any issuance (or transfer from treasury) of additional
equity, convertible securities, warrants or options with respect to the
capital stock of Micro, or any of its subsidiaries, or the adoption of
any additional equity plans by or on behalf of Micro or any of its
subsidiaries except for (A) options granted or stock sold in the
ordinary course of business pursuant to plans approved by the Family
Stockholders, and (B) the issuance of Micro Common Shares valued at
Fair Market Value in acquisitions as to which no approval is required
under subsection (iv) of this Section or as to which approval has been
obtained under subsection (iv) of this Section;
(iv) any acquisition by or on behalf of Micro or one of its
subsidiaries involving a total aggregate consideration in excess of 10%
of Micro's stockholders' equity calculated in accordance with generally
accepted accounting principles for the most recent quarter for which
financial information is available (after taking into account the amount
of any indebtedness for borrowed money to be assumed or discharged by
Micro or any of its subsidiaries and any amounts required to be
contributed, invested or borrowed by Micro or any of its subsidiaries if
such contribution, investment or borrowing is reasonably contemplated by
Micro to be necessary within 12 months after the date of the
acquisition);
(v) guaranteeing indebtedness of an entity other than a
subsidiary of Micro exceeding 5% of Micro's stockholders' equity
calculated in accordance with generally accepted accounting principles
for the most recent quarter for which financial information is available;
(vi) incurrence of indebtedness by Micro after the consummation
of the initial public offering of Micro Common Shares (other than
indebtedness incurred after the initial public offering of Micro which
renews or replaces a previously existing facility so long as the
aggregate amount of indebtedness is not increased) in a transaction which
could be reasonably expected to reduce Micro's investment rating lower
than one grade below the ratings of Micro by Xxxxx'x Investors Service
("Xxxxx'x"), Xxxxx Investors Service, L.P. ("Fitch") or Standard &
Poor's Rating Group ("Standard & Poor's") immediately following the
initial public offering, but in any event incurrence of indebtedness by
Micro after the consummation of the initial public offering which could
be reasonably expected to reduce such investment rating lower than Baa
by Xxxxx'x; BBB- by Fitch; or BBB- by Standard & Poor's; and
(vii) any other transaction having substantially the same effect
as a transaction described in clauses (i) through (vi) of this Section
2.5.
(b) Notices and Information Required To Be Given. Micro shall give
notice to each of the Approving Family Stockholders of any potential, proposed
or contemplated Significant Action, along with all information that Micro
believes in good faith that an Approving Family Stockholder might reasonably
consider to be material in deciding whether or not to approve such Significant
Action (an "Approving Family Stockholder Notice"). An Approving Family
Stockholder Notice will be given by Micro to each of the Approving Family
Stockholders as soon as is practicable under the circumstances, but in no
event later than five (5) days prior to the date on which the Significant
Action is expected to occur. Micro shall be deemed to have given the required
Approving Family Stockholder Notice to each Approving Family Stockholder when
the Family Agent receives such Approving Family Stockholder Notice consistent
with the requirements of Sections 2.5 and 3.3 and a copy of such Approving
Family Stockholder Notice is delivered to Bass, Xxxxx & Xxxx PLC, Attention:
Xxxxx Xxxxxx, by telecopy to (000) 000-0000 or by physical delivery to 0000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000.
(c) Consent Deemed to be Given. The approval of each Significant
Action required to be given by the Approving Family Stockholders consistent
with Section 2.5(a) will be deemed to have been given by the Approving Family
Stockholders if Micro does not receive communications from the Family Agent
withholding such approval within five (5) business days from the Date of
Confirmation. For purposes of this Section 2.5(c) "Date of Confirmation"
means the day Micro confirms the actual receipt of such Approving Family
Stockholder Notice by the Family Agent and Bass, Xxxxx & Xxxx PLC consistent
with the requirements of Sections 2.5 and 3.3.
(d) Approving Family Stockholder Voting Power. With respect to any
vote pursuant to Section 2.5, and as of any given date, each Approving Family
Stockholder shall be entitled to cast a number of votes equal to (i) the
Outstanding Voting Power of all Micro Common Shares owned of record by such
Approving Family Stockholder, plus (ii) any voting power attributed to such
Approving Family Stockholder under Exhibit A hereto.
SECTION 2.6 Other Corporate Governance Provisions; Liability Insurance.
(a) Governance by Board. Micro will be managed by or under the
direction of its Board. The bylaws of Micro shall provide that each member of
the Board, and all committees of the Board, shall have at all times full
access to the books and records of Micro and all minutes of stockholder, Board
and committee meetings, proceedings and actions and that each member of the
Board shall have the right to add items to any agenda for a meeting of the
Board. The bylaws of Micro shall also provide that during the period of time
between each regularly scheduled meeting of the Board, management decisions
requiring the immediate attention of the Board may be made with the approval
of a majority of the members of the Executive Committee; provided, however,
that the Executive Committee will not have the authority to approve any of the
following items, all of which require the approval of the Board: (i) any
action that would require the approval of the holders of a majority of the
Approving Voting Power held by the Approving Family Stockholders under Section
2.5 above or that would require approval of the holders of a majority of the
Micro Common Shares under applicable law or under the certificate of
incorporation or bylaws of Micro (provided, however, that subject to
applicable law, the Board shall be entitled to delegate to the Executive
Committee the authority to negotiate and finalize actions, the general terms
of which have been approved by the Board); (ii) any acquisition with a total
aggregate consideration in excess of 2% of Micro's stockholders' equity
calculated in accordance with generally accepted accounting principles for the
most recent quarter for which financial information is available (after taking
into account the amount of any indebtedness to be assumed or discharged by
Micro or any of its subsidiaries and any amounts required to be contributed,
invested or borrowed by Micro or any of its subsidiaries); (iii) any action
outside of the ordinary course of business of Micro; or (iv) any other action
involving a material shift in policy or business strategy for the Board.
(b) Directors' Liability Insurance. Unless otherwise agreed by the
written consent of the Family Stockholders, Micro shall maintain, to the
extent commercially available at reasonable rates, for the benefit of the
directors adequate directors' liability insurance to cover the reasonably
anticipated risks associated with their positions. Micro shall enter into
contracts with directors which assure them of indemnification to the full
extent allowable by law both while they serve as directors and thereafter and
the Micro certificate of incorporation will include all applicable provisions
necessary to effect the maximum protection provided by Section 102(b)(7) of
the Delaware General Corporation Law.
SECTION 2.7 Agreement to Vote; Best Efforts.
(a) Generally. Each party to this Agreement agrees (i) to use its
best efforts to take all actions necessary to cause the Family Directors, the
Management Director and the Independent Directors to be elected or appointed
to the Board, (ii) to act in a manner consistent with the intent of this
Agreement in nominating and electing persons to be directors and in filling
any vacancy in the membership of the Board, and (iii) to take such other
necessary or appropriate actions as may be required to give effect to the
provisions of this Agreement.
(b) Amendment of Class A and B Shares. The provisions of the
certificate of incorporation of Micro relating to the Micro Common Shares will
not be altered without the consent of a majority of the Outstanding Voting
Power held by the Family Stockholders.
(c) Amendment of Bylaws. The bylaws of Micro shall provide that,
during the term of this Agreement, (i) the stockholders may alter, amend,
restate or repeal such bylaws or any of them, or make new bylaws, only by the
affirmative vote of the holders of 75 % of the voting power of the then
outstanding Micro Common Shares and (ii) the Board may alter, amend, restate
or repeal such bylaws or any of them, or make new bylaws, only by the
affirmative vote of three-quarters (3/4) of the members of the entire Board.
(d) No Conflicting Provisions of Certificate of Incorporation or
Bylaws. Except as may be required by applicable law, during the term of this
Agreement, the parties hereto agree to use their best efforts to prevent any
provision of Micro's certificate of incorporation or bylaws from containing
any terms inconsistent with the provisions of this Agreement, and from being
amended, modified, supplemented, restated or repealed in a manner inconsistent
with the provisions of this Agreement.
SECTION 2.8 Termination. This Agreement will terminate and be of no
further force or effect on the first date on which the Family Stockholders and
their Permitted Transferees together hold beneficially less than 25,000,000
Micro Common Shares (as such number is equitably adjusted to reflect stock
splits, stock dividends, recapitalizations or other transactions in the
capital stock of Micro).
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 Headings. The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of any provisions hereof.
SECTION 3.2 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties hereto with respect to the subject matter
hereof.
SECTION 3.3 Notices. Any notice, request, instruction or other
document to be given hereunder by any party hereto to another party hereto
shall be in writing (including telecopier or similar writing) and shall be
given to such party at its address set forth on the signature pages hereof, or
to such other address as the party to whom notice is to be given may provide
in a written notice to the party giving such notice, a copy of which written
notice shall be on file with the Secretary of Micro. Except as otherwise
provided herein, each such notice, request or other communication shall be
effective (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified on the signature pages hereof and the appropriate
confirmation is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section 3.3.
SECTION 3.4 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to the conflicts of law rules of such state.
SECTION 3.5 Severability. The invalidity or unenforceability of any
provisions of this Agreement in any jurisdiction shall not affect the
validity, legality or enforceability of the remainder of this Agreement in
such jurisdiction or the validity, legality or enforceability of this
Agreement, including any such provision, in any other jurisdiction, it being
intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
SECTION 3.6 Successors, Assigns, Transferees. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and permitted assigns. Notwithstanding
the foregoing, neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by any
party hereto; provided that each Family Stockholder agrees that, in connection
with any transfer by such Family Stockholder of Micro Common Shares after the
Split-Off to a Permitted Transferee (as defined herein), such Family
Stockholder shall assign its rights hereunder with respect to the shares so
transferred to the transferee of such Micro Common Shares. In such event, such
transferee shall execute and deliver to Micro an instrument or instruments
substantially in the form of Exhibit B hereto confirming that the transferee
has agreed to be bound, to the same extent and in the same manner as the
transferor, by the terms of this Agreement, a copy of which instrument shall
be maintained on file with the Secretary of Micro and shall include the
address of such transferee to which notices hereunder shall be sent. Neither
this Agreement nor any provision hereof shall be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement,
those who agree to be bound hereby and their respective successors and
permitted assigns.
SECTION 3.7 Amendments; Waivers.
(a) No failure or delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
(b) Neither this Agreement nor any term or provision hereof may be
amended or waived except by an instrument in writing signed, in the case of an
amendment, by each of the parties hereto and, in the case of waiver, by the
party against whom the enforcement of such waiver is sought.
SECTION 3.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 3.9 Remedies. The parties hereby acknowledge and agree that in
the event of any breach of this Agreement, the parties would be irreparably
harmed and could not be made whole by monetary damages. Each party hereto
accordingly agrees (i) not to assert by way of defense or otherwise that a
remedy at law would be adequate, and (ii) in addition to any other remedy to
which the parties may be entitled, that the remedy of specific performance of
this Agreement is appropriate in any action in court.
SECTION 3.10 Consent to Jurisdiction. Each party hereto irrevocably
submits to the non-exclusive jurisdiction of any court of the State of
Delaware or any United States Federal Court sitting in the State of Delaware
over any suit, action or proceeding arising out of or relating to this
Agreement. Each party hereto waives any right it may have to assert the
doctrine of forum non conveniens or to object to venue to the extent any
proceeding is brought in accordance with this Section 3.10. Nothing in this
paragraph shall affect or limit any right to serve process in any manner
permitted by law, to bring proceedings in the courts of any jurisdiction or to
enforce in any lawful manner a judgment obtained in one jurisdiction in any
other jurisdiction.
SECTION 3.11 Reliance on Corporate Records of Micro. For purposes of
this Agreement, Micro shall be entitled to determine the identity or existence
of one or more Family Stockholders, Approving Family Stockholders and their
Permitted Transferees by relying on the shareholder and other records of Micro.
SECTION 3.12 Actions by Family Stockholders. Except as otherwise
provided herein, all actions required to be taken hereunder by the Family
Stockholders shall be taken by the holders of a majority of the Outstanding
Voting Power held by the Family Stockholders.
SECTION 3.13 Actions by the Approving Family Stockholders; Family Agent.
(a) All actions required to be taken hereunder by the Approving Family
Stockholders shall be taken by the holders of a majority of the Approving
Voting Power held by the Approving Family Stockholders.
(b) The Approving Family Stockholders agree to appoint a Person to serve
as Family Agent on or before the date of the Split-Off, and to maintain a
Family Agent for the duration of this Agreement. The appointment of a Person
to serve as Family Agent shall become effective upon the receipt by Micro of a
written notice pursuant to Section 3.3 of such appointment by the holders of
a majority of the Approving Voting Power held by the Approving Family
Stockholders. The Family Agent is authorized to report the decisions of the
Approving Family Stockholders, and Micro shall be entitled to rely on a
written statement from the Family Agent as to actions taken by the Approving
Family Stockholders.
(c) A Family Agent shall serve in the agency capacity set forth in this
Agreement until (i) this Agreement terminates pursuant to Section 2.8 or (ii)
Micro receives notice from the holders of a majority of the Approving Voting
Power held by the Approving Family Stockholders that another Person has been
appointed as the Family Agent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXXX MICRO INC.
By:_________________________________
Name:
Title:
0000 Xxxx Xxxxx Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Telecopy: 000-000-0000
_______________________________________
Xxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
_______________________________________
Xxxxx X. Xxxxxx, XX
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
_______________________________________
Xxxx X. Xxxxxx
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
_______________________________________
Xxxxx X. Xxxxxx
0000 Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
______________________________________
Xxxxx X. Xxxxxx Xxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
QTIP MARITAL TRUST CREATED UNDER
THE E. XXXXXXX XXXXXX REVOCABLE
TRUST AGREEMENT DATED JANUARY 4, 1995
By: XXXXXX X. XXXXXX, XXXXX X.
XXXXXX, XXXX X. XXXXXX,
XXXXX X. XXXXXX AND XXXXX X. XXXXXX
XXXXXX, as Co-Trustees
By:_________________________________
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
By:__________________________________
Name: Xxxxx X. Xxxxxx
Title: Co-Trustee
Address: 0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
By:__________________________________
Name: Xxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
By:__________________________________
Name: Xxxxx X. Xxxxxx
Title: Co-Trustee
Address: 0000 Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
By:__________________________________
Name: Xxxxx X. Xxxxxx Xxxxxx
Title: Co-Trustee
Address: 0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
E. XXXXXXX XXXXXX 1995 CHARITABLE
REMAINDER 5% UNITRUST
By: XXXXXX X. XXXXXX, as Trustee
By:____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Trustee
Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
XXXXXX AND XXXXXXX XXXXXX
FOUNDATION
By: XXXXX X. XXXXXX, XXXX X. XXXXXX,
XXXXX X. XXXXXX, AND XXXXX XXXXXXX
XXXXXX XXXXXX, as Co-Trustees
By:____________________________________
Name: Xxxxx X. Xxxxxx
Title: Co-Trustee
Address: 0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
By:____________________________________
Name: Xxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
By:____________________________________
Name: Xxxxx X. Xxxxxx
Title: Co-Trustee
Address: 0000 Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
By:____________________________________
Name: Xxxxx Xxxxxxx Xxxxxx Xxxxxx
Title: Co-Trustee
Address: 0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
E. XXXXXXX XXXXXX 1994
CHARITABLE LEAD ANNUITY TRUST
By: XXXXX X. XXXXXX, XXXX X. XXXXXX,
XXXXX X. XXXXXX, AND XXXXX X.
XXXXXX XXXXXX, as Co-Trustees
By:____________________________________
Name: Xxxxx X. Xxxxxx
Title: Co-Trustee
Address: 0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
By:____________________________________
Name: Xxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
By:____________________________________
Name: Xxxxx X. Xxxxxx
Title: Co-Trustee
Address: 0000 Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
By:____________________________________
Name: Xxxxx X. Xxxxxx Xxxxxx
Title: Co-Trustee
Address: 0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
TRUST FOR XXXXX XXXXX XXXXXX, XX,
UNDER AGREEMENT WITH E. XXXXXXX
XXXXXX DATED OCTOBER 27, 1967
By: SUNTRUST BANK, ATLANTA,
XXXXXX X. XXXXXX AND XXXXXXXX
X. XXXXXX, AS CO-TRUSTEES
By:____________________________________
Name:
Title:
Address: SunTrust Bank, Atlanta
Attn: Xxxxxx X. Xxxxxx, Xx.
Trust Company Tower
00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
By:____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
By:_____________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xx.
Xxxxxxx Xxxxx, XX 00000
TRUST FOR XXXXX XXXXX XXXXXX, XX, UNDER
AGREEMENT WITH E. XXXXXXX XXXXXX DATED
JUNE 14, 1968
By: SUNTRUST BANK, ATLANTA, AND
XXXXXX X. XXXXXX, AS CO-TRUSTEES
By:____________________________________
Name:
Title:
Address: SunTrust Bank, Atlanta
Attn: Xxxxxx X. Xxxxxx, Xx.
Trust Company Tower
00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
By:____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
TRUST FOR XXXXX XXXXX XXXXXX, XX, UNDER
AGREEMENT WITH XXXXXXXX X. XXXXXX DATED
DECEMBER 22, 1975
By: SUNTRUST BANK, ATLANTA,
Trustee
By:____________________________________
Name:
Title:
Address: SunTrust Bank, Atlanta
Attn: Xxxxxx X. Xxxxxx, Xx.
Trust Company Tower
00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
THE XXXXX X. XXXXXX IRREVOCABLE TRUST
DATED JULY 9, 1992
By: XXX X. XXXXXXXX, as Trustee
By:____________________________________
Name: Xxx X. Xxxxxxxx
Title: Trustee
Address: 0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
TRUST FOR THE BENEFIT OF XXXXX X. XXXXXX
ESTABLISHED BY XXXXXX X. XXXXXX UNDER
AGREEMENT OF TRUST ORIGINALLY
DATED APRIL 30, 1982, AS AMENDED
By: XXX X. XXXXXXXX, as Trustee
By:____________________________________
Name: Xxx X. Xxxxxxxx
Title: Trustee
Address: 0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
TRUST FOR XXXX XXXXXX XXXXXX, UNDER
AGREEMENT WITH E. XXXXXXX XXXXXX DATED
OCTOBER 27, 1967
By: SUNTRUST BANK, ATLANTA, XXXXXX X.
XXXXXX AND XXXXXXXX X. XXXXXX, AS
CO-TRUSTEES
By:___________________________________
Name:_________________________________
Title:__________________________________
Address: SunTrust Bank, Atlanta
Attn: Xxxxxx X. Xxxxxx, Xx.
Trust Company Tower
00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
By:_______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
By:________________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xx.
Xxxxxxx Xxxxx, XX 00000
TRUST FOR XXXX XXXXXX XXXXXX, UNDER
AGREEMENT WITH E. XXXXXXX XXXXXX DATED
JUNE 14, 1968
By: SUNTRUST BANK, ATLANTA AND XXXXXX X.
XXXXXX, AS CO-TRUSTEES
By:____________________________________
Name:________________________________
Title:_________________________________
Address: SunTrust Bank, Atlanta
Attn: Xxxxxx X. Xxxxxx, Xx.
Trust Company Tower
00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
By:_______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
TRUST FOR XXXX XXXXXX XXXXXX, UNDER
AGREEMENT WITH XXXXXXXX X. XXXXXX DATED
DECEMBER 22, 1975
By: SUNTRUST BANK, ATLANTA, Trustee
By:__________________________________
Name:________________________________
Title:_________________________________
Address: SunTrust Bank, Atlanta
Attn: Xxxxxx X. Xxxxxx, Xx.
Trust Company Tower
00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
THE XXXX X. XXXXXX IRREVOCABLE TRUST DATED
JULY 9, 1992
By: XXX X. XXXXXXXX, as Trustee
By:________________________________
Name: Xxx X. Xxxxxxxx
Title: Trustee
Address: 0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
TRUST FOR THE BENEFIT OF XXXX X. XXXXXX
ESTABLISHED BY XXXXXX X. XXXXXX UNDER
AGREEMENT OF TRUST ORIGINALLY DATED APRIL
30, 1982, AS AMENDED
By: XXX X. XXXXXXXX, as Trustee
By:_________________________________
Name: Xxx X. Xxxxxxxx
Title: Trustee
Address: 0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
THE XXXX AND XXXXXXXXX XXXXXX FAMILY 1996
GENERATION SKIPPING TRUST
By: XXXXXXX X. XXXXX, as Trustee
By:____________________________________
Name: Xxxxxxx X. Xxxxx
Title: Trustee
Address: c/x Xxxxxx Industries Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
TRUST FOR XXXXX X. XXXXXX, UNDER AGREEMENT
WITH E. XXXXXXX XXXXXX DATED OCTOBER 27,
1967
By: SUNTRUST BANK, ATLANTA, XXXXXX X.
XXXXXX AND XXXXXXXX X. XXXXXX, AS
CO-TRUSTEES
By:____________________________________
Name:
Title:
Address: SunTrust Bank, Atlanta
Attn: Xxxxxx X. Xxxxxx, Xx.
Trust Company Tower
00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
By:______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
By:_______________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xx.
Xxxxxxx Xxxxx, XX 00000
TRUST FOR XXXXX X. XXXXXX, UNDER AGREEMENT
WITH E. XXXXXXX XXXXXX DATED JUNE 14, 1968
By: SUNTRUST BANK, ATLANTA AND XXXXXX X.
XXXXXX, AS CO-TRUSTEES
By:____________________________________
Name:
Title:
Address: SunTrust Bank, Atlanta
Attn: Xxxxxx X. Xxxxxx, Xx.
Trust Company Tower
00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
By:______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
TRUST FOR XXXXX X. XXXXXX, UNDER AGREEMENT
WITH XXXXXXXX X. XXXXXX DATED DECEMBER
22, 1975
By: SUNTRUST BANK, ATLANTA, Trustee
By:____________________________________
Name:
Title:
Address: SunTrust Bank, Atlanta
Attn: Xxxxxx X. Xxxxxx, Xx.
Trust Company Tower
00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
THE XXXXX X. XXXXXX IRREVOCABLE
TRUST DATED JULY 9, 1992
By: XXX X. XXXXXXXX, as Trustee
By:____________________________________
Name: XXX X. XXXXXXXX
Title: Trustee
Address: 0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
TRUST FOR THE BENEFIT OF XXXXX X. XXXXXX
ESTABLISHED BY XXXXXX X. XXXXXX UNDER
AGREEMENT OF TRUST ORIGINALLY DATED APRIL
30, 1982, AS AMENDED
By: XXX X. XXXXXXXX, as Trustee
By:____________________________________
Name: Xxx X. Xxxxxxxx
Title: Trustee
Address: 0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
XXXXX AND XXXXX XXXXXX FAMILY 1996
GENERATION SKIPPING TRUST
By: XXXXXX X. XXXX, AS TRUSTEE
By:_____________________________________
Name: Xxxxxx X. Xxxx
Title: Trustee
Address: 000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
TRUST FOR XXXXX XXXXXXX XXXXXX, UNDER
AGREEMENT WITH E. XXXXXXX XXXXXX DATED
OCTOBER 27, 1967
By: SUNTRUST BANK, ATLANTA XXXXXX X.
XXXXXX AND XXXXXXXX X. XXXXXX, AS
CO-TRUSTEES
By:___________________________________
Name:______________________________
Title:_______________________________
Address: SunTrust Bank, Atlanta
Attn: Xxxxxx X. Xxxxxx, Xx.
Trust Company Tower
00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
By:______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
By:_______________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xx.
Xxxxxxx Xxxxx, XX 00000
TRUST FOR XXXXX XXXXXXX XXXXXX, UNDER
AGREEMENT WITH E. XXXXXXX XXXXXX DATED
JUNE 14, 1968
By: SUNTRUST BANK, ATLANTA AND XXXXXX X.
XXXXXX, AS CO-TRUSTEES
By:______________________________________
Name:_________________________________
Title:________________________________
Address: SunTrust Bank, Atlanta
Attn: Xxxxxx X. Xxxxxx, Xx.
Trust Company Tower
00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
By:_______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
TRUST FOR XXXXX XXXXXXX XXXXXX, UNDER
AGREEMENT WITH XXXXXXXX X. XXXXXX DATED
DECEMBER 22, 1975
By: SUNTRUST BANK, ATLANTA, Trustee
By:______________________________________
Name:_________________________________
Title:________________________________
Address: SunTrust Bank, Atlanta
Attn: Xxxxxx X. Xxxxxx, Xx.
Trust Company Tower
00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
THE XXXXX XXXXXX XXXXXX IRREVOCABLE
TRUST DATED JULY 9, 1992
By: XXX X. XXXXXXXX, as Trustee
By:_______________________________
Name: Xxx X. Xxxxxxxx
Title: Trustee
Address: 0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
TRUST FOR THE BENEFIT OF XXXXX X. XXXXXX
ESTABLISHED BY XXXXXX X. XXXXXX UNDER
AGREEMENT OF TRUST ORIGINALLY DATED APRIL
30, 1982, AS AMENDED
By: XXX X. XXXXXXXX, as Trustee
By:_________________________________
Name: Xxx X. Xxxxxxxx
Title: Trustee
Address: 0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
EXHIBIT A
Attribution of Approving Voting Power
1. With respect to any vote pursuant to Section 2.5, and as of any
given date, Xxxxxx X. Xxxxxx shall be attributed and entitled to cast a number
of votes equal to the Outstanding Voting Power of all Micro Common Shares
owned by Trust for Xxxx Xxxxxx Xxxxxx, under an Agreement with E. Xxxxxxx
Xxxxxx dated June 14, 1968, plus the Outstanding Voting Power of all Micro
Common Shares owned by Trust for Xxxxx X. Xxxxxx, under an Agreement with E.
Xxxxxxx Xxxxxx dated October 27, 1967, plus the Outstanding Voting Power of
all Micro Common Shares owned by Trust for the Benefit of Xxxxx Xxxxxxx
Xxxxxx, dated June 14, 1968, plus the Outstanding Voting Power of all Micro
Common Shares owned by Trust for Xxxxx Xxxxxxx Xxxxxx, under an Agreement with
E. Xxxxxxx Xxxxxx dated June 14, 1968.
2. With respect to any vote pursuant to Section 2.5, and as of any
given date, Xxxxx X. Xxxxxx, XX shall be attributed and entitled to cast a
number of votes equal to twenty-five percent (25%) of the Outstanding Voting
Power of all Micro Common Shares owned by E. Xxxxxxx Xxxxxx 1994 Charitable
Lead Annuity Trust.
3. With respect to any vote pursuant to Section 2.5, and as of any
given date, Xxxx X. Xxxxxx shall be attributed and entitled to cast a number
of votes equal to twenty-five percent (25%) of the Outstanding Voting Power of
all Micro Common Shares owned by E. Xxxxxxx Xxxxxx 1994 Charitable Lead
Annuity Trust.
4. With respect to any vote pursuant to Section 2.5, and as of any
given date, Xxxxx X. Xxxxxx shall be attributed and entitled to cast a number
of votes equal to twenty-five percent (25%) of the Outstanding Voting Power of
all Micro Common Shares owned by E. Xxxxxxx Xxxxxx 1994 Charitable Lead
Annuity Trust.
5. With respect to any vote pursuant to Section 2.5, and as of any
given date, Xxxxx X. Xxxxxx Xxxxxx shall be attributed and entitled to cast a
number of votes equal to twenty-five percent (25%) of the Outstanding Voting
Power of all Micro Common Shares owned by E. Xxxxxxx Xxxxxx 1994 Charitable
Lead Annuity Trust.
EXHIBIT B
FORM OF AGREEMENT TO BE BOUND
[DATE]
To the Parties to the Board Representation Agreement
Dated as of _______, ____
Ladies and Gentlemen:
Reference is made to the Board Representation Agreement (the
"Agreement") dated as of __________ among Xxxxxx Micro Inc. and the Persons
listed on the signature pages thereof.
In consideration of the transfer to the undersigned of Micro Common
Shares (as defined in the Agreement), the undersigned hereby confirms and
agrees to be bound by all of the provisions of the Agreement applicable to the
transferor.
This letter shall be construed and enforced in accordance with the laws
of the State of Delaware without regard to the conflicts of law rules of such
state.
Very truly yours,
Permitted Transferee
