EXHIBIT 10.23
VOTING AND LOCK-UP AGREEMENT
THIS VOTING AND
LOCK-UP AGREEMENT (this “Agreement”) is made and
entered into as of July 12, 2005, by and among BRILLIAN
CORPORATION , a Delaware corporation (“Brillian”),
and the undersigned shareholders (collectively, the
“Shareholder”) of SYNTAX GROUPS CORPORATION , a
California corporation (“Syntax”).
RECITALS
A. Concurrently
with the execution of this Agreement, Brillian, BRMC Corporation, a
California corporation and a wholly owned subsidiary of Brillian
(“BRMC”), and Syntax have entered into an Agreement and
Plan of Reorganization (the “Merger Agreement”), which
provides for the merger (the “Merger”) of BRMC with and
into Syntax.
B. Pursuant
to the Merger, among other things, all of the issued and
outstanding shares of capital stock of Syntax will be converted
into the right to receive the consideration set forth in the Merger
Agreement, all upon the terms and subject to the conditions set
forth in the Merger Agreement.
C. Shareholder
is the record and beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of the
number of shares of outstanding capital stock of Syntax and other
securities convertible into, or exercisable or exchangeable for,
shares of capital stock of Syntax, all as set forth on the
signature page of this Agreement (collectively, the
“Shares”).
D. In
consideration of the execution of the Merger Agreement by Brillian
and as a condition to the willingness of Brillian to enter into the
Merger Agreement, Shareholder agrees to enter into this Agreement
to restrict the transfer or disposition of any of the Shares, or
any other shares of capital stock of Syntax acquired by Shareholder
hereafter and prior to the Expiration Date (as defined in
Section 1(a) hereof), and to vote the Shares and any
other such shares of capital stock of Syntax so as to facilitate
the consummation of the Merger.
AGREEMENT
NOW, THEREFORE , the parties hereto hereby agree as
follows:
1.
Agreement to Retain Shares.
(a)
Transfer . Shareholder agrees that, at all times during the
period beginning on the date hereof and ending on the Expiration
Date (as defined below), Shareholder shall not Transfer (as defined
below) any of the Shares or any New Shares (as defined in
Section 1(b) hereof), or make any agreement relating
thereto, in each case without the prior written consent of
Brillian.
As
used herein, the term “Expiration Date” shall mean the
earlier to occur of (i) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the
Merger Agreement, or (ii) the termination of the Merger
Agreement in accordance with the terms thereof. As used herein, the
term “Transfer” shall mean, with respect
to any security, the direct or
indirect assignment, sale, transfer, tender, pledge, hypothecation,
or the gift, placement in trust, or the Constructive Sale (as
defined below) or other disposition of such security (excluding
transfers by testamentary or intestate succession) or any right,
title, or interest therein (including, but not limited to, any
right or power to vote to which the holder thereof may be entitled,
whether such right or power is granted by proxy or otherwise), or
the record or beneficial ownership thereof, excluding (i) any
Transfer to a family member or charitable organization if the
transferee agrees in writing to be bound by the terms of this
Agreement to the same extent as Shareholder and (ii) any
Transfer pursuant to a court order. As used herein, the term
“Constructive Sale” shall mean, with respect to any
security, a short sale with respect to such security, entering into
or acquiring an offsetting derivative contract with respect to such
security, entering into or acquiring a futures or forward contract
to deliver such security, or entering into any other hedging or
other derivative transaction that has the effect of materially
changing the economic benefits and risks of ownership.
(b)
New Shares . Shareholder agrees that any shares of capital
stock of Syntax that Shareholder purchases or with respect to which
Shareholder otherwise acquires record or beneficial ownership after
the date of this Agreement and prior to the Expiration Date,
including, without limitation, shares issued or issuable upon the
conversion, exercise, or exchange, as the case may be, of all
securities held by Shareholder which are convertible into, or
exercisable or exchangeable for, shares of capital stock of Syntax
(“New Shares”), shall be subject to the terms and
conditions of this Agreement to the same extent as if they
constituted Shares as of the date hereof.
2.
Agreement to Vote Shares . Until the Expiration Date, at
every meeting of shareholders of Syntax called with respect to any
of the following, and at every adjournment or postponement thereof,
and on every action or approval by written consent of shareholders
of Syntax with respect to any of the following, Shareholder shall
vote or cause to be voted, to the extent not voted by Brillian
pursuant to the irrevocable proxy in Section 3 hereof,
the outstanding Shares and any outstanding New Shares (to the
extent such New Shares may be voted).
(i) in
favor of the adoption of the Merger Agreement and in favor of each
of the other actions contemplated by the Merger Agreement and any
action required in furtherance thereof;
(ii) against
approval of any proposal made in opposition to, or in competition
with, consummation of the Merger and the transactions contemplated
by the Merger Agreement, including, without limitation, any
Acquisition Proposal or Superior Proposal (as such terms are
defined in the Merger Agreement); and
(iii) against
any action that is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, discourage, or adversely
affect the Merger or any of the other transactions contemplated by
the Merger Agreement.
Prior
to the Expiration Date, Shareholder shall not enter into any
agreement or understanding with any person to vote or give
instructions in any manner inconsistent with this Section 2
. Shareholder hereby grants to Brillian the right, if Syntax fails
to provide a notice of a shareholder meeting within five
(5) business days of the date that the Registration Statement
(as
2
defined in the Merger Agreement)
is declared effective, to take any and all action to either act by
written consent or call a special meeting of the shareholders of
Syntax, on Shareholder’s behalf, to take the actions called
for in subsection (i).
3.
Irrevocable Proxy . Shareholder hereby revokes any and all
previous proxies granted with respect to the Shares. By entering
into this Agreement, Shar
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