STANDSTILL AND VOTING AGREEMENT
THIS
STANDSTILL AND VOTING
AGREEMENT (this “Agreement”) is made as of
October 9, 2020, by and among Zoom Telephonics, Inc., a Delaware
corporation (the “Company”), Zulu Holdings
LLC, a New Hampshire limited liability company (“Zulu”), and Jeremy P.
Hitchcock (“Hitchcock”). The Company,
Zulu and Hitchcock are each referred to herein as a
“Party”
and collectively as the “Parties”.
RECITALS
WHEREAS, Zulu and Hitchcock collectively
Beneficially Own (as defined below) 37.0% and 37.2%, respectively,
of the outstanding common stock of the Company;
WHEREAS, Zulu and Hitchcock may acquire
up to an additional 3,543,894 shares of Company common stock from
current stockholders of the Company (such acquisition, the
“Purchase
Transaction”);
WHEREAS, in connection with such
acquisition of Company common stock, the Company has requested that
Zulu and Hitchcock enter into this Agreement;
NOW, THEREFORE, in consideration of the
premises and the mutual promises herein made, and in consideration
of the representations, warranties, and covenants herein contained,
the receipt and sufficiency of which are hereby acknowledged,
intending to be legally bound hereby, the Parties agree as
follows.
AGREEMENT
1. The Standstill Obligation.
During the Standstill Period (as defined below), without prior
Independent Director Approval (as defined below), each of Zulu and
Hitchcock severally agrees that such Party shall not, nor shall any
such Party permit any of its controlled affiliates (as the term
“affiliates” is defined in the Securities Exchange Act
of 1934, as amended (the “Exchange Act”))
(collectively, Zulu, Hitchcock and their affiliates (other than the
Company and its subsidiaries), the “Restricted Parties”) to
effect, individually or collectively, directly or indirectly,
any:
(a) (i) transaction or
series of transactions involving any Restricted Party, on the one
hand, and the Company or any of its subsidiaries, on the other
hand, or in which any Restricted Party has a material interest that
is different from stockholders of the Company generally, and that
is material to the Company; (ii) any amendment, modification,
termination, enforcement or waiver of the rights of the Company or
any of its subsidiaries under any agreement involving the Company
or any of its subisidiaries, on the one hand, and any Restricted
Party, on the other hand; or (iii) settlement or compromise of any
claim or dispute involving the Company or any of its subsidiaries,
on the one hand, and any Restricted Party, on the other
hand;
(b) purchase or other
acquisition of more than 10.0% of the then total number of shares
of outstanding Company common stock other than (i) in connection
with the grant or
exercise of stock
options, restricted stock or similar equity-related incentives to
directors and officers of the Company pursuant to a Company stock
option or stock incentive plan of the Company or (ii) transfers
among affiliates (as defined in Securities and Exchange Commission
Rule 12b-2) of such Party, family members of such Party or trusts
for the benefit of such Party or family members of such Party;
or
(c) sale, transfer or
other disposition of Company common stock owned by such Party if
such transaction would result in the person or entity acquiring
such common stock to Beneficially Own more than 20.0% of the
Company’s outstanding common stock immediately after giving
effect to such transaction, other than sales, transfers or other
dispositions (i) among (A) affiliates (as defined in Securities and
Exchange Commission Rule 12b-2) of such Party, (B) family members
of such Party or (C) trusts for the benefit of such Party or family
members of such Party (such persons listed at (i) (A)‒(C) of this
Section 1(c), the
“Affiliate
Transferrees”); provided that in the case of a sale,
transfer or other disposition of the Company common stock owned by
such Party to an Affiliate Transferree, any such Affiliate
Transferree must, upon the consummation of such sale, transfer or
other disposition, execute and deliver to the Company a joinder
providing that such Affiliate Transferree shall be bound by and
shall fully comply with the terms of this Agreement or (ii)
pursuant to a registered underwritten public offering of Company
common stock.
Any
transfers or purported transfers of Company common stock by a
Restricted Party other than as permitted by this Agreement shall be
null and void ab initio. As
used in this Agreement, the term “Beneficially Own” and
correlative terms shall have the meaning ascribed to such term in
Section 13(d) of the Exchange Act and rules promulgated
thereunder.
2. Legend. Any certificate
representing Company common stock issued to a Restricted Party
after the date of this Agreement and during the Standstill Period
shall be stamped or otherwise imprinted with a legend in
substantially the following form:
“The shares
represented by this certificate are subject to the provisions
contained in the Standstill and Voting Agreement, dated as of
October 9, 2020, by and among the stockholders of Zoom Telephonics,
Inc. party thereto and Zoom Telephonics, Inc., as may be amended,
modified or supplemented from time to time.”
The
Company shall include the foregoing legend in any notice delivered
during the Standstill Period to a Restricted Party that is a holder
of Company common stock issued in uncertificated form pursuant to
Section 151 of the General Corporation Law of the State of Delaware
and shall otherwise make customary arrangements to cause any
Company common stock issued to a Restricted Party in uncertificated
form to be identified on the books of the Company in a
substantially similar manner.
3. The Standstill Period. As used
in this Agreement, the term “Standstill Period” shall
mean, with respect to the Restricted Parties, the period of time
from the completion of the Purchase Transaction through the earlier
of: (i) such time as the Restricted Parties Beneficially Owns less
than 45.0% of the outstanding common stock of the Company, and (ii)
the third
anniversary of the
date of this Agreement. This Agreement shall be effective only
during the Standstill Period and shall terminate at the end of the
Standstill Period.
4. Independent
Directors.
(a) For purposes of
this Agreement, (i) “Independent Director”
means any member of the Board of Directors of the Company and is an
“Independent Director” within the meaning of Rule
5605(a)(2) of the Nasdaq Listing Rules of the Nasdaq Stock Market,
and (ii) “Independent Director
Approval” means the approval of a committee of the
Company’s Board of Directors comprised solely of Independent
Directors who are disinterested and independent under Delaware law
as to the matters under consideration, and that is duly formed and
existing in accordance with the terms of the Company’s
certificate of incorporation and bylaws, as in effect on the
relevant date.
(b) During the
Standstill Period, the Company and each Restricted Party shall take
all necessary actions within their control (including voting or
causing to be present at meeting of stockholders of the Company and
voted all of the Company common stock held of record or
Beneficially Owned by such Restricted Party by virtue of having
voting power over such Company common stock) so as to cause the
Board of Directors of the Company to consist of at least such
number of Independent Directors as shall be one director less than
a majority of the total number of directors on the Board of
Directors other than during such periods in which there exists a
vacancy in the number of Independent Directors provided that,
during any such period, commercially reasonable efforts are made to
fill such vacancy as promptly as is reasonably practicable under
the circumstances.
5. Specific Performance. Each of
the Parties agrees that it is impossible to measure in money the
damages which would accrue by reason of a Party’s failure to
perform any of its obligations under this Agreement. It is agreed
that the Parties hereto would be irreparably damaged in the event
that this Agreement and would not have an adequate remedy at law
were this Agreement not specifically performed. Accordingly, it is
agreed that the Company shall be entitled to an injunction to
prevent breaches of this Agreement, and to specific performance of
this Agreement and its terms and provisions. Such actions may be
instituted in any competent court of the United States or any state
or territory thereof having subject matter jurisdiction thereof.
The Parties waive any requirement for the posting of a bond or
other security in respect of any action seeking injunctive relief
or specific performance. A defaulting Party hereunder shall not
argue, as a defense to any proceeding for specific performance or
injunctive relief, that the Party seeking such relief has an
adequate remedy at law.
6. Remedies Cumulative. The
injunctive and equitable remedies set forth in Section 5 above shall be in
addition to any other rights or remedies which the parties may have
at law or in equity. The rights and remedies herein provided are
cumulative and none is exclusive of any other.
7. No Rule of Construction. The
Parties acknowledge that all Parties have read and negotiated the
language used in this Agreement. The Parties agree that, because
all Parties
participated in
negotiating and drafting this Agreement, no rule of construction
shall apply to this Agreement which construes ambiguous language in
favor of or against any Party by reason of that Party’s role
in drafting this Agreement.
8. Governing Law. This Agreement
shall be construed and enforced in accordance with and governed by
the laws of the State of Delaware without regard to principles of
conflicts of laws.
9. Amendments and Waivers. No
breach of any covenant, agreement, warranty or representation shall
be deemed waived unless expressly waived in writing by the Party
who is entitled to assert such breach. No waiver of any right
hereunder shall operate as a waiver of any other right or of the
same or a similar right on another occasion. This Agreement may be
amended, modified or supplemented only by a written instrument duly
executed by the Parties hereto; provided that any such amendment,
modification or supplement shall also require Independent Director
Approval.
10. Entire Agreement. This
Agreement contains the entire understanding of the Parties with
respect to the subject matter hereof, and supersedes all prior
representations, agreements and understandings relating to the
subject matter hereof.
11. Severability. Any provision of
this Agreement that is invalid, illegal or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability, without
affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this
Agreement invalid, illegal or unenforceable in any other
jurisdiction.
12. Counterparts; Signatures;
Section Headings. This Agreement may be executed by the
Parties in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument. A facsimile or
electronic signature shall bind the signatory in the same way that
an original signature would bind the signatory. The headings of
each section, subsection or other subdivision of this
Agreement are for reference only and shall not limit or control the
meaning thereof.
[Remainder of page intentionally left blank]
IN
WITNESS WHEREOF, this Agreement has been duly executed by the
Parties hereto as of the date first written above.
|
|
ZOOM
TELEPHONICS, INC.
By: /s/ Jacquelyn Barry
Hamilton
Name:
Jacquelyn Barry Hamilton
Title: Chief
Financial Officer
ZULU
HOLDINGS LLC
By: /s/ Jeremy P.
Hitchcock
Name:
Jeremy P. Hitchcock
Title:
Manager
/s/ Jeremy P.
Hitchcock
Jeremy
P. Hitchcock
|
Zoom Telephonics, Inc. Announces the Retirement of 3
Directors
Boston,
MA, October 13, 2020 – Zoom Telephonics, Inc.
(“Zoom”) (OTCQB: ZMTP), a leading manufacturer of
Motorola-brand cable modems, routers, and home security products,
announced today the retirement of Co-Founders Frank Manning, Peter
Kramer, and longtime board member Joseph Donovan from the
company’s Board of Directors.
Founded
in 1977, Zoom’s first products were the phone Silencer and an
advanced speed dialer known as the Demon Dialer. The company
introduced its first dial-up modem in 1983, and grew its modem
sales to $100 million by 1996, generating $2.5 million in net
income that year. Their manufacturing team went on to produce a
variety of broadband products—DSL,
cable modems, and modem/routers included—which
grew as dial-up modem sales declined. In 2016, Zoom began selling
these broadband products under a Motorola brand license, fueling
dramatic growth. The company has since expanded this Motorola brand
license to include other local area networking products, including
mesh products and a range of home security solutions. Although Zoom
continues to focus on broadband and local area network products,
the company has recently added powerful networking applications and
other software to its portfolio to provide even higher performance
and ease of use.
“Zoom
Telephonics is going through an exciting generational
change,” says Jeremy Hitchcock, Executive Chairman.
“After providing years of strategic leadership as CEO, Frank
Manning has continued to give valuable counsel to the board. It is
a testament to the hard work of Mr. Manning, and the many others
who have contributed throughout the years, that this company
remains strong and well-positioned for future growth. We are
particularly grateful for the many years of service provided by
Frank Manning, Peter Kramer and Joe Donovan, and for the trust they
put into Zoom’s new leadership.”
“Zoom
Telephonics is a leader in Internet access products that deliver
high performance and ease of use, and we benefit from strong
customers including Amazon, Best Buy, Micro Center, Target, and
others,” said Frank Manning. “I’m excited about
Zoom’s potential as it expands into Mesh Network products and
benefits from exciting new software applications. I’m proud
of what I’ve accomplished at Zoom, with 43 years as CEO
ending with my retirement in February of this year. I’m very
grateful for the people I’ve worked with, including
co-founder and former Executive VP Peter Kramer, co-founders T. Pat
Manning, Bruce Kramer, and Bernard Furman, former VP Operations
Deena Randall and VP Sales & Marketing Terry Manning, many
other wonderful co-workers, Joe Donovan, Bob Crowley, Ron Woods,
and other Directors, customers, suppliers, investors, and others.
Together we grew a great company, and we wish Jeremy Hitchcock and
the entire Zoom team the best as they aggressively move into the
future.”
About Zoom Telephonics Zoom Telephonics, Inc.
(“Zoom”)
(OTCQB: ZMTP) Operating under an exclusive worldwide license from
Motorola, Zoom Telephonics, Inc. (OTC: ZMTP) develops, markets, and
supports Motorola-brand cable modems, routers, and home security
products.
In
addition, Zoom Telephonics develops customer engagement platforms
for IoT devices, such as the new MotoManage App, enabling product
diversification for increased market share and future license
expansion. For more information about Zoom and Motorola products,
please visit www.zoom.net and www.motorolanetwork.com and
www.motomanage.com
About Motorola Strategic Brand Partnerships
For
over 90 years the Motorola brand has been known around the world
for high quality, innovative and trusted products. Motorola’s
Strategic Brand Partnership program seeks to leverage the power of
this iconic brand by teaming with dynamic companies who offer
unique, high quality products that enrich consumer’s lives.
Strategic brand partners work closely with Motorola engineers while
developing and manufacturing their products, ensuring that their
products meet the exacting safety, quality, and reliability
standards that consumers have come to expect from
Motorola.
To
learn more about Motorola strategic brand partnerships, follow us
@ShopMotorola MOTOROLA, the Stylized Motorola Logo and the Stylized
M Logo are trademarks or registered trademarks of Motorola
Trademark Holdings, LLC, and are used under license.
Media
Contact: Marlana Trombley
Interim
CMO Zoom Telephonics
Phone:
203-592-9687
Email:
Marlana@zoom.net