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EXHIBIT 9.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") dated as of January
25, 1999 is by and between the undersigned stockholders of the Company (as
hereinafter defined) (individually a "Stockholder" and collectively
"Stockholders") and eSoft, Inc., a Delaware corporation ("Parent").
RECITALS
WHEREAS, concurrently herewith, Parent, a wholly owned
subsidiary of Parent ("Merger Sub"), and Apexx Technology, Inc., an Idaho
corporation (the "Company"), are entering into an Agreement and Plan of Merger
of even date herewith (the "Merger Agreement"), pursuant to which, and subject
to the terms and conditions contained therein, Merger Sub will be merged with
and into the Company (the "Merger"); and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Parent has required that each of the undersigned Stockholders
enter into and each of the Stockholders has agreed to enter into this Agreement
or an agreement in the same form as this Agreement (together, the "Voting
Agreements"); and
WHEREAS, the Board of Directors of the Company has, prior to
the execution of the Merger Agreement and the Voting Agreements, approved the
Merger Agreement and the Merger; and
WHEREAS, Parent and Merger Sub will enter into the Merger
Agreement in part in reliance on Stockholder's representations, warranties and
agreements set forth in this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement and other good and valuable consideration
the receipt and sufficiency of which are hereby approved, and intending to be
legally bound hereby, it is agreed as follows:
1. Proxy with Respect to the Shares. During the Term,
Stockholder hereby irrevocably appoints Merger Sub as Stockholder's attorney and
proxy, with full power of substitution, to vote or to express written consent in
lieu of a vote or meeting with respect to all of the shares of Company Common
Stock (as hereinafter defined) that Stockholder is entitled to vote at any
meeting of stockholders (whether annual or special and whether or not an
adjourned meeting) of the Company, or pursuant to written action taken in lieu
of any such meeting or otherwise, in such manner as to cause the Merger and the
Merger Agreement to be approved and the right to vote against any other
transaction or proposal that would constitute a Change of Control (as
hereinafter defined). During the Term, this proxy is irrevocable, is coupled
with an interest sufficient in law to support an irrevocable proxy and is
granted in consideration of and as an inducement to cause Parent and Merger Sub
to enter into the transactions contemplated by this Agreement and the Merger
Agreement. During the Term, this proxy shall revoke any other proxy granted by
Stockholder at any time with respect to the Shares (as hereinafter defined) and
during the Term, no subsequent proxies will be given with respect thereto by
Stockholder. "Change of Control" shall mean any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger,
including but not limited to, (a) any extraordinary corporate transaction (other
than the Merger), such as a merger, other business combination, reorganization
or liquidation involving Company, (b) a sale or transfer of a material amount of
assets of the Company or any of its subsidiaries, (c) any change in the
management or board of directors of the Company, except as otherwise agreed to
in writing by Parent, or (d) any material change in the present capitalization
of the Company.
2. Agreement to Support Merger. In the event that the Proxy
granted in Section 1 hereof is ineffective, Stockholder agrees, subject to the
terms of Section 3 of this Agreement, to vote any and all shares of the
Company's common stock, no par value ("Company Common Stock"), which Common
Stock is listed on Exhibit A attached hereto, as well as any shares of Company
Common Stock acquired by Stockholder prior to the Merger (collectively, the
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"Shares") held by Stockholder in favor of the Merger pursuant to the terms of
the Merger and the Merger Agreement, but in the event that a vote for the Merger
does not take place during the Term, then Stockholder agrees not to vote in
favor of any other Change of Control during the remaining portion of the Term.
3. Condition to Stockholder's Obligations. The right of Merger
Sub or Parent as a permitted assignee to exercise the proxy granted in Section
1, and the obligation of each Stockholder under Section 2, are subject to the
condition that (i) Parent shall have performed all material agreements contained
in the Merger Agreement that are required to be performed prior to, and cannot
reasonably be performed after, the time that the proxy is to be exercised by
Merger Sub or action by Stockholders is required and (ii) that no material
representations and warranty of Parent and Merger Sub in the Merger Agreement
shall fail to be true at the time of such exercise of the proxy or other action,
and such failure cannot reasonably be cured after such time, and in either case,
such failure to perform or the failure of a representation and warranty to be
true and correct would have or would be reasonably likely to have a Parent
Material Adverse Effect. Merger Sub may exercise its proxy without regard to the
preceding sentence unless it has received a written notice from a Stockholder,
at least 24 hours before the proxy is to be exercised, that asserts a failure to
perform a breach of representation and warranty that would prohibit Merger Sub
from exercising the proxy. The obligations of the parties to perform under this
Agreement upon its execution and thereafter shall be subject to the additional
condition that there shall be no preliminary or permanent injunction or other
order issued by any court of competent jurisdiction in effect that prohibits (i)
this Agreement, or (ii) the Merger. Each Stockholder and Parent agree not to
seek any such injunction or order. Parent agrees that it will oppose and will
seek the immediate lifting of any such injunction or order and each Stockholder
agrees to cooperate with Parent in such efforts.
4. Representations and Warranties of Stockholder. Each
Stockholder severally represents and warrants to Parent as follows:
4.1 Ownership of Shares. On the date hereof, the
Shares are all of the shares of Company Common Stock currently
owned by such Stockholder, beneficially and of record. Except
as set forth on Exhibit A to this Agreement, Stockholder does
not have any rights to acquire any additional shares of
Company Common Stock. Stockholder currently has, and at the
closing of the Merger will have good, valid and marketable
title to, and the sole and unfettered right to vote, the
Shares, free and clear of all liens, encumbrances,
restrictions, options, warrants, rights to purchase and claims
of every kind (other than the encumbrances created by this
Agreement and the Loan Agreement (as defined in the Merger
Agreement) and other than restrictions on transfer under
applicable Federal and State securities laws).
4.2 Power; Binding Agreement. Stockholder has the
full legal right, power and authority to enter into and
perform all of Stockholder's obligations under this Agreement.
5. Term. The duration and term (the "Term") of this Agreement
will be the earlier of (a) ▇▇▇▇▇▇ ▇, ▇▇▇▇, (▇) when Parent, Merger Sub and
Stockholder mutually consent in writing to terminate this Agreement, or (c) upon
the termination of the Merger Agreement by the Company. After the Term, this
Agreement will terminate and be null and void, other than the provisions
relating to expenses.
6. Expenses. Each party hereto will pay all of its expenses in
connection with the transactions contemplated by this Agreement, including,
without limitation, the fees and expenses of its counsel and other advisers.
7. Certain Covenants of Parent. Parent agrees to use its
reasonable best efforts to make and consummate the Merger pursuant to the terms,
and subject to the conditions, contained in the Merger Agreement.
8. Notices. All notices or other communications required or
permitted hereunder shall be in writing (except as otherwise provided herein)
and shall be deemed duly given when received by delivery in person, by telecopy,
telex or telegram or by certified mail, postage prepaid, or by an overnight
courier service, addressed as follows:
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If to Parent or Merger Sub:
eSoft, Inc.
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Stockholder, at the address set forth in the signature
page hereto
9. Entire Agreement: Amendment. This Agreement, together with
the documents expressly referred to herein, constitute the entire agreement
among the parties hereto with respect to the subject matter contained herein and
supersede all prior agreements and understandings among the parties with respect
to such subject matter. This Agreement may not be modified, amended, altered or
supplemented except by an agreement in writing executed by the party against
whom such modification, amendment, alteration or supplement is sought to be
enforced.
10. Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
but neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto without the prior
written consent of the other parties, except that Merger Sub may assign any or
all of its rights and obligations hereunder to Parent or any direct or indirect
wholly-owned subsidiary of Parent without the consent of Stockholder, but no
such transfer shall relieve Merger Sub of its obligations under this Agreement
if such transferee does not perform the obligations of Merger Sub hereunder.
11. Governing Law. This Agreement, and all matters relating
hereto, shall be governed by, and constituted in accordance with the laws of the
State of Delaware without giving effect to the principles of conflicts of laws
thereof.
12. Covenants. Stockholder hereby agrees and covenants that it
shall not (i) transfer (which terms shall include, without limitation, for the
purposes of this Agreement, any sale, gift, pledge, alienation, assignment or
other disposition, directly or indirectly, by operation of law, in connection
with any merger or otherwise (collectively, a "Transfer")), or consent to any
Transfer of, any or all of the Shares or any interest therein, except pursuant
to the Merger or the Loan Agreement, (ii) enter into any contract, option or
other agreement or understanding with respect to any Transfer of any or all of
the Shares or any interest therein, (iii) grant any proxy, power of attorney or
other authorization in or with respect to the Shares, except for this Agreement,
or (iv) deposit the Shares into a voting trust or enter into a voting agreement
or arrangement with respect to the Shares.
13. Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
Stockholder's Share shall pass, whether by operation of law or otherwise,
including without limitation, such Stockholder's heirs, guardians,
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization,
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recapitalization or other change in the capital structure of the Company
affecting the Shares, or the acquisition of additional shares of Company Common
Stock or other voting securities of the Company by Stockholder, the number of
Shares listed in Exhibit A shall be adjusted appropriately and this Agreement
and the obligations hereunder shall attach to any additional shares of Company
Common Stock or other voting securities of the Company issued to or acquired by
Stockholder.
14. Stockholder Capacity. No person executing this Agreement
who is or becomes during the term hereof a director of the Company makes any
agreement or understanding herein in his or her capacity as a director. Each
Stockholder is executing this Agreement solely in his or her capacity as the
record and beneficial owner of Stockholder's Shares. The parties hereto
acknowledge and agree that none of the provisions herein set forth shall be
deemed to restrict or limit any fiduciary duty the undersigned or any partner of
the undersigned or any of their respective affiliates may have as a member of
the Board of Directors or executive officer of the Company, or as counsel to the
Company; provided, that no such duty shall excuse the undersigned from his or
her obligation as a Stockholder of the Company to vote the Shares, to the extent
that they may be so voted, as herein provided and to otherwise comply with the
terms and conditions of this Agreement.
15. Enforcement. Stockholder agrees that irreparable damage
would occur and that Parent and Merger Sub would not have any adequate remedy at
law in the event that any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that Parent and Merger Sub shall be entitled to an injunction
or injunctions to prevent breaches or threatened breaches by Stockholder or
Company of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any court of the United States located in the State of
Colorado or in Colorado state court, this being in addition to any other remedy
to which Parent and/or Merger Sub may be entitled at law or in equity. In
addition, each of the parties hereto irrevocably and unconditionally (i)
consents to be subject to the personal jurisdiction of any federal court located
in the State of Colorado or any Colorado state court in the event any dispute
arises out of this Agreement or any of the transactions contemplated hereby,
(ii) agrees that such party will not attempt to deny or defeat the personal
jurisdiction of such courts by motion or other request for leave from any such
court, (iii) agrees that such party shall not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
a federal court sitting in the State of Colorado or a Colorado state court and
(iv) that service of process may also be made on such party by prepaid certified
mail with a proof of mailing receipt validated by the United States Postal
Service constituting evidence of valid service, and that service made pursuant
to this clause (iv) shall have the same legal force and effect as if served upon
such party personally within the State of Colorado.
IN WITNESS WHEREOF, Parent has caused this Agreement to be
executed by its duly authorized officer and Stockholder has executed this
Agreement as of the date and year first above written.
PARENT
eSOFT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
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Stockholder
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Address:
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Stockholder
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Address:
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Stockholder
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Address:
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EXHIBIT A
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SHARES SUBJECT TO VOTING AGREEMENT
COMPANY COMMON STOCK OWNED
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Stockholder Name Number of Shares Owned
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▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ 344,635
▇▇▇▇▇▇▇▇▇▇▇▇▇ as Joint Tenants
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▇▇▇▇▇ ▇▇▇▇▇ 226,707
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RIGHTS TO ACQUIRE COMPANY COMMON STOCK
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Stockholder Name Nature of Right Number of Shares
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▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Stock Options 294,500
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Stock Options 2,000
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▇▇▇▇▇ ▇▇▇▇▇ Stock Options 275,000
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