EXHIBIT 10.13
Each of the following shareholders of Aris Corporation (the
"Corporation") has executed an Amended and Restated Voting Agreement with the
Corporation in a form substantially identical to the form of agreement
between the Corporation and Shareholder attached hereto: ▇▇▇▇ ▇. ▇▇▇▇; AHS
LLC; ▇▇▇▇ ▇. ▇▇▇▇; and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇. The material details in which their
agreements differ from the form agreement are set forth below.
▇▇▇▇ ▇. SONG
The number of Subject Shares is 2,621,286.
SECTION 3 in Mr. ▇▇▇▇'s agreement includes the following
additional language at the end of the paragraph:
"; provided, however, that Shareholder may Transfer up to
100,000 of the Subject Shares in ordinary broker
transactions."
SECTION 7 in Mr. ▇▇▇▇'s agreement includes the following
additional language at the end of the paragraph:
"; provided, however, that Shareholder may Transfer up to
100,000 of the Subject Shares in ordinary broker transactions
in accordance with Section 3 hereof."
AHS LLC
The number of Subject Shares is 650,000.
▇▇▇▇ ▇. ▇▇▇▇
The number of Subject Shares is 427,000.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
The number of Subject Shares is 248,221.
EXHIBIT 10.13
FORM OF
AMENDED AND RESTATED
VOTING AGREEMENT
VOTING AGREEMENT, effective as of June 14, 2001 (this "Voting
Agreement") by and among CIBER, Inc., a Delaware corporation ("CIBER") and the
undersigned shareholder (the "Shareholder") of ARIS CORPORATION, a Washington
corporation ("ARIS").
RECITALS
WHEREAS, CIBER and ARIS are contemporaneously entering into an
Amended and Restated Agreement and Plan of Merger dated as of even date herewith
(the "Merger Agreement") providing for the merger of ARIS with and into CIBER
(capitalized terms used but not defined herein having the respective meanings
given to them in the Merger Agreement);
WHEREAS, the Shareholder is the record and beneficial owner of
[ ] shares (the "Subject Shares") of ARIS Common Stock, no
par value per share;
WHEREAS, as a condition to CIBER's entering into the Merger
Agreement, CIBER has required that the Shareholder make certain agreements with
respect to the Subject Shares upon the terms and subject to the conditions of
this Voting Agreement; and
WHEREAS, in order to induce CIBER to enter into the Merger Agreement the
Shareholder is willing to enter into this Voting Agreement with respect to the
Subject Shares;
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 agree as follows:
1. PROXY WITH RESPECT TO THE SUBJECT SHARES. During the Term (as
hereinafter defined), Shareholder hereby irrevocably appoints CIBER, its
officers, agents and nominees, with full power of substitution, as proxy for and
attorney in fact of Shareholder to act with respect to and vote the Subject
Shares owned by the Shareholder for and in the name, place and stead of
Shareholder, at any annual, special or other meeting of the holders of shares of
ARIS and at any adjournment or postponement thereof or pursuant to any written
consent in lieu of a meeting, to the fullest extent that the Subject Shares are
entitled to be voted on any matter that may come before such meeting, or which
may be subject to such written consent, (i) in favor of the Merger, the Merger
Agreement and the transactions contemplated thereby (ii) against any
Acquisition Proposal (iii) against any action or agreement the purpose or effect
of which would be to impede, interfere with or attempt to discourage the Merger,
and (iv) against any action the taking of which would constitute a breach by
ARIS of any of its representations, warranties, covenants or agreements
contained in the Merger Agreement. During the Term, as defined below in Section
8, this proxy shall revoke any other proxy granted by Shareholder at any time
with respect to the Subject Shares and during the Term, no subsequent proxies
will be given with respect thereto by Shareholder.
2. AGREEMENT TO SUPPORT MERGER; WAIVER OF DISSENTERS' RIGHTS. In the
event that the Proxy granted in Section 1 hereof is ineffective, Shareholder
agrees, subject to the terms of Section 4 of this Voting Agreement, to vote the
Subject Shares in favor of the Merger pursuant to the terms of the Merger and
the Merger Agreement, and to waive any and all dissenters' rights with respect
to the transactions contemplated by the Merger Agreement.
3. AGREEMENT NOT TO TRANSFER. The Shareholder agrees that he will
not during the Term of this Voting Agreement sell, transfer, assign or otherwise
dispose of ("Transfer") or pledge or otherwise encumber, or enter into any
contract, option or other arrangement with respect to the Transfer, pledge or
encumbrance of, any of the Subject Shares, or grant or purport to grant to any
person any proxy or voting right or any right to acquire any of the Subject
Shares, or enter into any voting agreement with any person with respect to the
Subject Shares, or deposit any of the Subject Shares in a voting trust.
4. ADDITIONAL COVENANTS AND AGREEMENTS OF SHAREHOLDER. The
Shareholder hereby covenants and agrees with CIBER that, until this Voting
Agreement terminates, (i) Shareholder will not take any action that would
jeopardize the Merger as a reorganization within the meaning of Section
368(a)(1)(A) of the Code; (ii) Shareholder will not at any time, directly or
indirectly, take any action to solicit, initiate or encourage any Acquisition
Proposal; (iii) subject to Section 14 of this Voting Agreement, with a view
towards pursuing an Acquisition Proposal with any person (A) engage in
negotiations with, or (B) disclose any nonpublic information relating to ARIS,
or (C) afford access to the properties, books or records of ARIS to, any such
person; (iv) Shareholder will execute the ARIS Affiliate Letter promptly upon
request therefor, which letter shall be substantially in form attached hereto as
Annex A hereto; and (v) Shareholder will deliver to CIBER a written
representation confirming that, as of immediately prior to the Effective Time,
the accuracy of the representations and warranties contained in this Voting
Agreement.
5. RELEASE OF SHAREHOLDER. Shareholder hereby releases and forever
discharges, for himself and his respective heirs, executors, administrators,
successors and assigns, ARIS, its present and former affiliates, officers,
directors, stockholders, employees and agents, and their respective heirs,
executors, administrators, successor and assigns (collectively, the "Releasees")
of and from and all actions, causes of actions, suits, liabilities, claims and
demands, in law or in equity, which the Shareholder ever had, now has or may in
the future have, whether known or unknown, against any of the Releasees. The
foregoing release does not apply to any obligation of ARIS to Shareholder for
any (i) compensation or any other employee benefit accrued for in ARIS's
financial statements; (ii) obligation arising out of related to the Merger
Agreement or the transactions contemplated thereby; or (iii) obligation arising
from
-2-
Shareholder's service as an officer or director of ARIS for which
indemnification and insurance is provided pursuant to Section 5.8 of the Merger
Agreement.
6. CONDITION TO SHAREHOLDER'S OBLIGATIONS. The obligations of the
parties to perform under this Voting 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 Voting Agreement or (ii) the
Merger. Each of Shareholder and CIBER agree not to seek any such injunction or
order. CIBER agrees that it will oppose and will seek the immediate lifting of
any such injunction or order and each Shareholder agrees to cooperate with CIBER
in such efforts.
7. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Shareholder
represents and warrants to CIBER as follows:
7.1 OWNERSHIP OF SUBJECT SHARES. On the date hereof, the Subject
Shares are all of the shares of ARIS Common Stock currently owned by such
Shareholder, beneficially and of record. Shareholder does not have any
rights to acquire any additional shares of ARIS Common Stock. Shareholder
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
Subject 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 Voting Agreement and other than
restrictions on transfer under applicable Federal and State securities
laws).
7.2 POWER; BINDING AGREEMENT. Shareholder has the full legal right,
power and authority to enter into and perform all of Shareholder's
obligations under this Voting Agreement. This Voting Agreement has been
duly executed and delivered by the Shareholder and is a valid and legally
binding obligation of the Shareholder, enforceable against the Shareholder
in accordance with its terms.
7.3 NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Shareholder will not constitute a violation of, conflict
with or result in a default under (i) any contract, understanding or
arrangement to which the Shareholder is a party or by which the
Shareholder is bound or require the consent of any other person or any
party pursuant thereto, or (ii) any judgment, decree or order applicable
to the Shareholder.
8. TERM. The duration and term (the "Term") of this Voting Agreement
will be the earlier to occur of (a) such date and time as the Merger Agreement
shall have been terminated pursuant to Article VII thereof, (b) such date and
time as the Merger shall have become effective in accordance with the terms and
provisions of the Merger Agreement, or (c) such date and time as CIBER and
Shareholder mutually consent in writing to terminate this Voting Agreement.
After the Term, this Voting Agreement and the proxy delivered in connection
herewith shall terminate and be null and void.
-3-
9. 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
facsimile, telex or telegram or by certified mail, postage prepaid, or by an
overnight courier service, addressed as follows:
If to CIBER:
CIBER, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Shareholder:
c/o ARIS Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Shareholder
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
ARIS Counsel
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Law Group, P.L.L.C.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
10. ENTIRE AGREEMENT: AMENDMENT. This Voting Agreement, together
with the documents expressly referred to herein, constitutes 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 Voting Agreement
-4-
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.
11. ASSIGNS. This Voting Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, but neither this Voting 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.
12. GOVERNING LAW. This Voting Agreement, and all matters
relating hereto, shall be governed by, and constituted in accordance with the
laws of Delaware without giving effect to the principles of conflicts of laws
thereof.
13. CERTAIN EVENTS. Shareholder agrees that this Voting Agreement
and the obligations hereunder shall attach to Shareholder's Subject Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of Shareholder's Subject Share shall pass, whether by operation of law
or otherwise, including without limitation, such Shareholder's heirs, guardians,
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of ARIS affecting the Subject Shares, or the acquisition of additional
shares of ARIS Common Stock or other voting securities of ARIS by Shareholder,
the number of Subject Shares listed in the recitals shall be adjusted
appropriately and this Voting Agreement and the obligations hereunder shall
attach to any additional shares of ARIS Common Stock or other voting securities
of ARIS issued to or acquired by Shareholder.
14. SHAREHOLDER CAPACITY. No person executing this Voting Agreement
who is or becomes during the term hereof a director or executive officer of ARIS
makes any agreement or understanding herein in his or her capacity as a director
or executive officer. Each Shareholder is executing this Voting Agreement solely
in his or her capacity as the record and beneficial owner of Shareholder's
Subject 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 ARIS; PROVIDED, HOWEVER, that no such duty shall excuse the
undersigned from his or her obligation as a Shareholder of ARIS to vote the
Subject Shares, to the extent that they may be so voted, as herein provided and
to otherwise comply with the terms and conditions of this Voting Agreement.
15. ENFORCEMENT. Shareholder agrees that irreparable damage would
occur and that CIBER would not have any adequate remedy at law in the event that
any of the provisions of this Voting Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed
that CIBER shall be entitled to an injunction or injunctions to prevent breaches
or threatened breaches by Shareholder of this Voting Agreement and to enforce
specifically the terms and provisions of this Voting Agreement in any court of
the United States located in the State of Colorado or in any Colorado state
court, this being in addition to any other remedy to which CIBER may be entitled
at law or in equity. In addition, each of the parties hereto irrevocably and
unconditionally (i) consents to be subject
-5-
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
Voting 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 Voting
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.
16. SEVERABILITY. Any term, provision, covenant or restriction
contained in this Voting Agreement held by a court or other governmental
authority of competent jurisdiction to be invalid, void or unenforceable shall
be ineffective to the extent of such invalidity, voidness or unenforceability,
but neither the remaining terms, provisions, covenants, or restrictions
contained in this Voting Agreement nor the validity or enforceability thereof in
any other jurisdiction shall be affected or impaired thereby. Any term,
provision, covenant or restriction contained in this Voting Agreement that is so
found to be so broad as to be unenforceable shall be interpreted to be as broad
as is enforceable.
IN WITNESS WHEREOF, CIBER has caused this Voting Agreement to be
executed by its duly authorized officers and Shareholder has executed this
Voting Agreement as of the date and year first above written.
CIBER, Inc.
--------------------------------------------
By:_________________________________________
Title:______________________________________
--------------------------------------------
Shareholder
-6-