EXHIBIT 99.3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 17, 1999 (this "Agreement"), between
[SHAREHOLDER] (the "Shareholder") and ARIS Corporation, a Washington corporation
("Acquiror").
WHEREAS, xxxx.xxx International Corp., a Washington corporation ("Target"),
Acquiror and ARIS Interactive, Inc., a Washington corporation and a wholly owned
subsidiary of Acquiror ("Acquiror Sub"), are contemporaneously entering into an
Agreement and Plan of Merger, dated as of this date (the "Merger Agreement"),
which provides, among other things, for the merger of Target with and into
Acquiror Sub (the "Merger");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Acquiror and Acquiror Sub have requested that the Shareholder make
certain agreements with respect to certain shares of Common Stock, par value
$.01 per share ("Shares"), of Target beneficially owned by him, upon the terms
and subject to the conditions of this Agreement; and
WHEREAS, in order to induce Acquiror and Acquiror Sub to enter into the
Merger Agreement, the Shareholder is willing to make certain agreements with
respect to the Subject Shares (as defined);
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth in this Agreement, the parties agree as follows:
1. Voting Agreements; Proxy.
(a) For so long as this Agreement is in effect, in any meeting of
shareholders of Target, and in any action by consent of the shareholders of
Target, the Shareholder shall vote, or, if applicable, give consents with
respect to, all of the Subject Shares that are held by the Shareholder on the
record date applicable to the meeting or consent (i) in favor of the Merger
Agreement and the Merger contemplated by the Merger Agreement, as the Merger
Agreement may be modified or amended from time to time in a manner not adverse
to the Shareholder and (ii) against any competing Acquisition Proposal (as
defined in the Merger Agreement) or other proposal inconsistent with the Merger
Agreement or which may delay the likelihood of the completion of the Merger. The
Shareholder shall use his best efforts to cast that Shareholder's vote or give
that Shareholder's consent in accordance with the procedures communicated to
that Shareholder by Target relating thereto so that the vote or consent shall be
duly counted for purposes of determining that a quorum is present and for
purposes of recording the results of that vote or consent.
(b) Upon the reasonable written request of Acquiror, in furtherance of the
transactions contemplated in this Agreement and by the Merger Agreement and in
order to secure the performance of the Shareholder's duties under Section 1(a)
of this
Agreement, the Shareholder shall promptly execute, in accordance with the
provisions of RCW 23B.07.220, and deliver to Acquiror an irrevocable proxy,
substantially in the form attached as Exhibit A, and irrevocably appoint
Acquiror or its designees, with full power of substitution, its attorney and
proxy to vote or, if applicable, to give consent with respect to, all Shares
constituting Subject Shares at the time of the relevant record date with regard
to any of the matters referred to in paragraph (a) above at any meeting of the
shareholders of Target, or in connection with any action by written consent by
the shareholders of Target. The Shareholder acknowledges and agrees that this
proxy, if and when given, shall be coupled with an interest, shall constitute,
among other things, an inducement for Acquiror to enter into the Merger
Agreement, shall be irrevocable and shall not be terminated by operation of law
or otherwise upon the occurrence of any event and that no subsequent proxies
with respect to such Subject Shares shall be given (and if given shall not be
effective); provided, however, that any such proxy shall terminate automatically
and without further action on behalf of the Shareholder upon the termination of
this Agreement.
2. Covenants. For so long as this Agreement is in effect, the Shareholder agrees
not to (i) sell, transfer, pledge, assign, hypothecate, encumber, tender or
otherwise dispose of, or enter into any contract with respect to the sale,
transfer, pledge, assignment, hypothecation, encumbrance, tender or other
disposition of (each such disposition or contract, a "Transfer"), any Subject
Shares or Shares the Shareholder then has the right to acquire, or will have the
right to acquire within 60 days, pursuant to options to purchase Shares granted
to the Shareholder by Target; (ii) grant any proxies with respect to any shares
that then constitute Subject Shares, deposit any of the Subject Shares into a
voting trust or enter into a voting or option agreement with respect to any of
the Subject Shares; (iii) subject to Section 7, directly or indirectly, solicit,
initiate, encourage or otherwise facilitate any inquiries or the making of any
proposal or offer with respect to an Acquisition Proposal or engage in any
negotiation concerning, or provide any confidential information or data to, or
have any discussions with any person relating to, an Acquisition Proposal; or
(iv) take any action which would make any representation or warranty of the
Shareholder in this Agreement untrue or incorrect or prevent, burden or
materially delay the consummation of the transactions contemplated by this
Agreement; provided, however, that nothing in the foregoing provisions of this
Section 3 shall prohibit the Shareholder from effecting (i) any Transfer of
Subject Shares pursuant to any bona fide charitable gift or by will or
applicable laws of descent and distribution, or for estate planning purposes or
(ii) the Transfer of up to _______ Subject Shares to Blue Note Partners, a
Washington general partnership, [Xxxxxx X. Fine's Voting Agreement to include
the following additional language][of up to 50,000 Subject Shares to Xxxxxxx X.
Xxxxxxx and of up to 50,000 Subject Shares to Tor Xxxxxx d/b/a IntLex,] in each
case if the transferee agrees in writing to be bound by the provisions of this
Agreement. As used in this Agreement, "person" shall have the meaning specified
in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
3. Representations and Warranties of the Shareholder. The Shareholder represents
and warrants to Acquiror that:
2
(a) Capacity; No Violations. The Shareholder has the legal capacity to
enter into this Agreement and to consummate the transactions contemplated by
this Agreement. This Agreement has been duly executed and delivered by the
Shareholder and constitutes a valid and binding agreement of the Shareholder
enforceable against the Shareholder in accordance with its terms except as such
enforceability may be limited by applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and general principles of equity
(whether considered in a proceeding in equity or at law). The execution,
delivery and performance by the Shareholder of this Agreement will not (i)
conflict with, require a consent, waiver or approval under, or result in a
breach or default under, any of the terms of any contract, commitment or other
obligation to which the Shareholder is a party or by which the Shareholder is
bound; (ii) violate any order, writ, injunction, decree or statute, or any law,
rule or regulation applicable to the Shareholder or the Subject Shares; or (iii)
result in the creation of, or impose any obligation on the Shareholder to
create, any Lien upon the Subject Shares that would prevent the Shareholder from
voting the Subject Shares. In this Agreement, "Lien" shall mean any lien,
pledge, security interest, claim, third party right or other encumbrance.
(b) Subject Shares. As of the date of this Agreement, the Shareholder is
the beneficial owner of and has the power to vote or direct the voting of the
Subject Shares free and clear of any Liens that would prevent the Shareholder
from voting such Subject Shares. As of the date of this Agreement, the Subject
Shares are the only shares of any class of capital stock of Target which the
Shareholder has the right, power or authority (sole or shared) to sell or vote,
and, other than options or warrants to purchase Shares held by the Shareholder
as of this date, the Shareholder does not have any right to acquire, nor is it
the beneficial owner of, any other shares of any class of capital stock of
Target or any securities convertible into or exchangeable or exercisable for any
shares of any class of capital stock of Target. The Shareholder is not a party
to any contracts (including proxies, voting trusts or voting agreements) that
would prevent the Shareholder from voting the Subject Shares.
4. Expenses. Each party to this Agreement shall pay its own expenses incurred in
connection with this Agreement.
5. Specific Performance. The Shareholder acknowledges and agrees that if he
fails to perform any of its obligations under this Agreement, immediate and
irreparable harm or injury would be caused to Acquiror for which money damages
would not be an adequate remedy. In that event, the Shareholder agrees that
Acquiror shall have the right, in addition to any other rights it may have, to
specific performance of this Agreement. Accordingly, if Acquiror should
institute an action or proceeding seeking specific enforcement of the provisions
of this Agreement, the Shareholder hereby waives the claim or defense that
Acquiror has an adequate remedy at law and hereby agrees not to assert in that
action or proceeding the claim or defense that a remedy at law exists. The
Shareholder further agrees to waive any requirements for the securing or posting
of any bond in connection with obtaining any equitable relief.
6. Shareholder Capacity. No person bound by this Agreement who is or becomes
during
3
the term hereof a director or officer of the Company makes any agreement or
understanding herein in his capacity as such director or officer. The
Shareholder signs solely in his capacity as the beneficial owner of [, or the
general partner of a partnership which is the beneficial owner of,] the
Shareholder's Subject Shares and nothing herein shall limit or affect any
actions taken by the Shareholder in his capacity as an officer or director of
Target to the extent specifically permitted by the Merger Agreement. Nothing in
this Agreement shall be deemed to constitute a transfer of the beneficial
ownership of the Subject Shares by the Shareholder.
7. Notices. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed to have been duly given or
made as of the date of receipt and shall be delivered personally or mailed by
registered or certified mail (postage prepaid, return receipt requested), sent
by overnight courier or sent by telecopy, to the applicable party at the
following addresses or telecopy numbers (or at any other address or telecopy
number for a party as shall be specified by like notice):
If to Acquiror:
ARIS Corporation
0000 000xx Xxx. X.X.
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx LLP
U.S. Bank Centre
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
If to the Shareholder:
[SHAREHOLDER ADDRESS]
With a copy to:
Xxxxxx Xxxxxx, Esq.
Xxxxxxxxxx & Xxxxxxxxxx, X.X.
70th Floor Columbia Center
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
8. Parties in Interest. This Agreement shall inure to the benefit of and be
binding upon
4
the parties and their respective successors and assigns; provided, however, that
any successor in interest or assignee shall agree to be bound by the provisions
of this Agreement. Nothing in this Agreement, express or implied, is intended to
confer upon any Person other than Acquiror, the Shareholder or their successors
or assigns, any rights or remedies under, or by reason, of this Agreement.
9. Entire Agreement; Amendments. This Agreement contains the entire agreement
between the Shareholder and Acquiror with respect to the subject matter of this
Agreement and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to these transactions. This
Agreement may not be changed, amended or modified orally, but may be changed
only by an agreement in writing signed by the party against whom any waiver,
change, amendment, modification or discharge may be sought.
10. Assignment. No party to this Agreement may assign any of its rights or
obligations under this Agreement without the prior written consent of the other
party to this Agreement, except that (a) Acquiror may assign its rights and
obligations under this Agreement to any of its direct or indirect wholly owned
subsidiaries (including Acquiror Sub), but no transfer shall relieve Acquiror of
its obligations under this Agreement if the transferee does not perform its
obligations, and (b) the Shareholder may transfer Subject Shares to the extent
permitted by Section 3 of this Agreement.
11. Headings. The section headings in this Agreement are for convenience only
and shall not affect the construction of this Agreement.
12. Counterparts. This Agreement may be executed in any number of counterparts,
each of which, when executed, shall be deemed to be an original and all of which
together shall constitute one and the same document.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington without giving effect to any
choice or conflict of law provision or rule (whether of the State of Washington
or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Washington.
14. Termination. This Agreement shall terminate automatically and without
further action on behalf of any party at the earlier of (i) the Effective Time
(as defined in the Merger Agreement) and (ii) the date the Merger Agreement is
terminated pursuant to its terms.
15. Subject Shares. The term "Subject Shares" shall mean the Shares set forth
opposite the Shareholder's name on Schedule A hereto, together with any Shares
of capital stock of Target acquired by the Shareholder after the date hereof
over which the Shareholder has the power to vote or power to direct the voting.
5
IN WITNESS WHEREOF, Acquiror and the Shareholder have caused this Agreement to
be duly executed and delivered on the day and year first above written.
ARIS CORPORATION
By: -------------------------------
Name:
Title:
Shareholder:
-----------------------------------
-----------------------------------
(Print Name)
6
SCHEDULE A
SHAREHOLDER SHARES OWNED
7
EXHIBIT A
IRREVOCABLE PROXY
In order to secure the performance of the duties of the undersigned pursuant to
the Voting Agreement, dated as of May __, 1999 (the "Voting Agreement") between
the undersigned and ARIS Corporation, a Washington corporation ("Acquiror"), a
copy of such agreement being attached hereto and incorporated by reference
herein, the undersigned hereby irrevocably appoints __________, ___________ and
____________, and each of them, the attorneys, agents and proxies, with full
power of substitution in each of them, for the undersigned and in the name,
place and stead of the undersigned, to vote or, if applicable, to give written
consent, in such manner as each such attorney, agent and proxy or his substitute
shall in his sole discretion deem proper to record such vote (or consent) in the
manner set forth in Section 1 of the Voting Agreement with respect to all shares
of Common Stock, par value $.01 per share (the "Shares"), of xxxx.xxx
International Corporation, a Washington corporation (the "Company"), which the
undersigned is or may be entitled to vote at any meeting of the Company held
after the date hereof, whether annual or special and whether or to an adjourned
meeting, or, if applicable, to give written consent with respect thereto. This
Proxy is coupled with an interest, shall be irrevocable and binding on any
successor in interest of the undersigned and shall not be terminated by
operation of law or otherwise upon the occurrence of any event (other than as
provided in Section 1 of the Voting Agreement), including, without limitation,
the death or incapacity of the undersigned. This Proxy shall operate to revoke
any prior proxy as to the Shares heretofore granted by the undersigned. This
Proxy shall terminate upon the termination of the Voting Agreement. This Proxy
has been executed in accordance with RCW 23B.07.220.
Dated: May ___, 1999
------------------------------------
[Name]
8
