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EXHIBIT 2.2
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of o,
1999 between eSoft, Inc., a Delaware corporation ("Parent") and the
stockholders executing the signature pages hereof (each, a "Stockholder" and
together, the "Stockholders"), each of whom is a Stockholder of Apexx
Technology, Inc., an Idaho corporation (the "Company").
RECITALS
A. The Boards of Directors of Parent and the Company each
have determined that a business combination between Parent and the Company is
fair and in the best interests of their respective companies and Stockholders,
and accordingly have agreed to effect the merger (the "Merger") provided for in
that certain Amended and Restated Agreement and Plan of Merger (the "Merger
Agreement") between Parent, the Company, and eSoft Acquisition Corporation, a
Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"),
dated as of January 25, 1999 upon the terms and subject to the conditions set
forth in the Merger Agreement.
B. Each Stockholder will receive in the Merger shares of
common stock, $.01 par value, of Parent ("Parent Common Stock"), which Parent
Common Stock will be registered with the Securities and Exchange Commission.
C. In consideration of Parent's agreement to enter into the
Merger Agreement and consummate the transactions contemplated thereby, the
Stockholders have agreed to indemnify Parent and Merger Sub with respect to
certain matters under the Merger Agreement, all as set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants, and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
INDEMNIFICATION
1.1 SURVIVAL OF REPRESENTATIONS, ETC. Each Stockholder agrees
that, notwithstanding any examination made by or on behalf of Parent or Merger
Sub, the knowledge of Parent or Merger Sub or any of the respective officers,
directors, Stockholders, employees, or agents of Parent or Merger Sub, or the
acceptance by any party of any certificate or opinion, in each case with
respect to the Company, the representations, warranties, covenants, and
agreements of the Company set forth the Merger Agreement, or in any writing
delivered by the Company in connection with the Merger Agreement, shall survive
the consummation of the transactions contemplated thereby and shall expire on
the date that is twelve months from the Closing Date (the "Survival Date").
1.2 INDEMNITY. Subject to the terms and conditions of this
Article, each Stockholder shall indemnify and hold Parent harmless from and
against all demands, claims, causes of action, assessments, including any
Federal or state tax audits, losses, damages, liabilities, costs, and expenses,
including, without limitation, reasonable attorneys' fees and any expenses
incident to the investigation or enforcement of this Article I (collectively,
"Losses"), that Parent may suffer, sustain or become subject to by reason of or
arising out of (i) any breach of any covenant or agreement of the Company
contained in the Merger Agreement or (ii) any inaccuracy in any representation
or warranty of the Company contained in the Merger Agreement, the Company
Disclosure Schedule, or any other agreement or instrument executed by the
Company pursuant to the Merger Agreement. All of the foregoing are hereinafter
collectively referred to as "Claims."
1.3 LIMITATIONS ON INDEMNIFICATION. The indemnification
provided for in Section 1.2 hereof shall be subject to the following
limitations and conditions:
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(1) No Stockholder shall be liable for indemnification of
Parent under Section 1.2 of this Agreement for any Losses incurred by Parent
unless the aggregate amount of all Losses incurred by Parent and otherwise
subject to indemnification pursuant to said Section 1.2 exceeds $200,000 and
thereafter only for the amount of Losses
in excess of $200,000.
(2) No Stockholder shall be liable for any Losses resulting
from any inaccuracy in any representation or warranty of the Company contained
in the Merger Agreement unless written notice of entitlement to make a Claim
(whether or not any monetary Losses have actually been suffered) with respect
to such Losses is given by Parent to Stockholder on or prior to the expiration
of the survival of the particular representation or warranty at issue, as set
forth in Section 1.1 above.
(3) Each Stockholder's aggregate liability for any Losses
shall not exceed such Shareholder's Pro Rata Share of the Deferred Merger
Consideration. Parent agrees that it shall seek to recover any Losses for which
Stockholder is liable pursuant to this Article I only from such Stockholder's
Pro Rata Share of the Deferred Merger Consideration.
(4) In the event that a Stockholder is required to make any
payment under this Agreement, Parent shall be entitled to recover the amount so
determined from the Deferred Merger Consideration in accordance with this
Agreement and the Escrow Agreement. Any Parent Common Stock so recovered by
Parent shall be valued at a price of $4.75 per share. If there should be a
dispute as to the amount or manner of determination of any indemnity obligation
owed under this Agreement, Parent shall be entitled to recover such portion, if
any, of the obligation as shall not be subject to dispute. The difference, if
any, between the amount of the obligation ultimately determined as properly
payable under this Agreement and the portion, if any, theretofore paid shall
bear interest at a rate of eight percent (8%). Upon the payment in full of any
claim, either by setoff or otherwise, Stockholder shall be subrogated to the
rights of Parent against any person, firm, corporation, or other entity with
respect to the subject matter of such claim.
(5) Notwithstanding anything to the contrary in the
foregoing, each Stockholder shall be severally liable for any Losses as a
result of any breach of the representation and warranty set forth in Section
5.25 of the Merger Agreement, and the limitations set forth in Section 1.5(a)
through 1.4(d) above shall not apply with respect to any Claim regarding such
Losses.
1.4 CONDITIONS OF INDEMNIFICATION OF THIRD PARTY CLAIMS. The
obligations and liabilities of the parties hereunder with respect to Claims
resulting from the assertion of liability by third parties ("Third Party
Claims") shall be subject to the following terms and conditions:
(1) Each Stockholder hereby irrevocably makes, constitutes,
and appoints Xxx Xxxxxxxxxxxxx as its agent (the "Representative") and
authorizes and empowers him to fulfill the role of Representative hereunder. In
the event of the resignation of the Representative, the resigning
Representative shall appoint a successor either from among the Stockholders or
who shall otherwise be acceptable to Parent and who shall agree in writing to
accept such appointment, and the resigning Representative's resignation shall
not be effective until such a successor shall exist. If the Representative
should die or become incapacitated, his successor shall be appointed within 30
days of his death or incapacity by a majority of the Stockholders, and such
successor either shall be a Stockholder or shall otherwise be acceptable to
Parent. The choice of a successor Representative appointed in any manner
permitted above shall be final and binding upon all of the Stockholders. The
decisions and actions of any successor Representative shall be, for all
purposes, those of the Representative as if originally named herein.
(2) Each Stockholder hereby irrevocably makes, constitutes,
and appoints the Representative as such person's true and lawful attorney in
fact and agent, for such person and in such person's name, (i) to receive all
notices and communications directed to such Stockholder under this Agreement
and to take any action (or to determine to take no action) with respect thereto
as he may deem appropriate as effectively as such Stockholder could act for
himself or herself, including without limitation, the settlement or compromise
of any dispute or controversy, and (ii) to execute and deliver all instruments
and documents of every kind incident to the foregoing to all intents and
purposes and with the same effect as such Stockholder could do personally, and
each such Stockholder hereby ratifies and confirms as his or her own act, all
that the Representative shall do or cause to be done pursuant to the provisions
hereof. All notices and all other communications directed to Stockholders under
this Agreement shall be given to the Representative.
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(3) Each Stockholder irrevocably consents to the service of
any process, pleading, notices, or other papers by the mailing of copies
thereof by registered, certified, or first class mail, postage prepaid, to the
Representative at such person's address set forth herein.
(4) The death or incapacity of any Stockholder shall not
terminate the authority and agency of the Representative.
(5) Each Stockholder hereby agrees to indemnify the
Representative and to hold him harmless against any loss, liability, or expense
incurred without negligent conduct or bad faith on the part of the
Representative and arising out of or in connection with his duties as
Representative, including the costs and expenses incurred by such
Representative in defending against any claim of liability in connection
herewith.
(6) In the event that any claim or demand for which the
Stockholders would be liable to Parent or Merger Sub hereunder is asserted
against or sought to be collected by a third party, Parent shall promptly
notify the Representative of such claim or demand, specifying the nature of
such claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the final
amount of such claim or demand) (the "Claim Notice"). The Representative shall
promptly provide notice of each Claim Notice to each Stockholder owning more
than 5% of the Company Common Stock at the Effective Time and shall consult
with such holders concerning whether or not to dispute liability to Parent
hereunder with respect to such claim or demand. The Representative shall have
10 days from its receipt of the Claim Notice (the "Notice Period") to notify
Parent (i) whether or not the Stockholders dispute their liability to Parent
hereunder with respect to such claim or demand, and (ii) if they do not dispute
such liability, whether or not they desire, at their sole cost and expense, to
defend Parent against such claim or demand; provided, however, Parent is hereby
authorized prior to and during the Notice Period to file any motion, answer, or
other pleading that it shall deem necessary or appropriate to protect its
interests; provided further, however, that Parent shall use its reasonable
efforts to provide the Representative with notice of any such filing and an
opportunity to comment thereon. In the event that the Representative notifies
Parent within the Notice Period that the Stockholders do not dispute such
liability and desire to defend against such claim or demand, then except as
hereinafter provided, the Representative shall have the right to defend by
appropriate proceedings, which proceedings shall be promptly settled or
prosecuted to a final conclusion in such a manner as to avoid any risk of
Parent becoming subject to liability for any other matter. If Parent desires to
participate in, but not control, any such defense or settlement it may do so at
its sole cost and expense. If, in the reasonable opinion of Parent, any such
claim or demand involves an issue or matter that could have an adverse effect
on the business, operations, assets, properties, or prospects of the Company or
Parent or an affiliate of Parent, Parent shall have the right to control the
defense or settlement of any such claim or demand, and its reasonable costs and
expenses thereof shall be included as part of the indemnification obligations
of the Stockholders hereunder. If the Representative disputes the Stockholders'
liability with respect to such claim or demand or elects not to defend against
such claim or demand, whether by not giving timely notice as provided above or
otherwise, then the amount of any such claim or demand, or, if the same be
contested by the Representative or by Parent (but Parent shall not have any
obligation to contest any such claim or demand), then that portion thereof as
to which such defense is unsuccessful shall be conclusively deemed to be a
liability of the Stockholders hereunder (subject, if the Representative has
timely disputed liability, to a determination that the disputed liability is
covered by these indemnification provisions).
(7) In the event that Parent should have a claim against the
Stockholders hereunder that does not involve a claim or demand being asserted
against or sought to be collected from it by a third party, Parent shall
promptly send a Claim Notice with respect to such claim to the Representative.
If the Representative does not notify Parent within the Notice Period that he
disputes such claim, then the amount of such claim shall be conclusively deemed
a liability of the Stockholders hereunder.
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(8) Nothing herein shall be deemed to prevent Parent from
making a claim hereunder for potential or contingent claims or demands provided
the Claim Notice sets forth the specific basis for any such potential or
contingent claim or demand and the estimated amount thereof to the extent then
feasible and Parent has reasonable grounds to believe that such a claim or
demand will be made.
1.5 ARBITRATION. Any dispute between the Representative and
Parent with respect to Parent's right to seek indemnification with respect to
any Claim pursuant to the provisions of this Article I shall be resolved by
binding arbitration in accordance with the following provisions of this Section
1.5; provided, however, that either the Representative or Parent may seek
injunctive relief or other equitable relief to preserve the status quo pending
arbitration.
(1) The Representative or Parent may submit any dispute that
is subject to arbitration under this Section 1.5 by giving written notice to
the other parties to such dispute. Within ten business days after receipt of
such notice by such other parties, the Representative shall appoint one
arbitrator and Parent shall appoint one arbitrator and within ten Business Days
thereafter the two arbitrators so appointed shall select a third arbitrator. If
the Representative or Parent shall fail to make such appointment within such
ten-day period, the other party may request the American Arbitration
Association to appoint the second arbitrator. The American Arbitration
Association may thereupon appoint the second arbitrator. If the two appointed
arbitrators shall fail to select a third arbitrator within said ten-day period,
the Representative and Parent shall mutually select the third arbitrator. If
such parties are unable to agree upon such selection, then such party may, upon
at least five Business Days' prior written notice to the other party, request
the American Arbitration Association to appoint the third arbitrator. The
American Arbitration Association may thereupon appoint the third arbitrator.
All arbitrators shall be experienced in corporate and financial matters and
shall be impartial and unrelated, directly or indirectly, so far as employment
of services is concerned to any of the parties or any of their respective
Affiliates. The arbitration shall be conducted in Denver, Colorado in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, as then in effect, except as otherwise provided in this Section
1.5.
(2) The three arbitrators shall investigate the facts and
shall hold hearings at which the parties may conduct limited discovery, present
evidence and arguments, be represented by counsel, and conduct cross
examination. The three arbitrators shall render a written decision on the
matter presented to them by majority vote as soon as practicable after the
appointment of the third arbitrator and in any event not more than 45 days
after such appointment. The decision of the arbitrators, which may include
equitable relief, shall be final and binding on the parties hereto, and
judgment upon the decision may be entered in any court having jurisdiction
thereof. If the three arbitrators shall fail to render a decision within said
45-day period, either party may institute such action or proceeding in such
court as shall be appropriate in the circumstances and upon the institution of
such action, the arbitration proceeding shall be terminated and shall be of no
further force and effect. The prevailing party shall be awarded reasonable
attorneys' fees, expert and nonexpert witness costs and expenses, and other
costs and expenses incurred in connection with the arbitration, and the fees
and costs of the arbitrators shall be borne by the nonprevailing party unless,
in either case, the arbitrators for good cause determine otherwise. In
resolving any dispute, the arbitrators shall apply the provisions of this
Agreement, without varying therefrom in any respect. The arbitrators shall not
have the power to add to, modify, or change any of the provisions of this
Agreement.
ARTICLE 2
RESTRICTIONS ON TRADING OF PARENT COMMON STOCK; TRANSFER TO PACIFIC CREST
2.1 POOLING. Each Stockholder listed on Exhibit A hereto
(collectively, the "Control Stockholders") acknowledges that the Merger is
intended to be treated for financial accounting purposes as a "pooling of
interests" in accordance with generally accepted accounting principles. Each
Control Stockholder hereby represents, warrants, and agrees that such Control
Stockholder (i) will not make any sale, transfer, or other disposition of
Company Common Stock owned by such Control Stockholder (including any Company
Common Stock acquired
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upon the exercise of options to purchase Company Common Stock) during the
period from the date hereof and ending at the earlier of the Effective Time and
the termination of the Merger Agreement, and (ii) will not make any sale,
transfer, or other disposition of Parent Common Stock owned by such Stockholder
(including any Parent Common Stock acquired upon the exercise of options to
purchase Parent Common Stock) after the Effective Time until such time as
financial statements that include at least 30 days of combined operations of
the Company and Parent after the Merger shall have been publicly reported,
unless such Control Stockholder shall have delivered to Parent prior to any
such sale, transfer, or other disposition, a written opinion from independent
public accountants for Parent, in form and substance reasonably satisfactory to
Parent, to the effect that such sale, transfer, or other disposition will not
cause the Merger not to be treated as a "pooling of interests" for financial
accounting purposes in accordance with generally accepted accounting principles
and the rules, regulations, and interpretations of the Commission.
2.2 TRANSFER OF CERTAIN SHARES TO PACIFIC CREST SECURITIES.
Each Stockholder hereby authorizes Xxx Xxxxxxxxxxxxx to execute and deliver to
the Exchange Agent instructions directing the Exchange Agent to transfer on
such Stockholder's behalf an aggregate of 3.016% of the Initial Merger
Consideration otherwise payable to such Stockholder to Pacific Crest
Securities.
ARTICLE 3
GENERAL PROVISIONS
3.1 "PRO RATA SHARE; OTHER CAPITALIZED TERMS." As used in
this Agreement, the term "Pro Rata Share" of any amount shall mean the fraction
that is determined by dividing the number of shares of Company Common Stock
held by a Stockholder by the total number of shares of Company Common Stock
held by all Stockholders who are parties to this Agreement. Other capitalized
terms used, but not defined herein, shall have the meanings ascribed to them in
the Merger Agreement.
3.2 NOTICES. Any notice required to be given hereunder shall
be sufficient if in writing, and sent by facsimile transmission and by same day
or overnight courier service (with proof of service), hand delivery or
certified or registered mail (return receipt requested and first-class postage
prepaid), addressed as follows:
If to Parent or Merger Sub: If to the Stockholders:
eSoft, Inc. Xxx Xxxxxxxxxxxxx
0000-X Xxxxxxxx Xxxxx Apexx Technology, Inc.
Xxxxxxx, XX 00000 000 Xxxxx 00xx Xxxxxx
Attn: Xxxxxxx Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
With copies to: With copies to:
Xxxxx, Xxxxxx & Xxxxxx LLP Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP
000 00xx Xxxxxx, Xxxxx 0000 000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq. Attn: Xxxx X. Xxxx
Telephone: 000-000-0000 Telephone: (000) 000-0000
Facsimile: 000-000-0000 Facsimile: (000) 000-0000
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered, or delivered by courier or on the third
day after the mailing thereof.
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3.3 ASSIGNMENT, BINDING EFFECT. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties.
3.4 ENTIRE AGREEMENT. This Agreement and any schedules or
agreements delivered in connection with this Agreement constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings among the parties with
respect thereto. No information previously provided, addition to or
modification of any provision of this Agreement shall be binding upon any party
hereto unless made in writing and signed by all parties hereto.
3.5 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
3.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to its rules of conflict of laws.
3.7 COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a
number of copies hereof each signed by less than all, but together signed by
all of the parties hereto. Executed counterparts transmitted by fax shall be
effective as originals.
3.8 HEADINGS. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
3.9 INTERPRETATION. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, and words denoting any gender shall include all genders
and words denoting natural persons shall include corporations and partnerships
and vice versa.
3.10 WAIVERS. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any
other provision hereunder.
3.11 SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction
unless the same is material to the terms of this Agreement, in the judgment of
either party to this Agreement, in which case the parties shall negotiate in
good faith to revise the same so as to be valid or enforceable. If any
provision of this Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only so broad as is enforceable.
3.12 ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
3.13 CONSENT. Whenever the consent or approval of a party is
required by the terms of this Agreement, unless otherwise provided, the same
shall not be unreasonably withheld or delayed
IN WITNESS WHEREOF, the parties have executed this Agreement
and caused the same to be duly delivered on their behalf on the day and year
first written above.
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"PARENT"
eSOFT, INC.
By:
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Name: Xxxxxxx Xxxx
Title: President
STOCKHOLDER SIGNATURE PAGES FOLLOW
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Number
STOCKHOLDER of Stockholder
NAME Address Shares Signature
Xxxxx Xxxxx
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Xxxxx Learned Xxxxxx
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Camelot Investments, Inc.
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Xxxxx Xxxxx
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Xxxxxxxxx X. Xxxxx
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Xxxxx Xxxxx
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Xxxxxxx Luggage Profit Sharing Plan
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Xxxxxxx X. Xxxxx
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Xxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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Xxxxxx Xx Xxxxxx
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Xxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
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Xxxx X. Xxxxx
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Xxxxxx Xxxxxx
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Xxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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Xxxxxx X. Xxxx
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Xxxx Xxxxxxx Xxxx
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Xxxxxxx Xxxxx
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Xxxxxxx X. Xxxxxx
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Xxxx Just
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Xxx Just
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Xxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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Xxxxx Xxxxxx
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Number
STOCKHOLDER of Stockholder
NAME Address Shares Signature
Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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Xxxxx X. Learned
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Xxxxx X. Xxxxxxxxxxxxx, Xx.
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Xxxxxxxxx Xxxxxxxxxxxxx
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Xxx Xxxxxxxxxxxxx
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Xxxx Xxxxxxxxxxxxx
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Ty Xxxxx Xxxxxxxxxxxxx
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Xxxxxx Xxxxx
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Xxxxxxxx X. Xxxxx
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Xxxxx X. XxXxxxxx
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Xxxx Investments LP
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Xxxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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Xxxxx Xxxxx
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Xxxxxxx X. Xxxxxxxx
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Xxxxx Xxxxxxx
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Xxxxx X. Xxxxxx
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Xxxx X. Xxxxxxx
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Xxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
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Oracle Investments, LP
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Ward Parkingson
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Xxxxxxx Xxx Xxxxxx
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Number
STOCKHOLDER of Stockholder
NAME Address Shares Signature
Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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Xxxxx X. Steukle
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Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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Xxxxxx Xxxxxx
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Xxxxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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Xxxx Xxxxx
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H. Xxxxx Xxxxx
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Xxxxxx X. Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
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EXHIBIT A
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CONTROL STOCKHOLDERS
Xxxxx Xxxxx
Xxxx Xxxxxxxxxxxxx
Xxx Xxxxxxxxxxxxx
Any other person who has been a member of the Board of Directors of the Company
at any time during the thirty (30) days prior to the Closing.
