EXHIBIT 4.3
VOTING AGREEMENT
This Voting Agreement is entered into as of August __, 1998, by and between
Clarus Corporation, a Delaware corporation ("SFI") and ______________, a
Washington resident ("Shareholder").
RECITALS
A. SFI and Elekom Corporation, a Washington corporation ("Elekom"), have
entered into an Agreement and Plan of Reorganization of even date herewith (the
"Merger Agreement"), which provides (subject to the conditions set forth
therein) for the merger of Elekom, a wholly-owned subsidiary of SFI ("Newco") in
a forward triangular merger (the "Merger"), with Newco to be the surviving
corporation of the Merger. Capitalized terms used but not otherwise defined in
this Voting Agreement have the meanings ascribed to such terms in the Merger
Agreement.
B. As of the date hereof, Shareholder owns in the aggregate (including
shares held both beneficially and of record and other shares held either
beneficially or of record) the number of shares of the Common Stock, the Series
A Preferred Stock or the Series B Preferred Stock of Elekom set forth below
Shareholder's name on the signature page hereof (all such shares, together with
any shares of the Common Stock, the Series A Preferred Stock, the Series B
Preferred Stock or other shares of capital stock of Elekom that may hereafter be
acquired by Shareholder, being referred to herein as the "Subject Shares").
C. As a condition to the willingness of SFI to enter into the Merger
Agreement, SFI has required that Shareholder agree, and in order to induce SFI
to enter into the Merger Agreement Shareholder has agreed to enter into this
Voting Agreement.
NOW, THEREFORE, for and in consideration of the foregoing and the mutual
terms and provisions of this Voting Agreement, the sufficiency of which is
hereby acknowledged, the parties to this Voting Agreement, intending to be
legally bound, agree as follows:
1. RESTRICTIONS ON TRANSFER
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1.1 No Disposition of or Encumbrances on Subject Shares.
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(a) Shareholder hereby covenants and agrees that prior to the
Expiration Date (as defined below), Shareholder will not, directly or
indirectly, (i) offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise dispose of or transfer (or announce any offer,
sale, offer of sale, contract of sale, or grant of any option to purchase or
other disposition or transfer of) any of the Subject Shares to any person or
entity (each, a "Person") other than SFI, (ii) create, or permit to exist any
encumbrances on any of the Subject Shares or (iii) reduce its beneficial
ownership of, interest in, or risk relating to, any of the Subject Shares.
(b) As used in this Voting Agreement, the term "Expiration Date" shall
mean the earlier of the date upon which the Merger Agreement is validly
terminated or the date upon which the Merger becomes effective.
1.2 Transfer of Voting Rights. Shareholder covenants and agrees that,
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prior to the Expiration Date, Shareholder will not deposit any of the Subject
Shares into a voting trust or grant a proxy or enter into a voting agreement
with respect to any of the Subject Shares.
2. VOTING AGREEMENTS
2.1 Pre-Termination Voting Agreement. Shareholder hereby agrees that,
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prior to the Expiration Date, at any meeting of the shareholders of Elekom,
however called, and in any written action by consent of shareholders of Elekom,
unless otherwise directed in writing by SFI, Shareholder shall vote the Subject
Shares:
(i) in favor of the Merger, the execution and delivery by Elekom of
the Merger Agreement and the adoption and approval of the terms thereof and
in favor of each of the other actions contemplated by the Merger Agreement
and any action required in furtherance hereof and thereof;
(ii) against any Acquisition Proposal (other than the Merger) and
against any action or agreement that would result in a breach of any
covenant or obligation of Elekom in the Merger Agreement; and
(iii) against any other action which is intended, or could reasonably
be expected to, impede, interfere with, delay, postpone, or adversely
affect the Merger or any of the other transactions contemplated by the
Merger Agreement.
Prior to the earlier to occur of the valid termination of the Merger Agreement
or the Effective Time, Shareholder shall not enter into any agreement or
understanding with any Person to vote or give instructions in any manner
inconsistent with clause "(i)", "(ii)", or "(iii)" of the preceding sentence.
2.2 Proxy. Contemporaneously with the execution of this Voting Agreement,
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Shareholder delivers to Xxxxxxx X. Xxxxxxx a proxy in the form attached hereto
as Exhibit A (the "Proxy").
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3. WAIVER OF APPRAISAL RIGHTS
Shareholder hereby irrevocably waives and agrees not to assert any and all
rights of appraisal or dissenters' rights that Shareholder may have or hereafter
acquire pursuant to Chapter 13 of the Washington Business Corporation Act or any
other applicable laws in connection with the Merger.
4. NOTICE OF SHAREHOLDER MEETINGS AND PROPOSED CONSENTS
For the purpose of effectively carrying out and furthering the intent of
this Voting Agreement and allowing SFI to exercise its rights hereunder,
Shareholder agrees to give SFI prompt written notice of any meeting of the
shareholders of Elekom or proposed written consent of the shareholders of Elekom
with respect to the matters covered by the Proxy (which notice shall, in any
event be given in a manner to be received not later than two (2) days before
such meeting or consent action). SFI acknowledges that the obligations of this
Section 4 will be satisfied with respect to a given meeting or proposed written
consent once it has received notice with respect to such meeting or proposed
written consent from any of Shareholder, Elekom or any other shareholder of
Elekom executing a similar voting agreement.
5. MISCELLANEOUS
5.1 Indemnification. Shareholder shall hold harmless and indemnify SFI
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from and against any and all claims, demands, actions, losses, costs, damages,
liabilities and expenses including, without limitation, attorney's fees
(collectively "Damages") (regardless of whether or not such Damages relate to a
third-party claim) which are incurred by SFI to the extent that such Damages
arise from any breach of any covenant or obligation of Shareholder contained
herein.
5.2 Expenses. All costs and expenses incurred in connection with the
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transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
5.3 Notices. All notices, approvals, consents, requests and other
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communications that any party is required or elects to give hereunder shall be
in writing and shall be deemed to have been given (a) upon personal delivery
thereof, including by appropriate courier service, five (5) days after delivery
to the courier or, if earlier, upon delivery against a signed receipt therefor
or (b) upon transmission by facsimile or telecopier, which transmission is
confirmed, in either case addressed to the party to be notified at the address
set forth below or at such other address as such party shall have notified the
other parties hereto, by notice given in conformity with this Section 5.3:
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(a) If to SFI:
Clarus Corporation
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, President/CEO
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: G. Xxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to Shareholder:
At the address set forth below Shareholder's signature on
the signature page hereto
with a copy to:
Counsel for Shareholder, if any, at the address shown on the
signature page hereto
Any party hereto may change its address specified for notices herein by
designating a new address by notice in accordance with this Section 5.3.
5.4 Severability. Any term or provision of this Voting Agreement which is
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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
Voting Agreement or affecting the validity or enforceability of any of the terms
or provisions of this Voting Agreement in any other jurisdiction. If any
provision of this Voting Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
5.5 Entire Agreement. This Voting Agreement and any documents delivered
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by the parties in connection herewith constitute the entire agreement between
the parties with respect to the subject matter hereof and thereof and supersede
all prior agreements and understandings between the parties with respect
thereto.
5.6 Amendment and Waivers. Any term or provision of this Voting Agreement
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may be amended, and the observance of any term of this Voting Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only by a writing signed by the parties to be bound thereby.
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The waiver by a party of any breach hereof or default in the performance hereof
will not be deemed to constitute a waiver of any other default or any succeeding
breach or default.
5.7 Assignment, Binding Effect. Except as provided herein, neither this
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Voting Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by either of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party. Subject to the
preceding sentence, this Voting Agreement shall be binding upon and shall inure
to the benefit of (i) Shareholder and his heirs, successor and assigns and (ii)
SFI and its successors and assigns.
5.8 Specific Performance. The parties hereto agree that irreparable
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damage would occur in the event that any of the provisions of this Voting
Agreement was not performed in accordance with its specific terms or are
otherwise breached. It is accordingly agreed that SFI shall be entitled to an
injunction or injunctions to prevent breaches of this Voting Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which SFI is entitled at law or in equity.
5.9 Other Agreements. Nothing in this Voting Agreement shall limit any of
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the rights or remedies of SFI or any of the obligations of Shareholder under any
Affiliate Agreement between SFI and Shareholder or any other agreement.
5.10 Governing Law. The internal laws of the State of Delaware
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(irrespective of its choice of law principles) will govern the validity of this
Voting Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto.
5.11 Counterparts. This Voting Agreement may be executed in counterparts,
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each of which will be an original as regards any party whose name appears
thereon and all of which together will constitute one and the same agreement.
This Voting Agreement will become binding when one or more counterparts hereof,
individually or taken together, bear the signatures of all parties reflected
hereon as signatories. Facsimile copies with signatories of the parties to this
Voting Agreement, or their duly authorized representatives, shall be legally
binding and enforceable. All such facsimile copies are declared as originals
and, accordingly, are admissible in any jurisdiction or tribunal having
jurisdiction over any matter relating to this Voting Agreement.
5.12 Construction. The language hereof will not be construed for or
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against either party. A reference to a section or exhibit will mean a section
in, or an exhibit to, this Voting Agreement, unless otherwise explicitly set
forth. The titles and headings in this Voting Agreement are for reference
purposes only and will not in any manner limit the construction of this Voting
Agreement. For the purposes of such construction, this Voting Agreement will be
considered as a whole.
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IN WITNESS WHEREOF, SFI and Shareholder have caused this Voting Agreement
to be executed as of the date first written above.
CLARUS CORPORATION
By: /s/
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Xxxxxxx X. Xxxxxxx, President and CEO
SHAREHOLDER:
EGGHEAD
By: /s/
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Name:
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Title:
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Address:
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Address of Shareholder's counsel, if any, for copy
of Notices under Section 5.3:
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Facsimile: ( )
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Shares of Elekom Common Stock owned as of the date hereof: 50
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Shares of Elekom Series A Preferred Stock owned as of the date hereof: 917,229
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Shares of Elekom Series B Preferred Stock owned as of the date hereof: 611,486
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned shareholder of Elekom Corporation, a Washington
corporation ("Elekom"), hereby irrevocably (to the fullest extent permitted by
law) appoints and constitutes Xxxxxxx X. Xxxxxxx the attorney and proxy of the
undersigned with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to (i) the shares of capital
stock of Elekom owned by the undersigned as of the date of this proxy, which
shares are specified below, and (ii) any and all other shares of capital stock
of Elekom which the undersigned may acquire after the date hereof. (The shares
of the capital stock of Elekom referred to in clauses (i) and (ii) of the
immediately preceding sentence are collectively referred to as the "Shares").
Upon the execution hereof, all prior proxies given by the undersigned with
respect to any of the Shares are hereby revoked, and no subsequent proxies will
be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between SQL
Financials International, Inc. ("SFI") and the undersigned (the "Voting
Agreement"), and is granted in consideration of SFI entering into the Agreement
and Plan of Reorganization, dated as of the date hereof, between SFI and Elekom
(the "Merger Agreement"). Capitalized terms used but not otherwise defined in
this proxy have the meanings ascribed to such terms in the Voting Agreement.
The attorney and proxy named above are hereby empowered, and shall
exercise this proxy, to vote the Shares at any time prior to the Expiration Date
at any meeting of the shareholders of Elekom, however called, or in any written
action by consent of shareholders of Elekom:
(i) in favor of the Merger, the execution and delivery by Elekom of
the Merger Agreement and the adoption and approval of the terms thereof and
in favor of each of the other actions contemplated by the Merger Agreement
and any action required in furtherance hereof and thereof; and
(ii) against any Acquisition Proposal (other than the Merger) and
against any action or agreement that would result in a breach of any
covenant or obligation of Elekom in the Merger Agreement. The undersigned
Shareholder may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Dated:____________, 1998 ________________________________________
EGGHEAD
Number of Shares of Elekom
Common Stock owned as of
the date of this Proxy: 50
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Number of Shares of Elekom
Series A Preferred Stock owned
as of the date of this Proxy: 917,229
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Number of Shares of Elekom
Series B Preferred Stock owned
as of the date of this Proxy: 611,486
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