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EXHIBIT 9.2
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) May 1, 1999, (b) 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.
0000-X Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxxx, Xxxxxx & Xxxxxx LLP
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: President
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Stockholder
/s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Address:
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Stockholder
/s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
Address:
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Stockholder
/s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Address:
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Stockholder
/s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Address:
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Stockholder
/s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Address:
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Stockholder
/s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Address:
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Stockholder
/s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Address:
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EXHIBIT A
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SHARES SUBJECT TO VOTING AGREEMENT
COMPANY COMMON STOCK OWNED
Stockholder Name Number of Shares Owned
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Xxxxxx Xxxxxxxxxx and Xxxxxxx 21,000
Youngwerth as Joint Tenants
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Xxxxxxxx Xxxxx 15,000
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Xxxxxx Xxxxx and Xxxxx Xxxxx 30,081
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Xxxxxxx Xxx Rivers 60,657
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Xxx Xxxxx 23,000
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RIGHTS TO ACQUIRE COMPANY COMMON STOCK
Stockholder Name Nature of Right Number of Shares
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Xxxxxx Xxxxxxxxxx Stock Options 136,461
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Xxxxxxx Xxx Xxxxxx Stock Options 118,400
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Xxx Xxxxx Stock Options 48,000
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