EXHIBIT 10.3
VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of July 11, 1999, by and
between DIGITAL RIVER, INC., a Delaware corporation ("Buyer"), and the
undersigned holder of common stock of Tech Squared Inc. ("Stockholder").
RECITALS
A. In order to induce Buyer to purchase substantially all of the assets
of Tech Squared Inc., a Minnesota corporation (the "Company"), pursuant to that
certain Acquisition Agreement (the "Acquisition Agreement") of even date
herewith (the "Acquisition"), Buyer has required that Stockholder, and
Stockholder has agreed to, enter into this Agreement. Capitalized terms used but
not separately defined herein shall have the respective meanings set forth in
the Acquisition Agreement.
B. In connection with the consummation of the Acquisition, Stockholder
has agreed for the future voting of his shares of the Company's capital stock as
set forth below.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
For purposes of this Voting Agreement:
(a) "COMPANY COMMON STOCK" shall mean the common stock, no par
value, of the Company.
(b) "EXPIRATION DATE" shall mean the earlier of (i) the date upon
which the Acquisition Agreement is validly terminated, or (ii) the date upon
which the Acquisition is consummated.
(c) Stockholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934) of such security.
(d) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(e) "SUBJECT SECURITIES" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock and all options, warrants
and other rights to acquire shares of Company Common Stock) Owned by Stockholder
as of the date of this Agreement; and (ii) all additional securities of the
Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares
1.
of Company Common Stock) of which Stockholder acquires Ownership during the
period from the date of this Agreement through the Expiration Date.
(f) A Person shall be deemed to have a effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; or (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
SECTION 2. TRANSFER OF SUBJECT SECURITIES.
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not cause or permit any
Transfer of any of the Subject Securities to be effected unless each Person to
which any of such Subject Securities, or any interest in any of such Subject
Securities, is or may be transferred shall have: (a) executed a counterpart of
this Voting Agreement and a proxy in the form attached hereto as Exhibit A (with
such modifications as Buyer may reasonably request); and (b) agreed to hold such
Subject Securities (or interest in such Subject Securities) subject to all of
the terms and provisions of this Voting Agreement.
2.2 TRANSFER OF VOTING RIGHTS. Stockholder agrees that, during the period
from the date of this Voting Agreement through the Expiration Date, Stockholder
shall ensure that: (a) none of the Subject Securities is deposited into a voting
trust; and (b) no proxy inconsistent with this Agreement is granted, and no
voting agreement or similar agreement is entered into, with respect to any of
the Subject Securities.
SECTION 3. VOTING OF SHARES.
3.1 VOTING AGREEMENT. Stockholder agrees that, during the period from the
date of this Voting Agreement through the Expiration Date:
(a) at any meeting of stockholders of the Company, however called,
Stockholder shall (unless otherwise directed in writing by Buyer) cause all
outstanding shares of Company Common Stock that are Owned by Stockholder as of
the record date fixed for such meeting to be voted (i) in favor of the approval
and adoption of the Acquisition Agreement and the approval of the Acquisition,
and in favor of each of the other actions contemplated by the Acquisition
Agreement and (ii) against any action or proposal that would impair or prevent
the consummation of the Acquisition; and
(b) in the event written consents are solicited or otherwise sought
from stockholders of the Company with respect to the approval or adoption of the
Acquisition Agreement, with respect to the approval of the Acquisition or with
respect to any of the other actions contemplated by the Acquisition Agreement,
Stockholder shall (unless otherwise directed in writing by Buyer) cause to be
executed, with respect to all outstanding shares of Company Common Stock that
are Owned by Stockholder as of the record date fixed for the consent to the
proposed action, a written consent or written consents to such proposed action.
2.
3.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Voting Agreement:
(i) Stockholder shall deliver to Buyer a proxy in the form attached to this
Voting Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law, with respect to the shares held of record referred to therein
(the "Proxy"); and (ii) Stockholder shall cause to be delivered to Buyer an
additional proxy (in the form attached hereto as Exhibit A) executed on behalf
of the record owner of any outstanding shares of Company Common Stock that are
owned beneficially (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934), but not of record, by Stockholder.
(b) Stockholder shall, at his own expense, perform such further acts
and execute such further documents and instruments as may reasonably be required
to vest in Buyer the power to carry out and give effect to the provisions of
this Voting Agreement.
SECTION 4. WAIVER OF APPRAISAL RIGHTS.
Stockholder hereby irrevocably and unconditionally waives, and agrees
to cause to be waived and to prevent the exercise of, any rights of appraisal,
any dissenters' rights and any similar rights relating to the Acquisition or any
related transaction that Stockholder or any other Person may have by virtue of
the ownership of any outstanding shares of Company Common Stock Owned by
Stockholder.
SECTION 5. NO SOLICITATION.
Stockholder agrees that, during the period from the date of this
Voting Agreement through the Expiration Date, Stockholder shall not, directly or
indirectly, and Stockholder shall ensure that his representatives (as defined in
the Acquisition Agreement) do not, directly or indirectly: (i) solicit,
initiate, encourage or induce the making, submission or announcement of any
Acquisition Proposal (as defined in the Acquisition Agreement) or take any
action that could reasonably be expected to lead to an Acquisition Proposal;
(ii) furnish any information regarding the Company or any direct or indirect
subsidiary of the Company to any Person in connection with or in response to an
Acquisition Proposal or potential Acquisition Proposal; or (iii) engage in
discussions with any Person with respect to any Acquisition Proposal.
Stockholder shall immediately cease and discontinue, and Stockholder shall
ensure that his representatives immediately cease and discontinue, any existing
discussions with any Person that relate to any Acquisition Proposal. For
purposes of this Agreement, an Acquisition Proposal shall mean any transaction
or series of transactions involving: (a) any merger, consolidation,
amalgamation, share exchange, business combination, issuance of securities,
acquisition of securities, tender offer, exchange offer or other similar
transaction (i) in which the Company is a constituent company, (ii) in which a
Person or "group" (as defined in the Exchange Act and the rules promulgated
thereunder) of Persons directly or indirectly acquires the Company or more than
20% of the Company's business or directly or indirectly acquires beneficial or
record ownership of securities representing, or exchangeable for or convertible
into, more than 20% of the outstanding securities of any class of voting
securities of the Company, or (iii) in which the Company issues securities
representing more than 20% of the outstanding securities of any class of voting
securities of the Company; (b) any sale, lease, exchange, transfer, license,
acquisition
3.
or disposition of more than 20% of the assets of the Company; or (c) any
liquidation or dissolution of the Company.
SECTION 6. LOCK-UP.
The Stockholder hereby agrees not to offer to sell, contract to sell
or otherwise sell, dispose of, loan, pledge or grant any rights with respect to
(collectively, a "Disposition") any shares of Buyer's common stock transferred
to the Stockholder in connection with the transactions contemplated by the
Acquisition Agreement, other than (i) as a bona fide gift or gifts, provided the
donee or donees thereof agree to be bound by this Section 6 or (ii) with the
prior written consent of Buyer, until (a) January 1, 2000 with respect to
one-third of such shares, (b) April 1, 2000 with respect to another one-third of
such shares and (c) June 1, 2000 with respect to the remaining number of such
shares (each, a "Lock-Up Period"). The foregoing restriction is expressly agreed
to preclude the holder of the such shares from engaging in any hedging or other
transaction which is designed to or is reasonably expected to lead to or result
in a Disposition of the such shares during each Lock-Up Period even if such
shares would be disposed of by someone other than the Stockholder. Such
prohibited hedging or other transactions would include without limitation any
short sale (whether or not against the box) or any purchase, sale or grant of
any right (including without limitation any put or call option) with respect to
any of such shares or with respect to any security (other than a broad-based
market basket or index) that includes, relates to or derives any significant
part of its value from such shares.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER.
Stockholder hereby represents and warrants to Buyer as follows:
7.1 AUTHORIZATION, ETC. Stockholder has the capacity to execute and
deliver this Voting Agreement and the Proxy and to perform his obligations
hereunder and thereunder. This Voting Agreement and the Proxy have been duly
executed and delivered by Stockholder and constitute legal, valid and binding
obligations of Stockholder, enforceable against Stockholder in accordance with
their terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
7.2 NO CONFLICTS OR CONSENTS. To the best of the knowledge of
Stockholder, the execution and delivery of this Voting Agreement and the Proxy
by Stockholder do not, and the performance of this Voting Agreement and the
Proxy by Stockholder will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Stockholder or by which he
or any of his properties is or may be bound or affected; or (ii) result in or
constitute (with or without notice or lapse of time) any breach of or default
under, or give to any other Person (with or without notice or lapse of time) any
right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Subject Securities pursuant to, any contract to which
Stockholder is a party or by which Stockholder or any of his affiliates or
properties is or may be bound or affected. The execution and delivery of this
Voting Agreement and the Proxy
4.
by Stockholder do not, and the performance of this Voting Agreement and the
Proxy by Stockholder will not, require any consent or approval of any Person.
7.3 TITLE TO SECURITIES. As of the date of this Voting Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Company Common Stock set forth under the
heading "Shares Held of Record" on the signature page hereof; (b) Stockholder
holds (free and clear of any encumbrances or restrictions) the options, warrants
and other rights to acquire shares of Company Common Stock set forth under the
heading "Options and Other Rights" on the signature page hereof; (c) Stockholder
Owns the additional securities of the Company set forth under the heading
"Additional Securities Beneficially Owned" on the signature page hereof; and (d)
Stockholder does not directly or indirectly Own any shares of capital stock or
other securities of the Company, or any option, warrant or other right to
acquire (by purchase, conversion or otherwise) any shares of capital stock or
other securities of the Company, other than the shares and options, warrants and
other rights set forth on the signature page hereof.
7.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all material respects as of
the date of this Voting Agreement, will be accurate in all material respects at
all times through the Expiration Date and will be accurate in all material
respects as of the date of the consummation of the Acquisition as if made on
that date except that Stockholder may acquire additional shares of Company
Common Stock, including upon exercise of outstanding stock options.
SECTION 8. ADDITIONAL COVENANTS OF STOCKHOLDER.
8.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall (at Stockholder's sole expense) execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
(at Stockholder's sole expense) take such further actions, as Buyer may request
for the purpose of carrying out and furthering the intent of this Voting
Agreement.
8.2 LEGEND. Immediately after the execution of this Voting Agreement (and
from time to time upon the acquisition by Stockholder of Ownership of any shares
of Company Common Stock prior to the Expiration Date), Stockholder shall ensure
that each certificate evidencing any outstanding shares of Company Common Stock
or other securities of the Company Owned by Stockholder bears a legend in the
following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE VOTING AGREEMENT DATED AS
OF JULY 11, 1999, BETWEEN THE ISSUER AND THE HOLDER OF THIS CERTIFICATE,
AS IT MAY BE AMENDED, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE ISSUER.
Furthermore, Stockholder shall ensure that each certificate representing
shares of common stock that may be issued by Buyer to Stockholder as a result of
the Acquisition bears a legend in the following form:
5.
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 6 OF A VOTING AGREEMENT
DATED AS OF JULY 11, 1999, BETWEEN THE ISSUER AND THE HOLDER OF THIS
CERTIFICATE. ANY PERSON ACCEPTING ANY INTEREST IN SUCH SECURITIES SHALL
BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY THE PROVISIONS OF SECTION
6 OF SUCH AGREEMENT. A COPY OF SUCH VOTING AGREEMENT WILL BE FURNISHED TO
THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST
TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
SECTION 9. MISCELLANEOUS.
9.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Stockholder in
this Voting Agreement shall survive (i) the consummation of the Acquisition,
(ii) any termination of the Acquisition Agreement and (iii) the Expiration Date.
9.2 INDEMNIFICATION. Stockholder shall hold harmless and indemnify Buyer
and Buyer's affiliates from and against, and shall compensate and reimburse
Buyer and Buyer's affiliates for, any loss, damage, claim, liability, fee
(including attorneys' fees), demand, cost or expense (regardless of whether or
not such loss, damage, claim, liability, fee, demand, cost or expense relates to
a third-party claim) that is directly or indirectly suffered or incurred by
Buyer or any of Buyer's affiliates, or to which Buyer or any of Buyer's
affiliates otherwise becomes subject, and that arises directly or indirectly
from, or relates directly or indirectly to, (a) any inaccuracy in or breach of
any representation or warranty contained in this Voting Agreement, or (b) any
failure on the part of Stockholder to observe, perform or abide by, or any other
breach of, any restriction, covenant, obligation or other provision contained in
this Voting Agreement or in the Proxy.
9.3 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
9.4 NOTICES. Any notice or other communication required or permitted to
be delivered to either party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received when delivered (by hand,
by registered mail, by courier or express delivery service or by facsimile) to
the address or facsimile telephone number set forth beneath the name of such
party below (or to such other address or facsimile telephone number as such
party shall have specified in a written notice given to the other party):
if to Stockholder:
at the address set forth below Stockholder's signature on the
signature page hereof
if to Buyer:
6.
Digital River, Inc.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, XX 00000
Attn: President
Fax: (000) 000-0000
9.5 SEVERABILITY. If any provision of this Voting Agreement or any part
of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement. Each
provision of this Voting Agreement is separable from every other provision of
this Voting Agreement, and each part of each provision of this Voting Agreement
is separable from every other part of such provision.
9.6 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered 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. No addition to or modification of any provision of
this Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
9.7 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by Stockholder and any attempted or purported assignment
or delegation of any of such interests or obligations shall be void. Subject to
the preceding sentence, this Voting Agreement shall be binding upon Stockholder
and his heirs, estate, executors, personal representatives, successors and
assigns, and shall inure to the benefit of Buyer and its successors and assigns.
Without limiting any of the restrictions set forth in Section 2 or elsewhere in
this Voting Agreement, this Voting Agreement shall be binding upon any Person to
whom any Subject Securities are transferred. Nothing in this Voting Agreement is
intended to confer on any Person (other than Buyer and its successors and
assigns) any rights or remedies of any nature.
9.8 SPECIFIC PERFORMANCE. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Voting Agreement or the
Proxy was not performed in accordance with its specific terms or was otherwise
breached. Stockholder agrees that, in the event of any breach or threatened
breach by Stockholder of any covenant or obligation contained in this Voting
Agreement or in the Proxy, Buyer shall be entitled (in addition to any other
remedy that may be available to it, including monetary damages) to seek and
obtain (a) a decree or order of specific performance to enforce the observance
and performance of such covenant or obligation, and (b) an injunction
restraining such breach or threatened breach. Stockholder further agrees that
neither Buyer nor any other Person shall be required to obtain, furnish or post
any bond or similar instrument in connection with or as a condition to obtaining
any remedy
7.
referred to in this Section 9.8, and Stockholder irrevocably waives any right he
may have to require the obtaining, furnishing or posting of any such bond or
similar instrument.
9.9 NON-EXCLUSIVITY. The rights and remedies of Buyer under this Voting
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Buyer under this Voting Agreement, and
the obligations and liabilities of Stockholder under this Voting Agreement, are
in addition to their respective rights, remedies, obligations and liabilities
under common law requirements and under all applicable statutes, rules and
regulations. Nothing in this Voting Agreement shall limit any of Stockholder's
obligations, or the rights or remedies of Buyer, under any Affiliate Agreement
between Buyer and Stockholder; and nothing in any such Affiliate Agreement shall
limit any of Stockholder's obligations, or any of the rights or remedies of
Buyer, under this Voting Agreement.
9.10 GOVERNING LAW; VENUE.
(a) This Voting Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware (without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this
Voting Agreement or the Proxy or the enforcement of any provision of this Voting
Agreement or the Proxy may be brought or otherwise commenced in any state or
federal court located in the City of Minneapolis, Minnesota. Stockholder:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the City of Minneapolis,
Minnesota (and each appellate court located in the State of Minnesota), in
connection with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or
document by U.S. mail addressed to him at the address set forth in Section 9.4
shall constitute effective service of such process, summons, notice or document
for purposes of any such legal proceeding;
(iii) agrees that each state and federal court located in the
City of Minneapolis, Minnesota, shall be deemed to be a convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any state or federal court
located in the City of Minneapolis, Minnesota, any claim that Stockholder is not
subject personally to the jurisdiction of such court, that such legal proceeding
has been brought in an inconvenient forum, that the venue of such proceeding is
improper or that this Voting Agreement or the subject matter of this Voting
Agreement may not be enforced in or by such court.
Nothing contained in this Section 9.10 shall be deemed to limit or otherwise
affect the right of Buyer to commence any legal proceeding or otherwise proceed
against Stockholder in any other forum or jurisdiction.
8.
(c) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE PROXY.
9.11 COUNTERPARTS. This Voting Agreement may be executed by the parties
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.
9.12 CAPTIONS. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
9.13 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought against Stockholder, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and disbursements (in
addition to any other relief to which the prevailing party may be entitled).
9.14 WAIVER. No failure on the part of Buyer to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Buyer in exercising any power, right, privilege or remedy under this Voting
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Buyer shall not be deemed to have waived any claim
available to Buyer arising out of this Voting Agreement, or any power, right,
privilege or remedy of Buyer under this Voting Agreement, unless the waiver of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of Buyer; and any such
waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
9.15 CONSTRUCTION.
(a) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
9.
(d) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Voting Agreement and Exhibits to this Voting Agreement.
10.
IN WITNESS WHEREOF, Buyer and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
DIGITAL RIVER, INC.
By: /s/Xxxxx Xxxxxxx
-------------------------------------
Title: President
----------------------------------
Address: 0000 Xxxx 00xx Xxxxxx
Xxxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
STOCKHOLDER:
/s/Xxxx X. Xxxxxxx
-----------------------------------------
Signature
Xxxx X. Xxxxxxx
-----------------------------------------
Print Name
0000 Xxxxxxxxx Xxxx
Address: -----------------------------
Xxxxxxxxx, XX 00000
-----------------------------
Facsimile: 000-000-0000
-----------------------------
ADDITIONAL SECURITIES
SHARES HELD OF RECORD OPTIONS AND OTHER RIGHTS BENEFICIALLY OWNED
5,374,026 1,199,996 0
SIGNATURE PAGE TO VOTING AGREEMENT
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder of TECH SQUARED, INC., a Minnesota
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Xxxxx Xxxxxxx and Xxxxxx Xxxxxxxx and DIGITAL
RIVER, INC., a Delaware corporation ("Buyer"), and each of them, the attorneys
and proxies of the undersigned with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
(i) the outstanding shares of capital stock of the Company owned of record by
the undersigned as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the undersigned may acquire on or after the date hereof. (The
shares of the capital stock of the Company 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 the undersigned agrees
that 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 Buyer
and the undersigned (the "Voting Agreement"), and is granted in consideration of
Buyer entering into the Acquisition Agreement, dated as of the date hereof,
between Buyer, and the Company (the "Acquisition Agreement").
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Acquisition Agreement or the consummation of the
Acquisition contemplated thereby (the "Acquisition") at any meeting of the
stockholders of the Company, however called, or in connection with any
solicitation of written consents from stockholders of the Company, in favor of
the approval and adoption of the Acquisition Agreement and the approval of the
Acquisition, in favor of each of the other actions contemplated by the
Acquisition Agreement and against any action or proposal that would impair or
prevent the consummation of the Acquisition.
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
A-1.
proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
This proxy shall terminate upon the earlier of the valid termination of
the Acquisition Agreement or the consummation of the Acquisition.
Dated: 7-11-99
/s/Xxxx X. Xxxxxxx
--------------------------------------------
Name
Number of shares of common stock of the
Company owned of record as of the date of
this proxy:
5,374,026
-----------------------------------------
A-2.
