Exhibit 99(a)
CYBEX VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
March __, 2000, among Apex Inc., a Washington corporation ("APEX"), and the
undersigned shareholder (the "SHAREHOLDER") of Cybex Computer Products
Corporation, an Alabama corporation ("CYBEX").
RECITALS
A. Cybex, Apex and Aegean Sea Inc., a Delaware corporation ("AEGEAN")
have entered into an Agreement and Plan of Reorganization (the "MERGER
AGREEMENT"), which provides for the merger of a wholly-owned subsidiary of
Aegean with and into Cybex and the merger of another wholly-owned subsidiary of
Aegean with and into Apex, pursuant to which mergers Cybex and Apex will become
wholly-owned subsidiaries of Aegean (all of the foregoing, the "MERGER").
Pursuant to the Merger, all outstanding shares of Common Stock of Cybex and all
of the outstanding shares of Common Stock of Apex shall be converted into the
right to receive Aegean Common Stock, as set forth in the Merger Agreement;
B. Shareholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of
such number of shares of the outstanding capital stock of Cybex and shares
subject to outstanding options and warrants as is indicated on the signature
page of this Agreement; and
C. In consideration of the execution of the Merger Agreement by Apex,
Shareholder (in his or her capacity as such) agrees to vote the Shares (as
defined below) and other such shares of capital stock of Cybex over which
Shareholder has voting power so as to facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. CERTAIN DEFINITIONS. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Merger Agreement. For purposes of this
Agreement:
(a) "EXPIRATION DATE" shall mean the earlier to occur of (i) such
date and time as the Merger Agreement shall have been terminated pursuant to
Article VII thereof, or (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger Agreement.
(b) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(c) "SHARES" shall mean: (i) all securities of Cybex (including
all shares of Cybex Common Stock and all options, warrants and other rights to
acquire shares of Cybex Common Stock) owned by Shareholder as of the date of
this Agreement; and (ii) all additional securities of Cybex (including all
additional shares of Cybex Common Stock and all additional options, warrants and
other
rights to acquire shares of Cybex Common Stock) of which Shareholder acquires
ownership during the period from the date of this Agreement through the
Expiration Date.
(d) "TRANSFER." A Person shall be deemed to have 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 providing for the sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
2. TRANSFER OF SHARES.
(a) TRANSFEREE OF SHARES TO BE BOUND BY THIS AGREEMENT.
Shareholder agrees that, during the period from the date of this Agreement
through the Expiration Date, Shareholder shall not cause or permit any Transfer
of any of the Shares to be effected unless each Person to which any of such
Shares, or any interest in any of such Shares, is or may be transferred shall
have: (a) executed a counterpart of this Agreement and a proxy in the form
attached hereto as EXHIBIT A (with such modifications as Apex may reasonably
request); and (b) agreed in writing to hold such Shares (or interest in such
Shares) subject to all of the terms and provisions of this Agreement.
(b) TRANSFER OF VOTING RIGHTS. Shareholder agrees that, during
the period from the date of this Agreement through the Expiration Date,
Shareholder shall not deposit (or permit the deposit of) any Shares in a voting
trust or grant any proxy or enter into any voting agreement or similar agreement
in contravention of the obligations of Shareholder under this Agreement with
respect to any of the Shares.
3. AGREEMENT TO VOTE SHARES. At every meeting of the shareholders of
Cybex called, and at every adjournment thereof, and on every action or approval
by written consent of the shareholders of Cybex, Shareholder (in his or her
capacity as such) shall cause the Shares to be voted in favor of the Merger and
the Merger Agreement.
4. IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, Shareholder agrees to deliver to Apex a proxy in the form attached
hereto as EXHIBIT A (the "PROXY"), which shall be irrevocable to the fullest
extent permissible by law, with respect to the Shares.
5. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. Shareholder (i)
is the beneficial owner of the shares of Cybex Common Stock indicated on the
final page of this Agreement, free and clear of any liens, claims, options,
rights of first refusal, co-sale rights, charges or other encumbrances; (ii)
does not beneficially own any securities of Cybex other than the shares of Cybex
Common Stock and options and warrants to purchase shares of Common Stock of
Cybex indicated on the final page of this Agreement; and (iii) has full power
and authority to make, enter into and carry out the terms of this Agreement and
the Proxy.
6. ADDITIONAL DOCUMENTS. Shareholder (in his or her capacity as such)
hereby covenants and agrees to execute and deliver any additional documents
necessary or desirable, in the reasonable opinion of Apex, to carry out the
intent of this Agreement.
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7. TERMINATION. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
8. MISCELLANEOUS.
(a) SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
(b) BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other.
(c) AMENDMENTS AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
(d) SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Apex shall be irreparably harmed and that there shall be no
adequate remedy at law for a violation of any of the covenants or agreements of
Shareholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Apex upon any such violation, Apex shall
have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Apex at law or in equity.
(e) NOTICES. All notices and other communications pursuant to
this Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to Apex: Apex Inc.
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Attention:
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Facsimile:
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With copies to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
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If to Shareholder: To the address for notice set forth on the
signature page hereof.
(f) GOVERNING LAW. This Agreement shall be governed by the laws
of the State of Delaware, without reference to rules of conflicts of law.
(g) ENTIRE AGREEMENT. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(h) OFFICERS AND DIRECTORS. To the extent that Shareholder is or
becomes (during the term hereof) a director or officer of Cybex, he or she makes
no agreement or understanding herein in his or her capacity as such director or
officer, and nothing herein will limit or affect, or give rise to any liability
to Shareholder by virtue of, any actions taken by Shareholder in his or her
capacity as an officer or director of Cybex in exercising its rights under the
Merger Agreement.
(i) EFFECT OF HEADINGS. The section headings are for convenience
only and shall not affect the construction or interpretation of this Agreement.
(j) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written. The undersigned is executing
this Agreement only in its capacity as a shareholder. Such signature in no way
affects its obligations as an officer or director of Cybex
APEX INC. STOCKHOLDER
By: By:
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Signature
Name: Name:
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Title: Title:
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Print Address
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Telephone
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Facsimile No.
Share beneficially owned:
________ shares of Cybex Common Stock
________ shares of Cybex Common Stock
issuable upon exercise of outstanding
options or warrants
[SIGNATURE PAGE TO VOTING AGREEMENT]
EXHIBIT A
IRREVOCABLE PROXY
The undersigned shareholder of Cybex Computer Products Corporation, an
Alabama corporation ("CYBEX"), hereby irrevocably (to the fullest extent
permitted by law) appoints Xxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxx and each of
them, as the sole and exclusive attorneys and proxies of the undersigned, with
full power of substitution and resubstitution, to vote and exercise all voting
and related rights (to the full extent that the undersigned is entitled to do
so) with respect to all of the shares of capital stock of Cybex that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Cybex issued or issuable in respect thereof on or after
the date hereof (collectively, the "SHARES") in accordance with the terms of
this Proxy. The Shares beneficially owned by the undersigned shareholder of
Cybex as of the date of this Proxy are listed on the final page of this Proxy.
Upon the undersigned's execution of this Proxy, any and all prior proxies given
by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and among Apex Inc., a Washington corporation
("APEX"), and the undersigned shareholder (the "VOTING AGREEMENT"), and is
granted in consideration of Apex entering into that certain Agreement and Plan
of Merger (the "MERGER AGREEMENT"), by and between Apex, Cybex and Aegean Sea
Inc., a Delaware corporation ("AEGEAN"). The Merger Agreement provides for the
merger of a wholly-owned subsidiary of Aegean with and into Cybex and the merger
of another wholly-owned subsidiary of Aegean with and into Apex in accordance
with its terms (the "MERGER"). Pursuant to the Merger, all outstanding Common
Stock of Cybex and all outstanding Common Stock of Apex shall be converted into
the right to receive Aegean Common Stock, as set forth in the Merger Agreement
(the "SHARE ISSUANCE"). As used herein, the term "EXPIRATION DATE" shall mean
the earlier to occur of (i) such date and time as the Merger Agreement shall
have been validly terminated pursuant to Article VII thereof or (ii) such date
and time as the Merger shall become effective in accordance with the terms and
provisions of the Merger Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of shareholders
of Cybex and in every written consent in lieu of such meeting in favor of the
Merger and the Merger Agreement.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned shareholder may vote
the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned. The undersigned is executing this
Proxy only in its capacity as a shareholder. Such signature in no way affects
its obligations as an officer or director of Cybex
This Proxy is irrevocable (to the fullest extent permitted by law).
This Proxy shall terminate, and be of no further force and effect, automatically
upon the Expiration Date.
Dated: , 2000
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Signature of Shareholder:
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Print Name of Shareholder:
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Shares beneficially owned:
________ shares of Cybex Common Stock
________ shares of Cybex Common Stock
issuable upon exercise of outstanding
options or warrants
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
