<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
APEX INC.
(Name of Issuer)
COMMON STOCK, NO PAR VALUE
(Title of Class of Securities)
037548104
(CUSIP Number)
Doyle C. Weeks
Cybex Computer Products Corporation
4991 Corporate Drive
Huntsville, AL 35805
(256) 430-4000
Copies to:
John H. Cooper
Sean T. Wheeler
Sirote & Permutt, P.C.
2311 Highland Avenue South
Birmingham, AL 35205
(205) 930-5100
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
MARCH 8, 2000
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Sections 240.13-1(e), 240.13d-(1)(f) or
240.13d-1(g), check the following box.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
NOTE: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Section 240.13d-7
for other parties to whom copies are to be sent.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE> 2
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1 NAME OF REPORTING PERSON: CYBEX COMPUTER PRODUCTS CORPORATION
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): 63-0801728
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
STATE OF ALABAMA
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7 SOLE VOTING POWER
NUMBER OF SHARES N/A
BENEFICIALLY -----------------------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING PERSON 2,233,070 (1)
WITH -----------------------------------------------
9 SOLE DISPOSITIVE POWER
N/A
-----------------------------------------------
10 SHARED DISPOSITIVE POWER
N/A
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,233,070 (1)
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.66%
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14 TYPE OF REPORTING PERSON*
CO
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* See Instructions.
(1) Cybex Computer Products Corporation ("Cybex") and certain
shareholders of Apex Inc., a Washington corporation ("Apex"), entered into
voting agreements covering 2,233,070 shares of common stock, no par value, of
Apex (the "Apex Common Stock") (which amount includes options to purchase an
aggregate of 1,914,180 shares of Apex Common Stock) in connection with a
business combination transaction (discussed in Items 3 and 4 below). Cybex
expressly disclaims beneficial ownership of any of the shares of Apex Common
Stock covered by the voting agreements. Based on the number of shares of Apex
Common Stock outstanding as of March 1, 2000 (as represented by Apex in the
merger agreement discussed in Items 3 and 4), the number of shares of Apex
Common Stock covered by the voting agreements represents approximately 9.66% of
the issued and outstanding shares of Apex Common Stock.
ITEM 1. SECURITY AND ISSUER.
This statement on Schedule 13D relates to Apex Common Stock. The
address of the principal executive offices of Apex is 9911 Willows Road N.E.,
Redmond, Washington 98052.
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ITEM 2. IDENTITY AND BACKGROUND.
Cybex is an Alabama corporation with its principal office and business
at 4991 Corporate Drive, Huntsville, Alabama 35805. Cybex develops, produces and
markets keyboard, video monitor and mouse switch, extension and remote access
products for use in the computer industry.
The attached Schedule A is a list of the directors and executive
officers of Cybex which contains the following information with respect to each
such person:
(a) name;
(b) business address;
(c) present principal occupation or employment and the name,
principal business and address of any corporation or other
organization in which such employment is conducted; and
(d) citizenship.
During the last five years, neither Cybex nor, to Cybex's knowledge,
any person named on Schedule A hereto (i) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) has
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of which such person was or is subject to
a judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On March 8, 2000, Cybex, Apex and Aegean Sea Inc., a newly formed
Delaware corporation ("Aegean Sea"), entered into an Agreement and Plan of
Reorganization (the "Merger Agreement"). As provided in the Merger Agreement,
Aegean Sea will form two wholly owned subsidiaries under Alabama law ("Cybex
Merger Sub") and Washington law ("Apex Merger Sub"), respectively, which will
thereafter merge with and into Cybex (the "Cybex Merger") and Apex (the "Apex
Merger"), respectively (the Cybex Merger and the Apex Merger are referred to
herein, collectively, as the "Mergers"). At the effective time of the Mergers,
Cybex and Apex will become wholly owned subsidiaries of Aegean Sea, the separate
existence of Cybex Merger Sub and Apex Merger Sub will cease and all of the
business, assets, liabilities and obligations of those subsidiaries will be
assumed by Cybex and Apex, respectively. The stockholders of Cybex and Apex must
approve the Merger Agreement and the respective Mergers.
As an inducement for Cybex to enter into the Merger Agreement and in
consideration thereof, certain stockholders of Apex entered into voting
agreements with Cybex (collectively the "Apex Voting Agreements") whereby each
such stockholder agreed, severally and not jointly, to vote all of the shares of
Apex Common Stock beneficially owned by him in favor of approval and adoption of
the Merger Agreement and approval of the Merger and certain related matters.
Cybex did not pay additional consideration to any of such stockholders of Apex
in connection with the execution and delivery of the Apex Voting Agreements.
References to, and descriptions of, the Merger and the Merger
Agreement, as set forth in this Schedule 13D are qualified in their entirety by
reference to the copy of the Merger Agreement included as Exhibit 2.1 to the
Current Report on Form 8-K filed by Cybex on March 16, 2000.
References to, and descriptions of, the Apex Voting Agreements as set
forth in this Schedule 13D are qualified in their entirety by reference to the
copy the form of Apex Voting Agreement included as Exhibit A to this Schedule
13D.
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<PAGE> 4
ITEM 4. PURPOSE OF TRANSACTION.
(a) Not applicable.
(b) The Apex Voting Agreements are intended to facilitate the
consummation of the Mergers. At the effective time of the Mergers, the separate
existence of Cybex Merger Sub and Apex Merger Sub will cease, and Cybex and Apex
will continue as wholly owned subsidiaries of Aegean Sea. Each holder of
outstanding shares of common stock, par value $.001, of Cybex (the "Cybex Common
Stock") will receive, in exchange for each share of Cybex Common Stock held by
such holder, 1.0000 shares of common stock, par value $.001, of Aegean Sea
("Aegean Sea Common Stock"). Each holder of outstanding Apex Common Stock will
receive, in exchange for each share of Apex Common Stock held by such holder,
1.0905 shares of Aegean Sea Common Stock. Aegean Sea will assume each
outstanding option to purchase Apex Common Stock and Cybex Common Stock under
Apex's and Cybex's stock option plans. Furthermore, all rights to purchase
shares of Apex Common Stock under Apex's Employee Stock Purchase Plan shall be
converted into rights to purchase shares of Aegean Sea Common Stock and shall be
assumed by Aegean Sea.
The Mergers are subject to customary closing conditions, including,
among other things, the affirmative vote of the holders of two-thirds of the
issued and outstanding shares of Cybex Common Stock, the affirmative vote of the
holders of two-thirds of the issued and outstanding shares of Apex Common Stock,
and certain regulatory approvals. There can be no assurance that the required
approvals will be obtained in a timely fashion, if at all, or, in the case of
regulatory approvals, if obtained, will not contain certain conditions.
Apex Voting Agreements
Pursuant to the Apex Voting Agreements, the Apex stockholders party
thereto have agreed to vote their shares of Apex Common Stock (plus any
additional shares of Apex Common Stock and all additional options, warrants and
other rights to acquire shares of Apex Common Stock) beneficially owned by such
stockholders at every Apex stockholders meeting and every written consent in
lieu of such a meeting to vote the shares in favor of the Merger, the Merger
Agreement and the issuance of Aegean Sea Common Stock in connection with the
Mergers. The Apex Voting Agreements terminate upon the earlier to occur of (i)
such date and time as the Merger shall become effective in accordance with the
terms and provisions of the Merger Agreement, or (ii) such date and time as the
Merger Agreement shall have been terminated pursuant to Article VII thereof.
Cybex Voting Agreements
As an inducement for Apex to enter into the Merger Agreement and in
consideration thereof, certain stockholders of Cybex entered into voting
agreements with Apex (collectively the "Cybex Voting Agreements") whereby each
such stockholder agreed, severally and not jointly, to vote all of the shares of
Cybex Common Stock beneficially owned by him in favor of approval and adoption
of the Merger Agreement and approval of the Merger and certain related matters.
Apex did not pay additional consideration to any of such Cybex stockholders in
connection with the execution and delivery of the Cybex Voting Agreements.
Pursuant to the Cybex Voting Agreements, the Cybex shareholders party
thereto have agreed to vote their shares of Cybex Common Stock (plus any
additional shares of Cybex Common Stock and all additional options, warrants and
other rights to acquire shares of Cybex Common Stock) beneficially owned by such
shareholders at every Cybex shareholders meeting and every written consent in
lieu of such a meeting to vote the shares in favor of the Merger and the Merger
Agreement The Cybex Voting Agreements terminate upon the earlier to occur of (i)
such date and time as the Merger shall become effective in accordance with the
terms and provisions of the Merger Agreement, or (ii) such date and time as the
Merger Agreement shall have been terminated pursuant to Article VII thereof.
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<PAGE> 5
Purpose of the Transactions
The purpose of the transactions under the Cybex Voting Agreements and
the Apex Voting Agreements is to enable Apex and Cybex to consummate the
transactions contemplated under the Merger Agreement.
(c) Not applicable.
(d) Pursuant to the Merger Agreement, in connection with the Mergers,
the officers and directors of Cybex Merger Sub immediately prior to the
effective time of the Cybex Merger will be the officers and directors of the
surviving corporation of the Cybex Merger. In addition, the officers and
directors of Apex Merger Sub immediately prior to the effective time of the Apex
Merger will be the officers and directors of the surviving corporation of the
Apex Merger.
(e) Other than as a result of the Merger described in Item 3 above, not
applicable.
(f) Not applicable.
(g) Upon consummation of the Cybex Merger, the Articles of
Incorporation and Bylaws of Cybex Merger Sub, as in effect immediately prior to
the Cybex Merger, shall be the Articles of Incorporation and Bylaws of the
surviving corporation until thereafter amended as provided by Alabama law. In
addition, upon consummation of the Apex Merger, the Articles of Incorporation
and Bylaws of Apex Merger Sub, as in effect immediately prior to the Apex
Merger, shall be the Articles of Incorporation and Bylaws of the surviving
corporation until thereafter amended as provided by Washington law. The
Certificate of Incorporation of Aegean Sea provides for a classified board of
directors and restricts actions by stockholders of Aegean Sea by written
consent.
(h) If the Merger is consummated as planned, it is expected that the
Apex Common Stock and the Cybex Common Stock will be delisted from The Nasdaq
National Market.
(i) If the Merger is consummated as planned, it is expected that the
Apex Common Stock and the Cybex Common Stock will become eligible for
termination of registration under the Securities Exchange Act of 1934, as
amended.
(j) Other than described above, Cybex currently has no plan or
proposals which relate to, or may result in, any of the matters listed in Items
4(a) - (i) of Schedule 13D (although Cybex reserves the right to develop such
plans).
References to, and descriptions of, the Merger and the Merger Agreement
as set forth in this Schedule 13D are qualified in their entirety by reference
to the copy of the Merger Agreement included as Exhibit 2.1 to the Current
Report on Form 8-K filed by Cybex on March 16, 2000.
References to, and descriptions of, the Apex Voting Agreements as set
forth in this Schedule 13D are qualified in their entirety by reference to the
copy the form of Apex Voting Agreement included as Exhibit A to this Schedule
13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) - (b) As a result of the Apex Voting Agreements, Cybex may be
deemed to be the beneficial owner of 2,233,070 shares of Apex Common Stock (the
"Apex Shares"). The Apex Shares constitute approximately 9.66% of the issued and
outstanding shares of Apex Common Stock based on the number of shares of Apex
Common Stock issued and outstanding as of March 1, 2000 (as represented by Apex
in the Merger Agreement discussed in Items 3 and 4). Cybex may be deemed to have
the shared power to vote the Apex
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<PAGE> 6
Shares with respect to those matters described above. However, Cybex (i) is not
entitled to any rights as a stockholder of Apex as to the Apex Shares and (ii)
disclaims any beneficial ownership of the shares of Apex Common Stock which are
covered by the Apex Voting Agreements.
(c) Set forth below is information on transactions in Apex Common Stock
that were effected within 60 days of March 8, 2000 by directors and executive
officers of Cybex:
(1) Remigius Shatas acquired the following securities:
<TABLE>
<CAPTION>
AMOUNT OF PRICE PER WHERE AND HOW
SECURITY DATE SECURITIES SHARE TRANSACTION EFFECTED
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Apex Put June 030 1/11/2000 5,000 $3.8125 Open market purchase through J.C.
Bradford & Co.
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Apex Put June 035 1/24/2000 2,500 $4.8750 Open market purchase through J.C.
Bradford & Co.
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Apex Put June 040 2/07/2000 5,000 $3.9500 Open market purchase through J.C.
Bradford & Co.
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Apex Put June 040 2/08/2000 5,000 $4.1250 Open market purchase through J.C.
Bradford & Co.
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Apex Put Mar 030 1/21/2000 5,000 $1.6250 Open market purchase through J.C.
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Bradford & Co.
Apex Put Mar 030 1/24/2000 5,000 $1.1250 Open market purchase through J.C.
Bradford & Co.
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Apex Put Mar 035 1/25/2000 5,000 $2.4250 Open market purchase through J.C.
Bradford & Co.
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Apex Put Mar 040 2/02/2000 5,000 $4.2500 Open market purchase through J.C.
Bradford & Co.
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Apex Put Mar 040 2/04/2000 5,000 $1.6250 Open market purchase through J.C.
Bradford & Co.
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</TABLE>
(2) David Butler acquired the following securities:
<TABLE>
<CAPTION>
AMOUNT OF PRICE PER WHERE AND HOW
SECURITY DATE SECURITIES SHARE TRANSACTION EFFECTED
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<S> <C> <C> <C> <C>
Apex Put Mar 035 1/14/2000 1,000 $3.6250 Open market purchase through Legg
Mason Wood Walker
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Apex Put Mar 035 1/27/2000 2,000 $1.4360 Open market purchase through
Prudential Securities
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Apex Put Mar 045 2/4/2000 1,000 $3.3750 Open market purchase through
Salomon Smith Barney
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</TABLE>
Cybex expressly disclaims beneficial ownership of the shares of Apex
Common Stock owned by its directors, executive officers and their spouses.
Set forth on Schedule B are the names of the shareholders of Apex that
have entered into a Apex Voting Agreement with Cybex, and, to Cybex's knowledge,
their present principal occupation or employment.
To the knowledge of Cybex, no other transactions in the class of
securities reported have been effected during the past sixty days by any person
named pursuant to Item 2.
(d) Not applicable.
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<PAGE> 7
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDING OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Except as set forth below or as described in Item 4 or Item 5 of this
statement, neither Cybex nor, to the knowledge of Cybex, any person listed in
Schedule A, has any contract, arrangement, understanding or relationship with
any person with respect to any securities of Apex, including, but not limited
to, transfer or voting of any of the securities, finder's fees, joint ventures,
loan or option arrangement, puts or calls, guarantees of profits, division of
profits or loss, or the giving or withholding of proxies.
(a) Remigius Shatas holds the following securities:
<TABLE>
<CAPTION>
AMOUNT OF PRICE WHERE AND HOW
SECURITY DATE SECURITIES PER SHARE TRANSACTION EFFECTED
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<S> <C> <C> <C> <C>
Apex Put Mar 010 10/05/1999 2,500 $1.0625 Open market purchase through J.C.
Bradford & Co.
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Apex Put Mar 17.5 11/18/1999 1,000 $2.3125 Open market purchase through J.C.
Bradford & Co.
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</TABLE>
(b) Christopher Thomas holds the following securities:
<TABLE>
<CAPTION>
AMOUNT OF PRICE WHERE AND HOW
SECURITY DATE SECURITIES PER SHARE TRANSACTION EFFECTED
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Apex Calls Mar 22.5 9/22/1999 1,000 $4.1134 Open market purchase through
Robinson-Humphrey Co., LLC
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Apex Put Mar 20 9/22/1999 1,000 $2.8766 Open market purchase through
Robinson-Humphrey Co., LLC
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</TABLE>
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
The following documents are filed as exhibits:
A. Form of Voting Agreement, dated March 8, 2000, between Cybex
Computer Products Corporation and certain shareholders of Apex
Inc.
B. Agreement and Plan of Reorganization, dated as of March 8,
2000, by and among Cybex Computer Products Corporation, Aegean
Sea Inc. and Apex Inc. (incorporated by reference to the
Current Report on Form 8-K filed by Cybex Computer Products
Corporation on March 16, 2000).
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<PAGE> 8
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: March 17, 2000 CYBEX COMPUTER PRODUCTS CORPORATION
By: /s/ Doyle C. Weeks
--------------------------------------------
Doyle C. Weeks
Executive Vice President, Group Operations
and Business Development
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<PAGE> 9
SCHEDULE A
NAME, BUSINESS ADDRESS AND PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT OF THE DIRECTORS AND EXECUTIVE OFFICERS OF CYBEX
COMPUTER PRODUCTS CORPORATION ("CYBEX")
<TABLE>
<CAPTION>
NAME (CITIZENSHIP) OFFICE PRINCIPAL OCCUPATION OR EMPLOYMENT AND
ADDRESS
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Stephen F. Thornton Chairman of the Board, President and Chairman of the Board, President and
(United States of America) Chief Executive Officer Chief Executive Officer of Cybex*
Doyle C. Weeks Executive Vice President, Group Executive Vice President, Group Business
(United States of America) Business Development and Director Development and Director of Cybex*
Douglas E. Pritchett Senior Vice President - Finance, Senior Vice President - Finance, Chief
(United States of America) Chief Financial Officer, Treasurer Financial Officer, Treasurer and
and Director Director of Cybex*
R. Byron Driver Senior Vice President and Chief Senior Vice President and Chief
(United States of America) Operating Officer Operating Officer of Cybex*
Christopher L. Thomas Senior Vice President - Engineering Senior Vice President - Engineering of
(United States of America) Cybex*
Gary R. Johnson Senior Vice President - Sales and Senior Vice President - Sales and
(United States of America) Marketing Marketing of Cybex*
John R. Cooper Director Vice President - Finance and Chief
(United States of America) Financial Officer of ADTRAN, Inc., 901
Explorer Boulevard, Huntsville, Alabama
35806
Remigius G. Shatas Executive Vice President - Special Executive Vice President - Special
(United States of America) Projects, Secretary and Director Projects, Secretary and Director of
Cybex*
David S. Butler Director President of Electronic Manufacturers
(United States of America) Agents, 309 Jordan Lane NW, Huntsville,
Alabama 35805
</TABLE>
* The business address of Cybex is 4991 Corporate Drive, Huntsville,
Alabama 35805.
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<PAGE> 10
SCHEDULE B
The following table sets forth the name, business address and present
principal occupation or employment of each director and executive officer of
Apex. The address of each such person is c/o Apex Inc., 9911 Willows Road N.E.,
Redmond, WA 98052. To Cybex's knowledge, each of the individuals identified
below is a citizen of the United States.
<TABLE>
<CAPTION>
NAME AND TITLE SHARES BENEFICIALLY OWNED
- -------------------------------------------------------------------------------------------------------------
<S> <C>
Kevin J. Hafer 1,127,445
Chairman of the Board, President, Chief Executive Officer and
Director
Barry L. Harmon 350,000
Vice President, Chief Operating Officer and Chief Financial Officer
C. David Perry 296,725
Vice President of Worldwide Sales
Samuel F. Saracino 296,500
Vice President of Business Development, General Counsel and Secretary
Franz Fichtner 60,000
Director
Edwin L. Harper 48,900
Director
William McAleer 53,500
Director
Total: 2,233,070*
</TABLE>
* Includes options to purchase an aggregate of 1,914,180 shares of Apex
Common Stock.
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<PAGE> 11
EXHIBIT A
FORM OF APEX VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
March __, 2000, among Cybex Computer Products Corporation, an Alabama
corporation ("CYBEX"), and the undersigned shareholder (the "SHAREHOLDER") of
Apex Inc., a Washington corporation ("APEX").
RECITALS
A. Apex, Cybex 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 Common Stock of Aegean, as set forth in the Merger Agreement
(the "SHARE ISSUANCE");
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 Apex 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
Cybex, Shareholder (in his or her capacity as such) agrees to vote the Shares
(as defined below) and other such shares of capital stock of Apex 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 Apex
(including all shares of Apex Common Stock and all options, warrants and other
rights to acquire shares of Apex Common Stock) owned by Shareholder as of the
date of this Agreement; and (ii) all additional securities of Apex (including
all additional shares of Apex Common Stock and all additional options, warrants
and other rights to acquire shares of Apex 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
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<PAGE> 12
disposition of such security or any interest therein; provided, however, that
exercise of a stock option pursuant to Section 8(c)(6) of the Apex 1995 Employee
Stock Plan shall not be considered a "Transfer."
2. Transfer of Shares.
(a) Transferee of Shares to be Bound by this Agreement.
Stockholder 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 Cybex 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 Apex called, and at every adjournment thereof, and on every action or
approval by written consent of the shareholders of Apex, Shareholder (in his or
her capacity as such) shall cause the Shares to be voted in favor of approval of
the Merger, the Merger Agreement and the Share Issuance.
4. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Shareholder agrees to deliver to Cybex 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 Apex 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 the Apex other than the shares of
Apex Common Stock and options and warrants to purchase shares of Common Stock of
Apex 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 Cybex, to carry
out the intent of this Agreement.
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
-12-
<PAGE> 13
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 Cybex 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 Cybex upon any such
violation, Cybex shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
Cybex 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 Cybex: Cybex Computer Products Corporation
-----------------------------------
-----------------------------------
Facsimile:
-------------------------
Attention:
-------------------------
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<PAGE> 14
With a copy to:
Sirote & Permutt, P.C.
2311 Highland Ave. South
Birmingham, Alabama 32505
Attention: John H. Cooper, Esq.
Facsimile: (205) 930-5101
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
Apex, 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 Apex 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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<PAGE> 15
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 Apex.
CYBEX COMPUTER PRODUCTS SHAREHOLDER
CORPORATION
By: By:
----------------------------- -------------------------------------
Signature
Name: Name:
--------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
-----------------------------------------
-----------------------------------------
Print Address
-----------------------------------------
Telephone
-----------------------------------------
Facsimile No.
Share beneficially owned:
Apex Common Shares
-----
Apex Common Shares issuable
----- upon exercise of outstanding options
or warrants
[SIGNATURE PAGE TO VOTING AGREEMENT]
<PAGE> 16
EXHIBIT A
IRREVOCABLE PROXY
The undersigned Shareholder of Apex Inc., a Washington corporation
("APEX"), hereby irrevocably (to the fullest extent permitted by law) appoints
Doyle C. Weeks and Stephen F. Thornton 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 Apex that now are or hereafter
may be beneficially owned by the undersigned, and any and all other shares or
securities of Apex 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 Apex 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 Cybex Computer Products
Corporation, an Alabama corporation ("CYBEX"), and the undersigned shareholder
(the "VOTING AGREEMENT"), and is granted in consideration of Cybex entering into
that certain Agreement and Plan and Reorganization (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 Comon Stock of
Aegean, 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 Apex and in every written consent in lieu of such meeting in favor of
approval of the Merger, the Merger Agreement and the Share Issuance.
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 Apex.
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.
<PAGE> 17
Dated: , 2000
----------------
Signature of Shareholder:
-----------------------------
Print Name of Shareholder:
-----------------------------
Shares beneficially owned:
-----------------------------
Apex Common Shares
-------
Apex Common Shares
------- issuable upon exercise of
outstanding options or warrants
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
