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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
CYBEX COMPUTER PRODUCTS CORPORATION
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
232522102
(CUSIP Number)
Barry L. Harmon
Apex Inc.
9911 Willows Road N.E.
Redmond, WA 98052
(425) 861-5858
Copies to:
Patrick J. Schultheis
Steve L. Camahort
Christian E. Montegut
Wilson Sonsini Goodrich & Rosati
Professional Corporation
5300 Carillon Point
Kirkland, WA 98033
(425) 576-5800
(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 which is the subject of this Schedule 13D, and is
filing this schedule because of Sections 240.13-1(e), 240.13d-(f) or
240.13d-1(g), check the following box.
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(b) 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).
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- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
APEX INC. I.R.S. Identification No.: 91-1577634
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
N/A
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
N/A
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
STATE OF WASHINGTON
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7 SOLE VOTING POWER
NUMBER OF SHARES N/A
BENEFICIALLY ---------------------------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING PERSON 3,272,087 (1)
WITH ---------------------------------------------------
9 SOLE DISPOSITIVE POWER
N/A
---------------------------------------------------
10 SHARED DISPOSITIVE POWER
N/A
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,272,087 (1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.0%
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14 TYPE OF REPORTING PERSON*
CO
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(1) 3,272,087 shares of Common Stock of Cybex Computer Products
Corporation, an Alabama corporation ("Cybex") are subject to Voting Agreements
entered into by Apex and certain shareholders of Cybex (discussed in Items 3 and
4 below). Apex expressly disclaims beneficial ownership of any of the shares of
Cybex Common Stock covered by the Voting Agreements. Based on the number of
shares of Cybex Common Stock outstanding as of March 6, 2000 (as represented by
Cybex in the Merger Agreement discussed in Items 3 and 4), the number of shares
of Cybex Common Stock covered by the Voting Agreements represents approximately
17.0% of the outstanding Cybex Common Stock.
ITEM 1. SECURITY AND ISSUER.
This statement relates to the Common Stock of Cybex. The principal
executive offices of Cybex are located at 4991 Corporate Drive, Huntsville,
Alabama 35805.
SCHEDULE 13D Page 2 of 9
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ITEM 2. IDENTITY AND BACKGROUND.
The name of the corporation filing this statement is Apex Inc., a
Washington corporation ("Apex"). Apex designs, manufactures and sells
stand-alone switching systems for the client/server computing market that help
network administrators manage multiple servers from a single keyboard, video
monitor and mouse console. Apex's principal business address is 9911 Willows
Road N.E., Redmond, WA 98052. The address of Apex's executive offices is the
same as the address of its principal business.
Set forth on Schedule A is the name of each of the directors and
executive officers of Apex along with the present principal occupation or
employment of such directors and executive officers and the name, principal
business and address of any corporation or other organization in which such
employment is conducted, as of the date hereof to Apex's knowledge. To Apex's
knowledge, each of the individuals identified on Schedule A is a citizen of the
United States.
Neither Apex, nor to Apex's knowledge any person named on Schedule A
hereto is required to disclose legal proceedings pursuant to Items 2(d) or 2(e).
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Pursuant to an Agreement and Plan of Reorganization dated as of March
8, 2000 (the "Merger Agreement"), among Apex, Aegean Sea Inc., a Delaware
corporation ("Newco") and Cybex, and subject to the conditions set forth therein
(including approval by stockholders of Cybex and Apex), two wholly-owned
subsidiaries of Newco will merge with and into Apex and Cybex, respectively, and
Apex and Cybex will become wholly-owned subsidiaries of Newco (such events
constituting the "Merger"). Once the Merger is consummated, two wholly-owned
subsidiaries of Newco will cease to exist as corporations and all of the
business, assets, liabilities and obligations of those subsidiaries will be
merged into Apex and Cybex, respectively, with Apex and Cybex remaining as the
surviving corporations (the "Surviving Corporations").
As an inducement for Apex to enter into the Merger Agreement and in
consideration thereof, certain stockholders of Cybex entered into individual
agreements with Apex (collectively the "Cybex Voting Agreements") whereby each
such stockholder (collectively, the "Cybex Voting Agreement Shareholders")
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 Cybex Voting Agreement Shareholder in
connection with the execution and delivery of the Cybex 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 copies of the Merger Agreement included as Exhibits to the Form
8-K filed by Apex on March 13, 2000.
References to, and descriptions of, the Cybex Voting Agreements as set
forth in this Schedule 13D are qualified in their entirety by reference to
the form of Cybex Voting Agreement included as EXHIBIT A to this Schedule
13D.
ITEM 4. PURPOSE OF TRANSACTION.
(a) Not applicable.
(b) As described in Item 3 above, this statement relates to the Merger
of two wholly-owned subsidiaries of Newco (the "Merger Subs"), with and into
Apex and Cybex, respectively, in two statutory
SCHEDULE 13D Page 3 of 9
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mergers pursuant to the applicable provisions of Washington and Alabama Law,
respectively. At the effective time of the Merger, the separate existence of
Merger Subs will cease and Apex and Cybex will continue as wholly-owned
subsidiaries of Newco. Each holder of outstanding Cybex Common Stock will
receive, in exchange for each share of Cybex Common Stock held by such holder,
1.0000 share of Newco 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 Newco Common Stock. Newco 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 Newco Common Stock and shall be assumed by Newco.
Pursuant to the Cybex Voting Agreements, the Cybex Voting Agreement
Shareholders 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 the
Cybex Voting Agreement Shareholders (the "Cybex Voting Agreement Shares") at
every Cybex shareholders meeting and every written consent in lieu of such a
meeting to vote the shares (a) in favor of the Merger and the Merger Agreement
(the "Cybex Approval Matters"), (b) in favor of any matter that could reasonably
be expected to facilitate the Cybex Approval Matters and (c) in such manner as
Apex may direct with respect to all other proposals submitted to the
shareholders of Cybex which, directly or indirectly, in any way relates to the
Cybex Approval Matters. 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.
As an inducement for Cybex to enter into the Merger Agreement and in
consideration thereof, certain stockholders of Apex entered into individual
agreements with Cybex (collectively the "Apex Voting Agreements") whereby each
such stockholder (collectively, the "Apex Voting Agreement Shareholders")
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 Apex Voting Agreement Shareholder in
connection with the execution and delivery of the Apex Voting Agreements.
Pursuant to the Apex Voting Agreements, the Apex Voting Agreement
Shareholders 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 the
Apex Voting Agreement Shareholders (the "Apex Voting Agreement Shares") at every
Apex stockholders meeting and every written consent in lieu of such a meeting to
vote the shares (a) in favor of the Merger and the Merger Agreement (the "Apex
Approval Matters"), (b) in favor of any matter that could reasonably be expected
to facilitate the Apex Approval Matters, and (c) in such manner as Cybex may
direct with respect to all other proposals submitted to the stockholders of Apex
which, directly or indirectly, in any way relates to the Apex Approval Matters.
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.
The purpose of the transactions under the Cybex Voting Agreements and
the Apex Voting Agreements, are to enable Apex and Cybex to consummate the
transactions contemplated under the Merger Agreement.
SCHEDULE 13D Page 4 of 9
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(c) Not applicable.
(d) It is anticipated that upon consummation of the Merger, the
directors of the Issuer shall be the current directors of the subsidiary of
Newco that merges with the Issuer (the "Cybex Merger Sub"). The initial officers
of the Issuer shall be the following persons:
President Stephen F. Thornton
Secretary Barry L. Harmon
(e) Other than as a result of the Merger described in Item 3 above,
not applicable.
(f) Not applicable.
(g) Upon consummation of the Merger, the Articles of Incorporation of
the Cybex Merger Sub, as in effect immediately prior to the Merger, shall be the
Articles of Incorporation of the Issuer until thereafter amended as provided by
Alabama Law and such Articles of Incorporation. Upon consummation of the Merger,
the Bylaws of the Cybex Merger Sub, as in effect immediately prior to the
Merger, shall be the Bylaws of the Issuer until thereafter amended.
(h) - (i) If the Merger is consummated as planned, the Cybex Common
Stock will be deregistered under the Act and delisted from The Nasdaq National
Market.
(j) Other than described above, Apex currently has no plan or
proposals which relate to, or may result in, any of the matters listed in Items
4(a) - (j) of Schedule 13D (although Apex 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 copies of the Merger Agreement included as Exhibits to the Form 8-K filed
by Apex on March 13, 2000.
References to, and descriptions of, the Cybex Voting Agreements as set
forth in this Schedule 13D are qualified in their entirety by reference to the
copy the form of Cybex 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 Cybex Voting Agreements, Apex may be
deemed to be the beneficial owner of at least 3,272,087 shares of Cybex Common
Stock (the "Shares"). The Shares constitute approximately 17.0% of the issued
and outstanding shares of Cybex Common Stock based on the number of shares of
Cybex Common Stock outstanding as of March 6, 2000 (as represented by Cybex in
the Merger Agreement discussed in Items 3 and 4). Apex may be deemed to have the
shared power to vote the Shares with respect to those matters described above.
However, Apex (i) is not entitled to any rights as a stockholder of Cybex as to
the Shares and (ii) disclaims any beneficial ownership of the shares of Cybex
Common Stock which are covered by the Voting Agreements.
To Apex 's knowledge, no person listed on Schedule A has an ownership
interest in Cybex.
Set forth on Schedule B are the names of the shareholders of Cybex that
have entered into a Cybex Voting Agreement with Apex, and their present
principal occupation or employment, including the name,
SCHEDULE 13D Page 5 of 9
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principal business and address of any corporation or other organization in which
such employment is conducted, to Apex's knowledge.
To Apex's knowledge, no transactions in the class of securities
reported have been effected during the past sixty days by any person named
pursuant to Item 2.
(c) To the knowledge of Apex, no transactions in the class of
securities reported have been effected during the past sixty days by any person
named pursuant to Item 2.
(d) To the knowledge of Apex, no other person has the right to receive
or the power to direct the receipt of dividends from, or the proceeds from the
sale of, the securities of Cybex reported on herein.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDING OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Other than the Merger Agreement and the exhibits thereto, including the
voting agreements and the stock option agreements described herein, to the
knowledge of Apex, there are no contracts, arrangements, understandings or
relationships among the persons named in Item 2 and between such persons and any
person with respect to any securities of Cybex, 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.
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 Apex Inc.
and certain shareholders of Cybex Computer Products Corporation.
B. * Agreement and Plan of Reorganization, dated as of March 8, 2000,
by and among Apex Corporation, Aegean Sea Inc. and Cybex Computer
Products Corporation.
* Incorporated by reference to the 8-K filed by Apex Corporation on
March 13, 2000.
SCHEDULE 13D Page 6 of 9
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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 15, 2000 APEX INC.
By: /s/Samuel F. Saracino
---------------------------------------
Samuel F. Saracino
Vice President of Business Development,
General Counsel and Secretary
SCHEDULE 13D Page 7 of 9
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SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS OF
APEX INC.
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 Apex's knowledge, each of the individuals identified below
is a citizen of the United States.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION AND
NAME AND TITLE NAME OF EMPLOYER
- ----------------------------------------------------------------------------------------------------------------------
<S> <C>
Kevin J. Hafer Apex Inc.
Chairman of the Board, President, Chief Executive Officer and
Director
Barry L. Harmon Apex Inc.
Vice President, Chief Operating Officer and Chief Financial Officer
C. David Perry
Vice President of Worldwide Sales Apex Inc.
Samuel F. Saracino
Vice President of Business Development, General Counsel and Secretary Apex Inc.
Franz Fichtner President
Director Diamond Multimedia Europe
Edwin L. Harper President and Chief Operating Officer
Director Manufacturing Technology, Inc.
William McAleer Managing Director
Director Voyager Capital
</TABLE>
SCHEDULE 13D Page 8 of 9
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SCHEDULE B
The following table sets forth the name and present principal
occupation or employment of each Cybex shareholder that entered into a voting
agreement with Apex. Except as indicated below, the business address of each
such person is c/o Cybex Computer Products Corporation, 4991 Corporate Drive,
Huntsville, Alabama 35805.
<TABLE>
<CAPTION>
VOTING AGREEMENT STOCKHOLDER SHARES BENEFICIALLY OWNED
- ----------------------------------------------------------------------------------------------------------------
<S> <C>
Stephen F. Thornton 1,263,235
Chairman of the Board, President and Chief Executive Officer
Doyle C. Weeks 158,224
Executive Vice President, Group Business Development and Director
Douglas E. Pritchett 88,575
Senior Vice President - Finance, Chief Financial Officer, Treasurer and
Director
R. Byron Driver 107,220
Senior Vice President and Chief Operating Officer
Christopher L. Thomas 177,750
Senior Vice President - Engineering
Gary R. Johnson 223,125
Senior Vice President - Sales and Marketing
John R. Cooper 14,625
Director
Remigius G. Shatas 1,007,871
Executive Vice President - Special Projects, Secretary and Director
David S. Butler 231,462
Director
TOTAL 3,272,087
</TABLE>
SCHEDULE 13D Page 9 of 9
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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
<PAGE>
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.
-2-
<PAGE>
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.
--------------------------------------
--------------------------------------
Attention:
----------------------------
Facsimile:
----------------------------
With copies to: Wilson Sonsini Goodrich & Rosati,
Professional Corporation
5300 Carillon Point
Kirkland, Washington 98033-7356
Facsimile: (425) 576-5803
Attention: Patrick J. Schultheis, Esq.
-3-
<PAGE>
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]
-4-
<PAGE>
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:
------------------------------ -------------------------------------
Signature
Name: Name:
---------------------------- --------------------------------
Title: Title:
--------------------------- -------------------------------
-------------------------------
-------------------------------
Print Address
-------------------------------
Telephone
-------------------------------
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]
<PAGE>
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 Samuel F. Saracino and Barry L. Harmon 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
<PAGE>
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
----------------------
Signature of Shareholder:
------------------------------
Print Name of Shareholder:
-----------------------------
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]
