VOTING AGREEMENT
Published on June 23, 2008
Exhibit 99.1
VOTING AGREEMENT
This Voting Agreement is dated as of June 18, 2008, among Deluxe Corporation, a Minnesota
corporation (Parent), and the persons listed on Annex A hereto, each of whom is a
stockholder (a Stockholder) of Hostopia.com Inc., a Delaware corporation (the
Company).
Recitals
A. Parent, Deluxe Business Operations, Inc., a Delaware corporation and wholly owned
subsidiary of Parent (Operating Sub), Helix Merger Corp., a Delaware corporation and
wholly owned subsidiary of Operating Sub (Sub), and the Company are entering into an
Agreement and Plan of Merger dated as of the date hereof (the Merger Agreement), pursuant
to which Sub will merge (the Merger) with and into the Company and the existing
stockholders of the Company will receive cash from Parent in exchange for their shares of capital
stock of the Company (Company Capital Stock).
B. The execution and delivery of this Agreement is a condition precedent to Parent, Operating
Sub and Sub entering into the Merger Agreement.
C. Capitalized terms used but not otherwise defined herein have the meanings ascribed to them
in the Merger Agreement.
Therefore, the parties hereby agree as follows:
1. Voting; Proxy.
(a) During the term of this Agreement, at each meeting of the Companys stockholders
convened, and at any adjournment or postponement thereof, to consider and vote upon the
approval of the Merger Agreement and the Merger (or as a part of any such action by written
consent of the stockholders in lieu of a meeting), each Stockholder agrees to vote all
shares of Company Capital Stock owned of record by such Stockholder as of the record date
for the vote or written consent (including, any shares of Company Capital Stock over which
the Stockholder has voting power, by contract or otherwise, except for any shares for which
the Stockholders sole voting power results from the Stockholder having been named as proxy
pursuant to any proxy solicitation conducted by the Companys board of directors) (i) in
favor of the approval and adoption of the Merger Agreement and the Merger; (ii) against
approval of any proposal made in opposition to or in competition with the consummation of
the Merger and the Merger Agreement; and (iii) against any other proposal or action that
would, or would reasonably be expected to, prohibit or discourage the Merger.
(b) Each Stockholder has executed and delivered to Parent an irrevocable proxy in the
form of Annex B.
(c) Each Stockholder will be present, in person or by proxy, at all meetings of
stockholders of the Company so that all shares of Company Capital Stock are counted for the
purposes of determining the presence of a quorum at such meetings.
(d) This Agreement is intended to bind each Stockholder only with respect to the
specific matters set forth herein, and will not prohibit a Stockholder from acting in
accordance with such Stockholders fiduciary duties as an officer or director of the
Company.
2. No Solicitation; No Transfer.
(a) Until the earlier of the Effective Time or the termination of this Agreement
pursuant to its terms, no Stockholder will, nor will any Stockholder authorize or permit any
of the Stockholders representatives to, and each Stockholder will instruct each such
representative not to, directly or indirectly, take any actions prohibited by Section 5.3 of
the Merger Agreement, as if such Stockholder were a party thereto.
(b) During the term of this Agreement, none of the Stockholders may sell, pledge,
assign, or otherwise transfer, or authorize, propose, or agree to the sale, pledge,
assignment, or other transfer of, any of such Stockholders shares of Company Capital Stock,
unless (a) at least two business days written notice of the proposed transfer is provided
to Parent and (b) the intended transferee agrees in writing to be bound by this Agreement as
if such person were such Stockholder.
3. Representations and Warranties. Each Stockholder represents and warrants to Parent
as follows:
(a) Authority. The Stockholder has the requisite power and authority to enter into
this Agreement, to perform the Stockholders obligations hereunder, and to consummate the
transactions contemplated hereby. No other proceedings or actions on the part of the
Stockholder are necessary to authorize the execution, delivery, or performance of this
Agreement or the consummation of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Stockholder and constitutes a valid and binding
obligation, enforceable against the Stockholder in accordance with its terms, except as the
enforceability hereof may be limited by the Enforcement Limitations.
(b) Title; Authority to Vote Shares. The Stockholder is the sole owner of record and
has sole voting power over the number of shares of Company Capital Stock set forth opposite
the Stockholders name on Annex A, and such shares are held by the Stockholder free
and clear of all Encumbrances that would limit or otherwise affect the Stockholders voting
rights with respect to the Company Capital Stock set forth on Annex A or otherwise
prevent the Stockholder from performing the Stockholders obligations hereunder.
(c) Noncontravention. Neither the Stockholders execution and delivery of this
Agreement, nor the Stockholders consummation of any of the transactions contemplated
hereby, nor the Stockholders compliance with any of the provisions hereof, will violate,
conflict with, or result in a breach of, or constitute a default (or an event that, with
notice or lapse of time or both, would constitute a default) under, or result in the
creation of any Encumbrance upon any of the Stockholders shares of Company Capital Stock
under, any
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agreement or instrument to which the Stockholder is a party or any statute, rule,
regulation, judgment, order, decree, or other legal requirement applicable to the
Stockholder.
(d) Litigation. (i) There is no claim, action, proceeding, or investigation pending
or, to the Stockholders knowledge, threatened against or relating to the Stockholder before
any Governmental Authority, and (ii) the Stockholder is not subject to any outstanding
order, writ, injunction, or decree, that, in the case of clause (i) or (ii), if determined
adversely, would limit or otherwise affect the Stockholders voting rights with respect to
the Company Capital Stock set forth on Annex A or otherwise prohibit the Stockholder
from performing the Stockholders obligations hereunder.
(e) Reliance. Each Stockholder understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon such Stockholders execution, delivery, and
performance of this Agreement. Each Stockholder acknowledges that its irrevocable proxy is
granted in consideration of the execution and delivery of the Merger Agreement by Parent.
4. Termination. This Agreement shall terminate automatically and without further
action on behalf of any party at the earlier of (a) the Effective Time or (b) the date and time, if
any, that the Merger Agreement is terminated pursuant to its terms. In the event of a termination
of this Agreement pursuant to this Section 4, this Agreement shall forthwith become void and there
shall be no liability or obligation on the part of any party, but nothing herein shall release the
Stockholder for any breach of this Agreement. If this Agreement is terminated, the proxy of the
Stockholder delivered under Section 1(b) hereof shall also terminate and be of no further force or
effect, and Parent shall promptly return the proxy to the Stockholder.
5. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally, effective when delivered, or by express
courier service, effective one business day after delivery to such courier, or by telecopy,
effective when transmitted and a confirmation is received, provided the same is on a
business day, and, if not, on the next business day, to the parties at the following
addresses (or at such other address for a party or to such other persons attention as shall
be specified by like notice):
If to a Stockholder: to the address listed for the Stockholder on Annex
A.
If to Parent, to:
Deluxe Corporation
3680 Victoria St. N.
Shoreview, MN 55126
Facsimile: (651) 787-2749
Attention: General Counsel
3680 Victoria St. N.
Shoreview, MN 55126
Facsimile: (651) 787-2749
Attention: General Counsel
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(b) Headings. The headings contained in this Agreement are solely for the purpose of
reference, and are not part of the agreement of the parties and shall not affect in any way
the meaning or interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
(d) Entire Agreement. This Agreement (along with the documents and instruments
referred to herein, including the Merger Agreement), embody the entire agreement and
understanding of the parties hereto in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings among the parties with respect
to such subject matter.
(e) Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provisions of this
Agreement. Whenever possible, each provision of this Agreement will be interpreted in such
manner as to be effective and valid under Applicable Law.
(f) Governing Law. This Agreement shall be governed by the laws of the State of
Delaware, without regard to its conflict-of-laws rules. The parties hereto expressly
consent to jurisdiction and venue for any litigation arising out of this Agreement in the
Chancery Court in the State of Delaware.
(g) Assignment. Neither this Agreement nor any of the rights, interests, or
obligations hereunder may be assigned by any party, whether by operation of law or
otherwise, without the express written consent of the other party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable
by the parties and their respective successors, heirs, legal representatives, and permitted
assigns. The representations, agreements, and obligations of the Stockholder contained
herein shall survive the death or incapacity of the Stockholder and shall be binding upon
the heirs, personal representatives, successors, and assigns of the Stockholder.
(h) Remedies. In addition to all other remedies available, the parties agree that, in
the event of a breach by a party of any of its obligations hereunder, the non-breaching
party shall be entitled to specific performance or injunctive relief.
(i) Defined Terms. All capitalized terms used but not defined herein have the meanings
given them in the Merger Agreement.
(j) Waiver. Prior to the Closing Date, any provision of this Agreement may be waived
by the party or parties benefited by the provision. Waiver of any term or condition of this
Agreement (including any extension of time required for performance) will only be effective
if in writing and will not be construed as a waiver of any subsequent breach or waiver of
the same term or condition, or a waiver of any other term or condition of this
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Agreement. No delay on the part of any party in exercising any right, power or privilege
hereunder will operate as a waiver thereof.
(k) Further Assurances. From time to time, at Parents request and without further
consideration, each Stockholder shall execute and deliver such additional documents and take
all such further lawful action as may be reasonably necessary to consummate and make
effective, in the most expeditious manner practicable, the transactions contemplated by this
Agreement.
[Signature Page Follows]
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Each of the parties has signed this Agreement as of the date first written above.
DELUXE CORPORATION |
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By: | /s/ Lee J. Schram | |||
Lee J. Schram | ||||
Chief Executive Officer | ||||
[Signature Page to Voting Agreement]
STOCKHOLDERS
By: | /s/ William Campbell | |||||
William Campbell | ||||||
By: | /s/ Colin Campbell | |||||
Colin Campbell | ||||||
By: | /s/ Michael Cytrynbaum | |||||
Michael Cytrynbaum | ||||||
By: | /s/ Matthew George | |||||
Mathew George | ||||||
By: | /s/ Robert Kidd | |||||
Robert Kidd | ||||||
By: | /s/ Randall Bast | |||||
Randall Bast | ||||||
By: | /s/ Christopher Scatliff | |||||
Christopher Scatliff |
[Signature Page to Voting Agreement]
STOCKHOLDERS (continued)
1999 WILLIAM CAMPBELL FAMILY TRUST |
||||
By: | /s/ William Campbell | |||
Name: | William Campbell | |||
Title: | Trustee | |||
1555706 ONTARIO LIMITED |
||||
/s/ William Campbell | ||||
By: | /s/ Colin Campbell | |||
Name: | William Campbell and Colin Campbell | |||
Title: | Directors | |||
TELUS CORPORATION |
||||
By: | /s/ Robert Gardner | |||
Name: | Robert Gardner | |||
Title: | Senior Vice President & Treasurer | |||
[Signature Page to Voting Agreement]
Annex A
Number of Shares of | ||||
Name and Address | Common Stock | |||
William Campbell*
|
869,806 | |||
Colin Campbell*
|
1,154,006 | |||
Michael Cytrynbaum*
|
0 | |||
Mathew George*
|
0 | |||
Robert Kidd*
|
40,000 | |||
Randall Bast*
|
25,000 | |||
Christopher Scatliff*
|
83,100 | |||
1999 William Campbell Family Trust*
|
264,000 | |||
1555706 Ontario Limited*
|
851,063 | |||
TELUS Corporation 12 3777 Kingsway Burnaby, B.C. Canada V5H 3Z7 |
851,063 |
* | Address is: c/o Hostopia.com Inc., 5915 Airport Road, 11th Floor, Mississauga, Ontario, Canada L4V 1T1. |
Annex B
IRREVOCABLE PROXY
The undersigned, revoking all prior proxies, hereby constitutes and appoints each of Lee J.
Schram and Anthony C. Scarfone the true and lawful attorney, with full power of substitution, for
and in the name of the undersigned to vote, at any time before the Termination, all shares of
capital stock of Hostopia.com Inc., a Delaware corporation (the Company), or other shares
of capital stock of the Company entitled to vote on the business to be transacted, (a) registered
in the name of the undersigned at the record date for such vote or written consent, or (b) except
as set forth below, over which the undersigned has voting power by power of attorney or other
contractual arrangements with the owner of record (collectively, the Shares), at any
meeting of the stockholders of the Company, and at all adjournments thereof, and pursuant to any
consent of the stockholders in lieu of a meeting or otherwise, (i) in favor of the approval and
adoption of the Merger Agreement and the Merger; (ii) against approval of any proposal made in
opposition to or in competition with the consummation of the Merger and the Merger Agreement; and
(iii) against any other proposal or action that would, or would reasonably be expected to, prohibit
or discourage the Merger.
This Proxy is given with respect to the approval of the Agreement and Plan of Merger among
Deluxe Corporation, a Minnesota corporation (Parent), Deluxe Business Operations, Inc., a
Delaware corporation and wholly owned subsidiary of Parent (Operating Sub), Helix Merger
Corp., a Delaware corporation and wholly owned subsidiary of Operating Sub, and the Company, dated
as of June 18, 2008 (the Merger Agreement) and the Merger contemplated thereunder (the
Merger). This Proxy is given to induce Parent to enter into the Merger Agreement, is
coupled with an interest, and is irrevocable; provided, however, that this Proxy shall terminate
automatically and without further action on behalf of the undersigned upon the termination of the
Voting Agreement, dated as of the date hereof, between Parent and the undersigned (the
Termination).
Notwithstanding clause (b) of the first paragraph above, this Proxy shall not include any
shares of capital stock of the Company that are not subject to clause (a) of the first paragraph
above for which the undersigneds only voting power results from the undersigned having been named
as proxy pursuant to any proxy solicitation conducted by the Companys board of directors in
connection with a meeting of the Stockholders of the Company and over which the undersigned does
not otherwise have voting power with respect thereto.
The undersigned hereby ratifies and confirms all that the proxies named herein may lawfully do
or cause to be done by virtue hereof.
The undersigned has executed this Proxy as of this 18th day of June, 2008.
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