EXECUTION COPY
AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of April 18, 2003,
is among APROPOS TECHNOLOGY, INC., an Illinois corporation (the "Company"), and
each of the other parties identified on the signature pages hereto
(collectively, the "Specified Shareholders").
W I T N E S S E T H:
WHEREAS, the Specified Shareholders are the Beneficial Owners
(as defined below) of shares of the Common Stock (as defined below) of the
Company; and
WHEREAS, each of the Specified Shareholders and the Company's
board of directors (the "Board of Directors") have determined that it is in
their respective best interests to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. Definitions. Capitalized terms shall have the following
meanings for purposes of this Agreement (and shall apply equally to both the
singular as well as the plural forms):
(a) "13D Group" means any "group" (within the meaning
of Section 13(d) of the Exchange Act (as defined below) or any of the rules
promulgated thereunder) formed for the purpose of acquiring, holding, voting or
disposing of Voting Stock (as defined below).
(b) "Affiliate" shall have the meaning given to such
term in Rule 12b-2 under the Exchange Act.
(c) "Associate" shall have the meaning given to such
term in Rule 12b-2 under the Exchange Act.
(d) "Beneficially Own," "Beneficially Owned" or
"Beneficial Owner" shall have the meaning given to such terms in Rule 13d-3
under the Exchange Act.
(e) "Class III Director" shall mean a director of
Class III of the Board of Directors, with a term expiring at the 2006 annual
meeting of the Company's shareholders.
(f) "Common Stock" shall mean the common stock, par
value $.01 per share, of the Company.
(g) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
(h) "Majority in Interest" shall mean, with respect
to the Specified Shareholders, the Specified Shareholders who, at the time in
question, collectively own greater than 50% of the Voting Stock owned by all of
the Specified Shareholders at such time.
(i) "Person" shall mean an individual, corporation,
partnership, limited partnership, limited liability company, association, trust,
estate, or other entity or organization.
(j) "Schedule 13D" shall mean the Statement on
Schedule 13D filed by the Specified Shareholders on March 6, 2003.
(k) "Third Party" shall mean any Person other than
any Specified Shareholder or any Affiliate or Associate of a Specified
Shareholder.
(l) "Voting Stock" or "shares of Voting Stock" shall
mean any securities entitled to vote generally in the election of directors of
the Company, or any direct or indirect rights or options or warrants to acquire
any such securities or any securities convertible or exercisable into or
exchangeable for such securities, including convertible notes, whether or not
such securities are so convertible, exercisable or exchangeable at the time of
determination.
2. Representations and Warranties of the Specified
Shareholders. Each of the Specified Shareholders hereby severally represents and
warrants to the Company as follows:
(a) Such Specified Shareholder has all requisite
power and authority to execute, deliver and perform its respective obligations
under this Agreement. The execution, delivery and performance of this Agreement
by such Specified Shareholder and the consummation of the transactions
contemplated hereby have been duly authorized by all requisite corporate and
other action (if applicable) on the part of such Specified Shareholder. If such
Specified Shareholder is a natural person, such Specified Shareholder is of
sound mind and has all requisite legal capacity and no consent of such Specified
Shareholder's spouse is or will be necessary in connection with such Specified
Shareholder's execution and delivery of this Agreement or the performance by
such Specified Shareholder of his or her obligations hereunder under any
community property or other similar laws applicable to such Specified
Shareholder.
(b) This Agreement has been duly executed and
delivered by such Specified Shareholder and (assuming due and valid execution
and delivery by the Company) constitutes a legal, valid and binding obligation
of such Specified Shareholder, enforceable against such Specified Shareholder in
accordance with its terms.
(c) The execution, delivery and performance of this
Agreement by such Specified Shareholder does not and will not violate or
2
conflict with (i) if such Specified Shareholder is not a natural person, the
organizational documents of such Specified Shareholder, (ii) any law, rule,
regulation, order, judgment or decree applicable to such Specified Shareholder,
or (iii) result in any breach or violation of or constitute a default (or an
event which with notice or lapse of time or both could become a default) under
or pursuant to, any agreement, contract, commitment, understanding or
arrangement (any of the foregoing, a "Contract").
(d) No consent, approval, authorization, license or
clearance of, or filing or registration with, or notification to, any court,
legislative, executive or regulatory authority or agency (a "Governmental
Authority") is required in order to permit such Specified Shareholder to perform
its respective obligations under this Agreement, except for such as have been
obtained.
(e) The shares of Common Stock and options to
purchase Common Stock set forth on Schedule I attached hereto represent all of
the shares of Voting Stock that are Beneficially Owned or owned of record by
such Specified Shareholder on the date hereof. Such shares and options are owned
free and clear of any charge, claim, equitable interest, lien, option, pledge,
security interest, right of first refusal, encumbrance or similar restriction.
Such Specified Shareholder does not have the right to vote shares of capital
stock of the Company other than those set forth on Schedule I with respect to
such Specified Shareholder, and such Specified Shareholder has (either
individually or together with any one or more other Specified Shareholders) sole
voting power, sole power over disposition, sole power to issue instructions and
sole power to agree to the matters contemplated by this Agreement with respect
to such Specified Shareholder's shares of Voting Stock. Such Specified
Shareholder has not granted any other Person the right to vote such Specified
Shareholder's shares of Voting Stock (through a proxy, power of attorney or
otherwise), and such shares of Voting Stock are not subject to any voting trust,
understanding, instrument, obligation or agreement other than this Agreement.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Specified Shareholders as follows:
(a) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement.
The execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite corporate action on the part of the Company.
(b) This Agreement has been duly executed and
delivered by the Company and (assuming due and valid execution and delivery
hereof by the Specified Shareholders) constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
(c) The execution, delivery and performance of this
Agreement by the Company does not and will not (i) violate or conflict with (A)
the articles of incorporation or by-laws of the Company or (B) any law, rule,
3
regulation, order, judgment or decree applicable to the Company, or (ii) result
in any breach or violation of or constitute a default (or an event which with
notice or lapse of time or both could become a default) under or pursuant to,
any Contract.
(d) No consent, approval, authorization, license or
clearance of, or filing or registration with, or notification to, any
Governmental Authority, is required in order to permit the Company to perform
its obligations under this Agreement, except for such as have been obtained.
4. Nomination of Directors. (a) The Company shall cause to be
nominated for election as a Class III Director to the Board of Directors at the
2003 annual meeting of the Company's shareholders, each of (i) Kevin G. Kerns
(the "Company Nominee") and (ii) Donald A. DeLoach, as the designee of the
Specified Shareholders (the "Shareholder Nominee" and, together with the Company
Nominee, the "Nominees"). The Company shall (i) include the Nominees in the
Company's proxy statement for the 2003 annual meeting of the Company's
shareholders, and shall recommend that the Company's shareholders vote in favor
of the election of the Nominees or (ii) alternatively if such Nominees are not
elected at such meeting on or before July 31, 2003, take such actions as shall
be necessary (including through the filling of a vacancy) to cause each Nominee
to be appointed to the Board of Directors on or before July 31, 2003.
(b) It is understood and agreed that nothing in this
Agreement shall entitle the Specified Shareholders to any right to nominate,
designate or elect a director to the Board of Directors at any time other than
the 2003 annual meeting of the Company's shareholders.
(c) Each Specified Shareholder shall terminate,
effective immediately, any efforts to cause any nominees to be elected to the
Board of Directors through a proxy solicitation or a consent solicitation with
respect to the 2003 annual meeting of the Company's shareholders or otherwise
(except as permitted by clause (ii) of the last sentence of Section 5) during
the term of this Agreement. Each Specified Shareholder agrees to amend, promptly
after the execution hereof, the Schedule 13D to reflect the matters contemplated
by this Agreement. The form of such amendment to the Schedule 13D is attached
hereto as Schedule II and is acceptable in form and substance to the Company.
(d) The Company shall not take any action to remove
the Shareholder Nominee from his position as a director without cause prior to
the conclusion of his term.
(e) The Specified Shareholders may present or suggest
by written notice to the Company potential candidates for consideration by the
Board of Directors to fill any vacancy created by reason of an increase in the
number of directors on the Board of Directors (a "Board Vacancy"); provided,
however, that the Board of Directors shall not be bound or obligated in any way
to fill any Board Vacancy with any potential candidate presented or suggested by
the Specified Shareholders.
4
(f) In the event that (i) the Company increases the
size of the Board of Directors to more than seven or (ii) any person chosen by
the Board of Directors to fill a Board Vacancy shall serve as a member of any
class of director other than as a Class I Director, then a Majority in Interest
of the Specified Shareholders may terminate this Agreement on or after the day
after the occurrence of such event by providing written notice of termination to
the Company; provided, however, that any early termination of this Agreement
pursuant to this Section 4(f) shall not terminate the Company's obligations
under Section 4(a).
(g) The Company shall present by written notice to
the Specified Shareholders any potential candidates that the Company proposes to
fill a Board Vacancy. John M. Kratky III, as the representative of the Specified
Shareholders, may meet with and interview such potential candidates. If within
ten business days from the date of such notice, a Majority in Interest of the
Specified Shareholders fails to give the Company notice in writing that a
Majority in Interest of the Specified Shareholders objects to the Company's
potential candidate (an "Objection Notice"), then such potential candidate shall
be deemed reasonably acceptable to a Majority in Interest of the Specified
Shareholders. Any such Objection Notice (i) may only be given if the Company's
potential candidate is not reasonably acceptable to a Majority in Interest of
the Specified Shareholders and (ii) shall specify the reasons the Company's
potential candidate was not reasonably acceptable to a Majority in Interest of
the Specified Shareholders. In the event the Board of Directors fills a Board
Vacancy, through appointment or election at a special meeting of the
shareholders of the Company, with a candidate proposed by the Company that is
not reasonably acceptable to a Majority in Interest of the Specified
Shareholders, then this Agreement shall terminate on the day after the filling
of such Board Vacancy with such candidate.
5. Standstill. Each of the Specified Shareholders hereby
severally agrees that neither it nor any Affiliate of such Specified Shareholder
will singularly or together with any other Person, directly or indirectly, in
each case unless specifically requested to do so in writing in advance by the
Board of Directors:
(a) Acquire or offer, make a proposal or agree to
acquire, directly or indirectly (whether publicly or otherwise), in any manner,
any assets of the Company or its subsidiaries or any Voting Stock or any equity
securities of the Company's subsidiaries (or Beneficial Ownership thereof),
other than the Voting Stock currently owned by such Specified Shareholder as set
forth in Schedule I hereof, except Voting Stock issued upon the exercise of
options listed on Schedule I hereof or Voting Stock acquired pursuant to a stock
split, share dividend, recapitalization, reclassification or similar transaction
effected by or with the approval of the Board of Directors.
(b) Make or in any way propose or participate in any
"solicitation" of "proxies" to vote (as such terms are defined in Rule 14a-1
under the Exchange Act), solicit any consent, or communicate with, or seek to
advise or influence any Person (other than another Specified Shareholder) with
respect to the solicitation, consenting or voting of any Voting Stock, in
5
opposition to any Approved Matter or in favor of any Unapproved Matter, or
become a "participant" (as defined in Instruction 3 to Item 4 of Schedule 14A
under the Exchange Act) in any contested election of directors of the Company,
or threaten or propose to do the same or publicly announce an intention to do
the same. The term "Approved Matter" means (i) any amendment or repeal of any
provision of the amended and restated articles of incorporation or the amended
and restated by-laws of the Company, (ii) the election or removal of any
director (other than the Shareholder Nominee in the manner provided for in this
Agreement) to or from the Board of Directors and/or (iii) any matter that would
be prohibited by this Section 5, in any such case that has been recommended or
approved by the Board of Directors. The term "Unapproved Matter" means (i) any
amendment or repeal of any provision of the amended and restated articles of
incorporation or the amended and restated by-laws of the Company, (ii) the
election or removal of any director to or from the Board of Directors, (iii) any
business combination (as described in clauses (i) through (viii), inclusive, of
Section 5(h)) involving or relating to the Company or any of its subsidiaries
and/or (iv) any matter that would be prohibited by this Section 5, in any such
case that has not been recommended or approved by the Board of Directors.
(c) Form, be a member of, join, participate in any
manner or encourage the formation of any 13D Group (other than the group
consisting solely of the Specified Shareholders disclosed in the Schedule 13D)
with respect to any Voting Stock or the acquisition of any assets of the Company
or any of its subsidiaries.
(d) Deposit any Voting Stock into a voting trust or
subject any Voting Stock to a Contract with respect to the voting thereof or
grant any proxy or power of attorney with respect to any Voting Stock (other
than this Agreement) to anyone other than representatives of the Board of
Directors.
(e) Except as permitted by Section 4(e), seek
election of, or seek to place, any person (other than the Shareholder Nominee)
as a director on the Board of Directors or seek the removal of any member of the
Board of Directors.
(f) Call or seek to have called any meeting of the
shareholders of the Company, or initiate or propose to initiate any written
consent solicitation, other than through participation as a director of the
Company and with the prior approval of the Board of Directors.
(g) Initiate, propose or otherwise solicit
shareholders of the Company for the approval of any shareholder proposal with
respect to the Company as described in Rule 14a-8 under the Exchange Act, or
induce or attempt to induce any Person to initiate any such shareholder
proposal, in opposition to any Approved Matter or in favor of any Unapproved
Matter.
(h) Without the prior written permission of the Board
of Directors, directly or indirectly, solicit, seek to effect, negotiate with,
enter into discussions with or provide any non-public information to any Person
with respect to, or propose to enter into, make any statement or proposal,
6
whether written or oral, or otherwise make (or take any action which might
require) any public announcement or proposal whatsoever with respect to (i) a
merger, consolidation, share exchange, dual-listed structure or acquisition of
the Company or any other business combination involving the Company or any of
its subsidiaries, (ii) the sale, lease, exchange, pledge, mortgage or transfer
(including through any arrangement having substantially the same economic effect
as a sale of assets) of all or a substantial portion of the assets of the
Company and its subsidiaries, (iii) the purchase of equity securities of the
Company or any of its subsidiaries, whether by tender offer, exchange offer or
otherwise, (iv) the liquidation or dissolution of the Company, (v) the
recapitalization or reorganization of the Company, (vi) the issuance by the
Company of any equity securities as consideration for the assets or securities
of another Person or (vii) any other extraordinary business transaction with
respect to the Company or any of its subsidiaries; provided, however, that
nothing in this paragraph (h) shall restrict the Specified Shareholders from
opposing any transaction referred to in this paragraph (h), whether or not
approved by the Board of Directors.
(i) Otherwise act, alone or in concert with others,
to seek to control, or alter the composition or size of, the Board of Directors
or the management of the Company.
(j) Sell, assign, exchange, pledge, dispose of or
transfer (each, a "Transfer") any securities of the Company to any Person;
provided that the limitation contained in this Section 5(j) shall not apply to
Transfers by a Specified Shareholder (i) to an Affiliate of such Specified
Shareholder who is or agrees to become bound by this Agreement prior to such
Transfer, (ii) that have been consented to in writing by the Company in advance
and without any violation of any provisions of this Section 5 by any Specified
Shareholders or their respective Affiliates, (iii) pursuant to a tender offer or
exchange offer made by a Third Party, (iv) pursuant to a merger, consolidation
or reorganization to which the Company is a party that is recommended by the
Board of Directors, (v) pursuant to the laws of descent and inheritance, or (vi)
pursuant to public sales in the open market in ordinary broker transactions as
contemplated by Rule 144 under the Securities Act of 1933, as amended.
(k) Voluntarily take any actions that would cause any
of the Specified Shareholders to be members of the same 13D Group as any other
Persons (or their permitted assigns).
(l) Disclose any intention, plan or arrangement
inconsistent with this Section 5.
(m) Instigate, assist, advise or encourage, or enter
into any arrangements with, any Third Party to do any of the actions described
in this Section 5.
(n) Request the Company or its Board of Directors,
directly or indirectly, to amend or waive any provision of this Section 5.
7
Notwithstanding anything in this Section 5 to the
contrary, this Section 5 shall not prohibit or restrict any Specified
Shareholder from (i) contacting or having discussions with any member of the
Board of Directors concerning the business, financial condition or results of
operations of the Company or (ii) notifying the Company (during the time periods
specified in, and otherwise in compliance with, Section 2.12 of the amended and
restated by-laws of the Company) of its intention to nominate one or more
candidates for the Board of Directors or propose or initiate a proposal for
inclusion in the Company's proxy statement under Rule 14a-8 of the Exchange Act
or otherwise make a proposal, in each case for the 2004 annual meeting of the
Company's shareholders.
6. Voting; Irrevocable Proxy. (a) Notwithstanding anything in
this Agreement to the contrary, each Specified Shareholder shall at the 2003
annual meeting of the shareholders (whether or not adjourned or postponed) of
the Company appear at such meeting or otherwise cause such Specified
Shareholder's shares of Owned Voting Stock to be counted as present thereat for
purposes of establishing a quorum and vote (or cause to be voted), in person or
by proxy, any and all shares of Owned Voting Stock in favor of the election of
the Nominees as Class III Directors. The term "Owned Voting Stock" shall mean,
with respect to each Specified Shareholder, shares of Voting Stock (i) that are
Beneficially Owned or held of record by such Specified Shareholder or its
Affiliates or (ii) over which such Specified Shareholder or its Affiliates has
the right to vote or direct the voting.
(b) In the event that any Specified Shareholder shall
fail at the 2003 annual meeting of the shareholders (whether or not adjourned or
postponed) of the shareholders of the Company to vote with respect to any such
Specified Shareholder's Owned Voting Stock in favor of the election of the
Nominees as Class III Directors as agreed by such Specified Shareholder in
Section 6(a), such Specified Shareholder hereby irrevocably grants to and
appoints the Company (and any officer of the Company or each of them
individually), such Specified Shareholder's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place, and stead of such
Specified Shareholder, to vote, act by written consent or grant a consent, proxy
or approval in respect of such Owned Voting Stock with respect to such vote or
action by written consent in a manner consistent with Section 6(a) as agreed by
such Specified Shareholder in this Agreement. Each Specified Shareholder hereby
affirms that any such irrevocable proxy set forth in this Section 6 is given to
secure the obligations of such Specified Shareholder under this Agreement. Each
such Specified Shareholder hereby further affirms that any such proxy hereby
granted shall be irrevocable and shall be deemed coupled with an interest, in
accordance with Section 5/7.50(c) of the Illinois Business Corporation Act (the
"IBCA"). Each Specified Shareholder agrees to execute and deliver any further
powers of attorney, consents, proxies or other agreements necessary or
appropriate to give effect to this Section 6. This Agreement constitutes a
voting agreement created under Section 5/7.70 of the IBCA.
7. Additional Agreements. The provisions of this Agreement
shall apply, with respect to each Specified Shareholder, to any Voting Stock
acquired by such Specified Shareholder after the date hereof by reason of any
acquisition, purchase, stock dividend, stock split, recapitalization,
reclassification or otherwise. Each Specified Shareholder agrees that it will,
8
and will cause its Affiliates to, take all actions necessary to give effect to
the provisions of this Agreement and to perform its obligations hereunder. No
Specified Shareholder shall, directly or indirectly, enter into any Contract or
take any other action that is inconsistent or in conflict with the terms of this
Agreement.
8. Enforcement. Each of the Specified Shareholders, on the one
hand, and the Company, on the other, acknowledge and agree that irreparable
damage would occur if any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. Accordingly,
the parties will be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically its provisions in any
court having jurisdiction, this being in addition to any other remedy to which
they may be entitled at law or in equity.
9. Entire Agreement; Waivers. This Agreement constitutes the
entire agreement among the parties hereto pertaining to the subject matter
hereof and supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties with
respect to such subject matter. No waiver of any provision of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), shall constitute a continuing waiver unless otherwise
expressly provided, or shall be effective unless in writing and executed (i) in
the case of a waiver by the Company, by the Company and (ii) in the case of a
waiver by the Specified Shareholders, by the Specified Shareholders against
which enforcement of such waiver is sought.
10. Amendment or Modification. The parties hereto may not
amend or modify this Agreement except in such manner as may be agreed upon by a
written instrument executed by the Company and the Specified Shareholders
against which enforcement of such amendment is sought.
11. Successors and Assigns. All the terms and provisions of
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors, and each successor shall be
deemed to be a party hereto for all purposes hereof. The terms and provisions of
this Agreement shall not be binding upon any transferee (other than a Specified
Shareholder or a Affiliate of a Specified Shareholder) that purchases any
securities subject to this Agreement in accordance with Section 5(k) and
otherwise without violation of any provision of this Agreement. A Specified
Shareholder may not assign or transfer any of its rights or obligations
hereunder (whether to a transferee of shares of Voting Stock or otherwise)
without the prior written consent of the Company, and no transfer or assignment
by any party shall relieve such party of any of its obligations hereunder.
12. Severability. If any provision of this Agreement is held
by a court of competent jurisdiction to be unenforceable, the remaining
provisions shall remain in full force and effect. It is declared to be the
intention of the parties that they would have executed the remaining provisions
without including any that may be declared unenforceable.
9
13. Headings; Interpretation. Descriptive headings are for
convenience only and will not control or affect the meaning or construction of
any provision of this Agreement. The words "include," "includes," and
"including" shall be deemed to be followed by the phrase "without limitation."
Words denoting gender shall include all genders.
14. Counterparts. For the convenience of the parties, any
number of counterparts of this Agreement may be executed by the parties, and
each such executed counterpart will be an original instrument.
15. Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if in writing (including
telecopy or similar teletransmission), addressed as follows:
If to the Company, to:
Apropos Technology, Inc.
One Tower Lane
28th Floor
Oakbrook Terrace, Illinois 60181
Attention: Kevin G. Kerns
Telephone No.: (630) 472-9600
Facsimile No.: (630) 472-9745
with a copy to:
McDermott, Will & Emery
50 Rockefeller Plaza
New York, New York 10020
Attention: Spencer D. Klein, Esq.
Telephone No.: (212) 547-5511
Facsimile No.: (212) 547-5444
If to the Specified Shareholders, to:
Patrick K. Brady
567 Deer Path Road
Glen Ellyn, Illinois 60137
Facsimile No.: (630) 858-9171
with a copy to:
Gardner Carton & Douglas LLC
191 North Wacker Drive
Suite 3700
Chicago, Illinois 60606
Attention: Charles R. Manzoni, Jr., Esq.
Telephone No.: (312) 569-1000
Facsimile No.: (312) 569-3000
10
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) in the case of any notice or communication sent other than
by mail, on the date actually delivered to such address (evidenced, in the case
of delivery by overnight courier, by confirmation of delivery from the overnight
courier service making such delivery, and in the case of a telecopy, by receipt
of a transmission confirmation form or the addressee's confirmation of receipt),
or (b) in the case of any notice or communication sent by mail, three business
days after being sent, if sent by registered or certified mail, with first-class
postage prepaid. Each of the parties hereto shall be entitled to specify a
different address by giving notice as aforesaid to each of the other parties
hereto.
16. Termination. Unless earlier terminated pursuant to Section
4(e), this Agreement shall remain in full force and effect from the date hereof
until December 31, 2003. Notwithstanding anything in this Agreement to the
contrary, the provisions of Sections 8 through 18, inclusive, shall survive any
termination of this Agreement.
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic substantive law of the State of
Illinois, without giving effect to any choice or conflict of law provision or
rule that would cause the application of the law of any other jurisdiction.
18. Exclusive Submission to Jurisdiction. Any disputes arising
out of or in connection with this Agreement shall be adjudicated in a United
States District Court in Illinois or in a court of competent civil jurisdiction
in the State of Illinois. Each party hereto irrevocably submits to the personal
jurisdiction of such courts for the purposes of any such suit, action,
counterclaim or proceeding arising out of this Agreement (collectively, a
"Suit"). Each of the parties hereto hereby waives and agrees not to assert by
way of motion, as a defense or otherwise in any such Suit, any claim that it is
not subject to jurisdiction of the above courts, that such Suit is brought in an
inconvenient forum, or the venue of such Suit is improper; provided, however,
that nothing herein shall be construed as a waiver of any right that any party
hereto may have to remove a Suit from a court sitting in the State of Illinois
to a United States District Court in Illinois. Each of the parties hereby agrees
that service of all writs, process and summonses in any Suit may be made upon
such party by mail to the address as provided in this Agreement. Nothing herein
shall in anyway be deemed to limit the ability of any party to serve any such
writs, process or summonses in any other matter permitted by applicable law.
11
IN WITNESS WHEREOF, the Company and the Specified Shareholders
have caused this Agreement to be executed as of the date first above written by
their respective duly authorized representatives.
The Company: APROPOS TECHNOLOGY, INC.
By: /s/ Kevin G. Kerns
------------------------------------
Name: Kevin G. Kerns
Title: Chief Executive Officer and
President
The Specified Shareholders: /s/ Patrick K. Brady
--------------------
PATRICK K. BRADY
/s/ Catherine R. Brady
--------------------
CATHERINE R. BRADY
BRADY FAMILY LIMITED PARTNERSHIP
By: /s/ Patrick K. Brady
------------------------------------
Name: Patrick K. Brady
Title: General Partner
12
VALOR CAPITAL MANAGEMENT, L.P.
By: Kratky Management, LLC, General
Partner
By: /s/ John M. Kratky III
------------------------------------
Name: John M. Kratky III
Title: Managing Member
KRATKY MANAGEMENT, LLC
By: /s/ John M. Kratky III
------------------------------------
Name: John M. Kratky III
Title: Managing Member
/s/ John M. Kratky III
--------------------
JOHN M. KRATKY III
/s/ William W. Bach
--------------------
WILLIAM W. BACH
BACH FAMILY L.P.
By: /s/ William W. Bach
------------------------------------
Name: William W. Bach
Title: General Partner
13
SCHEDULE I
- --------------------------------------------- -------------------- --------------------- ---------------------------------
Shares Owned Shares Owned Options, Rights or Warrants to
Specified Shareholder Directly Beneficially* Purchase Shares
- --------------------------------------------- -------------------- --------------------- ---------------------------------
Patrick K. Brady 1,145,984 1,680,984 10,000
- --------------------------------------------- -------------------- --------------------- ---------------------------------
Catherine R. Brady 612,110 1,137,110 0
- --------------------------------------------- -------------------- --------------------- ---------------------------------
Brady Family Limited Partnership 525,000 525,000 0
- --------------------------------------------- -------------------- --------------------- ---------------------------------
Valor Capital Management, L.P. 2,542,300 2,542,300 0
- --------------------------------------------- -------------------- --------------------- ---------------------------------
Kratky Management, LLC 0 2,542,300 0
- --------------------------------------------- -------------------- --------------------- ---------------------------------
John M. Kratky III 0 2,542,300 0
- --------------------------------------------- -------------------- --------------------- ---------------------------------
William W. Bach 504,417 539,417 0
- --------------------------------------------- -------------------- --------------------- ---------------------------------
Bach Family L.P. 35,000 35,000 0
- --------------------------------------------- -------------------- --------------------- ---------------------------------
*Excluding shares deemed to be Beneficially Owned as a result of the formation of the 13D Group constituted by the
Specified Shareholders as disclosed in the Schedule 13D.
14
SCHEDULE II
[Amendment to Schedule 13D]