Exhibit 2
COMPANY VOTING AGREEMENT AND IRREVOCABLE PROXY
This Voting Agreement and irrevocable proxy (this "Agreement") is made and
entered into as of April 9, 2001 (the "Effective Date"), by and between Kana
Communications, Inc., a Delaware corporation ("Parent"), and the undersigned
stockholder ("Stockholder") of Broadbase Software, Inc., a Delaware corporation
("Company").
RECITALS
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A. Concurrently with the execution of this Agreement, Parent, Company and
Arrow Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent ("Merger Sub"), are entering into an Agreement and Plan of Merger of even
date herewith (as such agreement may hereafter be amended from time to time, the
"Merger Agreement") which provides for the merger of Merger Sub with and into
Company (the "Merger"). Pursuant to the Merger, shares of common stock of
Company, par value $0.001 per share ("Company Common Stock") will be converted
into shares of common stock of Parent, par value $0.001 per share ("Parent
Common Stock") on the basis described in the Merger Agreement; capitalized terms
that are used in this Agreement and are not otherwise defined herein will have
the same meanings that such terms have in the Merger Agreement.
B. Stockholder owns of record or has the power to direct the voting with
respect to such number of Shares (as defined herein) as are indicated on the
final page of this Agreement;
C. Stockholder is entering into this Agreement as a material inducement
and consideration to Parent to enter into the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
1. Definitions.
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(a) "Expiration Date" means the earlier to occur of (i) the Effective
Time of the Merger; and (ii) such time as the Merger Agreement may be terminated
in accordance with its terms.
(b) "Shares" means all issued and outstanding shares of Company Common
Stock owned of record by Stockholder or over which Stockholder exercises voting
power, in each case, as of the record date for persons entitled (i) to receive
notice of, and to vote at the meeting of the stockholders of Company called for
the purpose of voting on the matters referred to in Section 2.1, or (ii) to take
action by written consent of the stockholders of Company with respect to the
matters referred to in Section 2.1; provided, however, that any shares of
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capital stock of Company that Stockholder purchases or with respect to which
Stockholder otherwise exercises voting power after the execution of this
Agreement and prior to the Expiration Date shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Shares on
the date hereof.
(c) "Transfer" with respect to any security means to directly or
indirectly: (i) sell, pledge, encumber, transfer or dispose of, or grant an
option with respect to, such security or any interest in such security; or (ii)
enter into an agreement or commitment providing for the sale, pledge,
encumbrance, transfer or disposition of, or grant of an option with respect to,
such security or any interest therein.
2. Agreement to Vote.
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2.1 Voting Agreement. Stockholder hereby covenants and agrees that,
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prior to the Expiration Date, at any meeting (whether annual or special and
whether or not an adjourned or postponed meeting) of the stockholders of
Company, however called, and in any action taken by the written consent of
stockholders of Company without a meeting, unless otherwise directed in writing
by Parent, Stockholder will appear at the meeting or otherwise cause the Shares
to be counted as present thereat for purposes of establishing a quorum and vote
or consent for cause to be voted or consented the Shares:
(a) in favor of the Merger, the execution and delivery by
Company of the Merger Agreement and the adoption and approval of the terms
thereof and in favor of the other actions contemplated by the Merger Agreement
and, to the extent that a vote is solicited in connection with this Voting
Agreement or the Merger Agreement, any other action required in furtherance
hereof or thereof;
(b) against any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of Company in the
Merger Agreement or that would preclude fulfillment of a condition precedent
under the Merger Agreement to Company's or Parent's obligation to consummate the
Merger; and
(c) against approval of any proposal made in opposition to or
in competition with the consummation of the Merger, including, without
limitation, any Company Acquisition Proposal or Company Superior Offer (each as
defined in the Merger Agreement).
Prior to the Expiration Date, Stockholder will not enter into any
agreement or understanding with any person or entity to vote or give
instructions in any manner inconsistent with any provision of this Section 2.1.
This Agreement is intended to bind Shareholder only with respect to the specific
matters set forth herein.
2.2 Irrevocable Proxy. Contemporaneously with the execution of this
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Agreement, Stockholder will deliver to Parent a proxy with respect to Shares in
the form attached hereto as Exhibit 1, which proxy will be irrevocable to the
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fullest extent permitted by applicable law (the "Proxy"); provided, however,
that the Proxy shall be revoked upon termination of this Agreement in accordance
with its terms.
2.3 Transfer and Other Restrictions. (a) From and after the date
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hereof until the termination of this Agreement, Stockholder agrees not to,
directly or indirectly:
(i) except pursuant to the terms of the Merger Agreement,
Transfer any or all of the Shares or any interest therein except as
provided in Section 2.2 hereof;
(ii) grant any proxy, power of attorney, deposit any of the
Shares into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares except as provided in this Agreement; or
(iii) take any other action that would make any representation
or warranty of Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling Stockholder from performing its
obligations under this Agreement.
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(b) To the extent Stockholder is, as of the date hereof, party
to a contract or agreement that requires Stockholder to Transfer Shares to
another person or entity (excluding a contract or agreement pledging Shares to
Company), Stockholder will not effect any such Transfer unless to cause the
transferee to be bound by and to execute an agreement in the form of this
Agreement with respect to the Shares to be Transferred. Nothing herein shall
prohibit Stockholder from exercising (in accordance with the terms of the option
or warrant, as applicable) any option or warrant Stockholder may hold; provided,
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however, that the securities acquired upon such exercise shall be deemed Shares.
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(c) Stockholder agrees with, and covenants to, Parent that
Stockholder shall not request that Company register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any
Shares, unless such transfer is made pursuant to and in compliance with this
Agreement.
The foregoing restrictions shall not prohibit a transfer of Shares (i) in the
case of an individual, to any member of his immediate family, to a trust for the
benefit of Stockholder or any member of his immediate family or a transfer of
Shares upon the death of Stockholder, (ii) in the case of a partnership or
limited liability company, to one or more partners or members or to an
affiliated corporation or (iii) which Stockholder can not prevent (it being
understood that Stockholder shall use his best efforts to prevent transfers
other than pursuant to (i) or (ii) hereof); provided, however, that any
transferee with respect to a transfer permitted under (i) or (ii) shall, as a
precondition to such transfer, agree in a writing delivered to Parent, to be
bound by the terms and conditions of this Agreement and executed and deliver to
Company a proxy in the form attached hereto.
3. Waivers. Stockholder agrees not to exercise any rights of appraisal
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and any dissenters' rights that Stockholder may have (whether under applicable
law or otherwise) or could potentially have or acquire in connection with the
Merger.
4. Representations, Warranties and Covenants of Stockholder. Stockholder
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hereby represents, warrants and covenants as follows:
4.1 Authority, Enforceability. Stockholder has power and authority
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to enter into, execute, deliver and perform Stockholder's obligations under this
Agreement and to make the representations, warranties and covenants contained
herein. This Agreement has been duly executed and delivered by Stockholder and
constitutes a legal, valid and binding obligation of Stockholder, enforceable
against Stockholder in accordance with its terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies.
4.2 No Conflicts, No Defaults and Consents. The execution and
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delivery of this Agreement by Stockholder do not, and the performance of this
Agreement by Stockholder will not: (i) conflict with or violate any order,
decree or judgment applicable to Stockholder or by which Stockholder or any of
Stockholder's properties or Shares is bound or affected; (ii) violate any
agreement to which Stockholder is a party or is subject, including, without
limitation, any voting agreement or voting trust; (iii) result in any breach of
or constitute a default (with notice or lapse of time, or both) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of any lien, restriction, adverse claim, option on,
right to acquire, or any encumbrance or security interest in or to any of the
Shares, pursuant to any written, oral or other agreement, contract or legally
binding commitment to which Stockholder is a party or by which Stockholder or
any of the
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Shares is bound or affected, or (iv) require any written, oral or other
agreement, contract or legally binding commitment of any third party.
4.3 Shares Owned. As of the Effective Date of this Agreement,
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Stockholder owns of record or has the power to direct the voting with respect
to, in the aggregate the number of shares of Company Common Stock set forth
below Stockholder's name on the signature page of this Agreement, and does not
own of record, or have the power to direct the voting with respect to, any
shares of capital stock of Company other than the Shares set forth below
Stockholder's name on the signature page hereof.
4.4 Accuracy of Representations; Reliance by Parent. The
representations and warranties contained in this Agreement are accurate in all
respects as of the date of this Agreement, will be accurate in all respects at
all times through the Expiration Date and will be accurate in all respects as of
the Effective Time of the Merger as if made on that date. Stockholder
understands and acknowledges that Parent is entering into the Merger Agreement
in reliance upon Stockholder's execution and delivery of this Agreement.
4.5 Further Assurances. Stockholder agrees to execute and deliver any
additional documents reasonably necessary or desirable, in the opinion of Parent
or Company, to carry out the purposes and intent of this Agreement and the
Proxy.
5. Miscellaneous.
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5.1 Severability. If any provision of this Agreement is found by any
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arbitrator or court of competent jurisdiction to be invalid or unenforceable,
then the parties hereby waive such provision to the extent that it is found to
be invalid or unenforceable and to the extent that to do so would not deprive
one of the parties of the substantial benefit of its bargain. Such provision
will, to the extent allowable by law and the preceding sentence, not be voided
or canceled but will instead be modified by such arbitrator or court so that it
becomes enforceable and, as modified, will be enforced as any other provision
hereof, all the other provisions hereof continuing in full force and effect.
5.2 Amendment; Waiver. This Agreement may be amended, modified,
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superseded, canceled, renewed or extended only by an agreement in writing
executed by Parent and Stockholder. The failure by either party at any time to
require performance or compliance by the other of any of its obligations or
agreements will in no way affect the right to require such performance or
compliance at any time thereafter. The waiver by either party of a breach of
any provision of this Agreement will not be treated as a waiver of any preceding
or succeeding breach of such provision or as a waiver of the provision itself.
No waiver of any kind will be effective or binding, unless it is in writing and
is signed by the party against whom such waiver is sought to be enforced.
5.3 Entire Agreement. This Agreement, together with the Merger
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Agreement, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
5.4 Assignment. This Agreement and all rights and obligations
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hereunder are personal to Stockholder and may not be transferred or assigned by
Stockholder at any time. Parent may assign its rights, and may delegate its
obligations hereunder, to any subsidiary of Parent; provided however, that any
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such assignee assumes Parent's obligations hereunder. This Agreement will be
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binding upon, and inure to the benefit of, the persons or entities who are
permitted, by the terms of this Agreement, to be successors, assigns and
personal representatives of the respective parties hereto.
5.5 Governing Law. Except for matters required to be governed by and
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administered in accordance with Delaware corporate law, this Agreement will be
governed by and construed in accordance with the internal laws of the State of
California, excluding that body of laws pertaining to conflict of laws.
5.6 Costs of Enforcement. If any party to this Agreement seeks to
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enforce its rights under this Agreement by legal proceedings or otherwise, the
non-prevailing party will pay all costs and expenses incurred by the prevailing
party, including, without limitation, all reasonable attorneys' and experts'
fees.
5.7 Notices. Any and all notices required or permitted to be given
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to a party pursuant to the provisions of this Agreement will be in writing and
will be effective and deemed to provide such party sufficient notice under this
Agreement on the earliest of the following: (i) at the time of personal
delivery, if personal delivery is made to the receiving party; (ii) one (1)
business day after deposit with an express overnight courier for United States
deliveries, or two (2) business days after such deposit for deliveries outside
of the United States; or (iii) three (3) business days after deposit in the
United States mail by registered or certified mail (return receipt requested)
for United States deliveries. All notices for delivery outside the United
States will be sent by express courier. All notices not delivered personally
will be sent with postage and/or other charges prepaid and properly addressed to
the party to be notified at the address set forth below, or at such other
address as such other party may designate by ten (10) days advance written
notice to the other parties hereto.
If to Stockholder:
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c/o Broadbase Software, Inc.
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▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Bay
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Fenwick & West LLP
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Parent: Kana Communications, Inc.
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▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
Two Embarcadero Place
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▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
5.8 Specific Performance. Each of the parties hereto recognizes and
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acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
5.9 Counterparts. This Agreement may be executed in counterparts,
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each of which will be deemed an original but all of which, taken together,
constitute one and the same agreement.
5.10 Titles. The titles and captions of the sections and paragraphs
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of this Agreement are included for convenience of reference only and will have
no effect on the construction or meaning of this Agreement.
5.11 Termination. This Agreement will be terminated and will be of
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no further force and effect upon the earlier to occur of (i) the Effective Time
and (ii) the termination of the Merger Agreement pursuant to its terms.
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IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date first above written.
KANA COMMUNICATIONS, INC. STOCKHOLDER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Chief Executive Officer
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Broadbase Software, Inc. Common Stock:
[SIGNATURE PAGE TO COMPANY VOTING AGREEMENT]
EXHIBIT 1 TO VOTING AGREEMENT
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IRREVOCABLE PROXY
The undersigned stockholder (the "Stockholder") of Broadbase Software,
Inc., a Delaware corporation ("Company"), hereby irrevocably (to the fullest
extent permitted by applicable law) appoints and constitutes the members of the
Board of Directors of Kana Communications, Inc., a Delaware corporation
("Parent"), and each of them (collectively the "Proxyholders"), the agents,
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to the fullest extent of the undersigned's rights with respect
to (i) the shares of capital stock of Company owned of record by the
undersigned, or over which the undersigned has voting power, as of the date of
this proxy, which shares are specified on the final page of this proxy; (ii) any
and all other shares of capital stock of Company which the undersigned may
acquire or with respect to which the undersigned shall acquire voting power
after the date hereof, including, without limitation, in the event of a dividend
or distribution of capital stock of Company, or any change in Company's capital
stock by reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, all shares of Company's capital stock issued or
distributed pursuant to such stock dividends and distributions and any shares of
Company's capital stock into which or for which any or all of the shares
otherwise held by the undersigned may be so changed or exchanged. (The shares
of the capital stock of Company referred to in clauses (i) and (ii) of the
immediately preceding sentence are collectively referred to as the "Shares.")
Upon the execution hereof, all prior proxies given by the undersigned with
respect to any of the Shares are hereby revoked, and no subsequent proxies will
be given with respect to any of the Shares until such time as this proxy shall
be terminated in accordance with its terms.
The Proxyholders named above will be empowered, and may exercise this
proxy, to vote the Shares at any time until the Expiration Date (as defined in
the Voting Agreement dated as of the date hereof, between Parent and the
undersigned (the "Voting Agreement")) at any meeting of the stockholders of
Company, however called, or in any action by written consent of stockholders of
Company:
(i) in favor of the merger (the "Merger") contemplated by the
Agreement and Plan of Merger by and among Parent, Arrow Acquisition Corp., and
Company, dated as of the date hereof (the "Merger Agreement"), the execution and
delivery by Company of the Merger Agreement and the adoption and approval of the
terms thereof and in favor of the other actions contemplated by the Merger
Agreement and, to the extent that a vote is solicited in connection with this
Voting Agreement or the Merger Agreement, any other action required in
furtherance hereof or thereof;
(ii) against any action or agreement that would result in a breach
of any representation, warranty, covenant or obligation of Company in the Merger
Agreement or that would preclude fulfillment of a condition precedent under the
Merger Agreement to Company's or Parent's obligation to consummate the Merger;
and
(iii) against approval of any proposal made in opposition to or in
competition with the consummation of the Merger including, without limitation,
any Company Acquisition Proposal or Company Superior Offer (each as defined in
the Merger Agreement).
The Proxyholders may not exercise this proxy on any other matter. The
Stockholder may vote the Shares on all such other matters. The proxy granted by
the Stockholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Stockholder set
forth in Section 2 of the Voting Agreement.
This proxy will terminate upon the termination of the Voting Agreement in
accordance with its terms. Any obligation of the undersigned hereunder shall be
binding upon the successors and assigns of the undersigned. The undersigned
Stockholder authorizes the Proxyholders to file this proxy and any substitution
or revocation of substitution with the Secretary of Company and with any
Inspector of Elections at any meeting of the stockholders of Company.
This proxy is irrevocable, is coupled with an interest, and shall survive
the insolvency, incapacity, death or liquidation of the undersigned and will be
binding upon the heirs, successors and assigns of the undersigned (including any
transferee of any of the Shares).
Dated: April ___, 2001.
STOCKHOLDER
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Broadbase Software, Inc. Common Stock:____