VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of December , 2001, by
and among SIDEWARE SYSTEMS, INC., a British Columbia, Canada corporation
("Parent"), and certain stockholders of the Company (as defined below)
named herein (each a "Stockholder").
RECITALS
A. Parent, KM Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), and KnowledgeMax,
Inc., a Delaware corporation (the "Company"), are entering into an
Agreement and Plan of Merger and Reorganization of even date herewith
(the "Merger Agreement") which provides (subject to the conditions set
forth therein) for the merger of Merger Sub into the Company (the
"Merger").
B. In order to induce Parent and Merger Sub to enter into the
Merger Agreement, Stockholders are entering into this Voting
Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally
bound, agree as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Voting Agreement:
(a) "Company Common Stock" shall mean the common stock,
par value $0.01 per share, of the Company.
(b) "Company Preferred Stock" shall mean the Series A
Preferred Stock and Series B Preferred Stock, par value $0.01 per
share, of the Company.
(c) "Expiration Date" shall mean the earlier of (i) the
date upon which the Merger Agreement is validly terminated, or (ii)
the date upon which the Merger becomes effective.
(d) A Stockholder shall be deemed to "Own" or to have
acquired "Ownership" of a security if such Stockholder: (i) is the
record owner of such security; or (ii) is the "beneficial owner"
(within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934) of such security.
(e) "Person" shall mean any (i) individual, (ii)
corporation, limited liability company, partnership or other entity,
or (iii) governmental authority.
(f) "Subject Securities" shall mean: (i) all securities of
the Company (including all shares of Company Common Stock, Company
Preferred Stock, options, warrants and other rights to acquire shares
of Company Common Stock and Company Preferred Stock) Owned by a
Stockholder as of the date of this Agreement; and (ii) all additional
securities of the Company (including all additional shares of Company
Common Stock and Company Preferred Stock and all additional options,
warrants and other rights to acquire shares of Company Common Stock
and Company Preferred Stock) of which a Stockholder acquires Ownership
during the period from the date of this Agreement through the
Expiration Date.
(f) A Person shall be deemed to have a 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 contemplating the possible sale
of, pledge of, encumbrance of, grant of an option with respect to,
transfer of or disposition of such security or any interest therein.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.1 Transferee of Subject Securities to be Bound by this
Agreement. Each Stockholder agrees that, during the period from the
date of this Voting Agreement through the Expiration Date, such
Stockholder shall not cause or permit any Transfer of any of the
Subject Securities to be effected unless each Person to which any of
such Subject Securities, or any interest in any of such Subject
Securities, is or may be transferred shall have: (a) executed a
counterpart of this Voting Agreement and a proxy in the form attached
hereto as Exhibit A (with such modifications as Parent may reasonably
request); and (b) agreed to hold such Subject Securities (or interest
in such Subject Securities) subject to all of the terms and provisions
of this Voting Agreement.
2.2 Transfer of Voting Rights. Each Stockholder agrees that,
during the period from the date of this Voting Agreement through the
Expiration Date, such Stockholder shall ensure that: (a) none of the
Subject Securities is deposited into a voting trust; and (b) no proxy
is granted, and no voting agreement or similar agreement is entered
into, with respect to any of the Subject Securities.
SECTION 3. VOTING OF SHARES
3.1 Voting Agreement. Each Stockholder agrees that, during the
period from the date of this Voting Agreement through the Expiration
Date:
(a) at any meeting of stockholders of the Company, however
called, each Stockholder shall (unless otherwise directed in
writing by Parent) cause all outstanding shares of Company Common
Stock and Company Preferred Stock that are Owned by such
Stockholder as of the record date fixed for such meeting to be
voted in favor of the approval and adoption of the Merger
Agreement and the approval of the Merger, and in favor of each of
the other actions contemplated by the Merger Agreement; and
(b) in the event written consents are solicited or
otherwise sought from stockholders of the Company with respect to
the approval or adoption of the Merger Agreement, with respect to
the approval of the Merger or with respect to any of the other
actions contemplated by the Merger Agreement, such Stockholder
shall (unless otherwise directed in writing by Parent) cause to
be executed, with respect to all outstanding shares of Company
Common Stock and Company Preferred Stock that are Owned by such
Stockholder as of the record date fixed for the consent to the
proposed action, a written consent or written consents to such
proposed action.
3.2 Proxy; Further Assurances.
(a) Contemporaneously with the execution of this Voting
Agreement: (i) each Stockholder shall deliver to Parent a proxy in the
form attached to this Voting Agreement as Exhibit A, which shall be
irrevocable to the fullest extent permitted by law, with respect to
the shares referred to therein (the "Proxy"); and (ii) each
Stockholder shall cause to be delivered to Parent an additional proxy
(in the form attached hereto as Exhibit A) executed on behalf of the
record owner of any outstanding shares of Company Common Stock and
Company Preferred Stock that are owned beneficially (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934), but
not of record, by such Stockholder.
(b) Each Stockholder shall, at his, her or its own
expense, perform such further acts and execute such further documents
and instruments as may reasonably be required to vest in Parent the
power to carry out and give effect to the provisions of this Voting
Agreement.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Each Stockholder hereby irrevocably and unconditionally waives,
and agrees to cause to be waived and to prevent the exercise of, any
rights of appraisal, any dissenters' rights and any similar rights
relating to the Merger or any related transaction that such
Stockholder or any other Person may have by virtue of the ownership of
any outstanding shares of Company Common Stock and Company Preferred
Stock Owned by such Stockholder.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder, severally and not jointly, hereby represents
and warrants to Parent as follows:
5.1 Authorization, etc. Stockholder has the absolute and
unrestricted right, power, authority and capacity to execute and
deliver this Voting Agreement and the Proxy and to perform his
obligations hereunder and thereunder. This Voting Agreement and the
Proxy have been duly executed and delivered by Stockholder and
constitute legal, valid and binding obligations of Stockholder,
enforceable against Stockholder in accordance with their 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.
5.2 No Conflicts or Consents
(a) The execution and delivery of this Voting Agreement
and the Proxy by Stockholder do not, and the performance of this
Voting Agreement and the Proxy by Stockholder will not: (i) conflict
with or violate any law, rule, regulation, order, decree or judgment
applicable to Stockholder or by which he or any of his properties is
or may be bound or affected; or (ii) result in or constitute (with or
without notice or lapse of time) any breach of or default under, or
give to any other Person (with or without notice or lapse of time) any
right of termination, amendment, acceleration or cancellation of, or
result (with or without notice or lapse of time) in the creation of
any encumbrance or restriction on any of the Subject Securities
pursuant to, any contract to which Stockholder is a party or by which
Stockholder or any of his affiliates or properties is or may be bound
or affected.
(b) The execution and delivery of this Voting Agreement
and the Proxy by Stockholder do not, and the performance of this
Voting Agreement and the Proxy by Stockholder will not, require any
consent or approval of any Person.
5.3 Title to Securities. As of the date of this Voting
Agreement: (a) Stockholder holds of record (free and clear of any
encumbrances or restrictions) the number of outstanding shares of
Company Common Stock and Company Preferred Stock set forth next to the
heading "Shares Held of Record" on the signature page hereof; (b)
Stockholder holds the Subject Securities (free and clear of any
encumbrances or restrictions) set forth next to the heading "Options
and Other Rights" on the signature page hereof; (c) Stockholder Owns
the additional securities of the Company set forth next to the heading
"Additional Securities Beneficially Owned" on the signature page
hereof; and (d) Stockholder does not directly or indirectly Own any
shares of capital stock or other securities of the Company, or any
option, warrant or other right to acquire (by purchase, conversion or
otherwise) any shares of capital stock or other securities of the
Company, other than the shares and options, warrants and other rights
set forth on the signature page hereof.
5.4 Accuracy of Representations. The representations and
warranties contained in this Voting Agreement are accurate in all
respects as of the date of this Voting Agreement, will be accurate in
all respects at all times through the Expiration Date and will be
accurate in all respects as of the date of the consummation of the
Merger as if made on that date.
SECTION 6. ADDITIONAL COVENANTS OF EACH STOCKHOLDER
6.1 Further Assurances. From time to time and without
additional consideration, each Stockholder shall (at such
Stockholder's sole expense) execute and deliver, or cause to be
executed and delivered, such additional transfers, assignments,
endorsements, proxies, consents and other instruments, and shall (at
such Stockholder's sole expense) take such further actions, as Parent
may request for the purpose of carrying out and furthering the intent
of this Voting Agreement.
6.2 Legend. Immediately after the execution of this Voting
Agreement (and from time to time upon the acquisition by each
Stockholder of Ownership of any shares of Company Common Stock or
Company Preferred Stock prior to the Expiration Date), each
Stockholder shall ensure that each certificate evidencing any
outstanding shares of Company Common Stock or other securities of the
Company Owned by such Stockholder bears a legend in the following
form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY
NOT BE SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE VOTING
AGREEMENT DATED AS OF DECEMBER ____, 2001, BETWEEN SIDEWARE
SYSTEMS, INC. AND CERTAIN STOCKHOLDERS NAMED THEREIN, AS IT MAY
BE AMENDED, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICES OF SIDEWARE SYSTEMS, INC.
SECTION 7. MISCELLANEOUS
7.1 Survival of Representations, Warranties and Agreements.
All representations, warranties, covenants and agreements made by
Stockholder in this Voting Agreement shall expire upon the Expiration
Date.
7.2 Indemnification. Each Stockholder, severally and not
jointly, shall hold harmless and indemnify Parent and Parent's
affiliates from and against, and shall compensate and reimburse Parent
and Parent's affiliates for, any loss, damage, claim, liability, fee
(including attorneys' fees), demand, cost or expense (regardless of
whether or not such loss, damage, claim, liability, fee, demand, cost
or expense relates to a third-party claim) that is directly or
indirectly suffered or incurred by Parent or any of Parent's
affiliates, or to which Parent or any of Parent's affiliates otherwise
becomes subject, and that arises directly or indirectly from, or
relates directly or indirectly to, (a) any inaccuracy in or breach of
any representation or warranty contained in this Voting Agreement, or
(b) any failure on the part of such Stockholder to observe, perform or
abide by, or any other breach of, any restriction, covenant,
obligation or other provision contained in this Voting Agreement or in
the Proxy.
7.3 Expenses. All costs and expenses incurred in connection
with the transactions contemplated by this Voting Agreement shall be
paid by the party incurring such costs and expenses.
7.4 Notices. Any notice or other communication required or
permitted to be delivered to either party under this Voting Agreement
shall be in writing and shall be deemed properly delivered, given and
received when delivered (by hand, by registered mail, by courier or
express delivery service or by facsimile) to the address or facsimile
telephone number set forth beneath the name of such party below (or to
such other address or facsimile telephone number as such party shall
have specified in a written notice given to the other party):
if to a Stockholder:
at the address set forth below such Stockholder's
signature on the signature page hereof
if to Parent:
SIDEWARE SYSTEMS, INC.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
7.5 Severability. If any provision of this Voting Agreement or
any part of any such provision is held under any circumstances to be
invalid or unenforceable in any jurisdiction, then (a) such provision
or part thereof shall, with respect to such circumstances and in such
jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the
invalidity or unenforceability of such provision or part thereof under
such circumstances and in such jurisdiction shall not affect the
validity or enforceability of such provision or part thereof under any
other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall
not affect the validity or enforceability of the remainder of such
provision or the validity or enforceability of any other provision of
this Voting Agreement. Each provision of this Voting Agreement is
separable from every other provision of this Voting Agreement, and
each part of each provision of this Voting Agreement is separable from
every other part of such provision.
7.6 Entire Agreement. This Voting Agreement, the Proxy and any
other documents delivered by the parties in connection herewith
constitute the entire agreement between the parties with respect to
the subject matter hereof and thereof and supersede all prior
agreements and understandings between the parties with respect
thereto. No addition to or modification of any provision of this
Voting Agreement shall be binding upon either party unless made in
writing and signed by both parties.
7.7 Assignment; Binding Effect. Except as provided herein,
neither this Voting Agreement nor any of the interests or obligations
hereunder may be assigned or delegated by any Stockholder and any
attempted or purported assignment or delegation of any of such
interests or obligations shall be void. Subject to the preceding
sentence, this Voting Agreement shall be binding upon each Stockholder
and his, her, or its heirs, estate, executors, personal
representatives, successors and assigns, and shall inure to the
benefit of Parent and its successors and assigns. Without limiting
any of the restrictions set forth in Section 2 or elsewhere in this
Voting Agreement, this Voting Agreement shall be binding upon any
Person to whom any Subject Securities are transferred. Nothing in
this Voting Agreement is intended to confer on any Person (other than
Parent and its successors and assigns) any rights or remedies of any
nature.
7.8 Specific Performance. The parties agree that irreparable
damage would occur in the event that any of the provisions of this
Voting Agreement or the Proxy was not performed in accordance with its
specific terms or was otherwise breached. Each Stockholder, severally
and not jointly, agrees that, in the event of any breach or threatened
breach by a Stockholder of any covenant or obligation contained in
this Voting Agreement or in the Proxy, Parent shall be entitled (in
addition to any other remedy that may be available to it, including
monetary damages) to seek and obtain (a) a decree or order of specific
performance to enforce the observance and performance of such covenant
or obligation, and (b) an injunction restraining such breach or
threatened breach. Each Stockholder further agrees that neither
Parent nor any other Person shall be required to obtain, furnish or
post any bond or similar instrument in connection with or as a
condition to obtaining any remedy referred to in this Section 7.8, and
each Stockholder irrevocably waives any right he, she or it may have
to require the obtaining, furnishing or posting of any such bond or
similar instrument.
7.9 Non-Exclusivity. The rights and remedies of Parent under
this Voting Agreement are not exclusive of or limited by any other
rights or remedies which it may have, whether at law, in equity, by
contract or otherwise, all of which shall be cumulative (and not
alternative). Without limiting the generality of the foregoing, the
rights and remedies of Parent under this Voting Agreement, and the
obligations and liabilities of each Stockholder under this Voting
Agreement, are in addition to their respective rights, remedies,
obligations and liabilities under common law requirements and under
all applicable statutes, rules and regulations. Nothing in this
Voting Agreement shall limit any of such Stockholder's obligations, or
the rights or remedies of Parent, under any Affiliate Agreement
between Parent and such Stockholder; and nothing in any such Affiliate
Agreement shall limit any of such Stockholder's obligations, or any of
the rights or remedies of Parent, under this Voting Agreement.
7.10 Governing Law; Venue.
(a) This Voting Agreement and the Proxy shall be construed
in accordance with, and governed in all respects by, the laws of the
State of Delaware (without giving effect to principles of conflicts of
laws).
(b) Any legal action or other legal proceeding relating to
this Voting Agreement or the Proxy or the enforcement of any provision
of this Voting Agreement or the Proxy may be brought or otherwise
commenced in any state or federal court located in the County of
Fairfax, Virginia. Each Stockholder:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the
County of Fairfax, Virginia (and each appellate court located in
the Commonwealth of Virginia), in connection with any such legal
proceeding;
(ii) agrees that service of any process, summons, notice or
document by U.S. mail addressed to him at the address set forth
in Section 7.4 shall constitute effective service of such
process, summons, notice or document for purposes of any such
legal proceeding;
(iii) agrees that each state and federal court located in
the County of Fairfax, Virginia, shall be deemed to be a
convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense
or otherwise), in any such legal proceeding commenced in any
state or federal court located in the County of Fairfax,
Virginia, any claim that Stockholder is not subject personally to
the jurisdiction of such court, that such legal proceeding has
been brought in an inconvenient forum, that the venue of such
proceeding is improper or that this Voting Agreement or the
subject matter of this Voting Agreement may not be enforced in or
by such court.
Nothing contained in this Section 7.10 shall be deemed to limit or
otherwise affect the right of Parent to commence any legal proceeding
or otherwise proceed against a Stockholder in any other forum or
jurisdiction.
(c) EACH STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A
JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS
VOTING AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF
THIS VOTING AGREEMENT OR THE PROXY.
7.11 Counterparts. This Voting Agreement may be executed by the
parties in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument.
7.12 Captions. The captions contained in this Voting Agreement
are for convenience of reference only, shall not be deemed to be a
part of this Voting Agreement and shall not be referred to in
connection with the construction or interpretation of this Voting
Agreement.
7.13 Attorneys' Fees. If any legal action or other legal
proceeding relating to this Voting Agreement or the enforcement of any
provision of this Voting Agreement is brought against a Stockholder,
the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
7.14 Waiver. No failure on the part of Parent to exercise any
power, right, privilege or remedy under this Voting Agreement, and no
delay on the part of Parent in exercising any power, right, privilege
or remedy under this Voting Agreement, shall operate as a waiver of
such power, right, privilege or remedy; and no single or partial
exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right,
privilege or remedy. Parent shall not be deemed to have waived any
claim available to Parent arising out of this Voting Agreement, or any
power, right, privilege or remedy of Parent under this Voting
Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed
and delivered on behalf of Parent; and any such waiver shall not be
applicable or have any effect except in the specific instance in which
it is given.
7.15 Construction.
(a) For purposes of this Voting Agreement, whenever the
context requires: the singular number shall include the plural, and
vice versa; the masculine gender shall include the feminine and neuter
genders; the feminine gender shall include the masculine and neuter
genders; and the neuter gender shall include masculine and feminine
genders.
(b) The parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party
shall not be applied in the construction or interpretation of this
Voting Agreement.
(c) As used in this Voting Agreement, the words "include"
and "including," and variations thereof, shall not be deemed to be
terms of limitation, but rather shall be deemed to be followed by the
words "without limitation."
(d) Except as otherwise indicated, all references in this
Voting Agreement to "Sections" and "Exhibits" are intended to refer to
Sections of this Voting Agreement and Exhibits to this Voting
Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Parent and the Stockholders have caused this
Voting Agreement to be executed as of the date first written above.
SIDEWARE SYSTEMS, INC.
By:
Name:
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Title:
------------------------------
STOCKHOLDERS:
[INSERT NAMES]
Signature:
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Name:
-------------------------
Title (if
applicable):
------------------
Address:
----------------------
----------------------
Facsimile:
Shares Held of Record
Common
Stock:
------------------------
Series A Preferred
Stock:
------------------------
Series B Preferred Stock:
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Options and Other Rights
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Additional Securities
Beneficially Owned
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder of KnowledgeMax, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent
permitted by law) appoints and constitutes ,
and Sideware Systems, Inc., a British Columbia, Canada
corporation (together with its successors, "Parent"), and each of
them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the
undersigned's rights with respect to (i) the outstanding shares of
capital stock of the Company owned of record by the undersigned as of
the date of this proxy, which shares are specified on the final page
of this proxy, and (ii) any and all other shares of capital stock of
the Company which the undersigned may acquire on or after the date
hereof. (The shares of the capital stock of the 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 the undersigned agrees that no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is
granted in connection with the Voting Agreement, dated as of the date
hereof, among Parent, the undersigned and certain other stockholders
of the Company (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger
and Reorganization, dated December 7, 2001, among Parent, KM
Acquisition Corp. and the Company (the "Merger Agreement").
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier
to occur of the valid termination of the Merger Agreement or the
effective time of the merger contemplated thereby (the "Merger") at
any meeting of the stockholders of the Company, however called, or in
connection with any solicitation of written consents from stockholders
of the Company, in favor of the approval and adoption of the Merger
Agreement and the approval of the Merger, and in favor of each of the
other actions contemplated by the Merger Agreement.
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors,
personal representatives, successors and assigns of the undersigned
(including any transferee of any of the Shares).
If any provision of this proxy or any part of any such provision
is held under any circumstances to be invalid or unenforceable in any
jurisdiction, then (a) such provision or part thereof shall, with
respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and
enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such
circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect
the validity or enforceability of the remainder of such provision or
the validity or enforceability of any other provision of this proxy.
Each provision of this proxy is separable from every other provision
of this proxy, and each part of each provision of this proxy is
separable from every other part of such provision.
This proxy shall terminate upon the earlier of the valid
termination of the Merger Agreement or the effective time of the
Merger.
Dated: December , 2001.
Name
Number of shares of common stock
of the Company owned of record
as of the date of this proxy:
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Number of shares of Series A
Preferred Stock of the Company
owned of record as of the date
of this proxy:
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Number of shares of Series B
Preferred Stock of the Company
owned of record as of the date
of this proxy:
------------------------------