Exhibit 4
SMARTFORCE SHAREHOLDER VOTING AGREEMENT
SMARTFORCE SHAREHOLDER VOTING AGREEMENT, dated as of June 10, 2002 (this
"Agreement"), among the Shareholders of SmartForce Public Limited Company, a
public limited company organized under the laws of the Republic of Ireland
("SmartForce") listed on the signature page(s) hereto (collectively,
"Shareholders" and each individually, a "Shareholder"), SmartForce and SkillSoft
Corporation, a Delaware corporation ("SkillSoft"). Capitalized terms used and
not otherwise defined herein shall have the respective meanings assigned to them
in the Merger Agreement referred to below.
WHEREAS, as of the date hereof, the Shareholders collectively own of
record and beneficially SmartForce Ordinary Shares and SmartForce ADSs, as set
forth on Schedule I hereto (such shares, or any other voting or equity
securities of SmartForce hereafter acquired by any Shareholder prior to the
termination of this Agreement, being referred to herein collectively as the
"Shares");
WHEREAS, immediately prior to the execution of this Agreement, SmartForce
and SkillSoft are entering into an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"), pursuant to which, upon the terms and
subject to the conditions thereof, a subsidiary of SmartForce will be merged
with and into SkillSoft, and SkillSoft will be the surviving corporation (the
"Merger"); and
WHEREAS, as a condition to the willingness of SkillSoft to enter into the
Merger Agreement, SkillSoft has required that the Shareholders agree, and in
order to induce SkillSoft to enter into the Merger Agreement, the Shareholders
are willing, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows:
Section 1. Voting of Shares.
(a) Each Shareholder covenants and agrees that until the
termination of this Agreement in accordance with the terms hereof, at the
SmartForce Meeting or any other meeting of the shareholders of SmartForce,
however called, and in any action by written consent of SmartForce, such
Shareholder will vote, or cause to be voted, all of his, her or its respective
Shares (a) in favor of the approval of the SmartForce Voting Proposal and (b) in
favor of any matter that could reasonably be expected to facilitate the Merger
and against any matter that is inconsistent with the consummation of the Merger
and the other transactions contemplated by the Merger Agreement (including,
without limitation, against any other Acquisition Proposal).
(b) Each Shareholder hereby irrevocably grants to, and appoints,
SkillSoft, and any individual designated in writing by it, and each of them
individually, as its proxy and attorney-in-fact (with full power of
substitution), for and in its name, place and stead, to vote his, her or its
Shares at any meeting of the shareholders of SmartForce called with respect to
any of the matters specified in, and in accordance and consistent with this
Section 1. Each Shareholder
understands and acknowledges that SkillSoft is entering into the Merger
Agreement in reliance upon the Shareholders' execution and delivery of this
Agreement. Each Shareholder hereby affirms that the irrevocable proxy set forth
in this Section 1(b) is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of such Shareholder under this Agreement. Except as otherwise
provided for herein, each Shareholder hereby (i) affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be revoked,
(ii) ratifies and confirms all that the proxies appointed hereunder may lawfully
do or cause to be done by virtue hereof and (iii) affirms that such irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of applicable law. Notwithstanding any other provisions of this
Agreement, the irrevocable proxy granted hereunder shall automatically terminate
upon the termination of this Agreement.
Section 2. Transfer of Shares.
(a) Each Shareholder covenants and agrees that such Shareholder
will not directly or indirectly (i) sell, assign, transfer (including by merger,
testamentary disposition, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law), pledge, encumber or
otherwise dispose of any of the Shares, (ii) deposit any of the Shares into a
voting trust or enter into a voting agreement or arrangement with respect to the
Shares or grant any proxy or power of attorney with respect thereto which is
inconsistent with this Agreement or (iii) enter into any contract, option, short
sale, equity swap, hedge or other arrangement or undertaking with respect to the
direct or indirect actual or potential sale, assignment, transfer (including by
merger, testamentary disposition, interspousal disposition pursuant to a
domestic relations proceeding or otherwise by operation of law) or other
disposition of any Shares. Notwithstanding the foregoing, during any 30 day
period, a Shareholder may sell, assign or transfer up to 2.5% of the Shares
owned by such Shareholder as of the date of this Agreement.
(b) Each Shareholder agrees to submit to SmartForce
contemporaneously with or promptly following execution of this Agreement all
certificates representing the Shares so that the SmartForce may place thereon a
conspicuous legend referring to the transfer restrictions set forth in this
Agreement and SmartForce shall cause its transfer agent to decline to transfer
and to note stop transfer restrictions on the share register and other records
relating to the Shares.
Section 3. Representations and Warranties of the Shareholders. Each
Shareholder on its, his or her own behalf hereby severally represents and
warrants to SkillSoft with respect to itself and its, his or her ownership of
the Shares as follows:
(a) Ownership of Shares. The Shareholder beneficially owns all of
the Shares as set forth on Schedule I hereto and has good and marketable title
to such Shares, free and clear of any claims, liens, encumbrances and security
interests whatsoever. The Shareholder owns no SmartForce Ordinary Shares or
SmartForce ADSs other than the Shares as set forth on Schedule I hereto. The
Shareholder has sole voting power, without restrictions, with respect to all of
the Shares.
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(b) Power, Binding Agreement. The Shareholder has the legal
capacity and all requisite power and authority to enter into and perform all of
its, his or her obligations, under this Agreement. This Agreement has been duly
and validly executed and delivered by the Shareholder and constitutes a valid
and binding obligation of the Shareholder, enforceable against the Shareholder
in accordance with its terms.
(c) No Conflicts. The execution and delivery of this Agreement do
not, and the consummation of the transactions contemplated hereby will not,
conflict with or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, any provision of any loan or credit agreement, note, bond, mortgage,
indenture, lease, or other agreement, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to the Shareholder, the Shares or any of the Shareholder's properties
or assets. Except as expressly contemplated hereby, the Shareholder is not a
party to, and the Shares are not subject to or bound in any manner by, any
contract or agreement relating to the Shares, including without limitation, any
voting agreement, option agreement, purchase agreement, shareholders' agreement,
partnership agreement or voting trust.
Section 4. Termination. This Agreement shall terminate upon the earlier to
occur of (i) the Effective Time or (ii) any termination of the Merger Agreement
in accordance with the terms thereof; provided that no such termination shall
relieve any party of liability for a willful breach hereof prior to termination.
Section 5. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 6. Fiduciary Duties. Each Shareholder is signing this Agreement
solely in such Shareholder's capacity as an owner of his, her or its respective
Shares, and nothing herein shall prohibit, prevent or preclude such Shareholder
from taking or not taking any action in his or her capacity as an officer or
director of SmartForce, to the extent permitted by the Merger Agreement.
Section 7. Consent and Waiver. Each Shareholder in its, his or her
capacity as a shareholder of SmartForce hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreement to which such Shareholder is a party or pursuant to any rights
such Shareholder may have in its, his or her capacity as a shareholder of
SmartForce.
Section 8. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect thereto. This Agreement may not be amended,
modified or rescinded except by an instrument in writing signed by each of the
parties hereto.
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(b) Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the principles of conflicts of law thereof.
(d) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
(e) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed duly delivered (i) three business days after
being sent by registered or certified mail, return receipt requested, postage
prepaid, or (ii) one business day after being sent for next business day
delivery, fees prepaid, via a reputable nationwide or international overnight
courier service, in each case to the intended recipient as set forth below:
(i) if to a Shareholder to the address set forth on the
respective signature page of this Agreement;
with copies to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx Professional Corporation
One Market
Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
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(ii) if to SkillSoft to:
SkillSoft Corporation
00 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxx Xxxxxxxxx
Attn: Chief Executive Officer
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(f) No Third Party Beneficiaries. This Agreement is not intended,
and shall not be deemed, to confer any rights or remedies upon any person other
than the parties hereto and their respective successors and permitted assigns,
to create any agreement of employment with any person or to otherwise create any
third-party beneficiary hereto.
(g) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise by any of the parties hereto
without the prior written consent of the other parties, and any such assignment
without such prior written consent shall be null and void, except that SkillSoft
may assign this Agreement to any direct or indirect wholly owned subsidiary of
SkillSoft without such consent, provided that SkillSoft shall remain liable for
all of its obligations under this Agreement. Subject to the preceding sentence,
this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties hereto and their respective successors and permitted
assigns.
(h) Interpretation. When reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement, unless
otherwise indicated. The headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party.
Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural, and vice versa. Any
reference to any federal, state, local or foreign statute or law shall be deemed
also to refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." No summary of this Agreement prepared by the
parties shall affect in any way the meaning or interpretation of this Agreement.
(i) WAIVER OF JURY TRIAL. SKILLSOFT AND EACH SHAREHOLDER HEREBY
IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON
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CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF SKILLSOFT OR EACH SHAREHOLDER
IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT.
[Signature Page to follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be signed individually or by its respective duly authorized officer as of the
date first written above.
SKILLSOFT CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: President and CEO
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SHAREHOLDERS:
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Signature
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Name
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Address
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Address
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/s/ Xxxxxxx X. Xxxxxx
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Signature
Xxxxxxx X. Xxxxxx
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Name
SmartForce, 000 Xxxxxxxxxx Xxxxx
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Address
Xxxxxxx Xxxx, XX 00000
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Address
/s/ Xxxxxxx X. Xxxxxx
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Signature
Xxxxxxx X. Xxxxxx
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Name
SmartForce, 000 Xxxxxxxxxx Xxxxx
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Address
Xxxxxxx Xxxx, XX 00000
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Address
/s/ Xxxx Xxxxx
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Signature
Xxxx Xxxxx
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Name
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Address
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Address
/s/ Xxxxxx X. Xxxxxx
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Signature
Xxxxxx X. Xxxxxx
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Name
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Address
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Address
/s/ Xxxx X. Xxxxxxx
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Signature
Xxxx X. Xxxxxxx
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Name
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Address
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Address
/s/ Xxxxx X. Xxxxxxxxx
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Signature
Xxxxx X. Xxxxxxxxx
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Name
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Address
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Address
/s/ Xxxxxxx X. XxXxxxxx
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Signature
Xxxxxxx X. XxXxxxxx
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Name
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Address
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Address
/s/ Ferdinand von Prondzynski
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Signature
Ferdinand von Prondzynski
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Name
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Address
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Address
/s/ Xxxxxxx Xxxx Xxxxxx
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Signature
Xxxxxxx Xxxx Xxxxxx
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Name
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Address
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Address
SMARTFORCE PUBLIC LIMITED COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Chairman and CEO
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SCHEDULE I
NUMBER OF SATURN NUMBER OF SATURN
SHAREHOLDER ORDINARY SHARES OWNED ADSs OWNED
----------- --------------------- ----------------
Xxxxxxx Xxxx Xxxxxx 0 0
Xxxxxx X. Xxxxxx 0 0
Ferdinand von Prondzynski 10 10
Xxxxx X. Xxxxxxxxx 3,000 3,000
Xxxx Xxxxx 4,335 4,335
Xxxxxxx X. XxXxxxxx 300,000 300,000
Xxxxxxx X. Xxxxxx 3,163 3,163
Xxxxxxx X. Xxxxxx 71,024 71,024
Xxxx X. Xxxxxxx 2,700 2,700
Note: None of the individuals above own ordinary shares directly (all shares are
held as ADSs via AIB Custodial Nominees Ltd.)
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