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EXHIBIT 99.3
KANA STOCK VOTING AGREEMENT
THIS KANA STOCK VOTING AGREEMENT ("KANA STOCK VOTING AGREEMENT") is
made and entered into as of February 6, 2000 by and between Silknet Software
Inc., a Delaware corporation ("SILKNET"), and the undersigned director, officer
or affiliate (the "HOLDER") of Kana Communications, Inc., a Delaware corporation
("KANA").
RECITALS
Concurrently with the execution of this Kana Stock Voting Agreement,
Silknet, Pistol Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Kana ("SUB"), and Kana have entered into an Agreement and Plan of
Reorganization, dated as of February 6, 2000 (the "MERGER AGREEMENT") providing
for the merger of Sub with and into Silknet (the "MERGER"). As a result of the
Merger, which is intended to qualify as a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended, Silknet will
become a wholly-owned subsidiary of Kana and stockholders of Silknet will become
stockholders of Kana. Holder is the holder of record and the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT")) of the number of shares of the capital stock of Kana
indicated on the signature page of this Kana Stock Voting Agreement (the
"SHARES"). As a condition to its execution and delivery of the Merger Agreement,
Silknet has requested that Holder agree, and in consideration, and to induce the
execution and delivery, of the Merger Agreement by Silknet, Holder is willing to
agree (i) not to transfer or otherwise dispose of the Shares or any other shares
of capital stock of Kana acquired after the date of this Kana Stock Agreement
and prior to the expiration of this Kana Stock Voting Agreement, except as
specifically permitted hereby, and (ii) to vote the Shares and any other such
shares of Kana stock so as to facilitate consummation of the Merger, as more
fully described below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
Section 1 No Transfer or Encumbrance of Shares. Holder agrees not to
sell, pledge, assign, encumber, dispose of or otherwise transfer (including by
merger, testamentary disposition, interspousal disposition pursuant to a
domestic relations proceeding or otherwise by operation of law) ("TRANSFER") any
of the Shares or any New Shares (as defined below), or to make any offer or
agreement relating thereto at any time prior to the expiration of this Kana
Stock Voting Agreement. The foregoing restrictions shall not prohibit a transfer
of shares or New Shares (i) in the case of an individual, to any member of his
immediate family, to a trust for the benefit of Holder or any member of his
immediate family or a transfer of Shares or New Shares upon the death of Holder,
(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 Holder can
not prevent (it being understood that Holder shall use his best efforts to
prevent transfers other than pursuant to (i) and (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
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Silknet, to be bound by the terms and conditions of this Kana Stock Voting
Agreement. This Kana Stock Voting Agreement shall expire on the earlier of (a)
the date and time on which the Merger shall become effective in accordance with
the terms of the Merger Agreement or (b) the date on which the Merger Agreement
shall be terminated pursuant to Section 8.01 of the Merger Agreement (the
"EXPIRATION DATE"). Holder agrees that any shares of capital stock of Kana that
Holder purchases or with respect to which Holder otherwise acquires beneficial
ownership after the date of this Kana Stock Voting Agreement and prior to the
Expiration Date ("NEW SHARES") shall be subject to the terms and conditions of
this Kana Stock Voting Agreement to the same extent as if such shares
constituted Shares.
Section 2 Agreement to Vote Shares. Holder hereby agrees to appear, or,
using Holder's best efforts and to the full extent legally permitted, cause the
holder of record on any applicable record date to appear in person or by proxy
for the purpose of obtaining a quorum at any annual or special meeting of
stockholders of the Company and at any adjournment thereof at which matters
relating to the Merger, the Merger Agreement or any transaction contemplated
thereby are considered. At every meeting of the Kana stockholders called with
respect to any of the following, and at any adjournment thereof, Holder shall
vote or, using Holder's best efforts and to the full extent legally permitted,
cause the holder of record to vote the Shares and any New Shares (except those
Shares or New Shares which are not voting securities):
(a) in favor of approval of the issuance of shares of Kana
stock pursuant to the Merger Agreement, and any proposal or action
which would, or could reasonably be expected to, facilitate the Merger;
(b) against approval of any proposal made in opposition to or
competition with consummation of the Merger and the Merger Agreement;
(c) against any merger, consolidation or other business
combination of Kana with, sale of assets or stock of Kana to, or
reorganization or recapitalization involving Kana, other than as
contemplated or permitted by the Merger Agreement;
(d) against any liquidation, or winding up of Kana; and
(e) against any other proposal or action which would, or could
reasonably be expected to, impede, frustrate, prevent, prohibit or
discourage the Merger (each of (b) through (e) collectively, an
"OPPOSING PROPOSAL").
Holder, as the holder of voting stock of Kana, shall be present, in person or by
proxy, or, using Holder's best efforts and to the full extent legally permitted,
cause the holder of record to be present, in person or by proxy, at all meetings
of stockholders of Kana so that all Shares and New Shares are counted for the
purposes of determining the presence of a quorum at such meetings. This Kana
Stock Voting Agreement is intended to bind Holder only with respect to the
specific matters set forth herein, and shall not prohibit Holder from acting in
accordance with Holder's fiduciary duties as an officer or director of Kana.
Section 3 Option Exercise. Holder agrees that if, at any meeting of
stockholders of Kana called with respect to any of (a) through (e) of Section 2
hereof, the number of shares of
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Kana's capital stock voting in accordance with (a) through (e) of Section 2
hereof shall not be enough to prevail in such vote, Holder will immediately
exercise any and all options and warrants, or otherwise convert or exercise any
securities, beneficially owned by him (to the full extent permitted by
applicable law) in order to vote all New Shares resulting from such exercise or
conversion in accordance with Section 2 hereof. Silknet hereby agrees that, in
the event Holder is required pursuant to this Section 3 to convert or exercise
any securities and upon request by Holder, Silknet will make a loan, evidenced
by a promissory note and on reasonable terms, to Holder (or any third party) in
the amount of any tax imposed on Holder (or such third party) solely as a result
of such conversion or exercise.
Section 4 Irrevocable Proxy. Concurrently with the execution of this
Kana Stock Voting Agreement, Holder agrees to deliver to Silknet a proxy in the
form attached hereto as Annex A (the "PROXY"), which shall be irrevocable to the
extent provided therein; provided, however, that the Proxy shall be revoked upon
termination of this Kana Stock Voting Agreement in accordance with its terms.
Section 5 Representations, Warranties and Covenants of Holder. Holder
hereby represents, warrants and covenants to Silknet as follows:
(a) Ownership of Shares. Holder (i) is the holder of record or
beneficial owner or holder of the voting power of the Shares and will
be the holder of record or beneficial owner or holder of the voting
power of all New Shares, if any, which at the date hereof and at all
times until the Expiration Date will be free and clear of any liens,
claims, options, charges or other encumbrances that would interfere
with the voting of the Shares or the granting of any proxy with respect
thereto, (ii) does not beneficially own any shares of capital stock of
Kana other than the Shares (except to the extent that Holder currently
disclaims beneficial ownership in accordance with applicable law) and
(iii) has full power and authority to make, enter into, deliver and
carry out the terms of this Kana Stock Voting Agreement and the Proxy.
(b) No Voting Trusts and Agreements. Between the date of this
Agreement and the Expiration Date, Holder will not, and will not permit
any entity under Holder's control to, deposit any shares of Kana
capital stock held by Holder or such entity in a voting trust or
subject any shares of Kana capital stock held by such Holder or such
entity to any arrangement or agreement with respect to the voting of
such shares of capital stock, other than agreements entered into with
Silknet.
(c) Validity; No Conflict. This Kana Stock Voting Agreement
constitutes the legal, valid and binding obligation of Holder. Neither
the execution of this Kana Stock Voting Agreement by Holder nor the
consummation of the transactions contemplated herein will violate or
result in a breach of (i) any provision of any trust, charter,
partnership agreement or other charter document applicable to Holder,
(ii) any agreement to which Holder is a party or by which Holder is
bound, (iii) any decree, judgment or order to which Holder is subject,
or (iv) any law or regulation now in effect applicable to Holder.
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(d) No Proxy Solicitations. Subject to the last sentence of
Section 2, between the date of this Agreement and the Expiration Date,
Holder will not, and will not permit any entity under Holder's control,
to (i) solicit proxies or become a "participant" in a "solicitation"
(as such terms are defined in Rule 14A under the Exchange Act) with
respect to an Opposing Proposal or otherwise encourage or assist any
party in taking or planning any action which would compete with,
restrain or otherwise serve to interfere with or inhibit the timely
consummation of the Merger in accordance with the terms of the Merger
Agreement, (ii) initiate a stockholders' vote with respect to an
Opposing Proposal or (iii) become a member of a "group" (as such term
is used in Section 13(d) of the Exchange Act) with respect to any
voting securities of Kana with respect to an Opposing Proposal.
Section 6 Representations, Warranties and Covenants of Silknet. Silknet
represents, warrants and covenants to Holder as follows:
(a) Due Authorization. This Kana Stock Voting Agreement has
been authorized by all necessary corporate action on the part of
Silknet and has been duly executed by a duly authorized officer of
Silknet.
(b) Validity; No Conflict. This Kana Stock Voting Agreement
constitutes the legal, valid and binding obligation of Silknet. Neither
the execution of this Kana Stock Voting Agreement by Silknet nor the
consummation of the transactions contemplated herein will violate or
result in a breach of (i) any agreement to which Silknet is a party or
by which Silknet is bound, (ii) any decree, judgment or order to which
Silknet is subject, or (iii) any law or regulation now in effect
applicable to Silknet.
Section 7 Additional Documents. Holder and Silknet hereby covenant and
agree to execute and deliver any additional documents necessary or desirable, in
the reasonable opinion of Silknet's legal counsel or Holder, as the case may be,
to carry out the intent of this Kana Stock Voting Agreement.
Section 8 Legending of Shares. Upon the request of Silknet, Holder
agrees that it shall forthwith surrender all certificates representing the
Shares so that they shall bear a conspicuous legend stating that they are
subject to this Agreement (and the restrictions on transfer provided for herein)
and to an Irrevocable Proxy. Subject to the terms of Section 2 hereof,
Stockholder agrees that it shall not Transfer the Shares without first having
the aforementioned legend affixed to the certificates representing the Shares.
Section 9 Consent and Waiver. Holder hereby gives any consent or waiver
reasonably required for the consummation of the Merger under the terms of any
agreement to which Holder is a party.
Section 10 Termination. Notwithstanding any other provision contained
herein, this Kana Stock Voting Agreement and the Proxy, and all obligations of
Holder hereunder and thereunder, shall terminate as of the Expiration Date.
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Section 11 No Solicitation.
(a) Until the earlier of the Effective Time (as defined in the
Merger Agreement) or a valid termination of the Merger Agreement
pursuant to Article VIII thereof, Holder will not, and will not
authorize, direct or permit any of its officers, directors, employees,
affiliates under its control, investment bankers, attorneys,
accountants or other agents, advisors or representatives (collectively,
"REPRESENTATIVES") to, directly or indirectly, (i) solicit, initiate,
encourage or induce the making, submission or announcement of any Kana
Takeover Proposal (as defined below), (ii) participate in any
discussions or negotiations with any person regarding, or furnish to
any person any information with respect to, or take any other action to
facilitate any inquiry or proposal that constitutes or may reasonably
be expected to lead to, any Kana Takeover Proposal, (iii) authorize,
approve or recommend any Kana Takeover Proposal, or (iv) enter into any
letter of intent or similar document or any contract, agreement or
commitment accepting or providing for any Kana Takeover Proposal.
(b) Holder and Silknet agree that irreparable damage would
occur in the event that the provisions of this Section 11 were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed by the parties hereto that Silknet
shall be entitled to seek an injunction or injunctions to prevent
breaches of this Section 11 and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which the
parties may be entitled at law or in equity.
(c) For purposes of this Agreement, "KANA TAKEOVER PROPOSAL"
means any offer or proposal for, or any indication of interest in, a
merger or other business combination involving an acquisition or a
change in control of Kana or the acquisition of a majority of the
outstanding shares of capital stock of Kana, or all or substantially
all of the assets of Kana, or any other transaction inconsistent with
consummation of the transactions contemplated hereby, which offer,
proposal or indication of interest is conditioned on the termination of
the Merger Agreement by Kana or the denial by Kana stockholders of the
Kana Voting Proposal.
Section 12 Confidentiality. Holder agrees (i) to hold any information
regarding this Agreement and the Merger in strict confidence and (ii) not to
divulge any such information to any third person, except to the extent any of
the same is hereafter publicly disclosed by Silknet.
Section 13 Miscellaneous.
(a) Severability. If any term, provision, covenant or
restriction of this Kana Stock Voting Agreement or the Proxy (i) is
held by a court of competent jurisdiction to be invalid, void or
unenforceable for any reason, or (ii) would preclude the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended, such term, provision,
covenant or restriction shall be modified or voided, as may be
necessary to achieve the intent of the parties to the extent possible,
and the remainder of the terms, provisions, covenants and restrictions
of this
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Kana Stock Voting Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment. This Kana Stock Voting
Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but, except as otherwise specifically
provided herein, neither this Kana Stock Voting Agreement nor any of
the rights, interests or obligations of the parties hereto may be
assigned by either of the parties hereto without the prior written
consent of the other, and any attempted assignment thereof without such
consent shall be null and void.
(c) Amendments and Modifications. This Kana Stock Voting
Agreement may not be modified, amended, altered or supplemented except
upon the execution and delivery of a written agreement executed by the
parties hereto.
(d) Specific Performance: Injunctive Relief. The parties
hereto acknowledge that Silknet will be irreparably harmed by a breach
of any of the covenants or agreements of Holder set forth herein and
that there will be no adequate remedy at law for such a breach.
Therefore, it is agreed that, in addition to any other remedies which
may be available to Silknet upon such breach, Silknet shall have the
right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to it at law or in
equity.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if
delivered in person, by commercial overnight courier service, by
confirmed telecopy, or sent by mail (registered or certified mail,
postage prepaid, return receipt requested), to the respective parties
as follows:
If to Silknet: Silknet Software Inc.
Xxx Xxxxxxx Xxxxxxxx
00 Xxxxxxxxx Xxxx Xxxxxx
Fax: (000) 000-0000
Attention: Chief Executive Officer
If to Holder: To the address for notice set forth on
the last page hereof.
With a copy to: Kana Communications, Inc.
000 Xxx Xxxx
Xxxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Chief Executive Officer
and to: Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
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Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxxxxxxx, Esq.
and to: Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx X. Xxxxxx, Esq.
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
(f) Governing Law. This Kana Stock Voting Agreement shall be
governed by, construed and enforced in accordance with the laws of the
State of Delaware, without giving effect to principles of conflicts of
law. Each party hereto irrevocably and unconditionally consents and
submits to the jurisdiction of the courts of the State of Delaware and
of the United States of America located in the State of Delaware for
any actions, suits or proceedings arising out of or relating to this
agreement and the transactions contemplated hereby.
(g) Entire Agreement. This Kana Stock Voting Agreement
contains the entire understanding of the parties with respect to the
subject matter hereof, and supersedes all prior negotiations and
understandings between the parties with respect to such subject matter.
(h) Counterparts. This Kana Stock Voting Agreement may be
executed in one or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
(i) Effect of Headings. The section headings contained herein
are for convenience only and shall not affect the construction or
interpretation of this Kana Stock Voting Agreement.
(j) Holder Capacity. Notwithstanding anything herein to the
contrary, no person executing this Agreement who is, or becomes during
the term hereof, a director of Silknet makes any agreement or
understanding herein in his or her capacity as such director, and the
agreements set forth herein shall in no way restrict any director in
the exercise of his or her fiduciary duties as a director of Silknet.
Holder has executed this Agreement solely in his or her capacity as the
record or beneficial holder of such Holder's Shares or as the trustee
of a trust whose beneficiaries are the beneficial owners of such
Holder's Shares.
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IN WITNESS WHEREOF, the parties have caused this Kana Stock Voting
Agreement to be duly executed on the day and year first above written.
SILKNET SOFTWARE INC.
By: /s/ Xxxxx X. Xxxx
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Its: Chairman of the Board,
President and Chief
Executive Officer
[SIGNATURE PAGE TO STOCK VOTING AGREEMENT
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HOLDER
By: __________________________________
Holder's Address for Notice:
______________________________________
______________________________________
______________________________________
Number of Shares owned beneficially:
______________________________________
Number of Shares owned of record (if
different from above):
______________________________________
[SIGNATURE PAGE TO STOCK VOTING AGREEMENT]
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ANNEX A
IRREVOCABLE PROXY
The undersigned stockholder of Kana Communications, Inc., a Delaware
corporation ("KANA"), hereby irrevocably appoints and constitutes the members of
the Board of Directors of Silknet Software Inc., a Delaware corporation
("SILKNET"), and each of them (the "PROXYHOLDERS"), the agents and proxies of
the undersigned, with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to the shares of capital stock
of Kana beneficially owned by the undersigned, which shares are listed below and
any and all other shares or securities issued or issuable in respect thereof, or
which the undersigned otherwise acquires, on or after the date hereof and prior
to the date this proxy terminates (collectively, the "SHARES"), to vote the
Shares (except those Shares which are not voting securities at the time of the
vote, or are not converted into voting securities at the time of a vote) as
follows:
The agents and proxies named above are empowered at any time prior to
termination of this proxy to exercise all voting and other rights
(including, without limitation, the power to execute and deliver
written consents with respect to the Shares) of the undersigned at
every annual, special or adjourned meeting of Kana stockholders, and in
every written consent in lieu of such a meeting, or otherwise,
(a) in favor of (i) the issuance of shares of Kana stock
pursuant to the Agreement and Plan of Reorganization by and among Kana,
Pistol Acquisition Corp. ("SUB"), and Silknet, dated as of February 6,
2000, as the same may be amended from time to time (the "MERGER
AGREEMENT"), and (ii) any proposal or action which would or could
reasonably be expected to facilitate the merger of Sub with and into
Silknet pursuant to the Merger Agreement (the "MERGER");
(b) against approval of any proposal made in opposition to or
competition with consummation of the Merger and the Merger Agreement;
(c) against any merger, consolidation or other business
combination of Kana with, sale of assets or stock of Kana to, or
reorganization or recapitalization involving Kana, other than as
contemplated or permitted by the Merger Agreement;
(d) against any liquidation, or winding up of Kana; and
(e) against any other proposal or action which would, or could
reasonably be expected to, prohibit or discourage the Merger.
The Proxyholders may not exercise this proxy with respect to any other matter.
The undersigned may vote the Shares on all such other matters.
The proxy granted by the undersigned to the Proxyholders hereby is
granted as of the date of this Irrevocable Proxy in order to secure the
obligations of the undersigned set forth in
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Section 2 of the Kana Stock Voting Agreement, and is irrevocable and coupled
with an interest in such obligations and in the interests in Kana to be
purchased and sold pursuant the Merger Agreement. This proxy will terminate upon
the termination of the Kana Stock Voting Agreement in accordance with its terms.
Upon the execution hereof, all prior proxies given by the undersigned
with respect to the Shares are hereby revoked, and no subsequent proxies will be
given with respect to the Shares until such time as this proxy shall be
terminated in accordance with its terms.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned. The undersigned authorizes the
Proxyholders to file this proxy and any substitution or revocation of
substitution with the Secretary of Kana and with any Inspector of Elections at
any meeting of the stockholders of Kana.
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This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned.
Dated: February __, 2000.
Name of Stockholder: __________________________
Signature of Stockholder: __________________________
Shares beneficially owned by Stockholder: __________________________
Shares owned of record by Stockholder: __________________________
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
