VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 22, 2000 (this "Agreement"), by and
among Shanecy, Inc., a Delaware corporation (the "Company), and the stockholders
of ThemeWare, Corp, a California corporation ("ThemeWare"), listed on Schedule I
hereto (each, a "Shareholder" and, collectively, the "Shareholders").
WHEREAS, the Company and ThemeWare propose to enter into an Agreement
an Plan of Merger, (the "Merger Agreement") as evidenced by the Term Sheet
entered into by the Company and ThemeWare, dated the date hereof (the "Term
Sheet"), which provides for, among other things, the merger of ThemeWare with
and into a wholly owned subsidiary the Company (the "Merger");
WHEREAS, as of the date hereof, the Shareholders are holders of record
or Beneficially Own (as defined herein) a majority of the shares of common
stock, of ThemeWare (the "Common Stock"); and
WHEREAS, as condition to the willingness of the Company to enter into
the Merger Agreement, the Company has required that each Shareholder agree, and
in order to induce the Company to enter into the Merger Agreement, each
Shareholder has agreed, severally and not jointly, to enter into this Agreement
with respect to all of the shares of Common Stock now held of record or
Beneficially Owned and which may hereafter be acquired by such Shareholder
(collectively, the "Shares").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows;
ARTICLE I
DEFINITION
Section 1.1 Beneficial Ownership. For purposes of this Agreement,
"Beneficially Own" or "Beneficial Ownership" with respect to any securities
shall mean "beneficial ownership" of such securities (as determined pursuant to
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), including pursuant to any agreement, arrangement or understanding,
whether or not in writing.
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ARTICLE II
Section 2.1 Voting Agreement. Each of the Shareholders hereby agrees as
follows:
(a) to appear, or cause the holder of record on any applicable
record date with respect to any Shares to appear, in person or by
proxy, for the purpose of obtaining a quorum at any annual or special
meeting of stockholders of ThemeWare and at any adjournment thereof at
which matters relating to the Merger, the Merger Agreement, or any
transaction contemplated by the Merger Agreement are considered; and
(b) at any meeting of the stockholders of ThemeWare however
called, and in any action by consent of the stockholders of ThemeWare,
to vote in person or by proxy, the Shares held of record or
Beneficially Owned by such Shareholder in favor as required of the
Merger, the Merger Agreement (as amended from time to time), and the
transactions contemplated by the Merger Agreement.
Section 2.2 No Ownership Interest. Except as set forth in Section 2.1,
nothing contained in this Voting Agreement shall be deemed to vest in the
Company any direct or indirect ownership or incidence of ownership of or with
respect to any Shares. All, rights, ownership and economic benefits of and
relating to the Shares shall remain and belong to the Shareholders, and the
Company shall have no authority to manage, direct, restrict, regulate, govern,
or administer any of the policies or operations of ThemeWare, except as set
forth separately in other documents and/or agreements of the Company and
ThemeWare, or exercise any power or authority to direct the Shareholders in the
voting of any of the Shares except as otherwise provided herein, or the
performance of the Shareholders' duties or responsibilities as stockholders of
ThemeWare.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
Each of the Shareholders hereby represents and warrants, severally and
not jointly, to the Company as follows:
Section 3.1 Authority Relative to This Agreement. Such Shareholder has
all necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed by such
Shareholder and, assuming the due authorization, execution and delivery by the
other parties hereto, constitutes a legal, valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance with its terms.
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Section 3.2 No Conflict. (a) The execution and delivery of this
Agreement by such Shareholder does not, and the performance of this Agreement by
such Shareholder shall not, (i) conflict with or violate any agreement,
arrangement, law, rule, regulation, order, judgment or decree to which such
Shareholder is a party or by which such Shareholder (or the Shares held of
record or Beneficially Owned by such Shareholder) is bound or affected or (ii)
result in any breach or constitute a default (or an event that with notice or
lapse or time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation or, or result in
the creation of a lien or encumbrance on any of the Shares held of record or
Beneficially Owned by such Shareholder pursuant to a note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Shareholder is a party or by which such
Shareholder (or the shares held of record or Beneficially Owned by such
Shareholder) is bound or affected, except, in the case of clause (i) and (ii) of
this Section 3.2, for any such conflicts, violations, breaches, defaults or
other occurrence which would not prevent the performance by such Shareholder of
its material obligations under this Agreement.
(b) The execution and delivery of this Agreement by such Shareholder
does not, and the performance of this Agreement by such Shareholder shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental entity except for applicable requirements, if
any, of federal or state securities and antitrust laws except where the failure
to obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent the performance by such Shareholder
of its material obligations under this Agreement.
Section 3.3 Title to the Shares. As of the date hereof, such
Shareholder is the record or Beneficial Owner of the Shares listed opposite the
name of such Shareholder on Schedule I hereto. Such Shareholder has not
appointed or granted any proxy, which appointment or grant is still effective,
with respect to the Shares held of record or Beneficially Owned by such
Shareholder. The Shares listed opposite the name of such Shareholder on Schedule
I hereto are owned free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, limitations on such Shareholder's
voting rights, charges or other encumbrances of any nature whatsoever other than
Liens under applicable law.
ARTICLE IV
COVENANTS OF THE SHAREHOLDER
Section 4.1 No Inconsistent Agreements. Each Shareholder hereby
represents, warrants, covenants and agrees that, except as contemplated by this
Agreement such Shareholder has not and shall not, and will use its reasonable
best efforts to not permit any Person under such Shareholder's control to, enter
into any voting agreement or grant a proxy or power of attorney with respect to
the Shares held of record or Beneficially Owned by such Shareholder which, in
either case, is inconsistent with this Agreement.
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Section 4.2 Transfer of Title. Each Shareholder hereby covenants and
agrees that such Shareholder will not, prior to the termination of this
Agreement, either directly or indirectly, offer or otherwise agree to sell,
assign, pledge, hypothecate, transfer, exchange, or dispose of any Shares or
options, warrants or other convertible securities to acquire or purchase shares
of Common Stock (collectively, "Derivative Securities") or any other securities
or rights convertible into or exchangeable for shares of Common Stock, owned
either directly or indirectly by such Stockholder or with respect to which such
Stockholder has the power of disposition, whether now or hereafter acquired,
without the prior written consent of the, unless the Person to whom Shares or
Derivative Securities have been sold, assigned, pledged, hypothecated,
transferred, exchanged or disposed agrees to be bound by this Agreement as if a
party hereto
ARTICLE V
MISCELLANEOUS
Section 5.1 Termination. This Agreement shall terminate upon the
earlier to occur of (i) the consummation of the Merger, in accordance with the
terms of the Merger Agreement, (ii) the termination of the Merger Agreement in
accordance with its terms or (iii) unless extended by agreement of each of the
parties hereto. Upon such termination, no party shall have any further
obligations or liabilities hereunder; provided, however, that nothing in this
Agreement shall relieve any party from liability for the breach of any of its
representations, warranties, covenants and agreements set forth in this
Agreement prior to such termination.
Section 5.2 Additional Shares. If, after the date hereof, a Shareholder
acquires the right to vote any additional shares of Common Stock (any such
shares shall be referred to herein as "Additional Shares"), including, without
limitation, upon exercise or conversion of any Derivative Security or through
any stock dividend or stock split, the provisions of this Agreement applicable
to the shares shall be applicable to such Additional Shares as if such
Additional Shares had been outstanding Shares as of the date hereof. The
provisions of the immediately preceding sentence shall be effective with respect
to Additional Shares without action by any Person immediately upon the
acquisition by a Shareholder of record or Beneficial Ownership of such
Additional shares.
Section 5.3 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.
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Section 5.4 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Shareholders with respect to the subject
matter thereof and supersedes all prior agreements and understandings, both
written and oral, between the Company and the Shareholders with respect to the
subject matter hereof.
Section 5.5 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 5.6 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic of legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereby 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
remains as originally contemplated.
Section 5.7 Notice. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made and shall be effective upon receipt, if delivered personally, upon
receipt of a transmission confirmation if sent by facsimile (with a confirming
copy sent by overnight courier) and on the next business day if sent by Federal
Express, United Parcel Service, Express Mail or other reputable overnight
courier to the parties at the following addresses (or at such other address for
a party as shall be specified by notice);
If to the Company:
Incubator Capital, Inc.
Attn: Xxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
With a copy to:
Eisner & Associates
Attn: Xxxxxxx Xxxxxx
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
If to the Shareholders, to the address listed opposite their names on
Schedule I attached hereto.
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Section 5.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
agreements made and to be performed entirely within such state without giving
effect to the provisions thereof relating to conflicts of law.
Section 5.9 Obligations of Shareholders. The obligations of the
Stockholders hereunder shall be "several" and not "joint" or "joint and
several." Without limiting the generality of the foregoing, under no
circumstances will any Stockholder have any liability or obligation with respect
to any misrepresentation or breach of covenant of any other Shareholder.
Section 5.10 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be an original and all of which, when
taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the Company and the Shareholders have
caused this Agreement to be executed on the date hereof.
SHANECY, INC.
/s/
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: President
SHAREHOLDERS:
Xxxxxxx Xxxxxx Xxxx Xxxxxx
/s/ /s/
--------------------- -----------------------
Xxxxxx Tadyon Xxx Xxxxxx
/s/ /s/
--------------------- -----------------------
Xxx Xxxxx Xxxx X. Xxxxxxx
/s/ /s/
--------------------- -----------------------
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Voting Agreement
Signature Page Continued
-------------------------------
Lending Institute Limited Xxxx Xxxxxxx
/s/ /s/
--------------------- -----------------------
By:
Its:
Xxxxxxx Xxxxxx Pinpoint Direct
/s/ /s/
--------------------- -----------------------
By:
Its:
Xxxx Xxxxx Xxxxxxx Xxxx
/s/ /s/
--------------------- -----------------------
Xxx Xxxxxx
/s/
---------------------
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SCHEDULE I
Name of Shareholder Number of Shares Address
------------------- ---------------- -------
Xxxxxxx Xxxxxx
Xxxxxx Tadyon
Xxx Xxxxx
Xxxx Xxxxxx
Xxx Xxxxxx
Xxx Xxxxx
Xxxx X. Xxxxxxx
Lending Institute Limited
Xxxx Xxxxxxx
Xxxxxxx Xxxxxx
Pinpoint Direct
Xxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx
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