Exhibit 3
SKILLSOFT STOCKHOLDER VOTING AGREEMENT
SKILLSOFT STOCKHOLDER VOTING AGREEMENT, dated as of June 10, 2002 (this
"Agreement"), among the stockholders of SkillSoft Corporation, a Delaware
corporation ("SkillSoft") listed on the signature page(s) hereto (collectively,
"Stockholders" and each individually, a "Stockholder"), SkillSoft and SmartForce
Public Limited Company, a public limited company incorporated under the laws of
the Republic of Ireland ("SmartForce"). 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 Stockholders collectively own of
record and beneficially shares of capital stock of SkillSoft, as set forth on
Schedule I hereto (such shares, or any other voting or equity securities of
SkillSoft hereafter acquired by any Stockholder 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 SmartForce to enter into
the Merger Agreement, SmartForce has required that the Stockholders agree, and
in order to induce SmartForce to enter into the Merger Agreement, the
Stockholders 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 Stockholder covenants and agrees that until the
termination of this Agreement in accordance with the terms hereof, at the
SkillSoft Meeting or any other meeting of the stockholders of SkillSoft, however
called, and in any action by written consent of the stockholders of SkillSoft,
such Stockholder will vote, or cause to be voted, all of his, her or its
respective Shares (a) in favor of adoption of the SkillSoft 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 Stockholder hereby irrevocably grants to, and
appoints, SmartForce, 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 stockholders of SkillSoft called with respect to
any of the matters specified in, and in accordance and consistent with this
Section 1. Each Stockholder
understands and acknowledges that SmartForce is entering into the Merger
Agreement in reliance upon the Stockholders' execution and delivery of this
Agreement. Each Stockholder 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 Stockholder under this Agreement. Except as otherwise
provided for herein, each Stockholder 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 Section 212(e) of the Delaware General Corporation 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 Stockholder covenants and agrees that such
Stockholder 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, (i) Xxxxxxx X. Xxxxx
may sell, assign or transfer up to 5% of the Shares owned by him as of the date
of this Agreement and (ii) all other Stockholders, not including Xxxxxxx X.
Xxxxx and Warburg, Xxxxxx Ventures, L.P., may sell, assign or transfer up to 2.5
% of the Shares owned by such Stockholder as of the date of this Agreement.
(b) Each Stockholder agrees to submit to SkillSoft
contemporaneously with or promptly following execution of this Agreement all
certificates representing the Shares so that the SkillSoft may place thereon a
conspicuous legend referring to the transfer restrictions set forth in this
Agreement and SkillSoft shall cause its transfer agent to decline to transfer
and to note stop transfer restrictions on the stock register and other records
relating to the Shares.
Section 3. Representations and Warranties of the Stockholders. Each
Stockholder on its, his or her own behalf hereby severally represents and
warrants to SmartForce with respect to itself and its, his or her ownership of
the Shares as follows:
(a) Ownership of Shares. The Stockholder 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; other than with respect to Xxxx Xxxxxxxx and
Xxxxxx Nine who have liens for an aggregate of 216,666 and 250,000 shares of
Common Stock, respectively, in favor of SkillSoft pursuant to security
agreements. The Stockholder owns no shares of Common Stock other than the Shares
as set forth on Schedule I
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hereto. The Stockholder has sole voting power, without restrictions, with
respect to all of the Shares.
(b) Power, Binding Agreement. The Stockholder 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 Stockholder and constitutes a valid
and binding obligation of the Stockholder, enforceable against the Stockholder
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 Stockholder, the Shares or any of the Stockholder's properties
or assets. Except as expressly contemplated hereby, the Stockholder 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, stockholders' 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 Stockholder is signing this Agreement
solely in such Stockholder's capacity as an owner of his, her or its respective
Shares, and nothing herein shall prohibit, prevent or preclude such Stockholder
from taking or not taking any action in his or her capacity as an officer or
director of SkillSoft, to the extent permitted by the Merger Agreement.
Section 7. Consent and Waiver. Each Stockholder in its, his or her
capacity as a stockholder of SkillSoft 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 Stockholder is a party or pursuant to any rights
such Stockholder may have in its, his or her capacity as a stockholder of
SkillSoft.
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.
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This Agreement may not be amended, modified or rescinded except by an instrument
in writing signed by each of the parties hereto.
(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 Stockholder to the address set forth on
the respective signature page of this Agreement;
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(ii) if to SmartForce to:
SmartForce Public Limited Company
000 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
with copies to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx Professional
Corporation
000 Xxxx Xxxx Xxxx
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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
(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
SmartForce may assign this Agreement to any direct or indirect wholly owned
subsidiary of SmartForce without such consent, provided that SmartForce 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. SMARTFORCE AND EACH STOCKHOLDER
HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE
ACTIONS
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OF SMARTFORCE, OR EACH STOCKHOLDER 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.
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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STOCKHOLDERS:
---------------------------------
Signature
---------------------------------
Name
---------------------------------
Address
---------------------------------
Address
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/s/ Xxxxxxx X.X. Xxxxx
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Signature
Warburg, Xxxxxx Ventures, L.P., Warburg,
Xxxxxx & Co., Warburg Pincus LLC
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Name
Warburg Pincus LLC, 000 Xxxxxxxxx Xxx.
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Address
Xxx Xxxx, XX 00000
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Address
/s/ Xxxxxxx X. Xxxxx
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Signature
Xxxxxxx X. Xxxxx
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Name
SkillSoft Corporation, 00 Xxxxxxxxxx Xxxx Xxxxx
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Address
Xxxxxx, XX 00000
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Address
/s/ Xxxxxxx X.X. Xxxxx
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Signature
Xxxxxxx X.X. Xxxxx
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Name
Warburg Pincus LLC, 000 Xxxxxxxxx Xxx.
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Address
Xxx Xxxx, XX 00000
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Address
/s/ C. Xxxxxxxx Xxxx
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Signature
C. Xxxxxxxx Xxxx
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Name
Warburg Pincus LLC, 000 Xxx Xxxxx Xxx.
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Address
Xxxxx Xxxx, XX 00000
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Address
/s/ Xxxxx Xxxxxxxx
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Signature
Xxxxx Xxxxxxxx
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Name
---------------------------------------------
Address
---------------------------------------------
Address
/s/ Xxxxxxx X. Xxxxxxx III
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Signature
Xxxxxxx X. Xxxxxxx III
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Name
BEA Systems, Inc., 0000 Xxxxx Xxxxx Xxxxxx
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Address
Xxx Xxxx, XX 00000
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Address
/s/ Xxxx X. Xxxxxxxxx
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Signature
Xxxx X. Xxxxxxxxx
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Name
Boston College, 00 Xxxxxxx Xx.
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Address
Xxxxxxxx Xxxx, XX 00000
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Address
/s/ Xxxxxx X. XxXxxxxx
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Signature
Xxxxxx X. XxXxxxxx
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Name
SkillSoft Corporation, 00 Xxxxxxxxxx Xxxx Xxxxx
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Address
Xxxxxx, XX 00000
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Address
/s/ Xxxxxx X. Nine
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Signature
Xxxxxx X. Nine
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Name
SkillSoft Corporation, 00 Xxxxxxxxxx Xxxx Xxxxx
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Address
Xxxxxx, XX 00000
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Address
/s/ Xxxx X. Xxxxxxxx, Xx.
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Signature
Xxxx X. Xxxxxxxx, Xx.
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Name
SkillSoft Corporation, 00 Xxxxxxxxxx Xxxx Xxxxx
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Address
Xxxxxx, XX 00000
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Address
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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SCHEDULE I
NUMBER OF SHARES OF
STOCKHOLDER COMMON STOCK OWNED
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Xxxxx Xxxxxxxx 144,830
C. Xxxxxxxx Xxxx 0
Xxxxxxx X. Xxxxxxx III 0
Xxxxxxx X.X. Xxxxx 0
Xxxxxx X. XxXxxxxx 137,541
Xxxxxxx X. Xxxxx 410,549
Xxxx X. Xxxxxxxxx 0
Xxxxxx X. Nine 290,000
Xxxx X. Xxxxxxxx 323,333
Warburg, Xxxxxx Ventures, L.P., Warburg, Xxxxxx & Co., 5,609,524
and Warburg Pincus LLC
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