This VOTING
AGREEMENT (this “ Agreement ”) is entered into
as of December 15, 2006 by and among (i) M2M Holdings,
Inc., a Delaware corporation (“ Parent ”); and
(ii) the stockholders of KNOVA Software, Inc. (the “
Company ”) listed on the signature pages hereto
(collectively, the “ Stockholders ” and each
individually, a “ Stockholder ”). Capitalized
terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Merger Agreement
referred to below.
A. As of the
date hereof, the Stockholders collectively own of record and
beneficially shares of capital stock of the Company, as set forth
on Schedule I hereto (such shares, or any other voting
or equity of securities of the Company hereafter acquired by any
Stockholder prior to the termination of this Agreement, being
referred to herein collectively as the “ Shares
”).
B. Concurrently
with the execution of this Agreement, Parent and the Company 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, Magic
Software Acquisition Corp. (“ Merger Sub ”) will
be merged with and into the Company, and the Company will be the
surviving corporation (the “ Merger
”).
C. As a
condition to the willingness of Parent to enter into the Merger
Agreement, Parent has required that the Stockholders agree, and in
order to induce Parent to enter into the Merger Agreement, the
Stockholders are willing to agree, to vote in favor of adopting the
Merger Agreement and approving the Merger, upon the terms and
subject to the conditions set forth herein.
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:
1.1. Voting
. Each Stockholder covenants and agrees that until the termination
of this Agreement in accordance with the terms hereof, at the
Company Stockholders’ Meeting (including any adjournment or
postponement thereof) or any other meeting of the stockholders of
the Company, however called, and in any action by written consent
of the stockholders of the Company, such Stockholder shall vote, or
cause to be voted (or exercise his, her or its right of consent
with respect to) all of his, her or its respective
Shares:
(a) in favor of
the approval and adoption of the Merger Agreement and the approval
of the Merger contemplated by the Merger Agreement, as the Merger
Agreement may be modified or amended from time to time;
and
Voting Agreement — Page
2
(b) against
(i) any other Acquisition Proposal; or (ii) any action or
agreement, including any proposed amendment of the Company’s
certificate of incorporation or bylaws or other proposal or
transaction involving the Company or any of its Subsidiaries which
action, agreement, amendment or other proposal or transaction is
intended by the Stockholders to, in any manner impede, interfere
with, delay, or attempt to frustrate, prevent or nullify the
Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement including, without limitation,
any action or agreement that would result in a breach in any
material respect of any covenant, representation, warranty or any
other obligation or agreement of the Company under the Merger
Agreement (each of the foregoing in clause (i) or
(ii) above, a “ Competing Transaction
”).
1.2. Grant of
Proxy . Other than pursuant to the terms of this Agreement or
the Merger Agreement, each Stockholder hereby irrevocably grants
to, and appoints, Parent, 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 the Company 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 Parent is entering into the Merger Agreement in
reliance upon the Stockholder’s execution and delivery of
this Agreement. Each Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 1.2 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 affirms that
the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Notwithstanding any other provisions of
this Agreement, the irrevocable proxy granted hereunder shall
automatically terminate upon the termination of this
Agreement.
2. Transfer
of Shares . Each Stockholder covenants and agrees that such
Stockholder will not directly or indirectly, (a) 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, (b) 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 (c) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect
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.
3.
Representations and Warranties of the Stockholders . Each
Stockholder on his, her or its own behalf hereby severally
represents and warrants to Parent with respect to itself and its,
his or her ownership of the Shares as follows:
3.1. Ownership
of Shares . On the date hereof, the Shares are owned
beneficially by such Stockholder or its nominee, and the Shares
represent all of the shares of Company Common Stock owned
(beneficially or of record) by such Stockholder. Such Stockholder
has sole voting power, without restrictions, with respect to all of
the Shares. The Shares are free and clear of all
Voting Agreement — Page
3
liens, pledges,
security interests, claims, options, rights of first refusal and
any other similar restrictions.
3.2. Power,
Binding Agreement . Such Stockholder has (and will have) the
legal capacity, power and authority to enter into and perform all
of its obligations under this Agreement. The execution, delivery
and performance of this Agreement by such Stockholder will not
violate any agreement to which such Stockholder is a party,
including, without limitation, any voting agreement,
stockholders’ agreement, partnership agreement or voting
trust. This Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a valid and binding
obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and
remedies generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity).
3.3. 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 such Stockholder or any
of its properties or assets, other than such conflicts, violations
or defaults or terminations, cancellations or accelerations which
individually or in the aggregate do not impair the ability of such
Stockholder to perform its obligations hereunder.
3.4 No Other
Representations or Warranties . Exc
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