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EXHIBIT 99.2
BROADBASE VOTING AGREEMENT AND IRREVOCABLE PROXY
This Voting Agreement AND IRREVOCABLE PROXY (this "AGREEMENT") is made and
entered into as of September 18, 2000 (the "EFFECTIVE DATE"), by and between
Servicesoft, Inc., a Delaware corporation ("SERVICESOFT"), and the undersigned
stockholder (the "STOCKHOLDER") of Broadbase Software, Inc., a Delaware
corporation ("BROADBASE").
RECITALS
A. Concurrently with the execution of this Agreement, Broadbase,
Servicesoft and Soldier Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of Broadbase ("MERGER SUB"), are entering into an
Agreement and Plan of Merger of even date herewith (as such agreement may
hereafter be amended from time to time, the "MERGER AGREEMENT") which provides
for the merger of Merger Sub with and into Servicesoft (the "MERGER"). Pursuant
to the Merger, shares of common stock of Servicesoft, par value $0.01 per share
("SERVICESOFT COMMON STOCK") will be converted into shares of common stock of
Broadbase, par value $.001 per share ("BROADBASE COMMON STOCK") on the basis
described in the Merger Agreement. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Merger Agreement.
B. Stockholder owns of record or has the power to direct the voting
with respect to such number of Shares (as defined herein) as are indicated on
the final page of this Agreement;
C. Stockholder is entering into this Agreement as a material
inducement and consideration to Servicesoft to enter into the Merger
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
1. Definitions.
(a) "EXPIRATION DATE" means the earlier to occur of (i) the
Effective Time of the Merger, and (ii) such time as the Merger Agreement may be
terminated in accordance with its terms.
(b) "SHARES" means all issued and outstanding shares of Broadbase
Common Stock owned of record by Stockholder or over which Stockholder exercises
voting power, in each case, as of the record date for persons entitled (i) to
receive notice of, and to vote at the meeting of the stockholders of Broadbase
called for the purpose of voting on the matters referred to in Section 2.1, or
(ii) to take action by written consent of the stockholders of Broadbase with
respect to the matters referred to in Section 2.1; provided, however, that any
shares of capital stock of Broadbase that Stockholder purchases or with respect
to which Stockholder otherwise exercises voting power after the execution of
this Agreement and prior to the Expiration Date shall be subject to the terms
and conditions of this Agreement to the same extent as if they constituted
Shares on the date hereof.
(c) "TRANSFER" with respect to any security means to directly or
indirectly: (i) sell, pledge, encumber, transfer or disposes of, or grant an
option with respect to, such security or any interest in such security; or (ii)
enter into an agreement or commitment providing for the sale, pledge,
encumbrance, transfer or disposition of, or grant of an option with respect to,
such security or any interest therein.
2. Agreement to Vote.
2.1 Voting Agreement. Stockholder hereby covenants and agrees that,
prior to the Expiration Date, at any meeting (whether annual or special and
whether or not an adjourned or postponed
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meeting) of the stockholders of Broadbase, however called, unless otherwise
directed in writing by Servicesoft, Stockholder will appear at the meeting or
otherwise cause the Shares to be counted as present thereat for purposes of
establishing a quorum and vote or consent (or cause to be voted or consented)
the Shares
(a) in favor of the Merger, the execution and delivery by
Broadbase of the Merger Agreement and the adoption and approval of the terms
thereof, including the issuance of the Exchange Shares pursuant to the Merger,
and in favor of the other actions contemplated by the Merger Agreement and any
action required in furtherance hereof and thereof;
(b) in favor of an amendment to Broadbase's Certificate of
Incorporation to increase the authorized number of shares of Broadbase Common
Stock in order to permit the issuance of the Exchange Shares pursuant to the
Merger; and
(c) against the approval of any proposal made in opposition to
or in competition with the issuance of the Exchange Shares pursuant to the
Merger, including, without limitation, any Broadbase Acquisition.
Prior to the Expiration Date, Stockholder will not enter into any
agreement or understanding with any person or entity to vote or give
instructions in any manner inconsistent with any provision of this Section 2.1.
2.2 Irrevocable Proxy. Contemporaneously with the execution of this
Agreement, Stockholder will deliver to Servicesoft a proxy with respect to the
Shares in the form attached hereto as Exhibit 1, which proxy will be irrevocable
to the fullest extent permitted by applicable law (the "PROXY").
2.3 Transfer and Other Restrictions. Prior to the termination
of this Agreement, Stockholder agrees not to, directly or indirectly:
(i) grant any proxy, power of attorney, deposit any of the
Shares into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares except as provided in this Agreement; or
(ii) take any other action that would make any representation
or warranty of Stockholder contained herein untrue or incorrect or have
the effect of preventing or disabling Stockholder from performing its
obligations under this Agreement.
4. Representations, Warranties and Covenants of Stockholder.
Stockholder hereby represents, warrants and covenants as follows:
4.1 Authority, Enforceability. Stockholder has full power and
authority to enter into, execute, deliver and perform Stockholder's obligations
under this Agreement and to make the representations, warranties and covenants
contained herein. This Agreement has been duly executed and delivered by
Stockholder and constitutes a legal, valid and binding obligation of
Stockholder, enforceable against Stockholder in accordance with its terms,
subject to (i) laws of general application relating to bankruptcy, insolvency
and the relief of debtors and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
4.2 No Conflicts, No Defaults and Consents. The execution and
delivery of this Agreement by Stockholder do not, and the performance of this
Agreement by Stockholder will not: (i) conflict with or violate any order,
decree or judgment applicable to Stockholder or by which Stockholder or any of
Stockholder's properties or Shares is bound or affected; (ii) violate any
agreement
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to which Stockholder is a party or is subject, including, without limitation,
any voting agreement or voting trust; (iii) result in any breach of or
constitute a default (with notice or lapse of time, or both) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of any lien, restriction, adverse claim, option on, right
to acquire, or any encumbrance or security interest in or to any of the Shares,
pursuant to any written, oral or other agreement, contract or legally binding
commitment to which Stockholder is a party or by which Stockholder or any of
Stockholder's properties (including, without limitation, the Shares) is bound or
affected, or (iv) require any written, oral or other agreement, contract or
legally binding commitment of any third party.
4.3 Shares Owned. As of the Effective Date of this Agreement,
Stockholder owns of record or has the power to direct the voting with respect
to, in the aggregate, the number of shares of Broadbase Common Stock set forth
below Stockholder's name on the signature page of this Agreement, and does not
own of record, or have the power to direct the voting with respect to, any
shares of capital stock of Broadbase, other than the shares set forth below
Stockholder's name on the signature page hereof.
4.4 Accuracy of Representations; Reliance by Servicesoft. The
representations and warranties contained in this Agreement are accurate in all
respects as of the date of this Agreement, will be accurate in all respects at
all times through the Expiration Date and will be accurate in all respects as of
the Effective Time of the Merger as if made on that date except as to
representations that speak only as of the date of this Agreement. Stockholder
understands and acknowledges that Servicesoft is entering into the Merger
Agreement in reliance upon Stockholder's execution and delivery of this
Agreement.
4.5 Further Assurances. Stockholder agrees to execute and deliver
any additional documents reasonably necessary or desirable, in the opinion of
Broadbase or Servicesoft, to carry out the purposes and intent of this Agreement
and the Proxy.
5. Miscellaneous.
5.1 Severability. If any provision of this Agreement is found by any
arbitrator or court of competent jurisdiction to be invalid or unenforceable,
then the parties hereby waive such provision to the extent that it is found to
be invalid or unenforceable and to the extent that to do so would not deprive
one of the parties of the substantial benefit of its bargain. Such provision
will, to the extent allowable by law and the preceding sentence, not be voided
or canceled but will instead be modified by such arbitrator or court so that it
becomes enforceable and, as modified, will be enforced as any other provision
hereof, all the other provisions hereof continuing in full force and effect.
5.2 Amendment; Waiver. This Agreement may be amended, modified,
superseded, canceled, renewed or extended only by an agreement in writing
executed by Servicesoft and Stockholder. The failure by either party at any time
to require performance or compliance by the other of any of its obligations or
agreements will in no way affect the right to require such performance or
compliance at any time thereafter. The waiver by either party of a breach of any
provision of this Agreement will not be treated as a waiver of any preceding or
succeeding breach of such provision or as a waiver of the provision itself. No
waiver of any kind will be effective or binding, unless it is in writing and is
signed by the party against whom such waiver is sought to be enforced.
5.3 Entire Agreement. This Agreement, together with the Merger
Agreement, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
5.4 Assignment. This Agreement and all rights and obligations
hereunder are personal to Stockholder and may not be transferred or assigned by
Stockholder at any time. Servicesoft
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may assign its rights, and may delegate its obligations hereunder, to any
parent, subsidiary or affiliate of Servicesoft; provided, however, that any such
assignee assumes Servicesoft's obligations hereunder. This Agreement will be
binding upon, and inure to the benefit of, the persons or entities who are
permitted, by the terms of this Agreement, to be successors, assigns and
personal representatives of the respective parties hereto.
5.5 Governing Law. This Agreement will be governed by and construed
in accordance with the internal laws of the State of Delaware, excluding that
body of laws pertaining to conflict of laws.
5.6 Costs of Enforcement. If any party to this Agreement seeks to
enforce its rights under this Agreement by legal proceedings or otherwise, the
non-prevailing party will pay all costs and expenses incurred by the prevailing
party, including, without limitation, all reasonable attorneys' and experts'
fees.
5.7 Notices. Any and all notices required or permitted to be given
to a party pursuant to the provisions of this Agreement will be in writing and
will be effective and deemed to provide such party sufficient notice under this
Agreement on the earliest of the following: (i) at the time of personal
delivery, if delivery is in person; (ii) one (1) business day after deposit with
an express overnight courier for United States deliveries, or two (2) business
days after such deposit for deliveries outside of the United States; or (iii)
three (3) business days after deposit in the United States mail by registered or
certified mail (return receipt requested) for United States deliveries. All
notices for delivery outside the United States will be sent by express courier.
All notices not delivered personally will be sent with postage and/or other
charges prepaid and properly addressed to the party to be notified at the
address set forth below, or at such other address as such other party may
designate by ten (10) days advance written notice to the other parties hereto.
If to Stockholder: _________________
c/o Broadbase, Inc.
181 Constitution Drive
Menlo Park, California 94025
Attention: Chuck Bay
Phone: (650) 614-8300
Fax: (650) 614-8301
with a copy to: Fenwick & West, LLP
275 Battery Street, Suite 1500
San Francisco, CA 94111
Attention: David K. Michaels, Esq.
Phone: (415) 875-2300
Fax: (415) 281-1350
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If to Servicesoft: Servicesoft, Inc.
Two Apple Hill Drive
Natick, MA 01760
Attention: Massood Zarrabian
Phone: (508) 653-4000
Fax: (508) 655-0473
with a copy to: McDermott, Will & Emery
28 State Street
Boston, MA 12109-1775
Attention: John J. Egan III, P.C.
Phone: (617) 535-4060
Fax: (617) 535-3800
5.8 Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
5.9 Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original but all of which, taken together,
constitute one and the same agreement.
5.10 Titles. The titles and captions of the sections and paragraphs
of this Agreement are included for convenience of reference only and will have
no effect on the construction or meaning of this Agreement.
5.11 Termination. This Agreement will be terminated and will be of
no further force and effect upon the earlier to occur of (i) the Effective Time
and (ii) the termination of the Merger Agreement pursuant to its terms.
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IN WITNESS WHEREOF, the undersigned parties have executed this Agreement
as of the date first above written.
SERVICESOFT, INC. STOCKHOLDER
By: /s/ Massood Zarrabian
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Name: Massood Zarrabian
Title: Chief Executive Officer
Broadbase Common Stock:
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[SIGNATURE PAGE TO VOTING AGREEMENT]
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EXHIBIT 1 TO VOTING AGREEMENT
IRREVOCABLE PROXY
The undersigned stockholder (the "STOCKHOLDER") of Broadbase, Inc., a
Delaware corporation ("BROADBASE"), hereby irrevocably (to the fullest extent
permitted by applicable law) appoints and constitutes the members of the Board
of Directors of Servicesoft Inc., a Delaware corporation ("SERVICESOFT"), and
each of them (collectively the "PROXYHOLDERS"), the agents, attorneys and
proxies of the undersigned, with full power of substitution and resubstitution,
to the fullest extent of the undersigned's rights with respect to (i) the shares
of capital stock of Broadbase owned of record by the undersigned, or over which
the undersigned has voting power, as of the date of this proxy, which shares are
specified on the final page of this proxy; (ii) any and all other shares of
capital stock of Broadbase which the undersigned may acquire or with respect to
which the undersigned shall acquire voting power after the date hereof,
including without limitation, in the event of a dividend or distribution of
capital stock of Broadbase, or any change in Broadbase's capital stock by reason
of any stock dividend, split-up, recapitalization, combination, exchange of
shares or the like, all shares of Broadbase's capital stock issued or
distributed pursuant to such stock dividends and distributions and any shares of
Broadbase's capital stock into which or for which any or all of the shares
otherwise held by the undersigned may be so changed or exchanged. (The shares of
the capital stock of Broadbase referred to in clauses (i) and (ii) of the
immediately preceding sentence are collectively referred to as the "SHARES.")
Upon the execution hereof, all prior proxies given by the undersigned with
respect to any of the Shares are hereby revoked, and no subsequent proxies will
be given with respect to any of the Shares until such time as this proxy shall
be terminated in accordance with its terms.
The Proxyholders named above will be empowered, and may exercise this
proxy, to vote the Shares at any time until the Expiration Date (as defined in
the Voting Agreement dated as of the date hereof, between Servicesoft and the
undersigned (the "VOTING AGREEMENT")) at any meeting of the stockholders of
Broadbase, however called, or in any action by written consent of stockholders
of Broadbase:
(i) in favor of the merger (the "MERGER") contemplated by the
Agreement and Plan of Merger by and among Broadbase, Soldier Acquisition Corp.,
and Servicesoft, dated as of the date hereof (the "MERGER AGREEMENT"), the
execution and delivery by Broadbase of the Merger Agreement and the adoption and
approval of the terms thereof and in favor of the other actions contemplated by
the Merger Agreement and any action required in furtherance hereof and thereof;
(ii) against any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of Broadbase in
the Merger Agreement or that would preclude fulfillment of a condition precedent
under the Merger Agreement to Servicesoft's or Broadbase's obligation to
consummate the Merger; and
(iii) against approval of any proposal made in opposition to
or in competition with the consummation of the Merger including, without
limitation, any Acquisition Proposal or Superior Offer (each as defined in the
Merger Agreement).
The Proxyholders may not exercise this proxy on any other matter. The
Stockholder may vote the Shares on all such other matters. The proxy granted by
the Stockholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Stockholder set
forth in Section 2 of the Voting Agreement.
This proxy will terminate upon the termination of the Voting Agreement in
accordance with its terms. Any obligation of the undersigned hereunder shall be
binding upon the successors and assigns of
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the undersigned. The undersigned Stockholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of Broadbase and with any Inspector of Elections at any meeting of the
stockholders of Broadbase.
This proxy is irrevocable, is coupled with an interest, and shall survive
the insolvency, incapacity, death or liquidation of the undersigned and will be
binding upon the heirs, successors and assigns of the undersigned (including any
transferee of any of the Shares).
Dated: September 18, 2000.
STOCKHOLDER
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Broadbase Common Stock:
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