EXHIBIT 99.1
CONFORMED COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 22, 1995 (this "AGREEMENT"), among ADOBE
SYSTEMS INCORPORATED, a California corporation ("PARENT"), FRAME TECHNOLOGY
CORPORATION, a California corporation (the "COMPANY"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(the "HOLDER") of shares of the common stock, no par value (the "COMPANY COMMON
STOCK"), of the Company;
W I T N E S S E T H:
WHEREAS, the Company, Parent and J Acquisition Corporation, a California
corporation and wholly owned subsidiary of Parent ("SUB"), propose to enter into
an Agreement and Plan of Merger and Reorganization, dated as of the date hereof
(the "MERGER AGREEMENT"; capitalized terms used herein and not otherwise defined
are used herein as defined in the Merger Agreement), pursuant to which Sub will
be merged (the "MERGER") with and into the Company, and each outstanding share
of Company Common Stock will be converted into the right to receive shares of
the common stock, no par value, of Parent, on the basis described in the Merger
Agreement;
WHEREAS, the Holder, individually or as trustee or custodian, is the owner
of the number of shares of Company Common Stock set forth opposite the Holder's
name on SCHEDULE I to this Agreement (the "SUBJECT SHARES");
WHEREAS, as a condition of its entering into the Merger Agreement, Parent
has requested that the Holder agree, and the Holder has agreed, to vote the
Subject Shares and to grant Parent an irrevocable proxy to vote the Subject
Shares upon the terms and subject to the conditions set forth herein; and
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereinafter set forth, and intending to be legally bound hereby,
the parties hereto hereby agree as follows:
1. AGREEMENT TO VOTE SHARES. At every annual or special meeting of the
shareholders of the Company and at every continuation or adjournment thereof,
and on every action or approval by written consent of the shareholders of the
Company in lieu of any such meeting, the Holder (i) shall vote the Subject
Shares in favor of approval of the Merger Agreement and the Merger and any
matter that could reasonably be expected to facilitate the Merger, (ii) shall
vote the Subject Shares against any proposal made in opposition to or
competition with consummation of the Merger, (iii) shall not vote the Subject
shares in favor of any merger (including, without limitation, a Superior
Proposal or Alternative Transaction), consolidation, sale of assets,
reorganization or recapitalization of the Company with any party other than
Parent or its affiliates and (iv) shall vote the Subject Shares against any
liquidation or winding up of the Company. The Holder agrees not, directly or
indirectly, to solicit or encourage any offer from any party concerning the
possible disposition of all or any substantial portion of the Company(9)s
business, assets or capital stock.
2. IRREVOCABLE PROXY. Concurrently with the execution of this Agreement,
the Holder agrees to deliver to Parent a proxy in the form attached hereto as
EXHIBIT A, which shall be irrevocable to the full extent permitted by law, with
the total number of shares of capital stock of the Company beneficially owned by
the Holder set forth therein.
3. REPRESENTATIONS AND WARRANTIES OF THE HOLDER. The Holder hereby
represents and warrants to Parent that:
(a) This Agreement has been duly executed and delivered by the Holder,
and is the legal, valid and binding obligation of the Holder;
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(b) No consent of any court, governmental authority, beneficiary,
co-trustee or other person is necessary for the execution, delivery and
performance of this Agreement by the Holder; and
(c) The Subject Shares have been duly authorized and validly issued, are
fully paid and nonassessable, and are owned free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any kind,
other than this Agreement, except for Holder's brokerage margin account with
▇▇▇▇ ▇▇▇▇▇ & Sons in the current amount of $4,700,000.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Parent that:
(a) This Agreement has been duly executed and delivered by the Company,
and is the legal, valid and binding obligation of the Company;
(b) No consent of any court, governmental authority or other person is
necessary for the execution, delivery and performance of this Agreement by
the Company; and
(c) All of the Subject Shares have been duly authorized and validly
issued and are fully paid and nonassessable.
5. COVENANTS OF THE HOLDER. The Holder hereby agrees and covenants that:
(a) Prior to the Termination Date, the Holder will not, in the Holder's
capacity as a stockholder, directly or indirectly, encourage, initiate or
engage in discussions or negotiations with, or provide any information to,
any corporation, partnership, person or other entity or group, other than
Parent and its affiliates, concerning the sale of the Subject Shares, or the
issuance and sale of Company Common Stock by the Company or, with respect to
any merger or other business combination, any disposition or grant of an
interest in a substantial asset or any similar transaction involving the
Company;
(b) Other than as provided for in Section 2(c) above, the Holder will
not transfer, sell, exchange, pledge or otherwise dispose of or encumber any
of the Subject Shares or make any offer or agreement relating thereto at any
time prior to the termination of this Agreement pursuant to Section 8
hereof; and
(c) The Holder agrees that any shares of capital stock of the Company
(including Company Common Stock) that the Holder purchases or with respect
to which the Holder otherwise acquires beneficial ownership after the date
of this Agreement and prior to the termination of this Agreement pursuant to
Section 8 shall be considered "Subject Shares" and subject to each of the
terms and conditions of this Agreement.
6. COVENANTS OF THE COMPANY. The Company hereby agrees and covenants that:
(a) The Company will not, and will cause its stock transfer agent not
to, register the transfer of any of the Subject Shares on the stock transfer
ledger of the Company at any time prior to the termination of this Agreement
pursuant to Section 8; and
(b) The Company agrees that any shares of capital stock of the Company
(including Company Common Stock) that the Holder purchases or with respect
to which the Holder otherwise acquires beneficial ownership after the date
of this Agreement and prior to the termination of this Agreement pursuant to
Section 8 shall be considered "Subject Shares" and subject to each of the
terms and conditions of this Agreement.
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. In the event of any change
in the Company Common Stock by reason of stock dividends, split-ups,
recapitalizations, combinations, exchanges of shares or the like, the number of
Subject Shares shall be adjusted appropriately.
8. TERMINATION. This Agreement shall terminate on the earlier of (a) the
Effective Time, (b) at any time upon written notice by Parent to the Holder
terminating this Agreement and (c) 60 calendar days after the date on which the
Merger Agreement is terminated.
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9. NOTICES. 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
as of the date delivered, mailed or transmitted, and shall be effective upon
receipt, if delivered personally or mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or to such other address for a party as shall be specified by like
change of address), or sent by electronic transmission with confirmation
received, to the telecopy number specified below, if any:
(a) if to the Holder,:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o Frame Technology Corporation
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to:
Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Company:
Frame Technology Corporation
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to Parent:
Adobe Systems Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
10. HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
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11. 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 so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. 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 in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof and,
except as otherwise expressly provided herein, are not intended to confer upon
any other person any rights or remedies hereunder.
13. ASSIGNMENT. This Agreement shall not be assigned by operation of law
or otherwise, except that Parent may assign all or any of its rights hereunder
to any affiliate provided that no such assignment shall relieve Parent of its
obligations hereunder.
14. AMENDMENT. This Agreement may not be modified, amended or waived in
any manner except by an instrument in writing signed by each of the parties
hereto. Except as is provided in Section 8, this Agreement may only be
terminated in a writing signed by each of the parties hereto. The waiver by any
party of compliance with any provision of this Agreement by any other party
shall not operate or be construed as a waiver of any other provision of this
Agreement, or of any subsequent breach by such party of a provision of this
Agreement.
15. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
California. The Holder hereby irrevocably submits to the jurisdiction of any
California state or federal court sitting in the City of San Francisco, in any
action or proceeding arising out of or related to this Agreement, and hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such state or federal court. The Holder hereby
irrevocably consents to the service of process which may be served in any such
action or proceeding by certified mail, return receipt requested, by delivering
a copy of such process to the Holder or by any other method permitted by law.
16. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by each of the parties
hereto individually, by its duly authorized officer or in its capacity as a duly
authorized trustee or custodian, all as of the date first above written.
ADOBE SYSTEMS INCORPORATED
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Chairman of the Board and
Chief Executive Officer
FRAME TECHNOLOGY CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
THE HOLDER:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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SCHEDULE I
HOLDER NUMBER OF SHARES
----------------------------------------------------------------------------------------------- ----------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇............................................................................ 2,143,333
EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned shareholder of FRAME TECHNOLOGY CORPORATION, a California
corporation (the "COMPANY"), hereby irrevocably (to the full extent permitted by
law) appoints and constitutes the directors on the board of directors of ADOBE
SYSTEMS INCORPORATED, a California corporation ("PARENT"), and Parent, and each
of them, the attorneys 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 the Company beneficially owned by
the undersigned, which shares are listed on the final page of this Proxy (the
"SHARES"), and any and all other shares or securities issued or issuable with
respect thereof on or after the date hereof, until such time as the Agreement
and Plan of Merger and Reorganization, dated as of June 22, 1995 (the "MERGER
AGREEMENT"), among Parent, J Acquisition Corporation, a California corporation
and wholly owned subsidiary of Parent, and the Company, shall be terminated in
accordance with its terms. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given.
This proxy is irrevocable (to the full extent permitted by law) and is
granted in connection with the Voting Agreement, dated as of June 22, 1995 (the
"VOTING AGREEMENT"), among Parent, the Company and the undersigned, and is
granted in consideration of Parent entering into the Merger Agreement.
The attorneys and proxies named above will be empowered at any time prior to
termination of the Voting Agreement 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 or
special meeting of the shareholders of the Company and at every continuation or
adjournment thereof, and on every action or approval by written consent of the
shareholders of the Company in lieu of any such meeting, (i) in favor of
approval of the Merger Agreement and the Merger and any matter that could
reasonably be expected to facilitate the Merger, (ii) against approval of any
proposal made in opposition to or competition with consummation of the Merger,
(iii) against, or so as to abstain with regard to, any merger, consolidation,
sale of assets, reorganization or recapitalization of the Company with any party
other than Parent or its affiliates, and (iv) against any liquidation or winding
up of the Company.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto at any time prior to termination of the Voting
Agreement at every annual or special meeting of the shareholders of the Company
and at every continuation or adjournment thereof, and on every action or
approval by written consent of the shareholders of the Company in lieu of any
such meeting, (i) in favor of approval of the Merger Agreement and the Merger
and any matter that could reasonably be expected to facilitate the Merger, (ii)
against approval of any proposal made in opposition to or competition with
consummation of the Merger, (iii) against, or so as to abstain with regard to,
any merger, consolidation, sale of assets, reorganization or recapitalization of
the Company with any party other than Parent or its affiliates, and (iv) against
any liquidation or winding up of the Company, and may not exercise this proxy on
any other matter. The undersigned shareholder may vote the Shares on all other
matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable.
Dated: June 22, 1995
Signature of Shareholder:
Print name of Shareholder: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Shares beneficially owned: shares of Company Common Stock
