1
EXHIBIT 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of October 12, 1998, by and
between APPLIED MATERIALS, INC., a Delaware corporation ("Parent"), and
__________ ("Stockholder").
RECITALS
A. Parent, Pennsylvania Acquisition Sub, Inc., a Delaware corporation
and a wholly owned subsidiary of Parent ("Merger Sub"), and Consilium, Inc., a
Delaware corporation (the "Company"), are entering into an Agreement and Plan of
Merger and Reorganization of even date herewith (the "Reorganization Agreement")
which provides (subject to the conditions set forth therein) for the merger of
Merger Sub into the Company (the "Merger").
B. In order to induce Parent and Merger Sub to enter into the
Reorganization Agreement, Stockholder is entering into this Voting Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Voting Agreement:
(a) "COMPANY COMMON STOCK" shall mean the common stock,
par value $0.01 per share, of the Company.
(b) "EXPIRATION DATE" shall mean the earlier of (i) the
date upon which the Reorganization Agreement is validly terminated, or (ii) the
date upon which the Merger becomes effective.
(c) Stockholder shall be deemed to "OWN" or to have
acquired "Ownership" of a security if Stockholder: (i) is the record owner of
such security; or (ii) is the "beneficial owner" (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of such security.
(d) "PERSON" shall mean any (i) individual, (ii)
corporation, limited liability company, partnership or other entity, or (iii)
governmental authority.
(e) "SUBJECT SECURITIES" shall mean: (i) all securities
of the Company (including all shares of Company Common Stock and all options,
warrants and other rights to acquire shares of Company Common Stock) Owned by
Stockholder as of the date of this Agreement; and (ii) all additional securities
of the Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares
1
2
of Company Common Stock) of which Stockholder acquires Ownership during the
period from the date of this Agreement through the Expiration Date.
(f) A Person shall be deemed to have a effected a
"TRANSFER" of a security if such Person directly or indirectly: (i) sells,
pledges, encumbers, grants an option with respect to, transfers or disposes of
such security or any interest in such security; or (ii) enters into an agreement
or commitment contemplating the possible sale of, pledge of, encumbrance of,
grant of an option with respect to, transfer of or disposition of such security
or any interest therein.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS
AGREEMENT. Stockholder agrees that, during the period from the date of this
Voting Agreement through the Expiration Date, Stockholder shall not cause or
permit any Transfer of any of the Subject Securities to be effected unless each
Person to which any of such Subject Securities, or any interest in any of such
Subject Securities, is or may be transferred shall have: (a) executed a
counterpart of this Voting Agreement and a proxy in the form attached hereto as
Exhibit A (with such modifications as Parent may reasonably request); and (b)
agreed to hold such Subject Securities (or interest in such Subject Securities)
subject to all of the terms and provisions of this Voting Agreement.
2.2 TRANSFER OF VOTING RIGHTS. Stockholder agrees that, during
the period from the date of this Voting Agreement through the Expiration Date,
Stockholder shall ensure that: (a) none of the Subject Securities is deposited
into a voting trust; and (b) except pursuant to this Voting Agreement, no proxy
is granted, and no voting agreement or similar agreement is entered into, with
respect to any of the Subject Securities.
SECTION 3. VOTING OF SHARES
3.1 VOTING AGREEMENT. Stockholder agrees that, during the period
from the date of this Voting Agreement through the Expiration Date:
(a) at any meeting of stockholders of the Company,
however called, Stockholder shall (unless otherwise directed in writing by
Parent) cause all outstanding shares of Company Common Stock that are Owned by
Stockholder as of the record date fixed for such meeting to be voted in favor of
the approval and adoption of the Reorganization Agreement and the approval of
the Merger, and in favor of each of the other actions contemplated by the
Reorganization Agreement; and
(b) in the event written consents are solicited or
otherwise sought from stockholders of the Company with respect to the approval
or adoption of the Reorganization Agreement, with respect to the approval of the
Merger or with respect to any of the other actions contemplated by the
Reorganization Agreement, Stockholder shall (unless otherwise directed in
writing by Parent) cause to be executed, with respect to all shares of Company
Common Stock
2
3
that are Owned by Stockholder as of the record date fixed for the consent to the
proposed action, a written consent or written consents to such proposed action.
This Voting Agreement is intended to bind Stockholder only with respect to the
specific matters set forth herein, and shall not prohibit Stockholder from
acting in accordance with his fiduciary duties as an officer or director of the
Company. Stockholder will retain at all times the right to vote the
Stockholder's Subject Securities, in Stockholder's sole discretion, on all
matters other than those set forth in this Section 3.1 which are at any time or
from time to time presented to the Company's stockholders generally.
3.2 PROXY. Contemporaneously with the execution of this Voting
Agreement: (i) Stockholder shall deliver to Parent a proxy in the form attached
to this Voting Agreement as Exhibit A, which shall be irrevocable to the fullest
extent permitted by law, with respect to the shares referred to therein (the
"Proxy"); and (ii) Stockholder shall cause to be delivered to Parent an
additional proxy (in the form attached hereto as Exhibit A) executed on behalf
of the record owner of any outstanding shares of Company Common Stock that are
owned beneficially (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934), but not of record, by Stockholder.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Stockholder hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters' rights and any similar rights relating to the Merger or any related
transaction that Stockholder or any other Person may have by virtue of the
ownership of any outstanding shares of Company Common Stock or other security
Owned by Stockholder.
SECTION 5. NO SOLICITATION
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not, directly or
indirectly, and Stockholder shall ensure that his Representatives (as defined in
the Reorganization Agreement) do not, directly or indirectly: (i) solicit,
initiate, encourage or induce the making, submission or announcement of any
Acquisition Proposal (as defined in the Reorganization Agreement) or take any
action that could reasonably be expected to lead to an Acquisition Proposal;
(ii) furnish any information regarding the Company or any direct or indirect
subsidiary of the Company to any Person in connection with or in response to an
Acquisition Proposal or potential Acquisition Proposal; or (iii) engage in
discussions with any Person with respect to any Acquisition Proposal.
Stockholder shall immediately cease and discontinue, and Stockholder shall
ensure that his Representatives immediately cease and discontinue, any existing
discussions with any Person that relate to any Acquisition Proposal. The
restrictions and covenants in this Section 5 shall apply to Stockholder only in
his capacity as a stockholder and not to Stockholder in his capacity as a
director or officer of the Company.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
3
4
Stockholder hereby represents and warrants to Parent as follows:
6.1 AUTHORIZATION, ETC. Stockholder has the absolute and
unrestricted right, power, authority and capacity to execute and deliver this
Voting Agreement and the Proxy and to perform his obligations hereunder and
thereunder. This Voting Agreement and the Proxy have been duly executed and
delivered by Stockholder and constitute legal, valid and binding obligations of
Stockholder, enforceable against Stockholder in accordance with their 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.
6.2 NO CONFLICTS OR CONSENTS
(a) The execution and delivery of this Voting Agreement
and the Proxy by Stockholder do not, and the performance of this Voting
Agreement and the Proxy by Stockholder will not: (i) conflict with or violate
any law, rule, regulation, order, decree or judgment applicable to Stockholder
or by which he or any of his properties is or may be bound or affected; or (ii)
result in or constitute (with or without notice or lapse of time) any breach of
or default under, or give to any other Person (with or without notice or lapse
of time) any right of termination, amendment, acceleration or cancellation of,
or result (with or without notice or lapse of time) in the creation of any
encumbrance or restriction on any of the Subject Securities pursuant to, any
contract to which Stockholder is a party or by which Stockholder or any of his
affiliates or properties is or may be bound or affected.
(b) The execution and delivery of this Voting Agreement
and the Proxy by Stockholder do not, and the performance of this Voting
Agreement and the Proxy by Stockholder will not, require any consent or approval
of any Person.
6.3 TITLE TO SECURITIES. As of the date of this Voting
Agreement: (a) Stockholder holds of record (free and clear of any encumbrances
or restrictions) the number of outstanding shares of Company Common Stock set
forth under the heading "Shares Held of Record" on the signature page hereof;
(b) Stockholder holds (free and clear of any encumbrances or restrictions) the
options, warrants and other rights to acquire shares of Company Common Stock set
forth under the heading "Options and Other Rights" on the signature page hereof;
(c) Stockholder Owns the additional securities of the Company set forth under
the heading "Additional Securities Beneficially Owned" on the signature page
hereof; and (d) Stockholder does not directly or indirectly Own any shares of
capital stock or other securities of the Company, or any option, warrant or
other right to acquire (by purchase, conversion or otherwise) any shares of
capital stock or other securities of the Company, other than the shares and
options, warrants and other rights set forth on the signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and
warranties contained in this Voting Agreement are accurate in all respects as of
the date of this Voting Agreement, will be accurate in all respects at all times
through the Expiration Date and will be accurate in all respects as of the date
of the consummation of the Merger as if made on that date.
4
5
SECTION 7. ADDITIONAL COVENANTS OF STOCKHOLDER
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall (at Parent's expense) execute and deliver, or
cause to be executed and delivered, such additional transfers, assignments,
endorsements, proxies, consents and other instruments, and shall (at Parent's
expense) take such further actions, as Parent may reasonably request for the
purpose of carrying out and furthering the intent of this Voting Agreement.
7.2 LEGEND. Immediately after the execution of this Voting
Agreement (and from time to time upon the acquisition by Stockholder of
Ownership of any shares of Company Common Stock prior to the Expiration Date),
Stockholder shall submit to the Company's transfer agent each certificate
evidencing any outstanding shares of Company Common Stock or other securities of
the Company Owned by Stockholder and instruct that such certificate be imprinted
with a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE VOTING AGREEMENT DATED
AS OF OCTOBER 12, 1998, BETWEEN THE ISSUER AND _____________, AS IT MAY
BE AMENDED, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE ISSUER.
SECTION 8. MISCELLANEOUS
8.1 EXPENSES. All costs and expenses incurred in connection with
the transactions contemplated by this Voting Agreement shall be paid by the
party incurring such costs and expenses.
8.2 NOTICES. Any notice or other communication required or
permitted to be delivered to either party under this Voting Agreement shall be
in writing and shall be deemed properly delivered, given and received (a) upon
receipt when delivered by hand, or (b) two business days after sent by courier
or express delivery service or by facsimile, provided that in each case the
notice or other communication is sent to the address or facsimile telephone
number set forth beneath the name of such party below (or to such other address
or facsimile telephone number as such party shall have specified in a written
notice given to the other party):
IF TO STOCKHOLDER:
at the address set forth below Stockholder's signature
on the signature page hereof
IF TO PARENT:
Applied Materials, Inc.
0000 Xxxxxx Xxxxxx
0
0
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Mail Stop: 2061
Facsimile: (000) 000-0000
Attention: Xxxxxxxxx Xxxxx
Mail Stop: 1954
Facsimile: (000) 000-0000
8.3 SEVERABILITY. If any provision of this Voting Agreement or
any part of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement. Each
provision of this Voting Agreement is separable from every other provision of
this Voting Agreement, and each part of each provision of this Voting Agreement
is separable from every other part of such provision.
8.4 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any
other documents delivered by the parties in connection herewith constitute the
entire agreement between the parties with respect to the subject matter hereof
and thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision of
this Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
8.5 ASSIGNMENT; BINDING EFFECT. Except as provided herein,
neither this Voting Agreement nor any of the interests or obligations hereunder
may be assigned or delegated by Stockholder and any attempted or purported
assignment or delegation of any of such interests or obligations shall be void.
Subject to the preceding sentence, this Voting Agreement shall be binding upon
Stockholder and his heirs, estate, executors, personal representatives,
successors and assigns, and shall inure to the benefit of Parent and its
successors and assigns. Without limiting any of the restrictions set forth in
Section 2 or elsewhere in this Voting Agreement, this Voting Agreement shall be
binding upon any Person to whom any Subject Securities are transferred. Nothing
in this Voting Agreement is intended to confer on any Person (other than Parent
and its successors and assigns) any rights or remedies of any nature.
8.6 SPECIFIC PERFORMANCE. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Voting
Agreement or the Proxy was not performed in accordance with its specific terms
or was otherwise breached. Stockholder agrees that, in the event of any breach
or threatened breach by Stockholder of any covenant or obligation contained in
this Voting Agreement or in the Proxy, Parent shall be entitled (in
6
7
addition to any other remedy that may be available to it, including monetary
damages) to seek and obtain (a) a decree or order of specific performance to
enforce the observance and performance of such covenant or obligation, and (b)
an injunction restraining such breach or threatened breach. Stockholder further
agrees that neither Parent nor any other Person shall be required to obtain,
furnish or post any bond or similar instrument in connection with or as a
condition to obtaining any remedy referred to in this Section 8.6, and
Stockholder irrevocably waives any right he may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
8.7 NON-EXCLUSIVITY. The rights and remedies of Parent under
this Voting Agreement are not exclusive of or limited by any other rights or
remedies which it may have, whether at law, in equity, by contract or otherwise,
all of which shall be cumulative (and not alternative). Without limiting the
generality of the foregoing, the rights and remedies of Parent under this Voting
Agreement, and the obligations and liabilities of Stockholder under this Voting
Agreement, are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations. Nothing in this Voting Agreement shall limit any of
Stockholder's obligations, or the rights or remedies of Parent, under any
Affiliate Agreement between Parent and Stockholder; and nothing in any such
Affiliate Agreement shall limit any of Stockholder's obligations, or any of the
rights or remedies of Parent, under this Voting Agreement.
8.8 GOVERNING LAW; VENUE.
(a) This Voting Agreement and the Proxy shall be
construed in accordance with, and governed in all respects by, the laws of the
State of Delaware (without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating
to this Voting Agreement or the Proxy or the enforcement of any provision of
this Voting Agreement or the Proxy may be brought or otherwise commenced in any
state or federal court located in the County of Santa Clara, California.
Stockholder: (i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the County of Santa
Clara, California (and each appellate court located in the State of California),
in connection with any such legal proceeding; (ii) agrees that service of any
process, summons, notice or document by U.S. mail addressed to him at the
address set forth in Section 8.2 shall constitute effective service of such
process, summons, notice or document for purposes of any such legal proceeding;
(iii) agrees that each state and federal court located in the County of Santa
Clara, California, shall be deemed to be a convenient forum; and (iv) agrees not
to assert (by way of motion, as a defense or otherwise), in any such legal
proceeding commenced in any state or federal court located in the County of
Santa Clara, California, any claim that Stockholder is not subject personally to
the jurisdiction of such court, that such legal proceeding has been brought in
an inconvenient forum, that the venue of such proceeding is improper or that
this Voting Agreement or the subject matter of this Voting Agreement may not be
enforced in or by such court. Nothing contained in this Section 8.8(b) shall be
deemed to limit or otherwise affect the right of Parent to commence any legal
proceeding or otherwise proceed against Stockholder in any other forum or
jurisdiction.
7
8
(c) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY
TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT
OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE
PROXY.
8.9 COUNTERPARTS. This Voting Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
8.10 CAPTIONS. The captions contained in this Voting Agreement
are for convenience of reference only, shall not be deemed to be a part of this
Voting Agreement and shall not be referred to in connection with the
construction or interpretation of this Voting Agreement.
8.11 ATTORNEYS' FEES. If any legal action or other legal
proceeding relating to this Voting Agreement or the enforcement of any provision
of this Voting Agreement is brought by one party against the other party, the
prevailing party shall be entitled to recover reasonable attorneys' fees, costs
and disbursements (in addition to any other relief to which the prevailing party
may be entitled).
8.12 WAIVER. No failure on the part of Parent to exercise any
power, right, privilege or remedy under this Voting Agreement, and no delay on
the part of Parent in exercising any power, right, privilege or remedy under
this Voting Agreement, shall operate as a waiver of such power, right, privilege
or remedy; and no single or partial exercise of any such power, right, privilege
or remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy. Parent shall not be deemed to have waived any
claim available to Parent arising out of this Voting Agreement, or any power,
right, privilege or remedy of Parent under this Voting Agreement, unless the
waiver of such claim, power, right, privilege or remedy is expressly set forth
in a written instrument duly executed and delivered on behalf of Parent; and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
8.13 CONSTRUCTION.
(a) For purposes of this Voting Agreement, whenever the
context requires: the singular number shall include the plural, and vice versa;
the masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words
"include" and "including," and variations thereof, shall not be deemed to be
terms of limitation, but rather shall be deemed to be followed by the words
"without limitation."
8
9
(d) Except as otherwise indicated, all references in
this Voting Agreement to "Sections" and "Exhibits" are intended to refer to
Sections of this Voting Agreement and Exhibits to this Voting Agreement.
9
10
IN WITNESS WHEREOF, Parent and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
APPLIED MATERIALS, INC.
By:_____________________________________
(Signature)
________________________________________
(Print Name)
STOCKHOLDER
________________________________________
(Signature)
________________________________________
(Print Name)
Address:________________________________
________________________________
Facsimile:______________________________
SHARES HELD OF RECORD OPTIONS AND OTHER RIGHTS ADDITIONAL SECURITIES
BENEFICIALLY OWNED
10
11
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder of Consilium, Inc., a Delaware corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes Xxxxx X. Xxxxxx, Xxxxxxxxx Xxxxx and Applied Materials,
Inc., a Delaware corporation ("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 (i) the
outstanding shares of capital stock of the Company owned of record by the
undersigned as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the undersigned may acquire on or after the date hereof. (The
shares of the capital stock of the Company 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 the undersigned agrees
that no subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, Merger Sub and the
Company (the "Reorganization Agreement").
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Reorganization Agreement or the effective time
of the merger contemplated thereby (the "Merger") at any meeting of the
stockholders of the Company, however called, or in connection with any
solicitation of written consents from stockholders of the Company, in favor of
the approval and adoption of the Reorganization Agreement and the approval of
the Merger, and in favor of each of the other actions contemplated by the
Reorganization Agreement.
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part there shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of
1
12
the remainder of such provision or the validity or enforceability of any other
provision of this proxy. Each provision of this proxy is separable from every
other provision of this proxy, and each part of each provision of this proxy is
separable from every other part of such provision.
This proxy shall terminate upon the earlier of the valid termination of
the Reorganization Agreement or the effective time of the Merger.
Dated: October 12, 1998. ________________________________________
(Signature)
________________________________________
(Print Name)
NUMBER OF SHARES OF COMMON STOCK OF THE
COMPANY OWNED OF RECORD AS OF THE DATE
OF THIS PROXY:
________________________________________
2
