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EXHIBIT 9.1
FORM OF COMPANY VOTING AGREEMENT
This Company Voting Agreement ("AGREEMENT") is made and entered into as
of October 13, 1998, between Platinum Software Corporation, a Delaware
corporation ("PARENT"), and the undersigned stockholder ("STOCKHOLDER") of
DataWorks Corporation, a Delaware corporation (the "COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, the
Company and Zoo Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), are entering into an Agreement and Plan of
Reorganization (the "MERGER AGREEMENT") which provides for the merger (the
"MERGER") of Merger Sub with and into the Company. Pursuant to the Merger,
shares of capital stock of the Company will be converted into Common Stock of
Parent on the basis described in the Merger Agreement.
B. The Stockholder is the record holder of such number of outstanding
shares of Common Stock of the Company as is indicated on the final page of this
Agreement. In addition, the Stockholder holds options to purchase such number
of shares of Common Stock of the Company as is indicated on the final page of
this Agreement.
C. As a material inducement to enter into the Merger Agreement, Parent
desires the Stockholder to agree, and the Stockholder is willing to agree, to
vote the Shares (as defined below) and other such shares of capital stock of
the Company over which Stockholder has voting power so as to facilitate
consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Vote Shares; Additional Purchases.
1.1 Agreement to Vote Shares. Until the termination of this
Agreement pursuant to Section 6 below, at every meeting of the stockholders of
the Company called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of the Company with respect to any of the following, Stockholder
shall cause the Shares and any New Shares (as defined below) to be voted in
favor of approval of the Merger Agreement and the Merger.
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1.2 Definitions. For purposes of this Agreement:
"Shares" shall mean all issued and outstanding shares of Common Stock of
the Company owned of record or beneficially (over which beneficially-owned
shares the Stockholder exercises voting power) by the Stockholder as of the
record date for persons entitled (a) to receive notice of, and to vote at the
meeting of the stockholders of the Company called for the purpose of voting on
the matter referred to in Section 1.1, or (b) to take action by written consent
of the stockholders of the Company with respect to the matter referred to in
Section 1.1.
"Subject Securities" shall mean: (i) all securities of Company (including
all shares of Company Common Stock and all options, warrants and other rights
to acquire shares of Company Common Stock) beneficially owned by Stockholder
as of the date of this Agreement; and (ii) all additional securities of Company
(including all additional shares of Company Common Stock and all additional
options, warrants and other rights to acquire shares of Company Common Stock)
of which Stockholder acquires ownership during the period from the date of this
Agreement through the termination of this Agreement pursuant to Section 6 below.
A person shall be deemed to have affected 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 providing for
the sale of, pledge of, encumbrance of, grant of an option with respect to,
transfer of or disposition of such security or any interest therein.
1.3 Additional Purchases. Stockholder agrees that any shares of
capital stock of the Company that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership (over which
beneficially-owned shares the Stockholder exercises voting power) after the
execution of this Agreement and prior to the date of termination of this
Agreement ("New Shares") shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Shares.
1.4 Transferee of Subject Securities to be Bound by this Agreement.
Stockholder agrees that, during the period from the date of this Agreement
through the termination of this Agreement pursuant to Section 6 below,
Stockholder shall not cause or permit any Transfer of any of the Subject
Securities to be effected unless such Transfer is in accordance with any
affiliate agreement between Stockholder and Parent contemplated by the Merger
Agreement to which such Stockholder is bound and 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 Agreement
and the Proxy (defined below) (with such modifications as Parent may reasonably
request); and (b) agreed in writing to hold such Subject Securities (or
interest in such Subject Securities) subject to all of the terms and provisions
of this Agreement.
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2. Irrevocable proxy. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to Parent a proxy in the form attached hereto as
Exhibit A (the "PROXY"), which shall be irrevocable, with respect to the Shares.
3. Representations and Warranties of the Stockholder. Stockholder (i) is
the owner of the shares of Common Stock of the Company, and the options to
purchase shares of Common Stock of the Company, indicated on the final page of
this Agreement, which at the date hereof are free and clear of any liens,
claims, options, charges or other encumbrances; (ii) does not beneficially own
any securities of the Company other than the shares of Common Stock of the
Company, and options to purchase shares of Common Stock of the Company,
indicated on the final page of this Agreement; and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement.
4. Additional Documents. Stockholder and Parent hereby covenant and agree
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent or Stockholder, as the case may be, to carry out
the intent of this Agreement.
5. Consent and Waiver. Stockholder (not in his capacity as a director or
officer of the Company) hereby gives any consents or waivers that are
reasonably required for the consummation of the Merger under the terms of
any agreements to which Stockholder is a party or pursuant to any rights
Stockholder may have.
6. Termination. This Agreement shall terminate and shall have no further
force or effect as of the earlier to occur of (i) such date and time as the
Merger shall become effective in accordance with the terms and provisions of
the Merger Agreement or (ii) such date and time as the Merger Agreement shall
have been terminated pursuant to Article VII thereof.
7. Miscellaneous.
7.1 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
7.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by
either of the parties without prior written consent of the other.
7.3 Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
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7.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity.
7.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent by mail (registered or certified
mail, postage prepaid, return receipt requested) or overnight courier (prepaid)
to the respective parties as follows:
If to Parent: Platinum Software Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Vice President, General Counsel
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
If to the Stockholder: To the address for notice set forth on the
last page hereof.
With a copy to: Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxx, Esq.
or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
7.6 Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of the State of Delaware
(without regard to the principles of conflict of laws thereof).
7.7 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
7.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
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7.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
PARENT
By:
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Name:
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Title:
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STOCKHOLDER:
By:
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Name:
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Title:
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Stockholder's Address for Notice:
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______ Outstanding Shares of Common Stock
of the Company
______ Outstanding Shares of Common Stock
of the Company subject to
outstanding stock options
***VOTING AGREEMENT***
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned Stockholder of DataWorks Corporation, a Delaware
corporation (the "COMPANY"), hereby irrevocably appoints the directors on the
Board of Directors of Platinum Software Corporation, a Delaware corporation
("PARENT"), and each of them, as the sole and exclusive 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 voting of the Shares and
the New Shares (each as defined in the Voting Agreement of even date between
Parent and the Stockholder (the "VOTING AGREEMENT")) on the matter described
below (and on no other matter), until such time as that certain Agreement and
Plan of Reorganization dated as of October 13, 1998 (the "MERGER AGREEMENT"),
among Parent, Zoo Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), and the Company, shall be terminated in
accordance with its terms or the Merger (as defined in the Merger Agreement)
becomes effective. 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, is granted pursuant to the Voting Agreement 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 the
earlier of termination of the Merger Agreement and the date on which the Merger
becomes effective to exercise all voting rights (including, without limitation,
the power to execute and deliver written consent with respect to the Shares) of
the undersigned at every annual, special or adjourned meeting of the Company's
stockholders, and in every written consent in lieu of such a meeting, or
otherwise, to vote the Shares in favor of approval of the Merger and the Merger
Agreement.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto at any time prior to the earlier of termination of the
Merger Agreement and the date on which the Merger becomes effective, at every
annual, special or adjourned meeting of the Stockholders of the Company and in
every written consent in lieu of such meeting, in favor of approval of the
Merger and the Merger Agreement. The undersigned Stockholder may vote the Shares
on all other matters.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable.
Dated: October 13, 1998
Signature of Stockholder:
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Print Name of Stockholder:
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***PROXY***
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