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EXHIBIT 99.1
VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of July 31, 1997 by and between
INTERACTIVE GROUP, INC., a Delaware corporation (the "Company"), and stockholder
("Shareholder").
RECITALS
A. DATAWORKS CORPORATION, a California corporation ("Parent"), DATAWORKS
ACQUISITION SUB, INC. a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), and the Company are entering into an Agreement and Plan
of Merger and Reorganization of even date herewith (as amended from time to
time, the "Reorganization Agreement"; capitalized terms used but not otherwise
defined in this Voting Agreement have the meanings assigned to such terms in the
Reorganization Agreement), which provides (subject to the conditions set forth
therein) for the merger of Merger Sub into the Company (the "Merger").
B. As of the date hereof, Shareholder owns in aggregate (including shares
held both beneficially and of record) the number of shares of Parent Common
Stock set forth below Shareholder's name on the signature page hereof.
C. As a condition to the willingness of the Company to enter into the
Reorganization Agreement, the Company has required that Shareholder agree, and
in order to induce the Company to enter into the Reorganization Agreement
Shareholder has agreed, to enter into this Voting Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound, agree
as follows:
SECTION 1. NO TRANSFER OF SUBJECT SHARES
1.1 SUBJECT SHARES. The shares described above held by Shareholder,
together with any shares of Parent capital stock that may hereafter be acquired
by Shareholder (whether upon exercise of options or otherwise), are referred to
herein as the "Subject Shares".
1.2 NO DISPOSITION OR ENCUMBRANCE OF SUBJECT SHARES.
(a) Shareholder hereby covenants and agrees that prior to the
Expiration Date (as defined below), Shareholder will not, directly or
indirectly, (i) offer, sell, offer to
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sell, contract to sell, pledge, grant any option to purchase or otherwise
dispose of or transfer (or announce any offer, sale, offer of sale, contract of
sale or grant of any option to purchase or other disposition or transfer of) any
Subject Shares to any Person, (ii) create or permit to exist any Encumbrance
with respect to any of the Subject Shares, (iii) reduce his beneficial ownership
of, interest in or risk relating to any of the Subject Shares or (iv) commit or
agree to do any of the foregoing.
(b) As used in this Voting Agreement, the term "Expiration Date" shall
mean the earlier of the date upon which the Reorganization Agreement is validly
terminated or the date upon which the Merger becomes effective.
1.3 NO TRANSFER OF VOTING RIGHTS. Shareholder covenants and agrees that,
prior to the Expiration Date, Shareholder will not deposit any of the Subject
Shares into a voting trust or grant another proxy (except as provided herein) or
enter into a voting agreement with respect to any of the Subject Shares.
SECTION 2. VOTING OF SUBJECT SHARES
2.1 PRE-TERMINATION VOTING AGREEMENT. Shareholder hereby agrees that, prior
to the earlier to occur of the valid termination of the Reorganization Agreement
or the Effective Time, at any meeting of the shareholders of Parent, however
called, and in any written action by consent of shareholders of Parent, unless
otherwise directed in writing by the Company, Shareholder shall vote the Subject
Shares:
(i) in favor of (1) the approval of the principal terms of the
Merger; and (2) each of the other actions contemplated by the Reorganization
Agreement and any action required in furtherance hereof and thereof; and
(ii) against any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of Parent in the
Reorganization Agreement.
Prior to the earlier to occur of the valid termination of the Reorganization
Agreement or the Effective Time, Shareholder shall not enter into any agreement
or understanding with any Person to vote or give instructions in any manner
inconsistent with clause "(i)" or "(ii)" of the preceding sentence.
2.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Voting Agreement,
Shareholder shall deliver to the Company a proxy in the form attached hereto as
Exhibit A, which shall be irrevocable to the fullest extent permitted by law
prior to the Expiration Date, with respect to the Subject Shares (the "Proxy").
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(b) Shareholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in the
Company the power to carry out and give effect to the provisions of this Voting
Agreement.
SECTION 3. WAIVER OF APPRAISAL RIGHTS.
Shareholder hereby waives any rights of appraisal and any dissenters'
rights that Shareholder may have in connection with the Merger.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder hereby represents and warrants to the Company as follows:
4.1 DUE AUTHORIZATION, ETC. Shareholder has all requisite power and
capacity to execute and deliver this Voting Agreement and to perform his
obligations hereunder. This Voting Agreement has been duly executed and
delivered by Shareholder and constitutes a legal, valid and binding obligation
of Shareholder, enforceable against Shareholder 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, REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Voting Agreement by Shareholder
do not, and the performance of this Voting Agreement by Shareholder will not:
(i) conflict with or violate any order, decree or judgment applicable to
Shareholder or by which he or any of his properties is bound or affected; or
(ii) 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 an Encumbrance on
the Subject Shares pursuant to, any Contract to which Shareholder is a party or
by which Shareholder or any of his properties is bound or affected.
(b) The execution and delivery of this Voting Agreement by Shareholder
do not, and the performance of this Voting Agreement by Shareholder will not,
require any Consent of any Person.
4.3 TITLE TO SUBJECT SHARES. Shareholder owns of record and beneficially
the Subject Shares set forth under Shareholder's name on the signature page
hereof and does not directly or indirectly own, either beneficially or of
record, any shares of capital stock of Parent, or rights to acquire any shares
of capital stock of Parent, other than the Subject Shares set forth below
Shareholder's name on the signature page hereof.
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4.4 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.
SECTION 5. COVENANTS OF SHAREHOLDER
5.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Shareholder will execute and deliver, or cause to be executed and
delivered, such additional or further arrangements, proxies, consents and other
instruments as the Company may reasonably request for the purpose of effectively
carrying out and furthering the intent of this Voting Agreement.
SECTION 6. MISCELLANEOUS
6.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made by Shareholder and the Company
in this Voting Agreement shall promptly terminate upon the Expiration Date.
6.2 INDEMNIFICATION. Without in any way limiting any of the rights or
remedies otherwise available to the Company, Shareholder shall hold harmless and
indemnify the Company from and against any damages suffered or incurred by the
Company and that arise from any breach of any representation, warranty, covenant
or obligation of Shareholder contained herein.
6.3 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.
6.4 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 when delivered (by hand,
by registered mail, by courier or express delivery service or by facsimile) 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 hereto):
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if to Shareholder:
at the address set forth below Shareholder's signature on the
signature page hereto;
if to Company:
Interactive Group, Inc.
5095 Murphy Canyon Road
San Diego, CA 92123
with a copy to:
Pillsbury Madison & Sutro LLP
101 West Broadway
Suite 1800
San Diego, CA 92101-8219
Attention: T. Michael Hird, Esq.
Facsimile: (619) 236-1995
6.5 SEVERABILITY. Any term or provision of this Voting Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Voting Agreement or affecting the validity or enforceability of any of the terms
or provisions of this Voting Agreement in any other jurisdiction. If any
provision of this Voting Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
6.6 ENTIRE AGREEMENT. This Voting Agreement and any 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 hereto unless made in writing and signed by both
parties hereto. The parties hereto waive trial by jury in any action at law or
suit in equity based upon, or arising out of, this Voting Agreement or the
subject matter hereof.
6.7 ASSIGNMENT, BINDING EFFECT. Neither this Voting Agreement nor any
portion hereof shall be assignable (whether by operation of law or otherwise and
including, for this purpose, a change in control as an assignment). Subject to
the preceding sentence, this Voting Agreement shall be binding upon and shall
inure to the benefit of (i) Shareholder and his heirs, successors and assigns
and (ii) the Company and its successors and assigns. Notwithstanding anything
contained in this Voting Agreement
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to the contrary, nothing in this Voting Agreement, expressed or implied, is
intended to confer on any Person other than the parties hereto or their
respective heirs, successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Voting Agreement.
6.8 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Voting Agreement was
not performed in accordance with its specific terms or was otherwise breached.
It is accordingly agreed that the Company shall be entitled to an injunction or
injunctions to prevent breaches of this Voting Agreement and to enforce
specifically the terms and provisions hereof, this being in addition to any
other remedy to which the Company is entitled at law or in equity.
6.9 OTHER AGREEMENTS. Nothing in this Voting Agreement shall limit any of
the rights or remedies of the Company or any of the obligations of Shareholder
under any Affiliate Agreement between the Company and Shareholder or any other
agreement.
6.10 GOVERNING LAW. This Voting Agreement shall be governed in all respects
by the laws of the State of California, as applied to contracts entered into and
to be performed entirely within the State of California.
6.11 COUNTERPARTS. This Voting Agreement may be executed by the parties
hereto 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.
6.12 CONSTRUCTION.
(a) Headings of the Sections of this Voting Agreement are for the
convenience of the parties only, and shall be given no substantive or
interpretive effect whatsoever.
(b) 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.
(c) The parties hereto 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.
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(d) 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."
(e) 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.
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IN WITNESS WHEREOF, Parent and Shareholder have caused this Voting
Agreement to be executed as of the date first written above.
INTERACTIVE GROUP, INC.
By:
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Name:
Title:
SHAREHOLDER:
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stockholder
address
fax
Number of Shares of Parent Common Stock
owned as of the date of this Voting
Agreement:
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned shareholder of DataWorks Corporation, Inc., a California
corporation ("Parent"), hereby irrevocably (to the fullest extent permitted by
law) appoints and constitutes Interactive Group, Inc., a Delaware corporation
(the "Company"), the attorney and proxy of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the shares of capital stock of Parent owned 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
Parent which the undersigned may acquire after the date hereof. (The shares of
the capital stock of Parent 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.
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 the
Company and the undersigned (the "Voting Agreement"), and is granted in
consideration of the Company entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, DataWorks Acquisition
Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent, and the
Company (the "Reorganization Agreement"). Capitalized terms used but not
otherwise defined in this proxy have the meanings ascribed to such terms in the
Reorganization Agreement.
The attorney and proxy 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 at any meeting
of the shareholders of Parent, however called, or in any written action by
consent of shareholders of Parent:
(I) in favor of (1) the approval of the principal terms of the
Merger; (2) the execution and delivery by Parent of the Reorganization
Agreement; and (3) each of the other actions contemplated by the
Reorganization Agreement and any action required in furtherance hereof and
thereof;
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(II) against any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of Parent in
the Reorganization Agreement; and
(III) in its discretion, with respect to any action which is
intended, or could reasonably be expected to, impede, interfere with,
delay, postpone, discourage or adversely affect the Merger or any of the
other transactions contemplated by the Reorganization Agreement or the
Voting Agreement.
The undersigned shareholder may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, successors and assigns of the
undersigned (including any transferee of any of the Shares).
Any obligation of the undersigned hereunder shall be binding upon the
heirs, successors and assigns of the undersigned (including any transferee of
any of the Shares).
This proxy shall terminate upon the Expiration Date.
Dated: ____________, 1997
SHAREHOLDER
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stockholder
Number of Shares of Parent Common
Stock:
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