<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
FORTE SOFTWARE, INC.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
349546101
(CUSIP Number)
MICHAEL H. MORRIS, ESQ.
SUN MICROSYSTEMS, INC.
901 SAN ANTONIO ROAD
PALO ALTO, CALIFORNIA 94303
(650) 960-1300
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
AUGUST 23, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13-1(e), 240.13d-(f) or 240.13d-1(g), check the
following box .
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7(b) for
other parties to whom copies are to be sent.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE> 2
SCHEDULE 13D
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CUSIP NO. 349546101 PAGE 2 OF 13 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sun Microsystems, Inc. I.R.S. Identification No.: 94-2805249
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
N/A
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC, OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
N/A
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
STATE OF DELAWARE
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NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY 4,118,044 (1)
OWNED BY EACH
REPORTING PERSON
WITH
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8 SHARED VOTING POWER
2,244,863 (2)
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9 SOLE DISPOSITIVE POWER
4,118,044 (1)
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10 SHARED DISPOSITIVE POWER
N/A
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,362,907 (1) (2)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.8%
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14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) In the event the Option (discussed in Items 3 and 4 below) becomes
exercisable and is exercised in full, Sun Microsystems, Inc. ("Sun") will have
sole voting power with respect to that number of shares equal to 19.9% of the
then outstanding shares of Common Stock of Forte, which, based upon the
20,693,693 shares of Forte Common Stock outstanding as of August 23, 1999 (as
represented by Forte in the Merger Agreement discussed in Items 3 and 4)
currently equals 4,118,044 shares of Forte Common Stock. Prior to the exercise
of the Option, Sun is not entitled to any rights as a stockholder of Forte as to
the shares of Forte Common Stock covered by the Option. The Option may only be
exercised upon the happening of certain events referred to in Item 4, none of
which has occurred as of the date hereof. Sun expressly disclaims beneficial
ownership of any of the shares of Forte Common Stock which are purchasable by
Sun upon exercise of the Option until such time as Sun purchases any such shares
of Forte Common Stock upon any such exercise.
(2) 2,244,863 shares of Forte Common Stock are subject to Voting
Agreements entered into by Sun and certain stockholders of Forte (discussed in
Items 3 and 4 below). Sun expressly disclaims beneficial ownership of any of the
shares of Forte Common Stock covered by the Voting Agreements. Based on the
number of shares of Forte Common Stock outstanding as of August 23, 1999 (as
represented by Forte in the Merger Agreement discussed in Items 3 and 4), the
number of shares of Forte Common Stock indicated represents approximately 10.9%
of the outstanding Forte Common Stock, excluding the shares of outstanding
shares of Forte Common Stock issuable upon exercise of the Option.
<PAGE> 3
SCHEDULE 13D
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CUSIP NO. 349546101 PAGE 3 OF 13 PAGES
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ITEM 1. SECURITY AND ISSUER.
This statement on Schedule 13D (this "Statement") relates to the
Common Stock of Forte Software, Inc., a Delaware corporation
("Forte" or "Issuer"). The principal executive offices of Forte
are located at 1800 Harrison Street, Oakland, California 94612.
ITEM 2. IDENTITY AND BACKGROUND.
The name of the corporation filing this statement is Sun
Microsystems, Inc., a Delaware corporation ("Sun"). Sun is a
leading worldwide provider of high-speed microprocessors,
scalable systems, software, network storage, mission-critical
support, and professional services. The address of Sun's
principal business is 901 San Antonio Road, Palo Alto, California
94303. The address of Sun's executive offices is the same as the
address of its principal business.
Set forth on Schedule A is the name of each of the directors and
executive officers of Sun, and their present principal occupation
or employment, including the name, principal business and address
of any corporation or other organization in which such employment
is conducted, as of the date hereof to Sun's knowledge.
Neither Sun, nor to Sun's knowledge, any person named on Schedule
A hereto is required to disclose legal proceedings pursuant to
Items 2(d) or 2(e). To Sun's knowledge, except as set forth on
Schedule A, each of the individuals identified on Schedule A is a
citizen of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Pursuant to an Agreement and Plan of Reorganization dated as of
August 23, 1999 (the "Merger Agreement"), among Sun, Flintstone
Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Sun ("Merger Sub") and Forte, and subject to the
conditions set forth therein (including approval by stockholders
of Forte), Merger Sub will merge with and into Forte and Forte
will become a wholly-owned subsidiary of Sun (such events
constituting the "Merger"). Once the Merger is consummated,
Merger Sub will cease to exist as a corporation and all of the
business, assets, liabilities and obligations of Merger Sub will
be merged into Forte with Forte remaining as the surviving
corporation (the "Surviving Corporation").
As an inducement to Sun to enter into the Merger Agreement, Sun
and Forte entered into a Stock Option Agreement dated as of
August 23, 1999 (the "Stock Option Agreement") pursuant to which
Forte granted Sun the right (the "Option"), under certain
conditions, to acquire up to the number of shares of Forte Common
Stock
<PAGE> 4
SCHEDULE 13D
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CUSIP NO. 349546101 PAGE 4 OF 13 PAGES
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sufficient to give Sun ownership of 19.9% of Forte's outstanding
Common Stock. Forte's obligation to issue shares pursuant to the
exercise of the Option is subject to the occurrence of certain
events (discussed in Item 4 below), which may not occur. The
granting of the Option was negotiated as a material term of the
entire Merger transaction. Sun did not pay additional
consideration to Forte in connection with Forte entering into the
Stock Option Agreement and granting the Option. In the event the
Option becomes exercisable, Sun anticipates it will use working
capital for any exercise of the Option.
As a further inducement for Sun to enter into the Merger
Agreement and in consideration thereof, certain stockholders of
Forte (the "Stockholders") entered into individual voting
agreements with Sun (collectively the "Voting Agreements")
whereby each Stockholder agreed, severally and not jointly, to
vote all of the shares of Forte Common Stock beneficially owned
by him in favor of approval and adoption of the Merger Agreement
and approval of the Merger and certain related matters. Sun did
not pay additional consideration to any Stockholder in connection
with the execution and delivery of the Voting Agreements.
References to, and descriptions of, the Merger, the Merger
Agreement, the Stock Option Agreement and the Voting Agreements
as set forth herein are qualified in their entirety by reference
to the copies of the Merger Agreement, the Stock Option Agreement
and the Voting Agreement, respectively, included as Exhibits 1, 2
and 3, respectively, to this Schedule 13D, and are incorporated
herein in their entirety where such references and descriptions
appear.
ITEM 4. PURPOSE OF TRANSACTION.
(a) - (b) As described in Item 3 above, this statement relates to
the Merger of Merger Sub, a wholly-owned subsidiary of Sun, with
and into Forte in a statutory merger pursuant to the Delaware
General Corporation Law. At the effective time of the Merger, the
separate existence of Merger Sub will cease and Forte will
continue as the Surviving Corporation and as a wholly-owned
subsidiary of Sun. Each holder of outstanding Forte Common Stock
will receive, in exchange for each share of Forte Common Stock
held by such holder, 0.3 shares of Sun Common Stock. Sun will
assume each outstanding option to purchase Forte Common Stock
Option under Forte's stock option plans.
Pursuant to the Stock Option Agreement Forte granted Sun the
Option, under certain conditions, to acquire up to the number of
shares of Forte Common Stock sufficient to give Sun ownership of
19.9% of Forte's outstanding Common Stock. Forte's obligation to
issue shares pursuant to the exercise of the Stock Option is
subject to the
<PAGE> 5
SCHEDULE 13D
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CUSIP NO. 349546101 PAGE 5 OF 13 PAGES
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occurrence of certain events (each, an "Exercise Event"), which
may not occur. In general, an Exercise Event may be deemed to
occur: (a) if (i) the Board of Directors of Forte or any
committee thereof shall for any reason have withdrawn or shall
have amended or modified in a manner adverse to Sun its unanimous
recommendation in favor of, the adoption and approval of the
Merger Agreement or the approval of the Merger; (ii) Forte shall
have failed to include in the Prospectus/Proxy Statement the
unanimous recommendation of the Board of Directors of Forte in
favor of the adoption and approval of the Merger Agreement and
the approval of the Merger; (iii) the Board of Directors of Forte
fails to reaffirm its unanimous recommendation in favor of the
adoption and approval of the Merger Agreement and the approval of
the Merger within five (5) days after Sun requests in writing
that such recommendation be reaffirmed at any time following the
announcement of an Acquisition Proposal (as defined in Section
5.4(a) of the Merger Agreement); (iv) the Board of Directors of
Forte or any committee thereof shall have approved or recommended
any Acquisition Proposal (v) Forte shall have entered into any
letter of intent or similar document or any agreement, contract
or commitment accepting any Acquisition Proposal; or (vi) a
tender or exchange offer relating to securities of Forte shall
have been commenced by a Person (as defined in the Merger
Agreement) unaffiliated with Sun and Forte shall not have sent to
its securityholders pursuant to Rule 14e-2 promulgated under the
Securities Act of 1933, as amended, within ten (10) business days
after such tender or exchange offer is first published, sent or
given, a statement disclosing that Forte recommends rejection of
such tender or exchange offer; or (b) if the Merger Agreement is
terminated by either Sun or Forte because the Merger shall not
have been consummated by February 28, 2000, or because the Forte
stockholders fail to approve the Merger Agreement and the Merger,
and prior to the date of termination of the Merger Agreement a
third party has announced an Acquisition Proposal and within
twelve months following the termination of the Merger Agreement
or acquisition of Forte is consummated or Forte enters into an
agreement or letter of intent providing for such an acquisition.
Pursuant to the Voting Agreements, the Stockholders have
irrevocably appointed Sun as their lawful attorney and proxy.
Such proxy gives Sun the limited right to vote each of the
2,244,863 shares (including options exercisable within 60 days of
August 23, 1999) of Forte Common Stock beneficially owned by the
Stockholders in all matters related to the Merger. In exercising
its right to vote the Shares as lawful attorney and proxy of the
Stockholders, Sun (or any nominee of Sun) will be limited, at
every Forte stockholders meeting and every written consent in
lieu of such a meeting to vote the Shares in favor of approval
and adoption of the Merger Agreement, in favor of approval of the
Merger and in favor of each matter that could reasonably be
expected to facilitate the Merger. The Stockholders may vote the
Shares on all other matters. The Voting Agreements terminate upon
the earlier to occur of (i) such date and time
<PAGE> 6
SCHEDULE 13D
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CUSIP NO. 349546101 PAGE 6 OF 13 PAGES
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as the Merger shall become effective in accordance with the terms
and provisions of the Merger Agreement, and (ii) such date and
time as the Merger Agreement shall have been terminated pursuant
to Article VII thereof.
The purpose of the transactions under the Voting Agreements and
the Stock Option Agreement are to enable Sun and Forte to
consummate the transactions contemplated under the Merger
Agreement.
(c) Not applicable.
(d) It is anticipated that upon consummation of the Merger, the
directors of the Surviving Corporation shall be the current
directors of Merger Sub. It is anticipated that the initial
officers of the Surviving Corporation shall be the officers of
Forte plus Michael Lehman and Michael Morris, each as a Vice
President, until their respective successors are duly appointed.
(e) Other than as a result of the Merger described in Item 3
above, not applicable.
(f) Not applicable.
(g) Upon consummation of the Merger, the Certificate of
Incorporation of Merger Sub, as in effect immediately prior to
the Merger, shall be the Certificate of Incorporation of the
Surviving Corporation until thereafter amended as provided by
Delaware Law and such Certificate of Incorporation. Upon
consummation of the Merger, the Bylaws of Merger Sub, as in
effect immediately prior to the Merger, shall be the Bylaws of
the Surviving Corporation until thereafter amended.
(h) - (i) If the Merger is consummated as planned, the Forte
Common Stock will be deregistered under the Act and delisted from
The Nasdaq National Market.
(j) Other than described above, Sun currently has no plan or
proposals which relate to, or may result in, any of the matters
listed in Items 4(a) - (j) of Schedule 13D (although Sun reserves
the right to develop such plans).
References to, and descriptions of, the Merger Agreement, the
Stock Option Agreement and the Voting Agreements as set forth
above in this Item 4 are qualified in their entirety by reference
to the copies of the Merger Agreement, the Stock Option Agreement
and the Voting Agreement, respectively, included as Exhibits 1, 2
and 3, respectively, to this Schedule 13D, and are incorporated
in this Item 4 in their entirety where such references and
descriptions appear.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
<PAGE> 7
SCHEDULE 13D
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CUSIP NO. 349546101 PAGE 7 OF 13 PAGES
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(a) - (b) As a result of the Voting Agreements, Sun may be deemed
to be the beneficial owner of at least 2,244,863 shares of Forte
Common Stock. Such Forte Common Stock constitutes approximately
10.9% of the issued and outstanding shares of Forte Common Stock
based on the number of shares of Forte Common Stock outstanding
as of August 23, 1999 (as represented by Forte in the Merger
Agreement discussed in Items 3 and 4). Sun may be deemed to have
the shared power to vote the Shares with respect to those matters
described above. However, Sun (i) is not entitled to any rights
as a stockholder of Forte as to the Shares and (ii) disclaims any
beneficial ownership of the shares of Forte Common Stock which
are covered by the Voting Agreements.
In the event the Stock Option becomes exercisable and is
exercised in full, Sun will have the sole power to vote, and the
sole power to dispose of, that number of shares equal to 19.9% of
the then outstanding shares of Forte Common Stock, which, based
upon the 20,693,693 shares of Forte Common Stock outstanding as
of August 23, 1999, currently equals 4,118,044 shares of Forte
Common Stock.
Michael A. Murray, an executive officer of Sun, owns 140 Shares
of Forte Common Stock. To Sun's knowledge, no other person listed
on Schedule A has an ownership interest in Forte.
Set forth on Schedule B is the name of those stockholders of
Forte that have entered into a Voting Agreement with Sun, and
their present principal occupation or employment, including the
name, principal business and address of any corporation or other
organization in which such employment is conducted, to Sun's
knowledge.
To Sun's knowledge, no transactions in the class of securities
reported have been effected during the past sixty days by any
person named pursuant to Item 2.
(c) To the knowledge of Sun, no transactions in the class of
securities reported have been effected during the past sixty days
by any person named pursuant to Item 2.
(d) To the knowledge of Sun, no other person has the right to
receive or the power to direct the receipt of dividends from, or
the proceeds from the sale of, the securities of Forte reported
on herein.
(e) N/A.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDING OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Other than the Merger Agreement and the exhibits thereto,
including the Voting
<PAGE> 8
SCHEDULE 13D
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CUSIP NO. 349546101 PAGE 8 OF 13 PAGES
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Agreements and the Stock Option Agreement, to the knowledge of
Sun, there are no contracts, arrangements, understandings or
relationships among the persons named in Item 2 and between such
persons and any person with respect to any securities of Forte,
including but not limited to transfer or voting of any of the
securities, finder's fees, joint ventures, loan or option
arrangement, puts or calls, guarantees of profits, division of
profits or loss, or the giving or withholding of proxies.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
The following documents are filed as exhibits:
1. Agreement and Plan of Reorganization, dated August 23,
1999 by and among Sun, Merger Sub and Forte. (incorporated
by reference to exhibits to the Report on Form 8-K filed
by Forte, Inc. on August 27, 1999 (File No. 000-27838).
2. Form of Voting Agreement, dated August 23, 1999, between
Sun and certain stockholders of Forte.
3. Stock Option Agreement dated August 23, 1999 by and
between Sun and Forte. (incorporated by reference to
exhibits to the Report on Form 8-K filed by Forte, Inc. on
August 27, 1999 (File No. 000-27838).
<PAGE> 9
SCHEDULE 13D
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CUSIP NO. 349546101 PAGE 9 OF 13 PAGES
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: August 31, 1999
SUN MICROSYSTEMS, INC.
By: /s/ Michael Morris
-------------------------------------
Michael H. Morris
Vice President, General Counsel and
Secretary
<PAGE> 10
SCHEDULE 13D
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CUSIP NO. 349546101 PAGE 10 OF 13 PAGES
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Schedule A
DIRECTORS AND EXECUTIVE OFFICERS OF
SUN MICROSYSTEMS, INC.
The following table sets forth the name, business address and present
principal occupation or employment of each director and executive officer of
Sun. Except as indicated below, the business address of each such person is 901
San Antonio Road, Palo Alto, CA 94303.
<TABLE>
<CAPTION>
Officers Name Title and Present Principal Occupation
- ------------- --------------------------------------
<S> <C>
Scott G. McNealy Chairman of the Board of Directors and Chief
Executive Officer of Sun
Edward J. Zander President, Chief Operating Officer of Sun
William T. Agnello Vice President, Real Estate and the Workplace of
Sun
Mel Friedman President, Microelectronics of Sun
Lawrence W. Hambly President, Enterprise Services of Sun
H. William Howard Vice President, Chief Information Officer of Sun
Masood A. Jabbar President, Computer Systems of Sun
William N. Joy Founder and Chief Scientist of Sun
James Judson Vice President, Finance, Worldwide Operations of
Sun
Jon E. Kannegaard Acting President, Software Products and
Platforms of Sun
Michael E. Lehman Vice President, Corporate Resources, and Chief
Financial Officer of Sun
Marc L. Loupe Vice President, Finance and Planning, WWFO of Sun
John E. Marselle Vice President, The Americas of Sun
John S. McFarlane President, Network Service Provider of Sun
Stephen T. McGowan Vice President, Finance, Computer Systems of Sun
Michael H. Morris Vice President, General Counsel, and Secretary
of Sun
Michael A. Murray** Vice President, Finance and Administration,
Enterprise Services of Sun
Alton D. Page Vice President, Operations, Sun-Netscape
Alliance of Sun
Gregory M. Papadopoulos Vice President, Chief Technology Officer of Sun
Marissa Peterson Vice President, Worldwide Operations, Computer
Systems of Sun
</TABLE>
<PAGE> 11
SCHEDULE 13D
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CUSIP NO. 349546101 PAGE 11 OF 13 PAGES
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<TABLE>
<S> <C>
Frank A. Pinto Vice President, Worldwide Sales, Computer
Systems of Sun
Michael L. Popov Vice President, Corporate Controller of Sun
William J. Raduchel Chief Strategy Officer of Sun
George Reyes Vice President, Treasurer of Sun
Edward Saliba Vice President, Human Resources of Sun
Janpieter T. Scheerder* President, Network Storage of Sun
John C. Shoemaker Vice President and General Manager, Enterprise
Desktop and Server Systems, Computer Systems of
Sun
Mark E. Tolliver President and General Manager, Sun-Netscape
Alliance of Sun
Kevin Walsh Vice President, Operations, Corporate Resources
of Sun
</TABLE>
* Citizen of Indonesia.
** Citizen of Ireland.
<PAGE> 12
SCHEDULE 13D
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CUSIP NO. 349546101 PAGE 12 OF 13 PAGES
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<TABLE>
<CAPTION>
Directors Name Title and Present Principal Occupation
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<S> <C>
Scott G. McNealy Chairman of the Board of Directors and Chief
Executive Officer of Sun
James L. Barksdale Managing Partner, the Barksdale Group
Director 487 East Middlefield Rd., Bldg. 5
Mountain View, CA 94043
L. John Doerr General Partner, Kleiner Perkins Caufield & Byers
Director 2750 Sand Hill Road
Menlo Park, CA 94025
Judith L. Estrin Chief Technology Officer, Senior Vice President,
Director Cisco Systems, Inc.
170 West Tasman Dr.
San Jose, CA 95134
Robert J. Fisher Executive Vice President and Director, Gap,
Director Inc., President, Gap Division, Gap, Inc.
One Harrison
San Francisco, California 94105
Robert L. Long Independent Management Consultant
Director 220 Glen Garry Avenue
Melbourne Beach, FL 32951
M. Kenneth Oshman Chairman of the Board of Directors, President,
Director and Chief Executive Officer,
Echelon Corporation
4015 Miranda Ave.
Palo Alto, CA 94304
A. Michael Spence Professor of Management, Graduate School of
Director Business, Stanford University
Stanford, CA 94305
</TABLE>
<PAGE> 13
SCHEDULE 13D
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CUSIP NO. 349546101 PAGE 13 OF 13 PAGES
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Schedule B
The following table sets forth the name and present principal occupation
or employment of each Forte stockholder that entered into a voting agreement
with Sun. Except as indicated below, the business address of each such person is
1800 Harrison Street, Oakland, CA 94612.
<TABLE>
<CAPTION>
Voting Agreement Stockholder Shares Beneficially Owned
- ---------------------------- -------------------------
<S> <C>
Martin Sprinzen (a) 1,668,761
President, Chief Executive Officer and
Chairman of the Board of Directors of
Forte Software, Inc.
Paul Butterworth (b) 576,102
Senior Vice President and
Chief System Architect
Total: 2,244,863
</TABLE>
(a) Represents 1,382,824 shares of outstanding Forte Common Stock and
285,937 shares subject to options exercisable within 60 days of
August 23, 1999.
(b) Represents 385,227 shares of outstanding Forte Common Stock and
190,875 shares subject to options exercisable within 60 days of
August 23, 1999.
<PAGE> 14
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
- ------- --------------------------------------------------------
1 Agreement and Plan of Reorganization, dated August 23, 1999 by
and among Sun, Merger Sub and Forte. (incorporated by reference
to exhibits to the Report on Form 8-K filed by Forte, Inc. on
August 27, 1999 (File No. 000-27838).
2 Form of Voting Agreement, dated August 23, 1999, between Sun and
certain stockholders of Forte.
3 Stock Option Agreement dated August 23, 1999 by and between Sun
and Forte. (incorporated by reference to exhibits to the Report
on Form 8-K filed by Forte, Inc. on August 27, 1999 (File No.
000-27838).
<PAGE> 1
EXHIBIT 2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
August 23, 1999, among Sun Microsystems, Inc., a Delaware corporation
("Parent"), and the undersigned stockholder and/or option holder (the
"Stockholder") of Forte Software, Inc., a Delaware corporation (the "Company").
RECITALS
A. The Company, Merger Sub (as defined below) and Parent have entered into
an Agreement and Plan of Reorganization (the "Reorganization Agreement"), which
provides for the merger (the "Merger") of a wholly-owned subsidiary of Parent
("Merger Sub") with and into the Company. Pursuant to the Merger, all
outstanding capital stock of the Company shall be converted into the right to
receive common stock of Parent, as set forth in the Reorganization Agreement;
B. Stockholder is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such number
of shares of the outstanding capital stock of the Company and shares subject to
outstanding options and warrants as is indicated on the signature page of this
Agreement; and
C. In consideration of the execution of the Reorganization Agreement by
Parent, Stockholder (in his or her capacity as such) agrees 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 hereto agree as
follows:
1. Certain Definitions. Capitalized terms not defined herein shall have the
meanings ascribed to them in the Reorganization Agreement. For purposes of this
Agreement:
(a) "Expiration Date" shall mean the earlier to occur of (i) such date
and time as the Reorganization Agreement shall have been terminated pursuant to
Article VII thereof, or (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Reorganization
Agreement.
(b) "Person" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental authority.
(c) "Shares" 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 of Company Common Stock) of which Stockholder
acquires ownership during the period from the date of this Agreement through the
Expiration Date.
<PAGE> 2
(d) Transfer. A Person shall be deemed to have 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 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.
2. Transfer of Shares.
(a) Transferee of Shares to be Bound by this Agreement. Stockholder
agrees that, during the period from the date of this Agreement through the
Expiration Date, Stockholder shall not cause or permit any Transfer of any of
the Shares to be effected unless such Transfer is in accordance with any
affiliate agreement between Stockholder and Parent contemplated by the
Reorganization Agreement and each Person to which any of such Shares, or any
interest in any of such Shares, is or may be transferred shall have: (a)
executed a counterpart of this Agreement and a proxy in the form attached hereto
as Exhibit A (with such modifications as Parent may reasonably request); and (b)
agreed in writing to hold such Shares (or interest in such Shares) subject to
all of the terms and provisions of this Agreement.
(b) Transfer of Voting Rights. Stockholder agrees that, during the
period from the date of this Agreement through the Expiration Date, Stockholder
shall not deposit (or permit the deposit of) any Shares in a voting trust or
grant any proxy or enter into any voting agreement or similar agreement in
contravention of the obligations of Stockholder under this Agreement with
respect to any of the Shares.
3. Agreement to Vote Shares. At every meeting of the stockholders of the
Company called, and at every adjournment thereof, and on every action or
approval by written consent of the stockholders of the Company, Stockholder (in
his or her capacity as such) shall cause the Shares to be voted in favor of
approval of the Reorganization Agreement and the Merger and in favor of any
matter that could reasonably be expected to facilitate the Merger.
4. 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 to the fullest extent
permissible by law, with respect to the Shares.
5. Representations and Warranties of the Stockholder. Stockholder (i) is
the beneficial owner of the shares of Company Common Stock, Preferred Stock of
the Company and the options and warrants to purchase shares of Common Stock of
the Company indicated on the final page of this Agreement, free and clear of any
liens, claims, options, rights of first refusal, co-sale rights, charges or
other encumbrances; (ii) does not beneficially own any securities of the Company
other than the shares of Company Common Stock, Preferred Stock of the Company
and options and warrants 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 and the
Proxy.
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<PAGE> 3
6. Additional Documents. Stockholder (in his or her capacity as such)
hereby covenants and agrees to execute and deliver any additional documents
necessary or desirable, in the reasonable opinion of Parent, to carry out the
intent of this Agreement.
7. 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.
8. Legending of Shares. If so requested by Parent, Stockholder agrees that
the Shares shall bear a legend stating that they are subject to this Agreement
and to an irrevocable proxy. Subject to the terms of Section 2 hereof,
Stockholder agrees that Stockholder shall not Transfer the Shares without first
having the aforementioned legend affixed to the certificates representing the
Shares.
9. Termination. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Date.
10. Miscellaneous.
(a) 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.
(b) 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.
(c) 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.
(d) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent shall be irreparably harmed and that there shall 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.
(e) Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
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<PAGE> 4
registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following address (or at such other address for a
party as shall be specified by like notice):
If to Parent: Sun Microsystems, Inc.
901 San Antonio Rd.
Palo Alto, California 94303
Attention: Vice President and General Counsel
Telephone: (650) 960-1300
Facsimile: (650) 336-0530
With a copy to: Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Attention: Larry W. Sonsini, Esq.
David J. Segre, Esq.
Daniel R. Mitz, Esq.
Telephone: (650) 493-9300
Facsimile: (650) 493-6811
If to Stockholder: To the address for notice set forth on the
signature page hereof.
(f) Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without reference to rules of conflicts of law.
(g) Entire Agreement. This Agreement and the Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(h) Effect of Headings. The section headings are for convenience only
and shall not affect the construction or interpretation of this Agreement.
(i) 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.
[The remainder of this page has been intentionally left blank]
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<PAGE> 5
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
SUN MICROSYSTEMS, INC. STOCKHOLDER
By: By:
--------------------------------- -----------------------------------
Signature of Authorized Signatory Signature
Name: Name:
------------------------------ -------------------------------
Title: Title:
------------------------------ -------------------------------
--------------------------------------
--------------------------------------
Print Address
--------------------------------------
Telephone
--------------------------------------
Facsimile No.
Share beneficially owned:
----- shares of Company Common Stock
----- shares of Company Preferred Stock
----- shares of Company Common Stock
issuable upon exercise of outstanding
options or warrants
[Signature Page to Voting Agreement]
<PAGE> 6
Exhibit A
IRREVOCABLE PROXY
The undersigned stockholder of Forte Software, Inc., a Delaware corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints the directors on the Board of Directors of Sun Microsystems, Inc., 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 vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned by the undersigned, and any and all other shares or
securities of the Company issued or issuable in respect thereof on or after the
date hereof (collectively, the "Shares") in accordance with the terms of this
Proxy. The Shares beneficially owned by the undersigned stockholder of the
Company as of the date of this Proxy are listed on the final page of this Proxy.
Upon the undersigned's execution of this Proxy, any and all prior proxies given
by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and among Parent and the undersigned
stockholder (the "Voting Agreement"), and is granted in consideration of Parent
entering into that certain Agreement and Plan of Reorganization (the
"Reorganization Agreement"), among Parent, Flintstone Acquisition Corporation, a
Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), and
the Company. The Reorganization Agreement provides for the merger of Merger Sub
with and into the Company in accordance with its terms (the "Merger"). As used
herein, the term "Expiration Date" shall mean the earlier to occur of (i) such
date and time as the Reorganization Agreement shall have been validly terminated
pursuant to Article VIII thereof or (ii) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the
Reorganization Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of stockholders
of the Company and in every written consent in lieu of such meeting in favor of
approval of the Merger, the execution and delivery by the Company of the
Reorganization Agreement and the adoption and approval of the terms thereof and
in favor of each of the other actions contemplated by the Reorganization
Agreement and any action required in furtherance hereof and thereof.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. The undersigned stockholder 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.
<PAGE> 7
This Proxy is irrevocable (to the fullest extent permitted by law).
This Proxy shall terminate, and be of no further force and effect, automatically
upon the Expiration Date.
Dated: , 1999
------------------------
Signature of Stockholder:
------------------------
Print Name of Stockholder:
------------------------
Shares beneficially owned:
------ shares of the Company Common Stock
------ shares of Company Preferred Stock
------ shares of the Company Common Stock
issuable upon exercise of outstanding
options or warrants
[Signature Page to Irrevocable Proxy]
