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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. )*
Consilium, Inc.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
208547109
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(CUSIP Number)
Jonathan J. Golovin
Consilium, Inc.
485 Clyde Avenue
Mountain View, CA 94043
(650) 691-6100
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
October 12, 1998
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(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 that is the subject of this Schedule 13D, and is filing this
schedule because of (S)(S) 240.13d-1(e), 240.13d-1(f) or 240-13d-1(g), check the
following box [X].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See (S) 240-13d-7(b) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
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).
(continued on following page(s))
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CUSIP NO. 208547109 PAGE 2 OF 5 PAGES
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Jonathan J. Golovin
###-##-####
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
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SEC USE ONLY
3
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SOURCE OF FUNDS
4
PF
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [_]
5
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States of America
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SOLE VOTING POWER
7
NUMBER OF 1,372,196
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
238,664
OWNED BY
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EACH SOLE DISPOSITIVE POWER
9
REPORTING 1,372,196
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
238,664
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,610,860
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12
[_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
18.41%
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TYPE OF REPORTING PERSON
14
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 2 of 5 pages
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Cusip No: 208547109
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This Schedule 13D supplements Amendment No. 5 to Schedule 13G filed on
February 8, 1998, by Jonathan J. Golovin. Unless otherwise indicated, all
capitalized terms used herein shall have the same meaning as set forth in the
Schedule 13G as amended to date.
Item 1. Security and Issuer.
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Common stock of Consilium, Inc., whose principal executive offices are
at 485 Clyde Avenue, Mountain View, CA 94043.
Item 2. Identity and Background.
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(a) Name: Jonathan J. Golovin
(b) Residence or business address:
485 Clyde Avenue
Mountain View, CA 94043
(c) Present Principal Occupation: Chairman of the Board and Chief
Technology Officer, Consilium, Inc.
(d) During the last five years, Mr. Golovin has not been convicted in
a criminal proceeding.
(e) During the last five years, Mr. Golovin was not a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
(f) Citizenship: United States of America.
Item 3. Source and Amount of Funds or Other Consideration.
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The funds Jonathan J. Golovin used to make payments for the purchase of
the Common Stock came from his personal funds.
Item 4. Purpose of Transaction.
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Not applicable.
Item 5. Interest in Securities of the Issuer.
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(a) Aggregate number and percentage of class benefically owned:
1,610,860 (including the right to acquire 18,750 shares); 18.41%
(b) Number of shares with sole power to vote: 1,372,196
Number of shares with shared power to vote: 238,664
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
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to Securities of the Issuer.
---------------------------
In connection with the Agreement and Plan of Merger and Reorganization
dated as of October 12, 1998 (the "Reorganization Agreement") by and among
Consilium, Inc. (the "Company"), Pennsylvania Acquisition Sub, Inc. and
Applied Materials, Inc. ("Applied Materials"), Jonathan J. Golovin entered
into a Voting Agreement (the "Voting Agreement") with Applied Materials on
October 12, 1998. Pursuant to Section 3.1 of the Voting Agreement, Mr. Golovin
agreed to vote all outstanding shares of Common Stock owned by him in favor of
the Merger (as defined in the Reorganization Agreement), the adoption of the
Reorganization Agreement and each of the other actions contemplated by the
Reorganization Agreement.
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Mr. Golovin has also executed and delivered to Applied Materials an
irrevocable proxy granting Applied Materials the authority to vote the 1,353,446
shares of Company Common Stock owned by Mr. Golovin with respect to the matters
described above. Mr. Golovin retains the right to vote its shares of Common
Stock with respect to the matters other than those identified in the Voting
Agreement.
In addition, in connection with the Reorganization Agreement, Mr.
Golovin entered into an Affiliate Agreement (the "Affiliate Agreement") with
Applied Materials, dated as of October 12, 1998. Pursuant to Section 3(a) of
the Affiliate Agreement, Mr. Golovin agreed that during the period from the date
30 days prior to the consummation of the Merger (as defined in the
Reorganization Agreement) through the date on which financial results covering
at least 30 days of post-Merger combined operation of Applied Materials and the
Company has been published by Applied Materials (within the meaning of the
applicable "pooling of interests" accounting requirements): (i) Mr. Golovin
will not sell, transfer, or otherwise dispose of, or reduce its interest in or
risk relating to (A) any capital stock of the Company (including any additional
shares of the Company acquired by Mr. Golovin) except pursuant to and upon
consummation of the Merger, or (B) any option or other right to purchase any
shares of capital stock of Company, except pursuant to and upon consummation
of the Merger; and (ii) Mr. Golovin will not sell, transfer or otherwise
dispose of, or reduce his interest in or risk relating to, (A) any shares of
capital stock of Applied Materials (including without limitation any
additional shares of capital stock of Applied Materials acquired by Mr.
Golovin), or (B) any option or other right to purchase any shares of capital
stock of Applied Materials. Mr. Golovin has also agreed, pursuant to Section
3(c) of the Affiliate Agreement, not to transfer any Applied Materials Common
Stock received in the Merger unless: (i) such transfer is effected pursuant to
the effective registration statement under the Securities Exchange Act of
1933, as amended (the "Act"); (ii) such transfer is made in accordance with
Rule 145 of the Act; (iii) counsel shall have advised Applied Materials in a
written opinion letter that such transfer will be exempt from registration
under the Act; or (iv) the SEC shall have rendered and delivered a "no action
letter" to Applied Materials regarding such transfer.
Item 7. Material to be Filed as Exhibits.
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Exhibit 1: Voting Agreement dated as of October 12, 1998 by and
between Applied Materials, Inc., a Delaware corporation, and Jonathan J.
Golovin, a stockholder of Consilium, Inc.
Exhibit 2: Affiliate Agreement dated as of October 12, 1998 by and
between Applied Materials, Inc., a Delaware corporation, and Jonathan J.
Golovin, a stockholder of Consilium, Inc.
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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.
Date: October 29, 1998
/s/ Jonathan J. Golovin
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Jonathan J. Golovin
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EXHIBIT 1
VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of October 12, 1998, by and
between Applied Materials, Inc., a Delaware corporation ("Parent"), and Jonathan
J. Golovin ("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 of Company
Common Stock) of which Stockholder acquires Ownership during the period from the
date of this Agreement through the Expiration Date.
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(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 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.
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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.
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SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
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
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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 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 JONATHAN J. GOLOVIN, 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
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IF TO PARENT:
APPLIED MATERIALS, INC.
3050 Bowers Avenue
Santa Clara, CA 95054
Attention: Joseph J. Sweeney
Mail Stop: 2061
Facsimile: (408) 563-4635
Attention: Alexander Meyer
Mail Stop: 1954
Facsimile: (408) 986-7260
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.
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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 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
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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.
(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.
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(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."
(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.
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: /s/ Nancy H. Handel
_______________________________________
Nancy H. Handel
STOCKHOLDER
/s/ Jonathan J. Golovin
__________________________________________
Jonathan J. Golovin
Address: 49 Faxon Road
Atherton, CA 94027
Facsimile: (650) 326-8982
SHARES HELD OF RECORD OPTIONS AND OTHER RIGHTS ADDITIONAL SECURITIES
- --------------------- ------------------------ ---------------------
BENEFICIALLY OWNED
------------------
1,353,446 50,000 238,664
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EXHIBIT A
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 Nancy H. Handel, Alexander Meyer 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 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
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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 __, 1998. /s/ Jonathan J. Golovin
__________________________________________
Jonathan J. Golovin
NUMBER OF SHARES OF COMMON STOCK OF THE COMPANY
OWNED OF RECORD AS OF THE DATE OF THIS PROXY:
1,353,446
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Exhibit 2
AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT ("Affiliate Agreement") is being executed and
delivered as of October 12, 1998 by Jonathan J. Golovin ("Stockholder") in favor
of and for the benefit of Applied Materials, Inc., a Delaware corporation
("Parent").
RECITALS
A. Stockholder is a stockholder of, and is an officer and/or director of,
Consilium, Inc., a Delaware corporation (the "Company").
B. Parent, the Company and Pennsylvania Acquisition Sub, Inc., a wholly
owned subsidiary of Parent ("Merger Sub"), have entered into an Agreement and
Plan of Merger and Reorganization dated as of October 12, 1998 (the
"Reorganization Agreement"), providing for the merger of Merger Sub into the
Company (the "Merger"). The Reorganization Agreement contemplates that, upon
consummation of the Merger, (i) holders of shares of the common stock of the
Company ("Company Common Stock") will receive shares of common stock of Parent
("Parent Common Stock") in exchange for their shares of Company Common Stock and
(ii) the Company will become a wholly owned subsidiary of Parent. It is
accordingly contemplated that Stockholder will receive shares of Parent Common
Stock in the Merger.
C. Stockholder understands that the Parent Common Stock being issued in
the Merger will be issued pursuant to a registration statement on Form S-4, and
that Stockholder may be deemed an "affiliate" of the Company: (i) as such term
is defined for purposes of paragraphs (c) and (d) of Rule 145 under the
Securities Act of 1933, as amended (the "Securities Act"); and (ii) for purposes
of determining Parent's eligibility to account for the Merger as a "pooling of
interests" under Accounting Series Releases 130 and 135, as amended, of the
Securities and Exchange Commission (the "SEC"), and under other applicable
"pooling of interests" accounting requirements.
AGREEMENT
1. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder represents
and warrants to Parent as follows:
(a) Stockholder is the holder and "beneficial owner" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of the number
of shares of Company Common Stock set forth beneath Stockholder's signature on
the signature page hereof (the "Company Shares"), and Stockholder has good and
valid title to the Company Shares, free and clear of any liens, pledges,
security interests, adverse claims, equities, options, proxies, charges,
encumbrances or restrictions of any nature.
(b) Stockholder has carefully read this Affiliate Agreement and, to
the extent Stockholder felt necessary, has discussed with counsel the
limitations imposed on Stockholder's ability to sell, transfer or otherwise
dispose of the Company Shares and the shares of Parent Common Stock that
Stockholder is to receive in the Merger (the "Parent Shares"). Stockholder
<PAGE>
fully understands the limitations this Affiliate Agreement places upon
Stockholder's ability to sell, transfer or otherwise dispose of the Company
Shares and the Parent Shares.
(c) Stockholder understands that the representations, warranties and
covenants set forth in this Affiliate Agreement will be relied upon by Parent
and its counsel and accountants for purposes of determining Parent's eligibility
to account for the Merger as a "pooling of interests" and for purposes of
determining whether Parent should proceed with the Merger.
2. REPRESENTATION AND WARRANTY OF PARENT. Parent represents and warrants
to Stockholder that it shall make available adequate current public information
as required by Rule 144(c) promulgated by the SEC under the Securities Act.
3. PROHIBITIONS AGAINST TRANSFER.
(a) Stockholder agrees that, during the period from the date 30 days
prior to the date of consummation of the Merger through the date on which
financial results covering at least 30 days of post-Merger combined operations
of Parent and the Company have been published by Parent (within the meaning of
the applicable "pooling of interests" accounting requirements) (the "Restricted
Period"):
(i) Stockholder shall not sell, transfer or otherwise
dispose of, or reduce Stockholder's interest in or risk relating to, (A) any
capital stock of the Company (including, without limitation, the Company
Shares and any additional shares of capital stock of the Company acquired by
Stockholder, whether upon exercise of a stock option or otherwise), except
pursuant to and upon consummation of the Merger, or (B) any option or other
right to purchase any shares of capital stock of the Company, except by
exercise of an option or pursuant to and upon consummation of the Merger; and
(ii) Stockholder shall not sell, transfer or otherwise
dispose of, or reduce Stockholder's interest in or risk relating to, (A) any
shares of capital stock of Parent (including without limitation the Parent
Shares and any additional shares of capital stock of Parent acquired by
Stockholder, whether upon exercise of a stock option or otherwise), or (B) any
option or other right to purchase any shares of capital stock of Parent,
except by exercise of an option.
(b) Notwithstanding the restrictions contained in Section 3(a),
Stockholder may transfer or otherwise reduce his risk relative to shares of
Company Common Stock or Parent Common Stock during the Restricted Period if (i)
Parent, after consulting with its independent accountants, determines that such
transfer or reduction in risk will not adversely affect the ability of Parent to
account for the Merger as a "pooling of interests," and (ii) Parent consents in
writing to such transfer or reduction in risk (it being understood that Parent
will not unreasonably withhold or delay such consent).
(c) Stockholder agrees that Stockholder shall not effect any sale,
transfer or other disposition of any Parent Shares unless:
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(i) such sale, transfer or other disposition is effected
pursuant to an effective registration statement under the Securities Act;
(ii) such sale, transfer or other disposition is made in
conformity with the requirements of Rule 145 under the Securities Act, as
evidenced by a broker's letter and a representation letter executed by
Stockholder (satisfactory in form and content to Parent) stating that such
requirements have been met;
(iii) counsel reasonably satisfactory to Parent shall have
advised Parent in a written opinion letter (reasonably satisfactory in form
and content to Parent), upon which Parent may rely, that such sale, transfer
or other disposition will be exempt from registration under the Securities
Act; or
(iv) an authorized representative of the SEC shall have
rendered written advice to Stockholder to the effect that the SEC would take
no action, or that the staff of the SEC would not recommend that the SEC take
action, with respect to such sale, transfer or other disposition, and a copy
of such written advice and all other related communications with the SEC shall
have been delivered to Parent.
4. STOP TRANSFER INSTRUCTIONS; LEGEND.
Stockholder acknowledges and agrees that (a) stop transfer
instructions will be given to Parent's transfer agent with respect to the Parent
Shares, and (b) each certificate representing any of such shares shall bear a
legend identical or similar in effect to the following legend (together with any
other legend or legends required by applicable state securities laws or
otherwise):
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145(d) OF THE SECURITIES ACT OF 1933 AND
"POOLING OF INTERESTS" ACCOUNTING TREATMENT APPLY AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH RULE, IN
ACCORDANCE WITH THE REQUIREMENTS FOR "POOLING OF INTERESTS" ACCOUNTING
TREATMENT AND IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED AS OF
OCTOBER 12, 1998, BETWEEN THE REGISTERED HOLDER HEREOF AND THE ISSUER,
A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICES OF THE ISSUER."
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It is understood and agreed that the legend set forth above shall be removed by
delivery of substitute certificates without such legend if Stockholder shall
have delivered to Parent a copy of a letter from an authorized representative of
the SEC to the effect that such legend is not required for purposes of the
Securities Act, or counsel reasonably satisfactory to Parent shall have advised
Parent in a written opinion letter (reasonably satisfactory in form and content
to Parent) that such legend is not required for purposes of the Securities Act.
5. INDEPENDENCE OF OBLIGATIONS. The covenants and obligations of
Stockholder set forth in this Affiliate Agreement shall be construed as
independent of any other agreement or arrangement between Stockholder, on the
one hand, and the Company or Parent, on the other. The existence of any claim
or cause of action by Stockholder against the Company or Parent shall not
constitute a defense to the enforcement of any of such covenants or obligations
against Stockholder.
6. SPECIFIC PERFORMANCE. Stockholder agrees that in the event of any
breach or threatened breach by Stockholder of any covenant, obligation or other
provision contained in this Affiliate Agreement, Parent shall be entitled (in
addition to any other remedy that may be available to Parent) to: (a) a decree
or order of specific performance or mandamus to enforce the observance and
performance of such covenant, obligation or other provision; and (b) an
injunction restraining such breach or threatened breach.
7. OTHER AGREEMENTS. Nothing in this Affiliate Agreement shall limit any
of the rights or remedies of Parent under the Reorganization Agreement, or any
of the rights or remedies of Parent or any of the obligations of Stockholder
under any agreement between Stockholder and Parent or any certificate or
instrument executed by Stockholder in favor of Parent; and nothing in the
Reorganization Agreement or in any other agreement, certificate or instrument
shall limit any of the rights or remedies of Parent or any of the obligations of
Stockholder under this Affiliate Agreement.
8. NOTICES. Any notice or other communication required or permitted to
be delivered to Stockholder or Parent under this Affiliate 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 PARENT:
APPLIED MATERIALS, INC.
3050 Bowers Ave.
Santa Clara, CA 95054
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Attention: Joseph J. Sweeney
Mail Stop: 2061
Facsimile: (408) 563-4635
Attention: Alexander Meyer
Mail Stop: 1954
Facsimile: 408-563-4635
IF TO STOCKHOLDER:
49 Faxon Road
Atherton, CA 94027
Attention: Jonathan J. Golovin
Facsimile: (650) 326-8982
9. SEVERABILITY. If any provision of this Affiliate 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 Affiliate
Agreement. Each provision of this Affiliate Agreement is separable from every
other provision of this Affiliate Agreement, and each part of each provision
of this Affiliate Agreement is separable from every other part of such
provision.
10. APPLICABLE LAW; JURISDICTION. THIS AFFILIATE AGREEMENT IS MADE
UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. In any action between
or among any of the parties, whether arising out of this Affiliate Agreement or
otherwise, (a) each of the parties irrevocably and unconditionally consents and
submits to the exclusive jurisdiction and venue of the state and federal courts
located in California; (b) if any such action is commended in a state court,
then, subject to applicable law, no party shall object to the removal of such
action to any federal court located in the Northern District of California; (c)
each of the parties irrevocably waives the right to trial by jury; and (d) each
of the parties irrevocably consents to service of process by first class
certified mail, return receipt requested, postage prepared, to the address at
which such party is to receive notice in accordance with Section 8.
11. WAIVER; TERMINATION. No failure on the part of Parent to exercise any
power, right, privilege or remedy under this Affiliate Agreement, and no delay
on the part of Parent in exercising any power, right, privilege or remedy under
this Affiliate Agreement, shall operate as
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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 arising out of
this Affiliate Agreement, or any power, right, privilege or remedy under this
Affiliate 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. If the
Reorganization Agreement is terminated, this Affiliate Agreement shall
thereupon terminate.
12. CAPTIONS. The captions contained in this Affiliate Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Affiliate Agreement and shall not be referred to in connection with the
construction or interpretation of this Affiliate Agreement.
13. FURTHER ASSURANCES. Stockholder shall execute and/or cause to be
delivered to Parent such instruments and other documents and shall take such
other actions as Parent may reasonably request to effectuate the intent and
purposes of this Affiliate Agreement.
14. ENTIRE AGREEMENT. This Affiliate Agreement, the Reorganization
Agreement and any other agreement referred to in this Affiliate Agreement
between Stockholder and Parent collectively set forth the entire understanding
of Parent and Stockholder relating to the subject matter hereof and thereof and
supersede all other prior agreements and understandings between Parent and
Stockholder relating to the subject matter hereof and thereof.
15. NON-EXCLUSIVITY. The rights and remedies of Parent hereunder are not
exclusive of or limited by any other rights or remedies which Parent may have,
whether at law, in equity, by contract or otherwise, all of which shall be
cumulative (and not alternative).
16. AMENDMENTS. This Affiliate Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of Parent and Stockholder.
17. ASSIGNMENT. This Affiliate Agreement and all obligations of
Stockholder hereunder are personal to Stockholder and may not be transferred or
delegated by Stockholder at any time. Parent may freely assign any or all of
its rights under this Affiliate Agreement, in whole or in part, to any other
person or entity without obtaining the consent or approval of Stockholder.
18. BINDING NATURE. Subject to Section 17, this Affiliate Agreement will
inure to the benefit of Parent and its successors and assigns and will be
binding upon Stockholder and Stockholder's representatives, executors,
administrators, estate, heirs, successors and assigns.
19. SURVIVAL. Each of the representations, warranties, covenants and
obligations contained in this Affiliate Agreement shall survive the consummation
of the Merger.
Stockholder has executed this Affiliate Agreement on October 12, 1998.
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/s/ Jonathan J. Golovin
__________________________________________
Jonathan J. Golovin
NUMBER OF SHARES OF
COMMON STOCK OF THE COMPANY:
1,610,860
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