Exhibit 3
VISIO
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is made and entered into as of
September 14, 1999, between Microsoft Corporation, a Washington corporation
("Parent"), and the undersigned Shareholder ("Shareholder") of Visio
Corporation, a Washington corporation ("Company").
RECITALS
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A. Concurrently with the execution of this Agreement, Company Parent and
a wholly owned subsidiary of parent ("Sub") have entered into an Agreement and
Plan of Reorganization (the "Reorganization Agreement"), which provides for the
merger (the "Merger") of Sub with and into Company. Pursuant to the Merger, all
outstanding capital stock of Company will be converted into Parent Common Stock
(as defined in the Reorganization Agreement).
B. The Shareholder 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 Common Stock of Company as indicated on
the final page of this Agreement (the "Shares").
C. In consideration of the execution of the Reorganization Agreement by
Parent, Shareholder agrees not to transfer or otherwise dispose of any of the
Shares, or any other shares of capital stock of Company acquired by Shareholder
hereafter and prior to the Expiration Date (as defined in Section 1.1 below),
and agrees to vote the Shares and any other such shares of capital stock of
Company so as to facilitate consummation of the Merger.
NOW, THEREFORE, the parties agree as follows:
1. Agreement to Retain Shares.
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1.1 Transfer and Encumbrance. Until the Expiration Date (as defined
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below), Shareholder agrees not to sell, exchange, transfer, pledge or otherwise
dispose of or encumber the Shares or any New Shares (as defined in Section 1.2
below) unless each person to whom Shares are sold, exchanged, transferred,
pledged or otherwise disposed of or encumbered agrees in writing to hold such
Shares subject to the terms and conditions of this Agreement. As used herein,
the term "Expiration Date" shall mean the earlier to occur of (i) such date and
time as the Merger shall become effective in accordance with the terms and
provisions of the Reorganization Agreement and (ii) such date and time as the
Reorganization Agreement shall be terminated in accordance with the terms
therein.
1.2 New Shares. Shareholder agrees that any shares of capital stock
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of Company that Shareholder purchases or with respect to which Shareholder
otherwise acquires
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beneficial ownership after the date of this Agreement and prior to the
Expiration Date ("New Shares") shall be subject to the terms and conditions of
this Agreement to the same extent as if they constituted Shares.
2. Agreement to Vote Shares. Until the Expiration Date, at every
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meeting of the shareholders of Company called with respect to any of the
following, and at every adjournment thereof, and on every action or approval by
written consent of the shareholders of Company with respect to any of the
following, Shareholder shall vote the Shares and any New Shares: (i) in favor of
approval of the Reorganization Agreement and the Merger and any matter that
could reasonably be expected to facilitate the Merger, and (ii) against approval
of any proposal made in opposition to or in competition with consummation of the
Merger and the Reorganization Agreement, against any merger, consolidation, sale
of assets, reorganization or recapitalization with any party other than Parent
or its affiliates and against any liquidation or winding up of Company (each of
the foregoing is hereinafter referred to as an "Opposing Proposal"). Shareholder
agrees not, directly or indirectly, to solicit or knowingly encourage any offer
from any party concerning the possible disposition of all or any substantial
portion of Company's business, assets or capital stock. This Agreement is
intended to bind Shareholder as a shareholder of Company only with respect to
the specific matters set forth herein and shall not prohibit Shareholder from
acting in accordance with his or her fiduciary duties, if applicable, as an
officer or director of Company.
3. Irrevocable Proxy. Concurrently with the execution of this Agreement,
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Shareholder agrees to deliver to Parent a proxy in the form attached hereto as
Exhibit A (the "Proxy"), which shall be irrevocable to the extent provided in
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Section 23B.07.220 of the Washington Business Corporation Act, covering the
total number of Shares and New Shares of capital stock of Company beneficially
owned (as such term is defined in Rule 13d-3 under the Exchange Act) by
Shareholder set forth therein.
4. Representations, Warranties and Covenants of Shareholder. Shareholder
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hereby represents, warrants and covenants to Company as follows:
4.1 Ownership of Shares. Shareholder: (i) is the beneficial owner
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of the Shares, which at the date of this Agreement are free and clear of any
liens, claims, options, charges or other encumbrances that would adversely
affect the ability of Shareholder to carry out the terms of this Agreement; (ii)
does not beneficially own any shares of capital stock of Company other than the
Shares (excluding shares as to which Shareholder currently disclaims beneficial
ownership in accordance with applicable law); and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement and the
Proxy.
4.2 No Proxy Solicitations. Shareholder will not, and will not
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permit any entity under Shareholder's control, to: (i) solicit proxies or become
a "participant" in a "solicitation" as such terms are defined in Regulation 14A
under the Exchange Act) with respect to an Opposing Proposal or otherwise
knowingly encourage or assist any party in taking or planning any action that
would compete with, or materially restrain, serve to interfere with or inhibit
the timely consummation of the Merger in accordance with the terms of the Merger
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Agreements; (ii) initiate a shareholders' vote or action by written consent of
Company Shareholders with respect to an Opposing Proposal; or (iii) become a
member of a "group" (as such term is used in Section 13(d) of the Exchange Act)
with respect to any voting securities of Company with respect to an Opposing
Proposal.
5. Additional Documents. Shareholder and Company hereby covenant and
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agree to execute and deliver any additional documents necessary or desirable, in
the reasonable opinion of Parent, to carry out the purpose and intent of this
Agreement.
6. No Ownership Interest Nothing contained in this Agreement shall be
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deemed to vest in Parent any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership and economic
benefits of and relating to the Shares shall remain and belong to Shareholder.
Except as otherwise provided in the Reorganization Agreement, Parent shall have
no authority to manage, direct, superintend, restrict, regulate, govern, or
administer any of the policies or operations of Company, or exercise any power
or authority to direct Shareholder in the voting of any of the Shares (except as
otherwise provided herein and in Exhibit A) or the performance of the
Shareholder's duties or responsibilities as a shareholder of Company.
7. Termination. This Agreement and the Proxy delivered in connection
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herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
8. Miscellaneous.
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8.1 Severability. If any term, provision, covenant or restriction
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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.
8.2 Binding Effect and Assignment. This Agreement and all of the
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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, interest or obligations of the parties hereto may be assigned by either
of the parties without the prior written consent of the other.
8.3 Amendments and Modification. This Agreement may not be
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modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
8.4 Specific Performance: Injunctive Relief. The parties hereto
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acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Shareholder 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
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specific performance, injunctive relief or by any other means available to
Parent at law or in equity.
8.5 Notices. All notices and other communications pursuant to this
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Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopies, sent by nationally-recognized overnight courier or mailed by
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: Microsoft Corporation
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
General Counsel, Finance and Administration
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ Center
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Shareholder: To the address for notice set forth on the last
page hereof.
With a copy to: Shearman & Sterling
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▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ Coie LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇-▇▇▇▇
8.6 Governing Law. This Agreement shall be governed by, construed
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and enforced in accordance with the internal laws of the State of Washington
8.7 Entire Agreement. This Agreement and the Proxy contain the
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entire understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
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8.8 Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
8.9 Effect of Headings. The section headings herein are for
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convenience only and shall not affect the construction or interpretation of this
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
MICROSOFT CORPORATION SHAREHOLDER
By: ___________________________
_____________________________
Title: ________________________
Its (as applicable)
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Address
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_____________________________
_____________________________
Shares beneficially owned:
_______ shares of Company Common Stock
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EXHIBIT A
IRREVOCABLE PROXY
to Vote
Visio Corporation Stock
The undersigned Shareholder of Visio Corporation, a Washington corporation
("Company"), hereby irrevocably (to the full extent permitted by Section
23B.07.220 of the Washington Business Corporation Act) appoints the directors on
the Board of Directors of Microsoft Corporation, a Washington 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
Company that now are or hereafter may be beneficially owned by the undersigned
and any and all other shares or securities of 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 Shareholder of 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
that are inconsistent with this Proxy are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to the Shares that are
inconsistent with this Proxy until after the Expiration Date (as defined below).
This proxy is irrevocable (to the extent provided in Section 23B.07.220 of
the Washington Business Corporation Act), is granted pursuant to that certain
Shareholder Agreement dated as of September 14, 1999 by and among Parent and the
undersigned Shareholder (the "Shareholder Agreement"), and is granted in
consideration of Parent entering into that certain Agreement and Plan of
Reorganization dated as of September 14, 1999 (the "Reorganization Agreement"),
among Company, Parent, and a wholly-owned subsidiary of Parent ("Sub"). The
Reorganization Agreement provides for the merger of Sub with and into 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 Merger
shall become effective in accordance with the terms and provisions of the
Reorganization Agreement or (ii) such date and time as the Reorganization
Agreement shall be terminated in accordance with the terms therein. This proxy
is intended to bind Shareholder as a shareholder of Company only with respect to
the specific matters set forth herein and shall not prohibit Shareholder from
acting in accordance with his or her fiduciary duties, if applicable, as an
officer or director of Company.
The attorneys and proxies named above, and each of then, 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 and other rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents pursuant to Section 23B.07.040 of the Washington Business Corporation
Act), at every annual, special or adjourned meeting of the shareholders of
Company
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and in every written consent in lieu of such meeting: (a) in favor of approval
of the Merger and the Reorganization Agreement and in favor of any matter that
could reasonably be expected to facilitate the Merger, and (b) against approval
of any proposal made in opposition to or in competition with the consummation of
the Merger and the Reorganization Agreement and against any liquidation or
winding up of Company. The attorneys and proxies named above may not exercise
this Irrevocable Proxy on any other matter except as provided in clauses (a) and
(b) above. The undersigned Shareholder 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.
This proxy is irrevocable (to the extent provided in Section 23B.07.220 of
the Washington Business Corporation Act).
Dated: September 14, 1999 SHAREHOLDER
By _____________________________
By _____________________________
Shares beneficially owned:
_______ shares of Company Common Stock
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