-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HMHmcGa7b5SY0Rm6KRbRQ7yZmEHhhqCCxYU7q3PDE7khdUb+Q7X6907fVX2WZ7K+ WN1agAx7i2UvZa94jWjM8Q== 0000891618-99-004042.txt : 19990901 0000891618-99-004042.hdr.sgml : 19990901 ACCESSION NUMBER: 0000891618-99-004042 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19990831 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FORTE SOFTWARE INC \DE\ CENTRAL INDEX KEY: 0001006370 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943131872 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-48149 FILM NUMBER: 99703987 BUSINESS ADDRESS: STREET 1: 1800 HARRISON ST CITY: OAKLAND STATE: CA ZIP: 94612 BUSINESS PHONE: 5108693400 MAIL ADDRESS: STREET 1: 1800 HARRISON ST CITY: OAKLAND STATE: CA ZIP: 94612 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SUN MICROSYSTEMS INC CENTRAL INDEX KEY: 0000709519 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPUTERS [3571] IRS NUMBER: 942805249 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 901 SAN ANTONIO RD CITY: PALO ALTO STATE: CA ZIP: 94303 BUSINESS PHONE: 6509601300 MAIL ADDRESS: STREET 1: 901 SAN ANTONIO ROAD CITY: PALO ALTO STATE: CA ZIP: 94303 SC 13D 1 SCHEDULE 13D 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). 2 SCHEDULE 13D - -------------------- ------------------ CUSIP NO. 349546101 PAGE 2 OF 13 PAGES - -------------------- ------------------ - -------------------------------------------------------------------------------- 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 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) (b) N/A - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC, OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) N/A - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION STATE OF DELAWARE - -------------------------------------------------------------------------------- NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY 4,118,044 (1) OWNED BY EACH REPORTING PERSON WITH - -------------------------------------------------------------------------------- 8 SHARED VOTING POWER 2,244,863 (2) - -------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 4,118,044 (1) - -------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER N/A - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,362,907 (1) (2) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 30.8% - -------------------------------------------------------------------------------- 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. 3 SCHEDULE 13D - -------------------- ------------------ CUSIP NO. 349546101 PAGE 3 OF 13 PAGES - -------------------- ------------------ 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 4 SCHEDULE 13D - -------------------- ------------------ CUSIP NO. 349546101 PAGE 4 OF 13 PAGES - -------------------- ------------------ 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 5 SCHEDULE 13D - -------------------- ------------------ CUSIP NO. 349546101 PAGE 5 OF 13 PAGES - -------------------- ------------------ 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 6 SCHEDULE 13D - -------------------- ------------------ CUSIP NO. 349546101 PAGE 6 OF 13 PAGES - -------------------- ------------------ 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. 7 SCHEDULE 13D - -------------------- ------------------ CUSIP NO. 349546101 PAGE 7 OF 13 PAGES - -------------------- ------------------ (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 8 SCHEDULE 13D - -------------------- ------------------ CUSIP NO. 349546101 PAGE 8 OF 13 PAGES - -------------------- ------------------ 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). 9 SCHEDULE 13D - -------------------- ------------------ CUSIP NO. 349546101 PAGE 9 OF 13 PAGES - -------------------- ------------------ 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 10 SCHEDULE 13D - -------------------- ------------------- CUSIP NO. 349546101 PAGE 10 OF 13 PAGES - -------------------- ------------------- 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.
Officers Name Title and Present Principal Occupation - ------------- -------------------------------------- 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
11 SCHEDULE 13D - -------------------- ------------------- CUSIP NO. 349546101 PAGE 11 OF 13 PAGES - -------------------- ------------------- 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
* Citizen of Indonesia. ** Citizen of Ireland. 12 SCHEDULE 13D - -------------------- ------------------- CUSIP NO. 349546101 PAGE 12 OF 13 PAGES - -------------------- -------------------
Directors Name Title and Present Principal Occupation - -------------- -------------------------------------- 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
13 SCHEDULE 13D - -------------------- ------------------- CUSIP NO. 349546101 PAGE 13 OF 13 PAGES - -------------------- ------------------- 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.
Voting Agreement Stockholder Shares Beneficially Owned - ---------------------------- ------------------------- 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
(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. 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). EX-2 2 FORM OF VOTING AGREEMENT 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. 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. -2- 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 -3- 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] -4- 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] 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. 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] -----END PRIVACY-ENHANCED MESSAGE-----