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Exhibit 99.1
VOTING AGREEMENT
This
VOTING AGREEMENT (the “Agreement”), dated as of
February 9, 2006, as amended on [ ], 2007, is made by and
between Darwin Deason (the “Principal Stockholder”),
and Affiliated Computer Services, Inc., a Delaware corporation (the
“Company”).
WHEREAS,
the Company commenced on February 9, 2006 an issuer tender
offer (the “Tender Offer”) under Rule 13e-4 of the
Securities Exchange Act of 1934, as amended, for shares of its
Class A Common Stock, $0.01 par value (the “Class A
Shares”), on the terms specified in the Company’s
Schedule TO (as amended and supplemented by the Company from
time to time, the “Schedule TO”) filed with the
Securities and Exchange Commission on February 9, 2006;
WHEREAS,
as a condition to the willingness of the Company to commence the
Tender Offer, the Company required that the Principal Stockholder
enter into the Voting Agreement (the “Previous Voting
Agreement”) dated as of February 9, 2006 with respect to
Voting Securities (as hereinafter defined) the Principal
Stockholder may directly or indirectly own from time to time (the
“Subject Shares”), it being understood that Voting
Securities shall be Subject Shares only during the period they are
so owned;
WHEREAS,
as of the date hereof, the Principal Stockholder owns, with the
right to vote, the number of Class A Shares and the number of
shares of the Company’s Class B Common Stock, $0.01 par
value (the “Class B Shares”) set forth on
Schedule A hereto (collectively, the “Owned
Shares”), which represent in the aggregate, based on Company
share data as of [ ], 2007, approximately [ ]% of the combined
voting power of the Company’s outstanding Class A Shares
and Class B Shares; and
WHEREAS,
the Principal Stockholder and the Company would like to amend the
Previous Voting Agreement to read in its entirety as this
Agreement;
NOW
THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION
1.1 Voting Agreement . (a) The Principal Stockholder
hereby agrees that during the time this Agreement is in effect, at
any meeting of the stockholders of the Company, however called, or
at any adjournment or postponement thereof (a “Company
Stockholders’ Meeting”), or in any other circumstances
upon which a vote, consent or other approval (including by written
consent) is sought by or from the stockholders of the Company, the
Principal Stockholder shall (x) when a Company
Stockholders’ Meeting is held, appear at such Company
Stockholders’ Meeting or otherwise cause Subject Shares that
represent Excess Voting Power to be counted as present thereat for
the purpose of establishing a quorum (except to the extent
otherwise provided in the immediately succeeding clause
(y) with respect to non-affiliated shares which are not
counted as present), and (y) cause Subject Shares that
represent Excess Voting Power to be treated in the same manner
(i.e., not present (and, therefore, not counted as present for
quorum purposes), present but abstaining, voting for or voting
against), and in proportion to, the votes or actions of all Company
stockholders, including the vote or actions of the Principal
Stockholder and his affiliates on the basis, solely for the purpose
of determining proportionality, of one vote per Class A Share
and Class B Share (even though the Class B Shares have
ten votes per share), at any such Company Stockholders’
Meeting or under any such other circumstances upon which a vote,
consent or other approval (including by written consent) is sought
by or from the stockholders of the Company. For purposes of this
Agreement: (i) “Excess Voting Power” (as
calculated from time to time as required by this Agreement) means
the aggregate percentage voting power represented by the Subject
Shares of the combined voting power of the outstanding Voting
Securities less 45%, adjusted in accordance with the first sentence
of Section 1.1(b), (ii) “Voting Securities”
means securities of the Company having the power generally to vote
on the election of directors and other matters submitted to a vote
of stockholders of the Company and
(iii) “affiliates” of the Principal Stockholder
means any person or entity that directly, or indirectly through one
of more intermediaries, controls, or is controlled by, or is under
common control with, the Principal Stockholder.
(b) In calculating Excess Voting Power attributable to the
Subject Shares: (i) there shall not be taken into account, and
the term Subject Shares shall not be deemed to include, the voting
power represented by any Class A Shares acquired by the
Principal Stockholder after the date hereof (through his exercise
of stock options, open market purchases or acquisition of shares in
other transactions after the date hereof, other than share
acquisitions derived, directly or indirectly, from Class A or
Class B Shares owned by the Principal Stockholder on the date
hereof), and (ii) there shall be taken into account the voting
power represented by any Class A Shares issued to or acquired
from third parties by the Company after the date hereof, including
pursuant to the exercise of stock options, under employee benefit
plans, in public or private transactions, in acquisition
transactions, in open market purchases or similar circumstances,
which net issuances and acquisitions will impact the calculation of
the then applicable amount of the Excess Voting Power. The
provisions of Section 1.1(a) shall not apply to any Subject
Shares which do not represent Excess Voting Power.
SECTION
1.2 Irrevocable Proxy . (a) As security for the
Principal Stockholder’s obligations under Section 1.1,
the Principal Stockholder hereby irrevocably constitutes and
appoints the Company as his attorney and proxy in accordance with
the Corporation Law, with full power of substitution and
re-substitution, to cause his Subject Shares representing Excess
Voting Power to be counted as present at any Company
Stockholders’ Meeting (except to the extent otherwise
provided in Section 1.1(a)(y) with respect to non-affiliated
shares which are not counted as present), to vote his Subject
Shares representing Excess Voting Power at any Company
Stockholders’ Meeting, and to execute consents in respect of
his Subject Shares representing Excess Voting Power as and to the
extent provided in Section 1.1. The Principal Stockholder
hereby revokes all other proxies and powers of attorney with
respect to his Subject Shares representing Excess Voting Power that
he may have heretofore appointed or granted, and represents that
any proxies heretofore given in respect of his Subject Shares
representing Excess Voting Power, if any, are revocable.
(b) The Principal Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 1.2 is given in
connection with the amendment of the Previous Voting Agreement, and
that such irrevocable proxy is given to induce the Company to so
amend the Previous Voting Agreement and to secure the performance
of the duties of the Principal Stockholder under this Agreement.
The Principal Stockholder hereby further affirms that the
irrevocable proxy is coupled with an interest and, except as set
forth in this Section 1.2 or in Section 5.1, is intended
to be irrevocable in accordance with the provisions of
Section 212 of the Delaware General Corporation Law. If for
any reason the proxy granted herein is not irrevocable, then the
Principal Stockholder agrees to vote his Subject Shares
representing Excess Voting Power in accordance with
Section 1.1 above. The parties agree that the foregoing is a
voting agreement created under Section 218(c) of the Delaware
General Corporation Law.
(c) This irrevocable proxy shall automatically terminate on
the Termination Date (as hereinafter defined). Prior to that date,
this irrevocable proxy shall not be terminated by any act of the
Principal Stockholder or by operation of Law, whether by the death
or incapacity of the Principal Stockholder or by the occurrence of
any other event or events, it being understood that actions taken
by the Company hereunder prior to the Termination Date shall be and
remain valid as if such death, incapacity or other event or events
had not occurred, regardless of whether or not the Company has
received notice of the same.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE PRINCIPAL STOCKHOLDER
The
Principal Stockholder hereby represents and warrants to the Company
as follows:
SECTION
2.1 Authority for this Agreement . The Principal Stockholder
has all necessary power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Principal
Stockholder and the consummation by the Principal Stockholder of
the transactions contemplated hereby (i) will not violate any
order, writ, injunction, decree, statute, rule, regulation or law
applicable to the Principal Stockholder or by which any of his
Subject Shares are bound, (ii) will not violate or constitute
a breach or default under any agreement by which the Principal
Stockholder or the Subject Shares may be bound, (iii) will not
require the consent of or any notice or other filing with any third
party, including any governmental authority, and (iv) have
been duly and validly authorized, and no other proceedings on the
part of the Principal Stockholder are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by
the Principal Stockholder and, assuming it has been duly and
validly authorized, executed and delivered by the Company,
constitutes a legal, valid and binding agreement of the Principal
Stockholder, enforceable
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