Exhibit 10.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of
March 20, 2005 (this “Agreement”), among the
shareholders listed on the signature page(s) hereto (collectively,
the “Shareholders” and each individually, a
“Shareholder”), Pinnacle Systems, Inc., a California
corporation (the “Company”) and Avid Technology, Inc.,
a Delaware corporation (the “Buyer”). Capitalized
terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Merger Agreement
referred to below.
WHEREAS, as of the date hereof, the
Shareholders own of record and beneficially the shares of capital
stock of the Company set forth on Schedule I hereto (such
shares, or any other voting or equity of securities of the Company
hereafter acquired by any Shareholder prior to the termination of
this Agreement, being referred to herein collectively as the
“Shares”);
WHEREAS, concurrently with the
execution of this Agreement, the Buyer and the Company are entering
into an Agreement and Plan of Merger, dated as of the date hereof
(the “Merger Agreement”), pursuant to which, upon the
terms and subject to the conditions thereof, a subsidiary of the
Buyer will be merged with and into the Company, and the Company
will be the surviving corporation (the “Merger”);
and
WHEREAS, as a condition to the
willingness of the Buyer to enter into the Merger Agreement, the
Buyer has required that the Shareholders agree, and in order to
induce the Buyer to enter into the Merger Agreement the
Shareholders are willing, to enter into this Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements contained
herein, and intending to be legally bound hereby, the parties
hereby agree, severally and not jointly, as follows:
Section 1.
Voting of
Shares .
(a)
Each Shareholder
covenants and agrees that until the termination of this Agreement
in accordance with the terms hereof, at the Company Shareholders
Meeting or any other meeting of the shareholders of the Company,
however called, and in any action by written consent of the
shareholders of the Company, such Shareholder will vote, or cause
to be voted, all of such Shareholder’s respective Shares (a)
in favor of the approval of the principal terms of the Merger
contemplated by the Merger Agreement, as the Merger Agreement may
be modified or amended from time to time in a manner not adverse to
the Shareholders, and (b) against any other Acquisition Proposal or
Alternative Transaction.
(b)
Each Shareholder
hereby irrevocably grants to, and appoints, the Buyer, and any
individual designated in writing by it, and each of them
individually, as his or her proxy and attorney-in-fact (with full
power of substitution), for and in his or her name, place and
stead, to vote such Shareholder’s Shares at any meeting of
the shareholders of the Company called with respect to any of the
matters specified in, and in accordance and consistent with, this
Section 1. Each Shareholder understands and acknowledges
that the Buyer is entering into the Merger Agreement in reliance
upon the Shareholder’s execution and delivery of this
Agreement. Each Shareholder hereby affirms that the
irrevocable proxy set forth in this Section 1(b) is given
in
connection with the
execution of the Merger Agreement, and that such irrevocable proxy
is given to secure the performance of the duties of such
Shareholder under this Agreement. Except as otherwise
provided for herein, each Shareholder hereby (i) affirms that the
irrevocable proxy is coupled with an interest and may under no
circumstances be revoked, (ii) ratifies and confirms all that
the proxies appointed hereunder may lawfully do or cause to be done
by virtue hereof and (iii) affirms that such irrevocable proxy
is executed and intended to be irrevocable in accordance with the
provisions of Section 705 of the California General
Corporation Law. Notwithstanding any other provisions of this
Agreement, the irrevocable proxy granted hereunder shall
automatically terminate upon the termination of this
Agreement.
Section 2.
Transfer of
Shares . Each Shareholder
covenants and agrees that such Shareholder will not directly or
indirectly (i) sell, assign, transfer, pledge, encumber or
otherwise dispose of any of the Shares, (ii) deposit any of the
Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the Shares or grant any proxy or power
of attorney with respect thereto that is inconsistent with this
Agreement or (iii) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect
sale, assignment, transfer or other disposition of any Shares;
provided, however, that notwithstanding the foregoing a Shareholder
may transfer Shares or agree to transfer Shares by testamentary
disposition, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law, provided
that in each such case the transferee agrees in writing to be bound
by this Agreement.
Section 3.
Representations and
Warranties of the Shareholders . Each Shareholder on
his or her own behalf hereby severally represents and warrants to
the Buyer with respect to such Shareholder and such
Shareholder’s ownership of the Shares as follows:
(a)
Ownership of
Shares . The Shareholder
beneficially owns all of the Shares as set forth on Schedule I
hereto and has good and marketable title to such Shares, free and
clear of any claims, liens, encumbrances and security interests
whatsoever. The Shareholder owns no shares of Company Common
Stock other than the Shares as set forth on Schedule I
hereto. The Shareholder has sole voting power, without
restrictions, with respect to all of the Shares.
(b)
Power, Binding
Agreement . The Shareholder has
the legal capacity and all requisite power and authority to enter
into and perform all of his or her obligations under this
Agreement. This Agreement has been duly and validly executed
and delivered by the Shareholder and constitutes a valid and
binding obligation of the Shareholder, enforceable against the
Shareholder in accordance with its terms.
(c)
No
Conflicts . The execution and
delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby will not, conflict with or result
in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a
material benefit under, any provision of any loan or credit
agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Shareholder, the Shares or any of the
Shareholder’s properties or assets. Except as expressly
contemplated hereby, the Shareholder is not a party to, and the
Shares are not subject to or bound in any manner by, any contract
or
2
agreement relating to the
Shares, including without limitation, any voting agreement, option
agreement, purchase agreement, shareholders’ agreement,
partnership agreement or voting trust. Except for the expiration or
termination of the waiting period under the HSR Act and
informational filings with the Securiti
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