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
Securities and Exchange Commission, no consent, approval, order or
authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or other governmental
authority or instrumentality, d
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