FORM OF VOTING AGREEMENT
Exhibit 10.1
THIS VOTING AGREEMENT (this “Agreement”) is made and entered into as of August ___, 2006 by and
between Corel Corporation, a corporation organized and existing under the laws of Canada
(“Parent”), and the undersigned shareholder (the “Shareholder”) of InterVideo, Inc., a Delaware
corporation (the “Company”).
RECITALS
A. Parent, Iceland Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary
of Parent (“Merger Sub”), and the Company have entered into an Agreement and Plan of Merger of even
date herewith (the “Merger Agreement”), which provides for, among other things, the merger of
Merger Sub with and into the Company (the “Merger”) pursuant to which all outstanding shares of
capital stock of the Company will be converted into the right to receive the consideration set
forth in the Merger 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
capital stock of the Company, options or warrants to purchase such number of shares of capital
stock of the Company as is indicated on the signature page of this Agreement.
C. In consideration of the execution of the Merger Agreement by Parent, the Shareholder (in
the Shareholder’s capacity as such) is hereby agreeing to vote the Shares as described herein.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as follows:
1. Certain Definitions. All capitalized terms that are used but not defined herein shall have
the respective meanings ascribed to them in the Merger Agreement. For all purposes of and under
this Agreement, the following terms shall have the following respective meanings:
(a) “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 Merger Agreement or (ii)
termination of the Merger Agreement in accordance with its terms; provided that the Expiration Date
shall be the effective date of any Transfer of Shares in accordance with Section 2(a) hereof.
(b) “Person” shall mean any individual, corporation, limited liability company, general or
limited partnership, trust, unincorporated association or other entity of any kind or nature, or
any 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 the Shareholder as of the date hereof, 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 the Shareholder acquires ownership
during the period from the date of this Agreement
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through the Expiration Date (including by way of
stock dividend or distribution, split-up, recapitalization, combination, exchange of shares and the
like).
(d) A Person shall be deemed to have effected a “Transfer” of a Share if such person, directly
or indirectly (i) sells, tenders, pledges, encumbers, assigns, grants an option with respect to,
establishes an open “put equivalent position” (within the meaning of Rule 16a-h under the Exchange
Act) with respect to, transfers or disposes of such Share or any interest in such Share (including
the economic consequences of ownership of such Share), or (ii) enters into an agreement or
commitment providing for the sale of, tender of, pledge of, encumbrance of, assignment of, grant of
an option with respect to, establishment of an open “put equivalent position” with respect to,
transfer, or disposition of such Share or any interest therein (including the economic consequences
of ownership of such Share).
2. Transfer of Shares. Prior to the termination of this Agreement, Shareholder agrees not to,
directly or indirectly:
(a) Except pursuant to the terms of the Merger Agreement or pursuant to the terms of a trading
plan adopted pursuant to Rule 10b5-1 under the Exchange Act in effect prior to the date hereof,
Transfer any or all of the Shares or any interest therein, except (i) as provided in Section 3
hereof, (ii) to the extent required to pay the exercise price upon exercise of a Company Stock
Option or to satisfy the Shareholders’ tax withholding obligation upon exercise of a Company Stock
Option; and/or (iii) other Transfers in which each transferee shall have: (A) executed a
counterpart of this Agreement and a proxy in the form attached hereto as Annex I 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 (provided that such Transfers in the aggregate shall not exceed 10% of the Shares
held by Shareholders as of the date hereof); or
(b) grant any proxy or power of attorney, deposit any of the Shares into a voting trust or
enter into a voting agreement or arrangement with respect to the Shares except as provided in this
Agreement.
Notwithstanding anything to the contrary in this Agreement, any Shares Transferred in a manner
permitted by Section 2(a) hereof shall be Transferred free and clear of any voting or other
restrictions contained herein and of the Proxy (as defined below), in each case except to the
extent specifically provided by Section 2(a)(iii).
3. Agreement to Vote Shares.
(a) At every meeting of the stockholders of the Company called, and at every adjournment or
postponement thereof, and on every action or approval by written consent of the stockholders of
Company, the Shareholder (in the Shareholder’s capacity as such), to the extent
not voted by the Person(s) appointed under the Proxy (as defined below), shall, or shall cause
the holder of record on any applicable record date to, vote the Shares:
(i) in favor of the adoption of the Merger Agreement, and in favor of each of the other
actions contemplated by the Merger Agreement;
(ii) against approval of any Company Acquisition Proposal; and
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(iii) against any action that is intended, or could reasonably be expected to, materially,
impede, interfere with, delay, or postpone the Merger.
(b) In the event that a meeting of the stockholders of the Company is held, the Shareholder
shall, or shall cause the holder of record on any applicable record date to, appear at such meeting
or otherwise cause the Shares to be counted as present thereat for purposes of establishing a
quorum.
(c) The Shareholder shall not enter into any agreement or understanding with any Person to
vote or give instructions in any manner inconsistent with the terms of this Section 3.
(d) In the event the Shareholder does not vote its Shares in accordance with this Section 3,
Parent shall have the right to vote such Shares in accordance with the terms of the Proxy.
(e) In the event the Board of Directors of the Company effects a Recommendation Withdrawal not
in connection with a Superior Proposal, the provisions of Section 3(i) shall be suspended;
provided, that in the event the Board of Directors of the Company reinstates its recommendation of
the Merger and the Merger Agreement, as the same may be amended, supplemented or modified,
thereafter makes a Recommendation Withdrawal in one or more of the circumstances permitted under
the Agreement or which would entitle Parent to payment of a termination fee or a court of competent
jurisdiction rules that such Recommendation Withdrawal not in connection with a Superior Proposal
constituted a breach of the Agreement entiling the Parent to a remedy, the provisions of Section
3(i) shall be reinstated, subject, in all respects to the other terms and conditions of this
Agreement.
4. Directors and Officers. Notwithstanding any provision of this Agreement to the contrary,
nothing in this Agreement shall (or require the Shareholder to attempt to) limit or restrict any
designee of the Shareholder or a Shareholder who is a director or officer of the Company from
acting in such capacity or voting, in his capacity as a director of the Company, with Shareholders’
sole discretion on any matter (it being understood that this Agreement shall apply to the
Shareholder solely in the Shareholder’s capacity as a shareholder of the Company).
5. Irrevocable Proxy. Concurrently with the execution of this Agreement, the Shareholder
shall deliver to Parent a proxy in the form attached hereto as Exhibit A (the “Proxy”), which shall
be effective solely as described in Section 3(d) above and irrevocable to the fullest extent
permissible by law, with respect to the Shares. Notwithstanding the foregoing, the Proxy shall
terminate and be revoked (or shall under no circumstances become effective) with respect to the
Shares concurrently with (a) the Transfer of Shares in accordance with
Section 2(a) above or (b) upon the Expiration Date, without any notice or action by
Shareholder, the transferee or any other person.
6. Representations and Warranties of the Shareholder.
(a) Power; Authorization; Binding Agreement. The Shareholder has full power, authority and
authorization to execute and deliver this Agreement and the Proxy, to perform the Shareholder’s
obligations hereunder and to consummate the transactions
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contemplated hereby. This Agreement has
been duly executed and delivered by the Shareholder, and, assuming this Agreement constitutes a
valid and binding obligation of Parent, constitutes a valid and binding obligation of the
Shareholder, enforceable against the Shareholder in accordance with its terms.
(b) No Conflicts. No filing with, and no permit, authorization, consent, or approval of, any
state or federal public body or authority (“Governmental Entity”) is necessary for the execution by
the Shareholder of this Agreement, the performance by the Shareholder of its obligations hereunder
and the consummation by the Shareholder of the transactions contemplated hereby. None of the
execution and delivery by the Shareholder of this Agreement, the performance by the Shareholder of
its obligations hereunder or the consummation by the Shareholder of the transactions contemplated
hereby will (i) conflict with or result in any breach of any agreements or documents entered into
by or binding on the Shareholder, (ii) violate any order, writ, injunction, decree, judgment,
order, statute, rule, or regulation applicable to the Shareholder, except where such violations,
breaches or defaults would not individually or in the aggregate, materially impair the ability of
Stockholder to perform this Agreement.
(c) Ownership of Shares. The Shareholder (i) is the beneficial owner of the shares of Company
Common Stock indicated on the signature page of this Agreement, (ii) is the owner of options that
are exercisable for the number of shares of Company Common Stock indicated on the signature page of
this Agreement, all of which options and shares of Company Common Stock issuable upon the exercise
of such options are, or the Company Common Stock received upon exercise of an option after the date
hereof will be, free and clear of any Liens (except any Liens arising under securities laws or
arising hereunder); and (iii) does not own, beneficially or otherwise, any securities of the
Company other than the shares of Company Common Stock or options to purchase shares of Company
Common Stock, and shares of Company Common Stock issuable upon the exercise of such options,
indicated on the signature page of this Agreement.
(d) No Encumbrance. Except as permitted by this Agreement, the Shares are now and, at all
times during the term hereof, or will be, as the case may be, held by Shareholder, or by a nominee
or custodian for the benefit of Shareholder, free and clear of all Liens except for any such Liens
arising hereunder or under applicable federal and state securities laws, other than Liens that
would not individually or in the aggregate, materially impair the ability of Stockholder to perform
this Agreement.
(e) No Action. The Shareholder agrees that it will not bring, commence, institute, maintain,
or prosecute any action, claim, suit or cause of action, in law or in equity, in any court or
before any Governmental Entity, which (i) challenges the validity of or seeks to
enjoin the operation of any provision of this Agreement or (ii) alleges that the execution and
delivery of this Agreement by the Shareholder, either alone or together with the other Voting
Agreements and proxies to be delivered in connection with the execution of the Merger Agreement, or
the approval of the Merger Agreement by the board of directors of the Company, breaches any
fiduciary duty of the board of directors of the Company or any member thereof.
7. Disclosure. The Shareholder shall permit Parent to publish and disclose in all documents
and schedules filed with the Securities and Exchange Commission, and any press
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release or other
disclosure document that Parent determines to be necessary or desirable in connection with the
Merger and any transactions related to the Merger, the Shareholder’s identity and ownership of
Shares and the nature of the Shareholder’s commitments, arrangements and understandings under this
Agreement.
8. Further Assurances. Subject to the terms and conditions of this Agreement, the Shareholder
shall use reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things reasonably necessary to fulfill such Shareholder’s obligations under this
Agreement.
9. Legending of Shares. If so requested by Parent, the Shareholder agrees that the Shares
shall bear a legend stating that they are subject to this Agreement and the Proxy.
10. Termination. This Agreement and the Proxy shall terminate and shall have no further force
or effect as of the Expiration Date. Notwithstanding the foregoing, nothing set forth in this
Section 10 or elsewhere in this Agreement shall relieve either party hereto from liability, or
otherwise limit the liability of either party hereto, for any breach of this Agreement.
11. Appraisal Rights. The Shareholder irrevocably waives and agrees not to exercise
any rights (including, without limitation, under Section 262 of the General Corporation Law of the
State of Delaware) to demand appraisal of any of the Shares which may arise with respect to the
Merger.
12. Miscellaneous.
(a) Validity. The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of the other provisions of this Agreement, which will remain
in full force and effect. In the event any Governmental Entity of competent jurisdiction holds any
provision of this Agreement to be null, void or unenforceable, the parties hereto shall negotiate
in good faith and execute and deliver an amendment to this Agreement in order, as nearly as
possible, to effectuate, to the extent permitted by law, the intent of the parties hereto with
respect to such provision.
(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 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; provided, that Parent may assign any of their rights and obligations hereunder, in whole or
in part, to any Affiliate or Subsidiary of Parent without obtaining the consent of the Shareholder.
(c) Amendments; Waiver. This Agreement may be amended by the parties hereto, and the terms
and conditions hereof may be waived, only by an instrument in writing signed on behalf of each of
the parties hereto, or, in the case of a waiver, by an instrument signed on behalf of the party
waiving compliance.
(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
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violation of any of
the covenants or agreements of the 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 specific performance, injunctive
relief or by any other means available to Parent at law or in equity.
Notices. All notices or other communications hereunder shall be deemed to have been duly given and
made if in writing and if served by personal delivery upon the party for whom it is intended, if
delivered by registered or certified mail, return receipt requested, or by a national courier
service, or if sent by facsimile or by email transmission. Any such notice shall be deemed
delivered (a) on the date delivered if by personal delivery, (b) on the date upon which receipt is
signed or delivery is made, if mailed by registered or certified mail, (c) on the date upon which
the return receipt is signed or delivery is refused or the notice is designated by the postal
authorities as not deliverable, as the case may be, if mailed by registered or certified mail, (d)
on the next succeeding Business Day if sent by national courier service, (e) on the date sent by
facsimile if the appropriate facsimile confirmation is received by the sender, or (f) on the date
sent if by email. Notices shall be sent:
| If to Parent: | ||
| Corel Corporation | ||
| 0000 Xxxxxxx Xxxxxx | ||
| Xxxxxx, Xxxxxxx | ||
| Xxxxxx X0X 0X0 | ||
| Attention: Xxxxx X. XxXxxxxxxxx | ||
| Telephone No.: 000.000.0000 | ||
| Telecopy No.: 613.725.2691 | ||
| email: Xxxxxxxxxxx.XxXxxxxxxxx@xxxxx.xxx | ||
| with a copy to: | ||
| O’Melveny & Xxxxx LLP | ||
| 000 Xxxxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxx Xxxxxxxxx, XX 00000 | ||
| Attention: Xxxxxxx X. Xxxxxxx | ||
| Telephone No.: 000.000.0000 | ||
| Telecopy No.: 415.984.8701 | ||
| email: xxxxxxxxx@xxx.xxx | ||
| If to the Shareholder, to the address, facsimile and email set forth on the signature page hereof. | ||
| with a copy to (which shall not constitute notice): | ||
| Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx | ||
| Professional Corporation | ||
| 000 Xxxx Xxxx Xxxx | ||
| Xxxx Xxxx, Xxxxxxxxxx 00000-0000 |
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| Attention: Xxxxxxx Xxxxxxx, Esq. | ||
| Xxxxxxx Xxxxxxxxxxx, Esq. | ||
| Telephone No.: 000.000.0000 | ||
| Telecopy No.: 000.000.0000 | ||
| email: xxxxxxxx@xxxx.xxx | ||
| xxxxxxxxxxxx@xxxx.xxx |
(e) No Waiver. The failure of either party hereto to exercise any right, power or remedy
provided under this Agreement or otherwise available in respect of this Agreement at law or in
equity, or to insist upon compliance by any other party with its obligation under this Agreement,
and any custom or practice of the parties at variance with the terms of this Agreement, shall not
constitute a waiver by such party of such party’s right to exercise any such or other right, power
or remedy or to demand such compliance.
(f) No Third Party Beneficiaries. This Agreement is not intended to confer upon any person
other than the parties hereto any rights or remedies hereunder.
(g) Governing Law. This Agreement shall be governed by the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles of conflicts of law
thereof.
(h) Rules of Construction. The parties hereto agree that they have been represented by
counsel during the negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing that ambiguities in
an agreement or other document will be construed against the party drafting such agreement or
document.
(i) Entire Agreement. This Agreement and the Proxy contain the entire understanding of the
parties hereto in respect of the subject matter hereof, and supersede all prior negotiations,
agreements and understandings, both written and oral, between the parties hereto with respect to
the subject matter hereof.
(j) Interpretation.
(i) Whenever the words “include,” “includes” or “including” are used in this Agreement they
shall be deemed to be followed by the words “without limitation.” As used in this Agreement, the
term “affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under the Exchange Act.
(ii) The article and section headings contained in this Agreement are solely for the purpose
of reference, are not part of the agreement of the parties hereto and shall not in any way affect
the meaning or interpretation of this Agreement.
(k) Expenses. All costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring the expenses.
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(l) 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.
(m) No Obligation to Exercise Options. Notwithstanding any provision of this Agreement to the
contrary, nothing in this Agreement shall obligate the Shareholder to exercise any option to
acquire shares of Company Common Stock.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed and caused to be effective this Agreement as
of the date first above written.
| COREL CORPORATION | SHAREHOLDER | |||||||||
By: |
By: |
|||||||||
Name:
|
Name: |
|||||||||
Title: |
Title: |
|||||||||
| Address: | ||||||||||
| Facsimile: | ||||||||||
| email: | ||||||||||
| Shares beneficially owned as of the date hereof: | ||||||||||
| _______ shares of Company Common Stock | ||||||||||
| _______ shares of Company Common Stock issuable upon exercise of outstanding options | ||||||||||
**** VOTING AGREEMENT ****
EXHIBIT A
IRREVOCABLE PROXY
The undersigned shareholder (the “Shareholder”) of InterVideo, Inc., a Delaware corporation
(the “Company”), hereby irrevocably (to the fullest extent permitted by law) appoints the Chief
Financial Officer and the General Counsel of Corel Corporation, a corporation organized and
existing under the laws of Canada (“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 Irrevocable Proxy until the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable to the fullest extent permitted by law, is coupled with
an interest and is granted pursuant to and is subject to that certain Voting Agreement of even date
herewith by and between Parent and the undersigned shareholder (the “Voting Agreement”), and is
granted in consideration of Parent entering into that certain Agreement and Plan of Merger of even
date herewith (the “Merger Agreement”), among Parent, Iceland Acquisition Corporation, a Delaware
corporation and wholly-owned subsidiary of Parent (“Merger Sub”), and the Company. The Merger
Agreement provides for, among other things the merger of Merger Sub with and into the Company,
pursuant to which all outstanding shares of capital stock of the Company will be converted into the
right to receive the consideration set forth in the Merger Agreement.
As used herein, the term “Expiration Date” shall mean the earlier to occur of (i) such date
and time as the Board of Directors of the Company shall have effected a Recommendation Withdrawal
pursuant to Section 5.2(c) of the Merger Agreement, (ii) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the Merger Agreement or (iii)
termination of the Merger Agreement in accordance with its terms; provided that the Expiration Date
shall be the effective date of any Transfer of Shares in accordance with Section 2(a) of the Voting
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, subject to and in accordance with the
terms and conditions of the Voting Agreement, 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, adjourned or postponed meeting of shareholders of the Company
and in every written consent in lieu of such meeting:
(i) in favor of the adoption of the Merger Agreement, and in favor of each of the other
actions contemplated by the Merger Agreement;
(ii) against approval of any Company Acquisition Proposal (as defined in the Merger
Agreement); and
(iii) against any action that is intended, or could reasonably be expected to, materially,
impede, interfere with, delay, or postpone the Merger.
The attorneys and proxies named above may not exercise this Irrevocable Proxy on any other
matter. 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 Irrevocable Proxy shall terminate, and be of no further force and effect, automatically
upon the Expiration Date and clause (i) above shall be suspended during any period during which the
obligations of Section 3 of the Voting Agreement are suspended pursuant to
Section 3(e).
Section 3(e).
[Signature page follows]
| Dated: August __, 2006 | SHAREHOLDER | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
***** IRREVOCABLE PROXY ****
