VOTING AND SUPPORT AGREEMENT
Exhibit
10.1
THIS
VOTING AND SUPPORT AGREEMENT (this “Agreement”), dated as of October 12, 2009,
by and among Sigma Designs, Inc., a corporation incorporated under the laws of
the State of California (“Purchaser”),
and the undersigned shareholders (each, a “Shareholder” and, collectively, the
“Shareholders”) of CopperGate Communications Ltd., an corporation incorporated
under the laws of the State of Israel (the “Company”).
Except as otherwise provided herein, capitalized terms that are used but not
otherwise defined herein shall have the meaning assigned to such terms in the
Acquisition Agreement (as defined below).
RECITALS
A. Contemporaneously
with the execution of this Agreement, the Company, Purchaser, and Carmel V.C. 2
Ltd. and Xxxxx Xxxxxxx Ventures Management II Ltd. as the Holder Representatives
and certain shareholders of the Company listed on Exhibit A attached thereto
have entered into an Acquisition Agreement (the “Acquisition
Agreement”), providing for, among other things, the acquisition of all of
the issued and outstanding share capital of the Company including any and all
securities convertible and/or exercisable into Company Securities (as defined
below), pursuant to which the Company will become a wholly-owned subsidiary of
Purchaser whether by way of a share purchase of all of the issued and
outstanding share capital of the Company or by way of a merger of a wholly owned
subsidiary of Purchaser (to be incorporated in Israel) with the Company, at the
Closing thereof or subsequent thereto.
B. The
Shareholders are the holders and beneficial owners of Company
Securities.
C. In
order to induce Purchaser to enter into the Acquisition Agreement, each of the
Shareholders, severally and not jointly, and solely in its or his capacity as a
shareholder, wish to enter into this Agreement.
NOW, THEREFORE, for good and
valuable consideration, the receipt, sufficiency and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. Representations of
Shareholders. Each of the Shareholders represents
and warrants to Purchaser solely with respect to itself, severally and not
jointly, that:
(a) such
Shareholder is the holder and beneficial owner of the Company Ordinary Shares
and/or the Company Ordinary A Shares and/or Company Preferred Shares including
Preferred A-1 Shares and/or Preferred A-3 Shares and/or Preferred B Shares
and/or Preferred C Shares set forth opposite such Shareholder’s name on Section
3.05(e) of the Company Disclosure Schedule of the Acquisition Agreement (such
shares collectively referred to as “Company
Securities”), free and clear of all Liens and, except for this Agreement
or as set forth or specifically disclosed in the Acquisition Agreement
(including the Company Disclosure Schedule), there are no options, warrants or
other rights, agreements, arrangements or commitments of any character to which
such Shareholder is a party relating to the pledge, disposition or Voting (as
defined below) of any Company Securities and there are no Voting trusts or
Voting agreements with respect to such shares;
(b) such
Shareholder does not beneficially own any Company Securities other than as set
forth in Section 3.05(e) of the Company Disclosure Schedule of the Acquisition
Agreement and, except as set forth or specifically disclosed in the Acquisition
Agreement (including the Company Disclosure Schedule), does not have any
options, warrants or other rights to acquire any additional shares of capital
stock of the Company or any security exercisable for or convertible into shares
of capital stock of the Company (other than upon conversion of any Company
Preferred Shares into Company Ordinary Shares);
(c) such
Shareholder has full power and authority and has taken all actions necessary to
enter into, execute and deliver this Agreement and to perform fully such
Shareholder’s obligations hereunder;
(d) this
Agreement has been duly executed and delivered and constitutes the legal, valid
and binding obligation of such Shareholder enforceable against such Shareholder
in accordance with its terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors’ rights generally and by general equitable principles
(regardless of whether enforceability is considered in proceeding in equity or
at law); and
(e) the
execution, delivery and performance of this Agreement by such Shareholder does
not, and the consummation by such Shareholder of the transactions contemplated
hereby will not (i) result in a conflict with or in a breach of any
provisions of the organizational documents of the Shareholder, (ii) result
in a violation or breach of, or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right of termination,
cancellation, or acceleration) under any contract, agreement, instrument,
commitment, arrangement or understanding with respect to the Shareholder’s
Company Securities, (iii) require any material consent, authorization or
approval of any person or (iv) violate or conflict with any writ, injunction or
decree applicable to the Shareholder or the Shareholder’s Company
Securities.
2. Agreement to Vote;
Proxy. Each of the Shareholders hereby agrees to
vote such Shareholder’s Company Securities as follows at every meeting of the
shareholders of the Company and at every adjournment or postponement thereof or
at any written action of the shareholders or otherwise with respect to any of
the following matters:
(a) in favor
of adoption and approval of the Acquisition Agreement and the transactions
contemplated thereby (the “Acquisition”),
at every meeting of the shareholders of the Company at which such matters are
considered and at every adjournment or postponement thereof, including but not
limited to, if notified by the Purchaser of its intent to consummate the Merger
under Section 6.11 in favor of the Merger and any other proposals subject to and
consistent with the provisions of the Acquisition Agreement in support of the
Merger; and
(b) against
any action or agreement (other than the Acquisition Agreement or the actions and
transactions contemplated thereby) that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company or such Shareholder under the Acquisition Agreement or that could result
in any of the conditions to the Company’s or the Selling Shareholders'
obligations under the Acquisition Agreement not being fulfilled;
and
(c) except
for the Acquisition or the Merger, against any Acquisition Proposal, or merger,
consolidation, business combination, reorganization, recapitalization,
liquidation or sale or transfer of any material assets of the Company or its
Subsidiaries.
Each of
the Shareholders hereby delivers to Xxxxx Xxxx and Xxxxxx X. Xxx III an
irrevocable proxy (the “Company
Proxy”) substantially in the form attached hereto as Exhibit A,
to Vote such Shareholder’s Company Securities, as set forth above. The Proxies
delivered by each of the Shareholders pursuant to this Section 2 shall be
irrevocable, to the fullest extent permissible by applicable law, during the
term of this Agreement. For purposes of this Agreement, “Vote”
or “Voting”
includes voting in person or by proxy in favor of or against any action,
otherwise consenting or withholding consent in respect of any action or taking
other action in favor of or against any action.
3. No Voting
Trusts. Each of the Shareholders agrees that they
will not, nor will they permit any entity under their control to, deposit any of
its Company Securities in a Voting trust or subject any of their Company
Securities to any arrangement with respect to the Voting of such shares in a
manner inconsistent with this Agreement or the Acquisition
Agreement.
4. Reserved..
5. Specific
Performance. The parties acknowledge that there
may be no adequate remedy at law for a breach of this Agreement and that money
damages may not be an appropriate remedy for breach of this Agreement.
Therefore, the parties agree that each party has the right to injunctive relief
and specific performance of this Agreement in the event of any breach hereof.
The remedies set forth in this Section 5 are cumulative and shall in no way
limit any other remedy any party hereto has at law, in equity or pursuant
hereto.
6. Entire Agreement; Amendment;
Waiver. This Agreement (including the exhibits
hereto) contains the entire agreement between the parties hereto with respect to
the subject matter hereof and thereof and supersedes all prior agreements and
understandings, oral or written, with respect to such matters. Any provision of
this Agreement may be amended or waived if, and only if, such amendment or
waiver is in writing and signed, in the case of an amendment, by Purchaser and
the affected Shareholders, or in the case of a waiver, by the party or parties
against whom the waiver is to be effective. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.
7. Notices. All
notices, requests and other communications required or permitted under, or
otherwise made in connection with, this Agreement, shall be in writing and shall
be deemed to have been duly given (a) when delivered in person, (b) upon
confirmation of receipt when transmitted by facsimile transmission or by
electronic mail (but, in the case of electronic mail, only if followed by
transmittal by national overnight courier or by hand for delivery on the next
Business Day), (c) upon receipt after dispatch by registered or certified mail,
postage prepaid or (d) on the next Business Day if transmitted by national
overnight courier (with confirmation of delivery), in each case, addressed as
follows:
if to
Purchaser (or an affiliate thereof):
Sigma
Designs, Inc.
0000
XxXxxxxx Xxxx.
Xxxxxxxx,
XX 00000
Attention:
Chief Executive Officer and Chief Financial Officer
Facsimile
No.: 000.000.0000
with a
copy (which shall not constitute notice) to:
Pillsbury
Xxxxxxxx Xxxx Xxxxxxx LLP
0000
Xxxxxxx Xxxxxx
Xxxx
Xxxx, XX 00000-0000
Attention:
Xxxxx X. Xxxxxxx
Facsimile
No.: 650.233.4545
E-mail:xxx.xxxxxxx@xxxxxxxxxxxx.xxx
And
to:
Meitar
Liquornik Geva & Leshem Xxxxxxxxx
00 Xxxx
Xxxxxx Xxxxxx Xxxx
Ramat Gan
Israel 52506
Attention:
Xxxxx Xxxxxxx, Adv.
Facsimile
No.: x000-0-000-0000
E-mail:
xxxxxxxx@xxxxxx.xxx
If to a
Shareholder, to the address set forth next to such shareholder’s signature
below.
or to
such other address or facsimile number as such party may hereafter specify for
the purpose by notice to the other parties hereto in accordance with this
Section 8..
8. Survival. The
representations and warranties of the parties contained in this Agreement shall
terminate upon termination of this Agreement.
9. Miscellaneous.
(a) Governing Law And
Venue. This agreement shall be governed and construed
in accordance with the laws of the State of New York, without regard to conflict
of laws principles thereof. The parties hereto agree that any
Proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the Transactions shall be
brought in the competent courts (federal and state) in the State of New York,
and each of the parties hereby irrevocably consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such
Proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any
such Proceeding in any such court or that any such Proceeding brought in any
such court has been brought in an inconvenient forum. Process in any such
Proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in Section 7 shall be deemed effective service of process on such
party. EACH PARTY HERETO IRREVOCABLY AND ABSOLUTELY WAIVES THE RIGHT TO A TRIAL
BY JURY IN ANY DISPUTE IN CONNECTION WITH, ARISING UNDER OR RELATING TO THIS
AGREEMENT, ANY RELATED AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY OR THEREBY,
AND AGREES TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH
WAIVER.
(b) Severability. The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of
this Agreement, or the application thereof to any Person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such provision to
other Persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
(c) Assignment. This
Agreement shall not be assignable by operation of law or otherwise; provided,
however, that Purchaser may assign its right and obligations hereunder to any
Subsidiary of Purchaser. Any purported assignment in violation of this Agreement
is void.
(d) Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which shall constitute one and the same
Agreement.
(e) Termination. This
Agreement shall terminate upon and have no further force and effect after the
earliest to occur of (i) the Closing; and (ii) the termination of the
Acquisition Agreement in accordance with its terms.
(f) Further
Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be reasonably necessary or desirable to effectuate, carry
out and comply with all of the terms of this Agreement and the transactions
contemplated hereby.
(g) Headings. The
heading references herein are for convenience purposes only, and shall not be
deemed to limit or affect any of the provisions hereof.
(h) Third Party
Beneficiaries. Nothing in this Agreement, express or implied, is intended
to confer upon any person other than Purchaser, the Shareholders and their
respective successors and assigns, any rights or remedies under or by reason of
this Agreement. The representations and warranties in this Agreement are the
product of negotiations among the parties hereto and are for the sole benefit of
the parties hereto. In some instances, the representations and warranties in
this Agreement may represent an allocation among the parties hereto of risks
associated with particular matters regardless of the knowledge of any of the
parties hereto. Consequently, Persons other than the parties hereto may not rely
upon the representations and warranties in this Agreement as characterizations
of actual facts or circumstances as of the date of this Agreement or as of any
other date.
(i) Shareholder
Capacity. If the Shareholder is an officer or director of the Company
or any of its Subsidiaries, nothing in this Agreement shall be construed as
preventing or otherwise affecting any actions taken by the Shareholder in his or
her capacity as an officer or director of the Company or any of its Subsidiaries
or from fulfilling the obligations of such office (including the performance of
obligations required by the fiduciary obligations of such Shareholder acting
solely in his capacity as an officer or director).
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Voting and
Support Agreement as of the date first written above.
| SIGMA DESIGNS, INC. | |||
|
|
By:
|
/s/ Xxxxx X. Xxxx | |
| Name: Xxxxx X. Xxxx | |||
| Title: President and Chief Executive Officer | |||
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Voting and
Support Agreement as of the date first written above.
|
Name
of Shareholder:__________________________
By:________________________________________
Print
Name:__________________________________
Title: ______________________
Address:
_____________________________
____________________________________
Facsimile No.:
_________________________
E-mail:
_______________________________
|
EXHIBIT
A
FORM OF COMPANY
PROXY
I/We, the
undersigned, in my/our capacity as shareholder in CopperGate Communications Ltd.
(the “Company”),
hereby appoint each of Xxxxx Xxxx and Xxxxxx X. Xxx, III, or their designated
representatives, to vote on my behalf and in my name with respect to all the
Company Securities held by me, as
follows:
(a) FOR
any resolution, proposal, or other action with respect to the adoption and
approval of (i) the Acquisition Agreement dated as of October 12, 2009 by and
among Sigma Designs, Inc., the Company, certain shareholders of the Company
(including the undersigned) and Carmel V.C. 2 Ltd. and Xxxxx Xxxxxxx Ventures
Management II Ltd. as the Holder Representatives (the “Acquisition
Agreement”) and (ii) any resolution, proposal, or other action with
respect to the approval of the transactions contemplated by the Acquisition
Agreement (the “Acquisition”)
or otherwise required in connection therewith or ancillary thereto;
(b) AGAINST
any action or agreement (other than the Acquisition Agreement or the actions and
transactions contemplated thereby) that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company or the undersigned under the Acquisition Agreement or that could result
in any of the conditions to the Company’s or the Selling Shareholders'
obligations under the Acquisition Agreement not being fulfilled;
(c) except
for the Acquisition or the Merger, AGAINST any resolution, proposal, or other
action with respect to any Acquisition Proposal, or merger, consolidation,
business combination, reorganization, recapitalization, liquidation or sale or
transfer of any material assets of the Company or its Subsidiaries.
”Vote”
means voting in person or by proxy in favor of or against any action, otherwise
consenting or withholding consent in respect of any action or taking other
action in favor of or against any action. This Proxy applies to any Vote at any
meeting of the shareholders of the Company, and any adjournment or postponement
thereof, at which the matters described above are considered. Except as
otherwise provided herein, capitalized terms that are used but not otherwise
defined herein shall have the meaning assigned to such terms in the Acquisition
Agreement (as defined below)
This
Proxy is coupled with an interest, revokes all prior proxies granted by the
undersigned and is irrevocable until such time as the Voting and Support
Agreement (the “Voting
and Support Agreement”), dated as of October 12, 2009, by and among Sigma
Designs, Inc. and certain shareholders of the Company (including the
undersigned), to which this Proxy is attached, terminates in accordance with its
terms, at which time this Proxy shall expire.
IN
WITNESS WHEREOF, the undersigned has executed this PROXY as of the date written
below.
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Dated
October __, 2009
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______________________________________
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Name
of Shareholder:
____________________________________
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(Signature
of Shareholder)
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