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EXHIBIT 10.33
STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (the "AGREEMENT") is made and entered
into as of January 22, 1999, by and among Genesis Microchip Incorporated, a Nova
Scotia corporation ("PARENT"), Paradise Electronics, Inc., a Delaware
corporation (the "COMPANY") and the undersigned stockholder (the "STOCKHOLDER")
of the Company. Capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to them in the Reorganization Agreement (as
defined below).
RECITALS
A. Concurrently with the execution of this Agreement, Parent,
Genesis Acquisition Corporation, a Delaware corporation and wholly-owned
subsidiary of Parent ("MERGER SUB"), and the Company have entered into that
certain Agreement and Plan of Reorganization (the "REORGANIZATION AGREEMENT") of
even date herewith, which provides for the merger (the "MERGER") of Merger Sub
with and into the Company. Pursuant to the Merger, all outstanding capital stock
of the Company will be converted into the right to receive Common Stock of
Parent, as set forth in the Reorganization Agreement.
B. The Stockholder 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
and shares subject to outstanding options and warrants as is indicated on the
signature page of this Agreement (the "SHARES").
C. In consideration of the execution of the Reorganization
Agreement by Parent, the Stockholder agrees to restrict the transfer or
disposition of any of the Shares, or any other shares of capital stock of the
Company acquired by the Stockholder hereafter and prior to the Expiration Date
(as defined in Section 1 below), and agrees to vote the Shares and any other
such shares of capital stock of the Company so as to facilitate consummation of
the Merger and agrees to grant Parent an irrevocable proxy to vote the Shares
and any other such shares of capital stock of the Company upon the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. NEW SHARES. The Stockholder agrees that any shares of capital
stock of the Company that the Stockholder purchases or with respect to which the
Stockholder otherwise acquires beneficial ownership after the date of this
Agreement and prior to the Expiration Date ("NEW SHARES") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares. For all purposes hereof, "EXPIRATION DATE" shall mean the
earlier to occur of (i) such date and time as the Merger shall become effective
or (ii) the termination of the Reorganization Agreement in accordance with its
terms.
2. AGREEMENT TO VOTE SHARES. At every meeting of the stockholders
of the Company called with respect to any of the following, and at every
adjournment thereof, and on every action or
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approval by written consent of the stockholders of the Company with respect to
any of the following, the Stockholder shall vote the Shares and any New Shares
that are then outstanding and in respect of which the Stockholder has voting
power: (a) in favor of approval of the Reorganization Agreement and the Merger
and in favor of any matter that could reasonably be expected to facilitate the
Merger and (b) in favor of the conversion of the Preferred Stock of the Company
(to the extent that the Stockholder is entitled to vote on such matters) into
Common Stock of the Company immediately prior to the Effective Time.
3. NON-SOLICITATION AGREEMENT. Except as is explicitly permitted
under the Reorganization Agreement, the Stockholder agrees, prior to the
Expiration Date, not to, directly or indirectly, take any of the following
actions with any party other than Parent and its designees: (a) solicit,
initiate, entertain, or encourage any proposals or offers from, or conduct
discussions with or engage in negotiations with, any person relating to any
possible acquisition of the Company (whether by way of merger, purchase of
capital stock, purchase of assets or otherwise), any material portion of its
capital stock or assets or any equity interest in the Company, (b) provide
information with respect to the Company to any person, other than Parent and its
affiliates, relating to, or otherwise cooperate with, facilitate or encourage
any effort or attempt by any such person with regard to, any possible
acquisition of the Company (whether by way of merger, purchase of capital stock,
purchase of assets or otherwise), any material portion of its capital stock or
assets or any equity interest in the Company, (c) enter into an agreement with
any person, other than Parent and its affiliates, providing for the acquisition
of the Company (whether by way of merger, purchase of capital stock, purchase of
assets or otherwise), any material portion of its capital stock or assets or any
equity interest in the Company, or (d) make or authorize any statement,
recommendation or solicitation in support of any possible acquisition of the
Company (whether by way of merger, purchase of capital stock, purchase of assets
or otherwise), any material portion of its capital stock or assets or any equity
interest in the Company by any person, other than by Parent and its affiliates.
In addition to the foregoing, if the Stockholder receives prior to the
Expiration Date any offer or proposal or request, directly or indirectly,
relating to any of the above, unless the Company has already given such notice,
the Stockholder shall immediately notify Parent thereof, including information
as to the identity of the offeror or the party making any such offer or proposal
and the specific terms of such offer or proposal, as the case may be.
4. IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, the Stockholder agrees to deliver to Parent a proxy in the form
attached as Exhibit A (the "PROXY"), which shall be irrevocable to the extent
provided in Section 212 of the Delaware General Corporation Law, covering the
total number of Shares and New Shares of capital stock of the Company
beneficially owned (as such term is defined in Rule 13d-3 under the Exchange
Act) by the Stockholder set forth therein. Notwithstanding the proxy, the
Stockholder may vote the Shares at any meeting or execute any consent consistent
with the Stockholder's obligations hereunder, unless otherwise notified by
Parent.
5. TRANSFEREE OF SHARES AND NEW SHARES TO BE BOUND BY THIS
AGREEMENT. The Stockholder agrees that, during the period from the date of this
Agreement through the Expiration
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Date, Stockholder shall not cause or permit any transfer, assignment, conveyance
or their disposition of any Shares or New Shares or be effected unless each
person to which any Shares or New Shares, or any interest in any of such shares,
is or may be transferred shall have: (a) executed a counterpart of this
Agreement and a proxy in the form attached as Exhibit A; and (b) agreed to hold
such Shares and New Shares (or interest in such shares) subject to all of the
terms and provisions of this Agreement; provided, however, that the exercise of
options or warrants or the conversion of convertible securities shall not be
considered prohibited dispositions hereunder so long as the securities so
acquired continue to be Shares or New Shares subject to the terms of this
Agreement and to the Proxy.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER. The
Stockholder represents, warrants and covenants to Parent as follows: the
Stockholder: (i) is the beneficial owner of the Shares, which at the date of
this Agreement and at all times up until the Expiration Date will be free and
clear of any liens, claims, options, charges or other encumbrances, (ii) does
not beneficially own any shares of capital stock of the Company other than the
Shares, and (iii) has full power and authority to make, enter into and carry out
the terms of this Agreement and the Proxy.
7. ADDITIONAL DOCUMENTS. The Stockholder and the Company hereby
covenant and agree to execute and deliver any additional documents reasonably
necessary or desirable to carry out the purpose and intent of this Agreement.
8. CONSENT AND WAIVER. The Stockholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreement to which the Stockholder is a party or pursuant to
any rights the Stockholder may have.
9. TERMINATION. This Agreement and the Proxy delivered in
connection herewith shall terminate and shall have no further force or effect as
of the Expiration Date.
10. LEGENDING OF SHARES. If so requested by Parent, Stockholder
agrees that the Shares and any New Shares shall bear a legend stating that they
are subject to this Agreement and to an irrevocable proxy. Stockholder agrees
that he shall not transfer, sell, exchange, pledge or otherwise dispose of or
encumber the Shares or any New Shares, without first having the aforementioned
legend affixed to the certificates representing the Shares or any New Shares.
11. MISCELLANEOUS.
a. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
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,
except as otherwise specifically provided herein, neither this
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Agreement nor any of the rights, interests or obligations of the parties hereto
may be assigned by any of the parties without the prior written consent of the
other parties.
c. AMENDMENTS AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
d. SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties
acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
the Stockholder 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.
e. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or by
commercial delivery service, or mailed by registered or certified mail (return
receipt requested) or sent via facsimile (with acknowledgment of complete
transmission) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to Parent: Genesis Microchip Incorporated
000 Xxxx Xxxxxx Xxxx.
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attention: Chief Operating Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Stockholder: To the address for notice set forth on the
last page hereof.
If to The Company: Paradise Electronics, Inc.
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0000 Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
Attention: Chief Executive Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to: Cooley Godward LLP
Five Palo Alto Square, 0xx Xxxxx
Xxxx Xxxx, XX 00000-0000
Xxxxxx Xxxxxx
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
f. GOVERNING LAW. This Agreement shall be governed by,
construed and enforced in accordance with the internal laws of the State of
Delaware, without giving effect to any choice or conflict of law provision or
rule (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Delaware.
g. ENTIRE AGREEMENT. This Agreement and the Proxy contain
the entire understanding of the parties in respect of the subject matter hereof,
and supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
h. 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.
i. EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
* * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
GENESIS MICROCHIP INCORPORATED STOCKHOLDER
Name:
-----------------------------------
By: By:
--------------------------------- -------------------------------------
Name: Name:
Title: Title:
Stockholder's Address for Notice:
----------------------------------------
PARADISE ELECTRONICS, INC. ----------------------------------------
By:
--------------------------------- ----------------------------------------
Name:
Title: Shares beneficially owned:
________ shares of Company Common Stock
________ shares of Company Series A
Preferred Stock
________ shares of Company Series B
Preferred Stock
________ shares of Company Series C
Preferred Stock
________ shares of Company Common Stock
issuable upon exercise of outstanding
options and warrants
[SIGNATURE PAGE TO COMPANY STOCKHOLDER VOTING AGREEMENT]
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IRREVOCABLE PROXY
TO VOTE
PARADISE ELECTRONICS, INC. STOCK
The undersigned stockholder of Paradise Electronics, Inc., a Delaware
corporation (the "COMPANY"), hereby irrevocably (to the fullest extent permitted
by Section 212 of the Delaware General Corporation Law) appoints the directors
on the Board of Directors of Genesis Microchip Incorporated, a Nova Scotia
corporation ("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
fullest 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 in respect thereof on or after the date hereof
which shares are or become outstanding and in respect of which the undersigned
stockholder has voting power (collectively, the "SHARES") in accordance with the
terms of this Proxy. The Shares beneficially owned by the undersigned
stockholder of the Company as of the date of this Proxy are listed on the final
page of this Proxy, along with the number of the share certificates which
represent such Shares. Upon the undersigned's execution of this Proxy, any and
all prior proxies given by the undersigned with respect to any Shares are hereby
revoked and the undersigned agrees not to grant any subsequent proxies with
respect to the Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent provided in Section 212
of the Delaware General Corporation Law), is granted pursuant to that certain
Stockholder Voting Agreement dated as of January ___, 1999, by and among Parent,
the Company and the undersigned stockholder (the "STOCKHOLDER AGREEMENT"), and
is granted in consideration of Parent entering into that certain Agreement and
Plan of Reorganization dated as of January ___, 1999 (the "REORGANIZATION
AGREEMENT"), by and among Parent, Genesis Acquisition Corporation, a Delaware
corporation and wholly-owned subsidiary of Parent ("MERGER SUB"), and the
Company. The Reorganization Agreement provides for the merger of Merger Sub into
the Company in accordance with its terms (the "MERGER") and the Stockholder is
receiving a portion of the proceeds of the Merger. As used herein, the term
"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 Reorganization Agreement or (ii) the termination of the Reorganization
Agreement in accordance with its terms.
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, 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 pursuant to Section 228 of the Delaware General Corporation
Law) at every annual, special or adjourned meeting of the stockholders of the
Company and in every written consent in lieu of such meeting: (a) in favor of
approval of the Merger and the Reorganization Agreement and in favor of any
matter that could reasonably be expected to facilitate the Merger and (b) in
favor of the conversion of each of the Series A, Series B and Series C Preferred
Stock of the Company (in each case to the extent that the undersigned
stockholder is entitled to vote on such
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matter) into Common Stock of the Company prior to the Effective Time. The
attorneys and proxies named above may not exercise this Irrevocable Proxy on any
other matter except as provided in clauses (a) and (b) above. The undersigned
stockholder 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 Proxy is irrevocable (to the fullest extent permitted by Section
212 of the Delaware General Corporation Law). This Proxy shall terminate, and be
of no further force and effect, automatically upon the Expiration Date.
Dated: January ___, 1999 Signature of Stockholder:
-------------------------
Print Name of Stockholder:
-------------------------
Shares beneficially owned:
________ shares of Company Common Stock
________ shares of Company Series A
Preferred Stock
________ shares of Company Series B
Preferred Stock
________ shares of Company Series C
Preferred Stock
________ shares of Company Common Stock
issuable upon exercise of outstanding
options and warrants
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