VOTING AGREEMENT
THIS VOTING AGREEMENT (this
“Agreement”) is
made as of June 1, 2010, by and among Sonic Solutions, a California corporation
(“Parent”),
DivX, Inc., a Delaware corporation (“Company”), and the
undersigned Stockholder (“Stockholder”) of
Parent.
WHEREAS, concurrently with the
execution of this Agreement, Parent, Siracusa Merger Corporation, a Delaware
corporation and a wholly owned subsidiary of Parent (“Merger Sub I”),
Siracusa Merger LLC, a Delaware limited liability company and a wholly owned
subsidiary of Parent (“Merger Sub II” and
together with Merger Sub I, the “Merger Subs”), and
Company are entering into an Agreement and Plan of Merger (as the same may be
amended from time to time, the “Merger Agreement”),
pursuant to which, among other matters, Merger Sub I will merge with
and into Company and Company will merger into Merger Sub II (the “Merger”);
WHEREAS, Stockholder is the
beneficial owner of, or otherwise has the power to vote or direct the vote of,
the Shares set forth on the signature page to this Agreement; and
WHEREAS, as a condition to the
willingness of Company to enter into the Merger Agreement, and as a material
inducement and in consideration therefor, Stockholder has agreed to enter into
this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the representations, warranties, covenants
and promises contained herein, and for other good and valuable consideration,
the parties hereto agree as follows:
ARTICLE
I
(a) “Adverse Proposal”
means: (i) any action, proposal or transaction that would
reasonably be expected to result in a breach of any covenant, agreement,
representation or warranty or any other obligation of Parent set forth in the
Merger Agreement or of Stockholder contained in this Agreement; or (ii) any
other action, proposal or transaction that is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or adversely affect the
Merger and the other transactions contemplated by this Agreement and the Merger
Agreement.
(b) “beneficial ownership”
shall have the meaning reflected in Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended.
(c) “Constructive Sale” means with
respect to any security, a short sale with respect to such security, entering
into or acquiring an offsetting derivative
contract with respect to such
security, entering into or acquiring a futures or forward contract to deliver
such security or entering into any other hedging or other derivative transaction
that has the effect of either directly or indirectly materially changing the
economic benefits and risks of ownership.
(d) “Permitted Transfer”
means a Transfer of Shares by Stockholder: (a) if Stockholder is an individual:
(i) made pursuant to, and in compliance with, a written plan that meets the
requirements of Rule 10b5-1 under the Securities Exchange Act of 1934, as
amended, established prior to the date hereof; (ii) to any member of
Stockholder’s immediate family; or to a trust for the benefit of Stockholder or
any member of Stockholder’s immediate family; or (iii) upon the death of
Stockholder; or (b) if Stockholder is a partnership or limited liability
company, to one or more partners or members of Stockholder or to an affiliated
corporation under common control with Stockholder; provided, however, that other
than in the case of a Permitted Transfer effected pursuant to subsection (a)(i)
above, a Permitted Transfer shall be permitted only if, as a precondition to
such Permitted Transfer, the transferee agrees in a writing, reasonably
satisfactory in form and substance to Company, to be bound by all of the terms
of this Agreement.
(e) “Shares” means
(i) all shares of Parent capital stock that, as of the date of this
Agreement, are owned beneficially or of record by such Stockholder or for which
such Stockholder otherwise has the right to vote or direct the vote, and
(ii) all other shares of Parent capital stock of which such Stockholder
acquires beneficial or record ownership or the right to vote or direct the vote
prior to termination of the Voting Period; provided that Shares held by an
Affiliate of Stockholder for which Stockholder disclaims beneficial ownership
shall not constitute Shares for purposes of this Agreement.
(f) “Transfer” means with
respect to any security, the direct or indirect, sale, assignment, transfer,
tender, pledge, hypothecation, or the grant, creation or sufferance of any lien
or encumbrance in or upon, or the gift, placement in trust, or the Constructive
Sale or other disposition of such security (including transfers by testamentary
or intestate succession or otherwise by operation of law) or any right, title or
interest therein (including, but not limited to, any right or power to vote to
which the holder thereof may be entitled, whether such right or power is granted
by proxy or otherwise), or the record of beneficial ownership thereof, the offer
to make such a sale, transfer, Constructive Sale or other disposition, and each
agreement, arrangement or understanding, whether or not in writing, to effect
any of the foregoing.
(g) “Voting Period” means
the period from and including the date of this Agreement through and including
the date of the earliest to occur of (i) the Effective Time of the First
Merger, (ii) the date on which the Merger Agreement is terminated by Company
pursuant to Section 7.1 thereof, and (iv) such date and time as any amendment or
change to the Merger Agreement is effected without Stockholder’s consent that
increases the Exchange Ratio or the Merger Cash Consideration above the values
set forth in the Merger Agreement as of the date hereof.
ARTICLE
II
VOTING
AGREEMENT AND PROXY
(a) Transfer
any Shares or discuss, negotiate, make an offer or enter into an agreement,
commitment or other arrangement, whether or not in writing, with respect to any
Transfer of the Shares; provided, that nothing in
this Agreement shall be deemed to restrict the ability of Stockholder to
exercise any Parent Options or Parent Restricted Stock Units during the Voting
Period;
(b) deposit
any Shares into a voting trust, grant a proxy that is inconsistent with this
Agreement or enter into an agreement of any kind with respect to the voting of
any Shares; or
(c) take
any other action that could restrict or otherwise adversely affect Stockholder’s
legal power, authority and right to comply with its obligations under this
Agreement.
(a) in
favor of (i) approval and adoption of the Merger and the Merger Agreement
(including the Share Issuance) and (ii) any other transactions contemplated
by the Merger Agreement or other matters that could reasonably be expected to
facilitate the Merger; and
(b) against
the adoption of any Adverse Proposal.
Stockholder
may vote the Shares on all other matters not referred in this Agreement, and the
attorneys and proxies named herein may not exercise the proxy rights described
in Section 2.5 with respect to such other matters.
(a) Stockholder
hereby irrevocably appoints Company and any designee of Company, and each of
them individually, as Stockholder’s proxy and attorney-in-fact, with full power
of substitution and resubstitution, to vote or execute consents during the
Voting Period, with respect to the Shares, in accordance with
Section 2.2. This proxy is given to secure the performance of
the duties of Stockholder under this Agreement. Stockholder shall
promptly cause a copy of this Agreement to be deposited with Parent at its
principal place of business. Stockholder shall take any further
action and execute any other instruments as may be necessary to effectuate the
intent of this proxy.
(b) The
proxy and power of attorney granted pursuant to this Section 2.5 shall be
irrevocable during the Voting Period to the fullest extent permitted by
applicable law, shall be deemed to be coupled with an interest sufficient at law
to support an irrevocable proxy and shall revoke any and all prior proxies
granted by Stockholder. Stockholder acknowledges that such proxy
constitutes an inducement for Company to enter into the Merger
Agreement. The power of attorney granted by Stockholder is a durable
power of attorney and shall survive the dissolution, bankruptcy, death or
incapacity of Stockholder. The proxy and power of attorney granted
hereunder shall terminate only upon the termination of the Voting
Period.
ARTICLE
III
ARTICLE
IV
Stockholder
hereby represents, warrants and covenants to Company as follows:
ARTICLE
V
ARTICLE
VI
(a) This
Agreement is to be construed in accordance with and governed by the internal
laws of the State of Delaware without giving effect to any choice of law rule
that would cause the application of the laws of any jurisdiction other than the
internal laws of the State of Delaware to the rights and duties of the
parties.
(b) All
disputes and controversies arising out of or in connection with this Agreement
shall be resolved exclusively by Delaware Court of Chancery and any state
appellate court therefrom within the State of Delaware, and each party hereto
irrevocably and unconditionally consents to and submits to the exclusive
jurisdiction of said courts and agrees that venue shall lie exclusively with
such courts.
[Signature
Page Follows]
PARENT:
_________________________________
By:
______________________________
Name:
Title:
COMPANY
_________________________________
By:
______________________________
Name:
Title:
|
STOCKHOLDER:
_________________________________
Address:
____________________________
___________________________________
Number
of Shares: ____________________
|