VOTING AGREEMENT
Exhibit 10.2
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.
RECITALS
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
DEFINITIONS
1.1 Capitalized
Terms. Capitalized terms used and not defined herein shall
have the respective meanings ascribed to them in the Merger
Agreement.
1.2 Other
Definitions. The following terms shall have the following
respective meanings:
(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.
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(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)(ii)
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 earlier 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.
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ARTICLE
II
VOTING
AGREEMENT AND PROXY
2.1 Agreement to Retain
Shares. Prior to the termination of the Voting Period,
Stockholder shall not, and shall not permit any Person to, directly or
indirectly, other than in the case of a Permitted Transfer:
(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.
2.2 Agreement to Vote
Shares. During the Voting Period, at every meeting of the
stockholders of Parent called with respect to any of the following, and at every
postponement or adjournment thereof, and on every action or approval by written
consent or resolution of the stockholders of Parent with respect to any of the
following, Stockholder shall vote or cause to be voted (including by written
consent, if applicable), to the extent not voted by the Person(s) appointed
under the proxy granted pursuant to Section 2.5, all Shares outstanding as
of the applicable record date:
(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.
2.3 Manner of
Voting. Stockholder shall cast its votes or execute consents
required to be cast or executed pursuant to this Agreement in accordance with
the applicable procedures relating thereto so as to ensure that such votes or
consents are duly counted for purposes of determining that a quorum is present
(if applicable) and for purposes of recording the results of such votes or
consents. Upon request of Company, Stockholder shall promptly (and in
any event at least five (5) Business Days prior to any applicable stockholder
meeting) provide evidence of its compliance with the provisions of
Section 2.2 and this Section 2.3.
2.4 Capacity as
Stockholder. No person executing this Agreement who is or
becomes an officer or director of Parent makes any agreement or understanding
herein in his or her capacity as such officer or
director. Stockholder signs solely in its capacity as the beneficial
owner of its Shares. Nothing herein shall limit or affect any actions
taken by Stockholder or any officer, director, employee or representative of
Stockholder in his or her capacity as an officer or director of
Parent.
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2.5 Grant of Irrevocable
Proxy.
(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
ADDITIONAL
COVENANTS
3.1 HSR Requirements.
Stockholder shall cooperate with Company in connection with the making of the
filings required to be made by Company under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 or any antitrust and competition laws of any other
applicable jurisdiction and any other applicable law.
3.2 Appraisal
Rights. Stockholder hereby waives any rights of appraisal or
rights to dissent from the Merger or the adoption of the Merger Agreement that
it may have under applicable law and shall not permit any such rights of
appraisal or rights of dissent to be exercised with respect to any
Shares.
3.3 Legending of
Shares. If so requested by Company, Stockholder hereby agrees
that the Shares shall bear a legend stating that they are subject to this
Agreement and to an irrevocable proxy.
3.4 Cooperation. Stockholder
shall cooperate fully with Company and, without limitation of the foregoing,
shall execute and deliver such further documents, certificates, agreements and
instruments and take such further actions as may be reasonably requested by
Company to evidence or reflect the transactions contemplated by this Agreement
and carry out the intent of this Agreement. Stockholder shall not
take, or cause to be taken, any action inconsistent with or that interferes with
the consummation of the Merger and the transactions contemplated by the Merger
Agreement.
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ARTICLE
IV
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF STOCKHOLDER
Stockholder
hereby represents, warrants and covenants to Company as follows:
4.1 Ownership. Stockholder
has good and marketable title to, and is the sole legal and beneficial owner of,
all the Shares set forth on the signature page hereto, in each case free and
clear of all liabilities, claims, liens, options, proxies, charges, and
encumbrances of any kind or character whatsoever, including rights of first
refusal or preemptive rights of any kind. Stockholder has sole voting
power and sole power of disposition with respect to all the Shares, with no
restrictions on its voting rights or rights of disposition pertaining
thereto. No proceedings are pending which, if adversely determined,
will have a material adverse effect on any ability to vote or dispose of any of
the Shares. No other Person has a beneficial interest in or a right
to acquire all or any portion of the Shares. The Shares set forth on
the signature page hereto constitute Stockholder’s entire direct and indirect
interest in the outstanding capital stock of
Parent. Stockholder’s principal residence or place of
business is set forth on Stockholder’s signature page hereto.
4.2 Authorization. Stockholder
has all requisite capacity, power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. Stockholder has
duly executed and delivered this Agreement and this Agreement constitutes the
legal, valid and binding agreements of Stockholder, enforceable against
Stockholder in accordance with its terms, subject to: (a) laws of general
application relating to bankruptcy, insolvency and the relief of debtors; and
(b) rules of law governing specific performance, injunctive relief and other
equitable remedies.
4.3 No
Violation. None of the execution, delivery and performance of
this Agreement by Stockholder will (a) require Stockholder to file or
register with, or obtain any material permit, authorization, consent or approval
of, any governmental agency, authority, administrative or regulatory body, court
or other tribunal, foreign or domestic, or any other entity; (b) violate,
or cause a breach of or default (or an event which with notice or the lapse of
time or both would become a default) under, any contract, agreement or
understanding, any statute or law, or any judgment, decree, order, regulation or
rule of any governmental agency, authority, administrative or regulatory body,
court or other tribunal, foreign or domestic, or any other entity or any
arbitration award binding upon Stockholder; or (c) cause the acceleration
of any obligation under or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrances on any property or asset of Stockholder pursuant to any provision
of any indenture, mortgage, lien, lease, agreement, contract, instrument, order,
judgment, ordinance, regulation or decree to which Stockholder is subject or by
which Stockholder or any of the Shares are bound.
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4.4 Acknowledgement. Stockholder
acknowledges and agrees that neither Company nor Company’s successors, assigns,
subsidiaries, divisions, employees, officers, directors, Stockholder, agents and
Affiliates shall owe any duty, whether in law or otherwise, or incur any
liability of any kind whatsoever, including without limitation with respect to
any and all claims, losses, demands, causes of action, costs, expenses
(including reasonable attorney’s fees) and compensation of any kind or nature
whatsoever, to Stockholder in connection with or as a result of any voting (or
failure to vote) by Company of the Shares at any annual, special or other
meeting or action or the execution of any consent of the Stockholder of
Parent. The parties acknowledge that, pursuant to the authority
hereby granted, Company may vote the Shares in furtherance of its own interests,
and Company is not acting as a fiduciary for Stockholder.
4.5 Compliance. Stockholder
will comply with the Securities Act of 1933 and the rules and regulations
thereunder, as now in effect and as from time to time amended, including those
hereafter enacted or promulgated, in connection with any Transfer of all or any
portion of the Shares.
4.6 Consent and
Waiver. Stockholder hereby gives any consents or waivers that
are reasonably required for the consummation of the Merger(including the Share
Issuance) under the terms of any agreement to which Stockholder is a party or
pursuant to any rights Stockholder may have.
4.7 Reliance by
Company. Stockholder acknowledges that Company is entering
into the Merger Agreement in reliance upon the execution and delivery of this
Agreement by Stockholder.
ARTICLE
V
TERMINATION
5.1 Termination. Unless
earlier terminated by the written consent of Company (in its sole and absolute
discretion), this Agreement shall terminate on the expiration of the Voting
Period. Upon the termination of this Agreement, neither Parent,
Company nor Stockholder shall have any rights or obligations hereunder and this
Agreement shall become null and void and have no effect; provided, that
termination of this Agreement shall not prevent any party from seeking any
remedies (at law or in equity) against any other party for that party’s breach
of any of the terms of this Agreement.
5.2 Survival. Notwithstanding
anything to the contrary contained in this Agreement, Article VI of this
Agreement shall survive the termination of this Agreement.
ARTICLE
VI
MISCELLANEOUS
6.1 Publication. Stockholder
hereby permits Parent, Merger Subs and/or Company to publish and disclose in
press releases, Schedule 13D filings and the Form S-4 Registration
Statement or Proxy Statement (including all documents and schedules filed with
the SEC) and any other disclosures or filings required by applicable law its
identity and ownership of shares of Parent Common Stock, the nature of its
commitments, arrangements and understandings pursuant to this Agreement and/or
the text of this Agreement.
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6.2 Specific Performance;
Injunctive Relief. The parties hereto acknowledge that Company
would be irreparably harmed and that there will be no adequate remedy at law for
a violation of any of the covenants or agreements of Stockholder set forth
herein. Therefore, it is agreed that, in addition to any other
remedies that may be available to Company upon any such violation, Company shall
have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Company at law or in equity
and Stockholder and Parent hereby waive any and all defenses which could exist
in their favor in connection with such enforcement and waive any requirement for
the security or posting of any bond in connection with such
enforcement.
6.3 Amendments and
Waivers. No amendment, modification, or waiver in respect of
this Agreement shall be effective against any party unless it shall be in
writing signed by Parent, Company and Stockholder. The waiver by any
party of a breach of any provision hereunder shall not operate or be construed
as a waiver of any prior or subsequent breach of the same or any other provision
hereunder.
6.4 Successors and
Assigns. The provisions of this Agreement shall be binding
upon the successors in interest, heirs and assigns to any of the
Shares. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this
Agreement.
6.5 Governing Law; Consent to
Jurisdiction; Venue.
(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.
6.6 WAIVER OF JURY
TRIAL. EACH OF PARENT, STOCKHOLDER AND COMPANY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
6.7 Mutual Drafting. Each party has
participated in the drafting of this Agreement, which each party acknowledges is
the result of extensive negotiations between the parties. This
Agreement shall not be deemed to have been prepared or drafted by any one party
or another or any party’s attorneys.
6.8 Titles and
Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
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6.9 Notices. All
notices shall be delivered in accordance with Section 8.2 of the Merger
Agreement. Notices to Stockholder shall be delivered to the address set forth on
the signature page hereto unless otherwise designated in writing by
Stockholder.
6.10 Fees and
Expenses. Except as otherwise
expressly set forth in this Agreement, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring the cost or expense whether or not the Merger is
consummated. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys’ fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
6.11 Severability. The
parties hereto agree that each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable
law. If any provision of this Agreement shall nevertheless be held to
be prohibited by or invalid under applicable law, (a) such provision shall
be effective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement, and (b) the parties shall, to the extent permissible by
applicable law, amend this Agreement, or enter into a voting trust agreement
under which the Shares shall be transferred to the voting trust created thereby,
so as to make effective and enforceable the intent of this
Agreement.
6.12 Entire
Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties with respect to the subject
matter hereof, supersede all other prior agreements and understandings, both
written and oral, among, between and by any of the parties with respect to the
subject matter hereof and no party shall be liable or bound to any other party
in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein.
6.13 Counterparts. This
Agreement may be delivered by telefacsimile and executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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PARENT:
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By:
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Name:
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Title:
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COMPANY
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By:
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Name:
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Title:
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STOCKHOLDER:
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Address:
______________________________
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______________________________________
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Number
of Shares: ______________________
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