VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of December
16, 1998 between Pinnacle Systems, Inc., a California corporation ("PARENT"),
and the undersigned stockholder ("STOCKHOLDER") of Truevision, Inc., a Delaware
corporation (the "COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, the Company,
Xxxxxxxx Merger Corporation, a Delaware corporation and a wholly owned
subsidiary of Parent ("LEVEL ONE MERGER SUB") and Xxxxx Merger Corporation, a
Delaware corporation and a wholly owned subsidiary of Level One Merger Sub
("MERGER SUB", and together with Level One Merger Sub, "MERGER SUBS") have
entered into an Agreement and Plan of Reorganization of even date herewith (the
"MERGER AGREEMENT") which provides for the merger (the "MERGER") of Merger Sub
with and into the Company. Pursuant to the Merger, shares of Common Stock of the
Company will be converted into Common Stock of Parent in the manner set forth in
the Merger Agreement.
B. The Stockholder is the record holder and 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 Common Stock of the Company
as is indicated on the final page of this Agreement (the "SHARES").
C. Parent desires the Stockholder to agree, and the Stockholder is willing
to agree, not to transfer or otherwise dispose of any of the Shares, or any
other shares of capital stock of the Company acquired hereafter and prior to the
Expiration Date (as defined in Section 1.1 below, except as otherwise permitted
hereby), and to vote the Shares and any other such shares of capital stock of
the Company so as to facilitate consummation of the Merger.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, the parties agree as follows:
1. AGREEMENT TO RETAIN SHARES.
1.1 TRANSFER AND ENCUMBRANCE. Stockholder agrees not to transfer
(except as may be specifically required by court order), sell, exchange,
pledge or otherwise dispose of or encumber any of the Shares or any New
Shares as defined in Section 1.2 below, or to make any offer or agreement
relating thereto, at any time prior to the Expiration Date. 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 Merger Agreement and (ii) such date as the Merger
Agreement shall be terminated pursuant to Article VII thereof.
1.2 ADDITIONAL PURCHASES. Stockholder agrees that any shares of
capital stock of the Company that Stockholder purchases or with respect to
which Stockholder otherwise acquires beneficial ownership (as such term is
defined in Rule 13d-3 under the Exchange Act) after the execution 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.
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 approval by written consent of the Stockholders
of the Company with respect to any of the following, Stockholder shall vote the
Shares and any New Shares: (i) in favor of approval of the Merger Agreement and
the Merger and any matter that could reasonably be expected to facilitate the
Merger; and (ii) against approval of any proposal made in opposition to or
competition with consummation of the Merger and against any merger,
consolidation, sale of assets, reorganization or recapitalization, with any
party other than with Parent and its affiliates and against any liquidation or
winding up of the Company (each of the foregoing is hereinafter referred to as
an "OPPOSING PROPOSAL"). Stockholder agrees not to take any actions contrary to
Stockholder's obligations under this Agreement.
3. IRREVOCABLE PROXY. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to Parent a proxy in the form attached hereto as
EXHIBIT A (the "PROXY"), which shall be irrevocable, with the total number of
shares of capital stock of the Company beneficially owned (as such term is
defined in Rule 13d-3 under the Exchange Act) by Stockholder set forth therein.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
STOCKHOLDER. Stockholder hereby represents, warrants and covenants to Parent as
follows:
4.1 OWNERSHIP OF SHARES. Stockholder (i) is the beneficial owner of
the Shares, which at the date hereof 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 (excluding shares as to
which Stockholder currently disclaims beneficial ownership in accordance
with applicable law); and (iii) has full power and authority to make, enter
into and carry out the terms of this Agreement and the Proxy.
4.2 NO PROXY SOLICITATIONS. Stockholder will not, and will not permit
any entity under Stockholder's control to: (i) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation
14A under the Exchange Act) with respect to an Opposing Proposal or
otherwise encourage or assist any party in taking or planning any action
that would compete with, restrain or otherwise serve to interfere with or
inhibit the timely consummation of the Merger in accordance with the terms
of the Merger Agreement, except as permitted in accordance with Article V of
the Merger Agreement; (ii) initiate a Stockholders' vote or action by
written consent of the Company Stockholders with respect to an Opposing
Proposal; or (iii) become a member of a "group" (as such term is used in
Section 13(d) of the Exchange Act) with respect to any voting securities of
the Company with respect to an Opposing Proposal.
5. ADDITIONAL DOCUMENTS. Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent and Stockholder, as the case may be, to carry out
the intent of this Agreement.
6. 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.
7. MISCELLANEOUS.
7.1 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.
7.2 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, either 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.
7.3 AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
7.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
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 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.
7.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, fascimile, or sent by mail
(registered or certified mail, postage prepaid, return receipt requested) or
overnight courier (prepaid) to the respective parties as follows:
If to Parent: Pinnacle Systems, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile Number: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq./Xxxxx X.
Xxxxxxx, Esq.
If to the Stockholder: At the address provided on Signature
Page
With a copy to: Xxxxxx Godward LLP
Five Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxx X. Xxxxxx, Esq./Xxxxx X.
Xxxxxxxx, Esq.
or to such other address or facsimile numbers as any party may have
furnished to the other in writing in accordance herewith, except that
notices of change of address or facsimile number shall only be effective
upon receipt.
7.6 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of the State of
California.
7.7 ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties in respect of the subject matter hereof, and supersedes all
prior negotiations and understandings between the parties with respect to
such subject matter.
7.8 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.
7.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction of interpretation of
this Agreement.
[Balance of Page Left Intentionally Blank]
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be duly
executed on the date and year first above written.
PINNACLE SYSTEMS, INC.
By:
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Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
STOCKHOLDER
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Name:
Stockholder's Address for Notice:
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--------------------------------------
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Facsimile Number:
Shares beneficially owned:
--------------------------------------------------------------- shares
of Common Stock
***SIGNATURE PAGE FOR VOTING AGREEMENT***
EXHIBIT A
IRREVOCABLE PROXY
The undersigned Stockholder of Truevision, Inc., a Delaware corporation
("COMPANY"), hereby irrevocably appoints the directors on the Board of Directors
of Pinnacle Systems, Inc., a California 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 the full extent of the
undersigned's rights with respect to (i) the shares of capital stock of Company
beneficially owned by the undersigned, which shares are listed on the final page
of this Proxy, and (ii) any and all other shares or securities issued or
issuable in respect thereof on or after the date hereof, until such time as that
certain Agreement and Plan of Reorganization dated as of December 16, 1998 (the
"MERGER AGREEMENT"), among Parent, Xxxxxxxx Merger Corporation, a Delaware
corporation and a wholly-owned subsidiary of Parent ("LEVEL ONE MERGER SUB"),
Xxxxx Merger Corporation, a Delaware corporation and a wholly-owned subisidary
of Level One Merger Sub ("MERGER SUB" and together with Level One Merger Sub,
"MERGER SUBS") and Company, shall be terminated in accordance with its terms or
the Merger (as defined in the Merger Agreement) is effective. (The shares of
capital stock of Company referred to in clauses (i) and (ii) above are
collectively referred to as the "Shares"). Upon the execution hereof, all prior
proxies given by the undersigned with respect to the Shares are hereby revoked
and no subsequent proxies will be given.
This Proxy is irrevocable, is granted pursuant to the Voting Agreement dated
as of December 16, 1998 between Parent and the undersigned Stockholder (the
"VOTING AGREEMENT"), and is granted in consideration of Parent entering into the
Merger Agreement. The attorneys and proxies named above will be empowered at any
time prior to termination of the Merger Agreement to exercise all voting and
other rights (including, without limitation, the power to execute and deliver
written consents with respect to the Shares) of the undersigned at every annual,
special or adjourned meeting of Company stockholders, and in every written
consent in lieu of such a meeting, or otherwise, in favor of approval of the
Merger and the Merger Agreement and any matter that could reasonably be expected
to facilitate the Merger, and against any proposal made in opposition to or
competition with the consummation of the Merger and against any merger,
consolidation, sale of assets, reorganization or recapitalization of Company
with any party other than Parent and its affiliates and against any liquidation
or winding up of Company.
The attorneys and proxies named above may only exercise this Proxy to vote
the Shares subject hereto at any time prior to termination of the Merger
Agreement at every annual, special or adjourned meeting of the Stockholders of
Company and in every written consent in lieu of such meeting, in favor of
approval of the Merger and the Merger Agreement and any matter that could
reasonably be expected to facilitate the Merger, and against any merger,
consolidation, sale of assets, reorganization or recapitalization of Company
with any party other than Parent and its affiliates, and against any liquidation
or winding up of Company, and may not exercise this Proxy on any other matter.
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.
Dated: December , 1998
Signature of Stockholder:
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Print Name of Stockholder:
----------------------------
Shares beneficially owned:
---------------------------- shares of Common Stock
***PROXY***
