EXHIBIT 10.4
VOTING AGREEMENT
This Voting Agreement (this "AGREEMENT") is made as of May 28, 1996, by
and among C-Cube Microsystems, Inc., a Delaware corporation ("C-CUBE"), and
Sagem, S.A., Sagem International S.A. and Tregor Electronique S.A., each a
company organized under the laws of France, and Iena International S.A., a
company organized under the laws of Luxembourg, each a stockholder
(collectively, the "STOCKHOLDER") of DiviCom Inc., a Delaware corporation
("DIVICOM").
RECITALS
A. Pursuant to an Agreement and Plan of Reorganization dated as of May
28, 1996 (the "REORGANIZATION AGREEMENT") among C-Cube, C-Cube Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of C-Cube
("MERGER SUB"), and DiviCom, DiviCom will merge with and into Merger Sub (the
"MERGER"), with Merger Sub continuing as the surviving corporation and
wholly-owned subsidiary of C-Cube; and
B. 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 and class of shares of the outstanding capital stock of DiviCom as is
indicated on Exhibit A to this Agreement (the "SHARES").
NOW, THEREFORE, the parties agree as follows:
1. AGREEMENT TO RETAIN SHARES.
1.1 TRANSFER AND ENCUMBRANCE. Stockholder agrees not to transfer
(except for transfers among family members for tax and estate planning
purposes, transfers among corporate affiliates and as may be specifically
required by court order or by operation of law), sell, exchange, pledge
(except in connection with a bona fide loan transaction, provided that any
pledgee agrees not to transfer, sell, exchange, pledge or otherwise dispose
of or encumber the Shares or any New Shares (as defined in Section 1.2) prior
to the Expiration Date or otherwise dispose of or encumber the Shares or any
New Shares, 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
Reorganization Agreement, and (ii) the date of termination of the
Reorganization Agreement in accordance with its terms.
1.2 NEW SHARES. Stockholder agrees that any shares of capital
stock of DiviCom that Stockholder purchases or with respect to which
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.
2. AGREEMENT TO VOTE SHARES. At every meeting of the stockholders of
DiviCom called with respect to any of the following, and at every adjournment
and postponement thereof, and on every action or approval by written consent
of the stockholders of DiviCom with respect to any of the following,
Stockholder shall vote the Shares and any New Shares (i) in favor of approval
of the Reorganization Agreement, the Merger and any matter that could
reasonably be expected to facilitate the Merger, (ii) against any proposal
for any recapitalization, merger, sale of assets or other business
combination (other than the Merger and any other matter referred to in clause
(i) of this Section 2) between DiviCom and any person or entity other than
C-Cube or any other action or agreement that could result in a material
breach of any covenant, representation or warranty or any other obligation or
agreement of DiviCom under the Reorganization Agreement or which could result
in any of the conditions to DiviCom's obligations under the Reorganization
Agreement not being fulfilled, and (iii) in favor of amending the Certificate
of Incorporation of DiviCom pursuant to Section 1.13 of the Reorganization
Agreement.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER.
Stockholder hereby represents, warrants and covenants to C-Cube that
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 DiviCom 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.
4. TERMINATION. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
5. MISCELLANEOUS.
5.1 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.
5.2 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, neither this Agreement nor
any of the rights, interests or obligations of the parties hereto may be
assigned by either of the parties without the prior written consent of the
other. This Agreement is intended to bind Stockholder as a stockholder of
DiviCom only with respect to the specific matters set forth herein.
5.3 AMENDMENT AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except by the execution and
delivery of a written agreement
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executed by the parties hereto.
5.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that C-Cube 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 C-Cube upon any such
violation, C-Cube shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to C-Cube at law or in equity.
5.5 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 confirmation of
receipt) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) if to C-Cube or Merger Sub, to:
C-Cube Microsystems Inc.
1778 McCarthy Boulevard
Milpitas, California 95035
Attention: President and Chief Executive Officer
Telephone No.: (408) 944-6300
Facsimile No.: (408) 944-8167
with a copy to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attn: Larry W. Sonsini, Esq.
Aaron J. Alter, Esq.
Facsimile No.: (415) 493-9300
Telephone No.: (415) 493-6811
(b) if to Stockholder, to:
Sagem S.A.
27 rue Leblanc
75015 Ponnant
France
Attention: Michel Toussan
Telephone No.: 011-33-1-40-70-64-56
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Facsimile No.: 011-33-1-40-70-64-38
with a copy to:
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
Attn: Jennifer Bellah, Esq.
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
5.6 GOVERNING LAW. This Amendment shall be governed by and
construed, interpreted and enforced in accordance with the internal laws of
the State of Delaware.
5.7 ENTIRE AGREEMENT. This Agreement contains 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 matters.
5.8 COUNTERPART. 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.
5.9 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 Voting Agreement to be
duly executed on the day and year first above written.
C-CUBE MICROSYSTEMS INC.
Name: _______________________________
Title: _______________________________
STOCKHOLDER:
SAGEM S.A.
By: _______________________________
Francis Gaillard
Title: Corporate Comptroller
SAGEM INTERNATIONAL S.A.
By: _______________________________
Francis Gaillard
Title: Authorized Representative
IENA INTERNATIONAL S.A.
By: _______________________________
Francis Gaillard
Title: Authorized Representative
TREGOR ELECTRONIQUE S.A.
By: _______________________________
Francis Gaillard
Title: Authorized Representative
[Signature Page to Voting Agreement]
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EXHIBIT A
Common Stock 2046217
Series A Preferred 14629855
Series B Preferred 5500000
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