Exhibit 10.4
EXECUTION COPY
COMPANY VOTING AGREEMENT
This COMPANY VOTING AGREEMENT ("AGREEMENT") is made and entered into as of
January 11, 2006 by and between Identix Incorporated, a Delaware corporation
(the "COMPANY"), and the person whose name appears on the signature page hereto
as a stockholder ("STOCKHOLDER") of Viisage Technology, Inc., a Delaware
corporation ("PARENT").
A. Concurrently with the execution of this Agreement, the Company, VIDS
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("MERGER SUB"), and Parent are entering into an Agreement and Plan of
Reorganization of even date herewith (the "MERGER AGREEMENT"), pursuant to which
the parties thereto have agreed, upon the terms and subject to the conditions
set forth therein, to merge Merger Sub with and into the Company, with the
Company to be the surviving corporation (the "MERGER"). Capitalized terms used
and not otherwise defined herein, and defined in the Merger Agreement, shall
have the respective meanings ascribed to them in the Merger Agreement.
B. As of the date hereof, Stockholder Beneficially Owns the number of
outstanding shares of the Common Stock of Parent ("PARENT COMMON STOCK") set
forth on the signature page hereto.
C. As inducement and a condition to entering into the Merger Agreement, the
Company has required Stockholder to agree, and Stockholder has agreed, to enter
into this Agreement.
The parties agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement:
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any securities
means having "beneficial ownership" of such securities as determined pursuant to
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"). Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a person include securities Beneficially Owned
by all other persons with whom such person would constitute a "group" within the
meaning of Section 13(d) of the Exchange Act with respect to the securities of
the same issuer.
(b) "EXISTING SHARES" means all issued and outstanding shares of Parent Common
Stock owned of record or Beneficially Owned by Stockholder (now or hereafter
acquired prior to termination of this Agreement) and over which Stockholder has
voting control as of the record date for persons entitled (i) to receive notice
of, and to vote at, a meeting of the stockholders of Parent called for purposes
of voting on the Parent Stock Issuance and the Parent Charter Amendment, or (ii)
to take action by written consent of the stockholders of Parent with respect to
the Parent Stock Issuance and the Parent Charter Amendment; provided, however,
that in the event of a Change in Recommendation with respect to Parent, Existing
Shares shall mean fifty
percent (50%) of such shares of Parent Common Stock owned of record or
Beneficially Owned by Stockholder.
(c) "VOTING PERIOD" means the period commencing on the date of this Agreement
and continuing until the termination of this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder represents and
warrants to the Company as follows:
(a) On the date hereof, Stockholder Beneficially Owns the outstanding shares of
Parent Common Stock set forth on the signature page hereto and holds stock
options to purchase the number of shares of Parent Common Stock set forth on the
signature page hereto. On the date hereof, such shares constitute all of the
outstanding shares of Parent Common Stock Beneficially Owned by Stockholder and
all of the shares of Parent Common Stock subject to stock options held by
Stockholder. On the date hereof, there are no outstanding options or other
rights to acquire from Stockholder, or obligations of Stockholder to sell, any
shares of Parent Common Stock. Except for encumbrances in existence as of the
date hereof or arising hereunder, the shares of Parent Common Stock set forth on
the signature page hereto are held by Stockholder, or by a nominee or custodian
for the benefit of Stockholder, free and clear of all mortgages, claims,
charges, liens, security interests, pledges, options, proxies, voting trusts or
agreements ("ENCUMBRANCES").
(b) Stockholder has the legal capacity, power and authority to enter into and
perform all of Stockholder's obligations under this Agreement. This Agreement
has been duly and validly executed and delivered by Stockholder and constitutes
a valid and binding agreement of Stockholder, enforceable against Stockholder in
accordance with its terms, except to the extent that its enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights generally or by
general equitable principles.
(c) Except for any applicable filings under federal and state securities laws,
no filing with, and no permit, authorization, consent or approval of, any
Governmental Entity is required to be made or obtained by Stockholder for the
execution of this Agreement by Stockholder or compliance by Stockholder with the
provisions hereof. Neither the execution and delivery of this Agreement by
Stockholder nor the compliance by Stockholder with the provisions hereof will
(i) result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, acceleration, redemption or purchase) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture, deed
of trust, license, lease, agreement or other instrument or obligation to which
Stockholder is a party or by which Stockholder or any of Stockholder's
properties or assets is bound, or (ii) violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to Stockholder or any
of the Existing Shares.
(d) If Stockholder is married and the Existing Shares constitute community
property, this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and
2
binding agreement of, Stockholder's spouse, enforceable against such person in
accordance with its terms.
(e) Stockholder understands and acknowledges that the Company is entering into
the Merger Agreement in reliance upon Stockholder's concurrent execution and
delivery of this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents
and warrants to Stockholder as follows:
(a) The Company has the corporate power and authority to enter into and perform
all of its obligations under this Agreement. This Agreement has been duly and
validly executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except to the extent that its enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally or by general equitable
principles.
(b) Except for filings under the Exchange Act, no filing with, and no permit,
authorization, consent or approval of, any Government Entity is necessary for
the execution of this Agreement by the Company. Neither the execution and
delivery of this Agreement by the Company nor compliance by the Company with any
of the provisions hereof shall (i) conflict with or result in any breach of any
organizational documents of the Company, (ii) result in a violation or breach
of, or constitute (with or without notice or lapse of time or both) a default
(or give rise to any third party right of termination, cancellation,
acceleration, redemption or purchase) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation of any kind to which the
Company is a party or by which the Company or any of its properties or assets is
bound, or (iii) violate any order, writ, injunction, decree, judgment, statute,
rule or regulation applicable to the Company or any of its properties or assets.
4. DISCLOSURE. Stockholder hereby agrees to permit the Company to publish and
disclose in the Proxy Statement/Prospectus (including all documents and
schedules filed with the SEC), and in any press release or other disclosure
document which the Company reasonably determines to be necessary or desirable to
comply with applicable law or the rules and regulations of The Nasdaq Stock
Market in connection with the Merger and any transactions related thereto,
Stockholder's identity and ownership of Parent Common Stock and the nature of
Stockholder's commitments, arrangements and understandings under this Agreement,
provided that any public announcement or disclosure is made in accordance with
the terms of the Merger Agreement.
5. CERTAIN RESTRICTIONS. Prior to the termination of this Agreement, Stockholder
agrees not to knowingly take any action which would cause Parent to materially
violate or be in material breach of Section 5.2 of the Merger Agreement.
6. VOTING OF PARENT COMMON STOCK. Stockholder hereby irrevocably and
unconditionally agrees that, during the period commencing on the date hereof and
continuing until the first to occur of the Effective Time or termination of this
Agreement Stockholder will (a) appear (in
3
person or by proxy) at any meeting (whether annual or special and whether or not
an adjourned or postponed meeting) of the holders of Parent Common Stock,
however called, or otherwise cause the Existing Shares to be counted as present
thereat for purposes of establishing a quorum, and (b) vote or provide a written
consent with respect to the Existing Shares (or will cause the Existing Shares
to be voted, or cause a written consent to be provided with respect to the
Existing Shares) in favor of the Parent Stock Issuance and Parent Charter
Amendment and any matter that could reasonably be expected to facilitate the
Merger. Stockholder will also vote or provide a written consent with respect to
the Existing Shares (or will cause the Existing Shares to be voted, or cause a
written consent to be provided with respect to the Existing Shares) against any
action, proposal, transaction or agreement that would result in a breach in any
respect of any covenant, representation or warranty or any other obligation or
agreement of Parent contained in the Merger Agreement or which could result in
any of the conditions to Parent's obligations under the Merger Agreement not
being fulfilled. Stockholder agrees not to enter into any agreement or
commitment with any Person the effect of which would be inconsistent with or
violative of the provisions and agreements contained in this Section 6.
7. GRANT OF IRREVOCABLE PROXY; FURTHER ASSURANCES.
(a) Stockholder hereby appoints the Company and any designee of the Company, and
each of them individually, as such Stockholder's proxy and attorney-in-fact,
with full power of substitution and resubstitution, to represent and to vote
during the Voting Period the Existing Shares (or act by written consent during
the Voting Period with respect to the Existing Shares) in accordance with
Section 6 (including with respect to any procedural matters related thereto).
This proxy is given to the Company to secure the performance of the duties of
the Stockholder under this Agreement. Stockholder shall promptly cause a copy of
this Agreement to be deposited with Secretary of Parent. Stockholder shall take
further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy.
(b) The proxy and power of attorney granted pursuant to Section 7(a) by
Stockholder shall be irrevocable until termination of this Agreement, shall be
deemed to be coupled with an interest sufficient in law to support an
irrevocable proxy and shall revoke any and all prior proxies granted by such
Stockholder. The power of attorney granted by Stockholder herein 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 upon the termination of this Agreement.
(c) Stockholder shall perform such further acts and execute such further
documents and instruments as may reasonably be required to vest in the Company
the power to carry out and give effect to the provisions of this Agreement.
8. COVENANTS.
(a) Except for Encumbrances in existence as of the date hereof, Stockholder
agrees that during the Voting Period, except as contemplated by the terms of
this Agreement, it shall not (i) sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of (including by merger,
4
testamentary disposition, interspousal disposition pursuant to spousal domestic
relations proceedings or otherwise, or otherwise by operation of law)
(collectively, "TRANSFER"), or enter into any contract, option or other
agreement to Transfer any or all of the Existing Shares; provided, however, that
Stockholder may Transfer any or all of its Existing Shares to any Person that
agrees in writing to be bound by the terms of this Agreement and, with the
consent of the Company, may pledge or encumber any Existing Shares so long as
such pledge or encumbrance would not impair Stockholder's ability to perform its
obligations under this Agreement; (ii) grant any proxies or enter into any
voting trust or other agreement or arrangement with respect to the voting of any
Existing Shares; or (iii) take any action that would have the effect of
preventing, impeding, interfering with or adversely affecting its ability to
perform its obligations under this Agreement.
(b) In the event of a stock dividend or distribution, or any change in Parent
Common Stock by reason of any stock dividend or distribution, split-up,
recapitalization, combination, exchange of shares or the like, the term
"Existing Shares" shall be deemed to refer to and include the Existing Shares as
well as all such stock dividends and distributions and any securities into which
or for which any or all of the Existing Shares may be changed or exchanged or
which are received in such transaction.
9. REASONABLE EFFORTS. Subject to the terms and conditions of this Agreement,
each of the parties hereto agrees to use its reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable to effectuate the provisions by this Agreement.
10. TERMINATION. This Agreement shall terminate on the earliest to occur of: (a)
the termination of the Merger Agreement in accordance with the terms of the
Merger Agreement; (b) the agreement of the parties hereto to terminate this
Agreement; or (c) the consummation of the Merger.
11. MISCELLANEOUS.
(a) This Agreement may be amended, modified or supplemented only by written
agreement of the Company and Stockholder.
(b) Any failure of Stockholder, on the one hand, or the Company, on the other
hand, to comply with any obligation, covenant, agreement or condition herein may
be waived by the Company (with respect to any failure by Stockholder) or
Stockholder (with respect to any failure by) only by a written instrument signed
by the party granting such waiver, but such waiver or failure to insist upon
strict compliance with such obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf of
any party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth in this Section
11(b).
(c) All notices and other communications hereunder shall be in writing and shall
be delivered personally by overnight courier or similar means or sent by
facsimile with written confirmation
5
of receipt, to the parties at the addresses specified below (or at such other
address for a party as shall be specified by like notice. Any such notice shall
be effective upon receipt, if personally delivered or on the next business day
following transmittal if sent by confirmed facsimile. Notices, including oral
notices, shall be delivered as follows:
if to Stockholder, at the address set forth on the signature page, with a
copy to (if blank no such copy shall be required):
Telephone:
Facsimile:
Attention:
if to the Company, to: Identix Incorporated
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
with a copy to: Xxxxxx Xxxxxx LLP
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Peers, Esq.
Xxxx Xxxx, Esq.
(d) Neither this Agreement nor any right, interest or obligation hereunder shall
be assigned by either of the parties hereto without the prior written consent of
the other party. This Agreement shall be binding upon and inure to the benefit
of the Company and its successors and permitted assigns and shall be binding
upon Stockholder and Stockholder's heirs, successors and assigns by will or by
the laws of descent. This Agreement is not intended to confer any rights or
remedies hereunder upon any other person except the parties hereto.
(e) This Agreement shall be governed by the laws of the State of Delaware
without reference to principles of conflicts of law.
(f) This Agreement may be 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.
6
(g) In case any one or more of the provisions contained in this Agreement should
be finally determined to be invalid, illegal or unenforceable in any respect
against a party hereto, it shall be adjusted if possible to effect the intent of
the parties. In any event, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby, and such invalidity, illegality or unenforceability shall only
apply as to such party in the specific jurisdiction where such final
determination shall have been made.
(h) The section headings contained in this Agreement are solely for the purpose
of reference and shall not in any way affect the meaning or interpretation of
this Agreement. The word "including" shall be deemed to mean "including without
limitation."
(i) This Agreement embodies the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
representations, promises, warranties, covenants, or undertakings, other than
those expressly set forth or referred to herein and therein.
(j) When used in this Agreement "law" refers to any applicable law (whether
civil, criminal or administrative) including, without limitation, common law,
statute, statutory instrument, treaty, regulation, directive, decision, code,
order, decree, injunction, resolution or judgment of any government,
quasi-government, supranational, federal, state or local government, statutory
or regulatory body, court, or agency.
(k) Each of the parties hereto recognizes and acknowledges that a breach by it
of any covenants or agreements contained in this Agreement will cause the other
party to sustain damages for which it would not have an adequate remedy at law
for money damages. Therefore, in the event of any such breach, the aggrieved
party shall be entitled to the remedy of specific performance of such covenants
and agreements and injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity and the parties
hereto further agree to waive any requirement for the securing or posting of any
bond in connection with the obtaining of any such injunctive or other equitable
relief.
(l) All costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
(m) From time to time, at any other party's reasonable request and without
further consideration, each party hereto shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or reasonably desirable to effectuate the provisions of this Agreement.
7
(n) Notwithstanding any other provision of this Agreement (including, without
limitation, Section 6 hereof), it is expressly understood and agreed that this
Agreement shall not limit or restrict any actions taken by Stockholder in his
capacity as a director or officer of Parent in exercising Parent's rights under
the Merger Agreement.
(o) Each party to this Agreement has been represented by counsel during the
preparation and execution of this Agreement, and therefore waives any rule of
construction that would construe ambiguities against the party drafting the
agreement.
[signature page follows]
8
IN WITNESS WHEREOF, the parties hereto have signed this Company Voting
Agreement, in the case of the Company by its duly authorized officer, as of the
date first above written.
IDENTIX INCORPORATED
The Xxxxx X. Xxxx Grantor Retained Annuity Trust
--------------------------------------------------
Stockholder Name
Signature: /s/ Xxxxx X. Xxxx By: /s/ XXXX X. XXXXXX
-------------------------- ------------------------------------
Xxxxx X. Xxxx Trustee Print Name: Xxxx X. Xxxxxx
----------------------------
Print Title: Chief Legal Officer
---------------------------
Spousal Signature if Applicable:
/s/ Xxxxxxxxx X. Xxxx
-------------------------------------
Stockholder Address:
00000 Xxxxxx Xxxx
-------------------------------------
Xxxxxxx Xxxxxxx, XX 00000
-------------------------------------
Fax: 000-000-0000
--------------------------------
NUMBER OF OUTSTANDING SHARES
BENEFICIALLY OWNED BY
STOCKHOLDER: 200,000
------------------------
NUMBER OF SHARES SUBJECT TO
STOCK OPTIONS HELD BY
STOCKHOLDER: 0
------------------------
ADDRESS OF STOCKHOLDER:
-------------------------------------
-------------------------------------
