EXHIBIT 10.4
VOTING AND LOCKUP AGREEMENT
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THIS VOTING AGREEMENT (this "Agreement") is made as of January 15, 1997 by
and among Xerox Corporation, a New York corporation ("Xerox"), Xxxxxxx X.
Xxxxxxxx, an individual residing in Texas ("Xxxxxxxx", and together with Xerox,
the "ISI Stockholders"), Safeguard Scientifics (Delaware), Inc., a Delaware
corporation ("Safeguard"), Technology Leaders II L.P., a Delaware limited
partnership ("XX XX"), and Technology Leaders II Offshore C.V., a Netherlands
Antilles limited partnership ("XX XX Offshore"), Xxx X. Xxxx, an individual
residing in Georgia ("Rose"), Xxxxxx X. Xxxxxx, an individual residing in
Georgia ("Xxxxxx") and Xxxxxx X. Xxxxxxx, an individual residing in Pennsylvania
("Xxxxxxx," and together with Rose, Wilkes, Safeguard, XX XX and XX XX Offshore,
the "FormMaker Stockholders"). The parties to this Agreement are sometimes
collectively referred to herein as the "Stockholders." Any defined terms shall
be equally applicable to both the singular and plural forms of the terms
defined.
Background
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DocuCorp, Inc., a Delaware corporation (the "Company"), ISI Merger Corp., a
Texas corporation ("Texas Sub"), FormMaker Acquisition Corp., a Georgia
corporation ("Georgia Sub"), FormMaker Software, Inc., a Georgia corporation
("FormMaker"), and Image Sciences, a Texas corporation ("Image Sciences"), have
entered into an Agreement and Plan of Merger, dated the date hereof (the "Merger
Agreement"), that provides for (i) the merger of the Georgia Sub with and into
FormMaker and (ii) the merger of the Texas Sub with and into Image Sciences
(collectively, the "Merger"). The Stockholders are entering into this Agreement
as contemplated by and as a condition to the parties execution and delivery of
the Merger Agreement.
As used herein, the term "Shares" means all of the shares of voting stock
of Image Sciences or FormMaker, as the case may be, owned by the Stockholders
from time to time, together with all additional or replacement shares of stock
issued with respect thereto by reason of recapitalizations and any other capital
event, and the term "Corporate Party" means any of the Company, Image Sciences
or FormMaker.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto, intending to be
legally bound hereby, have agreed and do hereby agree with each other as
follows:
1. Agreement to Vote. Each Stockholder shall present all Shares owned by
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such Stockholder in person or by proxy at each applicable stockholder meeting or
meetings of Image Sciences and FormMaker, as the case may be, that may be held
to consider and to vote upon the Merger Agreement or any matters related
thereto, or any adjournment thereof, and to vote such Shares (i) in favor of
the approval of the Merger Agreement or any proposal relating to any action
necessary to or consistent with the consummation of the Merger Agreement, at
each such
stockholder meeting and (ii) against the approval of any proposal relating to
any action that is inconsistent with the consummation of the Merger Agreement.
If Image Sciences or FormMaker chooses to solicit the consent of its
stockholders rather than hold a stockholder meeting in order to consider and
vote upon the Merger Agreement or any matters related thereto, each Stockholder
shall include all Shares owned by such Stockholder in the consent solicited by
Image Sciences or FormMaker, as the case may be, and vote such Shares in
accordance with clauses (i) and (ii) of the immediately preceding sentence.
.
2. Irrevocable Proxy. In furtherance of the purposes of this Agreement,
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each ISI Stockholder does hereby appoint Xxxxxxx X. Xxxxxxxx as true and lawful
attorney-in-fact and proxy (the "Image Sciences Proxy Holder") of such ISI
Stockholder, and each FormMaker Stockholder does hereby appoint Xxxxxx X.
Xxxxxxx as true and lawful attorney-in-fact and proxy (the "FormMaker Proxy
Holder," and together with the Image Sciences Proxy Holder, the "Proxy
Holders"), in each Stockholder's name, place and stead, with full power of
substitution, to take any and all actions in the role of a stockholder of Image
Sciences or FormMaker, as the case may be, that the Proxy Holder may deem
appropriate in order to consummate the transactions contemplated by the Merger
Agreement, to the same extent and with the same effect as if such Stockholder
were acting on its own behalf, including (a) calling and attending meetings of
the stockholders as the holder of the Shares and voting the Shares at any and
all such meetings or any adjournments thereof on any and all matters, proposals
and questions, whether benefitting the Proxy Holder or not, that may be lawfully
considered thereat, including a proposal to approve the Merger Agreement, (b)
executing any written consents of such Stockholder as the record owner of the
Shares, (c) executing and delivering on behalf of such Stockholder any necessary
document for the consummation of the Merger Agreement, (d) taking any other
actions that the Stockholder may be entitled to take, in the role of a
stockholder, under any applicable law, charter provision or bylaw provision.
Each Stockholder hereby revokes all proxies heretofore made by it, and confirms
that the rights granted hereby are irrevocable and coupled with an interest.
None of the Stockholders shall take any action that would have the effect of
limiting this proxy in any respect.
3. Transfer Restrictions. Except for a Permitted Transfer (defined
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below), a Stockholder shall not transfer, sell, offer for sale, contract to
sell, or otherwise dispose of (collectively, a "Transfer") (a) any of such
Stockholder's Shares, until the earlier of (i) the date of a closing under the
Merger Agreement (the "Merger Closing Date") in accordance with the Merger
Agreement or (ii) June 30, 1997 or (b) any of the shares of common stock of any
class of the Company that the Stockholder may acquire pursuant to the Merger
Agreement until January 31, 1998. The term "Permitted Transfer" means (i) at any
time, a Transfer by a Stockholder to an affiliate or subsidiary of such
Stockholder or to another Stockholder, (ii) during the period prior to the
Merger Closing Date, (A) a Transfer as to which Image Sciences shall have
consented in writing, in the case of a transfer by a FormMaker Stockholder and
(B) a Transfer as to which FormMaker shall have consented in writing, in the
case of a transfer by an Image Sciences Stockholder and (iii) during the period
after the Merger Closing Date, a Transfer by any Stockholder as to which the
Company shall have consented in writing. Any proposed Transfer that is approved
as a Permitted Transfer shall not be effective unless and until the proposed
transferee executes and delivers to the consenting
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Corporate Party such documentation as such consenting Corporate Party may
request to require the proposed transferee to become a party to this Agreement.
None of the Corporate Parties hereto shall recognize or record in the stock
records of such Corporate Party any purported action that violates the
restrictions hereof. The Stockholders hereby authorize the Corporate Parties to
execute whatever documents may be necessary to add a transferee in a Permitted
Transfer as a party to this Agreement, and upon any such addition, the
Transferee shall be deemed a "Stockholder" for all purposes hereunder.
4. Termination. The obligations of the Stockholders under Section 1 and
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the proxy granted under Section 2 shall terminate upon the earlier of the Merger
Closing Date or June 30, 1997. The transfer restrictions under Section 3 shall
terminate on the applicable termination date specified in Section 3.
5. Termination of Previous Agreements; Amendment of Bylaws. The
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FormMaker Stockholders hereby consent to the termination immediately prior to
the effectiveness of the Merger of the Stockholders' Agreement among FormMaker,
the FormMaker Stockholders and certain other parties, dated as of December 20,
1995. The FormMaker Stockholders also hereby approve the termination immediately
prior to the effectiveness of the Merger of the Registration Rights Agreement
among FormMaker, the FormMaker Stockholders and certain other parties, as of
December 20, 1995. The FormMaker Stockholders also hereby approve an amendment
to the FormMaker Bylaws immediately prior to the effectiveness of the Merger to
eliminate provisions in the FormMaker Bylaws applicable to such Stockholders'
Agreement.
6. Notices. Any notice, authorization, request or demand required or
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permitted to be given hereunder shall be deemed to be given upon the earlier of
the business day when received at, or the third day (or if later, the next
following business day) after the date when sent by certified or registered mail
or the next following business day when sent by Federal Express or other
overnight delivery service to, the address of the principal executive offices of
a Corporate Party in the case of any notice to such Corporate Party, and until
changed by notice to the other parties hereto, the respective addresses of the
Stockholders on file with FormMaker and Image Sciences in the case of any notice
to the Stockholders.
7. Specific Performance. The rights of the Corporate Parties and the
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Stockholders under this Agreement are unique and, accordingly, the Corporate
Parties and the Stockholders shall, in addition to such other remedies as may be
available at law or in equity, have the right to enforce their respective rights
hereunder by actions for specific performance to the extent permitted by law.
8. Amendments.
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Except as otherwise expressly provided herein, this Agreement may not
be amended, and any provision of this Agreement may not be waived, except by an
instrument in writing executed by the parties hereto.
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9. Third-Party Beneficiaries.
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The parties hereto acknowledge that the Company, Image Sciences and
FormMaker are all third-party beneficiaries of this Agreement and that any of
such corporations shall be entitled to enforce the provisions of this Agreement
against any of the parties hereto to the same extent as if such corporations
were parties hereto.
10. General.
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(a) This Agreement shall be construed and enforced in accordance
with the laws of the State of Delaware. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of any court of competent jurisdiction in
the State of Delaware and the United States District Court for the District of
Delaware and any other court of the State of Delaware and the United States with
jurisdiction to hear appeals from any such courts.
(b) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
(c) This Agreement, the Merger Agreement and the documents specified
therein contain the entire agreement among the parties hereto regarding the
subject matter thereof.
(d) This Agreement may be executed in two or more counterparts, each
of which shall be binding as of the date hereof. Each such copy shall be deemed
an original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
(e) If any one or more of the provisions contained in this Agreement
shall for any reason be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement and such invalid, illegal and unenforceable
provision shall be reformed and construed to be valid, legal, and enforceable to
the maximum extent permitted by law.
(f) Unless the context of this Agreement clearly requires otherwise,
(i) references to the plural include the singular, and the singular the plural,
(ii) references to one gender include all genders, (iii) "or" has the inclusive
meaning frequently identified with the phrase "and/or," (iv) "including" has the
inclusive meaning frequently identified with the phrase "but not limited to" and
(v) "hereunder" or "herein" refer to the entire Agreement. The section and
other headings contained in this Agreement are for reference purposes only and
shall not control or affect the construction of this Agreement or the
interpretation thereof in any respect. Section and subsection references are to
this Agreement unless otherwise specified.
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[SIGNATURE PAGE TO VOTING AND LOCKUP AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
SAFEGUARD SCIENTIFICS
(DELAWARE), INC.
By:
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Name:
Title:
TECHNOLOGY LEADERS II L.P.
By:
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Name:
Title:
TECHNOLOGY LEADERS II
OFFSHORE C.V.
By:
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Name:
Title:
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[SIGNATURE PAGE TO VOTING AND LOCKUP AGREEMENT]
XEROX CORPORATION
By:
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Name:
Title:
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Xxxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxxx
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Xxx X. Xxxx
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