VISIONEER, INC.
VOTING AGREEMENT
----------------
This Voting Agreement (the "AGREEMENT") is made as of the 2nd day of
March 1999, by and among Visioneer, Inc., a Delaware corporation (the
"COMPANY"), Xerox Imaging Systems, Inc. a Delaware Corporation, and Xerox
Corporation, a New York corporation (together "XEROX"), and the current holders
of shares of the Company's Common Stock listed on EXHIBIT A (collectively, the
"CURRENT HOLDERS").
RECITALS
--------
The Company and ScanSoft, Inc., a Delaware corporation ("SCANSOFT") and
a wholly-owned subsidiary of Xerox, are concurrently with the execution of this
Agreement entering into an Agreement and Plan of Merger dated as of the date
hereof (the "MERGER AGREEMENT"). Section 6.12 of the Merger Agreement provides
that the Company, Xerox and the Current Holders enter into this Agreement to
provide for the nomination and election of the Company's Board of Directors.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Merger Agreement.
AGREEMENT
---------
The parties agree as follows:
1. ELECTION OF DIRECTORS.
1.1 BOARD REPRESENTATION. As of the Effective Time of the Merger
Agreement, the Company's Bylaws shall provide for a Board of Directors comprised
of seven (7) members. At the first meeting of the Board of Directors after the
Effective Time, the current directors of the Company shall vote to appoint to
the Board two (2) new directors based on nominations received from Xerox and the
Company's new Chief Executive Officer (the "CEO"). Thereafter, at each annual
meeting of the stockholders of the Company, or at any meeting of the
stockholders of the Company at which members of the Board of Directors of the
Company are to be elected, or whenever members of the Board of Directors are to
be elected by written consent, Xerox and the Current Holders agree to vote or
act with respect to their shares so as to elect the following directors:
(a) so long as Xerox owns at least twenty percent (20%) of the
Company's outstanding voting stock: (i) two (2) members of the Company's Board
of Directors designated by Xerox; (ii) two (2) members of the Company's Board of
Directors designated by the four members of the Board who were not nominated by
Xerox and who are not the CEO (the "NON-XEROX/NON-CEO DIRECTORS"); (iii) the
Company's then current CEO; and (iv) two (2) independent members of the
Company's Board of Directors with relevant industry experience who are
designated by at least four out of the five directors who are not considered
independent directors; or
(b) so long as Xerox owns at least ten percent (10%) of the Company's
outstanding voting stock: (i) one (1) member of the Company's Board of Directors
designated by Xerox; (ii) two (2) members of the Company's Board of Directors
designated by the Non-Xerox/Non-CEO Directors; (iii) the Company's then current
CEO; and (iv) three (3) independent members of the Company's Board of Directors
with relevant industry experience who are designated by at least three out of
the four directors who are not considered independent directors;
1.2 APPOINTMENT OF DIRECTORS. In the event of the resignation, death,
removal or disqualification of a director designated pursuant to Section 1.1
above, the party or parties who were authorized to nominate such director
pursuant to Section 1.1 above shall promptly nominate a new director, and, after
written notice of the nomination has been given by such nominating party or
parties to the Company's Board of Directors, then each party hereto shall vote
its shares of capital stock of the Company to elect such nominee to the Board of
Directors.
1.3 REMOVAL. Any director may be removed hereunder only in accordance
with the Bylaws of the Company and Delaware General Corporation Law; PROVIDED,
HOWEVER, that Xerox may remove its designated directors at any time and from
time to time, with or without cause (subject to the Bylaws of the Company as in
effect from time to time and any requirements of law), in its sole discretion,
and after written notice to each of the parties hereto of the new nominee to
replace such director, each party hereto shall promptly vote its shares of
capital stock of the Company to elect such nominee to the Board of Directors.
2. ADDITIONAL REPRESENTATIONS AND COVENANTS.
2.1 NO REVOCATION; GRANT OF PROXY. The voting agreements contained
herein are coupled with an interest and may not be revoked during the term of
this Agreement. Should the provisions of this Agreement be construed to
constitute the granting of proxies, such proxies shall be deemed to be coupled
with an interest and are irrevocable for the term of this Agreement.
2.2 CHANGE IN NUMBER OF DIRECTORS. The parties hereto will not vote for
any amendment or change to the Certificate of Incorporation or Bylaws providing
for the election of more or less than seven (7) directors, or any other
amendment or change to the Certificate of Incorporation or Bylaws inconsistent
with the terms of this Agreement.
3. TERMINATION.
3.1 TERMINATION EVENTS. This Agreement shall terminate upon the earlier
of:
(a) The sale, conveyance, disposal, or encumbrance of all or
substantially all of the Company's property or business or the Company's merger
into or consolidation with any other corporation (other than a wholly-owned
subsidiary corporation) or if the Company effects any other transaction or
series of related transactions in which more than fifty percent (50%) of the
voting power of the Company is disposed of, PROVIDED that this Section
-2-
3.1(a) shall not apply to a merger effected exclusively for the purpose of
changing the domicile of the Company;
(b) Such time as Xerox owns less than twenty percent (10%) of the
outstanding voting stock of the Company; or
(c) Such time as the Current Holders own, in the aggregate, less than
seven percent (7%) of the outstanding voting stock of the Company; provided,
however, that if such time occurs prior to the second anniversary of the
Effective Time and Xerox (or an affiliate thereof) holds at such time shares of
the Company's Series B Preferred Stock, this Agreement shall not terminate
pursuant to this Section 3.1(c) until the earlier of (X) the second anniversary
of the Effective Time and (Y) the date on which Xerox (together with its
affiliates) no longer hold any shares of the Company's Series B Preferred Stock.
4. MISCELLANEOUS.
4.1 SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. 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.
4.2 AMENDMENTS AND WAIVERS. Any term hereof may be amended or waived
only with the written consent of the Company, Xerox and each of the Current
Holders. Any amendment or waiver effected in accordance with this Section 4.2
shall be binding upon the Company, Xerox and each of the Current Holders, and
each of their respective successors and assigns.
4.3 NOTICES. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or fax (with
confirmation of successful transmission), or forty-eight (48) hours after being
deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, and addressed to the party to be notified at such party's address or
fax number as set forth on the signature page or on EXHIBIT A hereto, or as
subsequently modified by written notice.
4.4 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
4.5 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and
-3-
interpreted in accordance with the laws of the State of Delaware, without
giving effect to principles of conflicts of law.
4.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
4.7 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.
4.8 SPECIFIC ENFORCEMENT. It is agreed and understood that monetary
damages would not adequately compensate an injured party for the breach of this
Agreement by any party hereto, that this Agreement shall be specifically
enforceable, and that any breach or threatened breach of this Agreement shall be
the proper subject of a temporary or permanent injunction or restraining order.
Further, each party hereto waives any claim or defense that there is an adequate
remedy at law for such breach or threatened breach.
[Signature Page Follows]
-4-
The parties hereto have executed this Voting Agreement as of the date
first written above.
COMPANY:
VISIONEER, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇-▇▇▇-▇▇▇▇)
XEROX CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name:
-----------------------------------
(print)
Title:
----------------------------------
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
XEROX IMAGING SYSTEMS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name:___________________________________
Title:__________________________________
(print)
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
SIGNATURE PAGE TO VOTING AGREEMENT
CURRENT HOLDERS:
TECHNOLOGY VENTURE INVESTORS-IV
AS NOMINEE FOR
TECHNOLOGY VENTURE INVESTORS-4 L.P.
TVI PARTNERS-4, L.P. AND
TVI AFFILIATES-4, L.P.
BY: TVI MANAGEMENT-4, L.P., GENERAL PARTNER
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
GENERAL PARTNER
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ VENTURE CAPITAL FUND II, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name:
----------------------------------
(print)
Title:
---------------------------------
PARVEST U.S. PARTNERS II, C.V.
By: /s/ ▇▇▇▇▇▇▇ Worms
------------------------------------
Name: ▇▇▇▇▇▇▇ Worms
----------------------------------
(print)
Title: General Partner
---------------------------------
EXHIBIT A
---------
CURRENT HOLDERS
Name/Address/Fax No.
--------------------
Technology Venture Investors - IV
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Capital Fund II, LP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
Parvest U.S. Partners II, C.V.
Partech International Ventures VOF
U.S. Growth Fund Partners C.V.
Double Black Diamond I LLC
Almanori Limited
Multinvest LLC
▇▇▇▇▇▇▇ Worms
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
BVI Venture Managers
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
