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EXHIBIT 10.33
VOTING AGREEMENT
THIS AGREEMENT is made and entered into as of this _____ day of
October, 1996, by and among LASON, INC. (formerly known as Lason Holdings,
Inc.), a Delaware Corporation (the "Company"), GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV, L.P., a Delaware limited partnership ("GTCR"), XXXXXX X. XXXXXXX
LIVING TRUST U/A/D MAY 11, 1982, XXXXXX XXXXXXXX XXXXXXX AND XXXXXXXX X.
XXXXXXX IRREVOCABLE TRUST DATED JANUARY 5, 1993, XXXXXX XXXXXXXX XXXXXXX AND
XXXXXXXX X. XXXXXXX IRREVOCABLE TRUST NO. 2 DATED AUGUST 6, 1996 ("JJY & JDY
Trust No. 2"), XXXXXX X. XXXXXXX ("Xxxxxxx"), XXXXX X. XXXXXXX LIVING TRUST
DATED DECEMBER 7, 1994, XXXXX X. XXXXXXX AND XXXXXXXX XXXXXXX XXXXXXX
IRREVOCABLE TRUST EFFECTIVE AS OF JANUARY 1, 1996 FOR THE BENEFIT OF XXXXX X.
XXXXXXX, XXXXX X. XXXXXXX AND XXXXXXXX XXXXXXX XXXXXXX IRREVOCABLE TRUST
EFFECTIVE AS OF JANUARY 1, 1996 FOR THE BENEFIT OF XXXXXXXX XXXXXXX XXXXXXX,
and XXXXX X. XXXXXXX ("Xxxxxxx"). All of the foregoing persons and entities
except GTCR and the Company are hereinafter collectively referred to as the
"Original Executive Group." GTCR, the Original Executive Group and each other
person becoming a party hereto are sometimes hereinafter collectively referred
to as the "Stockholders," and individually as a "Stockholder." Certain
capitalized terms used herein are defined in paragraph 16 hereof.
WHEREAS, the Stockholders (other than JJY & JDY Trust No. 2) and Xxxxxxx
X. Xxxxxxxx, Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxx are parties to that certain
Stockholders Agreement, dated as of January 17, 1995 (the "Stockholders
Agreement").
WHEREAS, the Company has filed a Registration Statement on Form S-1 (File
No. 333-09799) with the Securities and Exchange Commission relating to an
initial public offering (the "Initial Public Offering") of the Company's common
stock, par value $.01 per share (the "Common Stock"), under the Securities Act
of 1933, as amended (the "Securities Act").
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement agree as follows:
1. EFFECTIVE DATE. This Agreement shall automatically become effective
upon the consummation of the Initial Public Offering. On such date, the
Stockholders Agreement shall be null and void in its entirety with this
Agreement constituting the entire agreement of the parties with regard to the
subject matter hereof. Notwithstanding the foregoing, should the Initial
Public Offering not be consummated prior to November 30, 1996, then, and in
that event, the Stockholders Agreement shall remain in full force and effect
and this Agreement shall be null and void.
2. BOARD OF DIRECTORS.
(a) From and after the consummation of the Initial Public Offering and
until the provisions of this paragraph 2 cease to be effective, each Stockholder
shall vote all of his or its Shares and any other voting securities of the
Company over which such Stockholder has voting
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control and shall take all other necessary or desirable actions within his or
its control (whether in the capacity as a stockholder, director, member of a
board committee, or officer of the Company or otherwise, and including, without
limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company shall take all necessary and desirable actions within its control
(including, without limitation, calling special board and stockholders
meetings), so that:
(i) The authorized number of directors on the Board of Directors of
the Company (the "Board") shall be established at seven directors.
(ii) The following persons shall be elected to the Board:
(A) two individuals (the "GTCR Directors")
designated by GTCR (which individuals initially shall
be Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxx);
(B) two individuals (the "Original
Executive Directors") designated by the holders of at
least two-thirds of the Shares held by the Original
Executive Group (which individuals initially shall be
Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx);
(C) the Company's Chief Executive
Officer, ex officio (initially Xxxx X. Xxxxxx); and
(D) two individuals (the "Outside
Directors") that are to be mutually agreeable to GTCR
and the holders of at least two-thirds of the Shares
held by the Original Executive Group. Such persons are
not to be members of the Company's management or
employees or officers of the Company or a Subsidiary.
By the execution of this Agreement the parties
acknowledge that, unless he is removed pursuant to the
provisions of paragraph 1(a)(iv), one of the two Outside
Directors shall initially be XXXXXX X. XXXXXXX, and Xx.
Xxxxxxx shall be one of the members of the class of
directors whose term expires in 1999.
(iii) In the event that GTCR and the Original Executive Group cannot
agree on the designation of one or more of the Outside Directors, each of GTCR
and the Original Executive Group (determined by the vote of two-thirds of the
Shares held by the Original Executive Group) shall have the right to nominate
that number of Outside Directors for election by all of the stockholders of the
Company at the next regularly scheduled meeting of the stockholders or at a
special meeting of the stockholders called for the purpose of electing directors
equal to the number of Outside Directors upon which GTCR and the Original
Executive Group cannot agree. All such candidates shall be presented to the
stockholders without any special designation whatsoever (e.g., "management
nominee"; "GTCR nominee"; or the like). The candidate(s) receiving the most
votes of all of the stockholders with respect to such directorship(s) shall be
elected in accordance with the Company's bylaws and applicable law, it being
understood that this Agreement shall have no effect
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on how any Shares are voted with respect to the election of such Outside
Directors.
(iv) Removal from the Board (with or without cause) of any
representative designated hereunder by GTCR under clause (ii)(A) above or by
the Original Executive Group under clause (ii)(B) above shall be at GTCR's and
at the holders of two-thirds of the Shares held by the Original Executive
Group's written request, respectively, but only upon such written request and
under no other circumstances.
(v) In the event that any representative designated hereunder by GTCR
under clause (ii)(A) above, by the Original Executive Group under clause
(ii)(B) above, or by GTCR and the Original Executive Group under clause (II)(D)
above for any reason ceases to serve as a member of the Board of the Company or
during his term of office, the resulting vacancy on the Board of the Company
shall be filled by a representative designated by GTCR, by the Original
Executive Group, or by GTCR and the Original Executive Group, respectively, as
provided hereunder.
(vi) The composition of the Board of Directors of Lason Systems, Inc.,
a Delaware corporation and a wholly-owned Subsidiary of the Company
("Systems"), and of any other direct or indirect Subsidiary of the Company
constituting at least a majority of the assets, income or investment of the
Company and its Subsidiaries as a whole (Systems and such Subsidiaries are
sometimes referred to as "Significant Subsidiaries"), shall be the same as that
of the Board.
(vii) The rights of the parties hereto shall terminate when either GTCR
and their transferees who become parties to this Agreement or the Original
Executive Group and their transferees who become parties to this Agreement hold
in the aggregate less than 15% of the Common Stock on a fully diluted basis. It
being understood that if GTCR distributes Shares to its partners or their
designees, such Shares shall not be counted in determining the shares of Common
Stock held by GTCR and their transferees who become parties to this Agreement.
(viii) If any party fails to designate a representative to fill a
directorship pursuant to the terms of this paragraph 2, the election of a
person to such directorship shall be accomplished in accordance with the
Company's articles of incorporation and bylaws and applicable law.
(ix) Each of GTCR and the Original Executive Group shall cause the
respective directors designated by each of them to enter into a confidentiality
agreement with the Company containing substantially the terms set forth in
paragraph 3 hereof, prior to or concurrent with such director's election to the
Board.
(x) Any committees of the Board or the Board of Directors of any
Significant Subsidiary are to be created and the members thereof selected only
upon approval of at least one of the GTCR Directors and one of the Original
Executive Directors.
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(xi) The Company shall pay the reasonable out-of-pocket expenses
incurred by each director in connection with attending the meetings of the
Board, the Board of Directors of any Subsidiary set forth in clause
subparagraph (ii) above and any committees thereof.
3. CONFIDENTIAL INFORMATION.
(a) Xxxxxxx and Xxxxxxx (the "Designated Executives") each acknowledge
that the confidential or proprietary information, observations and data
obtained by him while employed by the Company and/or Systems, prior to the date
of this Agreement concerning the business or affairs of the Company, Systems or
any other Subsidiary of the Company or Systems ("Confidential Information") are
the property of the Company or such Subsidiary. Therefore, each of the
Designated Executives, agrees that he shall not disclose to any unauthorized
person or use for his own account any Confidential Information without the
prior written consent of the Board of the Company, unless and to the extent
that the aforementioned matters become generally known to and available for use
by the public other than as a result of his acts or omissions to act. Each of
the Designated Executives shall deliver to the Company or Systems at the
termination of his employment contract, or at any other time that the Company
or Systems may request, all memoranda, notes, plans, records, reports, computer
tapes and software and other documents and data (and copies thereof) relating
to the Confidential Information, work product or the business of the Company,
Systems, or any Subsidiary of the Company or Systems which he may then possess
or have under his control.
(b) GTCR acknowledges that the confidential or proprietary information,
observations, and data obtained by it concerning the business or affairs of the
Company, Systems, or any other Subsidiary of the Company or Systems are the
property of the Company or such Subsidiary. Therefore, GTCR agrees that it
shall not disclose to any unauthorized person any such information,
observations or data without the prior written consent of the Company, unless
and to the extent that the aforementioned matters become generally known to and
available for use by the public other than as a result of GTCR's acts or
omissions to act. GTCR shall deliver to the Company, at any time the Company
may request, all memoranda, notes, plans, records, reports, computer tapes, and
other documents and data (and copies thereof) relating to such information,
observations and data or the business of the Company, Systems or any other
Subsidiary of the Company or Systems which it may then possess or have under
its control.
4. NON-COMPETE; NON-SOLICITATION:
(a) Each of the Designated Executives acknowledges that in the course
of his ownership of stock of, and during his employment with, the Company or
Systems, he has become familiar, and in the course of this employment with the
Company or Systems, he will become familiar with the Company or Systems or any
of their Subsidiaries' trade secrets, and with other confidential information
concerning the Company and/or its subsidiaries and its predecessors, and that
his services have been and will be of special, unique and extraordinary value
to the Company and its Subsidiaries. Therefore, each Designated Executive
agrees that, during his term of employment with the Company and its
Subsidiaries and for five years thereafter (the "Non-Compete Period"), he shall
not directly or indirectly own, manage, control, participate in, consult with,
render services for, or any manner engage in, any business competing with the
businesses of the Company or its
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Subsidiaries as such business exist or are in process on the date of the
termination of such Designated Executive's employment, within any geographical
area in which the Company or its Subsidiaries engage or plan to engage in such
businesses. Nothing herein shall prohibit a Designated Executive from being a
passive owner of not more than 2% of the outstanding stock of any class of a
corporation which is publicly traded, so long as such Designated Executive has
no active participation in the business of such corporation.
(b) During the Non-Compete Period, each Designated Executive shall not
directly or indirectly through another entity: (i) induce or attempt to induce
any employee of the Company or any Subsidiary to leave the employ of the
Company or such Subsidiary, or in any way interfere with the relationship
between the Company or any Subsidiary and any employee thereof; (ii) hire any
person who was an employee of the Company or any Subsidiary at any time during
such Designated Executive's period of employment with the Company or any
Subsidiaries, or; (iii) induce or attempt to induce any customer, supplier,
licensee, or another business relation of the Company or any Subsidiary to
cease doing business with the Company or such Subsidiary, or in any way
interfere with the relationship between any such customer, supplier, licensee,
or business relation and the Company and any Subsidiary.
(c) If, at the time of enforcement of this paragraph 4, a court shall
hold that the duration, scope or area restrictions stated herein are
unreasonable, invalid, illegal or unenforceable under circumstances then
existing, the parties agree that the maximum duration, scope or area
reasonable, valid, legal and enforceable under such circumstances shall be
substituted for the stated duration, scope or area, and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum
period, scope and area permitted.
(d) In the event of a breach or a threatened breach by any Designated
Executive of any of the provisions of this paragraph 4, the Company, in
addition and supplementary to other rights and remedies existing in its
favor, may apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive or other relief in order enforce or
prevent any violations of the provisions hereof (without posting a bond or
other security).
5. LEGEND. Each certificate evidencing voting capital stock of the
Company owned by a party hereto and each certificate issued in exchange for or
upon the transfer of any such securities (if, and only if, such shares remain
subject to the terms of this Agreement after such transfer pursuant to the
terms and conditions hereof) shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"The securities represented by this certificate are subject
to a Voting Agreement dated as of October __, 1996, among
the issuer of such securities (the "Company") and certain of
its stockholders. A copy of such Voting Agreement will be
furnished without charge by the Company to the holder hereof
upon written request."
The Company shall imprint such legend on certificates evidencing Shares
outstanding on the date hereof. The legend set forth above shall be removed by
the Company or its transfer agent upon instruction from the Company from the
certificates evidencing any Shares which cease to be Shares in accordance with
the terms hereof or at such time as the provisions of paragraph 2 hereof cease
to be effective.
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6. TRANSFER. Prior to transferring any Shares (other than in an
Individual Sale, a Sale of the Company or a distribution by GTCR of Shares to
its partners or their designees), the transferring Stockholder shall cause
the prospective transferee to execute and deliver to the Company and the other
Stockholders a counterpart of this Agreement.
7. AMENDMENT AND WAIVER. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved by each of: (i) the Company; (ii) GTCR; and
(iii) the holders of two-thirds of the Shares held by the Original Executive
Group. The failure of any party to enforce any of the provisions of this
Agreement shall in no way be construed as a waiver of such provision and shall
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
8. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision, but this Agreement shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
9. ENTIRE AGREEMENT. Except as otherwise expressly set forth herein,
this document embodies the complete Agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among
the parties, written or oral which may be related to the subject matter hereof
in any way. Except as otherwise provided herein, this Agreement shall bind and
inure to the benefit of and be enforced by the Company and successors and
assigns and the Stockholders and subsequent holders of Shares and the
respective successors and assigns of each of them so long as they hold Shares.
10. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind the Company, the Stockholders and the respective
successors and assigns of each of them.
11. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same Agreement.
12. REMEDIES. The Company and the Stockholders shall be entitled to
enforce their rights under this Agreement specifically to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that the Company or an Stockholder may in its
sole discretion apply to any court of law or equity of competent jurisdiction,
for specific performance and/or
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injunctive relief (without posting a bond or other security) in order to enforce
or prevent any violation of the provisions of this Agreement.
13. NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, sent via facsimile, mailed
first class mail (postage pre-paid) or sent by reputable over-night courier
service (charges pre-paid) to the Company, to GTCR and to the Original
Executive Group at their respective addresses set forth below or to the
attention of such other person as the recipient party has specified by prior
written notice to the sending parties. Notices will be deemed to have been
given hereunder when delivered personally, upon transmitting a facsimile, three
days after deposit in the U.S. Mail and one day after deposit with a reputable
overnight courier service. Notices shall be sent to the following addresses:
IF TO THE COMPANY: Lason, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
WITH A COPY TO: Golder, Thoma, Cressey, Rauner, Fund IV, L.P.
c/o Golder, Thoma, Cressey, Rauner, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
IF TO ORIGINAL EXECUTIVE GROUP: 000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
In each case, copies should be sent to the following (which copies shall
not constitute notice):
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: H. Xxxx xxx Xxxxxx, Esq.
and
Seyburn, Kahn, Ginn, Bess, Xxxxxx
and Xxxxxx, P.C.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Esq.
14. GOVERNING LAW. The corporate law of Delaware shall govern all
issues concerning the relative rights of the Company and Stockholders. All of
the questions concerning the construction, validity, and interpretation of this
Agreement shall be governed by the internal law, and not the law of conflicts
of Michigan.
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15. DESCRIPTIVE HEADINGS. Descriptive headings of this Agreement are
inserted for convenience only do not constitute part of this Agreement.
16. DEFINITIONS.
"Affiliate" of a Person means any other Person, entity or investment
fund controlling, controlled by or under common control with such Person and
any partner of such Person which is a partnership or, in the case of a trust,
the trustee or any beneficiary of such trust.
"Family Group" of a Stockholder which is an individual means such
Stockholder's spouse and descendants (whether natural or adopted) and any trust
primarily for the benefit of such Stockholder and/or such Stockholder's spouse
and/or descendants.
"Individual Sale" means either (i) any sale of Shares to the public
pursuant to any offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
under the Securities Act or (ii) any sale of Shares made pursuant to a private
sale or private placement to any Person other than where such Person or,
through a series of one or more transactions, the ultimate recipient of such
shares is either an Affiliate or a member of the Family Group of such Person.
"Person" means an individual, partnership, corporation, association,
joint stock company, trust, joint venture, unincorporated organization or
governmental entity or any department, agency or political subdivision thereof.
"Sale of the Company" means the sale of the Company pursuant to which
such party or parties acquire capital stock of the Company possessing the
voting power under normal circumstances to elect a majority of the Company's
board of directors (whether by merger, consolidation or sale or transfer of the
Company's capital stock).
"Shares" means: (i) any of the Company's capital stock purchased or
otherwise acquired by any Stockholder and (ii) any securities issued or
issuable directly or indirectly with respect to the securities referred to in
clause (i) above by way of stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization.
"Subsidiary" means any corporation of which the securities having a
majority of the ordinary voting power in electing the board of directors are,
at the time as of which any determination is being made, owned by the Company
either directly or through one or more Subsidiaries.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
LASON, INC.
By:
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XXXX X. XXXXXX
Its: Chief Executive Officer
GOLDER, THOMA, XXXXXXX, XXXXXX FUND
IV, L.P.
By: GTCR IV, L.P.
Its: General Partner
By: GOLDER, THOMA, CRESSEY, RAUNER, INC.
Its: General Partner
By:
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XXXXX X. XXXXXX
Its: Principal
XXXXXX X. XXXXXXX LIVING TRUST U/A/D
MAY 11, 1982
By:
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XXXXXX X. XXXXXXX
Its: Trustee
XXXXXX XXXXXXXX XXXXXXX AND XXXXXXXX
X. XXXXXXX IRREVOCABLE TRUST DATED JANUARY
5, 1993
By:
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COLIN X. X. XXXXXXXXX
Its: Trustee
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XXXXXX XXXXXXXX XXXXXXX AND XXXXXXXX
X. XXXXXXX IRREVOCABLE TRUST NO. 2 DATED
AUGUST 6, 1996
By:
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COLIN X. X. XXXXXXXXX
Its: Trustee
XXXXX X. XXXXXXX LIVING TRUST DATED
DECEMBER 7, 1994
By:
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XXXXX X. XXXXXXX
Its: Trustee
XXXXX X. XXXXXXX AND XXXXXXXX XXXXXXX
XXXXXXX IRREVOCABLE TRUST EFFECTIVE AS OF
JANUARY 1, 1996 FOR THE BENEFIT OF XXXXX X.
XXXXXXX
By:
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XXXXXX X. XXXXXXX
Its: Trustee
XXXXX X. XXXXXXX AND XXXXXXXX XXXXXXX
XXXXXXX IRREVOCABLE TRUST EFFECTIVE AS OF
JANUARY 1, 1996 FOR THE BENEFIT OF XXXXXXXX
XXXXXXX XXXXXXX
By:
-----------------------------------
XXXXXX X. XXXXXXX
Its: Trustee
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XXXXXX X. XXXXXXX
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XXXXX X. XXXXXXX
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ACKNOWLEDGMENT
The undersigned execute this Voting Agreement for the specific limited
purpose of acknowledging their agreement to the terms and conditions of
paragraph 1 hereof.
Dated: October __, 1996
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XXXXXXX X. XXXXX
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XXXXXXX X. XXXXXXXX
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XXXXXX X. XXXXXX
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