EXHIBIT
10.4
VOTING
AGREEMENT
THIS VOTING AGREEMENT (the “Agreement”) is made and
entered into as of this 8 th day of October, 2009, by and among Internet
Media Services, Inc., a Delaware corporation (the
“Company”), those holders of the Company’s Common
Stock listed on Schedule A hereto (the “Key Holders”)
and Document Security Systems, Inc., a New York corporation (the
“Investor”).
RECITALS
WHEREAS, the Key Holders are the beneficial
owners of an aggregate of 13,000,000 shares of the common stock of
the Company (the “Common Stock”);
WHEREAS, Investor is acquiring shares of the
Company’s Common Stock pursuant to that certain Asset
Purchase Agreement of even date herewith (the “Asset Purchase
Agreement”) pursuant to which the Investor’s
wholly-owned subsidiary, Lester Levin Inc., a New York corporation
(“LLI”) is selling and transferring certain assets of
its LegalStore.com business to the Company in exchange for the
issuance to DSS of 7,500,000 shares of common stock of the Company
(the “Transaction”);
WHEREAS, the obligations in the Asset Purchase
Agreement are conditioned upon the execution and delivery of this
Agreement; and
WHEREAS, in connection with the consummation of
the Transaction, the Company, the Key Holders and the Investor have
agreed to provide for the future voting of the Key Holders’
shares of the Company’s capital stock as set forth
below.
NOW, THEREFORE, in consideration of the mutual
promises and covenants set forth herein, the parties hereto further
agree as follows:
1.1
Key Holder Shares; Investor Shares . The
Key Holders each agree to hold all shares of voting capital stock
of the Company registered in their respective names or beneficially
owned by them as of the date hereof and any and all other
securities of the Company legally or beneficially acquired by each
of the Key Holders after the date hereof (collectively, the
“Key Holder Shares”) subject to, and to vote the Key
Holder Shares in accordance with, the provisions of this Agreement;
provided however that the Key Holder Shares may be pledged pursuant
to those certain Stock Pledge and Security Agreements entered into
of even date herewith, between each Key Holder, Investor and
LLI.
1.2
Election of Directors . On all matters relating to the
election of directors of the Company, the Key Holders agree to vote
all Key Holder Shares held by them (or to consent pursuant to an
action by written consent of the holders of capital stock of the
Company) so as to elect two nominees designated by LLI and/or the
Investor as members of the Company’s board of directors (the
“Board of Directors”). Any vote taken to
remove any director elected pursuant to this Section 1.2, or to
fill any vacancy created by the resignation, removal, or death of a
director elected pursuant to this Section 1.2, shall also be
subject to the provisions of this Section 1.2.
1.3
No Liability for Election of Recommended Director . None of
the parties hereto and no officer, director, stockholder, partner,
employee or agent of any party makes any representation or warranty
as to the fitness or competence of the nominee of any party
hereunder to serve on the Board of Directors by virtue of such
party’s execution of this Agreement or by the act of such
party in voting for such nominee pursuant to this
Agreement.
(a) Concurrently
with the execution of this Agreement, there shall be placed on
certificates representing the Key Holder Shares the following
restrictive legend (the “Legend”):
“THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A VOTING AGREEMENT WHICH PLACES CERTAIN RESTRICTIONS
ON THE VOTING OF THE SHARES REPRESENTED HEREBY. ANY PERSON
ACCEPTING ANY INTEREST IN SUCH SHARES SHALL BE DEEMED TO AGREE TO
AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SUCH AGREEMENT. A
COPY OF SUCH VOTING AGREEMENT WILL BE FURNISHED TO THE RECORD
HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO
THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.”
(b) The
Company agrees that, during the term of this Agreement, it will
maintain (upon registration of transfer, reissuance or otherwise)
the Legend on any such certificate and will place or cause to be
placed the Legend on any new certificate issued to represent Key
Holder Shares previously represented by a certificate carrying the
Legend.
1.5
Successors . The provisions of this Agreement shall be
binding upon the successors in interest to any of the Key Holder
Shares. The Company shall not permit the transfer of any
of the Key Holder Shares on its books or issue a new certificate
representing any of the Key Holder Shares unless the person to whom
such security is to be transferred shall have executed a written
agreement, substantially in the form of this Agreement, pursuant to
which such person becomes a party to this Agreement and agrees to
be bound by all the provisions hereof as if such person were a Key
Holder, as applicable; provided however that the Key Holder Shares
may be pledged and transferred pursuant to those certain Stock
Pledge and Security Agreements entered into of even date herewith,
between each Key Holder, Investor, LLI and the Company
(“Stock Pledge and Security Agreements”).
1.6
Other Rights . Except as provided by this Agreement, the
Stock Pledge and Security Agreements or any other agreement entered
into in connection with the Transaction, each Key Holder shall
exercise the full rights of a holder of capital stock of the
Company with respect to the Key Holder Shares,
respectively.
2.
Termination. This Agreement shall continue in full force and
effect from the date hereof through the earliest of the following
dates, on which date it shall terminate in its entirety:
(a) the
date on which Investor and LLI no longer own any Common Stock of
the Company; and
