EXHIBIT 99.1
COMPANY VOTING AGREEMENT
THIS COMPANY VOTING AGREEMENT (this "Agreement") is entered
into this 24th day of June, 1999, by and among ANSWERTHINK CONSULTING GROUP,
INC., a Florida corporation ("Acquiror"), DARWIN ACQUISITION CORP., a Delaware
corporation and a wholly-owned subsidiary of Acquiror ("Merger Sub"), and each
other Person listed on the signature page hereof who is a stockholder (each a
"Stockholder" and collectively, the "Stockholders") of THINK NEW IDEAS, INC., a
Delaware corporation (the "Company").
WHEREAS, the Stockholders own of record and beneficially the
shares of common stock, par value $.0001 per share of the Company ("Company
Common Stock") set forth opposite their respective names on Schedule A hereto
and desire to enter into this Agreement with respect to such shares of Company
Common Stock;
WHEREAS, Acquiror, Merger Sub and the Company have
contemporaneously with the execution of this Agreement entered into an Agreement
and Plan of Merger (the "Merger Agreement"), dated as of the date hereof, which
provides, among other things, for the merger (the "Merger") of the Merger Sub
with and into the Company pursuant to the terms and conditions thereof;
capitalized terms used herein and not otherwise defined shall have the meanings
given to such terms as in the Merger Agreement;
WHEREAS, as an essential condition and inducement to Acquiror
and Merger Sub entering into the Merger Agreement, Acquiror has required that
the Stockholders agree, and the Stockholders have agreed, to enter into this
Agreement; and
NOW, THEREFORE, the parties hereto, in consideration of the
foregoing, the mutual covenants and agreements contained herein and in the
Merger Agreement and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, and intending to be legally bound
hereby, agree as follows:
SECTION 1. VOTING
(a) Each Stockholder hereby agrees to appear, or to cause the
holder of record on any applicable record date (the "Record Holder") to appear,
in person or by proxy, for the purpose of obtaining a quorum at any annual or
special meeting of stockholders of the Company and at any adjournment thereof at
which matters relating to the Merger, Merger Agreement or any transaction
contemplated thereby are considered; and
(b) Each Stockholder further agrees that, it shall vote, or
cause the Record Holder to vote, in person or by proxy all of the shares of
Capital Stock, and any other voting interests in the Company owned or hereafter
acquired beneficially or of record by such Stockholder:
(i) in favor of the Merger and the adoption of the
Merger Agreement and the transactions contemplated thereby (including any
amendments or modifications of the terms thereof approved by the Board of
Directors of the Company and by Acquiror) in connection with any meeting of, or
solicitation of consents from, the stockholders of the Company at which or in
connection with which the Merger and the Merger Agreement are submitted for the
consideration and vote of the stockholders of the Company;
(ii) against approval or adoption of resolutions
which would have the effect of preventing or materially delaying consummation of
the Merger or otherwise preventing or materially delaying the Company from
performing its obligations under the Merger Agreement; and
(iii) against any action which would constitute a
material breach of any provision of the Merger Agreement.
To the extent inconsistent with the foregoing provisions of
this Section 1, each Stockholder revokes any and all previous proxies with
respect to shares of Capital Stock owned beneficially or of record by such
Stockholder and agrees not to grant any proxy with respect to and any other
voting interests in the Company owned or hereafter acquired beneficially or of
record by such Stockholder.
SECTION 2. PROXY; FURTHER ASSURANCES
(a) Contemporaneously with the execution of this Agreement:
(i) each Stockholder has delivered to Acquiror a proxy in the form attached to
this Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law and to the extent provided therein, with respect to the shares
referred to therein (the "Proxy"); and (ii) each Stockholder has caused to be
delivered to Acquiror an additional proxy (in the form attached hereto as
Exhibit A) executed on behalf of the record owner of any outstanding shares of
Company Common Stock that are owned beneficially (within the meaning of Rule
13d-3 under the Exchange Act), but not of record, by such Stockholder, which
proxy shall be irrevocable to the fullest extent permitted by law and to the
extent provided therein, with respect to the shares referred to therein.
(b) Each Stockholder shall, at such Stockholder's own expense,
perform such further acts and execute such further documents and instruments as
may reasonably be required to vest in Acquiror the power to carry out and give
effect to the provisions of this Agreement. Without limiting the generality of
the
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foregoing, none of the parties hereto shall enter into any agreement or
arrangement (or alter, amend or terminate any existing agreement or arrangement)
or transaction if such action would materially impair or materially interfere
with the ability of any party to effectuate, carry out and comply with all of
the terms of this Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents
and warrants to Acquiror as follows:
(a) Such Stockholder has the legal capacity and all other
power and authority necessary to enter into this Agreement, to perform the
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by such Stockholder and,
assuming due authorization, execution and delivery of this Agreement by
Acquiror, Merger Sub and the other parties hereto, constitutes a legal, valid
and binding obligation of such Stockholder, enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditor's rights generally and by the application of
general principles of equity.
(b) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated will not (i) to the
knowledge of such Stockholder, conflict with or violate any law, regulation,
court order, judgment or decree applicable to such Stockholder or by which the
property of such Stockholder is bound or affected, or (ii) conflict with or
result in any breach of or constitute a default under any contract or agreement
to which such Stockholder is a party or by which such Stockholder or such
Stockholder's property is bound or affected, which conflict, violation, breach
or default would materially impair or materially interfere with such
Stockholder's ability to perform its obligations under this Agreement.
(c) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby do not and will not require
any consent or other action by any Person under, any provision of any agreement,
contract or other instrument binding on such Stockholder.
(d) The shares of Company Common Stock reflected on Schedule A
as being owned by such Stockholder are the only shares of voting Capital Stock
of the Company or any other voting interests in the Company owned beneficially
or of record by such Stockholder, and except as set forth in Schedule A, such
Stockholder does not own any other options, warrants or rights to acquire shares
of any class of capital stock of the Company or any other voting interests in
the Company. Such Stockholder has the sole power respecting voting and transfer
of such Stockholder's
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shares of Capital Stock. Except as set forth on Schedule 3(d) hereto, the shares
and certificates representing such shares held by such Stockholder are owned as
indicated on Schedule A by such Stockholder, free and clear of all liens,
claims, security interests, proxies, options, warrants or other rights, voting
trusts or agreements, understandings or arrangements or any other Encumbrances
whatsoever, except for any such Encumbrances or proxies arising hereunder.
(e) No investment banker, broker, finder or other intermediary
is entitled to a fee or commission in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of such Stockholder.
SECTION 4. COVENANTS OF EACH STOCKHOLDER
(a) From the date of this Agreement until the Effective Time
or, if earlier, the termination of this Agreement pursuant to Section 15 hereof,
each Stockholder agrees severally and not jointly that such Stockholder will
not, and will use its "reasonable efforts" (as defined in the Merger Agreement)
to not permit any of the Representatives of the Company to, directly or
indirectly, (i) initiate, solicit, encourage or otherwise facilitate (including
by way of furnishing information), any inquiries or the making of any proposal
or offer that constitutes, or may reasonably be expected to lead to an
Acquisition Proposal, (ii) enter into or maintain or continue discussions or
negotiate with any Person in furtherance of such inquiries or to obtain an
Acquisition Proposal, or (iii) agree to, approve, recommend, or endorse any
Acquisition Proposal, or authorize or permit any of such Stockholder's
Representatives to take any such action and, such Stockholder shall promptly
notify Acquiror of any such inquiries and proposals received by such Stockholder
or, to such Stockholder's knowledge, any of such Stockholder's Representatives,
relating to any of such matters. Each Stockholder severally and not jointly
further agrees to use its "reasonable efforts" as a stockholder to cause the
Company to comply with the obligations of the Company set forth in Section 7.8
of the Merger Agreement.
(b) Except pursuant to the terms of this Agreement, each
Stockholder agrees severally and not jointly that such Stockholder will not,
without the prior written consent of Acquiror or Merger Sub, directly or
indirectly, grant any proxies or enter into any voting trust or other agreement
or arrangement with respect to the voting of any Capital Stock or any options,
warrants or other rights to acquire stock of the Company. Each Stockholder
agrees to notify Acquiror or Merger Sub promptly, and to provide all details
requested by Acquiror or Merger Sub, if such Stockholder shall be approached or
solicited, directly or indirectly, by any Person with respect to any of the
foregoing.
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SECTION 5. SPECIFIC PERFORMANCE
Each Stockholder acknowledges and agrees that there would be
no adequate remedy at law for Acquiror or Merger Sub if such Stockholder fails
to perform any of such Stockholder's obligations hereunder, and accordingly
agrees that Acquiror and Merger Sub, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of such Stockholder under this Agreement in
accordance with the terms and conditions of this Agreement in any court of the
United States or any State thereof having jurisdiction. Each Stockholder hereby
waives any objection to the imposition of such relief or to the posting of a
bond in connection therewith.
SECTION 6. GOVERNING LAW
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law.
SECTION 7. PARTIES IN INTEREST
This Agreement shall inure to the benefit of and shall be
binding upon the parties hereto and their respective heirs, legal
representatives and permitted assigns. If any Stockholder shall at any time
hereafter acquire ownership of, or voting power with respect to, any additional
shares of Capital Stock or any other voting interests in the Company in any
manner, whether by the exercise of any options or any securities or rights
convertible into or exchangeable for shares of Capital Stock or any other voting
interests in the Company, by operation of law or otherwise, such shares or other
interests shall be held subject to all of the terms and provisions of this
Agreement. Without limiting the foregoing, each Stockholder specifically agrees
that the obligations of such Stockholder hereunder shall not be terminated by
operation of law, whether by death or incapacity of such Stockholder or
otherwise.
SECTION 8. AMENDMENT
This Agreement shall not be amended, altered or modified
except by an instrument in writing duly executed and delivered on behalf of each
of the parties hereto.
SECTION 9. SEVERABILITY
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect.
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Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible to the fullest extent permitted by applicable law in a
mutually acceptable manner in order that the terms of this Agreement remain as
originally contemplated to the fullest extent possible.
SECTION 10. WAIVER
Except as provided in this Agreement, no action taken pursuant
to this Agreement, including without limitation any investigation by or on
behalf of any party, shall be deemed to constitute a waiver by the party taking
such action of compliance with any representations, warranties, covenants or
agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a wavier
of any prior or subsequent breach of the same or any other provision hereunder.
SECTION 11. NOTICES
All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
as of the date delivered, mailed or transmitted, and shall be effective upon
receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the telecopier number
specified below:
If to a Stockholder:
To such Stockholder's address
or telecopier number as set forth
on Schedule A attached hereto
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx LLP
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
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If to Acquiror or Merger Sub:
ANSWERTHINK CONSULTING GROUP, INC.
0000 Xxxxxxxx Xxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxx X. Xxxxxxxxx
With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telecopier No.: (000) 000-0000
Attention: X. Xxxxx Xxxx, Esq.
SECTION 12. ENTIRE AGREEMENT; ASSIGNMENT
This Agreement (a) constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties and (b) shall not be assigned by operation of law or
otherwise, except that this Agreement shall be binding upon each Stockholder and
each Stockholder's successors and permitted assigns.
SECTION 13. HEADINGS
Section headings are included solely for convenience and are
not considered to be part of this Agreement and are not intended to be an
accurate description of the contents thereof.
SECTION 14. COUNTERPARTS
This Agreement may be executed and delivered in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement.
SECTION 15. TERMINATION
This Agreement and all of the parties' rights and obligations
hereunder shall terminate on the earlier to occur of (a) the date on which the
Merger Agreement is validly terminated pursuant to the provisions thereof, or
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(b) the Effective Time; as defined in the Merger Agreement, (the "Termination
Date"); provided, however, that in the event the Company becomes obligated to
pay a Termination Fee to Acquiror pursuant to Section 9.5(b)(i), Section
9.5(b)(ii), Section 9.5(b)(iii), or Section 9.5(b)(iv) of the Merger Agreement,
the Termination Date hereunder shall mean the date on which such Termination Fee
is received by Acquiror.
SECTION 16. OFFICERS AND DIRECTORS; AFFILIATE AGREEMENTS
(a) Notwithstanding anything else herein to the contrary but
subject to the proviso set forth in this Section 16(a), (i) nothing set forth
herein shall be deemed to restrict or otherwise prohibit a Stockholder who is an
officer or director of the Company from exercising, in such individual's
capacity as an officer or director of the Company, what such Stockholder
believes in good faith to be his or her fiduciary duties as an officer or
director of the Company to the stockholders of the Company, and (ii) and no
action or inaction required hereby shall require a Stockholder who is an officer
or director of the Company to take any action or refrain from taking any action,
in such individual's capacity as an officer or director of the Company, that
such Stockholder believes in good faith is required by or would be a breach of
his or her fiduciary duties as an officer or director of the Company to the
stockholders of the Company; provided, however, that, notwithstanding the
foregoing, with respect to any matter set forth in Section 7.8 of the Merger
Agreement, each Stockholder who is an officer or director of the Company shall
exercise his or her fiduciary duties to the stockholders of the company pursuant
to and in accordance with the provisions of Section 7.8 of the Merger Agreement.
(b) Each Stockholder who also executes and enters into an
Affiliate Agreement hereby agrees and acknowledges that, notwithstanding any
other provisions of this Agreement and in addition to any obligations of such
Stockholder hereunder, such Stockholder is and will be subject to all of the
terms and provisions of such Affiliate Agreement and the obligations of such
Stockholder contained in such Affiliate Agreement are and will be independent,
separate and apart from the obligations of such Stockholder hereunder.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Company Voting Agreement, or have caused this Company Voting
Agreement to be executed and delivered on their behalf, as of the date first
above written.
ANSWERTHINK CONSULTING GROUP, INC.
By: /s/ Xxx X. Xxxxxxxxx
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Name: Xxx X. Xxxxxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
DARWIN ACQUISITION CORP.
By: /s/ Xxx X. Xxxxxxxxx
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Name: Xxx X. Xxxxxxxxx
Title: Chairperson of the Board and President
STOCKHOLDERS
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
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Address:
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By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
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Address:
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By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Address:
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By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Address:
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By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Address:
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By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Address:
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By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Address:
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By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
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Address:
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By: /s/ Ominicom Group, Inc.
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Name: Ominicom Group, Inc.
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Address:
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By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Address:
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By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Address:
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned Stockholders of THINK NEW IDEAS, INC., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes ANSWERTHINK CONSULTING GROUP, INC., a Florida
corporation ("Acquiror"), the attorneys and proxies of the undersigned, with
full power of substitution and resubstitution, to the full extent of the
undersigned's voting rights with respect to (a) the outstanding shares of common
stock, par value $.0001 per share, of the Company (the "Company Common Stock")
or any other capital stock of the Company (collectively with the Company Common
Stock, the "Capital Stock") owned of record by the undersigned as of the date of
this proxy, which shares are specified on the final page of this proxy, and (b)
any and all other shares of Capital Stock of the Company which the undersigned
may acquire on or after the date hereof, provided that this proxy automatically
shall be revoked with respect to any shares of Caital Stock that are sold,
transfered or otherwise disposed of by the undersigned ("Transferred Stock")
effective as of the date of such sale, transfer or other disposition ("Date of
Disposition"). Upon the execution hereof, all prior proxies given by the
undersigned with respect to any of the Capital Stock are hereby revoked, and the
undersigned agrees that no subsequent proxy will be given with respect to the
voting of any of the Capital Stock (other than Transferred Stock after the Date
of Disposition given by the purchaser, transferee or other beneficiary of such
other disposition with respect to such stock) except to the extent that such
proxies do not prevent the voting of this proxy in favor of the transactions
described herein.
This proxy is irrevocable (except as and to the extent provided in the
immediately preceding paragraph), is coupled with an interest, is granted in
connection with the execution and delivery of the Company Voting Agreement,
dated as of the date hereof, among Acquiror and the undersigned (the "Company
Voting Agreement") and is granted in consideration of Acquiror entering into the
Agreement and Plan of Merger, dated as of the date hereof, among Acquiror,
DARWIN ACQUISITION CORP., a Delaware corporation (the "Merger Sub") and the
Company (the "Merger Agreement").
The proxy named above (and its successors) will, prior to the
Termination Date (as hereinafter defined), be empowered, and may exercise this
proxy, to vote the Capital Stock at any meeting of the Stockholders of the
Company, however called, or in connection with any solicitation of written
consents from Stockholders of the Company, called or solicited, as the case may
be, for the purpose of voting on the Merger Agreement and the transactions
contemplated thereby in favor of the approval and adoption of the Merger
Agreement and the approval of the merger contemplated thereby, and in favor of
each of the other actions contemplated by the
Merger Agreement. The undersigned may vote the Capital Stock on all other
matters.
This proxy shall be binding upon the representatives, successors and
permitted assigns of the undersigned.
If any provision of this proxy or any part of any such provision is
held under any circumstances to be invalid or unenforceable in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this proxy. Each provision of this
proxy is separable from every other provision of this proxy, and each part of
each provision of this proxy is separable from every other part of such
provision.
This proxy and the rights contained herein shall terminate upon the
termination of the Company Voting Agreement as provided therein (the
"Termination Date").
Date: June 24, 1999
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Stockholder's Name
Number of shares of common
stock of the Company owned
of record as of the date of
this proxy:
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