EXHIBIT 4.23
STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT is made and entered into on June __,
2003, by and among Capital International Asia CDPQ Inc., a Canadian corporation
("CDPQ"), Quilvest Asian Equity Ltd., a British Virgin Islands corporation
("Quilvest"), Mercantile Capital Partners I, LP, an Illinois limited partnership
("Mercantile"), Asia Internet Investment Group I, LLC, a Delaware limited
liability company ("AIIG"), BAPEF Investments XII Ltd., a British Virgin Islands
corporation ("BAPEF"), and Stonehenge Opportunity Fund, LLC, a Delaware limited
liability company ("Stonehenge") (collectively referred to as the "Stockholders"
and individually referred to as a "Stockholder").
RECITALS
WHEREAS, CDPQ, Quilvest, Mercantile and BAPEF are currently principal
stockholders in Vsource, Inc., a Delaware company ("Vsource");
WHEREAS, Stonehenge is currently a principal stockholder in TEAM America,
Inc., an Ohio corporation ("TEAM America");
WHEREAS, Vsource, TEAM America and Beaker Acquisition Corporation, Inc., a
Delaware corporation and wholly owned subsidiary of TEAM America ("Merger Sub"),
have entered into that certain Merger Agreement, dated as of the date hereof (as
the same may be amended or supplemented, the "Merger Agreement"), providing for
the merger of Merger Sub with and into Vsource (the "Merger") upon the terms and
subject to the conditions set forth in the Merger Agreement;
WHEREAS, prior to the Merger and in contemplation thereof, TEAM America
will reincorporate as a Delaware corporation, the forms of Certificate of
Incorporation and Bylaws for which are attached as exhibits to the Merger
Agreement;
WHEREAS, upon consummation and closing of the Merger (the "Effective
Date"), the Stockholders will be stockholders of TEAM America (the post-merger
surviving parent company, TEAM America, hereinafter referred to as the "Company
"); and
WHEREAS, each Stockholder is executing this Agreement as an inducement to
each of the other Stockholders to vote in favor of the Merger and related
transactions and to provide for certain voting procedures between the
Stockholders in the Company following the Effective Date.
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AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed
as follows:
Section 1. Ownership of Shares; Due Authorization and Binding Agreement.
Each Stockholder severally represents and warrants to each other Stockholder
hereto that they beneficially own and are the registered holders of, on the date
hereof on an as-converted basis, the number of shares of common stock of Vsource
or of TEAM America, as applicable, as set forth on Annex I attached hereto, and
expect to beneficially own, following the Effective Date and compliance with the
share exchange provisions set forth in the Merger Agreement, the number of
shares of common stock of the Company as set forth on Annex I attached hereto
(such shares, including any and all additional shares of capital stock of the
Company acquired by the Stockholders following the Effective Date, and any of
them, being referred to hereinafter as the "Shares"). Each Stockholder severally
represents and warrants to each other Stockholder that (a) the execution and
delivery of this Agreement by such Stockholder and the consummation of the
transactions contemplated hereby have been duly authorized by the board of
directors or other governing body of such Stockholder and no other corporate or
the other organizational proceedings on the part of such Stockholder is
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby; and (b) this Agreement has been duly and validly executed
and delivered by such Stockholder and constitutes a valid and binding agreement
of such Stockholder enforceable against such Stockholder in accordance with its
terms, except that such enforceability (i) may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally and (ii) is subject to general
principles of equity.
Section 2. Additional Shares; Transfer of Shares.
(a) Additional Shares. All additional shares of capital stock of the
Company subsequently acquired by the Stockholders shall be subject to the terms
of this Agreement.
(b) Transfer of Shares. The parties agree that this Agreement does not
restrict the ability of any Stockholder to sell or otherwise transfer, or pledge
or otherwise encumber, its Shares, including any additional Shares subject to
Section 2(a). Any Shares sold or transferred by a Stockholder to a third party
shall cease to be "Shares" under this Agreement, this Agreement shall terminate
with respect to such Shares, and the third party receiving such Shares shall not
be a party or subject to, or a beneficiary of, this Agreement in any way.
Section 3. Voting of Shares.
(a) Each Stockholder (unless such Stockholder is no longer a party to this
Agreement pursuant to Section 7 below), in its capacity as such, hereby agrees
that during the period commencing on the Effective Date and continuing until the
termination of this Agreement in accordance with its terms (the "Voting
Period"), at any meeting (or any adjournment or
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postponement thereof) of the holders of any class or classes of the capital
stock of the Company, called or expected to be called with respect to:
(i) any proposed Senior Equity Financing (as defined below) or in
connection with the written consent or proposed written consent of the
holders of any class or classes of the capital stock of the Company
with respect to any proposed Senior Equity Financing, (A) it shall vote
(or cause to be voted) all of its Shares in favor of and/or consent in
writing to such proposed Senior Equity Financing if, and only if, all
Stockholders agree (or pursuant to Section 3(b) are deemed to have
agreed) to approve the proposed Senior Equity Financing; or (B) it
shall vote (or cause to be voted) all of its Shares against and/or
withhold written consent for such proposed Senior Equity Financing if
any Stockholder has expressed in writing to each other Stockholder in
accordance with Section 3(b) its determination not to approve the
proposed Senior Equity Financing. For purposes of this Agreement,
"Senior Equity Financing" shall mean any proposed (x) authorization,
issuance or sale by the Company of any shares of capital stock of the
Company that would result in the creation of or an increase in the
number of authorized shares senior or superior with respect to
dividends or upon liquidation of the Company to capital stock held by
the Stockholders (the "Senior Equity"), including, without limitation,
any securities convertible, exercisable or exchangeable for shares of
Senior Equity of the Company, and any options, warrants, and other
rights to purchase or otherwise acquire from the Company shares of such
Senior Equity, including any stock appreciation or similar rights,
contractual or otherwise or (y) issuance or incurrence of debt by the
Company that is convertible for shares of capital stock (including
Senior Equity or common stock) of the Company;
(ii) any proposed Non-Qualifying Common Financing (as defined
below) or in connection with the written consent or proposed written
consent of the holders of any class or classes of the capital stock of
the Company with respect to any proposed Non-Qualifying Common
Financing, it shall vote (or cause to be voted) all of its Shares
against and/or withhold written consent for such proposed
Non-Qualifying Common Financing if the stockholders holding 25% of the
Shares then issued and outstanding and held by the Stockholders (the
"Requisite Stockholders") have expressed in writing to each of the
Stockholders in accordance with Section 3(b) their determination not to
approve the proposed Non-Qualifying Common Financing. For purposes of
this Agreement, "Non-Qualifying Common Financing" shall mean any
proposed authorization or issuance by the Company of any new shares of
common stock for the purpose of selling such common stock at a price
less than $0.75 per share (as adjusted for stock splits, stock
dividends, combinations and the like) (the "Benchmark Price"),
including, without limitation, any debt or securities that are
convertible, exercisable or exchangeable for or into common stock at an
effective price of less than the Benchmark Price, and any options,
warrants, and other rights to purchase or otherwise acquire from the
Company shares of common stock at a price less than the Benchmark
Price; provided, however, that this Section 3(a)(ii) shall not apply to
any authorizations, issuances or sales of shares of common stock by the
Company if such authorization, issuance or sale is made (x) pursuant to
an employee or director stock option/stock issuance plan or employee
stock
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purchase plan that has been approved by stockholders holding a
majority of the share capital of the Company (as determined on a fully
diluted basis), (y) in connection with the Merger or in connection with
a stock split or stock dividend, or (z) upon the exercise, conversion
or exchange of options, warrants, notes or other rights to acquire
shares of common stock issued and outstanding on the date hereof or
issued prior to or in connection with the Merger; and
(iii) any proposed Non-Qualifying Sale (as defined below) or in
connection with the written consent or proposed written consent of the
holders of any class or classes of the capital stock of the Company
with respect to any proposed Non-Qualifying Sale, it shall vote (or
cause to be voted) all of its Shares against and/or withhold written
consent for such proposed Non-Qualifying Sale, and not exchange or
tender its Shares pursuant to such Non-Qualifying Sale, if the
Requisite Stockholders have expressed in writing to each of the
Stockholders in accordance with Section 3(b) their determination not to
approve the proposed Non-Qualifying Sale. For purposes of this
Agreement, "Non-Qualifying Sale" shall mean any sale or other
acquisition (including by merger or consolidation) of more than fifty
percent (50%) of the Company's common stock on a fully diluted basis
(assuming full conversion and exercise of all outstanding convertible,
exchangeable and exercisable securities, including, without limitation,
securities granted under any employee or director stock option plan
which have vested), where:
(x) the consideration takes the form of equity of the
acquiror and (1) such equity is not traded on an Authorized Stock
Exchange (as defined below) or, (2) if such equity is traded on an
Authorized Stock Exchange, (A) the consideration shares have not
been registered pursuant to an effective registration statement
(if registration is required for such consideration shares to
trade on the applicable Authorized Stock Exchange) or (B) the
average daily trading volume for such acquiror's listed equity
during the 180-trading day period immediately preceding the
closing of such Non-Qualifying Sale is less than $1,000,000 per
day (as determined by multiplying the daily number of shares
traded by the average of the high and low bid prices each day), in
each case unless the consideration also includes cash in an amount
equal to or greater than the Benchmark Price; or
(y) the consideration takes the form of cash and the purchase
price is less than the Benchmark Price.
For purposes of this Agreement, "Authorized Exchange" means an
internationally recognized exchange or quotation system, which exchange
or quotation system shall have a minimum market capitalization, based
on the market value of all of the securities listed thereon, of US$50
billion, as quoted and reported within the EMTK Function of Bloomberg
Financial Markets or, if not so quoted, based upon statistics made
publicly available on such exchange.
(b) Within 20 business days after receipt of a written notice ("Notice
Date") describing in reasonable detail the terms of a proposed Senior Equity
Financing, Non-Qualifying
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Common Financing or Non-Qualifying Sale (each, a "Transaction"), which shall
include, if applicable, the securities offered, purchase price, form of
consideration, liquidation preference, conversion rights, dividend rights,
registration rights and voting rights (a "Transaction Notice"), each Stockholder
shall notify the other Stockholders whether such Stockholder approves or
disapproves of the proposed Transaction (the "Approval Notice"). If a
Stockholder has not delivered the Approval Notice to each of the other
stockholders by 5:00 p.m. (Pacific Time) on the 20th business day following the
Notice Date, such Stockholder shall have been conclusively deemed to have
delivered an Approval Notice in favor of the proposed Transaction and the other
Stockholders may rely on and proceed on the basis that such Stockholder is in
favor of the proposed Transaction.
(c) Except as expressly provided herein, this Agreement shall not impair
any other voting rights or benefits connected with or relating to the Shares or
provided to or accruing to the Stockholders.
Section 4. Acknowledgement. The Stockholders acknowledge that the Company
may be required to file this Agreement with the Securities and Exchange
Commission in accordance with the securities laws.
Section 5. Stock Split, Stock Dividend or other Recapitalization of the
Company. The term "Shares" shall be taken to include the shares of capital stock
of the Company issued with respect to the Shares in connection with any stock
split, stock dividend or other recapitalization of Company.
Section 6. Term. The term of this Agreement shall commence on the Effective
Date and shall terminate immediately upon the earlier to occur of: (a) if and
only if the Company has closed a public offering of its common stock with
aggregate gross proceeds of at least $20,000,000 and a per share price to the
public of at least $1.00 (as adjusted for stock splits, stock dividends,
combinations and the like) (a "QPO"), that time when the aggregate Shares held
by the Stockholders represents less than 30% of the Company's issued and
outstanding common stock on a fully diluted basis (assuming full conversion and
exercise of all outstanding convertible, exchangeable and exercisable
securities, including, without limitation, securities granted under any employee
share option plan which have vested); (b) the closing of a Qualifying Sale (as
defined below); and (c) the unanimous written agreement of the Stockholders. For
purposes of this Agreement, "Qualifying Sale" shall mean any sale or other
acquisition (including by merger or consolidation) of more than fifty percent
(50%) of the Company's issued and outstanding common stock on a fully diluted
basis (assuming full conversion and exercise of all outstanding convertible,
exchangeable and exercisable securities, including, without limitation,
securities granted under any employee share option plan which have vested),
where (x) the consideration takes the form of equity of the acquiror that has
been registered pursuant to an effective registration statement (if registration
is required for such consideration shares to trade on the applicable Authorized
Stock Exchange), such equity is traded on an Authorized Stock Exchange and the
average daily trading volume for such equity during the 180-trading day period
immediately preceding the closing of such Qualifying Sale is at least $1,000,000
per day (as determined by multiplying the daily number of shares traded by the
average of the high and
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low bid prices each day) or (y) the consideration takes the form of cash and the
purchase price is not less than the Benchmark Price.
Section 7. Termination.
(a) Automatic Termination by Transfer. This Agreement shall automatically
terminate with respect to any Stockholder, and such Stockholder shall no longer
have any rights, powers or interests in this Agreement, upon the sale, transfer,
pledge, assignment or other disposition of (including by gift) (collectively,
"Transfer"), or sequence of Transfers that amount to, 50% or more of such
Stockholder's Shares as of the Effective Date. Any remaining Shares held by such
Stockholder shall cease to be "Shares" under this Agreement.
(b) Stonehenge. Stonehenge may terminate this Agreement with respect to
itself only by delivering written notice of termination to the other
Shareholders. No other Shareholder may terminate this Agreement with respect to
itself.
Section 8. Assignment. No Stockholder may assign (by operation of law or
otherwise) any of its rights, powers or interests hereunder to any person or
entity, and any attempt to assign such rights, powers or interests shall be null
and void, and not recognized by the other Stockholders hereunder.
Section 9. Specific Performance, Injunctive Relief and Remedies. Each
Stockholder hereto acknowledges that the other Stockholders will be irreparably
harmed and that there will be no adequate remedy at law for a violation of any
of the covenants or agreements of the Stockholders set forth herein. Therefore,
it is agreed that, in addition to any other remedies that may be available to
each Stockholder upon any such violation, each Stockholder shall have the right
to enforce such covenants and agreements by specific performance, injunctive
relief or by any other means available to each Stockholder at law or in equity.
All rights, powers and remedies provided under this Agreement or otherwise
available in respect hereof at law or in equity shall be cumulative and not
alternative, and the exercise of any thereof by any Stockholder shall not
preclude the simultaneous or later exercise of any other right, power or remedy
by such Stockholder.
Section 10. Notice. All notices hereunder shall be in writing, unless
otherwise provided herein, and shall be deemed duly given (a) on the date of
delivery if delivered personally, (b) on the date of confirmation of receipt (or
the first business day following such receipt if the date is not a business day)
of transmission by facsimile, or (c) on the date of confirmation of receipt (or
the first business day following such receipt if the date is not a business day)
if delivered by a nationally recognized courier service. Subject to the
foregoing, all notices hereunder shall be delivered to each Stockholder at the
address or facsimile set forth across from such Stockholder's name on Annex I
attached hereto.
Section 11. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
instrument.
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Section 12. Severability. If any term or provision of this Agreement shall
be held to be invalid or unenforceable for any reason, such term or provision
shall be ineffective to the extent of such invalidity or unenforceability
without invalidating the other terms and provisions hereof, and this Agreement
shall be construed as if such invalid or unenforceable term or provision had not
been contained herein.
Section 13. Amendment. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by each Stockholder.
Section 14. Governing Law. This Agreement shall be governed in all respects
by the laws of the State of Delaware without regard to any laws or regulations
relating to choice of laws (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware.
Section 15. Headings. Headings of the Sections of this Agreement are for
the convenience of the parties only, and shall be given no substantive or
interpretative effect whatsoever.
Section 16. Further Assurances. From time to time, at another Stockholder's
reasonable request and without further consideration, each Stockholder hereto
shall execute and deliver such additional documents and take all such further
action as may be necessary or desirable to effectuate the agreements and
covenants contemplated by this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
and duly delivered the same or caused the same to be duly delivered on their
behalf on the date first above written.
STOCKHOLDERS:
Capital International Asia CDPQ Inc.
By:
-----------------------------------------
Name:
---------------------------------------
Title: President
Quilvest Asian Equity Ltd.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Mercantile Capital Partners, I LP
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Asia Internet Investment Group I, LLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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BAPEF Investments XII Ltd.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Stonehenge Opportunity Fund, LLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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ANNEX I
HOLDINGS OF SHARES
CURRENT POST-EFFECTIVE DATE
SHAREHOLDER HOLDINGS* HOLDINGS NOTICE ADDRESS
---------------- --------- ------------------- ----------------------------
CDPQ 3,000,000 9,150,000
Xxxxxxx Xxxxx, Xxxxx 0000
00 Xxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
F: (000) 0000 0000
Quilvest 750,000 2,287,500 2120 Two Xxxxxxx Xxxxx
00 Xxxxxxxxx
Xxxx Xxxx
F: (000) 0000-0000
Mercantile 3,387,000 10,330,350 0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000 XXX
Attn: I. Xxxxxx Xxxxxxx
F: 0 (000) 000-0000
AIIG 418,349 1,275,964 0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000 XXX
Attn: I. Xxxxxx Xxxxxxx
F: 0 (000) 000-0000
BAPEF 5,248,159 16,006,884 XX Xxx 000
00-00 Xxxxxxxx Xxxx
Xx. Peter's Port
Guernsey GY1 3ZD
Attn: Xxxxxx Xxxxxx
F: (00) 0000 000 000
Stonehenge 1,256,667 common 5,423,962 Stonehenge Partners
Suite 600
80,000 Series 2000 000 Xxxx Xxxxxxxxxx Xxxx
9.75% Cumulative Xxxxxxxx, Xxxx 00000
Convertible Redeemable Attn: Xxxxxx Xxxxxx
Class A Preferred F: (000) 000-0000
Warrants to purchase
1,333,333 common
------------------
* Common stock of Vsource on a fully converted basis except for Stonehenge,
which holds shares of TEAM America.
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