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EXHIBIT 10.4
TEAM AMERICA CORPORATION
VOTING AGREEMENT
This Voting Agreement ("the Agreement") is made to be effective as of
January 1, 1999, among Xxxxxxx X. Xxxxxx ("Schilg"), Xxxxx X. Xxxxxxxx
("Xxxxxxxx"), Xxxxxx Xxxx Xxxxxxxxx ("Xxxxxxxxx"), Xxxxx XxXxxxx ("X. XxXxxxx")
and Xxxxx XxXxxxx ("X. XxXxxxx"). Schilg, Costello, Nickerson, X. XxXxxxx, and
X. XxXxxxx shall be collectively be referred to as the "Shareholders."
RECITALS
A. Schilg has resigned as Chairman and Chief Executive Officer of TEAM
America Corporation, an Ohio corporation (the "Company"), effective January 1,
1999 (the "Resignation").
B. Concurrently herewith, Schilg and the Company are entering into a
Confidential Separation Agreement and Waiver of Claims, a Consulting Agreement,
a Promissory Note and a Security Agreement/Stock Pledge. Part of the
consideration for the execution of this Voting Agreement is the execution of
each of the foregoing documents by each of the parties thereto.
C. Schilg, Costello, Nickerrson, and X. XxXxxxx are currently directors
and significant shareholders of the Company.
X. X. XxXxxxx is a significant shareholder of the Company.
E. The nominating committee of the Company's Board of Directors (the
"Nominating Committee") will proposed the following slate of directors to be
elected at each of the Company's Annual Meetings of Shareholders in 1999, 2000,
and 2001:
1999 2000 2001
--------------------- ---------------------- ---------------------
Xxxxxx Xxxx Xxxxxxxxx Xxxxx X. Xxxxxxxx Xxxxxx Xxxx Xxxxxxxxx
Xxxxx XxXxxxx Xxxxxxx X. Xxxxxx Xxxxx XxXxxxx
Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx
M. Xxxxxxx Xxxxxxxx Xxxxxxx X. Xxxxx, XX M. Xxxxxxx Xxxxxxxx
F. As a result of the resignation of Schilg, the parties hereto desire
to enter into this Agreement to establish parameters under which a healthy
transition of control will occur for the Company under the terms and conditions
set forth in this Agreement.
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements and covenants
hereinafter contained, the parties hereto agree as follows:
SECTION 1. VOTING AGREEMENT. During the term of this Agreement:
(a) Each of the Shareholders agrees to vote all of his shares
of the Company's common stock, no par value (the "Common Stock") as follows:
(i) In favor of the Nominating Committee's
proposed slate of directors to be elected at the Company's 1999 Annual Meeting
of Shareholders to the Company's Board of Directors of Xxxxxx Xxxx Xxxxxxxxx,
Xxxxx XxXxxxx, Xxxxxxx X. Xxxxxxxx, and M. Xxxxxxx Xxxxxxxx;
(ii) In favor of the Nominating Committee's proposed
slate of directors to be elected at the Company's 2000 Annual Meeting of
Shareholders to the Company's Board of Directors of Xxxxx X. Xxxxxxxx, Xxxxxxx
X. Xxxxxx, Xxxxxxx X. Xxxxxxxx, and Xxxxxxx X. Xxxxx, XX; and
(iii) In favor of the Nominating Committee's proposed
slate of directors to be elected at the Company's 2001 Annual Meeting of
Shareholders to the Company's Board of Directors of Xxxxxx Xxxx Xxxxxxxxx, Xxxxx
XxXxxxx, Xxxxxxx X. Xxxxxxxx, and M. Xxxxxxx Xxxxxxxx.
(b) To the extent that any of the Shareholders are so elected
to the Board of Directors of the Company, such Shareholders agree to vote in
their capacity as directors during the term of this Agreement in favor of:
(i) The election of Xxxxx X. Xxxxxxxx, Xxxxxxx X.
Xxxxxxxx, and Xxxxxxx X. Xxxxx XX to the Nominating Committee of the Company's
Board of Directors; and
(ii) The election of the following persons to the
offices of the Company set opposite their respective names:
Xxxxxxx X. Xxxxxx - Chairman Emeritus and Vice Chairman
Xxxxxxx X. Xxxxxxxx - Chairman and General Counsel
Xxxxx X. Xxxxxxxx - President and Chief Executive Officer
Xxxxxx Xxxx Xxxxxxxxx - Executive Vice President, Corporate
Development and Mergers and
Acquisitions; Associate General Counsel
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Xxxxx XxXxxxx - Executive Vice President, Government
Affairs and Chancellor of TEAM America
University
(c) Each of the Shareholders agrees that he will not:
(i) Solicit proxies from the Company's shareholders in
opposition to any recommendation of the Company's Board of Directors;
(ii) Initiate or participate in any group which proposes,
without the support of the Company's Board of Directors, any change in the
control of the Company, whether by tender offer, merger, proxy solicitation, or
otherwise; and
(iii) Take any action which would hinder Xxxxx Xxxxxxxx'x
capacity to operate and function as Chief Executive Officer of the Company.
SECTION 2. CHANGES IN THE COMMON STOCK. Each Shareholder agrees that
any shares of Common Stock that the Shareholder purchases or that the
Shareholder in any other manner otherwise acquires beneficial ownership
including any common shares or other voting securities of the Company that are
issued on, or in exchange for, any of the shares of the Common Stock held by the
parties hereto by reason of any stock dividend, stock split, consolidation, or
reclassification of shares of the Company, shall be subject to the terms of this
Agreement.
SECTION 3. EQUITABLE RELIEF AND ENFORCEABILITY. The parties hereto will
be entitled to equitable relief, including injunction and specific performance
in any court of competent jurisdiction in accordance with its terms, in the
event of any breach of the provisions of this Agreement by any other party, in
addition to all other remedies available to the Shareholders at law or in
equity. The rights and remedies of parties hereto shall be cumulative and not
exclusive.
SECTION 4. WAIVER. The failure by any party to exercise or enforce any
of the terms or conditions of this Agreement shall not constitute a waiver of
that party's rights hereunder to enforce each and every term and condition of
this Agreement.
SECTION 5. COMPLETE AGREEMENT. This Agreement constitutes the entire
agreement among the parties thereto relating to the specific subject matter
thereof. There are no terms, obligations, covenants, representations,
statements, or conditions relating to the subject matter thereof other than
those contained in this Agreement. No variation or modification of this
Agreement or waiver orders of any of the terms or provisions hereof will be
deemed valid unless in writing and signed by all of the parties hereto.
SECTION 6. TERM. This Agreement shall terminate on February 28, 2002.
SECTION 7. NOTICES. All notices required or allowed to be given under
this Agreement shall be given to the other party at the address or facsimile
number set forth below, or to such other address or facsimile number as either
party may instruct the other party in writing, either by
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facsimile or by overnight delivery service and will be deemed to have been given
when received by such other party at the address set forth in this Agreement.
(a) If to Schilg:
Xxxxxxx X. Xxxxxx
0000 X. Xxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
(b) If to Xxxxxxxx:
Xxxxx X. Xxxxxxxx
TEAM America Corporation
000 X. Xxxxxx Xxxxxx Xx.
Xxxxxxxxxxx, XX 00000
(c) If to Xxxxxxxxx:
Xxxxxx Xxxx Xxxxxxxxx
000 Xxx Xxxxx Xx. 00
Xxxxxxx, XX 00000
(d) If to X. XxXxxxx:
Xxxxx XxXxxxx
0000 Xxxxxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
(e) If to X. XxXxxxx:
Xxxxx XxXxxxx
000 Xx. Xxxx Xxxxx
Xxxx Xxxxx, XX 00000
SECTION 8. BINDING OBLIGATION AND BENEFIT. The obligations stated in
this Agreement shall be binding upon the Shareholders and their respective
representatives, successors, and assigns, whether by operation of law or
otherwise. Nothing in this Agreement, express or implied, is intended to confer
upon any person or entity other than the parties hereto and their successors in
interest any rights or remedies under or by reason of this Agreement.
SECTION 9. GOVERNING LAW. The validity, interpretation, and
construction of this Agreement shall be governed by Ohio law, without reference
to Ohio's choice of law rules.
SECTION 10. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement is held to be invalid, illegal, or unenforceable in
any respect for any reason, such
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invalidity, illegality, or unenforceability shall not affect any other
provisions hereof. It is the intention of the parties that if any provision is
held to be invalid, illegal, or unenforceable, there shall be added in lieu
thereof a valid and enforceable provision as similar in terms to such provision
as is possible.
SECTION 11. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 12. INTERPRETATION. The section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties, and will not in any way affect the meaning or interpretation of
this Agreement. In the event of any conflict between this Agreement or any other
agreement between the Shareholders, this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of the date set forth above.
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
/s/ Xxxxxx Xxxx Xxxxxxxxx
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Xxxxxx Xxxx Xxxxxxxxx
/s/ Xxxxx XxXxxxx
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Xxxxx XxXxxxx
/s/ Xxxxx XxXxxxx
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Xxxxx XxXxxxx
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