Exhibit 2.3
SECONDARY VOTING AGREEMENT
THIS SECONDARY VOTING AGREEMENT, dated as of August 21, 2000 (the
"Agreement"), is entered into among TeleTech Holdings, Inc., a Delaware
corporation ("Parent"), and certain stockholders of Newgen Results Corporation,
a Delaware corporation (the "Company") whose names appear on SCHEDULE I hereto
(collectively, the "Stockholders").
WITNESSETH:
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Parent, NG Acquisition Corp., a Delaware corporation ("Sub"), and the
Company are entering into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), which provides for, upon the terms and subject
to the conditions set forth therein, the merger of Sub with and into the Company
(the "Merger");
WHEREAS, as of the date hereof, each Stockholder is the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of the number of shares
of Company Common Stock set forth opposite such Stockholder's name on SCHEDULE I
hereto (the "Owned Shares") which shares constitute in the aggregate
approximately sixteen and one-half percent (16.5%) of the issued and outstanding
shares of Company Common Stock as of the date hereof;
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Parent and the Stockholders are also entering into that certain
Primary Voting Agreement, dated as of the date hereof, setting forth certain
covenants of the Stockholders with respect to certain additional shares of
Company Common Stock beneficially held by the Stockholders (the "Primary Voting
Agreement");
WHEREAS, as a condition to Parent's willingness to enter into the
Merger Agreement, Parent has required that the Stockholders enter into this
Agreement and the Primary Voting Agreement; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement,
the Stockholders are willing to enter into this Agreement and the Primary Voting
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent and each of the Stockholders, severally and not jointly, hereby
agree as follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES;
OTHER COVENANTS OF THE STOCKHOLDERS
SECTION 1.1. VOTING OF SHARES. Subject to Section 1.6, each
Stockholder agrees, at any meeting of the stockholders of the Company, however
called, and in any action by consent of the stockholders of the Company, that
such Stockholder shall vote its Owned Shares (i) in favor of the adoption and
approval of the Merger Agreement (as amended from time to time) and (ii) in
favor of any other matter necessary for consummation of the transactions
contemplated by the Merger Agreement which is considered at any such meeting of
stockholders, and in connection therewith to execute any documents which are
necessary or appropriate in order to effectuate the foregoing, including the
ability for Parent or its nominees to vote such Owned Shares directly solely
with respect to the matters referred to in this Section 1.1.
SECTION 1.2. NO INCONSISTENT ARRANGEMENTS. Except as contemplated
by this Agreement, each Stockholder shall not during the term of this Agreement
(i) transfer (which term shall include, without limitation, any sale,
assignment, gift, pledge, hypothecation or other disposition), or consent to any
transfer of, any or all of such Stockholder's Owned Shares or any interest
therein, or create or permit to exist any Encumbrance (as defined below) on such
Owned Shares unless such transfer or Encumbrance is done subject to the voting
requirements set forth in Section 1.1 and subject to any such transferee or the
beneficiary of any such Encumbrance executing a Proxy (as defined below), (ii)
enter into any contract, option or other agreement or understanding with respect
to any transfer of any or all of such Owned Shares or any interest therein on
terms that would, at the time of entering into such contract, option or other
agreement or understanding or with the passage of time, violate clause (i)
above, (iii) grant any proxy, power-of-attorney or other authorization in or
with respect to such Owned Shares, (iv) deposit such Owned Shares into a voting
trust or enter into a voting agreement or arrangement with respect to such Owned
Shares or (v) take any other action that would in any way restrict, limit or
interfere with the performance of such Stockholder's obligations hereunder or
the transactions contemplated hereby or by the Merger Agreement. Notwithstanding
anything in this Agreement to the contrary, each Stockholder may transfer all or
any of such Stockholder's Owned Shares to any trust, partnership or similar
vehicle formed for estate, tax or family planning purposes of which such
Stockholder controls the vote, provided that as a condition of such transfer,
such Stockholder notifies Parent and provides the Parent with documentation
reasonably satisfactory to Parent as to the consent of the transferee to be
bound by all of the provisions of this Agreement.
SECTION 1.3. PROXY. Subject to Section 1.6, each Stockholder
hereby revokes any and all prior proxies or powers-of-attorney in respect of
any of such Stockholder's Owned Shares and constitutes and agrees to execute
the proxy in the form attached hereto as EXHIBIT A (the "Proxy").
SECTION 1.4. STOP TRANSFER. Each Stockholder shall not request
that the Company register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of such Stockholder's
Owned Shares, unless such transfer is made in compliance with this Agreement
(including the provisions of Article III hereof) and acknowledges that Parent
and the Company may notify the Company's transfer agent of the terms hereof.
SECTION 1.5. NO SOLICITATION. From and after the date hereof and
continuing until the earlier of the Effective Time or the termination of the
Merger Agreement pursuant to Article IX thereof, each Stockholder shall not, nor
shall it permit or authorize any of its officers, directors, employees, agents
or representatives (collectively, the "Representatives") to, (i) solicit or
initiate, or encourage, directly or indirectly, any inquiries regarding or the
submission of, any Takeover Proposal, (ii) participate in any discussions or
negotiations regarding, or furnish to any Person any information or data with
respect to, or take any other action to knowingly facilitate
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the making of any proposal that constitutes, or may reasonably, be expected
to lead to, any Takeover Proposal or (iii) enter into any agreement with
respect to any Takeover Proposal or approve or resolve to approve any
Takeover Proposal. Upon execution of this Agreement, each Stockholder shall,
and it shall cause its Representatives to, immediately cease any existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing. Each Stockholder will promptly notify
Parent of the existence of any proposal, discussion, negotiation or inquiry
received by such Stockholder with respect to a Takeover Proposal, and each
Stockholder will promptly communicate to Parent the terms of any such
proposal, discussion, negotiation or inquiry which it may receive (and will
promptly provide to Parent copies of any written materials received by it in
connection with such proposal, discussion, negotiation or inquiry) and the
identity of the Person making such proposal or inquiry or engaging in such
discussion or negotiation. Nothing in this Section 1.5 shall be a limitation
on any Stockholder or Representative thereof serving as a director of the
Company or as an officer of the Company acting at the direction of the Board
of Directors of the Company and in such capacity taking any action on behalf
of the Company that the Company is permitted to take under Section 7.9 of the
Merger Agreement, each of whom in his capacity as a director or an officer of
the Company shall be subject to the terms and provisions of Section 7.9 of
the Merger Agreement.
SECTION 1.6 TERMINATION. If during the Window Period, the Board
of Directors makes a Qualifying Change in Company Recommendation, Sections 1.1,
1.3 and 1.5 hereof, and the Proxy executed by each Stockholder, shall terminate
and be of no further force and effect.
ARTICLE II
DISCLOSURE
SECTION 2.1. DISCLOSURE. Each Stockholder hereby authorizes Parent
and the Company to publish and disclose in the Proxy Statement/Prospectus
(including all documents and schedules filed with the SEC) its identity and
ownership of the Owned Shares and the nature of its commitments, arrangements
and understandings under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to Parent as follows:
SECTION 3.1. DUE AUTHORIZATION, ETC. Such Stockholder has all
requisite personal or corporate power and authority to execute, deliver and
perform this Agreement, to appoint Parent as its Proxy and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement, the appointment of Parent as Stockholder's Proxy and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of such Stockholder. This Agreement has been
duly executed and delivered by or on behalf of such Stockholder and constitutes
a legal, valid and binding obligation of such Stockholder, enforceable against
such Stockholder in
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accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws and except that the.
availability of equitable remedies, including specific performance, is
subject to the, discretion of the court before which any proceeding for such
remedy may be brought. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Stockholder is
trustee whose consent is required for the execution and delivery of this
Agreement of the consummation by such Stockholder of the transactions
contemplated hereby.
SECTION 3.2. NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such Stockholder
will not, (i) conflict with or violate any trust agreement or other similar
documents relating to any trust of which such Stockholder is trustee, (ii)
conflict with or violate the articles of incorporation, bylaws or similar
organizational documents to which such Stockholder is subject, (iii) conflict
with or violate any law applicable to such Stockholder or by which such
Stockholder or any of such Stockholder's properties is bound or affected or (iv)
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any assets of such Stockholder, including,
without limitation, such Stockholder's Owned Shares, pursuant to any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which such Stockholder is a party or by which
such Stockholder or any of such Stockholder's assets is bound or affected,
except, in the case of clauses (iii) and (iv), for any such breaches, defaults
or other occurrences that would not prevent or delay the performance by such
Stockholder of such Stockholder's obligations under this Agreement.
(b) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such Stockholder
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority (other than
any necessary filing under the Exchange Act), domestic or foreign, except where
the failure to obtain such consents, approvals, authorizations at permits, or to
make such filings or notifications, would not prevent or delay the performance
by such Stockholder of such Stockholder's obligations under this Agreement.
SECTION 3.3. TITLE TO SHARES. Such Stockholder is the sole record
and beneficial owner of its Owned Shares, free and clear of any pledge, lien,
security interest, mortgage, charge, claim, equity, option, proxy, voting
restriction, voting trust or agreement, understanding, arrangement, right of
first refusal, limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind ("Encumbrances"), other than restrictions imposed by the
securities laws or pursuant to this Agreement or the Merger Agreement or as
otherwise disclosed by such Stockholder to Parent.
SECTION 3.4. NO FINDER'S FEES. Except as disclosed in the Merger
Agreement, no broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such
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Stockholder the payment of which could become the obligation of the Company
or Parent. Such Stockholder, on behalf of itself and its affiliates, hereby
acknowledges that it is not entitled to receive any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby or by the Merger Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to the Stockholders as follows:
SECTION 4.1. DUE ORGANIZATION, AUTHORIZATION, ETC. Parent is duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Parent has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by Parent has been duly authorized by all
necessary corporate action on the part of Parent. This Agreement has been duly
executed and delivered by Parent and constitutes a legal, valid and binding
obligation of Parent, enforceable against Parent in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws and except that the availability of equitable remedies,
including specific performance, is subject to the discretion of the court before
which any proceeding for such remedy may be brought.
ARTICLE V
ALTERNATIVE DISPOSITIONS
SECTION 5.1 PROFIT CAPTURE. In the event that any of the Owned
Shares are sold, transferred, exchanged, canceled or disposed of in connection
with or as a result of any Takeover Proposal that is entered into within 9
months of a Qualifying Termination of the Merger Agreement (as defined below)
and such Takeover Proposal shall have been made to the Company or any of its
Subsidiaries or shall have been made directly to the stockholders of the Company
generally (and shall not have been withdrawn) or shall have otherwise become
publicly known or any Person shall have publicly announced an intention (whether
or not conditional) to make such Takeover Proposal (and shall not have withdrawn
such announcement or publicly announced that it will not make or pursue such
Takeover Proposal) prior to a Qualifying Termination of the Merger Agreement (as
defined below) (an "Alternative Disposition") then, subject to Section 5.4
below, each Stockholder shall tender and pay to, or shall cause to be tendered
and paid to, Parent, or its designee, in immediately available funds, 50% of the
Profit (as defined below) received or receivable from such Alternative
Disposition with respect to all of such Stockholder's Owned Shares. As used in
this Section 5.1, "Profit" shall mean an amount equal to the excess, if any, of
(i) the Alternative Transaction Consideration (as defined below) received or
receivable with respect to a Stockholder's Owned Shares over (ii) the Current
Transaction Consideration (as defined below) received or receivable with respect
to a Stockholder's Owned Shares.
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SECTION 5.2 DEFINITIONS; INTERPRETATION. "Alternative Transaction
Consideration" shall mean on a per share basis determined at the time the Board
of Directors of the Company approves an Alternative Disposition, all cash,
securities, settlement or termination amounts, notes or other debt instruments,
and other consideration received or to be received, directly or indirectly, by
each Stockholder in connection with an Alternative Disposition (including,
without limitation, any employment agreement (except a bona fide employment
agreement pursuant to which the Stockholder is required to devote, and under
which the Stockholder in good faith intends to devote, substantially all of his
business time and effort to the performance of executive services for the
Company or the acquiror in such Alternative Disposition), consulting agreement,
non-competition agreement, confidentiality agreement, settlement agreement or
release agreement) entered into, directly or indirectly, by the Stockholder as a
part of or in connection with the Alternative Disposition. "Current Transaction
Consideration" shall mean on a per share basis the lower of (i) $18 per share of
Company Common Stock or (ii) the value per share of Company Common Stock
calculated pursuant to the terms of Section 3.1(b) of the Merger Agreement on
the date on which the Qualifying Termination Occurs (the "Termination Date")
expressed as a dollar amount based on what the Parent's Closing Date Price and
the Common Exchange Ratio would be if the Termination Date were the Closing Date
under the Merger Agreement. "Qualifying Termination of the Merger Agreement"
means a termination of the Merger Agreement other than pursuant to Sections
9.1(a), 9.1(c), 9.1(f) or 9.1(i) thereof. For purposes of determining Profit
under this Article V, (i) all non-cash items shall be valued based upon the fair
market value thereof as determined by an independent expert selected by Parent
and who is reasonably acceptable to the Stockholders, (ii) all deferred payments
or consideration shall be discounted at a market rate to reflect the net present
value thereof as determined by the above-referenced independent expert, (iii)
all contingent payments will be assumed to have been paid and (iv) if less than
all of the Owned Shares are subject to the Alternative Disposition, then the
Current Transaction Consideration shall be deemed to be an amount equal to the
Current Transaction Consideration multiplied by a fraction, the numerator of
which is the number of the Owned Shares sold, transferred, exchanged, canceled
or disposed of in such Alternative Disposition and the denominator of which is
the total number of the Owned Shares. In the event any contingent payments
included in the determination of Profit ultimately are not paid pursuant to an
Alternative Disposition, then Parent shall reimburse Stockholder for any amounts
paid to Parent hereunder in respect of such uncollected contingent payments
promptly after receipt of written notice of such non-payment, unless the
Stockholder has not used its best efforts to receive such contingent payments.
SECTION 5.3 ALTERNATIVE DISPOSITION WITH PARENT. In the event
that after the date of this Agreement and following the delivery by the
Company to Parent of a Notice of Superior Proposal under Section 7.9(b)(iii)
of the Merger Agreement, the amount of consideration to be received by the
Stockholders in connection with the Merger should be increased in a
transaction (a "Second Transaction") beyond the amount otherwise receivable
by the Stockholders in accordance with the Merger Agreement as in effect on
the date hereof (the "Existing Consideration") then each Stockholder shall
either tender and pay, or cause to be tendered and paid, to Parent, or its
designee, in immediately available funds 50% of the Profit payable from such
Second Transaction with respect to all of such Stockholder's Owned Shares. As
used in this Section 5.3, Profit shall mean an amount equal to the excess, if
any, of (i) the Second Transaction Consideration (as defined below) received
or receivable with respect to a Stockholder's Owned Shares over (ii) the
Existing Consideration received or receivable with respect to a
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Stockholder's Owned Shares. "Second Transaction Consideration" shall mean all
cash, securities, settlement or termination amounts, notes or other debt
instruments, and other consideration received or to be received, directly or
indirectly, by the Stockholder in respect of its Owned Shares in connection
with or as a result of the Second Transaction.
SECTION 5.4 PAYMENT OF PROFIT. In the event that the Alternative
Transaction Consideration received or receivable in an Alternative Disposition
is solely cash or cash equivalents, each Stockholder shall pay all amounts due
and owing by it pursuant to this Article V within three business days after
receipt of any such consideration. In the event that the Alternative Transaction
Consideration received or receivable in an Alternative Disposition is other than
cash or cash equivalents, Parent shall make available to each Stockholder a loan
for payment of the amounts due and owing pursuant to this Article V. In the
event that the Alternative Transaction Consideration received or receivable in
an Alternative Disposition is in a combination of cash or cash equivalents and
consideration other than cash or cash equivalents, then each Stockholder shall
pay all amounts due and owing by it pursuant to this Article V within three
business days after receipt of any such consideration to the extent of the cash
or cash equivalents received and, to the extent that such cash or cash
equivalents are insufficient to cover the amounts due and owing pursuant to this
Article V, Parent shall make available to each Stockholder a loan for the
shortfall. In the event loans from Parent are required hereunder, Parent and
each Stockholder shall agree on the terms and conditions of such loan which
terms and conditions shall include the following: (i) each loan shall bear
interest at the rate of ten percent (10%) per annum and (ii) each loan shall be
secured by a the grant of a security interest in or pledge of the Alternative
Transaction Consideration received or receivable in an Alternative Disposition.
Subject to the foregoing, Parent and each Stockholder shall agree on any other
terms and conditions of any such loan, including the maturity date thereof
(which shall in any event be no later than six months following the closing of
the Alternative Disposition). If the parties do not reach agreement on any such
additional loan terms within fifteen days of the closing of the Alternative
Disposition and Parent shall have negotiated such terms in good faith, all
amounts due pursuant to this Article V shall be paid within sixty days of the
closing of the Alternative Disposition.
SECTION 5.5 TERMINATION. This Article V shall terminate and be of
no further force and effect upon the expiration of the Window Period,
provided that no Qualifying Change in Company Recommendation has been made.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 DEFINITIONS. Terms used but not otherwise defined in
this Agreement have the meanings ascribed to such terms in the Merger
Agreement.
SECTION 6.2. TERMINATION. Unless a Qualifying Change in Company
Recommendation has been made during the Window Period, in which case the
provisions of Article V of this Agreement shall survive until such time as the
Stockholders have no further payment obligations pursuant to Article V, this
Agreement shall terminate and be of no further
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force and effect (i) by the unanimous written consent of the parties hereto
or (ii) automatically and without any required action of the parties hereto
upon (x) the Effective Time or (y) the termination of the Merger Agreement in
accordance with its terms. No such termination of this Agreement shall
relieve any party hereto from any liability for any breach of this Agreement
prior to termination.
SECTION 6.3. FURTHER ASSURANCE. From time to time, at another party's
request and without consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transaction contemplated by this Agreement. Each Stockholder
understands and acknowledges that Parent and Sub are entering into the Merger
Agreement in reliance upon each Stockholder's execution and delivery of this
Agreement.
SECTION 6.4. CERTAIN EVENTS. Each Stockholder agrees that this
Agreement and such Stockholder's obligations hereunder shall attach to such
Stockholder's Owned Shares and shall be binding upon any person or entity to
which legal or beneficial ownership of such Owned Shares shall pass, whether by
operation of law or otherwise, including, without limitation, such Stockholder's
heirs, guardians, administrators, or successors. Notwithstanding any transfer of
Owned Shares, the transferor shall remain liable for the performance of all its
obligations under this Agreement.
SECTION 6.5. NO WAIVER. The failure of any party hereto to
exercise any right, power, or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder, any custom or practice of
the parties at variance with the terms hereof shall not constitute a waiver by
such party of its right to exercise any such or other right, power or remedy or
to demand such compliance. Any party hereto may (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto and
(iii) waive compliance by the other parties hereto with any of their agreements
or conditions contained herein. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only as against such party and only
if set forth in an instrument in writing signed by such party. The failure of
any party hereto to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of those rights.
SECTION 6.6. SPECIFIC PERFORMANCE. Each Stockholder acknowledges
that if such Stockholder fails to perform any of its obligations under this
Agreement immediate and irreparable harm or injury. would be caused to Parent
for which money damages would not be an adequate remedy. In such event, each
Stockholder agrees that Parent shall have the right, in addition to any other
rights it may have, to specific performance of this Agreement. Accordingly,
if Parent should institute an action or proceeding seeking specific
enforcement of the provisions hereof, each Stockholder hereby waives the
claim or defense that Parent has an adequate remedy at law and hereby agrees
not to assert in any such action or proceeding the claim or defense that such
a remedy at law exists. Each Stockholder further agrees to waive any
requirements for the securing or posting of any bond in connection with
obtaining any such equitable relief.
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SECTION 6.7. NOTICE. All notices and other communications
hereunder shall be in writing (including facsimile or similar writing) and
shall be effective (i) if given by facsimile, when such facsimile is
transmitted to the facsimile number specified in this Section 6.7 and the
appropriate facsimile confirmation is received or (ii) if given by any other
means, when delivered to the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) If to Parent: TeleTech Holdings, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
TeleTech Holdings, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxxx & Xxxxxxx L.L.P.
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxx
(b) If to a Stockholder, at the address or facsimile number set
forth below such Stockholder's name on SCHEDULE I hereto.
SECTION 6.8. EXPENSES. Except as otherwise expressly set forth
herein, all fees, costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such fees, costs and expenses.
SECTION 6.9. HEADINGS. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 6.10. 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 so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. 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 in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the maximum extent
possible.
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SECTION 6.11. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement constitutes the entire agreement and supersedes any and all other
prior agreements and undertakings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof, and this Agreement is
not intended to confer upon any other person any rights or remedies hereunder.
SECTION 6.12. ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise.
SECTION 6.13. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware applicable
to contracts executed in and to be performed entirely within that State.
SECTION 6.14. AMENDMENT. This Agreement may not be amended except
by an instrument in writing signed by the parties hereto.
SECTION 6.15. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
but all of which shall constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Parent and the Stockholders have caused this
Agreement to be executed as of the date first written above.
TELETECH HOLDINGS, INC.
By:
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Name:
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Title:
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STOCKHOLDERS
INFORMATION ASSOCIATES, L.P.
By: ----------------------------------------
Name:
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Title:
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INFORMATION ASSOCIATES, C.V.
By:
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Name:
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Title:
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INFORMATION ASSOCIATES-II, L.P.
By:
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Name:
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Title:
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IA-II AFFILIATES FUND, L.L.C.
By:
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Name:
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Title:
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BANKAMERICA VENTURES
By:
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Name:
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Title:
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BA VENTURE PARTNERS II
By:
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Name:
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Title:
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Xxxxxxx Xxxxxx
JOHARI INVESTMENT CO. LTD.
By:
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Name:
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Title:
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CAPSTONE VENTURES
By:
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Name:
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Title:
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Xxxxxx Xxxxxxxx
K & S IMPORTS, INC.
By:
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Name:
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Title:
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Xxxxxx Xxxxxx
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Xxxxxx Silver
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SCHEDULE I
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NAME AND ADDRESS OF STOCKHOLDER NUMBER OF SHARES BENEFICIALLY OWNED
------------------------------------------------------------------------------------------------
Information Associates, L.P. 175,191
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
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Information Associates, C.V. 4,890
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
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Information Associates - II, L.P. 270,119
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
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IA-II Affiliates Fund, L.L.C. 15,758
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
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BankAmerica Ventures 286,804
000 Xxxxx Xxxx, Xxx. 000
Xxxxxx Xxxx, XX 00000
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BA Venture Partners II 31,879
000 Xxxxx Xxxx, Xxx. 000
Xxxxxx Xxxx, XX 00000
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Xxxxxxx Xxxxxx 235,661
c/o Newgen Results Corporation
0000 Xxxxxxx Xxxx Xxxxx
Xxx Xxxxx, XX 00000
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Johari Investment Co. Ltd. 217,356
c/o Newgen Results Corporation
0000 Xxxxxxx Xxxx Xxxxx
Xxx Xxxxx, XX 00000
------------------------------------------------------------------------------------------------
Capstone Ventures 131,990
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx 215,634
0000 XxXxxx Xxx
Xxx Xxxxx, XX 00000
------------------------------------------------------------------------------------------------
K & S Imports, Inc. 78,166
0000 Xxx Xxxxxx Xxxx
Xxx Xxx, XX 00000
------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxx 7,834
0000 Xxx Xxxxxx Xxxx
Xxx Xxx, XX 00000
------------------------------------------------------------------------------------------------
Xxxxxx Silver 71,025
0000 Xxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
------------------------------------------------------------------------------------------------
Total: 1,742,407
------------------------------------------------------------------------------------------------
Percentage: 16.54%
------------------------------------------------------------------------------------------------
EXHIBIT A
IRREVOCABLE PROXY
By its execution hereof, and in order to secure its
obligations under the Secondary Voting Agreement (the "Secondary Agreement") of
even date herewith among TELETECH HOLDINGS, INC., a Delaware corporation and
certain stockholders of NEWGEN RESULTS CORPORATION, a Delaware corporation (the
"Company"), the undersigned (the "Stockholder") hereby irrevocably constitutes
and appoints TELETECH HOLDINGS, INC. and NG ACQUISITION CORP., a Delaware
corporation ("Sub"), and each of them and each of their successors and assigns,
with full power of substitution and resubstitution, from the date hereof to the
termination of the Secondary Agreement, as such Stockholder's true and lawful
attorney and proxy (its "Proxy"), for and in such Stockholder's name, place and
stead, to demand that the Secretary call a special meeting of Stockholders of
the Company for the purpose of considering any action related to the Merger
Agreement and to vote each of the Owned Shares of the Stockholder as such
Stockholder's Proxy at every annual, special or adjourned meeting of
Stockholders of the Company, and to sign on behalf of such Stockholder (as a
Stockholder of the Company) any ballot, proxy, consent, certificate or other
document relating to the Company that law permits or requires, in a manner
consistent with Section 1.1 of the Secondary Agreement. This Proxy is coupled
with interest and the Stockholder intends this Proxy to be irrevocable to the
fullest extent permitted by law. Each Stockholder hereby revokes any proxy
previously granted by such Stockholder with respect to such Stockholder's
Shares. Capitalized terms used but not defined herein shall have the meaning set
forth in the Secondary Agreement. Each Stockholder shall perform such further
acts and execute such further documents and instruments as may reasonably be
required to vest in Parent and Sub, or any of their nominees, the power to carry
out and give effect to the provisions of this Proxy.
IN WITNESS WHEREOF, the undersigned has executed
this Irrevocable Proxy this ____ day of __________, 2000.
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Name:
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Address:
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