Exhibit 99.13
VSOURCE STOCKHOLDER VOTING AGREEMENT
This Voting Agreement, effective as of June 12, 2003, (this
"Agreement"), is entered into by and among TEAM America, Inc., an Ohio
corporation ("TEAM"), Vsource, Inc., a Delaware corporation (the "Company"), and
the stockholder of the Company whose signature appears on the signature page
hereof ("Company Stockholder").
RECITALS
WHEREAS, TEAM, Beaker Acquisition Co., Inc., a Delaware corporation
("Merger Sub"), and the Company are entering into a Merger Agreement, of even
date herewith (together with any amendments thereto that do not materially
adversely affect the Company Stockholder, the "Merger Agreement"); and
WHEREAS, as a condition and inducement to TEAM and Merger Sub entering
into the Merger Agreement and incurring the obligations set forth therein,
Company Stockholder has agreed to vote and to cause to be voted all shares of
Vsource Capital Stock now owned or hereafter acquired by Company Stockholder,
for and in favor of the merger of the Company with and into Merger Sub
contemplated by the Merger Agreement (the "Merger"), and has agreed to the other
terms and provisions contained herein.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements set forth herein and in the Merger Agreement, the
parties hereto, intending to be legally bound hereby, agree as follows:
AGREEMENT
1. DEFINITIONS. Each term used herein with its initial letter
capitalized and not otherwise defined shall have the meaning assigned to such
term in the Merger Agreement. The following terms shall have the respective
meanings set forth below:
(a) "Disposition" shall mean any sale, exchange, assignment,
gift, pledge, mortgage, hypothecation, transfer or other disposition
or encumbrance of all or any part of the rights and incidents of
ownership of Vsource Capital Stock, including the right to vote, and
the right to possession of Vsource Capital Stock as collateral for
indebtedness, whether such transfer is outright or conditional, or for
or without consideration.
(b) "Term" shall mean the period commencing on the date hereof
and continuing until the first to occur of (i) the Effective Time of
the Merger, or (ii) the termination of the Merger Agreement in
accordance with its terms.
2. VOTING OF VSOURCE CAPITAL STOCK. Company Stockholder hereby agrees
that, during the Term, at any meeting (whether annual or special and whether or
not an adjourned or postponed meeting) of the holders of Vsource Capital Stock,
however called, or in connection with any written consent of the holders of
Vsource Capital Stock, Company
Stockholder will appear at the meeting or otherwise cause the shares of Vsource
Capital Stock now owned or hereafter acquired by Company Stockholder (the
"Company Shares") to be counted as present thereat for purposes of establishing
a quorum and vote or consent (or cause to be voted or consented) the Company
Shares (a) in favor of the adoption of the Merger Agreement and the approval of
all actions contemplated by the Merger Agreement and this Agreement, including
all of the Vsource Proposals, and any actions required in furtherance thereof
and hereof, (b) against any Acquisition Proposal and against any action or
agreement that would impair the ability of the Company to consummate the Merger,
(c) against any action or agreement that would result in a breach in any respect
of any covenant, representation or warranty or any other obligation or agreement
of the Company under the Merger Agreement, and (d) against any action involving
the Company or its subsidiaries that is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or materially adversely
affect the transactions contemplated by the Merger Agreement. Company
Stockholder acknowledges receipt and review of a copy of the Merger Agreement.
Solely with respect to the matters described in this Section, for so
long as this Agreement has not been terminated pursuant to its terms, Company
Stockholder hereby irrevocably appoints TEAM as his, her or its proxy (which
proxy is irrevocable and which appointment is coupled with an interest,
including for purposes of Section 212 of the Delaware General Corporation Law)
to vote all Company Shares solely on the matters described in this Section, and
in accordance therewith. Company Stockholder agrees to execute any further
agreement or form reasonably necessary or appropriate to confirm and effectuate
the grant of the proxy contained herein. Such proxy shall automatically
terminate upon the valid termination of this Agreement.
3. CONDITIONS TO OBLIGATIONS OF COMPANY STOCKHOLDER. The obligations of
Company Stockholder as set forth in Section 2 above shall be subject to the
satisfaction of each of the following conditions, any of which may be waived by
Company Stockholder, in writing, exclusively by Company Stockholder:
(a) The TEAM Recap Agreement shall have been entered into by and
among TEAM and certain of its shareholders substantially in accordance
with the terms of the TEAM MOU.
(b) TEAM shall have entered into the Financing Agreements with
its lenders substantially in accordance with the terms of the Bank
Term Sheet.
4. RESTRICTION ON DISPOSITION OF VSOURCE CAPITAL STOCK. Company
Stockholder hereby agrees that, during the Term, Company Stockholder will not
make, offer to make, agree to make, or suffer any Disposition of his, her or its
Company Shares or any interest therein. The restrictions contained in this
Section 4 shall not apply to (a) a Disposition under Company Stockholder's will
or pursuant to the laws of descent and distribution, or (b) a gift by Company
Stockholder to an immediate family member (i.e., a spouse, child, parent,
grandparent or sibling) or a family trust for the benefit of immediate family
member(s) so long as, in each case, the transferee(s) deliver to TEAM and Merger
Sub an executed written instrument agreeing to be bound by the term of this
Agreement as if such transferee(s) were Company Stockholder.
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5. RESTRICTION PROXIES AND NON-INTERFERENCE. Company Stockholder hereby
agrees that, during the Term, Company Stockholder will not (i) grant any proxies
or powers of attorney that would permit any such proxy or attorney-in-fact to
take any action inconsistent herewith, (ii) deposit his, her or its Company
Shares into a voting trust or enter into a voting agreement with respect to such
Company Shares in either case providing for the voting or consenting of such
shares in a manner inconsistent herewith; or (iii) take any action that would
make any representation or warranty of Company Stockholder contained herein
untrue or incorrect or would result in a breach by Company Stockholder of its
obligations under this Agreement. Company Stockholder further agrees not to
enter into any agreement or understanding with any person, the effect of which
would be inconsistent with or violative of any provision contained in this
Agreement.
6. COVENANTS, REPRESENTATIONS AND WARRANTIES OF COMPANY STOCKHOLDER.
Company Stockholder hereby represents and warrants to, and agrees with, TEAM and
Merger Sub as follows:
(a) OWNERSHIP OF SHARES. Company Stockholder is the sole record
and beneficial owner of that number of shares of Vsource Capital Stock
set forth next to Company Stockholder's name on SCHEDULE I attached
hereto (other than to the extent that (i) shares held by an entity may
be deemed to be beneficially owned by certain persons in control of
such entity and (ii) all or a portion of Company Stockholder's shares
may be held by a broker in street name). On the date hereof, such
Company Shares constitute all of the shares of Vsource Capital Stock
owned of record or beneficially by Company Stockholder and all of the
shares of Vsource Capital Stock that the Company Stockholder has the
right to vote, either directly or indirectly. Company Stockholder has
sole voting power and sole power to issue instructions with respect to
the matters set forth in this Agreement, sole power of disposition,
and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of such Company Shares,
with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws and the terms of this Agreement.
(b) AUTHORIZATION. Company Stockholder (if not a natural person)
is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and has the power and
authority (corporate or otherwise) and full legal right to execute and
deliver this Agreement and perform its obligations hereunder. Company
Stockholder (if a natural person) has the requisite legal capacity and
competency, and the full legal right to execute and deliver this
Agreement and perform his or her obligations hereunder. This Agreement
has been duly and validly executed and delivered by Company
Stockholder and constitutes a valid and binding agreement enforceable
against Company Stockholder in accordance with its terms except (i) as
may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights, and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefore may be brought.
(c) NO CONFLICTS. Except for filings, authorizations, consents
and approvals as may be required under the Securities Act and the
Exchange Act, (i) no filing
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with, and no permit, authorization, consent or approval of, any state
or federal governmental authority, or any other person, is necessary
for the execution of this Agreement by Company Stockholder and the
consummation by Company Stockholder of the transactions contemplated
hereby, and (ii) none of the execution and delivery of this Agreement
by Company Stockholder, the consummation by Company Stockholder of the
transactions contemplated hereby or compliance by Company Stockholder
with any of the provisions hereof will (A) conflict with or result in
any breach of the organizational documents of Company Stockholder (if
not a natural person), (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default
(or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which
Company Stockholder is a party or by which Company Stockholder or any
of his, her or its properties or assets may be bound, or (C) violate
any order, writ, injunction, decree, judgment, statute, role or
regulation applicable to Company Stockholder or any of his, her or its
properties or assets.
(d) NO ENCUMBRANCES. Company Stockholder owns his, her or its
Company Shares free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, or any other
encumbrances whatsoever, except for (i) any such matters arising
hereunder and (ii) bona fide pledges of such shares as security for
obligations owed to the Company; provided, however, in the event that
the Company acquires any interest in all or any of such shares,
including, without limitation, legal or beneficial ownership thereof
or any voting rights with respect thereto, whether through foreclosure
or otherwise, the Company hereby agrees to be bound by the terms of
this Agreement with respect to such shares as if it were the Company
Stockholder.
(e) RELIANCE BY VSOURCE, TEAM AND MERGER SUB. Company Stockholder
understands and acknowledges that Vsource, TEAM and Merger Sub are
entering into the Merger Agreement in reliance upon Company
Stockholder's execution and delivery of, and compliance with, this
Agreement.
(f) STOCKHOLDER CAPACITY. If Company Stockholder is or becomes
during the Term a director of the Company, Company Stockholder makes
any agreement or understanding herein in his or her capacity as a
stockholder of the Company and not as a director.
(g) QUALIFYING SALE. If Company Stockholder is a holder of the
Company's Series 4-A Convertible Preferred Stock, Company Stockholder
acknowledges and agrees that the Merger shall be deemed to be a
"Qualifying Sale," as that term is defined and used in the Certificate
of Designation applicable to the Series 4-A Stock (the "Series 4-A
Certificate") and the related warrants and other agreements (the
"Series 4-A Documents"), and that, therefore, the related
Stockholder's Agreement and all other rights and obligations under the
terms of the Series 4-A Documents that are intended to terminate upon
the occurrence of a Qualifying Sale on a Liquidity Date (as that term
is defined and used in the Series 4-A Certificate) shall be terminated
at the Effective Time.
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7. TERMINATION. This Agreement will terminate upon the earlier of (a)
the Effective Time of the Merger, or (b) the termination of the Merger Agreement
in accordance with its terms.
8. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject
matter hereof.
(b) CERTAIN EVENTS. Company Stockholder agrees that this
Agreement and the obligations hereunder shall attach to his, her or
its Company Shares and shall be binding upon any person to which legal
or beneficial ownership of such Company Shares shall pass, whether by
operation of law or otherwise, including, without limitation, Company
Stockholder's heirs, guardians, administrators or successors.
Notwithstanding any such transfer of Company Shares, the transferor
shall remain liable for the performance of all obligations under this
Agreement of the transferor.
(c) CHANGE IN VSOURCE CAPITAL STOCK. In the event of a stock
dividend or distribution, or any change in the Vsource Capital Stock
by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, the term "Company Shares"
shall be deemed to refer to and include the Company Shares as well as
all such stock dividends and distributions and any shares into which
or for which any or all of the Company Shares may be changed or
exchanged.
(d) ACQUISITION OF ADDITIONAL COMPANY SHARES. Company Stockholder
agrees to promptly notify TEAM and Vsource of the number of shares of
Vsource Capital Stock acquired by Company Stockholder, if any, after
the date of this Agreement.
(e) WAIVER OF APPRAISAL RIGHTS. Company Stockholder hereby
waives, releases and discharges any rights of appraisal or rights to
dissent from the Merger that Company Stockholder may have.
(f) ASSIGNMENTS; RIGHTS OF ASSIGNEES; THIRD PARTY BENEFICIARIES.
This Agreement shall not be assignable by Company Stockholder without
the prior written consent of TEAM and Vsource. This Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the
parties hereto and their respective heirs, executors, administrators,
legal representatives, successors and permitted assigns. Nothing
expressed or referred to in this Agreement is intended or shall be
construed to give any person other than the parties to this Agreement
or their respective heirs, executors, administrators, legal
representatives, successors or permitted assigns any legal or
equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
(g) SPECIFIC PERFORMANCE. The parties hereto acknowledge that
money damages are an inadequate remedy for breach of this Agreement
because of the
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difficulty of ascertaining the amount of damage that will be suffered
by the non-breaching party or parties in the event that this Agreement
is breached. Therefore, each of the parties agrees that the
non-breaching party or parties may obtain specific performance of this
Agreement and injunctive and other equitable relief against any breach
hereof, without the necessity of establishing irreparable harm or
posting any bond, in addition to any other remedy to which such party
may be entitled at law or in equity.
(h) WAIVER. No waiver of any provision of this Agreement shall be
effective unless it is in writing signed by the party granting the
waiver, and a waiver by any party hereto of any one or more defaults
shall not operate as a waiver of any future default or defaults,
whether of a like or of a different character. No waiver of any of the
provisions of this Agreement shall constitute waiver of any other
provisions (whether or not similar), nor shall such a waiver
constitute a continuing waiver, unless otherwise expressly provided.
(i) SECTION HEADINGS. Headings contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit,
or extend the scope or intent of this Agreement or any provisions
thereof.
(j) CHOICE OF LAW. This Agreement will be governed by and
construed and enforced in accordance with the laws of the State of
Delaware (without regard to the principles of conflicts of law)
applicable to a contract executed and to be performed in such State.
Each party hereto (i) agrees to submit to personal jurisdiction and to
waive any objection as to venue in the state or federal courts located
in Xxxx County, Illinois, (ii) agrees that any action or proceeding
shall be brought exclusively in such court, and (iii) agrees that
service of process on any party in any such action shall be effective
if made by registered or certified mail addressed to such party at the
address specified herein, or to any panics hereto at such other
addresses as he, she or it may from time to time specify to the other
parties in writing for such purpose. The exclusive choice of forum set
forth in this paragraph shall not be deemed to preclude the
enforcement of any judgment obtained in such forum or the taking of
any action under this Agreement to enforce such judgment in any
appropriate jurisdiction.
(k) NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing and will be deemed to have
been duly given only if delivered personally or by facsimile
transmission or mailed (first class mail postage prepaid), or
overnight express courier (charges prepaid or billed to the account of
the sender) to the parties at the following addresses or facsimile
numbers:
If to TEAM or Merger Sub, to:
TEAM America, Inc.
000 Xxxx Xxxxxx Xxxx Xxxx., Xxxxx 000
Xxxxxxxx, Xxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
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With a copy to:
Xxxxxxx X. Xxxxxx
McGuireWoods LLP
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
If to Company Stockholder:
At his, her or its address set forth on the signature page
hereto or to such other address or fax number as any party
may have furnished to the others in writing in accordance
herewith.
If to Vsource:
Vsource, Inc.
00000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxxx
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
(l) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same document.
(m) SEVERABILITY OF PROVISIONS. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall not in any way be
affected, impaired or invalidated.
9. EFFECTIVENESS. This Agreement shall become effective simultaneously
with the execution and delivery of the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first set forth above.
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TEAM AMERICA, INC.
By:
------------------------------------
Its:
-------------------------------
VSOURCE, INC.
By:
------------------------------------
Its:
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MERCANTILE CAPITAL PARTNERS I, LP, AN
ILLINOIS LIMITED PARTNERSHIP
("MERCANTILE")
By: I. Xxxxxx Xxxxxxx
------------------------------------
Its:
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Address: 0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
XXX
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SCHEDULE I
STOCKHOLDER HOLDINGS
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MERCANTILE 3,387 SERIES 4-A PREFERRED
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