EXHIBIT 2.7
SHAREHOLDER AGREEMENT
by and among
▇▇▇▇▇ ENTERPRISES, INCORPORATED
and
HEALTHPLAN SERVICES CORPORATION
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DECEMBER 18, 1997
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TABLE OF CONTENTS
1. ORGANIZATION AND PURPOSE .......................................... 1
1.1. Formation ................................................... 1
1.2. Name ........................................................ 1
1.3. Scope and Purpose of Business ............................... 1
1.4. Articles of Incorporation and Bylaws ........................ 2
1.5. Registered Office/Location of Facilities .................... 2
1.6. Authorized Capital .......................................... 2
1.7. No Partnership or Joint Venture ............................. 2
2. CAPITAL CONTRIBUTIONS ............................................. 2
2.1. Initial Contributions ....................................... 2
2.2. Method of Payment ........................................... 2
2.3. Lending Commitment .......................................... 2
2.4. Issuance of Shares .......................................... 4
3. VOTING OF SHARES AND GOVERNANCE OF NEWCO .......................... 4
3.1. Number of Directors ......................................... 4
3.2. Voting Agreement ............................................ 4
3.3. Vacancies ................................................... 4
3.4. Removal ..................................................... 4
3.5. Actions by Board of Directors to Follow Shareholder Consent . 5
3.6. Actions by Board of Directors Requiring a Super Majority
Vote ..................................................... 5
3.7. Budget and Business Plans ................................... 7
3.8. Dividends ................................................... 7
3.9. Fiscal Year ................................................. 7
3.10. Books and Records ........................................... 7
3.11. Reports ..................................................... 8
3.12. Severance of Business Relationship Upon Deadlock of Board of
Directors or Investor Shareholders or Upon Change of
Control .................................................. 8
4. PREEMPTIVE RIGHTS, RIGHT OF FIRST REFUSAL, TAG-ALONG RIGHTS ....... 10
4.1. Definitions ................................................. 10
4.2. Preemptive Rights ........................................... 11
4.3. Right of First Refusal ...................................... 12
4.4. Sale of Shares to a Third Party ............................. 13
4.5. Determination of Share Value ................................ 14
4.6. Remedy for Violation ........................................ 15
4.7. Endorsement on Certificates Evidencing Shares ............... 16
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5. REPRESENTATIONS AND WARRANTIES ................................... 16
5.1. Corporate .................................................. 16
5.2. Authority .................................................. 17
5.3. No Violation ............................................... 17
6. OTHER MATTERS .................................................... 17
6.1. Noncompetition; Confidentiality ............................ 17
6.2. HSR Act Filings ............................................ 20
6.3. Subcontract for Existing Call Center Services of HPS ....... 20
6.4. Support Service Contract ................................... 20
6.5. Sykes Call Center Support .................................. 20
6.6. Guarantee of Acquisition Line of Credit .................... 20
7. CONDITIONS PRECEDENT TO OBLIGATIONS .............................. 21
7.1. Representations and Warrants True on the Closing Date ...... 21
7.2. Compliance With Agreement .................................. 21
7.3. Absence of Suit ............................................ 21
7.4. Consents and Approvals ..................................... 22
8. CLOSING .......................................................... 22
8.1. Documents to be Delivered by Sykes and HPS ................. 22
8.2. Organizing Meeting ......................................... 22
9. TERMINATION ...................................................... 22
9.1. Survival of Agreement ...................................... 22
9.2. Termination ................................................ 22
9.3. Consequences of Termination ................................ 23
9.4. Dissolution of Newco Upon Termination ...................... 23
10. FURTHER ASSURANCE ................................................ 23
11. DISCLOSURES AND ANNOUNCEMENTS .................................... 23
12. ASSIGNMENT; PARTIES IN INTEREST .................................. 23
12.1. Assignment ................................................. 23
12.2. Parties in Interest ........................................ 24
13. RESOLUTION OF DISPUTES ........................................... 24
13.1. Arbitration ................................................ 24
13.2. Arbitrators ................................................ 24
13.3. Procedures; No Appeal ...................................... 24
13.4. Authority .................................................. 25
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13.5. Entry of Judgement ......................................... 25
13.6. Confidentiality ............................................ 25
13.7. Continued Performance ...................................... 25
13.8. Tolling .................................................... 25
13.9 Expenses of Arbitration .................................... 25
14. LAW GOVERNING AGREEMENT .......................................... 25
15. AMENDMENT AND MODIFICATION ....................................... 26
16. NOTICE ........................................................... 26
17. EXPENSES ......................................................... 27
17.1. Brokerage .................................................. 27
17.2. Pre-Closing Expenses ....................................... 27
17.3. Other ...................................................... 27
17.4. Costs of Litigation or Arbitration ......................... 28
18. ENTIRE AGREEMENT ................................................. 28
19. COUNTERPARTS ..................................................... 28
20. HEADINGS ......................................................... 28
21. FURTHER DOCUMENTS ................................................ 28
EXHIBITS
Exhibit A ............................ Articles of Incorporation of Newco
Exhibit B ............................................... Bylaws of Newco
Exhibit C ............................................... Loan Agreements
Exhibit D ......................................................... Notes
Pursuant to applicable law, the Company will furnish supplementally any omitted
Exhibit to the Securities and Exchange Commission upon request.
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SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT ("Agreement") is made and entered into on
December 18, 1997, by and among ▇▇▇▇▇ ENTERPRISES, INCORPORATED, a Florida
corporation ("Sykes"), and HEALTHPLAN SERVICES CORPORATION, a Delaware
corporation ("HPS") (Sykes and HPS are sometimes referred to individually as an
"Investor Shareholder" and together with those persons signing from time to time
as a shareholder are referred to individually as a "Shareholder" and
collectively as the "Shareholders").
Upon the formation of Sykes HealthPlan Services, Inc. ("Newco") pursuant to
Section 1.1 below, Newco shall also become a party to this Agreement.
WHEREAS:
A. HPS is a provider of marketing, administration and risk management
services and solutions for health and other benefit programs;
▇. ▇▇▇▇▇ provides information technology outsourcing services,
including information technology support services and information technology
development services and solutions;
▇. ▇▇▇▇▇ and HPS desire to establish a new business venture for the
purpose of providing information technology support services through call
centers for health insurance, managed care and other benefits programs;
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. ORGANIZATION AND PURPOSE
1.1. FORMATION. As soon as practicable following the execution of this
Agreement and pursuant to the terms and conditions of this Agreement, Sykes and
HPS shall organize a new Florida corporation.
1.2. NAME. The name of Newco shall be Sykes HealthPlan Services, Inc.
If such name is unavailable, Sykes and HPS shall promptly agree on another name.
1.3. SCOPE AND PURPOSE OF BUSINESS. The purpose of Newco shall be to
build, own and operate call centers focused on customer services related to the
insurance industry, health care management services and such other health
industry related services as may be approved from time to time by the requisite
vote of the Board of Directors of Newco, and to market and sell such services
throughout the United States.
1.4. ARTICLES OF INCORPORATION AND BYLAWS. The Articles of
Incorporation and Bylaws of Newco shall be substantially in the form of Exhibits
A and B hereto, respectively. Each of the Shareholders shall take, and shall
cause the director or directors of Newco elected by it to take, all actions
necessary to ensure that the Articles of Incorporation and Bylaws of Newco do
not at any time conflict with the provisions of this Agreement.
1.5. REGISTERED OFFICE/LOCATION OF FACILITIES. The administrative
offices of Newco shall first be located at Tampa, Florida.
1.6. AUTHORIZED CAPITAL. The aggregate number of shares which Newco
shall initially have authority to issue shall be Ten Million (10,000,000) shares
of Class A voting common stock having a par value of $.01 per share (the
"Shares") and Two Million (2,000,000) shares of Class B nonvoting common stock
having a par value of $.01 per share.
1.7. NO PARTNERSHIP OR JOINT VENTURE. The parties acknowledge that
Newco, as a newly formed Florida corporation, constitutes an independent and
distinct legal entity. Neither this Agreement nor any other document delivered
in connection herewith, nor any prior agreements, actions or omission shall in
any respect be interpreted, deemed or construed as making any Shareholder a
partner or joint venturer with Newco or any other Shareholder or any of them,
and the parties agree not to make any contrary assertion, contention, claim or
counterclaim in any action, suit or other legal proceeding.
2. CAPITAL CONTRIBUTIONS
2.1 INITIAL CONTRIBUTIONS. At the Closing, Sykes and HPS shall each
subscribe for and make initial capital contributions to Newco of $2,959,200.
2.2. METHOD OF PAYMENT. All payments under this Article 2 shall be made
by wire transfer of immediately available funds to an account designated by the
recipient not less than 48 hours prior to the time for payment specified herein.
2.3. LENDING COMMITMENT.
(a) At the Closing, Sykes and HPS shall each commit to make
available to Newco a term loan in the amount of $9,040,800 which shall be drawn
upon by Newco from time to time in increments of $100,000 (the "Loans"). The
Loans shall require quarterly interest only payments with all outstanding
principal and interest due three (3) years from the date hereof. Such lending
commitment and loan shall be evidenced, and described in further detail, by Loan
Agreements in forms of each Exhibit C hereto (the "Loan Agreements"). and the
related forms of promissory notes of Newco also included in Exhibit D hereto
(the "Notes").
(b) Sykes and HPS shall each fund 50% of the total Loans. All
payments by Newco of principal and interest shall be applied pro rata to the
respective loans from Sykes and HPS. Sykes and HPS further covenant among
themselves that in the event action to collect the Loans becomes necessary or
desirable, Sykes and HPS shall coordinate and cooperate, in good
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faith, to collect the Loans and shall share the net proceeds (after payment of
all costs and expenses of collection, including reasonable attorneys fees)
ratably so that Sykes and HPS each receive simultaneous payment of an amount
that is equal to the ratio of (A) the total amount of indebtedness of Newco
owned to each of them on the Loans, respectively, from time to time, and at each
relevant time, to (B) the aggregate amount of indebtedness of Newco to both of
them on the Loans, from time to time, and at each relevant time until the
aggregate indebtedness of Newco to each of them has been paid in full. Sykes and
HPS shall promptly give written notice to the other of the occurrence of
"default" or "event of default" or any condition or event that, with notice or
lapse of time, or both, would give such party the right to accelerate payment of
any indebtedness of Newco owned to it under any agreement, instrument or
document to which Newco is a party. Sykes and HPS also shall promptly give
written notice to the other if it demands payment of, or takes action to
collect, its Loan. Sykes and HPS covenant among themselves that they shall not
amend their respective Loan Agreements or take any collateral or security for
their Loans without the consent of the other, it being the intention of both
that their Loan Agreement should contain identical provisions to make their
Loans pari passu to the greatest extent possible. Sykes and HPS covenant among
themselves to execute and deliver such other and further documents and
instrument as may be necessary or desirable to implement fully or evidence
further the provisions of this Section 2.3.(b).
(c) The parties acknowledge that if either Investor Shareholder
defaults in its obligations to fund its share of the Loans, as provided in
subsections (a) and (b) above, and such borrowing has previously been approved
by Newco's Board of Directors pursuant to the terms of the annual Budget adopted
in accordance with Section 3.6, then the nondefaulting Investor Shareholder
shall have the right, but not the obligation, to fund the shortfall pursuant
to a senior convertible note issued by Newco and Newco shall have the right to
borrow from the nondefaulting Investor Shareholder upon the following terms and
conditions: (i) the loan shall be due and payable on demand; (ii) Newco shall
pay interest on the principal balance at five percent (5%) in excess of the
30-day LIBOR Rate; (iii) the senior convertible note (which shall be
subordinate to Newco's senior bank credit facility) shall be senior in payment
and priority to all Loans payable to either Investor Shareholder; (iv) at the
option of the nondefaulting Investor Shareholder, the senior convertible note
shall be convertible, in whole or in part, into Shares, at a conversion price
per share equal to the original purchase price paid for Shares at Closing
(determined by dividing the initial capital contributions from the Investor
Shareholders to Newco by the total number of Shares issued to the Investor
Shareholders, with an appropriate adjustment for any stock splits) if the
defaulting Investor Shareholder does not refinance the senior convertible note
(i.e., fund its pro rate share of all Loans so that the senior convertible note
is repaid by Newco), within six months of the date funds are advanced by the
nondefaulting Investor Shareholder; and (v) if any Investor Shareholder converts
more than $5 million (in the aggregate) of senior convertible notes to Shares,
the super majority voting requirements (including Sections 3.5 and 3.6), voting
agreement concerning election of directors (including Section 3.2, 3.3 and 3.4)
and all other provisions of this Agreement designed to give shared control of
Newco to each Investor Shareholder shall no longer apply, thereby providing,
among other things, that the nondefaulting Investor Shareholder shall have
control of Newco's Board of Directors. The Shareholders and Newco shall have
the right to implement this subsection (c) and Newco shall have the right to
borrow pursuant to the senior convertible notes contemplated
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herein, without any further approval or action by any Shareholder or any
director nominated or designated by the defaulting Investor Shareholder, and the
Shareholders covenant among themselves to take such further actions and to
execute and deliver such other and further documents and instruments as may be
necessary or desirable to implement fully or evidence further the provisions of
the Section 2.3(c).
(d) The parties acknowledge and confirm that Sykes and HPS are arm's
length lenders with the respect to the Loans. The parties acknowledge that
Sykes and HPS shall exercise their respective remedies under the Notes and Loan
Agreements to collect the Loans if Newco defaults.
2.4 ISSUANCE OF SHARES. In exchange for the initial capital contribution
described in Section 2.1, Sykes and HPS each shall be issued 5,000,000 Shares
at the Closing.
3. VOTING OF SHARES AND GOVERNANCE OF NEWCO
3.1 NUMBER OF DIRECTORS. Each Shareholder agrees to vote its Shares and
all Shares as to which the Shareholder is entitled to exercise voting power at
any meeting of shareholders in favor of a resolution fixing the number of
directors of Newco at two (2), or such greater number as Sykes and HPS may
mutually agree from time to time.
3.2 VOTING AGREEMENT. Each Shareholder agrees to vote its Shares in favor
of one individual (or if the number of directors is increased to more than two,
one-half of the total directors at each relevant time) who shall be nominated
as a director by Sykes (the "Sykes Directors") and in favor of one individual
(or if the number of directors is increased to more than two, one-half of the
total directors at each relevant time) who shall be nominated as a director
by HPS (the "HPS Directors").
3.3 VACANCIES. In the event of a vacancy on the Board of Directors with
respect to a Sykes Director, each Shareholder agrees to vote it Shares and all
Shares as to which the Shareholder is entitled to exercise voting power for any
individual nominated in writing by Sykes; and in the event of a vacancy on the
Board of Directors with respect to a HPS Director, each Shareholder agrees to
vote its Shares as to which the Shareholder is entitled to exercise voting power
for an individual nominated in writing by HPS. Until any such vacancy is filled,
the Board of Directors shall not take any action unless the Shareholder with the
right to fill the vacancy consents in writing.
3.4. REMOVAL. Newco agrees to call meetings of its Board of Directors to
be held at least quarterly. If at any time between meetings of Shareholders of
Newco, Sykes or HPS shall request the right to remove one or more of the Sykes
Directors or one or more of the HPS Directors, respectively, which were
originally nominated by such party or to elect or appoint to the Board of
Directors a nominee to which it is entitled pursuant to this Article 3, each
party hereto shall use its best efforts to bring about the immediate removal of
such director or the election or appointment of such nominee to the Board of
Directors, as the case may be.
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3.5 ACTIONS BY BOARD OF DIRECTORS TO FOLLOW SHAREHOLDERS CONSENT. The
Board of Directors shall not take any of the following actions, except upon the
prior affirmative vote of not less than 90% of the total number of the then
outstanding shares of the capital stock of Newco entitled to vote thereon, or
with the written consent of such Shareholders:
(a) sale of all or substantially all of the assets of Newco or any
of its subsidiaries;
(b) any material acquisition (including acquisition of stock or
assets) of any other company, business or enterprise;
(c) any merger or consolidation involving Newco or any of its
subsidiaries or the dissolution or liquidation of Newco or any of its
subsidiaries;
(d) any payment of any dividend in cash or property other than
cash by Newco or redemption of any Shares;
(e) any recapitalization, restatement of assets, reduction of
capital or other change in the capitalization of Newco or its subsidiaries;
(f) any issuance or reissuance or agreement to issue or reissue any
capital stock of Newco or any option or warrant for, or any security
convertible into, any capital stock of Newco;
(g) any filing of any registration statement of the Securities Act of
1933, as amended;
(h) the amendment to the Articles of Incorporation or Bylaws of
Newco;
(i) the acquisition by Newco of material assets unrelated to the
business described in Section 1.3 of this Agreement; or
(j) engaging in a material line of business other than the business
described in Section 1.3 of this Agreement.
3.6 ACTIONS BY BOARD OF DIRECTORS REQUIRING A SUPER MAJORITY VOTE. The
Board of Directors shall not take any of the following actions, except upon the
prior affirmative vote of all of the directors:
(a) approval or revision of the annual Budget in form acceptable to
the Board of Directors setting forth the estimated receipts and expenditures of,
capital expenditures of, and reasonable reserves for working capital for, Newco
for the succeeding calendar year;
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(b) capital improvements or expenditures (including capitalized
leases and interest costs) in excess of $50,000 which are not included in the
Budget approved by the Board of Directors:
(c) filing of bankruptcy;
(d) any issuance, reissuance or redemption by Newco of any shares of
its capital stock or securities convertible into or exchangeable for shares of
such stock, including any options, warrants or other rights to purchase or
otherwise acquire any shares of such stock or securities convertible into or
exchangeable for such stock;
(e) any declaration of dividends by Newco;
(f) the selection of corporate officers of Newco and the determination
of the compensation and benefits payable to each such officer;
(g) any proposal for Newco to (i) create, assume or incur, or become
liable in respect of, any indebtedness in excess $100,000 per obligation,
except for accounts payable under the relevant lease would exceed $100,000,
(iii) acquire the securities of, make any other investment in, any other
person, or (iv) make loans, provide guarantees or otherwise extend or pledge
credit to others with respect to any such loan, guarantee, extension or pledge,
except endorsements and extensions of credit in the ordinary course of
operations of Newco;
(h) any proposal for Newco to confess any judgment against Newco or
create, assume, incur, or suffer to be created, assumed or incurred or to
exist, any mortgage, pledge, encumbrance, lien or charge of any kind (each, a
"Lien") upon any of the assets or properties of Newco, or to acquire or hold or
agree to acquire or hold any such assets or properties subject to any such Lien
if such Lien is proposed in connection with any proposal referred to in
paragraph (g) above except in the normal course of business and in
accordance with the Budget approved by the Board of Directors;
(i) any proposal for Newco to sell or transfer any assets of Newco
valued in excess of $10,000 in one or a series of related transactions not in
the ordinary course of business;
(j) any proposal to enter into any contract, obligation, commitment,
capital investment, or any other program involving aggregate expenditures
reasonably estimated to be in excess of $200,000;
(k) any proposal for Newco to acquire the capital stock or assets of
another entity;
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(l) any proposal to select or change Newco's independent auditors,
legal counsel or any outside consultant which shall be paid more than $75,000
during any fiscal year;
(m) make a gift, loan, advance or political contribution to any
person, except loans and advances to employees of up to $2,500 for ordinary
and necessary business expenses;
(m) any decision whether to redeem or to purchase any Shares pursuant
to the Right of First Refusal contained in Section 4.3 of this Agreement or
the assignment of such right to a third party. (In deciding whether to exercise
a Right of First Refusal with respect to a disposing Investor Shareholder's
Shares, any directors designated by, or who is an officer, director, employee
or agent of the disposing Investor Shareholder, shall abstain from voting to
the extent necessary to avoid a conflict of interest and such director's
affirmative vote shall not be necessary to approve such action); and
(o) determination of the Determined Value of Shares pursuant to
Section 4.5 of this Agreement.
3.7 BUDGET AND BUSINESS PLANS. Before the beginning of each fiscal year
management of Newco shall prepare and present to the Board of Directors of
Newco for its approval an annual budget and multi-year business plans for Newco
in accordance with timing, format and instructions to be determined by the
Board of Directors of Newco. Newco's management shall use their reasonable
good faith efforts to manage Newco's business pursuant to any business plan
or budget approved by the Board of Directors, as it may be revised from time
to time with approval of the Board.
3.8 DIVIDENDS. Sykes and HPS currently anticipate that all of Newco's
earnings will be retained for development and expansion of Newco's business
and acknowledge and agree that Newco does not anticipate paying any dividends
in the foreseeable future. Notwithstanding the foregoing, dividend policy
shall be vested in the Board of Directors as provided in this Agreement.
3.9 FISCAL YEAR. The fiscal year of Newco shall end on December 31 of
each year. The first fiscal year of Newco shall commence upon completion of the
organization of Newco and shall end on the next succeeding December 31.
3.10 BOOKS AND RECORDS. The Board of Directors of Newco, in
consultation with its auditors, shall establish such books, records and accounts
for Newco as are customary of corporations similarly situated and as accurately
reflect the financial condition and position of Newco in accordance with
generally accepted accounting principles. The books and records of Newco shall
be subject to inspection by any Shareholder during ordinary business hours.
3.11 REPORTS. Newco shall prepare and provide the Shareholders with
unaudited monthly and quarterly financial statements (including a balance sheet
and profit and loss statement), audited annual financial statement and such
other reports as the Shareholders shall reasonably request. Newco's
management shall consult regularly with the Investor Shareholders
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and provide the Investor Shareholders' designated representatives reasonable
access to all books and records of Newco.
3.12 SEVERANCE OF BUSINESS RELATIONSHIP UPON DEADLOCK OF BOARD OF
DIRECTORS OR INVESTOR SHAREHOLDERS. In the event that the Board of Directors or
Investor Shareholders are deadlocked on a material matter, and such deadlock
continues for the longer of (a) three (3) consecutive meetings (including
special meetings) or (b) ninety (90) days, either Sykes or HPS may institute
a severance of business relationship as provided in this Section 3.12.
(a) NOTICE OF INTENT TO PURSUE SEVERANCE. Sykes or HPS may send a
Deadlock Notice to Newco and the other Investor Shareholder proposing a
resolution of the deadlock and providing notice that if the proposal is not
accepted by the other Investor Shareholder within twenty (20) days, Sykes or
HPS may institute a severance of business relationship as provided below. A
"Deadlock Notice" means a written notice to be delivered to Newco and each
other Investor Shareholder by Sykes or HPS which shall state that a deadlock
exists among the Board of Directors or the Investor Shareholders concerning a
material issue, and shall describe Sykes or HPS's proposed resolution of the
deadlock, and shall provide notice that unless the other Investor Shareholder
accepts the proposal within twenty (20) days, Sykes or HPS may institute the
severance of business relationship procedures pursuant to this Section 3.12.
(b) INITIATION OF SEVERANCE. If the deadlock continues to exist for
more than twenty (20) days after mailing of the Deadlock Notice provided in
Section 3.12.(a), for a period of thirty (30) days thereafter, Sykes or HPS, if
it wishes to sever its relationship in Newco with the other Investor
Shareholder, shall notify the other and Newco in writing (the "Severance
Notice") stating that it wishes the severance to take place. If, however,
neither Investor Shareholder delivers a severance notice within thirty (30) days
following the Investor Shareholder's failure to accept the proposed resolution,
then such severance opportunity will lapse as though the Deadlock Notice had
never been given.
(c) VALUATION OF NEWCO. Within five (5) days from the mailing of the
Severance Notice, Sykes and HPS shall mutually select an independent investment
banking firm (with whom neither Sykes nor HPS has an existing relationship at
such time) to determine the fair market value price per share of Newco as a
stand-alone entity (the "Determined Price Per Share"). If the parties cannot
agree upon the selection of such independent investment banking firm, an
investment banking firm who has not previously acted as a lead or co-lead on any
offering for either of the parties or been retained to give investment or
acquisition assistance to either of the parties shall be selected by Newco's
independent outside legal counsel. The expenses relating to the engagement of
such firm shall be shared equally by Sykes and HPS. Sykes and HPS shall have
thirty (30) days after the receipt of the Determined Price Per Share (the
"Negotiation Period") in which to negotiate a mutually agreeable outcome in
which one Investor Shareholder shall sell to the other, all of its Shares at an
agreed upon price per share (the "Severance Price"). In the event that Sykes and
HPS are not able to reach an agreeable outcome during the Negotiation Period,
Sykes and HPS shall then have five (5) business days in which to submit a bid (a
"Severance Bid") containing the price per Share which the bidding Investor
Shareholder is willing to pay for all of the other Investor Shareholder's
Shares. Such
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Serverance Bids shall be submitted to the outside counsel of Newco within five
(5) business days from the end of the Negotiation Period. In addition, each
Severance Bid must be for a price per share which is at least equal to ninety
percent (90%) of the Determined Price Per Share and must be an all cash,
non-contingent, binding offer to purchase all, but not less than all of the
Shares of the other Investor Shareholder. If, however, neither Investor
Shareholder submits a Serverance Bid within such five (5) day period, then such
severance opportunity will lapse as though the Deadlock Notice had never been
given. At the end of such five (5) day period, Newco's outside counsel shall
notify the Investor Shareholders of the highest bid. Thirty (30) days after the
submission of the Severance Bids, the Investor Shareholder which submitted the
highest Severance Bid shall purchase and the other Investor Shareholder shall
sell all of the other Investor Shareholder's Shares at the price stated in the
highest Severance Bid.
(d) CLOSING. The purchase and sale of Shares as described above shall
be closed in Newco's principal business office and all appropriate documents
will be executed and delivered to effect the severance of the relationship and
the sale of the Shares, free and clear of all liens, charges and encumbrances.
The Severance Price shall be paid by the purchasers to the sellers in
immediately available funds.
(e) CONTINUED OPERATION. Newco shall continue to operate during any
period of deadlock or dispute and during the continuance of any default under
this Agreement (or alleged default), and in no event shall a deadlock, dispute
or allegation of default interfere with the right of the directors and officers
of Newco to operate within the scope of business activity contemplated by
Section 1.3 of this Agreement; provided, HOWEVER, that no action may be taken by
the directors and officers that would prejudice the outcome of any matter in
deadlock, any dispute or any allegation of default, except with the consent of
100% of the members of the Board of Directors; provided, HOWEVER, that the
service activities (and all related marketing, administrative, and other
activities) of Newco in accordance with the Business Plan and Budget shall not
be stopped or delayed, except with the consent of 100% of the members of the
Board of Directors.
(f) ONLY EXERCISE IF SUBSTANTIAL BUSINESS DISAGREEMENT. The parties
may only exercise the Severance Provisions of this Section 3.12 if the Investor
Shareholders have a substantial disagreement regarding the management or future
direction of Newco. Examples of areas of potential "substantial disagreements"
include, without limitation, (i) whether Newco should go public, (ii) whether
Newco should be sold, (iii) whether Newco should make a material acquisition
(iv) termination of a senior executive, and (v) whether to approve an annual
business plan and budget. After delivery of a deadlock notice, the potential
Severing Shareholder shall thereafter be available, upon reasonable prior
notice, to meet with the Responding Shareholder (and in the case of ▇▇▇▇▇ or
HPS, they shall make their respective chairmen and chief executive officers
available to meet with each other) and discuss in good faith the potential
resolution to the substantial disagreement. For a period of sixty (60) days
following the expiration of such thirty (30) days prior written notice period,
either Investor Shareholder may thereafter institute the Severance of Business
Relationship as provided under subsection (b) of this Section 3.12.
Notwithstanding the foregoing, the Responding Shareholder may prevent the
Severance from occurring by accepting and agreeing to the resolution of the
9
substantial disagreement proposed by the Severing Shareholder and agreeing to
take such further action as the Severing Shareholder reasonable requests to
implement such resolution. (Such agreement by the Responding Shareholder must be
made by written notice delivered prior to the time that the Responding
Shareholder is otherwise required to elect to buy or sell pursuant to subsection
(c) of this Section 3.12.
(g) APPLICABILITY OF ARBITRATION. The right to initiate a severance of
business relationship as described herein shall supersede the agreement to
arbitrate a dispute contained in Section 13 of this Agreement, except that the
parties shall arbitrate any dispute concerning whether a particular dispute
constitutes a "deadlock on a material matter" as described herein.
(h) REPAYMENT OF LOANS/RELEASE OF GUARANTEES. In the event of a
severance of Business Relationship under this Section 3.12, at the Closing the
purchasing Shareholder shall cause Newco to repay in full all Loans from the
selling Shareholder and shall cause the selling Shareholder to be released from
all guarantees of Newco's indebtedness.
4. PREEMPTIVE RIGHTS, RIGHT OF FIRST REFUSAL, TAG-ALONG RIGHTS
4.1 DEFINITIONS. For purposes of this Article 4, the following terms
shall have the following meanings:
(a) "DISPOSE OF" means any transfer or assignment, whether voluntary
or involuntary to a person other than a Permitted Transferee, whether by sale,
exchange, pledge, encumbrance, judicial attachment, contribution to a trust or
other entity, or otherwise. "Dispose of "shall not include: (i) a pledge of
shares to a responsible financial institution in the United States, as
collateral security for a bona fide loan made by such financial institution,
provided that such financial institution agrees in writing that any disposition
of the pledged shares for the account of the pledging Shareholder in the event
of any default by such Shareholder shall be subject to the obligations imposed
on such Shareholder by this Agreement, including but not limited to the right of
first refusal granted to Newco and the other Shareholders hereunder, or (ii) a
disposition to a wholly owned subsidiary of a Shareholder, so long as such
transferees agree in writing to be bound by the terms of this Agreement.
(b) "DISPOSING SHAREHOLDER" means a Shareholder who desires to Dispose
of all or a part of the shares owned by the Shareholder.
(c) "FIRST REFUSAL NOTICE" means the written notice to be mailed to
Newco and ▇▇▇▇▇ and HPS by the Disposing Shareholder which shall describe in
adequate detail the terms and conditions offered by, and the identity of, a bona
fide prospective purchaser, lender or other transferee to whom Disposing
Shareholder is considering Disposing of all or a part of the Disposing
Shareholder's shares, which notice shall include a complete copy of the written
offer of such purchaser, lender or other transferee.
(d) "FIRST REFUSAL PRICE" means the price agreed upon between the
Disposing Shareholder and the party or parties electing to exercise a right of
first refusal under the terms
10
hereof. In the absence of any agreed upon price, the term shall mean a purchase
or redemption on terms and conditions substantially the same as those described
in the First Refusal Notice given to the other parties hereto in accordance with
the term of this Agreement. In the event such notice describes terms and
conditions that are unique to proposed transaction and cannot readily be assumed
by other parties, e.g., an exchange of shares in return for property or
services, or in the event of a proposed gift, in the absence of an agreed upon
price, the First Refusal Price shall be the Determined Value as provided in
Section 4.5.
(e) "PERMITTED TRANSFEREE" means a wholly owned subsidiary of a
Shareholder, provided, however, that no person shall become a "Permitted
Transferee" without first agreeing to be bound by the terms of this Agreement in
a manner satisfactory to Newco's Board of Directors.
(f) "PRO RATA" means with respect to any right to acquire shares
hereunder, pro rata based upon the number of shares owned by those Shareholders
(assuming more than two parties are Shareholders under this Agreement) who shall
duly exercise their option to acquire any shares offered hereunder. Thus, if
only two Shareholders, each owning ten percent (10%) of Newco's shares, should
elect to exercise their right of first refusal granted in this Agreement, each
of them would have the right to purchase fifty percent (50%) of the shares
available for purchase. "Pro Rata" means with respect to Tag-along Rights, pro
rata based on the ratio of the shares proposed to be sold in the transaction to
the total number of shares then outstanding.
4.2 PREEMPTIVE RIGHTS.
(a) RIGHT OF FIRST REFUSAL FOR PURCHASE OF STOCK SOLD BY NEWCO.
If at any time Newco shall propose to sell any additional securities (including
any stock held in the treasury and securities convertible into additional
stock), Newco shall give the Investor Shareholders a written notice which shall
describe in adequate detail the terms and conditions on which the Company
proposes to sell additional securities, including, if applicable, conditions
offered by, and the identity of, a bona fide prospective purchaser (the "Company
First Refusal Notice") respecting such securities, offering them for disposition
at the First Refusal Price.
(b) TIME FOR ELECTION TO PURCHASE. Any Investor Shareholder
electing to purchase any of the securities so offered for purchase shall notify
Newco and the other Investor Shareholder of that election within the time period
for elections set forth in the Newco First Refusal Notice, which shall be a
reasonable period of time under the circumstances after the date of mailing of
the Company First Refusal Notice. Such notice shall specify the number of
securities that the Shareholder is willing to purchase. In the event that any
electing Investor Shareholder is unwilling to purchase the entire Pro Rata
portion of securities allocable to such Investor Shareholder for purchase, the
portion rejected shall be allocated to the other electing Investor Shareholder
if and to the extent it has indicated in its notice that it is willing to
purchase more than what would be their Pro Rata portion if all Shareholders
elected to exercise in full their right of first refusal. If an election to
purchase shall not have been timely made as to the securities, or any portion
thereof, offered for purchase, the portion of such securities as to which a
right of refusal has not been exercised hereunder may, during a period of sixty
(60) days after
11
the expiration of the first refusal period granted herein to the Investor
Shareholders, be sold upon substantially the same terms and conditions described
in the Company First Refusal Notice previously given, provided that the
purchaser executes this Agreement and agrees to be bound by the terms hereof.
If, however, such securities shall not have been so sold, in whole or in part,
within that sixty (60) day period, then a new Company First Refusal Notice must
be sent hereunder to ▇▇▇▇▇ and HPS in the event that Newco wishes to sell such
securities.
(c) CLOSING OF PURCHASE. If ▇▇▇▇▇ or HPS elects to purchase all or any
portion of the securities offered by Newco for purchase, the purchase shall be
closed and the securities delivered free and clear of all liens and
encumbrances, (other than any purchase money liens taken back by Newco at the
closing, if applicable) at a closing to be held at the principal offices of
Newco within (30) days after the expiration of the first refusal period granted
herein to the Investor Shareholders.
4.3 RIGHT OF FIRST REFUSAL
(a) RIGHT OF FIRST REFUSAL FOR REDEMPTION OR PURCHASE OF SHARES
DISPOSED OF BY SHAREHOLDERS. If at any time any Shareholder shall desire or be
require to Dispose of all or any of the shares owned by such Shareholder, the
Disposing Shareholder shall give Newco, ▇▇▇▇▇ and HPS, a First Refusal Notice
respecting those shares offering them for disposition at the First Refusal
Price. If Newco, within twenty (20) days after the date of mailing of the First
Refusal Notice, does not elect to redeem all of the shares offered for
redemption or purchase in accordance with the terms of this Agreement, then for
an additional twenty-five (25) days, the Investor Shareholders shall have the
option of purchasing the remaining shares offered for disposition, Pro Rata, at
the First Refusal Price. If the Investor Shareholders do not elect to purchase
all the remaining shares, the Board of Directors (exclusive of any Director who
is designated by, or who is an officer, director, employee or any agent of, the
Disposing Shareholder or its Affiliate), acting on behalf of Newco, may assign
the right to purchase the remaining shares at the First Refusal Price to one or
more third parties provided that such third parties pay the First Refusal Price
in cash and agree to execute a shareholder agreement acceptable to Newco and
Non-disposing Shareholders and agree to be bound by the terms hereof.
(b) TIME FOR ELECTION TO REDEEM OR TO PURCHASE. Newco, and/or ▇▇▇▇▇
and/or HPS, and/or any assignee of Newco who elects to redeem or to purchase any
of the Shares so offered for redemption or purchase shall notify the Disposing
Shareholder, Newco and all other Shareholders of that election within twenty
(20) days after the date of mailing of the First Refusal Notice if the electing
party is Newco, or within forty-five (45) days after such date of mailing if any
Investor Shareholder or an assignee of Newco. Such notice shall specify the
number of shares that the sender is willing to purchase. In the event that any
electing Investor Shareholder is unwilling to purchase the entire Pro Rata
portion of shares allocable to such Investor Shareholder for purchase, the
portion rejected shall be allocated among the other electing Investor
Shareholder if and to the extent it has indicated in its notice that it is
willing to purchase more than what would be its Pro Rata portion if both
Investor Shareholders elected to exercise in full their right of first refusal.
If an election to redeem or to purchase shall not have been timely made, either
by Newco, and/or by the Investor Shareholders, and/or by any
12
assignees of Newco, or any combination of the foregoing, as to all (and not less
than all) the shares offered for redemption or purchase, such shares may, during
a period of one hundred twenty (120) days after the expiration of the first
refusal period granted herein, be Disposed of to the purchaser or other
transferee named in, and upon substantially the same terms and conditions
described in, the First Refusal Notice previously given the other parties,
provided that the transferee executes this Agreement and agrees to be bound by
the terms hereof. If, however, such shares shall have not been so Disposed of,
in whole or in part, and the certificates therefor presented for transfer within
that one hundred twenty (120)-day period, then such shares shall again become
restricted as though they had never been offered to Newco or to the Investor
Shareholders in accordance with this Agreement. No Shareholder shall dispose of
shares without first complying with the Right of First Refusal. Shareholders
other than Investor Shareholders shall have no right to purchase shares pursuant
to this Right of First Refusal, except in the capacity as assignor of Newco.
(c) CLOSING OF REDEMPTION OR PURCHASE. If Newco, and/or ▇▇▇▇▇ and/or
HPS and/or any assignee(s) of Newco elect to purchase collectively all (and not
less than all) the shares offered for redemption or purchase, the redemption
and/or purchase shall be closed and the Disposing Shareholder's shares offered
for redemption or purchase shall be delivered free and clear of all liens and
encumbrances (other than any purchase money liens taken back by the Disposing
Shareholder at the closing, if applicable), at a closing to be held at the
principal offices of Newco within thirty (30) days after the expiration of the
first offer period granted herein to the Investor Shareholders.
4.4 SALE OF SHARES TO A THIRD PARTY.
(a) TAG-ALONG RIGHTS. If, at any time, ▇▇▇▇▇ or HPS (the "Disposing
Shareholders") propose to sell shares to any one or more third parties who are
not, and following such sale will not be, a wholly owned subsidiary of an
Investor Shareholder (a "Third Party"), the other Investor Shareholder shall
have the right to participate (a "Tag-Along Right") in such sale with respect to
any shares, including any shares issuable upon exercise of any vested options or
warrants (if any) held by such Investor Shareholder, on a Pro Rata basis for the
same consideration per Share and otherwise on the same terms as the Disposing
Shareholders. If circumstances occur which give rise to the Tag-Along Right,
then the Disposing Shareholder shall give written notice to Newco and the other
Investor Shareholder, providing the particulars of the proposed sale to the
Third Party and advising such other Investor Shareholder of its Tag-Along
Rights. This notice shall not be given until the expiration of all rights of
First Refusal under Section 4.3. The other Investor Shareholder may exercise its
Tag-Along Right by written notice to Newco and the Disposing Shareholder within
twenty-five (25) days of the date of mailing of the Disposing Shareholder's
notice stating the number of shares that it wishes to sell, up to the maximum
number permitted herein. If any Investor Shareholder gives written notice
indicating that such Investor Shareholder wishes to sell, such Investor
Shareholder shall be obligated to sell that number of shares specified in its
written acceptance notice upon the same terms and conditions as the Disposing
Shareholder is selling to the Third Party and shall not be subject to the
requirement of Section 4.3. The Tag-Along Right provided in this Section 4.4
shall be in addition to the Right of First Refusal provided in Section 4.3 and
shall not relieve
13
the Disposing Shareholder of the obligation to provide the First Refusal Notice
provided herein. No Shareholder, other than an Investor Shareholder, shall have
any Tag-Along Right.
(b) DRAG-ALONG RIGHTS. If, at any time, any Investor Shareholder (the
"Disposing Shareholder") proposes to sell shares to a Third Party, such
Shareholder shall, upon written notice to the Company and the other Shareholders
given at least twenty-five (25) days prior to the proposed sale, have the right
to require each other Shareholder, other than an Investor Shareholder, to
participate (a "Drag-Along Right") in such sale with respect to any shares,
including any shares issuable upon exercise of any vested options, which are
held by any such Shareholder corresponding to the relationship of the aggregate
number of such shares to be sold by the Shareholders to the total number of
shares outstanding for the same consideration per Share and otherwise on the
same terms as the Disposing Shareholder.
(c) COORDINATION WITH OPTIONS. For purposes of Section 4.4. (b), to
the extent that Shares issuable upon exercise of a vested option are to be sold
pursuant to the exercise of a Drag-Along Right, the holders of such options or
securities shall not be required to exercise their options or convert their
securities, as the case may be, until all conditions to the commitment by the
Third Party to purchase the shares into which such options are exercisable or
such securities are convertible pursuant to the exercise of a Drag-Along Right
have been satisfied or waived.
4.5 DETERMINATION OF SHARE VALUE. Whenever the Determined Value of shares
is required to be determined hereunder, the Determined Value shall be agreed
upon by the holder of the shares and Newco within ten (10) days following the
expiration of the applicable notice period. If the interested Shareholders and
Newco are unable to agree upon the Determined Value within such period of time,
Newco shall promptly select a firm experienced in valuing businesses similar to
Newco's business and shall promptly notify the interested Shareholders of its
selection. The interested Shareholders shall have ten (10) days after the
receipt of such notification to accept the firm selected by Newco or to select
another firm experienced in valuing businesses similar to Newco's. If the
interested Shareholders accept the firm selected by Newco, (i) such firm shall
promptly provide to Newco and the interested Shareholders its estimate of the
Determined Value, whereupon such estimate shall be the Determined Value, and
(ii) Newco shall pay the fees charged by such firm. If the interested
Shareholders do not accept the firm selected by Newco, such firm and the firm
selected by a majority of the interested Shareholders shall each promptly submit
to Newco, the interested Shareholders and each other its estimate of the
Determined Value. If the lower of the two estimates is greater or equal to
ninety percent (90%) of the higher of the two estimates, the average of the two
estimates shall be the Determined Value. If the lower estimate is less than
ninety percent (90%) of the higher estimate, the two firms shall select a third
firm experienced in valuing businesses similar to Newco's, which firm shall
select from two estimates the estimate that is closet to such third firm's
estimate of the Determined Value, whereupon such selected estimate shall be the
Determined Value. In the event that a majority of the interested Shareholders do
not accept the firm selected by Newco, each of Newco and the interested
Shareholders (Pro Rata among them based on the relative number of shares owned
by each) shall pay the fees charged by the firm selected by it or them.
14
Newco and the interested Shareholders (Pro Rata among them based on the relative
number of shares owned by each) shall share equally the fees charged by the
third firm. The Determined Value shall be determined as of the last day of the
month preceding the date on which the right to purchase the shares arose. In no
event shall the Determined Value reflect a discount for minority interests. The
parties intend that the Determined Value per share shall be equal to the
Determined Value of Newco divided by the total number of shares outstanding
(with reasonable and appropriate adjustments for any vested stock options where
the exercise price of the option is less than the fair market value of the
shares). The Determined Value of shares issuable upon exercise of a vested
option shall be equal to the Determined Value of the underlying shares, less the
exercise price of such option.
4.6 REMEDY FOR VIOLATION. In the event that any person Disposes of any
shares in violation of any of the provisions of this Agreement, such disposition
shall be void. In the event any restriction on transfer herein shall be held
invalid, Newco and the other Shareholders shall have the right to redeem or
purchase, as the case may be, all or any shares disposed of in violation of the
invalidated restrictions from the then holder thereof (a) at the price and on
the terms on which such shares were acquired by such holder, if such shares were
acquired by the holder in a purchase transaction, or (b) at the election of the
redeeming or purchasing parties, or in the case of a transaction that is unique
or the terms of which cannot readily be assumed by other parties, at the
Determined Value of such shares. The rights given by this paragraph shall accrue
first to Newco and then, Pro Rata, to the Investor Shareholders and then, Pro
Rata to the other Shareholders, and then to any assignee(s) of Newco. Newco
shall notify the Shareholders promptly of the final judgment holding the
transfer restriction invalid, and shall have one hundred twenty (120) days after
the date of mailing of such notice to elect to exercise its redemption option by
mailing written notice of such election to the holder of the shares and all the
shares available for redemption or purchase hereunder, each Shareholder shall
have sixty (60) days after the date of mailing of Newco's initial notice to
notify the holder of the shares, Newco and all other Shareholders of such
Shareholder's election to purchase all or any party of such Shareholder's Pro
Rata portion of the shares. If the other Shareholders do not elect to purchase
all the remaining shares, Newco may assign the right to purchase all or any part
of the remaining shares to one or more third parties provided that such third
parties agree to execute this Agreement and agree to be bound by the terms
hereof.
4.7 ENDORSEMENT ON CERTIFICATES EVIDENCING SHARES. Each certificate
representing Shares now or hereafter held by Shareholders or their transferees
and successors, shall be stamped with a legend in substantially the following
form:
"The certificate represents Shares, the sale, disposition, pledge,
encumbrance or other transfer of which is subject to limitations and
restrictions (including without limitation, certain rights of first refusal
and mandatory purchase and sale obligations), and the voting of which is
subject to agreements and restrictions, a full statement of which will be
furnished by Newco to any Shareholder upon request and without charge."
15
5. REPRESENTATIONS AND WARRANTIES
▇▇▇▇▇, with respect to ▇▇▇▇▇, makes the following representations and
warranties to HPS, and HPS with respect to HPS, makes the following
representations and warranties to ▇▇▇▇▇, each of which, in any case, is true and
correct on the date hereof, shall remain true and correct to and including the
Closing Date, shall be unaffected by any investigation heretofore or hereafter
made by ▇▇▇▇▇ or HPS, as the case may be, or any knowledge of ▇▇▇▇▇ or HPS, as
the case may be, other than as specifically disclosed in the Schedules to this
Agreement, and shall survive the Closing of the transactions provided for
herein. The term "Company" as used in this Agreement, means either ▇▇▇▇▇ or HPS,
as the case may be.
5.1 CORPORATE.
(a) ORGANIZATION. ▇▇▇▇▇ is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida. HPS is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
(b) CORPORATE POWER. Company has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its business as
and where such is now being conducted, to enter into this Agreement and the
other documents and instruments to be executed and delivered by it pursuant
hereto and to carry out the transactions contemplated hereby and thereby.
5.2 AUTHORITY. The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by Company pursuant
hereto and the consummation of the transactions contemplated hereby and thereby
have been duly authorized by the Board of Directors of the Company. No other or
further corporate act or proceeding on the part of Company is necessary to
authorize this Agreement or the other documents and instruments to be executed
and delivered by Company pursuant hereto or the consummation of the transactions
contemplated hereby and thereby. This Agreement constitutes, and when executed
and delivered, the other documents and instruments to be executed and delivered
by Company pursuant hereto will constitute, valid binding agreements of Company,
enforceable in accordance with their respective terms, except as such may be
limited by bankruptcy, insolvency, reorganization or other laws affecting
creditors' rights generally, and by general equitable principles.
5.3 NO VIOLATION. Neither the execution and delivery of this Agreement or
the other documents and instruments to be executed and delivered by Company
pursuant hereto, nor the consummation by Company of the transactions
contemplated hereby and thereby (a) will violate any statue or law or any rule,
regulation, order, writ, injunction or decree of any court or governmental
authority, (b) except for applicable requirements of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of ▇▇▇▇ (▇▇▇ "▇▇▇ ▇▇▇"), will require any
authorization, consent, approval, exemption or other action by or notice to any
court, administrative or governmental agency, instrumentality, commission,
authority, board or body, or (c) will violate or conflict with, or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute
16
a default) under, or will result in the termination of, or accelerate the
performance required by, or result in the creation of any Lien upon any of the
assets of Company, under any term or provision of the Articles of Incorporation
or Bylaws of Company or of any contract, commitment, understanding, arrangement,
agreement or restriction of any kind or character to which Company is a party or
by which Company or any of its assets or properties may be bound or affected.
6. OTHER MATTERS
6.1 NONCOMPETITION; CONFIDENTIALITY. Subject to the Closing, and as an
inducement to execute this Agreement and complete the transactions contemplated
hereby, ▇▇▇▇▇ and HPS each hereby covenant and agree as follows:
(a) COVENANT NOT TO COMPETE. During the term of this Agreement and for
a period of sixty (60) months following the termination or expiration of this
Agreement, (1) Newco agrees that it will not directly or indirectly engage in
any businesses which competes with HPS in the HPS Core Business or which
competes with ▇▇▇▇▇ in the ▇▇▇▇▇ Core Business; (2) HPS Agrees that it will not
directly or indirectly engage in any business which competes with Newco in the
Newco Core Business or with ▇▇▇▇▇ in the ▇▇▇▇▇ Core Business, provided that
nothing contained herein shall prohibit HPS from continuing to provide Care
Management Services pursuant to contracts with Care Management Services already
in place as of the date hereof; and (3) ▇▇▇▇▇ agrees that it will not directly
or indirectly engage in any business which competes with Newco in the Newco
Core Business or with HPS in the HPS Core Business. This covenant not to compete
shall have worldwide scope.
For purposes of this Section 6.1, the following terms shall have
the following meanings:
(i) "HPS CORE BUSINESS" means the business of providing
marketing, distribution, enrollment, premium billing and collection, claims
administration, and information services to medical benefits payors and health
care providers, including customer service activities related thereto. While HPS
is in the business of providing Care Management Services to medical benefits
payors and health care providers and will continue to contract with payors and
providers to provide such services in the future, it shall outsource this
business to Newco pursuant to its Care Management Outsourcing Agreement with
Newco except to the extent that it currently has other contractual commitments
with other care management providers to provide such services.
(ii) "CARE MANAGEMENT SERVICES" means the business of providing
utilization review (which includes, but is not limited to, pre-admission
certification, prior authorization, prospective length of stay approvals, second
opinions, concurrent review and discharge planning), catastrophic medical case
management, disease management and demand (24) hours a day, 7 days a week)
management services to benefits payors and health care providers, including
third party administrators, provider organizations such as independent
profession associations and provider management companies.
17
(iii) "▇▇▇▇▇ CORE BUSINESS" means the business of (A) operating
standalone call centers to provide (1) technical product support services to end
users for computer hardware and software companies, and (2) help desk services
to major companies to provide their employees with help in operating their
equipment and software, (B) providing information technology development
services and solutions to large corporations on a contract or temporary staffing
basis, including software design, development integration and implementation
services, systems support and maintenance (C) providing foreign language
translation and software localization services, and (D) providing a
standalone/physically dedicated call center and related services (both inbound
and outbound) to customers.
(iv) "NEWCO'S CORE BUSINESS" means the business of operating call
centers to provide Care Management Services to medical benefits payors, health
care providers and organizations comprised of such entities and other providers
of Care Management Services, such as third party administrators, provider
organizations and provider management companies.
(v) "COMPETE" means, in addition to the customary and accepted
definition of compete, all of the following:
(A) directly or indirectly engage in, continue in or carry
on any business which competes with such business or its substantially similar
thereto, including owning or controlling any financial interest in any
corporation, partnership, firm or other form of business organization which is
so engaged; and
(B) engage in any practice the purpose of which is to evade
the provisions of this covenant not to compete.
The term "Competes with" shall not include the ownership of securities of
corporations which are listed on a national securities exchange or traded in the
national over-the-counter market in an amount which shall not exceed 5% of the
outstanding shares of any such corporation. The parties agree that the
geographic scope of this covenant not to compete shall extend throughout the
United States and the entire world. The parties agree that the geographic scope
of this covenant not to compete is reasonable because telecommunications is a
global business and Sykes has substantial international operations. In the event
a court of competent jurisdiction determines that the provisions of this
covenant not to compete are excessively broad as to duration, geographical scope
or activity, it is expressly agreed that this covenant not to compete shall be
construed so that the remaining provisions shall not be affected, but shall
remain in full force and effect, and any such over broad provisions shall be
deemed, without further action on the part of any person, to be modified,
amended and/or limited, but only to the extent necessary to render the same
valid and enforceable in such jurisdiction. This covenant not to compete has
been separately bargained for and is a material inducement to the willingness of
the Investor Shareholders to invest in Newco and enter into this Agreement.
18
(b) COVENANT OF CONFIDENTIALITY. Neither Sykes, HPS nor Newco shall at
any time subsequent to the Closing, except as explicitly requested by Sykes, HPS
or Newco, as the case may be, (i) use for any purpose, (ii) disclose to any
person, or (iii) keep or make copies of documents, tapes, discs or programs
containing, any confidential information concerning any other party hereto. For
purposes hereof, "confidential information" shall mean and include, without
limitation, all Trade Rights in which Sykes, HPS or Newco, as the case may be,
has an interest, all customer lists and customer information, and all other
information concerning processes, apparatus, equipment, services, marketing and
distribution methods of Sykes, HPS or Newco, as the case may be, not previously
disclosed to the public directly by Sykes, HPS or Newco, as the case may be.
(Notwithstanding the foregoing, this provision shall not limit in any way the
Investor Shareholders' rights to consult with management of Newco and inspect
the books and records of Newco.)
(c) EQUITABLE RELIEF FOR VIOLATIONS. Sykes, HPS, Newco and the other
Shareholders agree that the provisions and restrictions contained in this
Section 6.1 are necessary to protect the legitimate continuing interests of
Sykes, HPS and Newco, and that any violation or breach of these provisions will
result in irreparable injury to Sykes, HPS and Newco, respectively, for which a
remedy at law would be inadequate and that, in addition to any relief at law
which may be available to Sykes, HPS and Newco, respectively, for such violation
or breach and regardless of any other provision contained in this Agreement,
Sykes, HPS and Newco, respectively, shall be entitled to injunctive and other
equitable relief as a court may grant after considering the intent of this
section 6.1.
6.2 HSR ACT FILINGS. To the extend such filings have not been completed
prior to the execution of this Agreement, Sykes and HPS shall, in cooperation
with the other, file any reports or notifications that maybe required to be
filed by it under the HSR act, with the Federal Trade Commission and the
Antitrust Division of the Department of Justice, and shall furnish to the other
all such information in its possession as may be necessary for the completion of
the reports or notifications to be filed by the other. Prior to making any
communications, written or oral, with the Federal Trade Commission, the
Antitrust Division of the federal Department of Justice or any other
governmental agency or authority or members of their respective staffs with
respect to this Agreement or the transactions contemplated hereby, Sykes and HPS
shall consult with each other.
6.3 SUBCONTRACT FOR EXISTING CALL CENTER SERVICES OF HPS. Following the
Closing, and to the extend HPS is not contractually prohibited from doing such
and can obtain the necessary consents, Newco and HPS shall enter into any
agreement (the "Care Management Agreement") providing for the subcontracting of
call center services provided by HPS which relate to utilization review, medical
case management special claims review and other managed care related services.
The scope of such Agreement shall be as may be mutually agreed upon in good
faith by the parties.
6.4 SUPPORT SERVICE CONTRACT. Following the Closing, Newco, Sykes and HPS
shall enter into a contract or contracts providing for various administrative
support services to be provided at actual cost by Sykes and HPS to Newco (the
"Support Service Contract"). The
19
scope of such contract or contracts shall be as may be mutually agreed upon in
good faith by the parties.
6.5 SYKES CALL CENTER SUPPORT. Following the Closing, Sykes shall consult,
if asked, with Newco regarding call center technology and shall assist Newco in
designing Newco's call center and training newco's call center staff. The scope
and terms of such support shall be as may be mutually agreed upon in good faith.
6.6 GUARANTEE OF ACQUISITION LINE OF CREDIT.
(a) Sykes and HPS anticipate that Newco may establish a $75,000,000
line of credit with a third party lender for the purpose of providing financing
for the acquisition of companies providing services similar to the business
described in Section 1.3.Sykes and HPS shall each execute guarantees of 50% of
the indebtedness of Newco under any such line of credit in form reasonable
requested by the lender.
(b) Sykes and HPS anticipate that the line of credit will provide for
the release of Sykes and HPS from their respective guarantees upon Newco's
attainment of specified financial performance targets and rations. The
obligations of Sykes and HPS under this Section 6.6 shall terminate upon the
attainment by Newco of the financial performance targets and ratios specified in
such line of credit. The obligations of Sykes and HPS under this Section 6.6
shall also terminate upon the successful completion of the first registered
offering of common stock of Newco, which offering is underwritten on a firm
commitment basis and produces gross proceeds in excess of 1.25 times the total
amount of Newco's outstanding shareholder and bank debt on the date of the
offering. In addition, all guarantees executed by Sykes and HPS shall provide
that upon the completion of such initial public offering, Sykes and HPS will be
released from all guarantees of Newco's indebtedness.
(c) The execution of any guarantee shall not effect the requirement
that any acquisition by Newco be approved by all of the directors of Newco as
provided in Section 3.6(k) of this Agreement.
7. CONDITIONS PRECEDENT TO OBLIGATIONS
Each and every obligation of Sykes and each and every obligation of HPS to
be performed on the Closing Date shall be subject to the satisfaction prior to
or at the Closing of each of the following conditions:
7.1 REPRESENTATIONS AND WARRANTIES TRUE ON THE CLOSING DATE. Each of the
representations and warranties made by the other party in this Agreement, and in
any instrument, list, certificate or writing delivered by the other party
pursuant to this Agreement, shall be true and correct in all material respects
when made and shall be true and correct in all material respects at and as of
the Closing Date as though such representations and warranties were made or
given on and as of the Closing Date, except for any changes permitted by the
terms of this Agreement or consented to in writing by Sykes or HPS, as the case
may be.
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7.2 COMPLIANCE WITH AGREEMENT. The other parties shall have in all
material respects performed and complied with all of their agreements and
obligations under this Agreement which are to be performed or complied with by
them prior to or on the Closing Date, including the delivery of the closing
documents specified in Section 8.1.
7.3 ABSENCE OF SUIT. No action, suit or proceeding before any court or any
governmental authority shall have been commenced or threatened, and no
investigation by any governmental or regulating authority shall have been
commenced, against Sykes, HPS or any of the shareholders affiliates, officers or
directors of either of them, seeking to restrain, prevent or change the
transactions contemplated hereby, or questioning the validity or legality of any
such transactions, or seeking damages in connection with, or imposing any
condition on, any such transactions.
7.4 CONSENTS AND APPROVALS. All approvals, consents and waivers with
respect to the other party that are required to effect the transactions
contemplated hereby shall have been received, and executed counterparts thereof
shall have be delivered.
8. CLOSING
The closing of this transaction ("▇▇▇ ▇▇▇▇▇▇▇") shall take place at the
offices of ▇▇▇▇▇ & Lardner in Tampa, Florida on December 18, 1997, or at such
other time and place as the parties hereto shall agree upon. Such date is
referred to in this Agreement as the "Closing Date".
8.1 DOCUMENTS TO BE DELIVERED BY SYKES AND HPS. At the Closing, Sykes, HPS
and Newco shall deliver all the following documents, in each case fully executed
or otherwise in proper for:
(a) Sykes and HPS shall deliver to Newco, the payment of the initial
capital contribution referred to in Section 2.1;
(b) Sykes, HPS and Newco shall deliver the Loan Agreements;
(c) All other documents, instruments or writing required to be
delivered by Sykes, HPS or Newco at or prior to the Closing pursuant to this
Agreement and such other certificates of authority and documents as Sykes or HPS
may reasonably request.
8.2 ORGANIZATION MEETING. At the Closing, simultaneously with the delivery
of documents referred to in Section 8.1, the Shareholders shall hold an
organization meeting of Newco. At such meeting, (a) the Shareholders shall
appoint the initial Board of Directors of Newco; (b) the newly-elected Board of
Directors shall meet for the purpose of electing officers of Newco; and (c) the
agreements and documents referred to in this Agreement to which Newco is a party
shall be authorized on behalf of Newco.
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9. TERMINATION
9.1 SURVIVAL OF AGREEMENT. It is the intention of the parties that this
Agreement shall survive the formation of Newco and serve as a binding agreement
on the parties and their respective successors and assigns including, without
limitation, any future shareholders of Newco who agree to be bound by the terms
hereof.
9.2. TERMINATION. Notwithstanding the provisions of Section 9.1 hereof,
this Agreement shall terminate, and shall no longer have any force or effect,
upon the earliest of (a) its termination by mutual written consent of Sykes and
HPS, (b) the failure of any of the conditions precedent set forth in Section 7,
(c) any transfer of shares of Newco which results in Newco having no more than
one Shareholder, or (d) the dissolution and liquidation of Newco.
9.3. CONSEQUENCES OF TERMINATION. Upon the termination of this Agreement
pursuant to Section 9.2 above, all rights and obligations under this Agreement
shall immediately terminate except the following which shall survive termination
of this Agreement for any reason: (a) all claims of any Party against the other
party for damages arising out of acts or omissions of such other Party outside
the scope of this Agreement, or in breach of this Agreement, (b) all rights and
obligations of the parties accrued during the term of this Agreement, and (c)
the provisions of Section 2.3.(b) (pro rate repayment of Loans), Section 6.1
(Non-Competition; Confidentiality), and Article 13 (Resolution of Disputes) of
this Agreement.
9.4. DISSOLUTION OF NEWCO UPON TERMINATION. In the event this Agreement is
terminated as herein provided prior to Closing, but Newco shall ready have been
organized and capitalized, Newco shall be promptly liquidated and all capital
contributions shall be returned to the Shareholders, less their pro rate share
of expenses incurred in connection with the negotiation and execution of this
Agreement, the formation of Newco, and the organization and liquidation of
Newco.
10. FURTHER ASSURANCE
From time to time, at the other party's request and without further
consideration, each party to this Agreement will execute and deliver to the
other party such documents and take such other action as the other party may
reasonably request in order to consummate more effectively the transactions
contemplated hereby.
11. DISCLOSURES AND ANNOUNCEMENTS
Both the timing and the content of all disclosure to third parties and
public announcements concerning the transactions provided for in this Agreement
by either Sykes or HPS shall be subject to the approval of the other in all
essential respects, except that approval shall not be required as to any
statements and other information which a party may submit to the Securities and
Exchange Commission, the New York Stock Exchange or the Nasdaq National Market,
or its shareholders or be required to make pursuant to any rule or regulation
of the
22
Securities and Exchange Commission, New York Stock Exchange, Nasdaq National
Market, or otherwise required by law.
12. ASSIGNMENT; PARTIES IN INTEREST
12.1. ASSIGNMENT. Except as expressly provided herein, the rights and
obligations of a party hereunder may not be assigned, transferred or encumbered
without the prior written consent of the other parties.
12.2. PARTIES IN INTEREST. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by the respective successors and permitted
assigns of the parties hereto. Nothing contained herein shall be deemed to
confer upon any other person any right or remedy under or by reason of this
Agreement.
13. RESOLUTION OF DISPUTES
13.1. ARBITRATION. Any dispute, controversy or claim arising out of or
relating to this Agreement or any contract or agreement entered into pursuant
hereto or the performance by the parties of its or their terms shall be settled
by binding arbitration held in Tampa, Florida, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect, except
as specifically otherwise provided in this Article 13. Notwithstanding the
foregoing, Newco may, in its discretion, apply to a court of competent
jurisdiction for equitable relief from any violation or threatened violation of
the covenants of Sykes or HPS under Section 6.1 (covenant not to compete) of
this Agreement.
13.2. ARBITRATORS. If the matter in controversy (exclusive of attorney fees
and expenses) shall appear, as at the time of the demand for arbitration, to
exceed $1,500,000, then the panel to be appointed shall consist of one neutral
arbitrator to be mutually agreed upon by the parties; otherwise, the panel shall
be comprised of three neutral arbitrators of whom one shall be selected by each
party within twenty (20) days, and a third arbitrator shall be selected by these
two selected arbitrators. If one of the parties fails to timely select an
arbitrator, the arbitrator that was timely selected shall be the sole
arbitrator. If neither party timely selects an arbitrator, the first arbitrator
selected thereafter shall be the sole arbitrator, no other being appointed.
Where each of the parties timely selects an arbitrator, said arbitrator will
have ten (10) days from the end of the twenty (20)-day period to select the
third arbitrator. In the event the arbitrators are unable to timely agree on the
third arbitrator, either party may petition any official of the American
Arbitration Association for appointment of the third arbitrator and the parties
agree to accept any arbitrator appointed by such official subject to the
limitations hereof. Arbitrators must be reasonably independent of the parties
and their principals. Persons who are hereby expressly disqualified to serve as
arbitrators are principals of the parties, relatives of said principals,
employees of the parties or said principals, persons not residing within 100
miles of Tampa, Florida, attorneys, accountants, and other business persons have
professional or business relationships with the parties or said principals.
23
13.3. PROCEDURES; NO APPEAL. The arbitrator(s) shall allow such discovery
as the arbitrator(s) determine appropriate under the circumstances, provided
that any party shall be entitled to reasonable production of documents and not
less than (i) 16 hours of deposition examination and 20 written interrogatories
if the matter in controversy (exclusive of attorneys fees and costs) is
$1,500,000 or less; and (ii) 24 hours of deposition examination and 40 written
interrogatories if the matter in controversy (exclusive of attorneys fees and
costs) exceeds $1,500,000. The arbitrators shall resolve the dispute as
expeditiously as practicable, and if reasonably practicable, within one hundred
twenty (120) days after the selection of the arbitrator(s). The arbitrator(s)
shall give the parties written notice of the decision, with the reasons therefor
set out, and shall have thirty (30) days thereafter to reconsider and modify
such decision if any party so requests within ten (10) days after the decision.
Thereafter, the decision of the arbitrator(s) shall be final, binding, and
nonappealable with respect to all persons, including (without limitation)
persons who have failed or refused to participate in the arbitration process.
The privileges, including, without limitation, the attorney-client privilege,
shall apply in arbitration.
13.4. AUTHORITY. The arbitrator(s) shall have authority to award relief
from under legal or equitable principles, including interim or preliminary
relief, and to allocate responsibility for the costs of the arbitration and to
award recovery of attorneys fees and expenses in such manner as in determined to
be appropriate by the arbitrator(s).
13.5. ENTRY OF JUDGMENT. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having in personam and subject matter
jurisdiction. Each party hereby submits to the in personam jurisdiction of the
Federal and State courts in Hillsborough County, for the purpose of confirming
any such award and entering judgment thereon.
13.6. CONFIDENTIALITY. All proceedings under this Articles 13 and all
evidence given or discovered pursuant hereto, shall be maintained in confidence
by all parties.
13.7 CONTINUED PERFORMANCE. The fact that the dispute resolution procedures
specified in this Article 13 shall have been or may be invoked shall not excuse
any party from performing its obligations under this Agreement and during the
pendency of any such procedure all parties shall continue to perform their
respective obligations in good faith, subject to any rights to terminate this
Agreement that may be available to any party.
13.8 TOLLING. All applicable statues of limitation shall be tolled which
the procedures specified in this Article 13 are pending. The parties will take
such action, if any, required to effectuate such tolling.
13.9. EXPENSES OF ARBITRATION. Except as otherwise may be provided in this
Agreement, the expenses of arbitration will be borne equally by the parties,
provided that each party will bear cost of its own experts, evidence and
attorneys' fees, except that, in the discretion of the arbitrators, any award in
arbitration may include attorney' fees if the arbitrators expressly determine
that the party against whom such an award is entered has caused the dispute to
be submitted to arbitration in bad faith or as a dilatory tactic. No arbitration
will be commenced
24
after the date when institution of legal or equitable proceedings based upon the
same subject matter would be barred by the applicable statute of limitations.
14. LAW GOVERNING AGREEMENT
This Agreement may not be modified or terminated orally, and shall be
construed and interpreted according to the internal laws of the State of
Florida, excluding any choice of law rules that may direct the application of
the laws of another jurisdiction.
15. AMENDMENT AND MODIFICATION
The parties may amend, modify and supplement this Agreement in such manner
as may be agreed upon by them in writing.
16. NOTICE
All notices, requests, demands and other communications hereunder shall be
given in writing and shall be: (a) personally delivered; (b) sent by telecopier,
facsimile transmission or other electronic means of transmitting written
documents; or (c) sent to the parties at their respective addresses indicated
herein by registered or certified U.S. mail, return receipt requested and
postage prepaid, or by private overnight mail courier service. The respective
addresses to be used for all such notices, demands or requests are as follows:
(a) If to Sykes, to:
▇▇▇▇▇ Enterprises, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.,
Vice President and General Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(with a copy to)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ & Lardern
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other person or address as Sykes shall furnish to HPS in writing.
25
(b) If to HPS, to:
HealthPlan Services Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(with a copy to)
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
or to such other person or address as HPS shall furnish to Sykes in writing.
If personally delivered, such communication shall be deemed delivered upon
actual receipt; if electronically transmitted pursuant to this paragraph, such
communication shall be deemed delivered the next business day after transmission
(and sender shall bear the burden of proof of delivery); if sent by overnight
courier pursuant to this paragraph, such communication shall be deemed delivered
upon receipt; and if sent by U.S. mail pursuant to this paragraph, such
communication shall be deemed delivered as of the date of delivery indicated on
the receipt issued by the relevant postal service, or, if the addressee fails or
refuses to accept delivery, as of the date of such failure or refusal. Any party
to this Agreement may change its address for the purposes of this Agreement by
giving notice thereof in accordance with this Section
17. EXPENSES
Regardless of whether or not the transactions contemplated hereby are
consummated:
17.1. BROKERAGE. Sykes and HPS each represent and warrant to each other
that there is not broker involved or in any way connected with the subject
matter of this transaction. Sykes agrees to hold HPS harmless from and against
all claims for brokerage commissions or finder's fees incurred through any act
of Sykes in connection with the execution of this Agreement or the transactions
provided for herein. HPS agrees to hold Sykes harmless from and against all
claims for brokerage commissions or finder's fees incurred through any act of
HPS in connection with the execution of this Agreement or the transactions
provided for herein.
17.2. PRE-CLOSING EXPENSES. All costs and expenses incurred in connection
with the transactions contemplated by this Agreement shall be paid or reimbursed
in full by Newco. Newco shall pay any filing fees (including, without
limitation, the HSR Act filing fee) and the fee of its registered agent.
26
17.3. OTHER. Except as otherwise provided herein, each of the parties shall
bear its own expenses and the expenses of its counsel and other agents in
connection with the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
27
17.4. COSTS OF LITIGATION OR ARBITRATION. The parties agree that (subject
to the discretion, in an arbitration proceeding, of the arbitrator as set forth
in Section 13) the prevailing party in any action brought with respect to or to
enforce any right or remedy under this Agreement shall be entitled to recover
from the other party or parties all reasonable costs and expenses of any nature
whatsoever incurred by the prevailing party in connection with such action,
including without limitation attorneys' fees and prejudgment interest.
18. ENTIRE AGREEMENT
This instrument embodies the entire agreement between the parties hereto
with respect to the transactions contemplated herein, and there have been and
are no agreements, representations or warrants between the parties other than
those set forth or provided for herein. For the purpose of interpretation, no
party shall be deemed the draftsperson of this Agreement or any document
delivered at Closing.
19. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
20. HEADINGS
The headings in this Agreement are inserted for convenience only and shall
not constitute a part hereof.
21. FURTHER DOCUMENTS
The parties each agree to execute all other documents and to take such
other action or corporate proceedings as may be necessary or desirable to carry
out the terms hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
▇▇▇▇▇ ENTERPRISES, INCORPORATED
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, President
28
HEALTH PLAN SERVICES CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Chairman & CEO
29
AGREEMENT TO BE BOUND BY AGREEMENT
Effective as of December 18, 1997, Sykes HealthPlan Services, Inc., a
Florida corporation, hereby and agrees to be bound by all of the terms,
covenants, representations, warranties and other provisions of the Agreement by
and between Sykes and HPS dated December 18, 1997 ("Agreement") that are
applicable to Newco, any "Party," the "Parties" (as those terms are defined in
the Agreement) as if Newco was an original signatory of the Agreement.
SYKES HEALTH PLAN SERVICES, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ President
30
AMENDMENT TO
SHAREHOLDER AGREEMENT
THIS AMENDMENT to that certain Shareholder Agreement (the "Shareholder
Agreement") dated December 18, 1997 by and among SYKES HEALTHPLAN SERVICES,
INC., a Florida corporation ("SHPS"), ▇▇▇▇▇ ENTERPRISES, INCORPORATED, a Florida
corporation ("Sykes"), and HEALTHPLAN SERVICES CORPORATION, a Delaware
corporation ("HPS") is made and entered into effective as of the 28th day of
February, 1998.
RECITALS:
WHEREAS, Sykes and HPS (each a "Shareholder" and collectively the
"Shareholders") together own all of the outstanding voting common stock of SHPS;
WHEREAS, SHPS became a party to the Shareholder Agreement upon its
incorporation on December 18, 1997;
WHEREAS, the Shareholder Agreement refers to and defines SHPS as
"Newco"; accordingly, all references made herein to "Newco" shall mean SHPS;
WHEREAS, the Shareholder Agreement, and the loan agreements and
promissory notes (the "Loan Documents") contemplated therein and executed
pursuant thereto, provide that the Shareholders shall each commit to make
available to SHPS a term loan in the amount of $9,040,800 to be drawn upon by
SHPS from time to time in increments of $100,000 (the "Lending Commitment");
WHEREAS, the parties hereto wish to amend the provisions of the
Shareholder Agreement to provide for the termination of the Lending Commitment;
and
WHEREAS, the parties wish to have each Shareholder make equal
additional capital contributions to SHPS such that the total capitalization of
SHPS will be increased to $34 million within 90 days of the Closing as that term
is defined in Section 8 of the Shareholder Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree that the Shareholder
Agreement is amended as follows:
1. Section 2.3, "Lending Commitment," is deleted in its entirety and
replaced with the following provision:
"2.3 SUBSEQUENT CAPITAL CONTRIBUTIONS. Each of the Shareholders shall
contribute additional capital to Newco in equal amounts to increase Newco's
capitalization to $34 million within 90 days of the Closing, at such date
and time as specified by Newco."
1
2. Section 3.13(h) is deleted in its entirety and replaced with the
following provision:
"(h) REPAYMENT OF LOANS/RELEASE OF GUARANTEES. In the event of a
severance of Business Relationship under this Section 3.12, at the Closing
the purchasing Shareholder shall cause Newco to repay in full all loans
from the selling Shareholder and shall use its best efforts to cause the
selling Shareholder to be released from all guarantees of Newco's
indebtedness."
3. Section 8.1(b) of the Shareholder Agreement is deleted.
4. The reference in Section 9.3(c) of the Shareholder Agreement to "Section
2.3(b) (pro rata repayment of Loans)" is deleted.
5. Exhibits C and D to the Shareholder Agreement are deleted.
6. All other provisions of the Shareholder Agreement are hereby ratified
and confirmed and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment on the 3rd
day of March, 1998, effective as of the day and year first above written.
ATTEST: SYKES HEALTHPLAN SERVICES, INC.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Its: President
▇▇▇▇▇ ENTERPRISES, INCORPORATED
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Its: President
HEALTHPLAN SERVICES CORPORATION
▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------
Its: Chairman and Chief Executive Officer
2