Exhibit 2.3
ACQUIROR VOTING AGREEMENT
THIS ACQUIROR VOTING AGREEMENT (this "Agreement") is entered into this
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24th day of June, 1999, by and among THINK NEW IDEAS, INC., a Delaware
corporation (the "Company"), and each other Person listed on the signature page
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hereof who is a stockholder (each a "Stockholder" and collectively, the
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"Stockholders") of ANSWERTHINK CONSULTING GROUP, INC., a Florida corporation
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(the "Acquiror").
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WHEREAS, the Stockholders own of record and beneficially the shares of
common stock, par value $.001 per share, of the Acquiror ("Acquiror Common
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Stock") set forth opposite their respective names on Schedule A hereto and
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desire to enter into this Agreement with respect to such shares of Acquiror
Common Stock;
WHEREAS, Acquiror, Darwin Acquisition Corp., a Delaware corporation
and a wholly owned subsidiary of Acquiror ("Merger Sub"), and the Company have
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contemporaneously with the execution of this Agreement entered into an Agreement
and Plan of Merger (the "Merger Agreement"), dated as of the date hereof, which
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provides, among other things, for the merger (the "Merger") of the Merger Sub
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with and into the Company pursuant to the terms and conditions thereof;
capitalized terms used herein and not otherwise defined shall have the meanings
given to such terms as in the Merger Agreement;
WHEREAS, as an essential condition and inducement to the Company
entering into the Merger Agreement, the Company has required that the
Stockholders agree, and the Stockholders have agreed, to enter into this
Agreement; and
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements contained herein and in the Merger Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, and intending to be legally bound hereby, agree
as follows:
SECTION 1. Voting
(a) Each Stockholder hereby agrees to appear, or to cause the holder
of record on any applicable record date (the "Record Holder") to appear, in
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person or by proxy, for the purpose of obtaining a quorum at any annual or
special meeting of stockholders of the Acquiror and at any adjournment thereof
at which
matters relating to the Merger, Merger Agreement or any transaction contemplated
thereby are considered; and
(b) Each Stockholder further agrees that, it shall vote, or cause the
Record Holder to vote, in person or by proxy all of the shares of Capital Stock,
and any other voting interests in the Acquiror owned or hereafter acquired
beneficially or of record by such Stockholder:
(i) in favor of the Stock Issuance in connection with any
meeting of, or solicitation of consents from, the stockholders of Acquiror at
which or in connection with which the Stock Issuance is submitted for the
consideration and vote of the stockholders of Acquiror;
(ii) against approval or adoption of resolutions which would have
the effect of preventing or materially delaying consummation of the Merger or
otherwise preventing or materially delaying the Acquiror from performing its
obligations under the Merger Agreement; and
(iii) against any action which would constitute a material breach
of any provision of the Merger Agreement.
To the extent inconsistent with the foregoing provisions of this
Section 1, each Stockholder revokes any and all previous proxies with respect to
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shares of Capital Stock owned beneficially or of record by such Stockholder and
agrees not to grant any proxy with respect to any other voting interests in
Acquiror owned or hereafter acquired beneficially or of record by such
Stockholder.
SECTION 2. Proxy; Further Assurances
(a) Contemporaneously with the execution of this Agreement: (i) each
Stockholder has delivered to the Company a proxy in the form attached to this
Agreement as Exhibit A, which shall be irrevocable to the fullest extent
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permitted by law and to the extent provided therein, with respect to the shares
referred to therein (the "Proxy"); and (ii) each Stockholder has caused to be
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delivered to the Company an additional proxy (in the form attached hereto as
Exhibit A) executed on behalf of the record owner of any outstanding shares of
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Acquiror Common Stock that are owned beneficially (within the meaning of Rule
13d-3 under the Exchange Act), but not of record, by such Stockholder, which
proxy shall be irrevocable to the fullest extent permitted by law and to the
extent provided therein, with respect to the shares referred to therein.
(b) Each Stockholder shall, at such Stockholder's own expense, perform
such further acts and execute such further documents and instruments as may
reasonably be required to vest in the Company the power to
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carry out and give effect to the provisions of this Agreement. Without limiting
the generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) or transaction if such action would materially impair or materially
interfere with the ability of any party to effectuate, carry out and comply with
all of the terms of this Agreement.
SECTION 3. Representations and Warranties of Each Stockholder
Each Stockholder hereby, severally and not jointly, represents and
warrants to the Company as follows:
(a) Such Stockholder has the legal capacity and all other power and
authority necessary to enter into this Agreement, to perform the obligations
hereunder and to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by such Stockholder and, assuming
due authorization, execution and delivery of this Agreement by the Company and
the other parties hereto, constitutes a legal, valid and binding obligation of
such Stockholder, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general applicability relating to or
affecting creditor's rights generally and by the application of general
principles of equity.
(b) The execution and delivery of this Agreement and the consummation
of the transactions herein contemplated will not (i) to the knowledge of such
Stockholder, conflict with or violate any law, regulation, court order, judgment
or decree applicable to such Stockholder or by which the property of such
Stockholder is bound or affected, or (ii) conflict with or result in any breach
of or constitute a default under any contract or agreement to which such
Stockholder is a party or by which such Stockholder or such Stockholder's
property is bound or affected, which conflict, violation, breach or default
would materially impair or materially interfere with such Stockholder's ability
to perform its obligations under this Agreement.
(c) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby do not and will not require any consent
or other action by any Person under, any provision of any agreement, contract or
other instrument binding on such Stockholder.
(d) The shares of Acquiror Common Stock reflected on Schedule A as
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being owned by such Stockholder are the only shares of voting stock Capital
Stock of Acquiror or any other voting interests in Acquiror owned beneficially
or of record by such Stockholder, and except as set forth in Schedule A,
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such Stockholder does not own any other options, warrants or rights to acquire
shares of any class of capital stock of Acquiror or any other voting interests
in Acquiror. Such Stockholder has the sole power respecting voting and transfer
of such Stockholder's shares of Capital Stock. Except as set forth on Schedule
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3(d) hereto, the shares and certificates representing such shares held by such
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Stockholder are owned as indicated on Schedule A by such Stockholder, free and
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clear of all liens, claims, security interests, proxies, options, warrants or
other rights, voting trusts or agreements, understandings or arrangements or any
other Encumbrances whatsoever, except for any such Encumbrances or proxies
arising hereunder.
(e) No investment banker, broker, finder or other intermediary is
entitled to a fee or commission in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of such Stockholder.
SECTION 4. Covenants of Each Stockholder
Except pursuant to the terms of this Agreement, each Stockholder
agrees severally and not jointly that such Stockholder will not, without the
prior written consent of the Company, directly or indirectly, grant any proxies
or enter into any voting trust or other agreement or arrangement with respect to
the voting of any Capital Stock or any options, warrants or other rights to
acquire stock of Acquiror. Each Stockholder agrees to notify the Company
promptly, and to provide all details requested by the Company, if such
Stockholder shall be approached or solicited, directly or indirectly, by any
Person with respect to any of the foregoing.
SECTION 5. Specific Performance
Each Stockholder acknowledges and agrees that there would be no
adequate remedy at law for the Company if such Stockholder fails to perform any
of such Stockholder's obligations hereunder, and accordingly agrees that the
Company, in addition to any other remedy to which they may be entitled at law or
in equity, shall be entitled to compel specific performance of the obligations
of such Stockholder under this Agreement in accordance with the terms and
conditions of this Agreement in any court of the United States or any State
thereof having jurisdiction. Each Stockholder hereby waives any objection to
the imposition of such relief or to the posting of a bond in connection
therewith.
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SECTION 6. Governing Law
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of law.
SECTION 7. Parties in Interest
This Agreement shall inure to the benefit of and shall be binding upon
the parties hereto and their respective heirs, legal representatives and
permitted assigns. If any Stockholder shall at any time hereafter acquire
ownership of, or voting power with respect to, any additional shares of Capital
Stock or any other voting interests in Acquiror in any manner, whether by the
exercise of any options or any securities or rights convertible into or
exchangeable for shares of Capital Stock or any other voting interests in
Acquiror, by operation of law or otherwise, such shares or other interests shall
be held subject to all of the terms and provisions of this Agreement. Without
limiting the foregoing, each Stockholder specifically agrees that the
obligations of such Stockholder hereunder shall not be terminated by operation
of law, whether by death or incapacity of such Stockholder or otherwise.
SECTION 8. Amendment
This Agreement shall not be amended, altered or modified except by an
instrument in writing duly executed and delivered on behalf of each of the
parties hereto.
SECTION 9. Severability
If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest extent possible.
SECTION 10. Waiver
Except as provided in this Agreement, no action taken pursuant to this
Agreement, including without limitation any investigation by or on behalf of
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any party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representations, warranties, covenants or
agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a wavier
of any prior or subsequent breach of the same or any other provision hereunder.
SECTION 11. Notices
All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given or made as of
the date delivered, mailed or transmitted, and shall be effective upon receipt,
if delivered personally, mailed by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following addresses (or
at such other address for a party as shall be specified by like changes of
address) or sent by electronic transmission to the telecopier number specified
below:
If to a Stockholder:
To such Stockholder's address or telecopier number as set forth on
Schedule A attached hereto
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with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇ ▇▇▇▇, Esq.
If to the Company:
Think New Ideas, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
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With a copy (which shall not constitute notice) to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
SECTION 12. Entire Agreement; Assignment
This Agreement (a) constitutes the entire agreement among the parties
hereto pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties and (b) shall not be assigned by operation of law or
otherwise, except that this Agreement shall be binding upon each Stockholder and
each Stockholder's successors and permitted assigns.
SECTION 13. Headings
Section headings are included solely for convenience and are not
considered to be part of this Agreement and are not intended to be an accurate
description of the contents thereof.
SECTION 14. Counterparts
This Agreement may be executed and delivered in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement.
SECTION 15. Termination
This Agreement and all of the parties' rights and obligations
hereunder shall terminate on the earlier to occur of (a) the date on which the
Merger Agreement is validly terminated pursuant to the provisions thereof and
(b) the Effective Time (the "Termination Date").
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SECTION 16. Affiliate Agreements
Each Stockholder who also executes and enters into an Affiliate
Agreement hereby agrees and acknowledges that, notwithstanding any other
provisions of this Agreement and in addition to any obligations of such
Stockholder hereunder, such Stockholder is and will be subject to all of the
terms and provisions of such Affiliate Agreement and the obligations of such
Stockholder contained in such Affiliate Agreement are and will be independent,
separate and apart from the obligations of such Stockholder hereunder.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Acquiror Voting Agreement, or have caused this Acquiror Voting
Agreement to be executed and delivered on their behalf, as of the date first
above written.
THINK NEW IDEAS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
STOCKHOLDERS
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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By: /s/ ▇▇▇▇ ▇. San ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. San ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Address: Welsh and ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: 1221 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇.▇. ▇▇▇
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Name: ▇▇▇▇ ▇.▇. ▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
FLINT TRUST
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GOLDER, THOMA, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
FUND V, LP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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GTCR ASSOCIATES V
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
VIZCAYA INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SOUTHAMPTON, LTD.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ CAPITAL MANAGEMENT
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SOUTHEAST INVESTMENTS, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SOUTHEAST INVESTMENTS
INTERNATIONAL, LTD
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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EXHIBIT A
Form of Irrevocable Proxy
The undersigned Stockholders of ANSWERTHINK CONSULTING, INC., a Florida
corporation (the "Acquiror"), hereby irrevocably (to the fullest extent
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permitted by law) appoints and constitutes THINK NEW IDEAS, INC., a Delaware
corporation (the "Company"), the attorney and proxy of the undersigned, with
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full power of substitution and resubstitution, to the full extent of the
undersigned's voting rights with respect to (a) the outstanding shares of common
stock, par value $.001 per share, of the Acquiror (the "Acquiror Common Stock")
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or any other capital stock of the Acquiror (collectively with the Acquiror
Common Stock, the "Capital Stock") owned of record by the undersigned as of the
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date of this proxy, which shares are specified on the final page of this proxy,
and (b) any and all other shares of Capital Stock of the Acquiror which the
undersigned may acquire on or after the date hereof, provided that this proxy
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automatically shall be revoked with respect to any shares of Capital Stock that
are sold, transfered or otherwise disposed of by the undersigned ("Transferred
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Stock") effective as of the date of such sale, transfer or other disposition
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("Date of Disposition"). Upon the execution hereof, all prior proxies given by
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the undersigned with respect to any of the Capital Stock are hereby revoked, and
the undersigned agrees that no subsequent proxy will be given with respect to
the voting of any of the Capital Stock (other than Transferred Stock after the
Date of Disposition given by the purchaser, transferee or other beneficiary of
such other disposition with respect to such stock) except to the extent that
such proxies do not prevent the voting of this proxy in favor of the
transactions described herein.
This proxy is irrevocable (except as and to the extent provided in the
immediately preceding paragraph), is coupled with an interest, is granted in
connection with the execution and delivery of the Acquiror Voting Agreement,
dated as of the date hereof, among Acquiror and the undersigned (the "Acquiror
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Voting Agreement") and is granted in consideration of Acquiror entering into the
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Agreement and Plan of Merger, dated as of the date hereof, among the Company,
Darwin Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of Acquiror ("Merger Sub") and the Acquiror (the "Merger Agreement").
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The proxy named above (and its successors) will, prior to the Termination
Date (as hereinafter defined), be empowered, and may exercise this proxy, to
vote the Capital Stock at any meeting of the Stockholders of the Acquiror,
however called, or in connection with any solicitation of written consents from
Stockholders of the Acquiror, called or solicited, as the case may be, for the
purpose of voting on the Merger Agreement and the transactions contemplated
thereby in favor of the
Stock Issuance (as defined in the Merger Agreement). The undersigned may vote
the Capital Stock on all other matters.
This proxy shall be binding upon the representatives, successors and
permitted assigns of the undersigned.
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
This proxy and the rights contained herein shall terminate upon the
termination of the Acquiror Voting Agreement as provided therein (the
"Termination Date").
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Date: June __, 1999
_________________________________________
Stockholder's Name
Number of shares of common stock of the Acquiror
owned of record as of the date of this proxy:
_________________________________________
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