Exhibit 10.1
Execution
Version
VOTING AGREEMENT
This VOTING AGREEMENT (this “
Agreement ”) is made and entered into as of
October 5, 2009 by and among Sykes Enterprises, Incorporated,
a Florida corporation (“ Parent ”), SH Merger
Subsidiary I, Inc., a Pennsylvania corporation and a direct, wholly
owned subsidiary of Parent (“ Merger Sub ”), ICT
Group, Inc., a Pennsylvania corporation (the “ Company
”), and the undersigned Shareholders (each a “
Shareholder ” and collectively, the “
Shareholders ”) of the Company. In the case of any
Company Shares (as defined below) subject to this Agreement that
are held in a trust, “Shareholder” shall refer to the
trustee(s) of such trust signatory hereto acting in such
Shareholder’s capacity as trustee (each, a “
Trustee ”, and such trust, a “ Trust
”). Capitalized terms used but not otherwise defined in this
Agreement shall have the meanings ascribed to them in the Merger
Agreement (as defined below).
WHEREAS, the Company, the
Shareholders and certain other shareholders of the Company are
party to that certain Amended and Restated Shareholders’
Agreement dated as of October 16, 2000 (as modified by that
certain Memorandum of Understanding dated as of May 1, 2002
and that certain Acknowledgment of Memorandum of Understanding
dated as of November 21, 2008, the “
Shareholders’ Agreement ”);
WHEREAS, the Company, John J.
Brennan and Donald P. Brennan are party to that certain Amended and
Restated Voting Trust Agreement dated as of April 1, 2004 (the
“ Voting Trust Agreement ”);
WHEREAS, Parent, Merger Sub and the
Company are entering into an Agreement and Plan of Merger dated as
of the date hereof (the “ Merger Agreement ”),
pursuant to which Merger Sub will merge with and into the Company
(the “ Merger ”);
WHEREAS, each Shareholder is the
beneficial owner of such number of shares of Company Common Stock
(collectively, the “ Company Shares ”) as set
forth on Exhibit A hereto; and
WHEREAS, as a material inducement
and a condition to Parent and Merger Sub entering into the Merger
Agreement, Parent has requested that the Shareholders agree, and
the Shareholders have agreed (in the Shareholders’ capacity
as such), for the benefit of Parent and Merger Sub, to enter into
this Agreement to facilitate the consummation of the
Merger;
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements contained
herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.01. Voting
Agreement.
(a) Each Shareholder hereby
irrevocably and unconditionally agrees that, during the Voting
Period (as defined below), such Shareholder shall (i) appear
(in person or by proxy) at any meeting (whether annual or special
and whether or not an adjourned or postponed meeting) of
shareholders of the Company, properly called, or otherwise cause
such Shareholder’s Company Shares to be counted as present
thereat for purposes of establishing a quorum, and (ii) vote
or provide a written consent with respect to such
Shareholder’s Company Shares (or will cause such Company
Shares to be voted, or cause a written consent to be provided with
respect to all such Company Shares) (A) in favor of adoption
of the Merger Agreement and approval of the Merger and the other
transactions contemplated thereby, (B) against any action,
proposal, transaction or agreement that would impede, frustrate,
prevent or materially delay the Merger (a “ Frustrating
Transaction ”), and (C) against any Acquisition
Proposal. In all other matters, each Shareholder’s Company
Shares shall be voted by and in the manner determined by such
Shareholder.
(b) As used herein, “
Voting Period ” shall mean the period commencing on
the date of this Agreement and continuing until the earlier to
occur of: (i) the Effective Time, (ii) the termination of
the Merger Agreement in accordance with its terms and
(iii) unless expressly approved by each Shareholder party
hereto, the execution of any amendment or modification to the
Merger Agreement, other than with respect to ministerial or
immaterial matters and other than an amendment or modification that
increases the Merger Consideration.
(c) Unless entered into in
connection with the Company’s entry into an Alternative
Acquisition Agreement in compliance with the terms of the Merger
Agreement, each Shareholder hereby agrees that such Shareholder
shall not enter into any agreement or understanding with any
person the effect of which would be inconsistent with or violative
of any provision contained in Section 1.01(a)
above.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE SHAREHOLDERS
Each Shareholder hereby severally
and not jointly represents and warrants to Parent and Merger Sub as
to himself, herself or itself as follows:
SECTION 2.01. Organization,
Qualification.
(a) The Shareholder, if an
individual acting in such Shareholder’s individual capacity,
has all legal capacity to enter into this Agreement and to carry
out his obligations hereunder.
2
(b) The Shareholder, if a Trustee,
has been duly appointed and is validly acting as a trustee of the
applicable Trust(s) and, as Trustee, has the requisite power and
authority to perform obligations of such Shareholder under this
Agreement. Each Trust has been duly created and is validly existing
and being administered under the laws of the jurisdiction governing
the trust agreement under which such Trust was created.
(c) The Shareholder, if it is a
Trustee, is not in violation of any of the provisions of any
applicable trust agreement or organizational documents.
SECTION 2.02. Authority Relative
to this Agreement. The Shareholder has all necessary power and
authority (or, if Shareholder is an individual, all legal capacity)
to execute and deliver this Agreement and to perform the
Shareholder’s obligations hereunder. This Agreement has been
duly and validly executed and delivered by the Shareholder and
constitutes legal, valid and binding obligations of the
Shareholder, enforceable against the Shareholder in accordance with
its terms.
SECTION 2.03. No
Conflict.
(a) The execution and delivery of
this Agreement by the Shareholder do not, and the performance of
this Agreement by the Shareholder shall not, (i) conflict with
or violate the terms of any trust agreements or equivalent
organizational documents of the Shareholder (if the Shareholder is
a Trustee), (ii) conflict with or violate any Laws applicable
to the Shareholder or by which the Company Shares owned by the
Shareholder are bound or affected or (iii) result in any
breach of, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of an Lien on any of the
Company Shares owned by the Shareholder pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the
Shareholder is a party or by which the Shareholder or the Company
Shares owned by the Shareholder are bound or affected, except for
any such conflicts, violations, breaches, defaults or other
occurrences that would not, individually or in the aggregate,
prevent or materially delay the Shareholder from performing its
obligations under this Agreement.
(b) Other than such filings as may
be required pursuant to applicable securities Laws, the execution
and delivery of this Agreement by the Shareholder does not, and the
performance of this Agreement by the Shareholder shall not, require
any consent, approval, authorization or permit of, or filing with
or notification to, any Governmental Entity on the part of the
Shareholder.
SECTION 2.04. Title to the
Shares. Except as set forth on Exhibit A , as of the
date hereof, the Shareholder is the record and beneficial owner of
the Company Shares set forth opposite such Shareholder’s name
on Exhibit A hereto. Except as set forth on
Exhibit A , such Company Shares are now and, at all
times during the term hereof will be, all the securities of the
Company owned, either of record or beneficially, by the
Shareholder. Except as otherwise provided in the Voting Trust
Agreement, the Shareholder has sole voting power and the sole power
of disposition with respect to all of the Company Shares owned by
the Shareholder, with
3
no limitations, qualifications or restrictions
on such rights (subject to the terms of this Agreement). The
Company Shares owned by the Shareholder are now and, at all times
during the term hereof will be, owned free and clear of all Liens,
other than any Liens created by this Agreement, the Voting Trust
Agreement and the Shareholders’ Agreement. Except as provided
in this Agreement and the Voting Trust Agreement, the Shareholder
has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Company Shares owned by the
Shareholder.
SECTION 2.05. Reliance by Parent
and Merger Sub. Each Shareholder understands and acknowledges
that Parent and Merger Sub are entering into the Merger Agreement
in reliance upon such Shareholder’s concurrent execution and
delivery of this Agreement, including Parent’s and Merger
Sub’s reliance on such Shareholder’s representations
and warranties contained herein.
ARTICLE III
COVENANTS OF THE
SHAREHOLDERS
SECTION 3.01. No Disposition of
or Liens on Company Shares. Subject to Section 6.06, each
Shareholder hereby agrees that during the term of this Agreement,
except as contemplated by this Agreement and the Merger Agreement,
such Shareholder shall not (a) sell, transfer, tender, assign,
pledge, encumber, contribute to the capital of any entity,
hypothecate, give or otherwise dispose of, grant a proxy or power
of attorney with respect to, deposit into any voting trust or enter
into a voting arrangement or agreement, or create or permit to
exist any Liens of any nature whatsoever with respect to, any of
such Shareholder’s Company Shares (or agree or consent to, or
offer to do, any of the foregoing), other than Liens, if any, that
arise under the Voting Trust Agreement and the Shareholders’
Agreement, (b) take any action that would have the effect of
preventing such Shareholder from performing such
Shareholder’s obligations hereunder or impede, frustrate,
prevent or materially delay the Merger, or (c) directly or
indirectly, initiate, solicit or encourage any person to take
actions that could reasonably be expected to lead to the occurrence
of any of the foregoing.
SECTION 3.02. No Solicitation of
Transactions. Subject to Section 6.06 hereof, each
Shareholder agrees that during the Voting Period, such Shareholder
will not, directly or indirectly: (i) solicit, initiate or
knowingly encourage (including by way of furnishing nonpublic
information), or take any other action knowingly to facilitate, any
inquiries or the making of any proposal or offer that constitutes
an Acquisition Proposal; (ii) enter into or maintain or
continue discussions or negotiations with any person or entity in
furtherance of such inquiries or to obtain an Acquisition Proposal;
(iii) agree to, approve, endorse or recommend any Acquisition
Proposal or enter into any letter of intent or other contract,
agreement or commitment contemplated by or otherwise relating to
any Acquisition Proposal; or (iv) authorize or permit any of
the officers, directors or employees of such Shareholder or of any
entity that such Shareholder directly or indirectly controls, or
any investment banker, financial advisor, attorney, accountant or
other representative retained by such Shareholder or any entity
that the Shareholder directly or
4
indirectly controls, to take any such action;
provided, however, that to the extent the Company is engaged in
discussions or negotiations with a person who has made an
Acquisition Proposal or Inquiry as permitted by Section 6.4 of
the Merger Agreement, the foregoing shall not prevent or limit the
Shareholders from participating in any discussions or negotiations
with such Person regarding an agreement in respect of such
Acquisition Proposal that is comparable to this Agreement. Each
Shareholder immediately shall cease and cause to be terminated all
existing discussions or negotiations with any parties (other than
Parent) conducted heretofore with respect to any Acquisition
Proposals.
SECTION 3.03. Further Action;
Reasonable Best Efforts. Upon the terms and subject to the
conditions hereof, each of the parties shall use its reasonable
best efforts to take, or cause to be taken, all appropriate action
that may reasonably be necessary for the purpose of carrying out
the intent of this Agreement.
SECTION 3.04. Public
Announcement. Each Shareholder agrees to not make any public
announcement in opposition to, or in competition with, the Merger
Agreement or the consummation of the Merger.
ARTICLE IV
PROXY
SECTION 4.01. Irrevocable
Proxy. (a) Subject to Section 6.06 hereof, each
Shareholder hereby appoints the Parent and each of its designees as
such Shareholder’s attorney-in-fact and proxy, with full
power of substitution, for and in such Shareholder’s name, to
vote, express,
