1
EXHIBIT 99.2
SUPPORT AGREEMENT
SUPPORT AGREEMENT, dated as of April 15, 2000 (this "Agreement"), among
XXXXXXX XXXXX GROUP INC., a Delaware corporation ("BHA"), XXXXXXXXXX.XXX, INC.,
a Georgia corporation (the "Company"), ITC HOLDING COMPANY, INC., a Delaware
corporation ("ITC"), and XXXXXX X. XXXXXXXXXX, XX., an individual ("Xxxxxxxxxx"
and collectively with ITC, the "Supporting Shareholders").
A. BHA, the Company and ITC have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), which provides,
among other things, that Asset Sub will merge (the "Merger") with and into
Merger Sub.
B. The Merger is conditioned on the approval of the holders of a
majority of the common stock, par value $0.01 per share, of the Company (the
"Company Common Shares").
C. As of the date hereof, ITC and Xxxxxxxxxx are the record owners of,
and have the exclusive right to vote, 5,083,333 and 305,000 Company Common
Shares, respectively.
D. The Supporting Shareholders have agreed to enter into this Agreement
governing the voting of the Company Common Shares now or hereafter held of
record by the Supporting Shareholders on the record date announced by the
Company to determine the shareholders entitled to vote on the approval of the
issuance of the Company's securities in the Merger (other than any shares
disposed of in accordance with Section 2), including, without limitation, any
Company Common Shares that the Supporting Shareholders may acquire pursuant to a
stock dividend, stock split, recapitalization, combination or other transaction
or upon the exercise of any options or warrants to acquire Company Common Shares
described on Schedule I hereto or otherwise (as the same may be adjusted in the
manner described above) (the "Shares").
E. As a condition and inducement to BHA's and the Company's willingness
to enter into the Merger Agreement, BHA and the Company have requested that the
Supporting Shareholders agree, and the Supporting Shareholders have agreed, to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained herein, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
1. Voting of Shares. As long as this Agreement has not terminated in
accordance with Section 7(a), the Supporting Shareholders will cause the Shares
to be voted at any meeting of the shareholders of the Company (and at any and
all postponements and adjournments thereof), however called, and in any action
by written consent of the shareholders of the Company (i) to approve the
issuance of the Company Common Shares in the Merger, and any other matter that
could reasonably be expected to facilitate the Merger and (ii) against any
Adverse Proposal. For purposes of this Agreement, "Adverse Proposal" means (i)
any Takeover Proposal, (ii) any proposal by any Person to change the composition
of a majority of the Board of Directors of the Company, except as expressly
provided in the Merger Agreement or (iii) any action, proposal or
-i-
2
agreement that could result in a breach in any material respect of any covenant,
representation or warranty or any other obligation of the Company under the
Merger Agreement, which could result in any of the conditions set forth in
Section 11.1 or Section 11.2 of the Merger Agreement not being fulfilled prior
to the date that is 120 days after the initial filing date of the Registration
Statement in connection with the Merger, or which could otherwise materially
frustrate, prevent or delay the consummation of the transactions contemplated by
the Merger Agreement.
2. Limitations On Disposition or Encumbrance of Shares. Each of the
Supporting Shareholders hereby agrees that it will not, and will not offer or
agree to, sell, transfer, tender, assign, hypothecate or otherwise dispose of,
directly or indirectly ("Transfer"), the Shares, or create or permit to exist
any security interest, lien, claim, pledge, option, right of first refusal,
agreement, limitation on its voting rights, charge or other encumbrance of any
nature whatsoever with respect to the Shares (other than those which exist as of
the date hereof) unless (i) in connection with any Transfer of Shares effected
pursuant to a privately negotiated transaction or series of transactions, the
Supporting Shareholders have obtained the agreement of such transferee(s) to be
bound by the terms of this Agreement in a manner reasonably acceptable to BHA or
(ii) such Transfer is made pursuant to the volume limitations and other
requirements set forth in Rule 144 promulgated under the Securities Act.
3. Reliance by BHA. The Supporting Shareholders understand and
acknowledge that BHA is entering into the Merger Agreement in reliance upon the
Supporting Shareholders' execution and delivery of this Agreement and the
Supporting Shareholders' representations, warranties and covenants contained
herein.
4. Non-Interference. The Supporting Shareholders will not, except as
permitted by this Agreement, (i) grant any proxies or powers of attorney with
respect to any of the Shares, (ii) deposit any of the Shares into a voting trust
or enter into a voting agreement with respect to the Shares, or (iii) take any
action that would make any representation or warranty contained herein untrue or
incorrect or have the effect of preventing the Supporting Shareholders from
performing their respective obligations under this Agreement.
5. Representations and Warranties of the Supporting Shareholders. Each
of the Supporting Shareholders hereby represents and warrants to BHA and the
Company:
(a) Authority. It has all necessary power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by
it have been duly and validly authorized by all necessary action on its
part. This Agreement has been duly and validly executed and delivered
by it and constitutes a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership or similar laws affecting the enforcement
of creditors' rights generally and except that the availability of the
equitable remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding may
be brought.
-ii-
3
(b) No Conflict. The execution and delivery of this Agreement
by each Supporting Shareholder does not, and the performance of this
Agreement by it will not, (i) require any Consent or Permit of, or
filing with or notification to (other than pursuant to the Securities
Laws), any Regulatory Authority, (ii) conflict with any Law, Order or
agreement applicable to it or by which it or any of its property or
asset is bound, or (iii) result in the creation of a Lien on any of the
Shares pursuant to any note, bond, mortgage, indenture, Contract,
lease, license, Permit, franchise or other instrument or obligation to
which it is a party or by which the Shares are bound.
(c) Title to the Shares. The Shares and other securities set
forth on Schedule I hereto are all the securities of the Company owned,
either of record or beneficially, by the Supporting Shareholders.
Except for any restrictions arising under this Agreement, the
Supporting Shareholders own all the Shares free and clear of all Liens,
options, rights of first refusal, agreements, limitations on their
voting rights, charges and other encumbrances of any nature whatsoever
which would prohibit the voting agreement contained herein, and the
Supporting Shareholders have not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares.
6. Representations and Warranties of BHA and the Company. Each of BHA
and the Company, severally and not jointly, hereby represents and warrants to
the Supporting Shareholders with respect to itself only as follows:
(a) Authority. It has all necessary power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by
it have been duly and validly authorized by all necessary action on its
part. This Agreement has been duly and validly executed and delivered
by it and constitutes a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership or similar laws affecting the enforcement
of creditors' rights generally and except that the availability of the
equitable remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding may
be brought.
(b) No Conflict . The execution and delivery of this Agreement
by it does not, and the performance of this Agreement by it will not,
(i) require any Consent, Permit of, or filing with or notification to
(other than pursuant to the Securities Laws), any Regulatory Authority,
(ii) conflict with or violate its constituent documents, (iii) conflict
with or violate any Law, Order or agreement applicable to it or by
which it or any of its property or assets is bound, or (iii) result in
the creation of a Lien on any of its property pursuant to any note,
bond, mortgage, indenture, Contract, lease, license, Permit, franchise
or other instrument or obligation to which it is a party or by which
its properties are bound.
7. Miscellaneous.
-iii-
4
(a) Termination. This Agreement will terminate and will have
no further force or effect as of the Termination Date. For the purposes
of this Agreement, "Termination Date" means the earliest of (i) the
termination of the Merger Agreement in accordance with Section 12.1 or
(ii) the Effective Time. Notwithstanding the foregoing, the
representations and warranties of the parties in this Agreement shall
survive until the six month anniversary of the Termination Date.
(b) Expenses. Except as otherwise provided herein or in the
Merger Agreement, all costs and expenses incurred in connection with
the transactions contemplated by this Agreement will be paid by the
party incurring such expenses.
(c) Enforcement. The parties hereto agree that (i) irreparable
damage would occur in the event any of the provisions of this Agreement
were not performed in accordance with the terms hereof and (ii) the
parties will be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to specific performance of the terms
hereof, in addition to any other remedy to which they may be entitled
at law or in equity. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in
equity will be cumulative and not alternative, and the exercise of any
thereof by any party will not preclude the simultaneous or later
exercise of any other such right, power or remedy by such party.
(d) Entire Agreement. This Agreement, together with the Merger
Agreement and the other agreements contemplated thereunder, constitutes
the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings,
both written and oral, between the parties with respect to the subject
matter hereof.
(e) Assignment. This Agreement may not be assigned, by
operation of law or otherwise, without the prior written consent of the
parties, and any such assignment or delegation that is not consented to
will be null and void.
(f) Obligations of Successors; Parties in Interest. This
Agreement will be binding upon, inure solely to the benefit of, and be
enforceable by, the successors and permitted assigns of the parties
hereto. Nothing in this Agreement, express or implied, is intended to
or will confer upon any other Person any rights, benefits or remedies
of any nature whatsoever under or by reason of this Agreement.
(g) Amendment; Waiver. This Agreement may not be amended or
changed except by an instrument in writing signed by the parties
hereto. Any party hereto may (i) extend the time for the performance of
any obligation or other act of any other party hereto, (ii) waive any
inaccuracy in the representations and warranties contained herein or in
any document delivered pursuant hereto, and (iii) waive compliance with
any agreement or condition contained herein. Any such extension or
waiver will be valid only if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
-iv-
5
(h) Severability. The validity or unenforceability of any
provision of this Agreement will not affect the validity or
enforceability of any other provision of this Agreement, which will
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 will 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.
(i) Notices. All notices, requests, claims, demands and other
communications hereunder will be in writing and may be given (and will
be deemed to have been duly given only upon actual receipt) by delivery
in person, by fax, by overnight courier service or by registered or
certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address
for a party as may be specified in a notice given in accordance with
this Section 7(i)):
(1) If to BHA:
Xxxxxxx Xxxxx Group Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Fax No.: (000) 000-0000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Bark, Esq.
Fax No.: (000) 000-0000
(2) If to ITC:
ITC Holding Company, Inc.
0000 00xx Xxxxxx
X.X. Xxx 00
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Fax No.: (000) 000-0000
with a copy to:
Xxxxxxxx X. Xxxxxxxx, Esq.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Fax No: (000) 000-0000
-v-
6
(3) If to the Company:
XxxxXxxxxx.XXX, Inc.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: J. Xxxxxxx Xxxxxx, Esq.
Fax No: (000) 000-0000
(4) If to Xxxxxxxxxx:
Xxxxxx X. Xxxxxxxxxx, Xx.
c/o XxxxXxxxxx.XXX, Inc.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: J. Xxxxxxx Xxxxxx, Esq.
Fax No.: (000) 000-0000
(j) Governing Law; Consent to Jurisdiction. This Agreement
will be governed by and construed in accordance with the laws of the
State of Georgia (regardless of the laws that might otherwise govern
under applicable Georgia principles of conflicts of law) as to all
matters, including, but not limited to, matters of validity,
construction, effect, performance and remedies. Each of BHA, ITC,
Xxxxxxxxxx and the Company (i) irrevocably submits to the jurisdiction
of any state or federal court sitting in the State of Delaware in any
action or proceeding arising out of or related to this Agreement, (ii)
agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court,
and (iii) agrees that it will not bring any action relating to this
Agreement in any court other than a federal or state court sitting in
the State of Delaware. Each of BHA, ITC, Xxxxxxxxxx and the Company
irrevocably consents to the service of process which may be served in
any such action or proceeding
-vi-
7
by certified mail, return receipt requested, by delivering a copy of
such process to such Person at the address specified herein or by any
other method permitted by law.
(k) Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and will not
affect in any way the meaning or interpretation of this Agreement.
(l) Counterparts. This Agreement may be executed in two or
more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed will be deemed to be an
original, but all of which taken together will be one and the same
agreement.
(m) Defined Terms. Capitalized terms used herein that are not
otherwise defined herein have the meanings set forth in the Merger
Agreement.
[Remainder of page intentionally left blank]
-vii-
8
IN WITNESS WHEREOF, BHA, ITC, Xxxxxxxxxx and the Company have duly
executed this Agreement as of the date first written above.
XXXXXXX XXXXX GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Duly Authorized
ITC HOLDING COMPANY, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
XXXXXX X. XXXXXXXXXX, XX.
/s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------
Until the Termination Date, the undersigned
acknowledges and agrees not to register the
transfer of the Shares other than in
accordance with Section 2 of this Agreement.
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: President and Chief Executive
Officer
-viii-
9
SCHEDULE I
SHARES BENEFICIALLY OWNED
1. ITC Service Company, a wholly owned subsidiary of ITC Holding
Company, Inc. ("ITC") holds a warrant to purchase up to 416,667 Company Common
Shares.
2. Three directors of the Company, who are also current or former
officers of ITC, have assigned to ITC the benefits of the stock options granted
to each of them to purchase up to 10,000 Company Common Shares.
3. Xx. Xxxxxxxxxx holds options to purchase up to 310,000 Company
Common Shares.
-ix-
