CONTRIBUTION AND STOCKHOLDER SUPPORT AGREEMENT
THIS CONTRIBUTION AND STOCKHOLDER SUPPORT AGREEMENT, dated as of
December 6, 2001 (this "AGREEMENT"), is entered into by and among Leapnet, Inc.,
a Delaware corporation (the "COMPANY"), SPRI, Ltd., a Delaware corporation
("PARENT"), SPRI Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("PURCHASER"), and Xxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx
(each, a "STOCKHOLDER" and, collectively, the "STOCKHOLDERS").
RECITALS
WHEREAS, the Company, Parent and Purchaser previously entered into an
Agreement and Plan of Merger, dated as of November 21, 2001 (as the same may be
amended or supplemented from time to time, the "MERGER AGREEMENT"), which
provides, among other things, that Purchaser will make a cash tender offer (the
"TENDER OFFER") for all of the outstanding capital stock of the Company and,
after expiration of the Tender Offer, will merge with and into the Company (the
"MERGER"), in each case upon the terms and subject to the conditions in the
Merger Agreement (with all capitalized terms used but not defined herein having
the meanings set forth in the Merger Agreement);
WHEREAS, each Stockholder owns the number of shares of common stock,
par value $0.01 per share, of the Company (the "COMMON STOCK") set forth
opposite his or its name on ANNEX A hereto (such shares of Common Stock,
together with any other shares of capital stock of the Company acquired (whether
beneficially or of record) by such Stockholder after the date hereof and during
the term of this Agreement, including any shares acquired by means of purchase,
dividend or distribution, or issued upon the exercise of any warrants or
options, and the conversion of any convertible securities or otherwise being
collectively referred to herein as, the "SUBJECT SHARES");
WHEREAS, as a condition to the willingness of the Company to enter
into the Merger Agreement, the Company has required that each Stockholder agree
and, in order to induce the Company to enter into the Merger Agreement, each
Stockholder has agreed, to enter into this Agreement;
NOW, THEREFORE, to induce the Company to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER. The
Stockholders jointly and severally represent and warrant to the Company as of
the date hereof in respect of himself as follows:
(a) AUTHORITY. Such Stockholder has the legal capacity and all
requisite power and authority to execute and deliver this Agreement and to
perform his or its obligations and consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by
each Stockholder, and constitutes a valid and binding obligation of each
such Stockholder enforceable in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law).
(b) THE SUBJECT SHARES. Except as set forth on ANNEX A hereto,
each Stockholder is the record and beneficial owner of, and has good and
marketable title to, the Subject Shares set forth opposite his name on
ANNEX A hereto, free and clear of any and all Encumbrances except for any
such Encumbrances that do not restrict or otherwise limit such
Stockholder's ability to perform its obligations hereunder. Each
Stockholder does not own, of record or beneficially, any shares of capital
stock of the Company (or rights to acquire any such shares) other than the
Subject Shares set forth opposite his or its name on ANNEX A hereto. Except
as set forth on ANNEX A hereto, each Stockholder has the sole right to
vote, sole power of disposition, sole power to issue instructions with
respect to the matters set forth in Sections 2 and 3 hereof and sole power
to agree to all of the matters set forth in this Agreement, in each case
with respect to all of such Stockholder's Subject Shares, with no material
limitations, qualification or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement. The
Subject Shares are duly authorized, validly issued, fully paid,
non-assessable and free of preemptive rights.
(c) NO CONFLICTS. (i) No filing with, and no permit,
authorization, consent or approval of, any state, federal or foreign public
body or authority is necessary for the execution of this Agreement by such
Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby, (ii) the execution and delivery of this Agreement by
such Stockholder do not, and the consummation by such Stockholder of the
transactions contemplated hereby and compliance with the terms hereof will
not, conflict with, or result in any violation of, or breach or default
(with or without notice or lapse of time or both) under (A) any provision
of any trust, loan or credit agreement, note, bond, mortgage, indenture,
guarantee, lease, license, contract or other agreement to which such
Stockholder is a party or by which such Stockholder is bound or (B) any
material judgment, order, writ, injunction, notice, decree, statute, law,
ordinance, rule or regulation applicable to such Stockholder or its
property or assets and (iii) the execution and delivery of this Agreement
by such Stockholder do not, and the consummation by such Stockholder of the
transactions contemplated hereby will not, violate any material laws
applicable to such Stockholder.
2. CONTRIBUTION OF SUBJECT SHARES.
(a) Each Stockholder agrees (i) to contribute the Subject Shares
to Purchaser not later than the second Business Day prior to the date of
initial expiration of the Tender Offer, in each case, free and clear of any
Encumbrances except those arising from this Agreement and (ii) not to
withdraw any Subject Shares so tendered. If any Stockholder acquires
Subject Shares after the date hereof, such Stockholder shall tender (or
cause the record holder to tender) such Subject Shares on or before the
second Business Day prior to the date of initial expiration of the Tender
Offer or, if later, as soon as practicable after such acquisition. For the
avoidance of doubt, the parties understand
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and acknowledge that the Subject Shares shall be counted as shares validly
tendered and not withdrawn in the Tender Offer in determining whether the
Minimum Condition (as defined in ANNEX A to the Merger Agreement) has been
satisfied.
(b) Each Stockholder hereby agrees to permit Purchaser to publish
and disclose in the Tender Offer Documents and, if approval of the
stockholders of the Company is required under applicable law, the Proxy
Statement (including all documents and schedules filed with the SEC), his
identity and ownership of Common Stock and the nature of such Stockholder's
commitments, arrangements and understandings under this Agreement.
3. AGREEMENT TO VOTE. The Stockholders jointly and severally agree
that:
(a) At any meeting of stockholders of the Company called to vote
upon the Merger Agreement and the transactions contemplated thereby,
however called, or at any adjournment thereof or in connection with any
written consent of the holders of Common Stock or in any other
circumstances upon which a vote, consent or other approval with respect to
the Merger Agreement and the transactions contemplated thereby is sought,
the Stockholder shall be present (in person or by proxy) and shall vote (or
cause to be voted) all Subject Shares then held of record or beneficially
owned by such Stockholder in favor of the Merger and the Merger Agreement
and the transactions contemplated thereby.
(b) At any meeting of stockholders of the Company, however
called, or at any adjournment thereof or in connection with any written
consent of the holders of Common Stock or in any other circumstances upon
which a vote, consent or other approval is sought, the Stockholder shall
vote (or cause to be voted) all Subject Shares then held of record or
beneficially owned by such Stockholder against any action or agreement
(other than the Merger Agreement or the transactions contemplated thereby)
that would impede, interfere with, delay, postpone or attempt to discourage
the Merger, the Tender Offer or the other transactions contemplated by this
Agreement and the Merger Agreement, including, but not limited to: (i) any
Acquisition Proposal; (ii) any action that is likely to result in a breach
in any respect of any representation, warranty, covenant or any other
obligation or agreement of the Company under the Merger Agreement or result
in any of the conditions set forth in Exhibit A to the Merger Agreement not
being fulfilled; or (iii) any extraordinary corporate transaction, such as
a merger, consolidation or other business combination involving the Company
and its Subsidiaries.
4. RESTRICTION ON TRANSFER. Except with respect to security
interests that may be granted under any loan or other agreement entered into by
Parent, Purchaser or the Stockholders in connection with the financing of the
Tender Offer, Merger or other transactions contemplated by the Merger Agreement
but that do not restrict or otherwise limit the Stockholders' ability to perform
their respective obligations under this Agreement, Stockholder agrees not (a) to
sell, transfer, pledge, encumber, assign or otherwise dispose of (collectively,
"TRANSFER"), or enter into any contract, option or other arrangement or
understanding with respect to the Transfer by such Stockholder of, any of the
Subject Shares or offer any interest in any
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thereof to any Person other than pursuant to the terms of the Tender Offer, the
Merger or this Agreement, (b) to enter into any voting arrangement or
understanding, whether by proxy, power of attorney, voting agreement, voting
trust or otherwise, with respect to the Subject Shares or (c) take any action
that would make any representation or warranty of such Stockholder contained
herein untrue or incorrect in any material respect or have the effect of
preventing or disabling such Stockholder from performing its obligations under
this Agreement.
5. FURTHER ASSURANCES. Upon the terms and subject to the conditions
hereof, each of the parties hereto shall use its reasonable best efforts to
take, or cause to be taken, all appropriate action, and to do or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement. Without limiting the foregoing, each party hereto will, from
time to time and without further consideration, execute and deliver, or cause to
be executed and delivered, such additional or further consents, documents and
other instruments and shall take all such other action as any other party may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement, including vesting good title to the Subject
Shares in Purchaser.
6. TERMINATION. Except for Section 8 (and Sections 5 and 9 through
12 to the extent they relate thereto), which shall terminate in accordance with
the terms set forth therein, this Agreement, and all obligations, agreements and
waivers hereunder, will terminate and be of no further force and effect on the
earlier of: (a) the date the Merger Agreement is terminated in accordance with
its terms; and (b) the Effective Time; PROVIDED, HOWEVER, that nothing herein
shall relieve any party from liability for any breach hereof.
7. WAIVER OF APPRAISAL AND DISSENTER'S RIGHTS. Each Stockholder
waives and agrees not to exercise any rights of appraisal or rights to dissent
from the Merger that such Stockholder may have with respect to such
Stockholder's Subject Shares.
8. STOCKHOLDER CAPACITY. No person executing this Agreement who is
or becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his capacity as such director or officer.
Each Stockholder signs solely in its capacity as the record holder and
beneficial owner of such Stockholder's Subject Shares and nothing herein shall
limit or affect any actions taken by any Stockholder in his capacity as an
officer or director of the Company to the extent specifically permitted by the
Merger Agreement. This Section shall survive termination of this Agreement.
9. ENFORCEMENT. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to the remedy of
specific performance of such provisions and to an injunction or injunctions or
such other equitable relief as may be necessary to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in any federal or state court located in Xxxx County, Illinois, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (a) consents to submit such party to the
personal jurisdiction of any federal or state court located in Xxxx County,
Illinois in the event any dispute arises out of this Agreement or any of the
transactions
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contemplated hereby, (b) agrees that such party will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, (c) agrees that such party will not bring any action relating to
this Agreement or the transactions contemplated hereby in any court other than a
federal or state court sitting in Xxxx County, Illinois and (d) waives any right
to trial by jury with respect to any claim or proceeding related to or arising
out of this Agreement or any of the transactions contemplated hereby.
10. STOP TRANSFER ORDER; LEGEND. In furtherance of this Agreement,
concurrently herewith, each Stockholder hereby does authorize the Company to
notify the Company's transfer agent that there is a stop transfer order with
respect to all of the Subject Shares (and that this Agreement places limits on
the voting and transfer of such shares). Upon the reasonable request of the
Company, each Stockholder agrees as promptly as is reasonably practicable to
apply a legend to all certificates representing the Subject Shares referring to
this Agreement; PROVIDED that, no such legend shall restrict the transfer of the
Subject Shares if such transfer is made pursuant to this Agreement.
11. ADJUSTMENTS TO PREVENT DILUTION, ETC. In the event of a stock
dividend or distribution, or any change in the Company's Common Stock by reason
of any stock dividend, split-up, reclassification, recapitalization,
combination, exchange of shares or the like, the term "Subject Shares" shall be
deemed to refer to and include the Subject Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Subject Shares may be changed or exchanged. In such event, the amount to be
paid per share by Purchaser shall be proportionately adjusted.
12. GENERAL PROVISIONS.
(a) AMENDMENTS. This Agreement may not be modified, altered,
supplemented or amended except by an instrument in writing signed by each
of the parties hereto.
(b) NOTICE. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to the Company, Parent or
Purchaser in accordance with Section 10.02 of the Merger Agreement and to
the Stockholders at their respective addresses set forth in ANNEX A hereto
(or to such other address as any party may have furnished to the other
parties in writing in accordance herewith).
(c) INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that each party need not sign the same counterpart.
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(e) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (including, without limitation, the documents and instruments
referred to herein), (i) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof and (ii) is not intended
to confer upon any person or entity other than the parties hereto any
rights or remedies hereunder.
(f) BINDING AGREEMENT. This Agreement and the obligations
hereunder shall attach to the Subject Shares and shall be binding upon the
parties and any person or entity to which legal or beneficial ownership of
the Subject Shares shall pass, whether by operation of law or otherwise,
including, without limitation, any Stockholder's administrators or
successors. Notwithstanding any transfer of Subject Shares, the transferor
shall remain liable for the performance of all obligations of the
transferor under this Agreement.
(g) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without
reference to the conflict of laws principles thereof.
(h) COSTS AND EXPENSES. All costs and expenses incurred in
connection with this Agreement and the consummation of the transactions
contemplated hereby shall be paid by the party incurring such expenses.
(i) ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the
Company, Parent, Purchaser and each Stockholder, as the case may be.
(j) SEVERABILITY. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
[signature page follows]
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IN WITNESS WHEREOF, the Company, Parent, Purchaser and each Stockholder
have caused this Agreement to be signed by their respective officer thereunto
duly authorized as of the date first written above.
THE COMPANY:
LEAPNET, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & COO
PARENT:
SPRI, LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
PURCHASER:
SPRI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
S-1
STOCKHOLDERS:
XXXXXX X. XXXXXXXX
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
XXXXX X. XXXXXXXX
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
S-2
XXXXXX X. XXXXXXXX GRANTOR RETAINED
ANNUITY TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx, Sole Trustee
XXXXXXXX FAMILY ASSOCIATES II L.P., a
Delaware limited partnership
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx, General Partner
and Trustee
XXXXXX X. AND XXX X. XXXXXXXX FAMILY
FOUNDATION
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx, Trustee
XXXXX X. XXXXXXXX GRANTOR RETAINED
ANNUITY TRUST
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxx, Sole Trustee
S-3
ANNEX A
STOCKHOLDER SHARES HELD
------------------------------------ ---------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx o 511,700 SHARES OF COMMON STOCK: Includes 119,177 shares owned
by the Xxxxxx X. Xxxxxxxx Grantor Retained Annuity Trust, for which
c/o Leapnet, Inc. Xxxxxx X. Xxxxxxxx serves as sole trustee and has sole investment
000 Xxxx Xxxxx Xxxxxx and voting discretion, includes 53,995 shares owned by Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 Family Associates II L.P., a Delaware limited partnership, of which
partnership Xxxxxx X. Xxxxxxxx is a general partner and serves as
trustee and has sole investment and voting discretion, and includes
13,020 shares owned by the Xxxxxx X. and Xxx X. Xxxxxxxx Family
Foundation, for which Xxxxxx X. Xxxxxxxx serves as trustee and has
sole investment and voting discretion.
o OPTIONS TO PURCHASE 23,870 SHARES OF COMMON STOCK, OF WHICH
6,075 SHARES ARE CURRENTLY VESTED.
Xxxxx X. Xxxxxxxx o 352,791 SHARES OF COMMON STOCK: Includes 108,443 shares owned
by the Xxxxx X. Xxxxxxxx Grantor Retained Annuity Trust, for which
c/o Leapnet, Inc. Xxxxx X. Xxxxxxxx serves as sole trustee and has sole investment
000 Xxxx Xxxxx Xxxxxx and voting discretion. Does not include an aggregate of 12,138
Xxxxxxx, Xxxxxxxx 00000 shares held by the Xxxxxxxx Family Associates, L.P., a Delaware
limited partnership, of which partnership Xx. Xxxxxxxx is a general
partner. Xx. Xxxxxxxx disclaims beneficial ownership of such shares.
o OPTIONS TO PURCHASE 17,360 SHARES OF COMMON STOCK, OF WHICH
4,340 SHARES ARE CURRENTLY VESTED.
