Exhibit 2.2
SUPPORT AGREEMENT
This Support Agreement (the "Agreement"), dated as of May 18, 2004,
is entered into by and among Xxxxx & XxXxxxxx Companies, Inc., a Delaware
corporation ("MMC"), and the persons set forth on Schedule I hereto (the "Kroll
Stockholders").
MMC, King Merger Corp., a Delaware corporation and a wholly owned
subsidiary of MMC ("Merger Sub") and Xxxxx Inc., a Delaware corporation
("Kroll"), are, concurrently with execution of this Agreement, entering into an
Agreement and Plan of Merger, of even date herewith (the "Merger Agreement"),
providing for, among other things, a merger of Merger Sub with and into Kroll
(the "Merger"). Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms in the Merger Agreement.
As a condition to its willingness to enter into the Merger
Agreement, MMC has required that the Kroll Stockholders agree, and each Kroll
Stockholder is willing to agree, to the matters set forth herein. In
consideration of the foregoing, including the execution and delivery by MMC of
the Merger Agreement, and the agreements set forth below, the parties hereto
agree as follows:
1. Each Kroll Stockholder represents, warrants and agrees that (a)
he owns beneficially the number of shares of Kroll Common Stock set forth
opposite such Kroll Stockholder's name on Schedule I (such shares, with respect
to a particular Kroll Stockholder, the "Shares," it being understood that for
purposes hereof "Shares" shall not be deemed to include shares a Kroll
Stockholder is or will be entitled to receive upon exercise of any Kroll
Option), (b) as of the date hereof, he owns the Shares, free and clear of all
claims, liens, charges, security interests, encumbrances, voting agreements and
commitments of every kind except for any liens, claims, understandings or
arrangements that do not limit or impair the Kroll Stockholder's ability to
perform his obligations under this Agreement, and (c) he has (on the date
hereof) and will have (on the date of the Kroll Stockholders Meeting) sole
voting and dispositive power over all of the Shares.
2. Each Kroll Stockholder agrees that it will not sell, pledge,
assign, encumber or otherwise transfer or dispose of any of the Shares, or any
interest therein, or securities convertible into, or any voting rights with
respect to, any of the Shares, or enter into any contract with respect to any of
the foregoing, other than (a) pursuant to the Merger or (b) a transfer to a
Person who executes a counterpart of this letter agreement, in form and
substance reasonably satisfactory to MMC, agreeing to be bound by the terms and
provisions hereof. Without limiting the foregoing, except as otherwise provided
in this Agreement, each Kroll Stockholder agrees that it will not grant any
proxies or powers of attorney or enter into a voting agreement or other
arrangement with respect to any Shares or deposit any Shares into a voting
trust.
3. Each Kroll Stockholder agrees that it will vote, or cause to be
voted, all of the shares of capital stock of Kroll with respect to which it has
the right to vote,
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including the Shares, at any meeting of stockholders of Kroll (including any
adjournment or postponement thereof), or pursuant to any action by written
consent:
(a) in favor of the Merger Agreement and the Merger, and any actions
required in furtherance thereof;
(b) against any action or agreement that could reasonably be
expected, to materially impede, interfere with, delay, postpone or
adversely affect the Merger or the other transactions contemplated by the
Merger Agreement; and
(c) against any Acquisition Proposal (other than the Merger).
4. Each Kroll Stockholder hereby grants to MMC a proxy to vote the
Shares with respect to the matters specified in, and in accordance with the
provisions of, paragraphs 3 of this Agreement. Each Kroll Stockholder agrees
that this proxy shall be irrevocable until the termination of this Agreement in
accordance with paragraph 9 of this Agreement and coupled with an interest and
will take such further action or execute such other instruments as may be
reasonably necessary to effectuate the intent of this proxy and hereby revokes
any proxy previously granted by such Kroll Stockholder with respect to the
Shares.
5. Subject to paragraph 10, each Kroll Stockholder agrees that it
will not, directly or indirectly, initiate, solicit, encourage or facilitate any
discussions or any inquiries with respect to, or the making of, an Acquisition
Proposal, engage in any negotiations concerning, or provide any confidential
information or data to, or have any discussions with, any Person relating to an
Acquisition Proposal or attempt to make or implement an Acquisition Proposal.
Each Kroll Stockholder agrees to notify MMC as promptly as practicable of any
inquiry, discussion or proposal that constitutes or may reasonably be expected
to lead to an Acquisition Proposal after it becomes aware of such inquiry,
discussion or proposal.
6. Without limiting the provisions of the Merger Agreement, in the
event (a) of any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of shares of capital stock of Kroll
affecting any of the Shares, or (b) any Kroll Stockholder shall become the
beneficial owner of any additional shares of capital stock of Kroll or other
securities entitling the holder thereof to vote or give consent with respect to
the matters set forth in paragraph 3 hereof, then the terms of this Agreement
shall apply to such shares of capital stock or other securities of Kroll held by
such Kroll Stockholder immediately following the effectiveness of the events
described in clause (a) or such Kroll Stockholder becoming the beneficial owner
thereof as described in clause (b), as though they were Shares of such Kroll
Stockholder hereunder, provided, however, that if, after the date hereof, such
Kroll Stockholder acquires shares of Kroll Common Stock by virtue of the
exercise of a Kroll Option (such shares, acquired after the date hereof, "Option
Shares") such Kroll Stockholder shall be permitted to sell such Option Shares on
the open market for fair market value (less applicable commissions), provided,
further,
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however, that for so long as such Kroll Stockholder owns such Option Shares, the
terms of this Agreement (including paragraphs 3 and 4) shall apply to such
Option Shares as though they were Shares of such Kroll Stockholder hereunder.
Each Kroll Stockholder hereby agrees, while this Agreement is in effect, to
notify MMC of the number of any new Shares and Option Shares acquired by such
Kroll Stockholder, if any, after the date hereof.
7. Each Kroll Stockholder hereby waives any and all appraisal,
dissenters or similar rights that it may have with respect to the Merger and the
other transactions contemplated by the Merger Agreement pursuant to the DGCL or
other Applicable Law.
8. Each of MMC and each Kroll Stockholder represents and warrants
that it has all necessary power and authority to enter into this Agreement, that
this Agreement is the legal, valid and binding agreement of MMC or such Kroll
Stockholder, as the case may be, and that this Agreement is enforceable against
MMC or such Kroll Stockholder, as the case may be, in accordance with its terms.
9. This Agreement shall terminate upon the first to occur of (a) the
Effective Time and (b) termination of the Merger Agreement in accordance with
its terms. This Agreement may also be terminated, as to any Kroll Stockholder,
by the mutual agreement of MMC and such Kroll Stockholder; provided, that such
termination as to such Kroll Stockholder will not affect the obligations of any
other Kroll Stockholder hereunder. No termination of this Agreement will relieve
any party from liability for any material breach of its obligations hereunder
committed prior to such termination.
10. The Kroll Stockholder does not make any agreement or
understanding herein in the Kroll Stockholder's capacity as a director or
officer of Kroll. The Kroll Stockholder executes this Agreement solely in his
capacity as a stockholder of Kroll and nothing herein shall limit or affect any
actions taken by the Kroll Stockholder in his capacity as an officer or director
of Kroll or any of its subsidiaries.
11. The parties hereto agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with the terms hereof or were otherwise breached and that each party
shall be entitled to specific performance of the terms hereof in addition to any
other remedy which may be available at law or in equity.
12. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) confirmation of a receipt of a
facsimile transmission, (b) confirmed delivery by an overnight courier or when
delivered by hand, or (c) confirmation of receipt when sent by certified or
registered mail, postage prepaid, addressed, in the case of MMC, to the address
set forth for MMC in the Merger Agreement (with copies as set forth in the
Merger Agreement) and in the case of a Kroll Stockholder, to the address set
forth under such Kroll Stockholder's name on Schedule I hereto (or at such other
address for any party as shall be specified by like notice).
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13. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto; provided, that, with respect to the rights and
obligations of any Kroll Stockholder under this Agreement, this Agreement may be
amended with the approval of such Kroll Stockholder and MMC, notwithstanding the
failure to obtain the approval of any other Kroll Stockholder.
14. This Agreement shall not be assigned by operation of law or
otherwise without the prior written consent of the other parties hereto. This
Agreement will be binding upon, inure to the benefit of and be enforceable by
each party and such party's respective heirs, beneficiaries, executors,
representatives and permitted assigns.
15. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
16. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability, without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
17. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without giving effect to the provisions
thereof relating to conflicts of law).
18. The representations, warranties, covenants and agreements of the
Kroll Stockholders in this Agreement are made severally, and not jointly, by
each Kroll Stockholder.
19. Notwithstanding anything to the contrary contained herein, MMC
and the Kroll Stockholders hereby agree that with respect to Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx X. France and Xxxxxxx XxXxxxxx (collectively, the "ZC
Individuals"), the term "Shares" shall mean shares of Kroll Common Stock
beneficially owned by such ZC Individual with respect to which such ZC
Individual has (on the date hereof) and will have (on the date of the Kroll
Stockholders Meeting) sole voting and dispositive power, but shall not include
shares of Kroll Common Stock with respect to which any ZC Individual has entered
into variable prepaid arrangements ("VPA Shares") as of the date hereof,
provided, however, that if any ZC Individual shall have or shall obtain the
right to vote the VPA Shares, such ZC Individual agrees to vote such VPA Shares
in accordance with paragraph 3 hereof. MMC and the Kroll Stockholders further
agree that the existence of (a) margin arrangements existing on the date hereof
with respect to any Shares owned by any of the ZC Individuals on the date hereof
and any consequences arising from any such
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margin arrangements or (b) VPA Shares existing on the date hereof and any
consequences arising therefrom, shall not, in either case, result in a breach of
any of the representations, warranties or covenants of any of the ZC Individuals
contained in this Agreement.
IN WITNESS WHEREOF, this Support Agreement has been duly executed
and delivered by the duly authorized officers, trustees or other representatives
of MMC and of each Kroll Stockholder on the day and year first written above.
XXXXX & McLENNAN COMPANIES, INC.
By /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Senior Vice President & General Counsel
XXX X. XXXXX
/s/ Xxx X. Xxxxx
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XXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
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XXXXXXX X. XXXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxxx
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XXXXXXX XXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx Xxxxxx
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XXXXXXX X. FRANCE
/s/ Xxxxxxx X. France
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XXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
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XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
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XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
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XXXXXXX XXXXXXXX
/s/ Xxxxxxx Xxxxxxxx
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XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
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