EXHIBIT 3
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STOCKHOLDER SUPPORT AGREEMENT
THIS STOCKHOLDER SUPPORT AGREEMENT, dated as of January 5, 2003 (this
"AGREEMENT"), by and between Automatic Data Processing, Inc., a Delaware
corporation ("PARENT") and the stockholders of the Company listed on the
signature page hereto (collectively, the "STOCKHOLDERS"). Capitalized terms used
and not otherwise defined herein shall have the respective meanings assigned to
them in the Merger Agreement referred to below.
WHEREAS, concurrently with the execution of this Agreement, ProBusiness
Services, Inc., a Delaware corporation (the "COMPANY"), Parent and ADP Merger
Corp., a Delaware corporation and an indirect wholly owned subsidiary of Parent
("MERGER SUB") have entered into an Agreement and Plan of Merger, as it may be
amended from time to time (the "MERGER AGREEMENT"), pursuant to which, upon the
terms and subject to the conditions thereof, Merger Sub will be merged with and
into the Company, and the Company will continue as the surviving corporation
(the "MERGER"); and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has required that the Stockholders agree, and in order
to induce Parent to enter into the Merger Agreement, the Stockholders are
willing, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree, severally and not jointly, as follows:
Section 1. DEFINITIONS. For purposes of this Agreement:
(a) "COMPANY COMMON STOCK" shall mean the shares of
common stock, par value $0.001 per share, of the Company.
(b) "COMPANY CAPITAL STOCK" shall mean the shares of
capital stock of the Company, including, without limitation, the Company Common
Stock and the Company Preferred Stock.
(c) "COMPANY PREFERRED STOCK" shall mean the shares of
6.9% Senior Convertible Preferred Stock, par value 0.001 per share, of the
Company.
(d) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
(e) "EXPIRATION DATE" shall mean the earlier to occur of
(i) the date upon which the Merger Agreement is validly terminated in accordance
with its terms, (ii) the Effective Time or (iii) the date upon which the Merger
Agreement is amended to reduce either the Per Share Amount or the Preferred Per
Share Liquidation Amount, if the Stockholder (or its designee to the board of
directors) in his or its designee's capacity as a director of the Company did
not vote in favor of or consent to such amendment.
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(f) Each Stockholder shall be deemed to "OWN" or to have
acquired "OWNERSHIP" of a security if such Stockholder: (i) is the record owner
of such security; or (ii) is the "beneficial owner" (within the meaning of Rule
13d-3 under the Exchange Act) of such security. Without duplicative counting of
the same securities by the same holder, securities Owned by a holder shall
include securities Owned by all other Persons with whom such Person would
constitute a "group" within the meaning of Section 13(d) of the Exchange Act
other than parties to this Agreement.
(g) "SUBJECT SECURITIES" shall mean: (i) the Existing
Securities (as defined in Section 5(a) below); (ii) any shares of Company
Capital Stock distributed prior to the termination of this Agreement in respect
of Subject Securities by reason of a stock dividend, stock-split,
recapitalization, reclassification, combination, merger, exchange of shares or
otherwise; and (iii) all additional securities of Company (including all
additional shares of Company Capital Stock and all additional options, warrants
and other rights to acquire shares of Company Capital Stock) of which the
Stockholder acquires Ownership during the period from the date of this Agreement
through the Expiration Date.
(h) A Person shall be deemed to have effected a
"TRANSFER" of a security if such Person directly or indirectly: (i) sells,
tenders, pledges, encumbers, grants an option with respect to, transfers or
disposes of Ownership of such security or any interest in such security; or (ii)
enters into an agreement or commitment contemplating the possible sale of,
tender of, pledge of, encumbrance of, grant of an option with respect to,
transfer of or disposition of Ownership of such security or any interest
therein.
Section 2. VOTING OF SHARES.
(a) During the period from the date of this Agreement
through the Expiration Date, each Stockholder covenants and agrees that, at any
meeting of the stockholders of the Company, however called, and regardless of
whether such meeting is a special or annual meeting of stockholders of the
Company, or at any adjournment thereof, or in connection with any action by
written consent by the stockholders of the Company, such Stockholder will vote,
or cause to be voted, all Subject Securities
(i) in favor of the approval of the Merger and
the adoption of the Merger Agreement and the transactions contemplated by the
Merger Agreement; and
(ii) against any Acquisition Proposal with
respect to the Company.
Section 3. GRANT OF PROXY; REVOCATION OF PROXIES; RELIANCE.
(a) Each Stockholder hereby irrevocably grants to and
appoints Xxxxx X. Xxxxxx and Xxxx Xxxxxx or either of them in their respective
capacities as officers of Parent, with full power of substitution (such
individuals and their substitutes each being referred to herein as the "PROXY"),
as attorneys and proxies to vote all Subject Securities in favor of the matters
referred to in clauses (i) and (ii) of Section 2 above. Each Stockholder agrees
that the Proxy may, in such Stockholder's name and stead, (i) attend any annual
or special meeting of stockholders of the Company (including any and all
adjournments and postponements thereof) and vote all Subject Securities in favor
of the matters referred to in clauses (i) and (ii) of Section 2 above at
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any such annual or special meeting (including any and all adjournments and
postponements thereof), and (ii) execute with respect to all Subject Securities
any written consent with respect to matters referred to in clauses (i) and (ii)
of Section 2 above. Each Stockholder agrees that, prior to the Expiration Date,
this grant of proxy pursuant to this SECTION 3(A) is irrevocable and coupled
with an interest and agrees that the Persons designated as the Proxy pursuant
hereto may at any time name any other person who is an officer of Parent as a
substitute Proxy hereunder to act pursuant hereto, either as to a specific
matter or as to all matters.
(b) Each Stockholder hereby represents that any proxies
heretofore given in respect of the Subject Securities that are inconsistent with
the proxy granted pursuant to Section 3(a) above are not irrevocable, and that
any such proxies are hereby revoked.
(c) Each Stockholder understands and acknowledges that
Parent and Merger Sub have entered into the Merger Agreement in reliance upon
such Stockholder's execution and delivery of this Agreement.
Section 4. TRANSFER OF SUBJECT SECURITIES. Each Stockholder
hereby agrees and covenants that, during the period from the date of this
Agreement through the Expiration Date:
(a) RESTRICTION ON TRANSFERS. Except as may otherwise be
agreed to by Parent in writing, such Stockholder shall not Transfer or consent
to any Transfer of Ownership of any or all of the Subject Securities, or any
interest therein if such Transfer would result in such Stockholder no longer
having the power to vote, or cause to be voted, the Subject Securities in
accordance with the terms of this Agreement; PROVIDED, HOWEVER, a Stockholder
may Transfer Subject Securities to any Person so long as such Person shall have
(i) executed a counterpart of this Agreement and (ii) agreed to hold such
Subject Securities subject to the terms and provisions of this Agreement to the
same extent as such Stockholder. Notwithstanding anything contained herein to
the contrary:
(i) a Stockholder may Transfer any of the
Subject Securities that have been pledged pursuant to the forward contracts
established prior to the date of this Agreement set forth in Schedule I;
(ii) if a Stockholder is also a director of the
Company, such Stockholder may Transfer the Subject Securities in accordance with
the terms of such Stockholder's trading plan established for the periodic sale
of Company Common Stock implemented pursuant to the Securities and Exchange
Commission Rule 10b5-1(c) in effect as of the date hereof; and
(iii) if a Stockholder is also a director of the
Company, such Stockholder may Transfer any of the Subject Securities that have
been pledged by such Stockholder pursuant to the terms of the margin loan
accounts established prior to the date of this Agreement set forth in Schedule
I.
(b) RESTRICTIONS ON PROXIES AND VOTING ARRANGEMENTS.
Except as otherwise provided herein, such Stockholder shall not (i) grant any
proxy, power-of-attorney or other authorization in or with respect to the
Subject Securities that is inconsistent with the proxy granted pursuant to
Section 3(a) above or (ii) deposit any of the Subject Securities into a voting
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trust or enter into a voting agreement or arrangement with respect to any of the
Subject Securities that would impair such Stockholder's ability to comply with
its obligations pursuant to this Agreement.
(c) STOP TRANSFER. Such Stockholder shall not request
that the Company register any Transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Stockholder's
Existing Securities, unless such Transfer is made in compliance with this
Agreement.
(d) WAIVER OF APPRAISAL RIGHTS. Each Stockholder hereby
irrevocably and unconditionally waives, and agrees to prevent the exercise of,
any rights of appraisal or rights to dissent in connection with the Merger (or
other business combination pursuant to the Merger Agreement) that such
Stockholder may have with respect to the Subject Securities.
Section 5. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS.
Each Stockholder hereby represents and warrants to Parent as follows:
(a) OWNERSHIP OF SECURITIES. On the date hereof, such
Stockholder beneficially Owns, or has the sole power to direct the voting of,
the Company Capital Stock set forth next to such Stockholder's name on SCHEDULE
I hereto (the "EXISTING SECURITIES"). On the date hereof, the Existing
Securities constitute all of the shares of voting capital stock of the Company
beneficially Owned by such Stockholder or as to which such Stockholder has the
sole power to direct the voting of the shares.
(b) POWER; BINDING AGREEMENT. Such Stockholder has the
power (or, if applicable, corporate power) and authority to enter into and
perform all of such Stockholder's obligations hereunder, including, without
limitation, the power and authority to vote the Subject Securities in accordance
with SECTION 2 hereof and to grant the proxy in accordance with SECTION 3
hereof. This Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a valid and binding agreement of such Stockholder,
enforceable against the Stockholder in accordance with its terms, except that
(A) such enforcement may be subject to applicable bankruptcy, insolvency,
moratorium, or other similar laws, now or hereafter in effect, affecting
creditors' rights generally and (B) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c) NO CONFLICTS.
(i) The execution and delivery of this Agreement
and the Proxy by such Stockholder do not, and the performance of this Agreement
and the Proxy by such Stockholder will not: (A) conflict with or violate any
law, rule, regulation, order, decree or judgment applicable to such Stockholder
or by which such Stockholder or any of such Stockholder's properties is or may
be bound or affected, or (B) result in or constitute (with or without notice or
lapse of time) any breach of or default under, or give to any other Person (with
or without notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result (with or without notice or lapse of
time) in the creation of any encumbrance or restriction on any of the Subject
Securities pursuant to, any Contract to which
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such Stockholder is a party or by which such Stockholder or any of such
Stockholder's affiliates or properties is or may be bound or affected.
(ii) The execution and delivery of this Agreement
by such Stockholder does not, and the performance of this Agreement by such
Stockholder shall not, require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental entity except for
applicable requirements, if any, of the Exchange Act, and except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the performance
by such Stockholder of his or its obligations under this Agreement.
(d) NO ENCUMBRANCES. Except:
(i) as established hereby;
(ii) for Existing Securities subject to a pledge
agreement in effect prior to the date of this Agreement and set forth in
Schedule I;
(iii) for Existing Securities subject to forward
purchase Contracts in effect prior to the date of this Agreement and set forth
in Schedule I; or
(iv) if a Stockholder is also a director of the
Company, for Existing Securities that have been pledged by such Stockholder
pursuant to a margin loan account prior to the date of this Agreement as set
forth on Schedule I,
the Existing Securities are now and, at all times during the term hereof, will
be held by the Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, free and clear of all securities interests, liens, power of
attorney, pledges, options, proxies, voting trusts, agreements, understandings
or arrangements whatsoever, in each case, that could reasonably be expected to
materially hinder or impede such Stockholder's ability to perform its
obligations hereunder.
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Section 6. TERMINATION. This Agreement and the covenants,
representations, warranties, and agreements contained herein shall terminate
upon the Expiration Date. Upon any termination of this Agreement, this Agreement
shall thereupon become void and of no further force and effect, and there shall
be no liability in respect of this Agreement or of any transactions contemplated
hereby or by the Merger Agreement on the part of any party hereto or any of its
directors, officers, partners, stockholders, employees, agents, advisors,
representatives or affiliates; PROVIDED, HOWEVER, that nothing contained herein
shall relieve any party from any liability for such party's breach of this
Agreement prior to termination.
Section 7. ELECTION AND WAIVER. If a Stockholder Owns shares of
Company Preferred Stock, such Stockholder agrees that subject to and effective
upon the Closing, such Stockholder hereby irrevocably and unconditionally: (A)
elects under Section 4(d) of the Certificate of Designation for the Company
Preferred Stock (the "CERTIFICATE OF DESIGNATION") to treat the Merger as a
deemed Liquidation (as defined in the Certificate of Designation) pursuant to
Section 4 thereof; and (B) waives the right to receive notice of the Merger
pursuant to Section 8(g) and Section 8(h) of the Certificate of Designation.
Section 8. MISCELLANEOUS.
(a) NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by facsimile (with a confirmatory copy sent by overnight courier), 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 shall be specified in a notice given in
accordance with this SECTION 8(A)):
if to Parent:
Automatic Data Processing, Inc.
Xxx XXX Xxxxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: President, Employer Services Group
Facsimile: (000) 000-0000
with a copy to:
Automatic Data Processing, Inc.
Xxx XXX Xxxxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: General Counsel
Facsimile: (000) 000-0000
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with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
if to Stockholder, as stated on Schedule I hereto.
(b) 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 in a mutually
acceptable manner in order that the Merger be consummated as originally
contemplated to the fullest extent possible.
(c) ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof.
(d) ASSIGNMENT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, provided that, except as provided herein, no party may
assign, delegate or otherwise transfer any of its rights or obligations
hereunder, in whole or in part, by operation of law or otherwise by any of the
parties, without the consent of the other parties hereto.
(e) PARTIES IN INTEREST. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing herein,
express or implied, is intended to or shall confer upon any other Person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
(f) SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
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(g) 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) as to all matters, including, but not limited to, matters of validity,
construction, effect, performance and remedies.
(h) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT OR THE COMPANY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
(i) FURTHER ASSURANCES. From time to time prior to the
Expiration Date, at the request of Parent, such Stockholder shall execute and
deliver to Parent, or cause the record holder of Subject Securities to execute
and deliver to Parent, such additional letters or instruments to comply with
applicable law and stock exchange rules as Parent may reasonably request in
connection with such Stockholder's obligations under this Agreement.
(j) DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive
headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement.
(k) AMENDMENT, MODIFICATION AND WAIVER. This Agreement
may not be amended, modified or waived except by an instrument or instruments in
writing signed and delivered on behalf of the party hereto against whom such
amendment, modification or waiver is sought to be entered.
(l) COUNTERPARTS. This Agreement may be executed and
delivered (including by facsimile transmission) 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.
(m) NO LIMITATION ON ACTIONS OF STOCKHOLDER AS DIRECTOR.
Notwithstanding anything to the contrary contained in this Agreement, in the
event that a Stockholder or any of its designees is a director or officer of the
Company, nothing in this Agreement is intended or shall be construed to require
such Stockholder (or any of its designees), in such Stockholder's (or any such
designee's) capacity as a director or officer of the Company, to fail to act in
accordance with such Stockholder's (or any such designee's) fiduciary duties in
such capacity.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed individually or by its respective duly authorized officer
as of the date first written above.
PARENT:
AUTOMATIC DATA PROCESSING, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Chairman and CEO
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STOCKHOLDER:
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
SIGNATURE PAGE TO STOCKHOLDER SUPPORT AGREEMENT
STOCKHOLDER:
/s/ Xxxx X. Xxxxxx
--------------------------------------------
Xxxx X. Xxxxxx
SIGNATURE PAGE TO STOCKHOLDER SUPPORT AGREEMENT
STOCKHOLDER:
XXXXXX X. XXXXXX & XXXX X. XXXXXX
1989 IRREVOCABLE TRUST
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
SIGNATURE PAGE TO STOCKHOLDER SUPPORT AGREEMENT
STOCKHOLDER:
XXXXX X. XXXXXX TRUST ESTATE
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx, as trustee
SIGNATURE PAGE TO STOCKHOLDER SUPPORT AGREEMENT
STOCKHOLDER:
XXX X. XXXXXX TRUST
/s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx, as trustee
SIGNATURE PAGE TO STOCKHOLDER SUPPORT AGREEMENT
STOCKHOLDER:
/s/ Xxxx X. Xxxxxx
--------------------------------------------
Xxxx X. Xxxxxx, as custodian
SIGNATURE PAGE TO STOCKHOLDER SUPPORT AGREEMENT
/s/ Xxxx X. Xxxxxx
--------------------------------------------
Xxxx X. Xxxxxx, as custodian
SIGNATURE PAGE TO STOCKHOLDER SUPPORT AGREEMENT
SCHEDULE I
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NUMBER OF SHARES OF NUMBER OF SHARES OF NUMBER OF EXISTING SECURITIES
STOCKHOLDER COMPANY COMPANY TRANSFERRED PURSUANT TO
COMMON STOCK OWNED PREFERRED STOCK OWNED 10B5-1 TRADING PLAN AND
OF RECORD (EXCLUDING PLEDGED PURSUANT TO A MARGIN
ANY ACCRUED BUT UNPAID LOAN OR OTHERWISE; OR SUBJECT
DIVIDENDS PAYABLE IN TO FORWARD CONTRACTS
SHARES OF PREFERRED
STOCK)
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Xxx Xxxxxx 1,635,138 (Direct None Pursuant to a 10b5-1 Trading
Ownership)* Plan with UBS PaineWebber up
c/o ProBusiness Services, Inc. to 50,000 shares of Common
0000 Xxxxxxx Xxxx 1,178,297 (Indirect Stock can be Transferred per
Xxxxxxxxxx, XX 00000 Ownership) ** quarter
Telecopy: (000) 000-0000
1,379,197 and 168,948 shares of
Common Stock have been pledged
pursuant to margin loan
accounts in amounts not more
than $2,990,455.70 and
$311,133.47, respectively, plus
accrued interest since November
30, 2002
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* Includes 151,770 shares owned by Xxxxxx X. Xxxxxx in his name only and
1,483,368 shares owned by Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx as community
property.
** Includes 50,502 shares held by Xxxx X. Xxxxxx as custodian for the Sintons'
children, 942,897 shares held by Xxxxxx X. Xxxxxx Xxxx X. Xxxxxx Irrevocable
Trust, 168,948 shares held by the Xxxxx X. Xxxxxx Trust Estate and 15,950 shares
held by an additional family trust.
