Exhibit 2.2
EXECUTION VERSION
STOCKHOLDER SUPPORT AGREEMENT
STOCKHOLDER SUPPORT AGREEMENT, dated as of September
13, 2005 (this "Stockholder Agreement"), among XXXXX GROUP LTD.,
a Bahamas corporation ("Parent"), XXXXX ACQUISITION CORP., a
Delaware corporation and a wholly owned subsidiary of Parent
("Purchaser"), and each of the stockholders whose names appear on
the signature pages of this Stockholder Agreement (each, a
"Stockholder" and, collectively, the "Stockholders").
WHEREAS, as of the date hereof each Stockholder owns of
record and beneficially and has good, valid and marketable title
to, free and clear of any Lien, proxy, voting restriction,
limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind, other than pursuant to this Stockholder
Agreement, and has the sole power to vote and full right, power
and authority to sell, transfer and deliver, the number of shares
of common stock, par value $0.01 per share ("Company Common
Stock"), of BAYCORP HOLDINGS, LTD., a Delaware corporation (the
"Company"), as set forth opposite such Stockholder's name on
Exhibit A hereto (all such shares of Company Common Stock
together with any shares of Company Common Stock of which
ownership of record or beneficial ownership is hereafter acquired
by any of the Stockholders prior to the termination of this
Stockholder Agreement being referred to herein as the "Shares");
and
WHEREAS, Parent, Purchaser and the Company propose to
enter into, simultaneously herewith, an Agreement and Plan of
Merger (the "Merger Agreement"), a draft of which has been made
available to each Stockholder, which provides, upon the terms and
subject to the conditions thereof, for the merger of Purchaser
with and into the Company (the "Merger") following the
consummation of a cash tender offer by Purchaser to acquire a
minimum of sixty-six and two-thirds percent (66 2/3%) of the
issued and outstanding shares of Company Common Stock (the
"Offer"). Except as otherwise noted herein, terms used but not
defined in this Stockholder Agreement shall have the meanings
ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and
the mutual covenants and agreements contained herein and in the
Merger Agreement, the Stockholders, intending to be legally
bound, hereby agree as follows:
1. Tender of Shares. Each Stockholder hereby agrees
that such Stockholder (a) shall tender, or cause to be tendered,
in the Offer, as promptly as practicable, but in any event no
later than five business days after the date of commencement of
the Offer, all of his or its Shares pursuant to the terms of the
Offer and (b) shall neither withdraw, nor cause to be withdrawn,
such Shares.
2. Grant of Proxy. Each Stockholder, by this
Stockholder Agreement, with respect to his or its Shares, hereby
grants an irrevocable proxy to Parent (and agrees to execute such
documents or certificates evidencing such proxy as Parent may
reasonably request) to vote, at any meeting of the stockholders
of the Company, and in any action by written consent of the
stockholders of the Company, all of such Stockholder's Shares (a)
in favor of the approval and adoption of the Merger Agreement and
approval of the Merger and all other transactions contemplated by
the Merger Agreement and this Stockholder Agreement, (b) against
any action, agreement or transaction (other than the Merger
Agreement or the transactions contemplated thereby) or proposal
(including any Competing Transaction) that would result in a
breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement
or that could result in any of the conditions to the Company's
obligations under the Merger Agreement not being fulfilled, and
(c) in favor of any other matter necessary to the consummation of
the transactions contemplated by the Merger Agreement and
considered and voted upon by the stockholders of the Company.
Each Stockholder further agrees to cause such Stockholder's
Shares to be voted in accordance with the foregoing. THE PROXY
GRANTED PURSUANT TO THIS SECTION 2 IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. Each Stockholder hereby acknowledges receipt
and review of a copy of the Merger Agreement.
3. Transfer of Shares. Each Stockholder agrees that
he or it shall not, directly or indirectly, (a) sell, assign,
transfer (including by operation of law), permit to become
subject to Lien, pledge, dispose of or otherwise encumber any of
the Shares or otherwise agree to do any of the foregoing,
(b) deposit any Shares into a voting trust or enter into a voting
agreement or arrangement or grant any proxy or power of attorney
with respect thereto that is inconsistent with this Stockholder
Agreement, (c) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect
acquisition or sale, assignment, transfer (including by operation
of law) or other disposition of any Shares, or (d) take any
action that would make any representation or warranty of such
Stockholder herein untrue or incorrect in any material respect or
have the effect of preventing or disabling the Stockholder from
performing his or its obligations hereunder.
4. No Solicitation of Transactions. None of the
Stockholders shall, directly or indirectly, through any agent,
representative or otherwise, (a) solicit, initiate or encourage
(including by way of furnishing nonpublic information), or take
any other action to facilitate, any inquiries or the making of
any proposal or offer (including, without limitation, any
proposal or offer to any other stockholders of the Company) that
constitutes, or may reasonably be expected to lead to, any
Competing Transaction, or (b) enter into or maintain or continue
discussions or negotiations with any person in furtherance of
such inquiries or to obtain a proposal or offer for a Competing
Transaction, or (c) agree to, approve, endorse or recommend any
Competing Transaction or enter into any letter of intent or other
contract, agreement or commitment contemplating or otherwise
relating to any Competing Transaction; provided, however, that
nothing in this Section 4 shall prevent any Stockholder, solely
in his capacity as a director or executive officer of the
Company, from engaging in any activity permitted pursuant to
Section 6.05(b) or Section 6.05(c) of the Merger Agreement. Each
Stockholder shall, and shall direct or cause his or its
representatives and agents to, immediately cease and cause to be
terminated all existing discussions or negotiations with any
parties conducted heretofore with respect to a Competing
Transaction. Each Stockholder shall notify Parent as promptly as
practicable (and in any event within twenty-four (24) hours after
such Stockholder attains knowledge thereof), orally and in
writing, if any proposal or offer, or any inquiry or contact with
any person with respect thereto, regarding a Competing
Transaction is made, specifying the material terms and conditions
thereof and the identity of the party making such proposal or
offer or inquiry or contact (including material amendments or
proposed material amendments).
5. Information for Offer Documents and Proxy
Statement; Disclosure. Each Stockholder represents and warrants
to Parent and Purchaser that none of the information relating to
such Stockholder and his or its affiliates provided by or on
behalf of such Stockholder or his or its affiliates for inclusion
in the Schedule TO, Schedule 14D-9, Schedule 13E-3, Offer
Documents or Proxy Statement will, at the respective times the
Schedule TO, Schedule 14D-9, Schedule 13E-3, Offer Documents or
Proxy Statement are filed with the SEC or are first published,
sent or given to stockholders of the Company, contain any untrue
statement of material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading. Each Stockholder authorizes and
agrees to permit Parent and Purchaser to publish and disclose in
the Offer Documents and the Proxy Statement and related filings
under applicable securities laws such Stockholder's identity and
ownership of Shares and the nature of his or its commitments,
arrangements and understandings under the Merger Agreement and
this Stockholder Agreement and any other information required by
applicable Law.
6. Termination. The obligations of each Stockholder
under this Stockholder Agreement shall terminate upon the
termination of the Merger Agreement pursuant to Section 8.01 of
the Merger Agreement. Nothing in this Section 6 shall relieve any
party of liability for any breach of this Stockholder Agreement
committed prior to such termination. This Stockholder Agreement
may also be terminated as to any Stockholder by the mutual
agreement of Parent, Purchaser and the Stockholder.
7. Representations and Warranties of Stockholder.
Each Stockholder hereby represents and warrants, severally and
not jointly, to Parent and Purchaser as follows:
(a) (i) Each Stockholder that is an individual has
full legal right and capacity to execute and deliver this
Stockholder Agreement, to perform his obligations hereunder and
to consummate the transactions contemplated hereby, and (ii) each
Stockholder that is not an individual is duly organized, or
formed, as applicable, validly existing and in good standing
under the laws of its jurisdiction of organization or formation,
as applicable, has the requisite power and authority to carry on
its business as it is now being conducted and has all necessary
power and authority to execute and deliver this Stockholder
Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. This Stockholder Agreement
has been duly executed and delivered by each Stockholder and,
assuming the due authorization, execution and delivery by Parent
and Purchaser, constitutes the legal, valid and binding
obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms. The failure of a
Stockholder's spouse, if any, to be a party or signatory to this
Stockholder Agreement shall not (A) prevent such Stockholder from
performing such Stockholder's obligations and consummating the
transactions contemplated hereunder or (B) prevent this
Stockholder Agreement from constituting the legal, valid and
binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms.
(b) The execution and delivery of this Stockholder
Agreement by each Stockholder does not, and the performance of
such Stockholder's obligations under this Stockholder Agreement
by such Stockholder will not (i) conflict with or violate any
organizational or formation document of any Stockholder, (ii)
assuming that all consents, approvals, authorizations and other
actions described in Section 7(d) have been obtained and all
filings and obligations described in Section 7(d) have been made,
conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to any Stockholder or by which any
property or asset of any Stockholder is bound or affected, (iii)
result in any breach of or constitute a default (or an event
which, with notice or lapse of time or both, would become a
default) under, or give to others any right of termination,
amendment, acceleration or cancellation under, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation, which may reasonably
be expected to result in a transfer of ownership or voting
control of the Shares, (iv) result in the creation of a Lien or
other encumbrance on the Shares, or (v) violate any applicable
Law.
(c) Each Stockholder owns of record and beneficially
and has good, valid and marketable title to, free and clear of
any Lien, proxy, voting restriction, limitation on disposition,
adverse claim of ownership or use or encumbrance of any kind,
other than pursuant to this Stockholder Agreement, and has the
sole power to vote and full right, power and authority to sell,
transfer and deliver, the Shares (as set forth on Exhibit A).
(d) The execution and delivery by any Stockholder of
this Stockholder Agreement does not, and the performance by such
Stockholder of his or its obligations under this Stockholder
Agreement, will not, require any consent, approval, authorization
or permit of, or filing with or notification to, any Governmental
Authority.
(e) Each Stockholder has had access, prior to the
execution of this Stockholder Agreement, to the information he or
it felt he or it needed and desired in connection with his or its
evaluation of this Stockholder Agreement, the Merger Agreement
and the transactions contemplated hereby and thereby and has had,
prior to the execution of this Stockholder Agreement, the
opportunity to ask questions of, and receive answers from, the
Company and legal counsel concerning the terms and conditions of
the transactions contemplated by this Stockholder Agreement and
the Merger Agreement and to obtain additional information
necessary to assess the transactions contemplated hereby and
thereby.
(8) Representations and Warranties of Stockholder's
Spouse. The spouses of Xxxxx X. Xxxxxx, Xx. and Xxxxxxx X.
Xxxxxxxxxxxx (each a "Spouse") hereby represent and warrant to
Parent and Purchaser as follows: (a) the Spouse shall not, and
shall not cause any agent or representative to, assert or
enforce, and does hereby waive, any rights granted under any
community property statute or marital contract or agreement with
respect to the Shares held by Xxxxx X. Xxxxxx, Xx. and Xxxxxxx X.
Xxxxxxxxxxxx that would adversely affect the covenants made by
each of Xxxxx X. Xxxxxx, Xx. and Xxxxxxx X. Xxxxxxxxxxxx pursuant
to this Stockholder Agreement or the sale and transfer of such
Shares to Parent or Purchaser pursuant to the terms of this
Stockholder Agreement and the Merger Agreement; provided,
however, that the Spouse shall not be prohibited from asserting
any rights the Spouse may have against the consideration received
by Xxxxx X. Xxxxxx, Xx. and Xxxxxxx X. Xxxxxxxxxxxx in exchange
for such Shares; and (b) the Spouse hereby acknowledges receipt
and review of a copy of the Merger Agreement and this Stockholder
Agreement.
(9) Miscellaneous.
(a) Except as otherwise provided herein, all costs and
expenses incurred in connection with this Stockholder Agreement
and the transactions contemplated hereby shall be paid by the
party incurring such costs and expenses, whether or not the
transactions contemplated hereby are consummated.
(b) All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given
(and shall be deemed to have been duly given upon receipt) by
delivery in person, by telecopy or e-mail or by registered or
certified mail (postage prepaid, return receipt requested) to the
respective parties at their addresses as specified on the
signature page(s) of this Stockholder Agreement.
(c) If any term or other provision of this Stockholder
Agreement is invalid, illegal or incapable of being enforced by
any rule of law or public policy, all other conditions and
provisions of this Stockholder Agreement shall nevertheless
remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected
in any manner materially adverse to any party.
(d) This Stockholder Agreement and the Merger
Agreement constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior
agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter
hereof.
(e) This Stockholder Agreement shall not be assigned
(whether pursuant to a merger, by operation of law or otherwise)
without the prior written consent of the other parties hereto.
(f) This Stockholder Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing
in this Stockholder Agreement, 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
Stockholder Agreement.
(g) The parties hereto agree that irreparable damage
would occur in the event any provision of this Stockholder
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 in
equity.
(h) This Stockholder Agreement shall be governed by,
and construed in accordance with, the laws of the State of
Delaware applicable to contracts executed in and to be performed
in that State.
(i) This Stockholder 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 shall be deemed to be
an original but all of which taken together shall constitute one
and the same agreement, and the exchange of copies of this
Stockholder Agreement and of signature pages by facsimile or
electronic transmission shall constitute effective execution and
delivery of this Stockholder Agreement as to the parties hereto,
and may be used in lieu of the original signature pages to this
Stockholder Agreement for all purposes.
(j) From time to time, at the request of Parent, in
the case of any Stockholder, or at the request of the
Stockholder, in the case of Parent and Purchaser, and without
further consideration, each party hereto shall execute and
deliver or cause to be executed and delivered such additional
documents and instruments and take all such further action as may
be reasonably necessary or desirable to consummate the
transactions contemplated by this Stockholder Agreement.
(k) Each of the parties hereto hereby waives to the
fullest extent permitted by applicable Law any right it may have
to a trial by jury with respect to any litigation directly or
indirectly arising out of, under or in connection with this
Stockholder Agreement, the Merger Agreement or the transactions
contemplated hereby or thereby.
(l) No Stockholder makes any agreement or
understanding herein in such Stockholder's capacity (if any) as a
director or officer of the Company.
IN WITNESS WHEREOF, the parties have executed this
Stockholder Agreement as of the date first written above.
XXXXX GROUP LTD.
By: /s/ Xxxxxxxxx X. Xxxx
______________________
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
XXXXX ACQUISITION CORP.
By: /s/ Xxxxxxxxx X. Xxxx
_______________________
Name: Xxxxxxxxx X. Xxxx
Title: President
XXXXX X. XXXXXX XX.
/s/ Xxxxx X. Xxxxxx Xx.
_____________________________
Xxxxx X. Xxxxxx Xx.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
XXXXXXX X. XXXXXXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxxxxxx
______________________________
Xxxxxxx X. Xxxxxxxxxxxx
00 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
EXHIBIT A
LIST OF STOCKHOLDERS
Number of Shares of Company
Common Stock Owned
Name of Stockholder Beneficially and of Record
Xxxxx X. Xxxxxx, Xx. 61,305
Xxxxxxx X. Xxxxxxxxxxxx 12,280
