VOTING AND SUPPORT AGREEMENT
Exhibit 2.2
EXECUTION VERSION
This VOTING AND SUPPORT AGREEMENT, dated as of March 4, 2009 (this “Agreement”), is
entered into by and between TriNet Group, Inc., a Delaware corporation (“TriNet”), and the
stockholders listed on Schedule I hereto (the listed stockholders are referred to
collectively herein as the “Stockholders”).
WHEREAS, concurrently with the execution of this Agreement, TriNet, Gin Acquisition, Inc., a
Florida corporation and a wholly-owned subsidiary of TriNet (“Merger Sub”), and Gevity HR,
Inc., a Florida corporation (“Gevity”), are entering into an Agreement and Plan of Merger
(the “Merger Agreement”), pursuant to which, upon the terms and subject to the conditions
thereof, Merger Sub will merge with and into Gevity (the “Merger”);
WHEREAS, as of the date of this Agreement, each Stockholder is the Beneficial Owner of the
number of shares of common stock, par value $0.01 per share, of Gevity (“Gevity Common
Stock”) set forth on Schedule I hereto opposite such Stockholder’s name (collectively,
the “Owned Shares” and, together with any shares of Gevity Common Stock with respect to
which such Stockholder acquires Beneficial Ownership during the period from and including the date
of this Agreement and up to the termination of this Agreement in accordance with its terms (the
“Voting Period”), whether by purchase or upon exercise of options, warrants, conversion of
other convertible securities or otherwise, are collectively referred to herein as the “Covered
Shares”); and
WHEREAS, as an inducement and a condition to entering into the Merger Agreement, TriNet has
required that the Stockholders enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereby agree as follows:
1. Certain Definitions. In addition to the terms defined elsewhere herein, each
capitalized term used and not defined herein shall have the meaning ascribed to such term in the
Merger Agreement. For purposes of this Agreement:
(a) “Beneficial Owner” means, with respect to a Covered Share, any Person who,
directly or indirectly, through any contract, relationship or otherwise, has or shares (i) the
power to vote, or to direct the voting of, such Covered Share, (ii) the power to dispose of, or to
direct the disposition of, such Covered Share or (iii) the ability to profit or share in any profit
derived from a transaction in such Covered Share, and the term “Beneficially Owned” shall
be construed accordingly.
(b) “Termination Date” means the date that is the earliest of (i) the Effective Time,
(ii) the termination of the Merger Agreement in accordance with its terms, (iii) written notice of
termination of this Agreement by TriNet to the Stockholders
or (iv) the amendment of the Merger Agreement to provide for a reduction in the amount of the
Merger Consideration or a change in the form of the Merger Consideration.
2. Agreement to Vote.
(a) Each Stockholder hereby agrees that, during the Voting Period, at any duly called meeting
of the stockholders of Gevity (or any adjournment or postponement thereof) (each, a “Gevity
Voting Event”), such Stockholder shall, or shall cause the holder of record on any applicable
record date to, appear at the meeting, in person or by proxy, or otherwise cause its Covered Shares
to be counted as present thereat for purposes of establishing a quorum, and it shall vote (or cause
to be voted), in person or by proxy, all its Covered Shares (i) in favor of the adoption of the
Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement (and
any actions required in furtherance thereof), (ii) against any action, proposal, transaction or
agreement that would reasonably be expected to result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of Gevity contained in the Merger
Agreement or of the Stockholders contained in this Agreement, and (iii) except with the written
consent of TriNet, against the following actions or proposals (other than the transactions
contemplated by the Merger Agreement): (A) any Acquisition Proposal; or (B) any other action or
proposal, involving Gevity or any subsidiary of Gevity (each a “Gevity Subsidiary”) that
would reasonably be expected to prevent or materially impede, interfere with, delay, postpone or
adversely affect the Merger or any other transaction contemplated by the Merger Agreement.
(b) For the avoidance of doubt, each Stockholder agrees that, during the Voting Period, the
obligations of such Stockholder specified in Section 2(a) shall not be affected by (i) any Change
of Board Recommendation or (ii) any breach by Gevity of any of its representations, warranties,
agreements or covenants set forth in the Merger Agreement.
(c) Except as set forth in clauses (a) and (b) of this Section 2, the Stockholders shall not
be restricted from voting in favor of, against or abstaining with respect to any matter presented
to the stockholders of Gevity at any Gevity Voting Event.
3. Grant of Proxy. IN FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, EACH
STOCKHOLDER HEREBY GRANTS TO AND APPOINTS TRINET AND EACH OF XXXXXXX XXXXXX AND XXXXXXX X. HAMMOND,
IN THEIR RESPECTIVE CAPACITIES AS OFFICERS OF TRINET, ITS IRREVOCABLE PROXY AND ATTORNEY-IN-FACT
(WITH FULL POWER OF SUBSTITUTION AND RESUBSTITUTION) TO VOTE THE COVERED SHARES AS INDICATED IN
SECTION 2. EACH STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE AND COUPLED WITH AN INTEREST AND
SHALL TAKE SUCH
FURTHER ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT
OF THIS PROXY. EACH STOCKHOLDER HEREBY REVOKES ANY AND ALL PREVIOUS PROXIES AND POWERS OF ATTORNEY
WITH RESPECT TO SUCH STOCKHOLDER’S COVERED SHARES OR ANY OTHER VOTING SECURITIES OF GEVITY THAT
RELATE TO
2
THE ADOPTION OF THE MERGER AGREEMENT AND THE OTHER MATTERS SET FORTH IN SECTION 2. TRINET AND
EACH STOCKHOLDER ACKNOWLEDGE THAT THIS PROXY SHALL BE VALID UNTIL THE TERMINATION DATE,
IRRESPECTIVE OF THE AMOUNT OF TIME ELAPSED FROM THE DATE HEREOF TO THE TERMINATION DATE.
4. Termination. This Agreement shall automatically terminate, and none of TriNet or
Stockholders shall have any rights or obligations hereunder and this Agreement shall become null
and void and have no effect upon the Termination Date. The termination of this Agreement shall not
prevent either party hereunder from seeking any remedies (at law or in equity) against the other
party hereto or relieve such party from liability for such party’s willful or intentional breach of
any terms of this Agreement.
5. Representations and Warranties.
(a) Representations and Warranties of TriNet. TriNet hereby represents and warrants to
each Stockholder as follows:
(i) Organization and Authority. TriNet is duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby. The
execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all necessary
corporate action of TriNet. This Agreement has been duly and validly executed and delivered
by TriNet, and, assuming due authorization, execution and delivery by the Stockholders, is
a legal, valid and binding obligation of TriNet, enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles.
(ii) Consents; No Conflicts. Except as contemplated by the Merger Agreement,
the execution and delivery of this Agreement by TriNet will not (A) conflict with any
provision of the certificate of incorporation or bylaws of TriNet, (B) violate any Law
applicable to TriNet, or (C) require any clearance, consent, approval, order, license or
authorization of, or declaration, registration or filing with, or notice to, or permit
issued by, any Governmental Authority.
(b) Representations and Warranties of the Stockholders. The Stockholders hereby
jointly and severally represent and warrant to TriNet as follows:
(i) Ownership of Instruments. As of the date of this Agreement, each Stockholder is
the Beneficial Owner of the Owned Shares set forth on Schedule I opposite such
Stockholder’s name. As of the date of this Agreement, the Owned Shares are the only Shares of
Gevity owned of record or Beneficially Owned by such Stockholder. Except for Liens created under
this Agreement and Liens that will be
3
released at Closing and will not affect any Stockholder’s ability to comply with its
obligations under this Agreement, each Stockholder has good title to the Owned Shares, free and
clear of Liens, proxies, powers of attorney, voting trusts or agreements and will have, subject to
Section 9, good title to the Covered Shares as of the time of any Gevity Voting Event, free and
clear of Liens, proxies, powers of attorney, voting trusts or agreements. Each Stockholder further
represents that any proxies given in respect of the Covered Shares, if any, have been revoked.
(ii) Organization and Authority. Each Stockholder is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its formation and has all requisite or
power and authority to execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate, partnership, limited liability company or other action of
each Stockholder. This Agreement has been duly and validly executed and delivered by each
Stockholder, and, assuming due authorization, execution and delivery by TriNet, is a legal, valid
and binding obligation of each Stockholder, enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors’ rights and to general equity
principles.
(iii) Consents; No Conflicts. Except as contemplated by the Merger Agreement, the
execution and delivery of this Agreement by each Stockholder will not (A) conflict with any
provision of the certificate of incorporation or bylaws or other similar organizational documents
of such Stockholder, (B) result in any violation of or default or loss of a benefit under or
require any consent under, or permit the acceleration or termination of any obligation under, any
agreement or other instrument to which such Stockholder is a party, (C) violate any Law applicable
to such Stockholder or (D) require any clearance, consent, approval, order, license or
authorization of, or declaration, registration or filing with, or notice to, or permit issued by,
any Governmental Authority.
6. Disclosure. The parties hereby agree and acknowledge that Gevity may publish and
disclose in the Proxy Statement (including all documents and schedules filed with the SEC) and in
any press release or other disclosure document in which Gevity reasonably determines in its good
faith judgment that such disclosure is required by Law in connection with the Merger and any
transactions related thereto, each Stockholder’s name and ownership of Gevity Common Stock and the
nature of such Stockholder’s commitments, arrangements and understandings under this Agreement. The
parties further agree and acknowledge that the Stockholders and TriNet (and Affiliates of TriNet)
may file
this Agreement as an exhibit to, and describe this Agreement in, a Schedule 13D (or an
amendment thereto).
7. Further Agreements of Stockholders. The Stockholders hereby jointly and severally
agree, while this Agreement is in effect, not to (a) except as set forth in Section 9 hereof, sell,
transfer, pledge, encumber, assign or otherwise dispose of, or enter into any
4
contract, option or other arrangement or understanding with respect to the sale, transfer, pledge,
encumbrance, assignment or other disposition of, any of the Covered Shares, (b) grant any proxies
or powers of attorney, deposit any Covered Shares into a voting trust, enter into a voting
agreement with respect to any Covered Shares or participate, directly or indirectly, in the
“solicitation” of any “proxies” (as such terms are used in the rules of the SEC) from any person to
vote in a manner which would be inconsistent with or violative of the provisions and agreements
contained in this Agreement, (c) take any action that would reasonably be expected to make any
representation or warranty of such Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling such Stockholder from performing its obligations under this
Agreement or (d) take any action that the Company is prohibited from taking pursuant to Section
6.04 of the Merger Agreement.
8. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary, (a)
no Stockholder makes any agreement or understanding herein in any capacity other than in its
capacity as a record holder or Beneficial Owner of Covered Shares and (b) nothing herein shall be
construed to limit or affect any action or inaction by any Affiliate, officer, director or direct
or indirect equityholder of any Stockholder acting in his or her capacity as a director of Gevity.
9. Permitted Transfers. Notwithstanding anything in this Agreement to the contrary,
each Stockholder may transfer any or all of the Covered Shares in accordance with provisions of
applicable Law to any Person that is an Affiliate of such Stockholder; provided,
however, that, prior to and as a condition to the effectiveness of such transfer, each
Person to which any of such Covered Shares or any interest in any of such Covered Shares is or may
be transferred (each a “Transferee”) shall have executed and delivered to TriNet a
counterpart of this Agreement. Upon executing and delivering to TriNet a counterpart of this
Agreement, a Transferee shall be a Stockholder for all purposes hereunder.
10. Reliance by TriNet. Each Stockholder understands and acknowledges that TriNet is
entering into the Merger Agreement in reliance upon the execution and delivery of this Agreement by
Stockholder.
11. Appraisal Rights. Each Stockholder acknowledges and agrees that it does not have,
or in any event, agrees not to exercise, any appraisal or dissenters’ rights with respect to any
Covered Shares, pursuant to the Florida Business Corporation Act (the “FBCA”), including
pursuant to Section 607.1302(2)(d) of the FBCA, or any other provision of Law, in connection with
the Merger, the Other Transactions or the approval of the Merger Agreement.
12. . Amendment. This Agreement may not be amended, changed, supplemented, waived or
otherwise modified except by an instrument in writing signed by each of the parties hereto.
13. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given (a) on the date of delivery if delivered personally, or by
5
telecopy or telefacsimile, upon confirmation of receipt, (b) on the first Business Day
following the date of dispatch if delivered by a recognized next-day courier service or (c) on the
third Business Day following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth
below or pursuant to such other instructions as may be designated in writing by the party to
receive such notice:
If to TriNet:
TriNet Group, Inc.
Xxx Xxxxxxx, XX 00000
0000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Email: xxxxx@xxxxxx.xxx
Xxx Xxxxxxx, XX 00000
0000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Email: xxxxx@xxxxxx.xxx
with a copy to:
Xxxxxx Godward Kronish LLP
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Email: xxxxxxx@xxxxxx.xxx
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Email: xxxxxxx@xxxxxx.xxx
and with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Email: xxxxxxx@xxxxxxxxx.xxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Email: xxxxxxx@xxxxxxxxx.xxx
If to ValueAct:
ValueAct Capital Partners
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Facsimile No.: (000) 000-0000
Email: xxxxxxxxxxx@xxxxxxxx.xxx
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Facsimile No.: (000) 000-0000
Email: xxxxxxxxxxx@xxxxxxxx.xxx
6
with a copy to:
Dechert LLP
Xxxx Centre
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Email: xxxxxxxxxxx.xxxxxx@xxxxxxx.xxx
Xxxx Centre
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Email: xxxxxxxxxxx.xxxxxx@xxxxxxx.xxx
14. Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any law or public policy, all other terms and provisions
of this 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. Notwithstanding the foregoing, upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated hereby are consummated
as originally contemplated to the greatest extent possible.
15. Entire Agreement. This Agreement (together with the Merger Agreement to the
extent referred to herein) constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and supersedes all prior agreements and understandings, both written
and oral, among the parties hereto with respect to the subject matter hereof. This Agreement shall
be binding upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any Person not a party to this
Agreement any rights, benefits or remedies of any nature whatsoever.
16. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either of the parties, in whole or in part (whether by
operation of law or otherwise), without the prior written consent of the other party, and any
attempt to make any such assignment without such consent shall be null and void. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and assigns.
17. Specific Performance. The parties hereto agree that irreparable damage would
occur in the event that any provision of this Agreement was not performed in accordance with its
specific terms or was otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of competent jurisdiction, without the
necessity of posting a bond in respect of any such
action, this being in addition to any other remedy to which they are entitled at law or in
equity.
18. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS
SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF
7
DELAWARE WITHOUT REGARD TO ITS RULES OF CONFLICTS OF LAW, EXCEPT TO THE EXTENT THAT THE FBCA
MAY BE REQUIRED TO BE APPLIED. The parties hereby irrevocably submit to the exclusive jurisdiction
of the courts of the State of Delaware and the Federal courts of the United States of America
located in the State of Delaware in respect of all matters arising out of or relating to this
Agreement the interpretation and enforcement of the provisions of this Agreement, and of the
documents referred to in this Agreement, and in respect of the transactions contemplated hereby,
and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable in said courts or
that the venue thereof may not be appropriate or that this Agreement or any such document may not
be enforced in or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined exclusively in such a Delaware
State or Federal court. The parties hereby consent to and grant any such court jurisdiction over
the person of such parties solely for such purpose and over the subject matter of such dispute and
agree that mailing of process or other papers in connection with any such action or proceeding in
the manner provided in Section 13 or in such other manner as may be permitted by law shall be valid
and sufficient service thereof.
19. Headings. The descriptive headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which shall constitute one and the same
instrument. This Agreement shall not become effective as to any party hereto until such time as
this Agreement or a counterparty thereof has been executed and delivered by each party hereto. Any
counterpart may be delivered through electronic means.
[Signature Page Follows]
8
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| TRINET GROUP, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer and Chief Operating Officer |
|||
| STOCKHOLDERS ValueAct Capital Master Fund, L.P. |
||||
| By: | VA Partners I, LLC, its General Partner |
|||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Title: | Chief Operating Officer | |||
| ValueAct Capital Master Fund III, L.P. |
||||
| By: | VA Partners III, LLC, its General Partner |
|||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Title: | Chief Operating Officer | |||
| /s/ Xxxx X. Xxxxxxx | ||||
| Xxxx Xxxxxxx | ||||
[Signature Page to Voting Agreement]
SCHEDULE I
| GEVITY COMMON STOCK | ||
| STOCKHOLDER | TOTAL NUMBER OF SHARES | |
ValueAct Capital Master Fund, L.P. |
2,985,426 | |
ValueAct Capital Master Fund III, L.P. |
305,900 | |
Xxxx Xxxxxxx |
12,093 (restricted shares) | |
