Exhibit 2.2
Execution Copy
SUPPORT AGREEMENT AND GUARANTEE
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THIS SUPPORT AGREEMENT AND GUARANTEE (this "Agreement") is made and entered
into as of June 21, 2001, by and between Renaissance Worldwide, Inc., a
Massachusetts corporation (the "Company"), and G. Xxxx Xxxxxx ("GDC" or the
"Stockholder").
WHEREAS, each of Registry Holding Company, Inc., a Delaware corporation
("Parent"), and Redwood Acquisition Corp., a Massachusetts corporation and
wholly owned subsidiary of Parent ("Sub"), have been formed by or at the
direction of GDC for purposes of entering into an Agreement and Plan of Merger,
dated as of the date hereof (as the same may be amended or supplemented, the
"Merger Agreement") with respect to the merger of Sub with and into the Company
(the "Merger"); and
WHEREAS, GDC, Parent and Sub desire that the Company enter into the Merger
Agreement and consummate the Merger and GDC is executing this Agreement as an
inducement to Company to enter into and execute the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Company
of the Merger Agreement and the mutual covenants, conditions and agreements
contained herein and therein, the parties agree as follows:
1. Representations and Warranties. GDC represents and warrants to the Company
as follows:
(a) GDC is the record and beneficial owner of the number of shares
(the "Stockholder's Shares") of capital stock, no par value per share, of
the Company ("Company Capital Stock") set forth below the Stockholder's
name on the signature page hereof. This Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement
of, GDC, enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by GDC of the transactions contemplated hereby will result in
a violation of, or a default under, or conflict with, any contract, trust,
commitment, agreement, understanding, arrangement or restriction of any
kind to which GDC is a party or bound or to which the Stockholder's Shares
are subject. If the Stockholder is married and the Stockholder's Shares
constitute community property, this Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement
of, the Stockholder's spouse, enforceable against such person in accordance
with its terms. Consummation by GDC of the transactions contemplated hereby
will not violate, or require any consent, approval, or notice under, any
provision of any judgment, order, decree, statute, law, rule or regulation
applicable to GDC or the Stockholder's Shares.
(c) The Stockholder's Shares and the certificates representing the
Stockholder's Shares are now, and at all times during the term hereof will
be, held by GDC, or by a nominee or custodian for the benefit of GDC, or by
Parent as transferee of GDC as contemplated by Section 4.07 of the Merger
Agreement, in each case free and clear of all liens, security interests,
proxies, voting trusts or voting agreements or any other encumbrances
whatsoever, except for restrictions on transfer arising under applicable
securities laws and any such voting agreements, encumbrances or proxies
arising hereunder.
(d) Except for XX Xxxxx Securities Corporation, no broker, investment
banker, financial adviser or other person is entitled to any broker's,
finder's, financial adviser's or other similar fee or commission in
connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of GDC.
(e) GDC understands and acknowledges that Company is entering into the
Merger Agreement in reliance upon GDC's execution and delivery of this
Agreement.
2. Voting Agreements. GDC agrees with, and covenants to, the Company that
at any meeting of stockholders of the Company called to vote upon the Merger and
the Merger Agreement or at any adjournment thereof or in any other circumstances
upon which a vote, consent or other approval with respect to the Merger and the
Merger Agreement is sought, GDC shall vote (or cause to be voted) the
Stockholder's Shares in favor of the Merger, the execution and delivery by
Company of the Merger Agreement, and the approval of the terms thereof and each
of the other transactions contemplated by the Merger Agreement.
3. Covenants. GDC agrees with, and covenants to, the Company that GDC shall
not (i) transfer (which term shall include, without limitation, for the purposes
of this Agreement, any sale, gift, pledge, encumbrance, grant of security
interest in or other disposition), or consent to any transfer of, any or all of
the Stockholder's Shares or any interest therein, except pursuant to the Merger
or as a capital contribution as contemplated by Section 4.07 of the Merger
Agreement; (ii) enter into any contract, option or other agreement or
understanding (other than this Agreement) with respect to any transfer of any or
all of the Stockholder's Shares or any interest therein, except as a capital
contribution as contemplated by Section 4.07 of the Merger Agreement; (iii)
grant any proxy, power of attorney or other authorization in or with respect to
such shares, except for this Agreement; or (iv) deposit such shares into a
voting trust or enter into a voting agreement or arrangement (other than this
Agreement) with respect to such shares.
4. Limitation on Recourse. The Company's sole recourse with respect to any
breach of this Agreement by GDC (including, without limitation, any of GDC's
obligations under Section 7 hereof) shall be against the Stockholder's Shares,
provided that the Stockholder's Shares are made available by GDC to the Company
to satisfy his obligations hereunder; and provided further that the foregoing
limitation of recourse shall not apply to any disputes, claims, losses, costs,
liabilities, expenses or damages (including, but not limited to, any inability
to collect) arising out of or resulting from any misrepresentation or breach of
representations or warranty contained in Section 1(a), 1(b) or 1(c) of this
Agreement or any breach or violation of the covenants contained in Section 3 of
this Agreement, in which case recourse shall be limited to an aggregate dollar
amount equal to 11,716,070 multiplied by the per share fair market value of
Company Capital Stock.
5. Certain Events. GDC agrees that this Agreement and the obligations
hereunder shall attach to the Stockholder's Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of any or all of the
Stockholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Stockholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Company Capital Stock, or the acquisition of additional shares of
Company Capital Stock or other voting securities of the Company by GDC, the
number of the Stockholder's Shares subject to the terms of this Agreement shall
be adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional shares of Company Capital Stock or other voting
securities of Company issued to or acquired by GDC.
6. Legends. GDC agrees that at the request of the Company GDC will place a
legend, referring to this Agreement and in a form reasonably satisfactory to the
Company, on the certificates representing the Stockholder's Shares.
7. Guarantee. By his execution hereof, GDC hereby unconditionally and
irrevocably guarantee to the Company and its successors, transferees and
assigns, the due and punctual payment when such payments become due and payable
and the timely observance and performance by the Parent and Sub of all other
obligations of Parent and Sub or any of their respective successors or assigns
under the Merger Agreement, including but not limited to all obligations of the
Surviving Corporation under the Agreement, in accordance with their respective
terms (collectively the "Obligations"), subject to the following terms and
conditions.
(a) Except as hereafter provided, the foregoing guarantee is an
unlimited and continuing guarantee of payment and performance, and in the
case of such Obligations which relate to payment of money a continuing
guarantee of indefeasible payment (and not merely a guarantee of
collectibility) of the Obligations.
(b) No payment or performance by Parent or Sub, the Surviving
Corporation or any other Person (nor any payment or performance received by
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the Company or its stockholders or any other Person, nor any set-off or
counterclaim whatsoever) shall be deemed to modify, reduce, release or
otherwise affect the liability of GDC under this guarantee.
(c) GDC shall remain obligated hereunder notwithstanding any
amendment, extension, modification, renewal, acceleration or other change
in the Obligations, without any reservation of rights against GDC and
without notice to or further assent by GDC, and this Guarantee shall
constitute an irrevocable, unconditional guarantee of the Obligations as so
amended, extended, modified, renewed, accelerated or otherwise changed and
in effect from time to time.
(d) The obligations of GDC hereunder are irrevocable and shall
continue notwithstanding (i) any termination of or change in the
relationship between GDC and Parent or Sub (including but not limited to
any change in the ownership of Parent or Sub); and (ii) any exercise of, or
any election not to exercise or failure to exercise, delay in the exercise
of, waiver of, or forbearance or other indulgence with respect to, any
right, remedy or power available to the Company (including but not limited
to any (A) election not to exercise or failure to exercise any right of
set-off, recoupment or counterclaim, (B) election of remedies, and (C)
election to proceed against Parent or Sub under bankruptcy laws).
(e) The provisions of this Section 7 shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned or turned over by the Company (prior to the Effective
Time of the Merger) or by any stockholder (at any time prior to or after
the Effective Time of the Merger) upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of (or similar circumstance with
respect to) Parent or Sub or GDC, or upon or as a result of the appointment
of a receiver, intervenor, or conservator of, or trustee or similar
representative for, Parent, Sub or GDC or any substantial part of their
property, or otherwise, all as though such payment had not been made.
(f) The Obligations guaranteed hereby shall be deemed not to have been
paid, observed or performed, and GDC's obligations hereunder in respect
thereof shall continue and not be discharged, to the extent that any
payment, observance or performance thereof by Parent, Sub, GDC or any other
person is recovered from or paid over by or for the account of Parent, Sub
or any other person for any reason.
(g) GDC hereby expressly waives the benefit of any applicable statute
of limitations and agrees that it shall be liable hereunder with respect to
any Obligation whenever such a recovery or payment over thereof occurs.
(h) GDC hereby agrees that all indebtedness, claims and liabilities
now or hereafter owing by Parent or Sub (or their respective successors or
assigns, including but not limited to the Surviving Corporation) to GDC are
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hereby subordinated to the prior payment in full of the Obligations and are
so subordinated as a claim against Parent and Sub (or their successors or
assigns, including but not limited to the Surviving Corporation) or its or
their assets in the event of voluntary or involuntary liquidation,
dissolution, insolvency or bankruptcy of Parent or Sub, so that no payment
with respect to any such indebtedness, claim or liability will be made or
received by GDC while any of the Obligations are outstanding.
(i) Notwithstanding anything in this Agreement to the contrary, the
Company agrees that GDC automatically shall be released from his
obligations under this Agreement at such time as GDC irrevocably transfers
to Parent free and clear of all liens, security interests, proxies, voting
trusts or voting agreements or any other encumbrances whatsoever (except
for restrictions on transfer arising under applicable securities laws), as
a capital contribution solely in exchange for equity securities of Parent,
not less than 11,716,070 shares of Company Common Stock, as contemplated by
Section 4.07 of the Merger Agreement.
8. Further Assurances. GDC shall, upon request of Company, execute and
deliver any additional documents and take such further actions as may reasonably
be deemed by Company to be necessary or desirable to carry out the provisions
hereof.
9. Termination. This Agreement (other than the provisions of Section 7),
and all rights and obligations of the parties hereunder (other than the rights
and obligations under Section 7 hereof) shall terminate upon the termination of
the Merger Agreement or upon consummation of the Merger (as defined in the
Merger Agreement). The provisions of Section 7, and all rights and obligations
of the parties under Section 7 hereof shall terminate upon the earlier of (i)
consummation of the Merger or (ii) the time provided in Section 7(i).
10. Enforcement Costs. If any party institutes an action for the
enforcement of this Agreement, the prevailing party shall be entitled to
reimbursement on demand of all costs and expenses of such action including
reasonable legal fees.
11. Miscellaneous
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger
Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice): (i) if to the
Company to the address provided in the Merger Agreement; and (ii) if to a
Stockholder, to its address shown below its signature on the last page
hereof.
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(c) 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) This Agreement may be executed in one or more counterparts, each
of which shall be considered an original hereof and one and the same
agreement.
(e) This Agreement (including the documents and instruments referred
to herein) 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.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Massachusetts, regardless of the laws
that might otherwise govern under applicable principles of conflicts of
laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior
written consent of the other parties. Any assignment in violation of the
foregoing shall be void.
(h) GDC agrees that irreparable damage would occur and that Company
would not have any adequate remedy at law 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
Company shall be entitled to an injunction or injunctions to prevent
breaches by GDC of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court, 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 (i) consents to submit such party to the
personal jurisdiction of any Federal court located in the Commonwealth of
Massachusetts or any Commonwealth of Massachusetts state court in the event
any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (ii) 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 and (iii) agrees that such party will not bring any
action relating to this Agreement or any of the transactions contemplated
hereby in any court other than a Federal court sitting in the Commonwealth
of Massachusetts or a Massachusetts state court. The foregoing remedies are
in addition to, and not in lieu of, any payment required to be made by the
Company pursuant to the terms of the Merger Agreement.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and
the application thereof to
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any other circumstances, shall remain in full force and effect, shall not
in any way be affected, impaired or invalidated, and shall be enforced to
the fullest extent permitted by law.
12. No amendment, modification or waiver in respect of this Agreement shall
be effective against any party unless it shall be in writing and signed by such
party.
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IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Agreement as of the day and year first above written.
THE STOCKHOLDER:
/s/ G. Xxxx Xxxxxx
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Name: G. Xxxx Xxxxxx
Address: 000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 024
Number of Shares: 11,716,070
RENAISSANCE WORLDWIDE, INC.
By: /s/ Xxxxxxxxxxx X. X. Xxxxxxx
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Name: Xxxxxxxxxxx X. X. Xxxxxxx
Title: Vice President, General Counsel & Clerk
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