Exhibit 2.2
Execution Copy
TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT, dated as of December 10, 2003 (the
"Agreement"), among Manpower Inc., a Wisconsin corporation ("Manpower") and the
persons listed on Schedule I hereto (each a "Shareholder" and, collectively, the
"Shareholders").
R E C I T A L S:
WHEREAS, as of the date hereof, each Shareholder is the beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), of outstanding shares of Company Common Stock,
and shares of Company Common Stock issuable upon exercise of outstanding
options, warrants and other rights to purchase Company Common Stock as indicated
on Schedule I hereto;
WHEREAS, concurrently with the execution and delivery of this
Agreement, Manpower, Hoosier Acquisition Corp., a Pennsylvania corporation (the
"Merger Sub"), and Right Management Consultants, Inc., a Pennsylvania
corporation (the "Company"), are entering into an Agreement and Plan of Merger
(the "Merger Agreement"), which provides, among other things, for an exchange
offer (the "Offer") to be made by Merger Sub of shares of Manpower Common Stock
for all of the issued and outstanding shares of Company Common Stock, followed
by the merger of Merger Sub with and into the Company (the "Merger"), all on the
terms and subject to the conditions set forth in the Merger Agreement; and
WHEREAS, as an inducement and as a condition to entering into the
Merger Agreement, Manpower has required that the Shareholders agree, and each
Shareholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Definitions. The term "Shares" means (a) all securities of the
Company (including all shares of Company Common Stock and all options, warrants
and other rights to acquire such securities) beneficially owned by the
Shareholder as of the date of this Agreement, and (b) all additional securities
of the Company (including all shares of Company Common Stock and all options,
warrants and other rights to acquire such securities) of which the Shareholder
acquires beneficial ownership during the period from the date of this Agreement
through the termination of this Agreement in accordance with Section 6, below.
In the event of a stock dividend or distribution, or any change in Company
Common Stock by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, the term "Shares" will be deemed to
refer to and include the Shares as well as all such stock dividends and
distributions and any securities into which or for which any or all of the
Shares may be changed or exchanged or which are received in such transaction.
Terms used and not defined herein, but defined in the Merger Agreement,
shall have the respective meanings ascribed to them in the Merger Agreement.
2. Agreement to Tender. Unless Manpower shall otherwise request, each
Shareholder hereby agrees to tender, or cause to be tendered, pursuant to and in
accordance with the terms of the Offer, the Shares (other than unexercised
options, warrants and other rights to acquire shares of Company Common Stock),
and agrees that it will not withdraw or permit the withdrawal of such Shares,
except as set forth in Schedule II hereto. Within ten Business Days after actual
receipt of the preliminary prospectus and other documents in connection with the
Offer, each Shareholder will (i) deliver to the depositary designated in the
Offer (A) a letter of transmittal with respect to the Shares complying with the
terms of the Offer, (B) a certificate or certificates representing the Shares
and (C) all other documents or instruments required to be delivered pursuant to
the terms of the Offer and/or (ii) instruct its broker or such other Person who
is the holder of record of any Shares beneficially owned by such Shareholder to
promptly tender such Shares in exchange in the Offer pursuant to the terms and
conditions of the Offer.
3. Voting.
(a) Each Shareholder shall, at any meeting of the shareholders
of the Company, however called, or in connection with any written
consent of the shareholders of the Company, vote (or cause to be voted)
all Shares then beneficially owned by such Shareholder (to the extent
the Shareholder has the right to vote or direct the voting of such
Shares), (i) in favor of the Merger, the execution and delivery by the
Company of the Merger Agreement and the approval of the terms thereof
and each of the other actions contemplated by the Merger Agreement and
this Agreement and any actions required in furtherance thereof and
hereof and (ii) against approval of any Acquisition Proposal and
against any action or agreement that would impede, frustrate, prevent
or nullify this Agreement, or result in a breach in any respect of any
covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or which would
delay or otherwise adversely affect the Merger or the Offer.
(b) Each Shareholder hereby covenants and agrees that, except
as contemplated by this Agreement and the Merger Agreement, her or she
shall not (i) offer to transfer (which term shall include, without
limitation, any sale, tender, gift, pledge, assignment or other
disposition), transfer or consent to any transfer of, any or all of the
Shares beneficially owned by such Shareholder (to the extent the
Shareholder has the right to dispose of or direct the disposition of
such Shares) or any interest therein without the prior written consent
of Manpower, such consent not to be unreasonably withheld in the case
of a gift or similar estate planning transaction (it being understood
that Manpower may decline to consent to any such transfer if the person
acquiring such Shares does not agree to take such Shares subject to the
terms of this Agreement), (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all
of such Shares or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization or consent in or with respect
to such Shares, (iv) deposit such Shares into a voting trust or enter
into a voting agreement or arrangement with respect to such Shares or
(v) take any other action that would make any representation or
warranty of such Shareholder contained herein untrue or incorrect in
any material respect or in any way restrict, limit or interfere in any
material respect with the performance of his or her obligations
hereunder or the transactions contemplated hereby or by the Merger
Agreement. Notwithstanding anything contained herein to the contrary,
for the avoidance of doubt, during the term of this Agreement, each
Shareholder shall be permitted to exercise options, warrants or other
rights to acquire shares of Company Common Stock.
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(c) Subject to Section 7, each Shareholder hereby agrees that
such Shareholder shall not, directly or indirectly, encourage, solicit,
initiate or participate in any way in any discussions or negotiations
with, or provide any information to, or afford any access to the
properties, books or records of the Company or any Company Subsidiaries
to, or otherwise take any other action to assist or facilitate, any
person or group (other than Manpower or any affiliate or associate of
Manpower) concerning any Acquisition Proposal. Each Shareholder
acknowledges that, although he or she has no personal liability under
the Merger Agreement, Section 5.7 of the Merger Agreement restricts
certain actions by the Shareholder as a Company Representative.
(d) Subject to the terms and conditions of this Agreement,
each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws
to consummate and make effective the transactions contemplated by this
Agreement. Each party shall promptly consult with the other and provide
any necessary information and material with respect to all filings made
by such party with any Governmental Entity in connection with this
Agreement and the transactions contemplated hereby.
(e) Each Shareholder hereby waives any rights of appraisal or
rights to dissent from the Merger that he or she may have.
4. Representations and Warranties of Each Shareholder. Each Shareholder
hereby represents and warrants, severally and not jointly, to Manpower as
follows:
(a) Such Shareholder is the record or beneficial owner of the
Shares set forth opposite his or her name on Schedule I. Such Shares
constitute all of the shares owned of record or beneficially owned by
such Shareholder on the date hereof. Such Shareholder has sole voting
power and sole power to issue instructions with respect to the matters
set forth in Sections 2 and 3 hereof, sole power of disposition, sole
power to demand and waive appraisal rights and sole power to agree to
all of the matters set forth in this Agreement, in each case with
respect to all of such Shares with no limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and
the terms of this Agreement, except as set forth in Schedule II hereto.
(b) Such Shareholder has the power and authority to enter into
and perform all of such Shareholder's obligations under this Agreement.
This Agreement has been duly and validly executed and delivered by such
Shareholder and, assuming due authorization, execution and delivery by
Manpower, constitutes a legal, valid and binding agreement of such
Shareholder, enforceable against such Shareholder in accordance with
its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Shareholder is
a trustee, or any party to any other agreement or arrangement, whose
consent is required for the execution and delivery of this Agreement or
the consummation by such Shareholder of the transactions contemplated
thereby.
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(c)(i) No filing with, and no permit, authorization, consent
or approval of, any Governmental Entity is necessary for the execution
and delivery of this Agreement by such Shareholder, the consummation by
such Shareholder of the transactions contemplated hereby and the
compliance by such Shareholder with the provisions hereof and (ii) none
of the execution and delivery of this Agreement by such Shareholder,
the consummation by such Shareholder of the transactions contemplated
hereby or compliance by such Shareholder with any of the provisions
hereof, except in cases in which any conflict, breach, default or
violation described below would not interfere with the ability of such
Shareholder to perform such Shareholder's obligations hereunder, shall
(A) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, modification or acceleration)
under, any of the terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation
of any kind, including, without limitation, any voting agreement, proxy
arrangement, pledge agreement, shareholders agreement, right of first
refusal, or voting trust, to which such Shareholder is a party or by
which he or she or any of his or her properties or assets may be bound
or (B) violate any order, writ, injunction, decree, judgment, statute,
rule or regulation applicable to such Shareholder or any of his or her
properties or assets.
(d) Except as permitted by this Agreement, the Shares
beneficially owned by such Shareholder and the certificates
representing such Shares are now, and at all times during the term
hereof will be, held by such Shareholder, or by a nominee or custodian
for the benefit of such Shareholder, free and clear of all liens,
proxies, voting trusts or agreements, understandings or arrangements or
any other rights whatsoever, except for any such liens or proxies
arising hereunder, or as may arise under applicable securities laws or
as set forth on Schedule II hereto. The transfer by such Shareholder of
the Shares to Merger Sub or Manpower in accordance with the terms of
the Merger Agreement shall pass to and unconditionally vest in Merger
Sub or Manpower good and valid title to all Shares, free and clear of
all liens, proxies, voting trusts or agreements, rights of first
refusal, understandings or arrangements or any other rights whatsoever,
except as set forth in Schedule II hereto.
(e) No broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
such Shareholder.
(f) Each Shareholder understands and acknowledges that
Manpower is entering into the Merger Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement.
5. Stop Transfer. Each Shareholder shall request that the Company not
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares beneficially owned by
such Shareholder, unless such transfer is made in compliance with this
Agreement.
6. Termination. This Agreement shall terminate with respect to any
Shareholder upon the earliest of (a) the Effective Time or (b) the termination
of the Merger Agreement.
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7. No Limitation. Notwithstanding any other provision hereof, nothing
in this Agreement shall be construed to prohibit or limit a Shareholder from
taking any action or from voting on any matter in his or her capacity as a
member of the Company Board or as an officer of the Company (including at the
direction of the Company Board) or from otherwise complying with or exercising
his or her fiduciary duties as a member of the Company Board or as an officer of
the Company to the extent specifically permitted by the Merger Agreement.
8. Miscellaneous.
(a) This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes
all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of each Shareholder (in
the case of any assignment by Manpower) or Manpower (in the case of an
assignment by a Shareholder), provided that Manpower may assign its
rights and obligations hereunder to any affiliate of Manpower, but no
such assignment shall relieve Manpower of its obligations hereunder.
(c) Without limiting any other rights Manpower may have
hereunder in respect of any transfer of Shares, each Shareholder agrees
that this Agreement and the obligations hereunder shall attach to the
Shares beneficially owned by such Shareholder and shall be binding upon
any person to which legal or beneficial ownership of such Shares shall
pass, whether by operation of law or otherwise, including, without
limitation, such Shareholder's heirs, guardians, administrators or
successors.
(d) This Agreement may not be amended, changed, supplemented
or otherwise modified with respect to a Shareholder except by an
instrument in writing signed on behalf of such Shareholder and
Manpower.
(e) 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 received if given) by hand delivery
or by facsimile transmission with confirmation of receipt, as follows:
If to a Shareholder:
c/o Right Management Consultants, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone: 000.000.0000
Telecopy: 215.988.0147
With a copy to:
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
00xx & Xxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: 000.000.0000
Telecopy: 215.981.4750
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If to Manpower:
Manpower Inc.
0000 X. Xxxxxxxx Xx.
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxx Xxxxxx
Telephone: 000.000.0000
Telecopy: 414.906.7985
With a copy to:
Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Phone: 000.000.0000
Telecopy: 414.273.5198
or to such other address or facsimile number as the person to whom
notice is given may have previously furnished to the others in writing
in the manner set forth above.
(f) Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal
or unenforceable provision or portion of any provision had never been
contained herein.
(g) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise thereof by
any party shall not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
(h) The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
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(i) This Agreement shall be binding upon and inure solely to
the benefit of each party hereto and in the case of the Shareholders,
any person who acquires any shares in accordance with Section 3(b),
above, and nothing in this Agreement, express or implied, is intended
to confer upon any other person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
(j) This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Pennsylvania.
(k) The parties agree that irreparable damage would occur 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 the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement
in any Pennsylvania state court located in the City of Philadelphia or
any Federal court located in the Eastern District of Pennsylvania, 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 (A) consents to
submit itself to the personal jurisdiction of any Pennsylvania state
court located in the City of Philadelphia or any Federal court located
in the Eastern District of Pennsylvania in the event any dispute arises
out of this Agreement or any transaction contemplated by this
Agreement, (B) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any
such court and (C) agrees that it will not bring any action relating to
this Agreement or any transaction contemplated by this Agreement in any
court other than any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any
action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in the courts of the Commonwealth of
Pennsylvania located in the City of Philadelphia or in any Federal
court located in the Eastern District of Pennsylvania, and hereby
further irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
(l) The descriptive headings used 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.
(m) This Agreement may be executed in counterparts (by fax or
otherwise), each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same agreement.
(n) Except as otherwise provided herein, each party shall pay
its, his or her own expenses incurred in connection with this
Agreement.
(o) Each of the obligations of each of the Shareholders
hereunder is several and not joint.
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IN WITNESS WHEREOF, Manpower and the Shareholders have caused this
Agreement to be duly executed in multiple counterparts as of the day and year
first above written.
MANPOWER INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
SHAREHOLDERS:
/s/ XXXXXXX X. XXXXXX /s/ XXXXXXXX X. XXXXX
----------------------------- -------------------------------
XXXXXXX X. XXXXXX XXXXXXXX X. XXXXX
/s/ XXXXXX X. XXXXX /s/ XXXXXXXXXXX XXXXXX-XXXXX
----------------------------- -------------------------------
XXXXXX X. XXXXX XXXXXXXXXXX XXXXXX-XXXXX
/s/ XXXX X. XXXXX /s/ XXXXX X. XXXXXXXX
----------------------------- -------------------------------
XXXX X. XXXXX XXXXX X. XXXXXXXX
/s/ G. XXX XXXX /s/ XXXX X. XXXXXX
----------------------------- -------------------------------
X. XXX XXXX XXXX X. XXXXXX
/s/ XXXXXXX X. XXXXXX /s/ DR. R. XXXXXXX XXXXXXX
----------------------------- -------------------------------
XXXXXXX X. XXXXXX DR. R. XXXXXXX XXXXXXX
/s/ XXXXXXXX X. XXXXX /s/ XXXXXX XX XXX
----------------------------- -------------------------------
XXXXXXXX X. XXXXX XXXXXX XX XXX
/s/ XXXXXXX X. XX XXXXXX /s/ XXXXXX X. XXXXXX
----------------------------- -------------------------------
XXXXXXX X. XX XXXXXX XXXXXX X. XXXXXX
/s/ XXXXXX X. XXXX /s/ XXXXX XXXXXX
----------------------------- -------------------------------
XXXXXX X. XXXX XXXXX XXXXXX
/s/ XXXXX X. XXXXXXX
-----------------------------
XXXXX X. XXXXXXX
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Second Signature Page to Tender and Voting Agreement
Dated December 10, 2003
/s/ XXXXX X. XXXXXXXXX
-------------------------------
XXXXX X. XXXXXXXXX
/s/ XXXXXXX XXXXXXX
-------------------------------
XXXXXXX XXXXXXX
/s/ XXXX X. XXXXXXXX
-------------------------------
XXXX X. XXXXXXXX
/s/ XXXXX X. XXXXX
-------------------------------
XXXXX X. XXXXX
/s/ XXXXXXXXX XXXXXXXX
-------------------------------
XXXXXXXXX XXXXXXXX
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SCHEDULE I
Number of Shares of
Number of Shares of Company Common Stock
Company Common Stock Subject to Company
Beneficially Owned Options
--------------------- ---------------------
Name of Beneficial Owner
------------------------
Xxxxxxx X. Xxxxxx 909,437 1,953,201
Xxxxxx X. Xxxxx 61,676 703,371
Xxxx X. Xxxxx 63,755 564,377
G. Xxx Xxxx 5,127 37,500
Xxxxxxx X. Xxxxxx 29,782 118,125
Xxxxxxxx X. Xxxxx 11,125 10,000
Xxxxxxx X. XxXxxxxx 2,356 22,500
Xxxxxx X. Xxxx 9,574 54,375
Xxxxx X. Xxxxxxx 125 5,000
Xxxxxxxx X. Xxxxx 14,664 40,313
Xxxxxxxxxxx Xxxxxx-Xxxxx 9,854 121,875
Xxxxx X. Xxxxxxxx 30,115 133,125
Xxxx X. Xxxxxx 25,010 61,125
Dr. R. Xxxxxxx Xxxxxxx 12,535 71,250
Xxxxxx XxXxx 2,905 33,750
Xxxxxx X. Xxxxxx 12,590 32,500
Xxxxx Xxxxxx - 18,750
Xxxxx X. Xxxxxxxxx 198,333 68,114
Xxxxxxx Xxxxxxx 5,000 7,500
Xxxx X. Xxxxxxxx 49,224 54,189
Xxxxx X. Xxxxx 102,537 49,128
Xxxxxxxxx Xxxxxxxx 84,288 18,750
SCHEDULE II
Xxxxxxx Xxxxxx has entered into prepaid variable share forward arrangements
covering 337,500 Shares under which, if such Shares are not previously tendered
in an exchange or tender offer, which requires the cooperation of the
counterparty, then in a merger they will be converted into the right to receive
shares of the acquiror or other consideration pursuant to the terms of the
applicable merger agreement.
