Exhibit 2.2
Apax US VII, L.P.
| Apax Europe VII - A, L.P. | |
Apax Europe VII - 1, L.P. | Apax Europe VII - B, L.P. Third Floor, Royal Bank Place 1 Glategny Esplanade St Peter Port Guernsey GY1 2HJ | |
EQUITY COMMITMENT LETTER
July 22, 2009
BEN Holdings, Inc.
601 Lexington Avenue, 53rd Floor
New York, New York 10022
Re: Project Ben Merger Agreement
Ladies and Gentlemen:
This letter agreement sets forth the commitment of Apax Europe VII-A, L.P., Apax Europe VII-B, L.P., Apax Europe VII-1, L.P., and Apax US VII, L.P. (collectively, “Sponsor”), subject to the terms and conditions contained herein, to purchase, or cause the purchase of, certain equity and/or debt securities of BEN Holdings, Inc., a newly-formed Delaware corporation (“Parent”) and/or a wholly-owned Subsidiary of Parent. It is contemplated that, pursuant to that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “MergerAgreement”) by and among Parent, Merger Sub, and Ban krate, Inc. (the “Company”), Merger Sub has agreed to (i) commence a tender offer for all of the outstanding Shares (the “Offer”) and (ii) if the Offer is completed on the terms and subject to the conditions set forth in the Merger Agreement, merge with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly-owned subsidiary of Parent. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Merger Agreement.
1. Commitment. Sponsor hereby commits to Parent and Merger Sub, subject to the terms and conditions set forth herein, that, at the Acceptance Time, it shall purchase, or shall cause the purchase of, equity and/or debt securities of Parent and/or a wholly-owned Subsidiary of Parent for an aggregate amount in cash up to US$570,800,000 (the “Commitment”), solely for the purpose of allowing Parent to contribute the Commitment to
Merger Sub, of which (i) an amount up to the product of the Offer Price multiplied by the number of Shares validly tendered and not properly withdrawn pursuant to the Offer as provided in Section 1.1 of the Merger Agreement will be contributed at the Acceptance Time to fund the payment for such Shares and the cash-out of the Company Stock Options, and (ii) the remainder of the Commitment will be contributed at the Effective Time to fund the acquisition of Shares in connection with the Merger and, in each case, the payment of related fees and expenses;provided, that under no circumstance shall Sponsor be obligated to fund, in the aggregate, an amount in excess of the Commitment. Sponsor may effect the purchase of such equity and/or debt securities of Parent and/or a wholly-owned Subsidiary of Parent directly or indirectly through one or more affiliated entities. The amount of the Commitment to be funded under this letter agreement may be reduced in an amount specified by Parent but only to the extent that it will thereafter be possible for Parent to consummate the transactions contemplated by the Merger Agreement with Sponsor contributing less than the full amount of its Commitment.
2. Conditions. The Commitment shall be subject to (a) with respect to the obligations to accept for payment and pay for any validly tendered and not properly withdrawn Shares (i) the execution and delivery of the Merger Agreement by the Company, (ii) the satisfaction, or waiver by Parent (with the prior written approval of Sponsor), of each of the conditions to Parent’s and Merger Sub’s obligations to consummate the Offer set forth in Annex A of the Merger Agreement, and (iii) the contemporaneous acceptance for payment by Merger Sub of the Shares validly tendered and not properly withdrawn pursuant to the Offer in accordance with the terms of the Merger Agreem ent, and (b) with respect to the Shares to be paid for at the time of the Merger, subject to the satisfaction or waiver by Parent (with the prior written approval of Sponsor) of the conditions to Parent’s and Merger Sub’s obligations to effect the Merger set forth in Section 7.1 of the Merger Agreement.
3. Enforceability. This letter agreement may only be enforced by Parent. In no event shall any of Parent’s creditors shall have any right to enforce this letter agreement or to cause Parent to enforce this letter agreement.
4. NoModification. This letter agreement may not be amended or otherwise modified without the prior written consent of Parent and Sponsor. No transfer of any rights or obligations hereunder shall be permitted without the consent of Parent and Sponsor. Any transfer in violation of the preceding sentence shall be null and void.
5. GoverningLaw; Jurisdiction; Venue. This letter agreement, and all claims and causes of action arising out of, based upon, or related to this letter agreement or the negotiation, execution or performance hereof, shall be governed by, and construed, interpreted and enforced in accordance with, the Laws of the State of Delaware, without regard to choice or conflict of law principles that would result in the application of any Laws other than the Laws of the State of Delaware. Any legal action, suit or proceeding arising out of, based upon or relating to this letter agreement or the transactions contemplated hereby shall be brought solely in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of the parties hereto hereby irrevocably submits to the exclusive jurisdiction of such courts in respect of any legal action, suit or proceeding arising out of, based upon or relating to this letter agreement and the rights and
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obligations arising hereunder and agrees that it will not bring any action arising out of, based upon or related to this letter agreement in any other court. Each of the parties hereto hereby irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any legal action, suit or proceeding arising out of, based upon or relating to this letter agreement, (a) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve process as set forth below, (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable Law, any claim that (i) the suit, action or proceedin g in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this letter agreement, or the subject mater hereof, may not be enforced in or by such courts. Each of the parties hereto agrees that notice or the service of process in any action, suit or proceeding arising out of, based upon or relating to this letter agreement or the rights and obligations arising hereunder shall be properly served or delivered if delivered in the manner contemplated by Section 7 hereof.
6. Notices. All notices, requests, claims, demands and other communications hereunder shall be given and shall be deemed to have been duly received (a) upon receipt by hand delivery, (b) upon receipt after dispatch by registered or certified mail, postage prepaid, (c) on the next Business Day if transmitted by national overnight courier with confirmation of delivery, or (d) upon confirmation of delivery if transmitted by facsimile, as follows:
if to Sponsor:
Apax US VII, L.P.
c/o Walkers SPV
Limited P.O. Box 908GT
Mary Street
George Town
Grand Cayman
Cayman Islands
Attn.: Susan Ebanks
Facsimile: 345-945-4757
Apax Europe VII - 1, L.P.
Third Floor, Royal Bank Place
1 Glategny Esplanade
St Peter Port
Guernsey GY1 2HJ
Attn.: Denise Fallaize
Facsimile: 44 1481 810099
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Apax Europe VII - A, L.P.
Third Floor, Royal Bank Place
1 Glategny Esplanade
St Peter Port
Guernsey GY1 2HJ
Attn.: Denise Fallaize
Facsimile: 44 1481 810099
Apax Europe VII - B, L.P.
Third Floor, Royal Bank Place
1 Glategny Esplanade
St Peter Port
Guernsey GY1 2HJ
Attn.: Denise Fallaize
Facsimile: 44 1481 810099
in each case with a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attn: Kirk A. Radke
Kim Taylor
Facsimile: (212) 446-6460
if to Parent, addressed as provided in the Merger Agreement.
7. WAIVEROF JURY TRIAL. EACH OF THE PARTIES HERETOIRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHT SUCH PARTY MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION, SUIT OR PROCEEDING BETWEEN THE PARTIES HERETO ARISING OUT OF, BASED UPON OR RELATING TO THIS LETTER AGREEMENT OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF.
8. Counterparts. This letter agreement may be executed by facsimile or electronic transmission and 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.
9. NoThird Party Beneficiaries. This letter agreement shall inure to the benefit of and be binding upon Parent and Sponsor. Nothing in this letter agreement, express or implied, is intended to nor does it confer upon any person other than Parent and Sponsor any rights or remedies under, or by reason of, or any rights to enforce or cause Parent to enforce, the Commitment or any provisions of this letter agreement or to confer upon any person any rights or remedies against any person other than Sponsor (but only at the direction of Sponsor as contemplated hereby) under or by reason of this letter agreement. Without limiting the
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foregoing, Parent’s creditors shall have no right to specifically enforce this letter agreement or to cause Parent to enforce this letter agreement.
10. SeveralLiability. Notwithstanding anything to the contrary contained in this letter agreement, the liability of each Sponsor hereunder shall be several, not joint and several, based upon its respective Pro Rata Percentage, and no Sponsor shall be liable for any amounts hereunder in excess of its Pro Rata Percentage of the Commitment or the Limited Commitment, as applicable. The “Pro Rata Percentage” of each Sponsor is as set forth below:
| Apax Europe VII-A, L.P. | 32.272% |
| Apax Europe VII-B, L.P. | 59.213% |
| Apax Europe VII-1, L.P. | 1.515% |
| Apax US VII, L.P. | 7.00% |
| 100% |
11. Termination. The obligation of Sponsor to fund the Commitment will terminate automatically and immediately upon the earliest to occur of (a) the Effective Time, (b) the termination of the Merger Agreement in accordance with its terms, (c) the tender of the Parent Termination Fee, and (d) the funding of the Commitment.
12. NoRecourse. Notwithstanding anything that may be expressed or implied in this letter agreement or any document or instrument delivered in connection herewith, and notwithstanding the fact that Sponsor may be a partnership or limited liability company, by its acceptance of the benefits of this letter agreement, Parent acknowledges and agrees that no Person other than Sponsor has any obligations hereunder and that no recourse shall be had hereunder, or for any claim based on, in respect of, or by reason of, such obligations or their creation, against, and no personal liability shall attach to, any member of the Parent Group, through Parent, Merger Sub or otherw ise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Parent against any member of the Parent Group, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise.
| * * * * * (signature page follows) |
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Sincerely,
For and on behalf of Apax Partners Europe Managers Limited as Manager of
Apax Europe VII - A, L.P.
By:_/s/ Andrew Sillitoe_________________ | By:_/s/ Tom Hall______________________ |
| Name: Andrew Sillitoe | Name: Tom Hall |
| Title: Authorised Signatory | Title: Authorised Signatory |
For and on behalf of Apax Partners Europe Managers Limited as Manager of
Apax Europe VII - B, L.P.
By:_/s/ Andrew Sillitoe_________________ | By:_/s/ Tom Hall______________________ |
| Name: Andrew Sillitoe | Name: Tom Hall |
| Title: Authorised Signatory | Title: Authorised Signatory |
For and on behalf of Apax Partners Europe Managers Limited as Manager of
Apax Europe VII - 1, L.P.
By:_/s/ Andrew Sillitoe_________________ | By: _/s/ Tom Hall______________________ |
| Name: Andrew Sillitoe | Name: Tom Hall |
| Title: Authorised Signatory | Title: Authorised Signatory |
| Apax US VII, L.P. |
| By: Apax US VII GP, L.P. its General Partner |
| By: Apax US VII GP, Ltd. its General Partner |
| By:_/s/ John F. Megrue______________________ |
| Name: John F. Megrue |
| Title: CEO |
[Signature Page to Equity Commitment Letter]
| Agreed to and accepted: |
| BEN Holdings, Inc. |
| By: _/s/ Mitch Truwit______________________ |
| Name: Mitch Truwit |
| Title: Vice President |
[Signature Page to Equity Commitment Letter]