Exhibit 2.2
DATED 6TH JULY, 2000
EDGEWATER TECHNOLOGY, INC.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
WEST LB PANMURE LIMITED
CHARTERHOUSE SECURITIES LIMITED
ROBERT WALTERS PLC
and
THE DIRECTORS
___________________________________
DEED OF GUARANTEE
in respect of the obligations of
RW Holding, C.V. and FAIT, L.L.C. pursuant to
a Sponsorship and Underwriting Agreement
and the obligations of RW Holding, C.V. pursuant to
a Stock Lending Agreement
___________________________________
THIS DEED OF GUARANTEE is made on 6th July, 2000
BETWEEN:
(1) EDGEWATER TECHNOLOGY, INC., a Delaware corporation whose principal place of
business is at 302 East Millsap Road, Fayetteville, Arkansas 72703 USA
(the "Guarantor");
(2) CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED of One Cabot Square, London E14
4QJ (the "Sponsor");
(3) WEST LB PANMURE LIMITED ("West LB") and CHARTERHOUSE SECURITIES LIMITED
("Charterhouse") of New Broad Street House, 35 New Broad Street, London
EC2M 1SQ and 1 Paternoster Row, St Paul's, London EC4M 7DH respectively
(each an "Underwriter" and, together with the Sponsor, the "Underwriters");
(4) ROBERT WALTERS PLC (registered number 3956083) whose registered office is
at 25 Bedford Street, London WC2E 9HP (the "Company"); and
(5) THE DIRECTORS of the Company whose names are set out in Schedule 1 (the
"Directors" and each a "Director").
WHEREAS:
(A) Application has been made to the UK Listing Authority to obtain a listing
for the Shares and to the London Stock Exchange for the Shares to be
admitted to trading on its market for listed securities. The Sponsor has
agreed to act as sponsor in connection with the applications.
(B) The Company proposes to issue the New Shares and the Sellers propose to
sell the Sale Shares pursuant to the Global Offer described in the Price
Range Prospectus and the Final Prospectus.
(C) In connection with the Global Offer (i) the Company has appointed the
Sponsor as sponsor, financial adviser, sole global co-ordinator, lead
manager and sole bookrunner, and West LB and Charterhouse as co-managers,
and (ii) the Sellers, the Company, the Directors and the Underwriters have
entered into a Sponsorship and Underwriting Agreement (the "Agreement").
(D) Each Underwriter has agreed to underwrite its allocation under the Global
Offer as set out in the Agreement.
(E) The Sellers have given various warranties, indemnities and undertakings,
and have entered into various obligations, in favour of the Underwriters
under the Agreement.
(F) The Sellers have given various warranties, indemnities and undertakings to
the Company and the Directors under Clause 4 and Schedule 7 of the
Agreement.
(G) The Guarantor has agreed to guarantee the obligations of the Sellers (as
described in (E) and (F)) to those parties under the Agreement.
(H) The Guarantor has agreed to guarantee the obligations to the Sponsor of R.
W. Holding, C.V. a Dutch partnership ("R. W. Holding") under a Stock
Lending Agreement in respect of the shares in Robert Walters plc dated 6th
July, 2000 (the "Stock Lending Agreement").
THIS DEED WITNESSES as follows:
1. Unless the contrary intention appears, words and expressions defined in the
Agreement have the same meaning in this deed (including the recitals) and
any provision in the Agreement concerning matters of construction or
interpretation shall also apply in this deed.
2. In consideration of, inter alia, the Underwriters agreeing to underwrite
their respective allocations, the Sponsor agreeing to act in respect of the
Global Offer and the Company and the Directors undertaking their respective
obligations under the Agreement, the Guarantor irrevocably and
unconditionally:
(a) as principal obligor guarantees to each of the Underwriters
prompt performance by the Sellers of all their respective
obligations under the Agreement including without limitation
those under clauses 4, 16 and 20 and Schedule 7;
(b) as principal obligor guarantees to the Company and the Directors
prompt performance by the Sellers of all their respective
obligations under clause 4 and Schedule 7 of the Agreement;
(c) undertakes with each of the Underwriters that whenever either
Seller does not pay any amount when due under the Agreement, that
the Guarantor shall forthwith on demand by the relevant party pay
that amount as if the Guarantor instead of the relevant Seller
were expressed to be the principal obligor;
(d) undertakes with the Company and the Directors that whenever
either Seller does not pay any amount when due under clause 4 or
Schedule 7 of the Agreement, that the Guarantor shall forthwith
on demand by the relevant party pay that amount as if the
Guarantor instead of the relevant Seller were expressed to be the
principal obligor;
(e) indemnifies the Underwriters on demand against any loss or
liability suffered by any of them if any obligation guaranteed by
the Guarantor is or becomes unenforceable, invalid or illegal;
(f) indemnifies the Company and the Directors on demand against any
loss or liability suffered by any of them if any obligation
guaranteed by the Guarantor is or becomes unenforceable, invalid
or illegal; and
(g) as principal obligor guarantees to the Sponsor prompt performance
by R. W. Holding of all its obligations under the Stock Lending
Agreement.
3. This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by either Seller under the Agreement,
regardless of any intermediate payment or discharge in whole or in part.
4. (1) Where any discharge (whether in respect of the obligations of either
Seller or any security for those obligations or otherwise) is made in whole
or in part or any arrangement is made on the faith of any payment, security
or other disposition which is avoided or must be restored on insolvency,
liquidation or otherwise without limitation, the liability of the Guarantor
under this guarantee shall continue as if the discharge or arrangement had
not occurred.
(2) The Underwriters, the Company and the Directors may concede or
compromise any claim that any payment, security or other disposition
is liable to avoidance or restoration.
5. The obligations of the Guarantor under this guarantee will not be affected
by an act, omission, matter or thing which, but for this
provision, would reduce, release or prejudice any of its obligations under
this guarantee or prejudice or diminish those obligations in whole or in
part, including (whether or not known to it or the Underwriters, the
Company and the Directors (or any of them)):
(a) any time or waiver granted to, or composition with, either Seller
or other person;
(b) the release of either Seller or any other person under the terms
of any composition or arrangement with any creditors of any
person;
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, either Seller or
other person or any non-presentation or non-observance of any
formality or other requirement in respect of any instrument or
any failure to realise the full value of any security;
(d) any incapacity or lack of powers, authority or legal personality
of or dissolution or change in the members or status of either
Seller or any other person;
(e) any variation (however fundamental) or replacement of this
agreement or any other document so that references to this
agreement in this guarantee shall include each variation or
replacement;
(f) any unenforceability, illegality or invalidity of any obligation
of any person under this agreement or any other document, to the
intent that the Guarantor's obligations under this guarantee
shall remain in full force and its guarantee be construed
accordingly, as if there were no unenforceability, illegality or
invalidity; or
(f) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of either Seller
under this agreement resulting from any insolvency, liquidation
or dissolution proceedings or from any law, regulation or order
so that each such obligation shall for the purposes of the
Guarantor's obligations under this guarantee be construed as if
there were no such circumstance.
6. The Guarantor waives any right it may have of first requiring the
Underwriters, the Company or the Directors (as the case may be) to proceed
against or enforce any other rights or security or claim payment from any
person before claiming from the Guarantor under this guarantee. In the
event there is a claim by any of the Underwriters, the Company or the
Directors against the Guarantor under this guarantee, the relevant party
making the claim (being the Underwriters, the Company or the Directors)
agree to make a claim against the Sellers at the same time as making the
claim against the Guarantor.
7. If any provision of this guarantee is prohibited or unenforceable in any
jurisdiction, such prohibition or enforceability shall not invalidate the
remaining provisions of this guarantee or affect the validity or
enforceability of such remaining provisions in any other jurisdiction.
8. The Guarantor represents and warrants to each of the Underwriters, the
Company and the Directors that each of the following statements is true and
accurate:
(a) it is corporation duly organised and validly existing under the
laws of its country of incorporation;
(b) it has the power to enter into and perform its obligations under
this agreement and each of the other documents referred to in
this deed to which it is a party;
(c) it has all necessary consents, licences and approvals in
connection with the entry into and performance of its obligations
under this deed; and
(d) its entry into this agreement and performance of its obligations
under this deed will not violate or conflict with, or exceed any
limit imposed by (i) any law or regulation to which it is
subject, (ii) its constitutional documents or (iii) any other
agreement, instrument or undertaking binding upon it except that
consent may be required under the Amended and Restated Credit
Agreement of the Guarantor, which consent is expected to be
obtained before the Settlement Date, and such Amended and
Restated Credit Agreement will in any event be terminated
immediately after the Settlement Date by the repayment of all
amounts due thereunder.
9. No claim may be made by the Guarantor against the Sponsor or the
Underwriters or any of their respective affiliates (as defined by Rule
501(b) of Regulation D under the Securities Act) or any person
who controls the Sponsor or any Underwriter within the meaning of section
15 of the Securities Act or section 20 of the Exchange Act or any of their
respective directors, officers, employees or agents (each an "Indemnified
Person") to recover any damage or expense which the Guarantor may suffer by
reason of or arising out of the performance of the Sponsor's or
Underwriters' obligations under the Agreement or otherwise in connection
with the issue or sale of the Sale Shares or the New Shares, the despatch
of the Offer Documents or the fact that the Offer Documents are untrue,
inaccurate or misleading in any material respect or do not contain all
facts material to an intending subscriber or purchaser of the New Shares or
Sale Shares, except to the extent that the damage or expense is agreed by a
relevant settlement or finally judicially determined to have arisen from
that Indemnified Person's fraud, wilful default or negligence or material
breach of the Act, the rules of the UK Listing Authority, the CREST
Regulations or the CREST Rules in any such case which are directly
applicable to the Global Offer.
10. Any notice or document to be served under this deed may be delivered or it
may be sent by post or facsimile transmission to the party to be served at
the relevant address specified in clause 12 or at any other address or fax
number which the party to be served may have notified to the other parties
in accordance with this clause. Any notice or other document sent by post
shall be sent by prepaid first class recorded delivery post (if within the
United Kingdom) or by prepaid airmail (if elsewhere). Any such notice or
document shall be deemed to have been served:
(a) if delivered, at the time of delivery; or
(b) if sent by post, at 10.00 a.m. on the second Business Day after
the day it is posted if sent within the United Kingdom, or at
10.00 a.m. (local time at the place of destination) on the fifth
Business Day after it was put into the post if sent by airmail;
or
(c) if sent by facsimile transmission, at the expiration of 2 hours
after the time of despatch, if despatched before 3.00 p.m. on any
Business Day and in any other case at 10.00 a.m. on the Business
Day following the date of despatch.
11. In proving service it shall be enough to prove that delivery was made, that
the envelope containing the notice or document was properly addressed and
posted (either by prepaid first class recorded delivery post or by prepaid
airmail, as the case may be) or that the facsimile transmission was
properly addressed and despatched, as the case may be.
12. The following are the addresses and fax numbers of the parties for the
purposes of clause 10:
The Guarantor The Sponsor and the Underwriters The Company and the Directors
Edgewater Technology, Inc. c/o Credit Suisse First Boston C/o Robert Walters plc
302 East Millsap Road (Europe) Limited 25 Bedford Street
Fayetteville 20 Colombus Courtyard London
Arkansas 72703 London WC2E 9HP
USA E14 4DA
Fax: 00 1 501 973 5304 Fax: 020 7943 2203 Fax: 020 7915 8730
Marked for the attention of: Marked for the attention of: Marked for the attention of:
Gordon Y. Allison Ben Phillips Company Secretary
13. None of the rights or obligations of the Guarantor under this guarantee may
be assigned or transferred without the written consent of the other
parties.
14. This guarantee may be executed in any number of counterparts, all of which,
taken together, shall constitute one and the same document, and any party
may enter into this guarantee by executing a counterpart.
15. This guarantee is governed by and shall be construed in accordance with
English law and the Guarantor (i) submits to the exclusive jurisdiction of
the English courts for all purposes relating to this guarantee and (ii)
irrevocably appoints Hackwood Secretaries Limited at its registered office
for the time-being, (being at the date hereof at One Silk Street, London
EC2Y 8HQ) to act as its agent to accept service of process out of the
English courts in relation to all matters arising out of this agreement.
IN WITNESS of which the Guarantor has executed and delivered, and the other
parties have signed, this deed on the date which appears first on page 1.
SCHEDULE 1
Part A - Executive Directors
Name Address
Robert Walters 32 Marryat Road
Wimbledon Village
London SW19 5BD
Giles Daubeney 3 Englewood Road
Clapham South
London SW12 9PA
Peter Greenslade Woodedge Cottage
Bolney Road
Shiplake
Henley-on-Thames
Oxon RG9 3NT
Part B - Non-Executive Directors
Name Address
Daniel Affolter )
)
Philip Aiken )
) - all c/o Robert Walters plc
25 Bedford Street
London WC2E 9HP
Timothy Barker )
)
Russell Tenzer )
EXECUTED as a deed )
by EDGEWATER )
TECHNOLOGY, INC. ) GORDON Y. ALLISON
acting by Gordon Y. Allison ) Executive Vice President
acting )
under the authority of )
that company in the presence of: )
PETER D.S. KING
witness name: Peter D. S. King
witness address: One Silk Street
London
EC2N 8HQ
Signed by BEN PHILLIPS )
as duly authorised attorney for )
CREDIT SUISSE FIRST )
BOSTON (EUROPE) LIMITED ) BEN PHILLIPS
in the presence of: Charlotte L. Syms
One New Change
London
EC4M 9QQ
Signed by BEN PHILLIPS )
as duly authorised attorney for )
WEST LB PANMURE LIMITED ) BEN PHILLIPS
in the presence of: Charlotte L. Syms
One New Change
London
EC4M 9QQ
Signed by BEN PHILLIPS )
as duly authorised attorney for )
CHARTERHOUSE SECURITIES )
LIMITED ) BEN PHILLIPS
in the presence of: Charlotte L. Syms
One New Change
London
EC4M 9QQ
SIGNED by Robert Walters )
for and on behalf of )
ROBERT WALTERS PLC ) ROBERT WALTERS
SIGNED by )
ROBERT WALTERS ) ROBERT WALTERS
SIGNED by )
GILES DAUBENEY ) GILES DAUBENEY
SIGNED by )
PETER GREENSLADE ) PETER GREENSLADE
SIGNED by Russell Tenzer )
as duly authorised attorney for )
DANIEL AFFOLTER ) RUSSELL TENZER
SIGNED by Russell Tenzer )
as duly authorised attorney for )
PHILIP AIKEN ) RUSSELL TENZER
SIGNED by )
RUSSELL TENZER ) RUSSELL TENZER
SIGNED by Russell Tenzer )
as duly authorised attorney for )
TIMOTHY BARKER ) RUSSELL TENZER