<PAGE>
EXHIBIT 2.2
STOCKHOLDER SUPPORT AGREEMENT
This STOCKHOLDER SUPPORT AGREEMENT, dated as of November 14, 2000 (the
"Agreement"), is by and among Earlychildhood.com, LLC, a California limited
liability company ("Earlychildhood") and the stockholders of SmarterKids.com,
Inc., a Delaware corporation ("SmarterKids") listed on the signature page(s)
hereto (collectively, the "Stockholders" and, individually, a "Stockholder").
Capitalized terms used in this Agreement, unless specifically defined herein,
shall have the meanings given to them in the Contribution Agreement and Plan of
Reorganization and Merger, dated as of the date hereof (the "Merger Agreement"),
by and among Earlychildhood, SmarterKids, S-E Educational Holdings Corp., a
newly-formed Delaware corporation, one-half of the issued and outstanding
capital stock of which is owned by each of Earlychildhood and SmarterKids
("Holdings") and S-E Educational Merger Corp., a newly-formed Delaware
corporation and a wholly-owned subsidiary of Holdings ("Merger Sub").
WHEREAS, as of the date hereof, each of the Stockholders own of record
and beneficially (i) the shares of common stock, $.01 par value per share (the
"Common Stock"), of SmarterKids as is set forth next to the name of such
Stockholder in Column II of Annex A hereto and (ii) the options to acquire
shares of Common Stock as is set forth next to the name of such Stockholder on
Schedule 1.1(c) hereto (collectively, the "Shares");
WHEREAS, concurrently with the execution of this Agreement,
Earlychildhood and SmarterKids have entered into the Merger Agreement pursuant
to which, and upon the terms and subject to the conditions set forth therein,
the combination of Earlychildhood and SmarterKids shall be effected through (i)
the contribution to Holdings by the holders of LLC Interests of all of the
right, title and interest in and to their entire ownership interest in
Earlychildhood (the "Contribution") and (ii) the merger of Merger Sub with and
into SmarterKids such that SmarterKids becomes a wholly-owned subsidiary of
Holdings (the "Merger" and, collectively with the Contribution, the
"Transactions");
WHEREAS, as a condition to the willingness of Earlychildhood and
SmarterKids to enter into the Merger Agreement, Earlychildhood has required that
the Stockholders agree, and in order to induce Earlychildhood to enter into the
Merger Agreement, the Stockholders have agreed, to enter into this Agreement;
and
WHEREAS, prior to the date hereof, Earlychildhood and the Stockholders
had no agreement, arrangement or understanding (as such terms are used in
Section 203 of the DGCL) for the purpose of acquiring, holding, voting or
disposing of the Shares.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
<PAGE>
ARTICLE I.
Section 1.1 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. As of
the date hereof and as of the date of the Closing under the Merger Agreement,
each Stockholder on its own behalf hereby represents and warrants to
Earlychildhood with respect to itself and its ownership of the Shares as
follows:
(a) Stockholder is the sole owner of record and beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which meaning will apply for all purposes of this Agreement)
of, and has good title to, all of the Shares set forth adjacent to such
Stockholder's name on Annex A, free and clear of any mortgage, pledge,
hypothecation, rights of others, claim, security interest, charge, encumbrance,
title defect, title retention agreement, voting trust agreement, interest,
option, lien, charge or similar restriction (including any restriction on the
right to vote, sell or otherwise dispose of the Shares) or limitation (each, a
"Lien") except for immaterial Liens which shall not materially affect such
Stockholder's ability to perform its obligations under this Agreement.
(b) The Shares constitute all of the securities (as defined in
Section 3(10) of the Exchange Act, which definition will apply for all purposes
of this Agreement) of SmarterKids beneficially owned, directly or indirectly, by
Stockholder, excluding any securities beneficially owned by any of its
affiliates or associates (as such terms are defined in Rule 12b-2 under the
Exchange Act, which definitions will apply for all purposes of this Agreement),
as to which it does not have voting or investment power.
(c) Except as set forth on Schedule 1.1(c), and except for the
Shares, Stockholder does not, directly or indirectly, beneficially own or have
any option, warrant or other right to acquire any securities of SmarterKids that
are or may by their terms become entitled to vote or any securities that are
convertible or exchangeable into or exercisable for any securities of
SmarterKids that are or may by their terms become entitled to vote, nor is
Stockholder subject to any contract, commitment, arrangement, understanding or
relationship (whether or not legally enforceable), other than this Agreement,
that allows or obligates it to vote or acquire any securities of SmarterKids.
Stockholder has the exclusive power to vote the Shares set forth adjacent to
such Stockholder's name on Annex A and has not granted a proxy to any other
individual, corporation, partnership (general or limited), limited liability
company, joint venture, association, trust, unincorporated organization or other
entity (collectively, a "Person") to vote such Shares, subject to the
limitations set forth in this Agreement.
(d) Each Stockholder that is a corporation or partnership, as the
case may be, is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and has the power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement.
2
<PAGE>
(e) This Agreement and each Transaction Document to which Stockholder
is a party has been duly executed and delivered by Stockholder and, assuming due
authorization, execution and delivery of this Agreement by Earlychildhood and
SmarterKids, constitute a valid and binding obligation of Stockholder
enforceable against Stockholder in accordance with their terms, except that (i)
the enforceability hereof or thereof may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereinafter in effect, affecting
creditors' rights generally and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
(f) Neither the execution and delivery of this Agreement and each of
the Transaction Documents to which Stockholder is a party, nor the performance
by Stockholder of its obligations hereunder or thereunder will, nor will the
consummation of the transactions contemplated by this Agreement and the Merger
Agreement, conflict with, result in a violation or breach of, or constitute a
default (or an event that, with notice or lapse of time or both, would result in
a default) or give rise to any right of termination, amendment, cancellation, or
acceleration or result in the creation of any Lien on any Shares under, or
require a consent or waiver under (collectively, a "Conflict"), (i) its
organizational documents, (ii) any note, bond, mortgage, indenture lease,
contract, commitment, agreement, understanding, arrangement or restriction of
any kind to which Stockholder is a party or by which Stockholder is bound, to
the extent such Conflict would materially affect Stockholder's ability to
consummate the transactions contemplated hereby or (iii) any permit, franchise,
license, statute, injunction, judgment, writ, decree, order, ruling, rule or
regulation applicable to Stockholder, to the extent such Conflict would
materially affect Stockholder's ability to consummate the transactions
contemplated hereby.
(g) Neither the execution and delivery of this Agreement nor the
performance by Stockholder of its obligations hereunder will violate any law,
decree, statute, rule or regulation applicable to Stockholder or require any
order, consent, authorization or approval of, filing or registration with, or
declaration or notice to, any corporation, Person, firm, Governmental Entity or
public or judicial authority, other than any required notices or filings
pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder or the federal
securities laws. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which any of the Stockholders is a
trustee whose consent is required for the execution and delivery of this
Agreement or the compliance by the Stockholders with the terms hereof.
ARTICLE II.
Section 2.1 TRANSFER OF THE SHARES; NON-INTERFERENCE.
(a) During the term of this Agreement, no Stockholder shall (i)
tender into any tender or exchange offer or otherwise offer to sell, sell,
transfer, pledge, assign, hypothecate or otherwise dispose of, or encumber with
any Lien, any of the Shares, (ii) other than in connection with this Agreement,
deposit the Shares into a voting trust, enter into any voting agreement or
similar arrangement with respect to the Shares or grant any proxy or power of
attorney with respect to the Shares, or take any action inconsistent with this
Agreement or the Merger Agreement without having obtained the prior written
consent of Earlychildhood, (iii) other
3
<PAGE>
than this Agreement enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect sale, transfer, pledge,
assignment, hypothecation or other disposition of any interest in or the voting
of any shares of Common Stock or any other securities of SmarterKids, (iv) take
any action that would make any representation of such Stockholder contained
herein untrue or incorrect or would result in a breach by such Stockholder of
its obligations under this Agreement or a breach by SmarterKids of its
obligations under the Merger Agreement or (v) take any action that would have
the effect of preventing or disabling such Stockholder from performing its
obligations under this Agreement or SmarterKids from performing its obligations
under the Merger Agreement.
(b) Nothing herein shall prevent a Stockholder from transferring
Shares by gift, transfer to a trust or distribution, provided that (i) any such
gift, transfer or distribution is permissible under the form of Lock-Up
Agreement attached as Exhibit C to the Merger Agreement and (ii) each donee,
transferee or distributee, as applicable, executes, concurrently with such gift,
transfer or distribution, a counterpart signature page hereto and agrees to be
bound hereby.
SECTION 2.2 ADJUSTMENTS.
(a) In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock or other securities of SmarterKids on, of or affecting the Shares or the
like or any other action that would have the effect of changing any of the
Stockholders' ownership of SmarterKids's capital stock or other securities or
(ii) any of the Stockholders becomes the beneficial owner of any additional
shares of Common Stock or other securities of SmarterKids, then the terms of
this Agreement will apply to the shares of capital stock held by any such
Stockholder immediately following the effectiveness of the events described in
clause (i) or any such Stockholder becoming the beneficial owner thereof, as
described in clause (ii), as though they were Shares hereunder and the term
Shares shall be deemed to refer to and include such shares of Common Stock and
other securities.
(b) Each Stockholder hereby agrees, while this Agreement is in
effect, promptly to notify Earlychildhood of the number of any new shares of the
Common Stock acquired by Stockholder, if any, after the date hereof and to
update Annex A hereof, as applicable, to increase the number of Shares set forth
therein to reflect any changes resulting from the events discussed in Section
2.2(a) above. To the extent required under the Merger Agreement, each of the
events described in Section 2.2(a) shall require the prior written consent of
Earlychildhood.
SECTION 2.3 STOP TRANSFER. Each Stockholder hereby agrees with, and covenants
to, each other party hereto, that such Stockholder shall not request that
SmarterKids register the transfer (book entry or otherwise) of any certificate
or uncertificated interest representing any of its Shares, unless such transfer
is made in compliance with this Agreement (including the provisions of Section
2.1 hereof). SmarterKids agrees with, and covenants to, each other party hereto
that SmarterKids shall not register the transfer (book entry or otherwise) of
any certificate or uncertificated interest representing any of the Shares,
unless such transfer is made in compliance with this Agreement (including the
provisions of Section 2.1 hereof).
4
<PAGE>
ARTICLE III.
Section 3.1 VOTING OF SHARES; NO INCONSISTENT AGREEMENT.
(a) Until the termination of this Agreement in accordance with the
terms hereof, each Stockholder hereby agrees that, at any meeting (whether
annual or special and whether or not an adjourned or postponed meeting) of the
stockholders of SmarterKids, however called, and in any action by written
consent of the stockholders of SmarterKids, such Stockholder will vote (or cause
to be voted) all of its Shares (i) in favor of the Merger, the approval and
adoption of the Merger Agreement and the other transactions contemplated by the
Merger Agreement or any amendment thereto; (ii) in favor of any other matter
necessary to the consummation of the Merger and the transactions contemplated by
the Merger Agreement and considered and voted upon by the stockholders of
SmarterKids; and (iii) against any Alternative Transaction and against any
action or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement under
this Agreement or the Merger Agreement or which is intended to, or could
reasonably be expected to, impede, interfere with, delay, postpone or materially
adversely effect this Agreement, the Merger Agreement, the Merger, the other
transactions contemplated by this Agreement and the Merger Agreement or the
benefits to Earlychildhood resulting herefrom or therefrom. In addition, no
Stockholder will take any action, directly or indirectly, until the termination
of this Agreement in contravention of this Agreement or the Merger Agreement or
to cause SmarterKids to take any action in contravention of the Merger Agreement
or the transactions contemplated thereby. Stockholder also agrees that it will,
upon request by Earlychildhood, furnish written confirmation, in form and
substance reasonably satisfactory to Earlychildhood, of such Stockholder's
support for the Merger Agreement. Each Stockholder acknowledges receipt and
review of a copy of the Merger Agreement and the opportunity to consult its own
legal counsel in regard to the Merger Agreement and this Agreement.
(b) Each Stockholder agrees that it shall not enter into any agreement
or understanding with any Person the effect of which would be inconsistent with
or violative of the provisions and agreements contained herein, including in
this Section 3.1.
SECTION 3.2 NO SOLICITATION. Prior to the termination of this Agreement in
accordance with its terms, each Stockholder agrees (a) that it will not, nor
will it authorize or permit any of its officers, directors, employees, financial
advisors, attorneys, accountants and other representatives or agents, directly
or indirectly through another person, to (i) solicit, initiate, facilitate or
encourage any inquiries, offers or proposals by or from a Third Party that
constitute, or could reasonably be expected to lead to, any Acquisition
Proposal, (ii) enter into or execute any agreement with respect to an
Acquisition Proposal, (iii) engage in or continue negotiations or discussions
with any Third Party concerning, or, except pursuant to a governmental request
for information, otherwise communicate or provide any non-public information to
any Third Party relating to any Acquisition Proposal, (iv) make or authorize any
public statement,
5
<PAGE>
recommendation or solicitation in support of any Acquisition Proposal or (v)
take, or consent to take, any other action inconsistent with its obligations
under this Section 3.2 or SmarterKids's obligations under Section 5.3 of the
Merger Agreement; and (b) that it will notify Earlychildhood in writing as
promptly as practicable (and in any event within 24 hours) if any Acquisition
Proposal is received or any inquiries, proposals or offers with respect to an
Acquisition Proposal are received by or any information or documents are
requested from or any negotiations or discussions are sought to be initiated or
continued with, it or any of its Affiliates, such written notice to contain the
identity of the other party (including the name of such other party and a copy
of any offer or proposal and any supporting documentation), and the terms and
conditions of such proposal or offer.
ARTICLE IV.
Section 4.1 TERMINATION. This Agreement shall become effective on the date
hereof and shall continue in effect until the earlier of (i) the termination of
the Merger Agreement in accordance with its terms and (ii) the consummation of
the Transactions.
SECTION 4.2 EXPENSES. Except as otherwise expressly provided in the
Merger Agreement, all costs and expenses incurred by any of the parties hereto
will be borne by the party incurring such costs and expenses. Earlychildhood,
on the one hand, and the Stockholders, on the other hand, will indemnify and
hold harmless the other from and against any and all claims or liabilities for
finder's fees or brokerage commissions or other like payments incurred by reason
of action taken by him, it or any of them, as the case may be.
SECTION 4.3 RELIANCE. Each Stockholder agrees and acknowledges that
Earlychildhood is entering into the Merger Agreement in reliance upon each
Stockholder's execution and delivery of this Agreement.
SECTION 4.4 FURTHER ASSURANCES. Each party hereto will execute and deliver all
such further documents and instruments and take all such further action as may
be necessary in order to consummate the transactions contemplated hereby. In
addition to the foregoing, each Stockholder agrees that, if requested by
Earlychildhood, it will appoint Earlychildhood, or any nominee thereof, with
full power of substitution during the term of this Agreement, as its attorney-
in-fact and proxy for purposes of voting (or causing the voting of) all Shares
beneficially owned by such Stockholder in accordance with Section 3.1 hereof and
taking all such other action as may be required to give effect to this
Agreement. Such proxy and power of attorney will be coupled with an interest and
shall be irrevocable during and for the term of this Agreement.
SECTION 4.5 ENFORCEMENT OF THE AGREEMENT. The Stockholders acknowledge 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 hereto will 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 the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
6
<PAGE>
SECTION 4.6 MISCELLANEOUS.
(a) All representations and warranties contained herein will
terminate upon the termination of this Agreement. The covenants and agreements
made herein will survive the Closing Date in accordance with their respective
terms.
(b) Any provision of this Agreement may be waived at any time by the
party that is entitled to the benefits thereof. No such waiver, amendment or
supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(c) This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
agreements among such parties with respect to such matters. This Agreement may
not be amended, changed, supplemented, waived or otherwise modified, except upon
the delivery of a written agreement executed by the parties hereto.
(d) This Agreement will be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflicts of laws
principles thereof.
(e) With respect to any suit, action or proceeding initiated by a
party to this Agreement arising out of, under or in connection with this
Agreement, each Stockholder and Earlychildhood hereby submit to the exclusive
jurisdiction of any state or federal court sitting in the State of Delaware and
irrevocably waive, to the fullest extent permitted by law, any objection that
they may now have or hereafter obtain to the laying of venue in any such court
in any such suit, action or proceeding.
(f) The descriptive headings contained herein are for convenience and
reference only and will not affect in any way the meaning or interpretation of
this Agreement.
(g) All notices and other communications hereunder will be in writing
and will be given (and will be deemed to have been duly given upon receipt) by
delivery in person, by facsimile, or by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
7
<PAGE>
If to Earlychildhood:
Earlychildhood.com, LLC
2 Lower Ragsdale Drive
Suite 200
Monterey, CA 93940
Attention: Ronald Elliott
Facsimile: (831) 771-5587
With a copy to:
Latham & Watkins
633 W. Fifth St., Suite 4000
Los Angeles, CA 90071
Attention: Jeffrey L. Kateman, Esq.
Facsimile: (213) 891-8763
If to SmarterKids:
SmarterKids.com, Inc.
15 Crawford Street
Needham, MA 02494
Attention: Bob Cahill
Facsimile: (781) 449-4887
With a copy to:
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
Attention: Gordon H. Hayes, Jr., Esq.
Facsimile: (617) 248-7100
If to a Stockholder:
At the address(es) beneath such Stockholder's name on Annex A to
this Agreement.
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(h) This Agreement may be executed in any number of counterparts,
each of which will be deemed to be an original, but all of which together will
constitute one agreement.
(i) This Agreement shall be executed at the same time as the Merger
Agreement and at such time shall be valid and binding obligations of each of the
parties and signatories thereto.
8
<PAGE>
(j) Neither this Agreement nor any of the rights or obligations of
any party hereto may be assigned without the prior written consent of the other
parties hereto, except that Earlychildhood may, without such consent, assign
this Agreement and any of such rights and obligations to one or more of its
affiliates. Any such assignment shall not, however, act as a release of the
assigning Person. Subject to the foregoing, this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, and no other Person shall have any right, benefit or obligation
hereunder.
(k) If any term or provision of this Agreement is determined to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Agreement will 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 adverse to
any party hereto. Upon any such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto will
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 to the end
that the transactions contemplated by this Agreement are consummated to the
extent possible.
(l) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity will be cumulative and
not alternative, and the exercise of any thereof by either party will not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
[Signature pages follow]
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Stockholder Support Agreement on the date first above written.
EARLYCHILDHOOD.COM, LLC
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
STOCKHOLDERS:
NORTH BRIDGE VENTURE PARTNERS III, L.P.
By: NORTH BRIDGE VENTURE MANAGEMENT III, L.P., its
General Partner
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
COMMONWEALTH CAPITAL VENTURES II, L.P.
By: COMMONWEALTH CAPITAL VENTURES II, L.P., its
General Partner
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
DAVID BLOHM, an Individual
-----------------------------------
David Blohm
JEFF PUCCI, an Individual
-----------------------------------
Jeff Pucci
10
<PAGE>
RICHARD VIARD, an Individual
-----------------------------------
Richard Viard
ALBERT NOYES, an Individual
-----------------------------------
Albert Noyes
RICHARD SECOR, an Individual
-----------------------------------
Richard Secor
RICHARD D'AMORE, an Individual
-----------------------------------
Richard D'Amore
MICHAEL FITZGERALD, an Individual
-----------------------------------
Michael Fitzgerald
MICHAEL KOLOWICH, an Individual
-----------------------------------
Michael Kolowich
BRIAN HICKEY, an Individual
-----------------------------------
Brian Hickey
11
<PAGE>
ROBERT CAHILL, an Individual
-----------------------------------
Robert Cahill
12
<PAGE>
ANNEX A
SHARES OWNED BY STOCKHOLDERS
Column I Column II
Stockholder Shares held as of the date hereof
North Bridge Venture Partners III, L.P... 2,967,817
Commonwealth Capital Ventures II, L.P.... 1,858,908
Jeff Pucci............................... 501,000
Richard Viard............................ 499,500
Albert Noyes............................. 247,000
Michael Kolowich......................... 155,000
13
<PAGE>
SCHEDULE 1.1(c)
CONVERTIBLE SECURITIES BENEFICIALLY OWNED BY STOCKHOLDERS
Optionee Outstanding Options
David Blohm................. 1,072,000
Robert Cahill............... 245,000
Richard D'Amore............. 45,000
Michael Fitzgerald.......... 45,000
Brian Hickey................ 45,000
Michael Kolowich............ 75,000
Albert Noyes................ 439,000
Jeff Pucci.................. 570,000
Richard Secor............... 310,000
Richard Viard............... 570,000
14
