Exhibit 2.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 28, 2002 (this "Agreement"), between
INVESTMENT TECHNOLOGY GROUP, INC., a Delaware corporation ("Parent"), XXXXXX
GROUP INC., a Delaware corporation ("Company"), and each stockholder of Company
whose name and signature is set forth on the signature page hereof
(collectively, the "Stockholders," and each, a "Stockholder").
WHEREAS, Parent, Company and Indigo Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Merger Subsidiary"), are,
concurrently with the execution hereof, entering into an Agreement and Plan of
Merger (the "Merger Agreement");
WHEREAS, pursuant to the Merger Agreement, Merger Subsidiary will merge
with and into Company, with Company being the surviving corporation (the
"Merger"), and upon the Merger each share of common stock of the Company, par
value $0.01 (the "Company Common Stock"), will be converted into the right to
receive an amount in cash equal to the Merger Consideration (as defined in the
Merger Agreement);
WHEREAS, each Stockholder is the record and/or beneficial owner of such
number of shares of Company Common Stock as is set forth opposite such
Stockholder's name on Schedule I hereof (collectively, the "Existing Shares");
WHEREAS, each Stockholder acknowledges that Parent is entering into the
Merger Agreement in reliance on the representations, warranties, covenants and
other agreements of such Stockholder set forth in this Agreement and would not
enter into the Merger Agreement if such Stockholder did not enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, and intending to be legally bound hereby, Parent and each
Stockholder agree as follows:
1. Defined Terms. Capitalized terms used herein without definition shall
have the meanings assigned to such terms in the Merger Agreement. The following
words have the meanings given to them below.
"beneficial ownership" has the meaning set forth in Rule 13d-3 under the
Exchange Act.
"person" has the meaning specified in Sections 3(a)(9) and 13(d)(3) of the
Exchange Act.
"Representative" (i) with respect to any person that is not an individual,
has the meaning set forth in the Merger Agreement and (ii) with respect to any
person who is an individual, any affiliate of such person (including any family
member or any entity controlled by such person), or
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any agent, representative or advisor of such person, including any investment
banker, attorney or accountant retained by such person or any of such person's
affiliates.
"Shares" means, with respect to each Stockholder, all Existing Shares of
such Stockholder, and any shares of Company Common Stock, beneficial ownership
of which is acquired by such Stockholder after the date hereof, including,
without limitation, shares acquired by purchase or upon the exercise, conversion
or exchange of any option, warrant or convertible security.
"Support Documents" means this Agreement and all other agreements,
instruments and other documents executed and delivered by each Stockholder in
connection with this Agreement.
"Termination Time" means the earliest of the following: (i) the time at
which Parent gives written notice to each of the Stockholders that the
Termination Time has occurred; (ii) the Effective Time; and (iii) the time at
which the Merger Agreement is terminated in accordance with Article Seven
thereof.
"Voting Shares" means, with respect to each Stockholder, such Stockholder's
Shares less Shares that are the subject of unexercised options, warrants, rights
or convertible securities.
2. Agreement to Vote. In order to induce Parent and Merger Subsidiary to
enter into the Merger Agreement, each Stockholder hereby agrees that, from and
after the date hereof and until the Termination Time, at any meeting of the
stockholders of Company, however called, or in connection with any written
consent of the stockholders of Company, such Stockholder shall appear at each
such meeting, in person or by proxy, or otherwise cause the Voting Shares to be
counted as present thereat for purposes of establishing a quorum, and each such
Stockholder shall vote (or cause to be voted) or act by written consent with
respect to all of its Voting Shares that are beneficially owned by each such
Stockholder or its affiliates or as to which such Stockholder has, directly or
indirectly, the right to vote or direct the voting, (a) in favor of adoption and
approval of the Merger Agreement and the Merger and the approval of the terms
thereof and each of the other actions contemplated by the Merger Agreement and
this Agreement; (b) against any action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of Company contained in the Merger Agreement or of any Stockholder
contained in this Agreement; (c) against any Acquisition Proposal; and (d)
against any other action, agreement or transaction (other than the Merger
Agreement and the transactions contemplated thereby) that is intended, or could
reasonably be expected, to impede, interfere or be inconsistent with, delay,
postpone, discourage or materially adversely affect the Merger or the
performance by each of the Stockholders of its obligations under this Agreement,
including, but not limited to: (i) any extraordinary corporate transaction, such
as a merger, consolidation or other business combination involving Company or
any of its Subsidiaries (other than the Merger); (ii) a sale, lease or transfer
of a material amount of assets of Company or any of its Subsidiaries (other than
the Specified Asset Sales) or a reorganization, recapitalization or liquidation
of Company or any of its Subsidiaries other than AHA; (iii) a material change in
the policies or management of Company; (iv) an election of new members to the
board of directors of Company; (v) any material change in the present
capitalization or dividend policy of Company or any amendment or other change to
Company's certificate of incorporation; or (vi) any other material change in
Company's corporate structure or business. Each Stockholder hereby agrees that
such Stockholder will
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not enter into any voting or other agreement or understanding with any person or
entity or grant a proxy or power of attorney with respect to the Shares prior to
the Termination Time (other than a proxy or power of attorney to an officer of
Company that may be exercised solely in accordance with this Section 2 and
except as provided in Section 3 below) or vote or give instructions in any
manner inconsistent with clauses (a), (b), (c) or (d) of the preceding sentence.
Each Stockholder hereby agrees, during the period commencing on the date hereof
and ending on the Termination Time, not to, vote or execute any written consent
in lieu of a stockholders meeting or vote, if such consent or vote by the
stockholders of Company would be inconsistent with or frustrate the purposes of
the other covenants of such Stockholder pursuant to this paragraph.
3. Proxy. As security for its obligations under Section 2 hereof, each
Stockholder hereby grants to, and appoints, P. Mats Xxxxxxx, Xxxxxx X. Xxxxxxxx
and Xxxxxx X. Xxxxxx, in their respective capacities as officers of Parent, and
any individual who shall hereafter succeed to any such officer of Parent, and
any other person designated in writing by Parent, each of them individually,
such Stockholder's proxy and attorney-in-fact (with full power of substitution)
to vote or act by written consent, to the fullest extent permitted by and
subject to applicable law, with respect to the Shares in accordance with Section
2 hereof. THIS PROXY IS COUPLED WITH AN INTEREST, SHALL BE IRREVOCABLE AND SHALL
TERMINATE AT THE TERMINATION TIME. Each Stockholder will take such further
action or execute such other instruments as may be necessary to effectuate the
intent of this proxy and hereby revokes any proxy previously granted by such
Stockholder with respect to the Shares.
4. Representations and Warranties of Parent. Parent represents and warrants
to each Stockholder as follows:
(a) Organization. Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) Authority; Enforceability. Parent has the requisite corporate
power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by Parent's board of directors and no other corporate
proceedings on the part of Parent are necessary to authorize the execution
and delivery of this Agreement by Parent and the consummation by it of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Parent and is a valid and legally binding obligation of
Parent, enforceable in accordance with its terms, except as may be limited
by bankruptcy, insolvency or other similar laws affecting the rights and
remedies of creditors generally, and subject to general principles of
equity, whether applied by a court of law or equity.
(c) No Conflict. The execution and delivery of this Agreement by
Parent do not, and the performance of this Agreement by Parent will not,
(i) conflict with or violate the certificate of incorporation or by-laws of
Parent, (ii) conflict with or violate any law, rule, regulation or order
applicable to Parent or by which any of its properties or assets is bound,
or (iii)
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conflict with, result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, or require payment under, or result in the creation of any
lien on the properties or assets of Parent pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise
or other instrument or obligation to which Parent is a party or by which
Parent or any of its respective properties is bound, except for any thereof
that could not reasonably be expected to materially impair the ability of
Parent to perform its obligations hereunder or under the Merger Agreement
or to consummate the transactions contemplated hereby or thereby on a
timely basis.
5. Representations and Warranties of the Stockholders. Each Stockholder
represents and warrants to Parent as follows:
(a) Organization. If such Stockholder is not an individual, such
Stockholder has been duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its organization.
(b) Authority. If such Stockholder is not an individual, such
Stockholder has all necessary authority to enter into this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby, and the execution, delivery and performance of this
Agreement by such Stockholder and the consummation by such Stockholder of
the transactions contemplated hereby have been duly authorized by all
necessary action on the part of such Stockholder.
(c) Enforceability. This Agreement has been duly executed and
delivered by such Stockholder and is a valid and legally binding obligation
of such Stockholder, enforceable in accordance with its terms, except as
may be limited by bankruptcy, insolvency or other similar laws affecting
the rights and remedies of creditors generally, and subject to general
principles or equity, whether applied by a court of law or equity.
(d) No Conflict. The execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such
Stockholder will not, (i) if such Stockholder is not an individual,
conflict with or violate the certificate of incorporation or by-laws, or
trust agreement or other organizational documents, of such Stockholder,
(ii) conflict with or violate any law, rule, regulation or order applicable
to such Stockholder or by which any of such Stockholder's properties or
assets is bound, or (iii) conflict with, result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or require payment under, or
result in the creation of any lien on the properties or assets of such
Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or
obligation to which such Stockholder is a party or by which such
Stockholder or any of such Stockholder's properties or assets is bound,
except for any thereof that would not result in the imposition of a lien on
such Stockholder's Shares and would not reasonably be expected to
materially impair the ability of such Stockholder to perform such
Stockholder's obligations hereunder or under the
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Merger Agreement or to consummate the transactions contemplated hereby or
thereby on a timely basis.
(e) No Consent. The execution and delivery of this Agreement by such
Stockholder do not, and the performance by such Stockholder of such
Stockholder's obligations hereunder will not, require such Stockholder to
obtain any consent, approval, authorization or permit of, or to make any
filing with or notification to, any Governmental Entity other than filings
required under the Exchange Act disclosing the execution of this Agreement
and the terms hereof.
(f) No Proceedings. There is no suit, action, investigation or
proceeding pending or, to the knowledge of such Stockholder, threatened
against such Stockholder at law or in equity before or by any Governmental
Entity that could reasonably be expected to materially impair the ability
of such Stockholder to perform such Stockholder's obligations hereunder on
a timely basis, and there is no agreement, commitment or law to which such
Stockholder is subject that could reasonably be expected to materially
impair the ability of such Stockholder to perform such Stockholder's
obligations hereunder on a timely basis.
(g) Ownership. Such Stockholder's Existing Shares are owned
beneficially and of record by such Stockholder except as indicated on
Schedule I opposite such Stockholder's name. Such Stockholder's Existing
Shares constitute all of the shares of Company Common Stock owned of record
or beneficially by such Stockholder. All of the Existing Shares are issued
and outstanding and, except as indicated on Schedule I opposite such
Stockholder's name, such Stockholder does not own, of record or
beneficially, any warrants, options, convertible securities or other rights
to acquire any shares of Company Common Stock. Such Stockholder has not
appointed or granted any proxy which is still effective with respect to any
Shares. Such Stockholder has sole voting power, sole power of disposition,
sole power to demand 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 Stockholder's Existing Shares, with no limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and the
terms of this Agreement.
(h) No Encumbrances. Such Stockholder's Shares and the certificates
representing such Shares (if any) are now, and at all times during the term
hereof will be, held by the Stockholder, or by a nominee or custodian for
the benefit of the Stockholder, free and clear of all liens, claims,
security interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except as arising
hereunder.
(i) No Finder's Fees. Except as provided in the Merger Agreement, 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 such Stockholder for which
Parent, Company, Merger Subsidiary, the Surviving Corporation or any of
their Subsidiaries could be or become liable.
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6. Agreements of the Stockholders.
(a) Restrictions on Transfer; Proxies; Non Interference. Each
Stockholder hereby agrees, until the Termination Time, not to (i) sell,
transfer, pledge, encumber, grant, assign or otherwise dispose of, enforce
any redemption agreement with Company or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer
for sale, sale, transfer, pledge, encumbrance, grant, assignment or other
disposition of, record or beneficial ownership of any of the Shares
(whether acquired heretofore or hereafter) or any interest in any of the
foregoing, except to Parent, (ii) in connection with any Acquisition
Proposal, vote, agree to vote, grant any proxy or power of attorney to
vote, deposit into a voting trust or enter into a voting agreement with
respect to, any Shares except for, with, by or on behalf of Parent or
Merger Subsidiary or (iii) take any action that would make any
representation or warranty of such Stockholder contained herein untrue or
incorrect or have the effect of preventing such Stockholder from performing
such Stockholder's obligations under this Agreement, or that would
otherwise materially hinder or delay Parent from consummating the Merger.
(b) Non- Solicitation. Each Stockholder acknowledges that such
Stockholder has received a copy of, and read, the Merger Agreement,
including Section 5.4 thereof. Such Stockholder agrees to comply with the
provisions of the Merger Agreement to the extent applicable to Company's
Representatives, and, without limiting the foregoing, agrees to, and to
cause such Stockholder's Representatives to, comply with Section 5.4
thereof (for this purpose, the term "Acquisition Proposal" shall include
any inquiry, expression of interest, proposal or offer with respect to any
matter described in Section 6(a) hereof.
(c) Information. Each Stockholder hereby agrees, until the Termination
Time, to notify Parent promptly of (i) the number of any additional shares
of Company Common Stock and the number and type of any other Shares
acquired by such Stockholder, if any, after the date hereof and (ii) any
such inquiries or proposals that are received by, any such information that
is requested from, or any such negotiations or discussions that are sought
to be initiated or continued with, such Stockholder with respect to any
matter described in Section 6(a) or 6(b).
(d) Waiver of Appraisal Rights. Each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that the
Stockholder may have.
(e) Stop Transfer. Each Stockholder will not request Company to, and
Company will not, register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the
Stockholder's Shares, unless such transfer is made in compliance with this
Agreement.
7. Record Ownership. Each Stockholder agrees to use such Stockholder's
reasonable best efforts so that within ten business days after receiving a
request therefor from Parent, such Stockholder will no longer hold any Shares in
"street name" or in the name of any nominee.
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8. Further Assurances. From time to time, at Parent's request and without
further consideration, each Stockholder shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or desirable to consummate and make effective the transactions
contemplated by this Agreement. Without limiting the generality of the
foregoing, no Stockholder shall enter into an agreement or arrangement (or
alter, amend or terminate any existing agreement or arrangement) if such action
would materially impair the ability of such Stockholder to effectuate, carry out
or comply with all of the terms of this Agreement.
9. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly given (1) on the date of delivery if delivered
personally, or by telecopy or telefacsimile, upon confirmation of receipt, (2)
on the first business day following the date of dispatch if delivered by a
recognized next-day courier service, or (3) on the fifth business day following
the date of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be given the relevant
party at the address stated in the Merger Agreement, in the case of Parent, and
on Schedule I hereto, in the case of the Stockholders, or at any other address
as the party may specify for this purpose by notice to the other party pursuant
to this Section 9.
10. No Waivers. No failure or delay by Parent or any Stockholder in
exercising any right, power or privilege under any Support Document shall
operate as a waiver of that right, power or privilege. A single or partial
exercise of any right, power or privilege shall not preclude any other or
further exercise of that right, power or privilege or the exercise of any other
right, power or privilege. The rights and remedies provided in the Support
Documents shall be cumulative and not exclusive of any rights or remedies
provided by law.
11. Amendments, Etc. No amendment, modification, termination or waiver of
any provision of any Support Document shall be effective unless it shall be in
writing and signed and delivered by Parent and each affected Stockholder, and
then it shall be effective only in the specific instance and for the specific
purpose for which it is given.
12. Successors and Assigns; Third Party Beneficiaries.
(a) No party shall assign any of such party's rights or remedies or
delegate any of such party's obligations or liabilities, in whole or in
part, under any Support Document. Any assignment or delegation in
contravention of this Section 12 shall be void ab initio and shall not
relieve the assigning or delegating party of any obligation under any
Support Document.
(b) The provisions of each Support Document shall be binding upon and
inure solely to the benefit of the parties hereto and their respective
permitted heirs, executors, legal representatives, successors and assigns,
and no other person.
13. Governing Law. This Agreement and each other Support Document shall be
governed by and construed in accordance with the laws of the State of New York.
14. Severability of Provisions. If any term or other provision of any
Support Document is invalid, illegal or incapable of being enforced by any law
or public policy, all other
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terms and provisions of such Support Document shall 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 materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties shall negotiate in good
faith to modify such Support Document so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.
15. Headings and References. Article and section headings in any Support
Document are included for the convenience of reference only and do not
constitute a part of the Support Document for any other purpose. References to
articles and sections in any Support Document are references to the sections of
the Support Document unless the context shall require otherwise. Any of the
terms defined in this Agreement may, unless the context otherwise requires, be
used in the singular or the plural, depending on the reference. The use in this
Agreement of the word "include" or "including," when following any general
statement, term or matter, shall not be construed to limit such statement, term
or matter to the specific items or matters set forth immediately following such
word or to similar items or matters, whether or not nonlimiting language (such
as "without limitation" or "but not limited to" or words of similar import) is
used with reference thereto, but rather shall be deemed to refer to all other
items or matters that fall within the broadest possible scope of such general
statement, term or matter.
16. Entire Agreement. The Support Documents embody the entire agreement and
understanding of each of the parties hereto, and supersede all other written or
oral prior agreements or understandings, with respect to the subject matters of
the Support Documents.
17. Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of any Support 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 the Support Agreements and to enforce
specifically the terms and provisions of the Support Agreements in any court of
the United States or of the State of New York court sitting in the Borough of
Manhattan, City of New York, this being in addition to any other remedy to which
they are entitled at law or in equity.
18. Fees and Expenses. Whether or not the Merger is consummated, all costs
and expenses incurred in connection with the Support Documents and the
transactions contemplated hereby and thereby shall be paid by the party
incurring such expense.
19. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if all
signatures were on the same instrument.
20. Officers and Directors. Notwithstanding anything to the contrary in
this Agreement, in the event a Stockholder is a director or officer of Company,
nothing in this Agreement is intended or shall be construed to require such
Stockholder, in his or her capacity as a director or officer of Company, to act
or fail to act in accordance with his or her fiduciary duties in such capacity.
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Furthermore, no Stockholder who is or becomes (during the term hereof) a
director or officer of Company makes any agreement or understanding herein in
his or her capacity as a director or officer, and nothing herein will limit or
affect, or give rise to any liability to any Stockholder in such Stockholder's
capacity as a director or officer of Company. For the avoidance of doubt,
nothing in this Section 20 shall in any way limit, modify or abrogate any of the
obligations of the Stockholders hereunder, including to vote the Shares in
accordance with the terms of this Agreement and to not transfer any Shares
except as permitted under Section 6(a) above.
21. Waiver of Jury Trial. Each party to this Agreement, as a condition of
such party's right to enforce or defend any right under or in connection with
this Agreement or any other Support Document, waives any right to a trial by
jury in any action to enforce or defend any right under this Agreement or any
other Support Document and agrees that any action shall be tried before a court
and not before a jury.
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IN WITNESS WHEREOF, Parent and each of the undersigned Stockholders have
caused this Agreement to be duly executed as of the day and year first above
written.
INVESTMENT TECHNOLOGY GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Chairman, President & CEO
XXXXXX GROUP INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: CEO
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STOCKHOLDERS:
XXXX X. XXXXXX
/s/ Xxxx X. Xxxxxx
-------------------------------------------------------
XXX X. XXXXXX
/s/ Xxx X. Xxxxxx
-------------------------------------------------------
XXXXX X. XXXXXX FAMILY TRUST
By: /s/ Xxxxxx Xxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Trustee
XXXXX X. XXXXXX GRANTOR RETAINED
ANNUITY TRUST
By: /s/ Xxxxxx Xxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Trustee
Schedule I
Number of
Stockholder Notice Address Existing Shares
----------------------------------- ----------------------------- ------------------------------------------
Xxxx X. Xxxxxx 0 Xxxxxxxxxxxxx Xxxxx 944,682
Xxx Xxxxx, XX 00000 including 28,500 shares held of record by
his three minor children
Xxx X. Xxxxxx 0 Xxxxxxxxxxxxx Xxxxx 959,500 plus
Xxx Xxxxx, XX 00000 options to purchase 50,000 shares of
Company Common Stock
Xxxxx X. Xxxxxx Family Trust c/o Xxxxxxx Xxxxxx 615,788
0 Xxxxxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Xxxxx X. Xxxxxx Grantor c/o Xxxxxxx Xxxxxx 500,000
Retained Annuity Trust 0 Xxxxxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
