VOTING AGREEMENT
EXHIBIT
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THIS
VOTING AGREEMENT dated as of February 29, 2008 (the “Agreement”), is made
by and between BROADPOINT SECURITIES GROUP, INC., a New York corporation (the
“Company”), and
MATLINPATTERSON FA ACQUISITION LLC, a Delaware limited liability company (“MatlinPatterson”).
PRELIMINARY
STATEMENTS
A. MatlinPatterson
is the owner of 41,499,261 shares of the Company common stock, par value $0.01
per share (the “Common
Stock”).
B. The
Company entered into an Asset Purchase Agreement (the “Asset Purchase
Agreement”), dated as of January 30, 2008, with Broadpoint Capital, Inc.,
a New York corporation (“Broadpoint Capital”),
and BNY Capital Markets, Inc., a New York corporation.
C. Pursuant
to the Asset Purchase Agreement, Broadpoint Capital agreed to hire certain
Designated Key Employees (as defined in the Asset Purchase Agreement), and the
Company agreed to issue, subject to certain conditions, restricted stock units
and/or shares of restricted stock (“Awards”) to the
Designated Key Employees under the Company’s 2007 Incentive Compensation Plan
(the “Plan”);
D. Because
the number of shares of Common Stock authorized for issuance under the Plan is
insufficient to grant all the contemplated Awards to the Designated Key
Employees, the Board of Directors of the Company by resolution adopted on
January 29, 2008 approved an increase in the number of authorized shares under
the Plan (the “Plan
Increase”), subject to shareholder approval; and
E. The
Company agreed with the Designated Employees to obtain the written agreement of
MatlinPatterson to vote its shares in the Company in favor of the Plan Increase
when the Plan Increase is submitted to the shareholders of the Company for
approval, and MatlinPatterson is willing to enter into such an
agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, the parties to this Agreement
intending to be legally bound do agree as follows:
Representations and
Warranties. MatlinPatterson represents and warrants to the
Company that (i) this Agreement has been duly authorized, executed and delivered
by all necessary limited liability action on the part of MatlinPatterson; and
(ii) this Agreement constitutes the legal, valid and binding obligation of
MatlinPatterson, enforceable in accordance with its terms.
Agreement to Vote
Shares. MatlinPatterson agrees to vote its Shares (as defined
below) in favor of the Plan Increase when the Plan Increase is submitted to a
vote of the
shareholders
of the Company. For such purpose, the term “Shares” includes all
shares of the Common Stock or any other voting securities of the Company as to
which MatlinPatterson is the beneficial
owner or is otherwise able to direct the voting thereof at the time of the
applicable shareholder vote.
Specific
Performance. MatlinPatterson acknowledges that it will be
impossible to measure in money the damage to the Company if MatlinPatterson
fails to comply with the obligations imposed by this Agreement, and that, in the
event of any such failure, the Company will not have an adequate remedy at law
or in damages. Accordingly, MatlinPatterson agrees that injunctive
relief or any other equitable remedy, in addition to any remedies at law or
damages, is the appropriate remedy for any such failure and will not oppose the
granting of any such remedy on the basis that the Company has an adequate remedy
at law. MatlinPatterson agrees not to seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with the
Company seeking or obtaining such equitable relief.
Miscellaneous.
Entire
Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter of this Agreement and
supersedes all prior written and oral and all contemporaneous oral agreements
and understandings with respect to the subject matter of this
Agreement.
Notices. Any
notice, request, instruction or other document to be given hereunder by any
party to the others shall be in writing and shall be deemed to have been duly
given on the next business day after the same is sent, if delivered personally
or sent by telecopy or overnight delivery, or five calendar days after the same
is sent, if sent by registered or certified mail, return receipt requested,
postage prepaid, as set forth below, or to such other persons or addresses as
may be designated in writing in accordance with the terms hereof by the party to
receive such notice.
If to the
Company:
Xxx Xxxx
Xxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
General Counsel
Fax:
(000) 000-0000
If to
MatlinPatterson:
MatlinPatterson
FA Acquisition LLC
c/o
MatlinPatterson Global Advisers LLC
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: General
Counsel
Fax:
(000) 000-0000
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Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York as applied to contracts made
and fully performed in such state without giving effect to the principles of
conflict of laws thereof.
Rules of
Construction. The descriptive headings in this Agreement 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. Words used
in this Agreement, regardless of the gender and number specifically used, shall
be deemed and construed to include any other gender, masculine or feminine, or
neuter, and any other number, singular or plural, as the context
requires. As used in this Agreement, the word "including" is not
limiting, and the word "or" is not exclusive.
Parties in
Interest. This Agreement shall be binding upon and inure
solely to the benefit of the parties to this Agreement and their legal
successors-in-interest, 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.
Counterparts. This
Agreement may be executed in one or more counterparts, and each of such
counterparts shall for all purposes be deemed to be an original, but all such
counterparts together shall constitute but one instrument.
Assignment. No
party hereto shall assign its rights and obligations under this Agreement or any
part thereof, nor shall any party assign or delegate any of its rights or duties
hereunder without the prior written consent of the other party, and any
assignment made without such consent shall be void. Except as
otherwise provided herein, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
Amendment. This
Agreement may not be amended except by an instrument in writing signed on behalf
of both parties.
[the
next page is the signature page]
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IN
WITNESS WHEREOF, the Company and the Investor have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above-written.
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BROADPOINT
SECURITIES GROUP, INC
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By:
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/s/ Xxx Xxxxxxxxxxxx | |
| Name: Xxx Xxxxxxxxxxxx | |||
| Title: Chief Executive Officer | |||
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MATLINPATTERSON
FA ACQUISITION LLC
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|
|
By:
|
/s/ Xxxxxxxx X. Xxxxxxxxxx | |
| Name: Xxxxxxxx X. Xxxxxxxxxx | |||
| Title: President and Treasurer | |||
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