Exhibit 99.1
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
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 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) 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 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.
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.
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 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. 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.
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 X. Xxxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
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 including 28,500 shares held
Xxx Xxxxx, XX 00000 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
