Exhibit 4.2
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as October 31, 1999
by and among WIT CAPITAL GROUP, INC., a corporation organized under the laws of
the State of Delaware ("Wit"), and each other person set forth on the signature
pages hereof (each individually a "Securityholder", and collectively, the
"Securityholders"). Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Merger Agreement (as defined
below).
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement, an Agreement and Plan of Merger (the "Merger Agreement") is being
entered into by and among Wit, W/S Merger Corp., a corporation organized under
the laws of the State of Delaware ("Merger Sub"), and SoundView Technology
Group, Inc., a Delaware corporation ("SoundView"), pursuant to which Merger Sub
will be merged with and into SoundView and SoundView will become a wholly owned
subsidiary of Wit (the "Merger"); and
WHEREAS, as a condition to, and in consideration for Wit's
willingness to enter into the Merger Agreement and to consummate the
transactions contemplated thereby, Wit has required that the Securityholders
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements contained herein,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
"Beneficially Own" or "Beneficial ownership" with respect to
any securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of
the same securities by the same holder, securities Beneficially Owned by a
Person shall include securities Beneficially Owned by all other Persons with
whom such Person would constitute a "group" within the meaning of Section
13(d)(3) of the Exchange Act.
"Acquisition Proposal" shall mean any proposal or offer to
acquire all or a substantial part of the business or properties of SoundView or
any SoundView Subsidiary or capital stock of SoundView or any SoundView
Subsidiary (other than proposal or offer to acquire shares of capital stock of
SoundView from an existing Securityholder or a member of such Securityholder's
immediate family), whether by merger, tender offer, exchange offer, sale of
assets or similar transactions involving SoundView or any Subsidiary, division
or operating or principal business unit of SoundView.
2. AGREEMENTS
(a) VOTING AGREEMENT. Each Securityholder shall, at any
meeting of the Securityholders of SoundView, however such meeting is called and
regardless of whether such meeting is a special or annual meeting of the
Securityholders of SoundView, or in connection with any written consent of the
Securityholders of SoundView, vote all Shares of SoundView Common Stock directly
or indirectly Beneficially Owned by such Securityholder: (i) to approve the
Merger, the Merger Agreement and the transactions contemplated thereby and the
taking of any actions necessary or appropriate in furtherance thereof; and (ii)
against any Acquisition Proposal; (iii) and against any action, proposal or
agreement that would delay, impede, frustrate, prevent or nullify this Agreement
or the Merger Agreement, or result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of SoundView
under the Merger Agreement or which would delay, impede, frustrate, prevent or
nullify the fulfillment of any of the conditions set forth in Article IX of the
Merger Agreement or result in any change in the composition of the SoundView
Board of Directors without the prior written consent of Wit.
(b) NO INCONSISTENT ARRANGEMENTS. Each Securityholder hereby
covenants and agrees that it shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of such Securityholder's Shares of SoundView Common
Stock, or any interest therein in a manner inconsistent with the continued
validity of this Agreement and the irrevocable proxy granted pursuant hereto,
(ii) enter into any contract, option or other agreement or understanding with
respect to any transfer of any or all of such Shares of SoundView Common Stock
or any interest therein in a manner inconsistent with the continued validity of
this Agreement and the irrevocable proxy granted pursuant hereto, (iii) grant
any proxy, power-of-attorney or other authorization in or with respect to such
Shares of SoundView Common Stock, (iv) deposit
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such Shares of SoundView Common Stock into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares of SoundView Common Stock
or (v) take any other action that would in any way restrict, limit or interfere
with the performance of such Securityholders' obligations hereunder or the
transactions contemplated hereby or by the Merger Agreement.
(c) GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXIES. (i)
Each Securityholder hereby irrevocably grants to, and appoints, Xxxx Xxxxx and
Xxxxx Xxxxxx, or either of them, in their respective capacities as officers of
Wit, and any individual who shall hereafter succeed to any such office of Wit,
and each of them individually, such Securityholder's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of such
Securityholder, to vote or give written consent with respect to all of such
Securityholder's Shares of SoundView Common Stock (A) in favor of the Merger
Agreement and the transactions contemplated by the Merger Agreement, (B)
against any Acquisition Proposal, (C) in favor of the taking by SoundView of all
other actions necessary or appropriate to give effect to the intent of this
Section 2(c), (D) against any action, proposal or agreement that would have the
effect of delaying, impeding, frustrating, preventing or nullifying this
Agreement or the Merger Agreement, or result in a breach in any respect of any
covenant, agreement, representation or warranty or any other obligation or
agreement of SoundView under the Merger Agreement or which would delay, impede,
frustrate, prevent or nullify the fulfillment of any of the conditions set forth
in Article IX of the Merger Agreement or result in change in the composition of
the SoundView Board of Directors without the prior written consent of Wit.
(ii) Each Securityholder represents that any proxies
heretofore given in respect of such Securityholder's Shares of SoundView Common
Stock are not irrevocable, and that any such proxies are hereby revoked.
(iii) Each Securityholder understands and acknowledges that
Wit is entering into the Merger Agreement in reliance upon such Securityholder's
execution and delivery of this Agreement. Each Securityholder hereby affirms
that the irrevocable proxy set forth in this Section 2(c) is given in
connection with the execution of the Merger Agreement, and that such irrevocable
proxy is given to secure the performance of the duties of such Securityholder
under this Agreement. Each Securityholder hereby further affirms that the
irrevocable proxy granted hereby is coupled with an interest and may under no
circumstances be revoked. Each Securityholder hereby affirms that such
irrevocable proxy shall survive such
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Securityholder's death, incapacity or incompetence. Each Securityholder hereby
ratifies and confirms all that each such proxy may lawfully do or cause to be
done by virtue hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 212(e) of the Delaware
General Corporation law.
(d) NO SOLICITATION. Each Securityholder hereby agrees, in
such Securityholder's capacity as a stockholder of SoundView, that neither such
Securityholder nor any of such Securityholder's Affiliates shall (and such
Securityholder shall use such Securityholder's reasonable best efforts to
instruct its officers, directors and employees, if any, and its representatives
and agents not to, and to not permit any of them to), directly or indirectly,
encourage, solicit, participate in or initiate discussions or negotiations with,
or provide any information to, any Person (other than Wit, any of its Affiliates
or representatives) concerning any Acquisition Proposal.
(e) REASONABLE BEST EFFORTS. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the Merger and the
transactions contemplated by this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE SECURITYHOLDER. Each
Securityholder, severally and not jointly, hereby represents and warrants to Wit
as follows:
(a) OWNERSHIP OF SECURITIES. Such Securityholder is the record
and Beneficial Owner of the number of Shares of SoundView Common Stock set forth
opposite such Securityholder's name on the signature page of this Agreement (the
"Existing Securities"). On the date hereof, the Existing Securities (i)
constitute the percentage of the total number of Shares of SoundView Common
Stock issued and outstanding as of the date hereof as set forth on the signature
page of this Agreement and (ii) constitute all of the Shares of SoundView Common
Stock held of record or Beneficially Owned by such Securityholder. Each
Securityholder has sole voting power and sole power to issue instructions with
respect to the matters set forth in Section 2 hereof, sole power of disposition,
sole power of conversion, sole power (if any) 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 the Existing Securities with no limitations,
qualifications or restrictions on such rights, subject to applicable
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securities laws and the terms of this Agreement and the terms of the Stock
Purchase and Transfer Restriction Agreement.
(b) POWER; BINDING AGREEMENT. Such Securityholder has the
legal capacity, power and authority to enter into and perform all of such
Securityholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Securityholder will not violate any other
agreement to which such Securityholder is a party including; without limitation,
any voting agreement, proxy arrangement, pledge agreement, shareholders
agreement, transfer restriction agreement, sale agreement or voting trust. This
Agreement has been duly and validly executed and delivered by such
Securityholder and constitutes a valid and binding agreement of such
Securityholder, enforceable against such Securityholder in accordance with its
terms. There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which such Securityholder is a trustee whose consent is
required for the execution and delivery of this Agreement or the consummation by
such Securityholder of the transactions contemplated hereby.
4. STOP TRANSFER. Each Securityholder shall not request that
SoundView register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of his or her Existing Securities,
unless such transfer is made in compliance with this Agreement. In the event of
any dividend or distribution consisting of securities, or any change in the
capital structure of SoundView by reason of any non-cash dividend, split-up,
recapitalization, combination, exchange of securities or the like, the term
"Existing Securities" shall refer to and include the Existing Securities as well
as all such dividends and distributions of securities and any securities into
which or for which any or all of the Existing Securities may be changed or
exchanged.
5. TERMINATION. The covenants, agreements and proxy shall
terminate upon the earlier to occur of (i) the termination of the Merger
Agreement in accordance with Article X thereof or (ii) the consummations of the
transactions contemplated by the Merger Agreement.
6. MISCELLANEOUS.
(a) SPECIFIC PERFORMANCE. Each Securityholder recognizes and
agrees that if for any reason any of the provisions of this Agreement are not
performed by such Securityholder in accordance with their specific terms or are
otherwise breached, immediate and irreparable harm or injury would be caused to
Wit for
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which money damages would not be an adequate remedy. Accordingly, the
Securityholder agrees that, in addition to any other available remedies, Wit
shall be entitled to an injunction restraining any violation or threatened
violation of the provisions of this Agreement without the necessity of Wit
posting a bond or other form of security. In the event that any action should be
brought in equity to enforce the provisions of this Agreement, such
Securityholder will not allege, and the Securityholder hereby waives the
defense, that there is an adequate remedy at law.
(b) SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction.
Without limiting the foregoing, with respect to any provision of this Agreement,
if it is determined by a court of competent jurisdiction to be excessive as to
duration or scope, it is the parties intention that such provision nevertheless
be enforced to the fullest extent which it may be enforced.
(c) ATTORNEYS' FEES. If any action at law or equity, including
an action for declaratory relief, is brought to enforce or interpret any
provision of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and expenses from the other party, which fees and
expenses shall be in addition to any other relief which may be awarded.
(d) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
(f) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, among the parties or any of them with respect to the subject matter
hereof.
(g) CONSENT TO JURISDICTION, ETC. Each of the parties hereto
irrevocably and unconditionally submits to the non-exclusive jurisdiction of
the United States District Court for the Southern District of New York, The
District of Connecticut or in any Delaware, New York or Connecticut State Court
sitting in such
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district and having subject matter jurisdiction over such matters, and each of
the parties hereto consents and agrees to personal jurisdiction and waives any
objection as to the venue of such courts for purposes of such action. The
parties to this Agreement agree to waive any right to jury trial as to all
disputes and any right to seek punitive or consequential damages.
(h) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt by delivery in person, by facsimile
(which is confirmed), or by registered or certified mail (postage prepaid,
return receipt requested):
If to a Securityholder, to
SoundView Technology Group, Inc.
00 Xxxxxxxxx Xxxx
XxxxxXxxx, XX 00000
Telecopy: (000) 000-0000
Attention: President and Chief Executive Officer
With copies to:
SoundView Technology Group, Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
and
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxx, Esq.
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If to Wit, to:
Wit Capital Group, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attn: President and Co-Chief Executive Officer
With copies to:
Wit Capital Group, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attn: General Counsel
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(i) DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive
headings herein 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.
(j) ASSIGNMENT; BINDING AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and the respective
heirs, legal representatives, estates, executors, successors and permitted
assigns of the parties and such persons. Nothing in this Agreement is intended
or shall be construed to confer upon any entity or person other than the parties
hereto and their respective heirs, legal representatives, estates, executors,
successors and permitted assigns any right, remedy or claim under or by reason
of their Agreement or any part hereof. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall
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be assigned by any Securityholder without the prior written consent of Wit or by
Wit without the prior written consent of each Securityholder party hereto.
(k) AMENDMENT, MODIFICATION AND WAIVER. This Agreement may not
be amended, modified or waived except by an instrument or instruments in writing
signed and delivered on behalf of the party hereto against whom such amendment,
modification or waiver is sought to be entered.
(l) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands this 31st day of October, 1999.
WIT CAPITAL GROUP, INC
By:/s/Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Director of Investment Banking
/s/Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
/s/Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
/s/Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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/s/Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
/s/Xxxxxxx Crabs
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Name: Xxxxxxx Crabs
/s/Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
/s/Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
/s/Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
/s/Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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