Exhibit 10.7
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PRE-CLOSING AND ESCROW AGREEMENT
dated as of
April [ ], 1999
among
THE BANK OF NEW YORK,
▇▇▇▇▇▇▇▇▇ GROUP, INC.,
JEF HOLDING COMPANY, INC.
and
INVESTMENT TECHNOLOGY GROUP, INC.
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PRE-CLOSING AND ESCROW AGREEMENT
This Pre-Closing and Escrow Agreement (this "AGREEMENT"), dated as of
April [ ], 1999, is hereby entered into by and among The Bank of New York, a New
York banking corporation, as escrow agent (the "ESCROW AGENT"), ▇▇▇▇▇▇▇▇▇ Group,
Inc., a Delaware corporation ("JEFG"), JEF Holding Company, Inc., a Delaware
corporation and a wholly owned subsidiary of JEFG ("HOLDING"), and Investment
Technology Group, Inc., a Delaware corporation and an approximately 80.5% owned
subsidiary of JEFG ("ITGI").
RECITALS
WHEREAS, JEFG and ITGI have entered into an Agreement and Plan of
Merger, dated as of March 17, 1999 (the "MERGER AGREEMENT"), attached hereto as
ANNEX I, pursuant to which (x) ITGI will merge (the "MERGER") with and into JEFG
and (y) all outstanding shares of common stock, par value $0.01 per share, of
ITGI (the "ITGI COMMON STOCK") will be canceled or converted into the right to
receive shares of common stock, par value $0.01 per share, of JEFG (the "JEFG
COMMON STOCK") in the manner set forth in the Merger Agreement;
WHEREAS, JEFG and Holding have entered into a Distribution Agreement,
dated as of March 17, 1999 (the "DISTRIBUTION AGREEMENT"), pursuant to which (x)
JEFG will transfer to ▇▇▇▇▇▇▇▇▇ & Company, Inc., a Delaware corporation and a
wholly owned subsidiary of JEFG ("JEFCO"), prior to the time that JEFCO becomes
a subsidiary of Holding in connection with the Contribution (defined below), and
to Holding, and JEFCO and Holding will accept from JEFG, all of JEFG's assets
other than the capital stock of ITGI held by JEFG (collectively, the
"CONTRIBUTION"), and JEFG will assign to Holding (or to JEFCO, as appropriate),
and Holding and JEFCO will assume from JEFG, all of JEFG's liabilities,
excluding liabilities of or related to ITGI (the "ASSUMPTION") (such transfer
and acceptance pursuant to the Contribution and such assignment and assumption
pursuant to the Assumption being collectively referred to herein as the
"TRANSFERS") and (y) all of the outstanding common stock of Holding will be
distributed in a pro rata dividend (the "DISTRIBUTION") to JEFG's stockholders;
WHEREAS, ITGI has declared and will pay a cash dividend in an amount
equal to $4.00 per share to all holders of ITGI Common Stock, including JEFG
(the "SPECIAL ITGI CASH DIVIDEND");
WHEREAS, at the stockholders' meetings (the "STOCKHOLDERS' MEETINGS")
held on April [ ], 1999, the stockholders of JEFG and ITGI have approved and
adopted the Merger
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Agreement and the stockholders of JEFG have approved the issuance of JEFG Common
Stock to the stockholders of ITGI other than JEFG pursuant to the Merger
Agreement;
WHEREAS, all conditions to the Pre-Closing set forth in the Merger
Agreement have been satisfied or waived;
WHEREAS, JEFG and ITGI desire to deposit certain items, moneys,
documents and instruments in connection with the transactions contemplated by
the Merger Agreement and the Distribution Agreement into escrow with the Escrow
Agent, to be held and released by the Escrow Agent upon the terms and subject to
the conditions of this Agreement;
WHEREAS, it is the expressed intention of JEFG and ITGI that, the
deliveries into escrow having been made hereunder, the Merger occur on the fifth
business day after the Stockholders' Meetings (which passage of time will allow
five days of "when-issued" trading of the shares of common stock of Holding and
of the surviving corporation in the Merger) unless either ITGI or JEFG delivers
the certificate referred to in Section 5(c), and the escrow arrangements
contemplated hereby will cause the Merger to so occur;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements and covenants contained in this Agreement, the parties hereby
agree as follows:
1. DEFINED TERMS.
"DAY 0" means the date of the Stockholders' Meetings.
"DAY 5" means the fifth business day following Day 0.
"DISTRIBUTION AGENT" means EquiServe/First Chicago Trust Company of New
York, in its capacity as distribution agent for the Distribution.
"DIVIDEND PAYMENT DATE" means the business day following the date
hereof.
Unless otherwise defined in this Agreement, all capitalized terms used
but not defined herein shall have the same meanings ascribed to them in the
Merger Agreement.
2. PRE-CLOSING.
JEFG represents and warrants to ITGI that the Merger Agreement
(including the Charter Amendments) and the issuance of JEFG Common Stock in
connection with the Merger have been approved and adopted by the requisite vote
of JEFG's stockholders. ITGI represents and warrants to JEFG that the Merger
Agreement has been approved and adopted by the requisite vote of ITGI's
stockholders.
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JEFG and ITGI hereby acknowledge that the Pre-Closing has occurred.
JEFG and Holding hereby acknowledge that all conditions to the
Distribution set forth in the Distribution Agreement (other than the
effectiveness of the Transfers and the release of the Special ITGI Cash Dividend
pursuant hereto) have been satisfied or waived, and that all covenants in the
Distribution Agreement to be performed prior to the Distribution have been
complied with or waived.
JEFG has delivered to ITGI, and ITGI acknowledges receipt from JEFG of,
the items listed on SCHEDULE 1 hereto. ITGI has delivered to JEFG, and JEFG
acknowledges receipt from ITGI of, the items listed on SCHEDULE 2 hereto.
SCHEDULE 3 hereto lists all other items delivered at the Pre-Closing.
3. APPOINTMENT OF ESCROW AGENT.
JEFG and ITGI hereby appoint the Escrow Agent, and the Escrow Agent
hereby accepts appointment, as escrow agent, under the terms and conditions of
this Agreement.
4. ESCROW.
(A) ESTABLISHMENT OF ESCROW. The Escrow Agent hereby establishes an
escrow (the "ESCROW"), which shall be maintained solely by the Escrow Agent in
accordance with the provisions hereof. The items in Escrow shall be released by
the Escrow Agent pursuant to and only in accordance with Section 5 hereof.
(B) ITGI'S DELIVERIES INTO ESCROW. ITGI hereby delivers to the Escrow
Agent to be held in the Escrow, and the Escrow Agent hereby acknowledges receipt
of, the following:
(i) An amount in cash (the "ESCROWED CASH") equal to $ million
($4.00 times __________, the number of shares of ITGI Common Stock
outstanding at the close of business on Day 0) to be used for
payment of the Special ITGI Cash Dividend.
(C) JEFG'S DELIVERIES INTO ESCROW. JEFG hereby delivers to the Escrow Agent to
be held in the Escrow, and the Escrow Agent hereby acknowledges receipt of, the
following:
(i) Certificates representing all of the outstanding capital
stock of each of JEFG's direct subsidiaries (excluding ITGI) and
certificates representing all of the outstanding preferred stock of W&D
Securities, Inc. ("W&D," and together with such direct subsidiaries,
the "SUBSIDIARIES"), all as set forth in SCHEDULE 4 hereto,
registered in the name of JEFG (the "OLD CERTIFICATES").
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(ii) Signed stock powers or assignments with respect to each
of the certificates referred to in (i), assigning all of JEFG's
interests to Holding immediately following the release of funds in
accordance with Section 5(A)(ii) herein and appointing [▇▇▇▇▇ ▇▇▇▇▇]
as attorney to record the transfer of record ownership on the books of
each of the Subsidiaries (the "STOCK POWERS").
(iii) All other instruments, documents and items to effectuate
the consummation of all Transfers, all as listed on SCHEDULE 5 hereto
(the "OTHER TRANSFER DOCUMENTS").
(D) DELIVERIES INTO ESCROW BY BOTH ITGI AND JEFG. ITGI and JEFG hereby
deliver to the Escrow Agent to be held in the Escrow, and the Escrow Agent
hereby acknowledges receipt of, the following:
(i) An executed Certificate of Merger in the form of EXHIBIT A
hereto.
5. ACTIONS TO BE TAKEN BY ESCROW AGENT.
For the avoidance of doubt, the parties agree that the Escrow Agent
SHALL perform the actions specified in this Section 5 in accordance with the
terms hereof without discretion and shall act only on instructions provided in
the form of EXHIBIT B or EXHIBIT D hereto in accordance with this Section 5 and
not on any other instruction (whether from JEFG, Holding or ITGI or from any
third party) other than (x) a mutual written instruction from both JEFG and ITGI
or (y) a judicial order or judgment. The parties further agree for the avoidance
of doubt that there is no condition to the Escrow Agent's performance of its
actions required by this Section 5 other than as specifically set forth in this
Section 5.
(A) SPECIAL ITGI CASH DIVIDEND. On the date hereof, the Escrow Agent
shall invest the Escrowed Cash in the ▇.▇. ▇▇▇▇▇▇ Institutional Service Tax
Exempt Money Market Fund, or such other fund directed in writing by ITGI.
On the Dividend Payment Date, the Escrow Agent shall deliver, out of
the Escrowed Cash, to the persons indicated below the amounts set forth opposite
such name by wire transfer of same-day funds to the accounts specified:
(i) EquiServe $________
[wire instructions]
(ii) JEFG $60,000,000
Bank of New York
New York, NY
ABA # 021-000018
Account # ▇▇▇-▇▇▇▇-▇▇▇
Account Name: ▇▇▇▇▇▇▇▇▇ & Company, Inc.
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Re:
Attention:
(iii) ITGI All interest accrued on the Escrowed Cash
The Chase Manhattan Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABA # 021-000021
Account # 590-141864
Account Name: ITG Inc - Concentration Account
(B) TRANSFERS. As soon as possible following the distribution of the
Special ITGI Cash Dividend in accordance with Section 5(A)(ii) hereof, the
Escrow Agent shall release from the Escrow the Old Certificates, the Stock
Powers and the Other Transfer Documents and hand deliver them to Holding c/o
▇▇▇▇▇ ▇▇▇▇▇, Secretary and General Counsel of Holding. JEFG and Holding
agree that such deliveries shall constitute the consummation of the
Transfers.
(C) DISTRIBUTION OF HOLDING COMMON STOCK. At 9:00 a.m. (Eastern time)
on Day 5, unless at or prior to such time the Escrow Agent receives a
certificate in the form of EXHIBIT B hereto from either JEFG or ITGI, the Escrow
Agent shall deliver to the Distribution Agent a letter in the form of EXHIBIT C
hereto (the "DISTRIBUTION LETTER").
(D) FILING OF CERTIFICATE OF MERGER. Upon receipt on Day 5 of a letter
from the Distribution Agent in the form of EXHIBIT D hereto, the Escrow Agent
shall transmit the Certificate of Merger by facsimile to the following
representative of CT Corporation with irrevocable instructions in the form of
EXHIBIT E hereto to file it with the Secretary of State of the State of
Delaware.
[Name and fax number of CT representative]
6. LIMITATION OF THE ESCROW AGENT'S LIABILITY; RESPONSIBILITIES OF THE ESCROW
AGENT.
The Escrow Agent shall have no responsibility to JEFG or ITGI as a
consequence of performance or non-performance by the Escrow Agent hereunder,
except for any gross negligence, bad faith or willful misconduct of the Escrow
Agent. In no event shall the Escrow Agent be liable (1) for acting in accordance
with or relying upon any mutual written instruction, notice, demand, certificate
or document (whether in its original or facsimile form) from both JEFG and ITGI,
(2) for relying upon a certificate in the form of EXHIBIT B hereto from
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either JEFG or ITGI or a letter in the form of EXHIBIT D hereto from the
Distribution Agent, (3) for any consequential, punitive or special damages, (4)
for the acts or omissions of its correspondents, designees, subagents or
subcustodians chosen in due care or (5 ) by reason of any occurrence beyond the
control of the Escrow Agent (including but not limited to any act or provision
of any present or future law or regulation or governmental authority, any act of
God or war or the unavailability of the federal wire or telex or other wire or
communication facility). No implied covenants or obligations shall be inferred
from this Agreement against the Escrow Agent, nor shall the Escrow Agent be
bound by the provisions of any agreement other than its duties and obligations
specifically stated herein pursuant to this Agreement.
The duties, responsibilities and obligations of the Escrow Agent shall
be limited to those expressly set forth herein. The Escrow Agent shall not be
subject to, nor required to comply with, any other agreement between or among
any or all of JEFG, Holding or ITGI or to which any of them is a party, even
though reference thereto may be made herein, or to comply with any direction or
instruction (other than those contained herein or delivered in accordance with
this Agreement) from JEFG, Holding or ITGI or any entity acting on their behalf.
The Escrow Agent shall not be responsible in any respect for the form,
execution, validity, value or genuineness of documents or securities deposited
hereunder, or for any description therein, or for the identity, authority or
rights of persons executing or delivering or purporting to execute or deliver
any such document, security or endorsement.
In the event of any ambiguity or uncertainty hereunder or in any
notice, instruction or other communication received by the Escrow Agent
hereunder, the Escrow Agent may, in its reasonable discretion, refrain from
taking any action other than retain possession of the escrow property, unless
the Escrow Agent receives mutual written instructions, from both JEFG and ITGI,
which eliminates such ambiguity or uncertainty.
Subject to the last sentence of this paragraph, in the event of any
dispute between or conflicting claims, demands or instructions by or among JEFG,
ITGI or Holding and/or any other person or entity with respect to any escrow
property, the Escrow Agent shall be entitled, in its reasonable discretion, to
refuse to comply with any and all claims, demands or instructions with respect
to such escrow property so long as such dispute or conflict shall continue, and
the Escrow Agent shall not be or become liable in any way to JEFG, ITGI or
Holding for failure or refusal to comply with such conflicting claims, demands
or instructions. The Escrow Agent shall be entitled to refuse to act until, in
its reasonable discretion, either (i) such dispute or conflicting claims,
demands or instructions shall have been determined by a final order, judgment or
decree of a court of competent jurisdiction, which order, judgment or decree is
not subject to appeal, or settled by agreement between the disputing or
conflicting parties as evidenced in a writing reasonably satisfactory to the
Escrow Agent or (ii) the Escrow
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Agent shall have received security or an indemnity reasonably satisfactory to it
sufficient to hold it harmless from and against any and all losses which it may
incur by reason of so acting. The Escrow Agent may, in addition, elect, in its
reasonable discretion, to commence an interpleader action or seek other judicial
relief or orders as it may deem, in its reasonable discretion, necessary. The
costs and expenses (including reasonable attorneys' fees and expenses) incurred
in connection with such proceeding shall be deemed an expense covered by Section
7(b) hereof. Notwithstanding anything to the contrary in this paragraph, the
Escrow Agent SHALL, and may not refuse to, comply with the specific instructions
set forth in Section 5 hereof, and no claim, demand or instruction inconsistent
with or not provided for in Section 5 hereof shall be deemed a conflicting
claim, demand or instruction covered by this paragraph or the basis for a
dispute covered by this paragraph.
The Escrow Agent and its agents shall be entitled to rely upon any
judicial order or judgment without being required to determine the authenticity
or the correctness of any fact stated therein or the propriety or validity of
service thereof. The Escrow Agent may act in reliance upon any instrument
(whether in its original or facsimile form) comporting with the provisions of
this Agreement or signature believed by it to be genuine and may assume that any
person purporting to give notice or receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so.
The Escrow Agent may rely on the advice of counsel chosen by it with
respect to any matter relating to this Agreement and (subject to the first
sentence of this Section 6) shall not be liable for any action taken or omitted
in accordance with such advice.
The Escrow Agent shall not be called upon, nor shall it have any duty
or obligation, to advise any party as to selling or retaining, or taking or
refraining from taking any action with respect to, any property deposited
hereunder.
No provision of this Agreement shall require the Escrow Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder.
7. COMPENSATION; EXPENSE REIMBURSEMENT; INDEMNITY.
(A) COMPENSATION. JEFG and ITGI agree to pay to the Escrow Agent on the
date hereof a fee equal to $__________ as compensation for its services as
escrow agent hereunder.
(B) EXPENSE REIMBURSEMENT. JEFG and ITGI shall reimburse the Escrow
Agent upon request for all reasonable expenses, disbursements and advances
incurred or made by the Escrow Agent in implementing any of the provisions of
this Agreement, including com-
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pensation and the reasonable expenses and disbursements of its counsel. JEFG and
ITGI agree to pay such amounts on the date hereof to the extent incurred or made
through the date hereof; PROVIDED that JEFG and ITGI shall have been provided
invoices therefor in reasonable detail.
(C) INDEMNITY. JEFG and ITGI shall fully indemnify, hold harmless and
defend the Escrow Agent and its directors, officers, agents, employees and
controlling persons, from and against any and all claims, actions, obligations,
liabilities and expenses, including defense costs and expenses, investigative
fees and costs, legal fees and expenses and claims for damages, arising from the
Escrow Agent's performance or non-performance, or in connection with its
acceptance or appointment, as Escrow Agent, under this Agreement, except to the
extent that such liability, expense or claim results from the gross negligence
or willful misconduct of any of the foregoing persons. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of the law or public
policy, JEFG and ITGI shall contribute the maximum portion that it is permitted
to pay and satisfy under applicable law to the payment and satisfaction of all
indemnified liabilities incurred by any of the persons indemnified hereunder.
JEFG and ITGI shall pay or reimburse the Escrow Agent upon request for
any transfer taxes or other taxes relating to the escrowed property incurred in
connection herewith and shall indemnify and hold harmless the Escrow Agent any
amounts that it is obligated to pay in the way of such taxes.
(D) SHARING OF COSTS. One half of all amounts payable under this
Section 7 shall be paid by each of JEFG and ITGI. As between JEFG and ITGI, JEFG
and ITGI agree that any amount paid pursuant to this Section 7 or otherwise to
the Escrow Agent under this Agreement shall constitute Transaction Expenses
within the meaning of Section 7(d) of the Merger Agreement, whether or not
incurred before or after the Effective Time, and JEFG and ITGI agree to pay such
amounts in accordance with Section 7(d) of the Merger Agreement and Section
12.01 of the Distribution Agreement (regardless of the termination of either
such agreement).
(E) SURVIVAL. The provisions of this Section 7 shall survive any
termination, satisfaction or discharge of this Agreement.
8. TERMINATION.
This Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to the Effective Time only by the
mutual written consent of JEFG and ITGI.
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9. MISCELLANEOUS.
(A) ENTIRE AGREEMENT; AMENDMENTS. This Agreement, together with the
Merger Agreement and the Ancillary Agreements, constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof. This Agreement may be
amended only by a writing signed by a duly authorized representative of each
party hereto.
(B) HOLDING TO SUCCEED JEFG. Upon consummation of the Transfers,
Holding shall succeed to, and JEFG shall be released from, all of JEFG's
obligations hereunder.
(C) NOTICES. All notices and communications under this Agreement shall
be in writing and any communication or delivery hereunder shall be deemed to
have been duly given when addressed as follows:
If to the Escrow Agent to:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Sharia ▇▇▇▇▇-▇▇▇/Corporation Trust
Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to ITGI, to:
Investment Technology Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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If to JEFG prior to the Transfers or Holding, to:
▇▇▇▇▇▇▇▇▇ Group, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Such notices shall be deemed received (i) as of the date of delivery by
hand delivery or facsimile, (ii) one business day after such notice is given to
a national overnight delivery service or (iii) five business days after placed
in the United States mail, provided such mail is sent by certified mail with
return receipt requested; provided, however, that notices to the Escrow Agent
shall be deemed received only when actually received by the Escrow Agent's
Corporate Trust Administration. Either party may, by written notice so delivered
to the other party, change the address to which delivery of any notice shall
thereafter be made.
(D) TIME. Time is of the essence with respect to each provision of this
Agreement.
(E) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York regardless of the laws that
might otherwise govern under principles of conflicts of laws applicable thereto.
(F) CAPTIONS; COUNTERPARTS. Captions in this Agreement are for
convenience only and shall not be considered or referred to in resolving
questions of interpretation of this Agreement. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
(G) PUBLIC REFERENCES. No printed or other material in any language,
including prospectuses, notices, reports, and promotional material which
mentions "The Bank of New York" by name or the rights, powers, or duties of the
Escrow Agent under this Agreement shall be issued by any other parties hereto,
or on such party's behalf, without the prior written
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consent of the Escrow Agent, except that any proxy statement relating to the
Stockholders' Meetings may refer to the Bank of New York as escrow agent under
this Agreement.
(H) TAX MATTERS. The Escrow Agent does not have any interest in the
escrowed property deposited hereunder but is serving as escrow holder only and
having only possession thereof. Any payments of income from the Escrow shall be
subject to withholding regulations then in force with respect to United States
taxes. The parties hereto will provide the Escrow Agent with appropriate W-9
forms for tax I.D., number certifications, or W-8 forms for non-resident alien
certification. It is understood that the Escrow Agent shall be responsible for
income reporting only with respect to income earned on investment of funds which
are a part of the escrowed property and it not responsible for any other
reporting. This Section 9(h) and Section 9(g) shall survive notwithstanding any
termination of this Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized on the day and
year first above written.
THE BANK OF NEW YORK
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇ GROUP, INC.
By:
-------------------------------------
Name:
Title:
JEF HOLDING COMPANY, INC.
By:
-------------------------------------
Name:
Title:
INVESTMENT TECHNOLOGY GROUP, INC.
By:
-------------------------------------
Name:
Title:
Exhibit A to the
Escrow Agreement
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CERTIFICATE OF MERGER
OF
▇▇▇▇▇▇▇▇▇ GROUP, INC.
AND
INVESTMENT TECHNOLOGY GROUP, INC.
It is hereby certified that:
1. The constituent business corporations participating in the
merger herein certified are:
(i) ▇▇▇▇▇▇▇▇▇ Group, Inc. ("JEFG"), which is incorporated
under the laws of the State of Delaware; and the date of filing of the original
certificate of incorporation of this constituent corporation with the Secretary
of State of the State of Delaware is ; and
(ii) Investment Technology Group, Inc. ("ITGI"), which is
incorporated under the laws of the State of Delaware; and the date of filing of
the original certificate of incorporation of this constituent corporation with
the Secretary of State of the State of Delaware is .
2. An Agreement and Plan of Merger, dated as of March 17, 1999,
between JEFG and ITGI (the "Merger Agreement"), has been approved, adopted,
certified, executed, and acknowledged (i) by JEFG in accordance with the
provisions of Section 251 of the General Corporation Law of the State of
Delaware; and (ii) by ITGI in accordance with the provisions of Section 251 of
the General Corporation Law of the State of Delaware.
3. The surviving corporation in the merger herein certified is
JEFG, which will continue its existence as said surviving corporation under the
name Investment Technology Group, Inc. upon the effective date of said merger
pursuant to the provisions of the General Corporation Law of the State of
Delaware.
4. The Amended and Restated Certificate of Incorporation of the
surviving corporation is to be amended and restated in its entirety by reason of
the merger herein certified and shall read as follows:
[INSERT APPENDIX A TO MERGER AGREEMENT]
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and said Certificate of Incorporation as so amended shall be the Certificate of
Incorporation of said surviving corporation until further amended and changed in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
5. The executed Merger Agreement between the aforesaid constituent
corporations is on file at the principal place of business of the aforesaid
surviving corporation, the address of which is as follows:
Investment Technology Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
6. A copy of the aforesaid Merger Agreement will be furnished by
the aforesaid surviving corporation, on request, and without cost, to any
stockholder of each of the aforesaid constituent corporations.
7. This Certificate of Merger shall become effective at the time of
filing of this Certificate of Merger with the Secretary of State of the State of
Delaware.
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IN WITNESS WHEREOF, this Certificate of Merger is hereby signed upon
behalf of each of the constituent corporations parties hereto.
Dated: April [ ], 1999
▇▇▇▇▇▇▇▇▇ GROUP, INC.,
a Delaware corporation
By:
-------------------------------------
Name:
Title:
INVESTMENT TECHNOLOGY GROUP, INC.,
a Delaware corporation
By:
-------------------------------------
Name:
Title:
Exhibit B to the
Escrow Agreement
----------------
, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Sharia ▇▇▇▇▇-▇▇▇/Corporation Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
[▇▇▇▇▇▇▇▇▇ Group, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇]
[Investment Technology Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇]
Reference is made to the Pre-Closing and Escrow Agreement dated as of
April [ ], 1999 (the "ESCROW AGREEMENT") by and among The Bank of New York, as
escrow agent, ▇▇▇▇▇▇▇▇▇ Group, Inc. ("JEFG"), and Investment Technology Group,
Inc. ("ITGI"). This is a certificate referred to in Section 5(c) of the Escrow
Agreement.
We hereby inform [▇▇▇▇▇▇▇▇▇ Group, Inc.] [Investment Technology Group,
Inc.] that the condition referred to in Section [11(b)] [11(c)] of the Merger
Agreement referred to in the Escrow Agreement is not satisfied.
-2-
Very truly yours,
[INVESTMENT TECHNOLOGY GROUP, INC.]
[▇▇▇▇▇▇▇▇▇ GROUP, INC.]
By:
-------------------------------------
Name:
Title:
cc: [▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇]
[▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇]
Exhibit C to the
Escrow Agreement
----------------
[Day 5], 1999
EquiServe/First Chicago Trust Company of ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Reference is made to the Pre-Closing and Escrow Agreement dated as of
April [ ], 1999 by and among The Bank of New York, as escrow agent, ▇▇▇▇▇▇▇▇▇
Group, Inc. ("JEFG"), and Investment Technology Group, Inc. ("ITGI"), and the
agreement among JEFG, ITGI and you referred to in Schedule 3 thereof.
Pursuant to such agreements, we hereby irrevocably instruct you to
transmit the electronic instructions to The Depository Trust Company to effect
the distribution, through the book-entry facilities of The Depository Trust
Company or the direct registration system, to each holder of record of common
stock of ▇▇▇▇▇▇▇▇▇ Group, Inc., a Delaware corporation, as of the close of
business on April [ ], 1999 of one share of common stock of JEF Holding Company,
Inc., a Delaware corporation, for each share of common stock of ▇▇▇▇▇▇▇▇▇ Group,
Inc. held of record by such holder as of such time.
Very truly yours,
THE BANK OF NEW YORK
By:
-------------------------------------
Name:
Title:
Exhibit D to the
Escrow Agreement
----------------
[Day 5], 1999
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Sharia ▇▇▇▇▇-▇▇▇/Corporation Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
We hereby advise you that we have transmitted the electronic
instructions to The Depository Trust Company to effect the distribution, through
the book-entry facilities of The Depository Trust Company, to each holder of
record of common stock of ▇▇▇▇▇▇▇▇▇ Group, Inc., a Delaware corporation, as of
the close of business on April [ ], 1999 of one share of common stock of JEF
Holding Company, Inc., a Delaware corporation, for each share of common stock of
▇▇▇▇▇▇▇▇▇ Group, Inc. held of record by such holder as of the close of such
time.
Very truly yours,
EQUISERVE/FIRST CHICAGO TRUST
COMPANY OF NEW YORK
By:
-------------------------------------
Name:
Title:
Exhibit E to the
Escrow Agreement
----------------
[Day 5], 1999
CT Corporation
[Address]
We hereby irrevocably instruct you to file the attached Certificate of
Merger of Investment Technology Group, Inc. with and into ▇▇▇▇▇▇▇▇▇ Group, Inc.,
with ▇▇▇▇▇▇▇▇▇ Group, Inc. surviving the merger, immediately with the Secretary
of State of the State of Delaware.
Very truly yours,
THE BANK OF NEW YORK
By:
-------------------------------------
Name:
Title:
