Exhibit 99.1
FORM OF SUPPORT AGREEMENT
Xxxxx 0, 0000
XXX Partners, L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Ladies and Gentlemen:
The undersigned understands that BGC Partners, L.P., a
Delaware limited partnership ("Parent"), Magnet Acquisition Corp., a Delaware
corporation ("Merger Sub") and Maxcor Financial Group Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger, dated as of April 4, 2005 (as it may be from time to time amended, the
"Merger Agreement"), providing for, among other things, a merger of Merger Sub
with and into the Company (the "Merger"), in which all of the issued and
outstanding shares of common stock, par value $0.001 per share, of the Company
(the "Company Common Stock") (together with the associated Company Rights and
other than shares of Company Common Stock held in treasury or as to which
dissenters' rights shall have been perfected) will be cancelled and converted
into the right to receive $14.00 per share in cash, without interest. Terms
used without definition in this letter agreement shall have the meanings
ascribed thereto in the Merger Agreement.
The undersigned is the owner of that number of shares of
Company Common Stock, and of such number of shares of Company Common Stock
issuable upon exercise of outstanding options or warrants, set forth on
Schedule I to this letter agreement and, in his capacity as such, is entering
into this letter agreement in consideration of, and as a condition to,
Parent's and Merger Sub's willingness to enter into the Merger Agreement and
to consummate the transactions contemplated thereby.
The undersigned confirms his agreement with Parent, and
Parent confirms its agreement with the undersigned, as
follows:
1. The undersigned represents and warrants that Schedule I
to this letter agreement sets forth the number of shares of Company Common
Stock (together with any shares of Company Common Stock acquired by the
undersigned after the date of this letter agreement, whether by exercise of
the Options (as defined below) or otherwise, the "Shares") and the number of
shares of Company Common Stock that are issuable upon exercise of outstanding
warrants or options, whether or not exercisable (the "Options"), of which the
undersigned is the record or beneficial owner as of the date hereof. The
undersigned represents and warrants that, as of the date of this letter
agreement, the undersigned owns the Shares and Options set forth on Schedule I
to this letter agreement, free and clear of all Liens and all voting
agreements and commitments of every kind. The undersigned further represents
and warrants that he has the power to vote all Shares set forth on Schedule I
to this letter agreement without restriction and that no proxies heretofore
given in respect of any or all of such Shares are irrevocable and that any
such proxies have heretofore been revoked.
2. The undersigned agrees that he will not, directly or
indirectly, sell, transfer, assign, pledge, encumber or otherwise dispose of
any of the Shares, or any interest therein, or any other securities
convertible into or exchangeable for Company Common Stock (including the
Options), or any voting rights with respect thereto or enter into any
contract, option or other arrangement or understanding with respect thereto
(including any voting trust or agreement and the granting of any proxy), other
than: (a) pursuant to the Merger or (b) with the prior written consent of
Parent. The undersigned hereby agrees to authorize and request the Company to
notify its transfer agent that the transfer agent should enter a stop transfer
order with respect to all of the Shares and that this letter agreement places
limits on the voting of the Shares. If so requested by Parent, the undersigned
agrees that the certificates representing Shares shall bear a legend stating
that they are subject to this letter agreement and to the irrevocable proxy
granted in paragraph 4 of this letter agreement.
3. At every meeting of the stockholders of the Company
called, and at every postponement or adjournment thereof, and on every action
or approval by written consent of the stockholders of the Company, the
undersigned irrevocably agrees to vote the Shares or to cause the Shares to be
voted: (a) in favor of adoption of the Merger Agreement and (b) against (i)
any proposal made in opposition to adoption of the Merger Agreement or in
competition with the Merger or any other transaction contemplated by the
Merger Agreement, (ii) any Company Takeover Proposal, (iii) any change in the
management or board of directors of the Company (other than in connection with
the transactions contemplated by the Merger Agreement) and (iv) any action or
agreement that would result in a breach in any material respect of any
representation, warrant, covenant or agreement or any other obligation of the
Company under the Merger Agreement or of the undersigned under this letter
agreement. The obligations of the undersigned specified in this paragraph 3
shall apply whether or not (A) the Company's Board of Directors (or any
committee thereof) shall (I) effect a Change in the Company Recommendation or
(II) recommend any Company Takeover Proposal or (B) the Company, Parent or
Merger Sub breaches any of its representations, warranties, agreements or
covenants set forth in the Merger Agreement.
4. In furtherance of the agreements contained in paragraph 3
of this letter agreement and as security for such agreements, the undersigned
hereby irrevocably appoints _________________________ and
_________________________ (the "Grantees"), and each of them individually, as
the sole and exclusive attorneys-in-fact and proxies of the undersigned, for
and in the name, place and stead of the undersigned, with full power of
substitution and resubstitution, to vote, grant a consent or approval in
respect of, or execute and deliver a proxy to vote, the Shares (a) in favor of
the adoption of the Merger Agreement, (b) against any Company Takeover
Proposal or any other matter referred to in paragraph 3(b) of this letter
agreement and (c) in the discretion of the Grantees, with respect to any
proposed postponements or adjournments of any annual or special meeting of the
stockholders of the Company held in connection with any of the foregoing. The
undersigned hereby affirms that the irrevocable proxy set forth in this
paragraph 4 is given in connection with, and in consideration of, the
execution of the Merger Agreement by Parent and Merger Sub, and that such
irrevocable proxy is given to secure the performance of the duties of the
undersigned under this letter agreement. The undersigned hereby further
affirms that the irrevocable proxy granted in this paragraph 4 is coupled with
an interest and may under no circumstances be revoked. The undersigned hereby
ratifies and confirms all that the Grantees may lawfully do or cause to be
done by virtue hereof. The irrevocable proxy contained herein is intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law.
5. The undersigned agrees to use reasonable efforts to
cooperate fully with you in order to consummate the transactions contemplated
by the Merger Agreement. The undersigned agrees that he will not directly or
indirectly, initiate, solicit, encourage or facilitate any inquiries or the
making of any proposal or offer with respect to any Company Takeover Proposal
or engage in discussions with any third party that could reasonably be
expected to lead to a Company Takeover Proposal, except to the extent that the
Company is permitted to do any of the foregoing under the Merger Agreement and
in such event only in his capacity as an officer or director of the Company.
The parties acknowledge and agree that nothing contained in this letter
agreement shall restrict, limit or prohibit the undersigned from exercising
(in his capacity as an officer or director of the Company or any of its
subsidiaries) his fiduciary duties as such an officer or director.
6. The undersigned represents and warrants (a) that he has
all necessary power and authority to enter into this letter agreement; and (b)
that, assuming the due authorization, execution and delivery of this letter
agreement by Parent, this letter agreement is his legal, valid and binding
agreement and is enforceable against him in accordance with its terms, except
to the extent that enforceability may be limited by applicable bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and subject to the general principles of equity.
7. This letter agreement and all obligations of the parties
hereunder shall automatically terminate after the earliest of (a) termination
of the Merger Agreement in accordance with its terms, (b) the day following
the Effective Time (provided that any termination pursuant to this clause (b)
shall not terminate paragraph 5 of this letter agreement), and (c) the
effectiveness of any amendment, modification or supplement to, or waiver
under, the Merger Agreement which amendment, modification, supplement or
waiver would reduce the amount of the Merger Consideration payable in the
Merger, unless consented to in writing by the undersigned. Upon termination of
this letter agreement, the irrevocable proxy contemplated by paragraph 4 of
this letter agreement shall terminate and be of no further force and effect,
the stop transfer order contemplated by paragraph 2 of this letter agreement
shall be revoked and the legend contemplated by paragraph 2 of this letter
agreement shall be removed from any certificates representing Shares.
8. This agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to
principles of conflict of laws.
9. Each party to this letter agreement recognize and
acknowledge that a breach by it of any covenants or agreements contained in
this letter agreement will cause the other party to sustain damages for which
it would not have an adequate remedy at law for money damages, and therefore
each party agrees that in the event of any such breach, the aggrieved party
shall be entitled to specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
10. The effectiveness of this letter agreement shall be
conditioned upon the execution and delivery of the Merger Agreement by the
parties thereto.
11. The undersigned agrees that this letter agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person or entity to which legal or beneficial ownership of the Shares
shall pass, whether by operation of law or otherwise, including the
undersigned's heirs, guardians, administrators or successors.
12. Parent acknowledges and agrees that nothing in this
letter agreement shall be deemed to vest in Parent any direct or indirect
ownership or incidence of ownership of or with respect to any Shares or
Options. All rights, ownership and economic benefits of and relating to the
Shares and the Options shall remain vested in and belong to the undersigned,
and Parent shall have no authority to manage, direct, superintend, restrict,
regulate, govern or administer any of the policies or operations of the
Company or exercise any power or authority to direct the undersigned in the
voting of any of the Shares, except as otherwise expressly provided herein.
Please confirm that the foregoing correctly states the
understanding between the undersigned and you by signing and returning to us a
counterpart hereof.
Very truly yours,
[STOCKHOLDER]
By:
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Name:
Title:
Confirmed as of the date first above written:
BGC PARTNERS, L.P.
By:
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Name:
Title:
SCHEDULE I
[TO COME]
