Exhibit C
VOTING AGREEMENT
Voting Agreement, dated as of April 30, 1999 (the "Voting Agreement"),
by and among The Xxxxxxx Xxxxx Group, Inc., a Delaware corporation ("GS Inc."),
on the one hand, and The Sumitomo Bank, Limited, a corporation organized under
the laws of Japan ("Sumitomo"), and Sumitomo Bank Capital Markets, Inc., a
Delaware corporation and a wholly-owned subsidiary of Sumitomo ("SBCM"), on the
other hand.
WHEREAS, pursuant to the Amended and Restated Subscription Agreement,
dated as of March 28, 1989 (as amended by the letter agreement, dated March 15,
1999 of which this Voting Agreement is Annex C, the "Subscription Agreement"),
among Sumitomo and SBCM, on the one hand, and Xxxxxxx, Sachs & Co., a New York
limited partnership ("GSNY"), and The Xxxxxxx Xxxxx Group, L.P., a Delaware
limited partnership (the "Partnership"), on the other, Sumitomo and SBCM each
delivered to the Partnership its irrevocable proxy, dated March 28, 1989, in the
form of Annexes 5(a) and 5(b) to the Subscription Agreement (the "Proxies");
WHEREAS, pursuant to a Plan of Incorporation adopted pursuant to
Article I, Section 14 of the Amended and Restated Memorandum of Agreement, dated
as of November 28, 1998 (the "Memorandum of Agreement") of the Partnership, GS
Inc. will succeed to the business of the Partnership and, in connection
therewith and pursuant to the terms of the Bank Partnership Provisions of (and
as defined in) the Memorandum of Agreement and the Subscription Agreement, GS
Inc. will issue securities to SBCM;
WHEREAS, the Securities are subject to the Proxies and GS Inc. is
willing to terminate the Proxies in consideration of the agreements and
undertakings of Sumitomo and SBCM contained herein;
GS Inc., Sumitomo and SBCM hereby agree as follows:
1. The Partnership, GSNY and GS Inc., as successor to the Partnership,
issuer of the securities and beneficiary of the Proxies, release each of
Sumitomo and SBCM from its Proxy.
2. Each of Sumitomo and SBCM agree, during the period of limited
duration specified below, to vote any and all securities of GS Inc. or of
any subsidiary of GS Inc. which have any voting rights, general or special
(herein collectively referred to as "Securities"), and which Sumitomo or
SBCM may from time to time hold of record or beneficially own, and agree to
cause any direct or indirect subsidiary of Sumitomo to vote any securities
of GS Inc. or any subsidiary thereof that may be acquired by such
subsidiary of Sumitomo, at any meeting of stockholders of GS Inc. or any
such subsidiary (as the case may be), and to provide written consent on
behalf of Sumitomo, SBCM or any such subsidiary as to any matter as to
which written consent is sought from the owners of any Securities, in each
case (x) with respect to Securities of GS Inc., in the same manner as the
majority of the shares of common stock held by the managing directors of GS
Inc. shall be voted or consented in the vote of the stockholders of GS Inc.
and (y) in the case of Securities of a subsidiary of GS Inc., in the same
manner as the shares of common stock held by the immediate parent of such
subsidiary shall be voted or consented. Notwithstanding the foregoing,
however, this agreement shall not extend to the approval of any change or
modification in (i) the Registration Rights Agreement, the Subscription
Agreement or this Agreement or (ii) the material terms of any Securities
held by Sumitomo and SBCM. For purposes of this Voting Agreement, the
exchange, conversion or other transfer of Securities or any other
securities by or on behalf of Sumitomo, SBCM or any direct or indirect
subsidiary of Sumitomo for other securities of GS Inc. (or any successor or
assign thereof) pursuant to and in accordance with the Subscription
Agreement and/or the Bank Partnership Provisions (including, but not
limited to, pursuant to Schedules I, II and III to the Subscription
Agreement or Section 5 of the Bank Partnership Provisions) shall not be
considered a change in the material terms of Securities held by Sumitomo or
SBCM.
3. For purposes of this Voting Agreement, "Securities" includes,
without limitation, (i) the Public Preferred Stock defined in Schedule III
to the Subscription Agreement and the Public Common Stock defined in
Schedule II to the Subscription Agreement and (ii) any other securities
(which have voting rights, general or special) of GS Inc. or any subsidiary
thereof issued to SBCM pursuant to the Subscription Agreement or the "Bank
Partnership Provisions" referred to in the Subscription Agreement. The
provisions of this Agreement shall apply to Securities of any successor or
assign of GS Inc. (except an acquirer of the business of GS Inc. as
referred to in Section 6(c) of the Bank Partnership Provisions) on the
terms set forth therein.
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4. This Voting Agreement shall terminate on the date of the final
disposition by Sumitomo and SBCM of any and all Securities referred to in
Section 13(b) of the Subscription Agreement or the cancellation thereof.
5. To the extent (if any) Sumitomo and SBCM would retain under law,
regardless of the agreements in paragraph 2 hereof, any residual rights
inconsistent with paragraph 2 hereof, each of Sumitomo and SBCM, in
consideration of the release by the Partnership, GSNY and GS Inc. of each
of Sumitomo and SBCM from its Proxy, and as agreed with (and relied on by)
the Partnership, GSNY and GS Inc., hereby specifically and expressly (i)
waives such rights, (ii) agrees never to exercise such rights and (iii)
agrees never to claim, as a complaint or a defense, or otherwise assert
that this Voting Agreement is not valid or enforceable.
6. The invalidity or unenforceability of any provisions of this Voting
Agreement shall not affect the validity or enforceability of any other
provision. To the extent (if any) any provision hereof is deemed invalid or
unenforceable by its scope but may be made valid or enforceable by
limitations thereon, the undersigned intend that this Voting Agreement
shall be valid and enforceable to the fullest extent permitted by law.
7. (a) THIS VOTING AGREEMENT SHALL BE GOVERNED BY AND WILL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE.
(b) Any dispute, controversy or claim arising out of or relating to
provisions of this Voting Agreement shall be finally settled by arbitration
in accordance with the Arbitration Rules of the United Nations Commission
on International Trade Law ("UNCITRAL") in effect on the date of this
Agreement. The number of arbitrators shall be three and the Administering
Authority shall be the American Arbitration Association. The tribunal shall
adopt rules of procedure supplementary to the rules of UNCITRAL as it deems
equitable under the circumstances. All direct costs of an arbitration
proceeding under this Section, including fees and expenses of arbitration,
shall be borne by the party incurring them. The place of arbitration shall
be The City of New York. The arbitration shall be conducted in the English
language. An award rendered by all or a majority of the arbitrators shall
be final and binding, and judgment may be entered upon it in any court
having jurisdiction. In no event shall this subsection be construed as
conferring upon any court authority or jurisdiction to inquire into or
review such award on its merits. The parties agree to exclude any right of
application or appeal to the Federal,
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New York State and any other courts in connection with any question of law
or fact arising in the course of the arbitration or with respect to any
award made.
8. All notices and other communications hereunder shall be in writing
and shall be mailed by first class mail, postage prepaid, addressed (a) if
to Sumitomo or SBCM, at Sumitomo Bank Capital Markets, Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President, or at such other
address as SBCM shall furnish to GS Inc. in writing, or (b) if to the
Partnership, GSNY or GS Inc., at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel, or at such other address as GS Inc. shall
furnish to Sumitomo or SBCM in writing.
9. This Voting Agreement will be binding upon and inure to the benefit
of and be enforceable by the respective successors and assigns of the
parties hereto; provided, that this Voting Agreement shall not be binding
upon a transferee of Securities that is not affiliated with Sumitomo who
acquired such Securities in a disposition which is permitted under the
Subscription Agreement. This Voting Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date above written.
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Director and Head of the Americas
Division
SUMITOMO BANK CAPITAL MARKETS, INC.
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
President
THE XXXXXXX SACHS GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Executive Vice President
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