Exhibit 10.12
AMENDMENT NO. 1 TO DATEK VOTING AGREEMENT
This Amendment No. 1 to the Datek Voting Agreement (this "Amendment") is
made as of August 7, 2002, by and between Datek Online Holdings Corp. (the
"Stockholder") and Instinet Group Incorporated ("Parent").
WHEREAS, the Stockholder and Parent entered into a Datek Voting Agreement,
dated as of June 9, 2002 (the "Datek Voting Agreement"); and
WHEREAS, Parent, Instinet Merger Corporation ("Merger Sub") and the
Company have entered into an Agreement and Plan of Merger, dated as of June 9,
2002 (the "Merger Agreement"); and
WHEREAS, simultaneously with the execution and delivery of this Amendment,
Parent, Merger Sub and the Company are entering into Amendment No. 1 to the
Merger Agreement (the "Merger Agreement Amendment"); and
WHEREAS, the parties desire to clarify and amend certain provisions of the
Datek Voting Agreement in the context of the Merger Agreement Amendment.
NOW THEREFORE, pursuant to Section 16 of the Datek Voting Agreement, the
parties hereby amend the Datek Voting Agreement as follows:
Section 1. Amendment to Merger Agreement. The parties agree that all
references to the Merger Agreement in the Datek Voting Agreement are deemed to
be references to the Merger Agreement as amended by the Merger Agreement
Amendment, and the parties consent to the Merger Agreement Amendment.
Section 2. Voting of Company Common Stock. The parties further agree that
the Stockholder's obligation to vote or consent (a) in favor of the approval and
adoption of the Merger Agreement (as amended by the Merger Agreement Amendment),
the Merger and/or the Company Charter Amendment and (b) against any Prohibited
Transaction shall apply with respect to all shares of the Class L common stock,
$0.001 par value per share, and all shares of Class A-1 common stock, $0.001 par
value per share, the Stockholder Beneficially Owns on the record date for such
vote or consent whether or not such shares remain Subject Shares under the Datek
Voting Agreement on the date any relevant meeting of stockholders of the Company
is held for such purpose or the date such consents are tabulated.
Section 3. Capitalized Terms. Capitalized terms used but not defined in
this Amendment shall have the meanings provided therefor in the Datek Voting
Agreement.
Section 4. Counterparts. This Amendment may be executed in counterparts,
all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY
IN SUCH
STATE, EXCEPT TO THE EXTENT THAT THE DELAWARE GENERAL CORPORATION LAW APPLIES AS
A RESULT OF THE COMPANY BEING A DELAWARE CORPORATION.
Section 6. No Other Amendments. Except as specifically amended hereby, the
Datek Voting Agreement shall continue in full force and effect in accordance
with the provisions thereof in existence on the date hereof. Unless the context
otherwise requires, after the date hereof, any reference to the Datek Voting
Agreement shall mean the Datek Voting Agreement as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Amendment as of the day and year first above written.
INSTINET GROUP INCORPORATED
By:
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Name:
Title:
DATEK ONLINE HOLDINGS CORP.
By:
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Name:
Title:
[Signature Page to Amendment No. 1 to Datek Voting Agreement]
