Exhibit 10.1
VOTING AGREEMENT
VOTING AGREEMENT (this "Voting Agreement"), dated as of May
15, 2000 by and among E*OFFERING CORP., a corporation organized under the
laws of the State of California (the "Company"), and certain stockholders
of WIT CAPITAL GROUP, INC. ("Parent") set forth on the signature pages
hereof (each individually a "Securityholder," and collectively, the
"Securityholders").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of
this Voting Agreement, an Agreement and Plan of Merger (the "Merger
Agreement") is being entered into by and among Parent, Wit SoundView
Corporation, a corporation organized under the laws of the State of
Delaware ("Merger Sub"), and the Company, pursuant to which the Company
will be merged with and into Merger Sub (the "Merger"); and
WHEREAS, as a condition to, and in consideration for the
Company's willingness to enter into the Merger Agreement and to consummate
the transactions contemplated thereby, the Company has required that the
Securityholders enter into this Voting 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, agree as
follows:
1. Definitions. For purposes of this Voting Agreement:
(a) "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;
provided that such beneficial ownership shall be limited to securities (not
including those that the Person (as defined in the Exchange Act) has a
right to acquire within 60 days unless so acquired) over which such Person
has sole or shared voting power. 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 and over which such Person has sole or shared
voting power.
(b) Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to them in the Merger Agreement.
2. Agreements
(a) Voting Agreement. Each Securityholder shall, at
any meeting of the Securityholders of Parent, however such meeting is
called and regardless of whether such meeting is a special or annual
meeting of the Securityholders of Parent, or in connection with any written
consent of the Securityholders of Parent, vote all shares of Parent Capital
Stock Beneficially Owned by such Securityholder: (i) to approve the Merger,
the Merger Agreement and the transactions contemplated thereby and the
taking of any actions proposed by Parent's Board of Directors necessary or
appropriate in furtherance thereof; and (ii) against any action, proposal
or agreement that would delay, impede, frustrate, prevent or nullify this
Voting Agreement or the Merger Agreement, or result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation or agreement of Parent 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 Parent Board of Directors without the prior
written consent of the Company.
(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 Parent Capital Stock, or any interest therein in
a manner inconsistent with the continued validity of this Voting Agreement
and the irrevocable proxy granted pursuant hereto, unless each Person to
which any such shares of Parent Capital Stock, or any interest therein, is
or may be transferred shall have (A) executed a counterpart of this Voting
Agreement; and (B) agreed to hold such shares of Capital Stock (or interest
in such shares) subject to all terms and provisions of this Voting
Agreement; (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of such shares of
Parent Capital Stock or any interest therein in a manner inconsistent with
the continued validity of this Voting Agreement and the irrevocable proxy
granted pursuant hereto, unless each Person to which any such shares of
Parent Capital Stock, or any interest therein, is or may be transferred
shall have (A) executed a counterpart of this Voting Agreement; and (B)
agreed to hold such shares of Parent Capital Stock (or interest in such
shares) subject to all terms and provisions of this Voting Agreement, (iii)
grant any proxy, power-of-attorney or other authorization in or with
respect to such shares of Parent Capital Stock in a manner inconsistent
with the continued validity of this Voting Agreement and the irrevocable
proxy granted pursuant hereto, (iv) deposit such shares of Parent Capital
Stock into a voting trust or enter into a voting agreement or arrangement
with respect to such shares of Parent Capital Stock in a manner
inconsistent with the continued validity of this Voting Agreement and the
irrevocable proxy granted pursuant hereto, or (v) take any other action
that would in any way restrict, limit or interfere with the performance of
such Securityholder's obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement; provided that this
subsection 2(b)(v) does not apply to a Securityholder acting in his or her
capacity as a director of Parent.
(c) Grant of Irrevocable Proxy; Appointment of
Proxies. (i) Each Securityholder hereby irrevocably grants to, and
appoints, Xxxxxx Xxxx and Xxxxxx Xxxxxxxxxx, or either of them, in their
respective capacities as officers of the Company, and any individual who
shall hereafter succeed to any such office of the Company 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 Parent Capital Stock (A) in favor of the Merger
Agreement and the transactions contemplated by the Merger Agreement, and
(B) in favor of the taking by Parent of all other actions proposed by
Parent's Board of Directors necessary or appropriate to give effect to the
intent of this Section 2(c), (C) against any action, proposal or agreement
that would have the effect of delaying, impeding, frustrating, preventing
or nullifying this Voting Agreement or the Merger Agreement, or result in a
breach in any material respect of any covenant, agreement, representation
or warranty or any other obligation or agreement of Parent 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 Parent Board of
Directors without the prior written consent of the Company.
(i) Each Securityholder represents that any
proxies heretofore given in respect of such Securityholder's shares of
Parent Capital Stock are not irrevocable, and that any such proxies
inconsistent with paragraph (c) above are, to the extent of such
inconsistency, hereby revoked.
(ii) Each Securityholder understands and
acknowledges that the Company is entering into the Merger Agreement in
reliance upon such Securityholder's execution and delivery of this Voting
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 Voting
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 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 Delaware Law and California Law.
(d) No Solicitation. Each Securityholder hereby
agrees, in such Securityholder's capacity as a stockholder of Parent, 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 permit any of them to),
directly or indirectly, knowingly encourage, solicit, participate in or
initiate discussions or negotiations with, or knowingly provide any
non-public information to, any Person (other than Parent, any of its
Affiliates or representatives) concerning any Acquisition Proposal.
3. Representations and Warranties of the Securityholder.
Each Securityholder, severally and not jointly, hereby represents and
warrants to the Company as follows, except as set forth in the Disclosure
Schedule, if any, prepared and signed by the such Securityholder and
delivered to Parent prior to the execution hereof:
(a) Ownership of Securities. Such Securityholder is
the record and Beneficial Owner of the number of shares of Parent Common
Stock and Series B Preferred Stock set forth opposite such Securityholder's
name on Schedule B attached (the "Existing Securities"). On the date
hereof, the Existing Securities (i) assuming the accuracy of the
representations and warranties made by Parent in Section 7.3 of the Merger
Agreement, constitute the percentage of the total number of shares of
Parent Common Stock and Series B Preferred Stock issued and outstanding as
of the date hereof as set forth opposite such Securityholder's name on
Schedule B attached, and (ii) constitute all of the shares of Parent Common
Stock, Series A Preferred Stock and Series B Preferred 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 Voting
Agreement, in each case with respect to all of the Existing Securities with
no limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Voting 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 Voting Agreement. The
execution, delivery and performance of this Voting 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 Voting
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 Voting
Agreement or the consummation by such Securityholder of the transactions
contemplated hereby.
4. Stop Transfer. Each Securityholder shall not request that
Parent register the transfer (book-entry or otherwise) of any certificate
or uncertificated interest representing any of its, his or her Existing
Securities, unless such transfer is made in compliance with this Voting
Agreement. In the event of any conversion of any Class 1 Series A Junior
Participating Preferred Stock, Class 2 Series A Junior Participating
Preferred Stock and Series B Preferred Stock included in any
Securityholder's Existing Securities into Parent Common Stock, such shares
of Parent Common Stock shall also constitute Existing Securities of such
Securityholder. In the event any Securityholder exercises any options or
other rights to acquire Parent Capital Stock, such Parent Capital Stock
shall be added to such Securityholders' Existing Securities. In the event
of any dividend or distribution consisting of securities, or any change in
the capital structure of Parent 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 representations, warranties, covenants,
agreements and proxy contained herein shall terminate upon the earlier to
occur of (i) the termination of the Merger Agreement in accordance with
Article XI thereof or (ii) the consummation 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
Voting 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 for which money damages would
not be an adequate remedy. Accordingly, the Securityholder agrees that, in
addition to any other available remedies, the Company shall be entitled to
an injunction restraining any violation or threatened violation of the
provisions of this Voting Agreement without the necessity of the Company
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 Voting
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
Voting 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 Voting Agreement or affecting
the validity or enforceability of any of the terms or provisions of this
Voting Agreement in any other jurisdiction. Without limiting the foregoing,
with respect to any provision of this Voting 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 Voting 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 VOTING 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.
(e) Entire Agreement. This Voting Agreement
constitutes the entire agreement among the parties with respect to the
subject matter of this Voting Agreement 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.
(f) 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 Northern District of California or in any New York or
California State Court sitting in such 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 Voting
Agreement agree to waive any right to jury trial as to all disputes and any
right to seek punitive or consequential damages.
(g) 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, see Schedule A attached.
If to the Company:
E*OFFERING Corp.
Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx
President
with copies to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
and
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Mo, Esq.
If to Parent, to:
Wit Capital Group, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
Vice Chairman, Co-Chief Executive Officer and
President
with copies to:
Wit Capital Group, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Senior Vice-President and Co-General Counsel
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, 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.
(h) 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 Voting Agreement.
(i) Assignment; Binding Agreement. This Voting
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 Voting 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 Voting
Agreement or any part hereof. Neither this Voting Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any
Securityholder without the prior written consent of the Company or by the
Company without the prior written consent of each Securityholder party
hereto.
(j) Amendment, Modification and Waiver. This Voting
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.
(k) Counterparts. This Voting 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
executed this Voting Agreement as of May _____, 2000.
E*OFFERING CORP.
By: /s/ Xxxxxx X. Xxxx
----------------------------
Name: Xxxxxx X. Xxxx
Title: President
SCHEDULE A
Securityholder Addresses
Xxxxxxx Crabs Capital Z Financial Services
Private Fund Private Fund II
00 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxx
000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxxxx
000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxxx
000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxx Xxxxx
000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Capital Z Financial Fund II Ltd.
00 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SECURITYHOLDERS
/s/ Xxxxxxx Crabs
-----------------------
Xxxxxxx Crabs
/s/ Xxxxxx Xxxxx
-----------------------
Xxxxxx Xxxxx
/s/ Xxx Xxxxxx
-----------------------
Xxx Xxxxxx
/s/ Xxxxxx Xxxxxxxx
-----------------------
Xxxxxx Xxxxxxxx
/s/ Xxxx Xxxxx
-----------------------
Xxxx Xxxxx
/s/ Xxxxxx Xxxxxxxxxx
------------------------
Xxxxxx Xxxxxxxxxx
/s/ Xxxxxx Xxxxxxxxxx
-------------------------
Xxxxxx Xxxxxxxxxx
SCHEDULE B
Existing Securities
(A) (B) Options
Beneficial Stock Vesting
Holder Owned Vested Options (A) + (B) 6/30/2000
--------------------- ----------------- ---------------- ------------- ------------
Crabs, Xxxxxxx 1,634,707 237,120 1,871,827 37,248
Xxxxx, Xxxxxx 4,179,537 - 4,179,537 -
Xxxxxx, Xxx 4,741,865 12,500 4,754,365 12,500
Xxxxxxxx, Xxx 1,682,000 140,000 1,822,000 158,334
Xxxxx, Xxxx 885,000 6,250 891,250 6,250
Capital Z Financial 11,616,549 - 11,616,549 -
Services Fund II
Capital Z Financial 50,117 - 50,117 -
Services Private Fund II
