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:
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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:
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(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
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(a) Voting Agreement. Each Securityholder shall, at any meeting
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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
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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
2
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
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Securityholder hereby irrevocably grants to, and appoints, ▇▇▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, 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
3
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
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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
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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
4
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
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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
5
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.
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(a) Specific Performance. Each Securityholder recognizes and
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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
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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.
6
(c) Attorneys' Fees. If any action at law or equity, including
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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
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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
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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
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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.
7
If to the Company:
E*OFFERING Corp.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
President
with copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
Two Embarcadero Place
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Mo, Esq.
If to Parent, to:
Wit Capital Group, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice Chairman, Co-Chief Executive Officer and
President
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with copies to:
Wit Capital Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Senior Vice-President and Co-General Counsel
and
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
and
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, 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
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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
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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
9
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
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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
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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 15, 2000.
E*OFFERING CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
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SCHEDULE A
Securityholder Addresses
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▇▇▇▇▇▇▇ Crabs Capital Z Financial Services
Private Fund Private Fund II
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Capital Z Financial Fund II Ltd.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SECURITYHOLDERS
/s/ ▇▇▇▇▇▇▇ Crabs
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▇▇▇▇▇▇▇ Crabs
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------
▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
SCHEDULE B
Existing Securities
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(A) Options
Beneficial Stock (B) Vesting
Holder Owned Vested Options (A) + (B) 6/30/2000
------------------------ ---------------- ------------------- ---------- ------------
Crabs, ▇▇▇▇▇▇▇ 1,634,707 237,120 1,871,827 37,248
▇▇▇▇▇, ▇▇▇▇▇▇ 4,179,537 - 4,179,537 -
▇▇▇▇▇▇, ▇▇▇ 4,741,865 12,500 4,754,365 12,500
▇▇▇▇▇▇▇▇, ▇▇▇ 1,682,000 140,000 1,822,000 158,334
▇▇▇▇▇, ▇▇▇▇ 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
