{"id":43732,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/stockholder-agreement-e-trade-group-inc-and-telebanc-financial.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stockholder-agreement-e-trade-group-inc-and-telebanc-financial","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/stockholder-agreement-e-trade-group-inc-and-telebanc-financial.html","title":{"rendered":"Stockholder Agreement &#8211; E*Trade Group Inc. and Telebanc Financial Corp."},"content":{"rendered":"<pre>                             STOCKHOLDER AGREEMENT\n\n          This STOCKHOLDER AGREEMENT (this 'Agreement') is made and entered into\nas of May 31, 1999 between E*TRADE Group, Inc., a Delaware corporation\n('Parent'), and the undersigned stockholder ('Stockholder') of Telebanc\nFinancial Corporation, a Delaware corporation ('Company').  Capitalized terms\nused and not otherwise defined herein shall have the respective meanings set\nforth in the Reorganization Agreement described below.\n\n                                   RECITALS\n\n          WHEREAS, pursuant to an Agreement and Plan of Merger and\nReorganization dated as of May 31, 1999 by and among Parent, Turbo Acquisition\nCorp., a Delaware corporation and a wholly owned subsidiary of Parent ('Merger\nSub') and Company (such agreement as it may be amended is hereinafter referred\nto as the 'Reorganization Agreement'). Parent has agreed to acquire the\noutstanding securities of Company pursuant to a statutory merger of Merger Sub\nwith and into Company (the 'Merger') in which each outstanding share of capital\nstock of Company (the 'Company Capital Stock') will be converted into shares of\ncommon stock of Parent (the 'Parent Shares') at the exchange rate set forth in\nthe Reorganization Agreement (the 'Transaction');\n\n          WHEREAS, in order to induce Parent to enter into the Reorganization\nAgreement and consummate the Transaction, Company has agreed to use its\nreasonable best efforts to cause each stockholder of Company who is an affiliate\nof Company to execute and deliver to Parent a Stockholder Agreement upon the\nterms set forth herein; and\n\n          WHEREAS, Stockholder is the registered and beneficial owner of such\nnumber of shares of the outstanding capital stock of Company as is indicated on\nthe signature page of this Agreement (the 'Shares').\n\n          NOW, THEREFORE, the parties agree as follows:\n\n          1.  Agreement to Retain Shares.\n              -------------------------- \n\n          1.1    Transfer and Encumbrance.\n                 ------------------------ \n\n          (a)    Stockholder is the beneficial owner of the Shares.  The Shares\nconstitute Stockholder's entire interest in the outstanding capital stock and\nvoting securities of Company.  The Shares are, and will be at all times up until\nthe Expiration Date, free and clear of any liens, claims, options, charges or\nother encumbrances.  Stockholder's principal residence or place of business is\naccurately set forth on the signature page hereto.\n\n          (b)    Stockholder agrees not to transfer (except as may be\nspecifically required by court order or by operation of law, in which case any\nsuch transferee shall agree to be bound hereby), sell, exchange, pledge or\notherwise dispose of or encumber any Shares or any New Shares (as defined\nbelow), or to make any offer or agreement relating thereto, at any time prior to\nthe Expiration Date. As used herein, the term 'Expiration Date' shall mean the\nearlier to\n\n \noccur of (i) the Effective Time or (ii) termination of the Reorganization\nAgreement in accordance with the terms thereof.\n\n          1.2    New Shares.  Stockholder agrees that any shares of capital \n                 ----------   \nstock or voting securities of Company that Stockholder purchases or with respect\nto which Stockholder otherwise acquires beneficial ownership after the date of\nthis Agreement and prior to the Expiration Date ('New Shares') shall be subject\nto the terms and conditions of this Agreement to the same extent as if they\nconstituted Shares.\n\n          2.   Agreement to Vote Shares.  Prior to the Expiration Date, at \n               ------------------------         \nevery meeting of the stockholders of Company at which any of the following is\nconsidered or voted upon, and at every adjournment thereof, and on every action\nor approval by written resolution of the stockholders of Company with respect to\nany of the following, Stockholder shall vote the Shares and any New Shares in\nfavor of approval and adoption of the Reorganization Agreement and of the\nTransaction. Notwithstanding the foregoing, nothing in this Agreement shall\nlimit or restrict Stockholder from acting in his capacity as a director or\nofficer of Company, to the extent applicable, it being understood that this\nAgreement shall apply to Stockholder solely in his capacity as a stockholder of\nCompany.\n\n          3.   Irrevocable Proxy.  Stockholder hereby agrees to timely deliver \n               -----------------                      \nto Parent a duly executed proxy in the form attached hereto as Annex A (the\n                                                               -------    \n'Proxy'), such Proxy to cover the Shares and all New Shares in respect of which\nStockholder is entitled to vote at each meeting of the stockholders of Company\n(including, without limitation, each written consent in lieu of a meeting). In\nthe event that Stockholder is unable to provide any such Proxy in a timely\nmanner, Stockholder hereby grants Parent a power of attorney to execute and\ndeliver such Proxy for and on behalf of Stockholder, such power of attorney,\nwhich being coupled with an interest, shall survive any death, disability,\nbankruptcy, or any other such impediment of Stockholder. Upon the execution of\nthis Agreement by Stockholder, Stockholder hereby revokes any and all prior\nproxies or powers of attorney given by Stockholder with respect to the Shares\nand agrees not to grant any subsequent proxies or powers of attorney with\nrespect to the Shares until after the Expiration Date.\n\n          4.   Representations, Warranties and Covenants of Stockholder.  \n               --------------------------------------------------------  \nStockholder hereby represents, warrants and covenants to Parent as follows:\n\n          (a)  Stockholder has full power and legal capacity to execute and\ndeliver this Agreement, to perform its obligations hereunder and to consummate\nthe transactions contemplated hereby.  This Agreement has been duly and validly\nexecuted and delivered by Stockholder and constitutes the valid and binding\nobligation of Stockholder, enforceable against Stockholder in accordance with\nits terms.  Except as may be limited by (i) the effect of bankruptcy,\ninsolvency, conservatorship, arrangement, moratorium or other laws affecting or\nrelating to the rights of creditors generally, or (ii) the rules governing the\navailability of specific performance, injunctive relief or other equitable\nremedies and general principles of equity, regardless of whether considered in a\nproceeding in equity or at law, the execution and delivery of this Agreement by\nStockholder does not, and the performance of Stockholder's obligations hereunder\nwill not, result in any breach of or constitute a default (or an event that with\nnotice or lapse of time or both would become a default) under, or give to others\nany right to terminate, \n\n \namend, accelerate or cancel any right or obligation under, or result in the\ncreation of any lien or encumbrance on any Shares or New Shares pursuant to, any\nnote, bond, mortgage, indenture, contract, agreement, lease, license, permit,\nfranchise or other instrument or obligation to which Stockholder is a party or\nby which Stockholder or the Shares or New Shares are or will be bound or\naffected.\n\n          (b)  Except to the same extent Company is permitted to do so pursuant\nto Section 4.4 of the Reorganization Agreement, until the Expiration Date,\nStockholder will not (and will use Stockholder's reasonable best efforts to\ncause Company, its affiliates, officers, directors and employees and any\ninvestment banker, attorney, accountant or other agent retained by Stockholder,\nCompany or any of the same, not to, except to the extent otherwise permitted\nunder Section 4.3 of the Reorganization Agreement):  (i) initiate or solicit,\ndirectly or indirectly, any proposal, plan or offer to acquire all or any\nmaterial part of the business or properties or capital stock of Company, whether\nby merger, purchase of assets, tender offer or otherwise, or to liquidate\nCompany or otherwise distribute to the stockholders of Company all or any\nsubstantial part of the business, properties or capital stock of Company (each,\nan 'Acquisition Proposal'); (ii) initiate, directly or indirectly, any contact\nwith any person in an effort to or with a view towards soliciting any\nAcquisition Proposal; (iii) furnish information concerning Company's business,\nproperties or assets to any corporation, partnership, person or other entity or\ngroup (other than Parent, or any associate, agent or representative of Parent)\nunder any circumstances that could reasonably be expected to relate to an actual\nor potential Acquisition Proposal; or (iv) negotiate or enter into discussions\nor an agreement, directly or indirectly, with any entity or group with respect\nof any potential Acquisition Proposal.  In the event Stockholder shall receive\nor become aware of any Acquisition Proposal subsequent to the date hereof,\nStockholder shall promptly inform Parent as to any such matter and the details\nthereof to the extent possible without breaching any other agreement to which\nsuch Stockholder is a party or violating its fiduciary duties.\n\n          (c)  Stockholder understands and agrees that if Stockholder attempts\nto transfer, vote or provide any other person with the authority to vote any of\nthe Shares other than in compliance with this Agreement, Company shall not, and\nStockholder hereby unconditionally and irrevocably instructs Company to not,\npermit any such transfer on its books and records, issue a new certificate\nrepresenting any of the Shares or record such vote unless and until Stockholder\nshall have complied with the terms of this Agreement. Stockholder further\nunderstands and agrees that Parent may elect to not permit the transfer of\nshares of Parent Common Stock or the issuance of a new certificate representing\nsuch shares unless and until such a transfer can be made without adversely\naffecting the ability of Parent or the Surviving Corporation to account for the\nbusiness combination to be effected by the Merger as a pooling of interests.\n\n \n          5.  Additional Documents.  Stockholder hereby covenants and agrees to \n              --------------------               \nexecute and deliver any additional documents necessary or desirable, in the\nreasonable opinion of Parent, to carry out the purpose and intent of this\nAgreement.\n\n          6.  Consent and Waiver.  Stockholder hereby gives any consents or \n              ------------------   \nwaivers that are reasonably required for the consummation of the Transaction\nunder the terms of any agreement to which Stockholder is a party or pursuant to\nany rights Stockholder may have.\n\n          7.  Termination.  This Agreement and the Proxy delivered in \n              -----------                  \nconnection herewith shall terminate and shall have no further force or effect as\nof the Expiration Date.\n\n          8.  Confidentiality.  Stockholder agrees (i) to hold any information \n              ---------------               \nregarding this Agreement and the Transaction in strict confidence, and (ii) not\nto divulge any such information to any third person, except to the extent any of\nthe same is hereafter publicly disclosed by Parent.\n\n          9.  Miscellaneous.\n\n          9.1    Severability.  If any term, provision, covenant or restriction \n                 ------------                                    \nof this Agreement is held by a court of competent jurisdiction to be invalid,\nvoid or unenforceable, then the remainder of the terms, provisions, covenants\nand restrictions of this Agreement shall remain in full force and effect and\nshall in no way be affected, impaired or invalidated.\n\n          9.2    Binding Effect and Assignment.  This Agreement and all of the\n                 -----------------------------                                \nprovisions hereof shall be binding upon and inure to the benefit of the parties\nhereto and their respective successors and permitted assigns, but, except as\notherwise specifically provided herein, neither this Agreement nor any of the\nrights, interests or obligations of the parties hereto may be assigned by either\nof the parties without the prior written consent of the other.  This Agreement\nis intended to bind Stockholder solely as a securityholder of Company only with\nrespect to the specific matters set forth herein.\n\n          9.3    Amendment and Modification.  This Agreement may not be \n                 --------------------------        \nmodified, amended, altered or supplemented except by the execution and delivery\nof a written agreement executed by the parties hereto.\n\n          9.4    Specific Performance; Injunctive Relief.  The parties hereto\n                 ---------------------------------------                     \nacknowledge that Parent will be irreparably harmed and that there will be no\nadequate remedy at law for a violation of any of the covenants or agreements of\nStockholder set forth herein.  Therefore, it is agreed that, in addition to any\nother remedies that may be available to Parent upon any such violation, Parent\nshall have the right to enforce such covenants and agreements by specific\nperformance, injunctive relief or by any other means available to Parent at law\nor in equity and Stockholder hereby waives any and all defenses which could\nexist in its favor in connection with such enforcement and waives any\nrequirement for the security or posting of any bond in connection with such\nenforcement.\n\n          9.5    Notices.  All notices, requests, demands or other \n                 -------       \ncommunications that are required or may be given pursuant to the terms of this\nAgreement shall be in writing and shall be deemed to have been duly given if\ndelivered by hand or mailed by registered or certified mail, postage prepaid, or\nsent by facsimile transmission, as follows:\n\n \n          (a)   If to Stockholder, at the address set forth below Stockholder's\nsignature at the end hereof.\n\n          (b)   if to Parent, to:\n\n          E*TRADE Group, Inc.\n          Four Embarcadero Place\n          2400 Geng Road\n          Palo Alto, CA  94303\n\n          Attention:     Thomas A. Bevilacqua, Esq.\n          Facsimile No:  (650) 842-8781\n          Telephone No:  (650) 842-2500\n\n          with a copy to:\n\n          Brobeck, Phleger &amp; Harrison LLP\n          2200 Geng Road\n          Two Embarcadero Place\n          Palo Alto, CA  94303\n          Attention:     Curtis L. Mo, Esq.\n          Facsimile No.: (650) 496-2885\n          Telephone No.: (650) 424-0160\n\n          and\n\n          Brobeck, Phleger &amp; Harrison LLP\n          Spear Street Tower\n          One Market\n          San Francisco, CA  94105\n          Attention:     J. Michael Shepherd, Esq.\n                         Steve L. Camahort, Esq.\n          Facsimile No.: (415) 442-1010\n          Telephone No.: (415) 442-0900\n\nor to such other address as any party hereto or any Indemnified Person may\ndesignate for itself by notice given as herein provided.\n\n          9.6    Governing Law.  This Agreement shall be governed by, construed\n                 -------------                                                 \nand enforced in accordance with the internal laws of the State of Delaware\nwithout giving effect to the principles of conflicts of law thereof.\n\n          9.7    Entire Agreement.  This Agreement and the Proxy contain the\n                 ----------------                                           \nentire understanding of the parties in respect of the subject matter hereof, and\nsupersede all prior negotiations and understandings between the parties with\nrespect to such subject matter.\n\n \n          9.8    Counterpart.  This Agreement may be executed in several\n                 -----------                                            \ncounterparts, each of which shall be an original, but all of which together\nshall constitute one and the same agreement.\n\n          9.9    Effect of Headings.  The section headings herein are for\n                 ------------------                                      \nconvenience only and shall not affect the construction or interpretation of this\nAgreement.\n\n\n                          (Signature Page Follows)  \n\n \n          IN WITNESS WHEREOF, the parties have caused this Company Agreement to\nbe executed as of the date first above written.\n\nE*TRADE GROUP, INC.                   STOCKHOLDER\n\n\nBy:________________________           ________________________________________\nName:______________________           (Signature)\nTitle:_____________________\n\n \n                                      ________________________________________\n                                      (Signature of Spouse)\n\n \n                                      ________________________________________\n                                      (Print Name of Stockholder)\n\n \n                                      ________________________________________\n                                      (Print Street Address)\n\n \n                                      ________________________________________\n                                      (Print City, State and Zip)\n\n \n                                      ________________________________________\n                                      (Print Telephone Number)\n\n \n                                      ________________________________________\n                                      (Social Security or Tax I.D. Number)\n\n\nTotal Number of Shares of Company Common Stock owned on the date hereof:\n\nCommon Stock:        __________________________\n\nState of Residence:  __________________________\n\n\n\n\n                    SIGNATURE PAGE TO STOCKHOLDER AGREEMENT\n\n \n                                                                         ANNEX A\n                                                                         -------\n                                                                                \n                               IRREVOCABLE PROXY\n\n                               TO VOTE STOCK OF\n\n                        TELEBANC FINANCIAL CORPORATION\n\n\n          The undersigned stockholder of Telebanc Financial Corporation, a\nDelaware corporation ('Company'), hereby irrevocably (to the full extent\npermitted by the Delaware General Corporation Law) appoints the members of the\nBoard of Directors of E*TRADE Group, Inc., a Delaware corporation ('Parent'),\nand each of them, or any other designee of Parent, as the sole and exclusive\nattorneys and proxies of the undersigned, with full power of substitution and\nresubstitution, to vote and exercise all voting and related rights (to the full\nextent that the undersigned is entitled to do so) with respect to all of the\nshares of capital stock of Company that now are or hereafter may be beneficially\nowned by the undersigned, and any and all other shares or securities of Company\nissued or issuable in respect thereof on or after the date hereof (collectively,\nthe 'Shares') in accordance with the terms of this Irrevocable Proxy.  The\nShares beneficially owned by the undersigned stockholder of Company as of the\ndate of this Irrevocable Proxy are listed on the final page of this Irrevocable\nProxy.  Upon the undersigned's execution of this Irrevocable Proxy, any and all\nprior proxies given by the undersigned with respect to any Shares are hereby\nrevoked and the undersigned agrees not to grant any subsequent proxies with\nrespect to the Shares until after the Expiration Date (as defined below).\n\n          This Irrevocable Proxy is irrevocable (to the extent provided in the\nDelaware General Corporation Law), is coupled with an interest, including, but\nnot limited to, that certain Company Affiliate Agreement dated as of even date\nherewith by and among Parent, and the undersigned, and is granted in\nconsideration of Parent entering into that certain Agreement and Plan of Merger\nand Reorganization (the 'Reorganization Agreement') by and among Parent and\nTurbo Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of\nParent ('Merger Sub'), and Company which Reorganization agreement provides for\nthe merger of Merger Sub with and into Company (the 'Merger').  As used herein,\nthe term 'Expiration Date' shall mean the earlier to occur of (i) such date and\ntime as the Merger shall become effective in accordance with the terms and\nprovisions of the Reorganization Agreement, and (ii) the date of termination of\nthe Reorganization Agreement.\n\n          The attorneys and proxies named above, and each of them are hereby\nauthorized and empowered by the undersigned, at any time prior to the Expiration\nDate, to act as the undersigned's attorney and proxy to vote the Shares, and to\nexercise all voting and other rights of the undersigned with respect to the\nShares (including, without limitation, the power to execute and deliver written\nconsents pursuant to the Delaware General Corporation Law), at every annual,\nspecial or adjourned meeting of the stockholders of Company and in every written\nconsent in lieu of such meeting:\n\n \n          in favor of approval and adoption of the Reorganization Agreement and\n          of the transactions contemplated thereby.\n\n          The attorneys and proxies named above may not exercise this\nIrrevocable Proxy on any other matter except as provided above.  The undersigned\nstockholder may vote the Shares on all other matters.\n\n          All authority herein conferred shall survive the death or incapacity\nof the undersigned and any obligation of the undersigned hereunder shall be\nbinding upon the heirs, personal representatives, successors and assigns of the\nundersigned.\n\n          This Irrevocable Proxy is coupled with an interest as aforesaid and is\nirrevocable.\n\nDated:  May ____, 1999\n\n                                       _____________________________________\n                                       (Signature of Stockholder)\n \n \n                                       _____________________________________\n                                       (Print Name of Stockholder)\n \n \n                                       Shares beneficially owned:\n \n \n                                       _______________________ shares of \n                                       Company Common Stock\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9022],"corporate_contracts_industries":[9415],"corporate_contracts_types":[9622,9626],"class_list":["post-43732","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-telebanc-financial-corp","corporate_contracts_industries-financial__banks","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43732","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43732"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43732"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43732"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43732"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}