AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT by and among AMERITRADE HOLDING CORPORATION, THE TORONTO-DOMINION BANK and THE STOCKHOLDERS DESCRIBED HEREIN Dated as of June 22, 2005
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EXECUTION COPY
AMENDED AND RESTATED
by and among
AMERITRADE HOLDING CORPORATION,
THE TORONTO-DOMINION BANK
and
THE STOCKHOLDERS DESCRIBED HEREIN
Dated as of June 22, 2005
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XXXXXXXX STOCKHOLDERS: |
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DOH STOCKHOLDERS: |
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INDEX OF DEFINED TERMS
Adverse Disclosure |
2 | |||
Affiliate |
2 | |||
Aggregate Offering Price |
3 | |||
Agreement |
1 | |||
Amendment |
29 | |||
Closing |
3 | |||
Closing Date |
3 | |||
Common Stock |
1 | |||
Company/Seller Indemnified Party |
24 | |||
Control |
2 | |||
Cutback Notice |
12 | |||
Datek Merger Agreement |
1 | |||
Demand Participation Notice |
8 | |||
Demand Registration |
6 | |||
Demand Right |
6 | |||
DOH Stockholders |
1 | |||
Exchange Act |
3 | |||
Existing Registration Rights Agreements |
3 | |||
Fair Market Value |
3 | |||
holder |
3 | |||
holders |
3 | |||
Incidental Cutback Notice |
14 | |||
Incidental Registration |
3 | |||
Incidental Registration Notice |
13 | |||
Indemnified Parties |
24 | |||
Indemnified Party |
24 | |||
Initiating Holders |
3 | |||
Issuer |
1 | |||
Loss |
24 | |||
Losses |
24 | |||
Minimum Demand Amount |
3 | |||
NASD |
3 | |||
Original Registration Rights Agreement |
1 | |||
Original Stockholders |
1 | |||
Participating Holder |
4 | |||
Pending Underwritten Offering |
4 | |||
Permissible Withdrawal |
4 | |||
person |
4 | |||
Person |
4 | |||
Prospectus |
4 | |||
Purchase Agreement |
1 | |||
Registrable Securities |
4 | |||
registration |
5 | |||
Registration Statement |
5 | |||
Request |
9 |
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Xxxxxxxx Stockholders |
1 | |||
SEC |
5 | |||
Securities Act |
5 | |||
Share Purchase |
1 | |||
Shelf Demand |
7 | |||
Shelf Period |
5 | |||
Shelf Registration |
5 | |||
Shelf Registration Statement |
5 | |||
Shelf Underwritten Offering |
5 | |||
Similar Securities |
6 | |||
Stockholders |
1 | |||
Stockholders Agreement |
6 | |||
TD 1 |
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Underwriter Cutback Condition |
12 | |||
Underwriting Notice |
11 | |||
Underwritten Offering |
6 | |||
Waterhouse |
1 |
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (as amended, supplemented, restated or
otherwise modified from time to time, this “Agreement”) is entered into as of this
22nd day of June, 2005 by and among Ameritrade Holding Corporation, a Delaware
corporation (the “Issuer”), the persons listed as Xxxxxxxx Stockholders on Exhibit A
(together with their respective transferees, heirs, personal representatives, successors and
assigns, the “Xxxxxxxx Stockholders”), the persons listed as DOH Stockholders on Exhibit A
(together with their respective transferees, heirs, personal representatives, successors and
assigns, the “DOH Stockholders”, and together with the Xxxxxxxx Stockholders, the
“Original Stockholders”), and The Toronto-Dominion Bank, a Canadian chartered bank
(together with its transferees, successors and assigns, “TD”, and together with the
Original Stockholders, the “Stockholders”).
RECITALS
WHEREAS, the Issuer and the Original Stockholders previously entered into a Registration
Rights Agreement, dated as of July 26, 2002 (the “Original Registration Rights Agreement”),
in order to provide the Original Stockholders registration rights with respect to the Common Stock
issued to the Original Stockholders in connection with the transactions contemplated by the Amended
and Restated Agreement and Plan of Merger, dated as of May 16, 2002 (the “Datek Merger
Agreement”), among the Issuer, Datek Online Holdings Corp., Arrow Merger Corp. and Dart Merger
Corp.;
WHEREAS, Issuer and TD have entered into that certain Agreement of Sale and Purchase, dated as
of June 22, 2005 (as amended, restated, supplemented or otherwise modified from time to time, the
“Purchase Agreement”), pursuant to which, among other things, the Issuer shall purchase
(the “Share Purchase”) from TD all of the outstanding capital stock of TD Waterhouse Group,
Inc. (“Waterhouse”) and TD will receive, in consideration for all of the capital stock of
Waterhouse, shares of common stock, par value $0.01 per share, of Issuer (the “Common
Stock”);
WHEREAS, the Group II Stockholders (as such term is defined in the Original Registration Right
Agreement) are no longer holders of Registrable Securities; and
WHEREAS, the Issuer and the Original Stockholders desire to amend and restate the Original
Registration Rights Agreement in order to, among other things, include TD as a party to such
agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
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SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following terms shall have the
following meanings:
“Adverse Disclosure” means public disclosure of material non-public information, which
disclosure in the good faith judgment of the Board of Directors of the Issuer (after consultation
with external legal counsel) (i) would be required to be made in any Registration Statement so that
such Registration Statement would not be materially misleading, (ii) would not be required to be
made at such time but for the filing, effectiveness or continued use of such Registration Statement
and (iii) would have a material adverse effect on the Issuer or its business or on the Issuer’s
ability to effect a material proposed acquisition, disposition, financing, reorganization,
recapitalization or similar transaction.
“Affiliate” means (i) with respect to any specified Person that is not a natural
Person, any other Person that, directly or indirectly through one or more intermediaries, Controls,
is Controlled by, or is under common Control with, such specified Person, and (ii) with respect to
any natural Person, any family member of such natural Person. The term “Control” shall
mean, the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, either through the ownership of voting securities or by
contract. For purposes of this Agreement, notwithstanding anything herein to the contrary, neither
the Issuer nor any of its subsidiaries shall be deemed to be an Affiliate of any Stockholder, nor
shall any Xxxxxxxx Stockholder, DOH Stockholder or TD be deemed to be an Affiliate of each other or
of the Issuer, solely by virtue of (A) such party’s ownership of Common Stock or its being a party
to the Stockholders Agreement entered into concurrently with the Purchase Agreement (to the extent
a party thereto), (B) the election of directors of the Issuer designated by such party or nominated
by such party for election to the board of directors of the Issuer or (C) any other action taken by
such party or its respective Affiliates which is permitted under the Stockholders Agreement (to the
extent such party is a party thereto), in each case in accordance with the terms and conditions of,
and subject to the limitations and restrictions set forth in, the Stockholders Agreement (and
irrespective of the characteristics of the aforesaid relationships and actions under applicable law
or accounting principles). Without limiting the generality of the foregoing, (u) Harbourvest
Partners VI — Direct Fund, L.P. and each other Person who shall become an assignee of the rights of
the foregoing Person under Section 3.4 shall be deemed to be Affiliates with respect to each other
solely for purposes of this Agreement, (v) each of Monitor Clipper Equity Partners, L.P., Monitor
Clipper Equity Partners (Foreign), L.P. and each other Person who shall become an assignee of the
rights of one or more of the foregoing Persons under Section 3.4 shall be deemed to be Affiliates
with respect to each other solely for purposes of this Agreement, (w) each of Silver Lake Partners,
L.P., Silver Lake Investors, L.P., Silver Lake Technology Investors, L.L.C., Integral Capital
Partners V, L.P., Integral Capital Partners V Side Fund, L.P. and each other Person who shall
become an assignee of the rights of one or more of the foregoing Persons under Section 3.4 shall be
deemed to be Affiliates with respect to each other solely for purposes of this Agreement, and (x)
each of 0000 Xxxxxxxx Xxxxx Fund, LLC, TA/Atlantic & Pacific IV, L.P., TA/Advent VIII, L.P., TA
Investors, LLC, TA Executives Fund, LLC, TA IX, L.P., Advent Atlantic & Pacific III, L.P., 1998 GPH
Fund, LLC, GPH DT Partners and each other Person who shall become an assignee of
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the rights of one or more of the foregoing Persons under Section
3.4 shall be deemed to be Affiliates with respect to each other solely for purposes of this
Agreement.
“Aggregate Offering Price” means the aggregate offering price of Registrable
Securities in any offering, calculated based upon the Fair Market Value of the Registrable
Securities, in the case of a Minimum Demand Amount, as of the date that the applicable Request is
delivered, and in the case of a Shelf Underwritten Offering, as of the date that the applicable
Underwriting Notice is delivered.
“Closing” has the meaning set forth in the Purchase Agreement.
“Closing Date” has the meaning set forth in the Purchase Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any
successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be
in effect from time to time.
“Existing Registration Rights Agreements” means each of the following as in effect on
the date of the Purchase Agreement: (i) the registration rights agreement dated as of September 6,
2001 by and between Issuer and National Discount Brokers Group, Inc., (ii) the registration rights
agreement dated as of July 21, 2000, among Issuer and Xxxxxx Xxxxx and J. Xxxxxxxx Xxxxxx, as
representatives of the stockholders of Financial Passport, Inc., and (iii) the stockholders
agreement dated as of April 2, 2001, among Issuer and the stockholders of Tradecast, Inc.,
Tradecast Enterprises LLC and Tradecast Investments Ltd.
“Fair Market Value” means, with respect to any Registrable Securities, the average
closing sales price, calculated for the five (5) trading days immediately preceding the date of a
determination.
“holder” or “holders” means any holder or holders of Registrable Securities
who is a party to this Agreement or who otherwise agrees in writing to be bound by the provisions
of this Agreement pursuant to Section 3.4.
“Incidental Registration” means any registration of the Registrable Securities of a
holder pursuant to Section 2.2(a), but shall exclude any registration which constitutes a Demand
Registration, Shelf Underwritten Offering or non-underwritten offering under a Shelf Registration
Statement.
“Initiating Holders” means the holder or holders who made the Request to initiate a
Demand Registration, together with all Affiliates of such holder or holders.
“Minimum Demand Amount” means an amount of Registrable Securities that either (i) is
equal to or greater than 8 million shares of Common Stock (as such number may be adjusted hereafter
to reflect any stock dividend, subdivision, recapitalization, reclassification, split, distribution, combination or similar
event) or (ii) has an Aggregate Offering Price of at least $50 million.
“NASD” means the National Association of Securities Dealers, Inc.
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“Participating Holder” means any holder exercising its right to participate in a
Demand Registration under Section 2.1(c)(iii).
“Pending Underwritten Offering” means, with respect to any holder withdrawing from
this Agreement pursuant to Section 3.9, (i) any registered primary Underwritten Offering by the
Issuer for its own account in which the Registration Statement has an effective date prior to the
date of such holder’s withdrawal from this Agreement, and (ii) any registered secondary
Underwritten Offering of Registrable Securities (including a Shelf Underwritten Offering) in which
the Request (or Underwriting Notice, if a Shelf Underwritten Offering) has been delivered to the
Issuer prior to the date of such holder’s withdrawal from this Agreement.
“Permissible Withdrawal” means a withdrawal (i) based on the reasonable determination
of the holders who made the Request to effect such registration that there has been, since the date
of the applicable Request, a material adverse change in the business, financial condition, results
of operations or prospects of the Issuer, in general market conditions or in market conditions for
online brokerage businesses generally, or (ii) in which each of the withdrawing holders shall have
paid or reimbursed on a pro rata basis the Issuer for all of the reasonable out-of-pocket fees and
expenses incurred by the Issuer in connection with the withdrawn registration.
“Person” or “person” means any individual, firm, limited liability company,
partnership, joint venture, corporation, joint stock company, trust or unincorporated organization,
incorporated or unincorporated association, government (or any department, agency or political
subdivision thereof) or other entity of any kind.
“Prospectus” means the prospectus included in any Registration Statement, all
amendments and supplements to such prospectus and all material incorporated by reference in such
prospectus.
“Registrable Securities” means
(a) with respect to any DOH Stockholder, any Common Stock issued to such DOH Stockholder,
pursuant to the Datek Merger Agreement, and any shares or other securities that may be issued or
distributed or be issuable in respect thereof upon any reclassification, share combination, share
subdivision, recapitalization, split, share dividend, share exchange, merger, consolidation or
similar transaction or event, in each case that are held by a DOH Stockholder that has not
withdrawn from this Agreement pursuant to Section 3.9;
(b) with respect to any Xxxxxxxx Stockholder, shares of Common Stock, including shares issued
or issuable upon the conversion, exchange or exercise of any security convertible, exchangeable or
exercisable into Common Stock, and any shares or other securities into which or
for which such Common Stock may hereafter be changed, converted or exchanged and any other
shares or securities issued to Xxxxxxxx Stockholders in respect of such Common Stock (or such
shares or other securities into which or for which such shares are so changed, converted or
exchanged) upon any reclassification, share combination, share subdivision, recapitalization,
split, share dividend, share exchange, merger, consolidation or similar transaction or event, in
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each case that are held by a Xxxxxxxx Stockholder that has not withdrawn from this Agreement
pursuant to Section 3.9;
(c) with respect to TD, shares of Common Stock, including shares issued or issuable upon the
conversion, exchange or exercise of any security convertible, exchangeable or exercisable into
Common Stock, and any shares or other securities into which or for which such Common Stock may
hereafter be changed, converted or exchanged and any other shares or securities issued in respect
of such Common Stock (or such shares or other securities into which or for which such shares are so
changed, converted or exchanged) upon any reclassification, share combination, share subdivision,
recapitalization, split, share dividend, share exchange, merger, consolidation or similar
transaction or event, in each case that are held by TD to the extent it has not withdrawn from this
Agreement pursuant to Section 3.9; and
(d) any Registrable Securities shall cease to be “Registrable Securities” (i) to the extent
that a Registration Statement with respect to their sale has been declared effective under the
Securities Act and they have been disposed of pursuant to such Registration Statement, or (ii) to
the extent that they have been distributed pursuant to Rule 144 or Rule 145 (or any similar
provisions then in force) under the Securities Act.
“registration” means a registration of the Issuer’s securities for sale to the public
under a Registration Statement.
“Registration Statement” means any registration statement of the Issuer filed with, or
to be filed with, the SEC under the Securities Act, including the Prospectus, amendments,
supplements and post-effective amendments to such registration statement, and all exhibits and all
material incorporated by reference in such registration statement.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and any successor
thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect
from time to time.
“Shelf Period” means, with respect to any Shelf Registration Statement, a period of 24
consecutive months plus the period of time, if any, during which use of such Shelf Registration
Statement has been suspended pursuant to Section 2.1(g).
“Shelf Registration” means a registration effected pursuant to a Shelf Demand.
“Shelf Registration Statement” means a Registration Statement of the Issuer filed with
the SEC on Form S-3 (or any successor form or other appropriate form under the Securities Act) for an offering to be made on a continuous or
delayed basis pursuant to Rule 415 under the Securities Act (or any similar rule that may be
adopted by the SEC) covering the Registrable Securities.
“Shelf Underwritten Offering” means an underwritten offering of Registrable Securities
by a holder pursuant to a take down from a Shelf Registration Statement in accordance with Section
2.1(h)(ii).
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“Similar Securities” means, in connection with any registration of securities of the
Issuer, all securities of the Issuer which are (i) the same as or similar to those being
registered, (ii) convertible into or exchangeable or exercisable for the securities being
registered, or (iii) the same as or similar to the securities into which the securities being
registered are convertible into, exchangeable or exercisable for.
“Stockholders Agreement” means the Stockholders Agreement, dated as of June 22, 2005,
among the Issuer, TD and the stockholders listed on Schedule A thereto entered into in connection
with the Share Purchase.
“Underwritten Offering” means a registration in which securities of the Issuer are
sold by the Issuer or a holder to an underwriter or underwriters on a firm commitment basis for
reoffering to the public.
1.2. General Interpretive Principles. Whenever used in this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, any noun or pronoun shall be
deemed to include the plural as well as the singular and to cover all genders. The name assigned
this Agreement and the section captions used herein are for convenience of reference only and shall
not be construed to affect the meaning, construction or effect hereof. Unless otherwise specified,
the terms “hereof,” “herein,” “hereunder” and similar terms refer to this Agreement as a whole
(including the exhibits, schedules and disclosure statements to this Agreement), and references
herein to Sections refer to Sections of this Agreement. Unless otherwise specified, the term “days”
shall mean “calendar days”. The term “including” means “including without limitation.” For purposes
of this Agreement, a “percentage” (or a “majority”) of the Registrable Securities (or, where
applicable, of any other securities) shall be determined based on the number of shares of such
securities.
SECTION 2. REGISTRATION RIGHTS
2.1. Demand Registrations.
(a) Demand by Stockholders. At any time or from time to time, on up to a maximum of
eleven occasions, the holders of Registrable Securities shall have the right (subject to Section
2.1(c)) to require the Issuer to register all or part of the Registrable Securities under the
Securities Act (each such right, a “Demand Right”); provided, that any registration
made pursuant to a Demand Right (a “Demand Registration”) must include Registrable
Securities in an amount not less than the Minimum Demand Amount; and provided,
further, that after a Request (as defined below) has been given for a Demand Registration
another Request cannot be given until the date that is sixty (60) days following the effective date
of the Registration Statement relating to such previous Demand Registration. The Issuer shall file
with the SEC, as expeditiously as reasonably possible after the initiation of a Demand Right, a
Registration Statement relating to the offer and sale of the Registrable Securities requested to be
included therein by the holders thereof in accordance with the methods of distribution elected by
such holders and shall use its best efforts to cause such Registration Statement to be declared
effective under the Securities Act as expeditiously as reasonably possible thereafter.
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(b) Shelf Registrations. On up to two occasions, the Original Stockholders (subject
to Section 2.1(c)(i)), and on up to two occasions, TD (subject to Section 2.1(c)(iii)), shall have
the right to elect for any Demand Registration to be made pursuant to a Shelf Registration
Statement (a “Shelf Demand”), in which case the Issuer shall file with the SEC, as
expeditiously as reasonably possible after the initiation of a Shelf Demand, a Shelf Registration
Statement relating to the offer and sale of the Registrable Securities requested to be included
therein (including pursuant to Section 2.1(c)(iv)) by the holders thereof from time to time in
accordance with the methods of distribution elected by such holders and shall use its best efforts
to cause such Shelf Registration Statement to be declared effective under the Securities Act as
expeditiously as reasonably possible thereafter. The Issuer shall use its best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the Prospectus forming a
part thereof to be usable by the holders for the Shelf Period.
(c) Limitations on Demand Rights.
(i) Original Stockholders.
(A) | Subject to the restrictions set forth in clauses (B), (C), (D), (E) and (F) below, five of the eleven Demand Rights may be initiated by any of the Original Stockholders. | ||
(B) | No Original Stockholder, together with its Affiliates, may initiate Demand Rights on more than two (2) occasions; | ||
(C) | On each occasion that an Original Stockholder initiates a Demand Right, such Original Stockholder and its Affiliates are immediately thereafter restricted within the twelve-month period following the initiation of such Demand Right from initiating additional Demand Rights until such time as a second Original Stockholder (who is not an Affiliate of the first Original Stockholder) or TD initiates a Demand Right;. | ||
(D) | Two of the five Demand Rights allocated to the Original Stockholders may be initiated only by the Xxxxxxxx Stockholders, subject to the restrictions set forth in this Section 2.1(c)(i); provided, however, that following the withdrawal from this Agreement pursuant to Section 3.9 hereof of either (x) all of the DOH Stockholders listed on Exhibit A under the heading “Silver Lake Entities” or (y) all of the DOH Stockholders listed on Exhibit A under the heading “TA Entities” (or, even if no such formal withdrawal has occurred, the date on which either (x) no DOH Stockholder listed on Exhibit A under the heading “Silver Lake Entities” owns any Registrable Securities or (y) no DOH Stockholder listed on Exhibit A under the heading “TA Entities” owns any Registrable Securities), |
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and assuming that the DOH Stockholders, collectively, have exercised fewer than three Demand Rights under this Agreement prior to the date of such withdrawal (or the date on which no “Silver Lake Entity” owns any Registrable Securities or on which no “TA Entity” owns any Registrable Securities), then the Xxxxxxxx Stockholders may exercise a total of three Demand Rights pursuant to this Agreement. |
(E) | A Shelf Demand may be initiated on one occasion only by DOH Stockholders owning (together with their Affiliates) 51% of the total Registrable Securities then held by all DOH Stockholders in the aggregate. | ||
(F) | A Shelf Demand may be initiated on one occasion only by Xxxxxxxx Stockholders owning (together with their Affiliates) 51% of the total Registrable Securities then held by all Xxxxxxxx Stockholders in the aggregate. |
(ii) TD.
(A) | Subject to the restrictions set forth in clauses (B) and (C) below, six of the eleven Demand Rights may be initiated by TD. | ||
(B) | On each occasion that TD initiates a Demand Right, TD is immediately thereafter restricted within the twelve-month period following the initiation of such Demand Right from initiating additional Demand Rights until such time as an Original Stockholder initiates a Demand Right. | ||
(C) | A Shelf Demand may be initiated on two occasions by TD. |
(iii) Participations. Within ten (10) days following receipt of any Request,
the Issuer shall deliver written notice of such request (a “Demand Participation
Notice”) to all other holders of Registrable Securities. Thereafter, the Issuer shall include in such Demand
Registration any additional Registrable Securities which the holder or holders thereof have,
within fifteen (15) days after the Demand Participation Notice has been given, requested in
writing be included in such Demand Registration; provided that nothing in this
Section 2.1(c)(iii) shall prohibit any holder from exercising Incidental Registration rights
with respect to any Demand Registration in accordance with Section 2.2. All such requests
shall specify the aggregate amount of Registrable Securities to be registered.
(iv) General. The Issuer shall not be obligated to effect more than three
Demand Registrations during any twelve-month period; provided, however, that
following the date on which all DOH Stockholders have withdrawn from this Agreement pursuant
to Section 3.9 hereof (or, even if no such formal withdrawal has occurred, the
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date on which
no DOH Stockholder owns any Registrable Securities), the Issuer shall not be obligated to
effect more than two Demand Registrations during any twelve-month period.
(d) Demand Notice. All requests to initiate a Demand Right must be made by notice (a
“Request”):
(i) provided to the Issuer in writing;
(ii) stating that it is a notice to initiate Demand Rights under this Agreement;
(iii) stating whether a Shelf Demand is being requested;
(iv) identifying the holder(s) effecting the request (and, in the event of a Shelf
Demand by the Original Stockholders, whether they are DOH Stockholders or Xxxxxxxx
Stockholders); and
(v) stating the number of Registrable Securities to be included and the intended method
of disposition.
(e) Demand Withdrawal. A holder may withdraw its Registrable Securities from a Demand
Registration at any time. In the event that all holders withdraw their Registrable Securities from
a Demand Registration and the withdrawal is a Permissible Withdrawal, the Initiating Holders will
not be deemed to have initiated a Demand Right with respect to such Demand Registration for
purposes of this Section 2.1. If all holders withdraw their Registrable Securities from a Demand
Registration, the Issuer shall cease all efforts to secure registration. The Issuer shall not
withdraw a Registration Statement relating to a Demand Registration without the consent of the
holders of the Registrable Securities proposed to be sold pursuant to such Registration Statement.
(f) Effective Registration. The Issuer shall be deemed to have effected a Demand
Registration if the applicable Registration Statement is declared effective by the SEC and remains
effective as follows:
(i) if a Shelf Registration, it must remain effective for the Shelf Period;
(ii) if not a Shelf Registration and such Registration Statement does not contemplate
an Underwritten Offering, it must remain effective for not less than 180 days (or such
shorter period as will terminate when all Registrable Securities covered by such
Registration Statement have been sold or withdrawn); or
(iii) if not a Shelf Registration and such Registration Statement contemplates an
Underwritten Offering, it must remain effective for not less than 180 days plus such longer
period (not to exceed 90 days after the 180th day) as, in the opinion of counsel for the
underwriter or underwriters, is required by law for the delivery of a
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Prospectus in connection with the sale of Registrable Securities by an underwriter or dealer.
No Demand Registration shall be deemed to have been effected if an Underwritten Offering is
contemplated by such Demand Registration and the conditions to closing specified in the applicable
underwriting agreement are not satisfied by reason of a wrongful act, misrepresentation or breach
of such underwriting agreement or this Agreement by the Issuer. Subject to Section 2.1(g), the
Issuer shall not be deemed to have effected a Shelf Registration Statement, or to have used its
best efforts to keep the Shelf Registration Statement effective, if the Issuer voluntarily takes
any action or omits to take any action that would result in the inability of any holder of
Registrable Securities covered by such Registration Statement to be able to offer and sell any such
Registrable Securities during such Shelf Period, unless such action or omission is required by
applicable law.
(g) Suspension of Registration. If the filing, initial effectiveness or continued use
of a Registration Statement, including a Shelf Registration Statement, in respect of a Demand
Registration at any time would require the Issuer to make an Adverse Disclosure, then the Issuer
may, upon giving prompt written notice of such action to the holders which are included in such
Demand Registration, delay the filing or initial effectiveness of, or suspend use of, such
Registration Statement; provided, that the Issuer shall not be permitted to do so (i) more
than two times during any 12 month period, (ii) for a period exceeding 30 days on any one occasion
or (iii) for a period exceeding 60 days in any 12 month period. In the event the Issuer exercises
its rights under the preceding sentence, the holders agree to suspend, promptly upon their receipt
of the notice referred to above, their use of the Prospectus relating to the Demand Registration in
connection with any sale or offer to sell Registrable Securities. The Issuer shall promptly notify
the holders of the expiration of any period during which it exercised its rights under this Section
2.1(g). The Issuer agrees that, in the event it exercises its rights under this Section 2.1(g), it
shall, within 30 days following the holders’ receipt of the notice of suspension, update the
suspended Registration Statement as may be necessary to permit the holders to resume use thereof in
connection with the offer and sale of their Registrable Securities in accordance with applicable
law.
(h) Underwritten Offering.
(i) Demand Registrations. Any offering pursuant to a Demand Registration,
other than a Shelf Demand, shall be in the form of an Underwritten Offering in the following
cases:
(A) in the case of a Demand Registration initiated by the Xxxxxxxx
Stockholders, if requested by the holders of a majority of the Registrable
Securities included in such offering by such Xxxxxxxx Stockholders;
(B) in the case of a Demand Registration initiated by the DOH Stockholders, if
requested by the holders of a majority of the Registrable Securities included in
such offering by such DOH Stockholders;
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(C) in the case of a Demand Registration initiated by TD, if requested by TD;
or
(D) in any case, upon the request of the holders of not less than a majority of
the Registrable Securities included in any offering pursuant to a Demand
Registration.
(ii) Shelf Registrations. At any time that a Shelf Registration Statement is
effective, if any holder or group of holders delivers a notice to the Issuer (an
“Underwriting Notice”) stating that it intends to effect a Shelf Underwritten
Offering of all or part of its Registrable Securities included by it on the Shelf
Registration Statement and stating the Aggregate Offering Price and/or number of the
Registrable Securities to be included in the Shelf Underwritten Offering, then the Issuer
shall amend or supplement the Shelf Registration Statement as may be necessary in order to
enable such Registrable Securities to be distributed pursuant to the Shelf Underwritten
Offering (taking into account the inclusion of Registrable Securities by any other holders
pursuant to paragraph (A) below); provided that any Shelf Underwritten Offering must
include Registrable Securities that have an Aggregate Offering Price of at least $30
million. In connection with any Shelf Underwritten Offering:
(A) such proposing holder(s) shall also deliver the Underwriting Notice to all
other holders and permit each holder to include its Registrable Securities included
on the Shelf Registration Statement in the Shelf Underwritten Offering if such
holder notifies the proposing holders and the Issuer within 5 business days after
delivery of the Underwriting Notice to such holder;
(B) in the event that an Underwriter Cutback Condition occurs with respect to
the Registrable Securities proposed to be included in the Shelf Underwritten
Offering, then (1) the number of Registrable Securities which will be included in
the Shelf Underwritten Offering shall only be that number which, in the good faith
opinion of the underwriter, can be included without being likely to have a
significant adverse effect on the price, timing or distribution of the class of
securities offered or the market for the class of securities offered or the Common
Stock, and (2) each holder shall be entitled to include Registrable
Securities in the Shelf Underwritten Offering pro rata based on the number of
Registrable Securities requested to be included thereby prior to such holder’s
receipt of the Cutback Notice; and
(C) the Underwriting Notice shall state that holders must respond to the
Underwriting Notice within 5 business days of the delivery thereof.
(i) Selection of Underwriters. In the event that a Demand Registration is an
Underwritten Offering (including a Shelf Underwritten Offering), the two holders who, together with
their Affiliates, hold the largest number of Registrable Securities to be included in such
Underwritten Offering shall have the right to jointly select the managing underwriter or
underwriters for the offering, which underwriters must be (x) nationally recognized investment
banking firm(s) with recognized expertise in the online brokerage industry, (y) ranked in the top
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five for equity underwritings for the immediately preceding year by Xxxxxxxx Financial Services
Data (or a similar ranking service if such ranking service ceases to exist) and (z) be reasonably
acceptable to the Issuer; provided, that a holder shall not have such rights to designate
the managing underwriter in an Underwritten Offering if such holder, or any of its Affiliates, had
previously designated the managing underwriter for a prior Underwritten Offering (including a Shelf
Underwritten Offering) but failed for any reason to hold, together with its Affiliates, the largest
or second largest number of Registrable Securities included in such prior Underwritten Offering (as
compared to the Registrable Securities held by any other holder, together with its respective
Affiliates, which were included in the prior Underwritten Offering).
(j) Priority of Securities Registered Pursuant to Demand Registrations. If the
managing underwriter of a proposed Underwritten Offering (other than a Shelf Underwritten Offering,
which shall be governed by Section 2.1(h)(ii)(B)) of Registrable Securities included in a Demand
Registration informs the holders of such Registrable Securities in writing (a “Cutback
Notice”) that, in its or their opinion, the number of securities requested to be included in
such Demand Registration exceeds the number which can be sold in such offering without being likely
to have a significant adverse effect on the price, timing or distribution of the class of
securities offered or the market for the class of securities offered or the Common Stock (the
foregoing, an “Underwriter Cutback Condition”), then the Issuer shall include in such
registration only the number of Registrable Securities which, in the good faith opinion of such
underwriter, can be included without having such an adverse effect, selected in the following
order:
(i) first, the Registrable Securities requested to be included by the holder(s)
initiating the Demand Registration and holders who are Participating Holders with respect
thereto, allocated pro rata based on the number of Registrable Securities requested to be
included thereby prior to such holder’s receipt of the Cutback Notice;
(ii) second, the securities which are of the same class as the Registrable Securities
and are requested to be included by stockholders of the Issuer who are parties to the
Existing Registration Rights Agreements (to the extent required by the Existing Registration
Rights Agreements and subject to the terms and conditions thereof) and who validly requested
participation in such registration pursuant thereto, allocated in accordance with the
Existing Registration Rights Agreements; and
(iii) third, Registrable Securities requested to be included by other holders pursuant
to Incidental Registration rights, allocated pro rata, based on the number of such
securities requested to be included by each such holder prior to its receipt of the Cutback
Notice.
In the event of a cutback pursuant to this Section 2.1(j), each of the holders agrees that it will
not include Registrable Securities in any registration effected pursuant to the Securities Act in a
manner that is not in compliance with the foregoing priorities.
(k) Effect of Cutbacks on Demand Rights. With respect to any Demand Registration
subject to cutbacks in accordance with Section 2.1(j), in the event that the holder(s) initiating
the Demand Right is cutback and is not able to include all Registrable Securities that it
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(together
with all of its Affiliates) requested to be included in the Demand Registration, for purposes of
determining which holder initiated the Demand Right, the holder (together with all of its
Affiliates) with Registrable Securities representing the greatest number of shares of Common Stock
included in the Demand Registration will be treated as the holder that initiated the Demand Right
for all purposes under this Agreement; provided that this provision shall in no way limit
the Issuer’s obligations to effect a Demand Registration for which the provisions of Section 2.1
were satisfied at the time of the applicable Request.
(l) Registration Statement Form. Demand Registrations shall be on such appropriate
registration form of the SEC (i) as shall be selected by the Issuer and as shall be reasonably
acceptable to the holders of a majority of the Registrable Securities requesting participation in
the Demand Registration and (ii) as shall permit the disposition of the Registrable Securities in
accordance with the intended method or methods of disposition specified in the applicable holders’
requests for such registration.
(m) No Piggybacks on Demand Registrations. Notwithstanding anything to the contrary
contained herein, the Issuer will not, and will not permit any stockholder of the Issuer to,
include any securities for sale in any Demand Registration (including a Shelf Registration) made on
behalf of the holders pursuant to this Section 2.1, other than (subject to Section 2.1(j)) (i)
Registrable Securities held by the holders, or (ii) such additional securities of the same class as
the Registrable Securities held by stockholders of the Issuer who are parties to the Existing
Registration Rights Agreements and who validly request participation pursuant to the terms thereof.
2.2. Incidental Registrations.
(a) Participation. (i) At any time or from time to time, if the Issuer at any time
proposes to file a Registration Statement with respect to any offering of its securities for its
own account or for the account of any stockholder who holds its securities (other than (A) a
registration on Form S-4 or S-8 or any successor form to such forms, (B) a registration of
securities solely relating to an offering and sale to employees, directors or consultants of the
Issuer pursuant to any employee stock plan or other employee benefit plan arrangement or (C) a
registration of non-convertible debt securities) then, as expeditiously as reasonably possible (but
in no event less than twenty (20) days prior to the proposed date of filing such Registration
Statement), the Issuer shall give written notice (the “Incidental Registration Notice”) of
such proposed filing to all holders of Registrable Securities, and such notice shall offer the
holders of such Registrable Securities the opportunity to register such number of Registrable
Securities as each such holder may request in writing. Subject to Section 2.2(b), the Issuer shall
include in such Registration Statement all such Registrable Securities which are requested to be
included therein within fifteen (15) days after the Incidental Registration Notice is given to such
holders. If at any time after giving written notice of its intention to register any securities
and prior to the effective date of the Registration Statement filed in connection with such
registration, the Issuer shall determine for any reason not to register or to delay registration of
such securities, the Issuer may, at its election, give written notice of such determination to each
holder of Registrable Securities and,
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(A) | in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration; and | ||
(B) | in the case of a determination to delay registering, shall be permitted to delay registering any Registrable Securities for the same period as the delay in registering such other securities. |
(ii) If the offering described in an Incidental Registration Notice is to be an
Underwritten Offering, then each holder making a request for its Registrable Securities to
be included therein must, and the Issuer shall make such arrangements with the underwriters
so that each such holder may, participate in such Underwritten Offering on the same terms as
the Issuer and other Persons selling securities in such Underwritten Offering;
provided, however, that no holder shall be required to make any
representation or warranty, or provide an indemnity, other than with respect to authority to
enter into the agreements in connection with such Underwritten Offering, its title to the
Registrable Securities and with respect to any written information provided by the holder to
the Issuer expressly for inclusion in the registration statement. If the offering pursuant
to such registration is to be on any other basis, then each holder making a request for an
Incidental Registration pursuant to this Section 2.2(a) must participate in such offering on
such basis.
(iii) Each holder of Registrable Securities making a request for an Incidental
Registration pursuant to this Section 2.2(a) shall be permitted to withdraw all or part of
such holder’s Registrable Securities from such Incidental Registration at any time.
(b) Priority of Incidental Registration. If the managing underwriter or underwriters
of any proposed Underwritten Offering of securities included in an Incidental Registration informs
the holders of Registrable Securities sought to be included in such registration pursuant to
Section 2.2(a) in writing (an “Incidental Cutback Notice”) that, in its or their opinion,
an Underwriter Cutback Condition exists, then the Issuer shall include in such registration only
the number of Registrable Securities
which, in the good faith opinion of such underwriter can be included without having such an
adverse effect, selected in the following order:
(i) if the registration is being effected pursuant to the exercise of Demand Rights,
(A) | first, the securities, if any, being sold by such Person(s) initiating the Demand Right and holders who are Participating Holders with respect thereto, allocated pro rata based on the number of Registrable Securities requested to be included thereby by each such holder prior to its receipt of the Incidental Cutback Notice; |
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(B) | second, if applicable, the securities, if any, which are of the same class as the Registrable Securities and are requested to be included by stockholders of the Issuer who are parties to the Existing Registration Rights Agreements (to the extent required by the Existing Registration Rights Agreements and subject to the terms and conditions thereof) and who validly requested participation in such registration pursuant thereto, allocated in accordance with the Existing Registration Rights Agreements; and | ||
(C) | third, the Registrable Securities, if any, requested to be included by the holders pursuant to this Section 2.2, allocated pro rata based on the number of Registrable Securities requested to be included thereby by each such holder prior to its receipt of the Incidental Cutback Notice. |
(ii) if the registration is being effected by other stockholders of the Issuer pursuant
to the exercise of demand registration rights under the Existing Registration Rights
Agreements,
(A) | first, the securities, if any, being sold by such other stockholders exercising such demand registration rights, allocated in accordance with the Existing Registration Rights Agreements; | ||
(B) | second, the Registrable Securities, if any, requested to be included by the holders pursuant to this Section 2.2, allocated pro rata based on the number of Registrable Securities requested to be included by each such holder prior to its receipt of the Incidental Cutback Notice; | ||
(C) | third, securities, if any, requested to be included by the Issuer; and | ||
(D) | fourth, if applicable, the securities, if any, requested to be included by any other stockholders of the Issuer in accordance with agreements between the Issuer and such other stockholders (other than the Existing Registration Rights Agreements), allocated in accordance with such agreements; |
(iii) if the registration is being effected by the Issuer for its own account,
(A) | first, the securities, if any, being sold by the Issuer; | ||
(B) | second, the securities, if any, requested to be included by other stockholders of the Issuer in accordance with the |
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Existing Registration Rights Agreements (to the extent required by the Existing Registration Rights Agreements and subject to the terms and conditions thereof) and who validly requested participation in such registration pursuant thereto, allocated in accordance with the Existing Registration Rights Agreements; | |||
(C) | third, the Registrable Securities, if any, requested to be included by the holders pursuant to Section 2.2, allocated pro rata based on the number of Registrable Securities requested to be included by such holder prior to its receipt of the Incidental Cutback Notice; and | ||
(D) | fourth, if applicable, the securities, if any, requested to be included by any other stockholders of the Issuer in accordance with agreements between the Issuer and such other stockholders (other than the Existing Registration Rights Agreements) and who validly requested participation in such registration pursuant thereto, allocated in accordance with such agreements; |
(iv) if the registration is being effected by other stockholders of the Issuer pursuant
to the exercise of contractual demand registration rights in accordance with agreements
between the Issuer and such other stockholders (other than the Existing Registration Rights
Agreements), the priorities will be, without prejudice to Section 2.6, as set forth in such
agreements.
In the event of a cutback pursuant to this Section 2.2(b), each of the holders agrees that it will
not include Registrable Securities in any registration effected pursuant to the Securities Act in a
manner that is not in compliance with the foregoing priorities set forth in clauses (i) through
(iv).
(c) Suspension of Registration. If the filing, initial effectiveness or continued use
of a Registration Statement, including a Shelf Registration Statement, in respect of an Incidental
Registration at any time would require the Issuer to make an Adverse Disclosure, then the Issuer
may, upon giving prompt written notice of such action to the holders which are included in
such Incidental Registration, delay the filing or initial effectiveness of, or suspend use of, such
Registration Statement; provided, that the Issuer shall not be permitted to do so (i) more
than two times during any 12 month period, (ii) for a period exceeding 30 days on any one occasion
or (iii) for a period exceeding 60 days in any 12 month period. In the event the Issuer exercises
its rights under the preceding sentence, the holders agree to suspend, promptly upon their receipt
of the notice referred to above, their use of the Prospectus relating to the Incidental
Registration in connection with any sale or offer to sell Registrable Securities. The Issuer shall
promptly notify the holders of the expiration of any period during which it exercised its rights
under this Section 2.2(c). The Issuer agrees that, in the event it exercises its rights under this
Section 2.2(c), it shall, within 30 days following the holders’ receipt of the notice of
suspension, update the suspended Registration Statement as may be necessary to permit the holders
to resume use thereof in
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connection with the offer and sale of their Registrable Securities in
accordance with applicable law.
2.3. Restricted Periods.
(a) Holdback. In the event of a Demand Registration of Registrable Securities that is
an Underwritten Offering (excluding a Shelf Underwritten Offering or the filing of a Shelf
Registration Statement) or an Underwritten Offering by the Issuer in a primary offering for its own
account, the holders of Registrable Securities agree, if requested in writing by the managing
underwriter or underwriters, not to effect any public sale or distribution of any Similar
Securities to those being registered, including any sale under Rule 144 (except, in each case, as
part of the applicable registration, if permitted, or as part of another registration permitted
hereunder), during the period beginning seven (7) days before, and ending ninety (90) days (or such
lesser period as may be permitted by such managing underwriter or underwriters) after, the
effective date of the Registration Statement filed in connection with such registration.
(b) Restricted Period for the Issuer and Others. (i) In the case of a Demand
Registration of Registrable Securities that is an Underwritten Offering (excluding a Shelf
Underwritten Offering or the filing of a Shelf Registration Statement), the Issuer agrees, if
requested by the managing underwriter or underwriters in such Underwritten Offering, not to effect
any public sale or distribution (or register for sale) of any securities which are Similar
Securities to those being registered during the period beginning seven (7) days before, and ending
ninety (90) days (or such lesser period as may be permitted by such holders or such underwriter or
underwriters) after, the effective date of the Registration Statement filed in connection with such
registration. Notwithstanding the foregoing, the Issuer may effect a public sale or distribution of
securities of the type described above and during the periods described above if the same (A) is
made pursuant to registrations on Forms S-4 or S-8 or any successor form to such forms or (B) as
part of any registration of securities for offering and sale to employees, directors or consultants
of the Issuer pursuant to any employee stock plan or other employee benefit plan arrangement.
(ii) The Issuer agrees to use reasonable best efforts to obtain from each holder of
restricted securities (within the meaning of Rule 144 under the Securities Act)
of the Issuer which securities are Similar Securities to those being registered, and
which holder is a director or executive officer of the Issuer, an agreement not to effect
any public sale or distribution of such securities (including any sale under Rule 144)
during any period referred to in this Section 2.3(b), except as part of any such
registration if permitted. Without limiting the foregoing (but subject to Section 2.6), if
after the date hereof the Issuer grants any Person (other than a holder of Registrable
Securities) any rights to demand or participate in a registration, the Issuer agrees that it
shall include in such Person’s agreement a covenant as contemplated by the previous
sentence.
2.4. Registration Procedures.
(a) In connection with the Issuer’s registration obligations in this Agreement, the Issuer
will, subject to the limitations set forth herein, use its best efforts to effect any such
registration so as to permit the sale of the applicable Registrable Securities in accordance with
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the intended method or methods of distribution thereof as expeditiously as reasonably possible, and
in connection therewith the Issuer will:
(i) before filing a Registration Statement or Prospectus, or any amendments or
supplements thereto and in connection therewith, furnish to the managing underwriter or
underwriters, if any, and to one representative of each holder (and its Affiliates) which
has requested that Registrable Securities be covered by such Registration Statement, copies
of all documents prepared to be filed, which documents will be subject to the review of such
underwriters and such holders and their respective counsel and not file any Registration
Statement or Prospectus or amendments or supplements thereto to which the holders of a
majority of the Registrable Securities covered by the same or the underwriter or
underwriters, if any, shall reasonably object;
(ii) prepare and file with the SEC such amendments or supplements to the applicable
Registration Statement or Prospectus as may be (A) reasonably requested by any selling
holder (to the extent such request relates to information relating to such holder), or (B)
necessary to keep such registration effective for the period of time required by this
Agreement;
(iii) notify the selling holders of Registrable Securities and the managing underwriter
or underwriters, if any, and (if requested) confirm such advice in writing, as expeditiously
as reasonably possible after notice thereof is received by the Issuer (A) when the
applicable Registration Statement or any amendment thereto has been filed or becomes
effective and when the applicable Prospectus or any amendment or supplement thereto has been
filed, (B) of any written or material oral comments by the SEC or any request by the SEC or
any other federal or state governmental authority for amendments or supplements to such
Registration Statement or Prospectus or for additional information, (C) of the issuance by
the SEC of any stop order suspending the effectiveness of such Registration Statement or any
order preventing or suspending the use of any preliminary or final Prospectus or the
initiation or threat of any proceedings for such purposes and (D) of the receipt by the
Issuer of any notification with respect to
the suspension of the qualification of the Registrable Securities for offering or sale
in any jurisdiction or the initiation or threat of any proceeding for such purpose;
(iv) promptly notify each selling holder of Registrable Securities and the managing
underwriter or underwriters, if any, when the Issuer becomes aware of the happening of any
event as a result of which the applicable Registration Statement or Prospectus (as then in
effect) contains any untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein (in the case of the Prospectus and any preliminary
Prospectus, in light of the circumstances under which they were made) not misleading or, if
for any other reason it shall be necessary to amend or supplement such Registration
Statement or Prospectus in order to comply with the Securities Act and, in either case as
promptly as reasonably practicable thereafter, prepare and file with the SEC an amendment or
supplement to such Registration Statement or Prospectus which will correct such statement or
omission or effect such compliance;
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(v) use its best efforts to prevent or obtain at the earliest possible moment the
withdrawal of any stop order with respect to the applicable Registration Statement or other
order suspending the use of any preliminary or final Prospectus;
(vi) promptly incorporate in a Prospectus supplement or post-effective amendment to the
applicable Registration Statement such information as the managing underwriter or
underwriters, if any, or the holders of a majority of the Registrable Securities being sold
agree should be included therein relating to the plan of distribution with respect to such
Registrable Securities; and make all required filings of such Prospectus supplement or
post-effective amendment as expeditiously as reasonably possible after being notified of the
matters to be incorporated in such Prospectus supplement or post-effective amendment;
(vii) furnish to each selling holder of Registrable Securities, its counsel and each
managing underwriter, if any, without charge, as many conformed copies as such holder or
managing underwriter may reasonably request of the applicable Registration Statement and
each amendment thereto;
(viii) deliver to each selling holder of Registrable Securities and each managing
underwriter, if any, without charge, as many copies of the applicable Prospectus (including
each preliminary Prospectus) as such holder or managing underwriter may reasonably request
(it being understood that the Issuer consents to the use of the Prospectus by each of the
selling holders of Registrable Securities and the underwriter or underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by the
Prospectus) and such other documents as such selling holder or managing underwriter may
reasonably request in order to facilitate the disposition of the Registrable Securities by
such holder or underwriter;
(ix) on or prior to the date on which the applicable Registration Statement is declared
effective, use its reasonable best efforts to register or qualify such Registrable
Securities for offer and sale under the securities or “Blue Sky” laws of each state and
other jurisdiction of the United States, as any such selling holder or underwriter,
if any, or their respective counsel reasonably requests in writing, and do any and all
other acts or things reasonably necessary or advisable to keep such registration or
qualification in effect so as to permit the commencement and continuance of sales and
dealings in such jurisdictions for as long as may be necessary to complete the distribution
of the Registrable Securities covered by the Registration Statement; provided, that
the Issuer will not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action which would subject it to taxation
or general service of process in any such jurisdiction where it is not then so subject;
(x) cooperate with the selling holders of Registrable Securities and the managing
underwriter, underwriters or agent, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not bearing any
restrictive legends;
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(xi) use its best efforts to cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such Registrable
Securities;
(xii) not later than the effective date of the applicable Registration Statement,
provide a CUSIP number for all Registrable Securities and provide the applicable transfer
agent with printed certificates for the Registrable Securities which certificates shall be
in a form eligible for deposit with The Depository Trust Company;
(xiii) in the case of an Underwritten Offering (including a Shelf Underwritten
Offering), obtain for delivery to the underwriter or underwriters an opinion or opinions
from counsel for the Issuer dated the date of the closing under the underwriting agreement,
in customary form, scope and substance, which counsel and opinions shall be reasonably
satisfactory to a majority of such holders and underwriter or underwriters, if any, and
their respective counsel; provided, that it is acknowledged and agreed that Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation shall be deemed to be satisfactory for
such purposes;
(xiv) in the case of an Underwritten Offering (including a Shelf Underwritten
Offering), obtain for delivery to the Issuer and the underwriter or underwriters, with
copies to the holders of Registrable Securities included in such registration, a cold
comfort letter from the Issuer’s independent certified public accountants in customary form
and covering such matters of the type customarily covered by cold comfort letters as the
managing underwriter or underwriters reasonably request, dated the date of execution of the
underwriting agreement and brought down to the closing under the underwriting agreement;
(xv) cooperate with each selling holder of Registrable Securities and each underwriter
or agent, if any, participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the NASD;
(xvi) use its best efforts to comply with all applicable rules and regulations of the
SEC and make generally available to its security holders, as expeditiously as reasonably
possible after the effective date of the applicable Registration Statement, but not later
than 60 days after the date of the most recent fiscal quarter, an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(xvii) provide and cause to be maintained a transfer agent and registrar for all
Registrable Securities covered by the applicable Registration Statement from and after a
date not later than the effective date of such Registration Statement;
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(xviii) cause all Registrable Securities of a class covered by the applicable
Registration Statement to be listed on each securities exchange and inter-dealer quotation
system on which any of the Issuer’s securities of such class are then listed or quoted;
(xix) make available upon reasonable notice at reasonable times and for reasonable
periods for inspection by one representative appointed by the holders of a majority of the
Registrable Securities covered by the applicable Registration Statement, by any managing
underwriter or underwriters participating in any disposition to be effected pursuant to such
Registration Statement, and by any attorney, accountant or other agent retained by such
sellers or any such managing underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of the Issuer, and cause all of the Issuer’s
officers, directors and employees and the independent public accountants who have certified
its financial statements to make themselves available to discuss the business of the Issuer
and to supply all information reasonably requested by any such sellers, underwriter or agent
thereof in connection with such Registration Statement as shall be necessary to enable them
to exercise their due diligence responsibility (subject to the entry by each party referred
to in this clause (xix) into customary confidentiality agreements in a form reasonably
acceptable to the Issuer);
(xx) in the case of an Underwritten Offering (including any Shelf Underwritten
Offering, but excluding a Shelf Underwritten Offering in which the Aggregate Offering Price
is less than $50 million), cause the senior executive officers of the Issuer to participate
in the customary “road show” presentations that may be reasonably requested by the managing
underwriter in any such Underwritten Offering and otherwise to facilitate, cooperate with,
and participate in each proposed offering contemplated herein and customary selling efforts
related thereto;
(xxi) upon the request of any holder, promptly amend any Shelf Registration Statement
or take such other action as may be necessary to de-register, remove or withdraw all or a
portion of the holder’s shares of Common Stock from a Shelf Registration Statement, as
requested by such holder; and
(xxii) use its reasonable best efforts to take all other steps necessary to effect the
registration of the Registrable Securities contemplated hereby.
(b) The Issuer may require each selling holder of Registrable Securities as to which any
registration is being effected to furnish to the Issuer such information regarding the distribution
of such Registrable Securities and such other customary information relating to such holder and its
ownership of the applicable Registrable Securities as the Issuer may from time to time reasonably
request and as shall be reasonably required in connection with any Registration Statement. Each
holder of Registrable Securities agrees to furnish such information to the Issuer and to reasonably
cooperate with the Issuer as necessary to enable the Issuer to comply with the provisions of this
Agreement. The Issuer shall have the right to exclude any holder that does not comply with the
preceding sentence from the applicable registration.
(c) Each holder of Registrable Securities agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from the Issuer of the happening of any
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event of the kind
described in Section 2.4(a)(iv), such holder will use its best efforts to discontinue disposition
of its Registrable Securities pursuant to such Registration Statement until such holder’s receipt
of the copies of the supplemented or amended Prospectus contemplated by Section 2.4(a)(iv), or
until such holder is advised by the Issuer that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated by reference in the
Prospectus. In the event that the Issuer shall give any such notice in respect of a Demand
Registration, the period during which the applicable Registration Statement is required to be
maintained effective shall be extended by the number of days during the period from and including
the date of the giving of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement either receives the copies of the supplemented or
amended Prospectus contemplated by Section 2.4(a)(iv) or is advised in writing by the Issuer that
the use of the Prospectus may be resumed.
2.5. Underwritten Offerings.
(a) Underwriting Agreements. If requested by the underwriters for any Demand
Registration that is an Underwritten Offering (including a Shelf Underwritten Offering), the Issuer
and the holders of Registrable Securities to be included therein shall enter into an underwriting
agreement with such underwriters, to contain such terms and conditions as are generally prevailing
in agreements of that type, including indemnities no more burdensome to the indemnifying party and
no less favorable to the recipient thereof than those provided in Section 2.8. The holders of any
Registrable Securities to be included pursuant to Section 2.2(a) in any Incidental Registration
that is an Underwritten Offering (excluding any Demand Registration or Shelf Underwritten Offering)
shall enter into such an underwriting agreement at the request of the Issuer. No holder shall be
required in any such underwriting agreement to make any representations or warranties to or
agreements with the Issuer or the underwriters other than customary representations, warranties or
agreements regarding such holders’ title to Registrable Securities and any written information
provided by the holder to the Issuer expressly for inclusion in the related registration statement.
(b) Price and Underwriting Discounts. In the case of a Demand Registration that is an
Underwritten Offering (including a Shelf Underwritten Offering), the price, underwriting discount
and other financial terms for the Registrable Securities shall be determined by the
holders of a majority of the Registrable Securities included in the Underwritten Offering. In
the case of any Incidental Registration that is an Underwritten Offering (excluding any Demand
Registration or Shelf Underwritten Offering), such price, discount and other terms shall be
determined by the Issuer, subject to the right of the holders to withdraw their request to
participate in the registration pursuant to Section 2.2(a)(iii) after being advised of such price,
discount and other terms.
(c) Participation in Underwritten Offerings. No Person may participate in an
Underwritten Offering (including a Shelf Underwritten Offering) unless such Person (i) agrees to
sell such Person’s securities on the basis provided in any underwriting arrangements approved by
officers of such Persons authorized to approve such arrangements, (ii) executes and delivers the
underwriting agreement and all other documents required under the terms of such underwriting
arrangements and (iii) completes, executes and delivers all questionnaires, powers of attorney,
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custody agreements, indemnities and opinions reasonably requested by the Issuer and customary for
secondary offerings.
2.6. No Inconsistent Agreements; Additional Rights. The Issuer will not enter into,
and is not currently a party to, any agreement which is inconsistent with the rights granted to the
holders of Registrable Securities by this Agreement. If the Issuer enters into any agreement after
the date hereof granting any person registration rights with respect to any security of the Issuer
which agreement contains any material provisions more favorable to such person than those set forth
in this Agreement, the Issuer will notify the holders and will agree to such amendments to this
Agreement as may be necessary to provide these rights to the holders.
2.7. Registration Expenses. (a) The Issuer shall pay all of the expenses incurred in
connection with its compliance with Section 2 hereof, including (i) all registration and filing
fees, and any other fees and expenses associated with filings required to be made with the SEC or
the NASD, (ii) all fees and expenses of compliance with state securities or “Blue Sky” laws,
including all reasonable fees and disbursements of one counsel in connection with any survey of
state securities or “Blue Sky” laws and the preparation of any memorandum thereon, (iii) all
printing, duplicating, word processing, messenger, telephone, facsimile and delivery expenses
related to the preparation by the Issuer of any Registration Statement or Prospectus, agreements
with underwriters, and any other ancillary agreements, certificates or documents arising out of or
related to the foregoing (including expenses of printing certificates for the Registrable
Securities in a form eligible for deposit with The Depository Trust Company and of printing
prospectuses), (iv) all fees and disbursements of counsel for the Issuer and of all independent
certified public accountants of the Issuer, and (v) all fees and expenses incurred in connection
with the listing of the Registrable Securities on any securities exchange or the quotation of the
Registrable Securities on any inter-dealer quotation system. In addition, in all cases the Issuer
shall pay its internal expenses (including all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any audit and the fees and expenses of any
Person, including special experts, retained by the Issuer. In addition, the Issuer shall pay all
reasonable fees and
disbursements of one law firm or other counsel selected by the holders of a majority of the
Registrable Securities being registered.
(a) The Issuer shall not be required to pay any other costs or expenses in the course of an
offering of Registrable Securities pursuant to this Agreement, including underwriting discounts and
commissions and transfer taxes attributable to the sale of Registrable Securities and the fees and
expenses of counsel to the underwriters other than pursuant to Section 2.7(a).
2.8. Indemnification.
(a) Indemnification by the Issuer. The Issuer agrees to indemnify and hold harmless,
to the full extent permitted by law, each selling holder of Registrable Securities and their
respective directors, officers and partners, and each Person who controls (within the meaning of
the Securities Act or the Exchange Act) such Persons (each, a “Holder Indemnified Party”)
from and against any and all losses, claims, damages, liabilities (or actions or proceedings in
respect thereof, whether or not such Holder Indemnified Party is a party thereto) and expenses
(including reasonable costs of investigation and legal expenses), joint or several
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(each, a
“Loss” and collectively “Losses”), arising out of or based upon (i) any untrue or
alleged untrue statement of a material fact contained in any Registration Statement under which
such Registrable Securities were registered under the Securities Act (including any final,
preliminary or summary Prospectus contained therein or any amendment thereof or supplement thereto
or any documents incorporated by reference therein) or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein (in the case of a Prospectus or preliminary Prospectus, in light of the circumstances under
which they were made) not misleading; provided, however, that the Issuer shall not
be liable to indemnify a Holder Indemnified Party pursuant to clauses (i) or (ii) above to the
extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any such Registration Statement in reliance upon
and in conformity with written information furnished to the Issuer by such holder expressly for use
in the preparation thereof or arises out of or is based upon such holder’s failure to deliver a
copy of the Prospectus or any amendments or supplements thereto to a purchaser (if so required)
after the Issuer has furnished such holder with a sufficient number of copies of the same. This
indemnity shall be in addition to any liability Issuer may otherwise have. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on behalf of such holder
or any Holder Indemnified Party and shall survive the transfer of such securities by such holder.
The Issuer will also indemnify, if the offering is an Underwritten Offering (including a Shelf
Underwritten Offering) and if requested, underwriters participating in any distribution pursuant to
this Agreement, their officers, directors and partners, and each Person who controls such Persons
(within the meaning of the Securities Act and the Exchange Act) to the same extent as provided
above with respect to the indemnification of each holder.
(b) Indemnification by the Holders. Each selling holder of Registrable Securities
agrees (severally and not jointly) to indemnify and hold harmless, to the full extent permitted by
law, the Issuer, its directors, officers and partners, and each Person who controls the Issuer
(within the meaning of the Securities Act and the Exchange Act), and each other selling holder of
Registrable Securities, their respective officers, directors and partners, and each Person who
controls (within the meaning of the Securities Act or the Exchange Act) such other selling holder
(each, a “Company/Seller Indemnified Party” and, together with the Holder Indemnified
Parties, the “Indemnified Parties”), from and against any Losses resulting from any untrue
or allegedly untrue statement of a material fact or any omission or alleged omission of a material
fact required to be stated in the Registration Statement under which such Registrable Securities
were registered under the Securities Act (including any final, preliminary or summary Prospectus
contained therein or any amendment thereof or supplement thereto or any documents incorporated by
reference therein), or necessary to make the statements therein (in the case of a Prospectus or
preliminary Prospectus, in light of the circumstances under which they were made) not misleading,
to the extent, but only to the extent, that such untrue statement or omission had been contained in
any information furnished in writing by such selling holder to the Issuer expressly for inclusion
in such Registration Statement. This indemnity shall be in addition to any liability such holder
may otherwise have. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Issuer or any Company/Seller Indemnified Party. In no
event shall the liability of any selling holder of Registrable Securities hereunder be greater in
amount than the dollar amount of the net proceeds received by such holder from the sale of the
Registrable Securities giving rise to such indemnification obligation. Each holder also shall
indemnify any underwriters of the Registrable Securities, their officers,
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directors and partners,
and each Person who controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the Issuer.
(c) Indemnification by Securities Industry Professionals. The Issuer shall be
entitled to receive indemnities from, if applicable and if requested, underwriters, participating
in the distribution, to the same extent as provided in Section 2.8(b) above (with appropriate
modification) with respect to information so furnished in writing by such Persons specifically for
inclusion in any Prospectus or Registration Statement.
(d) Conduct of Indemnification Proceedings. Any Person entitled to indemnification
hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided, that any delay or failure to so notify the
indemnifying party shall relieve the indemnifying party of its obligations hereunder only to the
extent, if at all, that it is actually and materially prejudiced by reason of such delay or
failure) and (ii) permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the Indemnified Party; provided, that any Indemnified Party
shall have the right to select and employ separate counsel and to participate in the defense of
such claim, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Party unless (A) the indemnifying party has agreed in writing to pay such fees or expenses, (B) the
indemnifying party shall have failed to assume the defense of such claim within a reasonable time
after having received notice of such claim from the Indemnified Party and to employ counsel
reasonably satisfactory to such Indemnified Party, (C) in the reasonable judgment of any such
Indemnified Party, based upon advice of its counsel, a conflict of interest exists or may
potentially exist between such Indemnified Party and the indemnifying party with respect to such
claims or (D) the Indemnified Party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other Indemnified Parties that are different
from or in addition to those available to the indemnifying party (in the case of (B), (C) and (D),
if such Indemnified Party notifies the indemnifying party in writing that such Indemnified Party
elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party
shall not have the right to assume the defense of such claim on behalf of such Indemnified Party).
If such defense is not assumed by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its consent, but such consent may not be
unreasonably withheld; provided, that an indemnifying party may withhold its consent to any
settlement involving the imposition of equitable remedies or involving the imposition of any
material obligations on such indemnifying party other than financial obligations for which such
Indemnified Party will be indemnified hereunder. No indemnifying party shall consent to entry of
any judgment or enter into any settlement which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to each Indemnified Party of an unconditional release from
all liability in respect to such claim or litigation. The indemnifying party or parties shall not,
in connection with any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate firm (together with
one firm of local counsel) at any one time for all Indemnified Parties unless (x) the employment of
more than one counsel has been authorized in writing by the indemnifying party or parties, (y) a
conflict or potential conflict exists or may exist (based on advice of counsel to an Indemnified
Party) between such Indemnified Party and one or more other Indemnified Parties or (z) an
Indemnified Party has reasonably concluded (based on advice of counsel) that
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there may be legal
defenses available to it that are different from or in addition to those available to one or more
Indemnified Parties, in each of which cases the indemnifying party shall be obligated to pay the
reasonable fees and expenses of such additional counsel or counsels.
(e) Contribution. If for any reason the indemnification provided for in the paragraphs
(a) and (b) of this Section 2.8 is unavailable to an Indemnified Party or insufficient to hold it
harmless as contemplated by paragraphs (a) and (b) of this Section 2.8, then the indemnifying party
shall contribute to the amount paid or payable by the Indemnified Party as a result of such Loss in
such proportion as is appropriate to reflect the relative fault of the indemnifying party on the
one hand and the Indemnified Party on the other. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
indemnifying party or the Indemnified Party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission.
Notwithstanding anything in this Section 2.8(e) to the contrary, no indemnifying party (other than
the Issuer) shall be required pursuant to this Section 2.8(e) to contribute any amount in excess of
the amount by which the net proceeds received by such indemnifying party from the sale of
Registrable Securities in the offering to which the Losses of the Indemnified Parties relate
exceeds the amount of any damages which such indemnifying party has otherwise been required to pay
by reason of such untrue statement or omission. The parties to this Agreement agree that it would
not be just and equitable if contribution pursuant to this Section 2.8(e) were determined by pro
rata allocation or by any other method of allocation that does not take account of the equitable
considerations referred to in this Section 2.8(e). No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
2.9. Rules 144 and 144A. The Issuer covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder (or, if the Issuer is not required to file such reports, it will,
upon the request of any holder of Registrable Securities, make publicly available other information
so long as necessary to permit sales pursuant to Rule 144 or 144A under the Securities Act), and it
will take such further action as any holder of Registrable Securities may reasonably request, all
to the extent required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the exemptions provided by
(i) Rule 144 or 144A or Regulation S under the Securities Act, as such Rules may be amended from
time to time, or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the request
of any holder of Registrable Securities, the Issuer will deliver to such holder a written statement
as to whether it has complied with such requirements and, if not, the specifics thereof.
SECTION 3. MISCELLANEOUS
3.1. Effective Time.
This Agreement shall not be effective (and the parties shall not be bound by any obligations
hereunder) until the Closing of the Share Purchase on the Closing Date. In the event
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that the
Purchase Agreement is terminated, this Agreement shall automatically terminate without any action
on the part of any party to this Agreement, and the Original Registration Rights Agreement shall
remain in effect as among the parties thereto.
3.2. Injunctive Relief. It is hereby agreed and acknowledged that it will be
impossible to measure in money the damages that would be suffered if the parties fail to comply
with any of the obligations herein imposed on them and that in the event of any such failure, an
aggrieved Person will be irreparably damaged and will not have an adequate remedy at law. Any such
Person shall, therefore, be entitled (in addition to any other remedy to which it may be entitled
in law or in equity) to injunctive relief, including specific performance, to enforce such
obligations, without the requirement that a bond be posted and, if any action should be brought in
equity to enforce any of the provisions of this Agreement, none of the parties to this Agreement
shall raise the defense that there is an adequate remedy at law.
3.3. Notices. All notices, other communications or documents provided for or permitted
to be given or delivered hereunder, shall be made in writing and shall be given either personally
by hand-delivery, by facsimile transmission, or by air courier guaranteeing overnight delivery:
(a) if to the Issuer, to it at:
Ameritrade Holding Corporation 0000 Xxxxx 000xx Xxxxxx Xxxxx, Xxxxxxxx 00000 Attention: Chief Executive Officer Fax No.: (000) 000-0000 |
||||||
with copies to: | ||||||
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx 000 Xxxx Xxxx Xxxx Xxxx Xxxx, Xxxxxxxxxx 00000 Attention: Xxxxx Xxxxxxx Fax: (000) 000-0000 |
(b) if to the Xxxxxxxx Stockholders, at the addresses set forth in Exhibit A, with copies to:
Mayer, Brown, Xxxx & Maw LLP 00 Xxxxx Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 Attention: Xxxxxx X. Xxxxxxx Fax No. (000) 000-0000 |
(c) if to TD, to it at:
The Toronto-Dominion Bank TD Tower, 00 Xxxxxxxxxx Xxxxxx West |
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Xxxxxxx, Xxxxxxx X0X 0X0 Attention: General Counsel Fax No.: (416) 38-1943 |
||||||
with a copy to: | ||||||
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Attention: Xxx Xxxxxxxx Fax No.: (000) 000-0000 |
(d) if to any other Stockholder, at its respective address set forth in Exhibit A.
Each holder, by written notice given to the Issuer in accordance with this Section 3.3 may
change the address to which notices, other communications or documents are to be sent to such
holder. All notices, other communications or documents shall be deemed to have been duly given and
delivered: (i) at the time delivered by hand, if personally delivered; (ii) when receipt is
acknowledged in writing by the addressee, if by facsimile transmission; and (iii) on the first
business day with respect to which a reputable air courier guarantees delivery; provided,
that notices of a change of address shall be effective only upon receipt.
3.4. Successors, Assigns and Transferees. (a) The registration rights of any holder
under this Agreement with respect to any Registrable Securities may be transferred and assigned;
provided, that no such assignment shall be binding upon or obligate the Issuer to any such
assignee unless and until the Issuer shall have received notice of such assignment as herein
provided and a written agreement of the assignee to be bound by the provisions of this Agreement.
Any transfer or assignment made other than as provided in the first sentence of this Section 3.4
shall be null and void.
(b) This Agreement shall be binding upon and shall inure to the benefit of the parties to this
Agreement, and their respective successors and permitted assigns.
3.5. Governing Law; Service of Process; Consent to Jurisdiction. (a) THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN THE STATE.
(b) To the fullest extent permitted by applicable law, each party to this Agreement (i) agrees
that any claim, action or proceeding by such party seeking any relief whatsoever arising out of, or
in connection with, this Agreement or the transactions contemplated hereby shall be brought only in
the United States District Court for the Southern District of New York and in any New York State
court located in the Borough of Manhattan and not in any other State or Federal court in the United
States of America or any court in any other country, (ii) agrees to submit to the exclusive
jurisdiction of such courts located in the State of New York for purposes of all legal proceedings
arising out of, or in connection with, this Agreement or the transactions contemplated hereby and
(iii) irrevocably waives any objection which it may now or hereafter
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have to the laying of the
venue of any such proceeding brought in such a court and any claim that any such proceeding brought
in such a court has been brought in an inconvenient forum.
3.6. Headings. The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or interpretation of this
Agreement.
3.7. Severability. Whenever possible, each provision or portion of any provision of
this Agreement will be interpreted in such manner as to be effective and valid under applicable law
but if any provision or portion of any provision of this Agreement is held to be invalid, illegal
or unenforceable in any respect under any applicable law in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or portion of any provision in
such jurisdiction, and this agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision or portion of any provision had never been
contained therein.
3.8.
Amendment; Waiver.
(a) This Agreement may not be amended or modified and waivers and consents to departures from
the provisions hereof (each, an “Amendment”) may not be given, except by an instrument or
instruments in writing making specific reference to this Agreement and signed by the Issuer and the
holders of Registrable Securities representing at least 67% of the aggregate Registrable Securities
held by the Stockholders; provided, that (i) any Amendment which materially and
disproportionately benefits either the Original Stockholders or TD requires the consent of holders
of Registrable Securities representing at least 67% of the aggregate number of the Registrable
Securities held by the group not receiving such benefits, (ii) any Amendment which materially and
adversely affects the Original Stockholders or TD requires the consent of holders of Registrable
Securities representing at least 67% of the Registrable Securities held by the group being
adversely affected, and (iii) any Amendment which materially, disproportionately and adversely
effects any holder shall require the consent of such disproportionately affected holder. Each
holder of any Registrable Securities at the time or thereafter outstanding shall be bound by any
Amendment authorized by this Section 3.8(a). For purposes of this Section 3.8(a), determinations of
an Amendment’s effect upon any holder, or whether the Amendment provides a disproportionate
benefit, shall be based on such holder’s contractual rights as of the time of immediately preceding
such Amendment.
(b) The waiver by any party to this Agreement of a breach of any provision of this Agreement
shall not operate or be construed as a further or continuing waiver of such breach or as a waiver
of any other or subsequent breach. Except as otherwise expressly provided herein, no failure on the
part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder, or
otherwise available in respect hereof at law or in equity, shall operate as a waiver thereof, nor
shall any single or partial exercise of such right, power or remedy by such party preclude any
other or further exercise thereof or the exercise of any other right, power or remedy.
3.9. Withdrawal from Agreement. At any time, any holder may elect to withdraw from
this Agreement and no longer be subject to the obligations of this Agreement or have rights
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(including Demand Rights) under this Agreement from that date forward; provided, that a
holder withdrawing from this Agreement shall nonetheless (i) be obligated under Section 2.3(a) with
respect to any Pending Underwritten Offering to the same extent that such holder would have been
obligated if the holder had not withdrawn and (ii) be entitled to participate under Section 2.1 or
2.2 in any Pending Underwritten Offering to the same extent that such holder would have been
entitled to if the holder had not withdrawn; and provided, further, that no
withdrawal from this Agreement shall terminate a holder’s rights or obligations under Section 2.8
above with respect to any prior registration or Pending Underwritten Offering.
3.10. Counterparts. This Agreement may be executed in any number of separate
counterparts and by the parties to this Agreement in separate counterparts each of which when so
executed shall be deemed to be an original and all of which together shall constitute one and the
same agreement.
[Remainder of Page is Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date
first written above.
AMERITRADE HOLDING CORPORATION | ||||||
By: | /s/ Xxxxx Xxxxxxxxxx | |||||
Name: Xxxxx Xxxxxxxxxx | ||||||
Title: Executive Vice President, Corporate Development | ||||||
THE TORONTO-DOMINION BANK | ||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Chief Executive Officer |
[Amended and Restated Registration Rights Agreement Signature Page]
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XXXXXXX | S STOCKHOLDERS: | |||||
/s/ J. Xxx Xxxxxxxx | ||||||
J. Xxx Xxxxxxxx | ||||||
/s/ Xxxxxxx X. Xxxxxxxx | ||||||
Xxxxxxx X. Xxxxxxxx | ||||||
XXXXXXX X. XXXXXXXX 1994 DYNASTY TRUST | ||||||
By: | /s/ J. Xxx Xxxxxxxx | |||||
J. Xxx Xxxxxxxx, Trustee | ||||||
J. XXX XXXXXXXX 1994 DYNASTY TRUST | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
Xxxxxxx X. Xxxxxxxx, Trustee | ||||||
XXXXXXXX GRANDCHILDREN TRUST | ||||||
By: | /s/ Xxxxx X. XxXxxxx | |||||
First National Bank of Omaha, Trustee Name: Xxxxx X. XxXxxxx |
||||||
Title: Senior Vice President |
[Amended and Restated Registration Rights Agreement Signature Page]
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DOH STOCKHOLDERS: | ||||||
SILVER LAKE PARTNERS, L.P. | ||||||
By: | Silver Lake Technology Associates, L.L.C., its General Partner |
|||||
By: | /s/ Xxxx X. Xxxxxx | |||||
Name: Xxxx X. Xxxxxx | ||||||
Title: Managing Director and Chief Operating Officer | ||||||
SILVER LAKE INVESTORS, L.P. | ||||||
By: | Silver Lake Technology Associates, L.L.C., its General Partner |
|||||
By: | /s/ Xxxx X. Xxxxxx | |||||
Name: Xxxx X. Xxxxxx | ||||||
Title: Managing Director and Chief Operating Officer | ||||||
SILVER LAKE TECHNOLOGY INVESTORS, L.L.C. | ||||||
By: | Silver Lake Technology Management, L.L.C., its Managing Member |
|||||
By: | /s/ Xxxx X. Xxxxxx | |||||
Name: Xxxx X. Xxxxxx | ||||||
Title: Managing Director and Chief Operating Officer |
[Amended and Restated Registration Rights Agreement Signature Page]
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TA/ADVENT VIII, L.P. | ||||||||||
By: | TA Associates VIII, LLC, | |||||||||
its General Partner | ||||||||||
By: | TA Associates, Inc., | |||||||||
its Manager | ||||||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||||||
Name: Xxxxxx X. Xxxxx | ||||||||||
Title: Chief Financial Officer | ||||||||||
TA EXECUTIVES FUND, LLC | ||||||||||
By: | TA Associates, Inc., | |||||||||
its Manager | ||||||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||||||
Name: | Xxxxxx X. Xxxxx | |||||||||
Title: | Chief Financial Officer | |||||||||
TA INVESTORS, LLC | ||||||||||
By: | TA Associates, Inc., | |||||||||
its Manager | ||||||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||||||
Name: | Xxxxxx X. Xxxxx | |||||||||
Title: | Chief Financial Officer | |||||||||
TA ATLANTIC & PACIFIC IV, L.P. | ||||||||||
By: | TA Associates AP IV Partners, L.P., | |||||||||
its General Partner | ||||||||||
By: | TA Associates, Inc., | |||||||||
its Manager | ||||||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||||||
Name: Xxxxxx X. Xxxxx | ||||||||||
Title: Chief Financial Officer |
[Amended and Restated Registration Rights Agreement Signature Page]
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TA IX, L.P. | ||||||||||||
By: | TA Associates IX, LLC, | |||||||||||
its General Partner | ||||||||||||
By: | TA Associates, Inc., | |||||||||||
its Manager | ||||||||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||||||||
Name: Xxxxxx X. Xxxxx | ||||||||||||
Title: Chief Financial Officer | ||||||||||||
ADVENT ATLANTIC & PACIFIC III, L.P. | ||||||||||||
By: | TA Associates AAP III Partners, L.P., | |||||||||||
its General Partner | ||||||||||||
By: | TA Associates, Inc., its General Partner | |||||||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||||||||
Name: Xxxxxx X. Xxxxx | ||||||||||||
Title: Chief Financial Officer |
[Amended and Restated Registration Rights Agreement Signature Page]
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EXHIBIT A
LIST OF STOCKHOLDERS
XXXXXXXX STOCKHOLDERS:
Name | Address for Notices | |
J. Xxx Xxxxxxxx Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx 1994 Dynasty Trust J. Xxx Xxxxxxxx 1994 Dynasty Trust |
c/o Ameritrade Holding Corporation 0000 Xxxxx 000xx Xxxxxx Xxxxx, XX 00000 Facsimile: (000) 000-0000 Attention: Xxxx X. XxxXxxxxx |
|
Xxxxxxxx Grandchildren Trust |
c/o First National Bank of Omaha First National Center 00xx xxx Xxxxx Xxxxxxx Xxxxx, XX 00000 Facsimile: (000) 000-0000 |
DOH STOCKHOLDERS:
Name | Address for Notices | |
Silver Lake Partners, L.P. Silver Lake Investors, L.P. Silver Lake Technology Investors, L.L.C. |
0000 Xxxx Xxxx Xxxx, Xxxxxxxx X, Xxxxx 000 Xxxxx Xxxx, XX 00000 Fax: 000-000-0000 With copies to: Xxxxxx, Xxxx & Xxxxxxxx LLP 000 Xxxx Xxxxxx Xxx Xxxx, XX 00000 Fax: 000-000-0000 Attn: Xxxxxx X. Xxxxxxxx, Esq. |
|
TA/Atlantic & Pacific IV, L.P. TA/Advent VIII, L.P. TA Investors, LLC TA Executives Fund, LLC TA IX, L.P. Advent Atlantic & Pacific III, L.P. |
c/o TA Associates, Inc. 000 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, XX 00000 Fax: 000-000-0000 With copies to: Xxxxxxx, Xxxxxxx & Xxxx XXX Xxxxxx, XX 00000-0000 Fax: 000-000-0000 Attn: Xxxxxxx X. Xxxxxx, P.C. |