Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
by and among
AMERITRADE HOLDING CORPORATION
(Arrow Stock Holding Corporation)
and
THE STOCKHOLDERS DESCRIBED HEREIN
Dated as of July __, 2002
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.................................................................................2
1.1. Defined Terms...............................................................................2
1.2. General Interpretive Principles.............................................................6
SECTION 2. REGISTRATION RIGHTS.........................................................................6
2.1. Demand Registrations........................................................................6
2.2. Incidental Registrations...................................................................13
2.3. Restricted Periods; Future Agreements......................................................19
2.4. Registration Procedures....................................................................19
2.5. Underwritten Offerings.....................................................................24
2.6. No Inconsistent Agreements; Additional Rights..............................................24
2.7. Registration Expenses......................................................................25
2.8. Indemnification............................................................................25
2.9. Rules 144 and 144A.........................................................................28
SECTION 3. MISCELLANEOUS..............................................................................28
3.1. Effective Time.............................................................................28
3.2. Injunctive Relief..........................................................................28
3.3. Notices....................................................................................29
3.4. Successors, Assigns and Transferees........................................................29
3.5. Governing Law; Service of Process; Consent to Jurisdiction.................................30
3.6. Headings...................................................................................30
3.7. Severability...............................................................................30
3.8. Amendment; Waiver..........................................................................30
3.9. Withdrawal from Agreement..................................................................31
3.10. Counterparts...............................................................................31
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
entered into as of this day of July, 2002 by and among Arrow Stock Holding
Corporation, a Delaware corporation (the "Issuer"), the persons listed as
Xxxxxxxx Group I Stockholders on Exhibit A (together with their respective
transferees, heirs, personal representatives, successors and assigns, the
"Xxxxxxxx Group I Stockholders"), the persons listed as DOH Group I Stockholders
on Exhibit A (together with their respective transferees, heirs, personal
representatives, successors and assigns, the "DOH Group I Stockholders", and
together with the Xxxxxxxx Group I Stockholders, the "Group I Stockholders") and
the persons listed as Group II Stockholders on Exhibit A (together with their
respective transferees, heirs, personal representatives, successors and assigns,
the "Group II Stockholders", and together with the Group I Stockholders, the
"Stockholders").
RECITALS
WHEREAS, the Issuer, Ameritrade Holding Corporation, a
Delaware corporation ("Ameritrade"), Datek Online Holdings Corp., a Delaware
corporation ("Datek"), Arrow Merger Corp. and Dart Merger Corp. have entered
into that certain Amended and Restated Agreement and Plan of Merger, dated as of
May 16, 2002 (as amended from time to time, the "Merger Agreement"), pursuant to
which, among other things, (i) two subsidiaries of the Issuer will be merged
into Ameritrade and Datek (the "Mergers") so that Ameritrade and Datek will each
become a wholly-owned subsidiary of the Issuer, (ii) the Stockholders will be
issued shares of the Issuer's common stock, par value $.01 per share ("Common
Stock"), and (iii) immediately after the effective time of the later of the two
Mergers (the "Effective Time"), the Issuer will change its name to "Ameritrade
Holding Corporation"; and
WHEREAS, the Issuer and the Stockholders desire to provide for
registration rights with respect to shares of the Issuer's Common Stock to be
issued in connection with the Mergers; and
WHEREAS, Section 7.17 of the Merger Agreement contemplates
that this Agreement will be executed on or prior to the Effective Time.
-1-
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:
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. The Issuer and its subsidiaries
shall not constitute an Affiliate of the Group I Stockholders or the Group II
Stockholders. 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, (x) each of Xxxx
Capital Fund VII, LLC, Xxxx Capital VII Coinvestment Fund, LLC, BCI Datek
Investors LLC, BCIP Associates II, BCIP Associates II-B, BCIP Trust Associates
II, BCIP Trust Associates II-B 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, (y) 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 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
(z) each of
-2-
Advent PGGM Global Limited Partnership, Digital Media & Communications III
Limited Partnership, Digital Media & Communications III-A Limited Partnership,
Digital Media & Communications III-B Limited Partnership, Digital Media &
Communications III-C Limited Partnership, Digital Media & Communications III-D
C.V., Digital Media & Communications III-E, C.V., Global Private Equity III
Limited Partnership, Global Private Equity IV Limited Partnership, Advent
Partners GPE III Limited Partnership, Advent Partners GPE IV Limited
Partnership, Advent Partners (NA) GPE III Limited Partnership, Advent Partners
(NA) GPE IV Limited Partnership, Advent Partners DMC III Limited Partnership,
Advent Partners Limited Partnership, Global GECC III Limited Partnership, First
Union Capital Partners LLC, Guayacan Private Equity Fund Limited Partnership 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.
"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.
"Agreement" has the meaning set forth in the preamble to this
Agreement.
"Common Stock" has the meaning set forth in the recitals to
this Agreement.
"Closing Date" means the date of the closing under the Merger
Agreement.
"Demand Registration" has the meaning set forth in Section
2.1(a).
"Effective Time" has the meaning set forth in the recitals to
this 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 Merger Agreement: (i) the registration
rights agreement dated as of September 6, 2001 by and between Ameritrade and
National Discount Brokers Group, Inc., (ii) the registration rights agreement
dated as of July 21, 2000, among Ameritrade 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 Ameritrade 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.
"Group II Registration Period" means the period ending six
months following the Effective Time.
-3-
"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 Cutback Notice" has the meaning set forth in
Section 2.2(b).
"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.
"Incidental Registration Notice" has the meaning set forth in
Section 2.2(a).
"Indemnified Party" has the meaning set forth in Section
2.8(a). "Indemnified Parties" has a meaning correlative to the foregoing.
"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.
"Issuer" has the meaning set forth in the preamble and shall
include the Issuer's successors by merger, acquisition, reorganization or
otherwise.
"Loss" and "Losses" has the meaning set forth in Section
2.8(a).
"Merger Agreement" has the meaning set forth in the recitals
to this Agreement.
"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.
"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,
-4-
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.
"Qualifying Group II Stockholder" means a Group II Stockholder
which, together with its Affiliates, beneficially owns at least 1.5% of the
Common Stock then outstanding.
"Registrable Securities" means the securities of the Issuer
issued to the Stockholders pursuant to the Merger Agreement, and any securities
that may be issued or distributed or be issuable in respect thereof by way of
stock dividend, stock split or other distribution, merger, consolidation,
exchange offer, recapitalization or reclassification or similar transaction or
exercise or conversion of any of the foregoing; provided, however, that any of
the foregoing 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, (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, or (iii) at any time after the six year
anniversary of the Closing Date, to the extent that they are eligible for resale
without registration by the holder thereof under paragraph (k) of Rule 144 (or
any similar provision 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.
"Request" has the meaning set forth in Section 2.1(d).
"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 Demand" has the meaning set forth in Section 2.1(b).
-5-
"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).
"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" has the meaning set forth in the preamble to
this Agreement.
"Underwriter Cutback Condition" has the meaning set forth in
Section 2.2(b).
"Underwriting Notice" has the meaning set forth in Section
2.1(h)(ii).
"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.
-6-
SECTION 2. REGISTRATION RIGHTS
2.1. DEMAND REGISTRATIONS.
(a) Demand by Stockholders. At any time or from time to time
prior to the ten year anniversary of the Closing Date, on up to a maximum of
eight occasions, the holders 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 Registable 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.
(b) Shelf Registrations. On up to two occasions, the Group I
Stockholders shall have the right (subject to Section 2.1(c)) 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)(iii)) 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) Group I Stockholders.
(A) Subject to the restrictions set forth in
clauses (B), (C), (D), (E), (F) and (G)
below, six of the eight Demand Rights may be
initiated by any of the Group I Stockholders.
The Group I Stockholders will, under the
circumstances set forth in Section
2.1(c)(ii)(D) below, be entitled to initiate
a seventh Demand Right.
(B) The Group I Stockholders may not make a
Request or initiate any of their Demand
Rights (including any Shelf Demands) during
the Group II Registration Period and may not
be a Participating Holder in any registration
pursuant to a Demand Right initiated by any
Group II Stockholders if
-7-
such initiation was commenced during the
Group II Registration Period; provided,
however, that nothing in this clause (B)
shall prevent any Group I Stockholder from
exercising Incidental Registration rights
under the terms and conditions set forth in
Section 2.2.
(C) No Group I Stockholder, together with its
Affiliates, may initiate Demand Rights on
more than two (2) occasions.
(D) On each occasion that a Group I Stockholder
initiates a Demand Right, such Group I
Stockholder and its Affiliates are
immediately thereafter restricted from
initiating additional Demand Rights until
such time as a second Group I Stockholder
(who is not an Affiliate of the first Group I
Stockholder) initiates a Demand Right.
(E) Two of the six Demand Rights allocated to the
Group I Stockholders may be initiated only by
the Xxxxxxxx Group I Stockholders, subject to
the restrictions set forth in this Section
2.1(c)(i).
(F) A Shelf Demand may be initiated on one
occasion only by DOH Group I Stockholders
owning (together with their Affiliates) 51%
of the total Registrable Securities held by
all DOH Group I Stockholders in the
aggregate.
(G) A Shelf Demand may be initiated on one
occasion only by Xxxxxxxx Group I
Stockholders owning (together with their
Affiliates) 51% of the total Registrable
Securities held by all Xxxxxxxx Group I
Stockholders in the aggregate.
(ii) Group II Stockholders.
(A) Two of the eight Demand Rights may be
initiated only by Finanzas B.V. or by any
person identified as an Advent Stockholder on
Exhibit A, subject to the restrictions set
forth in clauses (B), (C) and (D) below.
(B) During the Group II Registration Period, the
Group II Stockholders may only initiate one
of their Demand Rights.
(C) The second Demand Right of the Group II
Stockholders may not be initiated until the
Group I Stockholders have initiated their
first Demand Right; provided, however, that
in the event that the number of Registrable
Securities included by the Group II
Stockholders in the first Demand Registration
initiated by the Group II Stockholders are
cutback pursuant to 2.1(j) then,
-8-
after the date that the Group I Stockholders
have initiated their first Demand Right, the
Group II Stockholders may initiate their
second Demand Right at any time after the
earlier of 1) the initiation by the Group I
Stockholders of their first Demand Right or
2) twelve (12) months from the date that the
Group II Stockholders first initiated their
first Demand Right.
(D) In the event that, at any time after the
Group II Stockholders have initiated their
first Demand Right and before they have
initiated their second Demand Right, there is
no Qualifying Group II Stockholder, then the
Group II Stockholders will lose their right
to initiate a second Demand Right and the
Group I Stockholders will be allowed to
initiate a seventh Demand Right.
(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 (other than holders who are not entitled to
participate in such Demand Registration pursuant to Section
2.1(c)(i)(B), which holders shall not be deemed to be Participating
Holders) 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.
(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 whether they are Group I Stockholders or Group II Stockholders
(and, in the event of a Shelf Demand, whether they are DOH Group I
Stockholders or Xxxxxxxx Group I 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
-9-
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 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
-10-
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 Group I Stockholders, if requested by the holders
of a majority of the Registrable Securities included in such
offering by such Xxxxxxxx Group Stockholders,
(B) in the case of a Demand Registration initiated by
either the DOH Group I Stockholders or the Group II
Stockholders, if requested by the holders of a majority of the
Registrable Securities collectively included in such offering
by the DOH Group I Stockholders and the Group II Stockholders,
(C) 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
Registable Securities to be distributed pursuant to the Shelf
Underwritten Offering (taking into account the inclusion of Registrable
Securities by any other holders pursuant to this Section
2.1(h)(ii)(A)); 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
-11-
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 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, 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:
-12-
(i) first, the Registrable Securities requested to be
included by the holders 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 (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.
-13-
2.2. INCIDENTAL REGISTRATIONS.
(a) Participation. (i) (i) At any time or from time to time prior
to the six year anniversary of the Closing Date, 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,
(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.
-14-
(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, the
total amount or kind of securities which such holders and any other Persons
intend to include in such offering 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 the securities offered or the market for
the class of securities offered or for 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) 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;
(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
-15-
Registration Rights Agreements, and the Incidental Registration Notice
is given after the Group II Registration Period,
(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 other
stockholders of the Issuer pursuant to the exercise of demand
registration rights under the Existing Registration Rights Agreements,
and the Incidental Registration Notice is given during the Group II
Registration Period,
(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 Group II
Stockholders 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, the Registrable Securities, if any,
requested to be included by the Group I
Stockholders 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;
-16-
(D) fourth, securities, if any, requested to be
included by the Issuer; and
(E) fifth, 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;
(iv) if the registration is being effected by the Issuer for
its own account, and the Incidental Registration Notice is given after
the Group II Registration Period,
(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 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;
(v) if the registration is being effected by the Issuer for
its own account, and the Incidental Registration Notice is given during
the Group II Registration Period,
(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 Existing Registration Rights
Agreements (to the extent
-17-
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 Group II
Stockholders pursuant to 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;
(D) fourth, the Registrable Securities, if any,
requested to be included by the Group I
Stockholders pursuant to Section 2.2, allocated
pro rata based on the number of Registrable
Securities requested to be included by each such
holder prior to receipt of the Incidental Cutback
Notice; and
(E) fifth, 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;
(vi) 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 (vi).
(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
-18-
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 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) (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 (or register for sale) any public
sale or distribution 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)
-19-
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 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
-20-
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;
(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;
-21-
(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;
(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 Xxxxx Xxxxx, Xxxx & Maw 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;
-22-
(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;
(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
-23-
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 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
-24-
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,
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) (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.
(b) 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
-25-
meaning of the Securities Act or the Exchange Act) such Persons (each, an
"Indemnified Party") from and against any and all losses, claims, damages,
liabilities (or actions or proceedings in respect thereof, whether or not such
Indemnified Party is a party thereto) and expenses (including reasonable costs
of investigation and legal expenses), joint or several (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 an 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 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 Person, 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 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
-26-
proceeds received by such holder under 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, 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 Person entitled to indemnification hereunder 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 Person 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 Person entitled to indemnification hereunder and to employ
counsel reasonably satisfactory to such Person, (C) in the reasonable judgment
of any such Person, based upon advice of its counsel, a conflict of interest
exists or may potentially exist between such Person 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 the Person notifies the indemnifying party in writing that such
Person 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 Person). 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
-27-
to an Indemnified Party) between such Indemnified Party and the other
Indemnified Parties or (z) an Indemnified Party has reasonably concluded (based
on advice of counsel) that there may be legal defenses available to it that are
different from or in addition to those available to the other 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.
-28-
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 Effective Time. In the event
that the Merger Agreement is terminated, this Agreement shall automatically
terminate without any action on the part of any party to this Agreement.
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:
Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Fax No. (000) 000-0000
with a copy to:
Ameritrade Holding Corporation
000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax No. ( 000) 000-0000
and to:
Mayer, Brown, Xxxx & Maw
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax No. (000) 000-0000
-29-
(b) if to the Stockholders, at the addresses 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 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) (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)
(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
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
-30-
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 Group I Stockholders or
Group II Stockholders requires the consent of holders of Registrable Securities
representing at least 67% of the group not receiving such benefits, (ii) any
Amendment which materially and adversely affects either the Group I Stockholders
or Group II Stockholders requires the consent of holders of Registrable
Securities representing at least 67% of the adversely affected group, 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 the 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 (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
-31-
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]
-32-
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date first written above.
ISSUER:
AMERITRADE HOLDING CORPORATION
By:
--------------------------------
Name:
Title:
XXXXXXXX GROUP I STOCKHOLDERS:
-----------------------------
J. Xxx Xxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxx
XXXXXXX X. XXXXXXXX 1994 DYNASTY TRUST
By: ________________________
J. Xxx Xxxxxxxx, trustee
J. XXX XXXXXXXX 1994 DYNASTY TRUST
By: ________________________
Xxxxxxx X. Xxxxxxxx, trustee
XXXXXXXX GRANDCHILDREN TRUST
By: ________________________
First National Bank of Omaha, trustee
DOH GROUP I STOCKHOLDERS:
XXXX CAPITAL FUND VII, LLC
XXXX CAPITAL VII COINVESTMENT FUND, LLC
By: Xxxx Capital Partners VII, L.P.,
its General Partner
By: Xxxx Capital Investors, LLC,
its General Partner
By:___________________________
Name:
Title:
BCI DATEK INVESTORS, LLC
By:
-----------------------------------------
Name:
Title:
BCIP ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP TRUST ASSOCIATES II
BCIP TRUST ASSOCIATES II-B
By:
-----------------------------------------
Name:
Title:
SILVER LAKE PARTNERS, L.P.
By: Silver Lake Technology Associates, L.L.C.,
its General Partner
By: ___________________________
Name:
Title:
SILVER LAKE INVESTORS, L.P.
By: Silver Lake Technology Associates, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
SILVER LAKE TECHNOLOGY INVESTORS, L.L.C.
By: Silver Lake Technology Management, L.L.C.,
its Managing Member
By: ____________________________
Name:
Title:
SlP CI-2, L.P.
By: SLTA-GP, LLC,
its General Partner
By: Silver Lake Technology Associates, L.L.C.,
its Managing Member
By: ____________________________
Name:
Title:
TA/ADVENT VIII, L.P.
By: TA Associates A VIII, LLC,
its General Partner
By: TA Associates, Inc.,
its Manager
By:____________________________
Name:
Title:
TA EXECUTIVES FUND, LLC
By: TA Associates, Inc.,
its Manager
By: ____________________________
Name:
Title:
TA INVESTORS, LLC
By: TA Associates, Inc.,
its Manager
By: ____________________________
Name:
Title:
TA ATLANTIC & PACIFIC IV, L.P.
By: TA Associates AP IV Partners, L.P.,
its General Partner
By: TA Associates, Inc.,
its Manager
By:____________________________
Name:
Title:
TA IX, L.P.
By: TA Associates IX, LLC,
its General Partner
By: TA Associates, Inc.,
its Manager
By:____________________________
Name:
Title:
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: _________________________
Name: Xxxxxxx X. Xxxxxxxxx,
Title: Managing Director
0000 XXXXXXXX XXXXX FUND, LLC
By: ___________________________
Name:
Title:
DOH GROUP II STOCKHOLDERS:
ADVENT PGGM GLOBAL LIMITED PARTNERSHIP
DIGITAL MEDIA & COMMUNICATIONS III LIMITED
PARTNERSHIP
DIGITAL MEDIA & COMMUNICATIONS III-A
LIMITED PARTNERSHIP
DIGITAL MEDIA & COMMUNICATIONS III-B
LIMITED PARTNERSHIP
DIGITAL MEDIA & COMMUNICATIONS III-C
LIMITED PARTNERSHIP
DIGITAL MEDIA & COMMUNICATIONS III-D C.V.
DIGITAL MEDIA & COMMUNICATIONS III-E C.V.
GLOBAL PRIVATE EQUITY III LIMITED
PARTNERSHIP
GLOBAL PRIVATE EQUITY IV LIMITED
PARTNERSHIP
By: Advent International Limited Partnership,
its General Partner
By: Advent International Corporation,
its General Partner
By: ______________________
Name:
Title:
ADVENT PARTNERS DMC III LIMITED
PARTNERSHIP
ADVENT PARTNERS GPE III LIMITED
PARTNERSHIP
ADVENT PARTNERS (NA) GPE III LIMITED
PARTNERSHIP
ADVENT PARTNERS LIMITED PARTNERSHIP
ADVENT PARTNERS GPE IV LIMITED
PARTNERSHIP
ADVENT PARTNERS (NA) GPE IV LIMITED
PARTNERSHIP
By: Advent International Corporation,
its General Partner
By: ____________________________
Name: Xxxxx Xxxxxxxx
Title: Managing Director
ADVENT GLOBAL GECC III LIMITED PARTNERSHIP
By: Advent Global Management Limited Partnership,
its General Partner
By: Advent International Corporation,
its General Partner
By: _______________________
Name: Xxxxx X. Xxxxxxxx
Title:Managing Director
FIRST UNION CAPITAL PARTNERS LLC
GUAYACAN PRIVATE EQUITY FUND
LIMITED PARTNERSHIP
By: Advent International Corporation,
Attorney-in-Fact
By: _______________________
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
FINANZAS B.V. (as assignee of europatweb B.V.)
By: ____________________________
Name:
Title:
EXHIBIT A
LIST OF STOCKHOLDERS
XXXXXXXX GROUP I STOCKHOLDERS:
Name Address for Notices
---- -------------------
J. Xxx Xxxxxxxx c/o Ameritrade Holding Corporation
Xxxxxxx X. Xxxxxxxx 0000 Xxxxx 000xx Xxxxxx
Xxxxxxx X. Xxxxxxxx 1994 Dynasty Trust Xxxxx, XX 00000
J. Xxx Xxxxxxxx 1994 Dynasty Trust 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
Attention: J. Xxx Xxxxxxxx
A-1
DOH GROUP I STOCKHOLDERS:
Name Address for Notices
---- -------------------
Xxxx Capital Fund VII, LLC 000 Xxxxxxxxxx Xxx.
Xxxx Capital VII Co Investment Fund, LLC Xxxxxx, XX 00000
BCI Datek Investors, LLC Fax: 000-000-0000
BCIP Associates II With copies to:
BCIP Associates II-B Ropes & Xxxx
BCIP Trust Associates II One International Place
BCIP Trust Associates II-B Xxxxxx, XX 00000-0000
Fax: 000-000-0000
Attn: Xxxxxx Xxxx, Esq.
Xxxxxx Xxxxxx, Esq.
Silver Lake Partners, L.P. 0000 Xxxx Xxxx Xxxx, Xxxxxxxx X,
Xxxxxx Xxxx Investors, L.P. Suite 150
Silver Lake Technology Investors, L.L.C. Xxxxx Xxxx, XX 00000
SLP CI-2, L.P. 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. c/o TA Associates, Inc.
TA/Advent VIII, L.P. 000 Xxxx Xxxxxx, Xxxxx 0000
XX Xxxxxxxxx, LLC Xxxxxx, XX 00000
TA Executives Fund, LLC Fax: 000-000-0000
TA IX, L.P. With copies to:
Advent Atlantic & Pacific III, X.X. Xxxxxxx, Procter & Xxxx XXX
Xxxxxx, XX 00000-0000
Fax: 000-000-0000
Attn: Xxxxxxx X. Xxxxxx, P.C.
A-2
DOH GROUP II STOCKHOLDERS:
Name Address for Notices
---- -------------------
Advent PGGM Global Limited Partnership c/o Advent International
Digital Media & Communications III Limited Partnership Corporation
Digital Media & Communications III-A Limited Partnership 00 Xxxxx Xxxxxx, 00xx Xxxxx
Digital Media & Communications III-B Limited Partnership Xxxxxx, XX 00000
Digital Media & Communications III-C Limited Partnership Fax: 000-000-0000
Digital Media & Communications III-D C.V. With copies to:
Digital Media & Communications III-E C.V. Xxxxxx Xxxxxxxx LLC
Global Private Equity III Limited Partnership 3000 Two Xxxxx Square
Global Private Equity IV Limited Partnership Eighteenth and Arch Streets
Advent Partners DMC III Limited Partnership Xxxxxxxxxxxx, XX 00000-0000
Advent Partners GPE III Limited Partnership Fax: 000-000-0000
Advent Partners GPE IV Limited Partnership Attn: Xxxxx Xxxxxxx, Esq.
Advent Partners (NA) GPE III Limited Partnership
Advent Partners (NA) GPE IV Limited Partnership
Advent Partners Limited Partnership
Advent Global GECC III Limited Partnership
First Union Capital Partners LLC
Guayacan Private Equity Fund Limited Partnership
(each of the foregoing DOH Group II Stockholders, together
with their respective transferees, sucessors and assigns, the
"Advent Stockholders")
Finanzas B.V. (as assignee of europatweb B.V.) Locatellikade 1
Parnassustoren
1076 AZ Amsterdam
The Netherlands
Fax: 00-00 00 00 000
Attention: Xxxxx van der Sluijs Xxxxxx
With copies to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
A-3
