SECURITIES PURCHASE AGREEMENT
Exhibit
10.2
This Securities
Purchase Agreement (this
“Purchase Agreement”) is made as of the
29th day of November, 2007, by and among E*TRADE Financial Corporation (the
“Company”), Investment Partners (A), LLC
(“IP(A)”) and the additional investors listed on Schedule A
hereto. Each of IP(A) and the investors listed on Schedule A hereto
is herein referred to as an “Investor”.
Reference
is made to (i) the Master Investment and Securities Purchase Agreement dated
as
of November 29, 2007 by and between Xxxxxxx Capital Ltd.
(“Xxxxxxx”) and the Company (the
“Master Investment Agreement”) and (ii)
the Registration Rights Agreement dated as of November 29, 2007 by and between
Xxxxxxx and the Company (the “Registration Rights
Agreement”). Capitalized terms used but not defined herein
have the respective meanings given to such terms in the Master Investment
Agreement.
In
consideration of the promises and of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the Company and the Investors,
intending to be legally bound, hereby agree as follows:
1.
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At
the Initial Closing (or as promptly as practicable thereafter in
the case
of stock certificates): (i) the Company will deliver (A) to IP(A)
certificates for 2,420,215 shares of Common Stock and executed Springing
Lien Notes in the aggregate principal amount of $50,000,000, (B)
to each
other Investor certificates for the shares of Common Stock in the
applicable amount set forth in Schedule A registered in the name
of such
Investor and executed Springing Lien Notes in the applicable aggregate
principal amount set forth in Schedule A registered in the name of
such
Investor which shall be reflected in one or more global notes representing
the Springing Lien Notes and held by The Depository Trust Corporation
or
its nominee (or a custodian on its behalf) and (C) a commitment fee
to
IP(A) of $1,428,572, and a commitment fee to the other Investors
in the
aggregate amount of $1,428,572; and (ii) each Investor, in full payment
for such shares of the Purchased Common Stock and such Springing
Lien
Notes, will deliver the applicable cash consideration for such securities
set forth in Schedule A (or in the case of IP(A), $50,000,000) by
wire
transfer of immediately available funds to the account designated
by the
Company. Notwithstanding the foregoing, as mutually agreed
between the Company and each Investor, such Investor’s commitment fee may
be netted against the applicable cash consideration payable by such
Investor (in which case the Investor shall remit to the Company an
amount
equal to such cash consideration less such commitment
fee).
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2.
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The
Company hereby: (i) makes to the Investors the same representations
and
warranties made by the Company to Xxxxxxx in Section 3.01 of the
Master
Investment Agreement to the same extent as made by the Company to
Xxxxxxx
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(and
as if each reference to “this Agreement” in such Section were a reference
to this Purchase Agreement and each reference to “Ancillary Document” in
such Section were a reference to the Registration Rights Agreement
and
Indenture only); (ii) agrees, for the benefit of the Investors,
to the
obligations set forth in Sections 4.01, 4.04(d), 4.05, 4.08 (as
if each
Investor were a “Purchaser” for purposes of such Section), 4.09 and 4.10
(with respect to the Securities issued to the Investors pursuant
to this
Purchase Agreement), 4.12 and 4.14 of the Master Investment Agreement
and
(iii) agrees that the Investors shall be treated as “Purchaser
Indemnitees” for purposes of the indemnification provisions in Section
6.09 of the Master Investment Agreement with respect to any
misrepresentation, breach of warranty or breach of covenant or
obligation
under this Purchase Agreement by the Company (it being acknowledged
and
agreed by the Investors, for the avoidance of doubt, that they
shall be
responsible for their pro rata share of the Deductible and shall
be
subject to their pro rata share of the cap provided for in Section
6.09(d)
of the Master Investment Agreement, calculated based on the aggregate
purchase price payable by the Investors for the Springing Lien
Notes
pursuant to this Purchase Agreement as a proportion of the aggregate
purchase price payable by Purchaser for the Springing Lien Notes
issuable
to Purchaser pursuant to the Master Investment
Agreement).
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3.
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Each
of the Investors hereby: (i) makes to the Company the same representations
and warranties made by the Purchaser to the Company in Section 3.02
of the
Master Investment Agreement (other than Section 3.02(i)) and the
same
acknowledgements as made by the Purchaser to the Company in Section
4.04(a), (b) and (c) of the Master Investment Agreement, in each
case as
if each Investor were a “Purchaser” for purposes of such Sections and to
the same extent as made by Purchaser to the Company (and as if each
reference to “this Agreement” in such Section were a reference to this
Purchase Agreement and each reference to “Ancillary Document” in such
Section were a reference to the Registration Rights Agreement and
Indenture only); (ii) agrees to the obligation set forth in Section
4.01
of the Master Investment Agreement and (iii) agrees to indemnify
the
Company Indemnitees with respect to any misrepresentation, breach
of
warranty or breach of covenant or obligation under this Purchase
Agreement
by any Investor to the same extent as the indemnity provided by the
Purchaser to the Company Indemnitees in Section 6.09(b) of the Master
Investment Agreement.
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4.
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Each
Investor hereby acknowledges and agrees that, by its execution of
this
Purchase Agreement, such Investor shall be deemed to be a party to
the
Registration Rights Agreement as of the date hereof and shall have
all of
the rights and observe all of the obligations of a “Holder” (as defined in
the Registration Rights Agreement)
thereunder.
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Sections
6.01, 6.02, 6.03, 6.05, 6.06, and Sections 6.10 through 6.19 (other than Section
6.16), of the Master Investment Agreement shall apply to this Purchase
Agreement, mutatis mutandis.
IN
WITNESS
WHEREOF, the parties hereto have executed this Purchase Agreement on the day
and
year first above written.
E*TRADE
FINANCIAL CORPORATION
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By:
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/s/ Xxxxxx X. Xxxxxxx | ||
Name:
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Xxxxxx X. Xxxxxxx | ||
Title:
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Chief Financial Officer |
INVESTMENT
PARTNERS (A), LLC
BY: BAA
CO-INVESTMENT FUND
(GENPAR),
LLC, ITS MANAGER
BY: BLACKROCK
ALTERNATIVE
ADVISORS
GP HOLDINGS, LLC, ITS SOLE
MEMBER
BY: BLACKROCK
FINANCIAL
MANAGEMENT,
INC., ITS MANAGING
MEMBER
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By:
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/s/ Xxxxx X. Xxxxx | ||
Name:
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Xxxxx X. Xxxxx | ||
Title:
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Managing Director | ||
By:
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/s/ Xxxxx X. Xxxxxx | ||
Name:
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Xxxxx X. Xxxxxx | ||
Title:
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Managing Director |
BLACKROCK
FINANCIAL MANAGEMENT, INC.
in
its capacity as Sub-Adviser to, agent for and solely
with
respect to the assets of each of the entities listed on Schedule
A
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By:
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/s/ Xxxx Xxxxxxxx | ||
Name:
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Xxxx Xxxxxxxx | ||
Title:
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Managing Director |