EXHIBIT 10.3
AMENDED AND RESTATED VOTING AGREEMENT
AMENDED AND RESTATED VOTING AGREEMENT, dated as of May 16, 2002 (this
"Agreement"), by and among Datek Online Holdings Corp., a Delaware corporation
("Datek"), and the stockholders of Ameritrade Holding Corporation, a Delaware
corporation ("Ameritrade") set forth in Annex A (each a "Stockholder" and,
collectively, the "Stockholders"). Capitalized terms used but not otherwise
defined herein shall have the respective meanings given to them in the Merger
Agreement (as defined below).
WHEREAS, the parties hereto entered into a Voting Agreement, dated as
of April 6, 2002 (the "Original Agreement");
WHEREAS, the Board of Directors of Datek and the Board of Directors of
Ameritrade have approved that certain Amended and Restated Agreement and Plan of
Merger, dated as of even date herewith (the "Merger Agreement"), providing for,
among other things, the merger of Ameritrade and Datek with separate
wholly-owned subsidiaries of Arrow Stock Holding Corporation, a newly formed
holding company and a Delaware corporation ("Holdco");
WHEREAS, the Stockholders are the record and beneficial owners of
shares of Ameritrade Class A common stock, par value $.01 per share ("Class A
Shares"), and shares of Ameritrade Class B common stock, par value $.01 per
share ("Class B Shares"), in the amounts and of the types set forth opposite the
Stockholder's name on Annex A (the "Subject Shares");
WHEREAS, as a condition to Datek's entering into the Merger Agreement,
Datek has required that the Stockholders agree, and the Stockholders have
agreed, to enter into this Agreement.
NOW, THEREFORE, to induce Datek to enter into the Merger Agreement and
in consideration of the premises herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Grant of Irrevocable Proxy; Registration Rights. (a) Until this
Agreement is terminated, each Stockholder (i) hereby irrevocably agrees to vote,
and/or act by written consent with respect to, the Subject Shares, if any, owned
by such Stockholder at any annual, special or other meeting of the holders of
shares of Ameritrade capital stock and at any adjournment or postponement
thereof or pursuant to any written consent in lieu of a meeting, to the fullest
extent that the Subject Shares are entitled to be voted, in favor of the
adoption of the Merger Agreement, approval of the Mergers and any other
transactions contemplated by the Merger Agreement and (ii) in furtherance of the
foregoing, hereby irrevocably appoints Datek, its officers, agents and nominees,
with full power of substitution, as proxy for and attorney in fact of the
Stockholder to act with respect to and vote the Subject Shares, if any, owned by
the Stockholder for and in the name, place and stead of the Stockholder at any
annual, special or other meeting of the holders of shares of Ameritrade capital
stock and at any adjournment or postponement thereof or pursuant to any written
consent in lieu of a meeting,
to the fullest extent that the Subject Shares are entitled to be voted, in favor
of the adoption of the Merger Agreement, and approval of the Mergers and any
other transactions contemplated by the Merger Agreement; provided, that Datek or
its officers and nominees may exercise this irrevocable proxy only if such
Stockholder fails to comply with the terms of this Section 1(a)(i). In all other
matters, the Subject Shares shall be voted by and in the manner determined by
the Stockholder upon written notice to Datek (subject to the terms of the
Stockholders Agreement). Each Stockholder hereby represents that he has not
heretofore granted any irrevocable proxy with respect to the Subject Shares and
hereby revokes any and all proxies which may heretofore have been granted with
respect to the Subject Shares.
(b) Each Stockholder understands and acknowledges that Datek is
entering into the Merger Agreement in reliance upon the Stockholder's execution
and delivery of this Agreement. Each Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 1 is given in connection with and as
an inducement for the execution by Datek of the Merger Agreement and to secure
the performance of the duties of the Stockholder under this Agreement. Each
Stockholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may not be revoked. Each Stockholder hereby ratifies and confirms
all that such proxy may lawfully do or cause to be done by virtue hereof in
accordance with the provisions hereof. This proxy is executed and intended to be
irrevocable in accordance with the provisions of the Delaware General
Corporation Law.
(c) The Stockholders hereby approve the Summary of Terms of
Registration Rights Agreement in the form attached as Exhibit A hereto (the
"Registration Rights Term Sheet"), and agree to enter into a definitive
registration rights agreement with Holdco and certain other parties on the terms
and conditions set forth in the Registration Rights Term Sheet on or prior to
the Closing.
2. Additional Covenants of the Stockholders. Each Stockholder hereby
covenants and agrees with Datek that, until this Agreement terminates:
(a) Except for pledges in existence as of the date hereof, and
except as contemplated by the terms of this Agreement and the Stockholders
Agreement, such Stockholder shall not, and shall cause its controlled Affiliates
not to, (i) directly or indirectly sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of (collectively, a "Transfer"), or enter into any
contract, option or other agreement with respect to, or consent to, a Transfer
of, any or all of the Subject Shares; provided, however, that, with the consent
of Datek (which consent shall not be unreasonably withheld), such Stockholder
may pledge or encumber any Subject Shares so long as such pledge or encumbrance
would not impair such Stockholder's ability to perform its obligations under
this Agreement; or (ii) take any action that would have the effect of
preventing, impeding, interfering with or adversely affecting its ability to
perform its obligations under this Agreement.
(b) In the event of a stock dividend or distribution, or any
change in the capital stock of Ameritrade by reason of any stock dividend or
distribution, split-up, recapitalization, combination, exchange of shares or the
like (excluding the Merger), the term "Subject Shares" shall be deemed to refer
to and include the Subject Shares as well as all such stock dividends and
distributions and any securities into which or for which any or all of the
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Subject Shares may be changed or exchanged or which are received in such
transaction.
(c) Such Stockholder agrees that it shall not, and it shall cause
its controlled Affiliates not to, directly or indirectly, acquire additional
Securities (as defined in Section 3(a)), except for (i) purchases of Securities
from employees or former employees of Ameritrade, (ii) acquisitions of
securities from trusts established prior to the date hereof for the benefit of
such Stockholder's family or (iii) acquisitions made in the ordinary course
pursuant to employee benefit plans.
(d) In his, her or its capacity as a stockholder of Ameritrade,
such Stockholder shall not, nor shall such Stockholder permit any controlled
Affiliate of such Stockholder to, nor shall such Stockholder act in concert with
or permit any controlled Affiliate to act in concert with any Person to make, or
in any manner participate in, directly or indirectly, a "solicitation" of
"proxies" (as such terms are used in the rules of the Securities and Exchange
Commission) or powers of attorney or similar rights to vote, or seek to advise
or influence any Person with respect to the voting of, any Securities in
connection with any vote or other action on any matter, other than to recommend
that stockholders of Ameritrade vote in favor of adoption of the Merger
Agreement and approval of the Mergers and otherwise as expressly provided by
this Agreement.
(e) Such Stockholder shall not, nor shall such Stockholder permit
any controlled Affiliate of such Stockholder to, nor shall such Stockholder act
in concert with or permit any controlled Affiliate to act in concert with any
Person to, deposit any Securities in a voting trust or subject any Securities to
any arrangement or agreement with any Person with respect to the voting of such
Securities, except as expressly provided by this Agreement or the Stockholders
Agreement.
3. Representations and Warranties of the Stockholders. Each
Stockholder hereby represents and warrants to Datek that:
(a) (i) The Subject Shares listed on Annex A opposite the
Stockholder's name are the only shares of Ameritrade capital stock, securities
convertible into Ameritrade capital stock, or other rights in respect of
Ameritrade capital stock (collectively, "Securities") owned of record or
beneficially by the Stockholder; (ii) except as set forth on Annex A, such
Subject Shares are owned by the Stockholder, free and clear of all liens,
claims, charges and encumbrances of any kind whatsoever except for liens, claims
or charges arising from margin or other loans from a bank or brokerage firm and
except as contemplated by this Agreement, and none of such Subject Shares is
subject to any voting trust or other agreement or arrangement (except as created
by this Agreement) with respect to the voting of such Subject Shares; and (iii)
the Stockholder does not presently own any options to purchase or rights to
subscribe for or otherwise acquire any other Securities except as set forth in
Annex A and except for acquisitions of securities from trusts established prior
to the date hereof for the benefit of such Stockholder's family.
(b) The Stockholder has full right, power and authority to
execute and deliver this Agreement and to perform all of such Stockholders'
obligations hereunder, and such execution, delivery and performance have been
duly authorized by all requisite action of the Stockholder and no other legal
proceedings are necessary therefor.
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(c) This Agreement has been duly and validly executed and
delivered by the Stockholder and represents a valid and legally binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms.
(d) Except as noted on Annex A, the execution, delivery and
performance of this Agreement by the Stockholder will not constitute a violation
of, conflict with or result in a default under (i) any contract, understanding
or arrangement to which the Stockholder is a party or by which the Stockholder
is bound or require the consent of any other person or any party pursuant
thereto, (ii) any judgment, decree or order applicable to the Stockholder, or
(iii) any applicable law, statute, rule or regulation.
4. Representations, Warranties and Covenants of Datek. Datek hereby
represents and warrants to the Stockholders that (i) Datek has full corporate
right, power and authority to execute and deliver this Agreement and to perform
its obligations hereunder, (ii) such execution, delivery and performance have
been duly authorized by all requisite corporate action by Datek, and no other
corporate proceedings are necessary therefor, (iii) this Agreement has been duly
and validly executed and delivered by Datek and represents a valid and legally
binding obligation of Datek, enforceable against Datek in accordance with its
terms, and (iv) the execution, delivery and performance of this Agreement by
Datek will not constitute a violation of, conflict with or result in a default
under (A) any contract, understanding or arrangement to which Datek is a party
or by which it is bound or require the consent of any other person or any party
pursuant thereto, (B) any judgment, decree or order applicable to Datek, or (C)
any applicable law, statute, rule or regulation.
5. Termination. This Agreement, other than the obligations set
forth in Section 7, shall terminate at the earlier of the Effective Time or
immediately upon termination of the Merger Agreement pursuant to its terms.
6. Severability. Any term, provision, covenant or restriction
contained in this Agreement held by a court or other Governmental Body of
competent jurisdiction to be invalid, void or unenforceable shall be ineffective
to the extent of such invalidity, voidness or unenforceability, but neither the
remaining terms, provisions, covenants or restrictions contained in this
Agreement nor the validity or enforceability thereof in any other jurisdiction
shall be affected or impaired thereby. Any term, provision, covenant or
restriction contained in this Agreement that is so found to be so broad as to be
unenforceable shall be interpreted to be as broad as is enforceable.
7. Expenses. Each of the parties hereto shall pay all costs and
expenses incurred by such person or on such person's behalf in connection with
the transactions contemplated hereunder, including fees and expenses of such
person's own financial consultants, investment bankers, accountants and counsel,
except as otherwise provided herein or in the Merger Agreement.
8. Entire Agreement. This Agreement (including the documents and the
instruments referred to herein) constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, agreements or representations by or between the
parties, written and oral, with respect to the subject matter
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hereof and thereof.
9. Successors; No Third Party Beneficiaries. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns. Nothing in this
Agreement, expressed or implied, is intended to confer upon any party, other
than the parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided herein.
10. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or dispatched by a nationally recognized overnight courier service
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(i) if to Datek, to:
Datek Online Holdings Corp.
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
Attention: F. Xxxxxxx Xxxxxxx
(ii) if to a Stockholder:
to the address set forth opposite such Stockholder's
name on Annex A.
with copies to:
Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. XxxXxxxxx
and
Mayer, Brown, Xxxx & Maw
000 Xxxxx XxXxxxx Xxxxxx
0
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
11. Counterparts. This Agreement may be executed in counterparts, and
each such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
12. Specific Performance. The parties hereto agree that if for any
reason Datek or any Stockholder shall have failed to perform its respective
obligations under this Agreement, then the party hereto seeking to enforce this
Agreement against such non-performing party shall be entitled to specific
performance and injunctive and other equitable relief, and the parties hereto
further agree to waive any requirement for the securing or posting of any bond
in connection with the obtaining of any such injunctive or other equitable
relief. This provision is without prejudice to any other rights that any party
hereto may have against any other party hereto for any failure to perform its
obligations under this Agreement.
13. Governing Law. This Agreement shall be governed by the laws of
the State of New York without regard to its conflict of laws principles which
might result in the applications of the law of any other jurisdiction, except to
the extent that the Delaware General Corporation Law applies as a result of
Datek being a Delaware corporation.
14. Waiver and Amendment. Any provision of this Agreement may be
waived at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed by the
parties hereto.
15. Additional Subject Shares. Notwithstanding the provisions of
Section 14, in the event that any Stockholder acquires any additional
Securities, (i) such Stockholder shall promptly notify Datek in writing of such
acquisition and (ii) such securities shall, without further action of the
parties, be subject to the provisions of this Agreement, and Annex A will be
deemed amended accordingly.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
DATEK ONLINE HOLDINGS CORP.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman & CEO
STOCKHOLDERS:
/s/ J. Xxx Xxxxxxxx
-------------------------------------------
J. Xxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxx
XXXXXXX X. XXXXXXXX 1994
DYNASTY TRUST
By: /s/ J. Xxx Xxxxxxxx
----------------------------------------
J. Xxx Xxxxxxxx, trustee
J. XXX XXXXXXXX 1994 DYNASTY TRUST
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx, trustee
XXXXXXXX GRANDCHILDREN TRUST
By: /s/ Xxxxx X. Xxxxx, P.T. Admin. Officer
----------------------------------------
First National Bank of Omaha,
trustee
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ANNEX A
Stockholders and Securities Beneficially Owned
---------------------------------------------------------------------------------------------------------------------
STOCKHOLDER NAME AND ADDRESS SECURITIES BENEFICIALLY OWNED
(IN NUMBER OF SHARES)
---------------------------------------------------------------------------------------------------------------------
J. Xxx Xxxxxxxx(1) 45,282,627 Class A Shares
c/o Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
---------------------------------------------------------------------------------------------------------------------
J. Xxx Xxxxxxxx, as trustee of the Xxxxxxx X. Xxxxxxxx 8,186,112 Class B Shares
1994 Dynasty Trust
c/o Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxx(2) 35,213,399 Class A Shares
c/o Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxx, as trustee of the J. Xxx Xxxxxxxx 8,186,688 Class B Shares
1994 Dynasty Trust
c/o Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
---------------------------------------------------------------------------------------------------------------------
First National Bank of Omaha, as trustee of the Xxxxxxxx 19,008,000 Class A Shares
Grandchildren Trust
c/o First National Bank of Omaha
First National Center, 16th and Dodge Streets
Xxxxx, Xxxxxxxx 00000
---------------------------------------------------------------------------------------------------------------------
(1) Class A Shares beneficially owned by Xx. Xxxxxxxx consist of 37,975,260
shares held by Xx. Xxxxxxxx individually in a brokerage margin account;
3,000,000 shares held jointly with Xxxxxxx X. Xxxxxxxx, his spouse, in a
brokerage margin account; 1,434,467 shares owned by Xx. Xxxxxxxx but pledged as
collateral; 1,500,000 shares held jointly with Xxxxxxx X. Xxxxxxxx but pledged
as collateral; 332,352 shares held in the J. Xxxxxxxx XXX; 798 shares held in a
401(k)/profit sharing account; and 1,039,750 shares issuable upon the exercise
of options exercisable within 60 days. Class A Shares beneficially owned by Xx.
Xxxxxxxx do not include shares held by Xxx. Xxxxxxxx individually and disclosed
in Note (2) below.
(2) Class A Shares beneficially owned by Xxx. Xxxxxxxx consist of 30,381,047
shares held by Xxx. Xxxxxxxx individually in a brokerage margin account;
3,000,000 shares held jointly with J. Xxx Xxxxxxxx, her spouse, in a brokerage
margin account; 1,500,000 shares held jointly with J. Xxx Xxxxxxxx but pledged
as collateral; and 332,352 shares held in the M. Xxxxxxxx XXX. Class A Shares
beneficially owned by Xxx. Xxxxxxxx do not include shares held by Xx. Xxxxxxxx
individually and disclosed in Note (1) above.
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EXHIBIT A
Registration Rights Term Sheet
9
