EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
entered into as of September 20, 2002 by and among INSTINET GROUP INCORPORATED,
a Delaware corporation ("Instinet"), REUTERS LIMITED, a company organized under
the laws of England and Wales ("Reuters Limited"), REUTERS C CORP., a Delaware
corporation ("Reuters C Corp"), REUTERS HOLDINGS SWITZERLAND SA, a company
organized under the laws of Switzerland ("Reuters Holdings"), those entities
listed on Exhibit A hereto under the heading "Bain Entities" (collectively, the
"Xxxx Group"), those entities listed on Exhibit A hereto under the heading
"Silver Lake Entities" (collectively, the "Silver Lake Group"), those entities
listed on Exhibit A hereto under the heading "TA Entities" (collectively, the
"TA Group"), Xxxxxx X. Xxxxxx ("Xxxxxx"), those entities listed on Exhibit A
hereto under the heading "Finanzas Entities" (collectively, the "Finanzas
Group"), those entities listed on Exhibit A hereto under the heading "Advent
Entities" (collectively, the "Advent Group") and, solely for purposes of
Article I, Sections 2.4, 2.6, 2.7 (other than clause (p) thereof), 2.10, 2.11,
2.14 and Article III hereof, AMERITRADE HOLDING CORPORATION, a Delaware
corporation ("Ameritrade"), as successor to Datek Online Holdings Corp.
("Datek").
RECITALS
WHEREAS, Instinet, Island Holding Company, Inc., a Delaware
corporation ("Island") and Instinet Merger Corporation, a Delaware corporation
and a wholly-owned subsidiary of Instinet, have entered into an Agreement and
Plan of Merger, dated as of June 9, 2002 (as amended as of August 7, 2002 and
as it may be amended, supplemented or otherwise modified from time to time, the
"Merger Agreement").
WHEREAS, the Merger Agreement contemplates that the parties
hereto will enter into this Agreement to set forth their agreement regarding
registration rights with respect to certain securities of Instinet.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
for themselves and their successors and assigns, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. As used in this Agreement, the
following terms will have the following meanings, applicable both to the
singular and the plural forms of the terms described:
"Advent Group" has the meaning ascribed thereto in the
preamble hereto.
"Affiliate" means, with respect to a given Person, any other
Person that, directly or indirectly, controls, is controlled by, or is under
common control with, such Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as applied to any
Person, means the possession, directly or indirectly, of the power to vote
forty percent (40%) or more of the securities having voting power for the
election of directors (or other Persons acting in similar capacities) of such
Person or otherwise to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise. Without limiting the generality of the foregoing, (w)
each of Silver Lake Partners, L.P., Silver Lake Investors, L.P. and Silver Lake
Technology Investors, L.L.C. 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 and BCIP
Trust Associates II-B 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 and GPH DT Partners shall be deemed to be Affiliates with
respect to each other solely for purposes of this Agreement and (z) each of
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, Advent Global GECC III Limited
Partnership, First Union Capital Partners LLC and Guayacan Private Equity Fund
Limited Partnership shall be deemed to be Affiliates with respect to each other
solely for purposes of this Agreement.
"Agreement" has the meaning ascribed thereto in the preamble
hereto, as such agreement may be amended and supplemented from time to time in
accordance with its terms.
"Ameritrade" has the meaning ascribed thereto in the preamble
hereto.
"Ameritrade Registration Statement" has the meaning ascribed
thereto in Section 2.4(a).
"Xxxx Group" has the meaning ascribed thereto in the preamble
hereto.
"Blackout Committee" means a committee of the Board of
Directors consisting solely of one director designated by Reuters Limited, one
director designated by the Holders holding a majority of the Registrable
Securities held by the Group M1 Holders, and one director designated by
Instinet who shall be a member of management of Instinet.
"Board of Directors" means the board of directors of Instinet.
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"Business Day" means any day other than a Saturday, Sunday or
any day on which banking institutions are authorized or obligated by law or
executive order to be closed in New York City.
"Common Stock" means the common stock, par value $0.01 per
share, of Instinet, and any other class of Instinet's capital stock
representing the right to vote generally for the election of directors.
"Corporate Agreement" means the Amended and Restated
Corporate Agreement, dated as of June 9, 2002, by and between Instinet and
Reuters Limited.
"Datek" has the meaning ascribed thereto in the preamble
hereto.
"Demand Notice" has the meaning ascribed thereto in Section
2.1(a).
"Demand Request" has the meaning ascribed thereto in Section
2.1(a)(i).
"Designated Periods" has the meaning ascribed thereto in
Section 2.4(b).
"Effective Time" has the meaning ascribed thereto in the
Merger Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" with respect to securities issued in a
Qualifying Transaction, means (i) with respect to a share of Common Stock, the
average of the closing prices of the Common Stock on the Nasdaq National Market
(or any other securities exchange or quotation system that is the primary
trading market for the Common Stock) over the ten trading day period ending
five trading days prior to the date of execution of definitive agreements
relating to the Qualifying Transaction or (ii) with respect to a security
convertible into or exchangeable for Common Stock, the Fair Market Value,
determined in accordance with clause (i), of the number of shares of Common
Stock into or for which such security is convertible or exchangeable.
"Finanzas Group" has the meaning ascribed thereto in the
preamble hereto.
"Future Holders" means persons who become parties to this
Agreement in connection with their receipt of Registrable Securities in a
Qualifying Transaction.
"Group" means any of the Group F Holders, the Group M1
Holders, the Group M2 Holders and the Group R Holders, in the case of each
above-listed Group, considered as a unit.
"Group F Cutback Percentage" means 33.33% or such lower
number as is set forth on the applicable Group F Holders' Terms Schedule.
"Group F Holders" means collectively, Future Holders and
their respective assignees or transferees to whom any Group F Holder transfers
Registrable Securities and who has duly executed a Joinder Agreement in which
it agrees to be bound by the terms of this Agreement as a Group F Holder, in
each case for so long as such Person owns Registrable
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Securities and has not withdrawn (or deemed to have withdrawn by virtue of an
Affiliate having withdrawn) from this Agreement pursuant to Section 3.12.
Instinet may establish multiple series of Group F Holders, provided, however,
that all Group F Holders shall be subject, in the aggregate, to the allocation
restrictions set forth in Sections 2.1(d) and 2.2(c).
"Group F Holders' Representative" means the Person designated
as the Group F Holders' Representative by the holders of a majority of the
Registrable Securities held by the Group F Holders from time to time. If
Instinet establishes multiple series of Group F Holders, Instinet may grant the
members of any such series the right to its own Group F Holders'
Representative; in such event, references herein to the Group F Holders'
Representative shall be deemed to refer to each applicable Group F Holders'
Representative.
"Group F Holders' Terms Schedule" means any schedule that may
be attached from time to time as a part of this Agreement in connection with
the addition of Future Holders as Group F Holders, setting forth certain terms
by which the Group F Holders, or any series thereof, shall participate as
Holders hereunder, which terms shall be in accordance with all other terms, and
subject to all other restrictions, set forth in this Agreement.
"Group M1 Holders" means collectively, the members of the
Xxxx Group, the Silver Lake Group and the TA Group and Xxxxxx, in each case
together with any of their respective permitted assignees or transferees to
whom any Group M1 Holder transfers Registrable Securities and who has duly
executed a Joinder Agreement in which it agrees to be bound by the terms of
this Agreement as a Group M1 Holder, in each case for so long as such Person
owns Registrable Securities and has not withdrawn (or deemed to have withdrawn
by virtue of an Affiliate having withdrawn) from this Agreement pursuant to
Section 3.12.
"Group M1 Holders' Representative" means TA Associates, Inc.
or any other Person designated as the Group M1 Holders' Representative by the
holders of a majority of the Registrable Securities held by the Group M1
Holders from time to time.
"Group M2 Holders" means collectively, the Group M2/A Holders
and the Group M2/F Holders.
"Group M2/A Holders" means collectively, the members of the
Advent Group, in each case together with any of their respective permitted
assignees or transferees to whom any Group M2/A Holder transfers Registrable
Securities and who has duly executed a Joinder Agreement in which it agrees to
be bound by the terms of this Agreement as a Group M2/A Holder, in each case
for so long as such Person owns Registrable Securities and has not withdrawn
(or deemed to have withdrawn by virtue of an Affiliate having withdrawn) from
this Agreement pursuant to Section 3.12.
"Group M2/A Holders' Representative" means Xxxxx Xxxxxxxx or
any other Person designated as the Group M2/A Holders' Representative by the
holders of a majority of the Registrable Securities held by the Group M2/A
Holders from time to time.
"Group M2/F Holders" means collectively, the members of the
Finanzas Group, in each case together with any of their respective permitted
assignees or transferees to whom any Group M2/F Holder transfers Registrable
Securities and who has duly executed a Joinder
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Agreement in which it agrees to be bound by the terms of this Agreement as a
Group M2/F Holder, in each case for so long as such Person owns Registrable
Securities and has not withdrawn (or deemed to have withdrawn by virtue of an
Affiliate having withdrawn) from this Agreement pursuant to Section 3.12.
"Group M2/F Holders' Representative" means Finanzas B.V. or,
at such time as neither Finanzas B.V. nor any of its Affiliates continues to
hold Registrable Securities, any other Person designated as the Group M2/F
Holders' Representative by the holders of a majority of the Registrable
Securities held by the Group M2/F Holders from time to time.
"Group R Holders" means collectively, the Reuters Entities
that hold Registrable Securities, in each case together with any of their
respective assignees or transferees to whom any Group R Holder transfers
Registrable Securities and who has duly executed a Joinder Agreement in which
it agrees to be bound by the terms of this Agreement as a Group R Holder, in
each case for so long as such Person owns Registrable Securities and has not
withdrawn (or deemed to have withdrawn by virtue of an Affiliate having
withdrawn) from this Agreement pursuant to Section 3.12.
"Group R Holders' Representative" means Reuters Limited or
any other Person designated as the Group R Holders' Representative by the
holders of a majority of the Registrable Securities held by the Group R Holders
from time to time.
"Hedge Share Distribution Notice" has the meaning ascribed
thereto in Section 2.4(b).
"Hedge Shares" has the meaning ascribed thereto in Section
2.4(a).
"Holder" means any Group F Holder, Group M1 Holder, Group M2
Holder or Group R Holder.
"Holders' Representative" means any Group F Holders'
Representative, Group M1 Holders' Representative, Group M2/A Holders'
Representative, Group M2/F Holders' Representative or Group R Holders'
Representative.
"Initiating Group" has the meaning ascribed thereto in
Section 2.1(a)(iii).
"Initiating Holders", with respect to any Demand Request,
means the Holders delivering the Demand Request.
"Instinet" has the meaning ascribed thereto in the preamble
hereto.
"Instinet Entities" means Instinet Parent, Instinet and their
respective Subsidiaries from time to time, and "Instinet Entity" shall mean any
of the Instinet Entities; provided, however, in each case, that any such
Instinet Entity shall cease to be an "Instinet Entity" under this Agreement at
such time as such Person no longer is a Subsidiary of Instinet Parent or
Instinet, as the case may be.
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"Instinet Parent" means any Person who succeeds Instinet as
the parent corporation of the Instinet Entities as a result of a corporate
reorganization, merger or otherwise.
"Instinet Securities" means Other Securities sought to be
included in a registration for Instinet's account.
"Instinet Transferee" shall mean any transferee or purchaser
(together with its Affiliates) from an Instinet Entity of greater than 1% of
the Total Voting Power of Instinet other than pursuant to an underwritten
offering; provided such Person holds more than 1% of the Total Voting Power of
Instinet at the time of the registration or offering in question; it being
understood that no Holder shall be considered an Instinet Transferee by virtue
of its receiving securities of Instinet in the Merger.
"Island" has the meaning ascribed thereto in the preamble
hereto.
"Island Registration Rights Agreement" means the Registration
Rights Agreement, dated December 15, 2000, by and among The Island ECN, Inc.
and each of the Persons or entities listed on Schedule A thereto, as amended
from time to time on or prior to the date hereof.
"Island Securityholders Agreement" has the meaning ascribed
thereto in Section 3.14.
"Joinder Agreement" means a written instrument, substantially
in the form attached as Exhibit B hereto, by which an assignee or transferee of
Registrable Securities agrees to be bound as a party to this Agreement.
"List" has the meaning ascribed thereto in Section 2.5.
"Lock-Up Period" has the meaning ascribed thereto in Section
2.13(a).
"Merger" has the meaning ascribed thereto in the Merger
Agreement.
"Merger Agreement" has the meaning ascribed thereto in the
Recitals to this Agreement.
"Xxxxxx" has the meaning ascribed thereto in the preamble
hereto.
"Other Holder" means a holder of Other Securities (other than
Instinet).
"Other Securities" means equity securities of Instinet or
securities convertible into or exchangeable for such equity securities to be
issued by Instinet or held or issued by Persons (including Instinet, if
applicable) other than the Holders.
"Ownership Reduction" shall be deemed to have occurred when
no Reuters Entity, together with its Affiliates, beneficially owns 20% or more
of the Total Voting Power of Instinet.
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"Pending Underwritten Offering" means, with respect to any
Holder withdrawing (or deemed to have withdrawn) from this Agreement pursuant
to Section 3.12, (i) any registered primary underwritten offering by Instinet
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 Demand Notice (or Shelf
Underwriting Notice, if a Shelf Underwritten Offering) has been delivered to
Instinet prior to the date of such Holder's withdrawal from this Agreement,
unless and until Instinet notifies the Holders' Representatives that such
registration statement will not be declared effective (which notice shall be
provided as promptly as practicable following any such determination) or that
all participating Holders have withdrawn their participation in the offering
pursuant to Section 2.1(b) or 2.2(b).
"Permissible Withdrawal" means a withdrawal of a registration
made pursuant to a Demand Request based on the reasonable determination of the
Holders holding a majority of the Registrable Securities requested to be
registered by the Initiating Holders in the Demand Request that New Information
would have a material adverse effect on the business, financial condition or
results of operations of Instinet; provided that such withdrawal is made within
ten Business Days of the earlier of (i) the New Information becoming publicly
available or (ii) Instinet's informing the Initiating Holders of the New
Information. For the purposes hereof, with respect to any Demand Request "New
Information" means information about Instinet of which the Initiating Holders
were unaware on the date of delivery of the Demand Request that either becomes
publicly available prior to the effectiveness of the registration statement (as
the result of a public announcement by Instinet or otherwise) or that Instinet
discloses or informs the Initiating Holders that it will disclose in the
registration statement to be filed pursuant to the Demand Request (it being
understood that information relating to general market conditions or general
market conditions for a business in which Instinet is engaged will not be
considered New Information).
"Person" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization,
government (and any department or agency thereof) or other entity.
"ProTrader Registration Rights Agreement" means the
Registration Rights Agreement, dated as of October 1, 2001, by and among
Instinet, Overunder LLC, Xxxxx X. Xxxxxx, Xxxxx X. Xxxxx, Xxxx X. XxXxxxxx, XX,
Xxxx Xxxxx, Xxxxx Xxxxx, Xxxxxx Xxx Xxxx and Xxxxxx Xxxxx, as it may be amended
from time to time in accordance with this Agreement.
"Qualifying Transaction" means a transaction with Instinet in
which Instinet issues to Future Holders shares of Common Stock or securities
convertible into or exchangeable for Common Stock with a Fair Market Value of
at least $75 million.
"Registrable Securities" means:
(a) with respect to any Group R Holder, shares of Common
Stock, including shares issued or issuable upon the conversion, exchange or
exercise of any security convertible, exchangeable or exercisable into Common
Stock, and any shares or other securities into which or for which such Common
Stock may hereafter be changed, converted or exchanged and any other
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shares or securities issued to Group R Holders of such Common Stock (or such
shares or other securities into which or for which such shares are so changed,
converted or exchanged) upon any reclassification, share combination, share
subdivision, recapitalization, split, share dividend, share exchange, merger,
consolidation or similar transaction or event, in each case, that are held by a
Group R Holder that has not withdrawn (or deemed to have withdrawn by virtue of
an Affiliate having withdrawn) from this Agreement pursuant to Section 3.12;
(b) with respect to any Group M1 Holder or any Group M2
Holder, shares of Common Stock issued pursuant to the Merger Agreement and any
shares or other securities into which or for which such Common Stock may
hereafter be changed, converted or exchanged and any other shares or securities
issued in respect of such Common Stock (or such shares or other securities into
which or for which such shares are so changed, converted or exchanged) upon any
reclassification, share combination, share subdivision, recapitalization,
split, share dividend, share exchange, merger, consolidation or similar
transaction or event, in each case, that are held by a Group M1 Holder or a
Group M2 Holder that has not withdrawn (or deemed to have withdrawn by virtue
of an Affiliate having withdrawn) from this Agreement pursuant to Section 3.12;
and
(c) with respect to any Group F Holder, shares of Common
Stock (including shares issued or issuable upon the conversion, exchange or
exercise of any security convertible, exchangeable or exercisable into Common
Stock) originally acquired pursuant to the Qualifying Transaction by which such
Group F Holder became a Holder hereunder and any shares or other securities
into which or for which such Common Stock may hereafter be changed, converted
or exchanged and any other shares or securities issued in respect of such
Common Stock (or such shares or other securities into which or for which such
shares are so changed, converted or exchanged) upon any reclassification, share
combination, share subdivision, recapitalization, split, share dividend, share
exchange, merger, consolidation or similar transaction or event, in each case,
that are held by a Group F Holder that has not withdrawn (or deemed to have
withdrawn by virtue of an Affiliate having withdrawn) from this Agreement
pursuant to Section 3.12.
As to any particular Registrable Securities, such Registrable
Securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale by the Holder thereof shall have been
declared effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (ii) they shall
have been publicly distributed pursuant to Rule 144, or (iii) they shall have
ceased to be outstanding.
"Registration Expenses" means any and all expenses incident
to performance of or compliance with any registration of securities pursuant to
Article II, including, without limitation, (i) the fees, disbursements and
expenses of Instinet's counsel and accountants; (ii) all expenses, including
filing fees, in connection with the preparation, printing and filing of the
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto and the mailing
and delivering of copies thereof to any underwriters and dealers; (iii) the
cost of printing or producing any underwriting agreements and blue sky or legal
investment memoranda and any other documents in connection with the offering,
sale or delivery of the securities to be disposed of; (iv) all expenses in
connection with the qualification of the securities to be disposed of for
offering and sale under
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state securities laws, including the fees and disbursements of counsel for the
underwriters and the Holders of securities in connection with such
qualification and in connection with any blue sky and legal investment surveys;
(v) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
securities to be disposed of; (vi) transfer agents' and registrars' fees and
expenses and the fees and expenses of any other agent or trustee appointed in
connection with such offering; (vii) all security engraving and security
printing expenses; (viii) all fees and expenses payable in connection with the
listing of the securities on any securities exchange or automated interdealer
quotation system or the rating of such securities; (ix) all expenses with
respect to road shows that Instinet is obligated to pay pursuant to Section
2.7(p); (x) the reasonable fees and expenses of one counsel for the Holders of
Registrable Securities incurred in connection with any registration hereunder,
such counsel to be selected by the two Holders that have requested the
inclusion of the largest number of their Registrable Securities in such
registration; and (xi) any other fees and disbursements of underwriters
customarily paid by the sellers of securities, but excluding underwriting
discounts and commissions and transfer taxes, if any (which underwriting
discounts and commissions and transfer taxes shall be borne by each selling
stockholder participating in a particular offering and, if selling securities
in such offering, Instinet, pro rata in accordance with the total amount of
securities sold in such offering by each such Person in accordance with Section
2.6). "Registration Expenses" shall apply with respect to the Ameritrade
Registration Statement and any sales of Hedge Shares made thereunder as if
Ameritrade were a Selling Holder (and the applicable Holders' Representative)
and as if the Hedge Shares were Registrable Securities.
"Reuters C Corp" has the meaning ascribed thereto in the
preamble hereto.
"Reuters Entities" means Reuters Parent and Subsidiaries of
Reuters Parent (other than Subsidiaries that constitute Instinet Entities) from
time to time, and "Reuters Entity" shall mean any of the Reuters Entities;
provided, however, in each case, that any Reuters Entity shall cease to be a
"Reuters Entity" under this Agreement at such time as such Person no longer is
a Subsidiary of Reuters Parent.
"Reuters Holdings" has the meaning ascribed thereto in the
preamble hereto.
"Reuters Limited" has the meaning ascribed thereto in the
preamble hereto.
"Reuters Parent" means the ultimate parent entity from time
to time, of Reuters Limited, which is currently Reuters Group PLC.
"Rule 144" means Rule 144 (or any successor rule to similar
effect) promulgated under the Securities Act.
"Rule 145" means Rule 145 (or any successor rule to similar
effect) promulgated under the Securities Act.
"Rule 415 Offering" means an offering on a delayed or
continuous basis pursuant to Rule 415 (or any successor rule to similar effect)
promulgated under the Securities Act.
"SEC" means the United States Securities and Exchange
Commission.
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"Section 2.1 Notice" shall have the meaning ascribed thereto
in Section 2.1(a) (viii).
"Section 2.2 Notice" shall have the meaning ascribed thereto
in Section 2.2(a).
"Securities Act" means the Securities Act of 1933, as
amended, or any successor statute.
"Selling Holder" has the meaning ascribed thereto in Section
2.7(d).
"Shelf Registration Statement" has the meaning ascribed
thereto in Section 2.3(a).
"Shelf Underwriting Notice" shall have the meaning ascribed
thereto in Section 2.3(e).
"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 2.3(e).
"Silver Lake Group" has the meaning ascribed thereto in the
preamble hereto.
"Stockholders Agreement" means that certain Stockholders
Agreement, dated as of June 9, 2002, as it may be amended from time to time, by
and among Instinet, Reuters Limited, Reuters C Corp, Reuters Holdings and those
entities listed on Exhibit B thereto.
"Subsidiary" means, as to any Person, any corporation,
association, partnership, joint venture or other business entity of which a
majority of the voting power of capital stock or other voting ownership
interests entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is owned or
controlled, directly or indirectly, by such Person or by one or more of the
Subsidiaries of such Person or by a combination thereof.
"TA Group" has the meaning ascribed thereto in the preamble
hereto.
"Total Voting Power of Instinet" shall mean the total number
of votes which may be cast in the election of members of the Board of Directors
by all holders of Common Stock.
1.2. Internal References. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement and
references to the parties shall mean the parties to this Agreement.
ARTICLE II
REGISTRATION RIGHTS
2.1. Demand Registration - Registrable Securities. (a)
General. Subject to the terms and conditions of this Agreement, upon written
notice (a "Demand Notice") provided at any time from one or more Group R
Holders, Group M1 Holders or Group F Holders, in each
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case requesting that Instinet effect the registration under the Securities Act
of any or all of the Registrable Securities held by such Holders, which Demand
Notice shall specify the number and type of such Registrable Securities to be
registered and the intended method or methods of disposition of such
Registrable Securities, Instinet shall use its reasonable best efforts to
effect the registration under the Securities Act and applicable state
securities laws of such Registrable Securities for disposition in accordance
with the intended method or methods of disposition stated in such request;
provided that:
(i) Initial Lock-up Period. No Holder may exercise its
rights to request a registration of Registrable Securities pursuant to
a Demand Notice under this Section 2.1 (such exercise being a "Demand
Request") prior to the expiration or termination of the term of the
ProTrader Registration Rights Agreement. In addition, no Group R
Holder or Group M1 Holder may exercise its rights to request a
registration of Registrable Securities pursuant to a Demand Request
at any time following the expiration or termination of the term of
the ProTrader Registration Rights Agreement but prior to the first
anniversary of the Effective Time without the prior written consent
of both (x) Instinet and (y) the Holders holding a majority of the
Registrable Securities held by (A) the Group M1 Holders, in the case
of a Demand Request by the Group R Holders, or (B) the Group R
Holders, in the case of a Demand Request by the Group M1 Holders. No
Group F Holder may make a Demand Request for any period of time
specified in the applicable Group F Holders' Terms Schedule (unless a
waiver is received from Instinet and such other Persons as may be
specified in the applicable Group F Holders' Terms Schedule);
provided, however, that in no event may any Group F Holder make a
Demand Request (x) prior to the termination or expiration of the
ProTrader Registration Rights Agreement and (y) at any other time
prior to the first anniversary of the Effective Time without the
prior written consent of the Holders holding a majority of the
Registrable Securities held by the Group M1 Holders and the Holders
holding a majority of the Registrable Securities held by the Group R
Holders (in addition to the consent or waiver of any other Persons
required pursuant to the foregoing).
(ii) Frequency of Exercise of Demand Rights. Without the
prior written consent of Instinet, following a Demand Request, each
Initiating Holder submitting the Demand Request, together with its
Affiliates, shall be immediately thereafter restricted from
initiating an additional Demand Request within the twelve-month
period following the date of submission of such Demand Request until
a differing Holder who is not an Affiliate initiates a Demand Request
provided, however, that, on and after the date on which no
Registrable Securities are held by any Group M1 Holder or any Group
M2 Holder, Group R Holders may make a Demand Request twice in any
twelve-month period but no Group R Holder together with its
Affiliates may make a Demand Request more than twice in any
twelve-month period without the prior written consent of Instinet.
(iii) Instinet Blackout Rights. (x) With respect to any
registration statement filed, or to be filed, pursuant to this
Section 2.1, if (A) Instinet determines in good faith that such
registration would cause Instinet to disclose material non-public
information which disclosure (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 or effectiveness of such registration
statement
11
and (iii) would be materially detrimental to Instinet or would
materially interfere with any material financing, acquisition,
corporate reorganization or merger or other transaction involving
Instinet and any of its Subsidiaries and that, as a result of such
potential disclosure or interference, it is in the best interests of
Instinet to defer the filing or effectiveness of such registration
statement at such time, and (B) Instinet promptly furnishes to the
Holders' Representatives of all participating Groups a certificate
signed by the chief executive officer and the general counsel of
Instinet to that effect, then Instinet shall have the right to defer
such filing or effectiveness, provided that (I) such deferral,
together with any other deferral or suspension of Instinet's
obligations under Section 2.1 or Section 2.3, shall not be effected
for a period of more than 120 days, in the aggregate, for all such
deferrals or suspensions over any twelve-month period, (II) if any
Holder(s) of a participating Group provide written notice to Instinet
objecting to the determination to defer within five Business Days
following notice to such Holder(s) of such determination, the
determination of Instinet to defer such filing or effectiveness shall
be confirmed within 15 Business Days of the deferral notice by the
Blackout Committee or by the Board of Directors, if the Board meets
within such time frame, or, if it is not so confirmed, such deferral,
if still in effect, shall immediately terminate, and (III) the
determination of Instinet to defer such filing or effectiveness shall
be further confirmed by the Board of Directors at its next meeting
(if such deferral is still in effect at the time of such meeting and
the Board had not already acted upon such deferral), or, if it is not
so confirmed, such deferral, if still in effect, shall immediately
terminate. In the event Instinet defers the filing or effectiveness
of a registration statement pursuant to this clause (iii), any Holder
may withdraw its participation in such registration by giving written
notice to Instinet within 30 days after receipt of the certificate
referred to in subsection (B) above. If all Holders that are members
of the Group which made the applicable Demand Request or on whose
behalf such Demand Request was made (such Group, the "Initiating
Group") and that are participating in such registration withdraw from
such registration as provided in the preceding sentence, then such
request shall not be counted for purposes of the requests permitted
to be made by the Initiating Group under this Section 2.1 and shall
instead be counted, for purposes of the Demand Requests permitted to
be made under this Section 2.1, as a Demand Request made by the
Group, if any, that continues to participate in such registration and
that has included in such registration, on a collective basis, the
greatest number of Registrable Securities included in such
registration by any Group participating therein.
(y) Instinet shall promptly notify the Holders'
Representatives of all participating Groups of the expiration of any
period during which it exercised its rights under this Section
2.1(a)(iii). Instinet agrees that, in the event it exercises its
rights under this Section 2.1(a)(iii), it shall, prior to the
expiration of the applicable deferral period, file or update and use
its reasonable best efforts to cause the effectiveness of, as
applicable, the applicable deferred registration statement;
(iv) Number of Demand Rights. (A) Group R Holders.
Except as provided in Section 2.1(e), after an Ownership Reduction,
the Group R Holders may collectively make Demand Requests on not more
than three occasions, any or all of which may be requests for the
filing of a Shelf Registration Statement pursuant to Section 2.3 (it
being acknowledged that prior to any Ownership Reduction, there shall
be no limit to the
12
number of occasions on which such Group R Holders may make Demand
Requests, including with respect to requests for the filing of a
Shelf Registration Statement pursuant to Section 2.3); provided that,
each Group R Holder who is a transferee of 5% or less of the Total
Voting Power of Instinet shall be entitled to make only one Demand
Request hereunder);
(B) Group M1 Holders. Except as provided in
Section 2.1(e), the Group M1 Holders may
collectively make Demand Requests on not
more than six occasions, two of which may,
at the sole option of the Holders holding a
majority of the Registrable Securities held
by the Group M1 Holders, be requests for
the filing of a Shelf Registration
Statement pursuant to Section 2.3; and
(C) Group F Holders. Except as provided in
Section 2.1(e), the Group F Holders (or any
series thereof) may collectively make
Demand Requests on that number of occasions
set forth in the applicable Group F
Holders' Terms Schedule, but in no event on
more than one occasion for every $40
million of Registrable Securities received
by the Group F Holders (or any such series
thereof) in the Qualifying Transaction
pursuant to which the Group F Holders (or
any such series thereof) became Holders
hereunder, not more than one-third of which
occasions (but at least one occasion, if
such Holders are entitled to a Demand
Request) may be requests for the filing of
a Shelf Registration Statement pursuant to
Section 2.3.
(v) Minimum Period Between Exercises of Rights. Except
as otherwise provided herein, the Holders shall not have the right to
make a Demand Request during the period commencing on the date of
delivery by a Holders' Representative of a Demand Notice pursuant to
this Section 2.1 and ending on the earlier of (x) the date which is
90 days following the termination of effectiveness of the most
recently effected registration statement pursuant to a Demand Notice
or pursuant to the ProTrader Registration Rights Agreement and (y)
the date on which Instinet notifies the Holders' Representatives that
such registration statement will not be declared effective (which
notice shall be provided as promptly as practicable following any
such determination) or that all included Holders have withdrawn from
such registration pursuant to Section 2.1(b);
(vi) Minimum Offering Size. To constitute a valid demand
pursuant to this Section 2.1, the estimated market value (based upon
the closing price of the relevant security on the trading day prior
to the date of the Demand Notice) of the Registrable Securities to be
registered by those Holders who individually or collectively
delivered the Demand Notice with respect to such registration
pursuant to this Section 2.1 must be at least:
(A) Group R Holders. $60 million, in the case
of a Demand Notice delivered by Group R
Holders;
13
(B) Group M1 Holders: $25 million, in the case
of a Demand Notice delivered by Group M1
Holders; and
(C) Group F Holders. That amount set forth in
the applicable Group F Holders' Terms
Schedule, but in no event less than 10% of
the aggregate Fair Market Value of the
Registrable Securities received by the
original Group F Holders (or any series
thereof) in the applicable Qualifying
Transaction, in the case of a Demand Notice
delivered by Group F Holders;
(vii) Registration Statement Form. Registrable Securities
registered pursuant to this Section 2.1 shall be registered using
Form S-1 (or any successor form) only if registration on Form S-3 (or
any successor form) is not then available to Instinet. In no event
shall the Group M1 Holders or the Group F Holders be entitled to
effect a registration pursuant to this Section 2.1 using Form S-1 (or
any successor form) on more than two occasions in the aggregate for
each such Group; and
(viii) Participations. Within ten days following receipt of
any Demand Notice, Instinet shall deliver written notice (a "Section
2.1 Notice") to each Holders' Representative of its receipt thereof.
Subject to the terms and conditions hereof and, to the extent
applicable to the parties thereto, the Stockholders Agreement, such
Section 2.1 Notice shall offer each Holder (whether or not such
Holder has given, or is entitled to give, a Demand Notice) the
opportunity to include in such registration (whether to be effected
pursuant to a Shelf Registration Statement or otherwise) such number
of Registrable Securities as such Holder may request (subject to
Section 2.1(d)). Thereafter, subject to Section 2.1(d), Instinet
shall include in such requested registration any additional
Registrable Securities of any Holder which has, within 15 Business
Days after receipt of the Section 2.1 Notice by such Holder's
Representative, requested in writing to be included in such Demand
Registration. All such requests shall specify the aggregate amount
of Registrable Securities to be registered.
(b) Withdrawal. Any Holder participating in a
registration of Registrable Securities pursuant to this Section 2.1 may
withdraw all or any part of its Registrable Securities from such registration
by giving written notice to Instinet of its request to withdraw at any time.
Instinet shall provide written notice of such withdrawal to the Holders'
Representatives of all participating Groups as promptly as practicable
following receipt. In the case of a withdrawal prior to the effective date of
such registration statement, any Registrable Securities to be included by such
Holder shall be reallocated in accordance with the applicable provisions of
this Agreement. Except as provided in Sections 2.1(a)(iii), 2.1(c) or 2.1(e)
or in the case of a Permissible Withdrawal, a Demand Request shall be counted
for purposes of the requests permitted to be made by the Initiating Group,
notwithstanding any such withdrawal; provided that each Group entitled to make
Demand Requests may exercise a Permissible Withdrawal on no more than a total
of two (2) occasions during the term of this Agreement.
(c) Fulfillment of Registration Obligations.
Notwithstanding any other provision of this Agreement, a registration requested
pursuant to this Section 2.1 shall not be
14
deemed to have been effected (and, therefore, not requested for purposes of
paragraph (a) above), (i) unless it has become effective, (ii) if after it has
become effective such registration is interfered with by any stop order,
injunction or other order or requirement of the SEC or other governmental
agency or court for any reason other than a misrepresentation or an omission by
a Holder that is a member of the Group on whose behalf the demand for
registration was made (or deemed to have been made pursuant to Section 2.1(e))
and, as a result thereof, the Registrable Securities requested to be registered
cannot be completely distributed in accordance with the plan of distribution
set forth in the related registration statement; provided, that if such
registration is a shelf registration pursuant to Section 2.3, such registration
shall be deemed to have been effected if such registration statement remains
effective for the applicable period specified in Section 2.3(a)(ii), (iii) if
not a shelf registration and the registration does not contemplate an
underwritten offering, if it does not remain effective for at least 90 days (or
such shorter period as will terminate when all Registrable Securities covered
by such registration statement have been sold or withdrawn); or if not a shelf
registration and such registration statement contemplates an underwritten
offering, if it does not remain effective for at least 90 days plus such longer
period as, in the opinion of counsel for the underwriter or underwriters, a
prospectus is required by law to be delivered in connection with the sale of
Registrable Securities by an underwriter or dealer or (iv) in the event of an
underwritten offering, if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration are not satisfied or waived other than by reason of some wrongful
act or omission by a Holder that is a member of such Group.
(d) Cutback Priority. If the lead underwriter of a
proposed underwritten offering of a class of Registrable Securities pursuant to
this Section 2.1 or Section 2.3 informs in writing the Holders' Representatives
representing the Holders included in such registration or offering (with a copy
to Instinet) that, in its good faith view, the number of securities of such
class requested to be included in such registration or offering (including
securities that Instinet proposes to sell for its own account) 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 offering
and sale of the Registrable Securities to be sold in such offering, Instinet
shall include in such registration:
(i) first, Registrable Securities sought to be included
by the Holders, pro rata on the basis of the relative number of
Registrable Securities requested to be included in such registration
by each such Holder, provided that if the full number of such
Registrable Securities requested to be included is greater than the
maximum number that, in the good faith view of such lead underwriter,
can be sold without having the adverse effect referred to above, the
Group F Holders shall not be allocated more than the Group F Cutback
Percentage of the aggregate number of Registrable Securities to be
registered in such offering; and
(ii) second, up to that number of Instinet Securities,
if any, in excess of the number of Registrable Securities to be sold
in such offering pursuant to clause (i) above which, in the good
faith view of such lead underwriter, can be sold without having the
adverse effect referred to above.
15
(e) Allocation of Demand Usage. A registration commenced
pursuant to a Demand Request and deemed effected pursuant to this Section 2.1
(including a shelf registration pursuant to Section 2.3) shall be allocated to
a particular Group for purposes of the Demand Requests permitted to be made by
such Group in accordance with 2.1(a) as follows (it being understood that any
such registration shall be allocated to one (but not more than one) Group):
(i) it shall be allocated to the Initiating Group if
either (x) after taking into account any piggyback rights and
underwriter-recommended cutbacks the Initiating Group is able to
register at least 75% of the Registrable Securities requested by the
Initiating Group to be included in such registration, or (y) the
number of Registrable Securities included in such registration by the
Initiating Group, on a collective basis, is greater than the number
of Registrable Securities included in such registration by any other
Group (on a collective basis), or (ii) if it is not allocated to the
Initiating Group based on clause (i), then the registration shall be
allocated to the Group that has included in such registration, on a
collective basis, the greatest number of Registrable Securities
included in such registration by any Group participating therein;
provided, however, that Instinet's obligations to effect a
registration shall in no way be limited in the event this provision
operates to allocate such registration to a Group other than the
Initiating Group.
For the purposes of this Section 2.1(e), if more than one
type of Registrable Securities is included in a registration, then the
determination of the number of Registrable Securities included in such
registration shall be based upon the number of shares of Common Stock included
in such offering and the number of shares of Common Stock underlying the other
Registrable Securities included in such offering. If the registration includes
Registrable Securities that do not relate to underlying Common Stock, then, in
determining whether a Group has included the largest number of Registrable
Securities in a particular registration, Registrable Securities that do not
relate to underlying Common Stock will be deemed to relate to a number of
shares of underlying Common Stock equal to the quotient of the market value of
the relevant security (on the date the relevant registration statement is
initially filed) divided by the closing price per share of Common Stock on the
trading day immediately prior to such date of initial filing.
2.2. Piggyback Registration. (a) General. In the event
that Instinet at any time proposes or is required to register any of its Common
Stock (other than pursuant to Section 2.1 or Section 2.3 hereof) or any Other
Securities under the Securities Act, whether or not for sale for its own
account, in a manner that would permit registration of Registrable Securities
for sale for cash to the public under the Securities Act, subject to Section
2.2(d) and Section 2.4 hereof it shall at each such time give prompt written
notice (the "Section 2.2 Notice") to each Holders' Representative of its
intention to do so. Subject to the terms and conditions hereof, the
Stockholders Agreement to the extent applicable to the parties thereto, and, if
such registration is being effected pursuant to the ProTrader Registration
Rights Agreement, the ProTrader Registration Rights Agreement, such Section 2.2
Notice shall offer each Holder the opportunity to include in such registration
statement such number of Registrable Securities as such Holder may request
(subject to Section 2.2(c)). Upon the written request of any Holder made
within 15 Business Days after the receipt of the Section 2.2 Notice by such
Holder's Representative (which request shall specify the number of Registrable
Securities intended to be disposed of), subject to the other provisions of this
Article II, and, if such registration is being effected pursuant to the
16
ProTrader Registration Rights Agreement, the ProTrader Registration Rights
Agreement, Instinet shall effect, in connection with the registration of such
Common Stock or Other Securities, the registration under the Securities Act of
all Registrable Securities which Instinet has been so requested to register.
(b) Withdrawal. (i) If, at any time after giving such
Section 2.2 Notice and prior to the effective date of the registration
statement filed in connection with such registration, Instinet shall determine
for any reason not to register the securities originally intended to be
included in such registration, Instinet may, at its election (subject to any
other obligations it may have in connection therewith), give written notice of
such determination to the Holders' Representatives of all participating Groups
and thereupon Instinet shall be relieved of its obligation to register such
Registrable Securities in connection with the registration of such securities
originally intended to be included in such registration, without prejudice,
however, to the rights of a Holder immediately to request that such
registration be effected as a registration under Section 2.1 (including a shelf
registration under Section 2.3) to the extent permitted thereunder.
(ii) Any Holder requesting a registration of Registrable
Securities pursuant to this Section 2.2 may withdraw all or any part
of the Registrable Securities from such registration by giving
written notice to Instinet of its request to withdraw at any time.
Instinet shall provide written notice of such withdrawal to the
Holders' Representatives of all participating Groups as promptly as
practicable following receipt; provided, that, Instinet shall be
entitled to reimbursement from the Holder of such withdrawn
Registrable Securities for any SEC registration fees incurred by
Instinet in connection with the registration of such Registrable
Securities. In the case of a withdrawal prior to the effective date
of such registration statement, any Registrable Securities that were
to be included by such withdrawing Holder shall be reallocated among
the remaining participating Holders (and, if applicable, Instinet) in
accordance with the applicable provisions of this Agreement.
(c) Cutbacks in Instinet Offering. If the registration
referred to in the first sentence of this Section 2.2 is to be an underwritten
registration on behalf of Instinet, and the lead underwriter or managing
underwriter advises Instinet in writing (with a copy to the Holders'
Representatives representing the Holders participating in such registration)
that, in such firm's good faith view, the number of Other Securities and
Registrable Securities requested to be included in such registration exceeds
the number which can be sold in such offering without being likely to have a
significant adverse effect upon the price, timing or distribution of the
offering and sale of the Other Securities and Registrable Securities then
contemplated, (I) during the term of the ProTrader Registration Rights
Agreement Instinet shall include securities in such offering in accordance with
the provisions of the ProTrader Registration Rights Agreement (it being
understood that the Reuters Entities shall waive their rights under Section
2.3(b)(i)(B) thereof and shall be entitled to include securities in such
offering solely in accordance with the terms of Section 2.3(b)(i)(C) thereof)
and (II) following the term of the ProTrader Registration Rights Agreement
Instinet shall include in such registration:
(i) first, all Instinet Securities;
17
(ii) second, Registrable Securities that are requested to
be included in such registration that can be sold without having the
adverse effect referred to above, pro rata on the basis of the
relative number of such Registrable Securities requested to be
included in such registration by each Holder, provided that (x) if
the full number of such Registrable Securities requested to be
included, together with the Instinet Securities included in such
registration pursuant to clause (i), is greater than the maximum
number that, in the good faith view of such lead underwriter or
managing underwriter, can be sold without having the adverse effect
referred to above, the Group F Holders shall not be allocated more
than the Group F Cutback Percentage of the aggregate number of
Registrable Securities to be registered in such offering, and (y) any
number of Registrable Securities allocated to a Holder in excess of
the request by such Holder may be reallocated among the remaining
participating Holders in a like manner (subject, in the case of a
Group F Holder, to the proviso in clause (x) above); and
(iii) third, up to the full number of the Other Securities
(other than those registered pursuant to clause (i) above), if any,
in excess of the number of Instinet Securities and Registrable
Securities to be sold in such offering pursuant to clauses (i) and
(ii) above which, in the good faith view of such lead underwriter or
managing underwriter can be sold without having the adverse effect
referred to above;
(d) Exempt Registrations. Instinet shall not be required
to effect any registration of Registrable Securities under this Section 2.2
incidental to the registration of any of its securities on Forms S-4 or S-8 (or
any similar or successor form providing for the registration of securities in
connection with mergers, acquisitions, exchange offers, subscription offers,
dividend reinvestment plans or stock option or other executive or employee
benefit or compensation plans) or any other form that would not be available
for registration of Registrable Securities.
2.3. Shelf Registration. (a) General; Duration. Subject
to any applicable limitations set forth in Section 2.1(a), the Group F Holders,
the Group M1 Holders or the Group R Holders, in each case holding a majority of
the Registrable Securities held by such Group, shall have the right at any
time, and from time to time, to request, in connection with delivery of a
Demand Notice by a member of such Group, that Instinet prepare and file with
the SEC a "shelf" registration statement (the "Shelf Registration Statement")
on the appropriate form for an offering to be made, covering the Registrable
Securities requested to be included therein (including pursuant to Section
2.1(a)(viii)), on a continuous or delayed basis pursuant to Rule 415 under the
Securities Act (or any successor rule or similar provision then in effect) in
the manner or manners designated by the requesting Holders (including, without
limitation, one or more underwritten offerings). Instinet shall use its
reasonable best efforts to have the Shelf Registration Statement declared
effective by the SEC as soon as practicable after the expiration of the 15
Business Day period referred to in Section 2.1(a)(viii) and to keep such Shelf
Registration Statement continuously effective and free of material
misstatements or omissions (including the preparation and filing of any
amendments and supplements necessary for that purpose) until the earlier of (i)
the date on which all Holders have consummated the sale of all of such Holders'
Registrable Securities registered under the Shelf Registration Statement or
(ii) (x) in the case of a Shelf Registration Statement requested on behalf of
the Group R Holders, twelve months from the date the Shelf Registration
Statement first became effective, (y) in the case of a
18
Shelf Registration Statement requested on behalf of the Group M1 Holders, six
months from the date the Shelf Registration Statement first became effective or
(z) in the case of a Shelf Registration Statement requested on behalf of the
Group F Holders (or any series thereof), six months (or such shorter period as
may be set forth in the applicable Group F Holders' Terms Schedule) from the
date the Shelf Registration Statement first became effective, subject, in each
case, to extension (A) pursuant to Section 2.3(b)(ii) or (B) for any period of
time during which the offering of Registrable Securities pursuant to such Shelf
Registration Statement is interfered with by a stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court.
(b) Instinet Blackout Rights. (i) Prior to
Effectiveness. With respect to any Shelf Registration Statement filed, or to
be filed, pursuant to this Section 2.3, (x) if Instinet determines in good
faith that such registration would cause Instinet to disclose material
non-public information which disclosure (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 or effectiveness of such registration statement and (iii) would
be materially detrimental to Instinet or would materially interfere with any
material financing, acquisition, corporate reorganization or merger or other
transaction involving Instinet and any of its Subsidiaries and that, as a
result of such potential disclosure or interference, it is in the best
interests of Instinet to defer the filing or effectiveness of such Shelf
Registration Statement at such time, and (y) Instinet promptly furnishes to the
Holders' Representatives of all participating Groups a certificate signed by
the chief executive officer and the general counsel of Instinet to that effect,
then Instinet shall have the right to defer such filing or effectiveness,
provided that (I) such deferral, together with any other deferral or suspension
of its obligations under Section 2.1 or Section 2.3, shall not be effected for
a period of more than 120 days, in the aggregate, for all such deferrals or
suspensions over any twelve-month period, (II) if any Holder(s) of a
participating Group provide written notice to Instinet objecting to the
determination to defer within five Business Days following notice to such
Holder(s) of such determination, the determination of Instinet to defer such
filing or effectiveness shall be confirmed within 15 Business Days of the
deferral notice by the Blackout Committee or by the Board of Directors, if the
Board meets within such time frame, or, if it is not so confirmed, such
deferral, if still in effect, shall immediately terminate, and (III) the
determination of Instinet to defer such filing or effectiveness shall be
further confirmed by the Board of Directors at its next meeting (if such
deferral is still in effect at the time of such meeting and the Board had not
already acted upon such deferral), or, if it is not so confirmed, such
deferral, if still in effect, shall immediately terminate. In the event
Instinet defers the filing or effectiveness of a Shelf Registration Statement
pursuant to this clause (b), any Holder may withdraw its participation in such
registration by giving written notice to Instinet, within 30 days after receipt
of the certificate referred to in subclause (y) above. If all Holders that are
members of the Initiating Group and that are participating in such registration
withdraw from such registration as provided in the preceding sentence, then
such request shall not be counted for purposes of the requests permitted to be
made by the Initiating Group under Section 2.1 and shall instead be counted,
for purposes of the Demand Requests permitted to be made under Section 2.1, as
a Demand Request made by the Group, if any, that continues to participate in
such registration and that has included in such registration, on a collective
basis, the greatest number of Registrable Securities included in such
registration by any Group participating therein. Instinet shall promptly
notify the Holders' Representatives of all participating Groups of the
expiration of any period during which it
19
exercised its rights under this Section 2.3(b)(i). Instinet agrees that, in the
event it exercises its rights under this Section 2.3(b)(i), it shall, prior to
the expiration of the applicable deferral period, file or update and use its
reasonable best efforts to cause the effectiveness of, as applicable, the
applicable deferred Shelf Registration Statement.
(ii) Following Effectiveness. Following effectiveness of
any Shelf Registration Statement pursuant to this Section 2.3, (x) if Instinet
determines in good faith that the availability of the Shelf Registration
Statement for use would cause Instinet to disclose material non-public
information which disclosure (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 continued use of such registration statement and (iii) would be
materially detrimental to Instinet or would materially interfere with any
material financing, acquisition, corporate reorganization or merger or other
transaction involving Instinet and any of its Subsidiaries and that, as a
result of such potential disclosure or interference, it is in the best
interests of Instinet to suspend the use of such Shelf Registration Statement
at such time, and (y) Instinet promptly furnishes to the Holders'
Representatives of all participating Groups a certificate signed by the chief
executive officer and the general counsel of Instinet to that effect, then
Instinet shall have the right to suspend the use of such Shelf Registration
Statement, provided that (I) such suspension, together with any other
suspension or deferral of its obligations under Section 2.1 or Section 2.3,
shall not be effected for a period of more than 120 days, in the aggregate, for
all such suspensions or deferrals over any twelve-month period, (II) if any
Holder(s) of a participating Group provide written notice to Instinet objecting
to the determination to suspend within five Business Days following notice to
such Holder(s) of such determination, the determination of Instinet to suspend
such filing or effectiveness shall be confirmed within 15 Business Days by the
Blackout Committee or by the Board of Directors, if the Board meets within such
time frame, or, if it is not so confirmed, such suspension, if still in effect,
shall immediately terminate, and (III) the determination of Instinet to suspend
the use of such filing shall be further confirmed by the Board of Directors at
its next meeting (if such suspension is still in effect at the time of such
meeting and the Board had not already acted upon such suspension), or, if it is
not so confirmed, such suspension, if still in effect, shall immediately
terminate. Instinet shall promptly notify the Holders' Representatives of all
participating Groups of the expiration of any period during which it exercised
its rights under this Section 2.3(b)(ii). Instinet agrees that, in the event it
exercises its rights under this Section 2.3(b)(ii), it shall, prior to the
expiration of the applicable suspension period, update the suspended Shelf
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. The minimum period of time during which the
applicable Shelf Registration Statement must remain effective pursuant to
Section 2.3(a) shall be extended by the number of days during the period from
and including the date of delivery to the Holders' Representatives of all
participating Groups of the certificate contemplated by the first sentence of
this Section 2.3(b)(ii) and ending on the date that Instinet gives notice as
provided by the foregoing that such suspension has ended.
(c) Supplements and Amendments. Instinet agrees, if
necessary, to supplement or amend the Shelf Registration Statement, as required
by the rules, regulations or instructions applicable to the registration form
used by Instinet for such Shelf Registration Statement or by the Securities Act
or as otherwise required by this Agreement, and shall use its
20
reasonable best efforts to have such supplements and amendments declared
effective, if required, as soon as practicable after filing.
(d) Fulfillment of Registration Obligations. A
registration will not be deemed to have been effected pursuant to a Shelf
Registration Statement, and shall not reduce the number of Demand Requests
available to the Group on whose behalf such registration was requested, unless
(x) the provisions of Section 2.1(a) and 2.3(a) are fulfilled with respect to
such Shelf Registration Statement and (y) the Shelf Registration Statement with
respect thereto has remained effective for the minimum period of time required
by Section 2.3(a), as extended as provided in such Section 2.3(a).
(e) Shelf Underwritten Offerings. At any time that a
Shelf Registration Statement is effective, if any Holder or Group delivers a
notice to Instinet (a "Shelf 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 Instinet shall amend or
supplement the Shelf Registration Statement as may be necessary in order to
enable such Registrable Securities to be distributed pursuant to the Shelf
Underwritten Offering (taking into account the inclusion of Registrable
Securities by any other Holders pursuant to this Section 2.3(e)). In connection
with any Shelf Underwritten Offering which includes Registrable Securities that
have an aggregate offering price of at least $30 million:
(A) such proposing Holder(s) shall also deliver
the Shelf Underwriting Notice to all
Holders' Representatives and permit each
Holder to include its Registrable
Securities included on the Shelf
Registration Statement in the Shelf
Underwritten Offering if such Holder
seeking to so include Registrable
Securities notifies the proposing Holders
and Instinet of such request, specifying
the aggregate amount of Registrable
Securities to be included, within five
Business Days after receipt of the Shelf
Underwriting Notice by such Holder's
Representative;
(B) if the lead or managing underwriter of a
proposed Shelf Underwritten Offering
informs in writing the Holders'
Representatives representing the Holders
participating in such offering (with a
copy to Instinet) that, in its good faith
view, the number of securities of such
class requested to be included 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
offering and sale of the Registrable
Securities to be sold in such 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 such lead or managing
underwriter, can be included without being
likely to have a significant adverse
effect on the price, timing or
distribution of the class of securities
21
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 in the manner
set forth in Section 2.1(d) with respect
to allocations in a requested
registration; and
(C) the Shelf Underwriting Notice shall state
that Holders must respond to the Shelf
Underwriting Notice within five Business
Days of the receipt thereof.
2.4. Ameritrade SAR Shelf Registration Statement. (a)
Filing. No later than 60 days prior to the first Designated Period, Instinet
shall prepare and file with the SEC a "shelf" registration statement (the
"Ameritrade Registration Statement") on the appropriate form for an offering to
be made, covering all of the shares of Common Stock issuable by Instinet to
Ameritrade pursuant to the two Hedge Option Agreements, each dated April 10,
2001, between Island (as successor to The Island ECN, Inc.) and Ameritrade (as
successor to Datek) relating to stock appreciation rights, as they may be
amended from time to time, which agreements shall be assumed by Instinet in
connection with the Merger (such shares of Common Stock issuable to Ameritrade
pursuant to such agreements, the "Hedge Shares"), on a continuous or delayed
basis pursuant to Rule 415 under the Securities Act (or any successor rule or
similar provision then in effect), subject to the limitations provided herein.
The distribution of Common Stock under the Datek Registration Statement shall
be made in a manner reasonably designated by Ameritrade, subject to the
approval of Instinet, which shall not be unreasonably withheld. Instinet shall
use its reasonable best efforts to have the Ameritrade Registration Statement
declared effective by the SEC as soon as practicable after filing, and in any
event prior to the date of filing with the SEC of Instinet's next annual report
on Form 10-K following the Effective Time. Ameritrade shall furnish to
Instinet such information regarding Ameritrade and the distribution proposed by
Ameritrade as Instinet may reasonably request in writing and as shall be
reasonably required in connection with the Ameritrade Registration Statement.
No Holder shall have the right to include any Registrable Securities in the
Ameritrade Registration Statement, however securities may be included in the
Ameritrade Registration Statement in accordance with the ProTrader Registration
Rights Agreement during the term of such Agreement. The Ameritrade Registration
Statement shall expressly provide that Common Stock may be sold thereunder only
during Designated Periods.
(b) Take-downs from Ameritrade Registration Statement.
Ameritrade may, during any Designated Period and only during a Designated
Period, sell all or any portion of the Hedge Shares then held by Ameritrade
pursuant to the Ameritrade Registration Statement. For purposes hereof,
"Designated Periods" means (i) the 30-day period following the filing with the
SEC of Instinet's first annual report on Form 10-K following the Effective
Time; (ii) the 20-day period following the filing with the SEC of Instinet's
second annual report on Form 10-K following the Effective Time; and (iii) the
10-day period following the filing with the SEC of Instinet's third annual
report on Form 10-K following the Effective Time, subject, in each case, to
extension (A) pursuant to Section 2.4(c), (B) during any period during a
Designated Period from and including the date any written notice contemplated
by Section 2.7(f) is given by Instinet until the date on which Instinet
delivers to the Holders the supplement or amendment contemplated by Section
2.7(f) or written notice that the use of the prospectus may be resumed,
22
as the case may be, or (C) for any period of time during a Designated Period
during which the offering of Hedge Shares pursuant to the Ameritrade
Registration Statement is interfered with by a stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court.
Prior to the commencement of each Designated Period, Instinet shall give
written notice to Ameritrade of its intended date of filing of its annual
report on Form 10-K. Within three Business Days of receiving such written
notice, Ameritrade will deliver to Instinet written notice (a "Hedge Share
Distribution Notice") as to whether it intends to distribute Hedge Shares
during the next Designated Period. If Ameritrade states in a Hedge Share
Distribution Notice delivered prior to a Designated Period that it intends to
distribute Hedge Shares during such Designated Period, Instinet shall, as
promptly as is reasonably practicable after the date such Distribution Notice
is delivered and in any event prior to the beginning of the next Designated
Period, if required by applicable law and subject to Section 2.4(c), file with
the SEC any amendments or supplements to the Ameritrade Registration Statement
necessary to allow Ameritrade to distribute the Hedge Shares in the manner
described in the Ameritrade Registration Statement during the Designated
Period. Instinet further agrees (i) as promptly as is reasonably practicable
after the date a Hedge Share Distribution Notice is delivered (and prior to the
next Designated Period), to provide Ameritrade copies of any documents filed
pursuant to this Section 2.4(b) and (ii) to notify Ameritrade as promptly as is
reasonably practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to this Section 2.4(b).
(c) Instinet Blackout Rights. (i) Prior to
Effectiveness. With respect to the Ameritrade Registration Statement to be
filed, or filed but not yet effective pursuant to this Section 2.4, (x) if
Instinet determines reasonably and in good faith that such registration would
cause Instinet to disclose material non-public information which disclosure (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 or effectiveness of such
registration statement and (iii) would be materially detrimental to Instinet or
would materially interfere with any material financing, acquisition, corporate
reorganization or merger or other transaction involving Instinet and any of its
Subsidiaries and that, as a result of such potential disclosure or
interference, it is in the best interests of Instinet to defer the filing or
effectiveness of the Ameritrade Registration Statement at such time, and (y)
Instinet promptly furnishes to Ameritrade a certificate signed by the chief
executive officer and the general counsel of Instinet to that effect, then
Instinet shall have the right to defer such filing or effectiveness, provided
that (I) such deferral, together with any other deferral, suspension or
postponement of its obligations under this Section 2.4, shall not be effected
for a period of more than 120 days, in the aggregate, for all such deferrals,
suspensions or postponements over any twelve-month period, (II) if Ameritrade
provides written notice to Instinet objecting to the determination to defer
within five Business Days following notice to Ameritrade of such determination,
the determination of Instinet to defer such filing or effectiveness shall be
confirmed within 15 Business Days of the deferral notice by the Blackout
Committee or by the Board of Directors, if the Board meets within such time
frame, or, if it is not so confirmed, such deferral, if still in effect, shall
immediately terminate, and (III) the determination of Instinet to defer such
filing or effectiveness shall be further confirmed by the Board of Directors at
its next meeting (if such deferral is still in effect at the time of such
meeting and the Board had not already acted upon such deferral), or, if it is
not so confirmed, such deferral, if still in effect, shall immediately
terminate. Instinet shall promptly notify Ameritrade of the expiration of any
period during
23
which it exercised its rights under this Section 2.4(c). Instinet agrees that,
in the event it exercises its rights under this Section 2.4(c), it shall, prior
to the expiration of the applicable deferral period, file or update and use its
reasonable best efforts to cause the effectiveness of, as applicable, the
deferred Ameritrade Registration Statement. If any Designated Period is
deferred because of the exercise by Instinet of its rights under this Section
2.4(c), then such Designated Period shall commence immediately after the date
that Instinet gives notice that such deferment has ended and such Designated
Period shall last for the same number of days as if such deferral had not
occurred.
(ii) Following Effectiveness. Following effectiveness of
the Ameritrade Registration Statement pursuant to this Section 2.4,
(x) if Instinet determines reasonably and in good faith that the
availability of the Ameritrade Registration Statement for use during
a Designated Period would cause Instinet to disclose material
non-public information which disclosure (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 be
materially detrimental to Instinet or would materially interfere with
any material financing, acquisition, corporate reorganization or
merger or other transaction involving Instinet and any of its
Subsidiaries and that, as a result of such potential disclosure or
interference, it is in the best interests of Instinet to suspend or
postpone the use of the Ameritrade Registration Statement at such
time, and (y) Instinet promptly furnishes to Ameritrade a certificate
signed by the chief executive officer and the general counsel of
Instinet to that effect, then Instinet shall have the right to so
suspend or postpone the use of the Ameritrade Registration Statement
during a Designated Period, provided that (I) such suspension or
postponement, together with any other suspension, deferral or
postponement of its obligations under this Section 2.4, shall not be
effected for a period of more than 120 days, in the aggregate, for
all such suspensions, deferrals or postponements over any
twelve-month period, (II) if Ameritrade provides written notice to
Instinet objecting to the determination to suspend or postpone within
five Business Days following notice to Ameritrade of such
determination, the determination of Instinet to suspend or postpone
the use of the Ameritrade Registration Statement shall be confirmed
within 15 Business Days of the suspension or postponement notice by
the Blackout Committee or by the Board of Directors, if the Board
meets within such time frame, or, if it is not so confirmed, such
suspension or postponement, if still in effect, shall immediately
terminate, and (III) the determination of Instinet to suspend or
postpone the use of the Ameritrade Registration Statement shall be
further confirmed by the Board of Directors at its next meeting (if
such suspension or postponement is still in effect at the time of
such meeting and the Board had not already acted upon such suspension
or postponement), or, if it is not so confirmed, such suspension or
postponement, if still in effect, shall immediately terminate.
Instinet shall promptly notify Ameritrade of the expiration of any
period during which it exercised its rights under this Section
2.4(c). Instinet agrees that, in the event it exercises its rights
under this Section 2.4(c), it shall, prior to the expiration of the
applicable suspension or postponement period, update the suspended
Ameritrade Registration Statement as may be necessary to permit
Ameritrade to resume use thereof in connection with the offer and
sale of Hedge Shares in accordance with this Agreement and with
applicable law. If any Designated Period
24
following effectiveness of the Ameritrade Registration Statement is
suspended or postponed because of the exercise by Instinet of its
rights under this Section 2.4(c), then such Designated Period shall
resume or commence immediately after the date that Instinet gives
notice that such suspension or postponement has ended and shall last
for the same number of days as if such suspension or postponement had
not occurred.
(d) No Further Obligations. Except as set forth in
Section 2.4(e), Instinet shall have no further obligations with respect to the
Ameritrade Registration Statement following the earlier of (i) the expiration
of the final Designated Period (as such period may be extended pursuant to
Section 2.4(c)) and (ii) the date on which Ameritrade shall have sold all of
the Hedge Shares.
(e) Indemnification and Contribution. The provisions of
Section 2.10 hereof shall apply to the Ameritrade Registration Statement and
any sales of Hedge Shares made thereunder as if Ameritrade were a Selling
Holder (and the applicable Holder's Representative) and as if the Hedge Shares
were Registrable Securities. For the avoidance of doubt, the provisions of this
Section 2.4(e) and such Section 2.10 as they apply to Ameritrade shall survive
the termination of this Agreement.
(f) Miscellaneous. The provisions of Sections 2.6, 2.7
(other than clause (p) thereunder), 2.11 and 2.14 hereof shall apply to the
Ameritrade Registration Statement to the extent necessary to permit sales to be
made under the Ameritrade Registration Statement during Designated Periods and
to any sales of Hedge Shares made thereunder as if Ameritrade were a Selling
Holder (and the applicable Holder's Representative) and as if the Hedge Shares
were Registrable Securities.
2.5. Selection of Underwriters. In the event that any
registration pursuant to Section 2.1 or offering under a registration pursuant
to Section 2.3 shall involve, in whole or in part, an underwritten offering,
the two Holders that have requested the inclusion of the largest number of
Registrable Securities in such registration or offering pursuant to Sections
2.1 or 2.3 shall have the right to designate an underwriter or underwriters in
accordance with the provisions of the following two sentences. No later than
three Business Days following the date of delivery to Instinet of the
applicable Demand Notice or Shelf Underwriting Notice, Instinet shall deliver,
in writing, to the Holders' Representatives a list (the "List") of at least
five internationally recognized investment banking firms ranked in the top ten
in the past year for equity underwritings by Thomson Financial Securities Data
(or such similar ranking service if such ranking service ceases to exist other
than by reason of merger, reorganization or consolidation or other
acquisition). No later than two Business Days following the end of either (x)
the 15 Business Day period referred to in Section 2.2(a) or 2.1(a)(viii), or
(y) the five Business Day period referred to in Section 2.3(e)(A), as
applicable, Instinet shall notify the Holders' Representative(s) representing
the two Holders that have requested the inclusion of the largest number of
Registrable Securities in such registration of such Holders' rights under this
Section 2.5. Such two Holders shall jointly select from the List an underwriter
or underwriters and shall notify Instinet in writing of their selection of such
underwriter or underwriters no later than ten Business Days following receipt
by the applicable Holders' Representative(s) of notice from Instinet
contemplated by the preceding sentence.
25
2.6. Expenses. Except as provided herein, Instinet shall
pay all Registration Expenses with respect to a particular offering (or
proposed offering). Except as provided herein, each Holder, Ameritrade and
Instinet shall be responsible for its own fees and expenses of counsel and
financial advisors and their internal administrative and similar costs, as well
as their respective pro rata shares of underwriters' commissions and discounts,
which shall not constitute Registration Expenses.
2.7. Registration and Qualification. If and whenever
Instinet is required to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 2.1, 2.2, 2.3 or 2.4 (to the
extent set forth in Section 2.4(f)), Instinet shall as promptly as practicable:
(a) Registration Statement. Prepare and file a
registration statement under the Securities Act relating to the Registrable
Securities to be offered and use its reasonable best efforts to cause such
registration statement to become effective as promptly as practicable
thereafter; furnish to the lead underwriter or underwriters, if any, and to the
Holders' Representative of each Holder which has requested that Registrable
Securities be covered by such registration statement, prior to the filing
thereof with the SEC, a copy of the registration statement, and each amendment
thereof, and a copy of any prospectus, and each amendment or supplement thereto
(excluding amendments caused by the filing of a report under the Exchange Act),
and shall use its reasonable best efforts to reflect in each such document,
when so filed with the SEC, such comments as such Holders' Representatives
reasonably may on a timely basis propose;
(b) Amendments; Supplements. Prepare and file with the
SEC such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be (A) reasonably requested by
any Selling Holder (to the extent such request relates to information relating
to such Selling Holder), or (B) necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities until the earlier of (i) such
time as all of such Registrable Securities have been disposed of in accordance
with the intended methods of disposition set forth in such registration
statement and (ii) if a shelf registration, the expiration of the applicable
period specified in Section 2.3(a) or, in the case of the Ameritrade
Registration Statement, until the end of the last Designated Period specified
in Section 2.4(b), if not a shelf registration, the applicable period specified
in Section 2.1(c)(iii); provided, that any such required period provided for in
Section 2.3(a) or this 2.7(b) shall be extended for such number of days (x)
during any period from and including the date any written notice contemplated
by paragraph (f) below is given by Instinet until the date on which Instinet
delivers to the Holders the supplement or amendment contemplated by paragraph
(f) below or written notice that the use of the prospectus may be resumed, as
the case may be, and (y) during which the offering of Registrable Securities
pursuant to such registration statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court or by actions taken by Instinet pursuant to Section 2.3(b)(ii);
(c) Copies. Furnish to the Holders' Representatives
representing Selling Holders and to any underwriter of such Registrable
Securities such number of conformed copies of such registration statement and
of each such amendment and supplement thereto (in each case
26
including all exhibits), such number of copies of the prospectus included in
such registration statement (including each preliminary prospectus and any
summary prospectus), in conformity with the requirements of the Securities Act,
such documents incorporated by reference in such registration statement or
prospectus, and such other documents, as such Holders' Representatives or such
underwriter may reasonably request, and upon request a copy of any and all
transmittal letters or other correspondence to or received from, the SEC or any
other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange) relating
to such offering;
(d) Blue Sky. Use its reasonable best efforts to
register or qualify all Registrable Securities covered by such registration
statement under the securities or blue sky laws of such U.S. jurisdictions as
any Holders' Representative representing a Holder of Registrable Securities
included in such registration (each such Holder, a "Selling Holder") or any
underwriter of such Registrable Securities shall request, and use its
reasonable best efforts to obtain all appropriate registrations, permits and
consents in connection therewith, and do any and all other acts and things
which may be necessary or advisable to enable the Selling Holders or any such
underwriter to consummate the disposition in such jurisdictions of its
Registrable Securities covered by such registration statement; provided, that
Instinet shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any such jurisdiction wherein it is not so
qualified or to consent to general service of process in any such jurisdiction;
(e) Delivery of Certain Documents. (i) Furnish to each
Holders' Representative representing a Selling Holder and to any underwriter of
such Registrable Securities an opinion of counsel for Instinet addressed to
each Selling Holder and any underwriter of such Registrable Securities and
dated the date of the closing under the underwriting agreement (if any) (or if
such offering is not underwritten, dated the effective date of the applicable
registration statement), (ii) furnish to each Selling Holder and any
underwriter of such Registrable Securities a "cold comfort" and "bring-down"
letter addressed to each Selling Holder and any underwriter of such Registrable
Securities and signed by the independent public accountants who have audited
the financial statements of Instinet included in such registration statement,
in each such case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are customarily
covered in opinions of issuer's counsel and in accountants' letters delivered
to underwriters in underwritten public offerings of securities and such other
matters as any Holders' Representative representing a Selling Holder may
reasonably request and, in the case of such accountants' letter, with respect
to events subsequent to the date of such financial statements and (iii) cause
such authorized officers of Instinet to execute customary certificates as may
be requested by any Holders' Representative representing a Selling Holder or
any underwriter of such Registrable Securities;
(f) Notification of Certain Events; Corrections.
Promptly notify the Holders' Representatives representing Selling Holders and
any underwriter of such Registrable Securities in writing (i) of the occurrence
of any event as a result of which the registration statement or the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (ii) of any request
by the SEC or any other regulatory body or other body having
27
jurisdiction for any amendment of or supplement to any registration statement
or other document relating to such offering, and (iii) 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 any such 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;
(g) notify the Holders' Representatives representing
Selling Holders and the lead underwriter or underwriters, if any, and (if
requested) confirm such advice in writing, as promptly as reasonably
practicable after notice thereof is received by Instinet (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 comments by the SEC, (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 Instinet 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;
(h) use its reasonable best efforts to prevent the entry
of, or obtain as promptly as reasonably practicable 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;
(i) promptly incorporate in a prospectus supplement or
post-effective amendment to the applicable registration statement such
information as the lead underwriter or underwriters, if any, or the Holders
holding 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 promptly as reasonably practicable
after being notified of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(j) use its reasonable 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;
(k) cooperate with each Selling Holder 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;
(l) upon the request of any Selling 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 Selling
Holder's shares of Common Stock from a Shelf Registration Statement, as
requested by such Selling Holder;
28
(m) Listing. Use its reasonable best efforts to cause
all such Registrable Securities registered pursuant to such registration to be
listed and remain on each securities exchange and automated interdealer
quotation system on which similar securities issued by Instinet are then listed;
(n) Transfer Agent; Registrar; CUSIP Number. Provide a
transfer agent and registrar for all Registrable Securities registered pursuant
to such registration and a CUSIP number for all such Registrable Securities, in
each case not later than the effective date of the applicable registration
statement;
(o) Compliance; Earnings Statement. Otherwise use its
reasonable best efforts to comply with all applicable rules and regulations of
the SEC, and make available to each Holders' Representative representing a
Selling Holder, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than eighteen
months, beginning with the first month after the effective date of the
applicable registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
(p) Road Shows. To the extent reasonably requested by
the lead or managing underwriters in connection with an underwritten offering
pursuant to Section 2.1 (including a Shelf Underwritten Offering pursuant to
Section 2.3), send appropriate officers of Instinet to attend any "road shows"
scheduled in connection with any such underwritten offering, with all
out-of-pocket costs and expenses incurred by Instinet or such officers in
connection with such attendance to be paid by Instinet; provided, however, that
(i) officers of Instinet shall not be obligated to attend any road show
presentation unless the aggregate fair market value of the Registrable
Securities included in the offering is at least $50,000,000 (based upon the
closing price of the relevant security on the trading day prior to the date of
related Demand Notice) and (ii) officers of Instinet shall only be obligated to
attend, and Instinet shall only be obligated to pay such road show expenses in
connection with, a total of four such offerings requested by Group R Holders
and a total of four such offerings requested by Group M1 Holders and Group M2
Holders, collectively;
(q) Stock Certificates. Unless the relevant securities
are issued in book-entry form, furnish for delivery in connection with the
closing of any offering of Registrable Securities pursuant to a registration
effected pursuant to Sections 2.1, 2.2, 2.3 or 2.4 unlegended certificates
representing ownership of the Registrable Securities being sold in such
denominations as shall be requested by any Holders' Representative representing
a Selling Holder or the underwriters of such Registrable Securities (it being
understood that the Selling Holders will use their reasonable best efforts to
arrange for delivery to the Depository Trust Company); and
(r) use its reasonable best efforts to take all other
steps necessary to effect the registration of the Registrable Securities
contemplated hereby.
2.8. Conversion of Other Securities, Etc. In the event
that any Group R Holder offers any options, rights, warrants or other
securities issued by it or any other Person that are offered with, convertible
into or exercisable or exchangeable for any Registrable Securities, the
29
Registrable Securities underlying such options, rights, warrants or other
securities shall continue to be eligible for registration pursuant to Sections
2.1, 2.2 and 2.3.
2.9. Underwriting; Due Diligence. (a) If requested by the
underwriters for any underwritten offering of Registrable Securities pursuant
to a registration requested under this Article II, Instinet shall enter into an
underwriting agreement with such underwriters for such offering, which
agreement will contain such representations and warranties by Instinet and such
other terms and provisions as are customarily contained in underwriting
agreements of Instinet to the extent relevant and as are customarily contained
in underwriting agreements generally with respect to secondary distributions to
the extent relevant, including, without limitation, indemnification and
contribution provisions substantially to the effect and to the extent provided
in Section 2.10, and agreements as to the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section
2.7(e). The Selling Holders on whose behalf the Registrable Securities are to
be distributed by such underwriters shall be parties to any such underwriting
agreement and the representations and warranties by, and the other agreements
on the part of, Instinet to and for the benefit of such underwriters, shall
also be made to and for the benefit of such Selling Holders. Such underwriting
agreement shall also contain such representations and warranties by such
Selling Holders and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions,
when relevant, including, without limitation, indemnification and contribution
provisions substantially to the effect and to the extent provided in Section
2.10. No Holder shall be required in any such underwriting agreement or related
documents to make any representations or warranties to or agreements with
Instinet or the underwriters other than customary representations, warranties
or agreements regarding such Holder's title to Registrable Securities and any
written information provided by the Holder to Instinet expressly for inclusion
in the related registration statement, provided that this sentence shall not
apply in the case of a Holder's participation in a registration initiated for
Instinet's account.
(b) In connection with the preparation and filing of
each registration statement registering Registrable Securities under the
Securities Act pursuant to this Article II, Instinet shall make available upon
reasonable notice at reasonable times and for reasonable periods for inspection
by each Holders' Representative representing Selling Holders, 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 any Selling Holder or any managing underwriter, all
pertinent financial and other records, pertinent corporate documents and
properties of Instinet, and cause all of Instinet's officers, directors and
employees and the independent public accountants who have certified Instinet's
financial statements to make themselves available to discuss the business of
Instinet and to supply all information reasonably requested by any such Selling
Holders, managing underwriters, attorneys, accountants or agents in connection
with such registration statement as shall be necessary to enable them to
exercise their due diligence responsibility (subject to entry by each party
referred to in this clause (b) into customary confidentiality agreements in a
form reasonably acceptable to Instinet);
(c) In the case of an underwritten offering requested by
Holders pursuant to Section 2.1 or Section 2.3, the price, underwriting
discount and other financial terms for the Registrable Securities of the
related underwriting agreement shall be determined by the Holders
30
holding a majority of such Registrable Securities included in the underwritten
offering. In the case of any underwritten offering of securities by Instinet
pursuant to Section 2.2, such price, discount and other terms shall be
determined by Instinet, subject to the right of Holders to withdraw their
Registrable Securities from the registration pursuant to 2.2(b)(ii).
(d) Subject to Section 2.9(a), no Person may participate
in an underwritten offering unless such Person (i) agrees to sell such Person's
securities on the basis provided in any underwriting arrangements approved by
the Persons entitled to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreement and other documents reasonably required under the terms of such
underwriting arrangements.
2.10. Indemnification and Contribution. (a) Indemnification
by Instinet. In the case of each offering of Registrable Securities made
pursuant to this Article II, Instinet agrees to indemnify and hold harmless, to
the extent permitted by law, each Selling Holder, each underwriter of
Registrable Securities so offered and each Person, if any, who controls or is
alleged to control (within the meaning set forth in the Securities Act) any of
the foregoing Persons, the Affiliates of each of the foregoing, and the
officers, directors, partners, employees and agents of each of the foregoing,
against any and all losses, liabilities, costs (including reasonable attorney's
fees and disbursements), claims and damages, joint or several, to which they or
any of them may become subject, under the Securities Act or otherwise,
including any amount paid in settlement of any litigation commenced or
threatened, insofar as such losses, liabilities, costs, claims and damages (or
actions or proceedings in respect thereof, whether or not such indemnified
Person is a party thereto) arise out of or are based upon any untrue statement
by Instinet or alleged untrue statement by Instinet of a material fact
contained in the registration statement (or in any preliminary, final or
summary prospectus included therein) or in any offering memorandum or other
offering document relating to the offering and sale of such Registrable
Securities prepared by Instinet or at its direction, or any amendment thereof
or supplement thereto, or in any document incorporated by reference therein, or
any omission by Instinet or alleged omission by Instinet 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 Instinet shall not be liable to any Person in any such case to the extent
that any such loss, liability, cost, claim or damage arises out of or relates
to any untrue statement or alleged untrue statement, or any omission, if such
statement or omission shall have been made in reliance upon and in conformity
with information relating to such Person, a Selling Holder, an Other Holder
with securities included in such registration statement or underwriter
furnished to Instinet by or on behalf of such Person, Selling Holder, Other
Holder or underwriter expressly for inclusion in the registration statement (or
in any preliminary, final or summary prospectus included therein), offering
memorandum or other offering document, or any amendment thereof or supplement
thereto. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of any such Person, Selling Holder, or any
underwriter and shall survive the transfer of such securities. The foregoing
indemnity agreement is in addition to any liability that Instinet may otherwise
have to each Selling Holder, or underwriter of the Registrable Securities, any
controlling person of any of the foregoing, any Affiliate of any of the
foregoing or the officers, directors, partners, employees and agents of each of
the foregoing.
31
(b) Indemnification by Selling Holders and Underwriters.
In the case of each offering made pursuant to this Agreement, each Selling
Holder, by exercising its registration rights hereunder, and each underwriter
agrees to indemnify and hold harmless, to the extent permitted by law,
Instinet, each underwriter who participates in such offering (or each other
underwriter, in the case of indemnification by an underwriter), each Selling
Holder (or each other Selling Holder, in the case of indemnification by a
Selling Holder), and each Person, if any, who controls or is alleged to control
(within the meaning set forth in the Securities Act) any of the foregoing, any
Affiliate of any of the foregoing, and the officers, directors, partners,
employees and agents of each of the foregoing, against any and all losses,
liabilities, costs (including reasonable attorney's fees and disbursements),
claims and damages to which they or any of them may become subject, under the
Securities Act or otherwise, including any amount paid in settlement of any
litigation commenced or threatened, insofar as such losses, liabilities, costs,
claims and damages (or actions or proceedings in respect thereof, whether or
not such indemnified Person is a party thereto) arise out of or are based upon
any untrue statement or alleged untrue statement by such Selling Holder or such
underwriter, as the case may be, of a material fact contained in the
registration statement (or in any preliminary, final or summary prospectus
included therein) or in any offering memorandum or other offering document
relating to the offering and sale of such Registrable Securities prepared by
Instinet or at its direction, or any amendment thereof or supplement thereto,
or any omission by such Selling Holder or such underwriter, as the case may be,
or alleged omission by such Selling Holder or such underwriter, as the case may
be, of 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, but in
each case only to the extent that such untrue statement of a material fact is
contained in, or such material fact is omitted from, information relating to
such Selling Holder or such underwriter, as the case may be, furnished to
Instinet by or on behalf of such Selling Holder or such underwriter, as the
case may be, expressly for inclusion in such registration statement (or in any
preliminary, final or summary prospectus included therein), offering memorandum
or other offering document, or any amendment thereof or supplement thereto. The
foregoing indemnity is in addition to any liability which such Selling Holder
or such underwriter, as the case may be, may otherwise have to Instinet, any
underwriter participating in such offering, the Selling Holders, any
controlling persons of any of the foregoing, any Affiliate of any of the
foregoing, or the directors, officers, partners, employees and agents of each
of the foregoing. In no event shall the liability of any Selling Holder
hereunder be greater in amount than the dollar amount of the net proceeds
received by such Selling Holder under the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Indemnification Procedures. Each party entitled to
indemnification under this Section 2.10 shall give notice to the party required
to provide indemnification promptly after such indemnified party has actual
knowledge that a claim is to be made against the indemnified party as to which
indemnity may be sought, and shall permit the indemnifying party to assume the
defense of such claim or litigation resulting therefrom and any related
settlement and settlement negotiations, subject to the limitations on
settlement set forth below; provided, that counsel for the indemnifying party,
who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the indemnified party (whose approval shall not
unreasonably be withheld), and the indemnified party may participate in such
defense at such party's expense; and provided, further, that the failure of any
indemnified party to give notice as
32
provided herein shall not relieve the indemnifying party of its obligations
under this Section 2.10, to the extent such failure is not materially
prejudicial. Notwithstanding the foregoing, an indemnified party shall have the
right to retain separate counsel, with the reasonable fees and expenses of such
counsel being paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel or if the
indemnifying party has failed to assume the defense of such action. No
indemnified party shall enter into any settlement of any litigation commenced
or threatened with respect to which indemnification is or may be sought without
the prior written consent of the indemnifying party (such consent not to be
unreasonably withheld) unless the indemnifying party has failed to assume the
defense of such action or employ counsel reasonably satisfactory to the
indemnified party. No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each indemnified party, consent
to entry of any judgment or enter into any settlement that does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, reasonably satisfactory to the indemnified
party, from all liability in respect to such claim or litigation. Each
indemnified party shall furnish such information regarding itself or the claim
in question as an indemnifying party may reasonably request in writing and as
shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(d) Contribution. If the indemnification provided for in
this Section 2.10 shall for any reason be unavailable (other than in accordance
with its terms) to an indemnified party in respect of any loss, liability,
cost, claim or damage referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the amount paid
or payable by such indemnified party as a result of such loss, liability, cost,
claim or damage in such proportion as shall be appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other with respect to the statements or omissions which resulted
in such loss, liability, cost, claim or damage as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party on the one hand or the indemnified party on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission,
but not by reference to any indemnified party's stock ownership in Instinet.
The amount paid or payable by an indemnified party as a result of the loss,
cost, claim, damage or liability, or action in respect thereof, referred to
above in this paragraph (d) shall be deemed to include, for purposes of this
paragraph (d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. 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.
Notwithstanding anything in this Section 2.10(d) to the contrary, no
indemnifying party (other than Instinet) shall be required pursuant to this
Section 2.10(d) 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.
33
(e) Indemnification/Contribution under State Law.
Indemnification and contribution similar to that specified in the preceding
paragraphs of this Section 2.10 (with appropriate modifications) shall be given
by Instinet and the Selling Holders and underwriters with respect to any
required registration or other qualification of securities under any state law
or regulation or governmental authority.
(f) Obligations Not Exclusive. The obligations of the
parties under this Section 2.10 shall be in addition to any liability which any
party may otherwise have to any other party.
(g) Survival. For the avoidance of doubt, the provisions
of this Section 2.10 shall survive any termination of this Agreement and the
withdrawal by any Person from this Agreement pursuant to Section 3.12.
2.11. Information by Holder. Each Holder shall furnish to
Instinet such information regarding such Holder and the distribution proposed
by such Holder as Instinet may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Article II. Instinet shall have the right to
exclude from the registration any Holder that does not comply with this Section
2.11.
2.12. Rule 144 and Rule 145. Instinet shall use its
reasonable best efforts to ensure that the conditions to the availability of
Rule 144 and Rule 145 set forth in paragraph (c) of Rule 144 shall be
satisfied. Instinet agrees to use its reasonable best efforts to file with the
SEC in a timely manner all reports and other documents required of Instinet
under the Securities Act and the Exchange Act, at any time after it has become
subject to such reporting requirements. Upon the request of any Holders'
Representative on behalf of any Holder and for so long as such information is a
necessary element of such Holder's ability to avail itself of Rule 144 or Rule
145, Instinet will deliver to such Holders' Representative (i) a written
statement as to whether it has complied with such requirements and (ii) a copy
of the most recent annual or quarterly report of Instinet, and such other
reports and documents so filed as a Holder may reasonably request in availing
itself of any rule or regulation of the SEC allowing a Holder to sell any such
securities without registration.
2.13. Holdback Agreement. (a) General. If any registration
pursuant to a Demand Request or a primary offering for Instinet's own account
shall be in connection with an underwritten public offering of Registrable
Securities (other than a Shelf Underwritten Offering), each Holder that,
together with its Affiliates, holds more than 1% of the Total Voting Power of
Instinet at the time of such registration agrees not to effect any public sale
or distribution, including any sale under Rule 144 or Rule 145, of any equity
security of Instinet or any security convertible into or exchangeable or
exercisable for any equity security of Instinet, (otherwise than through the
registered public offering then being made), within 7 days prior to or 90 days
(or such lesser period as the lead or managing underwriters may permit) after
the effective date of such registration statement (the "Lock-Up Period");
provided that each such Holder shall only be bound so long as (i) each Instinet
Transferee, (ii) each director and executive officer of Instinet and (iii) each
other such Holder is similarly bound. Instinet hereby also agrees to be
subject to the restrictions set forth in the preceding sentence; provided that
Instinet shall not be so restricted from effecting any public sale or
distribution of any security in connection with any
34
merger, acquisition, exchange offer, subscription offer, dividend reinvestment
plan or stock option or other executive or employee benefit or compensation
plan. Each such agreement referred to in this Section 2.13 may be subject to
such customary exceptions as agreed to by the lead underwriter. A party subject
to the provisions of this Section 2.13(a) may not, during any Lock-Up Period
applicable to such party, otherwise transfer any of its Registrable Securities
unless the transferee agrees to be bound solely during such Lock-Up Period by
the terms of this Section 2.13(a) to the same extent as the transferor (it
being understood that no rights shall be transferred to the transferee under
this Agreement without compliance with Section 3.9(b)).
(b) Instinet Transferees. Instinet agrees to require each
Instinet Transferee to agree not to effect any public sale or distribution,
including any sale under Rule 144 or Rule 145, of any equity security of
Instinet or any security convertible into or exchangeable or exercisable for
any equity security of Instinet (otherwise than through the registered public
offering then being made), within 7 days prior to or 90 days (or such lesser
period as the lead or managing underwriters may permit) after the effective
date of the registration statement (or the commencement of the offering to the
public of such Registrable Securities in the case of Rule 415 Offerings) for
any registration pursuant to a Demand Request or a primary offering for
Instinet's own account made in connection with an underwritten public offering
of Registrable Securities (other than a Shelf Underwritten Offering).
2.14. Suspension of Sales. Each Holders' Representative
shall give prompt notice to the Holders it represents of any notice received
from Instinet of the occurrence of any event of the kind described in Section
2.7(f) with respect to a registered offering pursuant to this Agreement in
which any such Holders are participating. Each Holder participating in such
registration agrees that, upon receipt of such notice from its Holders'
Representative, such Holder will discontinue disposition of its Registrable
Securities pursuant to such registration statement until receipt by its
Holders' Representative of the copies of the supplemented or amended prospectus
contemplated by Section 2.7(f), or until such Holder's Representative is
advised in writing by Instinet that the use of the prospectus may be resumed,
as the case may be, and, if so directed by Instinet, such Holder will deliver
to Instinet (at Instinet's expense) all copies, other than permanent file
copies then in such Holder's possession, of the prospectus covering such
Registrable Securities which are current at the time of the receipt of the
notice of the event described in Section 2.7(f).
ARTICLE III
MISCELLANEOUS
3.1. Amendments. This Agreement may be amended,
supplemented or otherwise modified only by a writing duly executed by or on
behalf of Instinet and the Holders holding a majority of the Registrable
Securities held by each Group affected by such amendment, each Group to consent
separately to any such amendment that affects such Group, provided, however,
that (x) an amendment that adversely affects any Holder disproportionately to
other Holders shall not be effective unless duly executed by or on behalf of
such Holder (it being understood that a Holder shall not be deemed to be
disproportionately affected by an amendment by virtue of the fact that such
Holder holds a greater number of Registrable Securities than other Holders) and
(y) no amendment to Sections 2.4, 2.6, 2.7 (other than clause (p) thereof),
2.10, 2.11, 2.14 or Article III that adversely affects Ameritrade, shall be
made
35
without the consent of Ameritrade; provided, that no approval by the Holders
shall be required for any amendment to this Agreement that solely affects
Ameritrade by reducing Ameritrade's rights hereunder. No waiver by any party of
any of the provisions hereof shall be effective unless explicitly set forth in
writing and executed by Instinet, in the case of a waiver of rights of
Instinet, and/or the Holders holding a majority of the Registrable Securities
held by a Group, in the case of a waiver of rights of such Group, provided,
however, that a waiver that adversely affects any Holder disproportionately to
other Holders shall not be effective unless duly executed by or on behalf of
such Holder (it being understood that a Holder shall not be deemed to be
disproportionately affected by a waiver by virtue of the fact that such Holder
holds a greater number of Registrable Securities than other Holders). No waiver
by Ameritrade of any provision hereof shall be effective against Ameritrade
unless explicitly set forth in a writing and executed by Ameritrade. Except as
provided in the preceding two sentences, no action taken pursuant to this
Agreement, including without limitation, any investigation by or on behalf of
any party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representations, warranties, covenants or
agreements contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach. A Group F Holders' Terms Schedule shall not be deemed to
be an amendment to this Agreement if such Group F Holders' Terms Schedule sets
forth only those provisions referenced in Sections 2.1(a)(i), 2.1(a)(iv)(C),
2.1(a)(vi)(C), 2.3(a)(ii) and in the definition of "Group F Cutback
Percentage", and such provisions are in accordance with all other terms and
restrictions of this Agreement.
3.2. Severability. If any provision of this Agreement or
the application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement or such provision
of the application of such provision to such party or circumstances, other than
those to which it is so determined to be invalid, illegal or unenforceable,
shall remain in full force and effect to the fullest extent permitted by law
and shall not be affected thereby, unless such a construction would be
unreasonable.
3.3. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given (x) on the same day if
delivered personally or telecopied (which is confirmed and with a copy
delivered by registered or certified mail) or (y) if dispatched by a nationally
recognized overnight courier service to a party at the address indicated below
(or at such other address for a party as shall be specified by like notice), on
the first business day on which such nationally recognized courier service
guarantees delivery:
(a) if to Instinet, to:
Instinet Group Incorporated
Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopy No.: 000-000-0000
36
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy No.: 212-225-3999
(b) If to any Group R Holder, to the Group R Holders'
Representative at:
Reuters Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxxxx
XX0X 0XX
Attention: General Counsel
Telecopy No.: 011-44-207-542-5896
with a copy to:
Reuters America Inc.
The Reuters Building
Three Times Square
New York, New York 10036
Attention: General Counsel
Telecopy No: 000-000-0000
and to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
Telecopy No.: 000-000-0000
(c) If to any Group M1 Holder, Group M2/A Holder or Group
M2/F Holder, to the Group M1 Holders' Representative,
the Group M2/A Holders' Representative or the Group
M2/F Holders' Representative, as applicable, at the
address and telecopy number set forth beneath such
Holders' Representative's name on Exhibit A hereto;
(d) If to any Group F Holder, to the Group F Holders'
Representative at the address and telecopy number set
forth beneath such Holders' Representative's name on
Exhibit A hereto; and
37
(e) If to Ameritrade, to:
Ameritrade Holding Corporation
000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 00000
Telecopy No: 000-000-0000
Attention: Xxxxx X.X. Xxxxxx, Esq.
with a copy to:
Mayer, Brown, Xxxx & Maw
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No: 000-000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties; provided, however, that except as expressly
provided herein, Instinet shall only be required to deliver notices hereunder
to the Holders' Representatives, and not to any individual Holder.
3.4. Further Assurances. Each party hereto shall execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such instruments and take such other action as may be reasonably necessary or
advisable to carry out their obligations under this Agreement and under any
exhibit, document or other instrument delivered pursuant hereto.
3.5. Governing Law. This Agreement shall be governed by,
and construed and interpreted in accordance with, the law of the State of New
York applicable to contracts made and to be performed entirely in such State.
3.6. Entire Agreement. Except as otherwise provided
herein, this Agreement constitutes the entire understanding of the parties
hereto with respect to the subject matter hereof. Without limiting the
generality of the foregoing, (a) with respect to Instinet and Ameritrade, this
Agreement replaces in its entirety any agreement between Ameritrade (or Datek
as its predecessor) and Island or any of its Affiliates (including The Island
ECN, Inc.) with respect to registration rights relating to the Hedge Shares,
including, without limitation, Section 4(e) of each Hedge Option Agreement,
which are hereby terminated and of no further effect; (b) (i) Ameritrade, each
Group M1 Holder and each Group M2 Holder agree that the Island Registration
Rights Agreement is hereby terminated (A) with respect to itself and each of
its Subsidiaries and (B) to the fullest extent permitted by Section 9 thereof,
with respect to each other party thereto and (ii) with respect to Ameritrade
and each Holder, this Agreement replaces in its entirety any and all other
agreements relating to registration rights, whether written or oral, disclosed
or undisclosed, between (A) any such Person and each of its Subsidiaries on the
one hand and (B) Island or any of its Affiliates (including The Island ECN,
Inc.) on the other, and, in each case, all such other agreements are hereby
terminated and of no further effect, and (c) by executing and delivering this
Agreement, Reuters Limited and Instinet agree that Article III of
38
the Corporate Agreement shall have no further force or effect except that the
registration rights provided in Article III of the Corporate Agreement shall
survive the entry into of this Agreement until the expiration or termination of
the ProTrader Registration Rights Agreement, provided, that any right under
such Article III may be exercised by the Holders party to the Corporate
Agreement only with the consent of (1) Instinet, (2) the Holders holding a
majority of the Registrable Securities held by the Group M1 Holders and (3) the
Holders holding a majority of the Registrable Securities held by the Group M2
Holders, provided that no such consent of any Group M2 Holder shall be required
if the Group M2 Holders (x) are invited to include Registrable Securities held
by such Holders in any such applicable registration on a pari passu basis with,
and otherwise on terms as favorable as terms applicable to, the Holders party
to the Corporate Agreement and the Group M1 Holders and (y) otherwise receive
the same additional benefits, if any, granted to the Group M1 Holders in
connection with the granting by the Group M1 Holders of their consent to such
exercise. Instinet agrees not to amend or waive any term of the ProTrader
Registration Rights Agreement (x) in any way that would extend the termination
or expiration of such Agreement without the consent of the Holders holding a
majority of the Registrable Securities held by each Group and the consent of
Ameritrade, (y) to grant the holders thereunder the right to demand an
additional registration without the consent of the Holders holding a majority
of the Registrable Securities held by each Group and the consent of Ameritrade,
or (z) in any way that would materially adversely affect the exercise of the
rights of any Group or Ameritrade under this Agreement without the consent of
the Holders holding a majority of the Registrable Securities of such Group or
Ameritrade, as applicable. This Section 3.6 shall survive the termination of
this Agreement and/or the withdrawal by any Group R Holder from this Agreement.
3.7. Jurisdiction; Specific Performance. The parties to
this Agreement agree that jurisdiction and venue in any action brought by any
party hereto pursuant to this Agreement shall properly lie and shall be brought
in any federal or state court located in the Borough of Manhattan, City and
State of New York. By execution and delivery of this Agreement, each party
hereto irrevocably submits to the jurisdiction of such courts for itself or
herself and in respect of its or her property with respect to such action. Each
party hereto hereby irrevocably agrees and consents to service of process for
all purposes under this Agreement at the address specified for such party in,
or in accordance with, Section 3.3. Any service made on such party hereto shall
be effective when delivered regardless of whether notice thereof is given to
the affected party. The parties hereto hereby irrevocably agree that venue
would be proper in such court, and hereby irrevocably waive any objection that
such court is an improper or inconvenient forum for resolution of such action.
The parties hereto acknowledge and agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. The parties
hereto agree to waive any requirement for the posting of any bond in connection
with such remedy.
3.8. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original instrument,
but all of which together shall constitute but one and the same agreement.
39
3.9. Successors; Assigns; Transferees; Limitations on
Transfer. (a) Successors; Assigns. The provisions of this Agreement shall be
binding upon and accrue to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns.
(b) Transferees. Instinet may not assign any of its
rights or obligations hereunder (other than to a successor entity to Instinet)
without the prior written consent of the Holders holding a majority of the
Registrable Securities held by each Group. Subject to Section 2.13(a), a Holder
may transfer its rights and obligations hereunder in connection with a transfer
of Registrable Securities, such assignment to be effective upon receipt by
Instinet of (i) written notice from the transferring Holder stating the name
and address of any transferee and identifying the number of Registrable
Securities with respect to which the rights under this Agreement are being
transferred and the nature of the rights so transferred and (ii) a duly
executed Joinder Agreement from such transferee to be bound by all applicable
terms of this Agreement as a member of the Group of which the transferring
Holder was a member. Ameritrade may not assign any of its rights or obligations
under this Agreement, other than to a successor entity to Ameritrade.
3.10. Third Party Beneficiaries. Except as set forth in
Section 2.10 and this Section 3.10, nothing contained in this Agreement,
express or implied, is intended to confer upon any other Person or entity any
benefits, rights or remedies.
3.11. Future Holders; No Other Registration Rights. (a) In
connection with a Qualifying Transaction, Instinet may cause the addition of
Future Holders as Group F Holders hereunder in accordance with the terms hereof.
(b) If Instinet at any time grants to any Person any
rights to request Instinet to effect the registration (whether on demand or by
"piggyback" rights or otherwise) under the Securities Act of any equity
securities of Instinet, or securities convertible into or exchangeable for such
equity securities on any terms more favorable to such Persons than the rights
granted to the Holders hereunder, the Holders shall be deemed to be granted
such more favorable rights and benefits and this Agreement shall be deemed
amended or supplemented to the extent necessary to grant the Holders such more
favorable rights and benefits. Instinet agrees that it will not enter into, or
cause or permit any Instinet Entity to enter into, any agreement which
conflicts with or limits (other than by the grant of more favorable rights in
accordance herewith) or prohibits the exercise of the rights granted to the
Holders in this Agreement.
3.12. Withdrawal. At any time, upon written notice to
Instinet and the Group R Holders' Representative, any Holder may elect to
terminate this Agreement with respect to itself and its Affiliates from that
date forward; provided, that a Holder so terminating this Agreement shall
nonetheless (i) be obligated under Section 2.13(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, 2.2 or 2.3 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 2.10 above with
respect to any prior registration or Pending Underwritten Offering. Upon
transmission of such notice, such Holder and its Affiliates shall cease to be
considered Holders hereunder and shall no longer have any
40
rights under this Agreement, except as provided in the preceding sentence.
Instinet shall provide copies of any notice received pursuant to this Section
3.12 to the Holders' Representatives as promptly as practicable following
receipt thereof.
3.13. Effectiveness; Term. (a) Notwithstanding anything in
this Agreement to the contrary, this Agreement shall become effective only upon
the Effective Time.
This Agreement shall terminate with respect to any particular
Group M1 Holder or Group M2 Holder upon the earlier of (i) the date as of which
such Group M1 Holder or Group M2 Holder, as applicable, holds no Registrable
Securities and (ii) the sixth anniversary of the Effective Time (at which time
this Agreement shall terminate with respect to all Group M1 Holders and Group
M2 Holders). This Agreement shall terminate with respect to any particular
Group F Holder upon the earlier of (i) the date as of which such Group F Holder
holds no Registrable Securities and (ii) the date set forth in the applicable
Group F Holders' Terms Schedule. This Agreement shall terminate with respect to
any particular Group R Holder as of the date on which such Group R Holder holds
no Registrable Securities. This Agreement, to the extent applicable to
Ameritrade, shall terminate as to Ameritrade following the final Designated
Period provided for in Section 2.4(a) or upon the occurrence of the events
described in Section 2.4(d).
3.14. Island Securityholders Agreement. Each of the Group
M1 Holders and Group M2 Holders that is a party to the Amended and Restated
Securityholders Agreement, dated as of December 15, 2000, among The Island ECN,
Inc. and the holders of shares and warrants of The Island ECN named therein, as
amended (the "Island Securityholders Agreement") agrees that the Island
Securityholders Agreement is hereby terminated. Each of such Group M1 Holders
and Group M2 Holders represents and warrants that such Group M1 Holders and
Group M2 Holders are, collectively, holders of at least a majority of the
Shares (as defined in the Island Securityholders Agreement) of Class A-1 Common
Stock (as defined in the Island Securityholders Agreement) owned by Class A-1
Holders (as defined in the Island Securityholders Agreement).
41
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
INSTINET GROUP INCORPORATED
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Acting President and CEO
REUTERS LIMITED
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Attorney in Fact
FINANZAS B.V., (as assignee of Europatweb N.V.)
By: /s/ M.C. van der Sluijs-Xxxxxx
-------------------------------------------
Name: M.C. van der Sluijs-Xxxxxx
Title: Managing Director
42
TA/ADVENT VIII, L.P.
By: TA Associates VIII, LLC,
its General Partner
By: TA Associates, Inc., its Manager
By: /s/ C. Xxxxx Xxxxxx
-------------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Managing Director
TA ATLANTIC & PACIFIC IV, L.P.
By: TA Associates AP IV Partners, L.P.,
its General Partner
By: TA Associates, Inc., its General Partner
By: /s/ C. Xxxxx Xxxxxx
-------------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Managing Director
TA INVESTORS, LLC
By: TA Associates, Inc., its Manager
By: /s/ C. Xxxxx Xxxxxx
----------------------
Name: C. Xxxxx Xxxxxx
Title: Managing Director
ADVENT ATLANTIC & PACIFIC III, L.P.
43
By: TA Associates AAP III Partners, L.P.,
its General Partner
By: TA Associates, Inc., its General Partner
By: /s/ C. Xxxxx Xxxxxx
----------------------
Name: C. Xxxxx Xxxxxx
Title:
TA EXECUTIVES FUND, LLC
By: TA Associates, Inc., its Manager
By: /s/ C. Xxxxx Xxxxxx
----------------------
Name: C. Xxxxx Xxxxxx
Title:
TA IX, L.P.
By: TA Associates IX, LLC, its General Partner
By: TA Associates, Inc., its Manager
44
By: /s/ C. Xxxxx Xxxxxx
----------------------
Name: C. Xxxxx Xxxxxx
Title:
1998 GPH FUND, LLC
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Member
GPH DT PARTNERS
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Member
0000 XXXXXXXX XXXXX FUND, LLC
45
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Member
BCIP ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP TRUST ASSOCIATES II
BCIP TRUST ASSOCIATES II-B
By: Xxxx Capital Investors, LLC,
their Managing Partner
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
XXXX CAPITAL FUND VII, LLC
By: Xxxx Capital Fund VII, L.P.,
its Sole Member
By: Xxxx Capital Partners VII, L.P.,
its General Partner
By: Xxxx Capital Investors, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
XXXX CAPITAL VII COINVESTMENT FUND, LLC
By: Xxxx Capital VII Coinvestment Fund, L.P.,
its Sole Member
By: Xxxx Capital Partners VII, L.P.,
its General Partner
By: Xxxx Capital Investors, LLC,
its General Partner
46
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
BCI DATEK INVESTORS, LLC
By: Xxxx Capital Partners VII, L.P.,
its Administrative Member
By: Xxxx Capital Investors, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
SILVER LAKE PARTNERS, L.P.
By: Silver Lake Technology Associates, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Member
SILVER LAKE INVESTORS, L.P.
By: Silver Lake Technology Associates, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Member
SILVER LAKE TECHNOLOGY INVESTORS, L.L.C.
By: Silver Lake Technology Management, L.L.C.,
its Managing Member
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Member
47
ADVENT GLOBAL GECC III LIMITED PARTNERSHIP
By: Advent Global Management Limited Partnership,
its General Manager
By: Advent International Limited Partnership,
its General Partner
By: Advent International Corporation,
its General Partner
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
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: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
48
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: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
FIRST UNION CAPITAL PARTNERS, LLC
By: Advent International Corporation,
its Voting Trustee
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
GUAYACAN PRIVATE EQUITY FUND LIMITED PARTNERSHIP
By: Advent International Corporation,
its Voting Trustee
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
49
Solely for purposes of
Article I, Sections 2.4,
2.6, 2.7 (except clause (p)
thereof), 2.10, 2.11 and
2.14 and Article III
hereof:
AMERITRADE HOLDING CORPORATION
By: /s/ Xxxx X. XxXxxxxx
---------------------------
Name: Xxxx X. XxXxxxxx
Title: CFO
50
EXHIBIT A
HOLDERS:
Bain Entities:
BCIP Associates II
BCIP Associates II-B
BCIP Trust Associates II
BCIP Trust Associates II-B
Xxxx Capital Fund VII, LLC
Xxxx Capital VII Coinvestment Fund, LLC
BCI Datek Investors, LLC
Silver Lake Entities:
Silver Lake Partners, L.P.
Silver Lake Investors, L.P.
Silver Lake Technology Investors, L.L.C.
TA Entities:
TA/Advent VIII, L.P.
TA Atlantic & Pacific IV, L.P.
TA Investors, LLC
Advent Atlantic & Pacific III, L.P.
TA Executives Fund, LLC
TA IX, L.P.
1998 GPH Fund, LLC
GPH DT Partners
0000 Xxxxxxxx Xxxxx Fund, LLC
Finanzas Entities:
Finanzas B.V.
Advent Entities:
Advent Global GECC III Limited Partnership
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 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
First Union Capital Partners, LLC
Guayacan Private Equity Fund Limited Partnership
HOLDERS' REPRESENTATIVES:
Group F Holders' Representative:
Name:
Address and Telecopy No. for Notices:
With copies to:
Group M1 Holders' Representative:
2
Name: TA Associates, Inc.
Address and Telecopy No. for Notices:
TA Associates, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: C. Xxxxx Xxxxxx
Telecopy No.: (000) 000-0000
With copies to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
Telecopy No.: 000-000-0000
Group M2/A Holders' Representative:
Name: Advent International Corp.
Address and Telecopy No. for Notices:
Advent International Corp.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy No.: 000-000-0000
Attention: Xxxxx Xxxxxxxx
With copies to:
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
Eighteenth and Arch Streets
Philadelphia, Pennsylvania 19103-2799
Telecopy No.: 000-000-0000
Attention: Xxxxx Xxxxxxx, Esq.
Group M2/F Holders' Representative:
Name: Finanzas B.V.
Address and Telecopy No. for Notices:
3
Xxxxxxxxxxxxx 0
Xxxxxxxxxxxxxx
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telecopy No.: 31-20-5757 127
Attention: Xxxxx van der Sluijs Xxxxxx
With copies to:
Groupe Arnault SA
00, xxxxxx Xxxxxxxxx 00000 Xxxxx
Xxxxxx
Telecopy No.: 00-0-00-00-00-00
Attention: Xxxxx X. Xxxxxx, Esq.
and
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Telecopy No.: 212-225-3999
Address and Telecopy No. for Notices:
With copies to:
4
EXHIBIT B
JOINDER
By execution of this Joinder, the undersigned agrees to become a party
to that certain Registration Rights Agreement, dated as of _____________, 2002
(the "Agreement"), by and among Instinet Group Incorporated and those
stockholders of Instinet Group Incorporated party thereto. By execution of this
Joinder, the undersigned shall have all the rights, and shall observe all the
obligations of a [Group ____ Holder] (as defined in the Agreement).
Name:_________________________
Address for Notices: With Copies to:
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
Signature:____________________
Date:_________________________
