EXHIBIT 10.4
RESTATED CONSENT AND VOTING AGREEMENT
RESTATED CONSENT AND VOTING AGREEMENT (this "Agreement") is made as of
this 16th day of May, 2002 by and among the undersigned stockholders (each a
"Stockholder" and collectively, the "Stockholders") of Datek Online Holdings
Corp., a Delaware corporation (the "Company") and Ameritrade Holding
Corporation, a Delaware corporation ("Ameritrade"). Capitalized terms not
otherwise defined herein have the meanings assigned thereto in the Merger
Agreement (as defined below).
RECITALS
WHEREAS, the parties hereto entered into an Agreement Regarding Written
Consent, dated as of April 6, 2002 (the "Original Agreement"), and they now
desire to amend and restate the Original Agreement pursuant to this Agreement;
WHEREAS, concurrently with the execution of this Agreement, Ameritrade,
the Company, Arrow Stock Holding Corporation, a Delaware corporation ("Holdco"),
Arrow Merger Corp., a Delaware corporation and a wholly-owned subsidiary of
Holdco ("A Merger Sub") and Dart Merger Corp., a Delaware corporation and a
wholly-owned subsidiary of Holdco ("D Merger Sub"), have entered into that
certain Amended and Restated Agreement and Plan of Merger, dated as of the date
hereof (as may be amended, the "Merger Agreement"), pursuant to which, among
other things, A Merger Sub will be merged into Ameritrade and D Merger Sub will
be merged into the Company (the "D Merger" and, together, the "Mergers") so that
Ameritrade and the Company will each become a wholly-owned subsidiary of Holdco
and the respective former stockholders of Ameritrade and the Company will be
issued shares of capital stock of Holdco;
WHEREAS, the Stockholders are the record and beneficial owners of
shares of the Company's Series A Convertible Preferred Stock, par value $.001
per share ("Series A Shares"), and shares of the Company's Series B Convertible
Preferred Stock, par value $.001 per share ("Series B Shares"), in the amounts
and of the types set forth opposite each Stockholder's name on Annex A (the
"Subject Shares");
WHEREAS, pursuant to Reclassification Amendment 1 (as defined in the
Merger Agreement), which shall become effective promptly after the date hereof,
each Series A Share and Series B Share will be reclassified into a Series A
Share or Series B Share, respectively, plus a number of shares of Special Voting
Common Stock specified in Reclassification Amendment 1;
WHEREAS, each Stockholder desires to waive all of its rights and claims
against the Company and the surviving corporation of the D Merger now existing
or hereafter arising, if any, pursuant to the Preferred Stock Purchase
Agreement, dated July 20, 1999, among the Company and the investors listed in
Schedule A thereto (the "Series A Purchase Agreement") and the Preferred Stock
Purchase Agreement, dated November 30, 2000, among the Company and the investors
listed in Schedule A thereto (the "Series B Purchase Agreement");
WHEREAS, in order to facilitate the transactions contemplated by the
Merger Agreement, the Stockholders desire to elect, pursuant to Section A.7 of
Article Fourth of the Fourth Amended and Restated Certificate of Incorporation
of the Company (as amended to the date hereof, the "Restated Charter"), to
convert all Subject Shares which are Series A Shares into shares of the
Company's Common Stock, par value $0.001 per share ("Common Stock") and,
pursuant to Section B.6 of Article Fourth of the Restated Charter, to convert
all Subject Shares which are Series B Shares into shares of Common Stock, the
result of which conversions will be to cause the conversion of all outstanding
Series A Shares, Series B Shares, shares of the Company's Series C Preferred
Stock, par value $0.001 per share, and shares of the Company's non-voting Common
Stock, par value $0.001 per share into shares of Common Stock.
WHEREAS, as a condition to Ameritrade's entering into the Merger
Agreement, Ameritrade has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement concurrently with the
execution of the Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Irrevocable Proxy. (a) Until this Agreement is terminated, each
Stockholder (i) hereby irrevocably agrees to vote, and/or act by written consent
with respect to, the Subject Shares, if any, owned by such Stockholder at any
annual, special or other meeting of the holders of shares of the Company's
capital stock and at any adjournment or postponement thereof or pursuant to any
written consent in lieu of a meeting, to the fullest extent that the Subject
Shares are entitled to be voted, in favor of the adoption of the Merger
Agreement, approval of the Mergers and any other transactions contemplated by
the Merger Agreement and (ii) in furtherance of the foregoing, hereby
irrevocably appoints Ameritrade, its officers, agents and nominees, with full
power of substitution, as proxy for and attorney in fact of the Stockholder to
act with respect to and to vote, and/or act by written consent with respect to,
the Subject Shares, if any, owned by the Stockholder for and in the name, place
and stead of such Stockholder at any annual, special or other meeting of the
holders of shares of the Company's capital stock and at any adjournment or
postponement thereof or pursuant to any written consent in lieu of a meeting, to
the fullest extent that the Subject Shares are entitled to be voted, in favor of
the adoption of the Merger Agreement, approval of the Mergers and any other
transactions contemplated by the Merger Agreement; provided, that Ameritrade or
its officers and nominees may exercise this irrevocable proxy only if such
Stockholder fails to comply with the terms of this Section 1(a)(i).. In all
other matters, the Subject Shares shall be voted by and in the manner determined
by the Stockholder. Each Stockholder hereby represents that he has not
heretofore granted an irrevocable proxy with respect to the Subject Shares and
hereby revokes any and all proxies which may heretofore have been granted with
respect to the Subject Shares, except as set forth in Annex A.
(b) Each Stockholder understands and acknowledges that Ameritrade is
entering into the Merger Agreement in reliance upon the Stockholder's execution
and delivery of this Agreement. Each Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 2 is given in connection with and as
an inducement for the execution by Ameritrade of the Merger Agreement and to
secure the performance of the duties of such Stockholder under this
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Agreement. Each Stockholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may not be revoked. Each Stockholder hereby
ratifies and confirms all that such proxy may lawfully do or cause to be done by
virtue hereof. This proxy is executed and intended to be irrevocable in
accordance with the provisions of the Delaware General Corporation Law.
3. Registration Rights. The Stockholders hereby approve the Summary of
Terms of Registration Rights Agreement in the form attached as Exhibit A hereto
(the "Registration Rights Term Sheet"), and agree to enter into a definitive
registration rights agreement with Holdco and certain other parties on the terms
and conditions set forth in the Registration Rights Term Sheet on or prior to
the Closing.
4. Waiver. Each Stockholder hereby irrevocably waives, with respect to
itself only, effective as of the Closing, any and all rights and claims against
the Company and the surviving corporation of the D Merger now existing or
hereafter arising, if any, pursuant to the Series A Purchase Agreement and the
Series B Purchase Agreement.
5. Conversion of Series A Shares. Pursuant to Section A.7 of Article
Fourth of the Restated Charter, each of the Stockholders beneficially owning
Series A Shares (collectively representing at least 85% of the outstanding
Series A Shares), irrevocably elects, effective as of the close of business on
the second business day preceding the expected date of the Closing under the
Merger Agreement (provided that the Merger Agreement has theretofore been
adopted by the stockholders of Ameritrade) to convert all of the issued and
outstanding Series A Shares held by such Stockholder into shares of Common
Stock; provided, however, that in the event of a valid termination of the Merger
Agreement without consummation of the transactions contemplated therein (i)
prior to the such time, this election shall be deemed cancelled, and (ii) after
the time of such conversion, the Stockholders party hereto shall take all such
steps as are necessary to cause the Company to authorize and issue to such
Stockholders the Series A Shares surrendered on such conversion in exchange for
the shares of Common Stock issued on such conversion (and any shares of capital
stock of the Company issued upon the reclassification of such shares of Common
Stock).
6. Conversion of Series B Shares. Pursuant to Section B.6 of Article
Fourth of the Restated Charter, each of the Stockholders beneficially owning
Series B Shares (collectively representing at least 75% of the outstanding
Series B Shares), irrevocably elects, effective as of the close of business on
the second business day preceding the expected date of the Closing under the
Merger Agreement (provided that the Merger Agreement has theretofore been
adopted by the stockholders of Ameritrade) to convert all of the issued and
outstanding Series B Shares held by such Stockholder into shares of Common
Stock; provided, however, that in the event of a valid termination of the Merger
Agreement without consummation of the transactions contemplated therein (i)
prior to the such time, this election shall be deemed cancelled, and (ii) after
the time of such conversion, the Stockholders party hereto shall take all such
steps as are necessary to cause the Company to authorize and issue to such
Stockholders the Series B Shares surrendered on such conversion in exchange for
the shares of Common Stock issued on such conversion (and any shares of capital
stock of the Company issued upon the reclassification of such shares of Common
Stock).
7. Representations and Warranties of the Stockholders. Each Stockholder
hereby
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represents and warrants to Ameritrade that:
(a) (i) The Subject Shares listed on Annex A opposite the Stockholder's
name are the only shares of the Company's capital stock, securities convertible
into the Company's capital stock, or other rights in respect of the Company's
capital stock (collectively, "Securities") owned of record or beneficially by
the Stockholder; (ii) except as set forth on Annex A, such Subject Shares are
owned by the Stockholder, free and clear of all liens, claims, charges and
encumbrances of any kind whatsoever except for liens, claims or charges arising
from margin or other loans from a bank or brokerage firm and except as
contemplated by this Agreement, and none of such Subject Shares is subject to
any voting trust or other agreement or arrangement (except as created by this
Agreement) with respect to the voting of such Subject Shares, except as set
forth in Annex A, and (iii) the Stockholder does not presently own any options
to purchase or rights to subscribe for or otherwise acquire any other Securities
except as set forth in Annex A.
(b) The Stockholder has full right, power and authority to execute and
deliver this Agreement and to perform all of such Stockholders' obligations
hereunder, and such execution, delivery and performance have been duly
authorized by all requisite action of the Stockholder and no other legal
proceedings are necessary therefor.
(c) This Agreement has been duly and validly executed and delivered by
the Stockholder and represents a valid and legally binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms.
(d) Except as noted on Annex A, the execution, delivery and performance
of this Agreement by the Stockholder will not constitute a violation of,
conflict with or result in a default under (i) any contract, understanding or
arrangement to which the Stockholder is a party or by which the Stockholder is
bound or require the consent of any other person or any party pursuant thereto,
(ii) any judgment, decree or order applicable to the Stockholder, or (iii) any
applicable law, statute, rule or regulation.
8. Covenants of the Stockholders. Each Stockholder hereby covenants and
agrees with Ameritrade that, until this Agreement terminates:
(a) Except for pledges in existence as of the date hereof, and except
as contemplated by the terms of this Agreement and the Stockholders Agreement,
such Stockholder shall not, and shall cause its controlled Affiliates not to,
(i) directly or indirectly sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of (collectively, a "Transfer"), or enter into any contract,
option or other agreement with respect to, or consent to, a Transfer of, any or
all of the Subject Shares; provided, however, that, with the consent of
Ameritrade (which consent shall not be unreasonably withheld), such Stockholder
may pledge or encumber any Subject Shares so long as such pledge or encumbrance
would not impair such Stockholder's ability to perform its obligations under
this Agreement; or (ii) take any action that would have the effect of
preventing, impeding, interfering with or adversely affecting its ability to
perform its obligations under this Agreement.
(b) In the event of a stock dividend or distribution, or any change in
the capital stock of the Company by reason of any stock dividend or
distribution, split-up, recapitalization,
4
combination, exchange of shares or the like (excluding the Merger), the term
"Subject Shares" shall be deemed to refer to and include the Subject Shares as
well as all such stock dividends and distributions and any securities of the
Company into which or for which any or all of the Subject Shares may be changed
or exchanged or which are received in such transaction.
(c) Such Stockholder shall not, nor shall such Stockholder permit any
controlled Affiliate of such Stockholder to, nor shall such Stockholder act in
concert with or permit any controlled Affiliate to act in concert with any
Person to, deposit any Securities in a voting trust or subject any Securities to
any arrangement or agreement with any Person with respect to the voting of such
Securities, except as expressly provided by this Agreement or the Stockholders
Agreement or as in existence as of the date hereof.
9. Termination; Amendment. This Agreement (other than Section 4 and
the provisos contained in Sections 5 and 6) shall terminate at the earlier of
the Effective Time or immediately upon any termination of the Merger Agreement
pursuant to its terms. Section 4 of this Agreement shall terminate immediately
upon any termination of the Merger Agreement pursuant to its terms. This
Agreement shall not be amended without the written consent of all parties hereto
(including Ameritrade).
10. Severability. Any term, provision, covenant or restriction
contained in this Agreement held by a court or other Governmental Body of
competent jurisdiction to be invalid, void or unenforceable shall be ineffective
to the extent of such invalidity, voidness or unenforceability, but neither the
remaining terms, provisions, covenants or restrictions contained in this
Agreement nor the validity or enforceability thereof in any other jurisdiction
shall be affected or impaired thereby. Any term, provision, covenant or
restriction contained in this Agreement that is so found to be so broad as to be
unenforceable shall be interpreted to be as broad as is enforceable.
11. [Intentionally Omitted]
12. Entire Agreement. This Agreement (including the documents and the
instruments referred to herein) constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, agreements or representations by or between the
parties, written and oral, with respect to the subject matter hereof and
thereof.
13. Successors; No Third Party Beneficiaries. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns. Nothing in this Agreement,
expressed or implied, is intended to confer upon any party, other than the
parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided herein.
14. Notices. All notices and other communications hereunder shall be in
5
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or dispatched by a nationally recognized overnight courier service to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(i) if to Ameritrade, to:
Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. XxxXxxxxx
with a copy to:
Mayer, Brown, Xxxx & Mawe
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
(ii) if to a Stockholder:
to the address, and with copies, as set
forth in Annex A.
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: F. Xxxxxxx Xxxxxxx
15. Counterparts. This Agreement may be executed in counterparts, and
each such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
16. Specific Performance. The parties hereto agree that if for any
reason Ameritrade or any Stockholder shall have failed to perform its respective
obligations under this Agreement, then the party hereto seeking to enforce this
Agreement against such non-performing party shall be entitled to specific
performance and injunctive and other equitable relief, and the parties hereto
further agree to waive any requirement for the securing or posting of any bond
in connection with the obtaining of any such injunctive or other equitable
relief. This provision is without prejudice to any other rights that any party
hereto may have against any other party hereto for any failure to perform its
obligations under this Agreement.
17. Governing Law. This Agreement shall be governed by the laws of the
6
State of New York without regard to its conflict of laws principles which might
result in the applications of the law of any other jurisdiction, except to the
extent that the Delaware General Corporation Law applies as a result of
Ameritrade being a Delaware corporation.
18. Waiver and Amendment. Any provision of this Agreement may be waived
at any time by the party that is entitled to the benefits of such provision.
This Agreement may not be modified, amended, altered or supplemented except upon
the execution and delivery of a written agreement executed by the parties
hereto.
19. Additional Subject Shares. Notwithstanding the provisions of
Section 18, in the event that any Stockholder acquires any additional
Securities, (i) such Stockholder shall promptly notify Ameritrade in writing of
such acquisition (other than in connection with Reclassification Amendment 1,
the Pre-Closing Conversion and the Pre-Closing Reclassification) and (ii) such
securities shall, without further action of the parties, be subject to the
provisions of this Agreement, and Annex A will be deemed amended accordingly.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the undersigned has executed and
delivered this Agreement, in one or more counterparts, as of the date first
above written.
STOCKHOLDERS:
FINANZAS B.V. (as assignee of Europatweb N.V.) TA/ADVENT VIII, L.P.
By: TA Associates VIII, LLC,
By: its General Partner
-------------------------------------------
Name:
Title: By: TA Associates, Inc., its Manager
By:
--------------------------------------
ADVENT ATLANTIC & PACIFIC III, L.P. Name:
Title:
By: TA Associates AAP III Partners, L.P.,
its General Partner TA ATLANTIC & PACIFIC IV, L.P.
By: TA Associates, Inc., its General Partner By: TA Associates AP IV Partners, L.P.,
its General Partner
By:
-------------------------------------------
Name: By: TA Associates, Inc., its General Partner
Title:
By:
--------------------------------------
TA EXECUTIVES FUND, LLC Name:
Title:
By: TA Associates, Inc., its Manager
TA INVESTORS, LLC
By:
-------------------------------------------
Name: By: TA Associates, Inc., its Manager
Title:
By:
--------------------------------------
Name:
Title:
TA IX, L.P.
By: TA Associates IX, LLC,
its General Partner
By: TA Associates, Inc.,
its Manager
By: ____________________________
Name:
Title:
ADVENT PGGM GLOBAL LIMITED PARTNERSHIP
DIGITAL MEDIA & COMMUNICATIONS III LIMITED PARTNERSHIP
DIGITAL MEDIA & COMMUNICATIONS III-A LIMITED PARTNERSHIP
DIGITAL MEDIA & COMMUNICATIONS III-B LIMITED PARTNERSHIP
DIGITAL MEDIA & COMMUNICATIONS III-C LIMITED PARTNERSHIP
DIGITAL MEDIA & COMMUNICATIONS III-D C.V.
DIGITAL MEDIA & COMMUNICATIONS III-E C.V.
GLOBAL PRIVATE EQUITY III LIMITED PARTNERSHIP
GLOBAL PRIVATE EQUITY IV LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
its General Partner
By: Advent International Corporation,
its General Partner
By: ____________________________
Name:
Title:
ADVENT PARTNERS DMC III LIMITED PARTNERSHIP
ADVENT PARTNERS GPE III LIMITED PARTNERSHIP
ADVENT PARTNERS (NA) GPE III LIMITED PARTNERSHIP
ADVENT PARTNERS LIMITED PARTNERSHIP
ADVENT PARTNERS GPE IV LIMITED PARTNERSHIP
ADVENT PARTNERS (NA) GPE IV LIMITED PARTNERSHIP
By: Advent International Corporation,
its General Partner
By: ____________________________
Name:
Title:
ADVENT GLOBAL GECC III LIMITED PARTNERSHIP
By: Advent Global Management Limited Partnership,
its General Partner
By: Advent International Limited Partnership,
its General Partner
By: Advent International Corporation,
its General Partner
By: ____________________________
Name:
Title:
ADVENT INTERNATIONAL CORPORATION,
as Voting Trustee, on behalf of First Union Capital Partners, LLC
and Guayacan Private Equity Fund Limited Partnership
By: ____________________________
Name:
Title
XXXX CAPITAL FUND VII, X.X.
XXXX CAPITAL VII COINVESTMENT FUND, L.P.
By: Xxxx Capital Partners VII, L.P.,
its General Partner
By: Xxxx Capital Investors, LLC,
its General Partner
By: ____________________________
Name:
Title:
BCI DATEK INVESTORS, LLC
By: ____________________________
Name:
Title:
BCIP ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP TRUST ASSOCIATES II
BCIP TRUST ASSOCIATES II-B
By: ____________________________
Name:
Title:
SILVER LAKE PARTNERS, L.P.
By: Silver Lake Technology Associates, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
SILVER LAKE INVESTORS, L.P.
By: Silver Lake Technology Associates, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
SILVER LAKE TECHNOLOGY INVESTORS, L.L.C.
By: Silver Lake Technology Management, L.L.C.,
its Managing Member
By: ____________________________
Name:
Title:
NON-STOCKHOLDER PARTY:
Ameritrade Holding Corporation
By: ____________________________
Name:
Title:
ANNEX A
SCHEDULED EXCEPTIONS
First Union Capital Partners, LLC and Guayacan Private Equity Fund Limited
Partnership have entered into a voting trust agreement with respect to their
Subject Shares with Advent International Corporation, as voting trustee, and an
irrevocable proxy with respect to such Subject Shares has been granted to Advent
International Corporation in connection with such voting trust agreement.
STOCKHOLDERS AND SECURITIES BENEFICIALLY OWNED
--------------------------------------------------------------------------------
SERIES A CONVERTIBLE PREFERRED
(CONVERTS TO COMMON ON A 2 X 1 BASIS)
--------------------------------------------------------------------------------
NAME NUMBER OF
SHARES (AS CONVERTED)
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
Finanzas B.V. 15,217,574
--------------------------------------------------------------------------------------------
TA/Advent VIII, L.P. 5,580,748
--------------------------------------------------------------------------------------------
TA Atlantic & Pacific IV, L.P. 2,257,854
--------------------------------------------------------------------------------------------
Advent Atlantic & Pacific III, L.P. 1,046,390
--------------------------------------------------------------------------------------------
TA Investors, LLC. 111,614
--------------------------------------------------------------------------------------------
TA Executives Fund, LLC 106,034
--------------------------------------------------------------------------------------------
SUB-TOTAL (SERIES A) 24,320,214
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SERIES B PREFERRED
(CONVERTS TO COMMON ON A 10 X 1 BASIS)
--------------------------------------------------------------------------------
NAME NUMBER OF
SHARES (AS CONVERTED)
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
Xxxx Capital Fund VII, L.P. 20,555,340
--------------------------------------------------------------------------------------------
Xxxx Capital VII Coinvestment Fund, L.P. 7,604,870
--------------------------------------------------------------------------------------------
BCIP Associates II 866,650
--------------------------------------------------------------------------------------------
BCIP Associates II-B 168,600
--------------------------------------------------------------------------------------------
BCIP Trust Associates II 180,400
--------------------------------------------------------------------------------------------
BCIP Trust Associates II-B 142,690
--------------------------------------------------------------------------------------------
BCI Datek Investors, LLC 5,043,279
--------------------------------------------------------------------------------------------
Silver Lake Partners, L.P. 22,316,400
--------------------------------------------------------------------------------------------
Silver Lake Investors, L.P. 643,602
--------------------------------------------------------------------------------------------
Silver Lake Technology Investors, L.L.C. 493,740
--------------------------------------------------------------------------------------------
TA IX, L.P. 16,928,242
--------------------------------------------------------------------------------------------
TA Atlantic & Pacific IV, L.P. 1,859,285
--------------------------------------------------------------------------------------------
TA/Advent VIII, L.P. 493,740
--------------------------------------------------------------------------------------------
