Exhibit 10.2
DATEK STOCKHOLDERS AGREEMENT
THIS DATEK STOCKHOLDERS AGREEMENT (the "Agreement") is entered
into as of June 9, 2002 by and between INSTINET GROUP INCORPORATED, a Delaware
corporation ("Instinet"), REUTERS LIMITED, a company organized under the laws of
England and Wales ("Reuters Limited"), and DATEK ONLINE HOLDINGS CORP., a
Delaware corporation ("Datek").
RECITALS
WHEREAS, Instinet, Island Holding Corporation, Inc., a
Delaware corporation ("Island") and Daiquiri Merger Corporation, a Delaware
corporation and a wholly owned subsidiary of Instinet have entered into an
Agreement and Plan of Merger, dated as of the date hereof (as it may be amended,
supplemented or otherwise modified from time to time, the "Merger Agreement").
WHEREAS, the parties desire to enter into this Agreement to
set forth their agreement regarding certain matters with respect to the transfer
of shares of Instinet to be received by Datek pursuant to the Merger Agreement,
if any.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
for themselves and their respective successors and permitted 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.
"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 and the
definition of "Permitted Transferee," "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.
"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.
"Bain Group" has the meaning ascribed thereto in the Island
Stockholders Agreement.
"Cause" means (a) the commission by an individual of any act
or omission that would constitute a felony or other crime under applicable
federal, state or foreign law determined by the members of the Board of
Directors (excluding the applicable individual, if a director) to be material to
such individual's role at Instinet, (b) the commission by an individual of any
act of moral turpitude, (c) fraud, dishonesty or a breach of fiduciary duty to
Instinet, its Affiliates and/or its stockholders, (d) continued alcohol or other
substance abuse by an individual that renders him incapable of performing his
material duties to the satisfaction of the Board of Directors or (e) any act or
omission by an individual that is a material violation of any applicable federal
or state or other securities law, regulation or rule or of any applicable rule
or regulation of any self-regulatory organization.
"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 the date hereof, by and between Reuters Limited and
Instinet, as the same may be further amended, supplemented or otherwise modified
from time to time.
"Datek" has the meaning ascribed thereto in the preamble
hereto.
"Derivative Transaction" means any transaction involving a
security linked to the Common Stock, including any equity swap, put, put
equivalent, collar, sale of exchangeable security or similar transaction.
"Effective Time" has the meaning ascribed thereto in the
Merger Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute.
"Initial Share Holding Period" has the meaning ascribed
thereto in Section 2.1(a).
"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 a "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.
"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.
"Island Stockholders" has the meaning ascribed thereto in the
Island Stockholders Agreement.
"Island Stockholders Agreement" means the Stockholders
Agreement, dated as of the date hereof, by and among Instinet, the Reuters
Parties, the Bain Group, the Silver Lake Group, the TA Group and Edward Nicoll.
"Joinder Agreement" means a joinder agreement in the form
attached hereto as Exhibit A by which a Person agrees to be treated as Datek
hereunder.
"Legend" has the meaning ascribed thereto in Section 2.1(d).
"Market Transaction" means any transaction effected on an
exchange or in the over-the-counter market (as such terms are used in Section
4(4) of the Securities Act), on an "alternative trading system" (as defined in
Regulation ATS) or directly with a "market maker" (as defined in Section
3(a)(38) of the Exchange Act).
"Merger Agreement" has the meaning ascribed thereto in the
preamble hereto.
"Other Distribution" means a distribution (by dividend or
otherwise) of the Subject Shares by Datek in respect of its capital stock or
securities exerciseable therefor to its stockholders and optionholders that is
not a Pro Rata Securityholder Distribution.
"Person" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization,
government (and any department or agency thereof) or other entity.
"Pro Rata Securityholder Distribution" means a distribution
(by dividend or otherwise) of the Subject Shares by Datek in respect of its
capital stock or securities exercisable therefor to its stockholders and
optionholders in which the Bain Group, the TA Group and the Silver Lake Group
receive at least their pro rata share of the Subject Shares (based on their
fully diluted interest in Datek as of the date hereof adjusted for the effects
of employee stock options or similar stock issuances occurring after the date
hereof) and the other Subject Shares are distributed substantially as widely as
set forth in Section 3.17(a) of the Company Disclosure Schedule attached to the
Merger Agreement, including with respect to approximate number of security
holders and approximate range of sizes of share holdings.
"Registration Rights Agreement" means that certain
Registration Rights Agreement to be entered into by and among Instinet, the
Reuters Parties, the Island Stockholders, Finanzas B.V. and those additional
stockholders of Instinet, if any, party thereto.
"Reuters Holders" has the meaning ascribed to the term
"Holders" in the Corporate Agreement.
"Reuters Limited" has the meaning ascribed thereto in the
preamble hereto.
"Reuters Parties" has the meaning ascribed thereto in the
Island Stockholders Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute.
"Silver Lake Group" has the meaning ascribed thereto in the
Island Stockholders Agreement.
"Subject Shares" means all shares of Common Stock originally
acquired by Datek pursuant to the Merger Agreement (and any additional shares of
Common Stock issued in respect of such shares subsequent to the Effective Time
pursuant to a stock dividend, subdivision, reclassification, recapitalization,
split, combination or exchange of shares or any similar event) held by Datek or
any Person required by this Agreement to execute a Joinder Agreement with
respect to such shares.
"Subsidiary" means, as to any Person, any corporation,
association, partnership, joint venture or other business entity of which more
than 50% 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 Island
Stockholders Agreement.
"Transfer" means, with respect to securities, a transfer,
sale, assignment, pledge, hypothecation or other disposition, whether directly
or indirectly (pursuant to a Derivative Transaction, the creation of a
derivative security, by Transfer of other securities convertible into or
exchangeable or exercisable for, or any right to purchase or acquire, such
security or otherwise), the grant of an option or other right or the imposition
of a restriction on disposition or voting or by operation of law.
1.2. Internal References. Unless the context indicates
otherwise, references to Articles, Sections and aragraphs 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
LIMITATIONS ON TRANSFER.
2.1. Limitations on Transfer.
(a) Notwithstanding any other provision of this Agreement,
prior to the earlier to occur of (i) the date which is one year following the
Effective Time and (ii) the date on which Edward Nicoll is terminated by
Instinet, other than in the case of a termination by Instinet for Cause or a
termination with the consent of at least two Island Stockholders then entitled
to designate directors under Section 2.2(a)(i) of the Island Stockholders
Agreement (the period from the Effective Time to the earlier to occur of (i) and
(ii), the "Initial Share Holding Period"), Datek shall not at any time effect
any Transfer of any Subject Shares, other than (x) an Other Distribution
(provided that in connection with any Other Distribution each transferee or
successive transferee of capital stock of Datek from the Bain Group, the Silver
Lake Group or the TA Group shall have entered into the agreement contemplated by
Section 4(l) of the Company Voting Agreement, dated as of the date hereof, by
and among Island, Instinet and those stockholders of Island set forth on Annex A
thereto) or (y) a Pro Rata Securityholder Distribution.
(b) Following the expiration of the Initial Share Holding
Period and until the date which is two years following the Effective Time, Datek
shall not Transfer any Subject Shares, except that the foregoing restrictions
shall not apply to (i) Transfers by Datek pursuant to an underwritten offering
conducted in accordance with the Registration Rights Agreement, (ii) Transfers
by Datek pursuant to which the transferee acquiring such Subject Shares has duly
executed a Joinder Agreement, (iii) an Other Distribution (provided that in
connection with any Other Distribution each transferee or successive transferee
of capital stock of Datek from the Bain Group, the Silver Lake Group or the TA
Group shall have entered into the agreement contemplated by Section 4(l) of the
Company Voting Agreement, dated as of the date hereof, by and among Island,
Instinet and those stockholders of Island set forth on Annex A thereto) or (iv)
a Pro Rata Securityholder Distribution.
(c) Datek hereby acknowledges and agrees that Instinet may
impose stop transfer instructions with respect to the Subject Shares subject to
the restrictions contained in this Article II in order to implement the
restrictions on Transfers contained herein.
(d) (i) Each certificate representing Subject Shares will bear
a legend on the face thereof substantially to the following effect (with such
additions thereto or changes therein as Instinet may be advised by counsel are
required by law or necessary to give full effect to this Agreement, the
"Legend"):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
STOCKHOLDERS AGREEMENT, DATED AS OF JUNE 9, 2002, BETWEEN
INSTINET GROUP INCORPORATED, REUTERS LIMITED AND DATEK ONLINE
HOLDINGS CORP., AS AMENDED AND SUPPLEMENTED FROM TIME TO TIME
IN ACCORDANCE WITH THE TERMS THEREOF. THE STOCKHOLDERS
AGREEMENT CONTAINS, AMONG OTHER THINGS, CERTAIN PROVISIONS
RELATING TO THE VOTING AND TRANSFER OF THE SHARES SUBJECT TO
THE AGREEMENT. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE, DIRECTLY OR INDIRECTLY, MAY
BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH
STOCKHOLDERS AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY
ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF
THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT APPLICABLE TO
THE SHARES REPRESENTED BY THIS CERTIFICATE."
(ii) The Legend will be promptly removed by (or at the
direction of) Instinet, with respect to any certificate
representing shares of Common Stock, by the delivery of
substitute certificates without such Legend with respect to the
applicable Subject Shares, in the event of a Transfer permitted
by this Agreement in which the Transferee is not required to
enter into a Joinder Agreement pursuant to the terms of this
Agreement.
(e) At least five days prior to any Transfer of shares of
Common Stock prior to the date which is two years following the Effective Time,
the transferring party shall give written notice of such Transfer to Instinet.
Each such notice required by this paragraph shall describe the manner of the
proposed Transfer and the number and nature of the securities involved.
2.2. Voting. Until the date which is two years following the
Effective Time and thereafter for so long as the Island
Stockholders (i) control (as such term is defined in the
definition of Affiliate) Datek (or otherwise have an agreement or
arrangement with Datek that requires Datek to vote its shares of
Common Stock for the election of directors designated pursuant to
Section 2.2(a)(i) of the Island Stockholders Agreement) and (ii)
have the right to designate more than one director pursuant to
Section 2.2(a)(i) of the Island Stockholders Agreement:
(a) Datek agrees to cause all shares of Common Stock
beneficially owned by it to be voted in favor of the election or removal, as the
case may be, of those individuals designated by Reuters Holders as directors of
Instinet in accordance with the terms of the Corporate Agreement.
(b) Datek may not Transfer shares of Common Stock to a
transferee that, alone or together with its Affiliates and Persons with whom it
and its Affiliates are acting in concert, acquires from Datek, in a transaction
or a series of related transactions, a number of shares of Common Stock
representing at least 10% of the aggregate number of shares of Common Stock then
outstanding, other than in a Market Transaction or pursuant to the exercise by
Datek of its registration rights under the Registration Rights Agreement
(excluding pre-arranged transactions in which the Subject Shares are "crossed",
"directed" or otherwise caused to be sold to the particular transferee), unless
in each case such transferee agrees in writing to be bound by Datek's
obligations under Section 2.2(a) above with respect to such transferred shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Instinet represents and warrants as follows:
(a) Status and Authority. Instinet is a company duly
organized, validly existing and in good standing under the laws of Delaware. The
execution and delivery by Instinet of this Agreement and the performance of its
obligations hereunder have been duly authorized by all necessary corporate
action on the part of Instinet (except as contemplated by the Merger Agreement),
and this Agreement has been duly executed and delivered by the duly authorized
officers of Instinet and constitutes the valid, legal and binding obligation of
Instinet.
(b) No Conflicts.
(i) The execution, delivery and performance of this
Agreement by Instinet will not result in (A) any conflict with
the charter documents of any Instinet Entity, (B) any material
breach or violation of or default under any statute, law, rule,
regulation, judgment, decree, order or any material mortgage,
deed of trust, indenture, agreement or any other instrument to
which any Instinet Entity is a party or by which any of their
respective material properties or assets are bound, or (C) the
creation or imposition of any lien, charge, pledge or encumbrance
thereon, except for such breaches, violations or defaults and
such liens, charges, pledges or encumbrances as would not,
individually or in the aggregate, adversely affect the ability of
Instinet to perform its obligations hereunder.
(ii) No consent, approval or authorization of or filing with
any governmental authority is required with respect to Instinet
in connection with the execution and delivery of this Agreement,
and the performance by Instinet of its obligations hereunder.
(c) No Litigation. There are no judicial or administrative
actions, proceedings or investigations pending or to the best knowledge of
Instinet, threatened, which question the validity of this Agreement or any
action taken or to be taken by Instinet in connection herewith.
3.2. Datek represents and warrants as follows:
(a) Status and Authority. Datek is a corporation, limited
partnership or limited liability company duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization. The execution
and delivery by Datek of this Agreement and the performance of its obligations
hereunder have been duly authorized by all necessary corporate, limited
partnership or limited liability company action on the part of Datek, as
applicable, and this Agreement has been duly executed and delivered by the duly
authorized officers or other representatives of Datek and constitutes the valid,
legal and binding obligation of Datek.
(b) No Conflicts; No Liens.
(i) The execution, delivery and performance of this
Agreement by Datek will not result in (A) any conflict with the
charter documents of Datek (B) any material breach or violation
of or default under any statute, law, rule, regulation, judgment,
decree, order or any material mortgage, deed of trust, indenture,
agreement or any other instrument to which Datek, as applicable,
is a party or by which any of its material properties or assets
are bound, or (C) the creation or imposition of any lien, charge,
pledge or encumbrance thereon, except for such breaches,
violations or defaults and such liens, charges, pledges or
encumbrances as would not, individually or in the aggregate,
adversely affect the ability of Datek, as applicable, to perform
its obligations hereunder.
(ii) None of the Subject Shares are subject to any lien,
charge, pledge or encumbrance thereon.
(iii) No consent, approval or authorization of or filing
with any governmental authority is required with respect to Datek
in connection with the execution and delivery of this Agreement,
and the performance by Datek of its obligations hereunder.
(c) No Litigation. There are no judicial or administrative
actions, proceedings or investigations pending or to the best knowledge of
Datek, threatened, which question the validity of this Agreement or any action
taken or to be taken by Datek in connection herewith.
3.3. Reuters Limited represents and warrants as follows:
(a) Status and Authority. Reuters Limited is a company duly
organized and validly existing under the laws of its jurisdiction of
organization. The execution and delivery by Reuters Limited of this Agreement
and the performance of its obligations hereunder have been duly authorized by
all necessary corporate action on the part of Reuters Limited, and this
Agreement has been duly executed and delivered by the duly authorized officers
of Reuters Limited and constitutes the valid, legal and binding obligation of
Reuters Limited.
(b) No Conflicts.
(i) The execution, delivery and performance of this
Agreement by Reuters Limited will not result in (A) any conflict
with the charter documents of Reuters Limited, (B) any material
breach or violation of or default under any statute, law, rule,
regulation, judgment, decree, order or any material mortgage,
deed of trust, indenture, agreement or any other instrument to
which Reuters Limited is a party or by which any of its material
properties or assets are bound, or (C) the creation or imposition
of any lien, charge, pledge or encumbrance thereon, except for
such breaches, violations or defaults and such liens, charges,
pledges or encumbrances as would not, individually or in the
aggregate, adversely affect the ability of Reuters Limited to
perform its obligations hereunder.
(ii) No consent, approval or authorization of or filing with
any governmental authority is required with respect to Reuters
Limited in connection with the execution and delivery of this
Agreement, and the performance by Reuters Limited of its
obligations hereunder.
(c) No Litigation. There are no judicial or administrative
actions, proceedings or investigations pending or, to the best knowledge of
Reuters Limited, threatened, which question the validity of this Agreement or
any action taken or to be taken by Reuters Limited in connection herewith.
ARTICLE IV
MISCELLANEOUS
4.1. Amendments. This Agreement may be amended, supplemented
or otherwise modified only by a writing duly executed by or on behalf of
Instinet, Reuters Limited and Datek. No waiver by any party of any of the
provisions hereof shall be effective unless explicitly set forth in writing and
executed by (i) Instinet, in the case of a waiver of rights of Instinet, (ii)
Reuters Limited, in the case of a waiver of rights of Reuters Limited, and/or
(iii) Datek, in the case of a waiver of rights of Datek. Except as provided in
the preceding sentence, 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.
4.2. 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.
4.3. Notices. All notices and other communications required or
permitted hereunder shall be in writing, shall be deemed duly given upon actual
receipt, and shall be delivered (a) in person, (b) by registered or certified
mail, postage prepaid, return receipt requested or (c) by facsimile or other
generally accepted means of electronic transmission (provided that a copy of any
notice delivered pursuant to this clause (c) shall also be sent pursuant to
clause (a) or (b)) above, addressed as follows:
(a) if to Instinet, to:
Instinet Group Incorporated
3 Times Square
10th Floor
New York, New York
Attention: General Counsel
Telecopy No.: 646-223-9017
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: Yvette P. Teofan
Telecopy No.: 212-225-3999
(b) If to Reuters Limited, to:
Reuters Limited
85 Fleet Street
London, England
EC4B 4AJ
Attention: General Counsel
Telecopy No.: 011-44-207-542-5896
with a copy to:
Reuters America Inc.
The Reuters Building
3 Times Square
New York, New York 10036
Attention: General Counsel
Telecopy No: 646-223-4250
and to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Vince Pagano, Esq.
William E. Curbow, Esq.
Telecopy No.: 212-455-2502
(c) If to Datek, to:
Datek Online Holdings Corp.
70 Hudson Street
Jersey City, New Jersey 07302
Attention: Stuart Sindell
Telecopy No.: 201-761-8044
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: F. William Reindel, Esq.
Telecopy No.: 212-859-4000
and to:
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Attention: Alfred O. Rose, Esq.
Telecopy No.: 617-951-7050
or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties.
4.4. Further Assurances. The parties 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.
4.5. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
4.6. Entire Agreement. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
4.7. Successors. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
4.8. Jurisdiction; Specific Performance. The parties to this
Agreement agree that jurisdiction and venue in any action brought by any party
hereto pursuant to this Amendment 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 4.3. 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 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 the 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 to this
Agreement agree to waive any requirement for the posting of any bond in
connection with such remedy.
4.9. 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.
4.10. Termination. Except as otherwise provided herein, this
Agreement shall terminate and be of no further effect on which is ten years
following the Effective Time.
4.11. Effectiveness of Agreement. Notwithstanding anything in
this Agreement to the contrary, this Agreement shall become effective only upon
the Effective Time.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
INSTINET GROUP INCORPORATED
By:
---------------------------------
Name:
Title:
REUTERS LIMITED
By:
---------------------------------
Name: Devin Wenig
Title: Attorney in Fact
DATEK ONLINE HOLDINGS CORPORATION
By:
---------------------------------
Name:
Title:
EXHIBIT A
JOINDER
By execution of this Joinder, the undersigned agrees to become
a party to that certain Stockholders Agreement, dated as of June 9, 2002 (the
"Agreement"), between Instinet Group Incorporated, Reuters Limited and Datek
Online Holdings Corporation. By execution of this Joinder, the undersigned shall
observe all the obligations of Datek with respect to the Subject Shares acquired
by the undersigned, in each case as specified in the Agreement and to have made
on the date hereof all representations and warranties set forth in Section 3.2
of the Agreement, modified, if necessary, to reflect the nature of the
undersigned as a trust, estate or other entity.
Name:________________________
Address for Notices: With Copies to:
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
Signature:_____________________________
Date:__________________________________