Table of Contents

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

(Mark One)

 

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended March 31, 2017

or

☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from     to     

Commission file number:  001-37352

 

Virtu Financial, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware

32-0420206

(State or other jurisdiction of incorporation or
organization)

(I.R.S. Employer
Identification No.)

 

 

900 Third Avenue, 29th Floor
New York, New York 10022-0100

10022

(Address of principal executive offices)

(Zip Code)

 

(212) 418-0100

(Registrant’s telephone number, including area code)

 

(Former name, former address and former fiscal year, if changed since last report)

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes   No ☐

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes     No  ☐

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer ☐  Accelerated filer  Non-accelerated filer ☐  Smaller reporting company ☐

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐     No

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. Yes ☐ No

Class of Stock

    

Shares Outstanding
as of May 10, 2017

 

Class A common stock, par value $0.00001 per share

 

40,667,276

 

Class C common stock, par value $0.00001 per share

 

19,081,435

 

Class D common stock, par value $0.00001 per share

 

79,610,49 0

 

 

 

 


 

Table of Contents

 

VIRTU FINANCIAL, INC. AND SUBSIDIARIES

INDEX TO FORM 10-Q

FOR THE QUARTER ENDED MARCH 31, 2017

 

 

 

 

 

 

 

 

 

 

PAGE

NUMBER

 

 

 

 

 

PART I -  

 

FINANCIAL INFORMATION

 

 

 

 

 

 

 

Item 1.  

 

Condensed Consolidated Financial Statements (Unaudited)

 

 

 

 

 

 

 

 

 

Condensed Consolidated Statements of Financial Condition

 

2

 

 

 

 

 

 

 

Condensed Consolidated Statements of Comprehensive Income

 

3

 

 

 

 

 

 

 

Condensed Consolidated Statements of Changes in Equity

 

4

 

 

 

 

 

 

 

Condensed Consolidated Statements of Cash Flows

 

5

 

 

 

 

 

 

 

Notes to Condensed Consolidated Financial Statements (Unaudited)

 

6

 

 

 

 

 

Item 2.  

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

32

 

 

 

 

 

Item 3.  

 

Quantitative and Qualitative Disclosures About Market Risk

 

49

 

 

 

 

 

Item 4.  

 

Controls and Procedures

 

51

 

 

 

 

 

PART II -  

 

OTHER INFORMATION

 

51

 

 

 

 

 

Item 1.  

 

Legal Proceedings

 

51

 

 

 

 

 

Item 1A.  

 

Risk Factors

 

52

 

 

 

 

 

Item 2.  

 

Unregistered Sales of Equity Securities and Use of Proceeds

 

55

 

 

 

 

 

Item 3.  

 

Defaults Upon Senior Securities

 

55

 

 

 

 

 

Item 4.  

 

Mine Safety Disclosures

 

55

 

 

 

 

 

Item 5.  

 

Other Information

 

55

 

 

 

 

 

Item 6.  

 

Exhibits

 

56

 

 

 

 

 

 

 

SIGNATURES

 

57

 

 

 

 

 


 

Table of Contents

 

PART I - FINANCIAL INFORMATIO N

 

Condensed Consolidated Financial Statements (Unaudited)

 

 

 

 

 

 

1


 

Table of Contents

 

Virtu Financial, Inc. and Subsidiaries
Condensed Consolidated Statements of Financial Conditio n
(Unaudited)

 

 

 

 

 

 

 

 

 

 

 

As of

 

 

 

March 31, 

 

December 31, 

 

(in thousands, except share and interest data)

  

2017

    

2016

 

 

 

 

 

 

 

 

 

Assets

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

164,967

 

$

181,415

 

Securities borrowed

 

 

358,463

 

 

220,005

 

Receivables from broker dealers and clearing organizations

 

 

662,313

 

 

448,728

 

Trading assets, at fair value:

 

 

 

 

 

 

 

Financial instruments owned

 

 

1,630,581

 

 

1,683,999

 

Financial instruments owned and pledged

 

 

269,389

 

 

143,883

 

Property, equipment and capitalized software (net of accumulated depreciation of $112,092 and $113,184 as of March 31, 2017 and December 31, 2016, respectively)

 

 

34,071

 

 

29,660

 

Goodwill

 

 

715,379

 

 

715,379

 

Intangibles (net of accumulated amortization)

 

 

939

 

 

992

 

Deferred tax asset

 

 

197,330

 

 

193,859

 

Other assets ($38,055 and $36,480, at fair value, as of March 31, 2017 and December 31, 2016, respectively)

 

 

73,921

 

 

74,470

 

Total assets

 

$

4,107,353

 

$

3,692,390

 

 

 

 

 

 

 

 

 

Liabilities and equity

 

 

 

 

 

 

 

Liabilities

 

 

 

 

 

 

 

Short term borrowings

 

$

22,000

 

$

25,000

 

Securities loaned

 

 

423,672

 

 

222,203

 

Payables to broker dealers and clearing organizations

 

 

589,688

 

 

695,978

 

Trading liabilities, at fair value:

 

 

 

 

 

 

 

Financial instruments sold, not yet purchased

 

 

1,673,802

 

 

1,349,155

 

Tax receivable agreement obligations

 

 

229,381

 

 

231,404

 

Accounts payable and accrued expenses and other liabilities

 

 

73,498

 

 

69,281

 

Long-term borrowings

 

 

565,317

 

 

564,957

 

Total liabilities

 

$

3,577,358

 

$

3,157,978

 

 

 

 

 

 

 

 

 

Stockholders' equity

 

 

 

 

 

 

 

Class A common stock (par value $0.00001), Authorized — 1,000,000,000 and 1,000,000,000 shares, Issued  — 41,120,342 and 40,436,580 shares, Outstanding — 40,667,276 and 39,983,514 shares at March 31, 2017 and December 31, 2016, respectively

 

 

 —

 

 

 —

 

Class B common stock (par value $0.00001), Authorized — 175,000,000 and 175,000,000 shares, Issued and Outstanding — 0 and 0 shares at March 31, 2017 and December 31, 2016, respectively

 

 

 —

 

 

 —

 

Class C common stock (par value $0.00001), Authorized — 90,000,000 and 90,000,000 shares, Issued — 19,081,435 and 19,810,707 shares, Outstanding — 19,081,435 and 19,810,707, at March 31, 2017 and December 31, 2016, respectively

 

 

 —

 

 

 —

 

Class D common stock (par value $0.00001), Authorized — 175,000,000 and 175,000,000 shares, Issued  and Outstanding — 79,610,490 and 79,610,490 shares at March 31, 2017 and December 31, 2016, respectively

 

 

 1

 

 

 1

 

Treasury stock, at cost, 453,066 and 453,066 shares at March 31, 2017 and December 31, 2016, respectively

 

 

(8,358)

 

 

(8,358)

 

Additional paid-in capital

 

 

160,385

 

 

155,536

 

Accumulated deficit

 

 

(6,788)

 

 

(1,254)

 

Accumulated other comprehensive loss

 

 

(17)

 

 

(252)

 

Total stockholders' equity

 

$

145,223

 

$

145,673

 

Noncontrolling interest

 

 

384,772

 

 

388,739

 

Total equity

 

$

529,995

 

$

534,412

 

 

 

 

 

 

 

 

 

Total liabilities and equity

 

$

4,107,353

 

$

3,692,390

 

 

See accompanying notes to the unaudited condensed consolidated financial statements.

2


 

Table of Contents

 

Virtu Financial, Inc. and Subsidiaries
Condensed Consolidated Statements of Comprehensive Incom e
(Unaudited)

 

 

 

 

 

 

 

 

 

 

 

March 31, 

 

(in thousands, except share and per share data)

    

2017

    

2016

 

Revenues:

 

 

 

 

 

 

 

Trading income, net

 

$

139,574

 

$

186,289

 

Interest and dividends income

 

 

4,874

 

 

4,268

 

Technology services

 

 

2,779

 

 

2,081

 

Other, net

 

 

60

 

 

 —

 

Total revenue

 

 

147,287

 

 

192,638

 

 

 

 

 

 

 

 

 

Operating Expenses:

 

 

 

 

 

 

 

Brokerage, exchange and clearance fees, net

 

 

52,770

 

 

59,725

 

Communication and data processing

 

 

18,207

 

 

17,722

 

Employee compensation and payroll taxes

 

 

21,347

 

 

22,557

 

Interest and dividends expense

 

 

12,280

 

 

13,537

 

Operations and administrative

 

 

4,978

 

 

4,919

 

Depreciation and amortization

 

 

6,757

 

 

7,727

 

Amortization of purchased intangibles and acquired capitalized software

 

 

53

 

 

53

 

Charges related to share based compensation at IPO

 

 

185

 

 

595

 

Financing interest expense on long-term borrowings

 

 

6,828

 

 

7,101

 

Total operating expenses

 

 

123,405

 

 

133,936

 

Income before income taxes and noncontrolling interest

 

 

23,882

 

 

58,702

 

Provision for income taxes

 

 

2,808

 

 

7,346

 

Net income

 

 

21,074

 

 

51,356

 

Noncontrolling interest

 

 

(16,494)

 

 

(41,008)

 

Net income available for common stockholders

 

$

4,580

 

$

10,348

 

 

 

 

 

 

 

 

 

Earnings per share

 

 

 

 

 

 

 

Basic

 

$

0.10

 

 

0.27

 

Diluted

 

$

0.10

 

 

0.26

 

 

 

 

 

 

 

 

 

Weighted average common shares outstanding

 

 

 

 

 

 

 

Basic

 

 

40,398,381

 

 

38,210,209

 

Diluted

 

 

40,398,381

 

 

38,489,489

 

 

 

 

 

 

 

 

 

Net income

 

$

21,074

 

$

51,356

 

Other comprehensive income (loss)

 

 

 

 

 

 

 

  Foreign exchange translation adjustment, net of taxes

 

 

785

 

 

2,494

 

Comprehensive income

 

 

21,859

 

 

53,850

 

Less: Comprehensive income attributable to noncontrolling interest

 

 

(17,044)

 

 

(42,801)

 

Comprehensive income attributable to common stockholders

 

$

4,815

 

$

11,049

 

 

See accompanying notes to the unaudited condensed consolidated financial statements.

 

 

3


 

Table of Contents

 

Virtu Financial, Inc. and Subsidiaries
Condensed Consolidated Statement of Changes in Equit y
(Unaudited)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Additional

 

 

 

 

 

 

 

 

 

 

 

Retained

 

Accumulated

 

 

 

 

 

 

 

 

 

Class A 

 

Class C 

 

Class D 

 

 

 

 

 

 

Paid-in

 

 

 

 

 

 

 

 

 

 

 

Earnings

 

Other

 

Total

 

Non-

 

 

 

(in thousands, except 

 

Common Stock

 

Common Stock

 

Common Stock

 

Treasury Stock

 

Capital

 

Class A-1 

 

Class A-2 

 

(Accumulated

 

Comprehensive

 

Stockholders'

 

Controlling

 

Total

 

share and interest data)

  

Shares

  

Amounts

  

Shares

  

Amounts

  

Shares

  

Amounts

  

Shares

  

Amounts

  

Amounts

  

Interests

  

Amounts

  

Interests

  

Amounts

  

Deficit)

  

Income (Loss)

  

Equity

  

Interest

  

Equity

  

Balance at December 31, 2016

 

40,436,580

 

$

 —

 

19,810,707

 

$

 —

 

79,610,490

 

$

 1

 

(453,066)

 

$

(8,358)

 

$

155,536

 

 —

 

$

 —

 

 —

 

$

 —

 

$

(1,254)

 

$

(252)

 

$

145,673

 

$

388,739

 

$

534,412

 

Share based compensation

 

 —

 

 

 —

 

(12,721)

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

4,460

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

4,460

 

 

 —

 

 

4,460

 

Treasury stock purchases

 

 —

 

 

 —

 

(32,789)

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

(441)

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(441)

 

 

 —

 

 

(441)

 

Net income

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

4,580

 

 

 —

 

 

4,580

 

 

16,494

 

 

21,074

 

Foreign exchange translation adjustment

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

235

 

 

235

 

 

550

 

 

785

 

Distribution from Virtu Financial to non-controlling interest

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(21,011)

 

 

(21,011)

 

Dividends

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

(10,114)

 

 

 —

 

 

(10,114)

 

 

 —

 

 

(10,114)

 

Issuance of common stock in connection with employee exchanges

 

683,762

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Repurchase of Virtu Financial Units and corresponding number of Class C common stock in connection with employee exchanges

 

 —

 

 

 —

 

(683,762)

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Issuance of tax receivable agreements in connection with employee exchange

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 —

 

 

 —

 

 

830

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

830

 

 

 —

 

 

830

 

Balance at March 31, 2017

 

41,120,342

 

 

 —

 

19,081,435

 

 

 —

 

79,610,490

 

 

 1

 

(453,066)

 

 

(8,358)

 

 

160,385

 

 —

 

 

 —

 

 —

 

 

 —

 

 

(6,788)

 

 

(17)

 

 

145,223

 

 

384,772

 

 

529,995

 

 

See accompanying notes to the unaudited condensed consolidated financial statements.

 

 

4


 

Table of Contents

 

Virtu Financial, Inc. and Subsidiaries
Condensed Consolidated Statements of Cash Flows
(Unaudited)

 

 

 

 

 

 

 

 

 

 

 

For the Three Months Ended March 31, 

 

(in thousands)

    

2017

    

2016

 

Cash flows from operating activities

    

 

    

    

 

    

 

Net Income

 

$

21,074

 

$

51,356

 

 

 

 

 

 

 

 

 

Adjustments to reconcile net income to net cash provided by operating activities:

 

 

 

 

 

 

 

Depreciation and amortization

 

 

6,757

 

 

7,727

 

Amortization of purchased intangibles and acquired capitalized software

 

 

53

 

 

53

 

Amortization of debt issuance costs and deferred financing fees

 

 

214

 

 

468

 

Termination of office leases

 

 

 —

 

 

292

 

Share based compensation

 

 

3,818

 

 

3,102

 

Equipment writeoff

 

 

 —

 

 

428

 

Deferred taxes

 

 

2,354

 

 

2,530

 

Other

 

 

1,570

 

 

(3)

 

Changes in operating assets and liabilities:

 

 

 

 

 

 

 

Securities borrowed

 

 

(138,458)

 

 

(200,769)

 

Securities purchased under agreements to resell

 

 

 —

 

 

14,981

 

Receivables from broker dealers and clearing organizations

 

 

(213,585)

 

 

(153,375)

 

Trading assets, at fair value

 

 

(72,088)

 

 

(226,460)

 

Other Assets

 

 

563

 

 

652

 

Securities loaned

 

 

201,469

 

 

166,069

 

Payables to broker dealers and clearing organizations

 

 

(106,290)

 

 

(50,646)

 

Trading liabilities, at fair value

 

 

324,647

 

 

432,519

 

Accounts payable and accrued expenses and other liabilities

 

 

(11)

 

 

2,544

 

Net cash provided by operating activities

 

 

32,087

 

 

51,468

 

 

 

 

 

 

 

 

 

Cash flows from investing activities

 

 

 

 

 

 

 

Development of capitalized software

 

 

(2,016)

 

 

(2,003)

 

Acquisition of property and equipment

 

 

(3,843)

 

 

(1,287)

 

Net cash used in investing activities

 

 

(5,859)

 

 

(3,290)

 

 

 

 

 

 

 

 

 

Cash flows from financing activities

 

 

 

 

 

 

 

Distribution from Virtu Financial to non-controlling interest

 

 

(21,011)

 

 

(41,240)

 

Dividends

 

 

(10,114)

 

 

(9,378)

 

Purchase of treasury stock

 

 

(441)

 

 

 —

 

Short-term borrowings, net

 

 

(3,000)

 

 

(13,000)

 

Payments on repurchase of non-voting common interest

 

 

(500)

 

 

(500)

 

Repayment of senior secured credit facility

 

 

(1,350)

 

 

(1,275)

 

Tax receivable agreement obligations

 

 

(7,045)

 

 

 —

 

Net cash used in financing activities

 

 

(43,461)

 

 

(65,393)

 

 

 

 

 

 

 

 

 

Effect of exchange rate changes on Cash and cash equivalents

 

 

785

 

 

2,494

 

 

 

 

 

 

 

 

 

Net decrease in Cash and cash equivalents

 

 

(16,448)

 

 

(14,721)

 

Cash and cash equivalents, beginning of period

 

 

181,415

 

 

163,235

 

Cash and cash equivalents, end of period

 

$

164,967

 

$

148,514

 

 

 

 

 

 

 

 

 

Supplementary disclosure of cash flow information

 

 

 

 

 

 

 

Cash paid for interest

 

$

13,197

 

$

13,786

 

Cash paid for taxes

 

$

1,915

 

$

1,527

 

 

 

 

 

 

 

 

 

Non-cash investing activities

 

 

 

 

 

 

 

Share based compensation to developers relating to capitalized software

 

$

664

 

$

678

 

 

 

 

 

 

 

 

 

 

See accompanying notes to the unaudited condensed consolidated financial statements.

 

5


 

Table of Contents

Virtu Financial, Inc. and Subsidiaries

 

NOTES TO UNAUDITE D CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

1. Organization and Basis of Presentation

 

Organization

The accompanying condensed consolidated financial statements include the accounts and operations of Virtu Financial, Inc. (“VFI”, or, collectively with its wholly owned or controlled subsidiaries, the “Company”) beginning with its initial public offering (“IPO”) in April of 2015, along with the historical accounts and operations of Virtu Financial LLC (“Virtu Financial”) prior to the Company’s IPO. VFI is a Delaware corporation whose primary asset is its ownership of approximately 29.9% of the membership interests of Virtu Financial, which it acquired pursuant to and subsequent to certain reorganization transactions (the “Reorganization Transactions”) consummated in connection with its IPO. The Company is the sole managing member of Virtu Financial and operates and controls all of the businesses and affairs of Virtu Financial and, through Virtu Financial and its subsidiaries (the “Group”), continues to conduct the business now conducted by such subsidiaries.

Virtu Financial was formed as a Delaware limited liability company on April 8, 2011 in connection with a corporate reorganization and acquisition of the outstanding equity interests of Madison Tyler Holdings, LLC (“MTH”), an electronic trading firm and market maker. In connection with the reorganization, the members of Virtu Financial’s predecessor entity, Virtu Financial Operating LLC (“VFO”), a Delaware limited liability company formed on March 19, 2008, exchanged their interests in VFO for interests in Virtu Financial and the members of MTH exchanged their interests in MTH for cash and/or interests in Virtu Financial. Virtu Financial’s principal subsidiaries include Virtu Financial BD LLC (“VFBD”), a self-clearing U.S. broker-dealer, Virtu Financial Capital Markets LLC (“VFCM”), a U.S. broker-dealer, which self-clears its proprietary transactions and introduces the accounts of its affiliates and non-affiliated broker-dealers on an agency basis to other clearing firms that clear and settle transactions in those accounts; and which is also a designated market maker on the New York Stock Exchange (“NYSE”) and the NYSE MKT (formerly NYSE Amex), Virtu Financial Global Markets LLC (“VFGM”), a U.S. trading entity focused on futures and currencies, Virtu Financial Ireland Limited (“VFIL”), formed in Ireland, Virtu Financial Asia Pty Ltd (“VFAP”), formed in Australia, and Virtu Financial Singapore Pte. Ltd. (“VFSing”), formed in Singapore, each of which are trading entities focused on asset classes in their respective geographic regions.

The Company is a technology-enabled market maker and liquidity provider. The Company has developed a single, proprietary, multi-asset, multi-currency technology platform through which it provides quotations to buyers and sellers in equities, commodities, currencies, options, fixed income and other securities on numerous exchanges, markets and liquidity pools in numerous countries around the world.

 

The Company is managed and operated as one business. Accordingly, the Company operates under one reportable segment.

 

Basis of Presentation

 

These condensed consolidated financial statements are presented in U.S. dollars and have been prepared pursuant to the rules and regulations of the U.S. Securities and Exchange Commission (“SEC”) regarding financial reporting with respect to Form 10-Q and accounting standards generally accepted in the United States of America (“U.S. GAAP”) promulgated in the Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC” or the “Codification”). The condensed consolidated financial statements of the Company include its equity interests in Virtu Financial and its subsidiaries. The Company operates and controls all business and affairs of Virtu Financial and its operating subsidiaries indirectly through its equity interest in Virtu Financial.

 

The condensed consolidated financial statements do not include all of the information and notes required by U.S. GAAP for complete financial statements and should be read in conjunction with the Company’s annual report on Form 10-K for the year ended December 31, 2016 (the “2016 10-K”), as amended, which was filed on March 13, 2017. The accompanying December 31, 2016 unaudited condensed consolidated statements of financial condition data was derived from audited consolidated financial statements, but does not include all disclosures required by U.S. GAAP for

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annual financial statement purposes. The accompanying condensed consolidated financial statements reflect all adjustments which are, in the opinion of management, necessary for a fair presentation of the financial position, results of operations and cash flows for the interim periods presented. The operating results for interim periods are not necessarily indicative of the operating results for any future interim or annual period.

 

Principles of Consolidation, including Noncontrolling Interests

The condensed consolidated financial statements include the accounts of the Company and its majority and wholly owned subsidiaries. As sole managing member of Virtu Financial, the Company exerts control over the Group’s operations. The Company consolidates Virtu Financial and its subsidiaries’ financial statements and records the interests in Virtu Financial that the Company does not own as noncontrolling interests. All intercompany accounts and transactions have been eliminated in consolidation.

2. Summary of Significant Accounting Policies

 

Use of Estimates

 

The Company's condensed consolidated financial statements are prepared in conformity with U.S. GAAP, which require management to make estimates and assumptions regarding measurements including the fair value of trading assets and liabilities, goodwill and intangibles, compensation accruals, capitalized software, income tax, and other matters that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the condensed consolidated financial statements and the reported amounts of revenue and expenses during the reporting period. Accordingly, actual results could differ materially from those estimates.

 

Earnings Per Share

 

Earnings per share (“EPS”) is calculated on both a basic and diluted basis. Basic EPS excludes dilution and is calculated by dividing income available to common stockholders by the weighted-average number of common shares outstanding for the period. Diluted EPS is calculated by dividing the net income available for common stockholders by the diluted weighted average shares outstanding for that period. Diluted EPS includes the determinants of the basic EPS and, in addition, reflects the dilutive effect of shares of common stock estimated to be distributed in the future under the Company’s share based compensation plans.

 

The Company grants restricted stock units (“RSUs”), which entitle recipients to receive nonforfeitable dividends during the vesting period on a basis equivalent to the dividends paid to holders of common stock. As a result, the unvested RSUs meet the definition of a participating security requiring the application of the two-class method. Under the two-class method, earnings available to common shareholders, including both distributed and undistributed earnings, are allocated to each class of common stock and participating securities according to dividends declared and participating rights in undistributed earnings, which may cause diluted EPS to be more dilutive than the calculation using the treasury stock method.

 

Cash and Cash Equivalents

 

The Company considers cash equivalents as highly liquid investments with original maturities of less than three months when acquired. The Company maintains cash in bank deposit accounts that, at times, may exceed federally insured limits.

 

Securities Borrowed and Securities Loaned

 

The Company conducts securities borrowing and lending activities with external counterparties. In connection with these transactions, the Company receives or posts collateral. These transactions are collateralized by cash or securities. In accordance with substantially all of its stock borrow agreements, the Company is permitted to sell or repledge the securities received. Securities borrowed or loaned are recorded based on the amount of cash collateral advanced or received. The initial cash collateral advanced or received generally approximates or is greater than 102% of the fair value of the underlying securities borrowed or loaned. The Company monitors the fair value of securities borrowed and loaned, and delivers or obtains additional collateral as appropriate. Receivables and payables with the

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same counterparty are not offset in the condensed consolidated statements of financial condition. Interest received or paid by the Company for these transactions is recorded gross on an accrual basis under interest and dividends income or interest and dividends expense in the condensed consolidated statements of comprehensive income.

 

Securities Purchased Under Agreements to Resell and Securities Sold Under Agreements to Repurchase

 

In a repurchase agreement, securities sold under agreements to repurchase are treated as collateralized financing transactions and are recorded at contract value, plus accrued interest, which approximates fair value. It is the Company's policy that its custodian takes possession of the underlying collateral securities with a fair value approximately equal to the principal amount of the repurchase transaction, including accrued interest. For reverse repurchase agreements, the Company typically requires delivery of collateral with a fair value approximately equal to the carrying value of the relevant assets in the condensed consolidated statements of financial condition. To ensure that the fair value of the underlying collateral remains sufficient, the collateral is valued daily with additional collateral obtained or excess collateral returned, as permitted under contractual provisions. The Company does not net securities purchased under agreements to resell transactions with securities sold under agreements to repurchase transactions entered into with the same counterparty. Interest received or paid by the Company for these transactions is recorded gross on an accrual basis under interest and dividends income or interest and dividends expense in the condensed consolidated statements of comprehensive income.

 

Receivables from/Payables to Broker-dealers and Clearing Organizations

 

Amounts receivable from broker-dealers and clearing organizations may be restricted to the extent that they serve as deposits for securities sold, not yet purchased. At March 31, 2017 and December 31, 2016, receivables from and payables to broker-dealers and clearing organizations primarily represented amounts due for unsettled trades, open equity in futures transactions, securities failed to deliver or failed to receive, deposits with clearing organizations or exchanges and balances due from or due to prime brokers in relation to the Company’s trading. The Company presents its balances, including outstanding principal balances on all credit facilities, on a net-by-counterparty basis within receivables from and payable to broker-dealers and clearing organizations when the criteria for offsetting are met.

 

In the normal course of business, substantially all of the Company’s securities transactions, money balances, and security positions are transacted with several brokers. The Company is subject to credit risk to the extent any broker with whom it conducts business is unable to fulfill contractual obligations on its behalf. The Company monitors the financial condition of such brokers and does not anticipate any losses from these counterparties.

 

Financial Instruments Owned Including Those Pledged as Collateral and Financial Instruments Sold, Not Yet Purchased

 

The Company records financial instruments owned, including those pledged as collateral, and financial instruments sold, not yet purchased at fair value. Gains and losses arising from financial instrument transactions are recorded net on a trade-date basis in trading income, net, in the condensed consolidated statements of comprehensive income.

 

Fair Value Measurements

 

Fair value is defined as the price that would be received to sell an asset or would be paid to transfer a liability (i.e., the exit price) in an orderly transaction between market participants at the measurement date. Fair value measurements are not adjusted for transaction costs. The recognition of “block discounts” for large holdings of unrestricted financial instruments where quoted prices are readily and regularly available in an active market is prohibited. The Company categorizes its financial instruments into a three level hierarchy which prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy level assigned to each financial instrument is based on the assessment of the transparency and reliability of the inputs used in the valuation of such financial instruments at the measurement date based on the lowest level of input that is significant to the fair value measurement. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (level 1 measurement) and the lowest priority to unobservable inputs (level 3 measurements).

 

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Financial instruments measured and reported at fair value are classified and disclosed in one of the following categories based on inputs:

 

Level 1 — Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities;

 

Level 2 — Quoted prices in markets that are not active and financial instruments for which all significant inputs are observable, either directly or indirectly; or

 

Level 3 — Prices or valuations that require inputs that are both significant to the fair value measurement and unobservable.

 

Transfers in or out of levels are recognized based on the beginning fair value of the period in which they occurred.

Fair Value Option

The fair value option election allows entities to make an irrevocable election of fair value as the initial and subsequent measurement attribute for certain eligible financial assets and liabilities. Unrealized gains and losses on items for which the fair value option has been elected are recorded in other, net in the consolidated statements of comprehensive income. The decision to elect the fair value option is determined on an instrument-by-instrument basis,  must be applied to an entire instrument and is irrevocable once elected.

 

Derivative Instruments

 

Derivative instruments are used for trading purposes, including economic hedges of trading instruments,   which are carried at fair value include futures, forward contracts, and options. Unrealized gains or losses on these derivative instruments are recognized currently within trading income, net in the consolidated statement of comprehensive income.. Fair values for exchange-traded derivatives, principally futures, are based on quoted market prices. Fair values for over-the-counter derivative instruments, principally forward contracts, are based on the values of the underlying financial instruments within the contract. The underlying instruments are currencies which are actively traded. The Company presents its derivatives balances on a net-by-counterparty basis when the criteria for offsetting are met.

 

Property and Equipment

 

Property and equipment are carried at cost, less accumulated depreciation, except for the assets acquired in connection with the acquisition of MTH which were recorded at fair value on the date of acquisition. Depreciation is provided using the straight-line method over estimated useful lives of the underlying asset. Routine maintenance, repairs and replacement costs are expensed as incurred and improvements that appreciably extend the useful life of the assets are capitalized. When property and equipment are sold or otherwise disposed of, the cost and related accumulated depreciation are removed from the accounts and any resulting gain or loss is recognized in income. Property and equipment are reviewed for impairment whenever events or changes in circumstances indicate that the related carrying amount may not be recoverable. Furniture, fixtures, and equipment are depreciated over three to seven years. Leasehold improvements are amortized over the lesser of the length of the lease term or seven years.

 

Capitalized Software

 

The Company capitalizes costs of materials, consultants, and payroll and payroll related costs for employees incurred in developing internal-use software. Costs incurred during the preliminary project and post-implementation stages are charged to expense.

 

Management’s judgment is required in determining the point at which various projects enter the stages at which costs may be capitalized, in assessing the ongoing value of the capitalized costs, and in determining the estimated useful lives over which the costs are amortized.

 

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Capitalized software development costs and related accumulated amortization are included in property, equipment and capitalized software in the accompanying condensed consolidated statements of financial condition and are amortized over a period of 1.4 to 2.5 years, which represents the estimated useful lives of the underlying software.

 

Goodwill

 

Goodwill represents the excess of the purchase price over the underlying net tangible and intangible assets of the Company’s acquisitions. Goodwill is not amortized but is tested for impairment on an annual basis and between annual tests whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. Goodwill is tested at the reporting unit level, which is defined as an operating segment or one level below the operating segment. The Company operates as one operating segment, which is the Company’s only reporting unit.

 

The Company tests goodwill for impairment on an annual basis on July 1 and on an interim basis when certain events or circumstances exist. In the impairment test as of July 1, 2016, the primary valuation method used to estimate the fair value of the Company’s reporting unit was the market capitalization approach based on the market price of its Class A common stock, which the Company’s management believes to be an appropriate indicator of its fair value.

 

Intangible Assets

 

The Company amortizes finite-lived intangible assets over their estimated useful lives. Finite-lived intangible assets are tested for impairment annually or when impairment indicators are present, and if impaired, they are written down to fair value.

 

Exchange Memberships and Stock

 

Exchange memberships are recorded at cost or, if any other than temporary impairment in value has occurred, at a value that reflects management’s estimate of fair value. Exchange stock includes shares that entitle the Company to certain trading privileges. The shares are marked-to-market with the corresponding gain or loss recorded under operating and administrative in the condensed consolidated statements of comprehensive income. The Company’s exchange memberships and stock are included in other assets in the condensed consolidated statements of financial condition.

 

Trading Income

 

Trading income is comprised of changes in the fair value of trading assets and liabilities (i.e., unrealized gains and losses) and realized gains and losses on trading assets and liabilities. Trading gains and losses on financial instruments owned and financial instruments sold, not yet purchased are recorded on the trade date and reported on a net basis in the condensed consolidated statements of comprehensive income.

 

Interest and Dividends Income/Interest and Dividends Expense

 

Interest income and interest expense are accrued in accordance with contractual rates. Interest income consists of interest earned on collateralized financing arrangements and on cash held by brokers. Interest expense includes interest expense from collateralized transactions, margin and related lines of credit. Dividends on financial instruments owned including those pledged as collateral and financial instruments sold, not yet purchased are recorded on the ex-dividend date and interest is recognized on an accrual basis.

 

Technology Services

 

Technology services revenues consist of technology licensing fees and agency commission fees. Technology licensing fees are earned from third parties for licensing of the Company’s proprietary risk management and trading infrastructure technology and the provision of associated management and hosting services. These fees include both upfront and annual recurring fees. Revenue from technology services is recognized once persuasive evidence of an arrangement exists, delivery has occurred, the fee is fixed or determinable and collectability is probable. Revenue is recognized ratably over the contractual service period. Agency commission fees are earned from agency trades executed by the Company on behalf of third parties and recognized on a trade date basis.

 

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Rebates

 

Rebates consist of volume discounts, credits or payments received from exchanges or other market places related to the placement and/or removal of liquidity from the order flow in the marketplace. Rebates are recorded on an accrual basis and included net within brokerage, exchange and clearance fees in the accompanying condensed consolidated statements of comprehensive income.

 

Income Taxes

 

Subsequent to consummation of the Reorganization Transactions and the IPO, the Company is subject to U.S. federal, state and local income taxes on its taxable income. The Company's subsidiaries are subject to income taxes in the respective jurisdictions (including foreign jurisdictions) in which they operate. Prior to the consummation of the Reorganization Transactions and the IPO, no provision for United States federal, state and local income tax was required, as Virtu Financial is a limited liability company and is treated as a pass-through entity for United States federal, state, and local income tax purposes.

 

The provision for income tax is comprised of current tax and deferred tax. Current tax represents the tax on current year tax returns, using tax rates enacted at the balance sheet date. The deferred tax assets are recognized in full and then reduced by a valuation allowance if it is more likely than not that some or all of the deferred tax assets will not be recognized.

 

The Company recognizes the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the applicable taxing authority, including resolution of the appeals or litigation processes, based on the technical merits of the position. The tax benefits recognized in the condensed consolidated financial statements from such a position are measured based on the largest benefit for each such position that has a greater than fifty percent likelihood of being realized upon ultimate resolution. Many factors are considered when evaluating and estimating the tax positions and tax benefits. Such estimates involve interpretations of regulations, rulings, case law, etc. and are inherently complex. The Company’s estimates may require periodic adjustments and may not accurately anticipate actual outcomes as resolution of income tax treatments in individual jurisdictions typically would not be known for several years after completion of any fiscal year. The Company has determined that there are no uncertain tax positions that would have a material impact on the Company’s financial position as of March 31, 2017 and December 31, 2016 or the results of operations or cash flows for the three months ended March 31, 2017 and 2016.

 

Comprehensive Income and Foreign Currency Translation

 

Comprehensive income consists of two components: net income and other comprehensive income (“OCI”). OCI is comprised of revenues, expenses, gains and losses that are reported in the comprehensive income section of the condensed consolidated statements of comprehensive income, but are excluded from reported net income. The Company’s OCI is comprised of foreign currency translation adjustments. Assets and liabilities of operations having non-U.S. dollar functional currencies are translated at period-end exchange rates, and revenues and expenses are translated at weighted average exchange rates for the period. Gains and losses resulting from translating foreign currency financial statements, net of related tax effects, are reflected in accumulated other comprehensive income, a separate component of stockholders’ equity.

 

Share-Based Compensation

 

The fair value of awards issued for compensation prior to the Reorganization Transactions and the IPO was determined by management, with the assistance of an independent third party valuation firm, using a projected annual forfeiture rate, where applicable, on the date of grant.

 

Share-based awards issued for compensation in connection with or subsequent to the Reorganization Transaction and the IPO pursuant to our 2015 Management Incentive Plan (the “2015 Management Incentive Plan”) were in the form of stock options, Class A common stock and restricted stock units. The fair value of the stock option grants is determined through the application of the Black-Scholes-Merton model. The fair value of the Class A common stock and restricted stock units are determined based on the volume weighted average price for the three days preceding the grant, and with respect to the restricted stock units, a projected annual forfeiture rate. The fair value of share-based awards granted to employees is expensed based on the vesting conditions and are recognized on a straight line basis over

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the vesting period. The Company records as treasury stock shares repurchased from its employees for the purpose of settling tax liabilities incurred upon the issuance of common stock, the vesting of restricted stock units or the exercise of stock options.

 

Recent Accounting Pronouncements

 

Revenue - In May 2014, the FASB issued Accounting Standard Update (“ASU”) No. 2014-09, Revenue from Contracts with Customers. ASU 2014-09 is a comprehensive new revenue recognition model that requires a company to recognize revenue to depict the transfer of goods or services to a customer at an amount that reflects the consideration it expects to receive in exchange for those goods or services. ASU 2014-09 also requires additional disclosure about the nature, amount, timing and uncertainty of revenue and cash flows arising from customer contracts, including significant judgments and changes in judgments and assets recognized from costs incurred to obtain or fulfill a contract. In August 2015, the FASB issued ASU No. 2015-14, Revenue from Contracts with Customers (Topic 606): Deferral of the Effective Date. ASU No. 2015-14 defers the effective date of ASU No. 2014-09 by one year for public companies. ASU 2015-14 applies to annual reporting periods beginning after December 15, 2017, including interim reporting periods within that reporting period. Early adoption is permitted only as of annual reporting periods beginning after December 15, 2016, including interim reporting periods within that reporting period. In December 2016, FASB issued ASU 2016-20 Technical Correction and Improvement (Topic 606): Revenue from Contracts with Customers , which amends the guidance in ASU 2014-09. The effective date and transition requirements for the ASU are the same as ASU 2014-09. The Company is expected to adopt the revenue recognition guidance on January 1, 2018. A significant amount of the Company’s revenues are derived from market making activities, which do not involve customer contracts. The Company is in its preliminary stages of identifying and evaluating the revenue streams and underlying revenue contracts within the scope of this ASU. The Company is expecting to develop processes and procedures during 2017 to ensure it is fully compliant with this ASU. As of March 31, 2017, the Company has not yet identified any significant changes in the timing of revenue recognition when considering this ASU, but the Company’s implementation efforts are ongoing and such assessments may change prior to the January 1, 2018 anticipated implementation date. Implementation of the ASU will likely result in additional disclosure regarding the Company’s technology revenues.

 

Financial Assets and Liabilities — In January 2016, the FASB issued ASU 2016-01, Financial Instruments – Overall (Subtopic 825-10): Recognition and Measurement of Financial Assets and Financial Liabilities . The update intends to enhance the reporting model for financial instruments to provide users of financial statements with more decision-useful information and addresses certain aspects of the recognition, measurement, presentation, and disclosure of financial instruments. The new standard affects all entities that hold financial assets or owe financial liabilities and is effective for annual reporting periods (including interim periods) beginning after December 15, 2017. Early adoption of the ASU is not permitted, e xcept for the amendments relating to the presentation of the change in the instrument-specific credit risk relating to a liability that an entity has elected to measure at fair value .  The Company is currently evaluating the potential effects of the adoption of ASU 2016-01 on its condensed consolidated financial statements, but does not expect it to have a material impact on its condensed consolidated financial statements, as it does not currently classify any equity securities as available for sale, and it does not apply the fair value option to its own debt issuances.

 

Leases — In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842) . Under the new ASU, a lessee will be required to recognize assets and liabilities for leases with lease terms of more than 12 months. The liability will be equal to the present value of lease payments. The asset, referred to as a “right-of-use asset” will be based on the liability, subject to adjustment, such as for initial direct costs. For income statement purposes, leases will be classified as either operating or finance. Operating leases will result in straight-line expense (similar to current operating leases) while finance leases will result in a front-loaded expense pattern (similar to current capital leases). Classification will be based on criteria that are largely similar to those applied in current lease accounting, but without explicit bright lines. New quantitative and qualitative disclosures, including significant judgments made by management, will be required to provide greater information regarding the extent of revenue and expense recognized and expected to be recognized from existing contracts.  The standard is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. The Company anticipates adopting this ASU on January 1, 2019. The Company is not anticipating recognizing lease assets and lease liabilities for leases with a term of twelve months or less. As of March 31, 2017, the Company has not yet identified any significant changes in the timing of operating leases recognition when considering this ASU, but the Company’s implementation efforts are ongoing and such assessments may change prior to the January 1, 2019, anticipated implementation date. Upon adoption of this ASU, the Company expects to report increased assets and liabilities on its condensed consolidated statement of financial condition as a result of recognizing

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right-of-use assets and lease liabilities related to certain equipment under noncancelable operating lease agreements, which currently are not reflected in its condensed consolidated statement of financial condition.

 

Compensation – Stock Compensation — In March 2016, FASB issued ASU 2016-09, Employee Share-Based Payment Accounting Improvements .   The ASU makes a number of changes to accounting for share based payment programs, including the following principal changes: providing that all excess tax benefits and tax deficiencies arising from share-based payment programs should be recognized as income tax expense or benefit in the income statement; allowing companies to make an entity-wide accounting policy election to either estimate the number of awards that are expected to vest (as is provided under current GAAP) or account for forfeitures when they occur; and providing that partial cash settlement of an award for tax-withholding purposes would not result, by itself, in liability classification of the award provided the amount withheld does not exceed the maximum statutory tax rate (as opposed to the current requirement which specifies the minimum statutory tax rate) for an employee in the applicable jurisdictions. The ASU also provides guidance on the classification of various items related to share based payment programs in the statement of cash flows.   The ASU is effective for annual periods beginning after December 15, 2016, and interim periods within those annual periods.  Early adoption is permitted, and an entity that elects early adoption must adopt all of the amendments in the same period. The Company has elected to early adopt this ASU effective as of December 31, 2016 and it did not have a material impact on the Company’s condensed consolidated financial statements.

Statement of Cash Flows – In August 2016, FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments . The ASU intended to reduce diversity in practice how certain transactions are classified in the statement of cash flows by mandating classification of certain activities. The ASU is effective for annual periods beginning after December 15, 2017, and interim periods within those annual periods.  Early adoption is permitted.  An entity that elects early adoption must adopt all of the amendments in the same period. The Company is currently evaluating the potential effects of adoption of ASU 2016-15 on the Company’s condensed consolidated financial statements.

Income Taxes – In October 2016, FASB issued ASU 2016-16, Income Taxes (Topic 749): Intra-Entity Transfers of Assets Other Than Inventory . The ASU requires the reporting entity to recognize the tax expense from the sale of an asset in the seller’s tax jurisdiction when the transfer occurs, even though the pre-tax effects of the transactions are eliminated in consolidation. Any deferred tax asset that arises in the buyer’s jurisdiction would also be recognized at the time of the transfer. The ASU is effective for annual periods beginning after December 15, 2018, and interim reporting periods within annual reporting periods beginning after December 15, 2019. The Company is currently evaluating the potential effects of adoption of ASU 2016-16 on the Company’s condensed consolidated financial statements.

Accounting Changes – In January 2017, FASB issued ASU 2017-03, Accounting Changes and Error Correction (Topic 250) and Investments – Equity Method and Joint Ventures (Topic 323),   which amends SEC Paragraphs Pursuant to Staff Announcements at the September 22, 2016 and November 17, 2016 EITF Meetings (SEC update). The SEC staff view is that a registrant should evaluate the impact of new accounting statndards that have not yet been adopted to determine the appropriate financial disclosures on the potential material effects, especially on new standards on revenue recognition, leases, and financial instruments – credit losses. If a registrant cannot reasonably estimate the impact that adoption of the ASUs, the registrant should consider additional qualitative financial statement disclosures to assist the reader in assessing the significance of the impact. Additional qualitative disclosures should include a description of the effect of the accounting policies expected to be applied compared to current accounting policies. Furthermore, the registrant should describe the status of its process to implement the new standards and the significant implementation matters yet to be addressed. The Company adopted this ASU on January 1, 2017, and appropriate disclosures have been included in this Note for each recently issued accounting standard.

 

Goodwill - In January, 2017, the FASB issued ASU No. 2017-04, Intangibles—Goodwill and Other (Topic 350), Simplifying the Test for Goodwill Impairment .  To simplify the subsequent measurement of goodwill, this ASU eliminated Step 2 from the goodwill impairment test. In computing the implied fair value of goodwill under Step 2, an entity had to perform procedures to determine the fair value at the impairment testing date of its assets and liabilities (including unrecognized assets and liabilities) following the procedure that would be required in determining the fair value of assets acquired and liabilities assumed in a business combination. Instead, under this ASU, an entity should perform its annual, or interim, goodwill impairment test by comparing the fair value of a reporting unit with its carrying amount. An entity should recognize an impairment charge for the amount by which the carrying amount exceeds the

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reporting unit’s fair value; however, the loss recognized should not exceed the total amount of goodwill allocated to that reporting unit. This ASU also eliminated the requirements for any reporting unit with a zero or negative carrying amount to perform a qualitative assessment and, if it fails that qualitative test, to perform Step 2 of the goodwill impairment test.  This ASU is effective for public entities in fiscal years beginning after December 15, 2019.  Early adoption is permitted for interim or annual goodwill impairment tests performed on testing dates after January 1, 2017. The Company does not expect the adoption of this ASU to have a material impact on its condensed consolidated financial statements.

 

3. Earnings per Share

 

Net income available for common stockholders is based on the Company’s approximate 29.9% interest in Virtu Financial.

 

The below table contains a reconciliation of net income before noncontrolling interest to net income available for common stockholders:

 

 

 

 

 

 

 

 

 

 

 

 For the Three Months Ended

 

 For the Three Months Ended

 

(in thousands)

    

March 31, 2017

    

March 31, 2016

 

Income before income taxes and noncontrolling interest

 

$

23,882

 

$

58,702

 

Provision for income taxes

 

 

2,808

 

 

7,346

 

Net income

 

 

21,074

 

 

51,356

 

 

 

 

 

 

 

 

 

Noncontrolling interest

 

 

(16,494)

 

 

(41,008)

 

 

 

 

 

 

 

 

 

Net income available for common stockholders

 

$

4,580

 

$

10,348

 

 

 

The calculation of basic and diluted earnings per share is presented below:

 

 

 

 

 

 

 

 

 

 

 

 For the Three Months Ended March 31,

 

(in thousands, except for share or per share data)

 

2017

 

2016

 

Basic earnings per share:

 

 

 

 

 

 

 

Net income available for common stockholders

 

$

4,580

 

$

10,348

 

 

 

 

 

 

 

 

 

Less: Dividends and undistributed earnings allocated to participating securities

 

 

(353)

 

 

(221)

 

Net income available for common stockholders, net of dividends and undistributed earnings allocated to participating securities

 

 

4,227

 

 

10,127

 

 

 

 

 

 

 

 

 

Weighted average shares of common stock outstanding:

 

 

 

 

 

 

 

Class A

 

 

40,398,381

 

 

38,210,209

 

 

 

 

 

 

 

 

 

Basic Earnings per share

 

$

0.10

 

$

0.27

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 For the Three Months Ended March 31,

 

(in thousands, except for share or per share data)

 

2017

 

2016

 

Diluted earnings per share:

 

 

 

 

 

 

 

Net income available for common stockholders, net of dividends and undistributed earnings allocated to participating securities

 

$

4,227

 

$

10,127

 

 

 

 

 

 

 

 

 

Weighted average shares of common stock outstanding:

 

 

 

 

 

 

 

Class A

 

 

 

 

 

 

 

Issued and outstanding

 

 

40,398,381

 

 

38,210,209

 

Issuable pursuant to 2015 Management Incentive Plan(1)

 

 

 —

 

 

279,280

 

 

 

 

40,398,381

 

 

38,489,489

 

 

 

 

 

 

 

 

 

Diluted Earnings per share

 

$

0.10

 

$

0.26

 

 

 

 

 

 

 


 

 

 

 

(1)

The dilutive impact of unexercised stock options excludes from the computation of EPS 774,529 options for the three months ended March 31, 2017  because inclusion of the options would have been anti-dilutive.

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4. Tax Receivable Agreements

 

In connection with the IPO and the Reorganization Transactions, the Company entered into tax receivable agreements to make payments to certain Virtu Members, as defined in Note 13, that are generally equal to 85% of the applicable cash tax savings, if any, that the Company actually realizes as a result of favorable tax attributes that were and will continue to be available to the Company as a result of the Reorganization Transactions, exchanges of membership interests for Class A common stock or Class B common stock and payments made under the tax receivable agreements. Payments will occur only after the filing of the U.S. federal and state income tax returns and realization of the cash tax savings from the favorable tax attributes. The first payment is due 120 days after the filing of the Company’s tax return for the year ended December 31, 2015, which was due March 15, 2016, but the due date was extended until September 15, 2016. Future payments under the tax receivable agreements in respect of subsequent exchanges would be in addition to these amounts. The Company made its first payment of $7.0 million during the three months ended March 31, 2017.

 

As a result of (i) the purchase of equity interests in Virtu Financial from certain Virtu Members in connection with the Reorganization Transactions, (ii) the purchase of non-voting common interest units in Virtu Financial (the “Virtu Financial Units”) (along with the corresponding shares of Class C common stock) from certain of the Virtu Members in connection with the IPO, (iii) the purchase of Virtu Financial Units (along with the corresponding shares of Class C common stock) and the exchange of Virtu Financial Units (along with the corresponding shares of Class C common stock) for shares of Class A common stock in connection with the Secondary Offerings, the Company recorded a deferred tax asset of $215.9 million associated with the increase in tax basis that results from such events. Payments to certain Virtu Members in respect of the purchases are expected to aggregate to approximately $236.4 million, ranging from approximately $0.3 million to $21.2 million per year over the next 15 years. The corresponding deduction to additional paid-in capital was approximately $20.5 million for the difference between the tax receivable agreements liability and the related deferred tax asset. In connection with the February 2017 employee exchange (as described in Note 13), the Company recorded an additional deferred tax asset of $5.8 million and payment liability pursuant to the tax receivable agreements of $5.0 million, with the $0.8 million difference recorded as an increase to additional paid in capital. The amounts recorded as of March 31, 2017 are based on estimates available at the respective dates and may be subject to change after the filing of the Company’s U.S. federal and state income tax returns for the years in which tax savings were realized. At March 31, 2017 and December 31, 2016, the Company’s remaining deferred tax assets were approximately $189.6 million and $185.6 million, respectively, and the Company’s payment liabilities pursuant to the tax receivable agreements were approximately $229.4 million and $231.4 million, respectively.

For the tax receivable agreements discussed above, the cash savings realized by the Company are computed by comparing the actual income tax liability of the Company to the amount of such taxes the Company would have been required to pay had there been (i) no increase to the tax basis of the assets of Virtu Financial as a result of the purchase or exchange of Virtu Financial Units, (ii) no tax benefit from the tax basis in the intangible assets of Virtu Financial on the date of the IPO and (iii) no tax benefit as a result of the Net Operating Losses (“NOLs”) and other tax attributes of Virtu Financial. Subsequent adjustments of the tax receivable agreements obligations due to certain events (e.g., changes to the expected realization of NOLs or changes in tax rates) will be recognized within operating expenses in the condensed consolidated statements of comprehensive income.

5. Goodwill and Intangible Assets

 

There were no changes in the carrying amount of goodwill and no goodwill impairment was recognized in the three months ended March 31, 2017 and 2016.

 

Acquired intangible assets consisted of the following as of March 31, 2017 and December 31, 2016:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As of March 31, 2017

 

 

 

Gross

 

 

 

 

 

 

 

 

 

 

 

 

 

Carrying

 

Accumulated

 

Net Carrying

 

Useful Lives

 

(in thousands)

    

Amount 

    

Amortization 

    

Amount 

    

(Years) 

 

Purchased technology

    

$

110,000

    

$

110,000

    

$

 —

    

1.4

 to 

2.5

 

ETF issuer relationships

 

 

950

 

 

481

 

 

469

 

 

9

 

 

ETF buyer relationships

 

 

950

 

 

480

 

 

470

 

 

9

 

 

 

 

$

111,900

 

$

110,961

 

$

939

 

 

 

 

 

 

 

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Table of Contents

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As of December 31, 2016

 

 

 

Gross

 

 

 

 

 

 

 

 

 

 

 

 

 

Carrying

 

Accumulated

 

Net Carrying

 

Useful Lives

 

(in thousands)

    

Amount 

    

Amortization 

    

Amount 

    

(Years) 

 

Purchased technology

    

$

110,000

    

$

110,000

    

$

 —

    

1.4

 to 

2.5

 

ETF issuer relationships

 

 

950

 

 

454

 

 

496

 

 

 9

 

 

ETF buyer relationships

 

 

950

 

 

454

 

 

496

 

 

 9

 

 

 

 

$

111,900

 

$

110,908

 

$

992

 

 

 

 

 

 

Amortization expense relating to finite-lived intangible assets was approximately $0.05 million and $0.05 million for the three months ended March 31, 2017 and 2016, respectively. This is included in amortization of purchased intangibles and acquired capitalized software in the accompanying condensed consolidated statements of comprehensive income.

6. Receivables from/Payables to Broker-Dealers and Clearing Organizations

 

The following is a summary of receivables from and payables to brokers-dealers and clearing organizations at March 31, 2017 and December 31, 2016:

 

 

 

 

 

 

 

 

 

(in thousands)

 

2017

 

2016

 

Assets

    

 

 

    

 

 

 

Due from prime brokers

 

$

271,834

 

$

91,476

 

Deposits with clearing organizations

 

 

32,513

 

 

21,995

 

Net equity with futures commission merchants

 

 

190,415

 

 

213,030

 

Unsettled trades with clearing organization

 

 

47,672

 

 

44,312

 

Securities failed to deliver

 

 

119,879

 

 

77,915

 

Total receivables from broker-dealers and clearing organizations

 

$

662,313

 

$

448,728

 

Liabilities

 

 

 

 

 

 

 

Due to prime brokers

 

$

395,191

 

$

227,335

 

Net equity with futures commission merchants

 

 

42,127

 

 

38,838

 

Unsettled trades with clearing organization

 

 

152,370

 

 

429,800

 

Securities failed to receive

 

 

 —

 

 

 5

 

Total payables to broker-dealers and clearing organizations

 

$

589,688

 

$

695,978

 

 

Included as a deduction from “Due from prime brokers” and “Net equity with futures commission merchants” is the outstanding principal balance on all of the Company’s short-term credit facilities (described in Note 8) of approximately $241.3 million and $309.1 million as of March 31, 2017 and December 31, 2016, respectively. The loan proceeds from the credit facilities are available only to meet the initial margin requirements associated with the Company’s ordinary course futures and other trading positions, which are held in the Company’s trading accounts with an affiliate of the respective financial institutions. The credit facilities are fully collateralized by the Company’s trading accounts and deposit accounts with these financial institutions. “Securities failed to deliver” and “Securities failed to receive” include amounts with a clearing organization and other broker-dealers.

7. Collateralized Transactions

 

The Company is permitted to sell or repledge securities received as collateral and use these securities to secure repurchase agreements, enter into securities lending transactions or deliver these securities to counterparties or clearing organizations to cover short positions. At March 31, 2017 and December 31, 2016, substantially all of the securities received as collateral have been repledged. The fair value of the collateralized transactions at March 31, 2017 and December 31, 2016 are summarized as follows:

 

 

 

 

 

 

 

 

 

(in thousands)

 

2017

 

2016

 

Securities received as collateral:

    

 

 

    

 

 

 

Securities borrowed

 

$

347,934

 

$

213,203

 

Securities purchased under agreements to resell

 

 

 —

 

 

 —

 

 

 

$

347,934

 

$

213,203

 

 

In the normal course of business, the Company pledges qualified securities with clearing organizations to satisfy daily margin and clearing fund requirements.

 

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Financial instruments owned and pledged, where the counterparty has the right to repledge, at March 31, 2017 and December 31, 2016 consisted of the following:

 

 

 

 

 

 

 

 

 

(in thousands)

 

2017

 

2016

 

Equities

    

$

264,486

    

$

128,202

 

Exchange traded notes

 

 

4,903

 

 

15,681

 

 

 

$

269,389

 

$

143,883

 

 

 

8. Borrowings

 

Outstanding borrowings and financing capacity or unused available capacity under the Company’s borrowing arrangements were as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

At March 31, 2017

 

At December 31, 2016

 

 

 

 

 

Financing

 

 

Borrowing

 

 

Financing

 

 

Borrowing

 

 

(in thousands)

 

 

Available

 

 

Outstanding

 

 

Available

 

 

Outstanding

 

 

Broker-dealer credit facilities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Uncommitted facility

 

$

125,000

 

$

22,000

 

$

125,000

 

$

25,000

 

 

Committed facility

 

 

75,000

 

 

 —

 

 

75,000

 

 

 —

 

 

 

 

$

200,000

 

$

22,000

 

$

200,000

 

$

25,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Short-Term Credit Facilities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Short-term credit facilities (1)

 

$

493,000

 

$

241,324

 

$

493,000

 

$

309,086

 

 

 

 

$

493,000

 

$

241,324

 

$

493,000

 

$

309,086

 

_______________________________________

(1)

Outstanding borrowings were included with receivable from broker-dealers and clearing organization within the consolidated statements of financial condition.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

At March 31, 2017

 

At December 31, 2016

 

 

 

 

Maturity

 

 

Unused Available

 

 

Borrowing

 

 

Unused Available

 

 

Borrowing

 

 

(in thousands)

 

Date

 

 

Capacity

 

 

Outstanding

 

 

Capacity

 

 

Outstanding

 

 

Long-term borrowings:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Senior secured credit facility

 

October 2022

 

$

n/a

 

$

533,961

 

$

n/a

 

$

535,104

 

 

Revolving credit facility

 

April 2018

 

 

100,000

 

 

 —

 

 

100,000

 

 

 —

 

 

SBI bonds

 

January 2020

 

 

n/a

 

 

31,356

 

 

n/a

 

 

29,853

 

 

 

 

 

 

$

100,000

 

$

565,317

 

$

100,000

 

$

564,957

 

 

 

Broker-Dealer Credit Facilities

 

The Company is a party to two secured credit facilities with the same financial institution to finance overnight securities positions purchased as part of its ordinary course broker-dealer market making activities. One of the facilities (the “Uncommitted Facility”), is provided on an uncommitted basis and is available for borrowings by the Company’s broker-dealer subsidiaries up to a maximum amount of $125.0 million. In connection with this credit facility, the Company has entered into demand promissory notes dated February 20, 2013. The loans provided under the Uncommitted Facility are collateralized by the Company’s broker-dealer trading and deposit accounts with the same financial institution and, bear interest at a rate set by the financial institution on a daily basis (1.91% at March 31, 2017 and 1.66% at December 31, 2016). The Company is party to another facility (the “Committed Facility”) with the same financial institution dated July 22, 2013   and subsequently amended on March 26, 2014, July 21, 2014, April 24, 2015,

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and July 18, 2016 which is provided on a committed basis and is available for borrowings by one of the Company's broker-dealer subsidiaries up to a maximum of the lesser of $75.0 million or an amount determined based on agreed advance rates for pledged securities. The Committed Facility is subject to certain financial covenants, including a minimum tangible net worth, a maximum total assets to equity ratio, and a minimum excess net capital, each as defined therein. The Committed Facility bears interest at a rate per annum at the Company’s election equal to either an adjusted LIBOR rate or base rate, plus a margin of 1.25% per annum, and has a term of 364 days. Interest expense for the three months ended March 31, 2017 and 2016 was approximately $0.4 million and $0.3 million, respectively. Interest expense is included within interest and dividends expense in the accompanying condensed consolidated statements of comprehensive income.

 

Short-Term Credit Facilities

 

The Company maintains short term credit facilities with various prime brokers and other financial institutions from which it receives execution or clearing services.  The proceeds of these facilities are used to meet margin requirements associated with the products traded by the Company in the ordinary course, and amounts borrowed are collateralized by the Company’s trading accounts with the applicable financial institution. Borrowings bore interest at a weighted average interest rate of 3.27% and 3.12% per annum, as March 31, 2017 and December 31, 2016, respectively.  Interest expense in relation to the facilities for the three months ended March 31, 2017 and 2016 was approximately $1.7 million and $1.7 million, respectively. Interest expense is recorded within interest and dividends expense in the accompanying condensed consolidated statements of comprehensive income.

 

Long-Term Borrowings

 

Senior Secured Credit Facility

 

On July 8, 2011, Virtu Financial, its wholly owned subsidiary, VFH Parent LLC (“VFH”), and each of its unregulated domestic subsidiaries entered into the credit agreement (the “Credit Agreement”) among VFH, Virtu Financial, Credit Suisse AG, as administrative agent, and the other parties thereto. The Credit Agreement was amended on February 5, 2013, May 1, 2013 and November 8, 2013.

 

On October 27, 2016, Virtu Financial and VFH entered into a third amended and restated credit agreement with JPMorgan Chase Bank, N.A. as administrative agent, lead arranger and bookrunner and BMO Capital Markets Corp., as syndication agent (the “Refinancing Transaction”).  The third amended and restated credit agreement amends and restated in its entirety the existing Credit Agreement. Under the third amended and restated credit agreement (i) VFH’s existing term loan facility was replaced by a senior secured first lien term loan in an aggregate principal amount of $540.0 million, drawn in its entirety on the closing date and (ii) VFH’s existing senior secured first lien revolving facility with aggregate commitments of $100.0 million remains in effect. The term loan borrowings under the third amended and restated credit agreement will bear interest at the Company’s election, at either (i) the greatest of (a) the prime rate in effect, (b) the federal funds effective rate plus 0.5% (c) an adjusted LIBOR rate for a Eurodollar borrowing with an interest period of one month plus 1%, and (d) 1.75% plus, in each case, 2.50%, or (ii) greater of (x) an adjusted LIBOR rate for the interest period in effect and (y) 0.75%, plus, in each case, 3.50%.  In addition, the term loans were issued at a discount of 0.25%. Borrowings under the third amended and restated credit agreement continue to be secured by substantially all of VFH’s assets, other than the equity interests in and assets of its subsidiaries that are subject to, or potentially subject to, regulatory oversight, and its foreign subsidiaries, but including 100% of the non-voting stock and 65% of the voting stock of these subsidiaries. Under the terms of the third amended and restated credit agreement, term loans will mature on October 27, 2022, subject to certain exceptions and permitted extensions as set forth in the third amended and restated credit agreement. A portion of certain financing costs incurred in connection with the original credit facility that were scheduled to be amortized over the term of the loan, including original issue discount and underwriting and legal fees, were accelerated at the closing of the refinancing.

 

On April 15, 2015, the Company, Virtu Financial, and each unregulated domestic subsidiary of Virtu Financial, entered into an amendment agreement to the Credit Agreement, which provided for a revolving credit facility with aggregate commitments by revolving lenders of $100.0 million. The revolving credit facility is secured pari passu with the term loans outstanding under the Credit Agreement and is subject to the same financial covenants and negative covenants.  Borrowings under the revolving facility bear interest, at the Company’s election, at either (i) the greatest of (a) the prime rate in effect, (b) the federal funds effective rate plus 0.5%, and (c) an adjusted LIBOR rate for a Eurodollar borrowing with an interest period of one month plus 1% and (d) 2.00%, plus, in each case, 2.0%, or (ii) the greater of (x)

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an adjusted LIBOR rate for the interest period in effect and (y) 1.00%, plus, in each case, 3.0%. The Company will also pay a commitment fee of 0.50% per annum on the average daily unused portion of the facility.   Under the terms of the third amended and restated credit agreement, revolving commitments will terminate and outstanding revolving loans will mature on April 15, 2018, subject to certain exceptions and permitted extensions as set forth in the third amended and restated credit agreement.

SBI Bonds

On July 25, 2016, VFH issued Japanese Yen Bonds (collectively the “SBI Bonds”) in the aggregate principal amount of ¥3.5 billion ($33.1 million at issuance date) to SBI Life Insurance Co., Ltd. and SBI Insurance Co., Ltd. The proceeds from the SBI Bonds were used to partially fund the investment in SBI (as described in Note 9).  The SBI Bonds were issued bearing interest at the rate per annum of 4.0% until their scheduled maturity on January 6, 2020.  Following the consummation of the Refinancing Transaction and in accordance with the terms and conditions of the SBI Bonds, the rate per annum was increased to 5.0% as of October 2016. The SBI Bonds are guaranteed by Virtu Financial. The SBI Bonds are subject to fluctuations on the Japanese Yen currency rates relative to the Company’s reporting currency (U.S. Dollar) with the changes reflected in other, net in the consolidated statements of comprehensive income. The principal balance was ¥3.5 billion ($31.4 million) as of March 31, 2017 and the Company recorded a loss of $1.5 million due to the change in currency rates during the three months ended March 31, 2017.

Aggregate future required minimum principal payments based on the terms of the long-term borrowings at March 31, 2017 were as follows:

 

 

 

 

 

 

(in thousands)

    

 

    

 

2017

 

$

4,050

 

2018

 

 

5,400

 

2019

 

 

5,400

 

2020 and thereafter

 

 

555,221

 

Total principal of long-term borrowings

 

$

570,071

 

 

 

The below table contains a reconciliation of the long-term borrowings principal amount to the secured credit facility recorded in the condensed consolidated statements of financial condition:

 

 

 

 

 

 

 

 

 

 

 

 

At March 31,

 

 

At December 31,

 

(in thousands)

 

2017

 

2016

 

Senior secured credit facility outstanding principal

 

$

538,650

 

$

540,000

 

SBI Bonds outstanding principal

 

 

31,421

 

 

29,925

 

Net deferred financing fees

 

 

(3,839)

 

 

(4,012)

 

Net discount on senior secured credit facility

 

 

(915)

 

 

(956)

 

Long-term borrowings

 

$

565,317

 

$

564,957

 

 

 

9. Financial Assets and Liabilities

 

At March 31, 2017 and  December 31, 2016, substantially all of Company's financial assets and liabilities, except for the long-term borrowings, short-term borrowings, securities borrowed and loaned, and certain exchange memberships, which would all be categorized as Level 2, were carried at fair value based on published market prices and are marked to market daily or were short-term in nature and were carried at amounts that approximate fair value. The Company determined that the carrying value of the Company’s long-term borrowings approximates fair value as of March 31, 2017 and December 31, 2016 based on the recent transaction date of the SBI Bonds and the quoted over-the-counter market prices provided by the issuer of the senior secured credit facility, and would be categorized as Level 2.

 

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As of March 31, 2017, the Company began pricing certain financial instruments held for trading at fair value based on theoretical prices which can differ from quoted market prices. The theoretical prices reflect price adjustments primarily caused by the fact that the Company continuously prices its financial instruments based on all available information. This includes prices for identical and near-identical positions, as well as the prices for securities underlying the Company’s positions, on other exchanges that are open after the exchange on which the financial instruments is traded closes. The Company’s middle office department validates that all price adjustments can be substantiated with market inputs and checks the theoretical prices independently. Consequently, such financial instruments are classified as Level 2. The Company concluded that this is a change in accounting estimate and no retrospective adjustments were necessary.

 

The fair value of equities, U.S. government obligations and exchange traded notes is estimated using recently executed transactions and market price quotations in active markets and are categorized as Level 1 with the exception of inactively traded equities and certain financial instruments noted in the preceding paragraph which are categorized as Level 2. Fair value of the Company’s derivative contracts is based on the indicative prices obtained from broadly distributed bank and broker dealers, as well as management’s own analyses. The indicative prices have been independently validated through the Company’s risk management systems, which are designed to check prices with information independently obtained from exchanges and venues where such financial instruments are listed or to compare prices of similar instruments with similar maturities for listed financial futures in foreign exchange. At March 31, 2017 and December 31, 2016, the Company’s derivative contracts and non-U.S. government obligations have been categorized as Level 2.

 

In July 2016, the Company made an additional minority investment in SBI, a proprietary trading system based in Tokyo, which is further described later in this footnote. The Company elected the fair value option to account for this equity method investment because it believes that fair value is the most relevant measurement attribute for this investment, as well as to reduce operational and accounting complexity. This investment has been categorized as Level 3. The valuation process involved for Level 3 measurements is completed on a quarterly basis. The Company employs two valuation methodologies when determining the fair value of investments categorized as Level 3, market comparable analysis and discounted cash flow analysis. The market comparable analysis considers key financial inputs, recent public and private transactions and other available measures. The discounted cash flow analysis incorporates significant assumptions and judgments and the estimates of key inputs used in this methodology include the discount rate for the investment and assumed inputs used to calculate terminal values, such as price/earnings multiples. Upon completion of the valuations conducted using these methodologies, a weighting is ascribed to each method and the ultimate fair value recorded for a particular investment will generally be within a range suggested by the two methodologies. When determining the weighting ascribed to each valuation methodology, the Company considers, among other factors, the availability of direct market comparables, the applicability of a discounted cash flow analysis and the expected holding period.

 

There were no transfers of financial instruments between levels during the three months ended March 31, 2017 and 2016.

 

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Fair value measurements for those items measured on a recurring basis are summarized below as of March 31, 2017:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

March 31, 2017

 

 

 

Quoted Prices

 

Significant

 

 

 

 

 

 

 

 

 

 

in Active

 

Other

 

Significant

 

Counterparty

 

 

 

 

 

 

Markets for

 

Observable

 

Unobservable

 

and Cash

 

 

 

 

 

 

Identical Assets

 

Inputs

 

Inputs

 

Collateral

 

Total Fair

 

(in thousands)

    

(Level 1) 

    

(Level 2) 

    

(Level 3) 

    

Netting 

    

Value 

 

Assets

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Financial instruments owned, at fair value:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity securities

 

$

184,003

 

$

1,414,065

 

$

 —

 

$

 —

 

$

1,598,068

 

Non-U.S. government obligations

 

 

 —

 

 

9,007

 

 

 —

 

 

 —

 

 

9,007

 

Exchange traded notes

 

 

1,081

 

 

21,103

 

 

 —

 

 

 —

 

 

22,184

 

Currency forwards

 

 

 —

 

 

1,756,179

 

 

 —

 

 

(1,755,123)

 

 

1,056

 

Options

 

 

 —

 

 

266

 

 

 —

 

 

 —

 

 

266

 

 

 

$

185,084

 

$

3,200,620

 

$

 —

 

$

(1,755,123)

 

$

1,630,581

 

Financial instruments owned, pledged as collateral:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity securities

 

$

32,168

 

$

232,318

 

$

 —

 

$

 —

 

$

264,486

 

Exchange traded notes

 

 

 —

 

 

4,903

 

 

 —

 

 

 —

 

 

4,903

 

 

 

$

32,168

 

$

 237,221

 

$

 —

 

$

 —

 

$

269,389

 

Other Assets

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity investment

 

$

 —

 

$

 —

 

$

37,588

 

$

 —

 

$

37,588

 

Exchange stock

 

 

467

 

 

 —

 

 

 —

 

 

 —

 

 

467

 

 

 

$

467

 

$

 —

 

$

37,588

 

$

 —

 

$

38,055

 

Liabilities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Financial instruments sold, not yet purchased, at fair value:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity securities

 

$

604,260

 

$

1,014,410

 

$

 —

 

$

 —

 

$

1,618,670

 

Exchange traded notes

 

 

 —

 

 

54,904

 

 

 —

 

 

 —

 

 

54,904

 

Currency forwards

 

 

 —

 

 

1,792,466

 

 

 —

 

 

(1,792,466)

 

 

 —

 

Options

 

 

 —

 

 

228

 

 

 —

 

 

 —

 

 

228

 

 

 

$

604,260

 

$

2,862,008

 

$

 —

 

$

(1,792,466)

 

$

1,673,802

 

 

21


 

Table of Contents

Fair value measurements for those items measured on a recurring basis are summarized below as of December 31, 2016:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

December 31, 2016

 

 

 

Quoted

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Prices in

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Active

 

Significant

 

 

 

 

 

 

 

 

 

 

 

 

Markets for

 

Other

 

Significant

 

Counterparty

 

 

 

 

 

 

Identical

 

Observable

 

Unobservable

 

and Cash

 

 

 

 

 

 

Assets

 

Inputs

 

Inputs

 

Collateral

 

Total Fair

 

(in thousands)

    

(Level 1) 

    

(Level 2) 

    

(Level 3) 

    

Netting 

    

Value 

 

Assets

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Financial instruments owned, at fair value:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity securities

 

$

1,597,049

 

$

31,988

 

$

 —

 

$

 —

 

$

1,629,037

 

Non-U.S. government obligations

 

 

 —

 

 

10,765

 

 

 —

 

 

 —

 

 

10,765

 

Exchange traded notes

 

 

37,034

 

 

 —

 

 

 —

 

 

 —

 

 

37,034

 

Currency forwards

 

 

 —

 

 

1,147,261

 

 

 —

 

 

(1,140,239)

 

 

7,022

 

Options

 

 

 —

 

 

141

 

 

 —

 

 

 —

 

 

141

 

 

 

$

1,634,083

 

$

1,190,155

 

$

 —

 

$

(1,140,239)

 

$

1,683,999

 

Financial instruments owned, pledged as collateral:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity securities

 

$

128,202

 

$

 —

 

$

 —

 

$

 —

 

$

128,202

 

Exchange traded notes

 

 

15,681

 

 

 —

 

 

 —

 

 

 —

 

 

15,681

 

 

 

$

143,883

 

$

 —

 

$

 —

 

$

 —

 

$

143,883

 

Other Assets

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity investment

 

$

 —

 

$

 —

 

$

36,031

 

$

 —

 

$

36,031

 

Exchange stock

 

 

449

 

 

 —

 

 

 —

 

 

 —

 

 

449

 

 

 

$

449

 

$

 —

 

$

36,031

 

$

 —

 

$

36,480

 

Liabilities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Financial instruments sold, not yet purchased, at fair value:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity securities

 

$

1,323,693

 

$

6,638

 

$

 —

 

$

 —

 

$

1,330,331

 

Exchange traded notes

 

 

18,744

 

 

 —

 

 

 —

 

 

 —

 

 

18,744

 

Currency forwards

 

 

 —

 

 

1,009,038

 

 

 —

 

 

(1,009,038)

 

 

 —

 

Options

 

 

 —

 

 

80

 

 

 —

 

 

 —

 

 

80

 

 

 

$

1,342,437

 

$

1,015,756

 

$

 —

 

$

(1,009,038)

 

$

1,349,155

 

 

Investment in SBI Japannext Co., Ltd.

On July 27, 2016, the Company purchased an additional minority interest (29.4%) in SBI Japannext (“SBI”), a proprietary trading system based in Tokyo, for $38.8 million in cash. In connection with the investment, VFH issued bonds to certain affiliates of SBI Japannext and used the proceeds to finance the transaction (Note 8).

As of March 31, 2017, the Company determined the fair value of SBI using the discounted cash flow method, an income approach, with the discount rate of 15.9% applied to the cash flow forecasts. The Company also used a market approach based on 19x average price/earnings multiples of comparable companies to corroborate the income approach. The fair value of SBI at December 31, 2016 was determined to approximate the purchase price paid for the SBI investment, adjusted for the changes in the Japanese Yen currency rate, given the proximity to the transaction date and lack of significant events subsequent to the transaction date. The fair value measurement is highly sensitive to significant changes in the unobservable inputs and significant increases (decreases) in discount rate or decreases (increases) in price/earnings multiples would result in a significantly lower (higher) fair value measurement. Changes in the fair value of SBI are reflected in other revenues, net in the consolidated statements of comprehensive income.

22


 

Table of Contents

The following presents the changes in Level 3 financial instruments measured at fair value on a recurring basis:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31, 2017

 

 

 

 

 

 

 

 

 

 

 

 

Change in Net

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Unrealized Gains

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

/ (Losses) on

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Investments

 

 

Balance at

 

 

 

Total Realized

 

Net Transfers

 

Balance at

 

still held at

 

 

December 31,

 

 

 

and Unrealized

 

into (out of)

 

March 31,

 

March 31,

(in thousands)

 

2016

 

Purchases

 

Gains / (Losses)

 

Level 3

 

2017

 

2017

Assets

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other assets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity investment

 

$

36,031

 

$

 —

 

$

1,557

 

$

 —

 

$

37,588

 

$

1,557

Total

 

$

36,031

 

$

 —

 

$

1,557

 

$

 —

 

$

37,588

 

$

1,557

 

Offsetting of Financial Assets and Liabilities

 

The Company does not net securities borrowed and securities loaned, or securities purchased under agreements to resell and securities sold under agreements to repurchase. These financial instruments are presented on a gross basis in the condensed consolidated statements of financial condition. In the tables below, the amounts of financial instruments owned that are not offset in the condensed consolidated statements of financial condition, but could be netted against financial liabilities with specific counterparties under legally enforceable master netting agreements in the event of default, are presented to provide financial statement readers with the Company’s estimate of its net exposure to counterparties for these financial instruments.

 

The following tables set forth the gross and net presentation of certain financial assets and financial liabilities as of March 31, 2017 and December 31, 2016

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

March 31, 2017

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Amounts of

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross Amounts

 

Assets Presented

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Offset in the

 

in the

 

Gross Amounts Not Offset In the

 

 

 

 

 

 

Gross Amounts 

 

Consolidated

 

Consolidated

 

Statement of Financial Condition 

 

 

 

 

 

 

of Recognized

 

Statement of

 

Statement of

 

Financial

 

Cash Collateral

 

 

 

(in thousands)

  

Assets 

  

Financial Condition

  

Financial Condition

  

Instruments 

  

Received 

  

Net Amount 

 

Offsetting of Financial Assets:

  

 

    

  

 

    

  

 

    

  

 

    

  

 

    

  

 

    

 

Securities borrowed

 

$

358,463

 

$

 —

 

$

358,463

 

$

(350,923)

 

$

(1,272)

 

$

6,268

 

Trading assets, at fair value:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Currency forwards

 

 

1,756,179

 

 

(1,755,123)

 

 

1,056

 

 

 —

 

 

 —

 

 

1,056

 

Options

 

 

266

 

 

 —

 

 

266

 

 

(214)

 

 

(2)

 

 

50

 

Total

 

$

2,114,908

 

$

(1,755,123)

 

$

359,785

 

$

(351,137)

 

$

(1,274)

 

$

7,374

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Amounts of

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross Amounts

 

Liabilities Presented

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Offset in the

 

in the

 

Gross Amounts Not Offset In the

 

 

 

 

 

 

Gross Amounts 

 

Consolidated

 

Consolidated

 

Statement of Financial Condition 

 

 

 

 

 

 

of Recognized

 

Statement of

 

Statement of

 

Financial

 

Cash Collateral

 

 

 

 

  

Liabilities

  

Financial Condition

  

Financial Condition

  

Instruments 

  

Pledged

  

Net Amount 

 

Offsetting of Financial Liabilities:

  

 

    

  

 

 

  

 

    

  

 

    

  

 

    

  

 

    

 

Securities loaned

 

$

423,672

 

$

 —

 

$

423,672

 

$

(423,408)

 

$

 —

 

$

264

 

Trading liabilities, at fair value:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Currency forwards

 

 

1,792,466

 

 

(1,792,466)

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Options

 

 

228

 

 

 —

 

 

228

 

 

(214)

 

 

 —

 

 

14

 

Total

 

$

2,216,366

 

$

(1,792,466)

 

$

423,900

 

$

(423,622)

 

$

 —

 

$

278

 

 

23


 

Table of Contents

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31, 2016

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Amounts of

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross Amounts

 

Assets Presented

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Offset in the

 

in the

 

Gross Amounts Not Offset In the

 

 

 

 

 

  

Gross Amounts 

 

Consolidated

 

Consolidated

 

Statement of Financial Condition 

 

 

 

 

 

  

of Recognized

 

Statement of

 

Statement of

 

Financial

 

Cash Collateral

 

 

 

(in thousands)

 

Assets 

  

Financial Condition

  

Financial Condition

  

Instruments 

  

Received 

  

Net Amount 

 

Offsetting of Financial Assets:

  

 

    

  

 

    

  

 

    

  

 

    

  

 

    

  

 

    

 

Securities borrowed

 

$

220,005

 

$

 —

 

$

220,005

 

$

(216,778)

 

$

(248)

 

$

2,979

 

Trading assets, at fair value:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Currency forwards

 

 

1,147,261

 

 

(1,140,239)

 

 

7,022

 

 

 —

 

 

 —

 

 

7,022

 

Options

 

 

141

 

 

 —

 

 

141

 

 

(80)

 

 

(13)

 

 

48

 

Total

 

$

1,367,407

 

$

(1,140,239)

 

$

227,168

 

$

(216,858)

 

$

(261)

 

$

10,049

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Amounts of

 

 

 

 

 

 

 

 

 

 

 

 

 

Liabilities 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross Amounts

 

Presented

 

Gross Amounts Not Offset In the

 

 

 

 

 

 

 

 

 

Offset in the

 

in the

 

Consolidated

 

 

 

 

 

 

 

 

 

Condensed

 

Condensed

 

Condensed Consolidated

 

 

 

 

 

 

Gross Amounts 

 

Consolidated

 

Consolidated

 

Statement of Financial Condition 

 

 

 

 

 

  

of Recognized

 

Statement of

 

Statement of

 

Financial

 

Cash Collateral

 

 

 

(in thousands)

  

Liabilities

  

Financial Condition

  

Financial Condition

  

Instruments 

  

Pledged

  

Net Amount 

 

Offsetting of Financial Liabilities:

  

 

    

  

 

 

  

 

    

  

 

    

  

 

    

  

 

    

 

Securities loaned

 

$

222,203

 

$

 —

 

$

222,203

 

$

(221,792)

 

$

 —

 

$

411

 

Trading liabilities, at fair value:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Currency forwards

 

 

1,009,038

 

 

(1,009,038)

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Options

 

 

80

 

 

 —

 

 

80

 

 

(80)

 

 

 —

 

 

 —

 

Total

 

$

1,231,321

 

$

(1,009,038)

 

$

222,283

 

$

(221,872)

 

$

 —

 

$

411

 

 

Excluded from the fair value and offsetting tables above is net unsettled fair value on long and short futures contracts in the amounts of $(10.4) million and $18.0 million, which are included within receivables from broker-dealers and clearing organizations as of March 31, 2017 and December 31, 2016, respectively, and $(4.7) million and $(3.5) million, which are included within payables to broker-dealers and clearing organizations as of March 31, 2017 and December 31, 2016, respectively, and would be categorized as Level 1.

 

The following table presents gross obligations for securities lending transactions by remaining contractual maturity and the class of collateral pledged.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

March 31, 2017

 

 

 

 

Remaining Contractual Maturity

 

 

 

Overnight and

 

Less than

 

30 - 90

 

Over 90

 

 

 

(in thousands)

 

Continuous

 

30 days

 

days

 

Days

 

Total

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Securities lending transactions:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity securities

 

$

423,672

 

$

 —

 

$

 —

 

$

 —

 

$

423,672

 

Total

 

$

423,672

 

$

 —

 

$

 —

 

$

 —

 

$

423,672

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31, 2016

 

 

 

Remaining Contractual Maturity

 

 

Overnight and

 

Less than

 

30 - 90

 

Over 90

 

 

(in thousands)

 

Continuous

 

30 days

 

days

 

Days

 

Total

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Repurchase agreements:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity securities

 

$

222,203

 

$

 —

 

$

 —

 

$

 —

 

$

222,203

Total

 

$

222,203

 

$

 —

 

$

 —

 

$

 —

 

$

222,203

 

 

 

24


 

Table of Contents

10. Derivative Instruments

 

The fair value of the Company's derivative instruments on a gross basis consisted of the following at March 31, 2017 and December 31, 2016:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(in thousands)

 

 

 

March 31, 2017

 

December 31, 2016

 

Derivatives Assets        

    

Balance Sheet Classification

    

Fair Value

    

Notional

    

Fair Value

    

Notional

 

Equities futures

 

Receivables from broker dealers and clearing organizations

 

$

427

 

$

654,155

 

$

2,403

 

$

1,461,286

 

Commodity futures       

 

Receivables from broker dealers and clearing organizations

 

 

(23,638)

 

 

5,612,720

 

 

13,964

 

 

3,918,778

 

Currency futures

 

Receivables from broker dealers and clearing organizations

 

 

12,902

 

 

3,219,766

 

 

1,591

 

 

3,264,093

 

Fixed income futures

 

Receivables from broker dealers and clearing organizations

 

 

(71)

 

 

3,609

 

 

31

 

 

5,730

 

Options

 

Financial instruments owned

 

 

266

 

 

9,876

 

 

141

 

 

6,844

 

Currency forwards

 

Financial instruments owned

 

 

1,756,179

 

 

165,982,871

 

 

1,147,261

 

 

94,192,414

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Derivatives Liabilities

    

Balance Sheet Classification

    

Fair Value

    

Notional

    

Fair Value

    

Notional

 

Equities futures

 

Payables to broker dealers and clearing organizations

 

$

(1,632)

 

$

220,751

 

$

(43)

 

$

62,417

 

Commodity futures

 

Payables to broker dealers and clearing organizations

 

 

(3,091)

 

 

20,879,583

 

 

2,842

 

 

22,616,170

 

Currency futures

 

Payables to broker dealers and clearing organizations

 

 

(19)

 

 

1,713,567

 

 

(6,282)

 

 

1,137,908

 

Currency forwards

 

Financial instruments sold, not yet purchased

 

 

228

 

 

15,124

 

 

80

 

 

4,486

 

Interest rate swaps

 

Financial instruments sold, not yet purchased

 

 

1,792,466

 

 

169,531,047

 

 

1,009,038

 

 

85,874,684

 

 

Amounts included in receivables from and payables to broker-dealers and clearing organizations represent variation margin on long and short futures contracts.

 

The following table summarizes the net gain from derivative instruments not designated as hedging instruments under ASC 815, which are recorded in trading income, net in the accompanying condensed consolidated statements of comprehensive income for the three months ended March 31, 2017 and 2016.

 

 

 

 

 

 

 

 

 

 

 

 

March 31, 

 

 

(in thousands)

    

2017

    

2016

    

 

Futures

 

$

165,590

 

$

308,480

 

 

Currency forwards

 

 

(51,381)

 

 

(425)

 

 

Options

 

 

 1

 

 

(74)

 

 

Interest rate swaps

 

 

 —

 

 

 2

 

 

 

 

$

114,210

 

$

307,983

 

 

 

11. Income Taxes

 

Subsequent to consummation of the Reorganization Transactions and the IPO, the Company is subject to U.S. federal, state and local income tax at the rate applicable to corporations less the rate attributable to the noncontrolling interest in Virtu Financial. These noncontrolling interests are subject to U.S. taxation as partnerships. Accordingly, for the three months ended March 31, 2017 and 2016, the income attributable to these noncontrolling interests is reported in the condensed consolidated statements of comprehensive income, but the related U.S. income tax expense attributable to these noncontrolling interests is not reported by the Company as it is the obligation of the individual partners. The Company’s provisions for income taxes were $2.8 million and $7.3 million for the three months ended March 31, 2017 and 2016, respectively; and the effective tax rates were 11.8% and 12.5% for the three months ended March 31, 2017 and 2016, repectively. Income tax expense is also affected by the differing effective tax rates in foreign, state and local jurisdictions where certain of the Company’s subsidiaries are subject to corporate taxation.

 

Deferred income taxes arise primarily due to the amortization of the deferred tax assets recognized in connection with the IPO (see Note 4 and Note 13), differences in the valuation of financial assets and liabilities, and in connection with other temporary differences arising from the deductibility of compensation and depreciation expenses in different time periods for book and income tax return purposes.

 

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There are no expiration dates on the deferred tax assets. The provisions of ASC 740 require that carrying amounts of deferred tax assets be reduced by a valuation allowance if, based on the available evidence, it is more likely than not that some portion or all of the deferred tax assets will not be realized. Accordingly, the need to establish valuation allowances for deferred tax assets is assessed periodically with appropriate consideration given to all positive and negative evidence related to the realization of the deferred tax assets. A valuation allowance against deferred tax assets at the balance sheet date is not considered necessary because it is more likely than not that the deferred tax asset will be fully realized. There are no unrecognized tax benefits as of March 31, 2017 and December 31, 2016.

The Company is subject to taxation in U.S. federal, state, local and foreign jurisdictions. As of March 31, 2017, the Company’s tax years for 2013 through 2016 and 2010 through 2016 are subject to examination by U.S. and non-U.S. tax authorities, respectively.

12. Commitments, Contingencies and Guarantees

 

Litigation

 

The Company is subject to various legal proceedings and claims that arise in the ordinary course of business. The Company has also been, is currently, and may in the future be, the subject of one or more regulatory or self-regulatory organization enforcement actions, including but not limited to targeted and routine regulatory inquiries and investigations involving Regulation NMS, Regulation SHO, capital requirements and other domestic and foreign securities rules and regulations which may from time to time result in the imposition of penalties or fines. The Company has also been the subject of requests for information and documents from the SEC and the State of New York Office of the Attorney General (“NYAG”). Certain of these matters may result, or have resulted, in adverse judgments, settlements, fines, penalties, injunctions or other relief, and the Company’s business or reputation could be negatively impacted if it were determined that disciplinary or other enforcement actions were required. The ultimate effect on the Company from the pending proceedings and claims, if any, is presently unknown. Where available information indicates that it is probable a liability had been incurred at the date of the condensed consolidated financial statements and the Company can reasonably estimate the amount of that loss, the Company accrues the estimated loss by a charge to income. In addition, in December 2015 the enforcement committee of the Autorité des marchés financiers (“AMF”) fined the Company’s European subsidiary in the amount of €5.0 million (approximately $5.4 million) based on its allegations that the subsidiary of MTH engaged in price manipulation and violations of the AMF General Regulation and Euronext Market Rules.  In accordance with the foregoing, the Company has accrued an estimated loss of €5.0 million (approximately $5.4 million) in relation to the fine imposed by the AMF. The Company’s management believes that the relevant trading engaged in by the subsidiary of MTH was conducted in accordance with applicable French law and regulations and the Company is pursuing its rights of appeal. Subject to the foregoing, based on information currently available, management believes it is not probable that the resolution of any known matters will result in a material adverse effect on the Company’s financial position, although they might be material for the Company’s results of operations or cash flows for any particular reporting period.

 

Indemnification Arrangements

 

Consistent with standard business practices in the normal course of business, the Company has provided general indemnifications to its managers, officers, employees, and agents against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred by such persons under certain circumstances as more fully disclosed in its operating agreement. The overall maximum amount of the obligations (if any) cannot reasonably be estimated as it will depend on the facts and circumstances that give rise to any future claims.

13. Capital Structure

 

The Company has four classes of authorized common stock. The Class A common stock and the Class C common stock have one vote per share. The Class B common stock and the Class D common stock have 10 votes per share. Shares of the Company’s common stock generally vote together as a single class on all matters submitted to a vote of the Company’s stockholders.

 

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Initial Public Offering and Reorganization Transactions

 

Prior to the IPO, the Company’s business was conducted through Virtu Financial and its subsidiaries. In a series of transactions that occurred in connection with the IPO, (i) the Company became the sole managing member of Virtu Financial and acquired Virtu Financial Units, (ii) certain direct or indirect equityholders of Virtu Financial acquired shares of the Company’s Class A common stock and (iii) certain direct or indirect equityholders of Virtu Financial had their interests reclassified into Virtu Financial Units and acquired shares of the Company’s Class C common stock or, in the case of the TJMT Holdings LLC  only, shares of the Company’s Class D common stock (collectively, the “Virtu Members”).

 

On April 21, 2015, the Company  completed its IPO of 19,012,112 shares of its Class A common stock, par value $0.00001 per share, including 2,479,840 shares of Class A common stock sold in connection with the full exercise of the option to purchase additional shares granted to the underwriters, at a price to the public of $19.00 per share. The shares began trading on NASDAQ on April 16, 2015 under the ticker symbol “VIRT” and the offering was closed on April 21, 2015. In connection with the Reorganization Transactions, the Company sold 16,532,272 shares of Class A common stock. The Company used its net proceeds from its IPO to purchase shares of Class A common stock from an affiliate of Silver Lake Partners, purchase Virtu Financial Units and corresponding shares of Class C common stock from certain Virtu Members, and for working capital and general corporate purposes.

 

2015 Management Incentive Plan

 

The Company’s board of directors and stockholders adopted the 2015 Management Incentive Plan, which became effective upon consummation of the IPO. The 2015 Management Incentive Plan provides for the grant of stock options, restricted stock units, and other awards based on an aggregate of 12,000,000 shares of Class A common stock, subject to additional sublimits, including limits on the total option grant to any one participant in a single year and the total performance award to any one participant in a single year.

 

Secondary Offerings

 

In November 2015, the Company and certain selling stockholders affiliated with Silver Lake Partners completed a public offering (the “November 2015 Secondary Offering”) of 6,473,371 shares of the Company’s Class A common stock.  The selling stockholders sold 6,075,837 shares of Class A common stock and the Company sold 397,534 shares of Class A common stock at a price to the public of $22.15 per share.  The selling stockholders received all of the net proceeds from the sale of shares of Class A common stock by them in the November 2015 Secondary Offering.  The Company used its net proceeds from the offering to purchase Virtu Financial Units (together with corresponding shares of Class C common stock) from one of its non-executive employees at a net price equal to the price paid by the underwriters for shares of its Class A common stock.  Following the November 2015 Secondary Offering, Silver Lake Partners no longer holds any equity interest in us.

 

In September 2016, the Company completed a public offering (the “September 2016 Secondary Offering,” collectively with the November 2015 Secondary Offering, the “Secondary Offerings”) of 1,103,668 shares of the Company’s Class A common stock.  The Company sold 1,103,668 shares of Class A common stock at a price to the public of $15.75 per share. The Company used the net proceeds from the September 2016 Secondary Offering to purchase Virtu Financial Units (together with corresponding shares of Class C common stock) from certain employees at a net price equal to the price paid by the underwriters for shares of its Class A common stock, which was the price at which the shares were offered to the public less underwriting discounts and commissions of $0.10 per share. As a result of the completion of the IPO, the Reorganization Transactions and the Secondary Offering, the Company holds approximately 29.9% interest in Virtu Financial at March 31, 2017.

 

Employee Exchange

 

In February 2017, pursuant to the exchange agreement by and among the Company, Virtu Financial and holders of Virtu Financial common units, certain current and former employees elected to exchange 683,762 common units in Virtu Financial held on their behalf by Virtu Financial Employee Holdco LLC (“Employee Holdco”) on a one-for-one basis for shares of Class A common stock.

 

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14. Share-based Compensation

Share-based compensation prior to the Company’s Reorganization completed on April 15, 2015 and IPO commenced on April 16, 2015

 

Class A-2 profits interests were issued to Employee Holdco, a holding company that holds the interests on behalf of certain key employees or stakeholders. During the three months ended March 31, 2017 and 2016, the Company recorded expense relating to non-voting common interest units, which were originally granted as Class A-2 profits interests and were reclassified into non-voting common interest units in connection with the Reorganization Transactions.  The non-voting common interest units are subject to the same vesting requirements as the prior Class A-2 profits interests, which were either fully vested upon issuance or vested over a period of up to four years, and in each case are subject to repurchase provisions upon certain termination events. These awards were accounted for as equity awards and were measured at fair value at the date of grant. The Company recognized compensation expense related to the vesting of non-voting common interest units (formerly Class A-2 profits interests) of $0.2 million and $0.4 million for the three months ended March 31, 2017 and 2016, respectively. As of March 31, 2017 and December 31, 2016, total unrecognized share-based compensation expense related to unvested non-voting common interest units (formerly Class A-2 profits interests), was $0.5 million and $0.8 million, respectively, and this amount is expected to be recognized over a weighted average period of 0.6 years and 0.8 years, respectively.

 

On July 8, 2011, 2,625,000 Class A-2 capital interests were contributed by Class A-2 members to Virtu East

MIP LLC (“East MIP”). East MIP issued Class A interests to the members who contributed the Class A-2 capital

interests, and Class B interests (“East MIP Class B interests”) to certain key employees.  Additionally, Class B interests were issued to Employee Holdco on behalf of certain key employees and stakeholders on July 8, 2011, and on subsequent dates.  East MIP Class B interests and Class B interests were each subject to time based vesting over four years and only fully vested upon the consummation of a qualifying capital transaction by the Company, including an IPO.  In connection with the Reorganization Transactions, East MIP was liquidated and a portion of the Class A-2 capital interests held by East MIP were contributed to Employee Holdco on behalf of holders of East MIP Class B Interests (or, in the case of certain employees located outside the United States, contributed to a trust whose trustee is one of the Company’s subsidiaries), which Class A-2 capital interests were subsequently reclassified into non-voting common interest units. The Company recognized compensation expense in respect of non-voting common interest units (formerly Class B interests) vested of $0.2 million and $0.3 mllion for three months ended March 31, 2017 and 2016, respectively.  Compensation expense related to non-voting common interest units (formerly Class B interests) was included within charges related to share based compensation at IPO in the condensed consolidated statements of comprehensive income. As of March 31, 2017 and December 31, 2016, total unrecognized share-based compensation expense related to unvested non-voting common interest units (formerly Class B interests) was $0.6 million  and $0.8 million, respectively, and this amount is expected to be recognized over a weighted average period of 0.8 years and 1.0 years respectively.

 

Additionally, in connection with the compensation charges related to non-voting common interest units (formerly Class B interests) mentioned above, the Company capitalized $0.01 million and $0.1 million for the three months ended March 31, 2017 and 2016, respectively. The amortization costs related to these capitalized compensation charges and previously capitalized compensation charges related to East MIP Class B interests and Class B interests were approximately $0.02 million and $0.3 million for the three months ended March 31, 2017 and 2016, respectively. The costs attributable to employees incurred in development of software for internal use were included within charges related to share based compensation at IPO in the condensed consolidated statements of comprehensive income.

 

The fair value of the Class A-2 profit, Class B and East MIP Class B interest was estimated by the Company using an option pricing methodology based on expected volatility, risk-free rates and expected life. Expected volatility is calculated based on companies in the same peer group as the Company. The weighted-average assumptions used by the Company in estimating the grant date fair values of Class A-2 profits, Class B and East MIP Class B interests for the three months ended March 31, 2017 and 2016 are summarized below:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2017

 

2016

 

Expected life (in years)

 

2.7

 

0.5

 

Weighted average risk free interest rate

 

0.72

%

0.12

%

Expected stock price volatility

 

47

%

25

%

Expected dividend yield

 

 —

 

 —

 

 

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In connection with the Reorganization Transactions, all Class A-2 profits interests, Class B and East MIP Class B interests were reclassified into non-voting common interest units. As of March 31, 2017 and December 31, 2016, there were 13,502,263 and 14,231,535 non-voting common interest units outstanding, respectively, and 729,272 and 53,743 non-voting common interest units and corresponding Class C common stock exchanged into Class A common stock,  forfeited or repurchased during the three months ended March 31, 2017 and 2016.

Share-based compensation after the Company’s Reorganization completed on April 15, 2015 and IPO completed on April 16, 2015

 

Pursuant to 2015 Management Incentive Plan as described above (Note 13) and in connection with the IPO, non-qualified stock options to purchase shares of Class A common stock were granted, each of which vests in equal annual installments over a period of the four years from grant date and expires not later than 10 years from the date of grant.

 

The following table summarizes activity related to stock options for the three months ended March 31, 2017 and 2016:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Options Outstanding

 

Options Exercisable

 

 

 

 

 

Weighted Average

 

Weighted Average

 

 

 

Weighted Average

 

 

 

Number of

 

Exercise Price

 

Remaining

 

Number of

 

Exercise Price

 

 

 

Options

    

Per Share

    

Contractual Life

    

Options

    

Per Share

 

At December 31, 2015

 

8,994,000

 

$

19.00

 

 

9.29

 

 —

 

$

 —

 

Granted

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

Exercised

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

Forfeited or expired

 

(625,000)

 

 

 —

 

 

 —

 

 —

 

 

 —

 

At March 31, 2016

 

8,369,000

 

$

19.00

 

 

9.05

 

 —

 

$

 —

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

At December 31, 2016

 

8,234,000

 

$

19.00

 

 

8.29

 

2,058,500

 

$

19.00

 

Granted

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

Exercised

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

Forfeited or expired

 

(195,000)

 

 

 —

 

 

 —

 

 —

 

 

 —

 

At March 31, 2017

 

8,039,000

 

$

19.00

 

 

8.05

 

2,009,750

 

$

19.00

 

 

The fair value of the stock option grants in 2015 was determined through the application of the Black-Scholes-Merton model with the following assumptions: 

 

 

 

 

 

 

 

 

 

 

 

 

    

2017

 

Expected life (in years)

 

 

6.25

 

Weighted average risk free interest rate

 

 

1.52

%

Expected stock price volatility

 

 

30

%

Expected dividend yield

 

 

5.05

%

Weighted average fair value at grant date

 

$

3.02

 

 

The expected life has been determined based on an average of vesting and contractual period. The risk-free interest rate was determined based on the yields available on U.S. Treasury zero-coupon issues. The expected stock price volatility was determined based on historical volatilities of comparable companies. The expected dividend yield was determined based on estimated future dividend payments divided by the IPO stock price.

 

The Company recognized $1.4 million and $1.2 million of compensation expense in relation to the stock options for the three months ended March 31, 2017 and 2016, respectively. As of March 31, 2017 and December 31, 2016, total unrecognized share-based compensation expense related to unvested stock options was $12.8 million and $14.2 million, respectively, and these amounts are to be recognized over a weighted average period of 2.0 years and 2.3 years, respectively.

 

Class A common stock and Restricted Stock Units

 

Pursuant to the 2015 Management Incentive Plan as described above (Note 13), subsequent to the IPO, shares of immediately vested Class A common stock and restricted stock units were granted, the latter which vest over a period of up to 4 years. The fair value of the Class A common stock and restricted stock units was determined based on a volume weighted average price and will be recognized on a straight line basis over the vesting period. For the three

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months ended March 31, 2017 and 2016, the Company accrued compensation expense of $4.7 million and $ 3.4 million, respectively, related to Class A common stock expected to be granted as part of year-end compensation.

 

The following table summarizes activity related to the restricted stock units for the three months ended March 31, 2017 and 2016:

 

 

 

 

 

 

 

 

 

 

Weighted

 

 

Number of

 

Average Fair

 

 

Shares

    

Value 

At December 31, 2015

 

984,466

 

$

22.32

Granted

 

 —

 

 

 —

Forfeited

 

(115,869)

 

 

22.51

Vested

 

 —

 

 

 —

At March 31, 2016

 

868,597

 

$

22.30

 

 

 

 

 

 

At December 31, 2016

 

1,573,441

 

$

18.28

Granted

 

 —

 

 

 —

Forfeited

 

(95,481)

 

 

18.38

Vested

 

 —

 

 

 —

At March 31, 2017

 

1,477,960

 

$

18.28

 

The Company recognized $2.6 million and $1.6 million of compensation expense in relation to the restricted stock units for the three months ended March 31, 2017 and 2016. As of March 31, 2017 and December 31, 2016, total unrecognized share-based compensation expense related to unvested restricted stock units was $23.9 million and $28.5 million, respectively, and these amounts are to be recognized over a weighted period of 2.3 years and 2.6 years, respectively.

15. Regulatory Requirement

 

As of March 31, 2017, two broker-dealer subsidiaries of the Company are subject to the SEC Uniform Net Capital Rule 15c3-1, which requires the maintenance of minimum net capital of $1.0 million for each of the two broker-dealer subsidiaries. At March 31, 2017, the subsidiaries had net capital of approximately $57.0 million and $11.9 million, which was approximately $56.0 million and $10.9 million in excess of its required net capital of $1.0 million and $1.0 million, respectively. At December 31, 2016, the subsidiaries had net capital of approximately $74.5 million and $10.8 million, which was approximately $73.5 million and $9.8 million in excess of its required net capital of $1.0 million and $1.0 million, respectively.

Pursuant to NYSE and NYSE MKT (formerly NYSE Amex) rules, one of the broker-dealer subsidiaries was required to maintain $1.8 million and $1.9 million of capital in connection with the operation of the its Designated Market Maker (“DMM”) business as of March 31, 2017 and December 31, 2016, respectively. The required amount is determined under the exchange rules as the greater of $1 million or 15% of the market value of 60 trading units for each symbol in which the broker-dealer subsidiary is registered as the DMM.

16. Geographic Information

 

The Company operates its business in the U.S. and internationally, primarily in Europe and Asia. Significant transactions and balances between geographic regions occur primarily as a result of certain Company’s subsidiaries incurring operating expenses such as employee compensation, communications and data processing and other overhead costs, for the purpose of providing execution, clearing and other support services to affiliates. Charges for transactions between regions are designed to approximate full costs. Intra-region income and expenses and related balances have been eliminated in the geographic information presented below to accurately reflect the external business conducted in

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each geographical region. The revenues are attributed to countries based on the locations of the subsidiaries. The following table presents total revenues by geographic area for the three months ended March 31, 2017 and 2016 :

 

 

 

 

 

 

 

 

 

 

 

 

For the Three Months Ended

 

 

 

 

March 31, 

 

 

(in thousands)

    

2017

    

2016

    

 

Revenues:

 

 

 

 

 

 

 

 

United States

 

$

91,987

 

$

123,819

 

 

Australia

 

 

18

 

 

 6

 

 

Ireland

 

 

28,251

 

 

43,127

 

 

Singapore

 

 

27,006

 

 

25,554

 

 

China

 

 

25

 

 

132

 

 

Total revenues

 

$

147,287

 

$

192,638

 

 

 

17. Related Party Transactions

 

As of March 31, 2017, and December 31, 2016, the Company had a payable of $0.06 million and $0.06 million to its related parties, respectively, which are included in accounts payable and accrued expenses and other liabilities in condensed consolidated statements of financial condition.

 

In the ordinary course of business, the Company purchases and leases computer equipment and maintenance and support from affiliates of Dell Inc. (“Dell”). Temasek Holdings (Private) Limted and its affiliates have a significant ownership interest in Dell. During the three months ended March 31, 2017 and 2016, the Company paid $0.8 million and $0.9 million, respectively, to Dell for these purchases and leases.

 

In the ordinary course of business, the Company purchases network connections services from affiliates of Level 3 Communications (“Level 3”). Temasek Holdings (Private) Limted and its affiliates have a significant ownership interest in Level 3. During the three months ended March 31, 2017 and 2016, the Company paid $0.7 million and $0.6 million, respectively, to Level 3 for these services.

 

Additionally, the Company entered into a sublease arrangement with an affiliate of the Company’s Founder and Executive Chairman for office space no longer used by the Company in 2016. As of March 31, 2017, the Company has a receivable from of $0.04 million from this affiliate, which are included in accounts payable and accrued expenses and other liabilities in condensed consolidated statements of financial condition.

18. Subsequent Events

 

The Company has evaluated subsequent events for adjustment to or disclosure in its condensed consolidated financial statements through the date of the report, and has not identified any recordable or disclosable events, not otherwise reported in these condensed consolidated financial statements or the notes thereto, except for the following: 

 

The Company’s Board of Directors declared a dividend of $0.24 per share of Class A common stock and Class B common stock and restricted stock unit on May 4, 2017, payable on June 15, 2017 to holders of record as of the close of business on June 1, 2017.

On April 20, 2017, the Company and KCG Holdings, Inc. ("KCG") entered into a definitive agreement (the “KCG Merger Agreement”) whereby the Company will acquire KCG in a cash transaction valued at $20.00 per KCG share, or a total of approximately $1.4 billion (the “KCG Acquisition”). The KCG Acquisition is expected to close during the third quarter 2017 after receipt of all required regulatory approvals and KCG shareholder approval. The Company intends to finance the KCG Acquisition with a combination of debt and equity financing (collectively with the KCG Acquisition and related transactions, the “KCG Transactions”). The Company entered into a debt commitment letter with J.P. Morgan Chase Bank, N.A. for gross new borrowings of 1.65 billion and investment agreements with an affiliate of Temasek and North Island Holdings for the sale of $750 million of Class A common stock. Jefferies LLC, the largest shareholder of KCG, has entered into a voting agreement with the Company pursuant to which it has agreed to vote 24.5% of KCG's voting power in favor of the KCG Acquisition. 

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On November 28, 2016, the Company agreed to acquire select strategic telecommunications assets from Teza Technologies. The transactions was consummated on May 3, 2017 following the receipt of required regulatory approvals.

ITEM 2. MANAGEMENT’S DISCUSSIO N AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

The following management’s discussion and analysis of our financial condition and results of operations covers the three months ended March 31, 2017 and 2016 and should be read in conjunction with the condensed consolidated financial statements for the three months ended March 31, 2017 and 2016. This discussion contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those discussed below. Unless otherwise stated, all amounts are presented in thousands of dollars.

 

Forward-Looking Statements

 

This quarterly report on Form 10-Q contains forward-looking statements. You should not place undue reliance on forward-looking statements because they are subject to numerous uncertainties and factors relating to our operations and business environment, all of which are difficult to predict and many of which are beyond our control. Forward-looking statements include information concerning our possible or assumed future results of operations, including descriptions of our business strategy. These forward-looking statements can be identified by the use of forward-looking terminology, including the terms “may,” “will,” “should,” “believe,” “expect,” “anticipate,” “intend,” “plan,” “estimate,” “project” or, in each case, their negative, or other variations or comparable terminology and expressions. These statements are based on assumptions that we have made in light of our experience in the industry as well as our perceptions of historical trends, current conditions, expected future developments and other factors we believe are appropriate under the circumstances. As you read and consider this quarterly report on Form 10-Q, you should understand that these statements are not guarantees of performance or results and that our actual results of operations, financial condition and liquidity, and the development of the industry in which we operate, may differ materially from those made in or suggested by the forward-looking statements contained in this quarterly report on Form 10-Q. By their nature, forward-looking statements involve known and unknown risks and uncertainties, including those described under the heading “Risk Factors” in our 2016 10-K because they relate to events and depend on circumstances that may or may not occur in the future. Although we believe that the forward-looking statements contained in this quarterly report on Form 10-Q are based on reasonable assumptions, you should be aware that many factors, including those described under the heading “Risk Factors” in our 2016 10-K, could affect our actual financial results or results of operations and could cause actual results to differ materially from those in such forward-looking statements, including but not limited to:

 

·

reduced levels of overall trading activity;

·

dependence upon trading counterparties and clearing houses performing their obligations to us;

·

failures of our customized trading platform;

·

risks inherent to the electronic market making business and trading generally;

·

increased competition in market making activities;

·

dependence on continued access to sources of liquidity;

·

risks associated with self‑clearing and other operational elements of our business;

·

compliance with laws and regulations, including those specific to our industry;

·

obligation to comply with applicable regulatory capital requirements;

·

litigation or other legal and regulatory‑based liabilities;

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·

proposed legislation that would impose taxes on certain financial transactions in the European Union, the U.S. and other jurisdictions;

·

obligation to comply with laws and regulations applicable to our international operations;

·

enhanced media and regulatory scrutiny and its impact upon public perception of us or of companies in our industry;

·

need to maintain and continue developing proprietary technologies;

·

failure to maintain system security or otherwise maintain confidential and proprietary information;

·

capacity constraints, system failures, and delays;

·

dependence on third party infrastructure or systems;

·

use of open source software;

·

failure to protect or enforce our intellectual property rights in our proprietary technology;

·

risks associated with international operations and expansion, including failed acquisitions or dispositions;

·

fluctuations in currency exchange rates;

·

risks associated with potential growth and associated corporate actions;

·

inability to, or delay, in accessing the capital markets to sell shares or raise additional capital;

·

loss of key executives and failure to recruit and retain qualified personnel; and

·

risks associated with losing access to a significant exchange or other trading venue.

 

Our forward-looking statements made herein are made only as of the date of this quarterly report. We expressly disclaim any intent, obligation or undertaking to update or revise any forward-looking statements made herein to reflect any change in our expectations with regard thereto or any change in events, conditions or circumstances on which any such statements are based. All subsequent written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements contained in this quarterly report.

 

Basis of Preparation

 

Our unaudited condensed consolidated financial statements for the first quarter ended March 31, 2017 and 2016 reflect our operations and those of our consolidated subsidiaries.

 

 

Overview

 

We are a leading technology-enabled market maker and liquidity provider to the global financial markets. We stand ready, at any time, to buy or sell a broad range of securities, and we generate revenue by buying and selling large volumes of securities and other financial instruments and earning small bid/ask spreads. We make markets by providing quotations to buyers and sellers in more than 12,000 securities and other financial instruments on more than 235 unique exchanges, markets and liquidity pools in 36 countries around the world. We also earn revenues by using our proprietary

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technology to earn technology services revenues, by providing technology infrastructure and agency execution services to select third parties. We believe that our broad diversification, in combination with our proprietary technology platform and low-cost structure, enables us to facilitate risk transfer between global capital markets participants by supplying liquidity and competitive pricing while at the same time earning attractive margins and returns.

 

We believe that technology-enabled market makers like us serve an important role in maintaining and improving the overall health and efficiency of the global capital markets by continuously posting bids and offers for financial instruments and thereby providing to market participants an efficient means to transfer risk. All market participants benefit from the increased liquidity, lower overall trading costs and execution certainty that we provide.

 

We refer to our market making activities as being “market neutral”, which means that we are not dependent on the direction of a particular market and do not speculate. Our market making activities are designed to minimize capital at risk at any given time by limiting the notional size of our positions. Our strategies are also designed to lock in returns through precise hedging, as we seek to eliminate the price risk in any positions held.

 

Our revenue generation is driven primarily by transaction volume across a broad range of securities, asset classes and geographies. We avoid the risk of long or short positions in favor of earning small bid/ask spreads on large trading volumes across thousands of securities and financial instruments. We also generate revenue from interest and dividends on securities that we hold from time to time in connection with our market making activities. Our revenues are also impacted by levels of volatility in a given period. Increases in market volatility can cause bid/ask spreads to widen as market participants are willing to incur greater costs to transact, which we benefit from.   We also generate technology services revenues by using proprietary technology to provide technology infrastructure and agency execution services to select third parties. 

 

Virtu Financial was formed as a Delaware limited liability company on April 8, 2011 in connection with our acquisition of MTH (the “MTH Transactions”), when the members of Virtu Financial’s predecessor entity, VFO, which was formed and commenced operations on March 19, 2008, exchanged their interests in Virtu East for interests in Virtu Financial. On July 8, 2011, we completed our acquisition of MTH, which was co-founded by Mr. Vincent Viola, our Founder and Executive Chairman. MTH was an electronic trading firm and market maker on numerous exchanges and electronic marketplaces in equities, fixed income, currencies and commodities, and the MTH Transactions expanded our geographic and product market as well as our market penetration in existing markets. Virtu Financial is a holding company that conducts its business through its operating subsidiaries.

 

We believe the overall level of volumes in the various markets we serve has the greatest impact on our business. We believe that the most relevant asset class distinctions and venues for the markets we serve include the following:

 

 

 

 

Asset

 

 

Classes

 

Selected Venues in Which We Make Markets

Americas Equities

 

Aequitas Neo, BATS, BM&F Bovespa, CHX, CME, ICE, IEX, NASDAQ, NYSE,  NYSE Arca, NYSE MKT, TMX, major private liquidity pools

EMEA Equities

 

Amsterdam, Aquis, BATS Europe, Bolsa de Madrid, Borsa Italiana, Brussels, EUREX, Euronext -Paris, ICE Futures Europe, Johannesburg Stock Exchange, Lisbon, London Stock Exchange,  SIX Swiss Exchange, Turquoise Exchange, XETRA

APAC Equities

 

OSE, SBI Japannext, SGX, TOCOM, TSE

Global Commodities

 

CME, EBS, ICE, ICE Futures Europe, NASDAQ Energy Exchange, SGX, TOCOM

Global Currencies

 

CME, Currenex, EBS, HotSpot, ICE, LMAX, Reuters/FXall

Options, Fixed Income and Other Securities

 

BOX, BrokerTec, CBOE, eSpeed, NYSE Arca Options, PHLX

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Components of Our Results of Operations

 

The table below sets forth certain components of our condensed consolidated statements of comprehensive income as well as factors that impact such components. We present our results under one reportable segment, which is consistent with our structure and how we manage our business.

 

 

 

 

 

 

 

 

 

 

 

For the Three Months Ended

 

(in thousands, except share and per share data)

    

2017

    

2016

 

Revenues:

 

 

 

 

 

 

 

Trading income, net

 

$

139,574

 

$

186,289

 

Interest and dividends income

 

 

4,874

 

 

4,268

 

Technology services

 

 

2,779

 

 

2,081

 

Other, net

 

 

60

 

 

 —

 

Total revenue

 

 

147,287

 

 

192,638

 

 

 

 

 

 

 

 

 

Operating Expenses:

 

 

 

 

 

 

 

Brokerage, exchange and clearance fees, net

 

 

52,770

 

 

59,725

 

Communication and data processing

 

 

18,207

 

 

17,722

 

Employee compensation and payroll taxes

 

 

21,347

 

 

22,557

 

Interest and dividends expense

 

 

12,280

 

 

13,537

 

Operations and administrative

 

 

4,978

 

 

4,919

 

Depreciation and amortization

 

 

6,757

 

 

7,727

 

Amortization of purchased intangibles and acquired capitalized software

 

 

53

 

 

53

 

Charges related to share based compensation at IPO

 

 

185

 

 

595

 

Financing interest expense on long-term borrowings

 

 

6,828

 

 

7,101

 

Total operating expenses

 

 

123,405

 

 

133,936

 

Income before income taxes and noncontrolling interest

 

 

23,882

 

 

58,702

 

Provision for income taxes

 

 

2,808

 

 

7,346

 

Net income

 

$

21,074

 

$

51,356

 

 

Total Revenues

 

The majority of our revenue is generated through market making activities and is recorded as trading income, net. In addition, we generate revenues from interest and dividends income as well as the sale of licensed technology services revenue generated by using our proprietary technology to provide technology infrastructure and agency execution services to select third parties.

 

Trading Income, Net. Trading income, net, represents revenue earned from bid/ask spreads. Trading income is generated in the normal course of our market making activities and is typically proportional to the level of trading activity, or volumes, in the asset classes we serve. Our trading income is highly diversified by asset class and geography and is comprised of small amounts earned on millions of trades on various exchanges, primarily in Americas, EMEA and APAC equities, global currencies, global commodities, including energy and metals, and options, fixed income and other securities. Trading income, net, includes trading income earned from bid/ask spreads. Our trading income, net, results from gains and losses associated with economically neutral trading strategies, which are designed to capture small bid ask spreads and often involve making markets in a derivative versus a correlated instrument that is not a derivative. These transactions often result in a gain or loss on the derivative and a corresponding loss or gain on the non-derivative. Trading income, net, accounted for 95% of our total revenues for the three months ended March 31, 2017 and 2016.

 

Interest and Dividends Income. Our market making activities require us to hold securities on a regular basis, and we generate revenues in the form of interest and dividends income from these securities. Interest is earned on securities borrowed from other market participants pursuant to collateralized financing arrangements and on cash held by brokers. Dividends income arises from holding market making positions over dates on which dividends are paid to shareholders of record.

 

Technology Services. Technology services revenues include technology licensing fees and agency commission fees. Technology licensing fees are charged for the licensing of our proprietary technology and the provision of related services, including hosting, management and support. These fees include an up-front component and a recurring fee for the relevant term, which may include both a fixed and variable component. Revenue is recognized ratably for these services over the contractual term of the agreement.   We began providing technology licensing services to a third party in 2013 pursuant to a three-year arrangement, which was renewed for one year on the same terms except for the up-front component in January 2016. In July 2016, we entered into a separate three-year arrangement with another third party to

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provide technology services. Agency commission fees are charged for agency trades executed by us on behalf of third party broker dealers and other financial institutions. We began providing agency execution services in April 2016, and revenue is recognized on a trade date basis based on the trade volume executed. 

 

Other, Net . In July 2016, we made a minority investment in SBI, a proprietary trading system based in Tokyo, for $38.8 million which was substantially paid in Japanese Yen. In connection with the investment, we issued bonds to certain affiliates of SBI and used the proceeds of ¥3.5 billion to partially finance the transaction. Revenues or losses are recognized due to the changes in fair value of the investment or fluctuations in Japanese Yen conversion rates.

 

Operating Expenses

 

Brokerage, Exchange and Clearance Fees, Net. Brokerage, exchange and clearance fees are our most significant expense and include the direct expenses of executing and clearing transactions we consummate in the course of our market making activities. Brokerage, exchange and clearance fees include fees paid to various prime brokers, exchanges and clearing firms for services such as execution of transactions, prime brokerage fees, access fees and clearing expenses. These expenses generally increase and decrease in direct correlation with the level of trading activity, or volumes, in the markets we serve. Execution fees are paid primarily to exchanges and venues where we trade. Clearance fees are paid to clearing houses and clearing agents. Rebates based on volume discounts, credits or payments received from exchanges or other market places are netted against brokerage, exchange and clearance fees.

 

Communication and Data Processing. Communication and data processing represent primarily fixed expenses for leased equipment, equipment co-location, network lines and connectivity for our trading centers and co-location facilities. More specifically, communications expense consists primarily of the cost of voice and data telecommunication lines supporting our business, including connectivity to data centers and exchanges, markets and liquidity pools around the world, and data processing expense consists primarily of market data fees that we pay to third parties to receive price quotes and related information.

 

Employee Compensation and Payroll Taxes.  Employee compensation and payroll taxes include employee salaries, cash and non-cash incentive compensation, employee benefits, payroll taxes, severance and other employee related costs. Employee compensation expense for the interim period is accrued in connection with the Adjusted Net Trading Income for the period with certain adjustments made at management’s discretion. Non-cash compensation includes, prior to the Reorganization Transactions, the share based-incentive compensation paid to employees in the form of Class A-2 profits interests in Employee Holdco, which formerly held corresponding Class A-2 profits interests in Virtu Financial.  Additionally, after the Reorganization Transactions, it includes non-cash compensation expenses with respect to the stock options and restricted stock units granted in connection with and subsequent to the IPO pursuant to the 2015 Management Incentive Plan. We have capitalized and therefore excluded employee compensation and benefits related to software development of $2.7 million and $2.7 million for the three months ended March 31, 2017 and 2016, respectively.

 

Interest and Dividends Expense. We incur interest expense from loaning certain equity securities in the general course of our market making activities pursuant to collateralized lending transactions. Typically, dividend expense is incurred when a dividend is paid on securities sold short.

 

Operations and Administrative. Operations and administrative expense represents occupancy, recruiting, travel and related expense, professional fees and other expenses.

 

Depreciation and Amortization. Depreciation and amortization expense results from the depreciation of fixed assets, such as computing and communications hardware, as well as amortization of leasehold improvements and capitalized in-house software development. We depreciate our computer hardware and related software, office hardware and furniture and fixtures on a straight line basis over a period of 3 to 7 years based on the estimated useful life of the underlying asset, and we amortize our capitalized software development costs on a straight line basis over a period of 1.4 to 2.5 years, which represents the estimated useful lives of the underlying software. We amortize leasehold improvements on a straight line basis over the lesser of the life of the improvement or the term of the lease.

 

Amortization of Purchased Intangibles and Acquired Capitalized Software. Amortization of purchased intangibles and acquired capitalized software represents the amortization of $1.9 million of assets acquired in connection

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with the Company’s acquisition of certain assets from Nyenburgh Holding B.V. These assets are amortized over their useful lives, ranging from 1.4 to 9 years.

 

Charges Related to Share Based Compensation at IPO. At the consummation of the IPO and through the period ended March 31, 2016, we recognized non-cash compensation expenses in respect of the outstanding time vested Class B and East MIP Class B interests, net of capitalization and amortization of costs attributable to employees incurred in development of software for internal use, as discussed in Note 14 to the notes of the condensed consolidated financial statements.

 

Financing Interest Expense on Long-Term Borrowings. Financing interest expense reflects interest accrued on outstanding indebtedness, under our long-term borrowing arrangement.

 

Provision for Income Taxes

 

Prior to the consummation of the Reorganization Transactions and the IPO, our business was historically operated through a limited liability company that is treated as a partnership for U.S. federal income tax purposes, and as such most of our income was not subject to U.S. federal and certain state income taxes. Our income tax expense for historical periods reflects taxes payable by certain of our non-U.S. subsidiaries. Subsequent to consummation of the Reorganization Transactions and the IPO, we are subject to U.S. federal, state and local income tax at the rate applicable to corporations less the rate attributable to the noncontrolling interest in Virtu Financial.

 

Non-GAAP Financial Measures and Other Items

 

To supplement our condensed consolidated financial statements presented in accordance with generally accepted accounting principles (“GAAP”), we use the following non-GAAP measures of financial performance:

 

·

“Adjusted Net Trading Income”, which is the amount of revenue we generate from our market making activities, or trading income, net, plus interest and dividends income and expense, net, less direct costs associated with those revenues, including brokerage, exchange and clearance fees, net. Management believes that this measurement is useful for comparing general operating performance from period to period. Although we use Adjusted Net Trading Income as a financial measure to assess the performance of our business, the use of Adjusted Net Trading Income is limited because it does not include certain material costs that are necessary to operate our business. Our presentation of Adjusted Net Trading Income should not be construed as an indication that our future results will be unaffected by revenues or expenses that are not directly associated with our market making activities.

 

·

“EBITDA”, which measures our operating performance by adjusting net income to exclude financing interest expense on long-term borrowings, depreciation and amortization, amortization of purchased intangibles and acquired capitalized software, equipment write-off and income tax expense, and “Adjusted EBITDA”, which measures our operating performance by further adjusting EBITDA to exclude severance, transaction advisory fees and expenses, termination of office leases, share based compensation charges related to share based compensation at IPO, the 2015 Management Incentive Plan, and charges related to share based compensation at IPO.

 

·

“Normalized Adjusted Net Income”, “Normalized Adjusted Net Income before income taxes”, “Normalized provision for income taxes”, and “Normalized Adjusted EPS”, which we calculate by adjusting Net Income to exclude certain items including IPO-related adjustments and other non-cash items, assuming that all vested and unvested Virtu Financial Units have been exchanged for Class A common stock, and applying a corporate tax rate of 35.5%.

 

Adjusted Net Trading Income, EBITDA, Adjusted EBITDA, Normalized Adjusted Net Income, Normalized Adjusted Net Income before income taxes, Normalized provision for income taxes and Normalized Adjusted EPS are non-GAAP financial measures used by management in evaluating operating performance and in making strategic decisions. In addition, these non-GAAP financial measures or similar non-GAAP financial measures are used by research analysts, investment bankers and lenders to assess our operating performance. Management believes that the presentation of Adjusted Net Trading Income, EBITDA, Adjusted EBITDA, Normalized Adjusted Net Income, Normalized Adjusted Net Income before income taxes, Normalized provision for income taxes and Normalized Adjusted

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EPS provide useful information to investors regarding our results of operations because they assist both investors and management in analyzing and benchmarking the performance and value of our business. Adjusted Net Trading Income, EBITDA, Adjusted EBITDA, Normalized Adjusted Net Income, Normalized Adjusted Net Income before income taxes, Normalized provision for income taxes and Normalized Adjusted EPS provide indicators of general economic performance that are not affected by fluctuations in certain costs or other items. Accordingly, management believes that these measurements are useful for comparing general operating performance from period to period. Furthermore, our senior secured credit facility contains covenants and other tests based on metrics similar to Adjusted EBITDA. Other companies may define Adjusted Net Trading Income, Adjusted EBITDA, Normalized Adjusted Net Income, Normalized Adjusted Net Income before income taxes, Normalized provision for income taxes and Normalized Adjusted EPS differently, and as a result our measures of Adjusted Net Trading Income, Adjusted EBITDA, Normalized Adjusted Net Income, Normalized Adjusted Net Income before income taxes, Normalized provision for income taxes and Normalized Adjusted EPS may not be directly comparable to those of other companies. Although we use these non-GAAP measures as financial measures to assess the performance of our business, such use is limited because they do not include certain material costs necessary to operate our business.

 

Adjusted Net Trading Income, EBITDA, Adjusted EBITDA, Normalized Adjusted Net Income, Normalized Adjusted Net Income before income taxes, Normalized provision for income taxes and Normalized Adjusted EPS should be considered in addition to, and not as a substitute for, Net Income in accordance with U.S. GAAP as a measure of performance. Our presentation of Adjusted Net Trading Income, EBITDA, Adjusted EBITDA, Normalized Adjusted Net Income, Normalized Adjusted Net Income before income taxes, Normalized provision for income taxes and Normalized Adjusted EPS should not be construed as an indication that our future results will be unaffected by unusual or nonrecurring items. Adjusted Net Trading Income, Normalized Adjusted Net Income, Normalized Adjusted Net Income before income taxes, Normalized provision for income taxes and Normalized Adjusted EPS and our EBITDA-based measures have limitations as analytical tools, and you should not consider them in isolation or as substitutes for analysis of our results as reported under U.S. GAAP. Some of these limitations are:

 

·

they do not reflect every cash expenditure, future requirements for capital expenditures or contractual commitments;

 

·

our EBITDA-based measures do not reflect the significant interest expense or the cash requirements necessary to service interest or principal payment on our debt;

 

·

although depreciation and amortization are non-cash charges, the assets being depreciated and amortized will often have to be replaced or require improvements in the future, and our EBITDA-based measures do not reflect any cash requirement for such replacements or improvements;

 

·

they are not adjusted for all non-cash income or expense items that are reflected in our statements of cash flows;

 

·

they do not reflect the impact of earnings or charges resulting from matters we consider not to be indicative of our ongoing operations; and

 

·

they do not reflect limitations on our costs related to transferring earnings from our subsidiaries to us.

 

Because of these limitations, Adjusted Net Trading Income, EBITDA, Adjusted EBITDA and Normalized Adjusted Net Income are not intended as alternatives to Net Income as indicators of our operating performance and should not be considered as measures of discretionary cash available to us to invest in the growth of our business or as measures of cash that will be available to us to meet our obligations. We compensate for these limitations by using Adjusted Net Trading Income, EBITDA, Adjusted EBITDA and Normalized Adjusted Net Income along with other comparative tools, together with U.S. GAAP measurements, to assist in the evaluation of operating performance. These U.S. GAAP measurements include operating Net Income (loss), cash flows from operations and cash flow data. See below a reconciliation of each non-GAAP financial measure to the most directly comparable GAAP measure.

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The following tables reconcile condensed consolidated statements of comprehensive income to arrive at EBITDA, Adjusted EBITDA, Adjusted Net Trading Income, and selected Operating Margins.

 

 

 

 

 

 

 

 

 

 

For the Three Months Ended

 

 

 

March 31, 

 

 

 

2017

    

2016

 

 

Reconciliation of Trading income, net to Adjusted   Net Trading Income

 

 

 

 

 

 

 

Trading income, net

$

139,574

 

$

186,289

 

 

Interest and dividends income

 

4,874

 

 

4,268

 

 

Brokerage, exchange and clearance fees, net

 

(52,770)

 

 

(59,725)

 

 

Interest and dividends expense

 

(12,280)

 

 

(13,537)

 

 

Adjusted Net Trading Income

$

79,398

 

$

117,295

 

 

 

 

 

 

 

 

 

 

Reconciliation of Net Income to EBITDA and Adjusted EBITDA

 

 

 

 

 

 

 

Net Income

$

21,074

 

$

51,356

 

 

Financing interest expense on long-term borrowings

 

6,828

 

 

7,101

 

 

Depreciation and amortization

 

6,757

 

 

7,727

 

 

Amortization of purchased intangibles and acquired capitalized software

 

53

 

 

53

 

 

Provision for Income Taxes

 

2,808

 

 

7,346

 

 

EBITDA

$

37,520

 

$

73,583

 

 

 

 

 

 

 

 

 

 

Severance

 

877

 

 

193

 

 

Transaction advisory fees and expenses

 

132

 

 

 —

 

 

Termination of office leases

 

 —

 

 

(319)

 

 

Other, net

 

(60)

 

 

 —

 

 

Equipment write-off

 

 —

 

 

428

 

 

Share based compensation

 

7,579

 

 

5,395

 

 

Charges related to share based compensation at IPO, 2015 Management Incentive Plan

 

1,425

 

 

1,196

 

 

Charges related to share based compensation awards at IPO

 

185

 

 

595

 

 

Adjusted EBITDA

$

47,658

 

$

81,071

 

 

 

 

 

 

 

 

 

 

Selected Operating Margins

 

 

 

 

 

 

 

Net Income Margin (1)

 

25.6

%  

 

43.0

%

 

EBITDA Margin (2)

 

45.7

%  

 

61.6

%

 

Adjusted EBITDA Margin (3)

 

58.0

%  

 

67.9

%

 


(1)

Calculated by dividing net income by the sum of Adjusted Net Trading Income and technology services revenue.

(2)

Calculated by dividing EBITDA by the sum of Adjusted Net Trading Income and technology services revenue.

(3)

Calculated by dividing Adjusted EBITDA by the sum of Adjusted Net Trading Income and technology services revenue.

 

The following tables reconcile Net Income to arrive at Normalized Adjusted Net Income before income taxes, Normalized provision for income taxes, Normalized Adjusted Net Income and Normalized Adjusted EPS.

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31,

 

 

   

2017

   

2016

   

(in thousands, except share and per share data)

 

 

 

 

 

 

 

Reconciliation of Net Income to Normalized Adjusted Net Income

 

 

 

 

 

 

 

Net income

 

$

21,074

 

$

51,356

 

Provision for income taxes

 

 

2,808

 

 

7,346

 

Income before income taxes

 

 

23,882

 

 

58,702

 

Amortization of purchased intangibles and acquired capitalized software

 

 

53

 

 

53

 

Severance

 

 

877

 

 

193

 

Transaction advisory fees and expenses

 

 

132

 

 

 —

 

Termination of office leases

 

 

 —

 

 

(319)

 

Equipment write-off

 

 

 —

 

 

428

 

Other, net

 

 

(60)

 

 

 —

 

Share based compensation

 

 

7,579

 

 

5,395

 

Charges related to share based compensation at IPO, 2015 Management Incentive Plan

 

 

1,425

 

 

1,196

 

Charges related to share based compensation awards at IPO

 

 

185

 

 

595

 

Normalized Adjusted Net Income before income taxes

 

 

34,073

 

 

66,243

 

Normalized provision for income taxes (1)

 

 

12,096

 

 

23,516

 

 

 

 

 

 

 

 

 

Normalized Adjusted Net Income

 

$

21,977

 

$

42,727

 

 

 

 

 

 

 

 

 

Weighted Average Adjusted shares outstanding (2)

 

 

140,837,161

 

 

139,891,431

 

 

 

 

 

 

 

 

 

Normalized Adjusted EPS

 

$

0.16

 

$

0.31

 

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(1)   Reflects U.S. federal, state, and local income tax rate applicable to corporations of approximately 35.5%.

(2)   Assumes that (1) holders of all vested and unvested Virtu Financial Units (together with corresponding shares of Class C common stock), have exercised their right to exchange such Virtu Financial Units for shares of Class A common stock on a one-for-one basis, (2) holders of all Virtu Financial Units (together with corresponding shares of Class D common stock), have exercised their right to exchange such Virtu Financial Units for shares of Class B common stock on a one-for-one basis, and subsequently exercised their right to convert the shares of Class B common stock into shares of Class A common stock on a one-for-one basis. Includes additional shares from dilutive impact of options and restricted stock units outstanding under the 2015 Management Incentive Plan during the three months ended March 31, 2017 and 2016

 

The following table shows our Adjusted Net Trading Income, average daily Adjusted Net Trading Income and percentage of Adjusted Net Trading Income by category for the three months ended March 31, 2017 and 2016.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31, 

 

 

 

2017

 

2016

 

 

  

 

 

  

Average

  

 

    

 

 

  

Average

  

 

 

(in thousands, except percentages)

 

Total

 

Daily

 

%

 

Total

 

Daily

 

%

 

Adjusted Net Trading Income:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Categories

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Americas Equities

 

$

28,052

 

$

452

 

35

%  

$

37,278

 

$

611

 

32

%

EMEA Equities

 

 

7,218

 

 

116

 

 9

%  

 

13,710

 

 

225

 

12

%

APAC Equities

 

 

11,516

 

 

186

 

15

%  

 

12,180

 

 

200

 

11

%

Global Commodities

 

 

17,547

 

 

283

 

22

%  

 

30,347

 

 

497

 

26

%

Global Currencies

 

 

13,157

 

 

212

 

17

%  

 

20,501

 

 

336

 

17

%

Options, Fixed income and Other Securities

 

 

3,426

 

 

55

 

 4

%  

 

8,713

 

 

143

 

 7

%

Unallocated (1)

 

 

(1,518)

 

 

(24)

 

(2)

%  

 

(5,434)

 

 

(89)

 

(5)

%

Total Adjusted Net Trading Income

 

$

79,398

 

$

1,280

 

100

%  

$

117,295

 

$

1,923

 

100

%

 

 


(1) Under our methodology for recording “trading income, net” in our condensed consolidated statements of comprehensive income, we recognize revenues based on the exit price of assets and liabilities in accordance with applicable U.S. GAAP rules, and when we calculate Adjusted Net Trading Income for corresponding reporting periods, we start with trading income, net, so calculated. By contrast, when we calculate Adjusted Net Trading Income by category, we do so on a daily basis, and as a result prices used in recognizing revenues may differ. Because we provide liquidity on a global basis, across asset classes and time zones, the timing of any particular Adjusted Net Trading Income calculation can effectively defer or accelerate revenue from one day to another or one reporting period to another, as the case may be. We do not allocate any resulting differences based on the timing of revenue recognition.

 

Three Months Ended March 31, 2017 Compared to Three Months Ended March 31, 2016

 

Total Revenues

 

Our total revenues decreased $45.3 million, or 23.5%, to $147.3 million for the three months ended March 31, 2017, compared to $192.6 million for the three months ended March 31, 2016. This decrease was primarily attributable to a decrease in trading income, net, of $46.7 million.

 

Trading Income, Net. Trading income, net, decreased $46.7 million, or 25.1%, to $139.6 million for the three months ended March 31, 2017, compared to $186.3 million for the three months ended March 31, 2016. The decrease was primarily attributable to decreased market volume and volatility across all major asset categories. Rather than analyzing trading income, net, in isolation, we generally evaluate it in the broader context of our Adjusted Net Trading Income, together with interest and dividends income, interest and dividends expense and brokerage, exchange and clearance fees, net, each of which are described below.

 

Interest and Dividends Income. Interest and dividends income increased $0.6 million, or 14.0%, to $4.9 million for the three months ended March 31, 2017, compared to $4.3 million for the three months ended March 31, 2016. This increase was primarily attributable to higher interest income earned on cash collateral posted as part of securities loaned

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transactions. As indicated above, rather than analyzing interest and dividends income in isolation, we generally evaluate it in the broader context of our Adjusted Net Trading Income.

 

Technology Services. Technology services revenue increased $0.7 million to $2.8 million for the three months ended March 31, 2017, compared to $2.1 million for the three months ended March 31, 2016. The increase was primarily attributable to the agency fee revenues arising from new customers we onboarded during the second quarter 2016.

 

Other, net. Other, net were incurred as a result of the foreign currency revaluations on the Japanese Yen based minority investment and the SBI Bonds, which were $1.6 million and $(1.5) million, respectively, for the three months ended March 31, 2017. There were no such revenues (losses) for the three months ended March 31, 2016.

 

Adjusted Net Trading Income

 

Adjusted Net Trading Income decreased $37.9 million, or 32.3%, to $79.4 million for the three months ended March 31, 2017, compared to $117.4 million for the three months ended March 31, 2016. This decrease compared to the prior period reflects decreases in Adjusted Net Trading Income in the following categories: $9.2 million from Americas equities, $6.5 million from EMEA equities, $0.7 million from APAC equities, $12.8 million from global commodities, $7.3 million from global currencies, and $5.3 million from options, fixed income and other securities. These decreases were primarily attributable to decreased market volume and volatility across all major asset categories. Adjusted Net Trading Income per day decreased $0.64 million, or 33.4%, to $1.3 million for the three months ended March 31, 2017, compared to $1.9 million for the three months ended March 31, 2016. The number of trading days for the three months ended March 31, 2017 and 2016 were both 64.

 

Operating Expenses

 

Our operating expenses decreased $10.5 million, or 7.8%, to $123.4 million for the three months ended March 31, 2017, compared to $133.9 million for the three months ended March 31, 2016. This decrease was primarily due to decreases in brokerage, exchange, and clearance fees of $6.9 million, employee compensation and payroll taxes of $1.3 million, depreciation and amortization expense of $0.9 million, interest and dividend expense of $1.2 million, charges related to share based compensation at IPO of $0.4 million, and financing interest expense on our senior secured credit facility of $0.3 million. These decreases in operating expenses were partially offset by an increase in operating and administrative expense of $0.1 million, and an increase in communication and data processing of $0.5 million. There was no change for the three months ended March 31, 2017 compared to the three months ended March 31, 2016 for amortization of purchased intangible and acquired capitalized software.   

 

Brokerage, Exchange and Clearance Fees, Net. Brokerage exchange and clearance fees, net, decreased $6.9 million, or 11.6%, to $52.8 million for the three months ended March 31, 2017, compared to $59.7 million for the three months ended March 31, 2016. This decrease was primarily attributable to the decreases in market volume and volatility traded in the Amercas equities, EMEA equities, APAC equities, Global Commodities, and Global Currencies instruments in which we make markets. As indicated above, rather than analyzing brokerage, exchange and clearance fees, net, in isolation, we generally evaluate it in the broader context of our Adjusted Net Trading Income.

 

Communication and Data Processing. Communication and data processing expense increased $0.5 million, or 2.8%, to $18.2 for the three months ended March 31, 2017, compared to $17.7 million for the three months ended March 31, 2016. This increase was primarily due to new connections installed and slight increases in market data and other communication and data processing subscription fees.

 

Employee Compensation and Payroll Taxes. Employee compensation and payroll taxes decreased $1.3 million, or 5.8%, to $21.3 million for the three months ended March 31, 2017, compared to $22.6 million for the three months ended March 31, 2016. The decrease in compensation levels was attributable to the decrease in Adjusted Net Trading Income in the three months ended March 31, 2017 compared to the three months ended March 31, 2016.

 

Interest and Dividends Expense. Interest and dividends expense decreased $1.2 million, or 8.9%, to $12.3 million for the three months ended March 31, 2017, compared to $13.5 million for the three months ended March 31, 2016. This decrease was primarily attributable to lower interest expense incurred on cash collateral received as part of securities lending transactions. As indicated above, rather than analyzing interest and dividends expense in isolation, we generally evaluate it in the broader context of our Adjusted Net Trading Income.

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Operations and Administrative. Operations and administrative expense increased $0.1 million, or 2.0%, to $5.0 million for the three months ended March 31, 2017, compared to $4.9 million for the three months ended March 31, 2016.

 

Depreciation and Amortization. Depreciation and amortization decreased $0.9 million, or 11.7%, to $6.8 million for the three months ended March 31, 2017, compared to $7.7 million for the three months ended March 31, 2016. This decrease was primarily attributable to the decrease in capital expenditures on telecommunication, networking and other assets.

 

Amortization of Purchased Intangibles and Acquired Capitalized Software. Amortization of purchased intangibles and acquired capitalized software did not change, from $0.1 million for the three months ended March 31, 2017, compared to $0.1 million for the three months ended March 31, 2016.

 

Charges related to share based compensation at IPO. Charges related to share based compensation at IPO decreased $0.4 million, or 66.7%, to $0.2 million for the three months ended March 31, 2017, compared to $0.6 million for the three months ended March 31, 2016. The decrease was primarily attributable to the forfeitures incurred in 2016 and the three months ended March 31, 2017. We recognized $0.2 million of charges, net of forfeitures, related to share based compensation at IPO, which included approximately $0.18 million in respect of the outstanding time vested Class B and East MIP Class B interests, and approximately $0.02 million amortization of capitalized costs attributable to employees incurred in development of software for internal use.  

 

Financing Interest Expense on Senior Secured Credit Facility. Financing interest expense on our senior secured credit facility decreased $0.3 million, or 4.2%, to $6.8 million for the three months ended March 31, 2017, compared to $7.1 million for the three months ended March 31, 2016. This decrease was due to 1.0% interest rate reduction after the refinancing of our existing senior secured credit facility on October 27, 2016, as discussed in Note 8 to the notes of the condensed consolidated financial statements.

 

Provision for Income Taxes

 

Prior to the consummation of the Reorganization Transactions and the IPO, the Company was a limited liability company treated as a partnership for U.S. federal income tax purposes; accordingly, most of our income was not subject to corporate tax, but instead our members were taxed on their proportionate share of our net income.

 

However, following the consummation of the Reorganization Transactions and the IPO, we incur corporate tax at the U.S. federal income tax rate on our taxable income, as adjusted for noncontrolling interest in Virtu Financial.  Our income tax expense reflects such U.S. federal income tax as well as taxes payable by certain of our non-U.S. subsidiaries. As such, provision for income taxes decreased $4.5 million, or 61.6%, to $2.8 million for the three months ended March 31, 2017, compared to $7.3 million for the three months ended March 31, 2016.

 

Liquidity and Capital Resources

 

General

 

As of March 31, 2017, we had $165.0 million in cash and cash equivalents. These balances are maintained primarily to support operating activities and for capital expenditures and for short-term access to liquidity, and other general corporate purposes. As of March 31, 2017, we had borrowings under our short-term credit facilities of approximately $241.3 million, borrowing under broker dealer facilities of $22.0 million, and long-term debt outstanding in an aggregate principal amount of approximately $570.1 million.  As of March 31, 2017, our regulatory capital requirements for domestic U.S. subsidiaries were $3.8 million, in aggregate.

 

The majority of our assets consist of exchange-listed marketable securities, which are marked-to-market daily, and collateralized receivables from broker-dealers and clearing organizations arising from proprietary securities transactions. Collateralized receivables consist primarily of securities borrowed, receivables from clearing houses for settlement of securities transactions and, to a lesser extent, securities purchased under agreements to resell. We actively manage our liquidity, and we maintain significant borrowing facilities through the securities lending markets and with banks and prime brokers. We have continually received the benefit of uncommitted margin financing from our prime

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brokers globally. These margin facilities are secured by securities in accounts held at the prime broker. For purposes of providing additional liquidity, we maintain a committed revolving credit facility for VFBD, one of our wholly owned broker-dealer subsidiaries. Effective July 18, 2016, we entered into an amendment to extend the term of the committed broker dealer credit facilities, to July 17, 2017, as discussed in Note 8 of the accompanying condensed consolidated financial statements.

 

Based on our current level of operations, we believe our cash flows from operations, available cash and available borrowings under our broker-dealer revolving credit facility will be adequate to meet our future liquidity needs for more than the next twelve months. We anticipate that our primary upcoming cash and liquidity needs will be increased margin requirements from increased trading activities in markets where we currently provide liquidity and in new markets into which we expand. We manage and monitor our margin and liquidity needs on a real-time basis and can adjust our requirements both intra-day and inter-day, as required.

 

We expect our principal sources of future liquidity to come from cash flows provided by operating activities and financing activities. In addition, we have broad discretion as to the application of the net proceeds received from the IPO for working capital and general corporate purposes.  Certain of our cash balances are insured by the Federal Deposit Insurance Corporation, generally up to $250,000 per account but without a cap under certain conditions. From time to time these cash balances may exceed insured limits, but we select financial institutions deemed highly creditworthy to minimize risk. We consider highly liquid investments with original maturities of less than three months when acquired to be cash equivalents.

 

Tax Receivable Agreements

 

Generally, we are required under the tax receivable agreements entered into in connection with our IPO to make payments to certain direct or indirect equityholders of Virtu Financial that are generally equal to 85% of the applicable cash tax savings, if any, that we actually realize as a result of favorable tax attributes that will be available to us as a result of the Reorganization Transactions, exchanges of membership interests for Class A common stock or Class B common stock and payments made under the tax receivable agreements. We will retain the remaining 15% of these cash tax savings. We expect that future payments to certain direct or indirect equityholders of Virtu Financial described in Note 13 to the condensed consolidated financial statements included herein are expected to aggregate to approximately $231.4 million, ranging from approximately $0.3 million to $21.2 million per year over the next 15 years. Such payments will occur only after we have filed our U.S. federal and state income tax returns and realized the cash tax savings from the favorable tax attributes. The first payment was originally due after the filing of our tax return for the year ended December 31, 2015, which was due March 15, 2016, but which was extended to September 15, 2016. Future payments under the tax receivable agreements in respect of subsequent exchanges would be in addition to these amounts. We currently expect to fund these payments from cash flow from operations generated by our subsidiaries as well as from excess tax distributions that we receive from our subsidiaries. We made our first payment of $7.0 million during the three months ended March 31, 2017.

 

Under the tax receivable agreements, as a result of certain types of transactions and other factors, including a transaction resulting in a change of control, we may also be required to make payments to certain direct or indirect equityholders of Virtu Financial in amounts equal to the present value of future payments we are obligated to make under the tax receivable agreements. If the payments under the tax receivable agreements are accelerated, we may be required to raise additional debt or equity to fund such payments. To the extent that we are unable to make payments under the tax receivable agreements for any reason (including because our senior secured credit facility agreement restricts the ability of our subsidiaries to make distributions to us) such payments will be deferred and will accrue interest until paid.

 

Regulatory Capital Requirements

 

Certain of our principal operating subsidiaries are subject to separate regulation and capital requirements in the United States and other jurisdictions. VFBD and VFCM are registered U.S. broker-dealers, and their primary regulators include the SEC, the Chicago Stock Exchange and FINRA. VFIL is a registered investment firm under the Market in Financial Instruments Directive, and its primary regulator is the Central Bank of Ireland.

 

The SEC and FINRA impose rules that require notification when regulatory capital falls below certain pre-defined criteria. These rules also dictate the ratio of debt-to-equity in the regulatory capital composition of a broker-

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dealer and constrain the ability of a broker-dealer to expand its business under certain circumstances. If a firm fails to maintain the required regulatory capital, it may be subject to suspension or revocation of registration by the applicable regulatory agency, and suspension or expulsion by these regulators could ultimately lead to the firm’s liquidation. Additionally, certain applicable rules impose requirements that may have the effect of prohibiting a broker-dealer from distributing or withdrawing capital and requiring prior notice to and/or approval from the SEC, the Chicago Stock Exchange and FINRA for certain capital withdrawals. VFCM is also subject to rules set forth by NYSE MKT (formerly NYSE Amex) and is required to maintain a certain level of capital in connection with the operation of its DMM business. VFIL is regulated by the Central Bank of Ireland as an Investment Firm and in accordance with European Union law is required to maintain a minimum amount of regulatory capital based upon its positions, financial conditions, and other factors. In addition to periodic requirements to report its regulatory capital and submit other regulatory reports, VFIL is required to obtain consent prior to receiving capital contributions or making capital distributions from its regulatory capital. Failure to comply with its regulatory capital requirements could result in regulatory sanction or revocation of its regulatory license.

 

The following table sets forth the regulatory capital level, requirement and excess for domestic U.S. subsidiaries as of March 31, 2017.

 

 

 

 

 

 

 

 

 

 

 

 

 

    

Regulatory 

    

Regulatory Capital

    

Excess Regulatory

 

(in thousands)

 

Capital

 

Requirement

 

Capital

 

Virtu Financial BD LLC

 

$

57,017

 

$

1,000

 

$

56,017

 

Virtu Financial Capital Markets LLC

 

 

11,894

 

 

2,846

 

 

9,048

 

 

Broker-Dealer Credit Facilities

 

We are a party to two secured credit facilities with the same financial institution to finance overnight securities positions purchased as part of its ordinary course broker‑dealer market making activities. One of the facilities (the “Uncommitted Facility”), is provided on an uncommitted basis and is available for borrowings by our broker‑dealer subsidiaries up to a maximum amount of $125.0 million. In connection with this credit facility, we entered into demand promissory notes dated February 20, 2013. The loans provided under the Uncommitted Facility are collateralized by our broker‑dealer trading and deposit accounts with the same financial institution and, bear interest at a rate set by the financial institution on a daily basis 1.91% at March 31, 2016 and 1.25% at December 31, 2015). The Uncommitted Facility has a 364‑day term. We are a party to another facility (the “Committed Facility”) with the same financial institution dated July 22, 2013 and subsequently amended on March 26, 2014, July 21, 2014, April 24, 2015, and July 18, 2016, which is provided on a committed basis and is available for borrowings by one of our broker‑dealer subsidiaries up to a maximum of the lesser of $75.0 million or an amount determined based on agreed advance rates for pledged securities. Borrowings under this facility are used to finance the purchase and settlement of securities and bear interest at the adjusted LIBOR rate or base rate, plus a margin of 1.25% per annum. A commitment fee of 0.25% per annum on the average daily unused portion of this facility is payable quarterly in arrears. This facility requires, among other items, maintenance of minimum net worth, minimum excess net capital and a maximum total assets to equity ratio.

 

Short-Term Credit Facilities

 

We maintain short term credit facilities with various prime brokers and other financial institutions from which we receive execution or clearing services.  The proceeds of these facilities are used to meet margin requirements associated with the products traded by us in the ordinary course, and amounts borrowed are collateralized by our trading accounts with the applicable financial institution.  The aggregate amount available for borrowing under these facilities was $493.0 million and $478.0 million, the outstanding principal was $241.3 million and $309.1 million, and borrowings bore interest at a weighted average interest rate of 3.27% and 3.12% per annum, as of March 31, 2017, and December 31, 2016, respectively.  Interest expense in relation to the facilities for the three months ended March 31, 2017 and 2016 was approximately $1.7 million and $1.7 million, respectively.

 

Long-Term Borrowings

 

VFH Parent LLC, Virtu Financial’s wholly owned subsidiary (“VFH”) issued Japanese Yen Bonds (collectively the “SBI Bonds”) in the aggregate principal amount of ¥3.5 billion to SBI Life Insurance Co., Ltd. and SBI Insurance Co., Ltd., in July 2016. The SBI Bonds were issued bearing interest at the rate per annum of 4.0% with the scheduled maturity on January 6, 2020.  The rate per annum was increased pursuant to the terms and conditions of the SBI Bonds

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to 5.0% as of October 27, 2016.  The aggregate principal balance was ¥3.5 billion (approximately $29.9 million) as of March 31, 2017.

 

We originally entered into our senior secured credit facility with Credit Suisse AG, Cayman Islands Branch, in July 2011 in connection with the MTH Transactions. Subsequently, we refinanced our senior secured credit facility in February 2013, we obtained an incremental term loan thereunder in May 2013 and we refinanced our senior secured credit facility again in November 2013. On October 27, 2016, we entered into a third amended and restated credit agreement with JPMorgan Chase Bank, N.A. as administrative agent, lead arranger and bookrunner and BMO Capital Markets Corp., as syndication agent (the “Refinancing Transaction”).  The third amended and restated credit agreement amends and restated in its entirety the existing senior secured credit facility.  Under the third amended and restated credit agreement (i) VFH’s existing term loan facility was replaced by a senior secured first lien term loan in an aggregate principal amount of $540.0 million, drawn in its entirety on the closing date and (ii) VFH’s existing senior secured first lien revolving facility with aggregate commitments of $100.0 million remains in effect. The term loan borrowings under the third amended and restated credit agreement will bear interest, at our election, at either (i) the greatest of (a) the prime rate in effect, (b) the federal funds effective rate plus 0.5%, (c) an adjusted LIBOR rate for a Eurodollar borrowing with an interest period of one month plus 1% and (d) 1.75%, plus, in each case, 2.50%, or (ii) the greater of (x) an adjusted LIBOR rate for the interest period in effect and (y) 0.75%, plus, in each case, 3.50%.  In addition, the term loans were issued at a discount of 0.25%. As of March 31, 2017 and December 31, 2016, our senior secured credit facility has an aggregate principal amount outstanding of $538.7 million and $540.0 million, respectively.

 

Our senior secured credit facility is subject to certain financial covenants, which require us to maintain specified financial ratios and tests, including interest coverage and total leverage ratios, which may require us to take action to reduce our debt or to act in a manner contrary to our business objectives. Our senior secured credit facility is also subject to certain negative covenants that restricts our ability to, among other things, incur additional indebtedness, dispose of assets, guarantee debt obligations, repay other indebtedness, pay dividends, pledge assets, make investments, including in certain of our operating subsidiaries, make acquisitions or consummate mergers or consolidations and engage in certain transactions with subsidiaries and affiliates. We are also subject to contingent principal payments based on excess cash flow and certain other triggering events. As of March 31, 2017 and 2016, we were in compliance with all of our covenants.

 

Borrowings under our senior secured credit facility are secured by substantially all of our assets, other than the equity interests in and assets of our subsidiaries that are subject to, or potentially subject to, regulatory oversight, and our foreign subsidiaries, but including 100% of the non-voting stock and 65% of the voting stock of these subsidiaries.

 

On April 15, 2015, VFH Parent LLC, Virtu Financial’s wholly owned subsidiary, entered into the new revolving credit facility with a syndicate of lenders in the amount of $100.0 million for general corporate purposes. The new revolving credit facility was implemented pursuant to an amendment to the existing senior secured credit facility, which is secured on a pari passu basis with the existing term loan under our senior secured credit facility and is subject to the same financial covenants and negative covenants. Borrowings under the new revolving credit facility will bear interest, at our election, at either (i) the greatest of (a) the prime rate in effect, (b) the federal funds effective rate plus 0.5% and (c) an adjusted LIBOR rate for a Eurodollar borrowing with an interest period of one month plus 1% plus, in each case, 2.0%, or (ii) an adjusted LIBOR rate for the interest period in effect plus 3.0%. A commitment fee of 0.50% per annum is applied on the average daily unused portion of the facility. In connection with the amendment described above and as discussed in Note 8, the incremental spread under the existing term loan was reduced by 0.50% upon the consummation of the IPO on April 21, 2015. As of March 31, 2017 and December 31, 2016, we did not have any outstanding principal balance on the revolving credit facility.

 

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Cash Flows

 

Our main sources of liquidity are cash flow from the operations of our subsidiaries, our broker‑dealer revolving credit facility (as described above), margin financing provided by our prime brokers and cash on hand.

 

The table below summarizes our primary sources and uses of cash for the three months ended March 31, 2017 and 2016.

 

 

 

 

 

 

 

 

 

 

 

For the Three Months Ended

 

(in thousands)

    

2017

    

2016

  

Net cash provided by (used in):

 

 

 

 

 

 

 

Operating activities

 

$

32,087

 

$

51,468

 

Investing activities

 

 

(5,859)

 

 

(3,290)

 

Financing activities

 

 

(43,461)

 

 

(65,393)

 

Effect of exchange rate changes on Cash and cash equivalents

 

 

785

 

 

2,494

 

Net increase in Cash and cash equivalents

 

$

(16,448)

 

$

(14,721)

 

 

Operating Activities

 

Net cash provided by operating activities was $32.1 million for the three months ended March 31, 2017, compared to $51.5 million for the three months ended March 31, 2016. The decrease of $19.4 million in net cash provided by operating activities was mainly due to the decrease in net income of $30.0 million.  

 

Investing Activities

 

Net cash used in investing activities was $5.9 million for the three months ended March 31, 2017, compared to $3.3 million for the three months ended March 31, 2016.  The increase of $2.6 million was primarily due to an increase of $0.7 million in development of capitalized software and an increase of $2.5 million in property and equipment purchases for the three months ended March 31, 2017.

 

Financing Activities

 

Net cash used in financing activities was $43.5 million for the three months ended March 31, 2017 and $65.4 million for the three months ended March 31, 2016. The decrease of $21.9 million was primarily caused by a decrease in distribution to non-controlling interests of $20.2 million and a decrease in short-term borrowings, net of $10.0 million for the three months ended March 31, 2017. These decreases were partially offset by the first TRA payment of $7.0 million, and an increase in purchase of treasury stock of $0.4 million.

 

Off-Balance Sheet Arrangements

 

We do not invest in any off-balance sheet vehicles that provide liquidity, capital resources, market or credit risk support, or engage in any activities that expose us to any liability that is not reflected in our condensed consolidated financial statements.

 

Inflation

 

We believe inflation has not had a material effect on our financial condition or results of operations, or cash flows for the three months ended March 31, 2017 and 2016.

 

Critical Accounting Policies and Estimates

 

The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements, as well as the reported amounts of revenue and expenses during the applicable reporting period. Critical accounting policies are those that are the most important portrayal of our financial condition and results of operations and that require our most difficult, subjective and complex judgments as a result of the need to make estimates about the effect of matters that are inherently uncertain. While our significant accounting

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policies are described in more detail in the notes to our financial statements, our most critical accounting policies are discussed below. In applying such policies, we must use some amounts that are based upon our informed judgments and best estimates. Estimates, by their nature, are based upon judgments and available information. The estimates that we make are based upon historical factors, current circumstances and the experience and judgment of management. We evaluate our assumptions and estimates on an ongoing basis. Our actual results may differ from these estimates under different assumptions or conditions.

 

Earnings Per Share

 

Earnings per share (“EPS”) is calculated on both a basic and diluted basis. Basic EPS excludes dilution and is calculated by dividing income available to common stockholders by the weighted-average number of common shares outstanding for the period. Diluted EPS is calculated by dividing the net income available for common stockholders by the diluted weighted average shares outstanding for that period. Diluted EPS includes the determinants of the basic EPS and, in addition, reflects the dilutive effect of shares of common stock estimated to be distributed in the future under our share based compensation plans, with no adjustments to net income available for common stockholders for dilutive potential common shares.

 

We grant restricted stock units (“RSUs”), which entitle recipients to receive nonforfeitable dividends during the vesting period on a basis equivalent to the dividends paid to holders of common stock. As a result, the unvested RSUs meet the definition of a participating security requiring the application of the two-class method. Under the two-class method, earnings available to common shareholders, including both distributed and undistributed, are allocated to each class of common stock and participating securities according to dividends declared and participating rights in undistributed earnings, which may cause diluted EPS to be more dilutive than the calculation using the treasury stock method.

 

Principles of Consolidation, including Noncontrolling Interests

 

The condensed consolidated financial statements include the accounts of us and our majority and wholly-owned subsidiaries. As sole managing member of Virtu Financial, we exert control over the Group’s operations. In accordance with ASC 810, Consolidation, we consolidate Virtu Financial and its subsidiaries’ consolidated financial statements and record the interests in Virtu Financial that we do not own as noncontrolling interests.   All intercompany accounts and transactions have been eliminated in consolidation.   In July 2016, we made a minority investment in a proprietary trading system. We elected the fair value option to account for an equity investment because we believe that fair value is the most relevant measurement attribute for the investment, as well as to reduce operational and accounting complexity.

 

Valuation of Financial Instruments

 

Due to the nature of our operations, substantially all of our financial instrument assets, comprised of financial instruments owned, securities purchased under agreements to resell, and receivables from brokers, dealers and clearing organizations are carried at fair value based on published market prices and are marked to market daily, or are assets which are short-term in nature and are reflected at amounts approximating fair value. Similarly, all of our financial instrument liabilities that arise from financial instruments sold but not yet purchased, securities sold under agreements to repurchase, securities loaned and payables to brokers, dealers and clearing organizations are short-term in nature and are reported at quoted market prices or at amounts approximating fair value.

 

Revenue Recognition

 

Trading Income, Net

 

Trading income, net, consists of trading gains and losses that are recorded on a trade date basis and reported on a net basis. Trading income, net, is comprised of changes in fair value of assets and liabilities (i.e., unrealized gains and losses) and realized gains and losses on equities, fixed income securities, currencies and commodities.

 

Interest and Dividends Income/Interest and Dividends Expense

 

Interest income and interest expense are accrued in accordance with contractual rates. Interest income consists of income earned on collateralized financing arrangements and on cash held by brokers. Interest expense includes

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interest expense from collateralized transactions, margin and related short-term lending facilities. Dividends are recorded on the ex-dividend date, and interest is recognized on an accrual basis.

 

Technology Services

 

Technology services revenues consist of fees paid by third parties for licensing of our proprietary risk management and trading infrastructure technology and provision of associated management and hosting services. These fees include both upfront and annual recurring fees. Income from existing arrangements for technology services is recorded as a services contract in accordance with SEC Topic 13 (Staff Accounting Bulletin No. 104), SEC Topic 13.A.3 (f), with revenue being recognized once persuasive evidence of an arrangement exists, delivery has occurred, the fee is fixed or determinable, and collectability is probable.   Technology services revenues also include agency commission fees that are earned from agency trades executed by the Company on behalf of third parties.

 

Software Development Costs

 

We account for the costs of computer software developed or obtained for internal use in accordance with ASC 350-40, Internal-Use Software. We capitalize payroll and payroll related costs for employees incurred in developing internal-use software. Costs incurred during the preliminary project and post-implementation stages are charged to expense. Management’s judgment is required in determining the point when various projects enter the stages at which costs may be capitalized, in assessing the ongoing value of the capitalized costs and in determining the estimated useful lives over which the costs are amortized. Capitalization of such costs begins when a program or functionality under development has established technological feasibility and ends when the resulting program or functionality is available for release to users. Such criteria are measured through periodic surveys of employees responsible for developing internal-use software.

 

Capitalized software development costs and related accumulated amortization are included in property, equipment and capitalized software in the accompanying condensed consolidated statements of financial condition and are amortized over a period of 1.4 to 2.5 years, which represents the estimated useful lives of the underlying software.

 

Share-Based Compensation

 

We account for share-based compensation transactions with employees under the provisions of ASC 718, Compensation: Stock Compensation. Share-based compensation transactions with employees are measured based on the fair value of equity instruments issued.

 

The fair value of awards issued for compensation prior to the Reorganization Transactions and the IPO was determined by management, with the assistance of an independent third party valuation firm, using a projected annual forfeiture rate, where applicable, on the date of grant.

 

Share-based awards issued for compensation in connection with or subsequent to the Reorganization Transactions and the IPO pursuant to our 2015 Management Incentive Plan (the “2015 Management Incentive Plan”) were in the form of stock options, Class A common stock and restricted stock units. The fair value of the stock option grants is determined through the application of the Black-Scholes-Merton model. The fair value of the Class A common stock and restricted stock units is determined based on the volume weighted average price for the three days preceding the grant, and with respect to the restricted stock units, a projected annual forfeiture rate. The fair value of share-based awards granted to employees is expensed based on the vesting conditions and is recognized on a straight line basis over the vesting period. We record as treasury stock shares repurchased from employees for the purpose of settling tax liabilities incurred upon the issuance of common stock, the vesting of restricted stock units or the exercise of stock options.

 

Income Taxes

 

We conduct our business globally through a number of separate legal entities. Consequently, our effective tax rate is dependent upon the geographic distribution of our earnings or losses and the tax laws and regulations of each legal jurisdiction in which we operate.

 

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Certain of our wholly owned subsidiaries are subject to income taxes in foreign jurisdictions. The provision for income tax is comprised of current tax and deferred tax. Current tax represents the tax on current year tax returns, using tax rates enacted at the balance sheet date. A deferred tax asset is recognized only to the extent that it is probable that future taxable income will be available against which the asset can be utilized.

 

We recognize the tax benefit from an uncertain tax position, in accordance with ASC 740, Income Taxes only if it is more likely than not that the tax position will be sustained on examination by the applicable taxing authority, including resolution of the appeals or litigation processes, based on the technical merits of the position. The tax benefits recognized in the condensed consolidated financial statements from such a position are measured based on the largest benefit for each such position that has a greater than fifty percent likelihood of being realized upon ultimate resolution. Many factors are considered when evaluating and estimating the tax positions and tax benefits. Such estimates involve interpretations of regulations, rulings, case law, etc. and are inherently complex. Our estimates may require periodic adjustments and may not accurately anticipate actual outcomes as resolution of income tax treatments in individual jurisdictions typically would not be known for several years after completion of any fiscal year.

 

Goodwill and Intangible Assets

 

Goodwill represents the excess of the purchase price over the underlying net tangible and intangible assets of our acquisitions. Goodwill is not amortized but is tested for impairment on an annual basis and between annual tests whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. Goodwill is tested at the reporting unit level, which is defined as an operating segment or one level below the operating segment. We operate in one operating segment, which is our only reporting unit.

 

The goodwill impairment test is a two-step process. The first step is used to identify potential impairment and compares the fair value of a reporting unit with its carrying amount, including goodwill. If the carrying amount of a reporting unit exceeds its fair value, the second step of the goodwill impairment test must be performed. The second step is used to measure the amount of impairment loss, if any, and compares the implied fair value of reporting unit goodwill with the carrying amount of that goodwill. If the carrying amount of reporting unit goodwill exceeds the implied fair value of that goodwill, an impairment loss must be recognized in an amount equal to that excess.

 

We test goodwill for impairment on an annual basis on July 1 and on an interim basis when certain events or circumstances exist. In the impairment test as of July 1, 2016, the primary valuation method used to estimate the fair value of the our reporting unit was the market capitalization approach based on the market price of our Class A common stock, which the management believes to be an appropriate indicator of its fair value.

 

Recent Accounting Pronouncements

 

For a discussion of recently issued accounting developments and their impact or potential impact on our condensed consolidated financial statements, see Note 2 – Summary of Significant Accounting Policies, of the condensed consolidated financial statements included in this quarterly report on Form 10-Q.

 

 

 

ITEM 3. QUANTITATIV E AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

Interest Rate Risk, Derivative Instruments

 

In the normal course of business, we utilize derivative financial instruments in connection with our proprietary trading activities. We do not designate our derivative financial instruments as hedging instruments under Financial Accounting Standards Board’s (“FASB”) Accounting Standards Codification (ASC) 815 “Derivatives and Hedging.” Instead, we carry our derivative instruments at fair value with gains and losses included in trading income, net, in the accompanying condensed statements of comprehensive income. Fair value of derivatives that are freely tradable and listed on a national exchange is determined at their last sale price as of the last business day of the period. Since gains and losses are included in earnings, we have elected not to separately disclose gains and losses on derivative instruments, but instead to disclose gains and losses within trading revenue for both derivative and non-derivative instruments.

 

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Futures Contracts. As part of our proprietary market making trading strategies, we use futures contracts to gain exposure to changes in values of various indices, commodities, interest rates or foreign currencies. A futures contract represents a commitment for the future purchase or sale of an asset at a specified price on a specified date. Upon entering into a futures contract, we are required to pledge to the broker an amount of cash, U.S. government securities or other assets equal to a certain percentage of the contract amount. Subsequent payments, known as variation margin, are made or received by us each day, depending on the daily fluctuations in the fair values of the underlying securities. We recognize a gain or loss equal to the daily variation margin.

 

Due from Broker Dealers and Clearing Organizations. Management periodically evaluates our counterparty credit exposures to various brokers and clearing organizations with a view to limiting potential losses resulting from counterparty insolvency.

 

Foreign Currency Risk

 

As a result of our international market making activities and accumulated earnings in our foreign subsidiaries, our income and net worth are subject to fluctuation in foreign exchange rates. While we generate revenues in several currencies, a majority of our operating expenses are denominated in U.S. dollars. Therefore, depreciation in these other currencies against the U.S. dollar would negatively impact revenue upon translation to the U.S. dollar. The impact of any translation of our foreign denominated earnings to the U.S. dollar is mitigated, however, through the impact of daily hedging practices that are employed by the company.

 

Assets and liabilities of subsidiaries with non-U.S. dollar functional currencies are translated into U.S. dollars at period-end exchange rates. Income, expense and cash flow items are translated at average exchange rates prevailing during the period. The resulting currency translation adjustments are recorded as foreign exchange translation adjustment in our condensed consolidated statements of comprehensive income and changes in equity. Our primary currency translation exposures historically relate to net investments in subsidiaries having functional currencies denominated in the Euro.

 

Market Risk

 

The purchase and sale of futures contracts requires margin deposits with a Futures Commission Merchant (“FCM”). The Commodity Exchange Act requires an FCM to segregate all customer transactions and assets from the FCM’s proprietary activities. A customer’s cash and other equity deposited with an FCM are considered commingled with all other customer funds subject to the FCM’s segregation requirements. In the event of an FCM’s insolvency, recovery may be limited to the Company’s pro rata share of segregated customer funds available. It is possible that the recovery amount could be less than the total cash and other equity deposited.

 

Financial Instruments with Off Balance Sheet Risk

 

We enter into various transactions involving derivatives and other off-balance sheet financial instruments. These financial instruments include futures, forward contracts, and exchange-traded options. These derivative financial instruments are used to conduct trading activities and manage market risks and are, therefore, subject to varying degrees of market and credit risk. Derivative transactions are entered into for trading purposes or to economically hedge other positions or transactions.

 

Futures and forward contracts provide for delayed delivery of the underlying instrument. In situations where we write listed options, we receive a premium in exchange for giving the buyer the right to buy or sell the security at a future date at a contracted price. The contractual or notional amounts related to these financial instruments reflect the volume and activity and do not necessarily reflect the amounts at risk. Futures contracts are executed on an exchange, and cash settlement is made on a daily basis for market movements, typically with a central clearing house as the counterparty. Accordingly, futures contracts generally do not have credit risk. The credit risk for forward contracts, options, and swaps is limited to the unrealized market valuation gains recorded in the statements of financial condition. Market risk is substantially dependent upon the value of the underlying financial instruments and is affected by market forces, such as volatility and changes in interest and foreign exchange rates.

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ITEM 4. CONTROLS AND PROCEDURES

 

Evaluation of Disclosure Controls and Procedures

 

Under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, management has evaluated the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) or 15d-15(e) of the Securities Exchange Act of 1934, (the “Exchange Act”)) as of March 31, 2017. Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of March 31, 2017, our disclosure controls and procedures were effective to ensure information required to be disclosed by us in the reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within the periods specified in the Securities and Exchange Commission’s rules and forms and is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.

 

Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls and procedures will prevent all errors and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, with the Company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty and that breakdowns can occur because of simple error and mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people or by management override of controls.

 

The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Over time, a control may become inadequate because of changes in conditions or because the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and may not be detected.

 

Changes to Internal Control over Financial Reporting

 

No change in our internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) occurred during the three months ended March 31, 2017 that has or is reasonably likely to materially affect, our internal control over financial reporting.

 

 

PART I I - OTHER INFORMATION

 

ITEM 1. LEGAL PROCEEDINGS

 

We are subject to various legal proceedings and claims that arise in the ordinary course of business. We also have been, are currently, and may in the future be, the subject of one or more regulatory or self-regulatory organization enforcement actions, including but not limited to targeted and routine regulatory inquiries and investigations involving Regulation NMS, Regulation SHO, capital requirements and other domestic and foreign securities rules and regulations which may from time to time result in the imposition of penalties or fines. As previously disclosed, in December 2015, the enforcement committee of the Autorité des marchés financiers (“AMF”) fined our European subsidiary in the amount of €5.0 million (approximately $5.4 million) based on its conclusion that the subsidiary engaged in price manipulation and violations of the AMF General Regulation and Euronext Market Rules. The relevant trading activities were conducted on or around 2009, prior to our acquisition of the subsidiary from MTH.  We believe that the relevant trading engaged in by the subsidiary of MTH was conducted in accordance with applicable French law and regulations and we are pursuing our rights of appeal.  We have also been the subject of requests for information and documents from the SEC and the State of New York Office of the Attorney General (“NYAG”). 

 

Certain of these matters may result, or have resulted, in adverse judgments, settlements, fines, penalties, injunctions or other relief, and our business or reputation could be negatively impacted if it were determined that disciplinary or other enforcement actions were required. The ultimate effect on the Company from the pending

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proceedings and claims, if any, is presently unknown. Where available information indicates that it is probable a liability had been incurred at the date of the condensed consolidated financial statements and we can reasonably estimate the amount of that loss, we accrue the estimated loss by a charge to income.  In accordance with the foregoing, we have accrued an estimated loss of €5.0 million (approximately $5.4 million) in relation to the fine imposed by the AMF.  Subject to the foregoing, based on information currently available, management believes it is not probable that the resolution of any known matters will result in a material adverse effect on the Company’s financial position, results of operations or cash flows although they might be material for any particular reporting period.

 

ITEM 1A. RISK FACTORS

The following risk factors and other information included in this Quarterly Report on Form 10-Q should be carefully considered. The risks and uncertainties described below are not the only ones we face. Additional risks and uncertainties not presently known to us or that we presently deem less significant may also impair our business operations. Please see page 32 of this Quarterly Report on Form 10-Q for a discussion of the forward-looking statements that are qualified by these risk factors. If any of the events or circumstances described in the following risk factors actually occurs, our business, operating results and financial condition could be materially adversely affected.

Risks Related to the KCG Transactions

There is no assurance when or if the KCG Acquisition will be completed.  Any delay in completing the KCG Acquisition may substantially reduce the benefits that we expect to obtain from the KCG Acquisition and increase the transaction costs.

Completion of the KCG Acquisition is subject to the satisfaction or waiver of a number of conditions as set forth in the KCG Merger Agreement, including expiration or termination of applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the receipt of other required governmental or regulatory approvals.  We and KCG may not be able to satisfy the closing conditions and closing conditions beyond our or their control may not be satisfied or waived and the KCG Acquisition may not be consummated by reason of failure to so satisfy such conditions.  If the KCG Acquisition and the integration of the companies’ respective businesses are not completed within the expected timeframe, such delay may materially and adversely affect the synergies, cost reductions and other benefits that we expect to achieve as a result of the KCG Acquisition and could result in additional transaction costs, loss of revenue or other effects associated with uncertainty about the KCG Acquisition.   

Failure to complete the KCG Acquisition could negatively impact our stock price and our future business and financial results.

Consummation of the KCG Acquisition is subject to customary closing conditions. If the KCG Acquisition is not completed for any reason, our ongoing business and financial results may be adversely affected, and we will be subject to a number of risks, including the following:

·

we may be required, under certain circumstances, to pay various amounts to KCG in connection with a termination of the KCG Merger Agreement; and

·

we will be required to pay certain other costs relating to the KCG Acquisition, whether or not the KCG Acquisition is completed, such as legal, accounting, financial advisor and printing fees.

We may also be subject to litigation related to any failure to complete the KCG Acquisition. If the KCG Acquisition is not completed, these risks may materialize and may adversely affect our business, prospects, results of operations, financial condition and/or cash flows, as well as the price of our common stock, which may cause the value of your investment to decline. We cannot provide any assurance that the KCG Acquisition will be completed, that there will not be a delay in the completion of the KCG Acquisition or that all or any of the anticipated benefits of the KCG Acquisition will be obtained. In the event the KCG Acquisition is materially delayed for any reason, the price of our common stock and of our securities may decline.

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Significant costs and significant indebtedness will be incurred in connection with the consummation of the KCG Transactions, including the KCG Acquisition, and the integration of KCG into our business, including legal, accounting, financial advisory and other costs.

We expect to incur significant costs in connection with integrating the operations, products and personnel of KCG into our business, in addition to costs related directly to completing the KCG Transactions.  These costs may include:

·

employee retention, redeployment, relocation or severance;

·

integration of information systems;

·

combination of corporate and administrative functions; and

·

potential or pending litigation or other proceedings related to the KCG Acquisition.

The costs related to the KCG Transactions could be higher than currently estimated, depending on how difficult it will be to integrate our business with that of KCG, and the expected cost reductions and synergies may not be achieved.

In addition, we expect to incur a number of non-recurring costs associated with combining the operations of KCG with ours, which cannot be estimated accurately at this time.  While we expect to incur a significant amount of transaction fees and other costs related to the consummation of the KCG Transactions, additional unanticipated costs may yet be incurred.  Any expected elimination of duplicative costs, as well as the expected realization of other cost reductions, efficiencies and synergies related to the integration of our operations with those of KCG, that may offset incremental transaction and transaction-related costs over time, may not be achieved as projected, or at all.

In addition, we expect to incur $1.65 billion of new indebtedness in connection with the KCG Transactions.  The debt we incur in connection with the KCG Transactions may limit our financial and operating flexibility, and we may incur additional debt, which could increase the risks associated with our substantial indebtedness.  Our substantial indebtedness may have material consequences for our business, prospects, results of operations, financial condition and/or cash flows. 

Integrating KCG’s business into our business may divert management’s attention away from operations, and we may also encounter significant difficulties in integrating the two businesses.

The KCG Transactions involve the integration of two companies that have previously operated independently.  The success of the KCG Transactions and their anticipated financial and operational benefits, including increased revenues, synergies and cost reductions, will depend in part on our ability to successfully combine and integrate KCG’s business into ours, and there can be no assurance regarding when or the extent to which we will be able to realize these increased revenues, synergies, cost reductions or other benefits.  These benefits may not be achieved within the anticipated time frame, or at all.

Successful integration of KGC’s operations, products and personnel may place a significant burden on management and other internal resources. The diversion of management’s attention, and any difficulties encountered in the transition and integration process, could harm our business, prospects, results of operations, financial condition and/or cash flows.

In addition, the overall integration of the businesses may result in material unanticipated problems, expenses, liabilities, and competitive responses.  The difficulties of combining the operations of the companies include, among others:

·

difficulties in achieving anticipated cost reductions, synergies, business opportunities and growth prospects from the combination;

·

difficulties in the integration of operations and systems;

·

conforming standards, controls, procedures and accounting and other policies, business cultures and compensation structures between the two companies;

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·

difficulties in the assimilation of employees and the integration of the companies’ different organizational structures;

·

difficulties in managing the expanded operations of a larger and more complex company with increased international operations;

·

challenges in integrating the business culture of each company;

·

challenges in attracting and retaining key personnel; and

·

difficulties in replacing numerous systems, including those involving management information, purchasing, accounting and finance, sales, billing, employee benefits, payroll, data privacy and security and regulatory compliance, many of which may be dissimilar.

These factors could result in increased costs, decreases in the amount of expected revenues and diversion of management’s time and energy, which could materially impact our business, prospects, results of operations, financial condition and/or cash flows.

We may not realize the anticipated synergies, net cost reductions and growth opportunities from the KCG Acquisition.

The benefits that we expect to achieve as a result of the KCG Acquisition will depend, in part, on the ability of the combined company to realize anticipated growth opportunities, net cost reductions and synergies.  Our success in realizing these growth opportunities, net cost reductions and synergies, and the timing of this realization, depends on the successful integration of our historical business and operations and the historical business and operations of KCG.  Even if we are able to integrate the businesses and operations of the Company and KCG successfully, this integration may not result in the realization of the full benefits of the growth opportunities, net cost reductions and synergies that we currently expect from this integration within the anticipated time frame or at all.  For example, we may be unable to eliminate duplicative costs.  Moreover, we may incur substantial expenses in connection with the integration of our business and KCG’s business.  While we anticipate that certain expenses will be incurred, such expenses are difficult to estimate accurately and may exceed current estimates.  Accordingly, the benefits from the KCG Acquisition may be offset by costs or delays incurred in integrating the businesses.  The projected net cost reductions and synergies described in this Quarterly Report on Form 10-Q are based on a number of assumptions relating to our business and KCG’s business.  Those assumptions may be inaccurate, and, as a result, our projected net cost reductions and synergies may be inaccurate, and our business, prospects, results of operations, financial condition and/or cash flows could be materially and adversely affected.

The Company will be subject to business uncertainties that could materially and adversely affect our business.

Uncertainty about the effect of the KCG Acquisition on employees, customers and suppliers may have both a material and adverse effect on both the Company and KCG.  These uncertainties may impair both companies’ ability to attract, retain and motivate key personnel until the KCG Acquisition is consummated and for a period of time thereafter, and could cause customers, suppliers and others who deal with the Company and KCG to seek to change existing business relationships.  If key employees depart because of issues related to the uncertainty and difficulty of integration or a desire not to remain with us after the KCG Transactions are completed, or if customers, suppliers or others seek to change their dealings with us as a result of the KCG Acquisition, our business could be materially and adversely impacted.

In connection with the KCG Acquisition, we will assume potential liabilities relating to KCG’s business.

In connection with the KCG Acquisition, we will have assumed potential liabilities relating to KCG’s business.  To the extent we have not identified such liabilities or miscalculated their potential financial impact, these liabilities could have a material adverse effect on our business, prospects, results of operations, financial condition and/or cash flows.

.

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ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

 

None.

ITEM 3. DEFAULTS UPON SENIOR SECURITIES

 

None.

ITEM 4. MINE SAFETY DISCLOSURES

 

None.

ITEM 5. OTHER INFORMATION

 

None.

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ITEM 6. EXHIBITS

 

 

 

 

Exhibit Number

    

Description

2.1

 

Agreement and Plan of Merger, dated April 20, 2017, by and among Virtu Financial, Inc., Orchestra Merger Sub, Inc. and KCG Holdings, Inc. (incorporated herein by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K, as amended (File No. 001-37352), filed on April 21, 2017).

2.2*

 

Temasek Investment Agreement, dated April 20, 2017, by and between Virtu Financial, Inc. and Aranda Investments Pte. Ltd.

2.3*

 

NIH Investment Agreement, dated April 20, 2017 by and between Virtu Financial, Inc. and North Island Holdings I, LP.

3.1

 

Amended and Restated Certificate of Incorporation of Virtu Financial, Inc. (incorporated herein by reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q, as amended (File No. 001-37352) filed on May 29, 2015).

3.2

 

Amended and Restated By-laws of Virtu Financial, Inc. (incorporated herein by reference to Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q, as amended (File No. 001-37352), filed on May 29, 2015).

10.1

 

Voting Agreement, dated April 20, 2017, by and among Virtu Financial, Inc., Orchestra Merger Sub, Inc. and Jefferies LLC (incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K, as amended (File No. 001-37352), filed on April 21, 2017).

10.2*

 

Stockholders Agreement, dated April 20, 2017, by and among Virtu Financial, Inc., TJMT Holdings LLC,   Aranda Investments Pte. Ltd., Havelock Fund Investments Pte Ltd. and North Island Holdings I, LP.

10.3*

 

Amended and Restated Registration Rights Agreement, dated April 20, 2017, by and among Virtu Financial, Inc., TJMT Holdings LLC, Aranda Investments Pte. Ltd., Havelock Fund Investments Pte Ltd., North Island Holdings I, LP and the additional holders named therein.

31.1*

 

Certification of Chief Executive Officer required by Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

31.2*

 

Certification of Chief Financial Officer required by Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

32.1

 

Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (furnished herewith).

32.2

 

Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (furnished herewith).

101.INS

 

XBRL Instance Document

101.SCH

 

XBRL Taxonomy Extension Schema

101.CAL

 

XBRL Taxonomy Extension Calculation Linkbase

101.LAB

 

XBRL Taxonomy Extension Label Linkbase

101.PRE

 

XBRL Taxonomy Extension Presentation Linkbase

101.DEF

 

XBRL Taxonomy Extension Definition Document

 


* Filed herewith.

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

 

 

 

Virtu Financial, Inc.

 

 

 

 

 

 

DATE:

May 10, 2017

By:

/s/ Douglas A. Cifu

 

 

 

Douglas A. Cifu

 

 

 

Chief Executive Officer

 

 

 

 

 

 

 

 

DATE:

May 10, 2017

By:

/s/ Joseph Molluso

 

 

 

Joseph Molluso

 

 

 

Chief Financial Officer

 

 

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EXHIBIT INDEX

 

 

 

 

Exhibit
Number

    

Description

2.1

 

Agreement and Plan of Merger, dated April 20, 2017, by and among Virtu Financial, Inc., Orchestra Merger Sub, Inc. and KCG Holdings, Inc. (incorporated herein by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K, as amended (File No. 001-37352), filed on April 21, 2017).

2.2*

 

Temasek Investment Agreement, dated April 20, 2017, by and between Virtu Financial, Inc. and Aranda Investments Pte. Ltd.

2.3*

 

NIH Investment Agreement, dated April 20, 2017 by and between Virtu Financial, Inc. and North Island Holdings I, LP.

3.1

 

Amended and Restated Certificate of Incorporation of Virtu Financial, Inc. (incorporated herein by reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q, as amended (File No. 001-37352) filed on May 29, 2015).

3.2

 

Amended and Restated By-laws of Virtu Financial, Inc. (incorporated herein by reference to Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q, as amended (File No. 001-37352), filed on May 29, 2015).

10.1

 

Voting Agreement, dated April 20, 2017, by and among Virtu Financial, Inc., Orchestra Merger Sub, Inc. and Jefferies LLC (incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K, as amended (File No. 001-37352), filed on April 21, 2017).

10.2*

 

Stockholders Agreement, dated April 20, 2017, by and among Virtu Financial, Inc., TJMT Holdings LLC,   Aranda Investments Pte. Ltd., Havelock Fund Investments Pte Ltd. and North Island Holdings I, LP.

10.3*

 

Amended and Restated Registration Rights Agreement, dated April 20, 2017, by and among Virtu Financial, Inc., TJMT Holdings LLC, Aranda Investments Pte. Ltd., Havelock Fund Investments Pte Ltd., North Island Holdings I, LP and the additional holders named therein.

31.1*

 

Certification of Chief Executive Officer required by Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

31.2*

 

Certification of Chief Financial Officer required by Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

32.1

 

Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (furnished herewith).

32.2

 

Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (furnished herewith).

101.INS

 

XBRL Instance Document

101.SCH

 

XBRL Taxonomy Extension Schema

101.CAL

 

XBRL Taxonomy Extension Calculation Linkbase

101.LAB

 

XBRL Taxonomy Extension Label Linkbase

101.PRE

 

XBRL Taxonomy Extension Presentation Linkbase

101.DEF

 

XBRL Taxonomy Extension Definition Document

 


* Filed herewith.

58


Exhibit 2.2

EXECUTION VERSION

 

INVESTMENT AGREEMENT

dated as of April 20, 2017

by and between

Virtu Financial, Inc.

and

Aranda Investments Pte. Ltd.

 

 

 


 

 

TABLE OF CONTENTS

 

Page

 

 

ARTICLE I PURCHASE; CLOSING

1

 

 

1.1

Purchase

1

1.2

Closing

2

1.3

Closing Conditions

2

 

 

 

ARTICLE II REPRESENTATIONS AND WARRANTIES

4

 

 

2.1

Representations and Warranties of the Company

4

2.2

Representations and Warranties of the Purchaser

15

 

 

 

ARTICLE III COVENANTS

18

 

 

3.1

Filings; Other Actions

18

3.2

Reasonable Best Efforts to Close

19

3.3

Corporate Actions

20

3.4

[INTENTIONALLY OMITTED]

20

3.5

Confidentiality

20

3.6

State Securities Laws

20

3.7

Negative Covenants

21

3.8

Certain Statutory and Corporate Matters

21

3.9

Merger Agreement Matters

22

3.10

Use of Proceeds

22

3.11

Tax Matters

22

3.12

North Island Investment Agreement

23

 

 

 

ARTICLE IV ADDITIONAL AGREEMENTS

23

 

 

4.1

[INTENTIONALLY OMITTED]

23

4.2

Legend

23

4.3

[INTENTIONALLY OMITTED]

24

4.4

Observer

24

4.6

Tax Matters

24

 

 

 

ARTICLE V INDEMNITY

24

 

 

5.1

Indemnification by the Company

24

5.2

Indemnification by the Purchaser

25

5.3

Indemnification Procedure

26

5.4

Tax Matters

27

5.5

Survival

27

5.6

Limitation on Damages

27

 

 

 

-i-


 

 

ARTICLE VI MISCELLANEOUS

27

 

 

 

6.1

Expenses

27

6.2

Amendment; Waiver

28

6.3

Counterparts; Electronic Transmission

28

6.4

Governing Law

28

6.5

WAIVER OF JURY TRIAL

28

6.6

Notices

29

6.7

Entire Agreement

30

6.8

Assignment

30

6.9

Interpretation; Other Definitions

30

6.10

Captions

35

6.11

Severability

35

6.12

No Third Party Beneficiaries

35

6.13

Public Announcements

35

6.14

Specific Performance

35

6.15

Further Assurances

36

6.16

Termination

36

6.17

Effects of Termination

37

6.18

Non-Recourse

37

 

 

Exhibit A:   Form of Merger Agreement

 

Exhibit B:   Form of Registration Rights Agreement

 

Exhibit C:   Form of Stockholders Agreement

 

Exhibit D:   Form of Lock-Up Waivers Agreement

 

Exhibit E:   Form of North Island Investment Agreement

 

-ii-


 

 

INDEX OF DEFINED TERMS

 

 

 

Term

 

Location of Definition

Affiliate

 

6.9(f)

Agreement

 

Preamble

Beneficially Own or Beneficial Ownership

 

6.9(g)

Board of Directors

 

2.1(c)

business day

 

6.9(d)

Bylaws

 

2.1(c)(2)

Capitalization Date

 

2.1(b)(1)

Certificate of Incorporation

 

2.1(c)(2)

Class B Common Stock

 

2.1(b)(1)

Class C Common Stock

 

2.1(b)(1)

Class D Common Stock

 

2.1(b)(1)

Closing

 

1.2(a)

Closing Date

 

1.2(a)

Code

 

2.1(o)(1)

Common Stock

 

2.1(b)(1)

Company

 

Preamble

Company Balance Sheet

 

2.1(j)(4)

Company Material Adverse Effect

 

6.9(h)

Company Related Parties

 

5.2

Company Securities

 

2.1(b)(1)

Company Stock Awards

 

2.1(b)

Company Stock Options

 

2.1(b)

Company Subsidiary

 

2.1(a)(2)

control/controlled by/under common control with

 

6.9(f)

Effect

 

6.9(i)

Environmental Law

 

6.9(k)

Equity Securities

 

6.9(l)

ERISA

 

6.9(o)

Exchange Act

 

2.1

Extraordinary Distribution

 

3.11

GAAP

 

2.1(f)(4)

Government Official

 

2.1(s)

Governmental Entity

 

6.9(p)

herein/hereof/hereunder

 

6.9(c)

HSR Act

 

3.1

including/includes/included/include

 

6.9(b)

Indemnified Party

 

5.3(b)

Indemnifying Party

 

5.3(b)

Information

 

3.5

Intellectual Property

 

6.9(q)

Knowledge of the Company

 

6.9(r)

Law

 

6.9(s)

Lien

 

6.9(t)

-iii-


 

 

 

 

 

Term

 

Location of Definition

Losses

 

5.1(a)

Materials of Environmental Concern

 

6.9(u)

Merger

 

Recitals

Merger Agreement

 

Recitals

Merger Consideration

 

Recitals

Merger Sub

 

Recitals

Non-Recourse Party

 

6.18

Observer

 

4.4(a)

or

 

6.9(a)

Permitted Transferee

 

6.9(w)

person

 

6.9(e)

Plan

 

6.9(x)

Pre-Closing Period

 

3.1

Preferred Stock

 

2.1(b)

Purchase Price

 

6.9(y)

Purchaser

 

Preamble

Purchaser Related Parties

 

5.1(a)

Registration Rights Agreement

 

6.9(z)

Regular Dividend

 

3.11

SEC

 

2.1(f)

SEC Documents

 

2.1(f)

Class A Common Stock

 

Recitals

Subsidiary

 

2.1(a)(2)

Target

 

Recitals

Tax Return

 

6.9(bb)

Taxes

 

6.9(cc)

Third Party Claim

 

5.3(b)

Transaction Documents

 

6.9(dd)

Transfer

 

6.9(ee)

Virtu Financial Units

 

6.9(ff)

Voting Debt

 

2.1(b)(1)

Willful Breach

 

6.9(gg)

 

 

 

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INVESTMENT AGREEMENT, dated as of April 20, 2017 (this “ Agreement ”), by and between Virtu Financial, Inc., a Delaware corporation (the “ Company ”), and Aranda Investments Pte. Ltd., a Singapore private limited company (the “ Purchaser ”).

RECITALS:

WHEREAS, the Company is party to an Agreement and Plan of Merger in the form attached as Exhibit A (as it may be amended or supplemented from time to time, the “ Merger Agreement ”), by and among the Company, Orchestra Merger Sub, Inc., a Delaware corporation and an indirect wholly-owned subsidiary of the Company (“ Merger Sub ”), and KCG Holdings, Inc., a Delaware corporation (“ Target ”), pursuant to, and on the terms and subject to the conditions of which, Merger Sub will merge with and into Target, with Target surviving (the “ Merger ”), and each outstanding share of Target (other than shares held by any of Target’s subsidiaries or by the Company or Merger Sub and Dissenting Shares (as defined in the Merger Agreement)) automatically shall be canceled in exchange for, and converted into the right to receive, the cash price per share set forth in the Merger Agreement (the “ Merger Consideration ”).

WHEREAS, to raise a portion of the financing for the Merger, the Company proposes to issue and sell to the Purchaser shares of its Class A common stock, par value $0.00001 per share, (the “ Class A Common Stock ”), subject to the terms and conditions set forth in this Agreement;

WHEREAS, concurrently with the execution and delivery of this Agreement, in connection with the transactions contemplated herein, and as a condition to the willingness of Purchaser to enter into this Agreement, the Company and the Purchaser have entered into the Registration Rights Agreement in the form of Exhibit B and the Company, the Purchaser and certain stockholders of the Company have entered into the Stockholders Agreement in the form of Exhibit C hereto and the Lock-Up Waivers Agreement in the form of Exhibit D ; and

WHEREAS, concurrently with the execution and delivery of this Agreement, in connection with the transactions contemplated herein, and as a condition to the willingness of Purchaser to enter into this Agreement, the Company and North Island Holdings I, LP have entered into the North Island Investment Agreement in the form of Exhibit E .

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein, the parties agree as follows:

ARTICLE I

PURCHASE; CLOSING

1.1           Purchase .  On the terms and subject to the conditions herein, on the Closing Date, the Company agrees to sell and issue to the Purchaser, and the Purchaser agrees to purchase from the Company 8,012,821 shares of Class A Common Stock, free and clear of any Liens (other than restrictions arising under applicable securities Laws), at a purchase price of $15.60 per share of Class A Common Stock.

 


 

 

1.2           Closing .

(a)           Subject to the satisfaction or waiver of the conditions set forth in this Agreement, the closing of the purchase and sale by the Purchaser of the Class A Common Stock referred to in Section 1.1 pursuant to this Agreement (the “ Closing ”) shall be held at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52 nd Street, New York, New York 10019, at 10:00 a.m. New York time on the date the Merger becomes effective, but subject to (x) the satisfaction or waiver of the conditions set forth in Section 1.3 and (y) the delivery of at least five (5) business days advance notice thereof to the Purchaser (the “ Closing Date ”).

(b)         Subject to the satisfaction or waiver on or prior to the Closing Date of the applicable conditions to the Closing in Section 1.3, at the Closing:

(1)           the Company will deliver to the Purchaser (i) certificates or, if requested by Purchaser, transfer agent account statements confirming book-entry issuances, representing the Class A Common Stock being purchased and (ii) all other documents, instruments and writings required to be delivered by the Company to the Purchaser pursuant to this Agreement or otherwise required in connection herewith; and

(2)           the Purchaser will deliver or cause to be delivered (i) to a bank account designated by the Company in writing at least two (2) business days prior to the Closing Date, the Purchase Price by wire transfer of immediately available funds and (ii) all other documents, instruments and writings required to be delivered by the Purchaser to the Company pursuant to this Agreement or otherwise required in connection herewith.

1.3           Closing Conditions .

(a)           The obligation of the Purchaser, on the one hand, and the Company, on the other hand, to effect the Closing is subject to the satisfaction or written waiver by the Purchaser and the Company prior to the Closing of the following conditions:

(1)           no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by any Governmental Entity, and no Law shall be in effect restraining, enjoining, making illegal or otherwise prohibiting the consummation of the transactions contemplated by this Agreement; provided, however, that the party claiming such failure of condition shall have used its reasonable best efforts to prevent the entry of any such injunction or order and to appeal as promptly as possible any injunction or other order that may be entered;

(2)           the Merger, the Other Equity Financing and the Debt Financing shall have been consummated or shall be consummated substantially simultaneously with the Closing on, in the case of the Merger, the terms and conditions contemplated by the Merger Agreement (subject to any amendments, supplements, waivers or other modifications permitted by Section 3.9); provided, however, that the Purchaser shall not be entitled to rely on the failure of the condition set forth in this clause (2) for any purpose under this Agreement to the extent that all other conditions set forth herein have been satisfied and the failure of the condition set forth in this clause (2) is proximately caused by the failure of the Purchaser to deliver the Purchase Price hereunder; and

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(3)           all applicable waiting periods (and any extension thereof) prescribed by the HSR Act shall have expired or shall have been terminated, and any applicable waiting periods (or extensions thereof) or approvals under any foreign antitrust, competition, financial regulatory, foreign investment or similar laws (i) necessary for the consummation of the transactions contemplated by this Agreement or (ii) required to be obtained pursuant to Section 8.1(b) of the Merger Agreement shall have expired, been terminated, been obtained, or made, as applicable.

(b)           The obligation of the Purchaser to effect the Closing is also subject to the satisfaction or written waiver by the Purchaser at or prior to the Closing of the following conditions:

(1)           (i) the representations and warranties of the Company set forth in this Agreement (other than Sections 2.1(a), 2.1(b), 2.1(c)(1), 2.1(d), 2.1(e) and 2.1(h)) shall be true and correct (disregarding all qualifications or limitations as to materiality or Company Material Adverse Effect) as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except to the extent that such representation or warranty speaks to an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect, and (ii) the representations and warranties of the Company set forth in Sections 2.1(a), 2.1(b), 2.1(c)(1), 2.1(d), 2.1(e) and 2.1(h) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except to the extent that such representation or warranty speaks to an earlier date, in which case as of such earlier date);

(2)           the Company shall have performed in all material respects all obligations required to be performed by it pursuant to this Agreement prior to the Closing;

(3)           the Purchaser shall have received a certificate signed on behalf of the Company by a duly authorized person certifying to the effect that the conditions set forth in Section 1.3(a)(2), 1.3(b)(1), 1.3(b)(2), 1.3(b)(4) and 1.3(b)(5) have been satisfied;

(4)           there shall not have occurred any Company Material Adverse Effect;

(5)           the Class A Common Stock issued pursuant to this Agreement shall have been approved for listing on the Nasdaq Global Select Market, subject to official notice of issuance;

(6)           subject to Section 1.3(d), substantially contemporaneous with the Closing, the Company shall have reimbursed the reasonable out-of-pocket costs and expenses of the Purchaser incurred in connection with the transaction contemplated by this Agreement, including fees and expenses of the Purchaser’s counsel, accountants, consultants and other advisors; provided that the aggregate of all such costs and expenses reimbursable by the Company shall not exceed $1,250,000; and

(7)           The Company shall have delivered a Secretary’s Certificate attaching copies of the Company’s certificate of incorporation and bylaws.

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(c)           The obligation of the Company to effect the Closing is also subject to the satisfaction or written waiver by the Company prior to the Closing of the following conditions:

(1)           the representations and warranties of the Purchaser set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except to the extent that such representation or warranty speaks of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, prevent or materially delay the consummation of the transactions contemplated by this Agreement or the ability of the Purchaser to fully perform its covenants and obligations under this Agreement;

(2)           the Purchaser shall have performed in all material respects all obligations required to be performed by it pursuant to this Agreement prior to the Closing; and

(3)           the Company shall have received a certificate signed on behalf of the Purchaser by an authorized signatory certifying to the effect that the condition set forth in Section 1.3(c)(1) and (2) has been satisfied.

(d)           The Purchaser will offset amounts for which it is entitled to at the Closing pursuant to Section 6.1 against the Purchase Price to be paid at the Closing.

ARTICLE II

REPRESENTATIONS AND WARRANTIES

2.1           Representations and Warranties of the Company .  Except as set forth (x) in the SEC Documents filed by the Company with the SEC, and publicly available, after December 31, 2015 and before the date of this Agreement, excluding any disclosures set forth in risk factors or any “forward looking statements” within the meaning of the Securities Act or the Securities Exchange Act of 1934, as amended, (the “ Exchange Act ”) or (y) in a correspondingly identified schedule attached hereto provided, that (a) the mere inclusion of an item in a correspondingly identified schedule as an exception to a representation or warranty shall not be deemed an admission by the Company that such item represents a material exception or fact, event or circumstance or that such item is reasonably likely to result in a Company Material Adverse Effect and (b) any item on one or more correspondingly identified schedules shall be deemed disclosed with respect to other sections of this Agreement and all other sections or subsections of the correspondingly identified schedules to the extent the relevance of such disclosure is reasonably apparent on its face notwithstanding the absence of a specific cross reference, the Company represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date (except to the extent made only as of a specified date in which case as of such date), that: 

(a)           Organization and Authority .

(1)           The Company is a corporation duly organized and validly existing under the laws of the State of Delaware, has all requisite corporate power and authority to own its properties and conduct its business as presently conducted, is duly qualified to do

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business and is in good standing in all jurisdictions where its ownership or leasing of property or the conduct of its business requires it to be so qualified and where failure to be so qualified would, individually or in the aggregate, reasonably be expected to have Company Material Adverse Effect.  True and accurate copies of the Certificate of Incorporation and Bylaws, each as in effect as of the date of this Agreement, have been made available to the Purchaser prior to the date hereof.

(2)           Each material Company Subsidiary is duly organized and validly existing under the laws of its jurisdiction of organization, has all requisite corporate or other applicable entity power and authority to own its properties and conduct its business as presently conducted, is duly qualified to do business and is in good standing in all jurisdictions where its ownership or leasing of property or the conduct of its business requires it to be so qualified and where failure to be so qualified would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.  As used herein, “ Subsidiary ” means, with respect to any person, any corporation, partnership, joint venture, limited liability company or other entity (x) of which such person or a subsidiary of such person is a general partner or (y) of which a majority of the voting securities or other voting interests, or a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or persons performing similar functions with respect to such entity, is directly or indirectly owned by such person and/or one or more subsidiaries thereof; and “ Company Subsidiary ” means any Subsidiary of the Company. Except for the capital stock of, or other equity or voting interests in, those Subsidiaries set forth in the SEC Documents, the Company does not own, directly or indirectly, any capital stock of, or other equity or voting interests in, any person other than securities held in the ordinary course of the Company’s trading business.

(b)           Capitalization .

(1)           The authorized capital stock of the Company consists of (A) 1,440,000,000 shares of common stock, divided into (I) 1,000,000,000 shares of Class A Common Stock, par value $0.00001 per share, (II) 175,000,000 shares of Class B Common Stock, par value $0.00001 per share (“ Class B Common Stock ”), (III) 90,000,000 shares of Class C Common Stock, par value $0.00001 per share (“ Class C Common Stock ”), and (IV) 175,000,000 shares of Class D Common Stock, par value $0.00001 per share (“ Class D Common Stock ” and, together with the Class A Common Stock, the Class B Common Stock and the Class C Common Stock, the “ Common Stock ”), and (B) 50,000,000 shares of Preferred Stock, par value $0.00001 per share (the “ Preferred Stock ”).  As of the close of business on April 19, 2017 (the “ Capitalization Date ”), there were 40,667,276 shares of Class A Common Stock outstanding, zero shares of Class B Common Stock outstanding, 19,081,435 shares of Class C Common Stock outstanding, 79,610,490 shares of Class D Common Stock outstanding and zero shares of Preferred Stock outstanding.  As of the close of business on the Capitalization Date, (i) 10,923,319 shares of Class A Common Stock, zero shares of Class B Common Stock, zero shares of Class C Common Stock and zero shares of Class D Common Stock were reserved for issuance upon the exercise or payment of (A) stock options outstanding on such date (“ Company Stock Options ”) or (B) stock units (including restricted stock and

-5-


 

 

restricted stock units) or other equity-based incentive awards granted pursuant to any plans, agreements or arrangements of the Company and outstanding on such date (collectively, the “ Company Stock Awards ”) and (ii) 453,066 shares of Class A Common Stock, zero shares of Class B Common Stock, zero shares of Class C Common Stock and zero shares of Class D Common Stock were held by the Company in its treasury.  All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.  From the Capitalization Date through and as of the date of this Agreement, no other shares of Common Stock or Preferred Stock have been issued other than shares of Common Stock issued in respect of the exercise of Company Stock Options or Company Stock Awards in the ordinary course of business.  The Company does not have outstanding shareholder purchase rights or “poison pill” or any similar arrangement in effect.

(2)           No bonds, debentures, notes or other indebtedness having the right to vote (or convertible into or exchangeable for, securities having the right to vote) on any matters on which the stockholders of the Company may vote (“ Voting Debt ”) are issued and outstanding.  Except (i) pursuant to any cashless exercise provisions of any Company Stock Options or pursuant to the surrender of shares to the Company or the withholding of shares by the Company to cover tax withholding obligations under Company Stock Options or Company Stock Awards, (ii) as set forth in Section 2.1(b)(1), (iii) Exchange Rights and (iv) the Other Equity Financing, the Company does not have and is not bound by any outstanding options, preemptive rights, rights of first offer, warrants, calls, commitments or other rights or agreements calling for the purchase or issuance of, or securities or rights convertible into, or exchangeable for, any shares of Common Stock or any other equity securities of the Company or Voting Debt or any securities representing the right to purchase or otherwise receive any shares of capital stock of the Company (including any rights plan or agreement) (collectively, “ Company Securities ”), or any obligations of the Company or any Company Subsidiary to make any payments based on the price or value of any Company Securities.  None of the Company or any Company Subsidiary is a party to any stockholders’ agreement, voting trust agreement or other similar agreement or understanding, except for the Stockholders Agreement and the limited liability company agreement of Virtu Financial LLC, relating to any Company Securities or any other agreement relating to the disposition, voting or dividends with respect to any Company Securities.

(c)           Authorization .

(1)           The Company has the corporate power and authority to enter into this Agreement and the other Transaction Documents and to carry out its obligations hereunder and thereunder.  The execution, delivery and performance of this Agreement and the other Transaction Documents by the Company and the consummation of the transactions contemplated hereby and thereby have been duly authorized by the board of directors of the Company (the “ Board of Directors ”).  This Agreement has been, and (as of the Closing) the other Transaction Documents will be, duly and validly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Purchaser, is, and (as of the Closing) each of the other Transaction Documents will be, a valid and binding obligation of the Company enforceable against the Company in

-6-


 

 

accordance with its terms (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles).  No other corporate proceedings are necessary for the execution and delivery by the Company of this Agreement or the other Transaction Documents, the performance by it of its obligations hereunder or thereunder or the consummation by it of the transactions contemplated hereby or thereby.

(2)           Neither the execution and delivery by the Company of this Agreement or the other Transaction Documents, nor the consummation of the transactions contemplated hereby or thereby, nor compliance by the Company with any of the provisions hereof or thereof, will (A) violate, conflict with, result in a breach of any provision of, require notice, consent or approval pursuant to, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration of, or result in the creation of any Lien upon any of the material properties or assets of the Company or any Company Subsidiary under any of the terms, conditions or provisions of (i) the certificate of incorporation of the Company (as amended or modified from time to time prior to the date hereof, the “ Certificate of Incorporation ”) or bylaws of the Company (as amended or modified from time to time prior to the date hereof, the “ Bylaws ”) or the certificate of incorporation, charter, bylaws or other governing instrument of any Company Subsidiary or (ii) any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which the Company or any Company Subsidiary is a party or by which it may be bound, or to which the Company or any Company Subsidiary or any of the properties or assets of the Company or any Company Subsidiary may be subject, or (B) violate any law, statute, ordinance, rule, regulation, permit, franchise or any judgment, ruling, order, writ, injunction or decree applicable to the Company or any Company Subsidiary or any of their respective properties or assets, except in the case of clauses (A)(ii) and (B) for such violations, conflicts and breaches as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

(3)           Assuming the accuracy of the representations and warranties set forth in Section 2.2(b)(3), other than the securities or blue sky laws of the various states and approval or expiration of applicable waiting periods under the HSR Act or any foreign antitrust, competition, or similar laws, and the distribution of an information statement pursuant to, and expiration of the applicable waiting period under, Rule 14c-2 of the Exchange Act, no notice to, registration, declaration or filing with, exemption or review by, or authorization, order, consent or approval of any Governmental Entity, nor expiration or termination of any statutory waiting period, is necessary for the consummation by the Company of the transactions contemplated by this Agreement or the other Transaction Documents.

(d)           Sale of Securities .  Based in part on the Purchaser’s representations in Section 2.2, the offer and sale of the shares of Class A Common Stock under this Agreement is exempt from the registration and prospectus delivery requirements of the Securities Act and the rules and

-7-


 

 

regulations promulgated thereunder.  Without limiting the foregoing, neither the Company nor, to the Knowledge of the Company, any other person authorized by the Company to act on its behalf, has engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offer or sales of the Class A Common Stock and neither the Company nor, to the Knowledge of the Company, any person acting on its behalf has made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the offering or issuance of Class A Common Stock under this Agreement to be integrated with prior offerings by the Company for purposes of the Securities Act that would result in none of Regulation D or any other applicable exemption from registration under the Securities Act to be available, nor will the Company take any action or steps that would cause the offering or issuance of the Class A Common Stock under this Agreement to be integrated with other offerings.

(e)           Status of Securities .  The shares of Class A Common Stock to be issued pursuant to this Agreement have been duly authorized by all necessary corporate action.  When issued and sold against receipt of the consideration therefor as provided in this Agreement, such securities will be validly issued, fully paid and nonassessable, will not be subject to preemptive rights of any other stockholder of the Company, and will effectively vest in the Purchaser good title to all such securities, free and clear of all Liens (other than restrictions arising under applicable securities Laws), except restrictions imposed by the Securities Act and any applicable state or foreign securities laws.  The rights, preferences, privileges, and restrictions of the Class A Common Stock are as stated in the Certificate of Incorporation.

(f)           SEC Documents; Financial Statements .

(1)           The Company has filed, on a timely basis, all required reports, proxy statements, forms, and other documents with the Securities and Exchange Commission (the “ SEC ”) since December 31, 2013 (collectively, the “ SEC Documents ”).  Each of the SEC Documents, as of its respective date complied in all material respects with the requirements of the Securities Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such SEC Documents, and, except to the extent that information contained in any SEC Document has been revised or superseded by a later filed SEC Document filed and publicly available prior to the date of this Agreement, none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

(2)           The Company (i) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) that are reasonably designed to ensure that material information relating to the Company, including its consolidated Subsidiaries, is made known to the individuals responsible for the preparation of the Company’s filings with the SEC and (ii) has disclosed, based on its most recent evaluation prior to the date of this Agreement, to the Company’s outside auditors and the Board of Director’s audit committee (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably

-8-


 

 

likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.  As of the date of this Agreement, to the Knowledge of the Company, there is no reason that its outside auditors and its chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, without qualification, when next due.

(3)           There is no transaction, arrangement or other relationship between the Company and/or any of its Subsidiaries and an unconsolidated or other off-balance sheet entity that is required to be disclosed by the Company in its SEC Documents and is not so disclosed.

(4)           The financial statements of the Company and its consolidated Subsidiaries included in the SEC Documents (a) complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, in each case as of the date such SEC Document was filed, and (b) have been prepared in accordance with generally accepted accounting principles in the United States (“ GAAP ”) applied on a consistent basis during the periods involved (except as may be indicated in such financial statements or the notes thereto) and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows of the Company and its consolidated subsidiaries for the periods then ended (subject, in the case of unaudited statements, to the absence of footnote disclosures and normal audit adjustments).

(g)           Undisclosed Liabilities .  Except for (i) those liabilities that are reflected or reserved for in the consolidated financial statements of the Company included in its Annual Report on Form 10-K for the fiscal year ended December 31, 2016, (ii) liabilities incurred since December 31, 2016 in the ordinary course of business consistent with past practice, (iii) liabilities incurred pursuant to the transactions contemplated by this Agreement, the Registration Rights Agreement or the Merger Agreement, (iv) liabilities incurred pursuant to the terms of the Other Equity Financing, (v) liabilities incurred pursuant to the terms of the Debt Financing and (vi) liabilities that would not, individually and in the aggregate, reasonably be expected to have a Company Material Adverse Effect the Company and its Subsidiaries do not have any liabilities or obligations of any nature whatsoever (whether accrued, absolute, contingent or otherwise).

(h)           Brokers and Finders .  Neither the Company nor its Subsidiaries or any of their respective officers, directors, employees or agents has employed any broker or finder or incurred any liability for any financial advisory fees, brokerage fees, commissions or finder’s fees, and no broker or finder has acted directly or indirectly for the Company in connection with this Agreement or the issuance of shares of Class A Common Stock pursuant to this Agreement.

(i)           Litigation .  There is no action, suit, proceeding or investigation pending or, to the Knowledge of the Company, threatened (including “cease and desist” letters or invitations to

-9-


 

 

take patent license) against, nor any outstanding judgment, order, writ or decree against, the Company or any of its Subsidiaries or any of their respective assets before or by any Governmental Entity which individually or in the aggregate have, or would reasonably be expected to have, a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is subject to any judgment, order or decree of any Governmental Entity.

(j)           Taxes .

(1)           Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, each of the Company and its Subsidiaries has timely filed all U.S. federal and state income, and all other material, Tax Returns required to have been filed, such Tax Returns were accurate in all material respects, and all Taxes due and payable by the Company have been timely paid, except for (i) those for which extensions have been obtained and (ii) those which are being contested in good faith and by appropriate proceedings and in respect of which adequate reserves with respect thereto are maintained in accordance with GAAP.

(2)           Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no material deficiencies, litigation, audit, proposed adjustments or matters in controversy exist or have been asserted with respect to Taxes of the Company or any of its Subsidiaries.  No examination or audit of any Tax Return relating to any Taxes of the Company or any of its Subsidiaries or with respect to any Taxes due from or with respect to the Company or any of its Subsidiaries by any taxing authority is currently in progress or, to the Knowledge of the Company, threatened in writing, except for such examinations and audits as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

(3)           Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) no claim has been made by any Governmental Entity in a jurisdiction where the Company and any of its Subsidiaries does not file Tax Returns that the Company or any of its Subsidiaries is or may be subject to material Tax by that jurisdiction, and (ii) there are no Liens with respect to Taxes upon any of the assets of the Company or any of its Subsidiaries.

(4)           Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (x) each of the Company and its Subsidiaries have paid in full, or made adequate provision on the audited consolidated statement of financial condition of the Company and its Subsidiaries as of December 31, 2016 for the year then ended (the “ Company Balance Sheet ”) (in each case, in accordance with U.S. GAAP) for, all Taxes with respect to periods ending on or before the date of the Company Balance Sheet, except, in each case, with respect to Taxes contested in good faith; and (y) each of the Company and its Subsidiaries have paid in full or made adequate provision on their books and records for all Taxes with respect to periods on or ending after the date of the Company Balance Sheet and prior to the Closing Date.

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(5)           Neither the Company nor any of its Subsidiaries has (I) engaged in, or has any material liability or material obligation with respect to, any “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4 or (II) taken any reporting position on a Tax Return, which reporting position (x) if not sustained would be reasonably likely, absent disclosure, to give rise to a penalty for substantial understatement of federal income Tax under Section 6662 of the Code (or any similar provision of state, local, or non-U.S. Tax law), and (y) has not adequately been disclosed on such Tax Return in accordance with Section 6662(d)(2)(B) of the Code (or any similar provision of state, local, or non-U.S. Tax law).

(k)           Permits and Licenses .  The Company and its Subsidiaries possess all licenses, certificates, authorizations and permits issued by each Governmental Entity necessary to conduct their respective businesses, except where the failure to possess such licenses, certificates, authorizations and permits would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.

(l)           Environmental Matters .  The Company and its Subsidiaries are in compliance with all, and for the past five (5) years have not violated any, applicable Environmental Laws except where failure to be in such compliance would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.  Neither the Company nor any of its Subsidiaries has released Materials of Environmental Concern in a manner that would reasonably be expected to result in liability to any of them or that would reasonably be expected to adversely affect any of their operations and, to the Knowledge of the Company, Materials of Environmental Concern are not present at, under, in or affecting any Property currently or formerly owned, leased or used by the Company or any of its Subsidiaries, or at any location to which Materials of Environmental Concern have been sent for re-use or recycling or for treatment, storage or disposal, that would reasonably be expected to give rise to liability of or adversely affect the operations of the Company or any of its Subsidiaries, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

(m)           Title .  Each of the Company and its Subsidiaries has good and marketable title to its Property that is owned real property, has, to the Knowledge of the Company, valid leases to its Property that is leased real property, and good and valid title to all of its other Property (other than negligible assets not material to the operations of the Company or any of its Subsidiaries), except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

(n)           Intellectual Property .  Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect (i) the Company or its Subsidiaries exclusively own, free and clear of all Liens (other than licenses of Intellectual Property and any restriction or covenant associated with any license of Intellectual Property), all (a) Intellectual Property registrations and applications filed in their names that have not expired or been abandoned, which such registrations are subsisting and unexpired, and to the Knowledge of the Company, valid and enforceable and (b) of the other Intellectual Property used in the conduct of the businesses of the Company or its Subsidiaries that is not used pursuant to a license; provided, however, the foregoing representation in Section 2.1(n)(i) is subject to the

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Knowledge of the Company with respect to patents and other Intellectual Property owned by third parties under which a license may be needed to practice any such Intellectual Property; (ii) to the Knowledge of the Company:  the conduct of the businesses of Company and its Subsidiaries does not materially infringe the Intellectual Property of any third party, and no person is materially infringing any Intellectual Property owned by the Company or its Subsidiaries; (iii) the Company and its Subsidiaries take reasonable actions to protect the material trade secrets and confidential information owned by the Company or its Subsidiaries and the security and operation of their material software, websites and systems (and the data therein), and (iv) to the Knowledge of the Company there have been no material breaches or outages of the same.

(o)           Employee Benefits/Labor .

(1)           Except as would not reasonably be expected, individually or in the aggregate, to result in a Company Material Adverse Effect, (A) each Plan complies with, and has been operated and administered in compliance with, its terms and all applicable Laws (including, without limitation ERISA and the United States Internal Revenue Code of 1986, as amended (the “ Code ”)), (B) the Company and each of its Subsidiaries have filed all reports, returns, notices, and other documentation required by ERISA, the Code or other applicable Law to be filed with any Governmental Entity with respect to each Plan, (C) with respect to any Plan, no actions, Liens, lawsuits, claims or complaints (other than routine claims for benefits, appeals of such claims and domestic relations order proceedings) are pending or, to the Knowledge of the Company, threatened, and no facts or circumstances exist that would reasonably be expected to give rise to any such actions, Liens, lawsuits, claims or complaints, and (D) no event has occurred with respect to a Plan which would reasonably be expected to result in a liability of the Company or any of its Subsidiaries to any Governmental Entity.  Neither the Company, its Subsidiaries, nor any other entity which, together with the Company or its Subsidiaries, would be treated as a single employer under Section 4001 of ERISA or Section 414 of the Code, has at any time during the last six (6) years maintained, sponsored or contributed to any employee benefit plan that is subject to Title IV of ERISA, including, without limitation, any “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA).

(2)           Except as would not reasonably be expected, individually or in the aggregate, to result in a Company Material Adverse Effect, none of the execution of, or the completion of the transactions contemplated by, this Agreement (whether alone or in connection with any other event(s)), could result in (A) severance pay or an increase in severance pay upon termination after Closing to any current or former employee of the Company or its Subsidiaries, (B) any payment, compensation or benefit becoming due, or increase in the amount of any payment, compensation or benefit due, to any current or former employee of the Company or its Subsidiaries, (C) acceleration of the time of payment or vesting or result in funding of compensation or benefits to any current or former employee of the Company or its Subsidiaries, (D) any new material obligation under any Plan, (E) any limitation or restriction on the right of Company to merge, amend, or terminate any Plan, or (F) any payments which would not be deductible under Section 280G of the Code or subject to Tax under Section 4999 of the Code (in each case, without giving effect to any of the transactions contemplated by the Merger Agreement).

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No Plan provides for reimbursement or gross-up of any excise tax under Section 409A or Section 4999 of the Code.

(3)           Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, as of the date of this Agreement:  (A) the Company and each of its Subsidiaries is not a party to any collective bargaining agreement or other contract or agreement with any labor organization or other representative of any of the employees of the Company or any Subsidiary, nor is any such contract or agreement presently being negotiated; (B) to the Knowledge of the Company, no campaigns are being conducted to solicit cards from any of the employees of the Company or any of its Subsidiaries to authorize representation by any labor organization, and no such campaigns have been conducted within the past three years; (C) no labor strike, slowdown, work stoppage, dispute, lockout or other labor controversy is in effect or, to the Knowledge of the Company, threatened in writing, and neither the Company nor any of its Subsidiaries has experienced any such labor controversy within the past three years; (D) no unfair labor practice charge or complaint is pending or, to the Knowledge of the Company, threatened in writing with respect to any employment practices of the Company or any of its Subsidiaries; (E) no action, complaint, charge, inquiry, proceeding or investigation by or on behalf of any current or former employee, labor organization or other representative of the employees of the Company or any of its Subsidiaries (including persons employed jointly by such entities with any other staffing or other similar entity) is pending or, to the Knowledge of the Company, threatened in writing; (F) the Company and each of its Subsidiaries are in compliance with all applicable laws, agreements, contracts, policies, plans and programs relating to employment, employment practices, compensation, benefits, hours, terms and conditions of employment, and the termination of employment, including any obligations pursuant to the Worker Adjustment and Retraining Notification Act of 1988, as amended, the classification of employees as exempt or non-exempt from overtime pay requirements, the provision of meal and rest breaks and pay for all working time, and the proper classification of individuals as non-employee contractors or consultants; and (G) the Company and each of its Subsidiaries is in compliance with all applicable Law relating to child labor, forced labor and involuntary servitude.

(p)           Indebtedness .  Neither the Company nor any of its Subsidiaries is, immediately prior to the execution and delivery of this Agreement, or will be, at the time of the Closing after giving effect thereto, in default in the payment of any material indebtedness or in default under any agreement relating to its material indebtedness.

(q)           Registration Rights .  Except as provided in the Registration Rights Agreement, the Company has not granted or agreed to grant, and is not under any obligation to provide, any rights to register under the Securities Act any of its presently outstanding securities or any of its securities that may be issued subsequently.

(r)           Compliance with Laws .  

(1)           Neither the Company nor any of its Subsidiaries is, or since December 31, 2013 has been, in violation of any applicable Law, except where such violation would not, individually or in the aggregate, reasonably be expected to have a Company Material

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Adverse Effect.  The Company has not received notice from any Governmental Entity inquiring about or asserting any violation of any applicable Law, or received notice from any Governmental Entity that it is or has been subject to any adverse inspection, examination, finding of deficiency, finding of noncompliance, penalty, fine, sanction, assessment, audit, request for corrective or remedial action, or other supervisory, compliance or enforcement action by any Governmental Entity and, to the Knowledge of the Company as of the date of this Agreement, neither the Company nor any of its Subsidiaries is being investigated with respect to any applicable Law, except for such of the foregoing as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

(2)           Each Subsidiary of the Company that is a U.S. broker dealer is duly registered under the Exchange Act as a broker dealer with the SEC, and is in compliance with the applicable provisions of the Exchange Act, including the net capital requirements and customer protection requirements thereof, except as would not be expected to be material to the Company or its Subsidiaries, taken as a whole.

(3)           None of the Company, any Subsidiary nor any of their respective employees, associated persons and/or related persons or officers engaged in or responsible for the business of the Company or its Subsidiaries, is or has been since December 31, 2013 adjudged or, to the Knowledge of the Company, is under current investigation or proceeding, whether preliminary or otherwise, for “statutory disqualification” as defined in Section 3(a)(39) of the Exchange Act or is subject to any of the events set forth in Rule 1014(a)(3)(A) and (C) through (E) of the former National Association of Securities Dealers, Inc., and none of such officers, associated persons or employees and/or related persons is subject to heightened supervision under the rules, regulations, ordinances or by-laws of any Governmental Entity.

(s)           Absence of Changes .  Since December 31, 2016, there has not been any action or omission of the Company or any of its Subsidiaries that, if such action or omission occurred between the date of this Agreement and the Closing Date, would violate Sections 3.7(a), 3.7(b), 3.7(c), 3.7(d) or 3.7(e).

(t)           Illegal Payments; FCPA Violations .  None of the Company, any of its Subsidiaries, nor, to the Knowledge of the Company, any director, officer, agent or employee of the Company or any of its Subsidiaries has, except as would not, individually or in the aggregate, reasonably be expected to result in material liability, fine or judgment to the Company and its Subsidiaries, determined on a consolidated basis: (i) paid, caused to be paid, agreed to pay, or offered, directly or indirectly, in connection with the business of the Company, any payment or gift given to any person acting in an official capacity for any Governmental Entity, to any political party or official thereof, or to any candidate for political office (each, a “ Government Official ”) with the purpose of (w) influencing any act or decision of such Government Official in his official capacity; (x) inducing such Government Official to perform or omit to perform any activity related to his legal duties; (y) securing any improper advantage; or (z) inducing such Government Official to influence or affect any act or decision of any Governmental Entity, in each case, in order to assist the Company or its Affiliates in obtaining or retaining business for or with, or in directing business to, the Company or its Affiliates; (ii) made any illegal contribution

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to any political party or candidate; or (iii) intentionally established or maintained any unrecorded fund or asset or made any false entries on any books or records for any purpose.  Without limiting any of the foregoing, neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any director, officer, agent or employee of the Company or any of its Subsidiaries has taken any action that would violate the U.S. Foreign Corrupt Practices Act, except for such violations that would not, individually or in the aggregate, be material to the Company.  Further, neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any director, officer, agent or employee of the Company or any of its Subsidiaries has taken any action that would violate the UK Bribery Act 2010 or any other applicable anti-bribery law, nor has paid, caused to be paid, agreed to pay, or offered, directly or indirectly, in connection with the business of the Company, any bribe, kickback, other similar illegal payment or gift, to any supplier or customer, except, in each case, for such violations as would not, individually or in the aggregate, have a Company Material Adverse Effect.

(u)           Economic Sanctions .  Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, the Company is not in contravention of and has not engaged in any conduct sanctionable under U.S. economic sanctions laws, including laws administered and enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, 31 C.F.R. Part V, the Iran Sanctions Act, the Comprehensive Iran Sanctions, Accountability and Divestment Act, the Iran Threat Reduction and Syria Human Rights Act, the Iran Freedom and Counter-Proliferation Act of 2012, and any executive order issued pursuant to any of the foregoing.

(v)           Listing and Maintenance Requirements .  The Class A Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to, or which to the Knowledge of the Company is reasonably likely to, have the effect of, terminating the registration of the Class A Common Stock under the Exchange Act nor has the Company received as of the date of this Agreement any notification that the SEC is contemplating terminating such registration.

(w)           No Additional Representations .  Except for the representations and warranties made by the Purchaser in Section 2.2, the Company hereby acknowledges that neither the Purchaser nor any other person makes any express or implied representation or warranty with respect to the Purchaser or any of its Affiliates and the Purchaser disclaims any such other representations or warranties.  Notwithstanding anything to the contrary herein, nothing in this Agreement shall limit the right of the Purchaser and its Affiliates to rely on the representations, warranties, covenants and agreements expressly set forth in this Agreement or in any certificate delivered pursuant hereto, nor will anything in this Agreement operate to limit any claim by the Purchaser or any of its Affiliates for intentional fraud with respect to the representations and warranties set forth herein.  The Company, on behalf of itself and on behalf of its Affiliates, expressly waives any such claim relating to the foregoing matters, except with respect to intentional fraud with respect to the representations and warranties set forth herein. 

2.2           Representations and Warranties of the Purchaser .  The Purchaser hereby represents and warrants to the Company, as of the date hereof and as of the Closing Date (except to the extent made only as of a specified date in which case as of such date), that:

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(a)           Organization and Authority .  The Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, is duly qualified to do business and is in good standing in all jurisdictions where its ownership or leasing of property or the conduct of its business requires it to be so qualified and where failure to be so qualified would reasonably be expected to materially and adversely affect the Purchaser’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis, and the Purchaser has the corporate or other power and authority and governmental authorizations to own its properties and assets and to carry on its business as it is now being conducted.

(b)           Authorization .

(1)           The Purchaser has the corporate or other power and authority to enter into this Agreement and to carry out its obligations hereunder.  The execution, delivery and performance of this Agreement by the Purchaser and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of the Purchaser, and no further approval or authorization by any of its stockholders, partners, members or other equity owners, as the case may be, is required.  This Agreement has been duly and validly executed and delivered by the Purchaser and assuming due authorization, execution and delivery by the Company, is a valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles).

(2)           Neither the execution, delivery and performance by the Purchaser of this Agreement, nor the consummation of the transactions contemplated hereby, nor compliance by the Purchaser with any of the provisions hereof, will (A) violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration of, or result in the creation of any Lien upon any of the properties or assets of the Purchaser under any of the terms, conditions or provisions of (i) its governing instruments or (ii) any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which the Purchaser is a party or by which it may be bound, or to which the Purchaser or any of the properties or assets of the Purchaser may be subject, or (B) subject to compliance with the statutes and regulations referred to in the next paragraph, violate any law, statute, ordinance, rule or regulation, permit, concession, grant, franchise or any judgment, ruling, order, writ, injunction or decree applicable to the Purchaser or any of their respective properties or assets except in the case of clauses (A)(ii) and (B) for such violations, conflicts and breaches as would not reasonably be expected to materially and adversely affect the Purchaser’s ability to perform its respective obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis.

(3)           Other than the securities or blue sky laws of the various states, approval or expiration of applicable waiting periods under the HSR Act no notice to, registration,

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declaration or filing with, exemption or review by, or authorization, order, consent or approval, nor expiration or termination of any statutory waiting period, of any U.S. federal, state or local Governmental Entity is necessary for the consummation by the Purchaser of the transactions contemplated by this Agreement.  To the best of Purchaser’s actual knowledge as of the date hereof, except as set forth on Schedule 2.2(b) , no notice to, registration, declaration or filing with, exemption or review by, or authorization, order, consent or approval, nor expiration or termination of any statutory waiting period, of any Governmental Entity (other than any U.S. federal, state or local Governmental Entity) is necessary for the consummation by the Purchaser of the transactions contemplated by this Agreement.

(c)           Purchase for Investment .  The Purchaser acknowledges that the Class A Common Stock to be issued pursuant to this Agreement have not been registered under the Securities Act or under any state securities laws.  The Purchaser (1) acknowledges that it is acquiring the Class A Common Stock to be issued pursuant to this Agreement pursuant to an exemption from registration under the Securities Act solely for investment with no present intention to distribute any of the Class A Common Stock to be issued pursuant to this Agreement to any person in violation of applicable securities laws, (2) will not sell or otherwise dispose of any of the Class A Common Stock to be issued pursuant to this Agreement, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other applicable securities laws, (3) has such knowledge and experience in financial and business matters and in investments of this type that it is capable of evaluating the merits and risks of its investment in the Class A Common Stock and of making an informed investment decision, (4) is an “accredited investor” (as that term is defined by Rule 501 of the Securities Act), and (5) (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the Class A Common Stock, (B) has had an opportunity to discuss with management of the Company the intended business and financial affairs of the Company and to obtain information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access and (C) can bear the economic risk of (x) an investment in the Class A Common Stock indefinitely and (y) a total loss in respect of such investment.  The Purchaser has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the Class A Common Stock and to protect its own interest in connection with such investment.

(d)           Financial Capability .  The Purchaser currently has, and at the Closing will have available funds necessary to, consummate the Closing on the terms and conditions contemplated by this Agreement.  The Purchaser is not aware of any reason why the funds sufficient to fulfill its obligations under Article I will not be available on the Closing Date. In no event shall the receipt or availability of funds, capital or capacity be a condition to the Purchaser’s obligations under this Agreement.

(e)           Brokers and Finders .  Neither the Purchaser nor its Affiliates or any of their respective officers, directors, employees or agents has employed any broker or finder for which the Company will incur any liability for any financial advisory fees, brokerage fees, commissions or finder’s fees.

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(f)           No Additional Company Representations . Except for the representations and warranties made by the Company in Section 2.1, the Purchaser hereby acknowledges that neither the Company nor any other person makes any express or implied representation or warranty with respect to the Company or its Subsidiaries or their respective businesses, operations, assets, liabilities, employees, employee benefit plans, conditions or prospects, and the Company disclaims any such other representations or warranties.  In particular, without limiting the foregoing disclaimer, the Purchaser hereby acknowledges that neither the Company nor any other person makes or has made any representation or warranty to the Purchaser, or any of its Affiliates or representatives, with respect to (i) any financial projection, forecast, estimate, budget or prospect information relating to the Company or any of its Subsidiaries or their respective business, or (ii) except for the representations and warranties made by the Company in Section 2.1, any oral or written information presented to the Purchaser or any of its Affiliates or representatives in the course of their due diligence investigation of the Company, the negotiation of this Agreement or in the course of the transactions contemplated hereby.  Subject to the final sentence of Section 5.6, the Purchaser, on behalf of itself and on behalf of its Affiliates, expressly waives any such claim relating to the foregoing matters, except with respect to intentional fraud with respect to the representations and warranties set forth herein. The Purchaser hereby acknowledges (for itself and on behalf of its Affiliates and representatives) that it has conducted, to its satisfaction, its own independent investigation of the business, operations, assets and financial condition of the Company and its Subsidiaries and, in making its determination to proceed with the transactions contemplated hereby, the Purchaser and its Affiliates have relied on the results of their own independent investigation.

ARTICLE III

COVENANTS

3.1           Filings; Other Actions .  During the period commencing on the date hereof and terminating on the earlier to occur of (a) the Closing and (b) the termination of this Agreement in accordance with the provisions hereof (the “ Pre-Closing Period ”), each of the Purchaser, on the one hand, and the Company, on the other hand, will cooperate and consult with the other and use reasonable best efforts to prepare and file all necessary documentation, to effect all necessary applications, notices, petitions, filings and other documents, and to obtain all necessary permits, consents, orders, approvals and authorizations of, or any exemption by, all third parties and Governmental Entities, and the expiration or termination of any applicable waiting period, necessary or advisable to consummate the transactions contemplated by this Agreement, and to perform the covenants contemplated by this Agreement.  Each party shall execute and deliver both before and after the Closing such further certificates, agreements and other documents and take such other actions as the other parties may reasonably request to consummate or implement such transactions or to evidence such events or matters.  In particular, if required, the Purchaser and the Company shall use all reasonable best efforts to prepare and submit (i) a Notification and Report Form pursuant to the Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), as promptly as practicable following the date hereof (and in any event within ten (10) business days of the date hereof) and (ii) all necessary documentation to effect any approvals or terminations of waiting periods, if required, under any foreign antitrust, competition or similar laws as promptly as practicable following the date hereof, in each case with respect to the transactions contemplated hereby, including the issuance of Class A Common Stock.  The

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Purchaser and the Company will use, and will use reasonable best efforts to cause their respective Affiliates to use, reasonable best efforts to obtain all necessary permits, consents, orders, approvals and authorizations of, or any exemption by, all third parties and Governmental Entities, and the expiration or termination of any applicable waiting period, necessary or advisable to consummate the transactions contemplated by this Agreement, and to perform the covenants contemplated by this Agreement. The Purchaser and the Company will have the right to review in advance, and to the extent practicable each will consult with the other, in each case subject to applicable laws relating to the exchange of information, all the information relating to such other party, and any of their respective Affiliates, which appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement or the Merger Agreement. In exercising the foregoing right, each of the parties hereto agrees to act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement or the Merger Agreement, and each party will keep the other party apprised promptly of the status of filings and applications, including communications with Governmental Entities that cause such party to believe that there is a reasonable likelihood that any necessary permits, consents, orders, approvals and authorizations of, or any exemption by, all third parties and Governmental Entities, and the expiration or termination of any applicable waiting period, necessary or advisable to consummate the transactions contemplated by this Agreement and by the Merger Agreement, and to perform the covenants contemplated by this Agreement will not be obtained or that the receipt of any such approval will be delayed, and all other matters relating to completion of the transactions contemplated hereby. Each party shall consult with the other party in advance of any meeting or conference with any Governmental Entity in respect of the transactions contemplated by this Agreement.  Notwithstanding anything to the contrary in this Agreement, none of the Purchaser or any of its Affiliates shall be required to accept any onerous condition or mitigation measure imposed upon it that would materially and adversely affect it or its interest in the transactions contemplated by this Agreement, including to commit to or effect, by consent decree, hold separate orders, or otherwise, the restructuring, reorganization, sale, divestiture or disposition of such of its or any of its Affiliates’ or portfolio companies’ assets, properties or businesses, or accept any prohibition or limitation on the ownership or operation of, or any arrangement that would apply to, any of its or any of its Affiliates’ or portfolio companies’ assets, properties or businesses.  The Company acknowledges and agrees that (x) the Purchaser may not be able to provide certain information regarding and documentation from its ultimate shareholder (being the Singapore Minister for Finance) that may be requested by a Governmental Entity in connection with seeking, making and/or obtaining the applications, notices, petitions, filings, permits, consents, orders, approvals and authorizations contemplated by this Section 3.1 and (y) any failure to provide any such requested information shall not be a breach of this Section 3.1 by the Purchaser.

3.2           Reasonable Best Efforts to Close .  During the Pre-Closing Period, the Company and the Purchaser will use reasonable best efforts in good faith to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary under applicable laws so as to permit consummation of the transactions contemplated hereby as promptly as practicable and otherwise to enable consummation of the transactions contemplated hereby and shall cooperate reasonably with the other party hereto to that end, including in relation to the satisfaction of the conditions to

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Closing set forth in Sections 1.3(a), (b) and (c) and cooperating in seeking to obtain any consent required from Governmental Entities.

3.3           Corporate Actions .  In the event that, at or prior to the Closing, (a) the number of shares of Common Stock or securities convertible or exchangeable into or exercisable for shares of Common Stock issued and outstanding is changed as a result of any reclassification, stock split (including reverse split), stock dividend or distribution (including any dividend or distribution of securities convertible or exchangeable into or exercisable for shares of Common Stock), merger, tender or exchange offer or other similar transaction, or (b) the Company fixes a record date that is at or prior to the Closing Date for the payment of any non-stock dividend or distribution on the Common Stock, or other matter described in clause (a) above, other than regular quarterly cash dividends consistent with past practice, then at the Purchaser’s option, which may be exercised in the Purchaser’s sole discretion, the number of shares of Common Stock to be issued to the Purchaser at the Closing under this Agreement shall be equitably adjusted and/or the shares of Common Stock to be issued to the Purchaser at the Closing under this Agreement shall be equitably substituted with shares of other stock or securities or property (including cash), in each case, to provide the Purchaser with substantially the same economic benefit from this Agreement as the Purchaser had prior to the applicable transaction.  Notwithstanding anything in this Agreement to the contrary, in no event shall the Purchase Price or any component thereof be changed by the foregoing.

3.4           [INTENTIONALLY OMITTED] .

3.5           Confidentiality .  Each party to this Agreement will hold, and will cause its respective Affiliates and their respective directors, managers, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary in connection with any necessary regulatory approval, examination or inspection or unless disclosure is required by judicial or administrative process or by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange (in which case, other than in connection with a disclosure in connection with a routine audit or examination by, or document request from, a regulatory or self-regulatory authority, bank examiner or auditor, the party disclosing such information shall provide the other party with prior written notice of such permitted disclosure), all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “ Information ”) concerning the other party hereto furnished to it by or on behalf of such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party from other sources, provided that such source was not known, after reasonable inquiry and investigation, by such party to be bound by a contractual, legal or fiduciary obligation of confidentiality to the other party, (2) in the public domain through no violation of this Section 3.5 by such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, financing sources and other consultants and advisors.

3.6           State Securities Laws .  During the Pre-Closing Period, the Company shall use its reasonable best efforts to (a) obtain all necessary permits and qualifications, if any, or secure an exemption therefrom, required by any state or country prior to the offer and sale of Class A

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Common Stock and (b) cause such authorization, approval, permit or qualification to be effective as of the Closing.

3.7           Negative Covenants .  During the Pre-Closing Period, the Company and its Subsidiaries shall use their reasonable best efforts to operate their businesses in the ordinary course (provided that the Company and its Subsidiaries shall be permitted to take all actions required to consummate the Merger, the Other Equity Financing and the Debt Financing), and, except as contemplated by this Agreement or set forth on Schedule 3.7 , without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), shall not:

(a)           declare, or make payment in respect of, any dividend or other distribution upon any shares of capital stock of the Company, other than regular quarterly cash dividends on shares of Class A Common Stock (not to exceed $0.24 per share);

(b)           redeem, repurchase or acquire any capital stock of the Company or any of its Subsidiaries, other than repurchases of capital stock from employees, officers or directors of the Company or any of its Subsidiaries in the ordinary course of business pursuant to any of the Company’s agreements or plans in effect as of the date hereof;

(c)           amend the Certificate of Incorporation or Bylaws in a manner that would affect the Purchaser in an adverse manner either as a holder of Class A Common Stock or with respect to the rights of the Purchaser under this Agreement or the Registration Rights Agreement;

(d)           authorize, issue or reclassify any capital stock, or securities exercisable for, exchangeable for or convertible into capital stock, of the Company other than (i) the authorization and issuance of the Class A Common Stock under this Agreement and the Other Equity Financing and (ii) issuances of capital stock, or securities exercisable for, exchangeable for or convertible into capital stock, of the Company to employees, officers and directors of the Company or any of its Subsidiaries in the ordinary course of business pursuant to any of the Company’s agreements or plans in effect as of the date hereof; or

(e)           make, change or revoke any material Tax election, file any U.S. federal or state income, or any other material amended Tax Return, settle or compromise any material claim, action, proceeding or assessment for Taxes, change any method of Tax accounting, enter into any closing agreement with respect to Taxes or make or surrender any material claim for a refund of Taxes, in each case except (i) as required by applicable Tax Law or (ii) consistent with past practice,

provided that, notwithstanding any other provision herein, any consent of the Purchaser pursuant to Section 3.7(b) with respect to repurchases under the Company’s repurchase program, as in effect on the date hereof or adopted hereafter, may be given orally or through electronic submission, including by email.

3.8           Certain Statutory and Corporate Matters .  The Board of Directors has taken all necessary action so that any business combination, takeover, anti-takeover, moratorium, “fair price”, “control share” or other similar Law enacted under any Law applicable to the Company does not, and will not, apply to this Agreement or the transactions contemplated hereby.

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3.9           Merger Agreement Matters .  At or prior to the Closing, the Company shall not, without the prior written consent of the Purchaser, make or agree to make any amendments, supplements, waivers or other modifications to any provision of the Merger Agreement that are material or would adversely affect the Purchaser (including, for the avoidance of doubt, (i) any change to the mix or amount of the merger consideration, (ii) any changes to the definition of “Company Material Adverse Effect” and (iii) any extensions of the Outside Date (as defined in the Merger Agreement)) or waive any closing conditions under the Merger Agreement.  Without limiting the foregoing, the Company shall keep the Purchaser reasonably informed regarding the transactions contemplated by the Merger Agreement and the Debt Financing Commitment (as defined in the Merger Agreement), including the expected timing of the Closing and any developments that would reasonably be expected, individually or in the aggregate, to materially delay the Closing or make the Closing unlikely to occur; provided, however, that in any event the Company shall provide the Purchaser with no less than five (5) business days’ written notice of the Closing Date.  Prior to any mailing by the Company or Target of any information statement or proxy statement of the Company or Target to stockholders of the Company or Target (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide the Purchaser with an opportunity to review and comment on such information statement or proxy statement or response (including the proposed final version of such information statement or proxy statement or response), (ii) shall, and shall use reasonable best efforts to cause Target to, consider in good faith all comments reasonably proposed by the Purchaser and (iii) shall not include in any such information statement or proxy statement any reference to the Purchaser or any of its Affiliates except to the extent such reference is in a form previously approved in writing by the Purchaser.

3.10           Use of Proceeds .  The Company shall use the proceeds of the transactions contemplated by this Agreement exclusively to fund the payment of the cash Merger Consideration (as defined in the Merger Agreement) pursuant to the Merger Agreement at the Closing (as defined in the Merger Agreement), refinance indebtedness of the Company, Target or their respective Subsidiaries and finance certain costs and expenses incurred in connection with the transaction contemplated by this Agreement. 

3.11           Tax Matters .  For so long as the Purchaser and its Affiliates Beneficially Own shares of Class A Common Stock that represent at least 25% of the number of shares of Common Stock Beneficially Owned by the Purchaser and its Affiliates as of the Closing,  (i) the Company agrees to provide the Purchaser with written notice in accordance with Section 6.6 five (5) business days in advance of any redemption or repurchase of shares of Class A Common Stock and the Purchaser shall be entitled to elect to participate in any such redemption or repurchase by notice to the Company within three (3) business days of receipt of such notice provided , that this provision shall not apply to any redemption of Class A Common Stock (A) conducted pursuant to a publicly announced share buyback program by the Company or (B) from former employees of the Company or any subsidiary of the Company, (ii) the Company and the Purchaser agree to cooperate with each other and to use good faith efforts to structure any distribution by the Company (an “Extraordinary Distribution”) that is greater than 130% of the average amount of dividends received in respect of such Class A Common Stock by the Purchaser during the 3 preceding years  (a “Regular Dividend”), such that the excess of the Extraordinary Distribution over the Regular Dividend is a redemption that is intended to be

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treated as a sale or exchange pursuant to Section 302 of the Code.

3.12           North Island Investment Agreement .  The Company shall not, without the prior written consent of the Purchaser, make or agree to make any material amendments, supplements or other modifications to any provision of the North Island Investment Agreement (including, for the avoidance of doubt, any reduction to the consideration or per share price to be paid pursuant to the North Island Investment Agreement).

ARTICLE IV

ADDITIONAL AGREEMENTS

4.1           [INTENTIONALLY OMITTED] .

4.2           Legend .

(a)           The Purchaser agrees that all certificates or other instruments representing the Class A Common Stock subject to this Agreement will bear a legend substantially to the following effect:

THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER AND OTHER RESTRICTIONS SET FORTH IN AN INVESTMENT AGREEMENT, DATED AS OF APRIL 20, 2017, COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE ISSUER.

(b)           Upon request of the Purchaser, upon receipt by the Company of an opinion of counsel reasonably satisfactory to the Company to the effect that such legend is no longer required under the Securities Act and applicable state laws, the Company shall promptly cause the first paragraph of the legend to be removed from any certificate for any Class A Common Stock to be Transferred in accordance with the terms of this Agreement and the second paragraph of the legend shall be removed upon the expiration of such transfer and other restrictions set forth in this Agreement (and, for the avoidance of doubt, immediately prior to any termination of this Agreement).  The Purchaser acknowledges that the Class A Common Stock issued pursuant to this Agreement has not been registered under the Securities Act or under any state securities laws and agrees that it will not sell or otherwise dispose of any of the Class A Common Stock issued pursuant to this Agreement, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other applicable securities laws.

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4.3           [INTENTIONALLY OMITTED] .

4.4           Observer .

(a)           For so long as the Purchaser and its Permitted Transferees collectively Beneficially Own shares of Class A Common Stock that represent at least 25% of the number of shares of Class A Common Stock Beneficially Owned by the Purchaser and its Affiliates as of the Closing, the Company and the Purchaser shall take all necessary action to permit one (1) individual designated by the Purchaser (the “ Observer ”) to attend each meeting of the Board of Directors and of the Strategy Committee (as defined in the North Island Investment Agreement).  The Observer shall be provided with notice of and information regarding each such meeting as is provided to members of the Board of Directors and the Strategy Committee, as the case may be, and such Observer shall maintain in confidence all matters discussed and materials provided in connection with each meeting of the Board of Directors and each meeting of the Strategy Committee.  The Observer shall have no right to vote at any meeting of the Board of Directors or the Strategy Committee.  Notwithstanding the foregoing, any Observer may be excluded from any meeting of the Board of Directors or any portion thereof (and any materials provided to the Observer will be redacted accordingly) to the extent that the Board of Directors determines that (i) such exclusion is required to preserve any evidentiary, attorney-client or other legal privilege or (ii) the Observer’s presence may give rise to concerns about a conflict of interest.

4.6           Tax Matters .

(a)           The Company and its paying agent shall be entitled to withhold taxes on all payments on the Class A Common Stock to the extent required by law.  Prior to the date of any such payment, the Purchaser (or any transferee) shall deliver to the Company or its paying agent a duly executed, valid, accurate and properly completed Internal Revenue Service Form W-9 or an appropriate Internal Revenue Service Form W-8, as applicable, and if such form has validly been delivered by Purchaser, and is reasonably satisfactory to the Company, then the Company shall not withhold taxes on payments on the Class A Common Stock to the extent such Form W-9 or Form W-8 evidences a legal entitlement to receive payments free of any withholding taxes.

(b)           The Company shall pay any and all documentary, stamp and similar issue or transfer tax due on the issue of the Class A Common Stock.

ARTICLE V

INDEMNITY

5.1           Indemnification by the Company .  

(a)           From and after the Closing, the Company agrees to indemnify the Purchaser and its Affiliates and its and their officers, directors, managers, employees and agents (collectively, “ Purchaser Related Parties ”) from, and hold each of them harmless against, any and all losses (including losses arising from the diminution in value of the Company as a result of such indemnification by the Company), damages, actions, suits, proceedings (including any investigations, litigation or inquiries), demands and causes of action (“ Losses ”), and, in connection therewith, and promptly upon demand, pay or reimburse each of them for all

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reasonable costs, losses, liabilities, damages or expenses of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them), whether or not involving a Third Party Claim, incurred by or asserted against such Purchaser Related Parties, as a result of or arising out of (i) the failure of the representations or warranties made by the Company contained in Section 2.1(a), 2.1(b), 2.1(c)(1), 2.1(e), 2.1(f)(1), 2.1(f)(4) or in any certificate delivered pursuant hereto to be true and correct or (ii) the breach of any of the covenants of the Company contained herein; provided that in the case of the immediately preceding clause (i), such claim for indemnification relating to a breach of any representation or warranty is made prior to the expiration of such representation or warranty as set forth in Section 5.5; provided, further, that for purposes of determining when an indemnification claim has been made, the date upon which a Purchaser Related Party shall have given written notice (stating in reasonable detail the basis of the claim for indemnification) to the Company shall constitute the date upon which such claim has been made; provided, further, for the purposes of calculating the amount of Losses and for determining whether a breach of any representation or warranty has occurred for purposes of this Section 5.1(a), all materiality and Company Material Adverse Effect qualifiers contained in Sections 2.1(a) (other than the first materiality qualifier in Section 2.1(a)(2)), 2.1(b), 2.1(f)(1) and 2.1(f)(4) shall be disregarded therefrom.

(b)           From and after the  Closing, the Company agrees to indemnify and hold harmless the Purchaser, its general and limited partners, members and investors and their respective officers, directors, employees, members, managers, partners, investors, agents and Affiliates (collectively, “ Purchaser Affiliated Parties ”) from, and hold each of them harmless against, any and all Losses, and promptly upon demand, pay or reimburse each of them for all reasonable costs, losses, liabilities, damages or expenses of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them), in each case, involving a Third Party Claim asserted against such Purchaser Affiliated Party to the extent (i) such Purchaser Affiliated Party is party to such Third Party Claim under applicable Laws as a result of their direct or indirect ownership of the shares of Class A Common Stock (or rights in connection therewith) purchased pursuant to this Agreement and (ii) such Third Party Claim is based on, arising out of, pertaining to or as a result of the Company’s or its Subsidiaries’ (i) failure or alleged failure to comply with any Law or (ii) ownership or the operation of its assets and properties or the operation or conduct of its business. The indemnity agreement contained in this Section 5.1(b) shall be applicable whether or not any Third Party Claim or the facts or transactions giving rise to it arose prior to, on or subsequent to the date of this Agreement.

5.2           Indemnification by the Purchaser .  From and after the Closing, the Purchaser agrees to indemnify the Company and its officers, directors, managers, employees, and agents (collectively, “ Company Related Parties ”) from, and hold each of them harmless against, any and all Losses, and, in connection therewith, and promptly upon demand, pay or reimburse each of them for all reasonable costs, losses, liabilities, damages or expenses of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them), whether or not

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involving a Third Party Claim, incurred by or asserted against such Company Related Parties as a result of or arising out of (i) the failure of any of the representations or warranties made by the Purchaser contained in Section 2.2(a) or 2.2(b)(1) to be true and correct or (ii) the breach of any of the covenants of the Purchaser contained herein; provided that in the case of the immediately preceding clause (i), such claim for indemnification relating to a breach of any representation or warranty is made prior to the expiration of such representation or warranty as set forth in Section 5.5; provided, further, that for purposes of determining when an indemnification claim has been made, the date upon which a Company Related Party shall have given written notice (stating in reasonable detail the basis of the claim for indemnification) to the Purchaser shall constitute the date upon which such claim has been made.

5.3           Indemnification Procedure .

(a)           A claim for indemnification for any matter not involving a Third Party Claim may be asserted by written notice to the party from whom indemnification is sought; provided, however, that failure to so notify the indemnifying party shall not preclude the indemnified party from any indemnification that it may claim in accordance with this Article V, except as otherwise provided in Sections 5.1 and 5.2.

(b)           Promptly after any Company Related Party, Purchaser Affiliated Party or Purchaser Related Party (hereinafter, the “ Indemnified Party ”) has received notice of any indemnifiable claim hereunder, or the commencement of any action, suit, claim, arbitration, compliant, enforcement proceeding, investigation or other proceeding by any Governmental Entity or other third person, which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement (each, a “ Third Party Claim ”), the Indemnified Party shall give the indemnitor hereunder (the “ Indemnifying Party ”) written notice of such Third Party Claim but failure or delay to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability it may have to such Indemnified Party hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure or delay.  Such notice shall state the nature and the basis of such Third Party Claim to the extent then known.  The Indemnifying Party shall have the right to assume and control the defense of, and settle, at its own expense and by its own counsel, any such matter as long as the Indemnifying Party pursues the same diligently and in good faith.  If the Indemnifying Party undertakes to assume and control the defense or settle such Third Party Claim, it shall promptly, and in no event later than ten (10) business days after notice of such claim, notify the Indemnified Party of its intention to do so, and the Indemnified Party shall cooperate with the Indemnifying Party and its counsel in all reasonable respects in the defense thereof and/or the settlement thereof.  Such cooperation shall include, but shall not be limited to, furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or control.  Such cooperation of the Indemnified Party shall be at the cost of the Indemnifying Party.  After the Indemnifying Party has notified the Indemnified Party of its intention to undertake to defend or settle any such asserted liability, and for so long as the Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability; provided, however, that the Indemnified Party shall be entitled (i) at its own expense, to participate in the defense of such asserted liability and any negotiations of the settlement thereof and (ii) if (A) the Indemnifying Party has, within ten

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(10) business days of when the Indemnified Party provides written notice of a Third Party Claim, failed to (y) assume the defense or settlement of such Third Party Claim and (z) notify the Indemnified Party of such assumption, or (B) the defendants in any such action include both the Indemnified Party and the Indemnifying Party and counsel to the Indemnified Party shall have concluded that there may be reasonable defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party or if the interests of the Indemnified Party reasonably may be deemed to conflict with the interests of the Indemnifying Party, then, in each case, the Indemnified Party shall have the right to select a separate counsel and, upon prompt notice to the Indemnifying Party, to assume such settlement or legal defense and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the Indemnifying Party as incurred.  Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not settle any indemnified claim without the consent of the Indemnified Party, unless the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, and does not contain any admission of wrongdoing by, the Indemnified Party.

5.4           Tax Matters .  All indemnification payments under this Article V shall be treated as adjustments to the Purchase Price for tax purposes, except as otherwise required by applicable Law.

5.5           Survival .  The representations and warranties of the parties contained in this Agreement shall survive for twelve (12) months following the Closing, except that (i) the representations and warranties of the Company contained in Sections 2.1(a), 2.1(b), 2.1(c)(1), 2.1(c)(2)(A)(i) and 2.1(e) will survive indefinitely, and (ii) the representations and warranties of the Purchaser contained in Sections 2.2(a) and 2.2(b)(1) will survive indefinitely.  All of the covenants or other agreements of the parties contained in this Agreement shall survive until fully performed or fulfilled, unless and to the extent that non-compliance with such covenants or agreements is waived in writing by the party entitled to such performance.

5.6           Limitation on Damages .  Notwithstanding any other provision of this Agreement, except in the case of intentional fraud with respect to the representations and warranties set forth herein, no party hereto shall have any liability to the other party in excess of the Purchase Price, and neither party shall be liable for any exemplary or punitive damages or any other damages to the extent not reasonably foreseeable arising out of or in connection with this Agreement or the transactions contemplated hereby (in each case, unless any such damages are awarded pursuant to a Third Party Claim).  Nothing in this Agreement constitutes a waiver of any rights of the Purchaser, Purchaser Related Parties of Purchaser Affiliated Parties under U.S. federal securities Law.

ARTICLE VI

MISCELLANEOUS

6.1           Expenses .  Subject to Section 4.6(b), each of the parties will bear and pay all other costs and expenses incurred by it or on its behalf in connection with the transactions contemplated pursuant to this Agreement; provided that upon the Closing or within two (2)

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business days of any termination of this Agreement other than pursuant to Section 6.16(d), the Company shall reimburse the Purchaser for its reasonable out-of-pocket costs and expenses incurred in connection with due diligence, the negotiation and preparation of this Agreement and undertaking of the transactions contemplated by this Agreement, including fees and expenses of attorneys, consultants and accounting, financial and other advisers in connection with the transactions contemplated by this Agreement, provided that the maximum amount of such costs and expenses reimbursed pursuant to this Section 6.1 shall not exceed $1,250,000 in the aggregate.

6.2           Amendment; Waiver .  No amendment or waiver of any provision of this Agreement will be effective with respect to any party unless made in writing and signed by an officer of a duly authorized representative of such party.  No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  The conditions to each party’s obligation to consummate the Closing are for the sole benefit of such party and may be waived by such party in whole or in part to the extent permitted by applicable law.  No waiver of any party to this Agreement will be effective unless it is in a writing signed by a duly authorized officer of the waiving party that makes express reference to the provision or provisions subject to such waiver.  The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

6.3           Counterparts; Electronic Transmission .  For the convenience of the parties hereto, this Agreement may be executed in any number of separate counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same agreement.  Executed signature pages to this Agreement may be delivered by facsimile or other means of electronic transmission and such facsimiles or other means of electronic transmission will be deemed as sufficient as if actual signature pages had been delivered.

6.4           Governing Law .  This Agreement will be governed by and construed in accordance with the laws of the State of New York (except to the extent that mandatory provisions of Delaware law are applicable).  The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in the Borough of Manhattan, State of New York for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby.  The parties hereby irrevocably and unconditionally consent to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such action, suit or proceeding and irrevocably waive, to the fullest extent permitted by law, any objection that they may now or hereafter have to the laying of the venue of any such action, suit or proceeding in any such court or that any such action, suit or proceeding which is brought in any such court has been brought in an inconvenient forum.  Process in any such action, suit or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.  Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 6.6 shall be deemed effective service of process on such party.

6.5           WAIVER OF JURY TRIAL .  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL

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PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

6.6           Notices .  Any notice, request, instruction or other document to be given hereunder by any party to the other will be in writing and will be deemed to have been duly given (a) on the date of delivery if delivered personally or by telecopy or facsimile, upon confirmation of receipt, (b) on the first business day following the date of dispatch if delivered by a recognized next-day courier service, or (c) on the third business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid.  All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice.

(a)

If to the Purchaser:

 

Aranda Investments Pte. Ltd.
60B Orchard Road #06-18 Tower 2
The Atrium@Orchard
Singapore 238891
Attn:     Pradyumna Agrawal
Fax:  +65 6821-1173
Email:   pradyumna@temasek.com.sg

 

 

 

with a copy to (which copy alone shall not constitute notice):

 

 

 

Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022-6069
Attn:    Scott Petepiece
Fax:     (646) 848-8576

 

 

(b)

If to the Company:

 

Virtu Financial, Inc.
900 Third Avenue, 29th Floor
New York, New York 10022-0100
Attn:     Douglas A. Cifu
Fax:      (212) 428-0123
Email: dcifu@virtufinancial.com

 

 

 

with a copy to (which copy alone shall not constitute notice):

 

 

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019

 

Attn:

Ellen N. Ching

 

 

Bruce A. Gutenplan

 

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Jeffrey D. Marell

 

Fax:

(212) 757-3990

 

Email:

eching@paulweiss.com

 

 

bguteplan@paulweiss.com

 

 

jmarell@paulweiss.com

 

6.7           Entire Agreement .  This Agreement (including the Exhibits and Schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

6.8           Assignment .  Neither this Agreement, nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other party, provided, however, that (a) the Purchaser may assign its rights, interests and obligations under this Agreement, in whole or in part, to one or more Permitted Transferees, and (b) in the event of such assignment, the assignee shall agree in writing to be bound by the provisions of this Agreement, including the rights, interests and obligations so assigned; provided that (x) no such assignment shall relieve the Purchaser of its obligations hereunder and (y) the Purchaser shall not assign any of its obligations hereunder (i) with the primary intent of avoiding, circumventing or eliminating the Purchaser’s obligations hereunder, (ii) if such assignment may have the effect of preventing, impairing or materially delaying the consummation of the transactions contemplated hereby (which shall include any delay of the consummation of the transactions contemplated hereby beyond the anticipated closing date under the Merger Agreement) or (iii) if such assignment may have a material adverse impact on the likelihood or timing of receiving any approvals or consents required for Closing under this Agreement (including, for the avoidance of doubt, pursuant to Section 3.1) or the Merger Agreement.

6.9           Interpretation; Other Definitions .  Wherever required by the context of this Agreement, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa, and references to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as amended, supplemented or modified from time to time.  All article, section, paragraph or clause references not attributed to a particular document shall be references to such parts of this Agreement, and all exhibit, annex, letter and schedule references not attributed to a particular document shall be references to such exhibits, annexes, letters and schedules to this Agreement.  In addition, the following terms are ascribed the following meanings:

(a)           the word “ or ” is not exclusive;

(b)           the words “ including ,” “ includes ,” “ included ” and “ include ” are deemed to be followed by the words “without limitation”;

(c)           the terms “ herein ,” “ hereof ” and “ hereunder ”  and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision;

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(d)           the term “ business day ” means any day except Saturday, Sunday and any day which shall be a legal holiday or a day on which banking institutions in the State of New York or Singapore generally are authorized or required by law or other governmental action to close; and

(e)           the term “ person ” has the meaning given to it in Section 3(a)(9) of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act.

(f)           Affiliate ” means, with respect to any person, any person directly or indirectly controlling, controlled by or under common control with, such other person; provided, however, that (i) portfolio companies in which any person or any of its Affiliates has an investment shall not be deemed an Affiliate of such person, or (ii) the Company, any of its Subsidiaries, or any of the Company’s other controlled Affiliates, in each case, will not be deemed to be Affiliates of the Purchaser for purposes of this Agreement; provided, however, that for the purposes of Section 3.5, any portfolio company of the Purchaser or its Affiliates that (but for clause (i) of this definition) would be an Affiliate of the Purchaser will be an Affiliate if the Purchaser or any of its Affiliates (or any representative on behalf of the Purchaser or any of its Affiliates) has provided, directly or indirectly, such portfolio company with Information subject to the restrictions in Section 3.5. Notwithstanding the immediately preceding sentence, Havelock Fund Investments Pte Ltd. (a Singapore private limited company), Temasek Holdings (Private) Limited (a Singapore private limited company), and Temasek Holdings (Private) Limited’s direct and indirect wholly owned subsidiaries, the boards of directors or equivalent governing bodies of which comprise solely nominees or employees of (i) Temasek Holdings (Private) Limited, (ii) Temasek Pte Ltd. (a wholly owned subsidiary of Temasek Holdings (Private) Limited) and/or (iii) wholly owned direct and indirect subsidiaries of Temasek Pte Ltd., shall be the sole Affiliates of the Purchaser.  For purposes of this definition, “ control ” (including, with correlative meanings, the terms “ controlled by ” and “ under common control with ”) when used with respect to any person, means the possession, directly or indirectly, of the power to cause the direction of management or policies of such person, whether through the ownership of voting securities, by contract or otherwise.

(g)           Beneficial Ownership ” or “ Beneficially Own ” shall have the meaning given such term in Rule 13d-3 under the Exchange Act and a person’s Beneficial Ownership of securities shall be calculated in accordance with the provisions of such Rule; provided, however, that for purposes of determining any person’s Beneficial Ownership, such person shall be deemed to be the Beneficial Owner of any Equity Securities which may be acquired by such person, whether within sixty (60) days or thereafter, upon the conversion, exchange, redemption or exercise of any warrants, options, rights or other securities issued by the Company or any Company Subsidiary.

(h)           Company Material Adverse Effect ” shall mean, with respect to the Company, any Effect that, individually or taken together with all other Effects that have occurred prior to the date of determination of the occurrence of the Company Material Adverse Effect, is or is reasonably likely to be materially adverse to the business, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole; provided, however, that in no event shall any of the following occurring after the date hereof, alone or in combination, be deemed to constitute, or be taken into account in determining whether a Company Material Adverse Effect has occurred:  (A) any change in the Company’s stock price or trading volume on

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the Nasdaq Global Select Market, (B) any failure by the Company to meet internal or analyst revenue, earnings or other financial projections or expectations for any period, (C) any Effect that results from changes generally affecting the industry in which the Company operates, or the United States economy generally, or any Effect that results from changes affecting general worldwide economic or capital market conditions, (D) any Effect caused by the announcement or pendency of the transactions contemplated by this Agreement, or the identity of the Purchaser or any of its Affiliates as the purchaser in connection with the transactions contemplated by this Agreement, (E)  any hurricane, tornado, flood, earthquake or other natural disaster, (F)  changes in global, national or regional economic or political (including results of elections) conditions (including any outbreak or escalation of hostilities or war or any act of terrorism) or changes in the securities, credit or financial markets, (G) the performance of this Agreement and the transactions contemplated hereby, including compliance with the covenants set forth herein and therein, or any action taken or omitted to be taken by the Company at the request or with the prior consent of the Purchaser, (H) changes in GAAP or other accounting standards (or any interpretation thereof) or (I) changes in any Laws or other binding directives issued by any Governmental Entity or interpretations or enforcement thereof; provided, however, that (x) the exceptions in clause (A) and (B) shall not prevent or otherwise affect a determination that any Effect underlying such change or failure has resulted in, or contributed to, a Company Material Adverse Effect, (y) with respect to clauses (C), (F), (H) and (I), such Effects, alone or in combination, may be deemed to constitute, or be taken into account in determining whether a Company Material Adverse Effect has occurred, but only to the extent such Effects disproportionately affect the Company and its Subsidiaries, taken as a whole, relative to other companies operating in the same industry as the Company and its Subsidiaries.

(i)           Debt Financing ” shall mean the Debt Financing (as defined in the Merger Agreement) which, for the avoidance of doubt, shall include any alternative debt financing obtained in accordance with Section 7.11(b) of the Merger Agreement.

(j)           Effect ” shall mean any change, event, effect, development or circumstance.

(k)           Environmental Law ” shall mean any Laws regulating, relating to or imposing standards of conduct concerning protection of the environment or of human health and safety.

(l)           Equity Securities ” means the equity securities of the Company, including shares of Class A Common Stock.

(m)           Exchange Agreement ” means the Exchange Agreement, dated as of April 15, 2015, by and among the Company, Virtu Financial LLC and the other persons listed on the signature pages thereto.

(n)           Exchange Rights ” means the right to exchange Virtu Financial Units and shares of Class C Common Stock or Class D Common Stock for shares of Class A Common Stock or Class B Common Stock, as applicable, in accordance with the Exchange Agreement.

(o)           ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and all rules, regulations, rulings and interpretations adopted by the Internal Revenue Service or the Department of Labor thereunder.

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(p)           Governmental Entity ” shall mean any court, administrative or regulatory agency or commission or other governmental or arbitral body or authority or instrumentality, in each case whether federal, state, local or foreign, and any applicable industry self-regulatory organization.

(q)           Intellectual Property ” means all worldwide intellectual and industrial property rights, including patents, utility models, trademarks, service marks, trade names, corporate names, trade dress, domain names, and other source indicators (and all goodwill relating thereto), copyrights and copyrighted works, inventions, know-how, trade secrets, methods, processes, formulae, technical or proprietary information, and technology and all registrations, applications, renewals, re-examinations, re-issues, divisions, continuations, continuations-in part and foreign counterparts thereof.

(r)           Knowledge of the Company ” means the actual knowledge after reasonable inquiry of one or more of Vincent Viola, Douglas Cifu, Joseph Molluso, Justin Waldie and Brian Palmer.

(s)           Law ” means any applicable federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, order, edict, decree, rule, regulation, ruling or other legally binding requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity.

(t)           Lien ” means any mortgage, pledge, security interest, encumbrance, lien, charge or other restriction of any kind, whether based on common law, statute or contract.

(u)           Materials of Environmental Concern ” shall mean any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants, contaminants, radioactivity, and any other substances that are regulated pursuant to or could give rise to liability under any Environmental Law.

(v)           Other Equity Financing ” means the equity financing contemplated by the Investment Agreement dated as of the date hereof between the Company and North Island Holdings I, LP (the “ North Island Investment Agreement ”) or any alternative issuance of Class A Common Stock by the Company at (i) a price no less favorable to the Company than that of the equity financing contemplated by the North Island Investment Agreement, (ii) for an aggregate purchase price no less than the aggregate purchase price set forth in the North Island Investment Agreement and (iii) on material terms and conditions no more favorable to the investor than the terms and conditions set forth in the North Island Investment Agreement.

(w)           Permitted Transferee ” means, with respect to any person, (i) any Affiliate of such person, (ii) any successor entity of such person, and (iii) with respect to any person that is an investment fund, vehicle or similar entity, any other investment fund, vehicle or similar entity of which such person or an Affiliate, advisor or manager of such person serves as the general partner, manager or advisor.

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(x)           Plan ” shall mean any employee pension benefit plan (as defined in Section 3(2)(A) of ERISA) subject to Title IV of ERISA and maintained for employees of the Company or of any member of a “controlled group,” as such term is defined in Section 4001(a)(14) of ERISA, of which the Company or any of its Subsidiaries is a part, or any such employee pension benefit plan to which the Company or any of its Subsidiaries is required to contribute on behalf of its employees, and any other employee benefit plan (as defined in Section 3(3) of ERISA), whether or not subject to ERISA, or any compensation plan, policy, program, agreement or arrangement, including any employment, change in control, bonus, equity-based compensation, retention or other similar agreement, that the Company or any of its Subsidiaries, maintains, sponsors, is a party to, or as to which the Company or any of its Subsidiaries otherwise has any material obligation or material liability.

(y)           Purchase Price ” means the purchase price payable by the Purchaser to the Company for the issue of the shares of Class A Common Stock pursuant to this Agreement, which shall be $125,000,000.

(z)           Registration Rights Agreement ” means that certain Registration Rights Agreement, the form of which is set forth as Exhibit A .

(aa)           Stockholders Agreement ” means that certain Stockholders Agreement, the form of which is attached as Exhibit B .

(bb)           Tax Return ” means any return, declaration, report, statement or other document filed or required to be filed in respect of Taxes (including any attached schedules), including any information return, claim for refund, amended return and declaration of estimated Tax.

(cc)           Taxes ” shall mean all United States federal, state, local or foreign taxes, charges, fees, levies or other assessments, including, without limitation, income, gross receipts, excise, real and personal property, profits, estimated, severance, occupation, production, capital gains, capital stock, goods and services, environmental, employment, withholding, stamp, value added, alternative or add-on minimum, sales, transfer, use, license, payroll and franchise taxes or any other tax, custom, duty or governmental fee, or other like assessment or charge of any kind whatsoever, imposed by the United States, or any state, county, local or foreign government or subdivision or agency thereof, and such term shall include any interest, penalties, fines, related liabilities or additions to tax attributable to such taxes, charges, fees, levies or other assessments, all any liability for the payment of any amounts of the foregoing types as a result of being a member of an affiliated, consolidated, combined or unitary group for any period, and any liability for the payment of any amounts of the foregoing types as a result of any express or implied obligation to indemnify any other person or as a result of being a transferee or successor in interest to any party.

(dd)           Transaction Documents ” means this Agreement, the Stockholders Agreement and the Registration Rights Agreement.

(ee)           Transfer ” by any person means directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale,

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transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any Equity Securities Beneficially Owned by such person or of any interest (including any voting interest) in any Equity Securities Beneficially Owned by such person; provided, however, that, notwithstanding anything to the contrary in this Agreement, a Transfer shall not include the redemption or other acquisition Class A Common Stock by the Company.

(ff)            Virtu Financial Units ” means non-voting common interest units in Virtu Financial LLC.

(gg)           Willful Breach ” means a material breach of this Agreement that is the consequence of an act or omission by a party with the actual knowledge or intention that the taking of such act or failure to take such action would, or would reasonably be expected to, cause a material breach of this Agreement.

6.10           Captions .  The article, section, paragraph and clause captions herein are for convenience of reference only, do not constitute part of this Agreement and will not be deemed to limit or otherwise affect any of the provisions hereof.

6.11           Severability .  If any provision of this Agreement or the application thereof to any person (including the officers and directors of the parties hereto) or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, will remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.

6.12           No Third Party Beneficiaries .  Except as expressly provided herein (including as provided in Section 5.1), nothing contained in this Agreement, expressed or implied, is intended to confer upon any person other than the parties hereto (and their permitted assigns), any benefit, right or remedies.

6.13           Public Announcements .  Subject to each party’s disclosure obligations imposed by law or regulation or the rules of any stock exchange upon which its securities are listed, each of the parties hereto will cooperate with each other in the development and distribution of all news releases and other public information disclosures with respect to this Agreement and any of the transactions contemplated by this Agreement, and neither the Company nor the Purchaser will make any such news release or public disclosure without first consulting with the other, and, in each case, also receiving the other’s consent (which shall not be unreasonably withheld or delayed) and each party shall coordinate with the party whose consent is required with respect to any such news release or public disclosure.

6.14           Specific Performance .  The parties 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.  It is accordingly agreed that, without the

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necessity of posting bond or other undertaking, the parties shall be entitled to specific performance of the terms hereof, this being in addition to any other remedies to which they are entitled at law or equity, and in the event that any action or suit is brought in equity to enforce the provisions of this Agreement, and no party will allege, and each party hereby waives, the defense or counterclaim that there is an adequate remedy at law.

6.15           Further Assurances .  Each party hereto shall do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments, and other documents as any other party hereto reasonably may request in order to carry out the provisions of this Agreement and the consummation of the transactions contemplated hereby.

6.16           Termination .  Prior to the Closing, this Agreement may only be terminated:

(a)           by mutual written agreement of the Company and the Purchaser;

(b)           by the Company or the Purchaser, upon written notice to the other party given at any time after January 31, 2018; provided, however that the right to terminate this Agreement pursuant to this Section 6.16(b) shall not be available to any party whose failure to fulfill any obligations under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date;

(c)           by the Company or the Purchaser, if any order, injunction, ruling, decree or judgment issued by any court or agency of competent jurisdiction or other legal restraint or prohibition permanently restrains, enjoins or prohibits or makes illegal the consummation of the transactions contemplated by this Agreement or the consummation of the Merger, and such order, injunction, ruling, decree or judgment becomes effective (and final and nonappealable) or any statute, rule, regulation, order, injunction or decree becomes enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the consummation of the transactions contemplated by this Agreement or the Merger;

(d)           by notice given by the Company to the Purchaser, if there have been one or more inaccuracies in or breaches of one or more representations, warranties, covenants or agreements made by the Purchaser in this Agreement such that the conditions in Section 1.3(c)(1) or (2) would not be satisfied and which have not been cured by the Purchaser thirty (30) days after receipt by the Purchaser of written notice from the Company requesting such inaccuracies or breaches to be cured;

(e)           without any action by either party, if the Merger Agreement is terminated in accordance with its terms at any time prior to the Closing;

(f)           by notice given by the Purchaser to the Company, if there have been one or more inaccuracies in or breaches of one or more representations, warranties, covenants or agreements made by the Company in this Agreement such that the conditions in Section 1.3(b)(1) or (2) would not be satisfied and which have not been cured by the Company within thirty (30) days after receipt by the Company of written notice from the Purchaser requesting such inaccuracies or breaches to be cured; or

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(g)           by notice given by the Purchaser to the Company, if this Agreement, the Merger Agreement and the Merger are not approved and adopted by the Board of Directors on or prior to 11:59 pm New York time on the date hereof.

6.17           Effects of Termination .  In the event of any termination of this Agreement in accordance with Section 6.16, neither party (or any of its Affiliates) shall have any liability or obligation to the other (or any of its Affiliates) under or in respect of this Agreement, except to the extent of (A) any liability arising from any material breach by such party of its obligations of this Agreement arising prior to such termination and (B) any intentional fraud with respect to the representations and warranties set forth herein or Willful Breach of this Agreement.  In the event of any such termination, this Agreement shall become void and have no effect, and (if such termination is prior to the Closing) the transactions contemplated hereby shall be abandoned without further action by the parties hereto, in each case, except (x) as set forth in the preceding sentence and (y) that the provisions of Sections 3.5 ( Confidentiality ), Article V ( Indemnity ), 6.2 to 6.14 ( Amendment, Waiver; Counterparts; Governing Law; Waiver of Jury Trial; Notices; Entire Agreement, Assignment; Interpretation; Other Definitions; Captions; Severability; No Third Party Beneficiaries; Public Announcements; and Specific Performance ) and Section 6.18 ( Non-Recourse ) shall survive the termination of this Agreement.

6.18           Non-Recourse .  This Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against the entities that are expressly identified as parties hereto, including entities that become parties hereto after the date hereof or that agree in writing for the benefit of the Company to be bound by the terms of this Agreement applicable to the Purchaser, and no former, current or future direct or indirect equityholders, controlling persons, directors, officers, employees, agents or Affiliates of any party hereto or any former, current or future direct or indirect equityholder, controlling person, director, officer, employee, general or limited partner, member, manager, advisor, agent or Affiliate of any of the foregoing (each, a “ Non-Recourse Party ”) shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, this Agreement.  Without limiting the rights of any party against the other parties hereto, in no event shall any party or any of its Affiliates, and each party agrees to cause their Affiliates not to, seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any Non-Recourse Party.

 

 

 

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IN WITNESS WHEREOF , this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written.

 

Virtu Financial, Inc.

 

 

 

 

 

By:

/s/ Douglas A. Cifu

 

 

Name:  Douglas A. Cifu

 

 

Title:    Chief Executive Officer

 

 

 

 

 

Aranda Investments Pte. Ltd.

 

 

 

 

 

By:

/s/ Png Chin Yee

 

 

Name:  Png Chin Yee

 

 

Title:    Authorized Signatory

 

[Signature Page to Investment Agreement]


Exhibit 2.3

 

EXECUTION VERSION

 

 

 

INVESTMENT AGREEMENT

 

dated as of April 20, 2017

 

by and between

 

Virtu Financial, Inc.

 

and

 

North Island Holdings I, LP

 

 

 


 

 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I PURCHASE; CLOSING

1

 

 

1.1

Purchase

1

1.2

Closing

2

1.3

Closing Conditions

2

 

 

 

ARTICLE II REPRESENTATIONS AND WARRANTIES

5

 

 

2.1

Representations and Warranties of the Company

5

2.2

Representations and Warranties of the Purchaser

16

 

 

 

ARTICLE III COVENANTS

19

 

 

3.1

Filings; Other Actions

19

3.2

Reasonable Best Efforts to Close

20

3.3

Corporate Actions

20

3.4

Information Rights

21

3.5

Confidentiality

22

3.6

State Securities Laws

22

3.7

Negative Covenants

22

3.8

Certain Statutory and Corporate Matters

23

3.9

Merger Agreement Matters

23

3.10

Use of Proceeds

24

 

 

 

ARTICLE IV ADDITIONAL AGREEMENTS

25

 

 

4.1

Transfer Restrictions

25

4.2

Legend

25

4.3

Participation

26

4.4

Election of Directors

28

4.6

Tax Matters

30

 

 

 

ARTICLE V INDEMNITY

30

 

 

5.1

Indemnification by the Company

30

5.2

Indemnification by the Purchaser

31

5.3

Indemnification Procedure

32

5.4

Tax Matters

33

5.5

Survival

33

5.6

Limitation on Damages

33

 

 

 

ARTICLE VI MISCELLANEOUS

33

 

 

6.1

Expenses

33

-i-


 

 

6.2

Amendment; Waiver

34

6.3

Counterparts; Electronic Transmission

34

6.4

Governing Law

34

6.5

WAIVER OF JURY TRIAL

34

6.6

Notices

34

6.7

Entire Agreement

36

6.8

Assignment

36

6.9

Interpretation; Other Definitions

37

6.10

Captions

42

6.11

Severability

42

6.12

No Third Party Beneficiaries

42

6.13

Public Announcements

42

6.14

Specific Performance

43

6.15

Further Assurances

43

6.16

Termination

43

6.17

Effects of Termination

44

6.18

Non-Recourse

44

 

Exhibit A:  Form of Merger Agreement

 

Exhibit B:  Form of Registration Rights Agreement

 

Exhibit C:  Form of Stockholders Agreement

 

Exhibit D: Form of Lock-Up Waivers Agreement

 

Exhibit E:  Form of Temasek Investment Agreement

 

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INDEX OF DEFINED TERMS

 

 

 

 

Term

    

Location of Definition

Affiliate

 

6.9(f)

Agreement

 

Preamble

Beneficially Own or Beneficial Ownership

 

6.9(g)

North Island Parties

 

6.9(w)

Board of Directors

 

2.1(c)

business day

 

6.9(d)

Bylaws

 

2.1(c)(2)

Capitalization Date

 

2.1(b)(1)

Certificate of Incorporation

 

2.1(c)(2)

Class B Common Stock

 

2.1(b)(1)

Class C Common Stock

 

2.1(b)(1)

Class D Common Stock

 

2.1(b)(1)

Closing

 

1.2(a)

Closing Date

 

1.2(a)

Code

 

2.1(o)(1)

Common Stock

 

2.1(b)(1)

Company

 

Preamble

Company Balance Sheet

 

2.1(j)(4)

Company Material Adverse Effect

 

6.9(h)

Company Related Parties

 

5.2

Company Securities

 

2.1(b)(1)

Company Stock Awards

 

2.1(b)

Company Stock Options

 

2.1(b)

Company Subsidiary

 

2.1(a)(2)

control/controlled by/under common control with

 

6.9(f)

Effect

 

6.9(i)

Environmental Law

 

6.9(k)

Equity Securities

 

6.9(l)

ERISA

 

6.9(o)

Exchange Act

 

2.1

Excluded Stock

 

4.3(a)

GAAP

 

2.1(f)(4)

GIC Investor

 

3.11

Government Official

 

2.1(s)

Governmental Entity

 

6.9(p)

herein/hereof/hereunder

 

6.9(c)

HSR Act

 

3.1

including/includes/included/include

 

6.9(b)

Indemnified Party

 

5.3(b)

Indemnifying Party

 

5.3(b)

Initial North Island Designees

 

4.4(a)

Information

 

3.5

Intellectual Property

 

6.9(q)

 

-iii-


 

 

Term

    

Location of Definition

Knowledge of the Company

 

6.9(r)

Law

 

6.9(s)

Lien

 

6.9(t)

Losses

 

5.1(a)

Materials of Environmental Concern

 

6.9(v)

Merger

 

Recitals

Merger Agreement

 

Recitals

Merger Consideration

 

Recitals

Merger Sub

 

Recitals

Non-Recourse Party

 

6.18

North Island Designees

 

4.4(a)

or

 

6.9(a)

Permitted Transferee

 

6.9(w)

person

 

0

Plan

 

6.9(z)

Pre-Closing Period

 

3.1

Preferred Stock

 

2.1(b)

Proposed Securities

 

4.3(b)(1)

Purchase Price

 

6.9(aa)

Purchaser

 

Preamble

Purchaser Related Parties

 

5.1(a)

Purchaser Representative

 

6.9(bb)

Registration Rights Agreement

 

6.9(cc)

Search Committee

 

4.4(d)(3)

SEC

 

2.1(f)

SEC Documents

 

2.1(f)

Class A Common Stock

 

Recitals

Subsidiary

 

2.1(a)(2)

Target

 

Recitals

Tax Return

 

6.9(dd)

Taxes

 

6.9(ff)

Third Party Claim

 

5.3(b)

Transaction Documents

 

6.9(gg)

Transfer

 

6.9(hh)

Virtu Financial Units

 

6.9(gg)

Voting Debt

 

2.1(b)(2)

Willful Breach

 

6.9(hh)

 

 

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INVESTMENT AGREEMENT, dated as of April 20, 2017 (this “ Agreement ”), by and between Virtu Financial, Inc., a Delaware corporation (the “ Company ”), and North Island Holdings I, LP, a Delaware limited partnership (the “ Purchaser ”).

 

RECITALS:

 

WHEREAS, the Company is party to an Agreement and Plan of Merger in the form attached as Exhibit A (as it may be amended or supplemented from time to time, the “ Merger Agreement ”), by and among the Company, Orchestra Merger Sub, Inc., a Delaware corporation and an indirect wholly-owned subsidiary of the Company (“ Merger Sub ”), and KCG Holdings, Inc., a Delaware corporation (“ Target ”), pursuant to, and on the terms and subject to the conditions of which, Merger Sub will merge with and into Target, with Target surviving (the “ Merger ”), and each outstanding share of Target (other than shares held by any of Target’s subsidiaries or by the Company or Merger Sub and Dissenting Shares (as defined in the Merger Agreement)) automatically shall be canceled in exchange for, and converted into the right to receive, the cash price per share set forth in the Merger Agreement (the “ Merger Consideration ”).

 

WHEREAS, to raise a portion of the financing for the Merger, the Company proposes to issue and sell to the Purchaser (including its assignees pursuant to Section 6.8) shares of its Class A common stock, par value $0.00001 per share, (the “ Class A Common Stock ”), subject to the terms and conditions set forth in this Agreement;

 

WHEREAS, concurrently with the execution and delivery of this Agreement, in connection with the transactions contemplated herein, and as a condition to the willingness of Purchaser to enter into this Agreement, the Company and the Purchaser have entered into the Registration Rights Agreement in the form of Exhibit B and the Company, the Purchaser and certain stockholders of the Company have entered into the Stockholders Agreement in the form of Exhibit C hereto and the Lock-Up Waivers Agreement in the form of Exhibit D ; and

 

WHEREAS, concurrently with the execution and delivery of this Agreement, in connection with the transactions contemplated herein, and as a condition to the willingness of Purchaser to enter into this Agreement, the Company and Aranda Investments Pte. Ltd have entered into the Temasek Investment Agreement in the form of Exhibit E .

 

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein, the parties agree as follows:

 

ARTICLE I

 

PURCHASE; CLOSING

 

1.1         Purchase .  On the terms and subject to the conditions herein, on the Closing Date, the Company agrees to sell and issue to the Purchaser, and the Purchaser agrees to purchase from the Company 40,064,103 shares of Class A Common Stock, free and clear of any Liens (other than restrictions arising under applicable securities Laws and restrictions set forth in Section 4.1), at a purchase price of $15.60 per share of Class A Common Stock; provided,

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however, that in no event shall the Purchaser be required to purchase an amount of Class A Common Stock that, after giving effect to the transactions contemplated by this Agreement, the Merger Agreement and the Other Equity Financing, would result in any Limited Partner having an indirect ownership interest on a “look-through basis” based on their relative Equity Commitments (as defined in the Equity Commitment Letters) (excluding for such purposes any capital stock of the Company or its Subsidiaries directly or indirectly acquired other than in such transactions by such Limited Partner prior to, on or after the date hereof)  in Virtu Financial, LLC in excess of 9.9%, in which case the amount of Class A Common Stock to be purchased hereunder shall be reduced accordingly.  Notwithstanding the foregoing, in the event that the Purchaser assigns its rights under this Agreement to the Limited Partners in accordance with Section 6.8(b) prior to the Closing, the Company agrees to sell and issue to such Limited Partners, and as the Purchaser hereunder, such Limited Partners would agree to purchase from the Company, on a pro rata basis in accordance with their relative Equity Commitments (as defined in the Equity Commitment Letters) the shares of Class A Common Stock Purchaser has agreed to acquire hereunder.

 

1.2        Closing .

 

(a)         Subject to the satisfaction or waiver of the conditions set forth in this Agreement, the closing of the purchase and sale by the Purchaser of the Class A Common Stock referred to in Section 1.1 pursuant to this Agreement (the “ Closing ”) shall be held at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52 nd Street, New York, New York 10019, at 10:00 a.m. New York time on the date the Merger becomes effective, but subject to (x) the satisfaction or waiver of the conditions set forth in Section 1.3 and (y) the delivery of at least five (5) business days advance notice thereof to the Purchaser (the “ Closing Date ”).

 

(b)         Subject to the satisfaction or waiver on or prior to the Closing Date of the applicable conditions to the Closing in Section 1.3, at the Closing:

 

(1)      the Company will deliver to the Purchaser (i) certificates or, if requested by Purchaser, transfer agent account statements confirming book-entry issuances, representing the Class A Common Stock being purchased and (ii) all other documents, instruments and writings required to be delivered by the Company to the Purchaser pursuant to this Agreement or otherwise required in connection herewith; and

 

(2)      the Purchaser will deliver or cause to be delivered (i) to a bank account designated by the Company in writing at least two (2) business days prior to the Closing Date, the Purchase Price by wire transfer of immediately available funds and (ii) all other documents, instruments and writings required to be delivered by the Purchaser to the Company pursuant to this Agreement or otherwise required in connection herewith.

 

1.3         Closing Conditions .

 

(a)         The obligation of the Purchaser (or any Permitted Transferee of Purchaser if the obligation has been assigned to such Permitted Transferee pursuant to Section 6.8(b)), on the one hand, and the Company, on the other hand, to effect the Closing is subject to the satisfaction or

 

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written waiver by the Purchaser and the Company prior to the Closing of the following conditions:

 

(1)      no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by any Governmental Entity, and no Law shall be in effect restraining, enjoining, making illegal or otherwise prohibiting the consummation of the transactions contemplated by this Agreement; provided, however, that the party claiming such failure of condition shall have used its reasonable best efforts to prevent the entry of any such injunction or order and to appeal as promptly as possible any injunction or other order that may be entered;

 

(2)      the Merger, the Other Equity Financing and the Debt Financing shall have been consummated or shall be consummated substantially simultaneously with the Closing on, in the case of the Merger, the terms and conditions contemplated by the Merger Agreement (subject to any amendments, supplements, waivers or other modifications permitted by Section 3.9); provided, however, that the Purchaser shall not be entitled to rely on the failure of the condition set forth in this clause (2) for any purpose under this Agreement to the extent that all other conditions set forth herein have been satisfied and the failure of the condition set forth in this clause (2) is proximately caused by the failure of the Purchaser to deliver the Purchase Price hereunder; and

 

(3)      all applicable waiting periods (and any extension thereof) prescribed by the HSR Act shall have expired or shall have been terminated, and any applicable waiting periods (or extensions thereof) or approvals under any foreign antitrust, competition, financial regulatory, foreign investment or similar laws (i) necessary for the consummation of the transactions contemplated by this Agreement or (ii) required to be obtained pursuant to Section 8.1(b) of the Merger Agreement shall have expired, been terminated, been obtained, or made, as applicable.

 

(b)        The obligation of the Purchaser to effect the Closing is also subject to the satisfaction or written waiver by the Purchaser at or prior to the Closing of the following conditions:

 

(1)      (i) the representations and warranties of the Company set forth in this Agreement (other than Sections 2.1(a), 2.1(b), 2.1(c)(1), 2.1(d), 2.1(e) and 2.1(h)) shall be true and correct (disregarding all qualifications or limitations as to materiality or Company Material Adverse Effect) as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except to the extent that such representation or warranty speaks to an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect, and (ii) the representations and warranties of the Company set forth in Sections 2.1(a), 2.1(b), 2.1(c)(1), 2.1(d), 2.1(e), and 2.1(h) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except to the extent that such representation or warranty speaks to an earlier date, in which case as of such earlier date);

 

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(2)      the Company shall have performed in all material respects all obligations required to be performed by it pursuant to this Agreement prior to the Closing;

 

(3)      the Purchaser shall have received a certificate signed on behalf of the Company by a duly authorized person certifying to the effect that the conditions set forth in Section 1.3(a)(2), 1.3(b)(1), 1.3(b)(2), 1.3(b)(4), 1.3(b)(5), 1.3(b)(8) and 1.3(b)(9) have been satisfied;

 

(4)      there shall not have occurred any Company Material Adverse Effect;

 

(5)      the Class A Common Stock issued pursuant to this Agreement shall have been approved for listing on the Nasdaq Global Select Market, subject to official notice of issuance;

 

(6)      subject to Section 1.3(d), substantially contemporaneous with the Closing, the Company shall have reimbursed the reasonable out-of-pocket costs and expenses of the Purchaser and the Limited Partners incurred in connection with the transaction contemplated by this Agreement, including the Purchaser’s and the Limited Partners’ counsel, accountants, consultants and other advisors; provided that the aggregate of all such costs and expenses reimbursable by the Company shall not exceed $6,000,000;

 

(7)      subject to Section 1.3(d), substantially contemporaneous with the Closing, the Company shall have paid $6,250,000 to Purchaser or one or more of its Affiliates designated by the Purchaser in writing no later than two (2) business days prior to the Closing Date, by wire transfer of immediately available funds to an account or accounts designated by the Purchaser in writing no later than two (2) business days prior to the Closing Date;

 

(8)      the Board of Directors shall have taken all actions necessary, including expanding the Board of Directors by two (2) directors if necessary, to cause to be elected to the Board of Directors, effective immediately upon the Closing, the Initial North Island Designees (as defined below), and the Board of Directors shall have appointed, effective immediately upon the Closing, the Initial North Island Designees to the Strategy Committee (as defined below) and the Board of Directors shall have appointed, effective immediately upon the Closing, Robert Greifeld as Chairman of the Board of Directors, and the Purchaser shall have received evidence reasonably satisfactory to it of the taking of such actions;

 

(9)      the Board of Directors shall have taken all actions necessary and appropriate to form and appoint the Strategy Committee (as defined below) and cause such committee to have all the powers and authority as outlined in Section 4.4(d)(3), and the Purchaser shall have received evidence reasonably satisfactory to it of taking such actions; and

 

(10)      The Company shall have delivered a Secretary’s Certificate attaching copies of the Company’s certificate of incorporation and bylaws.

 

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(c)         The obligation of the Company to effect the Closing is also subject to the satisfaction or written waiver by the Company prior to the Closing of the following conditions:

 

(1)      the representations and warranties of the Purchaser set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except to the extent that such representation or warranty speaks of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, prevent or materially delay the consummation of the transactions contemplated by this Agreement or the ability of the Purchaser to fully perform its covenants and obligations under this Agreement;

 

(2)      the Purchaser shall have performed in all material respects all obligations required to be performed by it pursuant to this Agreement prior to the Closing; and

 

(3)      the Company shall have received a certificate signed on behalf of the Purchaser by a senior executive officer certifying to the effect that the condition set forth in Section 1.3(c)(1) and (2) has been satisfied.

 

(d)         The Purchaser will offset amounts for which it is entitled to at the Closing pursuant to Section 6.1 against the Purchase Price to be paid at the Closing.

 

ARTICLE II

 

REPRESENTATIONS AND WARRANTIES

 

2.1          Representations and Warranties of the Company .  Except as set forth (x) in the SEC Documents filed by the Company with the SEC, and publicly available, after December 31, 2015 and before the date of this Agreement, excluding any disclosures set forth in risk factors or any “forward looking statements” within the meaning of the Securities Act or the Securities Exchange Act of 1934, as amended, (the “ Exchange Act ”) or (y) in a correspondingly identified schedule attached hereto provided, that (a) the mere inclusion of an item in a correspondingly identified schedule as an exception to a representation or warranty shall not be deemed an admission by the Company that such item represents a material exception or fact, event or circumstance or that such item is reasonably likely to result in a Company Material Adverse Effect and (b) any item on one or more correspondingly identified schedules shall be deemed disclosed with respect to other sections of this Agreement and all other sections or subsections of the correspondingly identified schedules to the extent the relevance of such disclosure is reasonably apparent on its face notwithstanding the absence of a specific cross reference, the Company represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date (except to the extent made only as of a specified date in which case as of such date), that:

 

(a)         Organization and Authority .

 

(1)      The Company is a corporation duly organized and validly existing under the laws of the State of Delaware, has all requisite corporate power and authority to own its properties and conduct its business as presently conducted, is duly qualified to do

 

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business and is in good standing in all jurisdictions where its ownership or leasing of property or the conduct of its business requires it to be so qualified and where failure to be so qualified would, individually or in the aggregate, reasonably be expected to have Company Material Adverse Effect.  True and accurate copies of the Certificate of Incorporation and Bylaws, each as in effect as of the date of this Agreement, have been made available to the Purchaser prior to the date hereof.

 

(2)      Each material Company Subsidiary is duly organized and validly existing under the laws of its jurisdiction of organization, has all requisite corporate or other applicable entity power and authority to own its properties and conduct its business as presently conducted, is duly qualified to do business and is in good standing in all jurisdictions where its ownership or leasing of property or the conduct of its business requires it to be so qualified and where failure to be so qualified would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.  As used herein, “ Subsidiary ” means, with respect to any person, any corporation, partnership, joint venture, limited liability company or other entity (x) of which such person or a subsidiary of such person is a general partner or (y) of which a majority of the voting securities or other voting interests, or a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or persons performing similar functions with respect to such entity, is directly or indirectly owned by such person and/or one or more subsidiaries thereof; and “ Company Subsidiary ” means any Subsidiary of the Company. Except for the capital stock of, or other equity or voting interests in, those Subsidiaries set forth in the SEC Documents, the Company does not own, directly or indirectly, any capital stock of, or other equity or voting interests in, any person other than securities held in the ordinary course of the Company’s trading business.

 

(b)         Capitalization .

 

(1)      The authorized capital stock of the Company consists of (A) 1,440,000,000 shares of common stock, divided into (I) 1,000,000,000 shares of Class A Common Stock, par value $0.00001 per share, (II) 175,000,000 shares of Class B Common Stock, par value $0.00001 per share (“ Class B Common Stock ”), (III) 90,000,000 shares of Class C Common Stock, par value $0.00001 per share (“ Class C Common Stock ”), and (IV) 175,000,000 shares of Class D Common Stock, par value $0.00001 per share (“ Class D Common Stock ” and, together with the Class A Common Stock, the Class B Common Stock and the Class C Common Stock, the “ Common Stock ”), and (B) 50,000,000 shares of Preferred Stock, par value $0.00001 per share (the “ Preferred Stock ”).  As of the close of business on April 19, 2017 (the “ Capitalization Date ”), there were 40,667,276 shares of Class A Common Stock outstanding, zero shares of Class B Common Stock outstanding, 19,081,435 shares of Class C Common Stock outstanding, 79,610,490 shares of Class D Common Stock outstanding and zero shares of Preferred Stock outstanding.  As of the close of business on the Capitalization Date, (i) 10,923,319 shares of Class A Common Stock, zero shares of Class B Common Stock, zero shares of Class C Common Stock and zero shares of Class D Common Stock were reserved for issuance upon the exercise or payment of (A) stock options outstanding on such date (“ Company Stock Options ”) or (B) stock units (including restricted stock and

 

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restricted stock units) or other equity-based incentive awards granted pursuant to any plans, agreements or arrangements of the Company and outstanding on such date (collectively, the “ Company Stock Awards ”) and (ii) 453,066 shares of Class A Common Stock, zero shares of Class B Common Stock, zero shares of Class C Common Stock and zero shares of Class D Common Stock were held by the Company in its treasury.  All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.  From the Capitalization Date through and as of the date of this Agreement, no other shares of Common Stock or Preferred Stock have been issued other than shares of Common Stock issued in respect of the exercise of Company Stock Options or Company Stock Awards in the ordinary course of business.  The Company does not have outstanding shareholder purchase rights or “poison pill” or any similar arrangement in effect.

 

(2)      No bonds, debentures, notes or other indebtedness having the right to vote (or convertible into or exchangeable for, securities having the right to vote) on any matters on which the stockholders of the Company may vote (“ Voting Debt ”) are issued and outstanding.  Except (i) pursuant to any cashless exercise provisions of any Company Stock Options or pursuant to the surrender of shares to the Company or the withholding of shares by the Company to cover tax withholding obligations under Company Stock Options or Company Stock Awards, (ii) as set forth in Section 2.1(b)(1), (iii) Exchange Rights and (iv) the Other Equity Financing, the Company does not have and is not bound by any outstanding options, preemptive rights, rights of first offer, warrants, calls, commitments or other rights or agreements calling for the purchase or issuance of, or securities or rights convertible into, or exchangeable for, any shares of Common Stock or any other equity securities of the Company or Voting Debt or any securities representing the right to purchase or otherwise receive any shares of capital stock of the Company (including any rights plan or agreement) (collectively, “ Company Securities ”), or any obligations of the Company or any Company Subsidiary to make any payments based on the price or value of any Company Securities.  None of the Company or any Company Subsidiary is a party to any stockholders’ agreement, voting trust agreement or other similar agreement or understanding, except for the Stockholders Agreement and the limited liability company agreement of Virtu Financial LLC, relating to any Company Securities or any other agreement relating to the disposition, voting or dividends with respect to any Company Securities.

 

(c)         Authorization .

 

(1)      The Company has the corporate power and authority to enter into this Agreement and the other Transaction Documents and to carry out its obligations hereunder and thereunder.  The execution, delivery and performance of this Agreement and the other Transaction Documents by the Company and the consummation of the transactions contemplated hereby and thereby have been duly authorized by the board of directors of the Company (the “ Board of Directors ”).  This Agreement has been, and (as of the Closing) the other Transaction Documents will be, duly and validly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Purchaser, is, and (as of the Closing) each of the other Transaction Documents will be, a valid and binding obligation of the Company enforceable against the Company in

 

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accordance with its terms (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles).  No other corporate proceedings are necessary for the execution and delivery by the Company of this Agreement or the other Transaction Documents, the performance by it of its obligations hereunder or thereunder or the consummation by it of the transactions contemplated hereby or thereby.

 

(2)      Neither the execution and delivery by the Company of this Agreement or the other Transaction Documents, nor the consummation of the transactions contemplated hereby or thereby, nor compliance by the Company with any of the provisions hereof or thereof, will (A) violate, conflict with, result in a breach of any provision of, require notice, consent or approval pursuant to, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration of, or result in the creation of any Lien upon any of the material properties or assets of the Company or any Company Subsidiary under any of the terms, conditions or provisions of (i) the certificate of incorporation of the Company (as amended or modified from time to time prior to the date hereof, the “ Certificate of Incorporation ”) or bylaws of the Company (as amended or modified from time to time prior to the date hereof, the “ Bylaws ”) or the certificate of incorporation, charter, bylaws or other governing instrument of any Company Subsidiary or (ii) any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which the Company or any Company Subsidiary is a party or by which it may be bound, or to which the Company or any Company Subsidiary or any of the properties or assets of the Company or any Company Subsidiary may be subject, or (B) violate any law, statute, ordinance, rule, regulation, permit, franchise or any judgment, ruling, order, writ, injunction or decree applicable to the Company or any Company Subsidiary or any of their respective properties or assets, except in the case of clauses (A)(ii) and (B) for such violations, conflicts and breaches as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

(3)      Assuming the accuracy of the representations and warranties set forth in Section 2.2(b)(3), other than the securities or blue sky laws of the various states and approval or expiration of applicable waiting periods under the HSR Act or any foreign antitrust, competition, or similar laws, and the distribution of an information statement pursuant to, and expiration of the applicable waiting period under, Rule 14c-2 of the Exchange Act, no notice to, registration, declaration or filing with, exemption or review by, or authorization, order, consent or approval of any Governmental Entity, nor expiration or termination of any statutory waiting period, is necessary for the consummation by the Company of the transactions contemplated by this Agreement or the other Transaction Documents.

 

(d)         Sale of Securities .  Based in part on the Purchaser’s representations in Section 2.2, the offer and sale of the shares of Class A Common Stock under this Agreement is exempt from the registration and prospectus delivery requirements of the Securities Act and the rules and

 

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regulations promulgated thereunder.  Without limiting the foregoing, neither the Company nor, to the Knowledge of the Company, any other person authorized by the Company to act on its behalf, has engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offer or sales of the Class A Common Stock and neither the Company nor, to the Knowledge of the Company, any person acting on its behalf has made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the offering or issuance of Class A Common Stock under this Agreement to be integrated with prior offerings by the Company for purposes of the Securities Act that would result in none of Regulation D or any other applicable exemption from registration under the Securities Act to be available, nor will the Company take any action or steps that would cause the offering or issuance of the Class A Common Stock under this Agreement to be integrated with other offerings.

 

(e)         Status of Securities .  The shares of Class A Common Stock to be issued pursuant to this Agreement have been duly authorized by all necessary corporate action.  When issued and sold against receipt of the consideration therefor as provided in this Agreement, such securities will be validly issued, fully paid and nonassessable, will not be subject to preemptive rights of any other stockholder of the Company, and will effectively vest in the Purchaser good title to all such securities, free and clear of all Liens (other than restrictions arising under applicable securities Laws), except restrictions imposed by the Securities Act, Section 4.1 and any applicable state or foreign securities laws.  The rights, preferences, privileges, and restrictions of the Class A Common Stock are as stated in the Certificate of Incorporation.

 

(f)         SEC Documents; Financial Statements .

 

(1)      The Company has filed, on a timely basis, all required reports, proxy statements, forms, and other documents with the Securities and Exchange Commission (the “ SEC ”) since December 31, 2013 (collectively, the “ SEC Documents ”).  Each of the SEC Documents, as of its respective date complied in all material respects with the requirements of the Securities Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such SEC Documents, and, except to the extent that information contained in any SEC Document has been revised or superseded by a later filed SEC Document filed and publicly available prior to the date of this Agreement, none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

(2)      The Company (i) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) that are reasonably designed to ensure that material information relating to the Company, including its consolidated Subsidiaries, is made known to the individuals responsible for the preparation of the Company’s filings with the SEC and (ii) has disclosed, based on its most recent evaluation prior to the date of this Agreement, to the Company’s outside auditors and the Board of Director’s audit committee (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably

 

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likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.  As of the date of this Agreement, to the Knowledge of the Company, there is no reason that its outside auditors and its chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, without qualification, when next due.

 

(3)      There is no transaction, arrangement or other relationship between the Company and/or any of its Subsidiaries and an unconsolidated or other off-balance sheet entity that is required to be disclosed by the Company in its SEC Documents and is not so disclosed.

 

(4)      The financial statements of the Company and its consolidated Subsidiaries included in the SEC Documents (a) complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, in each case as of the date such SEC Document was filed, and (b) have been prepared in accordance with generally accepted accounting principles in the United States (“ GAAP ”) applied on a consistent basis during the periods involved (except as may be indicated in such financial statements or the notes thereto) and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows of the Company and its consolidated subsidiaries for the periods then ended (subject, in the case of unaudited statements, to the absence of footnote disclosures and normal audit adjustments).

 

(g)         Undisclosed Liabilities .  Except for (i) those liabilities that are reflected or reserved for in the consolidated financial statements of the Company included in its Annual Report on Form 10-K for the fiscal year ended December 31, 2016, (ii) liabilities incurred since December 31, 2016 in the ordinary course of business consistent with past practice, (iii) liabilities incurred pursuant to the transactions contemplated by this Agreement, the Registration Rights Agreement or the Merger Agreement, (iv) liabilities incurred pursuant to the terms of the Other Equity Financing, (v) liabilities incurred pursuant to the terms of the Debt Financing and (vi) liabilities that would not, individually and in the aggregate, reasonably be expected to have a Company Material Adverse Effect the Company and its Subsidiaries do not have any liabilities or obligations of any nature whatsoever (whether accrued, absolute, contingent or otherwise).

 

(h)         Brokers and Finders .  Neither the Company nor its Subsidiaries or any of their respective officers, directors, employees or agents has employed any broker or finder or incurred any liability for any financial advisory fees, brokerage fees, commissions or finder’s fees, and no broker or finder has acted directly or indirectly for the Company in connection with this Agreement or the issuance of shares of Class A Common Stock pursuant to this Agreement.

 

(i)         Litigation .  There is no action, suit, proceeding or investigation pending or, to the Knowledge of the Company, threatened (including “cease and desist” letters or invitations to

 

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take patent license) against, nor any outstanding judgment, order, writ or decree against, the Company or any of its Subsidiaries or any of their respective assets before or by any Governmental Entity which individually or in the aggregate have, or would reasonably be expected to have, a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is subject to any judgment, order or decree of any Governmental Entity.

 

(j)          Taxes .

 

(1)      Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, each of the Company and its Subsidiaries has timely filed all U.S. federal and state income, and all other material, Tax Returns required to have been filed, such Tax Returns were accurate in all material respects, and all Taxes due and payable by the Company have been timely paid, except for (i) those for which extensions have been obtained and (ii) those which are being contested in good faith and by appropriate proceedings and in respect of which adequate reserves with respect thereto are maintained in accordance with GAAP.

 

(2)      Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no material deficiencies, litigation, audit, proposed adjustments or matters in controversy exist or have been asserted with respect to Taxes of the Company or any of its Subsidiaries.  No examination or audit of any Tax Return relating to any Taxes of the Company or any of its Subsidiaries or with respect to any Taxes due from or with respect to the Company or any of its Subsidiaries by any taxing authority is currently in progress or, to the Knowledge of the Company, threatened in writing, except for such examinations and audits as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

(3)      Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) no claim has been made by any Governmental Entity in a jurisdiction where the Company and any of its Subsidiaries does not file Tax Returns that the Company or any of its Subsidiaries is or may be subject to material Tax by that jurisdiction, and (ii) there are no Liens with respect to Taxes upon any of the assets of the Company or any of its Subsidiaries.

 

(4)     Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (x) each of the Company and its Subsidiaries have paid in full, or made adequate provision on the audited consolidated statement of financial condition of the Company and its Subsidiaries as of December 31, 2016 for the year then ended (the “ Company Balance Sheet ”) (in each case, in accordance with U.S. GAAP) for, all Taxes with respect to periods ending on or before the date of the Company Balance Sheet, except, in each case, with respect to Taxes contested in good faith; and (y) each of the Company and its Subsidiaries have paid in full or made adequate provision on their books and records for all Taxes with respect to periods on or ending after the date of the Company Balance Sheet and prior to the Closing Date.

 

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(5)      Neither the Company nor any of its Subsidiaries has (I) engaged in, or has any material liability or material obligation with respect to, any “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4 or (II) taken any reporting position on a Tax Return, which reporting position (x) if not sustained would be reasonably likely, absent disclosure, to give rise to a penalty for substantial understatement of federal income Tax under Section 6662 of the Code (or any similar provision of state, local, or non-U.S. Tax law), and (y) has not adequately been disclosed on such Tax Return in accordance with Section 6662(d)(2)(B) of the Code (or any similar provision of state, local, or non-U.S. Tax law).

 

(k)          Permits and Licenses .  The Company and its Subsidiaries possess all licenses, certificates, authorizations and permits issued by each Governmental Entity necessary to conduct their respective businesses, except where the failure to possess such licenses, certificates, authorizations and permits would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.

 

(l)         Environmental Matters .  The Company and its Subsidiaries are in compliance with all, and for the past five (5) years have not violated any, applicable Environmental Laws except where failure to be in such compliance would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.  Neither the Company nor any of its Subsidiaries has released Materials of Environmental Concern in a manner that would reasonably be expected to result in liability to any of them or that would reasonably be expected to adversely affect any of their operations and, to the Knowledge of the Company, Materials of Environmental Concern are not present at, under, in or affecting any Property currently or formerly owned, leased or used by the Company or any of its Subsidiaries, or at any location to which Materials of Environmental Concern have been sent for re-use or recycling or for treatment, storage or disposal, that would reasonably be expected to give rise to liability of or adversely affect the operations of the Company or any of its Subsidiaries, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

(m)         Title .  Each of the Company and its Subsidiaries has good and marketable title to its Property that is owned real property, has, to the Knowledge of the Company, valid leases to its Property that is leased real property, and good and valid title to all of its other Property (other than negligible assets not material to the operations of the Company or any of its Subsidiaries), except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

(n)         Intellectual Property .  Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect (i) the Company or its Subsidiaries exclusively own, free and clear of all Liens (other than licenses of Intellectual Property and any restriction or covenant associated with any license of Intellectual Property), all (a) Intellectual Property registrations and applications filed in their names that have not expired or been abandoned, which such registrations are subsisting and unexpired, and to the Knowledge of the Company, valid and enforceable and (b) of the other Intellectual Property used in the conduct of the businesses of the Company or its Subsidiaries that is not used pursuant to a license; provided, however, the foregoing representation in Section 2.1(n)(i) is subject to the

 

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Knowledge of the Company with respect to patents and other Intellectual Property owned by third parties under which a license may be needed to practice any such Intellectual Property; (ii) to the Knowledge of the Company:  the conduct of the businesses of Company and its Subsidiaries does not materially infringe the Intellectual Property of any third party, and no person is materially infringing any Intellectual Property owned by the Company or its Subsidiaries; (iii) the Company and its Subsidiaries take reasonable actions to protect the material trade secrets and confidential information owned by the Company or its Subsidiaries and the security and operation of their material software, websites and systems (and the data therein), and (iv) to the Knowledge of the Company there have been no material breaches or outages of the same.

 

(o)         Employee Benefits/Labor .

 

(1)      Except as would not reasonably be expected, individually or in the aggregate, to result in a Company Material Adverse Effect, (A) each Plan complies with, and has been operated and administered in compliance with, its terms and all applicable Laws (including, without limitation ERISA and the United States Internal Revenue Code of 1986, as amended (the “ Code ”)), (B) the Company and each of its Subsidiaries have filed all reports, returns, notices, and other documentation required by ERISA, the Code or other applicable Law to be filed with any Governmental Entity with respect to each Plan, (C) with respect to any Plan, no actions, Liens, lawsuits, claims or complaints (other than routine claims for benefits, appeals of such claims and domestic relations order proceedings) are pending or, to the Knowledge of the Company, threatened, and no facts or circumstances exist that would reasonably be expected to give rise to any such actions, Liens, lawsuits, claims or complaints, and (D) no event has occurred with respect to a Plan which would reasonably be expected to result in a liability of the Company or any of its Subsidiaries to any Governmental Entity.  Neither the Company, its Subsidiaries, nor any other entity which, together with the Company or its Subsidiaries, would be treated as a single employer under Section 4001 of ERISA or Section 414 of the Code, has at any time during the last six (6) years maintained, sponsored or contributed to any employee benefit plan that is subject to Title IV of ERISA, including, without limitation, any “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA).

 

(2)      Except as would not reasonably be expected, individually or in the aggregate, to result in a Company Material Adverse Effect, none of the execution of, or the completion of the transactions contemplated by, this Agreement (whether alone or in connection with any other event(s)), could result in (A) severance pay or an increase in severance pay upon termination after Closing to any current or former employee of the Company or its Subsidiaries, (B) any payment, compensation or benefit becoming due, or increase in the amount of any payment, compensation or benefit due, to any current or former employee of the Company or its Subsidiaries, (C) acceleration of the time of payment or vesting or result in funding of compensation or benefits to any current or former employee of the Company or its Subsidiaries, (D) any new material obligation under any Plan, (E) any limitation or restriction on the right of Company to merge, amend, or terminate any Plan, or (F) any payments which would not be deductible under Section 280G of the Code or subject to Tax under Section 4999 of the Code (in each case, without giving effect to any of the transactions contemplated by the Merger Agreement).  

 

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No Plan provides for reimbursement or gross-up of any excise tax under Section 409A or Section 4999 of the Code.

 

(3)      Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, as of the date of this Agreement:  (A) the Company and each of its Subsidiaries is not a party to any collective bargaining agreement or other contract or agreement with any labor organization or other representative of any of the employees of the Company or any Subsidiary, nor is any such contract or agreement presently being negotiated; (B) to the Knowledge of the Company, no campaigns are being conducted to solicit cards from any of the employees of the Company or any of its Subsidiaries to authorize representation by any labor organization, and no such campaigns have been conducted within the past three years; (C) no labor strike, slowdown, work stoppage, dispute, lockout or other labor controversy is in effect or, to the Knowledge of the Company, threatened in writing, and neither the Company nor any of its Subsidiaries has experienced any such labor controversy within the past three years; (D) no unfair labor practice charge or complaint is pending or, to the Knowledge of the Company, threatened in writing with respect to any employment practices of the Company or any of its Subsidiaries; (E) no action, complaint, charge, inquiry, proceeding or investigation by or on behalf of any current or former employee, labor organization or other representative of the employees of the Company or any of its Subsidiaries (including persons employed jointly by such entities with any other staffing or other similar entity) is pending or, to the Knowledge of the Company, threatened in writing; (F) the Company and each of its Subsidiaries are in compliance with all applicable laws, agreements, contracts, policies, plans and programs relating to employment, employment practices, compensation, benefits, hours, terms and conditions of employment, and the termination of employment, including any obligations pursuant to the Worker Adjustment and Retraining Notification Act of 1988, as amended, the classification of employees as exempt or non-exempt from overtime pay requirements, the provision of meal and rest breaks and pay for all working time, and the proper classification of individuals as non-employee contractors or consultants; and (G) the Company and each of its Subsidiaries is in compliance with all applicable Law relating to child labor, forced labor and involuntary servitude.

 

(p)         Indebtedness .  Neither the Company nor any of its Subsidiaries is, immediately prior to the execution and delivery of this Agreement, or will be, at the time of the Closing after giving effect thereto, in default in the payment of any material indebtedness or in default under any agreement relating to its material indebtedness.

 

(q)         Registration Rights .  Except as provided in the Registration Rights Agreement, the Company has not granted or agreed to grant, and is not under any obligation to provide, any rights to register under the Securities Act any of its presently outstanding securities or any of its securities that may be issued subsequently.

 

(r)         Compliance with Laws .  

 

(1)      Neither the Company nor any of its Subsidiaries is, or since December 31, 2013 has been, in violation of any applicable Law, except where such violation would not, individually or in the aggregate, reasonably be expected to have a Company Material

 

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Adverse Effect.  The Company has not received notice from any Governmental Entity inquiring about or asserting any violation of any applicable Law, or received notice from any Governmental Entity that it is or has been subject to any adverse inspection, examination, finding of deficiency, finding of noncompliance, penalty, fine, sanction, assessment, audit, request for corrective or remedial action, or other supervisory, compliance or enforcement action by any Governmental Entity and, to the Knowledge of the Company as of the date of this Agreement, neither the Company nor any of its Subsidiaries is being investigated with respect to any applicable Law, except for such of the foregoing as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

(2)      Each Subsidiary of the Company that is a U.S. broker dealer is duly registered under the Exchange Act as a broker dealer with the SEC, and is in compliance with the applicable provisions of the Exchange Act, including the net capital requirements and customer protection requirements thereof, except as would not be expected to be material to the Company or its Subsidiaries, taken as a whole.

 

(3)      None of the Company, any Subsidiary nor any of their respective employees, associated persons and/or related persons or officers engaged in or responsible for the business of the Company or its Subsidiaries, is or has been since December 31, 2013 adjudged or, to the Knowledge of the Company, is under current investigation or proceeding, whether preliminary or otherwise, for “statutory disqualification” as defined in Section 3(a)(39) of the Exchange Act or is subject to any of the events set forth in Rule 1014(a)(3)(A) and (C) through (E) of the former National Association of Securities Dealers, Inc., and none of such officers, associated persons or employees and/or related persons is subject to heightened supervision under the rules, regulations, ordinances or by-laws of any Governmental Entity.

 

(s)         Absence of Changes .  Since December 31, 2016, there has not been any action or omission of the Company or any of its Subsidiaries that, if such action or omission occurred between the date of this Agreement and the Closing Date, would violate Sections 3.7(a), 3.7(b), 3.7(c), 3.7(d) or 3.7(e).

 

(t)         Illegal Payments; FCPA Violations .  None of the Company, any of its Subsidiaries, nor, to the Knowledge of the Company, any director, officer, agent or employee of the Company or any of its Subsidiaries has, except as would not, individually or in the aggregate, reasonably be expected to result in material liability, fine or judgment to the Company and its Subsidiaries, determined on a consolidated basis: (i) paid, caused to be paid, agreed to pay, or offered, directly or indirectly, in connection with the business of the Company, any payment or gift given to any person acting in an official capacity for any Governmental Entity, to any political party or official thereof, or to any candidate for political office (each, a “ Government Official ”) with the purpose of (w) influencing any act or decision of such Government Official in his official capacity; (x) inducing such Government Official to perform or omit to perform any activity related to his legal duties; (y) securing any improper advantage; or (z) inducing such Government Official to influence or affect any act or decision of any Governmental Entity, in each case, in order to assist the Company or its Affiliates in obtaining or retaining business for or with, or in directing business to, the Company or its Affiliates; (ii) made any illegal contribution

 

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to any political party or candidate; or (iii) intentionally established or maintained any unrecorded fund or asset or made any false entries on any books or records for any purpose.  Without limiting any of the foregoing, neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any director, officer, agent or employee of the Company or any of its Subsidiaries has taken any action that would violate the U.S. Foreign Corrupt Practices Act, except for such violations that would not, individually or in the aggregate, be material to the Company.  Further, neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any director, officer, agent or employee of the Company or any of its Subsidiaries has taken any action that would violate the UK Bribery Act 2010 or any other applicable anti-bribery law, nor has paid, caused to be paid, agreed to pay, or offered, directly or indirectly, in connection with the business of the Company, any bribe, kickback, other similar illegal payment or gift, to any supplier or customer, except, in each case, for such violations as would not, individually or in the aggregate, have a Company Material Adverse Effect.

 

(u)         Economic Sanctions .  Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, the Company is not in contravention of and has not engaged in any conduct sanctionable under U.S. economic sanctions laws, including laws administered and enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, 31 C.F.R. Part V, the Iran Sanctions Act, the Comprehensive Iran Sanctions, Accountability and Divestment Act, the Iran Threat Reduction and Syria Human Rights Act, the Iran Freedom and Counter-Proliferation Act of 2012, and any executive order issued pursuant to any of the foregoing.

 

(v)         Listing and Maintenance Requirements .  The Class A Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to, or which to the Knowledge of the Company is reasonably likely to, have the effect of, terminating the registration of the Class A Common Stock under the Exchange Act nor has the Company received as of the date of this Agreement any notification that the SEC is contemplating terminating such registration.

 

(w)         No Additional Representations .  Except for the representations and warranties made by the Purchaser in Section 2.2, the Company hereby acknowledges that neither the Purchaser nor any other person makes any express or implied representation or warranty with respect to the Purchaser or any of its Affiliates and the Purchaser disclaims any such other representations or warranties.  Notwithstanding anything to the contrary herein, nothing in this Agreement shall limit the right of the Purchaser and its Affiliates to rely on the representations, warranties, covenants and agreements expressly set forth in this Agreement or in any certificate delivered pursuant hereto, nor will anything in this Agreement operate to limit any claim by the Purchaser or any of its Affiliates for intentional fraud with respect to the representations and warranties set forth herein.  The Company, on behalf of itself and on behalf of its Affiliates, expressly waives any such claim relating to the foregoing matters, except with respect to intentional fraud with respect to the representations and warranties set forth herein. 

 

2.2         Representations and Warranties of the Purchaser .  The Purchaser hereby represents and warrants to the Company, as of the date hereof and as of the Closing Date (except to the extent made only as of a specified date in which case as of such date),that:

 

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(a)         Organization and Authority .   The Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, is duly qualified to do business and is in good standing in all jurisdictions where its ownership or leasing of property or the conduct of its business requires it to be so qualified and where failure to be so qualified would reasonably be expected to materially and adversely affect the Purchaser’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis, and the Purchaser has the corporate or other power and authority and governmental authorizations to own its properties and assets and to carry on its business as it is now being conducted.

 

(b)         Authorization .

 

(1)      The Purchaser has the corporate or other power and authority to enter into this Agreement and to carry out its obligations hereunder.  The execution, delivery and performance of this Agreement by the Purchaser and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of the Purchaser, and no further approval or authorization by any of its stockholders, partners, members or other equity owners, as the case may be, is required.  This Agreement has been duly and validly executed and delivered by the Purchaser and assuming due authorization, execution and delivery by the Company, is a valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles).

 

(2)      Neither the execution, delivery and performance by the Purchaser of this Agreement, nor the consummation of the transactions contemplated hereby, nor compliance by the Purchaser with any of the provisions hereof, will (A) violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration of, or result in the creation of any Lien upon any of the properties or assets of the Purchaser under any of the terms, conditions or provisions of (i) its governing instruments or (ii) any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which the Purchaser is a party or by which it may be bound, or to which the Purchaser or any of the properties or assets of the Purchaser may be subject, or (B) subject to compliance with the statutes and regulations referred to in the next paragraph, violate any law, statute, ordinance, rule or regulation, permit, concession, grant, franchise or any judgment, ruling, order, writ, injunction or decree applicable to the Purchaser or any of their respective properties or assets except in the case of clauses (A)(ii) and (B) for such violations, conflicts and breaches as would not reasonably be expected to materially and adversely affect the Purchaser’s ability to perform its respective obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis.

 

(3)      Other than the securities or blue sky laws of the various states, and approval or expiration of applicable waiting periods under the HSR Act no notice to,

 

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registration, declaration or filing with, exemption or review by, or authorization, order, consent or approval, nor expiration or termination of any statutory waiting period, of any U.S. federal, state or local Governmental Entity is necessary for the consummation by the Purchaser of the transactions contemplated by this Agreement.  To the best of Purchaser’s actual knowledge as of the date hereof, except as set forth on Schedule 2.2(b) , no notice to, registration, declaration or filing with, exemption or review by, or authorization, order, consent or approval, nor expiration or termination of any statutory waiting period, of any Governmental Entity (other than any U.S. federal, state or local Governmental Entity) is necessary for the consummation by the Purchaser of the transactions contemplated by this Agreement.

 

(c)         Purchase for Investment .  The Purchaser acknowledges that the Class A Common Stock to be issued pursuant to this Agreement have not been registered under the Securities Act or under any state securities laws.  The Purchaser (1) acknowledges that it is acquiring the Class A Common Stock to be issued pursuant to this Agreement pursuant to an exemption from registration under the Securities Act solely for investment with no present intention to distribute any of the Class A Common Stock to be issued pursuant to this Agreement to any person in violation of applicable securities laws, (2) will not sell or otherwise dispose of any of the Class A Common Stock to be issued pursuant to this Agreement, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other applicable securities laws, (3) has such knowledge and experience in financial and business matters and in investments of this type that it is capable of evaluating the merits and risks of its investment in the Class A Common Stock and of making an informed investment decision, (4) is an “accredited investor” (as that term is defined by Rule 501 of the Securities Act), and (5) (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the Class A Common Stock, (B) has had an opportunity to discuss with management of the Company the intended business and financial affairs of the Company and to obtain information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access and (C) can bear the economic risk of (x) an investment in the Class A Common Stock indefinitely and (y) a total loss in respect of such investment.  The Purchaser has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the Class A Common Stock and to protect its own interest in connection with such investment.

 

(d)         Financial Capability .  The Purchaser currently has capital commitments sufficient to, and at the Closing will have available funds necessary to, consummate the Closing on the terms and conditions contemplated by this Agreement.  The Purchaser is not aware of any reason why the funds sufficient to fulfill its obligations under Article I will not be available on the Closing Date upon request of the Limited Partners. In no event shall the receipt or availability of funds, capital or capacity be a condition to the Purchaser’s obligations under this Agreement. The Purchaser has furnished to the Company a true and complete copy of each commitment letter (collectively, the “Equity Commitment Letters”), dated as of the date hereof, entered into by and among the Purchaser, the Company and each Limited Partner (excluding Exhibit E thereto).

 

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(e)         Brokers and Finders .  Except for Centerview Partners LLC, neither the Purchaser nor its Affiliates or any of their respective officers, directors, employees or agents has employed any broker or finder for which the Company will incur any liability for any financial advisory fees, brokerage fees, commissions or finder’s fees.

 

(f)         No Additional Company Representations . Except for the representations and warranties made by the Company in Section 2.1, the Purchaser hereby acknowledges that neither the Company nor any other person makes any express or implied representation or warranty with respect to the Company or its Subsidiaries or their respective businesses, operations, assets, liabilities, employees, employee benefit plans, conditions or prospects, and the Company disclaims any such other representations or warranties.  In particular, without limiting the foregoing disclaimer, the Purchaser hereby acknowledges that neither the Company nor any other person makes or has made any representation or warranty to the Purchaser, or any of its Affiliates or representatives, with respect to (i) any financial projection, forecast, estimate, budget or prospect information relating to the Company or any of its Subsidiaries or their respective business, or (ii) except for the representations and warranties made by the Company in Section 2.1, any oral or written information presented to the Purchaser or any of its Affiliates or representatives in the course of their due diligence investigation of the Company, the negotiation of this Agreement or in the course of the transactions contemplated hereby.  Subject to the final sentence of Section 5.6, the Purchaser, on behalf of itself and on behalf of its Affiliates, expressly waives any such claim relating to the foregoing matters, except with respect to intentional fraud with respect to the representations and warranties set forth herein. The Purchaser hereby acknowledges (for itself and on behalf of its Affiliates and representatives) that it has conducted, to its satisfaction, its own independent investigation of the business, operations, assets and financial condition of the Company and its Subsidiaries and, in making its determination to proceed with the transactions contemplated hereby, the Purchaser and its Affiliates have relied on the results of their own independent investigation.

 

ARTICLE III

 

COVENANTS

 

3.1         Filings; Other Actions .  During the period commencing on the date hereof and terminating on the earlier to occur of (a) the Closing and (b) the termination of this Agreement in accordance with the provisions hereof (the “ Pre-Closing Period ”), each of the Purchaser, on the one hand, and the Company, on the other hand, will cooperate and consult with the other and use reasonable best efforts to prepare and file all necessary documentation, to effect all necessary applications, notices, petitions, filings and other documents, and to obtain all necessary permits, consents, orders, approvals and authorizations of, or any exemption by, all third parties and Governmental Entities, and the expiration or termination of any applicable waiting period, necessary or advisable to consummate the transactions contemplated by this Agreement, and to perform the covenants contemplated by this Agreement.  Each party shall execute and deliver both before and after the Closing such further certificates, agreements and other documents and take such other actions as the other parties may reasonably request to consummate or implement such transactions or to evidence such events or matters.  In particular, if required, the Purchaser

 

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and the Company shall use all reasonable best efforts to prepare and submit (i) a Notification and Report Form pursuant to the Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), as promptly as practicable following the date hereof (and in any event within ten (10) business days of the date hereof) and (ii) all necessary documentation to effect any approvals or terminations of waiting periods, if required, under any foreign antitrust, competition, or similar laws as promptly as practicable following the date hereof , in each case with respect to the transactions contemplated hereby, including the issuance of Class A Common Stock. The Purchaser and the Company will use, and will use reasonable best efforts to cause their respective Affiliates to use, reasonable best efforts to obtain all necessary permits, consents, orders, approvals and authorizations of, or any exemption by, all third parties and Governmental Entities, and the expiration or termination of any applicable waiting period, necessary or advisable to consummate the transactions contemplated by this Agreement, and to perform the covenants contemplated by this Agreement. The Purchaser and the Company will have the right to review in advance, and to the extent practicable each will consult with the other, in each case subject to applicable laws relating to the exchange of information, all the information relating to such other party, and any of their respective Affiliates, which appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement or the Merger Agreement. In exercising the foregoing right, each of the parties hereto agrees to act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement or the Merger Agreement, and each party will keep the other party apprised promptly of the status of filings and applications, including communications with Governmental Entities that cause such party to believe that there is a reasonable likelihood that any necessary permits, consents, orders, approvals and authorizations of, or any exemption by, all third parties and Governmental Entities, and the expiration or termination of any applicable waiting period, necessary or advisable to consummate the transactions contemplated by this Agreement and by the Merger Agreement, and to perform the covenants contemplated by this Agreement will not be obtained or that the receipt of any such approval will be delayed, and all other matters relating to completion of the transactions contemplated hereby. Each party shall consult with the other party in advance of any meeting or conference with any Governmental Entity in respect of the transactions contemplated by this Agreement.

 

3.2         Reasonable Best Efforts to Close .  During the Pre-Closing Period, the Company and the Purchaser will use reasonable best efforts in good faith to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary under applicable laws so as to permit consummation of the transactions contemplated hereby as promptly as practicable and otherwise to enable consummation of the transactions contemplated hereby and shall cooperate reasonably with the other party hereto to that end, including in relation to the satisfaction of the conditions to Closing set forth in Sections 1.3(a), (b) and (c) and cooperating in seeking to obtain any consent required from Governmental Entities.

 

3.3         Corporate Actions .  In the event that, at or prior to the Closing, (a) the number of shares of Common Stock or securities convertible or exchangeable into or exercisable for shares of Common Stock issued and outstanding is changed as a result of any reclassification, stock split (including reverse split), stock dividend or distribution (including any dividend or

 

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distribution of securities convertible or exchangeable into or exercisable for shares of Common Stock), merger, tender or exchange offer or other similar transaction, or (b) the Company fixes a record date that is at or prior to the Closing Date for the payment of any non-stock dividend or distribution on the Common Stock, or other matter described in clause (a) above, other than regular quarterly cash dividends consistent with past practice, then at the Purchaser’s option, which may be exercised in the Purchaser’s sole discretion, the number of shares of Common Stock to be issued to the Purchaser at the Closing under this Agreement shall be equitably adjusted and/or the shares of Common Stock to be issued to the Purchaser at the Closing under this Agreement shall be equitably substituted with shares of other stock or securities or property (including cash), in each case, to provide the Purchaser with substantially the same economic benefit from this Agreement as the Purchaser had prior to the applicable transaction.  Notwithstanding anything in this Agreement to the contrary, in no event shall the Purchase Price or any component thereof be changed by the foregoing.

 

3.4        Information Rights .

 

(a)         For so long as the North Island Parties Beneficially Own shares of Class A Common Stock that represent at least 10%, in the case of clauses (1) and (2), or 25%, in the case of clause (3), of the number of shares of Class A Common Stock Beneficially Owned by the North Island Parties as of the Closing:  (1) the Company shall provide the Purchaser Representative with unaudited monthly (as soon as available) manager financial statements, quarterly (as soon as available) financial statements and audited (by a nationally recognized accounting firm) annual (as soon as available) financial statements, in each case, prepared in accordance with GAAP as in effect from time to time, which statements shall include the consolidated balance sheets of the Company and its Subsidiaries and the related consolidated statements of income, shareholders’ equity and cash flows; (2) the Company shall permit the Purchaser Representative and any authorized representative of Coral Blue Investment Pte. Ltd. and Public Sector Pension Investment Board  or authorized representative of the Purchaser designated by Purchaser reasonable access to visit and inspect any of the properties of the Company or any of its Subsidiaries, including its and their books of account and other records, and to discuss the Company’s or its subsidiaries’ affairs, finances and accounts with its and their officers (including two (2) discussions per year with the Company’s Chief Executive Officer and Chief Financial Officer in which an authorized representative of Coral Blue Investment Pte. Ltd. and Public Sector Pension Investment Board shall be entitled to participate), all upon reasonable notice and at such reasonable times during normal business hours and as often as the Purchaser Representative may reasonably request, in any event not more than once per fiscal quarter and (3) the Company shall provide to the Purchaser and any authorized representative of Coral Blue Investment Pte. Ltd. and Public Sector Pension Investment Board all written information that is provided to the Board of Directors at substantially the same time at which such information is first delivered or otherwise made available in writing to the Board of Directors; provided that prior to any authorized representative of Coral Blue Investment Pte. Ltd. or Public Sector Pension Investment Board participating in any visit or inspection pursuant to clause (2) above or receiving any materials pursuant to clause (3) above, each of Coral Blue Investment Pte. Ltd. and Public Sector Pension Investment Board shall enter into a confidentiality agreement with the Company with terms no less restrictive than those of Section 3.5. Any investigation pursuant to this Section 3.4 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the Company and its Subsidiaries.

 

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(b)         Nothing herein shall require the Company or any of its Subsidiaries to disclose any information to the extent (i) prohibited by applicable Law, (ii) that the Company reasonably believes such information to be competitively sensitive or proprietary information or (iii) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any of its Subsidiaries is a party or would cause a risk of loss of privilege to the Company or any of its Subsidiaries (provided that the Company shall use reasonable best efforts to make appropriate substitute arrangements under circumstances where the restrictions in clauses (i), (ii) and/or (iii) apply).

 

3.2         Confidentiality .  Each party to this Agreement will hold, and will cause its respective Affiliates and their respective directors, managers, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary in connection with any necessary regulatory approval, examination or inspection or unless disclosure is required by judicial or administrative process or by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange (in which case, other than in connection with a disclosure in connection with a routine audit or examination by, or document request from, a regulatory or self-regulatory authority, bank examiner or auditor, the party disclosing such information shall provide the other party with prior written notice of such permitted disclosure), all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “ Information ”) concerning the other party hereto furnished to it by or on behalf of such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party from other sources, provided that such source was not known, after reasonable inquiry and investigation, by such party to be bound by a contractual, legal or fiduciary obligation of confidentiality to the other party, (2) in the public domain through no violation of this Section 3.5 by such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, financing sources and other consultants and advisors.

 

3.6         State Securities Laws .  During the Pre-Closing Period, the Company shall use its reasonable best efforts to (a) obtain all necessary permits and qualifications, if any, or secure an exemption therefrom, required by any state or country prior to the offer and sale of Class A Common Stock and (b) cause such authorization, approval, permit or qualification to be effective as of the Closing.

 

3.7         Negative Covenants .  During the Pre-Closing Period, the Company and its Subsidiaries shall use their reasonable best efforts to operate their businesses in the ordinary course (provided that the Company and its Subsidiaries shall be permitted to take all actions required to consummate the Merger, the Other Equity Financing and the Debt Financing), and, except as contemplated by this Agreement or set forth on Schedule 3.7 , without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), shall not:

 

(a)         declare, or make payment in respect of, any dividend or other distribution upon any shares of capital stock of the Company, other than regular quarterly cash dividends on shares of Class A Common Stock (not to exceed $0.24 per share);

 

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(b)         redeem, repurchase or acquire any capital stock of the Company or any of its Subsidiaries, other than repurchases of capital stock from employees, officers or directors of the Company or any of its Subsidiaries in the ordinary course of business pursuant to any of the Company’s agreements or plans in effect as of the date hereof;

 

(c)         amend the Certificate of Incorporation or Bylaws in a manner that would affect the Purchaser in an adverse manner either as a holder of Class A Common Stock or with respect to the rights of the Purchaser under this Agreement or the Registration Rights Agreement;

 

(d)         authorize, issue or reclassify any capital stock, or securities exercisable for, exchangeable for or convertible into capital stock, of the Company other than (i) the authorization and issuance of the Class A Common Stock under this Agreement and the Other Equity Financing and (ii) issuances of capital stock, or securities exercisable for, exchangeable for or convertible into capital stock, of the Company to employees, officers and directors of the Company or any of its Subsidiaries in the ordinary course of business pursuant to any of the Company’s agreements or plans in effect as of the date hereof; or

 

(e)         make, change or revoke any material Tax election, file any U.S. federal or state income, or any other material amended Tax Return, settle or compromise any material claim, action, proceeding or assessment for Taxes, change any method of Tax accounting, enter into any closing agreement with respect to Taxes or make or surrender any material claim for a refund of Taxes, in each case except (i) as required by applicable Tax Law or (ii) consistent with past practice,

 

provided that, notwithstanding any other provision herein, any consent of the Purchaser pursuant to Section 3.7(b) with respect to repurchases under the Company’s repurchase program, as in effect on the date hereof or adopted hereafter, may be given orally or through electronic submission, including by email.

 

3.8         Certain Statutory and Corporate Matters .  The Board of Directors has taken all necessary action so that any business combination, takeover, anti-takeover, moratorium, “fair price”, “control share” or other similar Law enacted under any Law applicable to the Company does not, and will not, apply to this Agreement or the transactions contemplated hereby.

 

3.9         Merger Agreement Matters .  At or prior to the Closing, the Company shall not, without the prior written consent of the Purchaser, make or agree to make any amendments, supplements, waivers or other modifications to any provision of the Merger Agreement that are material or would adversely affect the Purchaser (including, for the avoidance of doubt, (i) any change to the mix or amount of the merger consideration, (ii) any changes to the definition of “Company Material Adverse Effect” and (iii) any extensions of the Outside Date (as defined in the Merger Agreement)) or waive any closing conditions under the Merger Agreement.  Without limiting the foregoing, the Company shall keep the Purchaser reasonably informed regarding the transactions contemplated by the Merger Agreement and the Debt Financing Commitment (as defined in the Merger Agreement), including the expected timing of the Closing and any developments that would reasonably be expected, individually or in the aggregate, to materially delay the Closing or make the Closing unlikely to occur; provided, however, that in any event the Company shall provide the Purchaser with no less than five (5) business days’ written notice of

 

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the Closing Date.  Prior to any mailing by the Company or Target of any information statement or proxy statement of the Company or Target to stockholders of the Company or Target (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide the Purchaser with an opportunity to review and comment on such information statement or proxy statement or response (including the proposed final version of such information statement or proxy statement or response), (ii) shall, and shall use reasonable best efforts to cause Target to, consider in good faith all comments reasonably proposed by the Purchaser and (iii) shall not include in any such information statement or proxy statement any reference to the Purchaser, the other North Island Parties or any of their respective Affiliates except to the extent such reference is in a form previously approved in writing by the Purchaser.

 

3.10         Use of Proceeds .  The Company shall use the proceeds of the transactions contemplated by this Agreement exclusively to fund the payment of the cash Merger Consideration (as defined in the Merger Agreement) pursuant to the Merger Agreement at the Closing (as defined in the Merger Agreement), refinance indebtedness of the Company, Target or their respective Subsidiaries and finance certain costs and expenses incurred in connection with the transaction contemplated by this Agreement.

 

3.11         Tax Matters .  For so long as the North Island Parties Beneficially Own shares of Class A Common Stock that represent at least 25% of the number of shares of Common Stock Beneficially Owned by the North Island Parties as of the Closing,  (i) the Company agrees to provide the North Island Parties with written notice in accordance with Section 6.6 five (5) business days in advance of any redemption or repurchase of shares of Class A Common Stock and the North Island Parties shall be entitled to elect to participate in any such redemption or repurchase by notice to the Company within three (3) business days of receipt of such notice provided , that this provision shall not apply to any redemption of Class A Common Stock (A) conducted pursuant to a publicly announced share buyback program by the Company or (B) from former employees of the Company or any subsidiary of the Company, (ii) the Company and the Purchaser agree to cooperate with each other and to use good faith efforts to structure any distribution by the Company (an “Extraordinary Distribution”) that is greater than 130% of the average amount of dividends received in respect of such Class A Common Stock by the Purchaser during the 3 preceding years  (a “Regular Dividend”), such that the excess of the Extraordinary Distribution over the Regular Dividend is a redemption that is intended to be treated as a sale or exchange pursuant to Section 302 of the Code, and (iii) the Company agrees to provide the North Island Parties with prompt written notice in accordance with Section 6.6 if it obtains actual knowledge that Coral Blue Investment Pte. Ltd., (the “GIC Investor”) and any other Person whose holdings would be aggregated with the GIC Investor for purposes of Section 892 of the Code own  Beneficially Own, in the aggregate, directly or indirectly at least 49.9% of the number of shares of Common Stock outstanding.

 

3.12         Temasek Investment Agreement .  The Company shall not, without the prior written consent of the Purchaser, make or agree to make any material amendments, supplements or other modifications to any provision of the Temasek Investment Agreement (including, for the

 

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avoidance of doubt, any reduction to the consideration or per share price to be paid pursuant to the Temasek Investment Agreement). 

 

ARTICLE IV

 

ADDITIONAL AGREEMENTS

 

4.1         Transfer Restrictions .

 

(a)         Except as otherwise permitted in this Agreement, until the first anniversary of the Closing Date, the North Island Parties will not Transfer any Class A Common Stock issued pursuant to this Agreement.

 

(b)         Notwithstanding Section 4.1(a), the North Island Parties shall be permitted to Transfer any portion or all of their Class A Common Stock at any time under the following circumstances:

 

(1)      Transfers to any Permitted Transferee, but only if the transferee agrees in writing for the benefit of the Company (in form and substance reasonably satisfactory to the Company and with a copy thereof to be furnished to the Company) to be bound by the terms of this Agreement as a North Island Party and if the transferee and the transferor agree for the express benefit of the Company that the transferee shall Transfer the Class A Common Stock so Transferred back to the transferor at or before such time as the transferee ceases to be a Permitted Transferee of the transferor;

 

(2)      Transfers pursuant to a merger, tender offer or exchange offer or other business combination, acquisition of assets or similar transaction or any change of control transaction involving the Company or any Subsidiary;

 

(3)      Transfers occurring following the public announcement of any Disposition Event (as defined in the Certificate of Incorporation); and

 

(4)      Transfers that have been approved in writing by the Board of Directors.

 

4.2         Legend .

 

(a)         The Purchaser agrees that all certificates or other instruments representing the Class A Common Stock subject to this Agreement will bear a legend substantially to the following effect:

 

THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES

 

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LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER AND OTHER RESTRICTIONS SET FORTH IN AN INVESTMENT AGREEMENT, DATED AS OF APRIL 20, 2017, COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE ISSUER.

 

(b)         Upon request of the applicable North Island Party, upon receipt by the Company of an opinion of counsel reasonably satisfactory to the Company to the effect that such legend is no longer required under the Securities Act and applicable state laws, the Company shall promptly cause the first paragraph of the legend to be removed from any certificate for any Class A Common Stock to be Transferred in accordance with the terms of this Agreement and the second paragraph of the legend shall be removed upon the expiration of such transfer and other restrictions set forth in this Agreement (and, for the avoidance of doubt, immediately prior to any termination of this Agreement).  The Purchaser acknowledges that the Class A Common Stock issued pursuant to this Agreement has not been registered under the Securities Act or under any state securities laws and agrees that it will not sell or otherwise dispose of any of the Class A Common Stock issued pursuant to this Agreement, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other applicable securities laws.

 

4.3         Participation .

 

(a)         For the purposes of this Section 4.3, “ Excluded Stock ” shall mean (i) shares of equity securities issued by the Company as a stock dividend payable in shares of equity securities, or upon any subdivision or split-up of the outstanding shares of capital stock, (ii) the issuance of shares of equity securities (including upon exercise of options) to directors, employees or consultants of the Company pursuant to a stock option plan, restricted stock plan or other similar plan approved by the Board of Directors, (iii) the issuance of shares of equity securities in connection with bona fide acquisitions of securities (other than securities of the Company or any non-wholly-owned Company Subsidiary), or substantially all of the assets of another person or business (other than issuances to persons that were Affiliates of the Company at the time that the agreement with respect to such issuance was entered into), (iv) shares of a Subsidiary of the Company issued to the Company or a wholly owned Subsidiary of the Company, (v) securities of a joint venture (provided that no Affiliate (other than any Subsidiary of the Company) of the Company acquires any interest in such securities in connection with such issuance), (vi) the issuance of shares of equity securities in connection with a bona-fide, broadly distributed underwritten public offering, or (vii) shares of equity securities issued pursuant to an Exchange Right.

 

(b)         For so long as the North Island Parties are entitled to designate a director to the Board of Directors pursuant to Section 4.4, if the Company proposes to issue equity securities of any kind (for purposes of this Section 4.3 the term “equity securities” shall include Common Stock and any warrants, options or other rights to acquire, or any securities that are exercisable for, exchangeable for or convertible into, Common Stock or any other class of capital stock of the Company), other than Excluded Stock, then, the Company shall:

 

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(1)      give written notice to the Purchaser Representative (no less than twenty (20) business days prior to the closing of such issuance or if the Company reasonably expects such issuance to be completed in less than twenty (20) business days, such shorter period, which shall be as long as commercially practicable (and in any event no less than ten (10) business days), required for the North Island Parties and their Permitted Transferees to participate in such issuance) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the securities proposed to be issued (the “ Proposed Securities ”), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity; (B) the price and other terms of the proposed sale of such securities; (C) the amount of such securities proposed to be issued; and (D) such other information as the Purchaser Representative may reasonably request in order to evaluate the proposed issuance; and

 

(2)      offer to issue and sell to the North Island Parties, on such terms as the Proposed Securities are issued and upon full payment by the North Island Parties, a portion of the Proposed Securities equal to a percentage determined by dividing (A) the number of shares of Class A Common Stock the North Island Parties Beneficially Own by (B) the total number of shares of Common Stock then outstanding.

 

(c)         The North Island Parties must exercise their purchase rights hereunder within fifteen (15) business days after receipt of such notice from the Company, or if the Company reasonably expects such issuance to be completed in less than twenty (20) business days, such shorter period, which shall be as long as practicable (and in any event no less than ten (10) business days after receipt of notice from the Company), required for the North Island Parties and, subject to Section 4.1, their Permitted Transferees to participate in such issuance.  If the Company offers two (2) or more securities in units to the other participants in the offering, the North Island Parties must purchase such units as a whole and will not be given the opportunity to purchase only one (1) of the securities making up such unit.  The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right.

 

(d)         Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the North Island Parties have not elected to purchase during the ninety (90) days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the North Island Parties in the notice delivered in accordance with Section 4.3(b).  Any Proposed Securities offered or sold by the Company after such 90-day period must be reoffered to the North Island Parties pursuant to this Section 4.3.

 

(e)         The election by any North Island Parties not to exercise its subscription rights under this Section 4.3 in any one instance shall not affect their right as to any subsequent proposed issuance.  Any sale of such securities by the Company without first giving the North Island Parties the rights described in this Section 4.3 shall be void and of no force and effect.

 

(f)         Notwithstanding anything to the contrary contained herein, the purchase rights of the North Island Parties under Section 4.3(b) shall be deemed satisfied if the Company provides (or causes to provide) the North Island Parties the right to purchase from the Company or any

 

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person within thirty (30) days after the issuance of the Proposed Securities, the same number of Proposed Securities that the North Island Parties would have had the right to purchase under Section 4.3(b).

 

4.4         Election of Directors .

 

(a)         For so long as the North Island Parties Beneficially Own shares of Class A Common Stock that represent at least 50% of the number of shares of Class A Common Stock Beneficially Owned by the North Island Parties as of the Closing, the North Island Parties shall have the right to designate for nomination two (2) members of the Board of Directors (the “North Island Designees”).  Robert Greifeld and Glenn Hutchins will be the initial North Island Designees (the “ Initial North Island Designees ”).  The Board of Directors shall recommend that the North Island Designees be included in the slate of nominees in the class to be elected or appointed to the Board of Directors at the next (and each applicable subsequent) annual or special meeting of stockholders, subject to the North Island Designees’ satisfaction of all applicable requirements regarding service as a director of the Company under applicable law, regulation or stock exchange rules regarding service as a director and such other criteria and qualifications for service as a director applicable to all directors of the Company and in effect on the date hereof; provided, however, that in no event shall any North Island Designee’s relationship with the North Island Parties or their Affiliates (or any other actual or potential lack of independence resulting therefrom) be considered to disqualify any North Island Designee from being a member of the Board of Directors pursuant to this Section 4.4.  So long as the North Island Designees are elected to the Board of Directors by the Company’s stockholders, the North Island Designees shall serve the term associated with the class of directors to which such director belongs in accordance with the Certificate of Incorporation.  Notwithstanding the foregoing, at such time as the threshold set forth in this Section 4.4(a) is no longer satisfied, one of the North Island Designees, as specified by the Purchasers (or, if the Purchaser fails to do so within ten (10) days of such requirement not being satisfied, the Board of Directors), shall immediately resign, and the Purchaser shall cause such North Island Designee immediately to resign, from the Board of Directors effective as of the first date on which the threshold set forth in this Section 4.4(a) ceases to be satisfied and the right of the North Island Parties to designate for nomination a director under this Section 4.4(a) shall terminate.

 

(b)         For so long as the North Island Parties Beneficially Own shares of Class A Common Stock that represent less than 50% but at least 25% of the number of shares of Common Stock Beneficially Owned by the North Island Parties as of the Closing, the North Island Parties shall have the right to designate for nomination one (1) member of the Board of Directors.  The Board of Directors shall recommend that such North Island Designee be included in the slate of nominees in the class to be elected or appointed to the Board of Directors at the next (and each applicable subsequent) annual or special meeting of stockholders, subject to such North Island Designee’s satisfaction of all applicable requirements regarding service as a director of the Company under applicable law, regulation or stock exchange rules regarding service as a director and such other criteria and qualifications for service as a director applicable to all directors of the Company and in effect on the date hereof; provided, however, that in no event shall such North Island Designee’s relationship with the North Island Parties or their Affiliates (or any other actual or potential lack of independence resulting therefrom) be considered to disqualify such North Island Designee from being a member of the Board of Directors pursuant

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to this Section 4.4.  So long as such North Island Designee is elected to the Board of Directors by the Company’s stockholders, such North Island Designee shall serve the term associated with the class of directors to which such director belongs in accordance with the Certificate of Incorporation.  Notwithstanding the foregoing, at such time as the threshold set forth in this Section 4.4(b) is no longer satisfied, the North Island Designees shall immediately resign, and the Purchaser shall cause the North Island Designees immediately to resign, from the Board of Directors effective as of the first date on which the threshold set forth in this Section 4.4(b) ceases to be satisfied, and the Purchaser shall no longer have any rights under this Section 4.4, including, for the avoidance of doubt, any designation and/or nomination rights under Section 4.4(a) or 4.4(b).

 

(c)         For so long as the North Island Parties have the right to designate a director for nomination pursuant to Section 4.4 and Robert Greifeld is a North Island Designee, the Company or the Board of Directors shall cause Robert Greifeld to serve as the Chairman of the Board of Directors.

 

(d)         For so long as the North Island Parties have the right to designate a director for nomination pursuant to Section 4.4(a) or 4.4(b) above,

 

(1)      the Company or the Board of Directors shall (i) cause the Board of Directors to have sufficient vacancies to permit such persons to be added as members of the Board of Directors, (ii) nominate such persons for election to the Board of Directors, and (iii) recommend that the Company’s stockholders vote in favor of the persons designated for nomination by the North Island Parties in all subsequent stockholder meetings.  Nothing in this Section 4.4 shall modify the conditions set forth in Section 1.3(b)(8) and (9).  In the event of the death, disability, resignation or removal of any person designated by the North Island Parties as a member of the Board of Directors, subject to the continuing satisfaction of the applicable threshold set forth in Section 4.4(a), as applicable, the North Island Parties may designate a person to replace such person and, provided that such designee is reasonably acceptable to the Company, which approval shall not be unreasonably withheld, and subject to the North Island Designees’ satisfaction of all applicable requirements set forth in Sections 4.4(a) or 4.4(b), as applicable, the Company shall cause such newly designated person to fill such resulting vacancy.  So long as any person designated by the North Island Parties to serve as a member of the Board of Directors is eligible to be so designated in accordance with this Section 4.4, the Company shall not take any action to remove such person as such a director without cause without the prior written consent of the North Island Parties.  Subject to compliance with applicable laws, regulations or stock exchange rules, the Board of Directors shall consider in good faith any request by a North Island Designee to serve on any committee or committees of the Board of Directors upon which such North Island Designee may wish to serve;

 

(2)      each of the North Island Designees for the Board of Directors shall be entitled to compensation consistent with the compensation received by other members of the Board of Directors, including any fees and equity awards, and reimbursement for reasonable out-of-pocket expenses incurred in attending meetings of the Board of Directors and its committees; and

 

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(3)      as of and following the Closing, the Board of Directors shall take all necessary and appropriate action to form and maintain a committee of the Board of Directors (the “ Strategy Committee ”), consisting of four directors (which shall at all times include the North Island Designees), which shall advise the Board of Directors on, and make recommendations to the Board of Directors with respect to, strategic matters.  The Strategy Committee shall initially consist of Vincent Viola, Douglas Cifu and the North Island Designees.

 

4.6         Tax Matters .

 

(a)         The Company and its paying agent shall be entitled to withhold taxes on all payments on the Class A Common Stock to the extent required by law.  Prior to the date of any such payment, the Purchaser (or any transferee) shall deliver to the Company or its paying agent a duly executed, valid, accurate and properly completed Internal Revenue Service Form W-9 or an appropriate Internal Revenue Service Form W-8, as applicable, and if such form has validly been delivered by Purchaser, and is reasonably satisfactory to the Company, then the Company shall not withhold taxes on payments on the Class A Common Stock to the extent such Form W-9 or Form W-8 evidences a legal entitlement to receive payments free of any withholding taxes.

 

(b)         The Company shall pay any and all documentary, stamp and similar issue or transfer tax due on the issue of the Class A Common Stock.

 

ARTICLE V

 

INDEMNITY

 

5.1         Indemnification by the Company .  

 

(a)         From and after the Closing, the Company agrees to indemnify the Purchaser and its Affiliates and its and their officers, directors, managers, employees and agents (collectively, “ Purchaser Related Parties ”) from, and hold each of them harmless against, any and all losses (including losses arising from the diminution in value of the Company as a result of such indemnification by the Company), damages, actions, suits, proceedings (including any investigations, litigation or inquiries), demands and causes of action (“ Losses ”), and, in connection therewith, and promptly upon demand, pay or reimburse each of them for all reasonable costs, losses, liabilities, damages or expenses of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them), whether or not involving a Third Party Claim, incurred by or asserted against such Purchaser Related Parties, as a result of or arising out of (i) the failure of the representations or warranties made by the Company contained in Section 2.1(a), 2.1(b), 2.1(c)(1), 2.1(e), 2.1(f)(1), 2.1(f)(4) or in any certificate delivered pursuant hereto to be true and correct or (ii) the breach of any of the covenants of the Company contained herein; provided that in the case of the immediately preceding clause (i), such claim for indemnification relating to a breach of any representation or warranty is made prior to the expiration of such representation or warranty as set forth in Section 5.5; provided, further, that for purposes of determining when an indemnification claim has been made, the date

 

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upon which a Purchaser Related Party shall have given written notice (stating in reasonable detail the basis of the claim for indemnification) to the Company shall constitute the date upon which such claim has been made; provided, further, for the purposes of calculating the amount of Losses and for determining whether a breach of any representation or warranty has occurred for purposes of this Section 5.1(a), all materiality and Company Material Adverse Effect qualifiers contained in Sections 2.1(a) (other than the first materiality qualifier in Section 2.1(a)(2)), 2.1(b), 2.1(f)(1) and 2.1(f)(4) shall be disregarded therefrom.

 

(b)         From and after the  Closing, the Company agrees to indemnify and hold harmless the Purchaser, its general and limited partners, members and investors and their respective officers, directors, employees, members, managers, partners, investors, agents and Affiliates (collectively, “ Purchaser Affiliated Parties ”) from, and hold each of them harmless against, any and all Losses, and promptly upon demand, pay or reimburse each of them for all reasonable costs, losses, liabilities, damages or expenses of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them), in each case, involving a Third Party Claim asserted against such Purchaser Affiliated Party to the extent (i) such Purchaser Affiliated Party is party to such Third Party Claim under applicable Laws as a result of their direct or indirect ownership of the shares of Class A Common Stock (or rights in connection therewith) purchased pursuant to this Agreement and (ii) such Third Party Claim is based on, arising out of, pertaining to or as a result of the Company’s or its Subsidiaries’ (i) failure or alleged failure to comply with any Law or (ii) ownership or the operation of its assets and properties or the operation or conduct of its business. The indemnity agreement contained in this Section 5.1(b) shall be applicable whether or not any Third Party Claim or the facts or transactions giving rise to it arose prior to, on or subsequent to the date of this Agreement.

 

5.2         Indemnification by the Purchaser .  From and after the Closing, the Purchaser agrees to indemnify the Company and its officers, directors, managers, employees, and agents (collectively, “ Company Related Parties ”) from, and hold each of them harmless against, any and all Losses, and, in connection therewith, and promptly upon demand, pay or reimburse each of them for all reasonable costs, losses, liabilities, damages or expenses of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them), whether or not involving a Third Party Claim, incurred by or asserted against such Company Related Parties as a result of or arising out of (i) the failure of any of the representations or warranties made by the Purchaser contained in Section 2.2(a) or 2.2(b)(1) to be true and correct or (ii) the breach of any of the covenants of the Purchaser contained herein; provided that in the case of the immediately preceding clause (i), such claim for indemnification relating to a breach of any representation or warranty is made prior to the expiration of such representation or warranty as set forth in Section 5.5; provided, further, that for purposes of determining when an indemnification claim has been made, the date upon which a Company Related Party shall have given written notice (stating in reasonable detail the basis of the claim for indemnification) to the Purchaser shall constitute the date upon which such claim has been made.

 

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5.3         Indemnification Procedure .

 

(a)         A claim for indemnification for any matter not involving a Third Party Claim may be asserted by written notice to the party from whom indemnification is sought; provided, however, that failure to so notify the indemnifying party shall not preclude the indemnified party from any indemnification that it may claim in accordance with this Article V, except as otherwise provided in Sections 5.1 and 5.2.

 

(b)         Promptly after any Company Related Party, Purchaser Affiliated Party or Purchaser Related Party (hereinafter, the “ Indemnified Party ”) has received notice of any indemnifiable claim hereunder, or the commencement of any action, suit, claim, arbitration, compliant, enforcement proceeding, investigation or other proceeding by any Governmental Entity or other third person, which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement (each, a “ Third Party Claim ”), the Indemnified Party shall give the indemnitor hereunder (the “ Indemnifying Party ”) written notice of such Third Party Claim but failure or delay to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability it may have to such Indemnified Party hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure or delay.  Such notice shall state the nature and the basis of such Third Party Claim to the extent then known.  The Indemnifying Party shall have the right to assume and control the defense of, and settle, at its own expense and by its own counsel, any such matter as long as the Indemnifying Party pursues the same diligently and in good faith.  If the Indemnifying Party undertakes to assume and control the defense or settle such Third Party Claim, it shall promptly, and in no event later than ten (10) business days after notice of such claim, notify the Indemnified Party of its intention to do so, and the Indemnified Party shall cooperate with the Indemnifying Party and its counsel in all reasonable respects in the defense thereof and/or the settlement thereof.  Such cooperation shall include, but shall not be limited to, furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or control.  Such cooperation of the Indemnified Party shall be at the cost of the Indemnifying Party.  After the Indemnifying Party has notified the Indemnified Party of its intention to undertake to defend or settle any such asserted liability, and for so long as the Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability; provided, however, that the Indemnified Party shall be entitled (i) at its own expense, to participate in the defense of such asserted liability and any negotiations of the settlement thereof and (ii) if (A) the Indemnifying Party has, within ten (10) business days of when the Indemnified Party provides written notice of a Third Party Claim, failed to (y) assume the defense or settlement of such Third Party Claim and (z) notify the Indemnified Party of such assumption, or (B) the defendants in any such action include both the Indemnified Party and the Indemnifying Party and counsel to the Indemnified Party shall have concluded that there may be reasonable defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party or if the interests of the Indemnified Party reasonably may be deemed to conflict with the interests of the Indemnifying Party, then, in each case, the Indemnified Party shall have the right to select a separate counsel and, upon prompt notice to the Indemnifying Party, to assume such settlement or legal defense and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the

 

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Indemnifying Party as incurred.  Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not settle any indemnified claim without the consent of the Indemnified Party, unless the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, and does not contain any admission of wrongdoing by, the Indemnified Party.

 

5.4         Tax Matters .  All indemnification payments under this Article V shall be treated as adjustments to the Purchase Price for tax purposes, except as otherwise required by applicable Law.

 

5.5         Survival .  The representations and warranties of the parties contained in this Agreement shall survive for twelve (12) months following the Closing, except that (i) the representations and warranties of the Company contained in Sections 2.1(a), 2.1(b), 2.1(c)(1), 2.1(c)(2)(A)(i) and 2.1(e) will survive indefinitely, and (ii) the representations and warranties of the Purchaser contained in Sections 2.2(a) and 2.2(b)(1) will survive indefinitely.  All of the covenants or other agreements of the parties contained in this Agreement shall survive until fully performed or fulfilled, unless and to the extent that non-compliance with such covenants or agreements is waived in writing by the party entitled to such performance.

 

5.6         Limitation on Damages .  Notwithstanding any other provision of this Agreement, except in the case of intentional fraud with respect to the representations and warranties set forth herein, no party hereto shall have any liability to the other party in excess of the Purchase Price, and neither party shall be liable for any exemplary or punitive damages or any other damages to the extent not reasonably foreseeable arising out of or in connection with this Agreement or the transactions contemplated hereby (in each case, unless any such damages are awarded pursuant to a Third Party Claim).  Nothing in this Agreement constitutes a waiver of any rights of Purchaser, Purchaser Related Parties or Purchaser Affiliated Parties under U.S. federal securities Law.

 

ARTICLE VI

 

MISCELLANEOUS

 

6.1         Expenses .  Subject to Section 4.6(b), each of the parties will bear and pay all other costs and expenses incurred by it or on its behalf in connection with the transactions contemplated pursuant to this Agreement; provided that (a) upon the Closing of the transaction contemplated hereby the Company shall pay $6,250,000 to Purchaser or one or more of its Affiliates designated by the Purchaser in writing no later than two (2) business days prior to the Closing Date and (b) upon the Closing or within two (2) business days of any termination of this Agreement other than pursuant to Section 6.16(d), the Company shall reimburse the Purchaser for its reasonable out-of-pocket costs and expenses incurred in connection with due diligence, the negotiation and preparation of this Agreement and undertaking of the transactions contemplated by this Agreement, including fees and expenses of attorneys, consultants and accounting, financial and other advisers in connection with the transactions contemplated by this Agreement, provided that the maximum amount of such costs and expenses reimbursed pursuant to this clause (b) shall not exceed $6,000,000 in the aggregate.

 

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6.2         Amendment; Waiver .  No amendment or waiver of any provision of this Agreement will be effective with respect to any party unless made in writing and signed by an officer of a duly authorized representative of such party.  No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  The conditions to each party’s obligation to consummate the Closing are for the sole benefit of such party and may be waived by such party in whole or in part to the extent permitted by applicable law.  No waiver of any party to this Agreement will be effective unless it is in a writing signed by a duly authorized officer of the waiving party that makes express reference to the provision or provisions subject to such waiver.  The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

 

6.3         Counterparts; Electronic Transmission .  For the convenience of the parties hereto, this Agreement may be executed in any number of separate counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same agreement.  Executed signature pages to this Agreement may be delivered by facsimile or other means of electronic transmission and such facsimiles or other means of electronic transmission will be deemed as sufficient as if actual signature pages had been delivered.

 

6.4         Governing Law .  This Agreement will be governed by and construed in accordance with the laws of the State of New York (except to the extent that mandatory provisions of Delaware law are applicable).  The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in the Borough of Manhattan, State of New York for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby.  The parties hereby irrevocably and unconditionally consent to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such action, suit or proceeding and irrevocably waive, to the fullest extent permitted by law, any objection that they may now or hereafter have to the laying of the venue of any such action, suit or proceeding in any such court or that any such action, suit or proceeding which is brought in any such court has been brought in an inconvenient forum.  Process in any such action, suit or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.  Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 6.6 shall be deemed effective service of process on such party.

 

6.5         WAIVER OF JURY TRIAL .  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

6.6         Notices .  Any notice, request, instruction or other document to be given hereunder by any party to the other will be in writing and will be deemed to have been duly given (a) on the date of delivery if delivered personally or by telecopy or facsimile, upon confirmation of receipt, (b) on the first business day following the date of dispatch if delivered by a recognized next-day courier service, or (c) on the third business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid.  All notices hereunder shall

 

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be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice.

 

(a)        If to Purchaser:

 

North Island Holdings I, LP

c/o North Island Ventures, LLC

9 West 57th Street, 32nd Floor

New York, New York  10019

Attn:     Jeremy Henderson

Fax:      (914) 834-2351

E-mail:   jeremy@northisland.net

 

with copies to (which copy alone shall not constitute notice):

 

Wachtell, Lipton Rosen & Katz

51 West 52 nd Street

New York, New York 10019

Attn:    Edward D. Herlihy

David K. Lam

Mark F. Veblen

Fax:     212-403-2000

E-mail:   dklam@wlrk.com

mfveblen@wlrk.com

 

Coral Blue Investment Pte. Ltd.

280 Park Avenue, 9 th Floor

New York, New York 10017

Attn:   Ivan Stoyanov and David Rivera

Email: ivanstoyanov@gic.com.sg

davidrivera@gic.com.sg

 

Sidley Austin LLP

787 Seventh Avenue

New York, New York 10019

Attn:   Asi Kirmayer

Fax:    212-839-5599

Email:  akirmayer@sidley.com

 

Public Sector Pension Investment Board

1250 René-Lévesque Blvd. West

Suite 900

Montreal (Québec) H3B 4W8

Attn:    Senior Vice President and Chief Legal Officer

Email:  LegalNotices@investpsp.ca

 

Weil, Gotshal & Manges LLP

767 5th Avenue

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New York, New York 10153

Fax:   212-310-8007

Attn:   Douglas Warner

E-mail: doug.warner@weil.com

 

(b)        If to the Company:

 

Virtu Financial, Inc.

900 Third Avenue, 29th Floor

New York, New York 10022-0100

Attn:   Douglas A. Cifu

Fax:    (212) 428-0123

Email: dcifu@virtufinancial.com

 

with a copy to (which copy alone shall not constitute notice):

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, New York 10019

Attn:    Ellen N. Ching

Bruce A. Gutenplan

Jeffrey D. Marell

Fax:     (212) 757-3990

Email: eching@paulweiss.com

bguteplan@paulweiss.com

jmarell@paulweiss.com

 

6.7         Entire Agreement .  This Agreement (including the Exhibits and Schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

 

6.8         Assignment .  Neither this Agreement, nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other party, provided, however, that (a) the Purchaser or any North Island Party may assign its rights, interests and obligations under this Agreement, in whole or in part, to one or more Permitted Transferees, including as contemplated in Section 4.1(b), (b) in the event that, immediately prior to the Closing, the registration of North Island ManageCo, LLC as an investment adviser under the Investment Advisers Act of 1940, as amended, shall not be in full force and effect, the Purchaser shall assign its rights, interests and obligations under this Agreement, on a pro rata basis based on their relative Equity Commitments (as defined in the Equity Commitment Letters), to the Limited Partners, subject to the vesting of all such rights, interests and obligations in the Purchaser upon the subsequent contribution to the Purchaser by such Limited Partner of the securities purchased by such Limited Partner in accordance with this Agreement, which contribution shall occur (and

 

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the Purchaser shall promptly accept) upon the effectiveness of such registration as an investment adviser (upon which contribution such securities shall be converted into shares of Class A Common Stock), and (c) in the event of such assignment, the assignee shall agree in writing to be bound by the provisions of this Agreement as a North Island Party, including the rights, interests and obligations so assigned; provided that (x) no such assignment shall relieve such North Island Party of its obligations hereunder or relieve any of the Limited Partners of its obligations under the Equity Commitment Letters and (y) no North Island Party shall assign any of its obligations hereunder (i) with the primary intent of avoiding, circumventing or eliminating such North Island Party’s obligations hereunder, (ii) if that such assignment may have the effect of preventing, impairing or materially delaying the consummation of the transactions contemplated hereby (which shall include any delay of the consummation of the transactions contemplated hereby beyond the anticipated closing date under the Merger Agreement) or (iii) if that such assignment may have a material adverse impact on the likelihood or timing of receiving any approvals or consents required for Closing under this Agreement (including, for the avoidance of doubt, pursuant to Section 3.1), the Equity Commitment Letters or the Merger Agreement.  Purchaser shall use its reasonable best efforts to obtain registration of North Island ManageCo, LLC as an investment adviser under the Investment Advisers Act of 1940 as promptly as practicable and in any event prior to Closing.

 

6.9         Interpretation; Other Definitions .  Wherever required by the context of this Agreement, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa, and references to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as amended, supplemented or modified from time to time.  All article, section, paragraph or clause references not attributed to a particular document shall be references to such parts of this Agreement, and all exhibit, annex, letter and schedule references not attributed to a particular document shall be references to such exhibits, annexes, letters and schedules to this Agreement.  In addition, the following terms are ascribed the following meanings:

 

(a)         the word “ or ” is not exclusive;

 

(b)         the words “ including ,” “ includes ,” “ included ” and “ include ” are deemed to be followed by the words “without limitation”;

 

(c)         the terms “ herein ,” “ hereof ” and “ hereunder ” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision;

 

(d)         the term “ business day ” means any day except Saturday, Sunday and any day which shall be a legal holiday or a day on which banking institutions in the State of New York generally are authorized or required by law or other governmental action to close; and

 

(e)         the term “ person ” has the meaning given to it in Section 3(a)(9) of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act.

 

(f)         Affiliate ” means, with respect to any person, any person directly or indirectly controlling, controlled by or under common control with, such other person; provided, however, that (i) portfolio companies in which any person or any of its Affiliates has an investment shall

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not be deemed an Affiliate of such person, or (ii) the Company, any of its Subsidiaries, or any of the Company’s other controlled Affiliates, in each case, will not be deemed to be Affiliates of the Purchaser for purposes of this Agreement; provided, however, that for the purposes of Section 3.5, any portfolio company of the Purchaser or its Affiliates that (but for clause (i) of this definition) would be an Affiliate of the Purchaser will be an Affiliate if the Purchaser or any of its Affiliates (or any representative on behalf of the Purchaser or any of its Affiliates) has provided, directly or indirectly, such portfolio company with Information subject to the restrictions in Section 3.5.  For purposes of this definition, “ control ” (including, with correlative meanings, the terms “ controlled by ” and “ under common control with ”) when used with respect to any person, means the possession, directly or indirectly, of the power to cause the direction of management or policies of such person, whether through the ownership of voting securities, by contract or otherwise.

 

(g)         Beneficial Ownership ” or “ Beneficially Own ” shall have the meaning given such term in Rule 13d-3 under the Exchange Act and a person’s Beneficial Ownership of securities shall be calculated in accordance with the provisions of such Rule; provided, however, that for purposes of determining any person’s Beneficial Ownership, such person shall be deemed to be the Beneficial Owner of any Equity Securities which may be acquired by such person, whether within sixty (60) days or thereafter, upon the conversion, exchange, redemption or exercise of any warrants, options, rights or other securities issued by the Company or any Company Subsidiary.

 

(h)         Company Material Adverse Effect ” shall mean, with respect to the Company, any Effect that, individually or taken together with all other Effects that have occurred prior to the date of determination of the occurrence of the Company Material Adverse Effect, is or is reasonably likely to be materially adverse to the business, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole; provided, however, that in no event shall any of the following occurring after the date hereof, alone or in combination, be deemed to constitute, or be taken into account in determining whether a Company Material Adverse Effect has occurred:  (A) any change in the Company’s stock price or trading volume on the Nasdaq Global Select Market, (B) any failure by the Company to meet internal or analyst revenue, earnings or other financial projections or expectations for any period, (C) any Effect that results from changes generally affecting the industry in which the Company operates, or the United States economy generally, or any Effect that results from changes affecting general worldwide economic or capital market conditions, (D) any Effect caused by the announcement or pendency of the transactions contemplated by this Agreement, or the identity of the Purchaser or any of its Affiliates as the purchaser in connection with the transactions contemplated by this Agreement, (E)  any hurricane, tornado, flood, earthquake or other natural disaster, (F)  changes in global, national or regional economic or political (including results of elections) conditions (including any outbreak or escalation of hostilities or war or any act of terrorism) or changes in the securities, credit or financial markets, (G) the performance of this Agreement and the transactions contemplated hereby, including compliance with the covenants set forth herein and therein, or any action taken or omitted to be taken by the Company at the request or with the prior consent of the Purchaser, (H) changes in GAAP or other accounting standards (or any interpretation thereof) or (I) changes in any Laws or other binding directives issued by any Governmental Entity or interpretations or enforcement thereof; provided, however, that (x) the exceptions in clause (A) and (B) shall not prevent or otherwise affect a determination that any

 

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Effect underlying such change or failure has resulted in, or contributed to, a Company Material Adverse Effect, (y) with respect to clauses (C), (F), (H) and (I), such Effects, alone or in combination, may be deemed to constitute, or be taken into account in determining whether a Company Material Adverse Effect has occurred, but only to the extent such Effects disproportionately affect the Company and its Subsidiaries, taken as a whole, relative to other companies operating in the same industry as the Company and its Subsidiaries.

 

(i)         Debt Financing ” shall mean the Debt Financing (as defined in the Merger Agreement) which, for the avoidance of doubt, shall include any alternative debt financing obtained in accordance with Section 7.11(b) of the Merger Agreement.

 

(j)         Effect ” shall mean any change, event, effect, development or circumstance.

 

(k)        Environmental Law ” shall mean any Laws regulating, relating to or imposing standards of conduct concerning protection of the environment or of human health and safety.

 

(l)         Equity Securities ” means the equity securities of the Company, including shares of Class A Common Stock.

 

(m)       Exchange Agreement ” means the Exchange Agreement, dated as of April 15, 2015, by and among the Company, Virtu Financial LLC and the other persons listed on the signature pages thereto.

 

(n)        Exchange Rights ” means the right to exchange Virtu Financial Units and shares of Class C Common Stock or Class D Common Stock for shares of Class A Common Stock or Class B Common Stock, as applicable, in accordance with the Exchange Agreement.

 

(o)         ERISA ”  shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and all rules, regulations, rulings and interpretations adopted by the Internal Revenue Service or the Department of Labor thereunder.

 

(p)         Governmental Entity ” shall mean any court, administrative or regulatory agency or commission or other governmental or arbitral body or authority or instrumentality, in each case whether federal, state, local or foreign, and any applicable industry self-regulatory organization.

 

(q)         Intellectual Property ” means all worldwide intellectual and industrial property rights, including patents, utility models, trademarks, service marks, trade names, corporate names, trade dress, domain names, and other source indicators (and all goodwill relating thereto), copyrights and copyrighted works, inventions, know-how, trade secrets, methods, processes, formulae, technical or proprietary information, and technology and all registrations, applications, renewals, re-examinations, re-issues, divisions, continuations, continuations-in part and foreign counterparts thereof.

 

(r)         Knowledge of the Company ” means the actual knowledge after reasonable inquiry of one or more of Vincent Viola, Douglas Cifu, Joseph Molluso, Justin Waldie and Brian Palmer.

 

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(s)         Law ” means any applicable federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, order, edict, decree, rule, regulation, ruling or other legally binding requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity.

 

(t)         Lien ” means any mortgage, pledge, security interest, encumbrance, lien, charge or other restriction of any kind, whether based on common law, statute or contract.

 

(u)         Limited Partners ” means Coral Blue Investment Pte. Ltd., Public Sector Pension Investment Board and each other limited partner of the Purchaser as of the date hereof and any other limited partners of the Purchaser that the Company has consented in writing to include in the definition of Limited Partners.

 

(v)         Materials of Environmental Concern ” shall mean any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants, contaminants, radioactivity, and any other substances that are regulated pursuant to or could give rise to liability under any Environmental Law.

 

(w)         North Island Parties ” means the Purchaser and each Permitted Transferee of the Purchaser to whom shares of Class A Common Stock are transferred pursuant to Section 4.1(b), and, for purposes of determining the percentage ownership of the North Island Parties for any purpose under this Agreement, including Section 4.4, the Limited Partners (including such Limited Partners’ holdings of Preferred Shares, if applicable, on an as-converted basis).

 

(x)         Other Equity Financing ” means the equity financing contemplated by the Investment Agreement dated as of the date hereof between the Company and Aranda Investments Pte. Ltd (the “ Temasek Investment Agreement ”) or any alternative issuance of Class A Common Stock by the Company at (i) a price no less favorable to the Company than that of the equity financing contemplated by the Temasek Investment Agreement, (ii) for an aggregate purchase price no less than the aggregate purchase price set forth in the Temasek Investment Agreement and (iii) on material terms and conditions no more favorable to the investor than the terms and conditions set forth in the Temasek Investment Agreement.

 

(y)         Permitted Transferee ” means, with respect to any person, (i) any Affiliate of such person, (ii) any successor entity of such person, (iii) with respect to any person that is an investment fund, vehicle or similar entity, any other investment fund, vehicle or similar entity of which such person or an Affiliate, advisor or manager of such person serves as the general partner, manager or advisor, (iv) with respect to Purchaser, the Limited Partners or their Affiliates or successor entities.

 

(z)         Plan ” shall mean any employee pension benefit plan (as defined in Section 3(2)(A) of ERISA) subject to Title IV of ERISA and maintained for employees of the Company or of any member of a “controlled group,” as such term is defined in Section 4001(a)(14) of ERISA, of which the Company or any of its Subsidiaries is a part, or any such employee pension benefit plan to which the Company or any of its Subsidiaries is required

 

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to contribute on behalf of its employees, and any other employee benefit plan (as defined in Section 3(3) of ERISA), whether or not subject to ERISA, or any compensation plan, policy, program, agreement or arrangement, including any employment, change in control, bonus, equity-based compensation, retention or other similar agreement, that the Company or any of its Subsidiaries, maintains, sponsors, is a party to, or as to which the Company or any of its Subsidiaries otherwise has any material obligation or material liability.

 

(aa)         Purchase Price ” means the purchase price payable by the Purchaser to the Company for the issue of the shares of Class A Common Stock pursuant to this Agreement, which shall be $625,000,000.

 

(bb)         Purchaser Representative ” means the Purchaser or any other North Island Party that is designated by the Purchaser Representative as the successor Purchaser Representative in a written notice delivered to the Company.

 

(cc)         Registration Rights Agreement ” means that certain Registration Rights Agreement, the form of which is set forth as Exhibit A .

 

(dd)         Stockholders Agreement ” means that certain letter agreement, the form of which is attached as Exhibit B .

 

(ee)         Tax Return ” means any return, declaration, report, statement or other document filed or required to be filed in respect of Taxes (including any attached schedules), including any information return, claim for refund, amended return and declaration of estimated Tax.

 

(ff)          Taxes ” shall mean all United States federal, state, local or foreign taxes, charges, fees, levies or other assessments, including, without limitation, income, gross receipts, excise, real and personal property, profits, estimated, severance, occupation, production, capital gains, capital stock, goods and services, environmental, employment, withholding, stamp, value added, alternative or add-on minimum, sales, transfer, use, license, payroll and franchise taxes or any other tax, custom, duty or governmental fee, or other like assessment or charge of any kind whatsoever, imposed by the United States, or any state, county, local or foreign government or subdivision or agency thereof, and such term shall include any interest, penalties, fines, related liabilities or additions to tax attributable to such taxes, charges, fees, levies or other assessments, all any liability for the payment of any amounts of the foregoing types as a result of being a member of an affiliated, consolidated, combined or unitary group for any period, and any liability for the payment of any amounts of the foregoing types as a result of any express or implied obligation to indemnify any other person or as a result of being a transferee or successor in interest to any party.

 

(gg)         Transaction Documents ” means this Agreement, the Stockholders Agreement and the Registration Rights Agreement.

 

(hh)         Transfer ” by any person means directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any Equity Securities Beneficially Owned by such person or of any interest (including any voting interest) in

 

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any Equity Securities Beneficially Owned by such person; provided, however, that, notwithstanding anything to the contrary in this Agreement, a Transfer shall not include (i)  the redemption or other acquisition Class A Common Stock by the Company or (ii) the transfer of any limited partnership interests or other equity interests in the Purchaser or any North Island Party (or any direct or indirect parent entity of the Purchaser or any North Island Party); provided, that if any transferor or transferee referred to in this clause (ii) ceases to be controlled by the person controlling such person immediately prior to such transfer, such event shall be deemed to constitute a “Transfer.”

 

(ii)          Virtu Financial Units ” means non-voting common interest units in Virtu Financial LLC.

 

(jj)          Willful Breach ” means a material breach of this Agreement that is the consequence of an act or omission by a party with the actual knowledge or intention that the taking of such act or failure to take such action would, or would reasonably be expected to, cause a material breach of this Agreement.

 

6.10         Captions .  The article, section, paragraph and clause captions herein are for convenience of reference only, do not constitute part of this Agreement and will not be deemed to limit or otherwise affect any of the provisions hereof.

 

6.11         Severability .  If any provision of this Agreement or the application thereof to any person (including the officers and directors of the parties hereto) or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, will remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.

 

6.12         No Third Party Beneficiaries .  Except as expressly provided herein (including as provided in Section 5.1), nothing contained in this Agreement, expressed or implied, is intended to confer upon any person other than the parties hereto (and their permitted assigns), any benefit, right or remedies.

 

6.13         Public Announcements .  Subject to each party’s disclosure obligations imposed by law or regulation or the rules of any stock exchange upon which its securities are listed, each of the parties hereto will cooperate with each other in the development and distribution of all news releases and other public information disclosures with respect to this Agreement and any of the transactions contemplated by this Agreement, and neither the Company nor the Purchaser will make any such news release or public disclosure without first consulting with the other, and, in each case, also receiving the other’s consent (which shall not be unreasonably withheld or delayed) and each party shall coordinate with the party whose consent is required with respect to any such news release or public disclosure.

 

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6.14         Specific Performance .  The parties 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.  It is accordingly agreed that, without the necessity of posting bond or other undertaking, the parties shall be entitled to specific performance of the terms hereof, this being in addition to any other remedies to which they are entitled at law or equity, and in the event that any action or suit is brought in equity to enforce the provisions of this Agreement, and no party will allege, and each party hereby waives, the defense or counterclaim that there is an adequate remedy at law.

 

6.15         Further Assurances .  Each party hereto shall do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments, and other documents as any other party hereto reasonably may request in order to carry out the provisions of this Agreement and the consummation of the transactions contemplated hereby.

 

6.16         Termination .  Prior to the Closing, this Agreement may only be terminated:

 

(a)        by mutual written agreement of the Company and the Purchaser Representative;

 

(b)        by the Company or the Purchaser Representative, upon written notice to the other party given at any time after January 31, 2018; provided, however that the right to terminate this Agreement pursuant to this Section 6.16(b) shall not be available to any party whose failure to fulfill any obligations under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date;

 

(c)        by the Company or the Purchaser Representative, if any order, injunction, ruling, decree or judgment issued by any court or agency of competent jurisdiction or other legal restraint or prohibition permanently restrains, enjoins or prohibits or makes illegal the consummation of the transactions contemplated by this Agreement or the consummation of the Merger, and such order, injunction, ruling, decree or judgment becomes effective (and final and nonappealable) or any statute, rule, regulation, order, injunction or decree becomes enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the consummation of the transactions contemplated by this Agreement or the Merger;

 

(d)        by notice given by the Company to the Purchaser Representative, if there have been one or more inaccuracies in or breaches of one or more representations, warranties, covenants or agreements made by the Purchaser in this Agreement such that the conditions in Section 1.3(c)(1) or (2) would not be satisfied and which have not been cured by the Purchaser thirty (30) days after receipt by the Purchaser Representative of written notice from the Company requesting such inaccuracies or breaches to be cured;

 

(e)        without any action by either party, if the Merger Agreement is terminated in accordance with its terms at any time prior to the Closing;

 

(f)         by notice given by the Purchaser Representative to the Company, if there have been one or more inaccuracies in or breaches of one or more representations, warranties, covenants or agreements made by the Company in this Agreement such that the conditions in 

 

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Section 1.3(b)(1) or (2) would not be satisfied and which have not been cured by the Company within thirty (30) days after receipt by the Company of written notice from the Purchaser Representative requesting such inaccuracies or breaches to be cured; or

 

(g)         by notice given by the Purchaser Representative to the Company, if this Agreement, the Merger Agreement and the Merger are not approved and adopted by the Board of Directors on or prior to 11:59 pm New York time on the date hereof.

 

6.17         Effects of Termination .  In the event of any termination of this Agreement in accordance with Section 6.16, neither party (or any of its Affiliates) shall have any liability or obligation to the other (or any of its Affiliates) under or in respect of this Agreement, except to the extent of (A) any liability arising from any material breach by such party of its obligations of this Agreement arising prior to such termination and (B) any intentional fraud with respect to the representations and warranties set forth herein or Willful Breach of this Agreement.  In the event of any such termination, this Agreement shall become void and have no effect, and (if such termination is prior to the Closing) the transactions contemplated hereby shall be abandoned without further action by the parties hereto, in each case, except (x) as set forth in the preceding sentence and (y) that the provisions of Sections 3.5 ( Confidentiality ), Article V ( Indemnity ), 6.2 to 6.14 ( Amendment, Waiver; Counterparts; Governing Law; Waiver of Jury Trial; Notices; Entire Agreement, Assignment; Interpretation; Other Definitions; Captions; Severability; No Third Party Beneficiaries; Public Announcements; and Specific Performance ) and Section 6.18 ( Non-Recourse ) shall survive the termination of this Agreement.

 

6.18         Non-Recourse .  This Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against the entities that are expressly identified as parties hereto, including entities that become parties hereto after the date hereof or that agree in writing for the benefit of the Company to be bound by the terms of this Agreement applicable to the Purchaser, and no former, current or future direct or indirect equityholders, controlling persons, directors, officers, employees, agents or Affiliates of any party hereto or any former, current or future direct or indirect equityholder, controlling person, director, officer, employee, general or limited partner, member, manager, advisor, agent or Affiliate of any of the foregoing (each, a “ Non-Recourse Party ”) shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, this Agreement.  Without limiting the rights of any party against the other parties hereto, in no event shall any party or any of its Affiliates, and each party agrees to cause their Affiliates not to, seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any Non-Recourse Party. Notwithstanding anything herein the contrary, nothing in this Agreement shall limit the rights of the parties hereto to make any claims for breach of contract against, seek to recover monetary damages from or otherwise enforce their rights against the Limited Partners under the terms of, and subject to the conditions set forth in, the Equity Commitment Letters.

 

 

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IN WITNESS WHEREOF , this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written.

 

 

Virtu Financial, Inc.

 

 

 

 

 

 

 

 

By:

/s/ Douglas A. Cifu

 

 

 

Name:  Douglas A. Cifu

 

 

 

Title:    Chief Executive Officer

 

 

 

 

 

 

 

 

 

 

North Island Holdings I, LP

 

 

 

 

 

By:

North Island Holdings I GP, LP, its general partner

 

 

 

 

 

 

By:

North Island Ventures, LLC, its general partner

 

 

 

 

 

 

 

 

 

 

By:

/s/ Glenn Hutchins

 

 

 

Name:  Glenn Hutchins

 

 

 

Title:    Chief Executive Officer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Signature Page to Investment Agreement]


Exhibit 10.2

 

EXECUTION VERSION

 

 

 

STOCKHOLDERS   AGREEMENT

by and among

TJMT HOLDINGS LLC (f/k/a Virtu Holdings LLC),

NORTH ISLAND HOLDINGS I, LP,

HAVELOCK FUND INVESTMENTS PTE LTD,

ARANDA INVESTMENTS PTE. LTD.

and

VIRTU FINANCIAL, INC.

Dated as of April 20, 2017

 

 


 

This STOCKHOLDERS AGREEMENT dated as of April 20, 2017 (this “ Agreement ”), by and among TJMT HOLDINGS LLC (f/k/a Virtu Holdings LLC) , a Delaware limited liability company (“ TJMT ”), NORTH ISLAND HOLDINGS I, LP , a Delaware limited partnership (“ NIH ”), HAVELOCK FUND INVESTMENTS PTE LTD , a Singapore private limited company (“ Havelock ”), ARANDA INVESTMENTS PTE. LTD. , a Singapore private limited company (“ Aranda ”) (each, a “ Temasek Holder ” and, collectively, the “ Temasek Holders ”) and VIRTU FINANCIAL, INC. (the “ Company ”). Havelock, Aranda, TJMT and NIH are each referred to herein as a “ Stockholder ” and are collectively referred to herein as the “ Stockholders ”.

WHEREAS , TJMT is the controlling stockholder of the Company;

WHEREAS , NIH has entered into the Investment Agreement, dated as of the date hereof, with the Company (the “ Investment Agreement ”), pursuant to which NIH has agreed to purchase Company Equity Securities at the Closing;

WHEREAS , Havelock owns Company Equity Securities and Aranda will acquire Company Equity Securities on the date of the Closing pursuant to the Investment Agreement, dated as of the date hereof, by and between Aranda and the Company (the “ Temasek Investment Agreement ”);

WHEREAS , each of the Stockholders deems it to be in their best interest to enter into this Agreement to set forth their agreements with respect to certain matters concerning each of the Stockholders and the Company.

NOW, THEREFORE , in consideration of the promises and of the mutual consents and obligations hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the parties hereto hereby agree as follows:

Section 1.          Definitions .  

(a)         As used in this Agreement:

Affiliate ” means, with respect to any Person, (i) any Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, or (ii) any Person who is a general partner, partner, managing director, manager, officer, director or principal of the specified Person.  As used in this definition, the term “control,” including the correlative terms “controlling,” “controlled by” and “under common control with,” means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies (whether through ownership of securities or any partnership or other ownership interest, by contract or otherwise) of a Person.

Affiliated Transferee ” means (i) in the case of any Person that is an individual, any transferee of Company Equity Securities of such Person that is (x) an immediate family member of such Person, (y) a trust, family-partnership or estate-planning vehicle for the benefit of such Person and/or any of its immediate family members or (z) otherwise an Affiliate of such Person or (ii) in the case of any Person that is a limited liability company or other entity, any transferee

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of Company Equity Securities of such Person that is (x) an immediate family member of the individual that controls a majority of the voting or economic interest in such Person, (y) a trust, family-partnership or estate-planning vehicle for the benefit of such individual and/or any of its immediate family members or (z) otherwise an Affiliate of such Person.

Agreement ” has the meaning ascribed to such term in the Preamble.

Business Days ” means any day that is not a Saturday, Sunday or other day on which banks are required or authorized by Law to be closed in the City of New York.

Class A Common Stock ” means the Class A Common Stock, par value $0.00001 per share, of the Company.

Closing ” has the meaning ascribed to such term in the Investment Agreement.

Company Board ” means the Board of Directors of the Company.

Company Charter ” means the Amended and Restated Certificate of Incorporation of the Company.

Company Equity Securities ” means the capital stock of the Company.

Governmental Authority ” means any international, national, federal, state, provincial or local governmental, regulatory or administrative authority, agency, commission, court, tribunal, arbitral body or self-regulated entity (including any stock exchange), whether domestic or foreign.

Investment Agreement ” has the meaning ascribed to such term in the Recitals.

Law ” means any federal, state, local, municipal, foreign or other law, statute, legislation, constitution, principle of common law, ordinance, code, decree, order, judgment, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority and any order or decision of an applicable arbitrator or arbitration panel.

Merger Agreement ” means that certain Agreement and Plan of Merger, dated as of the date hereof, by and among the Company, Orchestra Merger Sub, Inc. and KCG Holdings, Inc.

Necessary Action ” means, with respect to a specified result, all actions necessary to cause such result, including (i) voting or providing a written consent or proxy with respect to the Company Equity Securities, whether at any annual or special meeting, by written consent or otherwise, (ii) causing the adoption of stockholders’ resolutions and amendments to organizational documents of the Company, (iii) prior to the occurrence of a Triggering Event (as defined in the Company Charter), causing members of the Company Board, to the extent such members were elected, nominated or designated by the Person obligated to undertake the Necessary Action, to act (subject to any applicable fiduciary duties) in a certain manner or causing them to be removed in the event they do not act in such a manner, (iv) executing agreements and instruments and (v) making, or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that are required to achieve such result.

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Offered Securities ” has the meaning ascribed to such term in Section 4(a) .

Person ” is to be construed broadly and includes an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.

Related Parties ” has the meaning ascribed to such term in Section 10(p) .

Related Party ” has the meaning ascribed to such term in Section 10(p) .

Rule 144 ” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such Rule.

Sale Notice ” has the meaning ascribed to such term in Section 4(b) .

SEC ” means the U.S. Securities and Exchange Commission.

Securities Act ” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

Tag-Along Purchaser ” has the meaning ascribed to such term in Section 4(a) .

Tag-Along Rightholder ” has the meaning ascribed to such term in Section 4(a) .

Tag-Along Sale ” has the meaning ascribed to such term in Section 4(a) .

Tag-Along Securities ” has the meaning ascribed to such term in Section 4(a) .

Tag-Along Seller ” has the meaning ascribed to such term in Section 4(a) .

Temasek Investment Agreement ” has the meaning ascribed to such term in the Recitals.

Transfer ” means any direct or indirect sale, transfer, pledge, lease, hypothecation, mortgage, gift or creation of security interest, lien or trust (voting or otherwise) or other encumbrance or other disposition of any Company Equity Securities, whether in whole or in part (by operation of Law or otherwise).

(b)       Interpretation of this Agreement shall be governed by the following rules of construction: (a) references to the terms Article, Section, paragraph, Annex and Exhibit are references to the Articles, Sections, paragraphs, Annexes and Exhibits to this Agreement unless otherwise specified; (b) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including Exhibits hereto; (c) references to “$” or “Dollars” shall mean United States dollars; (d) the words “include,” “includes,” “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (e) the word “or” shall not be exclusive; (f) references to “written” or “in writing” include in electronic form; (g) provisions shall apply, when appropriate, to successive

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events and transactions; (h) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (i) each of the Stockholders has participated in the negotiation and drafting of this Agreement and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or burdening either party by virtue of the authorship of any of the provisions in this Agreement; (j) a reference to any Person includes such Person’s permitted successors and assigns; (k) references to “days” mean calendar days unless Business Days are expressly specified; (l) the word “will” shall be construed to have the same meaning and effect as the word “shall”; (m) the terms “party”, “party hereto”, “parties” and “party hereto” shall mean a party to this Agreement and the parties to this Agreement, as applicable, unless otherwise specified; (n) with respect to the determination of any period of time, “from” means “from and including”; and (o) any deadline or time period set forth in this Agreement that by its terms ends on a day that is not a Business Day shall be automatically extended to the next succeeding Business Day.  Any agreement, instrument or statute defined or referred to herein means such agreement, instrument or statute as from time to time may be amended, supplemented, restated or modified, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes.

Section 2.          Composition of Company Board

(a)         TJMT agrees (i) to take all Necessary Action reasonably available within its power, including casting all votes to which TJMT is entitled in respect of its Company Equity Securities, whether at any annual or special meeting, by written consent or otherwise, so as to cause the election to the Company Board of each NIH director nominee pursuant to Section 4.4 of the Investment Agreement and (ii) not to grant, or enter into a binding agreement with respect to, any proxy to any Person in respect of TJMT’s Company Equity Securities that would prohibit TJMT from casting such votes or executing such consents, or would otherwise impair or interfere with TJMT’s ability to cast such votes or execute such consents, in accordance with clause (i).

(b)         TJMT shall not transfer, directly or indirectly, any Company Equity Securities to any of its Affiliated Transferees unless, at or prior to such transfer, the transferee has entered into and delivered to NIH an executed copy of a Joinder Agreement in the form attached hereto as Annex B to become party to this Agreement and shall be deemed to have the rights and obligations with respect to the transferred Company Equity Securities of TJMT for all purposes herein. If any such transferee is an individual and married, TJMT shall, as a condition to such transfer, cause such transferee to deliver to the Company and the other Stockholders a duly executed copy of a Spousal Consent in the form attached hereto as Annex C at or prior to such transfer.

(c)         TJMT’s obligations pursuant to this Section 2 shall automatically terminate upon the termination of NIH’s right to appoint directors pursuant to Section 4.4 of the Investment Agreement.

Section 3.          Action by Written Consent .  Concurrently with the execution and delivery of this Agreement, TJMT agrees to execute and deliver to the other Stockholders a copy of the

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written consent required pursuant to NASDAQ rules to approve the transactions contemplated by the Investment Agreement and the Temasek Investment Agreement.

Section 4.          Tag-Along Rights .    

(a)          General .  If at any time, TJMT (the “ Tag-Along Seller ”) proposes to Transfer any of its Company Equity Securities (the “ Offered Securities ”) to a Person other than an Affiliated Transferee (the “ Tag-Along Purchaser(s) ”), but excluding any Transfer of Company Equity Securities (1) effected pursuant to Rule 144 in an ordinary brokerage transaction that is subject to the limitations set forth in paragraph (e) of Rule 144; provided ,   however , that the Tag-Along Seller shall not be permitted to Transfer more than an aggregate of 10% of the Company Equity Securities owned by the Tag-Along Seller as of the date hereof pursuant to this Section 4(a)(1) or (2) (x) that is effected pursuant to a registration statement if and only if the Stockholders have the right to participate on a pro rata basis pursuant to Sections 2.1, 2.2, 2.3 or 2.4 or the Amended and Restated Registration Rights Agreement, dated as of April 20, 2017, to which the Company and the Stockholders are parties and (y) of which the Stockholders have at least fifteen (15) days prior written notice, then each other Stockholder holding Company Equity Securities (or, in the case of NIH, any limited partner of NIH to the extent NIH elects to designate such limited partner with respect to all or a portion of any Tag-Along Sale) (each, a “ Tag-Along Rightholder ”) shall have the right to participate in such Transfer of Company Equity Securities (“ Tag-Along Sale ”) on a pro rata basis (meaning that each Tag-Along Rightholder may sell a the proportion of its Company Equity Securities equal to the (x) number of Company Equity Securities the Tag-Along Seller proposes to transfer divided by (z) number of Company Equity Securities owned by such Tag-Along Seller immediately prior to such Transfer) (such participating Company Equity Securities, the “ Tag-Along Securities ”) held by such Tag-Along Rightholder in the manner set forth in this Section 4.  The Tag-Along Seller and the Tag-Along Rightholder(s) exercising their rights pursuant to this Section 4 shall effect the sale of the Offered Securities and such Tag-Along Rightholder(s) shall sell the number of Tag-Along Securities such Tag-Along Rightholder(s) elects to sell pursuant to this Section 4, and the number of Offered Securities to be sold to such Tag-Along Purchaser by the Tag-Along Seller shall be reduced accordingly.  The sale of Company Equity Securities by the Tag-Along Rightholders shall (subject to Section 4(e)) be on the same terms and conditions as the sale of Offered Securities by the Tag-Along Seller, and at the closing of the Tag-Along Sale, the purchaser shall remit directly to the Tag-Along Seller and each Tag-Along Rightholder, by wire transfer if available and if requested by such Tag-Along Seller or such Tag-Along Rightholder, the consideration for the Company Equity Securities sold.    

(b)         Procedure .  The Tag-Along Seller shall give notice (the “ Sale Notice ”) to each Tag-Along Rightholder of each proposed sale by it of Offered Securities which gives rise to the rights of the Tag-Along Rightholders set forth in this Section 4, at least fifteen (15) days prior to the proposed consummation of such sale, setting forth the name of such Tag-Along Seller, the number of Offered Securities, the name and address of the proposed Tag-Along Purchaser, the proposed amount and form of consideration and terms and conditions of payment offered by such Tag-Along Purchaser and allocable to such Tag-Along Rightholder, the percentage of Tag-Along Securities that such Tag-Along Rightholder may sell to such Tag-Along Purchaser and a representation that such Tag-Along Purchaser has been informed of the “tag-along” rights provided for in this Section 4 and has agreed to purchase Tag-Along Securities in accordance with the terms hereof.  The tag-along rights provided by this Section 4 must be exercised by any Tag-

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Along Rightholder wishing to sell its Tag-Along Securities within ten (10) days following receipt of the Sale Notice, by delivery of a written notice to the Tag-Along Seller indicating such Tag-Along Rightholder’s wish to exercise its rights and specifying the number of Tag-Along Securities it wishes to sell.  The failure of a Tag-Along Rightholder to respond within such ten (10)-day period shall be deemed to be a waiver of such Tag-Along Rightholder’s rights under this Section 4. Any Tag-Along Rightholder may waive its rights under this Section 4 prior to the expiration of such fifteen (15)-day period by giving written notice to the Tag-Along Seller, with a copy to the Company.

(c)          Failure to Exercise .  If any Tag-Along Rightholder does not exercise its right to participate in such sale, the Tag-Along Seller shall have ninety (90) days (plus such number of additional days (if any) necessary to obtain any consents or approvals or allow the expiration or termination of all waiting periods under applicable Law) from the date of such Sale Notice to consummate the transaction on terms not materially more favorable to the Tag-Along Seller than those set forth in the Sale Notice without being required to provide an additional Sale Notice to the Tag-Along Rightholders.

(d)          Cutbacks .  If a Tag-Along Purchaser is unwilling to purchase, in the aggregate, the total number of Company Equity Securities that the Tag-Along Seller and the Tag-Along Rightholders wish to sell pursuant to Section 4(a), such Company Equity Securities that are allocable to the Tag-Along Seller and the Tag-Along Rightholders, in the aggregate, shall be allocated among the Tag-Along Seller and Tag-Along Rightholders in proportion to the total number of shares of Company Equity Securities then owned by the Tag-Along Seller and Tag-Along Rightholders.

(e)          Representations, Warranties and Other Agreements .  In furtherance and not in limitation of the foregoing, each Stockholder exercising its right to sell Tag-Along Securities pursuant to this Section 4 shall (i) make the same representations, warranties, covenants, indemnities and agreements (and shall be subject on a pro rata basis to the same escrow or other holdback arrangements) as made by the Tag-Along Seller in connection with the Tag-Along Seller’s Transfer of Tag-Along Securities to the Tag-Along Purchaser(s), (ii) agree to the same terms and conditions to the Transfer as those to which the Tag-Along Seller agrees, and (iii) convert any Tag-Along Securities held by such Tag-Along Seller that are preferred stock of the Company into Class A Common Stock of the Company prior to the closing of such Tag-Along Sale.  Notwithstanding the foregoing, (x) all such representations, warranties, covenants, indemnities and agreements shall be made by the Tag-Along Seller and each Stockholder Transferring Tag-Along Securities severally, and not jointly, and any liability for breach of any representations, warranties, covenants and agreements related to the Company (but, for the avoidance of doubt, not those representations relating to ownership of Tag-Along Securities or the absence of liens on Tag-Along Securities) shall be allocated among the Tag-Along Seller and each Stockholder Transferring Tag-Along Securities pro rata based on the number of Company Equity Securities sold, (y) a Tag-Along Rightholder shall not be responsible for any indemnification obligations and liabilities (including through escrow or holdback arrangements) for breaches of representations and warranties made with respect to any Tag-Along Seller’s or other Tag-Along Rightholder’s (1) ownership of and title to Company Equity Securities, (2) organization and authority or (3) conflicts and consents and any other matter concerning such other Tag-Along Seller or Tag-Along Rightholder or for breaches of any covenant specifically relating to any Tag-

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Along Seller or other Tag-Along Rightholder and (z) no Tag-Along Rightholder shall be required in connection with such Tag-Along Sale to agree to (I) any non-solicit, no hire or other similar provision, (II) any non-compete or similar restrictive covenant or (III) any term that purports to bind any Purchaser Affiliated Party (as defined in the Investment Agreement) or Purchaser Affiliated Party (as defined in the Temasek Investment Agreement), of NIH or the Temasek Holders, as applicable, unless such Purchaser Affiliated Party is the owner of the applicable Tag-Along Securities.  In no event shall the liability under the preceding sentence of a Stockholder Transferring Tag-Along Securities be greater than the dollar amount of the proceeds received by such Stockholder upon the Transfer of the Tag-Along Securities to the Tag-Along Purchaser(s).

(f)          Company Cooperation .  Any Transfer or attempted Transfer of Company Equity Securities in violation of this Section 4 shall, to the fullest extent permitted by applicable law, be null and void ab initio, and the Company shall not, and shall instruct its transfer agent and other third parties not to, record or recognize any such purported transaction on the share register of the Company.

Section 5.          Effectiveness .  This Agreement shall be effective as of the date hereof, other than Section 2 and Section 4, which shall become effective solely upon the Closing.

Section 6.          Notices .  In the event a notice or other document is required to be sent hereunder to any Stockholder, such notice or other document shall be given in writing, shall be either personally delivered to each of the Stockholders or delivered by an established delivery service by which receipts are given or mailed by first-class mail, postage prepaid, or sent by electronic mail, addressed to the party entitled to receive such notice or other document pursuant to the contact information for each party set forth on Annex A hereto.  All notices, other communications or documents shall be deemed to have been duly given: (i) at the time delivered by hand, if personally delivered; (ii) when sent, if by electronic mail (except if any error or “bounce back” electronic mail message is received by the sender and in such case, upon actual receipt by the party to whom such notice or document is being sent); (iii) five (5) Business Days after having been deposited in the mail, postage prepaid, if mailed by first class mail; and (iv) on the first Business Day with respect to which a reputable air courier guarantees delivery.

Section 7.          Amendment .    This Agreement may not be modified or amended and no waiver, consent or approval by or on behalf of TJMT, NIH and  the Temasek Holders may be granted except by an instrument or instruments in writing signed by, in the case of any modification or amendment, each party to this Agreement or, in the case of any waiver, consent or approval, such party.

Section 8.          Representations and Warranties

(a)         Representations and Warranties of the Stockholders .  Each Stockholder hereby represents and warrants, severally and not jointly, and solely on its own behalf, to each other Stockholder that on the date hereof:

(i)          Existence; Authority; Enforceability.  Such Stockholder has the necessary power and authority to enter into this Agreement and to carry out its obligations hereunder.  Such Stockholder is duly organized and validly existing under the laws of its

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jurisdiction of organization, and the execution of this Agreement, and the consummation of the transactions contemplated herein, have been authorized by all necessary corporate or other action, and no other act or proceeding, corporate or otherwise, on its part is necessary to authorize the execution of this Agreement or the consummation of any of the transactions contemplated hereby.  This Agreement has been duly executed by such Stockholder and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at Law).

(ii)          Absence of Conflicts.  The execution and delivery by such Stockholder of this Agreement and the performance of its obligations hereunder do not and will not:  (A) conflict with, or result in the breach of any provision of the constitutive documents of such Stockholder; (B) result in any violation, breach, conflict, default or event of default (or an event which with notice, lapse of time, or both, would constitute a default or event of default), or give rise to any right of acceleration  or termination or any additional payment obligation, under the terms of any material contract, agreement or permit to which such Stockholder is a party or by which such Stockholder’s assets or operations are bound; or (C) violate, in any material respect, any Law applicable to such Stockholder.

(iii)        Consents .  Other than any consents that have already been obtained, no consent, waiver, approval, authorization, exemption, registration, license or declaration of or by a Governmental Authority is required to be made or obtained by such Stockholder in connection with the execution, delivery or performance of this Agreement.

(b)          Entitlement of Stockholders to Rely on Representations and Warranties .  The foregoing representations and warranties may be relied upon by the Stockholders, in connection with the entering into of this Agreement.

Section 9.          Termination .  This Agreement shall terminate automatically (without any action by any party hereto) (a) upon termination of the Investment Agreement, and (b) with respect to a Stockholder, when such Stockholder no longer owns any Company Equity Securities; provided ,   however , that the provisions of Section 6, Section 7, this Section 9 and Section 10 shall survive such termination.  Termination of any provisions of this Agreement shall not relieve any party from any liability for the breach of any obligations set forth in this Agreement prior to such termination.  Except as otherwise provided herein, any Stockholder who disposes of all of his, her or its Company Equity Securities shall have no further rights or obligations hereunder.

Section 10.         Miscellaneous Provisions .

(a)          Counterparts; Electronic Transmission .  For the convenience of the parties hereto, this Agreement may be executed in any number of separate counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same agreement.  Executed signature pages to this Agreement may be delivered by

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facsimile or other means of electronic transmission and such facsimiles or other means of electronic transmission will be deemed as sufficient as if actual signature pages had been delivered.

(b)          Governing Law .  This Agreement will be governed by and construed in accordance with the laws of the State of New York (except to the extent that mandatory provisions of Delaware law are applicable).  The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in the Borough of Manhattan, State of New York for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby.  The parties hereby irrevocably and unconditionally consent to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such action, suit or proceeding and irrevocably waive, to the fullest extent permitted by law, any objection that they may now or hereafter have to the laying of the venue of any such action, suit or proceeding in any such court or that any such action, suit or proceeding which is brought in any such court has been brought in an inconvenient forum.  Process in any such action, suit or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.  Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 6 shall be deemed effective service of process on such party.

(c)         WAIVER OF JURY TRIAL .  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(d)          Entire Agreement .  This Agreement and the Investment Agreement constitute the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

(e)          Assignment .  Neither this Agreement, nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other party, provided, however, that (i) NIH may assign its rights, interests and obligations under this Agreement, in whole or in part, to one or more Permitted Transferees (as defined in the Investment Agreement) and in the event of such assignment, the assignee shall agree in writing to be bound by the provisions of this Agreement, including the rights, interests and obligations so assigned.

(f)          Interpretation .  Wherever required by the context of this Agreement, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa, and references to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as amended, supplemented or modified from time to time.  All article, section, paragraph or clause references not attributed to a particular document shall be references to such parts of this Agreement, and all exhibit, annex, letter and schedule references not attributed to a particular document shall be references to such exhibits, annexes, letters and schedules to this Agreement.  In addition, the following terms are ascribed the following meanings: (i) the word “or” is not exclusive; (ii) the words “including,” “includes,” “included” and “include” are deemed to be followed by the words “without limitation”;

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(iii) the terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision; and (iv) the term “person” has the meaning given to it in Section 3(a)(9) of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act.

(g)          Captions .  The article, section, paragraph and clause captions herein are for convenience of reference only, do not constitute part of this Agreement and will not be deemed to limit or otherwise affect any of the provisions hereof.

(h)          Further Assurances .  Each party hereto shall do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments, and other documents as any other party hereto reasonably may request in order to carry out the provisions of this Agreement and the consummation of the transactions contemplated hereby.

(i)           Severability .  If any provision of this Agreement or the application thereof to any person (including the officers and directors of the parties hereto) or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, will remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.

(j)           No Third Party Beneficiaries .  Except as expressly provided herein, nothing contained in this Agreement, expressed or implied, is intended to confer upon any person other than the parties hereto (and their permitted assigns), any benefit, right or remedies.

(k)          Specific Performance .  The parties 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.  It is accordingly agreed that, without the necessity of posting bond or other undertaking, the parties shall be entitled to specific performance of the terms hereof, this being in addition to any other remedies to which they are entitled at law or equity, and in the event that any action or suit is brought in equity to enforce the provisions of this Agreement, and no party will allege, and each party hereby waives, the defense or counterclaim that there is an adequate remedy at law.

(l)           Non-Recourse .  This Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against the entities that are expressly identified as parties hereto, and no former, current or future equityholders, controlling persons, directors, officers, employees, agents or Affiliates of any party hereto or any former, current or future equityholder, controlling person, director, officer, employee, general or limited partner, member, manager, advisor, agent or Affiliate of any of the foregoing (each, a “ Non-Recourse Party ”) shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim (whether in tort, contract or otherwise) based on, in respect of, or

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by reason of, the transactions contemplated hereby or in respect of any representations made or alleged to be made in connection herewith.  Without limiting the rights of any party against the other parties hereto, in no event shall any party or any of its Affiliates seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any Non-Recourse Party.

[Signature page follows.]

 

 

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This Stockholders Agreement is executed by the parties hereto to be effective as of the date first above written.

 

 

TJMT

 

 

 

TJMT HOLDINGS LLC

 

 

 

By:

/s/ Michael Viola

 

 

Name:

Michael Viola

 

 

Title:

Authorized Person

 

 

 

NIH

 

 

 

NORTH ISLAND HOLDINGS I, LP

 

 

 

By:

North Island Holdings I GP, LP, its general partner

 

 

 

By:

North Island Ventures, LLC, its general partner

 

 

 

By:

/s/ Glenn Hutchins

 

 

Name:

Glenn Hutchins

 

 

Title:

Chief Executive Officer

 

 

 

TEMASEK

 

 

 

HAVELOCK FUND INVESTMENTS PTE LTD

 

 

 

By:

/s/ Png Chin Yee

 

 

Name:

Png Chin Yee

 

 

Title:

Authorized Signatory

 

 

 

ARANDA INVESTMENTS PTE. LTD.

 

 

 

By:

/s/ Png Chin Yee

 

 

Name:

Png Chin Yee

 

 

Title:

Authorized Signatory

 

 

 

COMPANY

 

 

 

VIRTU FINANCIAL, INC.

 

 

 

By:

/s/ Douglas A. Cifu

 

 

Name:

Douglas A. Cifu

 

 

Title:

Chief Executive Officer

 

 

Signature Page to Stockholders Agreement


Exhibit 10.3

EXECUTION VERSION

AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

This Amended and Restated Registration Rights Agreement (as amended, supplemented or otherwise modified from time to time, this “ Agreement ”), dated as of April 20, 2017, is made by and among:

i.    Virtu Financial, Inc., a Delaware corporation (the “ Company ”);

ii.   TJMT Holdings LLC (f/k/a Virtu Holdings LLC), a Delaware limited liability company (the “ Viola Holder ”);

iii.  North Island Holdings I, LP, a Delaware limited partnership (the “ North Island Holder ”);

iv.  Havelock Fund Investments Pte Ltd., a Singapore private limited company (“ Havelock ”), and Aranda Investments Pte. Ltd., a Singapore private limited company (“ Aranda ”) (each, a “ Temasek Holder ” and, collectively, the “ Temasek Holders ”);

v.   Virtu Employee Holdco LLC, a Delaware limited liability company, and Virtu Ireland Employee Holdco Limited, as trustee of the Virtu Ireland Employee Trust (each, a  “ Management Vehicle ” and, collectively, the “ Management Vehicles ”); and

vi.  the other Persons who execute the signature pages hereto under the heading “Additional Holders” (collectively with the Management Vehicles, the “ Other Holders ”).

The Viola Holder, the North Island Holder, the Temasek Holders and Other Holders are each referred to herein as a “ Holder ” and are collectively referred to herein as the “ Holders ”.  In addition, the Holders and the Company are each referred to herein as a “ Party ” and are collectively referred to herein as the “ Parties ”. 

WHEREAS, in connection with a series of reorganization transactions (the “ Reorganization Transactions ”) effected prior to, or concurrently with, the Company’s initial public offering (the “ IPO ”) of shares of Class A common stock, $0.00001 par value per share (the “ Class A Common Stock ”), the Company, the Viola Holder, certain affiliates of Silver Lake Partners (the “ SL Holders ”),  Havelock, the Management Vehicles and certain other holders entered into a registration rights agreement on April 15, 2015 (the “ Existing Registration Rights Agreement ”);

 WHEREAS, the SL Holders exited their investment in the Company through a secondary offering in November 2015 and, as a result, their rights and obligations under the Existing Registration Rights Agreement have automatically terminated pursuant to the terms thereof;

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WHEREAS, the Company and the North Island Holder have entered into an investment agreement (the “ North Island Investment Agreement ”) on April 20, 2017, pursuant to which the Company will issue shares of Class A Common Stock to North Island Holder;

WHEREAS, the Company and Aranda have entered into an investment agreement (the “ Temasek Investment Agreement ”) on April 20, 2017, pursuant to which the Company will issue shares of Class A Common Stock to Aranda;

WHEREAS, to induce the North Island Holder to enter into the North Island Investment Agreement and consummate the transactions contemplated thereby, the Company has agreed to provide the registration rights to the North Island Holder set forth in this Agreement; and

WHEREAS, the Company, the Viola Holder, the Temasek Holders and the Additional Holders desire to amend and restate the Existing Registration Rights Agreement in its entirety;

NOW, THEREFORE, in consideration of the premises and of the mutual agreements, covenants and provisions contained in this Agreement, the Parties agree that the Existing Registration Rights Agreement shall be, and hereby is, amended and restated in its entirety as follows:

ARTICLE I

Definitions

1.1          Definitions .  The following terms shall have the following respective meanings:

Affiliate ” means, with respect to any person, any person directly or indirectly controlling, controlled by or under common control with, such other person; provided, however, that portfolio companies in which any person or any of its Affiliates has an investment shall not be deemed an Affiliate of such person.  Notwithstanding the immediately preceding sentence, Havelock Fund Investments Pte Ltd. (a Singapore private limited company), Temasek Holdings (Private) Limited (a Singapore private limited company), and Temasek Holdings (Private) Limited’s direct and indirect wholly owned subsidiaries, the boards of directors or equivalent governing bodies of which comprise solely nominees or employees of (i) Temasek Holdings (Private) Limited, (ii) Temasek Pte Ltd. (a wholly owned subsidiary of Temasek Holdings (Private) Limited) and/or (iii) wholly owned direct and indirect subsidiaries of Temasek Pte Ltd., shall be the sole Affiliates of the Temasek Holders.  For purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) when used with respect to any person, means the possession, directly or indirectly, of the power to cause the direction of management or policies of such person, whether through the ownership of voting securities, by contract or otherwise.

Agreement ” has the meaning set forth in the preamble.

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Business Day ” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by applicable law to close.

Class A Common Stock ” has the meaning set forth in the recitals.

Class B Common Stock ”  means shares of the Company’s Class B common stock, $0.00001 par value per share.

Class C Common Stock ”  means shares of the Company’s Class C common stock, $0.00001 par value per share.

Class D Common Stock ”  means shares of the Company’s Class D common stock, $0.00001 par value per share.

Common Stock ” means the Class A Common Stock.

Company ” has the meaning set forth in the preamble.

Continuance Notice ” has the meaning set forth in Section 2.6(c).

Cutback Trigger ” means the completion of the offering that is counted under Section 2.1(b) as the second Demand under this Agreement following the date hereof.

Declining Parties ”  has the meaning set forth in Section 2.4(d).

Demand ” has the meaning set forth in Section 2.1(a).

Demand Registration ” has the meaning set forth in Section 2.1(a).

Disclosure Package ” means (i) the preliminary prospectus, (ii) each Free Writing Prospectus and (iii) all other information that is deemed, under Rule 159 under the Securities Act, to have been conveyed to purchasers of securities at the time of sale (including a contract of sale).

Electing Registration Party ” has the meaning set forth in Section 2.6(c).

Equity Securities ” means, with respect to any Person, any (i) membership interests or shares of capital stock, (ii) equity, ownership, voting, profit or participation interests or (iii) similar rights or securities in such Person or any of its Subsidiaries, or any rights or securities convertible into or exchangeable for, options or other rights to acquire from such Person or any of its Subsidiaries, or obligation on the part of such Person or any of its Subsidiaries to issue, any of the foregoing.

Exchange ” means (i) the exchange of shares of Class D Common Stock together with Virtu Financial Units for shares of Class B Common Stock, pursuant to the Exchange Agreement, and the further conversion of such shares of Class B Common Stock into shares of Common Stock and (ii) the exchange of shares of Class C Common Stock together with Virtu Financial Units for shares of Common Stock, pursuant to the Exchange Agreement.

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Exchange Agreement ”  means the Exchange Agreement, dated as of April 15, 2015, by and among the Company, Virtu Financial and the other Persons listed on the signature pages thereto.

Excluded Parties ”  has the meaning set forth in Section 2.1(f).

Existing Registration Rights Agreement ”  has the meaning set forth in the recitals.

Form S-3 Registration Statement ” has the meaning set forth in Section 2.3(b).

Form S-3 Shelf Registration Statement ” has the meaning set forth in Section 2.3(b).

Free Writing Prospectus ” means any “free writing prospectus,” as defined in Rule 405 under the Securities Act.

Governmental Authority ” means any transnational, domestic or foreign federal, state or local governmental, regulatory or administrative authority, department, court, agency or official, including any political subdivision thereof.

Holder ” has the meaning set forth in the preamble.

Initiating Shelf Holder ” has the meaning set forth in the Section 2.4(a).

IPO ” has the meaning set forth in the recitals.

Management Vehicle ” has the meaning set forth in the preamble.

Marketed Underwritten Shelf Take-Down ” has the meaning set forth in Section 2.4(b).

Non-Marketed Take-Down Share ” has the meaning set forth in Section 2.4(d).

Non-Marketed Underwritten Shelf Take-Down ” has the meaning set forth in Section 2.4(c).

 “ Non-Marketed Underwritten Shelf Take-Down Notice ” has the meaning set forth in Section 2.4(d).

Non-Marketed Underwritten Shelf Take-Down Piggyback Election ” has the meaning set forth in Section 2.4(c).

North Island Investment Agreement ” has the meaning set forth in the recitals.

North Island Holder ” has the meaning set forth in the recitals.  

North Island Limited Partners ” means Coral Blue Investment Pte. Ltd., Public Sector Pension Investment Board and each other limited partner of the North Island Holder as of

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the date hereof and any other limited partners of the North Island Holder that the Company has consented in writing to include in the definition of North Island Limited Partners.

North Island Percentage ” means until the completion of the offering that is counted under Section 2.1(b) as the second Demand under this Agreement following the date hereof,  25% (or, at any time on or prior to the Cutback Trigger that (x) Temasek Holders do not then hold Registrable Securities or (y) to the extent the Temasek Holders are Excluded Parties, 50%).

North Island Registration Party ” means any North Island Holder or any of its respective Transferees under Section 2.1(c) holding Registrable Securities, and, for purposes of determining the percentage ownership of Registrable Securities of the North Island Registration Parties for any purpose under this Agreement, all of the North Island Limited Partners of the North Island Holder that own Registrable Securities.

Notice Recipient ” has the meaning set forth in Section 2.4(c).

Other Holders ” has the meaning set forth in the preamble.

Other Securities ” means Common Stock of the Company sought to be included in a registration other than Registrable Securities.

Parties ” has the meaning set forth in the preamble.

Percentage ” means the Viola Percentage, the North Island Percentage or the Temasek Percentage, as applicable.

Person ” means any individual, firm, corporation, partnership, limited liability company, trust, estate, joint venture, governmental authority or other entity.

Piggyback Notice ” has the meaning set forth in Section 2.2(a).

Public Offering ” means a public offering of Common Stock pursuant to an effective registration statement (other than on Form S-4 or Form S-8 or their respective equivalents) filed by the Company under the Securities Act.

Registrable Securities ” means shares of Common Stock owned by the Holders, whether now held or hereinafter acquired, including any shares of Common Stock issuable or issued upon conversion or exchange of other securities of the Company or any of its Subsidiaries (“ Overlying Securities ”), including upon an Exchange or by way of unit or stock dividend or unit or stock split, or in connection with a combination of units or shares, recapitalization, merger, consolidation or other reorganization, until: (i) a registration statement covering such shares of Common Stock or applicable Overlying Securities has been declared effective by the SEC and such shares of Common Stock or applicable Overlying Securities have been disposed of pursuant to such effective registration statement; (ii) such shares of Common Stock or applicable Overlying Securities are sold under circumstances in which all of the applicable conditions of Rule 144 (or any similar provisions then in force) under the Securities Act are met; (iii) with respect to any Holder, such Holder and its Affiliates beneficially own less than 2% of the

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outstanding Common Stock and all of such shares of Common Stock may be sold without restriction under Rule 144 (or any similar provisions then in force) or (iv) (A) such shares of Common Stock or applicable Overlying Securities are otherwise Transferred to a non-Affiliate of the Transferor, (B) the Company has delivered a new certificate or other evidence of ownership for such shares of Common Stock or applicable Overlying Securities not bearing a restrictive legend and (C) such shares of Common Stock or applicable Overlying Securities may be resold without limitation or subsequent registration under the Securities Act. 

Registration Expenses ” means any and all expenses incident to performance of or compliance with any registration of securities pursuant to Article II (other than underwriting discounts and commissions), including (i) the fees, disbursements and expenses of the Company’s counsel and accountants, including for special audits and comfort letters; (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 state “blue sky” securities laws, including the reasonable fees and disbursements of one counsel for the underwriters and the Selling Holders in connection with such qualification and in connection with any blue sky and legal investment surveys; (v) all expenses, including filing fees, incident to securing any required review by FINRA 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 the Company is obligated to pay pursuant to Section 2.7(o); and (x) the reasonable fees and disbursements of one counsel for the Registration Parties participating in the registration (which counsel shall be chosen by the participating Registration Party, other than the Viola  Registration Parties, that then holds the most Registrable Securities) incurred in connection with any such registration and any offering of Common Stock relating to such registration, including Shelf-Take Downs (as defined below).

Registration Party ” means any North Island Registration Party, any Temasek Registration Party or any Viola Registration Party.  

Remaining Registration Party Groups ” has the meaning set forth in Section 2.4(d).

Resale Shelf Registration Statement ” has the meaning set forth in Section 2.3(b).

Selling Holder ” means, with respect to any registration statement, any Holder whose Registrable Securities are included therein.

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Shelf Holder ” means any Holder whose Registrable Securities are included in the Form S-3 Shelf Registration Statement or Shelf Registration Statement.

Shelf Registration Statement ” has the meaning set forth in Section 2.4(a).

Shelf Take-Down ” has the meaning set forth in Section 2.4(a).

SL Holder ”  has the meaning set forth in the preamble.

Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof.

Subsequent Shelf Registration Statement ” has the meaning set forth in Section 2.3(b).

Temasek Holders ” has the meaning set forth in the preamble.

“Temasek Investment Agreement ”  has the meaning set forth in the recitals.

Temasek Percentage ” means until the completion of the offering that is counted under Section 2.1(b) as the second Demand under this Agreement following the date hereof,  25% (or, at any time on or prior to the Cutback Trigger that (x) the North Island Holder do not then hold Registrable Securities or (y) to the extent the North Island Holder are Excluded Parties, 50%).

Temasek Registration Party ” means the Temasek Holders or any of their respective Transferees under Section 2.1(c) holding Registrable Securities.

Transfer ” means any sale, assignment, transfer, exchange, gift, bequest, pledge, hypothecation or other disposition or encumbrance, direct or indirect, in whole or in part, by operation of law or otherwise. The terms “ Transferred ”, “ Transferring ”, “ Transferor ”, “ Transferee ” and “ Transferable ” have meanings correlative to the foregoing.

Underwritten Shelf Take-Down ” has the meaning set forth in Section 2.4(b). 

Underwritten Shelf Take-Down Notice ” has the meaning set forth in Section 2.4(b).

Viola Holder ” has the meaning set forth in the preamble.

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Viola Percentage ” means until the completion of the offering that is counted under Section 2.1(b) as the second Demand under this Agreement following the date hereof, 50%.

Viola Registration Party ” means any Viola Holder or any of its respective Transferees under Section 2.1(c) holding Registrable Securities.

Virtu Financial ” means Virtu Financial LLC, a Delaware limited liability company of which the Company is the managing member.

Virtu Financial Units ”  means non-voting common interest units in Virtu Financial.

Withdrawn Offering ” has the meaning set forth in Section 2.6(c).

ARTICLE II

REGISTRATION RIGHTS

2.1           Demand Rights .

(a)          Demand Rights .  Subject to the terms and conditions of this Agreement (including Section 2.1(b)), at any time upon written notice delivered by a Viola Registration Party, a North Island Registration Party or a Temasek Registration Party (a “ Demand ”) at any time requesting that the Company effect the registration (a “ Demand Registration ”) under the Securities Act of any or all of the Registrable Securities held by such Registration Party, which Demand shall specify the number and type of such Registrable Securities to be included in such registration and the intended method or methods of disposition of such Registrable Securities, the Company shall, as promptly as reasonably practicable, give written notice of such Demand to all other Holders and shall, as promptly as reasonably practicable, at any time after the expiration or waiver of the lockup agreements delivered pursuant to the Underwriting Agreement, file the appropriate registration statement and use reasonable best efforts to effect the registration under the Securities Act and applicable state securities laws of (i) the Registrable Securities which the Company has been so requested to register for sale by such Registration Party in the Demand, and (ii) all other Registrable Securities which the Company has been requested to register for sale by such other Holders by written request given to the Company within 20 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities), in each case subject to Section 2.1(f), all to the extent required to permit the disposition (in accordance with such intended methods of disposition) of the Registrable Securities to be so registered for sale.  Notwithstanding the foregoing, in the event the method of disposition is an underwritten offering, the right of any Holder to include Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise agreed by the Holders with a majority of the Registrable Securities participating in the registration and by the requesting Registration Party) to the extent provided in this Agreement, and all Holders proposing to distribute their Registrable Securities through such underwriting shall (together with the Company as provided in Section

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2.7) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.

(b)          Limitations on Demand Rights .  The Viola Registration Parties shall be entitled to make seven Demands under Section 2.1(a), the North Island Registration Parties shall be entitled to make four Demands under Section 2.1(a) and the Temasek Registration Parties shall be entitled to make three Demands under Section 2.1(a), subject in each case to Section 2.6(c); provided , that any Viola Registration Party, North Island Registration Party or Temasek Registration Party shall only be entitled to make a Demand pursuant to Section 2.1(a) if such Registration Party is requesting the registration of Registrable Securities held by it and its Affiliates that are Registration Parties with an aggregate estimated market value of at least $50 million.  No registration effected pursuant to Section 2.2 or Section 2.3 and no Shelf Take-Down pursuant to Section 2.4 shall be counted as the making of a Demand for purposes of Section 2.1(a); provided , that, subject to Section 2.6(c), a request for a Marketed Underwritten Shelf Take-Down (as defined below) pursuant to Section 2.4(b) shall count as one Demand.  For the avoidance of doubt, a demand for shelf registration made together with a request for a Marketed Underwritten Shelf Take-Down shall together constitute a single Demand. 

(c)          Assignment .  In connection with the Transfer of Registrable Securities to any Person, a Registration Party or Other Holder may assign to any Transferee of such Registrable Securities (i) the right to make one or more Demands pursuant to Section 2.1(a) and (ii) the right to participate in or effect any registration and/or Shelf Take-Down pursuant to the terms of Section 2.1(a)(ii), Section 2.2, Section 2.3 and Section 2.4, in each case to the extent that such Transferor has such rights.  In the event of any such assignment, references to the Registration Parties in Section 2.1, Section 2.2, Section 2.3 and Section 2.4 shall be deemed to refer to such Transferee if such Transferee is making any Demand or otherwise exercising its registration rights hereunder.  In each of the foregoing cases, in the event the relevant Registration Party or Other Holder assigns, directly or indirectly, any registration rights to any Person as contemplated in this Section 2.1(c) in connection with a Transfer of Registrable Securities, the Registration Party or Other Holder shall, as a condition to any such assignment, require such Transferee to enter into a Joinder Agreement in the form attached hereto as Annex B to become party to this Agreement and expressly be subject to Section 2.12 herein.  If any such Transferee is an individual and married, such relevant Registration Party or Other Holder shall, as a condition to such Transfer, cause such Transferee to deliver to the Company a duly executed copy of a Spousal Consent in the form attached hereto as Annex C .  In the event of any such assignment, references to the Registration Party or Other Holder in Section 2.12 shall be deemed to refer to such Transferee.  In addition, in each of the foregoing cases, the relevant Registration Party or Other Holder, as applicable, shall, as promptly as reasonably practicable, give written notice of any such assignment to the Company and, in the case of an assignment by a Registration Party, the other Registration Parties in accordance with the addresses and other contact information set forth under Section 3.1 and on Annex A to this Agreement.  For the avoidance of doubt, any registration rights or allocations provided under this Agreement to a North Island Holder may be assigned by such North Island Holder without limitation to any other North Island Registration Party,  any registration rights or allocations provided under this Agreement to the Temasek Holders may be assigned by such Temasek Holders without limitation to any other Temasek Registration Party and any registration rights or allocations

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provided under this Agreement to the Viola Holder may be assigned by such Viola Holder without limitation to any other Viola Registration Party.

(d)          Company Blackout Rights .  With respect to any registration statement filed, or to be filed, including any amendment, renewal or replacement thereof, pursuant to this Section 2.1, if (i) the board of directors of the Company determines in good faith after consultation with outside counsel that such registration would cause the Company to disclose material non-public information, which disclosure (x) would be required to be made in any registration statement so that such registration statement would not be materially misleading, (y) would not be required to be made at such time but for the filing or effectiveness of such registration statement and (z) would be materially detrimental to the Company or would materially interfere with any material financing, acquisition, corporate reorganization or merger or other similar transaction involving the Company or any of its Subsidiaries, and that, as a result of such potential disclosure or interference, it is in the best interests of the Company to defer the filing or effectiveness of such registration statement at such time or suspend the Selling Holders’ use of any prospectus which is a part of the registration statement, and (ii) the Company furnishes to the Selling Holders a certificate signed by the chief executive officer of the Company to that effect, then the Company shall have the right to defer such filing or effectiveness or suspend the continuance of such effectiveness for a period of not more than 135 days (in which event, in the case of a suspension, such Selling Holder shall discontinue sales of Registrable Securities pursuant to such registration statement); provided , that the Company shall not use this right, together with any other deferral or suspension of the Company’s obligations under Section 2.1 or Section 2.3, more than once in any 12-month period. The Company shall as promptly as reasonably practicable notify the Selling Holders of the expiration of any deferral or suspension period during which it exercised its rights under this Section 2.1(d).  The Company agrees that, in the event it exercises its rights under this Section 2.1(d), it shall, as promptly as reasonably practicable following the expiration of the applicable deferral or suspension period, file or update and use its reasonable best efforts to cause the effectiveness of, as applicable, the applicable deferred or suspended registration statement or prospectus which is a part of the registration statement.

(e)          Fulfillment of Registration Obligations .  Notwithstanding any other provision of this Agreement, a registration requested pursuant to this Section 2.1 shall not be deemed to have been effected and the Registration Party that issued the Demand shall not be deemed to have used one of its Demands for purposes of Section 2.1(b):  (i) if the registration statement is withdrawn without becoming 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 any other Governmental Authority for any reason other than a misrepresentation or an omission by a Selling Holder that is the Registration Party, or an Affiliate of the Registration Party (other than the Company and its controlled Affiliates), that made the Demand relating to such registration 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; (iii) if the registration does not contemplate an underwritten offering, if it does not remain effective for at least 180 days (or such shorter period as will terminate when all securities covered by such registration statement have been sold or withdrawn); or if such registration statement contemplates an underwritten offering, if it does not remain effective for at least 180 days plus such longer period as, in the opinion of counsel for the

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underwriter or underwriters, a prospectus is required by Applicable 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 (including any condition relating to an overallotment option) 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 Selling Holder that is the Registration Party, or an Affiliate of the Registration Party, that made the Demand relating to such registration.

(f)          Cutbacks in Demand Registration .  If the lead underwriter or managing underwriter advises the Company in writing (with a copy to each Selling Holder) that, in such firm’s good faith view, the number of Registrable Securities and Other Securities requested to be included in a Demand 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 Registrable Securities and Other Securities then contemplated, the Company shall include in such registration:

(1)          first, Registrable Securities owned by the Registration Parties that are requested to be included in such registration pursuant to Section 2.1(a) and that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such fully vested Registrable Securities owned by the Viola Registration Parties, the North Island Registration Parties and the Temasek Registration Parties seeking or requesting inclusion in such registration; provided , that until the Cutback Trigger, such Registrable Securities that are allocable to the Registration Parties in the aggregate pursuant to the preceding portion of this clause (1) shall be allocated among the Registration Parties as follows:  (x) first (unless any of the Viola Registration Parties, North Island Registration Parties or Temasek Registration Parties are not seeking or requesting inclusion in such registration (the “ Declining Parties ”)), the Viola Percentage to the Viola Registration Parties seeking or requesting inclusion in such registration, the North Island Percentage to the North Island Registration Parties seeking or requesting inclusion in such registration and the Temasek Percentage to the Temasek Registration Parties seeking or requesting inclusion in such registration, until either the Viola Registration Parties, the North Island Registration Parties or the Temasek Registration Parties have been fully allocated all its Registrable Securities sought or requested to be included in such registration (such fully allocated Registration Parties, and any Declining Party, being referred to herein as the “ Excluded Parties ”), (y) thereafter (or first if, any of the Viola Registration Parties, North Island Registration Parties or Temasek Registration Parties are Declining Parties),  to such of the Viola Registration Parties, North Island Registration Parties and Temasek Registration Parties as remain after excluding the Excluded Parties (each, a “ Remaining Registration Party Group ”), based on a percentage equal to each such Remaining Registration Party Group’s Percentage divided by the sum of the Percentages of both Remaining Registration Party Groups until either of the Remaining Registration Party Groups have been fully allocated all its Registrable Securities sought or requested to be included in such registration and (z) thereafter, 100% to the sole Remaining Registration Party Groups seeking or requesting inclusion in such registration;

(2)          second, Registrable Securities owned by the Other Holders that are requested to be included in such registration pursuant to Section 2.1(a) and that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the

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relative number of such fully vested Registrable Securities owned by the Other Holders requesting inclusion in such registration; and

(3)          third, the Other Securities owned by any holder thereof with a contractual right to include such Other Securities in such registration that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such fully vested Other Securities owned by the Persons requesting inclusion in such registration.

2.2           Piggyback Registration Rights .

(a)          Notice and Exercise of Rights .  If the Company at any time proposes or is required to register any of its Common Stock or any other Equity Securities under the Securities Act (other than a Demand Registration pursuant to Section 2.1 or a registration pursuant to Section 2.3), 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 the last sentence of this Section 2.2(a), it shall at each such time give written notice (the “ Piggyback Notice ”), as promptly as reasonably practicable, to each Holder of its intention to do so, which Piggyback Notice shall specify the number of shares of such Common Stock or other Equity Securities to be included in such registration.  Upon the written request of any Holder made within 20 days after receipt of the Piggyback Notice by such Person (which request shall specify the number of Registrable Securities intended to be disposed of), subject to the other provisions of this Article II, the Company shall effect, in connection with the registration of such Common Stock or other Equity Securities, the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register; provided , that in no event shall the Company be required to register pursuant to this Section 2.2 any securities other than Common Stock.  Notwithstanding anything to the contrary contained in this Section 2.2, the Company 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.

(b)          Determination Not to Effect Registration .  If at any time after giving such Piggyback Notice and prior to the effective date of the registration statement filed in connection with such registration the Company shall determine for any reason not to register the securities originally intended to be included in such registration, the Company may, at its election, give written notice of such determination to the Selling Holders and thereupon the Company shall be relieved of its obligation to register such Registrable Securities in connection with the registration of securities originally intended to be included in such registration, without prejudice, however, to the right of a Viola Registration Party, a North Island Registration Party or a Temasek Registration Party 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.

(c)          Cutbacks in Company Offering .  If the registration referred to in the first sentence of Section 2.2(a) is to be an underwritten registration on behalf of the Company, and the

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lead underwriter or managing underwriter advises the Company in writing (with a copy to each Selling Holder) 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, the Company shall include in such registration:

(1)          first, all securities proposed to be registered on behalf the Company;

(2)          second, Registrable Securities owned by the Registration Parties that are requested to be included in such registration pursuant to this Section 2.2 and that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such fully vested Registrable Securities owned by the Viola Registration Parties, the North Island Registration Parties and the Temasek Registration Parties requesting inclusion in such registration; provided , that, until the Cutback Trigger, such Registrable Securities that are allocable to the Registration Parties in the aggregate pursuant to the preceding portion of this clause (2) shall be allocated among the Registration Parties as follows:  (x) first (unless any of the Viola Registration Parties, North Island Registration Parties or Temasek Registration Parties are Declining Parties), the Viola Percentage to the Viola Registration Parties requesting inclusion in such registration, the North Island Percentage to the North Island Registration Parties requesting inclusion in such registration and the Temasek Percentage to the Temasek Registration Parties requesting inclusion in such registration, until either the Viola Registration Parties, the North Island Registration Parties or the Temasek Registration Parties are Excluded Parties with respect to such registration, (y) thereafter (or first, if any of the Viola Registration Parties, North Island Registration Parties or Temasek Registration Parties are Declining Parties), to the Remaining Registration Party Groups, based on a percentage equal to each such Remaining Registration Party Group’s Percentage divided by the sum of the Percentages of both Remaining Registration Party Groups until either of the Remaining Registration Party Groups have been fully allocated all its Registrable Securities sought or requested to be included in such registration and (z) thereafter, 100% to the sole Remaining Registration Party Groups seeking or requesting inclusion in such registration;

(3)          third, Registrable Securities owned by the Other Holders that are requested to be included in such registration pursuant to this Section 2.2 and that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such fully vested Registrable Securities owned by the Other Holders requesting inclusion in such registration; and

(4)          fourth, the Other Securities that are requested to be included in such registration pursuant to the terms of any agreement providing for registration rights to which the Company is a party that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such Other Securities owned by the Persons requesting inclusion in such registration.

(d)          Cutbacks in Other Offerings . If the registration referred to in the first sentence of Section 2.2(a) is to be an underwritten registration other than on behalf of the Company, and the lead underwriter or managing underwriter advises the Selling Holders in

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writing (with a copy to the Company) that, in such firm’s good faith view, the number of Registrable Securities and Other 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 Registrable Securities and Other Securities then contemplated, the Company shall include in such registration:

(1)          first, the Other Securities held by any holder thereof with a contractual right to include such Other Securities in such registration prior to any other Person;

(2)          second, Registrable Securities owned by the Registration Parties that are requested to be included in such registration pursuant to this Section 2.2 and that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such fully vested Registrable Securities owned by the Viola Registration Parties, the North Island Registration Parties and the Temasek Registration Parties requesting inclusion in such registration; provided , that until the Cutback Trigger, such Registrable Securities that are allocable to the Registration Parties in the aggregate pursuant to the preceding portion of this clause (2) shall be allocated among the Registration Parties as follows:  (x) first (unless any of the Viola Registration Parties, North Island Registration Parties or Temasek Registration Parties are Declining Parties), the Viola Percentage to the Viola Registration Parties requesting inclusion in such registration, the North Island Percentage to the North Island  Registration Parties requesting inclusion in such registration and the Temasek Percentage to the Temasek Registration Parties requesting inclusion in such registration, until either the Viola Registration Parties, the North Island Registration Parties or the Temasek Registration Parties are Excluded Parties with respect to such registration (y) thereafter (or first, any of the Viola Registration Parties, North Island Registration Parties or Temasek Registration Parties are Declining Parties), to the Remaining Registration Party Groups, based on a percentage equal to each such Remaining Registration Party Group’s Percentage divided by the sum of the Percentages of both Remaining Registration Party Groups until either of the Remaining Registration Party Groups have been fully allocated all its Registrable Securities sought or requested to be included in such registration and (z) thereafter, 100% to the sole Remaining Registration Party Groups seeking or requesting inclusion in such registration;

(3)          third, Registrable Securities owned by the Other Holders that are requested to be included in such registration pursuant to this Section 2.2 and that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such fully vested Registrable Securities owned by the Other Holders requesting inclusion in such registration; and

(4)          fourth, the Other Securities that are requested to be included in such registration pursuant to the terms of any agreement providing for registration rights to which the Company is a party that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such Other Securities owned by the Persons requesting inclusion in such registration.

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2.3           Form S-3 Registration; Shelf Registration .  

(a)          Notwithstanding anything in Section 2.1 or Section 2.2 to the contrary, in case the Company shall receive from any Viola Registration Party, any North Island Registration Party or any Temasek Registration Party a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Registration Party (which shall not constitute a Demand), and the Company is then eligible to use Form S-3 for the resale of Registrable Securities, the Company shall:

(1)          as promptly as reasonably practicable, give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and

(2)          as promptly as reasonably practicable, file and use reasonable best efforts to effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registration Party’s Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder joining in such request as are specified in a written request given within 15 days after receipt of such written notice from the Company; provided , that the Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 2.3 (or, with respect to a request under Section 2.4, any Shelf Take-Down pursuant to Section 2.4):

(A)        if Form S-3 is not available for such offering by the Registration Parties;

(B)        solely with respect to filing and causing the effectiveness of a registration on Form S-3 or effecting a Marketed Underwritten Shelf Take-Down, if the Registration Parties, together with the Holders of any Registrable Securities entitled to inclusion in such registration (or Marketed Underwritten Shelf Take-Down, as applicable), propose to sell Registrable Securities at an aggregate price to the public (before any underwriters’ discounts or commissions) of less than $50 million;

(C)        if (i) the board of directors of the Company determines in good faith after consultation with outside counsel that such Form S-3 registration would cause the Company to disclose material non-public information, which disclosure (x) would be required to be made in any registration statement so that such registration statement would not be materially misleading, (y) would not be required to be made at such time but for the filing or effectiveness of such registration statement and (z) would be materially detrimental to the Company or would materially interfere with any material financing, acquisition, corporate reorganization or merger or other similar transaction involving the Company or any of its Subsidiaries, and that, as a result of such potential disclosure or interference, it is in the best interests of the Company to defer the filing or effectiveness of such registration statement (or, with respect to a Shelf Take-Down under Section 2.4, the sale of securities of the Company pursuant to such Form S-3 registration statement) at such time, and (ii) the Company furnishes to the Registration Parties a certificate signed by the chief executive officer of the Company to that effect, then the

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Company shall have the right to defer such filing of the Form S-3 registration statement (or Shelf Take-Down) for a period of not more than 120 days after receipt of the request of the Registration Party under this Section 2.3 (or Section 2.4, as applicable); provided , that the Company shall not use this right, together with any other deferral or suspension of the Company’s obligations under Section 2.1 or Section 2.3, more than once in any 12-month period.  The Company shall as promptly as reasonably practicable notify the Selling Holders of the expiration of any deferral period during which it exercised its rights under this Section 2.3(a)(2)(C).  The Company agrees that, in the event it exercises its rights under this Section 2.3(a)(2)(C), it shall, as promptly as reasonably practicable following 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 (or Shelf Take-Down);

(D)        solely with respect to filing and causing the effectiveness of a registration on Form S-3, subject to Section 2.3(d), if the Company has, within the 120-day period preceding the date of such request, already effected one registration on Form S-3 for a Registration Party pursuant to this Section 2.3 (but, for the avoidance of doubt, regardless of whether any Shelf Take-Downs have been effected during such period); provided , that any such registration shall be deemed to have been “effected” if the registration statement relating thereto (x) has become or been declared or ordered effective under the Securities Act, and any of the Registrable Securities of the Registration Party included in such registration have actually been sold thereunder, and (y) has remained effective for a period of at least 180 days in the case of a registration on Form S-3 for a Viola Registration Party, a North Island Registration Party or a Temasek Registration Party; or

(E)        in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.

(b)        (i) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities so requested to be registered, as promptly as reasonably practicable, after receipt of the request or requests of the Registration Party and the other Holders (the “ Form S-3 Registration Statement ”) and any such Holder may request inclusion of a plan of distribution in accordance with Section 2.7(i) and/or that such Form S-3 Registration Statement constitute a shelf offering on a delayed or continuous basis in accordance with Rule 415 under the Securities Act (a “ Form S-3 Shelf Registration Statement ”), in which case the provisions of Section 2.4 shall also be applicable.    

(ii) Notwithstanding anything to the contrary in this Agreement, and without limiting or delaying the Company’s obligation under Section 2.3(b)(i), but subject to Section 2.1(d), the Company shall use its reasonable best efforts to cause a shelf registration statement covering the sale or distribution from time to time by the Holders (except to the extent that any Holder has previously requested in writing not to be included or to have included only a portion of its Registrable Securities), on a delayed or continuous basis pursuant to Rule 415 of the Securities Act, of all of the Registrable Securities on Form S-3 (except that if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, such registration

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shall be on another appropriate form and shall provide for the registration of such Registrable Securities for resale by the Holders in accordance with any reasonable method of distribution elected by the Holders) (the “ Resale Shelf Registration Statement ”) to become effective no later than the first anniversary of the earlier of the closing of the North Island Holder’s acquisition of Registrable Securities pursuant to the North Island Investment Agreement and the closing of the Temask Holder’s acquisition of Registrable Securities pursuant to the Temasek Investment Agreement (including by filing such registration statement up to thirty (30) days prior to such first anniversary if the Company is not then a “well known seasoned issuer”) (which registration shall not constitute a Demand), and the provisions of Section 2.4 shall also be applicable to such shelf registration statement.    Once declared effective, the Company shall, subject to the other applicable provisions of this Agreement, use its commercially reasonable efforts to cause the Shelf Registration Statement to be continuously effective and usable until such time as there are no longer any Registrable Securities held by any North Island Registration Party or Temasek Registration Party.  If any Shelf Registration Statement ceases to be effective under the Securities Act for any reason prior to such time as there are no longer any Registrable Securities held by any North Island Registration Party or Temasek Registration Party, the Company shall use its commercially reasonable efforts to as promptly as is reasonably practicable cause such Shelf Registration Statement to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf Registration Statement), and shall use its commercially reasonable efforts to as promptly as is reasonably practicable amend such Shelf Registration Statement in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf Registration Statement or file an additional registration statement (a “ Subsequent Shelf Registration Statement ”) for an offering to be made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by the Holders thereof of all securities that are Registrable Securities as of the time of such filing.  If a Subsequent Shelf Registration Statement is filed, the Company shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration Statement to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof and (ii) keep such Subsequent Shelf Registration Statement continuously effective and usable until such time as there are no longer any Registrable Securities held by any North Island Registration Party or Temasek Registration Party.  

(c)          If the Viola Registration Parties, the North Island Registration Parties or the Temasek Registration Parties intend to distribute the Registrable Securities covered by their request under this Section 2.3 by means of a Marketed Underwritten Shelf Take-Down pursuant to Section 2.4(b), they shall so advise the Company as a part of their request made pursuant to this Section 2.3 and, subject to the limitations set forth in Section 2.3(a), the Company shall include such information in the written notice referred to in Section 2.3(a).  In such event, the right of any Holder to include Registrable Securities in such registration (or Underwritten Shelf Take-Down, as applicable) shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise agreed by the Holders with a majority of the Registrable Securities participating in the registration and by the requesting Registration Party) to the extent provided in this Agreement.  All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 2.7) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such

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underwriting.  Notwithstanding any other provision of this Section 2.3 or Section 2.4, if the lead underwriter or managing underwriter advises the Company in writing (with a copy to each Selling Holder) that, in such firm’s good faith view, the number of Registrable Securities and Other Securities 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 upon the price, timing or distribution of the offering and sale of the Registrable Securities and Other Securities then contemplated, the Company shall include in such offering:

(1)        first, Registrable Securities owned by the Viola Registration Parties, the North Island Registration Parties and the Temasek Registration Parties that are requested to be included in such offering pursuant to Section 2.3 and Section 2.4 and that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such Registrable Securities owned by the Viola Registration Parties, the North Island Registration Parties and the Temasek Registration Parties seeking such inclusion in such offering; provided , that until and including the Cutback Trigger, such Registrable Securities that are allocable to the Registration Parties in the aggregate pursuant to the preceding portion of this clause (1) shall be allocated among the Registration Parties as follows: (x) first, (unless any of the Viola Registration Parties, North Island  Registration Parties or Temasek Registration Parties  are Declining Parties), the Viola Percentage to the Viola Registration Parties seeking inclusion in such offering, the North Island Percentage to the North Island Registration Parties seeking inclusion in such offering and the Temasek Percentage to the Temasek Registration Parties seeking or requesting inclusion in such offering, until either the Viola Registration Parties, the North Island Registration Parties or the Temasek Registration Parties are Excluded Parties with respect to such offering (y) thereafter (or first, if any of the Viola Registration Parties, North Island Registration Parties or Temasek Registration Parties are Declining Parties), to the Remaining Registration Party Groups, based on a percentage equal to each such Remaining Registration Party Group’s Percentage divided by the sum of the Percentages of both Remaining Registration Party Groups until either of the Remaining Registration Party Groups have been fully allocated all its Registrable Securities sought or requested to be included in such offering and (z) thereafter, 100% to the sole Remaining Registration Party Groups seeking or requesting inclusion in such offering; 

(2)        second, Registrable Securities owned by the Other Holders that are requested to be included in such offering pursuant to Section 2.3 and Section 2.4 and that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such fully vested Registrable Securities owned by the Other Holders seeking inclusion in such offering; and

(3)        third, the Other Securities owned by any holder thereof with a contractual right to include such Other Securities in such offering that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such fully vested Other Securities owned by the Persons seeking inclusion in such offering.

(d)        Notwithstanding the foregoing, if the Company shall receive from any Holders of Registrable Securities then outstanding a written request or requests under Section 2.3 that the Company effect a registration statement on Form S-3 that includes only those items and that information that is required to be included in parts I and II of such Form, and does not

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include any additional or extraneous items of information ( e.g. , a lengthy description of the Company or the Company’s business) (an “ Ordinary S-3 Registration Statement ”), then Section 2.3(a)(2)(D) shall not apply to such Ordinary S-3 Registration Statement request.

(e)        Upon the written request of any Viola Registration Party, North Island Registration Party or Temasek Registration Party (which shall not constitute a Demand), prior to the expiration of effectiveness of any existing Form S-3 Shelf Registration Statement in accordance with Rule 415, the Company shall file and seek the effectiveness of a new Form S-3 Shelf Registration Statement in order to permit the continued offering of the Registrable Securities included under such existing Form S-3 Shelf Registration Statement.

2.4         Shelf Take-Downs .  

(a)        Any Selling Holder of Registrable Securities included in a Form S-3 Shelf Registration Statement, the Resale Shelf Registration Statement or any Subsequent Shelf Registration Statement (a “ Shelf Registration Statement ”) (an “ Initiating Shelf Holder ”) may initiate an offering or sale of all or part of such Registrable Securities (a “ Shelf Take-Down ”), in which case the provisions of this Section 2.4 shall apply.

(b)        If an Initiating Shelf Holder who is a Viola Registration Party, a North Island Registration Party or a Temasek Registration Party so elects in a written request delivered to the Company (an “ Underwritten Shelf Take-Down Notice ”), a Shelf Take-Down may be in the form of an underwritten offering (an “ Underwritten Shelf Take-Down ”) and, in the case of a Form S-3 Shelf Registration Statement subject to the limitations set forth in the proviso to Section 2.3(a)(2) as modified by Section 2.3(d), the Company shall file and effect an amendment or supplement to its Shelf Registration Statement (including the filing of a supplemental prospectus) for such purpose as promptly as reasonably practicable; provided , that any such Marketed Underwritten Shelf Take-Down shall, subject to Section 2.6(c), be deemed to be, for purposes of Section 2.1(b), a Demand (and for the avoidance of doubt any Non-Marketed Underwritten Shelf Take-Down shall not be deemed to be a Demand).  Such Initiating Shelf Holder shall indicate in such Underwritten Shelf Take-Down Notice whether it intends for such Underwritten Shelf Take-Down to involve a customary “road show” (including an “electronic road show”) or other substantial marketing effort by the underwriters over a period of at least 48 hours (a “ Marketed Underwritten Shelf Take-Down ”).  Upon receipt of an Underwritten Shelf Take-Down Notice indicating that such Underwritten Shelf Take-Down will be a Marketed Underwritten Shelf Take-Down, the Company shall as promptly as reasonably practicable (but in any event no later than two Business Days after receipt of such Marketed Underwritten Shelf Take-Down Notice) give written notice of such Marketed Underwritten Shelf Take-Down to all other Shelf Holders and shall permit the participation of all such Shelf Holders that request inclusion in such Marketed Underwritten Shelf Take-Down who respond in writing within five days after the receipt of such notice of their election to participate.  The provisions of Section 2.3(c) (other than the first sentence thereof) shall apply with respect to the right of the Initiating Shelf Holder and any other Shelf Holder to participate in any Underwritten Shelf Take-Down.

(c)        If the Initiating Shelf Holder desires to effect an Underwritten Shelf Take-Down that does not constitute a Marketed Underwritten Shelf Take-Down (a “ Non-Marketed

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Underwritten Shelf Take-Down ”), the Initiating Shelf Holder shall so indicate in a written request delivered to the Company no later than two Business Days prior to the expected date of such Non-Marketed Underwritten Shelf Take-Down, which request shall include (i) the total number of Registrable Securities expected to be offered and sold in such Non-Marketed Underwritten Shelf Take-Down, (ii) the expected plan of distribution of such Non-Marketed Underwritten Shelf Take-Down, (iii) the action or actions required (including the timing thereof) in connection with such Non-Marketed Underwritten Shelf Take-Down (including the delivery of one or more stock certificates representing shares of Registrable Securities to be sold in such Non-Marketed Underwritten Shelf Take-Down) and (iv) at the option and in the sole discretion of such Initiating Shelf Holder, an election that such Non-Marketed Underwritten Shelf Take-Down shall be subject to Section 2.4(d) (a “ Non-Marketed Underwritten Shelf Take-Down Piggyback Election ”), and, in the case of a Form S-3 Shelf Registration Statement subject to the limitations set forth in the proviso to Section 2.3(a)(2) as modified by Section 2.3(d), the Company shall file and effect an amendment or supplement to its Shelf Registration Statement (including the filing of a supplemental prospectus) for such purpose as promptly as reasonably practicable (and in any event within three Business Days).

(d)        Upon receipt from any Viola Registration Party, North Island Registration Party or Temasek Registration Party of a written request pursuant to Section 2.4(c) that contains an affirmative Non-Marketed Underwritten Shelf Take-Down Piggyback Election, the Company shall provide written notice (a “ Non-Marketed Underwritten Shelf Take-Down Notice ”) of such Non-Marketed Underwritten Shelf Take-Down promptly to all Holders (other than the requesting Registration Party), which Non-Marketed Underwritten Shelf Take-Down Notice shall set forth (i) the total number of Registrable Securities expected to be offered and sold in such Non-Marketed Underwritten Shelf Take-Down, (ii) the expected plan of distribution of such Non-Marketed Underwritten Shelf Take-Down, (iii) that each recipient of such Non-Marketed Underwritten Shelf Take-Down Notice (each, a “ Notice Recipient ”) shall have the right, upon the terms and subject to the conditions set forth in this Section 2.4(d), to elect to sell up to its Non-Marketed Take-Down Share (as defined below) and (iv) the action or actions required (including the timing thereof, which for the avoidance of doubt shall not require any delay in the expected date of such Non-Marketed Underwritten Shelf Take-Down or extension of the Company’s obligation to file and effect an amendment or supplement to its Shelf Registration Statement as soon as practicable (and in any event within two Business Days) of the Initiating Shelf Holder’s Non-Marketed Underwritten Shelf Taken-Down request pursuant to Section 2.4(c)) in connection with such Non-Marketed Underwritten Shelf Take-Down with respect to each Notice Recipient that elects to exercise such right (including the delivery of one or more stock certificates representing shares of Registrable Securities held by such Notice Recipient to be sold in such Non-Marketed Underwritten Shelf Take-Down).  Upon receipt of such Non-Marketed Underwritten Shelf Take-Down Notice, each such Notice Recipient may elect to sell up to its Non-Marketed Take-Down Share with respect to each such Non-Marketed Underwritten Shelf Take-Down, by taking such action or actions referred to in clause (iv) above in a timely manner.  If the Viola Registration Parties, the North Island Registration Parties or the Temasek Registration Parties do not elect to sell all of their respective Non-Marketed Take-Down Share, the unelected portion of such Non-Marketed Take-Down Share shall be allocated to the other Holders, pro   rata based on their respective Non-Marketed Take-Down Shares.  Notwithstanding the delivery of any Non-Marketed Underwritten Shelf Take-Down Notice, all determinations as to whether to complete any Non-Marketed Underwritten Shelf Take-Down and as to the timing,

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manner, price and other terms of any Non-Marketed Underwritten Shelf Take-Down contemplated by Section 2.4(d) shall be at the discretion of the Initiating Shelf Holder.  “ Non-Marketed Take-Down Share ” shall mean, with respect to any Non-Marketed Underwritten Shelf Take-Down subject to this Section 2.4(d) and each Initiating Shelf Holder and each other Notice Recipients delivering such notice with respect to and participating in such Non-Marketed Underwritten Shelf Take-Down subject to this Section 2.4(d), a number determined as follows: 

(x) in the case of all participating Registration Parties collectively, an aggregate number equal to the product of the following: (i) the total number of Registrable Securities to be included in such Non-Marketed Underwritten Shelf Take-Down and (ii) a fraction, the numerator of which is the total number of Registrable Securities beneficially owned by the participating Registration Parties in the aggregate, and the denominator of which is the total number of Registrable Securities beneficially owned by the Initiating Shelf Holder and all the other Notice Recipients delivering such a notice and participating in such Non-Marketed Underwritten Shelf Take-Down; and such aggregate number shall be allocated among the participating Registration Parties pro rata on the basis of the relative number of Registrable Securities owned by the participating Registration Parties; provided , that until the Cutback Trigger, the Registrable Securities that are allocable to the participating Registration Parties in the aggregate pursuant to the preceding portion of this clause (x) shall be allocated among the participating Registration Parties as follows:  (A) first (unless any of the Viola Registration Parties, North Island Registration Parties or Temasek Registration Parties) are Declining Parties, the Viola Percentage to the Viola Registration Parties requesting inclusion in such Non-Marketed Underwritten Shelf Take-Down, the North Island Percentage to the North Island Registration Parties requesting inclusion in such Non-Marketed Underwritten Shelf Take-Down and the Temasek Percentage to the Temasek Registration Parties requesting inclusion in such Non-Marketed Underwritten Shelf Take-Down, until either the Viola Registration Parties, the North Island Registration Parties or the Temasek Registration Parties are Excluded Parties with respect to such Non-Marketed Underwritten Shelf Take-Down, (B) thereafter (or first, if any of the Viola Registration Parties, North Island Registration Parties or Temasek Registration Parties are Declining Parties), to the Remaining Registration Groups, based on a percentage equal to each such Remaining Registration Party Group’s Percentage divided by the sum of the Percentages of both Remaining Registration Party Groups until either of the Remaining Registration Party Groups have been fully allocated all its Registrable Securities sought or requested to be included in such Non-Marketed Underwritten Shelf Take-Down and (C) thereafter, 100% to the sole Remaining Registration Party Groups seeking or requesting inclusion in such Non-Marketed Underwritten Shelf Take-Down; and

(y) in the case of each other participating Notice Recipient, a number equal to the product of the following:  (i) the total number of Registrable Securities to be included in such Non-Marketed Underwritten Shelf Take-Down and (ii) a fraction, the numerator of which is the total number of Registrable Securities beneficially owned by such participating Notice Recipient, and the denominator

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of which is the total number of Registrable Securities beneficially owned by the Initiating Shelf Holder and all the other Notice Recipient delivering such a notice and participating in such Non-Marketed Underwritten Shelf Take-Down.

2.5         Selection of Underwriters .   In the event that any registration pursuant to this Article II (other than a registration under Section 2.2) shall involve, in whole or in part, an underwritten offering, the underwriter or underwriters shall be designated by the Registration Party (or in the case of a Shelf Take-Down, the Initiating Shelf Holder) that requested such underwritten offering in accordance with this Article II, which underwriter or underwriters shall be reasonably acceptable to the Company.

2.6         Withdrawal Rights; Expenses .  

(a)        A Selling Holder may withdraw all or any part of its Registrable Securities from any registration or offering (including a registration effected pursuant to Section 2.1) by giving written notice to the Company of its request to withdraw at any time.  Except in the case of a withdrawal of Registrable Securities made within 30 days of receipt by such Selling Holder of a certificate or notice from the Company that it will defer the filing or effectiveness of a registration statement pursuant to Section 2.1(d) or Section 2.3(a)(2)(C), the Company shall be entitled to reimbursement for any SEC registration fees incurred by the Company in connection with the registration of the Registrable Securities so withdrawn (unless such registration fees can be used in connection with the registration of other securities by the Company, including in connection with a future registration).  In the case of a withdrawal, any Registrable Securities so withdrawn shall be reallocated among the remaining participants in accordance with the applicable provisions of this Agreement.

(b)        Except as provided in this Agreement, the Company shall pay all Registration Expenses with respect to a particular offering (or proposed offering).  Except as provided herein, each Selling Holder and the Company shall be responsible for its own fees and expenses of 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.

(c)        If the Registration Party that requested a Demand Registration or a Marketed Underwritten Shelf Take-Down pursuant to Section 2.1 or Section 2.4 withdraws all of its Registrable Securities from such Demand Registration or Marketed Underwritten Shelf Take-Down (a “ Withdrawn Offering ”), the other Registration Party(ies) or the Company may, in any of their sole discretion, elect within two Business Days thereafter to have the Company continue such Withdrawn Offering by giving written notice of such election to the Company and/or the other Registration Parties (a “ Continuance Notice ”), in which case such Withdrawn Offering shall proceed in accordance with the applicable provisions of this Agreement as if such Withdrawn Offering had been initiated by the Party providing the Continuance Notice (which, for the avoidance of doubt, shall not cause any new notice or consent period with respect to other Holders to occur under this Agreement and shall not otherwise change the requirements for and timing of any notices and consents under this Agreement as they then exist with respect to such Withdrawn Offering).  If a Continuance Notice is provided by a Registration Party (the “ Electing Registration Party ”), for the purpose of the limits on number of Demands set forth in

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Section 2.1(b), such Withdrawn Offering shall count as use of one Demand by such Electing Registration Party and shall not count as use of a Demand by the Registration Party that originally requested such Withdrawn Offering.  If a Continuance Notice is provided by the Company, such Withdrawn Registration shall not count as use of a Demand for any Registration Party for the purpose of the limits on number of Demands set forth in Section 2.1(b).  If no Continuance Notice is timely provided with respect to a Withdrawn Offering, the Company shall abandon the Withdrawn Offering, and such Withdrawn Offering shall count as use of one Demand by the Registration Party that originally requested such Withdrawn Offering for the purpose of the limits on number of Demands set forth in Section 2.1(b), unless such Registration Party elects in writing to bear the Registration Expenses for such Withdrawn Offering.

2.7         Registration and Qualification .  If and whenever the Company is required to effect the registration of any Registrable Securities under the Securities Act as provided in this Article II, the Company shall as promptly as practicable:

(a)        Registration Statement .  (i) Prepare and (as promptly as reasonably practicable thereafter and in any event no later than 20 days after the end of the applicable period specified in Section 2.1(a), Section 2.2(a) or Section 2.3(a)(2) within which requests for registration may be given to the Company) file a registration statement under the Securities Act relating to the Registrable Securities to be offered and use reasonable best efforts to cause such registration statement to become effective as promptly as practicable thereafter, and keep such registration statement effective for 180 days or, if earlier, until the distribution contemplated in the registration statement has been completed; provided , that in the case of any registration of Registrable Securities on Form S-3 which are intended to be offered on a continuous or delayed basis, such 180-day period shall be extended, if necessary, to keep the registration statement continuously effective, supplemented and amended to the extent necessary to ensure that it is available for sales of such Registrable Securities, and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the SEC as announced from time to time, until (A) the Selling Holders have sold all of such Registrable Securities or (B) no Registrable Securities then exist; (ii) furnish to the lead underwriter or underwriters, if any, and to the Selling Holders who have 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 (iii) use reasonable best efforts to reflect in each such document, when so filed with the SEC, such comments as such Persons 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 (i) reasonably requested by any Selling Holder (to the extent such request relates to information relating to such Selling Holder), or (ii) 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 (A) 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 (B) if a Form S-3 registration, the expiration of the applicable period specified in Section 2.7(a) and, if not a Form S-3 registration,

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the applicable period specified in Section 2.1(e)(iii);   provided , that any such required period 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 the Company until the date on which the Company delivers to the Selling 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; provided ,   further , that the Company shall have no obligation to a Selling Holder participating on a “piggyback” basis pursuant to Section 2.1(a) or Section 2.2 in a registration statement that has become effective to keep such registration statement effective for a period beyond 180 days from the effective date of such registration statement.  The Company shall respond, as promptly as reasonably practicable, to any comments received from the SEC and request acceleration of effectiveness, as promptly as reasonably practicable, after it learns that the SEC will not review the registration statement or after it has satisfied comments received from the SEC.  With respect to each Free Writing Prospectus or other materials to be included in the Disclosure Package, ensure that no Registrable Securities be sold “by means of” (as defined in Rule 159A(b) under the Securities Act) such Free Writing Prospectus or other materials without the prior written consent of the Selling Holders of the Registrable Securities covered by such registration statement, which Free Writing Prospectuses or other materials shall be subject to the review of counsel to such Selling Holders, and make all required filings of all Free Writing Prospectuses with the SEC;

(c)        Copies .  Furnish to the 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 including all exhibits), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus, summary prospectus and Free Writing 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 Selling Holders 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 Authority or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to such offering;

(d)        Blue Sky .  Register and qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as shall be reasonably requested by the Selling Holders and do any and all other acts and things which may be reasonably necessary or advisable to enable such Selling Holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder; provided , that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions;

(e)        Delivery of Certain Documents .  (i) Furnish to each Selling Holder and to any underwriter of such Registrable Securities an opinion of counsel for the Company (which opinion (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, or, in the case of a non-underwritten offering, to the Selling Holders) addressed to each Selling Holder and any underwriter of such Registrable Securities and dated

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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) covering the matters customarily covered in opinions requested in sales of securities or underwritten offerings, (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 the Company 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 accountants’ letters delivered to underwriters in underwritten public offerings of securities and such other matters as any 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 the Company to execute customary certificates as may be requested by any Selling Holder or any underwriter of such Registrable Securities;

(f)         Notification of Certain Events; Corrections .  Promptly notify the 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 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)        Notice of Effectiveness .  Notify the 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 the Company (i) 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, (ii) of any comments by the SEC, (iii) 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 (iv) of the receipt by the Company 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)        Stop Orders .  Use its reasonable best efforts to prevent the entry of, and use its reasonable best efforts to 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;

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(i)         Plan of Distribution .  Promptly incorporate in a prospectus supplement or post-effective amendment to the applicable registration statement such information as any Selling Holder requests (subject to the agreement of the lead underwriter or underwriters, if any) 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)         Other Filings .  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 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)        FINRA Compliance .  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 FINRA;

(l)         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 identical securities issued by the Company are then listed;

(m)       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;

(n)        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 Selling Holder, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 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;

(o)        Road Shows .  To the extent reasonably requested by the lead or managing underwriters in connection with an underwritten offering pursuant to Section 2.1 or a Form S-3 underwritten offering pursuant to Section 2.3 and Section 2.4(b), send appropriate officers of the Company to attend any “road shows” scheduled in connection with any such underwritten offering, with all out of pocket costs and expenses incurred by the Company or such officers in connection with such attendance to be paid by the Company;

(p)        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 this Article II unlegended certificates representing ownership of the Registrable Securities being sold in such denominations as shall be requested by any Selling Holder or the underwriters of such Registrable Securities (it being understood that

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the Selling Holders shall use reasonable best efforts to arrange for delivery to the Depository Trust Company); and

(q)        Reasonable Best Efforts . Use reasonable best efforts to take all other steps necessary to effect the registration and offering of the Registrable Securities contemplated hereby.

2.8        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, the Company shall enter into an underwriting agreement with such underwriters for such offering, which agreement will contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements generally with respect to secondary distributions to the extent relevant, including indemnification and contribution provisions substantially to the effect and to the extent provided in Section 2.9, 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, the Company to and for the benefit of such underwriters, shall also be made to and for the benefit of such Selling Holders and the conditions precedent to the obligations of such underwriters under such underwriting agreement shall also be conditions precedent to the obligations of such Selling Holders to the extent applicable.  Subject to the following sentence, 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.  No Selling Holder shall be required in any such underwriting agreement or related documents to make any representations or warranties to or agreements with the Company or the underwriters other than customary representations, warranties or agreements regarding such Selling Holder’s title to Registrable Securities and any written information provided by the Selling Holder to the Company expressly for inclusion in the related registration statement, and the liability of any Selling Holder under the underwriting agreement shall be several and not joint and in no event shall the liability of any Selling Holder under the underwriting agreement be greater in amount than the dollar amount of the proceeds received by such Selling Holder under the sale of the Registrable Securities pursuant to such underwriting agreement (net of underwriting discounts and commissions).

(b)        In connection with the preparation and filing of each registration statement registering Registrable Securities under the Securities Act pursuant to this Article II, the Company shall make available upon reasonable notice at reasonable times and for reasonable periods for inspection by each Selling Holder, by any lead 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 lead underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and use its reasonable best efforts to cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves reasonably available to discuss the business of the

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Company and to supply all information reasonably requested by any such Selling Holders, lead 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 the Company).

(c)        In the case of an underwritten offering requested by the Registration Parties pursuant to Section 2.1 or Section 2.3 or an Underwritten Shelf Take-Down pursuant to Section 2.4, the price, underwriting discount and other financial terms for the Registrable Securities of the related underwriting agreement shall be determined by the Registration Party exercising its Demand or requesting such Underwritten Shelf Take-Down.  In the case of any underwritten offering of securities by the Company pursuant to Section 2.2, such price, discount and other terms shall be determined by the Company, subject to the right of Selling Holders to withdraw their Registrable Securities from the registration pursuant to Section 2.6(a).

(d)        Subject to Section 2.8(a), no Person may participate in an underwritten offering (including an Underwritten Shelf Take-Down) 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 customary questionnaires, powers of attorney, custody agreements, indemnities, underwriting agreement and other documents reasonably required under the terms of such underwriting arrangements.

2.9         Indemnification and Contribution .  

(a)        Indemnification by the Company .  In the case of each offering of Registrable Securities made pursuant to this Article II, the Company agrees to indemnify and hold harmless, to the extent permitted by Applicable 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 (other than the Company and its controlled Affiliates), and the officers, directors, partners, members, 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 or alleged untrue statement of a material fact contained in the registration statement (or in any preliminary, final or summary prospectus included therein) or in the Disclosure Package, or in any offering memorandum or other offering document relating to the offering and sale of such Registrable Securities, or any amendment thereof or supplement thereto, or in any document incorporated by reference therein, or any omission or alleged omission 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 the Company 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 any omission, if such statement or omission shall have been made in reliance upon and in conformity

28


 

with information relating to such Person (which information shall be limited to the name of such Person, the address of such Person, the number of shares of Common Stock held by such Person, the number of shares of Common Stock being offered by such Person in the offering and the nature of the beneficial ownership of the Common Stock owned by such Person) furnished in writing to the Company by or on behalf of such Person 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 and shall survive the transfer of such securities.

(b)        Indemnification by Selling Holders .  In the case of each offering made pursuant to this Agreement, each Selling Holder, by exercising its registration and/or piggyback rights under this Agreement, agrees, severally and not jointly, to indemnify and hold harmless, to the extent permitted by Applicable Law, the Company, each other 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, members, 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 made by such Selling Holder of a material fact contained in the registration statement (or in any preliminary, final or summary prospectus included therein) or in the Disclosure Package relating to the offering and sale of such Registrable Securities prepared by the Company or at its direction, or any amendment thereof or supplement thereto, or any omission by such Selling Holder 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 occurs in reliance upon and in conformity with, or such material fact is omitted from, information relating to such Selling Holder (which information shall be limited to the name of such Selling Holder, the address of such Selling Holder, the number of shares of Common Stock held by such Selling Holder, the number of shares of Common Stock being offered by such Selling Holder in the offering and the nature of the beneficial ownership of the Common Stock owned by such Person) furnished in writing to the Company by or on behalf of such Selling Holder expressly for inclusion in such registration statement (or in any preliminary, final or summary prospectus included therein) or Disclosure Package, or any amendment thereof or supplement thereto.

(c)        Indemnification Procedures .  Each Party entitled to indemnification under this Section 2.9 shall give notice to the Party required to provide indemnification, as promptly as reasonably practicable, 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

29


 

approval shall not unreasonably be withheld, conditioned or delayed), 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 provided in this Agreement shall not relieve the indemnifying Party of its obligations under this Section 2.9, except to the extent the indemnifying Party is actually prejudiced by such failure to give notice.  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, conditioned or delayed).  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 2.9 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 statement of a material fact or 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.  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 2.9(d) to the contrary, no indemnifying Party (other than the Company) shall be required pursuant to this Section 2.9(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.  The Parties agree that it would not be just

30


 

and equitable if contribution pursuant to this Section 2.9(d) were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in this Section 2.9(d).

(e)        Indemnification/Contribution under State Law .  Indemnification and contribution similar to that specified in the preceding paragraphs of this Section 2.9 (with appropriate modifications) shall be given by the Company and the Selling Holders with respect to any required registration or other qualification of securities under any state Applicable Law or with any Governmental Authority.

(f)        Obligations Not Exclusive .  The obligations of the Parties under this Section 2.9 shall be in addition to any liability which any Party may otherwise have to any other Person.    

(g)        Survival .  For the avoidance of doubt, the provisions of this Section 2.9 shall survive any termination of this Agreement.

(h)        Limitation of Selling Holder Liability .  The liability of any Selling Holder under this Section 2.9 shall be several and not joint and in no event shall the liability of any Selling Holder under this Section 2.9 be greater in amount than the dollar amount of the proceeds, net of underwriting discounts and commissions, received by such Selling Holder from the sale of the Registrable Securities giving rise to such indemnification/contribution obligation.

(i)        Third Party Beneficiary .  Each of the indemnified Persons referred to in this Section 2.9 shall be a third party beneficiary of the rights conferred to such Person in this Section.

2.10      Cooperation; Information by Selling Holder .  

(a)        It shall be a condition of each Selling Holder’s rights under this Article II that such Selling Holder cooperate with the Company by entering into any undertakings and taking such other action relating to the conduct of the proposed offering which the Company or the underwriters may reasonably request as being necessary to insure compliance with federal and state securities laws and the rules or other requirements of FINRA or which are otherwise customary and which the Company or the underwriters may reasonably request to effectuate the offering.

(b)        Each Selling Holder shall furnish to the Company such information regarding such Selling Holder and the distribution proposed by such Selling Holder as the Company 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.  The Company shall have the right to exclude from the registration any Selling Holder that does not comply with this Section 2.10.  

(c)        At such time as an underwriting agreement with respect to a particular underwriting is entered into, the terms of any such underwriting agreement shall govern with respect to the matters set forth therein to the extent inconsistent with this Article II; provided , that the indemnification provisions of such underwriting agreement as they relate to the Selling

31


 

Holders are customary for registrations of the type then proposed and provide for indemnification by such Selling Holders only with respect to information relating to such Selling Holder (which information shall be limited to the name of such Selling Holder, the address of such Selling Holder, the number of shares of Common Stock held by such Selling Holder, the number of shares of Common Stock being offered by such Selling Holder in the offering and the nature of the beneficial ownership of the Common Stock owned by such Person) furnished in writing to the Company by or on behalf of such Selling Holder expressly for inclusion in such registration statement (or in any preliminary, final or summary prospectus included therein) or Disclosure Package, or any amendment thereof or supplement thereto.

2.11      Rule 144 .  The Company shall use its reasonable best efforts to ensure that the conditions to the availability of Rule 144 under the Securities Act set forth in paragraph (c) of Rule 144 shall be satisfied.  The Company agrees to use its reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company 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 Holder for so long as such information is a necessary element of such Person’s ability to avail itself of Rule 144, the Company shall deliver to such Person (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 the Company, and such other reports and documents so filed as such Person may reasonably request in availing itself of any rule or regulation of the SEC allowing such Person to sell any such securities without registration.

2.12      Holdback Agreement .  Each of the Company and each Holder (other than a Holder that (1) is not an employee of the Company or any of its Subsidiaries and (2)  beneficially owns less than 10% of the Common Stock that is outstanding immediately prior to the offering (calculated on a fully-diluted and fully-Exchanged basis) of Registrable Securities (whether or not such Registrable Securities are covered by a registration statement filed pursuant to Section 2.1, Section 2.2 or Section 2.3)) agrees that during (i) with respect to underwritten offerings (other than Non-Marketed Underwritten Shelf Take-Downs) only, such period (which period shall in no event exceed 90 days) following the effective date of a registration statement of the Company filed under the Securities Act (or, if later in the case of a Marketed Underwritten Shelf Take-Down, the date the underwriting agreement for such Marketed Underwritten Shelf Take-Down is entered into) as may be requested by the underwriter or underwriters of such underwritten offering, and (ii) with respect to Non-Marketed Underwritten Shelf Take-Downs for which an affirmative Non-Marketed Underwritten Shelf Take-Down Piggyback Election is made only, such period (which period shall in no event exceed 45 days) following the date the underwriting agreement for such Non-Marketed Underwritten Shelf Take-Down is entered into as may be requested by the underwriter or underwriters of such underwritten offering, each of the Company, such Holder and its Affiliates shall not, to the extent requested by the Company and/or any underwriter, offer, sell, contract to sell, pledge, hypothecate, transfer, make any short sale of, loan, grant any option or right to purchase of, or otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any Registrable Securities held by it at any time during such period (which prohibition precludes such Holder and its Affiliates from engaging in any hedging transaction with respect to Registrable Securities), except Registrable Securities included in such registration; provided , that with respect to restrictions imposed pursuant to clause (ii) above, in no event shall any Holder be subject to such restrictions for more than 90 days during any 12-month period.  Each Holder agrees that it shall deliver to the underwriter or

32


 

underwriters of any offering to which clause (i) or (ii) is applicable a customary agreement reflecting its agreement set forth in this Section 2.12.  For the avoidance of doubt, no restrictions under this Section 2.12 shall apply with respect to Non-Marketed Underwritten Shelf Take-Downs for which no Non-Marketed Underwritten Shelf Take-Down Piggyback Election is made. For the avoidance of doubt, for the purposes of this Section 2.12, a Management Vehicle shall be deemed to be an employee of the Company.

2.13      Suspension of Sales .  Each Selling Holder participating in a registration agrees that, upon receipt of notice from the Company pursuant to Section 2.7(f), such Selling Holder shall discontinue disposition of its Registrable Securities pursuant to such registration statement until receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.7(f), or until advised in writing by the Company that the use of the prospectus may be resumed, as the case may be, and, if so directed by the Company, such Selling Holder shall deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such Selling 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).

2.14      Third Party Registration Rights .  Nothing in this Agreement shall be deemed to prevent the Company from providing registration rights to any other Person on such terms as the board of directors of the Company deems desirable in its sole discretion, so long as (1) such registration rights do not limit the ability of the Registration Parties to require a Demand Registration, a Marketed Underwritten Shelf Take-Down or a Non-Marketed Underwritten Shelf Take-Down under this Agreement and (2) such Person may include Common Stock in a registration only to the extent that the inclusion of such Common Stock will not diminish the amount of Registrable Securities that are entitled to be included in such registration by the Viola Holder, the North Island Holder and the Temasek Holders.  In furtherance of the foregoing, the Company shall not provide or grant registration rights to any other Person unless the requirements set forth in clauses (1) and (2) of the preceding sentence or met.

2.15      Limitation on Registration Rights .  Notwithstanding anything contained herein but without limiting Section 2.3(b)(ii), the North Island Holder shall have no rights to cause the registration of its Registrable Securities under this Agreement until after the first anniversary of the closing of its acquisition of Registrable Securities pursuant to the North Island Investment Agreement and during such period the North Island Holder shall be deemed to be an Excluded Party (unless the Viola Holder exercises its registration rights under this Article II, in which case the North Island Holder has the right to exercise its rights under this Article II).

2.16      Mergers .  The Company shall not, directly or indirectly, (x) enter into any merger, consolidation, recapitalization, combination of shares or other reorganization in which the Company shall not be the surviving corporation or (y) Transfer or agree to Transfer all or substantially all the Company’s assets, unless prior to such merger, consolidation, reorganization or asset Transfer, the surviving corporation or the transferee, as applicable, shall have agreed in writing to assume the obligations of the Company under this Agreement, and for that purpose references hereunder to “Registrable Securities”, shall be deemed to include the securities which the Holders of Registrable Securities, would be entitled to receive in exchange for Registrable Securities, pursuant to any such merger, consolidation, reorganization or asset Transfer.

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ARTICLE III

MISCELLANEOUS

3.1         Notices .  All notices, requests, demands and other communications to any party hereunder shall be made in writing (including facsimile transmission and electronic mail (“ e-mail ”) transmission, so long as a receipt of such e-mail is requested and received by non-automated response) and shall be given:

(a)       if to the Company, to:

Virtu Financial, Inc.

900 Third Avenue

New York, New York 10022

Attention:  General Counsel
E-mail: legal@virtu.com

 

With copies (which shall not constitute actual or constructive notice) to:

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019

Attention:  John C. Kennedy

Jeffrey D. Marell

Facsimile:  (212) 757-3990

E-mail: jkennedy@paulweiss.com

jmarell@paulweiss.com

 

(b)       if to any Viola Holder, to:

TJMT Holdings LLC

c/o Virtu Financial Inc.

900 Third Avenue

New York, New York 10022

Attention: General Counsel
E-mail: legal@virtu.com

 

With copies (which shall not constitute actual or constructive notice) to:

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019

Attention:  John C. Kennedy

Jeffrey D. Marell

Facsimile: (212) 757-3990

E-mail: jkennedy@paulweiss.com

jmarell@paulweiss.com

 

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(c)       if to any North Island Holder, to:

North Island Holdings I, LP

c/o North Island Ventures, LLC

9 West 57th Street, 32nd Floor

New York, New York 10019

Attention:  Jeremy Henderson

Facsimile:  (914)  834-2351

E-mail:  jeremy@northisland.net

With copies (which shall not constitute actual or constructive notice) to:

Wachtell, Lipton, Rosen & Katz

51 West 52 nd Street

New York, New York 10019

Attention:  David K. Lam

Mark F. Veblen

Facsimile:  (212) 403-2000

E-mail: dklam@wlrk.com

mfveblen@wlrk.com

Coral Blue Investment Pte. Ltd.

280 Park Avenue, 9 th Floor

New York, New York 10017

Attention:  Ivan Stoyanov and David Rivera

E-mail:  ivanstoyanov@gic.com.sg

davidrivera@gic.com.sg

Sidley Austin LLP

787 Seventh Avenue

New York, New York 10019

Attention:  Asi Kirmayer

Facsimile:  (212) 839-5599

E-mail:  akirmayer@sidley.com

Public Sector Pension Investment Board

1250 René-Lévesque Blvd. West

Suite 900

Montreal (Québec) H3B 4W8

Attention: Senior Vice President and Chief Legal Officer

E-mail: LegalNotices@investpsp.ca

 

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Weil, Gotshal & Manges LLP

767 5th Avenue

New York, New York 10153

Facsimile: (212) 310-8007

Attention: Douglas Warner

E-mail:  doug.warner@weil.com

(d)       if to the Temasek Holders, to:

Havelock Fund Investments Pte Ltd

60B Orchard Road #06-18 Tower 2

The Atrium@Orchard

Singapore 238891

Attention:  Pradyumna Agrawal

Facsimile: +65 6821-1173

E-mail:  pradyumna@temasek.com.sg

and

Aranda Investments Pte. Ltd.

60B Orchard Road #06-18 Tower 2

The Atrium@Orchard

Singapore 238891

Attention:  Pradyumna Agrawal

Facsimile: +65 6821-1173

E-mail:  pradyumna@temasek.com.sg

With copies (which shall not constitute actual or constructive notice) to:

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

Attention: Scott Petepiece

Facsimile: (646) 848-8576

E-mail: SPetepiece@Shearman.com

(e)       if to any Management Vehicle, to:

Virtu Employee Holdco LLC or Virtu Ireland Employee Trust (as applicable)

c/o Virtu Financial Inc.

900 Third Avenue

New York, New York 10022

Attention: General Counsel

E-mail: legal@virtu.com

(f)                    if to any Additional Holder, to the addresses and other contact information set forth on Annex A to this Agreement (it being understood that any Holder may, from time to

36


 

time, update any address and/or other contact information for itself on Annex A by providing written notice of such update to the Company and the other Holders),  or to such other address or facsimile number as such party may hereafter specify for the purpose by notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. New York City time on a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed to have been received on the next succeeding Business Day in the place of receipt.

3.2         Section Headings .  The article and section headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.  References in this Agreement to a designated “Article” or “Section” refer to an Article or Section of this Agreement unless otherwise specifically indicated.

3.3         Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.

3.4         Consent to Jurisdiction and Service of Process .  The Parties agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated by this Agreement (whether brought by any Party or any of its Affiliates or against any Party or any of its Affiliates) shall be brought in the Delaware Chancery Court or, if such court shall not have jurisdiction, any federal court located in the State of Delaware or other Delaware state court, and each of the Parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.  Process in any such suit, action or proceeding may be served on any Party anywhere in the world, whether within or without the jurisdiction of any such court.  Without limiting the foregoing, each Party agrees that service of process on such Party as provided in Section 3.1 shall be deemed effective service of process on such Party.

3.5         WAIVER OF JURY TRIAL .  EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

3.6         Amendments; Termination .  This Agreement may be amended only by an instrument in writing executed by the Company, the Viola Holder, the North Island Holder and the Temasek Holders.  Any such amendment will apply to all Holders equally, without distinguishing between them.  This Agreement will terminate as to any Holder when it no longer holds any Registrable Securities.  This Agreement will no longer be applicable to Registrable Securities that are registered in a Public Offering on The New York Stock Exchange, The Nasdaq Stock Market LLC or any successor thereto or any other U.S. securities exchange on which shares issued by the Company are then so qualified or listed or are sold pursuant to a brokers’ transaction or a transaction directly with a market maker, including a sale pursuant to

37


 

Rule 144 of the Securities Act or any similar rule or successor rule promulgated for similar purposes.

3.7         Specific Enforcement .  The Parties acknowledge that the remedies at law of the other Parties for a breach or threatened breach of this Agreement would be inadequate and, in recognition of this fact, any Party to this Agreement, without posting any bond, and in addition to all other remedies that may be available, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy that may then be available.

3.8         Entire Agreement .  This Agreement constitutes the entire agreement and understanding of the Parties with respect to the transactions contemplated by this Agreement.  The registration rights granted under this Agreement supersede any registration, qualification or similar rights with respect to any Registrable Securities granted under any other agreement at any time, and any of such preexisting registration rights are hereby terminated.

3.9         Severability .  The invalidity or unenforceability of any specific provision of this Agreement shall not invalidate or render unenforceable any of its other provisions.  Any provision of this Agreement held invalid or unenforceable shall be deemed reformed, if practicable, to the extent necessary to render it valid and enforceable and to the extent permitted by law and consistent with the intent of the parties to this Agreement.

3.10       Counterparts .  This Agreement may be executed in multiple counterparts, including by means of facsimile or .pdf, each of which shall be deemed an original, but all of which together shall constitute the same instrument.

3.11       Waiver/Effectiveness of Amendments .

(a)        This Agreement and the amendments contemplated herein shall not take effect until the closing of the transactions contemplated by the North Island Investment Agreement and the Temasek Investment Agreement and, pending such effectiveness, the Existing Registration Rights Agreement, shall remain in full force and effect.  If the North Island Investment Agreement and the Temasek Investment Agreement are terminated for any reason, this Agreement shall have no effect and the Existing Registration Rights Agreement shall continue in full force and effect.

[Signature Page Follows]

 

 

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So agreed:

 

 

 

 

VIRTU FINANCIAL, INC.

 

 

 

By:

/s/ Douglas A. Cifu 

 

Name:

Douglas A. Cifu

 

Title:

Chief Executive Officer

 

 

 

VIOLA HOLDER

 

 

 

TJMT HOLDINGS LLC

 

 

 

By:

/s/ Michael Viola

 

Name:

Michael Viola

 

Title:

Authorized Person

 

 

 

 

 

North Island HOLDER

 

 

 

NORTH ISLAND HOLDINGS I, LP

 

 

 

By:

North Island Holdings I GP, LP, its general partner

 

 

 

 

By:

North Island Ventures, LLC, its general partner

 

 

 

/s/ Glenn Hutchins

 

By:

Glenn Hutchins

 

Title:

Chief Executive Officer

 

 

 

 

 

Temasek HOLDER

 

 

 

Havelock Fund Investments Pte Ltd.

 

 

 

By:

/s/ Png Chin Yee

 

Name:

Png Chin Yee

 

Title:

Authorized Signatory

 

[Signature Page to Registration Rights Agreement]


 

 

 

 

 

Temasek HOLDER

 

 

 

ARANDA Investments Pte. Ltd.

 

 

 

By:

/s/ Png Chin Yee

 

Name:

Png Chin Yee

 

Title:

Authorized Signatory

 

 

 

[Signature Page to Registration Rights Agreement]


EXHIBIT 31.1

 

CEO CERTIFICATION
PURSUANT TO SECTION 302 OF THE
SARBANES — OXLEY ACT OF 2002

 

I, Douglas A. Cifu, certify that:

 

1.

I have reviewed this quarterly report on Form 10-Q of Virtu Financial, Inc. (the “registrant”);

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.

The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b)

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(c)

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

(a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 

 

 

 

Date: May 10, 2017

By:

/s/ Douglas A. Cifu

 

 

Douglas A. Cifu

 

 

Chief Executive Officer

 


EXHIBIT 31.2

 

CFO CERTIFICATION
PURSUANT TO SECTION 302 OF THE
SARBANES — OXLEY ACT OF 2002

 

I, Joseph Molluso, certify that:

 

1.

I have reviewed this quarterly report on Form 10-Q of Virtu Financial, Inc. (the “registrant”);

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.

The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b)

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(c)

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

(a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 

 

 

 

Date: May 10, 2017

By:

/s/ Joseph Molluso

 

 

Joseph Molluso

 

 

Chief Financial Officer

 


EXHIBIT 32.1

 

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Quarterly Report of Virtu Financial, Inc. (the “Company”) on Form 10-Q for the period ended March 31, 2017 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Douglas A. Cifu, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, in my capacity as an officer of the Company that:

 

1. The Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934; and

 

2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

 

 

 

/s/ Douglas A. Cifu

 

Douglas A. Cifu

 

Chief Executive Officer

 

 

 

Date: May 10, 2017

 


EXHIBIT 32.2

 

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Quarterly Report of Virtu Financial, Inc. (the “Company”) on Form 10-Q for the period ended March 31, 2017 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Joseph Molluso, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, in my capacity as an officer of the Company that:

 

1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

 

 

 

/s/ Joseph Molluso

 

Joseph Molluso

 

Chief Financial Officer

 

 

 

Date: May 10, 2017