PENSON WORLDWIDE, INC.
STOCKHOLDER’S AGREEMENT
THIS
STOCKHOLDER’S AGREEMENT is made effective as of the 20th day
of November, 2006 (the “ Effective Date
”), between Penson Worldwide, Inc., a Delaware corporation
(the “ Company ”), and the Stockholder
listed on the signature page hereto. All capitalized terms used in
this Agreement shall have the meaning assigned to them in this
Agreement or in the attached Appendix.
WHEREAS ,
the Company and the Stockholder believe that it is in their
respective best interests to limit Transfers of the Shares with a
view to, with certain exceptions, restricting ownership of the
Shares as set forth herein in order, among other things, to
increase the value of the Common Stock for all holders thereof and
their respective transferees.
NOW,
THEREFORE , in consideration of the foregoing premises and
certain other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1.
Restrictions on Transfer . Except for any Permitted Transfer
or as otherwise permitted pursuant to Section A.2 below, the
Stockholder shall not Transfer any of the Shares.
2.
Disposition of the Shares . In addition to the restrictions
set forth in Section A.1 above, the Stockholder shall not
Transfer any of the Shares unless and until there is compliance
with all of the following requirements:
(i) with the exception of a Transfer of the Shares to the public
pursuant to an offering registered under the 1933 Act or to the
public through a broker, dealer or market maker pursuant to the
provisions of Rule 144 adopted under the 1933 Act, the Stockholder
shall have provided the Company with a written summary of the terms
and conditions of the proposed Transfer;
(ii) the Stockholder shall have complied with all requirements of
this Agreement applicable to the Transfer of the Shares;
(iii) the Stockholder shall have provided the Company with written
assurances, in form and substance satisfactory to the Company in
its reasonable discretion, that (a) the proposed Transfer does
not require
registration of
the Shares under the 1933 Act, (b) all appropriate action
necessary for compliance with the registration requirements of the
1933 Act or any exemption from registration available under the
1933 Act (including Rule 144) has been taken, or (c) all
appropriate action has been taken with respect to any requirements
of any foreign laws and/or regulations, including, without
limitation, any rules or regulations of any self-regulatory
organizations; and
(iv) if and when applicable, the Stockholder shall have provided
the Company with written assurances, in form and substance
satisfactory to the Company in its reasonable discretion, that all
appropriate action has been taken with respect to any requirements
of any domestic laws and/or regulations, including, without
limitation, any rules or regulations of any self-regulatory
organizations.
The
Company shall not be required (i) to transfer on its books any
Shares which have been sold or transferred in violation of the
provisions of this Agreement, or (ii) to treat as the owner of
the Shares, or otherwise to accord voting, dividend or liquidation
rights to, any transferee to whom the Shares have been transferred
in contravention of this Agreement.
B. RIGHT OF FIRST REFUSAL
1.
Grant. Subject to the terms hereof, the Company is hereby
granted a first priority right of first refusal (the “
First Refusal Right ”) with respect to any
proposed Transfer of the Shares, specifically excluding a Transfer
of the Shares to the public pursuant to an offering registered
under the 1933 Act or to the public through a broker, dealer or
market maker pursuant to the provisions of Rule 144 adopted
under the 1933 Act.
2.
Notice of Intended Disposition. In the event the Stockholder
desires to accept a bona fide third-party offer for the Transfer of
any or all of the Shares (specifically excluding a Transfer of the
Shares to the public pursuant to an offering registered under the
1933 Act or to the public through a broker, dealer or market maker
pursuant to the provisions of Rule 144 adopted under the 1933
Act) (the Shares subject to such offer to be hereafter called the
“ Target Shares ”), the Stockholder shall
promptly (i) deliver to the Company written notice of the
intended disposition (“ Disposition Notice
”) and the basic terms and conditions thereof, including the
identity of the proposed purchaser, (ii) provide satisfactory
proof that the disposition of the Target Shares to such third-party
offeror would not be in contravention of the provisions set forth
in Article A, and (iii) provide a written representation
to the Company stating that the Stockholder is not knowingly
facilitating, directly or indirectly, a Transfer of the Target
Shares to an entity that engages in the business of being a
broker-dealer that provides clearing, carrying and financing
services to correspondents; provided, however, that the business of
conduit securities lending shall not be considered to be such a
business.
2
3.
Exercise of Right by the Company. The Company shall, for a
period of twenty (20) days following receipt of the Disposition
Notice, have the right to repurchase all or any portion of the
Target Shares at a purchase price per Share equal to the purchase
price determined as of the date of the Disposition Notice, subject
to the following conditions. Such right shall be exercisable by
written notice (the “ Exercise Notice ”)
delivered to the Stockholder prior to the expiration of the fifteen
(15) day exercise period. If such right is exercised with
respect to all of the Target Shares specified in the Disposition
Notice, then the Company shall effect the repurchase of such Target
Shares, including payment of the purchase price, not more than five
(5) business days after the delivery of the Exercise Notice.
At such time, the Stockholder shall deliver to the Company the
certificates representing the Target Shares to be repurchased, each
certificate to be properly endorsed for transfer. The
Company’s ability to exercise its First Refusal Right shall
be limited to instances where, in the Company’s good faith
belief, such proposed Transfer (i) violates the provisions of
Section A.2, or (ii) may disrupt the orderly trading of
the Common Stock.
4.
Non-Exercise of Right. In the event the Exercise Notice is
not given by the Company to the Selling Stockholder within fifteen
(15) days following the date of the Company’s receipt of
the Disposition Notice, the Company shall be deemed to have waived
its First Refusal Right with respect to such proposed
disposition.
5.
Recapitalization/Reorganization.
(i) Any new, substituted or additional securities or other property
which is by reason of any Recapitalization distributed with respect
to the Shares shall be immediately subject to the First Refusal
Right, but only to the extent the Shares are at the time covered by
such right.
(ii) In the event of a Reorganization, the First Refusal Right
shall remain in full force and effect and shall apply to the new
capital stock or other property received in exchange for
the
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