UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 12)*
KCG Holdings,
Inc.
(Name of Issuer)
Class A Common Stock, par value $0.01 per share
(Title of Class of Securities)
48244B 100
(CUSIP
Number)
Stephen G. Schuler
Serenity Investments, LLC
830 North Boulevard
Oak
Park, Illinois
(708) 386-0441
with a copy to:
Lindsey A. Smith
Sidley
Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
(312) 853-7000
(Name,
Address and Telephone Number of Person Authorized to Receive Notices and Communications)
November 4, 2015
(Date of Event which Requires Filing of this Statement)
If the filing person has
previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
* |
The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be
deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
|
|
|
|
|
|
|
1. |
|
Name of
Reporting Person: Serenity Investments, LLC |
2. |
|
Check the Appropriate Box if a Member
of a Group (See Instructions)
(a) ¨ (b) ¨ |
3. |
|
SEC Use Only
|
4. |
|
Source of Funds (See Instructions)
OO (See Item 3) |
5. |
|
Check if Disclosure of Legal
Proceedings Is Required Pursuant to Items 2(d) or
2(e)
¨ |
6. |
|
Citizenship or Place of
Organization Alaska |
Number of
Shares Beneficially
Owned by Each
Reporting Person
With |
|
7. |
|
Sole Voting Power
0 |
|
8. |
|
Shared Voting Power
2,969,031 (1)(2) |
|
9. |
|
Sole Dispositive Power
0 |
|
10. |
|
Shared Dispositive Power
2,969,031 (1)(2) |
11. |
|
Aggregate Amount Beneficially Owned by Each Reporting Person
2,969,031 (1)(2) |
12. |
|
Check if the Aggregate Amount in Row
(11) Excludes Certain Shares (See
Instructions)
¨ |
13. |
|
Percent of Class Represented by Amount
in Row (11) 3.2%(3) |
14. |
|
Type of Reporting Person (See
Instructions) OO |
(1) |
Represents 2,969,031 shares of Class A common stock, par value $0.01 per share (Class A Common Shares), of KCG Holdings, Inc., a Delaware corporation (KCG Holdings), that are issuable upon
the exercise of warrants (Warrant Shares). |
(2) |
All of the Warrant Shares reported in the table above are held directly by Serenity Investments, LLC, a limited liability company organized under the laws of the state of Alaska (Serenity). Stephen G.
Schuler and Mary Jo Schuler separately hold equity interests in Serenity that together represent a controlling equity interest in Serenity. Each of Serenity, Stephen G. Schuler and Mary Jo Schuler may be deemed to share voting and dispositive power
with respect to these securities. Each of Stephen G. Schuler and Mary Jo Schuler disclaims beneficial ownership of these securities except to the extent of his or her pecuniary interest therein. |
(3) |
Calculated based on a total of 93,335,822 Class A Common Shares outstanding, which consists of (i) an estimated 90,366,791 Class A
Common Shares outstanding as of November 4, 2015, according to information filed |
2
by KCG Holdings on November 6, 2015, plus (ii) 2,969,031 Warrant Shares.
3
|
|
|
|
|
|
|
1. |
|
Name of
Reporting Person: Stephen G. Schuler |
2. |
|
Check the Appropriate Box if a Member
of a Group (See Instructions)
(a) ¨ (b) ¨ |
3. |
|
SEC Use Only
|
4. |
|
Source of Funds (See Instructions)
OO (See Item 3) |
5. |
|
Check if Disclosure of Legal
Proceedings Is Required Pursuant to Items 2(d) or
2(e)
¨ |
6. |
|
Citizenship or Place of
Organization United States |
Number of
Shares Beneficially
Owned by Each
Reporting Person
With |
|
7. |
|
Sole Voting Power
0 |
|
8. |
|
Shared Voting Power
5,250,166 (1)(2) |
|
9. |
|
Sole Dispositive Power
0 |
|
10. |
|
Shared Dispositive Power
5,250,166 (1)(2) |
11. |
|
Aggregate Amount Beneficially Owned by Each Reporting Person
5,250,166 (1)(2) |
12. |
|
Check if the Aggregate Amount in Row
(11) Excludes Certain Shares (See
Instructions)
¨ |
13. |
|
Percent of Class Represented by Amount
in Row (11) 5.5% (3) |
14. |
|
Type of Reporting Person (See
Instructions) IN |
(1) |
Represents (i) 2,969,031 Warrant Shares held by Serenity, (ii) 525,138 Class A Common Shares held by the Schuler Family GST Trust dated June 6, 2003 (the GST Trust), (iii) 1,743,918
Warrant Shares held by the GST Trust and (iv) 12,079 Class A Common Shares held by Stephen G. Schuler. |
(2) |
2,969,031 Warrant Shares reported in the table above are held directly by Serenity. Stephen G. Schuler and Mary Jo Schuler separately hold equity
interests in Serenity that together represent a controlling equity interest in Serenity. Each of Serenity, Stephen G. Schuler and Mary Jo Schuler may be deemed to share voting and dispositive power with respect to these securities. Each of Stephen
G. Schuler and Mary Jo Schuler disclaims beneficial ownership of these securities except to the extent of his or her pecuniary interest therein. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an
admission by the Reporting Person that he is the beneficial owner of any of such securities for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose.
|
4
|
525,138 Class A Common Shares and 1,743,918 Warrant Shares reported in the table above are held directly by the GST Trust. Stephen G. Schuler may be deemed, for purposes of Rule 13d-3 under
the Securities Exchange Act of 1934, as amended, to share voting and dispositive power with respect to these securities. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting
Person that he is the beneficial owner of any of such securities for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose. |
(3) |
Calculated based on a total of 95,079,740 Class A Common Shares outstanding, which consists of (i) an estimated 90,366,791 Class A Common Shares outstanding as of November 4, 2015, according to
information filed by KCG Holdings on November 6, 2015, plus (ii) 4,712,949 Warrant Shares. |
5
|
|
|
|
|
|
|
1. |
|
Name of
Reporting Person: Mary Jo Schuler |
2. |
|
Check the Appropriate Box if a Member
of a Group (See Instructions)
(a) ¨ (b) ¨ |
3. |
|
SEC Use Only
|
4. |
|
Source of Funds (See Instructions)
OO (See Item 3) |
5. |
|
Check if Disclosure of Legal
Proceedings Is Required Pursuant to Items 2(d) or
2(e)
¨ |
6. |
|
Citizenship or Place of
Organization United States |
Number of
Shares Beneficially
Owned by Each
Reporting Person
With |
|
7. |
|
Sole Voting Power
0 |
|
8. |
|
Shared Voting Power
5,250,166 (1)(2) |
|
9. |
|
Sole Dispositive Power
0 |
|
10. |
|
Shared Dispositive Power
5,250,166 (1)(2) |
11. |
|
Aggregate Amount Beneficially Owned by Each Reporting Person
5,250,166 (1)(2) |
12. |
|
Check if the Aggregate Amount in Row
(11) Excludes Certain Shares (See
Instructions)
¨ |
13. |
|
Percent of Class Represented by Amount
in Row (11) 5.5% (3) |
14. |
|
Type of Reporting Person (See
Instructions) IN |
(1) |
Represents (i) 2,969,031 Warrant Shares held by Serenity, (ii) 525,138 Class A Common Shares held by the GST Trust, (iii) 1,743,918 Warrant Shares held by the GST Trust and (iv) 12,079
Class A Common Shares held by Stephen G. Schuler, the spouse of Mary Jo Schuler. |
(2) |
2,969,031 Warrant Shares reported in the table above are held directly by Serenity. Stephen G. Schuler and Mary Jo Schuler separately hold equity
interests in Serenity that together represent a controlling equity interest in Serenity. Each of Serenity, Stephen G. Schuler and Mary Jo Schuler may be deemed to share voting and dispositive power with respect to these securities. Each of Stephen
G. Schuler and Mary Jo Schuler disclaims beneficial ownership of these securities except to the extent of his or her pecuniary interest therein. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an
admission by the Reporting Person that she is the beneficial owner of any of such securities for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose.
|
6
|
525,138 Class A Common Shares and 1,743,918 Warrant Shares reported in the table above are held directly by the GST Trust. Mary Jo Schuler may be deemed, for purposes of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended, to share voting and dispositive power with respect to these securities. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Person
that she is the beneficial owner of any of such securities for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose. |
(3) |
Calculated based on a total of 95,079,740 Class A Common Shares outstanding, which consists of (i) an estimated 90,366,791 Class A Common Shares outstanding as of November 4, 2015, according to
information filed by KCG Holdings on November 6, 2015, plus (ii) 4,712,949 Warrant Shares. |
7
Introduction
This Amendment No. 12 (this Amendment No. 12) amends Amendment No. 11 dated October 30, 2015 (Amendment
No. 11), Amendment No. 10 dated June 8, 2015 (Amendment No. 10), Amendment No. 9 dated May 29, 2015 (Amendment No. 9), Amendment No. 8 dated May 6, 2015 (Amendment
No. 8), Amendment No. 7 dated February 2, 2015 (Amendment No. 7), Amendment No. 6 dated July 15, 2014 (Amendment No. 6), Amendment No. 5 dated March 3, 2014 (Amendment
No. 5), Amendment No. 4 dated February 3, 2014 (Amendment No. 4), Amendment No. 3 dated December 31, 2013 (Amendment No. 3), Amendment No. 2 dated December 9, 2013
(Amendment No. 2) and Amendment No. 1 dated November 1, 2013 (Amendment No. 1) to the statement on Schedule 13D dated July 1, 2013 (the Original Statement and, together with Amendment
No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5, Amendment No. 6, Amendment No. 7, Amendment No. 8, Amendment No. 9, Amendment No. 10, Amendment No. 11 and this
Amendment No. 12, this Schedule 13D) relating to the Class A common stock, par value $0.01 per share (the Class A Common Shares), of KCG Holdings, Inc., a Delaware corporation (KCG Holdings). Except as
specifically provided herein, this Amendment No. 12 does not modify any of the information previously reported in the Original Statement. Any capitalized terms used in this Amendment No. 12 and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Original Statement.
This Amendment No. 12 reflects transactions and developments
through the date hereof relating to the Reporting Persons holdings of Class A Common Shares. In particular, this Amendment No. 12 is being filed to reflect (i) sales made pursuant to the previously-disclosed Rule 10b5-1 Plan
dated June 9, 2015 between Serenity and William Blair & Company, L.L.C. (the Serenity Rule 10b5-1 Plan) and the previously-disclosed Rule 10b5-1 Plan dated June 9, 2015 between the GST Trust and William
Blair & Company, L.L.C. (the GST Rule 10b5-1 Plan and, together with the Serenity Rule 10b5-1 Plan, the Plans), (ii) the termination of the Serenity Rule 10b5-1 Plan and (iii) the sale of 1,897,593
Class A Common Shares by Serenity in a private transaction with KCG Holdings.
Item 1. |
Security and Issuer. |
There has been no change to the information disclosed in
Item 1 of the Original Statement.
Item 2. |
Identity and Background. |
There has been no change to the information disclosed in
Item 2 of the Original Statement.
Item 3. |
Source and Amount of Funds or Other Consideration. |
There has been no change to the
information disclosed in Item 3 of the Original Statement.
Item 4. |
Purpose of Transaction. |
As described in Item 4 of Amendment No. 10, Serenity
entered into the Serenity Rule 10b5-1 Plan on June 9, 2015 with respect to 3,260,008 Class A Common Shares and the GST Trust entered into the GST Rule 10b5-1 Plan on June 9, 2015 with respect to 902,176 Class A Common Shares.
Pursuant to a Purchase Agreement, dated as of November 4, 2015 (the Purchase Agreement), between KCG Holdings and
Serenity, KCG Holdings agreed to purchase in a private transaction, at a price of $12.89 per share, 1,897,593 Class A Common Shares owned by Serenity. In connection therewith, on November 5, 2015, Serenity terminated the Serenity Rule
10b5-1 Plan.
Except as disclosed in Item 4 of this Amendment No. 12, none of the Reporting Persons has any present plans or
proposals which relate to or would result in any of the matters set forth in subparagraphs (a)-(j) of Item 4 of Schedule 13D.
8
Item 5. |
Interest in Securities of the Issuer. |
Item 5 of the Schedule 13D is hereby amended
and restated in its entirety as follows:
(a) - (b) With respect to Serenity, Stephen G. Schuler and Mary Jo Schuler, this Schedule
13D relates to the beneficial ownership of 2,969,031 Warrant Shares. Such 2,969,031 shares represent 3.2% of the outstanding Class A Common Shares (based on a total of 93,335,822 Class A Common Shares outstanding, which consists of
(i) an estimated 90,366,791 Class A Common Shares outstanding as of November 4, 2015, according to information filed by KCG Holdings on November 6, 2015, plus (ii) 2,969,031 Warrant Shares). All of these Warrant Shares are
held by Serenity. Stephen G. Schuler and Mary Jo Schuler separately hold equity interests in Serenity that together represent a controlling equity interest in Serenity. Each of Serenity, Stephen G. Schuler and Mary Jo Schuler may be deemed to share
voting and dispositive power with respect to these securities. Each of Stephen G. Schuler and Mary Jo Schuler disclaims beneficial ownership of these securities except to the extent of his or her pecuniary interest therein. Neither the filing of
this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Stephen G. Schuler or Mary Jo Schuler that he or she is the beneficial owner of any of such securities referred to herein for purposes of Section 13(d) of
the Exchange Act or for any other purpose.
Solely with respect to Stephen G. Schuler and Mary Jo Schuler, this Schedule 13D also relates
to the beneficial ownership of an additional 2,881,135 Class A Common Shares, which include (i) 537,217 Class A Common Shares and (ii) 1,743,918 Warrant Shares. Together with the 2,969,031 shares described in the preceding
paragraph, these shares represent 5.5% of the outstanding Class A Common Shares (based on a total of 95,079,740 Class A Common Shares outstanding, which consists of (i) an estimated 90,366,791 Class A Common Shares outstanding as
of November 4, 2015, according to information filed by KCG Holdings on November 6, 2015, plus (ii) 4,712,949 Warrant Shares). Of those, 2,269,056 Class A Common Shares and Warrant Shares are held by the GST Trust. Stephen G.
Schuler and Mary Jo Schuler may be deemed, for purposes of Rule 13d-3 under the Exchange Act, to share voting and dispositive power with respect to these securities. Stephen G. Schuler and Mary Jo Schuler disclaim beneficial ownership of these
securities. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Stephen G. Schuler or Mary Jo Schuler that he or she is the beneficial owner of any of such securities for purposes of
Section 13(d) of the Exchange Act or for any other purpose.
(c) As described in Item 4 of Amendment No. 10, Serenity
entered into the Serenity Rule 10b5-1 Plan on June 9, 2015 with respect to 3,260,008 Class A Common Shares and the GST Trust entered into the GST Rule 10b5-1 Plan on June 9, 2015 with respect to 902,176 Class A Common Shares.
From November 2, 2015, the first trading day following the date of Amendment No. 11, through November 4, 2015, an aggregate of (i) 334,027 Class A Common Shares were sold pursuant to the Serenity Rule 10b5-1 Plan as set
forth on Annex A and (ii) 92,463 Class A Common Shares were sold pursuant to the GST Rule 10b5-1 Plan as set forth on Annex B. Following these sales, 1,897,593 Class A Common Shares remained available for sale under the Serenity
10b5-1 Plan and 525,138 Class A Common Shares remained available for sale under the GST Trust 10b5-1 Plan.
As disclosed in
Item 4 of this Amendment No. 12, on November 4, 2015, KCG Holdings agreed to purchase in a private transaction, at a price of $12.89 per share, 1,897,593 Class A Common Shares owned by Serenity. In connection therewith, on
November 5, 2015, Serenity terminated the Serenity Rule 10b5-1 Plan.
No Reporting Person has effected any other transaction in the
Class A Common Shares or Warrant Shares since the date of Amendment No. 11.
(d) To the knowledge of the Reporting Persons, no
other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Class A Common Shares or Warrant Shares covered by this Schedule 13D.
(e) Not applicable.
Item 6. |
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
See Item 4 of Amendment No. 10 for a description of the GST Trust Rule 10b5-1 Plan and Item 4 of this Amendment No. 12 for
a description of the Purchase Agreement, each of which is incorporated herein by reference. No Reporting Person has any other contracts, arrangements, understandings or relationships with respect to any securities of KCG Holdings.
9
Item 7. |
Material to Be Filed as Exhibits. |
|
|
|
Exhibit Number |
|
Description of Exhibits |
|
|
99.1 |
|
Form of Rule 10b5-1 Plan dated June 9, 2015 between Serenity Investments, LLC and William Blair & Company, L.L.C., incorporated by reference to Exhibit 99.3 to Amendment No. 10 |
|
|
99.2 |
|
Form of Rule 10b5-1 Plan dated June 9, 2015 between the Schuler Family GST Trust dated June 6, 2003 and William Blair & Company, L.L.C., incorporated by reference to Exhibit 99.4 to Amendment No. 10 |
|
|
99.3 |
|
Purchase Agreement dated November 4, 2015 between KCG Holdings, Inc. and Serenity Investments, LLC |
10
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true,
complete and correct.
|
|
|
|
|
Date: November 6, 2015 |
|
SERENITY INVESTMENTS, LLC |
|
|
|
|
|
By: |
|
/s/ Stephen G. Schuler |
|
|
Name: Stephen G. Schuler |
|
|
Title: President of its Manager |
|
|
Date: November 6, 2015 |
|
/s/ Stephen G. Schuler |
|
|
STEPHEN G. SCHULER |
|
|
Date: November 6, 2015 |
|
/s/ Mary Jo Schuler |
|
|
MARY JO SCHULER |
11
INDEX OF EXHIBITS
|
|
|
Exhibit
Number |
|
Description of Exhibits |
|
|
99.1 |
|
Form of Rule 10b5-1 Plan dated June 9, 2015 between Serenity Investments, LLC and William Blair & Company, L.L.C., incorporated by reference to Exhibit 99.3 to Amendment No. 10 |
|
|
99.2 |
|
Form of Rule 10b5-1 Plan dated June 9, 2015 between the Schuler Family GST Trust dated June 6, 2003 and William Blair & Company, L.L.C., incorporated by reference to Exhibit 99.4 to Amendment No. 10 |
|
|
99.3 |
|
Purchase Agreement dated November 4, 2015 between KCG Holdings, Inc. and Serenity Investments, LLC |
12
ANNEX A
Recent Transactions by Serenity in the Class A Common Shares Pursuant to the Serenity Rule 10b5-1 Plan
Set forth below is a summary of open market sales of Class A Common Shares effected pursuant to the Serenity Rule 10b5-1 Plan by Serenity between
November 2, 2015, the first trading day following the date of Amendment No. 11, and the date hereof.
|
|
|
|
|
Date of Transaction |
|
Number of Class A Common Shares Sold |
|
Weighted Average Price Per Share |
11/2/2015 |
|
274,120 |
|
$12.53 |
11/3/2015 |
|
10,182 |
|
$12.95 |
11/4/2015 |
|
49,725 |
|
$12.94 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13
ANNEX B
Recent Transactions by the GST Trust in the Class A Common Shares Pursuant to the GST Rule 10b5-1 Plan
Set forth below is a summary of open market sales of Class A Common Shares effected pursuant to the GST Rule 10b5-1 Plan by the GST Trust between
November 2, 2015, the first trading day following the date of Amendment No. 11, and the date hereof.
|
|
|
|
|
Date of Transaction |
|
Number of Class A Common Shares Sold |
|
Weighted Average Price Per Share |
11/2/2015 |
|
75,880 |
|
$12.53 |
11/3/2015 |
|
2,818 |
|
$12.95 |
11/4/2015 |
|
13,765 |
|
$12.94 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14
Exhibit 99.3
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of November 4, 2015 (this Agreement), between KCG Holdings, Inc., a Delaware corporation,
as purchaser (Purchaser), and Serenity Investments, LLC, a limited liability company organized under the laws of the State of Alaska, as seller (Seller).
RECITALS:
WHEREAS,
Seller is the sole owner and holder of 1,897,593 shares of Class A Common Stock, par value $0.01 per share (Common Stock) of Purchaser; and
WHEREAS, Seller desires to sell, and Purchaser desires to purchase, the Securities (as defined below), in each case upon the terms and
conditions of this Agreement;
NOW THEREFORE, the parties hereby agree as follows:
AGREEMENT:
Section 1. Purchase and Sale of Securities.
(a) Seller hereby agrees to sell, convey, transfer and deliver to Purchaser, and Purchaser hereby agrees to purchase from Seller, 1,897,593
shares of Common Stock (the Securities) for an aggregate purchase price of $24,459,973.77 (the Purchase Price).
(b) The closing of the transaction in Section 1(a) (the Closing) shall be completed as follows:
(i) As soon as reasonably practicable after the date hereof, Seller shall deliver to Purchaser the certificates evidencing the Securities, duly
endorsed for transfer to Purchasers order or accompanied by stock powers or other appropriate instruments of transfer duly executed to Purchasers order; and
(ii) Simultaneously with the delivery by Seller of the certificates or other instruments representing the Securities, Purchaser shall deliver
to Seller the Purchase Price by wire transfer of immediately available funds to an account designated by Seller.
Section 2.
Representations and Warranties of Seller. Seller hereby represents and warrants to Purchaser as follows:
(a) Title to
Securities. Seller is the legal and record owner of the Securities being sold by it hereunder, and has good title thereto, free and clear of any claim, lien, pledge, option, charge, security interest or encumbrance of any nature whatsoever,
including without limitation any agreements restricting the transferability of the Securities but excluding any securities law legend appearing on the Securities (collectively, Encumbrances), and will transfer such good title to
Purchaser, free and clear of any Encumbrance.
-1-
(b) Capacity; Execution and Delivery, Etc. Seller, having full legal capacity to do so,
has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms. Neither the execution or delivery of this Agreement by Seller,
nor the fulfillment of or compliance with the terms and provisions of this Agreement by Seller, will violate or conflict with the organizational documents of Seller, the terms of any material agreement, instrument, judgment, decree or statute to
which Seller is subject or any applicable law.
Section 3. Representations of Purchaser. Purchaser hereby represents and
warrants to Seller as follows:
(a) Due Organization. Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Purchaser has all requisite power and authority to carry on its business as and where it is now being conducted and to own, lease and operate its properties and assets and is duly qualified and in
good standing (to the extent applicable) in each jurisdiction where the ownership or operation of its assets or the conduct of its business requires such qualification.
(b) Capacity; Execution and Delivery, Etc. Purchaser, having full legal capacity to do so, has duly executed and delivered this
Agreement and this Agreement constitutes the legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms. Neither the execution or delivery of this Agreement by Purchaser, nor the fulfillment of or
compliance with the terms and provisions of this Agreement by Purchaser, will violate or conflict with the organizational documents of Purchaser, the terms of any material agreement, instrument, judgment, decree or statute to which Purchaser is
subject or any applicable law.
(c) Clean Hands. Purchaser is not prompted to purchase the Securities by any material non-public
information concerning Purchaser or any of its subsidiaries not otherwise disclosed to Seller.
Section 4. Termination of 10b5-1
Plan. Notwithstanding anything to the contrary herein, Purchaser and Seller hereby acknowledge that Seller is a party to the Rule 10b5-1 Plan (the 10b5-1 Plan), entered into as of June 9, 2015, by and between Seller and
William Blair & Company, L.L.C. (William Blair). Seller hereby agrees to terminate the 10b5-1 Plan and acquire possession of any Securities held by William Blair thereunder within one business day of the date hereof,
which shall be prior to the Closing.
Section 5. Miscellaneous.
(a) Expenses. Each party will be liable for its own costs and expenses incurred in connection with the negotiation, preparation,
execution or performance of this Agreement.
-2-
(b) Assignability. Neither this Agreement nor any right or obligation hereunder shall be
assigned, delegated or otherwise transferred (whether voluntarily, by operation of law, by merger, or otherwise) by any party hereto, without the prior written consent of the other party hereto. Any attempted assignment, delegation or transfer in
violation of this Section 5(b) shall be void and of no force or effect.
(c) No Third-Party Beneficiaries. This Agreement is
for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
(d) Governing Law; Submission to Jurisdiction. This Agreement and
all matters arising in connection with this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without reference to its choice of law provisions. ANY LEGAL SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF NEW YORK IN EACH CASE LOCATED IN THE STATE OF NEW YORK AND EACH
PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTYS ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF
PROCESS FOR ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE
NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(e) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE
EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 5(e).
-3-
(f) Entire Agreement; Amendments. This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter hereof and may be amended only by a written instrument duly signed by each party hereto.
(g) Severability. The invalidity of any term or terms of this Agreement will not affect any other term of this Agreement, which will
remain in full force and effect.
(h) Headings. The descriptive headings of the several paragraphs of this Agreement are inserted
for convenience only and do not constitute a part of this Agreement.
(i) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all such counterparts will together constitute the same agreement. Executed signature pages to this Agreement may be delivered by facsimile, email or other electronic means and
will be deemed as sufficient as if original signature pages had been delivered.
(j) Further Assurances. Each of the parties hereto
agrees, at its own cost and expense, to execute and deliver, or to cause to be executed and delivered, all such instruments (including all necessary endorsements) and to take all such action as the other party may reasonably request in order to
(i) effectuate the intent and purposes of, and to carry out the terms of, this Agreement, and (ii) further effect the transfer of legal and record ownership of the Securities to Purchaser.
(k) Specific Performance. The parties hereto acknowledge and agree that: (a) monetary damages could not adequately compensate any
party hereto in the event of a breach of this Agreement by any other party, which results in the failure of the transactions contemplated by this Agreement to be consummated, (b) the non-breaching party would suffer irreparable harm in the
event of such a breach with such an effect and (c) the non-breaching party shall have, in addition to any other rights or remedies it may have at law or in equity, specific performance and injunctive relief as a remedy for the enforcement of
this Agreement. The parties agree not to seek, and agree to waive, any requirement for the securing or posting of a bond in connection with a party seeking or obtaining any relief pursuant to this Section 5(k).
(l) No Other Representations. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 2 OR 3 OF THIS AGREEMENT, NO PARTY IS MAKING ANY OTHER
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO ANY OTHER PARTY WITH RESPECT TO THE SECURITIES OR PURCHASER.
(m) Notices. All
statements, requests and notices delivered hereunder shall be in writing, and if to Purchaser shall be delivered or sent by mail or e-mail transmission to KCG Holdings, Inc., 545 Washington Boulevard, Jersey City, NJ 07310, Attention: John McCarthy,
e-mail: jmccarthy@kcg.com; and if to Seller shall be delivered or sent by mail or e-mail transmission to Serenity Investments, LLC, 830 North Boulevard, Oak Park, IL 60301, Attention: Stephen Schuler, e-mail:
[redacted]; with a copy (which shall not constitute notice) to Sidley Austin LLP, One South Dearborn Street, Chicago, Illinois 60603, Attention: Lindsey Smith, e-mail: lindsey.smith@sidley.com.
[Signature Page Follows]
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
|
|
|
SELLER: |
|
SERENITY INVESTMENTS, LLC |
|
|
By: |
|
/s/ Stephen Schuler |
|
|
Name: Stephen Schuler |
|
|
Title: President of Final Finish, Inc.
Manager of Serenity Investments, LLC |
|
PURCHASER: |
|
KCG HOLDINGS, INC. |
|
|
By: |
|
/s/ John A. McCarthy |
|
|
Name: John A. McCarthy |
|
|
Title: General Counsel |
KCG Holdings, Inc. (NYSE:KCG)
Historical Stock Chart
From Aug 2024 to Sep 2024
KCG Holdings, Inc. (NYSE:KCG)
Historical Stock Chart
From Sep 2023 to Sep 2024