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Form SC 13D/A KCG Holdings, Inc. Filed by: Tierney Daniel

April 29, 2016 6:30 AM EDT

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934

(Amendment No. 13)*

 

 

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)

Emma Cuadrado

Wicklow Capital, Inc.

53 W. Jackson Boulevard, Suite 1204

Chicago, Illinois

(312) 360-1377

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)

April 26, 2016

 

(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 person’s 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).

 

 

 


CUSIP No. 48244B 100

 

  1.     Name of Reporting Person:

 

Daniel V. Tierney

  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

 

260,100 (1)

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

260,100 (1)

11.    Aggregate Amount Beneficially Owned by Each Reporting Person

 

260,100 (1)

12.    Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)  ¨

 

13.    Percent of Class Represented by Amount in Row (11)

 

0.3% (2)

14.    Type of Reporting Person (See Instructions)

 

IN

 

(1) Represents 260,100 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”), held by Milestone Investments, Limited Partnership, an Alaskan limited partnership (“Milestone”). Milestone is managed by its general partner, Wicklow Capital, Inc., an Illinois corporation (“Wicklow”). Wicklow is wholly owned by the Daniel V. Tierney 2003 Trust, an Illinois trust (the “2003 Trust”). Daniel V. Tierney is the President of Wicklow and the trustee, settlor and sole beneficiary of the 2003 Trust.
(2) Calculated based on a total of 90,878,650 Class A Common Shares outstanding as of February 24, 2016, according to information filed by KCG Holdings on February 29, 2016.

 

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Introduction

This Amendment No. 13 (this “Amendment No. 13”) amends Amendment No. 12 dated March 7, 2016 (“Amendment No. 12”), Amendment No. 11 dated November 16, 2015 (“Amendment No. 11”), Amendment No. 10 dated November 11, 2015 (“Amendment No. 10”), Amendment No. 9 dated June 8, 2015 (“Amendment No. 9”), Amendment No. 8 dated May 29, 2015 (“Amendment No. 8”), Amendment No. 7 dated May 27, 2015 (“Amendment No. 7”), Amendment No. 6 dated May 1, 2015 (“Amendment No. 6”), Amendment No. 5 dated February 2, 2015 (“Amendment No. 5”), Amendment No. 4 dated March 3, 2014 (“Amendment No. 4”), Amendment No. 3 dated February 3, 2014 (“Amendment No. 3”), Amendment No. 2 dated January 13, 2014 (“Amendment No. 2”) and Amendment No. 1 dated October 31, 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, Amendment No. 12 and this Amendment No. 13, 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. 13 does not modify any of the information previously reported in the Original Statement. Any capitalized terms used in this Amendment No. 13 and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Original Statement.

This Amendment No. 13 reflects transactions and developments through the date hereof relating to the Reporting Person’s holdings of securities of KCG Holdings. In particular, this Amendment No. 13 is being filed to reflect: (i) the sale of 655,367 Class A Common Shares on the open market by Milestone Investments, Limited Partnership, an Alaskan limited partnership (“Milestone”); (ii) the sale of 12,079 Class A Common Shares by Daniel V. Tierney in a private transaction with KCG Holdings; (iii) the sale of 1,923,358 Class A Common Shares by Milestone in a private transaction with KCG Holdings; and (iv) the sale of 2,720,699 warrants to purchase Class A Common Shares by the Daniel V. Tierney 2011 Trust, an Illinois Trust (the “2011 Trust”), 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.

On March 7, 2016, the 2011 Trust and Emma Cuadrado, as the trustee of the 2011 Trust, ceased to have voting or dispositive power over more than 5% of the Class A Common Shares. Accordingly, Item 2 of the Original Statement and Item 2 of Amendment No. 5 are hereby amended to remove the 2011 Trust and Emma Cuadrado as Reporting Persons.

 

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.

Item 4 of the Original Statement is hereby amended and restated in its entirety as follows:

Pursuant to a Purchase Agreement, dated as of April 26, 2016 (the “Daniel V. Tierney Purchase Agreement”), between KCG Holdings and Daniel V. Tierney, KCG Holdings agreed to purchase from Daniel V. Tierney, in a private transaction, 12,079 Class A Common Shares for a total purchase price of $162,824.92.

Pursuant to a Purchase Agreement, dated as of April 26, 2016 (the “Milestone Purchase Agreement”), between KCG Holdings and Milestone, KCG Holdings agreed to purchase from Milestone, in a private transaction, 1,923,358 Class A Common Shares for a total purchase price of $25,926,865.84. Milestone is managed by its general partner, Wicklow Capital, Inc., an Illinois corporation (“Wicklow”). Wicklow is wholly owned by the Daniel V. Tierney 2003 Trust, an Illinois trust (the “2003 Trust”). Daniel V. Tierney is the President of Wicklow and the trustee, settlor and sole beneficiary of the 2003 Trust.

 

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Pursuant to a Purchase Agreement, dated as of April 26, 2016 (the “2011 Trust Purchase Agreement”), between KCG Holdings and the 2011 Trust, KCG Holdings agreed to purchase from the 2011 Trust, in a private transaction, 2,720,699 warrants to purchase Class A Common Shares, comprised of 906,899 Class A Warrants, 906,900 Class B Warrants and 906,900 Class C Warrants, for a total purchase price of $5,894,847.83. Emma Cuadrado is the trustee of the 2011 Trust and has sole voting and dispositive power over the securities held by the 2011 Trust. Daniel V. Tierney is the settlor and sole beneficiary of the 2011 Trust. Daniel V. Tierney does not have or share voting or dispositive power over the securities held by the 2011 Trust, but does have the power to revoke the 2011 Trust and acquire beneficial ownership of such securities within 60 days. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Daniel V. Tierney that he is the beneficial owner of any such securities held by the 2011 Trust for purposes of Section 13(d) of the Exchange Act or for any other purpose, and such beneficial ownership is expressly disclaimed.

Milestone may from time to time engage in a variety of derivative transactions with respect to its remaining 260,100 Class A Common Shares, including the purchase and sale of options, puts and calls.

Other than as set forth above, the Reporting Person has no 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. Notwithstanding the foregoing, the Reporting Person may determine to change his intentions with respect to KCG Holdings at any time in the future and may, for example, elect (i) to acquire additional Class A Common Shares or rights to acquire Class A Common Shares in open market or privately negotiated transactions or (ii) to dispose of all or a portion of his holdings of Class A Common Shares. In reaching any determination as to a future course of action, the Reporting Person will take into consideration various factors, such as KCG Holdings’ business and prospects, other developments concerning KCG Holdings, other business opportunities available to the Reporting Person, estate planning considerations and general economic and stock market conditions, including, but not limited to, the market price of the Class A Common Shares.

 

Item 5. Interest in Securities of the Issuer.

Item 5 of the Original Statement is hereby amended and restated in its entirety as follows:

(a) - (b) This Schedule 13D relates to the beneficial ownership of 260,100 Class A Common Shares directly held by Milestone. These shares represent 0.3% of the outstanding Class A Common Shares (based on a total of 90,878,650 Class A Common Shares outstanding as of February 24, 2016, according to information filed by KCG Holdings on February 29, 2016). Milestone is managed by its general partner, Wicklow. Wicklow is wholly owned by the 2003 Trust. Daniel V. Tierney is the President of Wicklow and the trustee, settlor and sole beneficiary of the 2003 Trust.

(c) As disclosed in Item 4 of this Amendment No. 13, on April 26, 2016, KCG Holdings agreed to purchase in private transactions: (i) 12,079 Class A Common Shares from Daniel V. Tierney for a total purchase price of $162,824.92; (ii) 1,923,358 Class A Common Shares from Milestone for a total purchase price of $25,926,865.84; and (iii) 2,720,699 warrants to purchase Class A Common Shares, comprised of 906,899 Class A Warrants, 906,900 Class B Warrants and 906,900 Class C Warrants, from the 2011 Trust for a total purchase price of $5,894,847.83. From March 8, 2016, the first trading day following the date of Amendment No. 12, through April 26, 2016, Milestone sold an aggregate of 655,367 Class A Common Shares on the open market, as set forth on Annex A. The Reporting Person has effected no other transaction in the Class A Common Shares during the past 60 days.

(d) To the knowledge of the Reporting Person, 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 covered by this Schedule 13D.

(e) Daniel V. Tierney ceased to have voting or dispositive power over more than 5% of the Class A Common Shares on April 26, 2016 as a result of the transactions described in paragraph (c) of this Item 5.

 

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Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 of the Original Statement is hereby supplemented as follows:

Milestone holds a portion of its assets, which may include its Class A Common Shares, in prime brokerage accounts at various institutions, which accounts provide Milestone with access to margin or other financing. The customer and related agreements governing such accounts generally provide the broker counterparty with security, collateral or similar rights of possession, sale or offset with respect to such account assets in the event of a customer default. Such agreements generally also provide the counterparty with rights to lend assets held in such account, in some cases without advance or other notification to the customer. To the extent the Class A Common Shares owned by Milestone are held from time to time in such prime brokerage accounts, they may be subject to such counterparty rights. Milestone’s 260,100 Class A Common Shares are currently subject to 2,601 short call options that expire on May 20, 2016.

See Item 4 of this Amendment No. 10 for descriptions of the Milestone Purchase Agreement, Daniel V. Tierney Purchase Agreement and 2011 Trust Purchase Agreement, each of which is incorporated herein by reference.

The Reporting Person has no other contracts, arrangements, understandings or relationships with respect to any securities of KCG Holdings.

 

Item 7. Material to Be Filed as Exhibits.

 

Exhibit
Number

  

Description of Exhibits

99.1    Purchase Agreement dated April 26, 2016 between KCG Holdings, Inc. and Daniel V. Tierney
99.2    Purchase Agreement dated April 26, 2016 between KCG Holdings, Inc. and Milestone Investments, Limited Partnership
99.3    Purchase Agreement dated April 26, 2016 between KCG Holdings, Inc. and the Daniel V. Tierney 2011 Trust

 

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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: April 28, 2016     /s/ Daniel V. Tierney
    DANIEL V. TIERNEY

 

6


INDEX OF EXHIBITS

 

Exhibit
Number

  

Description of Exhibits

99.1    Purchase Agreement dated April 26, 2016 between KCG Holdings, Inc. and Daniel V. Tierney
99.2    Purchase Agreement dated April 26, 2016 between KCG Holdings, Inc. and Milestone Investments, Limited Partnership
99.3    Purchase Agreement dated April 26, 2016 between KCG Holdings, Inc. and the Daniel V. Tierney 2011 Trust

 

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ANNEX A

Recent Transactions by Milestone in the Class A Common Shares

Set forth below is a summary of open market sales of Class A Common Shares made by Milestone between March 8, 2016, the first trading day following the date of Amendment No. 12, and April 26, 2016.

 

Date of Transaction

  

Number of Class A Common

Shares Sold

  

Weighted Average

Price Per Share

3/17/2016    2,100    $12.01
3/18/2016    73,271    $12.14
3/21/2016    3,501    $12.02
3/22/2016    5,400    $12.03
3/31/2016    4,498    $12.01
4/1/2016    19,984    $12.07
4/4/2016    26,623    $12.15
4/5/2016    5,259    $12.01
4/6/2016    5,630    $12.04
4/12/2016    5,200    $12.03
4/13/2016    59,354    $12.41
4/14/2016    53,995    $12.58
4/15/2016    212,684    $12.19
4/18/2016    18,391    $12.40
4/21/2016    93,892    $13.34
4/22/2016    59,271    $13.46
4/25/2016    6,314    $13.60

 

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Exhibit 99.1

PURCHASE AGREEMENT

PURCHASE AGREEMENT, dated as of April 26, 2016 (this “Agreement”), between KCG Holdings, Inc., a Delaware corporation, as purchaser (“Purchaser”), and Daniel V. Tierney, as seller (“Seller”).

RECITALS:

WHEREAS, Seller is the sole owner and holder of 12,079 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, 12,079 shares of Common Stock (the “Securities”) for an aggregate purchase price of $162,824.92 (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 cause the transfer of the Securities in book-entry form to Purchaser.

(ii) Simultaneously with receipt by Purchaser of the Securities, Purchaser shall deliver to Seller the Purchase Price by wire transfer of immediately available funds to the account specified on Annex A hereto.

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.

 

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(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 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. 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.

(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 4(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.

 

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(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 PARTY’S 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 4(e).

(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.

 

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(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 4(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: [email protected]; and if to Seller shall be delivered or sent by mail or e-mail transmission to Daniel V. Tierney, c/o Wicklow Capital Inc., Suite 1204, 53 W. Jackson Blvd., Chicago, IL 60604, Attention: Emma Cuadrado, e-mail: [redacted].

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

SELLER:
By:   /s/ Daniel V. Tierney
  Name: Daniel V. Tierney

 

PURCHASER:
KCG HOLDINGS, INC.
By:   /s/ John McCarthy
  Name: John McCarthy
  Title: General Counsel

Exhibit 99.2

PURCHASE AGREEMENT

PURCHASE AGREEMENT, dated as of April 26, 2016 (this “Agreement”), between KCG Holdings, Inc., a Delaware corporation, as purchaser (“Purchaser”), and Milestone Investments, Limited Partnership, an Alaskan limited partnership, as seller (“Seller”).

RECITALS:

WHEREAS, Seller is the sole owner and holder of 1,923,358 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, 1,923,358 shares of Common Stock (the “Securities”) for an aggregate purchase price of $25,926,865.84 (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 cause the transfer of the Securities in book-entry form to Purchaser.

(ii) Simultaneously with receipt by Purchaser of the Securities, Purchaser shall deliver to Seller the Purchase Price by wire transfer of immediately available funds to the account specified on Annex A hereto.

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.

 

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(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. 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.

(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 4(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.

 

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(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 PARTY’S 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 4(e).

(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.

 

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(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 4(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: [email protected]; and if to Seller shall be delivered or sent by mail or e-mail transmission to Milestone Investments, Limited Partnership, c/o Wicklow Capital Inc., Suite 1204, 53 W. Jackson Blvd., Chicago, IL 60604, Attention: Emma Cuadrado, e-mail: [redacted].

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

SELLER:
MILESTONE INVESTMENTS, LIMITED PARTNERSHIP
By:   /s/ Emma Cuadrado
  Name: Emma Cuadrado
  Title: Sec’y of Wicklow Capital, Inc., GP of           Milestone Investments LP

 

PURCHASER:
KCG HOLDINGS, INC.
By:   /s/ John McCarthy
  Name: John McCarthy
  Title: General Counsel

Exhibit 99.3

PURCHASE AGREEMENT

PURCHASE AGREEMENT, dated as of April 26, 2016 (this “Agreement”), between KCG Holdings, Inc., as purchaser (“Purchaser”), and the Daniel V. Tierney 2011 Trust, as seller (“Seller”).

RECITALS:

WHEREAS, Seller is the sole owner and holder of 2,720,699 warrants to purchase Class A Common Stock, par value $0.01 per share, of Purchaser (“Warrants”), consisting of (i) 906,899 Class A Warrants, (ii) 906,900 Class B Warrants and (iii) 906,900 Class C Warrants;

WHEREAS, such Warrants are subject to the terms of that certain Warrant Agreement, dated as of July 1, 2013 (the “Warrant Agreement”), between Purchaser and Computershare Shareowner Services LLC, as warrant agent (the “Warrant Agent”);

WHEREAS, Section 1.21 of the Warrant Agreement provides that Purchaser shall have the right to purchase Warrants at such times, in such manner and for such consideration as it and the applicable Warrant holder may deem appropriate; 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, (i) 906,899 Class A Warrants, (ii) 906,900 Class B Warrants and (iii) 906,900 Class C Warrants (collectively, the “Securities”) for an aggregate purchase price of $5,894,847.83 (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 the Warrant Agent the certificates evidencing the Securities (the “Original Certificates”), accompanied by stock powers or other appropriate instruments of transfer duly executed to Purchaser’s order and guaranteed by a member of a recognized guarantee medallion program at a guarantee level satisfactory to the Warrant Agent; and

(ii) Simultaneously with the delivery by Seller of the Original Certificates and accompanying stock powers or other appropriate instruments of transfer satisfactory to the Warrant Agent, Purchaser shall deliver to Seller the Purchase Price by wire transfer of immediately available funds to the account specified on Annex A hereto.

 

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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 (other than the Warrant Agreement) 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.

(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.

 

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Section 4. 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.

(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 4(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 PARTY’S 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 4(e).

 

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(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 4(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.

 

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(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: [email protected]; and if to Seller shall be delivered or sent by mail or e-mail transmission to Wicklow Capital, Inc., 53 W. Jackson Boulevard, Suite 1204, Chicago, IL 60604, Attention: Emma Cuadrado, e-mail: [redacted].

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

SELLER:
DANIEL V. TIERNEY 2011 TRUST
By:   /s/ Emma Cuadrado
  Name: Emma Cuadrado
  Title: Trustee

 

PURCHASER:
KCG HOLDINGS, INC.
By:   /s/ John McCarthy
  Name: John McCarthy
  Title: General Counsel


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