sv3asr
As filed with the Securities and Exchange Commission on
April 25, 2011
Registration
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
LPL Investment Holdings
Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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20-3717839
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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One Beacon Street
Boston, MA 02108
(617) 423-3644
(Address, including zip code,
and telephone number, including area code of principal executive
offices)
Mark S. Casady
Stephanie L. Brown
LPL Investment Holdings Inc.
One Beacon Street, Boston, MA 02108
(617) 423-3644
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Please send copies of all communications to:
Julie H. Jones, Esq.
Ropes & Gray LLP
Prudential Tower
800 Boylston Street
Boston, MA 02199
Telephone
(617) 951-7000
Fax
(617) 951-7050
Approximate date of commencement of proposed sale to the
public: From time to time after the effectiveness
of the Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box: o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box:
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
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. (Check one):
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Large
accelerated
filer o
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Accelerated
filer o
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Non-accelerated
filer þ
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Smaller
reporting company
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(Do
not check if a smaller reporting company)
CALCULATION
OF REGISTRATION FEE
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Amount to be Registered/
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Amount of
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Title of Each Class of
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Proposed Maximum Offering Price per Unit/
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Registration
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Securities to be Registered
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Proposed Maximum Aggregate Offering Price(1)
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Fee(2)
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Common Stock, $.001 par value per share
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(1)
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An indeterminate aggregate amount and initial offering price of
common stock is being registered hereunder, as may from time to
time be offered, at indeterminate prices.
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(2)
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In accordance with Rules 456(b) and 457(r) of the
Securities Act of 1933, as amended, the registrant is deferring
payment of all of the registration fee.
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Common Stock
We may offer to the public from time to time shares of our
common stock in one or more issuances. Selling stockholders may
also offer or sell, from time to time, shares of our common
stock.
This prospectus describes the general manner in which these
securities may be offered using this prospectus. Each time we or
the selling stockholders sell these securities, the specific
terms will be determined at the time of the offering and will be
included in a supplement to this prospectus. Information about
the selling stockholders, including the relationship between the
selling stockholders and us, will also be included in the
applicable prospectus supplement. We and the selling
stockholders may sell these securities directly to our
stockholders or to purchasers or through agents on our behalf or
through underwriters or dealers as designated from time to time.
If any agents or underwriters are involved in the sale of these
securities, the applicable prospectus supplement will provide
the names of the agents or underwriters and any applicable fees,
commissions or discounts.
This prospectus may not be used to consummate a sale of
securities unless accompanied by the applicable prospectus
supplement. You should read both this prospectus and any
prospectus supplement together with additional information
described under the heading Where You Can Find More
Information before you make your investment decision.
Our common stock is listed on The NASDAQ Global Select Market
under the symbol LPLA. On April 21, 2011, the
last sale price of our common stock as reported on The NASDAQ
Global Select Market was $34.79 per share.
Investing in our common stock
involves risks. See Risk Factors on
page 1.
Neither the Securities and Exchange Commission nor any other
regulatory body has approved or disapproved of these securities
or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
Prospectus dated April 25, 2011.
TABLE OF
CONTENTS
We have not authorized anyone to provide any information or to
make any representations other than those contained in or
incorporated by reference into this prospectus, any accompanying
prospectus or in any free writing prospectuses we have prepared.
We take no responsibility for, and can provide no assurance as
to the reliability of, any other information that others may
give you. This prospectus and any accompanying prospectus
supplement are an offer to sell only the shares offered hereby,
but only under circumstances and in jurisdictions where it is
lawful to do so. The information contained in this prospectus
and any accompanying prospectus supplement is current only as of
the date of the applicable document.
ABOUT
THIS PROSPECTUS
When we use the terms we, us,
our, LPL or the company, we
mean LPL Investment Holdings Inc., a Delaware corporation, and
its consolidated subsidiaries, including LPL Financial LLC,
taken as a whole, as well as the predecessor entity LPL
Holdings, Inc., unless the context otherwise indicates.
This prospectus is a part of a registration statement that we
filed with the Securities and Exchange Commission
(SEC), as a well-known seasoned issuer
as defined under Rule 405 under the Securities Act of 1933,
as amended (the Securities Act), using a
shelf registration process. Under this shelf
registration process, we and the selling stockholders may from
time to time sell common stock in one or more offerings. This
prospectus provides you with a general description of our common
stock. Each time we or the selling stockholders sell securities
under this shelf registration, we will provide a prospectus
supplement that will contain specific information about the
terms of that offering, including information about the selling
stockholders. The prospectus supplement may also add, update or
change information contained in this prospectus. If the
information in this prospectus is inconsistent with a prospectus
supplement, you should rely on the prospectus supplement. You
should read both this prospectus and any prospectus supplement,
including all documents incorporated herein or therein by
reference, together with additional information described under
Where You Can Find More Information.
RISK
FACTORS
Investing in our common stock involves a high degree of risk.
See Item 1A Risk Factors in our
most recent Annual Report on
Form 10-K
incorporated by reference in this prospectus and in any
subsequent Quarterly Report on
Form 10-Q
and the Risk Factors section in the applicable
prospectus supplement for a discussion of the factors you should
carefully consider before deciding to purchase our common
stock.
FORWARD-LOOKING
STATEMENTS
This prospectus, the accompanying prospectus supplement and the
documents incorporated by reference herein and therein contain
forward-looking statements (regarding future financial position,
budgets, business strategy, projected costs, plans, objectives
of management for future operations, and other similar matters)
that involve risks and uncertainties. Forward-looking statements
can be identified by words such as anticipates,
expects, believes, plans,
predicts and similar terms. Forward-looking
statements are not guarantees of future performance and there
are important factors that could cause our actual results, level
of activity, performance or achievements to differ materially
from the results, level of activity, performance or achievements
expressed or implied by the forward-looking statements
including, but not limited to, changes in general economic and
financial market conditions, fluctuations in the value of assets
under management, effects of competition in the financial
services industry, changes in the number of our financial
advisors and institutions and their ability to effectively
market financial products and services, the effect of current,
pending and future legislation and regulation and regulatory
actions. In particular, you should consider the numerous risks
described in our Annual Report on
Form 10-K
for the year ended December 31, 2010 and any subsequent
Quarterly Reports on
Form 10-Q,
each incorporated by reference in this prospectus and in the
Risk Factors section in the applicable prospectus
supplement. See Where You Can Find More Information.
Although we believe the expectations reflected in the
forward-looking statements are reasonable, we cannot guarantee
future results, level of activity, performance or achievements.
You should not rely upon forward-looking statements as
predictions of future events. Unless required by law, we will
not undertake and we specifically disclaim any obligation to
release publicly the result of any revisions which may be made
to any forward-looking statements to reflect events or
circumstances after the date of such statements or to reflect
the occurrence of events, whether or not anticipated. In that
respect, we wish to caution readers not to place undue reliance
on any such forward-looking statements, which speak only as of
the date they are made.
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USE OF
PROCEEDS
Except as otherwise provided in the applicable prospectus
supplement, we intend to use the net proceeds we receive from
our sale of the securities covered by this prospectus for
general corporate purposes, which may include repayment of debt,
working capital, capital expenditures and possible acquisitions.
Additional information on the use of net proceeds we receive
from the sale of securities covered by this prospectus may be
set forth in the prospectus supplement relating to the specific
offering.
We will not receive any proceeds in the event the securities are
sold by a selling stockholder.
DESCRIPTION
OF COMMON STOCK
References to the Company, us,
we or our in this section mean LPL
Investment Holdings, Inc. and do not include the subsidiaries of
LPL Investment Holdings, Inc. Also, in this section, references
to holders mean those who own common stock
registered in their own names, on the books that we maintain for
this purpose.
The following summary of the terms of our common stock does not
purport to be complete. You should refer to our certificate of
incorporation and bylaws, both of which are on file with the SEC
as exhibits to previous filings. The summary below is also
qualified by provisions of applicable law.
General
Under our certificate of incorporation, we have authority to
issue up to 600,000,000 shares of common stock, par value
$0.001 per share. As of April 18, 2011, we had
108,859,632 shares of common stock outstanding, held by
1,172 record holders.
Holders of our common stock are entitled to one vote for each
share held on all matters submitted to a vote of stockholders
and do not have cumulative voting rights. An election of
directors by our stockholders shall be determined by a plurality
of the votes cast by the stockholders entitled to vote on the
election. Holders of common stock are entitled to receive
proportionately any dividends as may be declared by our board of
directors, subject to any preferential dividend rights of any
series of preferred stock that is outstanding at the time of the
dividend.
In the event of our liquidation or dissolution, the holders of
common stock are entitled to receive proportionately our net
assets available for distribution to stockholders after payment
of all debts and other liabilities and subject to the prior
rights of any outstanding preferred stock.
All shares of common stock will, when issued, be duly
authorized, fully paid and nonassessable. The rights,
preferences and privileges of holders of common stock are
subject to the rights of the holders of shares of any series of
preferred stock that the company may designate and issue in the
future.
Anti-takeover
Effects of the Delaware General Corporation Law and Our
Certificate of Incorporation and Bylaws
Our certificate of incorporation and our bylaws contain
provisions that may delay, defer or discourage another party
from acquiring control of us, some of which may only become
effective when TPG Capital, L.P. and Hellman &
Friedman LLC (collectively, the Majority Holders)
collectively cease to beneficially own at least 40% or more of
our outstanding shares of common stock (such time referred to in
this section as the triggering event). We expect
that these provisions, which are summarized below, will
discourage coercive takeover practices or inadequate takeover
bids. These provisions are also designed to encourage persons
seeking to acquire control of us to first negotiate with the
board of directors, which we believe may result in an
improvement of the terms of any such acquisition in favor of our
stockholders. However, they may also discourage acquisitions
that some stockholders may favor. This offering will not
constitute a triggering event.
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Board
of Directors
Our board of directors currently has nine members. Our
certificate of incorporation provides that until the occurrence
of the triggering event (as defined above), the number of
directors shall not be increased without, in addition to any
other vote otherwise required by law, the affirmative vote or
written consent of at least 60% of the outstanding shares of
common stock. In addition, our stockholders agreement
provides that the board of directors will not have more than
nine members for so long as either Hellman & Friedman
LLC and its affiliates or TPG Capital, L.P. and its affiliates
are entitled to appoint two directors under the
stockholders agreement.
Potential
Staggered Board
Our certificate of incorporation provides that at the first
annual meeting after the triggering event, our board of
directors shall be divided into three classes with staggered
three-year terms. The classification of our board could make it
more difficult for a third party to acquire, or discourage a
third party from seeking to acquire, control of our company.
Action
by Written Consent
The Delaware General Corporation Law (DGCL) provides
that, unless otherwise stated in a corporations
certificate of incorporation, the stockholders may act by
written consent without a meeting. Our certificate of
incorporation provides that following the triggering event, any
action required or permitted to be taken by our stockholders at
an annual meeting or special meeting of the stockholders may
only be taken at such annual or special meeting, and not by
written consent without a meeting, if it is properly brought
before such annual or special meeting.
Special
Meeting of Stockholders and Advance Notice Requirements for
Stockholder Proposals
Our certificate of incorporation and bylaws provide that, except
as otherwise required by law, special meetings of the
stockholders can only be called by (a) our chairman or vice
chairman of the board, (b) our president, (c) a
majority of the board of directors through a special resolution,
or (d) prior to the triggering event, the holders of at
least 40% of the outstanding shares of common stock.
In addition, following the occurrence of the triggering event
described above, our bylaws will require advance notice
procedures for stockholder proposals to be brought before an
annual meeting of the stockholders, including the nomination of
directors. Stockholders at an annual meeting may only consider
the proposals specified in the notice of meeting or brought
before the meeting by or at the direction of the board of
directors, or by a stockholder of record on the record date for
the meeting, who is entitled to vote at the meeting and who has
delivered a timely written notice in proper form to our
secretary, of the stockholders intention to bring such
business before the meeting.
These provisions could have the effect of delaying until the
next stockholder meeting any stockholder actions that are
favored by the holders of a majority of our outstanding voting
securities.
Requirements
for Removal and Interim Election of Directors
At such time as our board of directors has been divided into
three classes, our certificate of incorporation provides that
the directors may only be removed for cause and only by the
affirmative vote of the holders of at least two-thirds of the
voting power of our outstanding shares of capital stock entitled
to vote generally in the election of directors, voting together
as a single class. Our certificate of incorporation and bylaws
provide that prior to the triggering event, directors may be
removed, with or without cause, by the holders of a majority of
the shares entitled to vote on the election of directors, voting
together as a single class.
Vacancies and newly-created directorships may be filled only by
a vote of a majority of the directors then in office, even
though less than a quorum, and not by the stockholders, except
that, prior to a triggering event, such vacancies may be filled
by, in addition to any other vote otherwise required by law, the
affirmative vote of holders of a majority of the outstanding
shares of common stock. In addition, the certificate of
incorporation provides that any vacancy created by the removal
of a director by the stockholders shall only be filled by, in
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addition to any other vote otherwise required by law, the
affirmative vote of a majority of the outstanding shares of
common stock. Our bylaws allow the presiding officer at a
meeting of the stockholders to adopt rules and regulations for
the conduct of meetings which may have the effect of precluding
the conduct of certain business at a meeting if the rules and
regulations are not followed.
These provisions may have the effect of deferring, delaying or
discouraging hostile takeovers, or changes in control or
management of our company.
Amendment
to Certificate of Incorporation and Bylaws
The DGCL provides generally that the affirmative vote of a
majority of the outstanding stock entitled to vote on amendments
to a corporations certificate of incorporation or bylaws
is required to approve such amendment, unless a
corporations certificate of incorporation or bylaws, as
the case may be, requires a greater percentage. Following the
first time when the Majority Holders collectively cease to own
more than 50% of our outstanding shares of common stock, our
bylaws may be amended or repealed by a majority vote of our
board of directors or, in addition to any other vote otherwise
required by law, the affirmative vote of at least two-thirds of
the voting power of our outstanding shares of common stock.
Additionally, following the first time when the Majority Holders
collectively cease to own more than 50% of our outstanding
shares of common stock, the affirmative vote of at least
two-thirds of the voting power of the outstanding shares of
capital stock entitled to vote on the adoption, alteration,
amendment or repeal of our certificate of incorporation, voting
as a single class is required to amend or repeal or to adopt any
provision inconsistent with the Board of Directors,
No Action by Written Consent, Special Meetings
of Stockholders, Amendments to the Amended and
Restated Certificate of Incorporation and Bylaws and
Business Combinations provisions described in our
certificate of incorporation. These provisions may have the
effect of deferring, delaying or discouraging the removal of any
anti-takeover defenses provided for in our certificate of
incorporation and our bylaws.
Exclusive
Jurisdiction of Certain Actions
Our certificate of incorporation requires, to the fullest extent
permitted by law, that derivative actions brought in the name of
the company, actions against directors, officers and employees
for breach of fiduciary duty and other similar actions may be
brought only in the Court of Chancery in the State of Delaware.
Although we believe this provision benefits the company by
providing increased consistency in the application of Delaware
law in the types of lawsuits to which it applies, the provision
may have the effect of discouraging lawsuits against our
directors and officers.
Authorized
but Unissued Shares
The authorized but unissued shares of common stock and preferred
stock are available for future issuance without stockholder
approval, subject to any limitations imposed by the listing
standards of The NASDAQ Global Select Market. These additional
shares may be used for a variety of corporate finance
transactions, acquisitions and employee benefit plans. The
existence of authorized but unissued common stock and preferred
stock could make more difficult, or discourage an attempt to
obtain control of us by means of a proxy contest, tender offer,
merger, or otherwise.
Business
Combinations
We have elected to not be subject to Section 203 of the
DGCL, which regulates business combinations with
interested stockholders.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is BNY
Mellon Shareowner Services.
Listing
Our common stock is listed on The NASDAQ Global Select Market
under the symbol LPLA.
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PLAN OF
DISTRIBUTION
We and the selling stockholders may sell securities in any of
the ways described below or in any combination:
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to or through underwriters or dealers;
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through one or more agents; or
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directly to purchasers or to a single purchaser.
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The distribution of the securities by us or the selling
stockholders may be effected from time to time in one or more
transactions:
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at a fixed price, or prices, which may be changed from time to
time;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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at negotiated prices.
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Each prospectus supplement will describe the method of
distribution of the securities and any applicable restrictions.
The prospectus supplement will describe the terms of the
offering of the securities, including the following:
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the name or names of any underwriters, dealers or agents and the
amounts of securities underwritten or purchased by each of them;
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the public offering price of the securities and the proceeds to
us and any discounts, commissions or concessions allowed or
reallowed or paid to dealers.
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if the securities are sold by the selling stockholders,
information about the selling stockholders, including the
relationship between the selling stockholders and us.
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Any offering price and any discounts or concessions allowed or
reallowed or paid to dealers will be specified in the applicable
prospectus supplement and may be changed from time to time.
Only the agents or underwriters named in each prospectus
supplement are agents or underwriters in connection with the
securities being offered thereby.
We and the selling stockholders may authorize underwriters,
dealers or other persons acting as our agents to solicit offers
by certain institutions to purchase securities from us or the
selling stockholders pursuant to delayed delivery contracts
providing for payment and delivery on the date stated in each
applicable prospectus supplement. Each contract will be for an
amount not less than, and the aggregate amount of securities
sold pursuant to such contracts shall not be less nor more than,
the respective amounts stated in each applicable prospectus
supplement. Institutions with whom the contracts, when
authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions,
but shall in all cases be subject to our approval. Delayed
delivery contracts will be subject only to those conditions set
forth in each applicable prospectus supplement, and each
prospectus supplement will set forth any commissions we pay for
solicitation of these contracts.
Agents, underwriters and other third parties described above may
be entitled to indemnification by us and the selling
stockholders against certain civil liabilities, including
liabilities under the Securities Act, or to contribution from us
and the selling stockholders with respect to payments which the
agents, underwriters or third parties may be required to make in
respect thereof. Agents, underwriters and such other third
parties may be customers of, engage in transactions with, or
perform services for us or the selling stockholders in the
ordinary course of business. We and the selling stockholders may
also use underwriters or such other third parties with whom we
or such selling stockholders have a material relationship. We
and the selling stockholders will describe the nature of any
such relationship in the applicable prospectus supplement.
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Certain underwriters may use this prospectus and any
accompanying prospectus supplement for offers and sales related
to market-making transactions in the securities. These
underwriters may act as principal or agent in these
transactions, and the sales will be made at prices related to
prevailing market prices at the time of sale. Any underwriters
involved in the sale of the securities may qualify as
underwriters within the meaning of
Section 2(a)(11) of the Securities Act. In addition, the
underwriters commissions, discounts or concessions may
qualify as underwriters compensation under the Securities
Act and the rules of the Financial Industry Regulatory Authority.
Our common stock is listed on The NASDAQ Global Select Market.
Underwriters may make a market in our common stock, but will not
be obligated to do so and may discontinue any market making at
any time without notice. We can make no assurance as to the
development, maintenance or liquidity of any trading market for
the securities.
Certain persons participating in an offering may engage in
overallotment, stabilizing transactions, short covering
transactions and penalty bids in accordance with rules and
regulations under the Securities Exchange Act of 1934, as
amended (the Exchange Act). Overallotment involves
sales in excess of the offering size, which create a short
position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not
exceed a specified maximum. Short covering transactions involve
purchases of the securities in the open market after the
distribution is completed to cover short positions. Penalty bids
permit the underwriters to reclaim a selling concession from a
dealer when the securities originally sold by the dealer are
purchased in a covering transaction to cover short positions.
Those activities may cause the price of the securities to be
higher than it would otherwise be. If commenced, the
underwriters may discontinue any of the activities at any time.
WHERE YOU
CAN FIND MORE INFORMATION
We have filed a registration statement on
Form S-3
with the SEC for the securities offered by this prospectus. This
prospectus does not include all of the information contained in
the registration statement. You should refer to the registration
statement and its exhibits for additional information.
We are required to file annual and quarterly reports, special
reports, proxy statements, and other information with the SEC.
We make these documents publicly available, free of charge, on
our website at www.lpl.com as soon as reasonably practicable
after filing such documents with the SEC. The information
contained on our website is not a part of this prospectus. You
can read our SEC filings, including the registration statement,
on the SECs website at
http://www.sec.gov.
You also may read and copy any document we file with the SEC at
its public reference facility at:
Public Reference Room
100 F Street N.E.
Washington, DC 20549.
Please call the SEC at
1-800-732-0330
for further information on the operation of the public reference
facilities.
6
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference into
this prospectus information we file with it, which means that we
can disclose important information to you by referring you to
those documents. The information incorporated by reference is
considered to be part of this prospectus, and information in
documents that we file later with the SEC will automatically
update and supersede information in this prospectus. We
incorporate by reference into this prospectus the documents
listed below and any future filings made by us with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act, except for information furnished under
Items 2.02, 7.01 or 9.01 on
Form 8-K
or other information furnished to the SEC which is
not deemed filed and not incorporated in this prospectus, until
the termination of the offering of securities described in the
applicable prospectus supplement. We hereby incorporate by
reference the following documents:
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Our Annual Report on
Form 10-K
for the year ended December 31, 2010, as filed with the SEC
on March 9, 2011 (File
No. 001-34963);
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Our Current Report on
Form 8-K,
as filed with the SEC on March 14, 2011 (File
No. 001-34963);
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Our Definitive Proxy Statement on Schedule 14A, as filed
with the SEC on April 4, 2011 (File
No. 001-34963); and
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Description of Common Stock, which is contained in the
Registration Statement on
Form 8-A,
as filed with the SEC on November 12, 2010 (File
No. 001-34963),
as supplemented by the Description of Common Stock found on
page 2 of this prospectus and including any amendments or
reports filed for the purpose of updating such description.
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You may request a copy of these filings, at no cost, by writing
or telephoning us at the following address:
Secretary
LPL Investment Holdings Inc.
One Beacon Street
Boston, Massachusetts 02108
(617) 423-3644
Copies of these filings are also available, without charge, on
the SECs website at www.sec.gov and on our website at
www.lpl.com as soon as reasonably practicable after they are
filed electronically with the SEC. The information contained on
our website is not a part of this prospectus.
LEGAL
MATTERS
The validity of the issuance of the securities offered pursuant
to this prospectus will be passed upon for us by
Ropes & Gray LLP, Boston, Massachusetts. The validity
of any securities will be passed upon for any underwriters or
agents by counsel that we will name in the applicable prospectus
supplement.
EXPERTS
The consolidated financial statements incorporated in this
prospectus by reference from the Companys Annual Report on
Form 10-K
for the year ended December 31, 2010, and the effectiveness
of LPL Investment Holdings Inc.s internal control over
financial reporting have been audited by Deloitte &
Touche LLP, an independent registered public accounting firm, as
stated in their reports, which are incorporated herein by
reference. Such consolidated financial statements have been so
incorporated in reliance upon the reports of such firm given
upon their authority as experts in accounting and auditing.
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PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
expenses of Issuance and Distribution.
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The following table sets forth the various expenses in
connection with the sale and distribution of the securities
being registered.
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Securities and Exchange Commission registration fee
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$
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*
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Printing and engraving expenses
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**
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Legal fees and expenses
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**
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Accounting fees and expenses
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**
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Transfer Agent and Registrar fees
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**
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Miscellaneous
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**
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Total
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$
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* |
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Omitted because the registration fee is being deferred pursuant
to Rule 456(b) and 457(r). |
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** |
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These fees are calculated based on the number of issuances and
the amount of securities offered and accordingly cannot be
estimated at this time. |
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Item 15.
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Indemnification
of Directors and Officers.
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Section 102(b)(7) of the DGCL enables a corporation in its
original certificates of incorporation or an amendment thereto
to eliminate or limit the personal liability of a director for
violations of the directors fiduciary duty, except
(i) for any breach of the directors duty of loyalty
to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for
liability of directors for unlawful payment of dividends or
unlawful stock purchase or redemptions pursuant to
Section 174 of the DGCL or (iv) for any transaction
from which a director derived an improper personal benefit. Our
certificate of incorporation includes a provision that
eliminates the personal liability of directors for monetary
damages for actions taken as a director to the fullest extent
authorized by the DGCL.
Section 145(a) of the DGCL provides in relevant part that a
corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or
in the right of the corporation) by reason of the fact that such
person is or was a director or officer of the corporation, or is
or was serving at the request of the corporation as a director
or officer of another entity, against expenses (including
attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such
persons conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that such
person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that such
persons conduct was lawful.
Section 145(b) of the DGCL provides in relevant part that a
corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that
the person is or was a director or officer of the corporation,
or is or was serving at the request of the corporation as a
director or officer of another entity, against expenses
(including attorneys fees) actually and reasonably
incurred by such person in connection with the defense or
settlement of such action or suit if the person acted in good
faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation and except
that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the extent
that
II-1
the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Our certificate of incorporation generally provides that we will
indemnify our directors and officers to the fullest extent
permitted by law. Our certificate of incorporation also provides
that the indemnification and advancement of expenses provided
by, or granted pursuant to the certificate of incorporation are
not exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any bylaw, agreement, vote of stockholders or otherwise.
Section 145(f) of the DGCL further provides that a right to
indemnification or to advancement of expenses arising under a
provision of the certificate of incorporation shall not be
eliminated or impaired by an amendment to such provision after
the occurrence of the act or omission which is the subject of
the civil, criminal, administrative or investigation action,
suit or proceeding for which indemnification or advancement of
expenses is sought.
We have also entered into indemnification agreements with
certain of our directors and officers. Such agreements generally
provide for indemnification by reason of being our director or
officer, as the case may be. These agreements are in addition to
the indemnification provided by our certificate of incorporation
and bylaws.
We also obtained officers and directors liability
insurance which insures against liabilities that officers and
directors of the registrant may, in such capacities, incur.
Section 145(g) of the DGCL provides that a corporation
shall have power to purchase and maintain insurance on behalf of
any person who is or was a director or officer of the
corporation, or is or was serving at the request of the
corporation as a director or officer of another entity, against
any liability asserted against such person and incurred by such
person in any such capacity, or arising out of such
persons status as such, whether or not the corporation
would have the power to indemnify such person against such
liability under that section.
Also see Item 17. Undertakings.
See Exhibit Index beginning on
page II-7
of this registration statement.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the Calculation of Registration Fee
table in the effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
II-2
Provided, however, that the undertakings set forth
in paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this
section do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is a
part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided,
however, that no statement made in a registration
statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser: (i) Any preliminary
prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant; (iii) the
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and (iv) any other communication
that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report
pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in
II-3
the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933
and is therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933, and will be governed by the final
adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Boston, The Commonwealth of Massachusetts, on the 25th
day of April, 2011.
LPL Investment Holdings Inc.
Mark S. Casady
Chief Executive Offer and Chairman
POWER OF
ATTORNEY
Each person whose signature appears below constitutes and
appoints Mark S. Casady and Robert J. Moore, and each of them
acting individually, as his true and lawful attorneys-in-fact
and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on
Form S-3
and any related Rule 462(b) registration statement or
amendment thereto, to be filed by LPL Investment Holdings Inc.,
and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
* * * *
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated:
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Signature
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Title
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Date
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/s/ Mark
S. Casady
Mark
S. Casady
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Chief Executive Officer and Chairman
(Principal Executive Officer)
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April 25, 2011
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/s/ Robert
J. Moore
Robert
J. Moore
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Chief Financial Officer
(Principal Financial Officer)
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April 25, 2011
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/s/ Thomas
D. Lux
Thomas
D. Lux
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Chief Accounting Officer
(Principal Accounting Officer)
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April 25, 2011
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/s/ Richard
W. Boyce
Richard
W. Boyce
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Director
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April 25, 2011
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/s/ John
J. Brennan
John
J. Brennan
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Director
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April 25, 2011
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II-5
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Signature
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Title
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Date
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/s/ James
S. Putnam
James
S. Putnam
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Director, Vice Chairman
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April 25, 2011
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/s/ Erik
D. Ragatz
Erik
D. Ragatz
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Director
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April 25, 2011
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/s/ James
S. Riepe
James
S. Riepe
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Director
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April 25, 2011
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/s/ Richard
P. Schifter
Richard
P. Schifter
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Director
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April 25, 2011
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/s/ Jeffrey
E. Stiefler
Jeffrey
E. Stiefler
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Director
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April 25, 2011
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/s/ Allen
R. Thorpe
Allen
R. Thorpe
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Director
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April 25, 2011
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II-6
EXHIBIT INDEX
The following is a list of exhibits filed as part of this
registration statement.
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Exhibit
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Description
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1
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.1*
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Form of underwriting agreement
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3
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.1
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Amended and Restated Certificate of Incorporation (incorporated
by reference to Exhibit 3.1 to Amendment No. 2 to the
Registration Statement on
Form S-1
filed with the SEC on July 9, 2010)
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3
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.2
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Second Amended and Restated Bylaws of LPL Investment Holdings
Inc. (incorporated by reference to Exhibit 3.1 to Current
Report on
Form 8-K
filed with the SEC on July 23, 2010)
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4
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.1
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Specimen common stock certificate (incorporated by reference to
Exhibit 4.1 to Current Report on
Form 8-K
filed on July 23, 2010)
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5
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.1
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Opinion of Ropes & Gray LLP (filed herewith)
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23
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.1
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Consent of Deloitte & Touche LLP (filed herewith)
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23
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.2
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Consent of Ropes & Gray LLP (included in
Exhibit 5.1)
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24
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.1
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Power of attorney included on the signature page
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To be filed, if necessary, subsequent to the effectiveness of
this registration statement by an amendment to this registration
statement or incorporated by reference pursuant to a Current
Report on
Form 8-K
in connection with an offering of securities. |
exv5w1
Exhibit 5.1
April 25, 2011
LPL Investment Holdings Inc.
One Beacon Street
Boston, Massachusetts 02108
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is furnished to you in connection with the above-referenced registration statement
(the Registration Statement), filed on or about the date hereof with the Securities and
Exchange Commission under the Securities Act of 1933 (the Act), for the registration of
shares (the Shares) of common stock, par value $0.001 per share (the Common
Stock) of LPL Investment Holdings Inc., a Delaware corporation (the Company).
We have acted as counsel for the Company in connection with the filing of the Registration
Statement. For purposes of this opinion, we have examined and relied upon such documents, records,
certificates and other instruments as we have deemed necessary.
The opinions expressed below are limited to the Delaware General Corporation Law, including the
applicable provisions of the Delaware Constitution and the reported cases interpreting those laws.
The Company has the authority pursuant to its certificate of incorporation to issue up to
600,000,000 shares of Common Stock. Upon adoption by the Board of Directors of the Company, or a
duly authorized committee thereof, of resolutions in form and content as required by applicable
law, and upon issuance and delivery of, and payment for, newly issued shares in the manner
contemplated by the Registration Statement, any prospectus and any prospectus supplement related
thereto, and by such resolution, the Shares will be validly issued, fully paid and non-assessable.
We assume for purposes of this opinion that (i) the Company is and will remain duly organized,
validly existing and in good standing under applicable state law, (ii) the consideration per Share
will not be less than the par value of such Share, and (iii) the number of Shares issued pursuant
to the Registration Statement, together with the number of shares outstanding or reserved at the
time of issuance, will not exceed the respective number of shares authorized by the Companys
certificate of incorporation in effect at the time of such issuance.
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LPL Investment Holdings Inc.
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- 2 -
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April 25, 2011 |
We hereby consent to your filing this opinion as an exhibit to the Registration Statement and to
the use of our name therein and in any related prospectus or prospectus supplement under the
caption Legal Matters. In giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission thereunder.
This opinion may be used only in connection with the offer and sale of the Shares while the
Registration Statement is in effect.
Very truly yours,
/s/ Ropes & Gray LLP
Ropes & Gray LLP
exv23w1
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our
reports dated March 9, 2011 relating to the consolidated financial statements of LPL Investment
Holdings Inc. and the effectiveness of LPL Investment Holdings Inc. internal control over financial
reporting appearing in its Annual Report on Form 10-K for the year ended December 31, 2010, and to
the reference to us under the heading Experts in the Prospectus, which is part of this
Registration Statement.
/s/ Deloitte & Touche LLP
Costa Mesa, California
April 25, 2010