EXHIBIT 10.2(e)
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT is entered into as of July 1,
2001, by Market Axess Inc. (the "Company") and Xxxxxxx XxXxx (the "Purchaser").
Capitalized terms shall have the meanings ascribed thereto in Article 10 hereof.
ARTICLE 1
ACQUISITION OF SHARES
1.1 Sale and Purchase. On the terms and conditions set forth in this
Agreement, the Company agrees to sell to the Purchaser, and the Purchaser agrees
to purchase from the Company, Four Hundred Fifty Eight Thousand Five Hundred Ten
(458,510) Shares. The sale and purchase shall occur at the offices of the
Company on the date set forth above or at such other place and time as the
parties may agree. The Purchased Shares shall be subject to the terms of the
promissory notes (the "Promissory Notes") and stock pledge agreement (the
"Pledge Agreement") entered into simultaneously herewith between the parties
hereto.
1.2 Consideration. The Purchaser agrees to pay $1.20 for each Purchased
Share which is equal to the Fair Market Value of each Purchased Share. Payment
shall be made on the transfer date in cash or cash equivalents payable to the
order of the Company in an amount equal to the Purchase Price for all of the
Purchased Shares.
ARTICLE 2
RIGHT OF REPURCHASE
2.1 Scope of Repurchase Right. The Purchased Shares all shall initially
be Unvested Shares and all Purchased Shares shall be subject to a right (but not
an obligation) of repurchase by the Company on the terms and conditions, and to
the extent, set forth in this Article 2.
2.2 Condition Precedent to Repurchase Right. The Right of Repurchase
shall be exercisable only during the 90-day period next following the date when
the Purchaser's Service terminates for any reason, with or without Cause.
2.3 Vesting of Unvested Shares.
a. (i) 24,130 of the Purchased Shares (subject to adjustment
pursuant to Section 2.6 hereof) are Vested Shares as of the date hereof.
(ii) An additional 24,130 of the Purchased Shares (subject to
adjustment pursuant to Section 2.6 hereof) shall become Vested Shares on the 1st
day of each month after July 2001 (August 1, 2001 is the next vesting date) and
before January 2003 if the Purchaser has been continuously employed by the
Company until each such date.
(iii) The remaining 24,170 of the Purchased Shares (subject to
adjustment pursuant to Section 2.6 hereof) shall become Vested Shares on January
1, 2003 if the Purchaser has been continuously employed by the Company until
such date.
b. In the event that Purchaser's Service is terminated by the
Company without Cause, the lesser of (i) 144,780 of the Purchased Shares
(subject to adjustment pursuant to Section 2.6 hereof) or (ii) all remaining
Unvested Shares shall immediately become Vested Shares.
c. Upon the death or permanent disability of the Purchaser, all
Unvested Shares shall immediately become Vested Shares.
d. In the event of a Change in Control in which the holders of the
Company's outstanding capital stock receive only cash in exchange for such
capital stock, all of the Purchased Shares that are Unvested Shares shall become
Vested Shares immediately prior to such Change in Control. In the event of any
other Change in Control, all Unvested Shares shall immediately become Vested
Shares upon any termination of the Purchaser by the Company (or any successor
thereto) without Cause occurring after such Change in Control.
2.4 Exercise of Repurchase Right. In the event that the Purchaser's
Service is terminated by the Company without Cause, the Company shall have the
right (but not the obligation) to purchase all Unvested Shares held by the
Purchaser or any Transferee. In the event that the Purchaser's Service is
terminated by the Company for Cause or the Purchaser voluntarily resigns from
Service, the Company shall have the right (but not the obligation) to purchase
all Purchased Shares held by the Purchaser or any Transferee. The Right of
Repurchase shall be exercisable only by written notice delivered to the
Purchaser prior to the expiration of the 90-day period specified in Section 2.2
hereof. The notice shall set forth the date on which the repurchase is to be
effected. Such date shall not be more than 30 days after the date of such
notice. The certificate(s) representing the Purchased Shares to be repurchased
shall, prior to the close of business on the date specified for the repurchase,
be delivered to the Company properly endorsed for transfer. The Company shall,
concurrently with the receipt of such certificate(s), pay to the Purchaser the
purchase price determined according to Section 2.5 hereof. The Right of
Repurchase shall terminate with respect to any Purchased Shares for which it has
not been timely exercised pursuant to this Section 2.4.
2.5 Repurchase Price. If the Company exercises its Right of Repurchase
under this Article 2, it shall pay the Purchaser an amount in cash or cash
equivalents equal to (i) the Purchase Price for each of the Unvested Shares
being repurchased (subject to adjustment pursuant to Section 2.6 hereof) and
(ii) the Fair Market Value for each of the Vested Shares being repurchased.
2.6 Additional Shares or Substituted Securities. In the event of the
declaration of a stock dividend, a spin-off, a stock split, an adjustment in
conversion ratio, a recapitalization or a similar transaction affecting the
Company's outstanding securities without receipt of consideration, any new,
substituted or additional securities that by reason of such transaction are
distributed with respect to any Purchased Shares or into which such Purchased
Shares thereby become convertible shall be subject to the Right of Repurchase on
the same terms and conditions as are applicable to the Purchased Shares to which
they relate. Appropriate adjustments to reflect the distribution of such
securities shall be made to the number and/or class of the
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Purchased Shares. After each such transaction, appropriate adjustments shall
also be made to the price per share to be paid upon the exercise of the Right of
Repurchase in order to reflect any change in the Company's outstanding
securities effected without receipt of consideration therefor; provided,
however, that the aggregate purchase price payable for the Unvested Shares
outstanding on the date hereof, or any proportion thereof, shall remain the
same.
2.7 Termination of Rights as Stockholder. If the Company makes available,
at the time and place and in the amount and form provided in this Agreement, the
consideration for the Purchased Shares to be repurchased in accordance with the
terms and conditions set forth in this Article 2, then after such time the
person from whom such Purchased Shares are to be repurchased shall no longer
have any rights as a holder of the Purchased Shares subject to such repurchase
(other than the right to receive payment of such consideration in accordance
with this Agreement). Such repurchased Purchased Shares shall be deemed to have
been repurchased in accordance with the applicable provisions hereof, whether or
not the certificate(s) therefor have been delivered as required by this
Agreement. A repurchase pursuant to this Agreement shall not affect the rights
of the Purchaser as to Purchased Shares that are not repurchased or subject to
repurchase.
2.8 Escrow. Upon issuance, the certificates for Purchased Shares shall be
deposited in escrow with the Company to be held in accordance with the
provisions of this Agreement. Any new, substituted or additional securities
described in Section 2.6 hereof shall immediately be delivered to the Company to
be held in escrow. All cash dividends on Purchased Shares (or other securities
at the time held in escrow) shall be paid directly to the Purchaser and shall
not be held in escrow. Purchased Shares, together with any other securities held
in escrow hereunder, shall be (i) surrendered to the Company for repurchase and
cancellation upon the Company's exercise of its Right of Repurchase or (ii)
released to the Purchaser upon the Purchaser's request to the extent the
Purchased Shares are no longer restricted shares (but not more frequently than
once every month). In any event, all Purchased Shares that have vested (and any
other vested assets and securities attributable thereto) shall be released
within 30 days after the Purchaser's cessation of Service. Nothing provided in
this Section 2.8 shall supercede any obligations of the Purchaser pursuant to
the Pledge Agreement.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
3.1 Purchaser Representations. In connection with the issuance and
acquisition of Purchased Shares under this Agreement, the Purchaser hereby
represents and warrants to the Company as follows:
a. The Purchaser is acquiring and will hold the Purchased Shares
for investment for his account only and not with a view to, or for resale in
connection with, any "distribution" thereof within the meaning of the Securities
Act.
b. The Purchaser understands that the Purchased Shares have not
been registered under the Securities Act by reason of a specific exemption
therefrom and that the Purchased Shares must be held indefinitely, unless they
are subsequently registered under the Securities Act or an exemption from such
registration is available. The Purchaser further acknowledges and understands
that the Company is under no obligation hereunder to register the Purchased
Shares.
c. The Purchaser is aware of the adoption of Rule 144 by the
Securities and Exchange Commission under the Securities Act, which permits
limited public resales of securities acquired in a non-public offering, subject
to the satisfaction of certain conditions. The Purchaser acknowledges and
understands that the conditions for resale set forth in Rule 144 have not been
satisfied and that the Company has no plans to satisfy these conditions in the
foreseeable future.
d. The Purchaser will not sell, transfer or otherwise dispose of
the Purchased Shares in violation of the Securities Act, or the rules and
regulations promulgated thereunder. The Purchaser agrees that he will not
dispose of the Purchased Shares unless and until he has complied with all
requirements of this Agreement applicable to the disposition of Purchased
Shares.
e. The Purchaser has been furnished with, and has had access to,
such information as he considers necessary or appropriate for deciding whether
to invest in the Purchased Shares, and the Purchaser has had an opportunity to
ask questions and receive answers from the Company regarding the terms and
conditions of the issuance of the Purchased Shares.
f. The Purchaser is aware that his investment in the Company is a
speculative investment that has limited liquidity and is subject to the risk of
complete loss. The Purchaser is able, without impairing his financial condition,
to hold the Purchased Shares for an indefinite period and to suffer a complete
loss of his investment in the Purchased Shares.
ARTICLE 4
TRANSFER RESTRICTIONS
4.1 Transfer Restrictions. The Purchaser shall not transfer, assign,
pledge, grant a proxy with respect to, or encumber or otherwise dispose of any
Purchased Shares, except as provided in the Pledge Agreement and in the
following sentence. Subject to any other restrictions on transfer
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contained in any other agreement or instrument that is applicable to Purchased
Shares held by the Purchaser (including, without limitation, the Promissory
Notes or Pledge Agreement), the Purchaser may transfer (a) Unvested Shares (i)
by beneficiary designation, will or intestate succession or (ii) to the
Purchaser's spouse, siblings, children or grandchildren or to a trust
established by the Purchaser for the benefit of the Purchaser or the Purchaser's
spouse, siblings, children or grandchildren, and (b) Vested Shares to any
Transferee, provided in any case that the Transferee agrees in writing on a form
prescribed by the Company to be bound by all provisions of this Agreement. If
the Purchaser transfers any Purchased Shares, then this Agreement shall apply to
the Transferee to the same extent as to the Purchaser. Notwithstanding anything
to the contrary contained in this Section 4.1, after the Company has completed a
public offering of its common stock, any Vested Shares shall no longer be
subject to the Right of Repurchase or any other terms or provisions of this
Agreement.
4.2 Rights of the Company. The Company shall not be required to (i)
transfer on its books any Purchased Shares that have been sold or transferred in
contravention of this Agreement or (ii) treat as the owner of Purchased Shares,
or otherwise to accord voting, dividend or liquidation rights to, any transferee
to whom Purchased Shares have been transferred in contravention of this
Agreement.
ARTICLE 5
SUCCESSORS AND ASSIGNS
Except as otherwise expressly provided herein to the contrary, the
provisions of this Agreement shall inure to the benefit of, and be binding upon,
the Company and its successors and assigns and be binding upon the Purchaser and
the Purchaser's legal representatives, heirs, legatees, distributees, assigns
and transferees by operation of law, whether or not any such person has become a
party to this Agreement or has agreed in writing to join herein and to be bound
by the terms, conditions and restrictions hereof.
ARTICLE 6
TAX ELECTION
The acquisition of the Purchased Shares may result in adverse tax
consequences that may be avoided or mitigated by filing an election under Code
Section 83(b). Such election may be filed only within 30 days after the date of
purchase. The form for making the Code Section 83(b) election is attached to
this Agreement as an Exhibit. THE PURCHASER SHOULD CONSULT WITH HIS TAX ADVISOR
TO DETERMINE THE TAX CONSEQUENCES OF ACQUIRING THE PURCHASED SHARES AND THE
ADVANTAGES AND DISADVANTAGES OF FILING THE CODE SECTION 83(B) ELECTION. THE
PURCHASER ACKNOWLEDGES THAT IT IS HIS SOLE RESPONSIBILITY, AND NOT THE
COMPANY'S, TO FILE A TIMELY ELECTION UNDER CODE SECTION 83(B), EVEN IF THE
PURCHASER REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON HIS
BEHALF.
ARTICLE 7
LEGENDS
Legends. All certificates evidencing Purchased Shares shall bear the
following, or substantially similar, legends:
"THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN
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COMPLIANCE WITH THE TERMS OF A WRITTEN AGREEMENT BETWEEN THE COMPANY AND
THE REGISTERED HOLDER OF THE SHARES (OR THE PREDECESSOR IN INTEREST TO THE
SHARES). SUCH AGREEMENT GRANTS TO THE COMPANY CERTAIN REPURCHASE RIGHTS
UPON TERMINATION OF SERVICE WITH THE COMPANY. THE SECRETARY OF THE COMPANY
WILL UPON WRITTEN REQUEST FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER
HEREOF WITHOUT CHARGE."
All certificates evidencing Purchased Shares shall bear the following, or
substantially similar, legends:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES
LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SUCH ACT OR SUCH LAWS AND THE RULES AND REGULATIONS THEREUNDER."
ARTICLE 8
NOTICE
Any notice required by the terms of this Agreement shall be given in
writing and shall be deemed effective upon personal delivery or delivery by
facsimile, receipt confirmed, or three (3) days after deposit with the United
States Postal Service, by registered or certified mail, with postage and fees
prepaid. Notice shall be addressed to the Company at its principal executive
office and to the Purchaser at the address that he most recently provided to the
Company.
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ARTICLE 9
ENTIRE AGREEMENT; AMENDMENT;
WAIVER; SEVERABILITY; COUNTERPARTS
This Agreement constitutes the entire contract between the parties hereto
with regard to the subject matter hereof. It supersedes any other agreements,
representations or understandings (whether oral or written and whether express
or implied) relating to the subject matter hereof, provided that this Agreement
shall not limit any other restrictions on transfer that may exist from time to
time on Purchased Shares. This Agreement may be amended or modified only by a
written instrument signed by the Purchaser and the Company. No provision of this
Agreement may be extended or waived, except by a written instrument signed by
the party against whom enforcement of such extension or waiver is sought. Each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
is held to be prohibited or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement. This Agreement may be executed in
two (2) counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which together shall be deemed to be one and
the same agreement.
ARTICLE 10
CHOICE OF LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, as such laws are applied to contracts entered
into and to be performed entirely within such State.
ARTICLE 11
EMPLOYMENT AT WILL
This Agreement does not constitute an agreement by the Company to continue
to employ the Purchaser during the entire, or any portion of, the term of this
Agreement. The parties acknowledge that the Purchaser's employment relationship
with the Company is at the will of each party, unless otherwise agreed to in
writing, and that nothing in this Agreement will affect in any manner whatsoever
the right or power of the Purchaser or the Company to terminate the Purchaser's
Service.
ARTICLE 12
DEFINITIONS
12.1 "Agreement" shall mean this Restricted Stock Purchase Agreement.
12.2 "Board of Directors" shall mean the Board of Directors of the
Company, as constituted from time to time.
12.3 "Cause" shall mean shall mean any of the following: (i) the wilful
misconduct or gross negligence of the Purchaser in the performance of his duties
to the Company, (ii) conviction of the Purchaser of, or a plea of guilty or any
other plea other than "not guilty" by the Purchaser to, (x) any felony or (y)
any crime relating to the Company or any affiliate of the Company or (iii) a
material breach by the Purchaser of this Agreement or any other agreement with
the Company or any affiliate of the Company if such breach is not cured within
10 days written notice thereof.
12.4 "Change in Control" shall mean:
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(a) The consummation of a merger or consolidation of the
Company with or into another entity or any other corporate reorganization, if
more than 50% of the combined voting power of the continuing or surviving
entity's securities outstanding immediately after such merger, consolidation or
other reorganization is owned by persons who were not stockholders of the
Company immediately prior to such merger, consolidation or other reorganization;
or
(b) The sale, transfer or other disposition of all or
substantially all of the Company's assets.
A transaction shall not constitute a Change in Control if its sole purpose is to
change the state of the Company's incorporation or to create a holding company
that will be owned in substantially the same proportions by the persons who held
the Company's securities immediately before such transaction.
12.5 "Code" shall mean the Internal Revenue Code of 1986, as amended.
12.6 "Common Share Equivalents" shall mean any Stock or any options
rights, or other securities directly or indirectly convertible into or
exchangeable for Stock.
12.7 "Company" shall mean Market Axess Inc., a Delaware corporation.
12.8 "Employee" shall mean any individual who is a common-law or
contractual employee of the Company or a Subsidiary.
12.9 "Fair Market Value" shall mean the fair market value of a Share, as
determined by the Board of Directors in good faith. Such determination shall be
conclusive and binding on all persons.
12.10 "Purchase Price" shall mean the amount for which one Share is
purchased by the Purchaser pursuant to this Agreement, as specified in
Section 1.2.
12.11 "Purchased Shares" shall mean the Shares purchased by the Purchaser
pursuant to this Agreement and any shares or securities issued in respect of
such Shares, or issued upon conversion of, or in exchange for, such Shares.
12.12 "Right of Repurchase" shall mean the Company's right of repurchase
described in Article 2.
12.13 "Securities Act" shall mean the Securities Act of 1933, as amended.
12.14 "Service" shall mean service as an Employee.
12.15 "Share" shall mean one share of Stock.
12.16 "Stock" shall mean the Common Stock, par value $0.001 per share, of
the Company.
12.17 "Subsidiary" shall mean any entity, a majority of the outstanding
voting securities or interests of which are owned, directly or indirectly, by
the Company or any Subsidiary.
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12.18 "Transferee" shall mean any person to whom the Purchaser has
directly or indirectly transferred any Purchased Shares or any other securities
of the Company.
12.19 "Unvested Share" shall mean a Purchased Share that is subject to the
Right of Repurchase at the Purchase Price as provided in Article 2.
12.20 "Vested Share" shall mean a Purchased Share that is subject to the
Right of Repurchase at Fair Market Value as provided in Article 2.
[END OF TEXT. SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
COMPANY:
MARKET AXESS INC.
By: /s/Xxxxxxx XxXxx
__________________________________
Name: Xxxxxxx XxXxx
Title: Chief Executive Officer
PURCHASER:
/s/Xxxxxxx XxXxx
_____________________________________
Xxxxxxx XxXxx
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