WAIVER AND GENERAL RELEASE
Exhibit 10.1
September 13, 2006
Xxxxxx X. Xxxxx
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Dear Xxx:
This Waiver and General Release (this “Agreement”) serves to memorialize the terms of
the termination of your employment with MARKETAXESS CORPORATION (“MarketAxess”). The terms
of this Agreement, including your right to the payments and benefits referred to in Paragraph 2
below, are contingent upon and subject to your executing and not revoking this Agreement. As used
in this Agreement, the terms “you” and “your” refer to Xxxxxx X. Xxxxx.
1. Termination of Employment.
You hereby acknowledge and agree that your employment with MarketAxess was terminated
effective September 12, 2006 (the “Termination Date”).
2. Severance Payments and Benefits.
Subject to your full compliance with all of your obligations under this Agreement, including
but not limited to the covenants contained in Paragraphs 3 and 4, in addition to payment of all
unpaid compensation and benefits earned by you through the Termination Date:
(a) You will continue to be paid your current semi-monthly pay, Eight Thousand, Three Hundred
Thirty Three dollars and Thirty Three cents ($8,333.33) per pay period (less standard applicable
tax withholdings and other deductions required by law), for a period of four (4) weeks from the
Termination Date (the “Severance Pay”);
(b) You will be paid a bonus of Four Hundred Twenty-Five Thousand Dollars ($425,000.00) (less
standard applicable tax withholdings and other deductions required by law), which shall be paid to
you at the time bonuses are paid to MarketAxess’ senior executive officers, but not later than
January 31, 2007 (the “Severance Bonus”);
(c) Subject to you not engaging in Competition (as defined in the Proprietary Information and
Non-Competition Agreement between you and MarketAxess dated February 8, 2005 (the “Non-Competition
Agreement”)) on or prior to September 14, 2007, you will be paid an additional lump sum severance
payment on September 14, 2007 in the amount of Three Hundred Eighty-Nine Thousand Five Hundred
dollars ($389,500.00) (less standard applicable tax withholdings and other deductions required by
law) (the “Lump Sum Severance Payment”);
(d) You will be eligible to continue your coverage under MarketAxess’ group medical and dental
insurance plans, if currently elected, as in effect on the Termination Date for a period of four
weeks from the Termination Date (the “Coverage Continuation” and, together with the
Severance Pay, the Lump Sum Severance Payment and the Severance Bonus, the “Severance
Benefits”); provided however, that the Coverage Continuation will terminate when you become
covered by health insurance offered by another employer. After the expiration of the Coverage
Continuation, you will be entitled to continue your health coverage under MarketAxess’ group
medical and dental insurance plans, if currently elected, at your sole expense in accordance with
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, for 18 months.
3. Employee’s General Release and Waiver.
(a) YOU HEREBY RELEASE MARKETAXESS AND ALL OF ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, SENIOR MANAGERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, SUCCESSORS AND ASSIGNS
(COLLECTIVELY REFERRED TO HEREIN AS THE “RELEASEES”), JOINTLY AND SEVERALLY, FROM ANY AND
ALL CLAIMS, KNOWN OR UNKNOWN, WHICH YOU OR YOUR HEIRS, SUCCESSORS OR ASSIGNS HAVE OR MAY HAVE
AGAINST ANY RELEASEE ARISING ON OR PRIOR TO THE DATE THAT YOU EXECUTE THIS AGREEMENT AND ANY AND
ALL LIABILITY WHICH ANY SUCH RELEASEE MAY HAVE TO YOU, WHETHER DENOMINATED CLAIMS, DEMANDS, CAUSES
OF ACTION, OBLIGATIONS, DAMAGES OR LIABILITIES ARISING FROM ANY AND ALL BASES, HOWEVER DENOMINATED,
INCLUDING BUT NOT LIMITED TO CLAIMS FOR WRONGFUL DISCHARGE, ACCRUED BONUS OR INCENTIVE PAY, THE AGE
DISCRIMINATION IN EMPLOYMENT ACT, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAMILY AND
MEDICAL LEAVE ACT OF 1993, TITLE VII OF THE UNITED STATES CIVIL RIGHTS ACT OF 1964, 42 U.S.C. §
1981, WORKERS ADJUSTMENT AND RETRAINING NOTIFICATION ACT, THE NEW YORK HUMAN RIGHTS LAW, INCLUDING
NEW YORK EXECUTIVE LAW § 296, § 8-107 OF THE ADMINISTRATIVE CODE AND CHARTER OF NEW YORK CITY OR
ANY OTHER FEDERAL, STATE OR LOCAL LAW. THIS RELEASE IS FOR ANY AND ALL CLAIMS, INCLUDING BUT NOT
LIMITED TO CLAIMS ARISING FROM AND DURING YOUR EMPLOYMENT RELATIONSHIP WITH MARKETAXESS AND ITS
AFFILIATES OR AS A RESULT OF THE TERMINATION OF SUCH RELATIONSHIP. NOTWITHSTANDING ANY PROVISION
CONTAINED IN THIS AGREEMENT, THIS RELEASE IS NOT INTENDED TO INTERFERE WITH YOUR RIGHT TO FILE A
CHARGE WITH THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN CONNECTION WITH ANY CLAIM YOU BELIEVE
YOU MAY HAVE AGAINST ANY OF THE RELEASEES. HOWEVER, BY EXECUTING THIS AGREEMENT, YOU HEREBY WAIVE
THE RIGHT TO RECOVER IN ANY PROCEEDING YOU MAY BRING BEFORE THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION OR ANY STATE HUMAN RIGHTS COMMISSION OR IN ANY PROCEEDING BROUGHT BY THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION OR ANY STATE HUMAN RIGHTS COMMISSION ON YOUR BEHALF. THIS
RELEASE IS FOR ANY RELIEF, NO MATTER HOW DENOMINATED, INCLUDING, BUT NOT LIMITED TO, INJUNCTIVE
RELIEF, WAGES, BACK PAY, FRONT PAY, COMPENSATORY DAMAGES, OR PUNITIVE DAMAGES. THIS RELEASE SHALL
NOT APPLY TO ANY OBLIGATION OF MARKETAXESS PURSUANT TO THIS AGREEMENT.
YOU ACKNOWLEDGE THAT THE SEVERANCE BENEFITS THAT YOU WILL RECEIVE UNDER PARAGRAPH 2 OF THIS
AGREEMENT REPRESENT GOOD AND VALUABLE CONSIDERATION FOR YOUR ENTERING INTO THIS AGREEMENT TO WHICH
YOU OTHERWISE DID NOT HAVE A RIGHT.
(b) In the event there is presently pending any action, suit, claim, charge or proceeding with
any federal, state or local court or agency relating to any claim within the scope of Paragraph
3(a), or if such a proceeding is commenced in the future, you shall, to the extent permitted by
law, promptly withdraw it, with prejudice, to the extent that you have the power to do so.
(c) Nothing in this Agreement shall affect your vested rights, if any, to the Stock Options
awarded to you under the MarketAxess Stock Option Plan(s). Your rights to benefits under any such
plan(s) will be determined in accordance with the terms of such plan(s).
(d) Nothing in this Agreement shall affect your vested rights, if any, to retirement benefits
under any 401(k) retirement plan(s) offered by MarketAxess. Your rights to benefits under any such
401(k) Plan(s) and any other employee benefits plans will be determined in accordance with the
terms of such plans.
(e) One
(1) accrued, unused vacation day from 2006 will be paid to you
in the September 15,
2006 payroll.
4. Other Agreements.
(a) Compliance with Existing Agreements. You agree to comply with each of the
Non-Competition Agreement and the MarketAxess Confidentiality Statement executed by you dated
February 8, 2005, which are both expressly incorporated herein.
(b) Return
of Documents. You agree that on or before September 22, 2006, you will
return to MarketAxess all property and all information concerning the business of MarketAxess in
your possession, custody or control that has been furnished to you or is held by you, at your
office, residence or elsewhere, and shall not retain any copies, duplicates, reproductions or
excepts thereof. Arrangements will be made by MarketAxess to ship MarketAxess property from your
home to MarketAxess at no cost to you.
(c) Non-Disparagement. You shall not make any public statements, encourage others to
make statements or release information intended to disparage or defame MarketAxess, any of its
affiliates or any of their respective directors or officers. Notwithstanding the foregoing,
nothing in this Paragraph 4(c) shall prohibit you from making truthful statements when required by
order of a court or other body having jurisdiction or as required by law.
(d) Future Cooperation. You agree to reasonably cooperate with MarketAxess and its
counsel (including attending meetings) with respect to any claim, arbitral hearing, lawsuit, action
or governmental or other investigation relating to the conduct of the business of MarketAxess or
its affiliates and agree to provide full and complete disclosure to MarketAxess and its counsel in
response to any inquiry in connection with any such matters, without further compensation (except
as to reasonable out-of-pocket expenses actually incurred by you in complying with this provision)
and agree to cooperate with any other reasonable inquiry of MarketAxess.
(e) Forfeitures in Event of Breach. You acknowledge and agree that, notwithstanding
any other provision of this Agreement, in the event this Agreement does not become effective as
provided in Paragraph 9, below, or you materially breach any of your obligations under Paragraphs 3
or 4 of this Agreement, you shall forfeit your right to receive the Severance Benefits that have
not been paid or provided to you as of the date of such forfeiture and you shall be liable to
MarketAxess for liquidated damages in the amount of the consideration already paid pursuant to
Paragraph 2, above. Nothing in this subparagraph (d) shall apply to, and will not prohibit any
challenge of, this Agreement pursuant to the Older Worker Benefit Protection Act.
5. Remedies.
You acknowledge and agree that the covenants, obligations and agreements contained in
Paragraph 4 herein relate to special, unique and extraordinary matters and that a violation of any
of the terms of such covenants, obligations or agreements will cause MarketAxess irreparable injury
for which adequate remedies are not available at law. Therefore, you agree that MarketAxess shall
be entitled to an injunction, restraining order or such other equitable relief (without the
requirement to post bond or any other security) as a court of competent jurisdiction may deem
necessary or appropriate to restrain you from committing any violation of such covenants,
obligations or agreements. These injunctive remedies are cumulative and in addition to any other
rights and remedies MarketAxess may have. MarketAxess and you hereby irrevocably submit to the
exclusive jurisdiction of the courts of New York, and the Federal courts of the United States of
America, in each case located in New York City, in respect of the injunctive remedies set forth in
this Paragraph 5 and the interpretation and enforcement of this Paragraph 5 insofar as such
interpretation and enforcement relate to any request or application for injunctive relief in
accordance with the provisions of this Paragraph 5, and the parties hereto hereby irrevocably agree
that (a) the sole and exclusive appropriate venue for any suit or proceeding relating solely to
such injunctive relief shall be in such a court, (b) all claims with respect to any request or
application for such injunctive relief shall be heard and determined exclusively in such a court,
(c) any such court shall have exclusive jurisdiction over the person of such parties and over the
subject matter of any dispute relating to any request or application for such injunctive relief,
and (d) each hereby waives any and all objections and
defenses based on forum, venue or personal or subject matter jurisdiction as they may relate
to an application for such injunctive relief in a suit or proceeding brought before such a court in
accordance with the provisions of this Paragraph 5, provided that MarketAxess may seek to enforce
any such injunctive relief in any court of competent jurisdiction.
6. No Admission.
This Agreement does not constitute an admission of liability or wrongdoing of any kind by
MarketAxess or its affiliates.
7. Heirs and Assigns.
The terms of this Agreement shall be binding on the parties hereto and their respective
successors and assigns.
8. General Provisions.
(a) Integration. This Agreement constitutes the entire understanding of MarketAxess
and you with respect to the subject matter hereof and supersedes all prior understandings, written
or oral between you and MarketAxess and those agreements that are expressly incorporated herein.
The terms of this Agreement may be changed, modified or discharged only by an instrument in writing
signed by the parties hereto. A failure of MarketAxess or you to insist on strict compliance with
any provision of this Agreement shall not be deemed a waiver of such provision or any other
provision hereof. In the event that any provision of this Agreement is determined to be so broad
as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.
(b) Choice of Law. This Agreement shall be construed, enforced and interpreted in
accordance with and governed by the laws of the state of New York excluding rules of law that would
lead to the application of the laws of any other jurisdiction.
(c) Construction of Agreement. The rule of construction to the effect that
ambiguities are resolved against the drafting party shall not be employed in the interpretation of
this Agreement. Rather, the terms of this Agreement shall be construed fairly as to both parties
hereto and not in favor or against either party.
(d) Counterparts. This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which counterpart, when so executed and
delivered, shall be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
9. Knowing and Voluntary Waiver.
You acknowledge that you received a copy of this Agreement on September 12, 2006 and that you
understand all of its provisions. You acknowledge that you have been advised to consult with an
attorney prior to executing this Agreement, and you have been given the opportunity to consider
this Agreement for 21 days. You further acknowledge that by your free and voluntary act of signing
below, you agree to all terms of this Agreement and intend to be legally bound thereby.
If you wish to enter into this Agreement, you must sign it and return it to MarketAxess, 000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxx Boise, no later than
October 3, 2006.
This Agreement shall not become effective until the eighth (8th) day following the
date on which you sign this Agreement (“Effective Date”). You may at any time prior to the
Effective Date revoke this Agreement delivering a notice in writing of such revocation to
MarketAxess 000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxx Boise. In the event
you revoke this Agreement prior to
the eight (8th) day after the execution thereof, this Agreement, and the promises
contained herein shall become null and void.
| MARKETAXESS CORPORATION |
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| By: | /s/ Xxxxxxx X. XxXxx | |||
| Xxxxxxx X. XxXxx | ||||
| Chief Executive Officer | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx | ||||
Acknowledgment
On the 13th day of September, 2006, before me personally came Xxxxxx X. Xxxxx, to
me known and known to be to be the person described herein, and who executed, the foregoing Waiver
and General Release, and duly acknowledged to me that he executed the same.
/s/ Xxxxx X. Xxxxxxx
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Notary Public |
Date: September 13, 2006
Commission Expires: March 24, 2007
