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EXHIBIT 10.14
OPTIMARK TECHNOLOGIES, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of December 1, 1998, between OptiMark
Technologies, Inc., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxx (the "Purchaser").
WHEREAS in order to give the Purchaser an opportunity to acquire an
equity interest in the Company as an incentive for the Purchaser to participate
in the affairs of the Company, the Company is willing to sell to the Purchaser
and the Purchaser desires to purchase shares of Common Stock according to the
terms and conditions contained in the Employment Agreement between the
Purchaser and the Company effective as of November 1, 1998 (the "Employment
Agreement") and the Amended and Restated Stockholders Agreement dated April 23,
1998, as amended, among the Company and the signatories to such Agreement (the
"Stockholders Agreement") and herein.
THEREFORE, the parties agree as follows:
1. Sale of Stock. The Company hereby agrees to sell to the
Purchaser and the Purchaser hereby agrees to purchase an aggregate of 100,000
shares of the Company's Common Stock, par value $.01 per share (the "Shares"),
at the price of $10.00 per share for an aggregate purchase price of $1,000,000.
2. Payment of Purchase Price.
(a) The purchase price for the Shares may be paid by
delivery to the Company at the time of execution of this Agreement of cash,
check, duly executed full recourse promissory note in the form attached hereto
as Exhibit A (the "Note"), or any combination thereof.
(b) With respect to the Note, the parties agree to the
following:
(i) The Note shall become payable in full upon
the earlier of (i) November 1, 1999 or (ii) fifteen (15) days following
termination of Purchaser's employment with the Company for any reason.
(ii) The Purchaser shall deliver to the Company
(the "Escrow Holder") all certificates representing the Shares and two executed
blank stock assignments, in the form attached hereto as Exhibit B, for use in
transferring all or a portion of said Shares to the Company, as required under
this Section 2(b) or under any other provision of this Agreement including
Section 3.
(iii) Upon full payment by the Purchaser of all
amounts due on Purchaser's Note, the Escrow Holder shall deliver to the
Purchaser the certificate or certificates representing the Shares in the Escrow
Holder's possession belonging to the Purchaser, the blank stock assignment and
the executed original of the Note marked "canceled" by the Company, and the
Escrow Holder shall be
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discharged of all further obligations hereunder; provided, however, that the
Escrow Holder shall nevertheless retain said certificate or certificates and
stock assignment as escrow agent if so required pursuant to other restrictions
imposed pursuant to this Agreement.
3. Repurchase Requirement. If, prior to November 1, 1999 (i) the
Company terminates the Purchaser's employment for "Cause," or (ii) the
Purchaser terminates his employment voluntarily other than for "Good Reason"
(as those terms are defined in the Employment Agreement), the Company shall,
within 90 days from such termination date, repurchase all (but not less than
all) of the Shares that shall constitute the Unreleased Shares (as defined in
Section 4) at such time, at the original purchase price of $10.00 per share
(the "Repurchase Price"). Such repurchase shall be effected by the Company by
written notice to the Purchaser (with a copy to the Escrow Holder) and, at the
Company's option, (i) by delivery to the Purchaser with such notice of a check
in the amount of the purchase price for the Shares being repurchased, or (ii)
by cancellation by the Company of an amount of the Purchaser's indebtedness to
the Company equal to the purchase price for the Shares being repurchased, or
(iii) by a combination of (i) and (ii) so that the combined payment and
cancellation of indebtedness equals the aggregate Repurchase Price. Upon
delivery of such notice and the payment of the purchase price in any of the
ways described above, the Company shall become the legal and beneficial owner
of the Shares being repurchased and all rights and interests therein or
relating thereto, and the Company shall have the right to retain and transfer
to its own name the number of Shares being repurchased by the Company.
4. Release of Shares From Repurchase Requirement.
(a) Shares shall be released from the Company's
repurchase requirement on November 1, 1999, provided the Purchaser is employed
by the Company on such date, or, if earlier, upon termination of the
Purchaser's employment with the Company (i) by the Company for any reason other
than "Cause," (ii) by the Purchaser for "Good Reason," or (iii) as a result of
Purchaser's death or "Disability" (as such terms are defined in the Employment
Agreement).
(b) Any of the Shares that have not yet been released
from the Company's repurchase requirement are referred to herein as "Unreleased
Shares."
(c) The Shares that (i) have been released from the
Company's repurchase requirement and (ii) have been paid for in full, shall be
delivered to the Purchaser at the Purchaser's request.
5. Restriction on Transfer. None of the Shares or any beneficial
interest therein shall be transferred, encumbered or otherwise disposed of in
any manner, except for the deposit of the Shares with the Company pursuant to
Section 2 hereof or the release of the Shares to the Company pursuant to
Section 3 hereof, until the release of such Shares from the Company's
repurchase requirement in accordance with the provisions of this Agreement.
6. Stock Adjustments. If after the date of issuance of the
Shares to the Purchaser under this Agreement the Company shall issue any
additional shares of its Common Stock to holders of such Common Stock, by way
of dividend or stock split or other distribution, or if any shares of capital
stock
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or other securities or other consideration of the Company or of any other
corporation are issued in exchange for, or with respect to, the Shares issued
hereunder pursuant to any recapitalization, merger, sale of assets, liquidation
or other reorganization (collectively, "Reorganization"), regardless of whether
the Company shall survive such Reorganization, all of such Shares , capital
stock and other securities or other consideration shall be treated as if they
were Shares acquired by the Purchaser under this Agreement and shall be ratably
subject to all provisions of this Agreement (including, without limitation, the
Company's Repurchase Requirement) as if they were Shares issued to the
Purchaser hereunder.
7. Investment Representations. In connection with the purchase
of the Shares, the Purchaser represents to the Company the following:
(a) The Purchaser is aware of the Company's business
affairs and financial condition and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision to acquire the
securities. The Purchaser is purchasing these securities for investment for
the Purchaser's own account only and not with a view to, or for resale in
connection with, any "distribution" thereof within the meaning of the
Securities Act of 1933, as amended (the "Securities Act").
(b) Purchaser acknowledges and understands that the
Securities constitute "restricted securities" under the Securities Act and have
not been registered under the Securities Act in reliance upon a specific
exemption therefrom, which exemption depends upon, among other things, the bona
fide nature of Purchaser's investment intent as expressed herein. Purchaser
further understands that the Securities must be held indefinitely unless they
are subsequently registered under the Securities Act or an exemption from such
registration is available. Purchaser further acknowledges and understands that
the Company is under no obligation to register the Securities.
8. Stock Certificate Legends.
(a) Purchaser understands and agrees that the Company
shall cause the legends set forth below or legends substantially equivalent
thereto, to be placed upon any certificate(s) evidencing ownership of the
Shares together with any other legends that may be required by the Company or
by applicable state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR THE SECURITIES
LAWS OF ANY STATE. THE SECURITIES MAY NOT BE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT AND APPLICABLE SECURITIES LAWS OR PURSUANT TO A
WRITTEN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AND A
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REPURCHASE REQUIREMENT HELD BY THE ISSUER OR ITS ASSIGNEE(S)
AS SET FORTH IN THE RESTRICTED STOCK PURCHASE AGREEMENT
BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A
COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE
ISSUER. SUCH TRANSFER RESTRICTIONS AND REPURCHASE REQUIREMENT
ARE BINDING ON TRANSFEREES OF THESE SHARES.
(b) Stop-Transfer Notices. Purchaser agrees that, in
order to ensure compliance with the restrictions referred to herein, the
Company may issue appropriate "stop transfer" instructions to its transfer
agent, if any, and that, if the Company transfers its own securities, it may
make appropriate notations to the same effect in its own records.
(c) Refusal to Transfer. The Company shall not be
required (i) to transfer on its books any Shares that have been sold or
otherwise transferred in violation of any of the provisions of this Agreement
or (ii) to treat as owner of such Shares or to accord the right to vote or pay
dividends to any purchaser or other transferee to whom such Shares shall have
been so transferred.
9. Tax Consequences. The Purchaser has reviewed with the
Purchaser's own tax advisors the federal, state, local and foreign tax
consequences of this investment and the transactions contemplated by this
Agreement. The Purchaser is relying solely on such advisors and not on any
statements or representations of the Company or any of its agents. The
Purchaser understands that the Purchaser (and not the Company) shall be
responsible for the Purchaser's own tax liability that may arise as a result of
this investment or the transactions contemplated by this Agreement. The
Purchaser understands that Section 83 of the Internal Revenue Code of 1986, as
amended (the "Code"), taxes as ordinary income the difference between the
amount paid for the Shares and the fair market value of the Shares as of the
date any restrictions on the Shares lapse. In this context, "restriction"
includes the obligation of the Company to buy back the Shares pursuant to its
repurchase requirement. The Purchaser understands that the Purchaser may elect
to be taxed at the time the Shares are purchased rather than when and as the
Company's repurchase requirement lapses by filing an election under Section
83(b) of the Code with the I.R.S. within 30 days from the date of purchase.
THE PURCHASER ACKNOWLEDGES THAT IT IS THE PURCHASER'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION
83(b), EVEN IF THE PURCHASER REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO
MAKE THIS FILING ON THE PURCHASER'S BEHALF.
10. General Provisions.
(a) This Agreement shall be governed by the laws of the
State of New York as they apply to contracts entered into and wholly to be
performed in such state. This Agreement, together with the Employment
Agreement and the Stockholders Agreement, represent the entire agreement
between
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the parties with respect to the purchase of Common Stock by the Purchaser and
may only be modified or amended in writing signed by both parties.
(b) Any dispute, claim or controversy of any kind
(including but not limited to tort, contract and statute) arising on or before
November 1, 1999 under, in connection with, or relating to this Agreement,
shall at the request of either party be resolved exclusively by arbitration in
accordance with Section 20 of the Employment Agreement.
(c) All notices, demands or other communications provided
for or permitted hereunder shall be made in writing and shall be registered or
certified first class mail, return receipt requested, courier service, outright
mail or personal delivery:
If to the Company:
------------------
OptiMark Technologies, Inc.
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
If to the Purchaser:
--------------------
Xxxxxxx X. Xxxxx
000 Xxxxxx Xxxxxx, Xxx. 0
Xxx Xxxx, XX 00000
(d) The rights and benefits of the Company under this
Agreement shall be transferable in the case of a sale of substantially all of
the assets of the Company to any one or more persons or entities, and all
covenants and agreements hereunder shall inure to the benefit of, and be
enforceable by the Company's successors and assigns. The rights and
obligations of the Purchaser under this Agreement may only be assigned with the
prior written consent of the Company.
(e) Either party's failure to enforce any provision or
provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions, nor prevent that party thereafter from
enforcing each and every other provision of this Agreement. The rights granted
both parties herein are cumulative and shall not constitute a waiver of either
party's right to assert all other legal remedies available to it under the
circumstances.
(f) The Purchaser agrees upon request to execute any
further documents or instruments necessary or desirable to carry out the
purposes or intent of this Agreement.
(g) Purchaser acknowledges and agrees that this Agreement
and the transactions contemplated hereunder do not constitute an express or
implied promise of continued engagement as an employee or consultant for any
period, or at all, and shall not interfere with Purchaser's right or the
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Company's right to terminate Purchaser's employment or consulting relationship
at any time, with or without cause.
(h) Purchaser has reviewed this Agreement in its
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Agreement and fully understands all provisions of this
Agreement.
(i) This Agreement may be executed by either of the
parties hereto in one or more counterparts, none of which need contain the
signature of more than one party hereto, and each of which shall be deemed an
original, and all of which together shall constitute a single agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first set forth above.
OPTIMARK TECHNOLOGIES, INC. PURCHASER: Xxxxxxx X. Xxxxx
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
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(Signature)
Title: Chairman
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(Type or Print Name) 000 Xxxxxx Xxxxxx
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New York
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(Address)
