EXHIBIT 10.2(d)
STOCK PLEDGE AGREEMENT
This is a Stock Pledge Agreement ("Agreement"), dated as of June 11,
2001 between Xxxxxxx XxXxx ("Borrower") and Market Axess Inc. (the "Company").
WHEREAS, the Borrower has requested a loan in the amount of $492,276
from the Company, such loan to be evidenced by two (2) secured promissory notes
in the amount of $393,820.80 and $98,455.20, each dated the date hereof
(collectively, the "Promissory Notes"), and it is a condition precedent to the
making of such loan by the Company that the Borrower shall have executed and
delivered to the Company this Agreement.
NOW, THEREFORE, in order to induce the Company to make the loan, and to
secure Borrower's obligations under the Promissory Notes, the parties named
herein agree as follows:
1. Pledge. To secure the payment in full of all indebtedness,
obligations and liabilities of the Borrower to the Company and all interest,
taxes, fees, charges, costs and expenses (including reasonable attorneys' fees
chargeable to the Borrower or incurred by the Company hereunder, under the
Promissory Notes or under any other agreement, document or instrument, the
Borrower hereby grants a first security interest to the Company in the following
collateral (the "Collateral"):
(a) The shares (the "Pledged Shares") of common stock (the "Common
Stock") that the Borrower acquires pursuant to his Restricted Stock Agreement
dated June 11, 2001 (the "Restricted Stock Agreement"), represented by
certificate no. ___ as stated on the Common Stock ownership certificates (the
"Share Certificates," whether one or more).
(b) Any securities hereafter delivered to the Borrower with respect to
the Pledged Shares in addition to or in substitution for any of the Pledged
Shares and all certificates and instruments representing or evidencing such
securities.
(c) All of Borrower's rights to, title and interest in the Pledged
Shares, all dividends or distributions arising therefrom, payable therein or
distributed in respect thereto, whether in cash, property, stock or otherwise
and whether now or hereafter declared, paid or made, together with the right to
receive and receipt therefor.
2. Perfection of Security Interest. In order to perfect the Company's
security interest in the Pledged Shares, the Borrower has delivered to the
Company the Share Certificate duly endorsed for transfer in blank (or
accompanied by one or more signed stock powers in blank), to be held by the
Company pursuant to the terms of this Agreement.
3. Representations, Warranties and Covenants. The Borrower hereby
represents, warrants and agrees with the Company as follows:
(a) The Borrower has the legal capacity to execute this Agreement and to
carry out all of the terms, conditions, covenants and provisions contained
herein.
(b) The Borrower is the only and absolute legal, record and beneficial
owner of the Pledged Shares and collectively has full power to make the pledge
contemplated hereby; the Pledged Shares are free from all security interests,
liens and encumbrances (other than the security interest granted by this
Agreement); immediately before granting the security interest created by this
Agreement, the Borrower was the record and beneficial owner and holder of the
Pledged Shares; and, except as specifically set forth in the Restricted Stock
Agreement, the Pledged Shares are freely transferable without restriction or
limitation.
(c) During the term of this Agreement, and so long as there is no
default in the observance and performance of any of the terms of this Agreement
or the Promissory Notes by the Borrower, the Borrower shall have the right to
vote the Pledged Shares on all corporate questions.
(d) If at any time during the term of this Agreement, any stock
dividend, reclassification, readjustment or other change is declared or made in
the capital structure of any of the applicable corporations, all new,
substituted and additional shares or other securities issued in respect to the
Pledged Shares shall be held by the Company under the terms of this Agreement in
the same manner as the Pledged Shares.
(e) If at any time during the term of this Agreement, subscription
warrants or any other rights or options shall be issued in connection with the
Pledged Shares or any other securities at the time held by the Company
hereunder, such warrants, rights and options shall be immediately assigned to
the Company by the Borrower, and if exercised by the Borrower, all new stock or
other securities so acquired by the Borrower shall be immediately assigned to
the Company to be held by the Company under the terms of this Agreement in the
same manner as the Pledged Shares.
(f) The Borrower has good right and lawful authority to pledge,
hypothecate, mortgage, assign, transfer, deliver, set over and confirm unto the
Company the Pledged Shares as provided in this Agreement, and the Borrower shall
warrant and defend the title thereto and the Company's security interest therein
against the claims of all persons.
(g) So long as this Agreement shall be in effect, the Borrower shall not
sell, assign or transfer, and shall not pledge, hypothecate, mortgage or
otherwise encumber any right or rights with respect to the Pledged Shares or any
rights or interest therein.
(h) Borrower agrees to execute any form required to be executed pursuant
to Regulation U, as applicable, and any other rules and regulations of the
Federal Reserve System.
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4. Default. Each of the following events or conditions constitutes an
"Event of Default":
(a) The Borrower shall fail to pay the principal of, or interest on, the
Promissory Notes, when and as such principal or interest shall be due and
payable, whether at maturity, by acceleration or otherwise;
(b) Any representation, warranty or other statement made by the Borrower
to the Company that shall prove to have been incorrect in any material respect
on or as of the date made;
(c) The Borrower shall default in the performance or observance of any
term, covenant, condition or agreement contained in any agreement between the
Borrower and the Company, and such default shall continue unremedied for a
period of ten (10) days after notice thereof shall have been given by the
Company to the Borrower;
(d) An event of default shall occur under any other indebtedness of the
Borrower for borrowed money; or
(e) The Borrower (i) shall be unable to, or shall admit in writing his
inability to, pay his debts as such debts become due; or (ii) shall make an
assignment for the benefit of creditors, or shall petition or apply to any
tribunal for the appointment of a custodian, receiver or trustee for him or a
substantial part of his assets; or (iii) shall commence any proceeding under any
bankruptcy, reorganization, arrangement, readjustment of debt or liquidation law
or statute of any jurisdiction, whether now or hereafter in effect; or (iv)
shall have any such petition or application filed or any such proceeding
commenced against him in which an order for relief is entered or adjudication or
appointment is made and which remains undismissed for a period of sixty (60)
days or more; or (v) by any act or omission shall indicate his consent to,
approval of, or acquiescence in any such petition, application, or proceeding or
order for relief or the appointment of a custodian, receiver or trustee for all
or any substantial part of his properties; or (vi) shall suffer any such
custodianship, receivership or trusteeship to continue undischarged for a period
of sixty (60) days or more.
If at any time during the term of this Agreement, there shall have occurred
an Event of Default, the Company shall have at any time thereafter the rights
and remedies provided by law, including those contained in the Uniform
Commercial Code as interpreted by the courts in New York, and without limiting
the generality of the foregoing, the right (i) to declare all amounts then
remaining unpaid under the Promissory Notes to be immediately due and payable,
(ii) to receive all amounts payable in respect of the Pledged Shares otherwise
payable to the Borrower (in cash or otherwise), (iii) to transfer all or any
part of the Pledged Shares into the Company's name or the name of its nominee or
nominees, (iv) to vote all or any part of the Pledged Shares (whether or not
transferred into the name of the Company) and give all consents, waivers and
ratifications in respect of the Pledged Shares and otherwise act with respect
thereto as though it were the outright owner thereof (the Borrower hereby
irrevocably constituting and appointing the Company the proxy and
attorney-in-fact of the Borrower, with full power of substitution to do
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so); and (v) the right to take any available action or proceeding, at law or in
equity, which it deems necessary or advisable for its protection and security.
Upon any Event of Default, all Collateral shall be applied first to any amounts
due under the non-recourse Promissory Note until such Promissory Note has been
repaid in full, and thereafter to the full recourse Promissory Note.
5. Governing Law. This transaction shall be governed by the laws of
New York, and the Company shall have all of the rights and remedies granted to a
secured party under the Uniform Commercial Code as interpreted by the courts of
New York.
6. Authority of the Company. The Borrower hereby irrevocably
authorizes and empowers the Company, in its absolute discretion, at any time
after any Event of Default as defined herein, to complete the stock powers and
to transfer or cause to be transferred on its books all of the Pledged Shares
and the Share Certificates relating thereto.
7. Termination. When and if the Borrower's obligations under the
Promissory Notes and any other indebtedness of the Borrower to the Company have
been paid in full, all rights and interests of the Company in and to the Pledged
Shares and the other Collateral shall thereupon revest in the Borrower, and the
Company thereupon shall release the security interest granted in this Agreement,
reassign the Pledged Shares and the other Collateral to the Borrower and deliver
the Share Certificates (together with any related stock powers) to the Borrower.
8. Company's Fees and Expenses. The Borrower agrees to pay, or
reimburse the Company for any and all costs and expenses of whatever kind or
nature (including, without limitation, reasonable attorneys' fees and charges)
incurred in connection with the preservation or protection of the Company's
encumbrances on, and security interest in, the Pledged Shares, the enforcement
and collection of the Promissory Notes and this Agreement, or the prosecution or
defense of any actions, suits or proceedings arising out of or relating to the
Promissory Notes, this Agreement or all or any part of the Pledged Shares.
9. Borrower's Obligations Absolute. Except as otherwise provided by the
Company in writing, the Borrower's obligations under this Agreement shall be
absolute and unconditional and shall remain in full force and effect without
regard to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever, including,
without limitation: (a) any renewal, extension, amendment or modification of, or
addition or supplement to, or deletion from, the Promissory Notes, this
Agreement or any other agreement, document or instrument, or any assignment or
transfer of any thereof; (b) any waiver, consent, extension, indulgence or other
action or inaction under or in respect of the Promissory Notes, this Agreement
or any other such agreement, document or instrument or any exercise or
non-exercise of any right, remedy, power or privilege under or in respect of the
Promissory Notes, this Agreement or any other such agreement, document or
instrument.
10. Jurisdiction and Service of Process. Any legal action or
proceedings with respect to this Agreement against the Borrower or its
properties or assets may be brought in any New York State or Federal court in
New York, New York, as the Company may select, and the Borrower hereby
unconditionally and irrevocably consents to the non-exclusive jurisdiction of
such courts.
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The Borrower irrevocably waives any objection it may now or hereafter have to
the laying of venue of any such action or proceedings in any such courts and any
claim he may now or hereafter have that any such action or proceeding has been
brought in an inconvenient forum. The Borrower waives personal service of any
and all process upon him, and consents to the service of process and other legal
notices upon him by the mailing of copies thereof by certified mail, postage
prepaid, addressed to the Borrower at his address specified underneath his
signature below, or at such other address as may be specified by the Borrower
pursuant to Section 18 hereof. Nothing herein shall affect the right of the
Company to serve process in any other manner permitted by law or affect the
right of the Company to take any legal action or proceeding in any other
competent jurisdiction.
11. Waiver of Right to Trial by Jury. The Borrower and the Company each
hereby unconditionally and irrevocably waive any and all right to trial by jury
in any action, suit, claim or counterclaim arising in connection with, out of or
otherwise relating to this Agreement, the Promissory Notes, the obligations, any
Pledged Shares or any transaction arising therefrom or related thereto.
12. Taxes. The Borrower shall pay for any and all documentary stamps or
other taxes which may be imposed on the transfer and delivery to the Company, or
the retransfer and redelivery to the Borrower, of the Pledged Shares, the other
Collateral to the Borrower and the Share Certificates.
13. Waiver by Borrower. The Borrower hereby waives presentment, demand,
protest or notice of protest with respect to the Promissory Notes.
14. The Company's Rights; Exculpation. The Collateral shall be held in
the possession of the Company, and in connection therewith, the Company shall
have the authority and power to take such actions and to exercise such powers
hereunder as are specifically delegated to the Company by the terms hereof,
together with such other powers as are reasonably incidental thereto. The
Company shall not be liable hereunder in its capacity as agent or bailee for any
action taken or omitted by it hereunder except for its gross negligence or
willful breach. The Company shall have no compensation hereunder and shall be
under no duty with respect to the Collateral except to account therefor in due
course, pursuant to the terms and conditions hereof.
15. Entire Agreement. This Agreement and the Promissory Notes
collectively constitute the entire agreement and supersede all prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof and are not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
16. Modification of Agreement. This Agreement may not be modified
except in writing and executed with the same formality as this Agreement.
17. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
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18. Notices. All notices required or permitted to be given hereunder shall
be in writing and addressed:
If to Market Axess Inc. as follows:
Market Axess Inc.
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
With a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
If to the Borrower, at the address set forth below.
[Signature Page Follows]
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19. Further Assurance. Each party shall execute and deliver to the other
such further documents and instruments, and shall perform such other acts, as
reasonably may be necessary or proper to carry out more effectually the purposes
of this Agreement.
BORROWER
By: /s/ Xxxxxxx XxXxx
____________________________________
Xxxxxxx XxXxx
Address:
MARKET AXESS INC.
By: /s/ Xxxxxxx XxXxx
____________________________________
Name: Xxxxxxx XxXxx
Title: Chief Executive Officer
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