Exhibit 10.13
PURCHASE AGREEMENT
Purchase Agreement, dated as of October 2, 2002, by and
between NYFIX, Inc., a New York corporation (the "Buyer"), and the other
signatories hereto (the "Sellers").
WHEREAS, the Sellers currently own 100% of the
outstanding units of membership interests ("Units") of Renaissance Trading
Technologies, LLC (the "Company"); and
WHEREAS, the Sellers desire to sell, and the Buyer
wishes to purchase, such number of Units as equals 18% of the outstanding Units,
upon the terms and subject to the conditions hereafter set forth.
NOW, THEREFORE, in order to implement the foregoing and
in consideration of the mutual agreements contained herein, the parties
hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. SALE OF SHARES.
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1.1. AGREEMENT TO PURCHASE AND SELL. The Buyer hereby agrees to
purchase an aggregate of 18% of the Units (the "Purchased Units") from the
Sellers, and the Sellers hereby agree to sell 18% of each of their number of
Units to the Buyer, for an aggregate of 300,000 shares (the "Shares") of the
Buyer's common stock. The Sellers shall contribute an aggregate of 150,000 of
the Shares to the Company (the "Employees Shares"), which Shares shall be
distributed by the Company to its employees who become members of the Company
after the date hereof. Each Seller shall receive 50,000 Shares (which shall not
come from the Employees Shares).
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
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Each of the Sellers, jointly and severally, hereby represent and
warrant to the Buyer that:
2.1. ORGANIZATION; GOOD STANDING. The Company is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware and has all requisite limited liability company power and
authority to carry on its business as now conducted and as proposed to be
conducted. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure so to qualify would have a
material adverse effect on its business or properties.
2.2 VALIDITY. This Agreement has been duly and validly executed and
delivered by such Seller and constitutes a legal, valid and binding agreement of
such Seller, enforceable against such Seller in accordance with its terms,
except as such enforceability may be affected by applicable bankruptcy,
insolvency or similar laws relating to or affecting creditors' rights generally
or by equitable principles.
2.3. NO CONSENTS; NO CONTRAVENTION. The execution, delivery and
performance by such Seller of this Agreement does not require any authorization,
consent, approval or action by or in respect of, or filing with, any
governmental body, agency, official or other person and does not contravene, or
constitute a default under, any provision of applicable law or regulation or of
any agreement, judgment, order, decree or other instrument to which such Seller
is a party or by which such Seller is bound.
2.4. CAPITALIZATION. The outstanding capital of the Company
currently consists of 10,000,000 Units, all of which are owned, in the
aggregate, by the Sellers. There are no outstanding options, warrants, rights
(including conversion or preemptive rights) or agreements for the purchase or
acquisition from the Company of any membership interests or other securities of
the Company. The Company is not a party or subject to any agreement or
understanding of any kind, and there is no agreement or understanding of any
kind between any individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof (a
"Person"), which affects or relates to the acquisition, disposition or voting or
giving of written consents with respect to any security of the Company. The
Company has no subsidiaries and does not currently own or control, directly or
indirectly, any interest in any other Person.
2.5. GOOD AND TRANSFERABLE TITLE. Such Seller has good and
transferable title to his Units, and such Units will be transferred free and
clear of any lien, pledge, mortgage, charge, security interest or encumbrance of
any kind, except for encumbrances imposed by federal and state securities laws.
2.6. NO LITIGATION. (i) There is no action, suit, proceeding, or
investigation pending or to the Sellers' knowledge currently threatened against
the Company (nor, to their knowledge, is there any reasonable basis therefor);
(ii) the Company is not a party or subject to the provisions of any order, writ,
injunction, judgment, or decree of any court or government agency or
instrumentality; and (iii) there is no action, suit, proceeding or investigation
involving the Company or the Sellers which such parties intend to initiate.
2.7. DISCLOSURE. No representation, warranty or statement by the
Seller or the Company made in this Agreement contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
contained herein, in light of the circumstances under which they were made, not
misleading.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
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The Buyer hereby represents and warrants to the Seller that:
3.1. VALIDITY. This Agreement has been duly and validly executed and
delivered by the Buyer and constitutes a legal, valid and binding agreement of
the Buyer, enforceable against the Buyer in accordance with its terms, except as
such enforceability may be affected by applicable bankruptcy, insolvency or
similar laws relating to or affecting creditors' rights generally or by
equitable principles.
3.2. NO CONSENTS; NO CONTRAVENTION. The execution, delivery and
performance by the Buyer of this Agreement does not require any authorization,
consent, approval or action by or in respect of, or filing with, any
governmental body, agency, official or other Person and does not contravene, or
constitute a default under, any provision of applicable law or regulation or of
any agreement, judgment, order, decree or other instrument to which the Buyer is
a party or by which the Buyer is bound.
3.3. RESTRICTED SECURITIES. The Buyer understands that the Units are
characterized as "restricted securities" as defined under Rule 144 of the Rules
and Regulations promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), and understands the resale limitations imposed by such rule.
3.4. LEGEND. It is understood that the certificate representing the
Units will bear the following or similar legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT UNDER THE
ACT IN EFFECT WITH RESPECT TO THESE SECURITIES OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED."
SECTION 4. REGISTRATION RIGHTS.
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4.1. REGISTRATION OF THE SHARES; LOCK-UP. (a) The Shares received by
the Sellers as consideration for the Units shall not initially be registered
under the Securities Act of 1933, as amended (the "Securities Act"), and shall
bear a legend to such effect in the form determined by the Buyer. The Buyer
hereby agrees to file a registration statement pursuant to the Securities Act,
covering the resale of all of the Shares (the "Registration Statement") by the
Sellers and the employees of the Company receiving Shares upon the distribution
contemplated by Section 1.1 hereof (each a "Selling Stockholder" and
collectively, the "Selling Stockholders"), as soon as practicable but in no
event later than 60 days from the date of this Agreement (the "Filing Date").
The Buyer will use its reasonable best efforts to cause such Registration
Statement to be declared effective by the Securities Exchange Commission (the
"SEC") as soon as practicable after such filing. The Buyer also agrees to use
its reasonable best efforts to keep the Registration Statement effective
(including the preparation and filing of any amendments and supplements
necessary for that purpose) during the period from the date that the
Registration Statement is declared effective by the SEC until the earlier of (i)
the date on which the Selling Stockholders shall have sold all of the Shares and
(ii) the date on which all of the Shares are eligible to be sold or transferred,
without holding period or volume limitations, pursuant to Rule 144 promulgated
under the Securities Act (the "Effective Period"). The Buyer agrees to provide
to each Selling Stockholder the number of copies of the final prospectus and any
amendments or supplements thereto as are
reasonably requested by such Selling Stockholder. The Buyer shall promptly
notify the Selling Stockholders of any threatened stop order by the SEC or if
the Registration Statement ceases to be effective for any reason at any time
during the Effective Period, and NYFIX shall use its reasonable best efforts and
take all reasonable actions required to prevent the entry of such stop order or
to obtain the prompt withdrawal of any order suspending the effectiveness
thereof.
(b) Notwithstanding the effectiveness of the Registration Statement,
each of the Sellers hereby agrees that he shall not, directly or indirectly,
sell, offer to sell, contract to sell, transfer, pledge, hypothecate or
otherwise transfer or dispose of any of the Shares, except pursuant to the
following schedule: Dates % of Shares Permitted to be Sold
Dates % of Shares Permitted to be Sold
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Prior to the one-year anniversary
of the date hereof up to 40%
After the first year and prior to
the two-year anniversary up to an aggregate of 60%
After the second year and prior to
the three-year anniversary up to an aggregate of 80%
After the third year up to an aggregate of 100%
4.2. RESTRICTIONS OF REGISTRATION. Notwithstanding anything to the
contrary contained in Section 4.1 above, if the Board of Directors of the Buyer
determines reasonably and in good faith that (i) such filing would jeopardize or
delay any plan by the Buyer to engage in any acquisition of assets (other than
in the ordinary course of business) or any merger, consolidation, tender offer
or other significant transaction, (ii) such filing would require the disclosure
of material information that the Buyer has a bona fide business purpose for
preserving as confidential or (iii) at such time the Buyer is unable to comply,
despite its best efforts to so comply, with the filing requirements applicable
to the requested registration, then the Buyer may postpone the filing or the
effectiveness of such registration statement until the earlier of the date that
is 60 days from the Filing Date or (x) the date upon which the contemplated
transaction is completed or abandoned, (y) the date the material information is
otherwise disclosed to the public or ceases to be material or (z) the date the
Buyer is able to comply with the applicable filing requirements.
4.3. BUYER INDEMNIFICATION. The Buyer agrees to indemnify, to the
fullest extent permitted by law, each Seller against all losses, claims,
damages, liabilities and expenses (including, but not limited to, reasonable
attorneys' fees) to which such indemnified party may become subject insofar as
they are caused by, arise out of, or are based upon any untrue or alleged untrue
statement of a material fact contained in any registration statement, any
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances in which they were made not misleading, except
insofar as the same are (i) caused by or contained in any written information
furnished to the Buyer by a Seller expressly for use therein, (ii) caused by
such Seller's failure to deliver a copy of the registration statement or
prospectus or any amendment or supplement thereto as required by the Securities
Act or (iii) caused by the use of a prospectus or preliminary prospectus or any
amendment or supplement thereto after receipt of notice from the Buyer that it
should no longer be used.
4.4. SELLERS INFORMATION; SELLERS INDEMNIFICATION. Each Seller shall
furnish to the Buyer in writing such information and affidavits as the Buyer
reasonably requests for use in connection with any such registration statement
or prospectus and, to the fullest extent permitted by law, will indemnify the
Buyer, its directors, officers and employees, each underwriter (if any) and each
Person who controls the Buyer or such underwriter (within the meaning of the
Securities Act or the Securities Exchange Act of 1934) against any losses,
claims, damages, liabilities and expenses (including, but not limited to,
attorneys' fees) to which such indemnified party may become subject insofar as
they are caused by, arise out of, or are based upon any untrue or alleged untrue
statement of a material fact contained in the registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, but only to the extent
that such untrue statement or omission is contained in any written information
or affidavit so furnished in writing by such Seller expressly for use therein or
the failure by such Seller to deliver a copy of the registration statement or
prospectus or amendment or supplement thereto as required by the Securities Act.
The liability of any Seller under this Section 4.4 shall not in any event exceed
the net proceeds received by such Seller from the sale of Shares covered by the
Registration Statement.
4.5. INDEMNIFICATION PROCEDURE. Any Person entitled to
indemnification under Sections 4.3 or 4.4 above, will (i) use reasonable efforts
to give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that the failure of
any Person entitled to indemnification hereunder to give such notice to the
indemnifying party shall not constitute a waiver of, or a defense of the
indemnifying party to, such Person's right to indemnification hereunder unless
such failure has a material adverse effect upon the indemnifying party's ability
to defend said action. If such defense is assumed, the indemnifying party will
not be subject to any liability for any settlement made by the indemnified party
without its consent (which consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim, in which event the
indemnifying party will pay the fees and expenses of up to one additional
counsel.
SECTION 5. MISCELLANEOUS.
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5.1. ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
5.2. SURVIVAL. All representations, warranties and agreements made
in this Agreement shall survive the execution hereof.
5.3. ENTIRE AGREEMENT. This Agreement supersedes any and all prior
contracts, understandings, discussions and agreements between the parties
hereto, and constitutes the complete understanding between the parties, with
respect to the subject matter hereof. No statement, representation, warranty or
covenant has been made by any party with respect thereto except as expressly set
forth herein.
5.4. MODIFICATION; WAIVER. This Agreement may be amended or waived
if, and only if, such amendment or waiver is in writing and signed, in the case
of an amendment, by all the undersigned, or in the case of a waiver, by the
party against whom the waiver is to be effective. No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and shall
not be exclusive to any rights or remedies by law or at equity.
5.5. APPLICABLE LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
regardless of the law that might be applied under principles of conflicts of
law.
5.6. SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as to be enforceable.
5.7. EXPENSES OF THE TRANSACTION. Each party to this Agreement shall
pay all costs and expenses incurred by it in connection with this Agreement and
the transactions contemplated hereby.
5.8. FURTHER ASSURANCES. From time to time, at the request of any
party hereto or as required under applicable law and without further
consideration, each party hereto will execute and deliver to such requesting
party or other person or persons, as appropriate, such documents and take such
other action (but without incurring any financial obligation except as otherwise
required by this Agreement) as such requesting party may reasonably request in
order to consummate more effectively and in accordance with applicable law the
transactions contemplated hereby.
5.9. NOTICES. All notices and other communications provided for
herein shall be in writing and shall be deemed to have been duly given and made
if served either by personal delivery to the party for whom intended (which
shall include delivery by a reputable overnight courier) or three business days
after being deposited, postage prepaid, certified or registered mail, return
receipt requested, in the United States mail bearing the following address shown
for, or such other address as may be designated in writing hereafter by, such
party:
If to the Sellers: at the addresses set forth opposite
their respective names on the
signature pages hereto.
with a copy to: Xxxxx & Xxxxxxx LLP 000 00xx Xxxxxx,
XX Xxxxxxxxxx, XX 00000 Attention:
Xxxx Xxxxxxx, Esq.
If to the Buyer: NYFIX, Inc. Stamford Harbor Park 000
Xxxxxx Xxxxxx Xxxxxxxx , Xxxxxxxxxxx
00000 Attention: Xxxxx X. Xxxxxx
with a copy to: Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx &
Wolosky LLP 000 Xxxx Xxxxxx, 00xx
Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
5.10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument. A facsimile copy of
a signature page shall be deemed an original signature for purposes of this
Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have each executed this
Agreement as of the date first written above.
BUYER:
NYFIX, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
SELLERS:
/s/ Xxxxxx Xxxxxxxx Address: 0 Xxxx Xxxx Xxxxxxx
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Xxxxxx Xxxxxxxx Xxxxxxxxxxxx, XX 00000
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/s/ Xxxxxx Xxxx Address: 00 Xxxxx Xxxxxx
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Xxxxxx Xxxx Cornwall on Xxxxxx, XX 00000
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/s/ Xxx XxXxxxxx Address: 0 Xxxxxx Xxxxxxx Xx.
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Xxx XxXxxxxx Xxxxxxx, XX 00000
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