UNIT VESTING, EQUITY RETENTION AND RESTRICTIVE COVENANT AGREEMENT
Exhibit 10.18
UNIT VESTING, EQUITY RETENTION AND
RESTRICTIVE COVENANT AGREEMENT
, 2015
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Chief Executive Officer
Virtu Financial, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Unit Vesting, Equity Retention and Restrictive Covenant Agreement
Dear ▇▇. ▇▇▇▇:
The undersigned understands that Virtu Financial LLC, a Delaware limited liability company (“Virtu LLC”), proposes to consummate a reorganization in connection with an initial public offering (the “IPO”) of Class A common stock, $0.00001 par value per share (“Class A Common Stock”), of Virtu Financial, Inc., a Delaware corporation (the “Company”). In connection with the IPO, the Company requires that management employees who hold Pre-IPO Company Securities be subject to certain restrictions regarding the sale and transfer of such Pre-IPO Company Securities and acknowledge and agree to continue to be bound by certain post-termination restrictive covenants, as further described herein.
1. Equity Reclassification
(a) The undersigned owns (i) limited liability company interests of Virtu Employee Holdco (“Existing Virtu Employee Holdco Interests”), which represent an indirect interest in a number of attributable outstanding limited liability company interests of Virtu LLC (“Existing Virtu LLC Interests”) and (ii) Class B limited liability company interests of East MIP (“East MIP Interests”), which represent an indirect interest in a number of Existing Virtu LLC Interests. In accordance with the Reorganization Agreement, immediately prior to the date and time the IPO becomes effective, among other things, (x) East MIP will be liquidated, and in connection therewith, holders of East MIP Interests will be distributed additional Existing Virtu Employee Holdco Interests and (y) all outstanding Existing Virtu LLC Interests will be reclassified into non-voting common limited liability company interests of Virtu LLC (“Common Units”) based on a hypothetical liquidation value of Virtu LLC (the “Hypothetical Liquidation Value”) and the IPO price per share of the Class A Common Stock. In connection with such reclassification, all Existing Virtu Employee Holdco Interests, including those distributed to the holders of East MIP Interests in connection with the liquidation of East MIP, will be reclassified into non-voting common limited liability company interests of Virtu Employee Holdco (“Virtu Employee Holdco Common Units”) representing an indirect interest in a number of attributable Common Units.
(b) In addition, Virtu Employee Holdco, on behalf of the undersigned, will subscribe for a number of shares of Class C Common Stock equal to the number of Common Units indirectly held by the undersigned in Virtu Employee Holdco. From and after the IPO, subject to the Lock-Up Restrictions and Transfer Restrictions described below, such Common Units, together with such shares of Class C Common Stock, are distributable to the undersigned and subsequently exchangeable for shares of Class A Common Stock pursuant to the Exchange Agreement.
(c) The undersigned acknowledges and agrees that the equity interests set forth on Exhibit A attached hereto (i) represent all of the undersigned’s vested and unvested Existing Virtu Employee Holdco Interests and East MIP Interests and (ii) after giving effect to the transactions described in paragraph 1(a), the undersigned’s Virtu Employee Holdco Common Units will continue to be subject to (x) the vesting terms applicable to such equity interests as in effect immediately prior to the IPO as set forth on Exhibit A attached hereto, (y) the Employee Holdco LLC Agreement, and (z) the Virtu LLC MIP.
(d) As soon as reasonably practicable following the IPO, the undersigned will be provided by Virtu LLC with written notice setting forth the portion of the Hypothetical Liquidation Value represented by the undersigned’s indirect interests in attributable Existing Virtu LLC Interests and the resulting number of Virtu Employee Holdco Common Units that he or she then owns after giving effect to the transactions contemplated by the Reorganization Agreement and the IPO.
2. Equity Retention
(a) Except as otherwise provided herein, the undersigned hereby agrees that, without the prior written consent of the Company, the undersigned will not directly or indirectly Transfer all or any part of his or her Pre-IPO Company Securities or any right or economic interest pertaining thereto, including the right to vote or consent on any matter or to receive or have any economic interest in distributions or advances from the Company or Virtu LLC pursuant thereto (the foregoing restrictions are hereinafter referred to as the “Lock-Up Restrictions”).
(b) Notwithstanding anything herein to the contrary, the Lock-Up Restrictions shall cease to apply to the Pre-IPO Company Securities as follows:
(i) upon the consummation of the IPO, the undersigned may Transfer up to 15% of his or her Pre-IPO Company Securities pursuant to the Equity Purchase Agreements, to the extent such Pre-IPO Company Securities have vested;
(ii) on and after the first (1st) anniversary of the consummation of the IPO, the undersigned may Transfer up to a cumulative 30% of his or her Pre-IPO Company Securities, to the extent such Pre-IPO Company Securities have vested;
(iii) on and after the second (2nd) anniversary of the consummation of the IPO, the undersigned may Transfer up to a cumulative 45% of his or her Pre-IPO Company Securities, to the extent such Pre-IPO Company Securities have vested;
(iv) on and after the third (3rd) anniversary of the consummation of the IPO, the undersigned may Transfer up to a cumulative 60% of his or her Pre-IPO Company Securities, to the extent such Pre-IPO Company Securities have vested;
(v) on and after the fourth (4th) anniversary of the consummation of the IPO, the undersigned may Transfer up to a cumulative 75% of his or her Pre-IPO Company Securities, to the extent such Pre-IPO Company Securities have vested;
(vi) on and after the fifth (5th) anniversary of the consummation of the IPO, the undersigned may Transfer up to a cumulative 90% of his or her Pre-IPO Company Securities, to the extent such Pre-IPO Company Securities have vested; and
(vii) on and after the sixth (6th) anniversary of the consummation of the IPO, the Lock-Up Restrictions shall no longer apply, and the undersigned may Transfer any or all of his or her remaining Pre-IPO Company Securities, to the extent such Pre-IPO Company Securities have vested.
For the purposes of this paragraph 2(b), the percentage of Pre-IPO Company Securities permitted to be Transferred shall be determined based on the total number of shares of Class A Common Stock owned by the undersigned as of the Reorganization Date (including any Pre-IPO Company Securities to be sold thereby pursuant to the Equity Purchase Agreements, but excluding any shares of Class A Common stock underlying awards under the Company MIP made thereto in connection with the IPO (“IPO Grants”)), in each case, determined on an “as-converted” basis based on the number of shares of Class A Common Stock, in the aggregate and without duplication, into which the Pre-IPO Company Securities owned of record thereby (whether vested or unvested) are directly or indirectly convertible or exchangeable; provided that, for the purposes of clause (b)(i) only, such total number of Pre-IPO Company Securities owned by the undersigned shall be determined based on the number of such Pre-IPO Company Securities that would have been owned thereby as of the Reorganization Date assuming the Midpoint Liquidation Value was the Hypothetical Liquidation Value and the IPO price per share of the Class A Common Stock was the IPO Price Range Midpoint.
(c) Notwithstanding anything herein to the contrary, the Lock-Up Restrictions shall not apply to (i) shares of Company Common Stock and any securities then convertible into or exchangeable for shares of Company Common Stock acquired (x) in open market transactions after the completion of the IPO or (y) pursuant to awards under the Company MIP (including any IPO Grants), (ii) the establishment of a trading plan pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for the Transfer of shares of Company Common Stock; provided that such plan does not provide for the Transfer of shares of Company Common Stock not otherwise permitted pursuant to clause (b) above, (iii) the granting of a revocable proxy to officers or directors of the Company at the request of the board of directors of the Company (the “Board”) in connection with actions to be taken at annual or special meetings of stockholders or in connection with any action by written consent of the stockholders solicited by the Board (at such times as action by written consent of stockholders is permitted under the certificate of incorporation of the Company), (iv) entering into a voting trust, agreement or arrangement (with or without granting a proxy) solely with the Company and/or its stockholders that (A) is disclosed in writing to the Secretary of the Company, (B) either has a
term not exceeding one (1) year or is terminable by the undersigned at any time and (C) does not involve any payment of cash, securities, property or other consideration to the undersigned other than the mutual promise to vote Pre-IPO Company Securities in a designated manner, (v) entering into a customary voting or support agreement (with or without granting a proxy) in connection with any merger, consolidation or other business combination of the Company, whether effectuated through one transaction or series of related transactions (including a tender offer followed by a merger in which holders of Class A Common Stock receive the same consideration per share paid in the tender offer) (a “Business Combination”), (vi) the fact that the spouse of the undersigned possesses or obtains an interest in such holder’s Pre-IPO Company Securities arising solely by reason of the application of the community property laws of any jurisdiction, so long as no other event or circumstance shall exist or have occurred that constitutes a Transfer of such shares of Pre-IPO Company Securities, (vii) any Transfer in connection with, and as contemplated by, the Reorganization Agreement, (viii) any Transfer pursuant to any Business Combination and, to the extent such Business Combination is a Disposition Event (as such term is defined in the certificate of incorporation of the Company), following such Disposition Event (it being understood and agreed that, to the extent such Business Combination is not a Disposition Event, the Lock-Up Restrictions shall continue to apply to any securities into which such Pre-IPO Company Securities are exchanged or converted in such Business Combination).
(d) The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Company Common Stock except in compliance with the foregoing restrictions.
(e) For the avoidance of doubt, in addition to the Lock-Up Restrictions, (i) any Transfer of Virtu Employee Holdco Common Units shall be subject to the restrictions on Transfer applicable thereto pursuant to the Virtu Employee Holdco LLC Agreement and (ii) the attributable Common Units in which the undersigned has an indirect ownership interest shall be subject to the restrictions on exchange set forth in the Exchange Agreement (collectively, the “Transfer Restrictions”); provided that, the Lock-Up Restrictions shall not preclude the undersigned from delivering a Transfer Election (as such term is defined in the Virtu Employee Holdco LLC Agreement) in connection with an Exchange (as such term is defined in the Exchange Agreement), so long as such Exchange is not consummated prior to the date the undersigned would be entitled to Transfer the shares of Class A Common Stock issuable in such Exchange in accordance with the Lock-Up Restrictions.
3. Restrictive Covenants. The undersigned hereby acknowledges and agrees that he or she shall continue to be bound by the Virtu Employee Holdco LLC Agreement as a Member thereof, including, for the avoidance of doubt, the restrictive covenants set forth in Section 9.04 thereof, in accordance with the terms and conditions thereof.
4. Definitions.
(a) “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person; provided that no holder of Pre-IPO Company Securities nor any Affiliate of such holder shall be deemed to be
an Affiliate of any other holder of Pre-IPO Company Securities or any of its Affiliates solely by virtue of such holder’s Pre-IPO Company Securities.
(b) “Applicable Law” means, with respect to any Person, any federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority or Regulatory Agency that is binding upon or applicable to such Person or its assets, as amended unless expressly specified otherwise.
(c) “Class C Common Stock” means Class C common stock, $0.00001 par value per share, of the Company.
(d) “Class D Common Stock” means Class D common stock, $0.00001 par value per share, of the Company.
(e) “Company Common Stock” means all classes and series of common stock of the Company, including the Class A Common Stock and Class C Common Stock.
(f) “Company MIP” means the Virtu Financial, Inc. 2015 Management Incentive Plan.
(g) “Control” (including the terms “controlling” and “controlled”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of such subject Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise.
(h) “East MIP” means Virtu East MIP LLC, a Delaware limited liability company.
(i) “Equity Purchase Agreements” means (i) the Purchase Agreement by and among the Company, Virtu LLC and certain other members of Virtu LLC and (ii) the Redemption Agreement by and among Virtu Employee Holdco and certain members thereof, in each case dated on or about the Reorganization Date.
(j) “Exchange Agreement” means the Exchange Agreement, dated as of the Reorganization Date, by and among the Company, Virtu LLC and the holders of Common Units and shares of Class C Common Stock and Class D Common Stock from time to time party thereto.
(k) “Governmental Authority” means any transnational, domestic or foreign, federal, state or local governmental, regulatory or administrative authority, department, court, agency or official, including any subdivision thereof.
(l) “IPO Price Range Midpoint” means the midpoint of the estimated public offering price range for the Class A Common Stock set forth on the cover page of the preliminary prospectus forming a part of the registration statement on Form S-1 filed by the Company with the Securities and Exchange Commission on [ ], 2015.
(m) “Midpoint Liquidation Value” means the aggregate equity value of Virtu LLC as of the Reorganization Date implied by the IPO Price Range Midpoint.
(n) “Person” means, any individual, firm, corporation, partnership, limited liability company, trust, estate, joint venture, Governmental Authority or other entity.
(o) “Pre-IPO Company Securities” means (i) any Virtu Employee Holdco Common Units and (ii) any Common Units or shares of Company Common Stock (x) into which the foregoing are converted or exchanged (including pursuant to an exchange of Common Units, together with shares of Class C Common Stock, for shares of Class A Common Stock pursuant to the Exchange Agreement) or (y) that are distributed in respect of the foregoing.
(p) “Registration Rights Agreement” means the Registration Rights Agreement by and among the Company and the stockholders party thereto, dated as of the Reorganization Date.
(q) “Regulatory Agency” means the Securities and Exchange Commission, the Financial Industry Regulatory Authority, the Financial Services Authority, any non-U.S. regulatory agency and any other regulatory authority or body (including any state or provincial securities authority and any self-regulatory organization) with jurisdiction over the Company, Virtu LLC or any of Virtu LLC’s subsidiaries.
(r) “Reorganization Agreement” means the Reorganization Agreement, dated as of the Reorganization Date, by and among the Company, Virtu LLC, Virtu Employee Holdco, East MIP and the other Persons listed on the signature pages thereto.
(s) “Reorganization Date” means the date on which transactions contemplated by the Reorganization Agreement are consummated.
(t) “Reorganization Documents” means the Reorganization Agreement, the Virtu LLC Agreement, the Virtu Employee Holdco LLC Agreement, the Tax Receivable Agreement, the Exchange Agreement, the Registration Rights Agreement, the Virtu LLC MIP, and this letter.
(u) “Tax Receivable Agreement” means the Tax Receivable Agreement by and among the Company, Virtu Employee Holdco and the other persons listed on the signature pages thereto.
(v) “Transfer” means any offer, sale, contract to sell, grant of an option to purchase, short sale, assignment, transfer, exchange, gift, bequest, pledge or other disposition or encumbrance, direct or indirect, in whole or in part, by operation of law or otherwise. The foregoing restriction is expressly agreed to preclude the relevant person from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the referent securities even if such securities would be disposed of by someone other than such person. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option) with respect to any of the referent securities or with respect to any security that includes, relates to, or derives any significant part of its value from such securities. The terms “Transferred”, “Transferring”, “Transferor”, “Transferee” and “Transferable” have meanings correlative to the foregoing.
(w) “Virtu Employee Holdco” means Virtu Employee Holdco LLC, a Delaware limited liability company and special purpose vehicle through which the members thereof indirectly own Common Units.
(x) “Virtu Employee Holdco LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of Virtu Employee Holdco, dated as of the Reorganization Date, in the form attached hereto as Exhibit B.
(y) “Virtu LLC Agreement” means the Third Amended and Restated Limited Liability Company Agreement of Virtu LLC, dated as of the Reorganization Date.
(z) “Virtu LLC MIP” means the Virtu LLC Management Incentive Plan, as amended.
5. Miscellaneous.
(a) IPO. The undersigned understands that the Company is relying upon this letter agreement in proceeding toward consummation of the IPO. The undersigned further understands that this letter agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. This letter agreement shall lapse and become null and void if the IPO shall not have occurred on or before [ ], 2015 or earlier if the Company has provided written notice to the undersigned that it has determined not to pursue the IPO. Whether or not the IPO actually occurs depends on a number of factors, including market conditions.
(b) Amendment and Waiver.
(i) Any provision of this letter agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this letter agreement or, in the case of a waiver, by each party against whom the waiver is to be effective.
(ii) 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 not exclusive of any rights or remedies provided by Applicable Law.
(c) Binding Effect; Benefit; Assignment. The provisions of this letter agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. No provision of this letter agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. No party may assign, delegate or otherwise transfer any of its rights or obligations under this letter agreement without the consent of each other party hereto, except that the Company may transfer or assign its rights and obligations under this letter agreement, in whole or from time to time in part, to any Person; provided that such transfer or assignment shall not relieve the Company of its obligations hereunder or enlarge, alter or change any obligation of any other party hereto or due to the Company.
(d) Governing Law. This letter agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this letter agreement, shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules of such state.
(e) Jurisdiction. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this letter agreement or the transactions contemplated hereby (whether brought by any party or any of its Affiliates or against any party or any of its Affiliates) shall be brought in the Delaware Chancery Court or, if such court shall not have jurisdiction, any federal court located in the State of Delaware or other Delaware state court, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, the undersigned agrees that service of process on such party as at the address provided on the signature page hereto shall be deemed effective service of process on the undersigned.
(f) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
(g) Counterparts; Effectiveness. This letter agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This letter agreement shall be deemed entered into when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto. Until and unless each party has received a counterpart hereof signed by the other party hereto, this letter agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).
(h) Entire Agreement. This letter agreement, the Reorganization Documents and the Company MIP (and any award to the undersigned under any of the foregoing), constitute the entire agreement between the parties with respect to the subject matter of this letter agreement and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this letter agreement.
(i) Severability. If any term or provision of this letter agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms or provisions of this letter agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.
(j) Interpretation. Each and every provision of this letter agreement shall be construed as though both parties participated equally in the drafting of the same, and any rule of construction that a document shall be construed against the drafting party shall not be applicable to this letter agreement. The words “hereof”, “herein” and “hereunder” and words of like import used in this letter agreement shall refer to this letter agreement as a whole and not to any particular provision of this letter agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. Any singular term in this letter agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this letter agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to “law”, “laws” or to a particular statute or law shall be deemed also to include any Applicable Law.
[signature pages follow]
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Very truly yours, |
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[Signature Page to Unit Vesting, Equity Retention and Restrictive Covenant Agreement]
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VIRTU FINANCIAL LLC | ||
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[Signature Page to Unit Vesting, Equity Retention and Restrictive Covenant Agreement]
Exhibit A
Existing Equity Interests
See attached.
Exhibit B
Virtu Employee Holdco LLC Agreement
See attached.