EXHIBIT 10.1
CERTAIN CONFIDENTIAL INFORMATION, IDENTIFIED BY BRACKETED ASTERISKS “[*****]”, HAS BEEN OMITTED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
CONSULTING SERVICES AGREEMENT
This agreement (hereinafter referred to as “Agreement”) is for Consulting Services (the “Consulting Services”), described in the attached Exhibit A, which is part of this Agreement, to be provided by Nicholas Themelis (the “Consultant”), located at [*****] to MarketAxess Corporation, located at 55 Hudson Yards, New York, NY 10001, as well as its subsidiaries, affiliates, and parents (collectively, “MarketAxess” or the “Company”). Consultant previously served as an employee of the Company, with April 8, 2022 (the “Separation Date”) serving as his last day of service as an employee.
1.Term. The term of this Agreement will begin on April 9, 2022 and will continue in effect until February 1, 2023 (the “Term”), unless terminated in advance as follows: (i) at any time upon the mutual written consent of the parties hereto; (ii) upon the Company terminating you for Cause (as defined in the Severance Protection Agreement, dated July 31, 2020, by and between you and the Company); or (iii) with five (5) days’ written notice by either party for any reason. The Term may be extended upon mutual agreement of the parties (email consent shall suffice).
2.Consulting Services. During the Term, the Consultant agrees to perform the Consulting Services, based on its specialized knowledge and expertise, as an independent contractor. The Company shall have no right to, and shall not, control the manner or prescribe the method the Consultant uses to complete the Consulting Services. The Consultant shall be solely responsible for determining the most effective and efficient manner to perform such services, provided that the Consultant agrees to perform the Consulting Services in a competent and professional manner with promptness and diligence in accordance with (i) all applicable United States federal, state, and local laws, rules, and regulations, and (ii) industry standard. The Consultant agrees to provide the Consulting Services as requested by the Company with respect to various matters falling within the Consultant’s expertise, as described in Exhibit A of this Agreement.
3.Consulting Fees. Unless otherwise negotiated and agreed upon by the parties in writing, as payment for the provision of the Consulting Services, the Company will pay to the Consultant $295,000, in equal monthly installments over the course of the Term. The fees the Consultant charges pursuant to this Agreement represent the value of the services provided under the Agreement, and constitute the entire amount to be paid under this Agreement. If the Agreement is terminated by the Company pursuant to Section 1(ii) or by Mr. Themelis pursuant to Section 1 (iii), no additional monthly payments will be due and payable.
4.Consultant’s Equipment and Personnel. The Consultant shall be responsible for providing, solely at the Consultant’s expense, all equipment and supplies needed to perform the Consulting Services, including general office supplies. Notwithstanding the foregoing, the Consultant shall utilize a computer provided by the Company. The Consultant shall be solely responsible for all costs and expenses of doing business, including all wages and other compensation for any employees, agents, or subcontractors the Consultant engages or hires, and all taxes and other business expenses that may be incurred in connection with the Consultant’s
performance of services under this Agreement. The Company will reimburse the consultant for expenses incurred to perform the Consulting Services; provided, however, that the Consultant shall obtain prior written approval (email shall suffice) for any expense by the Company’s Chief Executive Officer.
5.Independent Contractor Relationship; Non-Exclusive Arrangement. Nothing under this Agreement shall be construed as creating any partnership, joint venture or agency between the Company and the Consultant. The Consultant shall act solely as an independent contractor and, as such, is not authorized to bind the Company to third parties. The parties recognize that both the Consultant and the Company are, or may be, engaged in similar agreements with others. Nothing in this Agreement shall prevent or preclude the Consultant from performing services for any other company, customer, or client, including the Company’s competitors, subject to the terms of this agreement.
6.Taxes. The Company shall report all payments made to the Consultant on a calendar year basis using an appropriate IRS Form 1099, if the volume of payments to the Consultant qualify. The Consultant agrees to report all such payments to the appropriate federal, state, and local taxing authorities. Neither federal, state, nor local taxes of any kind shall be withheld or paid by the Company on behalf of the Consultant in connection with payments made by the Company under Section 3 hereof. The Consultant shall be responsible for determining the amounts of and making all applicable tax payments. The Consultant shall indemnify, defend and hold the Company, its officers, directors, agents, employees, contractors and shareholders harmless from and against any and all claims, liabilities, losses, damages, costs and expenses (including, without limitation, attorneys’ fees and expenses) arising out of or relating to the foregoing responsibility of the Consultant.
7.No Benefits. The Consultant is not an employee of the Company and is not entitled to participate in any of the Company’s employee benefit plans, including, but not limited to, any retirement, pension, profit sharing, group insurance, health insurance or similar plans that have been or may be instituted by MarketAxess for the benefit of its employees. Notwithstanding the foregoing, the Consultant may continue to participate in the Company’s employee benefit plans to the extent that such plans allow for the continued participation by the Consultant due to his prior employee status. The Consultant represents and warrants that it maintains in effect all such workers’ compensation, employee liability, comprehensive general liability and any other insurance as may be required by law.
8.Confidential Information and Acceptable Use. During the term of this Agreement, the Consultant shall abide by the confidentiality provisions of the Separation Agreement and General Release, dated April 8, 2022, by and between the Consultant and the Company.
(a)The parties hereby agree that the Company shall own all right, title and interest throughout the world in and to any and all inventions, original works of authorship,
developments, concepts, know-how, improvements, and trade secrets, whether or not patentable or registrable under copyright or similar laws, that Consultant may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice during Consultant’s engagement hereunder, (collectively referred to as “Work Product”). The term “Work Product” does not include any invention that Consultant developed entirely on Consultant’s own time without using the Company’s equipment supplies, facilities, or trade secret information, except
for those inventions that either: (1) relate at the time of conception or development (a) to the Company’s business, or (b) to the Company’s actual or demonstrably anticipated research or development; or (2) result from any work performed by Consultant for the Company.
(b)Consultant hereby assigns to MarketAxess all right, title, and interest in and to any and all Work Product, and agrees to assist the Company, at MarketAxess’ expense, to further evidence, record, and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. In addition to, and not in contravention of any of, the foregoing, Consultant acknowledges that all original works of authorship that are made by Consultant (solely or jointly with others) within the scope of this engagement and that are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 U.S.C. § 101). To the extent allowed by law, this includes all rights of paternity, integrity, disclosure, and withdrawal, and any other rights that may be known or referred to as “moral rights.” To the extent Consultant retains any such moral rights under applicable law, Consultant hereby waives such moral rights and consents to any action consistent with the terms of this Agreement with respect to such moral rights, in each case, to the full extent of such applicable law. Consultant agrees to confirm any such waivers and consents from time to time as requested by MarketAxess.
(c)If, in the course of this engagement, Consultant incorporates into a product or process a Prior Invention owned by Consultant or in which Consultant has an interest, Consultant hereby grants the Company, and the Company shall have a non-exclusive, royalty- free, irrevocable, perpetual, worldwide license (with the right to sublicense) to make, have made, copy, modify, make derivative works of, use, sell and otherwise distribute such Prior Invention as part of or in connection with such product or process. For purposes of this paragraph, the term “Prior Invention” means all discoveries, developments, designs, improvements, inventions, formulae, processes, techniques, computer software, strategy, know how, and data, whether or not patentable or registrable under copyright or similar statues, made or conceived or reduced to practice or learned by Consultant, either alone or jointly with others, during the period of time before Consultant’s engagement with the Company, which directly or indirectly arise or result front tasks assigned by previous employers or from the use of premises or property owned, leased, or contracted for by such previous employers or in the course of other past engagements.
(d)Consultant hereby expressly and irrevocably waives any right or claim to any further compensation of any and all kind, under any applicable law, which Consultant may now have or which Consultant may have in the future, with respect to any Invention(s) which may be assigned to the Company. For purposes of this Agreement, the term “Invention” means all discoveries, developments, designs, improvements, inventions, formulae, processes, techniques, computer software, strategy, know how, and data, whether or not patentable or registrable under copyright or similar statues, made or conceived or reduced to practice or learned by Consultant, either alone or jointly with others, during the period of Consultant’s engagement with the Company, which directly or indirectly arise or result from tasks assigned by the Company or from
the use of premises or property owned, leased, or contracted for by the Company.
(e)If Company or its designee is unable because of Consultant’s mental or physical incapacity or unavailability or for any other reason to secure your signature to
apply for or to pursue any application for any United States or foreign patents, copyright, mask works or other registrations covering inventions or original works of authorship assigned to Company or its designee as above, then Consultant hereby irrevocably designates and appoints Company and its duly authorized officers and agents as Consultant’s agent and attorney in fact, to act for and in Consultant’s behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters patent, copyright or other registrations thereon with the same legal force and effect as if originally executed by Consultant. Consultant hereby waives and irrevocably quitclaims to Company or its designee any and all claims, of any nature whatsoever, which Consultant now or hereafter has for infringement of any and all proprietary rights assigned to Company or such designee.
10.No-Conflicts. The Consultant represents and warrants to the Company that it is not subject to any contractual or other restriction or obligation which is inconsistent with any representation, obligation or assignment of Consultant, any rights of the Company under this Agreement or Consultant’s acceptance of engagement with or performance of the Consulting Services. This provision shall not be construed as preventing the Consultant from engaging in any other business activities, including competing business activities, so long as they do not violate this provision.
12.Waiver. The Consultant waives any claim, right or entitlement to punitive damages, indirect damages or consequential damages in connection with any dispute under this Agreement.
13.Confidentiality of Agreement. Consultant agrees not to disclose the terms or execution of this Agreement, except in the following circumstances:
(a)The employees of Consultant may disclose the terms of this Agreement to their immediate family, so long as such family members agree to be bound by the confidential nature of this Agreement;
(b)Consultant may disclose the terms of this Agreement to (i) its tax advisors so long as such tax advisors agree in writing to be bound by the confidential nature of this Agreement; (ii) taxing authorities if requested by such authorities and so long as they are advised in writing of the confidential nature of this Agreement; or (iii) Consultant’s legal counsel; and
(c)Pursuant to the order of a court or governmental agency of competent jurisdiction, or for purposes of securing enforcement of the terms and conditions of this Agreement.
14.Notices. All notices and other communications hereunder shall be in writing and shall be mailed by first class, registered or certified mail, return receipt requested, or postage prepaid or personally delivered (including delivery by overnight couriers such as Federal Express),
If to the Company: If to the Consultant:
MarketAxess Corporation Nicholas Themelis
55 Hudson Yards [*****]
New York, NY 10001 [*****]
Email: LegalNY@marketaxess.com Email: [*****]
Each party hereto may designate in writing a new address to which any notice or other communication may thereafter be so given, served or sent. Each notice or other communication that shall be mailed in the manner described above, shall be deemed sufficiently given, served, sent or received for all purposes at such time as it is delivered to the addressee or at such time as delivery is refused by the addressee upon presentation.
15.Assignment. This Agreement may not be assigned, transferred or subcontracted, in whole or in part, by the Consultant. However, nothing in this provision shall limit or restrict the Consultant from engaging or hiring others to assist the Consultant in performing the Consulting Services contemplated by this Agreement. The Company may assign this Agreement to any successors or assigns, and Consultant shall be bound to any successor or assign of the Company.
16.Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of law principles.
17.Forum Selection. Consultant irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of this Agreement shall be brought in a United States District Court in the Southern District of New York, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in New York, (ii) consents to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding, and (iii) waives any objection which Consultant may have to the laying of venue of any such suit, action or proceeding in any such court.
18.Service. The Consultant and the Company agree that service of process in any action or proceeding brought: (a) by the Company or any affiliate against the Consultant may be made upon the Consultant by mailing a copy of the same to him/her at the address set forth herein; and (b) by the Consultant against the Company may be made by mailing a copy of the same to it at the address set forth herein.
20.Entire Agreement; Modification; Waiver. This Agreement sets forth the entire understanding and agreement of the parties hereto relating to the retention of the Consultant by the Company, and all other previous or contemporaneous understandings or agreements relating to the retention of the Consultant by the Company, whether written or oral, are hereby superseded. None of the terms or provisions hereof shall be modified or waived, and this Agreement may not be amended or terminated, except by a written instrument signed by the party against which modification, waiver, amendment or termination is to be enforced. No waiver of any one provision shall be construed as a waiver of any other provision and the fact that an obligation is waived for a
period of time shall not be considered to be a continuous waiver.
21.Headings. Headings appearing in this Agreement are for convenience only and do not in any way limit, amplify, modify, or otherwise affect the terms and provisions of this Agreement.
22.Savings Clause. If any provision of this Agreement shall be determined to be invalid, illegal, or unenforceable, either in whole or in part this Agreement shall be deemed amended to delete or modify, as necessary, the offending provisions and to alter the balance of this Agreement in order to render the same valid, legal and enforceable to the fullest extent permissible.
The parties enter into and execute this Agreement on the dates set forth below.
ACCEPTED AND AGREED TO:
| | | |
By: | /s/ Nicholas Themelis | | 4/11/2022 |
| Nicholas Themelis | | Date |
MarketAxess Corporation
| | | |
By: | /s/ Julie Sheffet | | 4/11/2022 |
Name: | Juliet Sheffet | | Date |
Title: | Chief Human Resources Officer | | |
