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EXHIBIT 10.17
STOCK OPTION AGREEMENT
THIS AGREEMENT is made this 1st day of November, 1998, by and between
OptiMark Technologies, Inc., a Delaware corporation (hereinafter referred to as
"Employer"), and Xxxxxxx X. Xxxxx (hereinafter referred to as "Employee").
WHEREAS, Employee is a valued and trusted employee of Employer, or of a
subsidiary of Employer, and Employer considers it desirable and in its best
interest that Employee be given an inducement to acquire a proprietary interest
in Employer, as an added incentive to advance the interests of Employer, by
giving Employee an option to purchase common stock of Employer in accordance
with the Incentive Stock Option Plan (hereinafter referred to as the "Plan")
adopted by the Board of Directors of Employer's predecessor on July 15, 1994,
and approved by the shareholders of Employer's predecessor as of July 15, 1994,
and adopted by Employer as its own plan on July 29, 1996;
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN EMPLOYER AND
EMPLOYEE AS FOLLOWS:
1. OPTION GRANTED. Employer hereby and herein grants Employee an option
to purchase 200,000 shares of OptiMark Technologies, Inc., common stock, subject
to the conditions contained herein. Subject to Section 5 herein, the option
shall have a term of ten (10) years, and notwithstanding anything in this
Agreement to the contrary, no option granted herein shall be exercisable at any
time after ten (10) years have passed from the date this option is granted.
2. EXERCISE PRICE OF OPTION. Employee shall be entitled to exercise
the option granted herein at a purchase price of ten dollars ($10.00) per share,
said price being the fair market value of a share of Employer's common stock on
the date the option is granted.
3. EXERCISE OF OPTION. Subject to the other conditions contained in
this Agreement, exercise of the option granted herein shall be made by the
giving of written notice to Employer by Employee. Such written notice shall be
deemed sufficient for purposes of this Agreement only if such notice is
delivered by registered or certified mail to Employer at its principal office,
states the number of shares with respect to which the option is being exercised,
and further states the date, not more than ninety (90) days after the date of
such notice, on which the shares of stock shall be taken up and payment therefor
shall be made. If payment is not received within the ninety (90) days after the
date of such notice, the written notice shall be deemed null and void.
The payment for shares of stock taken up pursuant to an exercise of the
option granted herein shall be made in cash or certified check at the principal
office of Employer or at any office of a transfer agent appointed for the shares
of the stock of Employer. Upon an exercise of the option granted herein in
compliance with the provisions of this paragraph, and upon the receipt by
Employer or its transfer agent of payment for the stock so taken up, Employer
shall deliver or cause to be delivered to Employee so exercising his/her option
a certificate or certificates for the number of shares of stock with respect to
which the option is so exercised and payment is so made.
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4. TRANSFER OF OPTION. The option granted herein shall not be
transferred by Employee, other than by will or the laws of descent and
distribution, and shall be exercisable, during his/her lifetime, only by
Employee. Notwithstanding the above, in the event of Employee's death, the
representative of Employee's estate, or the person who received by bequest or
inheritance the right to exercise such option, may exercise the option to the
same extent as if the option were being exercised by the decedent, and subject
to the same conditions as the decedent, except as otherwise noted herein.
5. TERMINATION OF EMPLOYMENT. Upon termination of Employee's
employment by the Employer:
(a) by reason of Employee's disability (within the meaning of
Section 22(e)(3) of the Internal Revenue Code) while employed by Employer, the
option, to the extent not previously exercised or otherwise expired, shall be
exercisable at any time within one (1) year from the date Employee's employment
so terminates;
(b) by reason of Employee's death while employed by Employer, the
option, to the extent not previously exercised or otherwise expired, shall be
exercisable at any time within six (6) calendar months from the date of
Employee's death;
(c) by Employee without Good Reason (as such term is defined in
the employment agreement between the Employer and the Employee effective as of
November 1, 1998 (the "Employment Agreement")), the option, to the extent not
previously exercised or otherwise expired, shall be exercisable at any time
within ninety (90) days from the date employment so terminates;
(d) by reason of termination by Employer for Cause (as defined in
the Employment Agreement), the option, to the extent not previously exercised or
otherwise expired, shall be exercisable at any time within thirty (30) days from
the date employment so terminates;
(e) by reason of termination by Employer other than Cause or by
Employee for Good Reason (as such terms are defined in the Employment
Agreement), the option, to the extent not previously exercised or otherwise
expired, shall be exercised at any time within ninety (90) days following the
date employment so terminates.
6. OWNERSHIP OF STOCK. Employee will not be deemed to be a holder of
any shares as to which this option is granted, and shall have none of the rights
of a shareholder as to any of the shares as to which this option is granted,
until payment of the option price by him/her and delivery of a stock certificate
to him/her for such shares, and then shall be deemed a holder of shares with the
corresponding shareholder rights only as to the number of shares for which
Employee has paid and a stock certificate delivered. Except as otherwise
provided in this Agreement, no adjustment shall be made for dividends or other
rights for which the record date is prior to the date such stock certificate is
delivered.
All shares taken up by Employee pursuant to any exercise of the
option granted herein shall be registered in the name of Employee or in the name
of Employee jointly with his/her
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spouse. Nothing contained herein, however, shall be construed to prohibit any
shares taken up by Employee pursuant to any exercise of the option granted
herein from being registered in the name of a trust pursuant to a qualified
401(k) plan or qualified family, living or similar trust wherein the beneficiary
of such plan or trust is Employee or Employee and his/her heirs.
Employee hereby agrees that, if so requested by Employer or
any representative of the underwriters (the "Managing Underwriter") in
connection with any registration of the offering of any securities of Employer
under the Securities Act of 1933, as amended (the "Securities Act"), Employee
shall not sell or otherwise transfer any option shares or any securities of
Employer during the 180-day period (or such other period as may be requested in
writing by the Managing Underwriter and agreed to in writing by Employer) (the
"Market Standoff Period") following the effective date of a registration
statement of Employer filed under the Securities Act. Such restriction shall
apply only on the first registration statement of Employer to become effective
under the Securities Act that includes securities to be sold on behalf of
Employer to the public in an underwritten public offering under the Securities
Act. Employer may impose stop-transfer instructions with respect to securities
subject to the foregoing restrictions until the end of such Market Standoff
Period.
7. LIMITATION ON EXERCISE. The option granted herein may not be
exercised if the issuance of shares of common stock of Employer upon such
exercise would constitute a violation of any applicable Federal or State
securities or other laws. Employee, as a condition to his/her exercise of this
option, shall represent to Employer that the shares of common stock of Employer
that Employee acquires under this option are being acquired by and for Employee
for investment and not with a present view to distribution or resale, unless
counsel for Employer is of the opinion that such a representation is not
required under the Securities Act of 1933 or any other applicable law,
regulation or rule of any governmental agency or private regulating body.
Furthermore, the option granted herein shall be subject to the requirement that
if at any time Employer shall determine, in its sole discretion, that the
listing, registration or qualification of the shares covered thereby under any
State or Federal law, or the consent of or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in connection
with, the granting of such option, or the issue or purchase thereunder, such
option shall not be exercised in whole or in part unless and until such listing,
registration, qualification, consent, or approval shall have been effected or
obtained free of any condition not acceptable to Employer.
8. EFFECTIVE DATE OF PLAN. The Plan became effective in accordance
with Section 15 therein.
9. ACKNOWLEDGEMENT. Employee acknowledges receipt of a copy of the
Plan, a copy of which is annexed hereto, and represents that he/she is familiar
with the terms and provisions thereof. The Plan is incorporated herein by
reference. Employee hereby accepts this option subject to all the terms and
provisions of the Plan. Employee hereby agrees to accept, as binding, conclusive
and final, all decisions and interpretations of the Board of Directors of
Employer upon any question arising under the Plan. The Plan, this agreement and
the Employment Agreement constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Employer and Employee with respect to the
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subject matter hereof, and may not be modified adversely to the Employee's
interest except by means of a writing signed by the Employer and Employee. As a
condition to the issuance of shares of common stock of Employer under this
option, Employee authorizes Employer to withhold, in accordance with applicable
law, from any regular cash compensation payable to him, any taxes required to be
withheld by Employer under Federal, State or local law as a result of his
exercise of this option. This agreement is governed by the internal substantive
laws, but not the choice of law rules, of Colorado.
Signed and sealed on the date first above written with intent to be
legally bound.
EMPLOYER
OPTIMARK TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Chairman
EMPLOYEE
By: /s/ Xxxxxxx X. Xxxxx
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