EXHIBIT F
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Execution Copy
SUBSCRIPTION AGREEMENT
December 31, 2001
Board of Directors
OTSH, Inc.
Gentlemen:
SOFTBANK Capital Partners LP, SOFTBANK Capital LP and SOFTBANK Capital
Advisors Fund LP (collectively, "SOFTBANK"), severally and not jointly, hereby
subscribe for Fifty (50) shares, Forty Nine (49) shares and One (1) share,
respectively, of Common Stock, par value $.01 per share (the "Common Stock"), of
OTSH, INC., a Delaware corporation (the "Corporation") for an aggregate purchase
price of $250,000.
Upon SOFTBANK's delivery to the Corporation of a federal reference
number evidencing the wire transfer of immediately available funds equal to the
aggregate purchase price to the Xxxxxxxx & Xxxxxxxx REMCA #3 Account (Fleet Bank
Acct. # 0065596087 00101) for the benefit of the Corporation, then each of the
Corporation, OptiMark Holdings, Inc. and OptiMark, Inc. agree to release and
forever discharge SOFTBANK from any and all claims, charges, complaints, liens,
demands, causes of action, obligations, damages and liabilities against SOFTBANK
related to the failure of the Corporation to receive any portion of the
aggregate purchase price.
I. REPRESENTATIONS AND WARRANTIES OF SOFTBANK.
Each of the undersigned hereby represents and agrees that it is
subscribing for these shares of stock for investment purposes, for its own
account and risk and not with a view to any sale, division or other distribution
thereof within the meaning of the Securities Act of 1933 as amended, nor with
any present intention to distributing or selling such shares.
II. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION.
The Corporation hereby represents and warrants to each of the
undersigned as follows:
A. ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Corporation has all requisite corporate power and
authority to own and operate its properties and assets, to carry on its business
as currently conducted and as currently proposed to be conducted and, in the
case of the Corporation, to execute and deliver this agreement, to issue and
sell the shares and to carry out the provisions of this agreement.
The Corporation does not own any equity securities of any other corporation,
limited partnership or similar entity. The Corporation is not a participant in
any joint venture, partnership or similar arrangement. The Corporation has made
available to SOFTBANK true, correct and complete copies of the Corporation's
Certificate of Incorporation and Bylaws, each as amended to date and presently
in effect.
B. CAPITALIZATION; VOTING RIGHTS. The authorized capital stock of the
Corporation, consists of (i) 1,000 shares of the Common Stock, and (ii) 2,000
shares of preferred stock, par value $.01 per share. Except as set forth in that
certain Investors' Rights Agreement, dated as of the date hereof, by and among
the Corporation, SOFTBANK, OptiMark Holdings, Inc. and OptiMark, Inc., there are
no outstanding options, warrants, puts, calls, rights (including conversion or
preemptive rights and rights of first refusal), proxy or stockholder agreements,
or agreements of any kind for the purchase or acquisition from, sale to or
exchange, with the Corporation of any shares of any class or series of capital
stock of the Corporation or other restrictions on the incidents of ownership or
transfer of any such shares of capital stock created by statute (other than
Federal and state securities laws), the charter documents of the Corporation or
any agreement to which the Corporation is a party, by which any of them is bound
or of which any of them has knowledge. The shares have been duly authorized and,
when issued in compliance with the provisions of this agreement, will be validly
issued (including, without limitation, issued in compliance with applicable
state and federal securities laws), fully paid and nonassessable and will be
free of any liens; provided, however, that the shares may be subject to
restrictions on transfer under state and/or federal securities laws as set forth
herein or as otherwise required by such laws at the time transfer is proposed.
C. AUTHORIZATION; BINDING OBLIGATIONS. All corporate action on the part of
the Corporation, its officers, directors and stockholders necessary for the due
authorization, execution and delivery of this agreement, the performance of all
obligations of the Corporation hereunder and the authorization, sale, issuance
and delivery of the shares pursuant hereto has been taken. This agreement, when
executed and delivered, will be the valid and binding obligation of the
Corporation enforceable against the Corporation, in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting enforcement of
creditors' rights; and (ii) as limited by general principles of equity that
restrict the availability of specific performance, injunctive relief or other
equitable remedies. The sale of the shares is not and will not be subject to any
preemptive rights or rights of first refusal.
D. COMPLIANCE WITH OTHER INSTRUMENTS AND LAWS; CONSENTS; PERMITS. The
Corporation is not in violation or default of any term of its Certificate of
Incorporation or Bylaws, or of any provision of any mortgage, indenture,
contract, agreement, instrument or contract to which it is party or by which it
or any of its property is bound or of any judgment, decree, order, writ,
statute, rule or regulation applicable to the Corporation or its properties
which, individually or in the aggregate, would have a material adverse effect on
the financial condition, results of operations, or assets of the Corporation.
The execution, delivery, and performance of and compliance with this agreement
and the issuance and sale of the shares pursuant hereto, will not, with or
without the passage of time or giving of notice, result in any violation or
default by the Corporation of any term of its Certificate of Incorporation or
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Bylaws, or of any provision of any mortgage, indenture, contract, agreement,
instrument or contract to which it is party or by which it or any of its
property is bound or of any judgment, decree, order, writ, statute rule or
regulation applicable to the Corporation, any or its properties, or result in
the creation of any lien upon any of the properties or assets of the Corporation
or the suspension, revocation, impairment, forfeiture or nonrenewal of any
permit, license, authorization or approval applicable to the Corporation, its
business or operations or any of its assets or properties. No orders,
permissions, consents, approvals or authorizations of any governmental entity is
required to be obtained by the Corporation and no application, notification,
request, registration or declaration is required to be filed with any
governmental entity by the Corporation in connection with the execution and
delivery of this agreement and the offer, issuance, sale and delivery of the
shares. The Corporation has all franchises, permits, licenses and any similar
authority necessary for the conduct of its business as now being conducted by
it, the lack of which, individually or in the aggregate, could reasonably be
expected to have a material adverse effect and can obtain, without undue burden
or expense, any similar authority necessary for the conduct of its business as
currently proposed to be conducted.
Upon receipt of the aforesaid consideration and the acceptance of this
subscription by the Corporation as so indicated below, the Corporation shall
deliver one or more certificates representing, in the aggregate, the shares to
be issued or sold by the Corporation as set forth above to the undersigned.
This Subscription Agreement and the rights contained herein shall not
run to the benefit of or be enforceable by any third party other than a party
signatory hereto.
[SIGNATURE PAGE FOLLOWS]
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Very truly yours,
SOFTBANK CAPITAL PARTNERS LP
By: SOFTBANK Capital Partners LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
SOFTBANK CAPITAL LP
By: SOFTBANK Capital Partners LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
SOFTBANK CAPITAL ADVISORS FUND LP
By: SOFTBANK Capital Partners LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
SOFTBANK Subscription Agreement
Subscription Accepted:
OTSH, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Secretary
Dated: December 31, 2001
ACKNOWLEDGED and AGREED
this 31st day of December, 2001
OPTIMARK HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: CEO
OPTIMARK, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: CEO
SOFTBANK Subscription Agreement
