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EXHIBIT 10.12(b)
SEVERANCE AGREEMENT
This is a legal agreement ("Agreement"), effective as of January 5,
2001, executed by and between Xxxx X. Xxxxxxx, having an address at 00 Xxx Xxxx
Xxxxxx, XXXX, Xxxxxxx, Xxxxxxxx 00000 ("Xx. Xxxxxxx"), and OptiMark, Inc., a
Delaware corporation having its principal place of business at 00 Xxxxxxxx
Xxxxx, 00xx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 ("OptiMark"). Xx. Xxxxxxx and
OptiMark may be referred to herein as the "Parties" and each a "Party."
WHEREAS, Xx. Xxxxxxx is a Director and Chief Scientific Officer of OptiMark;
WHEREAS, Xx. Xxxxxxx has been employed by OptiMark since 1994 and has been
primarily responsible for the creation and development of OptiMark's matching
algorithms;
WHEREAS, Xx. Xxxxxxx will leave the employ of OptiMark as of January 5, 2001;
and
WHEREAS, OptiMark and Xx. Xxxxxxx desire that this Agreement govern the
severance of Xx. Xxxxxxx from OptiMark.
NOW, THEREFORE, for and in consideration of the agreements set forth below and
in that certain "Consulting Agreement" to be executed by the Parties and ORINCON
Corporation, Xx. Xxxxxxx and OptiMark agree as follows:
1. VESTING, EXERCISING, AND REPRICING OF OPTIONS. Upon execution by Xx.
Xxxxxxx and OptiMark of the "Amendment No. 1 to Stock Option
Agreements" attached hereto as Exhibit A:
(a) Xx. Xxxxxxx shall be considered fully vested in any options on
OptiMark Holdings, Inc. stock ("Options") which would have
vested on or before January 5, 2002 but for the termination of
his employment;
(b) Xx. Xxxxxxx shall have until one year from the date that Xx.
Xxxxxxx no longer serves as a member of the Board of Directors
of OptiMark's parent, OptiMark Holdings, Inc., (the "Board")
to exercise any vested Options; and
(c) Xx. Xxxxxxx'x Options shall be re-priced at fifty cents (US$
0.50) per share.
2. CONDITIONS. OptiMark's compliance with, and the validity of, Section 1
of this Agreement is expressly conditioned upon the execution of that
certain (a) "Consulting Agreement" by and between Xx. Xxxxxxx, ORINCON,
Corporation, and OptiMark prior to January 26, 2001 and (b) "Amendment
No. 1 to Stock Option Agreements" attached hereto as Exhibit A
concurrently herewith.
3. BOARD OF DIRECTORS. The Parties agree that Xx. Xxxxxxx shall remain a
member of the Board through the conclusion of his current elected term.
For as long as Xx. Xxxxxxx is a member of the Board, he shall have the
responsibilities and obligations of, and shall receive the benefits of,
such members; provided, however, that Xx. Xxxxxxx shall not be
obligated to attend the January 2001 meeting of the Board.
4. NON-COMPETE. As used below in this paragraph, (a) "OptiMark Technology"
means products and/or services (i) marketed, sold, developed, or
offered by OptiMark prior to January 6, 2001, (ii) that OptiMark has
conceived or has under development prior to January 6, 2001, or (iii)
that are known to Xx. Xxxxxxx prior to January 6, 2001 to be the
subject of active planning at OptiMark; (b) "Competitive Technology"
means products and/or services that are competitive with the OptiMark
Technology; and (c) "Prohibited Entity" means any company, joint
venture, consortium, legal or other entity that directly or indirectly
develops, markets, sells, or offers Competitive Technology if the same
derives more than 25% of its gross revenue from such Competitive
Technology. Xx. Xxxxxxx agrees that, at least until the later of (X)
the date that Xx. Xxxxxxx no longer serves as a member of the Board or
(y) January 6, 2003, he shall not engage, directly or indirectly, in
any activity that relates to Competitive Technology and shall not
become employed by or render
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services on behalf of a Prohibited Entity that relate to Competitive
Technology; provided, however, that Xx. Xxxxxxx may become employed by
or render services on behalf of ORINCON Industries or AM Group, Inc.
("Permitted Entities"), but may not render services on behalf of a
Permitted Entity to a Prohibited Entity that relate to Competitive
Technology. Nothing herein precludes Xx. Xxxxxxx from advertising his
skills and services to the general public.
5. CONTINUING PROPRIETARY RIGHTS/CONFIDENTIALITY AGREEMENT. Xx. Xxxxxxx
agrees that he will continue to abide by the proprietary rights and
confidentiality obligations set forth in Paragraphs 1(a) through (f) of
the Employment Trade Secret and Noncompetition Agreement entered into
as of August 27, 1996 by and between OptiMark and Xx. Xxxxxxx.
6. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto in respect to the subject
matter hereof and supersedes, cancels and annuls any prior or
contemporaneous written or oral agreements, understandings,
commitments, and practices between them respecting the subject matter
hereof, including all prior employment agreements between OptiMark and
Xx. Xxxxxxx, which agreement(s) hereby are rescinded and terminated as
of January 5, 2001 and shall be of no further force or effect;
provided, however, that the one or more stock option agreements to
which Xx. Xxxxxxx and OptiMark are parties relating to either the
Incentive Stock Option Plan or the 1999 Stock Plan, respectively, shall
remain in full force and effect.
7. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York without reference to
the choice of law provisions thereof.
8. MISCELLANEOUS. In the event that OptiMark ceases to do business in the
ordinary course, the provisions of Paragraph 4 shall no longer be in
force or effect.
/s/ Xxxx X. Xxxxxxx Dated: February 28, 2001
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Xxxx X. Xxxxxxx
OPTIMARK, INC.
/s/ Xxxxx X. Xxxxxxxx Dated: February 13, 2001
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Administrative Officer
Date: February 13, 2001
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EXHIBIT A
AMENDMENT NO. 1 TO
STOCK OPTION AGREEMENTS
This Amendment No. 1 (the "Amendment") to each stock option agreement between
Xxxx X. Xxxxxxx, a Director of OptiMark Holdings, Inc., (the "Director") and
OptiMark Holdings, Inc., a corporation organized under the laws of Delaware,
("OptiMark"), effective as of the 5th day of January, 2001, (the Director and
OptiMark hereinafter referred to as the "Parties" and each a "Party").
WHEREAS, the Director is party to one or more stock option agreements
("Agreements") with OptiMark pursuant to either the Incentive Stock Option Plan
or the 1999 Stock Plan respectively, (collectively, hereinafter, the "Plans"),
and
WHEREAS, the Plans are intended to provide incentives to continue as Directors
of OptiMark based on the potential for appreciation of the stock price of
OptiMark to a level in excess of the exercise price of the options granted under
the Plans, and
WHEREAS, the Board of Directors of OptiMark has determined that the current fair
market value of a share of common stock of OptiMark is $0.50 per share, which is
significantly below the price at which all options to all employees have been
granted, and further, such fair market value causes the Plans to lose much of
their intended motivating effect on prospective and current employees, and
WHEREAS, the Board of Directors of OptiMark has determined make available to all
Directors not terminated or otherwise determined by management to be eligible to
receive termination benefits on or prior to the date hereof an opportunity to
have all employee stock options repriced to an exercise price equal to the
current fair market value of OptiMark stock;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:
1. All Agreements between the Director and OptiMark under any Plan, are
hereby amended effective on the date hereof to provide that the
Exercise Price per Share is $0.50 and the Total Exercise Price is
hereby amended to equal the number of shares granted under each such
Agreement multiplied by $0.50 respectively.
2. The Director shall be considered fully vested in any options on
OptiMark stock which would have vested on or before January 5, 2002 and
the Director shall have until one year from the date that Xx. Xxxxxxx
no longer serves as a member of the Board of Directors of OptiMark's
parent, OptiMark Holdings, Inc. to exercise any vested Options. All
other terms and conditions of any Agreements between the Director and
OptiMark, including, without limitation, and for the avoidance of
doubt, the Date of Grant, Vesting Commencement Date, and Total Number
of Shares Granted and Vesting Schedule (except as modified herein)
shall remain unchanged by this Amendment and shall remain in full force
and effect in accordance with their terms.
3. The Director acknowledges and agrees that (a) she or he understands
that one effect of this Amendment may be to cause some or all of the
options previously granted under the Agreements to be treated as
Nonstatutory Stock Options instead of Incentive Stock Options (as those
terms are defined in the Agreements for purposes of the Internal
Revenue Code of 1986, as amended), (b) OptiMark has not provided tax
advice to the Director with regard to the possible change described in
Section 3(a), (c) the Director has had the opportunity to obtain tax
advice at her or his personal expense prior to signing this Amendment,
and (d) the Director hereby releases OptiMark from liability for any
loss, cost or expense to the Director resulting solely from the
treatment of any Incentive Stock Option as a Nonstatutory Stock Option
as a result of this Amendment.
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4. This Amendment shall be governed by and construed in accordance with
the laws of the State of New York without reference to the choice of
law provisions thereof.
Please indicate your agreement with the foregoing by signing in the place
indicated below. This Amendment will not be effective until signed by both
Parties.
DIRECTOR
/s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Date: February 28, 2001
OPTIMARK HOLDINGS, INC.
/s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Administrative Officer
Date: February 13, 2001
