EXHIBIT G
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Execution Copy
INVESTORS' RIGHTS AGREEMENT
THIS INVESTORS' RIGHTS AGREEMENT (this "Agreement"), dated as of this
31st day of December, 2001 (the "Effective Date"), is entered into by and among
OTSH, Inc., a Delaware corporation ("OTSH"), OptiMark Holdings, Inc., a Delaware
corporation ("Holdings"), OptiMark, Inc., a Delaware corporation ("OptiMark"),
SOFTBANK Capital Partners LP, a Delaware limited partnership ("Capital
Partners"), SOFTBANK Capital LP, a Delaware limited partnership ("SOFTBANK
Capital"), and SOFTBANK Capital Advisors Fund LP, a Delaware limited partnership
("Capital Advisors"). For purposes of this Agreement each of Capital Partners,
SOFTBANK Capital, and Capital Advisors may be referred to as a "SOFTBANK Entity"
and, collectively, as the "SOFTBANK Entities").
WHEREAS, in connection with the formation and initial capitalization of
OTSH (the "Formation"), the stockholders of OTSH desire to enter into an
agreement whereby certain stockholders of OTSH will have certain rights with
respect to the right or option to purchase or sell such stockholder's holdings
of OTSH, all as more specifically set forth in, and in accordance with the terms
of, this Agreement; and
WHEREAS, as a result of and in connection with the Formation, each of
the SOFTBANK Entities owns shares of the common stock, par value $0.01 per
share, of OTSH (collectively, the "SOFTBANK Common Stock") pursuant to a
Subscription Agreement, dated as of the date hereof, by and among the SOFTBANK
Entities, OTSH, Holdings and OptiMark (the "Subscription Agreement").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Creation and Continuation of Independent Committee. Holdings agrees that,
if one does not already exist, within thirty (30) days of the Effective Date, it
shall establish an independent committee of its board of directors (the
"Independent Committee"), which Independent Committee shall have the rights and
obligations as set forth herein. In the event that one or more members of the
Independent Committee as constituted thirty (30) days from the Effective Date,
and thereafter for the term of this Agreement, (i) no longer qualify as
disinterested or (ii) resign or are terminated, then the board of directors of
Holdings (the "Holdings Board") shall use reasonable good faith efforts to find
independent third persons to fill such vacancies on the Holdings Board and
appoint such successor independent directors to serve on the Independent
Committee. The Independent Committee shall at all times during the term of this
Agreement have the rights and obligations provided under this Agreement.
2. First Call Right of Holdings on SOFTBANK Common Stock.
2.1 First Call Right. Commencing on October 1, 2002 and continuing
until September 30, 2003 (the "First Call Exercise Period"), the Independent
Committee, in its sole discretion, shall have the right to require each of the
SOFTBANK Entities to sell to Holdings (the "First Call Right") all, but not less
than all, of the SOFTBANK Common Stock in exchange
for an aggregate consideration of (i) US$125,000 and (ii) 16,667 shares of
authorized but unissued shares of the Series E Preferred Stock, par value $0.01
per share, of Holdings (the "Series E Preferred"). In the event of the exercise
and closing of the transactions contemplated by the First Call Right, Holdings
shall pay to each of the SOFTBANK Entities their pro rata share of the foregoing
aggregate consideration based upon the total number of SOFTBANK Common Stock
sold by such entity.
2.2 Exercise. To exercise the First Call Right, Holdings shall deliver
written notice of its intent to so exercise (the "First Call Exercise Notice")
so that it is received by the SOFTBANK Entities during the First Call Exercise
Period. Upon receipt of such exercise notice, Holdings and the SOFTBANK Entities
shall arrange a mutually agreed upon time and place in which to consummate the
transactions contemplated by the First Call Right, which in no event shall be
more than ten (10) days from the date on which the First Call Exercise Notice is
received. In the event that the closing does not occur during the foregoing ten
(10) day period, the provisions of Section 8 shall come into effect.
2.3 Closing Deliveries. At the closing, Holdings shall deliver the
appropriate consideration to each of the SOFTBANK Entities and each of the
SOFTBANK Entities shall tender to Holdings the certificates representing their
SOFTBANK Common Stock, accompanied by stock power(s) duly executed in blank
enabling the transfer of the SOFTBANK Common Stock to Holdings or its designee.
In addition, each of the parties to this Agreement agrees to execute and deliver
any other documents and take such actions that any other party to this Agreement
may reasonably request to evidence such transaction.
3. First Put to Holdings of SOFTBANK Common Stock.
3.1 First Put Right. Commencing on October 1, 2002 and continuing until
September 30, 2003 (the "First Put Exercise Period"), the SOFTBANK Entities,
acting unanimously, shall have the right to require Holdings to purchase from
the SOFTBANK Entities (the "First Put Right") all, but not less than all, of the
SOFTBANK Common Stock in exchange for an aggregate consideration of 16,667
shares of authorized but unissued shares of the Series E Preferred. In the event
of the exercise and closing of the transactions contemplated by the First Put
Right, Holdings shall pay to each of the SOFTBANK Entities their pro rata share
of the Series E Preferred based upon the total number of SOFTBANK Common Stock
sold by such entity.
3.2 Exercise. To exercise the First Put Right, each of the SOFTBANK
Entities shall deliver one collective written notice of their intent to so
exercise (the "First Put Exercise Notice") so that it is received by Holdings
during the First Put Exercise Period. Upon receipt of such exercise notice,
Holdings and the SOFTBANK Entities shall arrange a mutually agreed upon time and
place in which to consummate the transactions contemplated by the First Put
Right, which in no event shall be more than ten (10) days from the date on which
the First Put Exercise Notice is received.
3.3 Closing Deliveries. At the closing, Holdings shall deliver the
appropriate consideration to each of the SOFTBANK Entities and each of the
SOFTBANK Entities shall tender to Holdings the certificates representing their
SOFTBANK Common Stock, accompanied
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by stock power(s) duly executed in blank enabling the transfer of the SOFTBANK
Common Stock to Holdings or its designee. In addition, each of the parties to
this Agreement agrees to execute and deliver any other documents and take such
actions that any other party to this Agreement may reasonably request to
evidence such transaction.
4. Liquidity Event Discretionary Call of Holdings on SOFTBANK Common Stock.
4.1 Discretionary Call. Subject to the rights granted to the
Independent Committee in Section 4.4 hereof, in the event of an OTSH Liquidity
Event (as defined hereinafter) on or before September 30, 2003, then Holdings
shall purchase (the "Discretionary Call") all of the SOFTBANK Common Stock in
exchange for an aggregate consideration of (i) US$125,000 and (ii) 16,667 shares
of authorized but unissued shares of the Series E Preferred. In the event of the
exercise and closing of the transactions contemplated by the Discretionary Call,
Holdings shall pay to each of the SOFTBANK Entities their pro rata share of the
foregoing aggregate consideration based upon the total number of SOFTBANK Common
Stock sold by such entity.
4.2 Notice of Discretionary Call. In the event of an OTSH Liquidity
Event, Holdings shall promptly provide written notice of the same to the
SOFTBANK Entities (the "Liquidity Notice"). If Holdings desires to exercise its
Discretionary Call, it shall include notice of its intention to do so in the
Liquidity Notice. If the Liquidity Notice includes notice of Holdings' decision
to exercise its Discretionary Call, then upon receipt of the Liquidity Notice,
Holdings and the SOFTBANK Entities shall arrange a mutually agreed upon time and
place in which to consummate the transactions contemplated by the Discretionary
Call, which in no event shall be more than ten (10) days from the date on which
the SOFTBANK Entities receive the Liquidity Notice. In the event that the
closing does not occur during the foregoing ten (10) day period, the provisions
of Section 8 shall come into effect.
4.3 Closing Deliveries. At the closing, Holdings shall deliver the
appropriate consideration to each of the SOFTBANK Entities and each of the
SOFTBANK Entities shall tender to Holdings the certificates representing their
SOFTBANK Common Stock, accompanied by stock power(s) duly executed in blank
enabling the transfer of the SOFTBANK Common Stock to Holdings or its designee.
In addition, each of the parties to this Agreement agrees to execute and deliver
any other documents and take such actions that any other party to this Agreement
may reasonably request to evidence such transaction.
4.4 Independent Committee Veto. Notwithstanding anything in this
Agreement to the contrary, in the event that the Independent Committee is in
existence at the time of a Liquidity Event and the Independent Committee, in its
sole discretion, opposes exercising the Discretionary Call, then Holdings shall
not exercise the Discretionary Call and no party shall have any obligations
pursuant to the Discretionary Call.
4.5 OTSH Liquidity Event. An "OTSH Liquidity Event" shall mean any of
the following: (A) OTSH's sale, conveyance or other disposition of all or
substantially all of its assets; (B) the acquisition of OTSH by another entity
by means of merger or consolidation resulting in the exchange of the outstanding
shares of OTSH for securities or other consideration issued, or caused to be
issued, by the acquiring entity or its subsidiary, unless the stockholders of
OTSH immediately prior to the consummation of such transaction hold at least 50%
of the
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voting power of the surviving corporation as a result of such transaction; (C)
the consummation by OTSH of a transaction or series of related transactions
(which in no event shall include the Formation), including the issuance or sale
of voting securities, if the stockholders of OTSH immediately prior to such
transaction (or, in the case of a series of transactions, the first of such
transactions) hold less than 50% of the voting power of OTSH immediately after
the consummation of such transaction (or, in the case of a series of
transactions, the last of such transactions); or (D) any initial underwritten
public offering of OTSH's common stock.
5. Mandatory Call of Holdings on SOFTBANK Common Stock.
5.1 Mandatory Call. In the event that: (i) none of the options set
forth in Sections 2 through 4 of this Agreement have been exercised on or before
September 30, 2003; (ii) the Independent Committee no longer exists; and (iii)
no independent directors sit on the Holdings Board and, after reasonable good
faith efforts by the remaining members of the Holdings Board, no independent
persons qualified to serve on the Holdings Board have been found or, if found,
are not willing to sit on the Holdings Board, then the Holdings Board shall
engage an independent investment banking, accounting or third party valuation
firm to evaluate whether or not it is in the best interests of Holdings that it
purchase the SOFTBANK Common Stock. In the event that such independent
investment banking, accounting or third party valuation firm selected by the
Holdings Board thereafter recommends to the Holdings Board that Holdings
purchase the SOFTBANK Common Stock, then Holdings shall be obligated to purchase
(the "Mandatory Call") on or before December 31, 2003 (the "Mandatory Call
Period") all of the SOFTBANK Common Stock in exchange for an aggregate
consideration of (x) US$125,000 and (y) 16,667 shares of authorized but unissued
shares of the Series E Preferred. In the event of the exercise and closing of
the transactions contemplated by the Mandatory Call, Holdings shall pay to each
of the SOFTBANK Entities their pro rata share of the foregoing aggregate
consideration based upon the total number of SOFTBANK Common Stock sold by such
entity.
5.2 Exercise of Mandatory Call. In accordance with Section 4.2 hereof,
Holdings shall provide the SOFTBANK Entities with the Liquidity Notice. Holdings
shall include in such Liquidity Notice its intention to exercise its Mandatory
Call. Upon receipt of the foregoing Liquidity Notice, Holdings and the SOFTBANK
Entities shall arrange a mutually agreed upon time and place in which to
consummate the transaction contemplated by the Mandatory Call, which in any
event shall occur during the Mandatory Call Period. In the event that the
closing does not occur during the foregoing ten (10) day period, then the
provisions of Section 8 shall come into effect.
5.3 Closing Deliveries. At the closing, Holdings shall deliver the
appropriate consideration to each of the SOFTBANK Entities and each of the
SOFTBANK Entities shall tender to Holdings the certificates representing their
SOFTBANK Common Stock, accompanied by stock power(s) duly executed in blank
enabling the transfer of the SOFTBANK Common Stock to Holdings or its designee.
In addition, each of the parties to this Agreement agrees to execute and deliver
any other documents and take such actions that any other party to this Agreement
may reasonably request to evidence such transaction.
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6. Second Put of SOFTBANK to Holdings of the SOFTBANK Common Stock.
6.1 Second Put Right. In the event that on October 31, 2003 the
SOFTBANK Entities still own all of the SOFTBANK Common Stock and no other puts
or calls granted in this Agreement have been exercised, then commencing on
November 1, 2003 and continuing until November 30, 2003 (the "Second Put
Exercise Period"), the SOFTBANK Entities, acting unanimously, shall have the
right to require Holdings to purchase from the SOFTBANK Entities (the "Second
Put Right") all, but not less than all, of the SOFTBANK Common Stock in exchange
for an aggregate consideration of 16,667 shares of authorized but unissued
shares of the Series E Preferred. In the event of the exercise and closing of
the transactions contemplated by the Second Put Right, Holdings shall pay to
each of the SOFTBANK Entities their pro rata share of the Series E Preferred
based upon the total number of SOFTBANK Common Stock sold by such entity.
6.2 Exercise. To exercise the Second Put Right, each of the SOFTBANK
Entities shall delivery one collective written notice of their intent to so
exercise (the "Second Put Exercise Notice") so that it is received by Holdings
during the Second Put Exercise Period. Upon receipt of such exercise notice,
Holdings and the SOFTBANK Entities shall arrange a mutually agreed upon time and
place in which to consummate the transactions contemplated by the Second Put
Right, which in no event shall be more than ten (10) days from the date on the
Second Put Exercise Notice is received.
6.3 Closing Deliveries. At the closing, Holdings shall deliver the
appropriate consideration to each of the SOFTBANK Entities and each of the
SOFTBANK Entities shall tender to Holdings the certificates representing their
SOFTBANK Common Stock, accompanied by stock power(s) duly executed in blank
enabling the transfer of the SOFTBANK Common Stock to Holdings or its designee.
In addition, each of the parties to this Agreement agrees to execute and deliver
any other documents and take such actions that any other party to this Agreement
may reasonably request to evidence such transaction.
7. Adjustment to Preferred Stock Consideration.
7.1 Adjustment for Stock Splits, Stock Dividends, Recapitalizations. To
the extent any SOFTBANK Entity is to receive Series E Preferred as consideration
hereunder and there occurs a stock dividend, stock split, reverse stock split,
recapitalization or the like after the Effective Date affecting the number of
outstanding shares of Series E Preferred, the number of shares of Series E
Preferred to be paid as consideration shall be equitably adjusted.
7.2 Adjustments for Reorganization, Consolidation, Merger. To the
extent any SOFTBANK Entity is to receive Series E Preferred as consideration
hereunder and after the Effective Date Holdings consolidates with or merges into
another entity or conveys all or substantially all of its assets to another
entity, then, in each such case, the number of shares of Series E Preferred such
SOFTBANK Entity would be entitled to receive shall become the stock or other
securities or property to which such SOFTBANK Entity would have been entitled
upon the consummation of such reorganization, consolidation, merger or
conveyance if such SOFTBANK Entity had ownership of the Series E Preferred
immediately prior thereto.
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8. Remedy for Failure to Tender Shares. In the event that any stockholder
shall be required to sell his shares of stock pursuant to any provision hereof,
and in the further event that such stockholder for any reason does not deliver
the certificate or certificates evidencing such shares to the person who, or
entity which, is (or desires) to purchase such shares, in accordance with the
applicable provisions of this Agreement, the purchaser of such shares may
deposit the purchase price or other consideration for such shares with any bank
doing business within fifty (50) miles of Holdings' principal office, or with
Holdings' certified public accountants, as agent or trustee, or in escrow, for
such stockholder, to be held by such bank or accountant until withdrawn by such
stockholder. Upon such deposit by the purchaser of such consideration and upon
notice to the stockholder who was required to sell, the shares of stock of such
stockholder to be sold pursuant to the applicable provisions of this Agreement
shall at such time be deemed to have been sold, assigned, transferred and
conveyed to such purchaser, such stockholder shall have no further rights
thereto and the applicable corporation shall record such transfer in its stock
transfer book.
9. Legend. Each certificate or other document representing shares of SOFTBANK
Common Stock, in addition to any other legends required, shall bear a legend in
substantially the following form until such time as the shares represented
thereby are no longer subject to the provisions hereof:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
THE TERMS AND CONDITIONS OF A CERTAIN INVESTORS' RIGHTS
AGREEMENT DATED AS OF DECEMBER 31, 2001 AMONG OTSH, INC. AND
CERTAIN HOLDERS OF THE OUTSTANDING CAPITAL STOCK OF SUCH
CORPORATION, AS SUCH AGREEMENT MAY BE AMENDED, RESTATED OR
MODIFIED FROM TIME TO TIME.
10. Representations and Warranties of Holdings. Holdings hereby represents and
warrants to SOFTBANK as follows:
10.1 Organization, Good Standing and Qualification. Holdings is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. Holdings 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 Holdings, to execute and deliver this agreement, to issue and sell the
shares of Series E Preferred and to carry out the provisions of this Agreement.
Holdings has made available to the undersigned true, correct and complete copies
of Holdings' Certificate of Incorporation and Bylaws, each as amended to date
and presently in effect.
10.2 Authorization; Binding Obligations. All corporate action on the
part of Holdings, its officers, directors and stockholders necessary for the due
authorization, execution and delivery of this Agreement, the performance of all
obligations of Holdings hereunder and the authorization, sale, issuance and
delivery of the shares of Series E Preferred pursuant hereto has been taken.
This Agreement, when executed and delivered, will be the valid and binding
obligation of Holdings enforceable against Holdings, in accordance with its
terms, except (i) as
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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 issuance of the shares of Series E Preferred is not and will not
be subject to any preemptive rights or rights of first refusal.
10.3 Series E Preferred. The shares of Series E Preferred, when issued
and delivered in accordance with the terms of this Agreement, will be duly and
validly issued, and when the shares of SOFTBANK Common Stock are delivered as
consideration for the receipt of such shares of Series E Preferred in accordance
with this Agreement, will be fully paid and nonassessable.
10.4 Compliance with Other Instruments and Laws. Holdings 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 Holdings or its properties which, individually or in the aggregate, would
have a material adverse effect on the financial condition or results of
operations, or the assets of Holdings. The execution, delivery, and performance
of and compliance with the Subscription Agreement by OTSH and this Agreement by
Holdings, and the issuance and sale of the SOFTBANK Common Stock pursuant to the
Subscription Agreement, and the shares of Series E Preferred issuable as
consideration for the receipt of the SOFTBANK Common Stock pursuant hereto, will
not, with or without the passage of time or giving of notice, result in any
violation or default by Holdings 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 (ii) of any judgment, decree, order, writ, statute rule or
regulation applicable to Holdings, any or its properties, or result in the
creation of any lien upon any of the properties or assets of Holdings or the
suspension, revocation, impairment, forfeiture or nonrenewal of any permit,
license, authorization or approval applicable to Holdings, its business or
operations or any of its assets or properties which, individually or in the
aggregate, would have a material adverse effect on the financial condition or
results of operations, or the assets of Holdings.
11. Miscellaneous.
11.1 Term. Unless extended or earlier terminated by the parties
according to the provisions of Section 10.7 below, the term of this Agreement
shall commence on the Effective Date and shall expire and terminate on December
31, 2003.
11.2 Specific Performance. The parties hereto agree that the SOFTBANK
Common Stock and the Series E Preferred are unique, that failure to perform the
obligations provided by this Agreement shall result in immediate and irreparable
damage and that specific performance of these obligations may be obtained by a
lawsuit in equity.
11.3 Notices. Any and all notices, requests or other communications
provided for herein shall be given in writing and shall be deemed to have been
duly given: (i) on the date of delivery if personally delivered by hand, (ii)
upon the third day after such notice is (a) deposited
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in the United States mail, if mailed by registered or certified mail, postage
prepaid, return receipt requested, or (b) sent by nationally recognized express
courier, or (iii) by facsimile upon written confirmation (other than automatic
confirmation that is received from the recipient's facsimile machine) of receipt
by the recipient of such notice:
If to Holdings, OptiMark or OTSH:
OptiMark Holdings, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: General Counsel
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
Four Stamford Plaza
000 Xxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
If to any SOFTBANK Entity:
SOFTBANK Capital Partners LLC
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxx Xxxxxx
Facsimile Number: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
11.4 Invalid or Unenforceable Provisions. The invalidity or
unenforceability of any particular provision of this Agreement shall not affect
the other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
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11.5 Assignment; No Third Party Beneficiaries. No party shall be
entitled to assign this Agreement without the prior written consent of the other
parties hereto; provided that the SOFTBANK Entities may assign their rights
(solely in connection with the assumption of their obligations) to any affiliate
of such SOFTBANK Entity, including, without limitation, any other partnership or
other entity of which any direct or indirect subsidiary of such SOFTBANK Entity
or any affiliate thereof is a general partner or has investment discretion, or
any employees of the foregoing subject to applicable securities laws; provided
that any such assignee, as a condition of such assignment, must agree in writing
to be bound by the provisions of this Agreement and any related agreement. The
provisions hereof shall inure to the benefit of, and be binding upon, the
successors and assigns of the parties hereto. This 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 and its respective successors and
permitted assigns.
11.6 Negotiated Document; Gender. This Agreement is a compilation of
the efforts and negotiations of the parties hereto and their respective counsel,
if any. Accordingly, this Agreement should not be interpreted in favor of one
party over another as a matter of drafting. The use of any gender herein shall
be deemed to be or include the other gender and the use of the singular herein
shall be deemed to be or include the plural (and vice versa), wherever
appropriate.
11.7 Changes; Waiver. No change or modification of this Agreement shall
be valid unless the same is in writing and signed by all the parties hereto. No
waiver of any provision of this Agreement shall be valid unless in writing and
signed by the person against whom the Agreement is sought to be enforced. The
failure of any party at any time to insist upon strict performance of any
condition, promise, agreement or understanding set forth herein shall not be
construed as a waiver or relinquishment of the right to insist upon strict
performance of the same or any other condition, promise, agreement or
understanding at a future time.
11.8 Entire Agreement. This Agreement sets forth all of the promises,
agreements, conditions, understandings, warranties and representations among the
parties hereto with respect to the matters set forth herein. This Agreement is,
and is intended by the parties to be, an integration of any and all prior
agreements or understandings, oral or written, with respect to the matters set
forth herein.
11.9 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York, without reference to its
principles of conflicts of laws.
11.10 Headings. The headings, subheadings and other captions in this
Agreement are for convenience and reference only and shall not be used in
interpreting, construing or enforcing any of the provisions of this Agreement.
11.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Investors'
Rights Agreement as of the date first set forth above.
OPTIMARK HOLDINGS, INC. SOFTBANK CAPITAL PARTNERS LLP
By: SOFTBANK Capital Partners LLC,
By: /s/ Xxxxxx X. Xxxxxxx its general partner
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: CEO
By: /s/ Xxxxxx X. Xxxxxx
OPTIMARK, INC. ------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------- SOFTBANK CAPITAL LP
Name: Xxxxxx X. Xxxxxxx
Title: CEO By: SOFTBANK Capital Parnters LLC,
its general partner
OTSH, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------- ------------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: Secretary Title: Administrative Member
SOFTBANK CAPITAL ADVISORS FUND LP
By: SOFTBANK Capital Partners LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
