Exhibit 10.39
AMENDMENT TO EMPLOYEE AGREEMENT
In consideration of the continued employment of Xxxx Xxxxxxx ("Employee")
by OptiMark, Inc. and the purchase of preferred stock pursuant to the Series E
Preferred Stock Purchase Agreement dated as of June 29 2001, by and between
OptiMark Holdings, Inc., the parent of OptiMark, Inc., and the entities listed
on the Schedule of Purchasers thereto, it is hereby agreed that the terms and
conditions of the Employee Agreement executed by Employee on May 15, 2001 shall
be amended to include the terms and conditions set forth on the attached
"Non-Compete Covenant." In no event shall the Employee be entitled to severance
under both the Employee's offer letter and the attached Non-Compete Covenant.
Other than as expressly set forth herein, no term or condition set forth in the
Employee Agreement is amended, modified or affected by this amendment.
This amendment shall be effective as of July 19, 2001.
OPTIMARK, INC. EMPLOYEE
/s/ Xxxx X. Xxxxx
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By: /s/ Xxxx Xxxxxxx
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Name: Xxxx X. Xxxxx Xxxx Xxxxxxx
Title: Executive Vice President
NON-COMPETE COVENANT
1. NONCOMPETITION, ETC.
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(a) PRIOR TO EMPLOYEE TERMINATION DATE. Employee agrees that
until the date that Employee ceases to be an employee of OptiMark, Inc. (the
"Company") in any capacity whatsoever (such date, the "Employee Termination
Date"), Employee shall devote substantially all of his working time to the
business and affairs of the Company, its subsidiaries and its parent (together,
"OptiMark"). In addition, prior to the Employment Termination Date, neither
Employee nor any entity controlled, directly or indirectly, by Employee (each,
an "Employee Controlled Entity"), shall engage in any Competitive Activity (as
hereinafter defined).
(b) POST-EMPLOYEE TERMINATION DATE. Employee agrees that, for a
period of 12 months after the Employee Termination Date, neither Employee nor
any Employee Controlled Entity, shall engage in any Competitive Activity.
(c) COMPETITIVE ACTIVITY. For purposes of this Section 1,
"Competitive Activity" shall mean employment by, consulting or contracting for,
or soliciting business for, any of the following:
(i) any Person who, as of the Employee Termination Date, (a)
has executed either a binding agreement or a non-binding term sheet or letter of
intent with OPTIMARK, or (b) is engaged in negotiations with OPTIMARK, for
OPTIMARK to (x) license its software to such Person, or (y) design, develop, or
maintain software for the building and operating of electronic markets or
exchanges (a "Client");
(ii) any Person who (1) is not a Client as of the Employee
Termination date but (2) has been a Client within six (6) months of the Employee
Termination Date (a "Former Client");
(iii) the financial services software applications areas,
divisions or groups of OM Technology Inc., ISM Information Systems Management
Corporation, eSpeed, Inc., Perfect Commerce, Inc., Commerce One, Inc., Ariba,
Inc., VerticalNet, Inc. or i2 Technologies, Inc. (a "Direct Competitor") or the
financial services software applications areas, divisions or groups of any
Person controlled by, or under common control with, a Direct Competitor, or any
successor to or acquirer of all or substantially all of the assets of a Direct
Competitor; provided, however, that "Direct Competitor" shall also include any
area, division or group of any of the foregoing companies which is responsible
for, or performs or provides, any product or service that is substantially
similar to any product or service provided by OptiMark from which OptiMark has
generated 20% or more of OptiMark's consolidated revenue in any quarter within
the twelve months prior to the Employee Termination Date; and
(iv) any "Competitive Exchange", defined as any third-Person
operating an electronic market or exchange where buyers and sellers may submit
orders for substantially the same products or services as an electronic market
or exchange (x) developed, designed, created or operated by OPTIMARK, or a
Person that is controlled by, or under common control with, OPTIMARK or (y) from
which OPTIMARK generates revenue based on transactions consummated in, or
subscriptions to, the electronic market or exchange..
A "Person" means any natural person, sole proprietorship,
partnership, limited liability company, joint venture, trust, unincorporated
organization, association, corporation, governmental authority, or any other
entity.
(d) TERMINATION OTHER THAN FOR CAUSE. The noncompetition
covenant set forth in Section 1(b) above shall not apply where Employee's
employment is terminated by the Company without Cause (as hereinafter defined)
or where the Employee has been Constructively Terminated (as hereinafter
defined), unless, (i) on or before 10 Business Days following the Employee
Termination Date, the board of directors of the Company or OptiMark Holdings,
Inc. directs OPTIMARK to pay by wire transfer of immediately available funds to
an account specified by Employee an amount equal to (A) twelve times (12x)
Employee's gross monthly salary for the last complete calendar month immediately
preceding the Employee Termination Date, plus (B) any cash bonus received by
Employee during such period, and (ii) the Company agrees in writing to maintain,
at the Company's expense for the twelve (12) months following the Employee
Termination Date, health and medical insurance coverage to which Employee was
entitled as of the Employee Termination Date. A "Business Day" means any day
other than (i) a Saturday, Sunday or legal holiday, or (ii) a day on which
commercial banks in New York City are authorized or required by law or executive
order to close. "Cause" means (i) gross negligence (but not ordinary
negligence), intentional misconduct, uncured breach of any written employment
agreement with the Company, or failure to comply with any policy, guide or
standard of OPTIMARK applicable to Employee or any legally permitted directives
of the Company's Chief Executive Officer or Board of Directors of the Company;
provided, however, that such policy, guide, or standard of OPTIMARK, or any
legally permitted directives are applied consistently to all employees of the
Company who are of the substantially similar rank or level of responsibility as
Employee, or (ii) a plea of guilty or nolo contendere to, or conviction of, a
felony or crime involving moral turpitude. "Constructively Terminated" means:
(i) the continued material reduction by OptiMark of the scope of Employee's
duties, or (ii) the continued assignment to Employee of any duties materially
inconsistent with the level of Employee's position with OptiMark; provided that
neither of the foregoing events shall be deemed to result in Employee being
Constructively Terminated if Employee consents to such events or if such events
are the result of actions of OptiMark or its board of directors that are
applicable to all officers of OptiMark.
(e) TERRITORY. Unless otherwise specified in this Section 1,
Employee acknowledges that the business conducted by the Company is national in
nature and, accordingly, agrees that the Competition Restriction shall apply to
Employee in the United States for the applicable periods set forth in Sections
1(a) and 1(b).
(f) REASONABLE AND NECESSARY RESTRICTIONS. Employee acknowledges
that the restrictions, prohibitions and other provisions of this Section 1 are
reasonable, fair and equitable in scope, terms and duration, are necessary to
protect the legitimate business interests of the Company and are a material
inducement to the SOFTBANK Investment. The "SOFTBANK Investment" means the
purchase of preferred stock pursuant to the Series E Preferred Stock Purchase
Agreement dated as of June 29, 2001, by and between the Company and the entities
listed on the Schedule of Purchasers thereto.
