Exhibit 4.1
AMENDMENT NO. 1
TO THE
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO THE AMENDED AND RESTATED INVESTORS' RIGHTS
AGREEMENT (this "Amendment No. 1 to the Amended and Restated Investors' Rights
Agreement") is made as of the 6th day of February, 2003, by and among OPTIMARK
INNOVATIONS INC., f/k/a OTSH, Inc., a Delaware corporation (the "Company"),
OPTIMARK HOLDINGS, INC., a Delaware corporation ("Holdings"), OPTIMARK, INC., a
Delaware corporation ("OptiMark"), ▇▇▇▇▇▇ ▇▇▇▇▇▇ JURVETSON EPLANET VENTURES,
L.P., a Cayman Islands limited partnership ("ePlanet Ventures"), ▇▇▇▇▇▇ ▇▇▇▇▇▇
JURVETSON EPLANET PARTNERS FUND, LLC, a California limited liability company
("ePlanet Partners") and ▇▇▇▇▇▇ ▇▇▇▇▇▇ JURVETSON EPLANET VENTURES GmBH & CO.
KG., a German partnership ("ePlanet KG"), 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: (i) each of Capital Partners, SOFTBANK Capital, and Capital
Advisors may be referred to as a "SOFTBANK Entity" and, collectively, as the
"SOFTBANK Entities;" (ii) each of ePlanet Ventures ePlanet Partners and ePlanet
KG may be referred to as an "ePlanet Entity" and, collectively, as the "ePlanet
Entities;" and (iii) the Company, Holdings, OptiMark, each ePlanet Entity and
each SOFTBANK Entity are sometimes hereinafter referred to individually as a
"Party" and collectively as the "Parties."
WHEREAS, the Parties are party to that certain Amended and Restated
Investors' Rights Agreement, dated as of the 3rd day of May, 2002 (the "Amended
and Restated Investors' Rights Agreement");
WHEREAS, pursuant to that certain Loan Agreement, dated as of February
6, 2003, by and among the SOFTBANK Entities, Holdings, OptiMark and the Company
(solely with respect to Section 3.5 thereof) (the "Loan Agreement"), the
SOFTBANK Entities have agreed to extend credit to Holdings in the principal
amount of $940,000 (the "Loan"); and
WHEREAS, in accordance with the terms of Section 3.5 of the Loan
Agreement, upon maturity of the Loan, the SOFTBANK Entities may elect, in their
sole discretion, to have a portion of the Loan repaid by decreasing the number
of shares of the Company's Common Stock held by the SOFTBANK Entities that
Holdings has the right or is required to reacquire pursuant to Sections 5.2, 5.4
and 5.5 of the Amended and Restated Investors' Rights Agreement (the "Revised
Call Rights"); and
WHEREAS, in connection with the Revised Call Rights, the Parties have
agreed to enter into this Amendment No. 1 to the Amended and Restated Investors'
Rights Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Parties agree to amend the Amended
and Restated Investors' Rights Agreement as follows:
1. Defined Terms. Except as defined herein, capitalized terms used
herein shall have the meanings ascribed to such terms in the Amended and
Restated Investors' Rights Agreement.
2. Amendment of Section 5.2(a) of the Amended and Restated Investors'
Rights Agreement. The first sentence of Section 5.2(a) of the Amended and
Restated Investors' Rights Agreement is hereby amended by deleting it in its
entirety and replacing it with the following:
"(a) 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 Common Stock held
by the SOFTBANK Entities 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; provided, however, that in accordance with Section
3.5(a)(ii) of that certain Loan Agreement, by and among the
SOFTBANK Entities, Holdings, OptiMark and the Company
(solely with respect to Section 3.5 thereof), dated as of
February 6, 2003 (the "Loan Agreement"), pursuant to which
the SOFTBANK Entities have agreed to extend credit to
Holdings in the principal amount of $940,000 (the "Loan"),
the SOFTBANK Entities may elect, in their sole discretion,
to have the principal amount of the Loan re-paid by reducing
the number of shares of Common Stock held by the SOFTBANK
Entities that Holdings has the right to reacquire pursuant
to the First Call Right by twenty (20) shares (as adjusted
pursuant to Sections 3.5(b) and (d) of the Loan Agreement)."
3. Amendment of Section 5.4(a) of the Amended and Restated Investors'
Rights Agreement. The first sentence of Section 5.4(a) of the Amended and
Restated Investors' Rights Agreement is hereby amended by deleting it in its
entirety and replacing it with the following:
"(a) Discretionary Call. Subject to the rights granted to
the Independent Committee in Section 5.4(d) hereof, in the
event of a Company Liquidity Event on or before September
30, 2003, then Holdings shall purchase (the
"Discretionary Call") all of the shares of Common Stock held
by the SOFTBANK Entities 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; provided, however, that in accordance with Section
3.5(a)(ii) of the Loan Agreement the SOFTBANK Entities may
elect, in their sole discretion, to have the principal
amount of the Loan re-paid by reducing the number of shares
of Common Stock held by the SOFTBANK Entities that Holdings
is required to reacquire pursuant to the Discretionary Call
by twenty (20) shares (as adjusted pursuant to Sections
3.5(b) and (d) of the Loan Agreement)."
4. Amendment of Section 5.5(a) of the Amended and Restated Investors'
Rights Agreement. The first two sentences of Section 5.5(a) of the Amended and
Restated Investors' Rights Agreement are hereby amended by deleting them in
their entirety and replacing them with the following:
"(a) Mandatory Call. In the event that: (i) none of the
options set forth in Sections 5.2 through 5.4 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 shares of Common Stock held by
the SOFTBANK Entities. 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 shares of Common
Stock held by the SOFTBANK Entities, then Holdings shall be
obligated to purchase (the "Mandatory Call") on or before
December 31, 2003 (the "Mandatory Call Period") all of the
shares of Common Stock held by the SOFTBANK Entities 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; provided, however, that in
accordance with Section 3.5(a)(ii) of the Loan Agreement the
SOFTBANK Entities may elect, in their sole discretion, to
have the principal amount of the Loan re-paid by reducing
the
number of shares of Common Stock held by the SOFTBANK
Entities that Holdings is required to reacquire pursuant to
the Mandatory Call by twenty (20) shares (as adjusted
pursuant to Sections 3.5(b) and (d) of the Loan Agreement)."
5. Continuing Effect of the Amended and Restated Investors' Rights
Agreement. This Amendment No. 1 to the Amended and Restated Investors' Rights
Agreement shall not constitute a waiver, amendment or modification of any other
provision of the Amended and Restated Investors' Rights Agreement not expressly
referred to herein. Except as expressly amended or modified herein, the
provisions of the Amended and Restated Investors' Rights Agreement are and shall
remain in full force and effect. From and after the date hereof, all references
made in the Amended and Restated Investors' Rights Agreement to "the Agreement"
and "this Agreement" shall be a reference to the Amended and Restated Investors'
Rights Agreement as amended by this Amendment No. 1 to the Amended and Restated
Investors' Rights Agreement.
6. Governing Law. This Amendment No. 1 to the Amended and Restated
Investors' Rights Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the principles of
conflicts of law thereof.
7. Valid and Binding. This Amendment No. 1 to the Amended and Restated
Investors' Rights Agreement shall be binding upon and inure to the benefit of
each of the Parties hereto and their respective successors and assigns.
8. Counterparts. This Amendment No. 1 to the Amended and Restated
Investors' Rights Agreement may be executed in any number of counterparts and by
the Parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
[signature page follows]
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this Amendment No. 1 to the Amended and Restated Investors' Rights
Agreement on the date first written above.
OPTIMARK INNOVATIONS INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
OPTIMARK, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CEO
OPTIMARK HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CEO
SOFTBANK CAPITAL PARTNERS LP
By: SOFTBANK Capital Partners LLC,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Admin Member
SOFTBANK CAPITAL LP
By: SOFTBANK Capital Partners LLC,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Admin Member
SOFTBANK CAPITAL ADVISORS FUND LP
By: SOFTBANK Capital Partners LLC,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Admin Member
▇▇▇▇▇▇-▇▇▇▇▇▇ JURVETSON EPLANET VENTURES, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Jurvetson ePlanet Partners,
\ Ltd.,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: Francix ▇. ▇▇▇▇
Title: ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ JURVETSON EPLANET
PARTNERS FUND, LLC
By: /s/ Francix ▇. ▇▇▇▇
------------------------------------
Name: Francix ▇. ▇▇▇▇
Title: ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ JURVETSON EPLANET VENTURES
GMBH & CO. KG
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Jurvetson ePlanet SLP
Germany, Ltd., its special limited partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: VP
