Exhibit 10.1
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LOAN AGREEMENT
This LOAN AGREEMENT ("Loan Agreement") is entered into as of the 6th day of
February, 2003 (the "Effective Date") by OptiMark Holdings, Inc., a Delaware
corporation ("OptiMark"), SOFTBANK Capital Partners LP, SOFTBANK Capital
Advisors Fund LP and SOFTBANK Capital LP, each a Delaware limited partnership
(together "Softbank") and, solely with respect to Section 3.5 below, OptiMark,
Inc., a Delaware corporation and wholly-owned subsidiary of OptiMark ("OptiMark,
Inc.").
INTRODUCTION
WHEREAS, OptiMark has requested that Softbank extend OptiMark credit in the
principal amount of $940,000 for the purposes set forth in Section 7.1.1 hereof
and whereas Softbank is willing to extend such credit on the terms and
conditions contained in this Loan Agreement.
Now, therefore, in consideration of the mutual promises contained herein
and other good and valuable consideration, receipt of which is hereby
acknowledged, and in order to induce Softbank to extend such credit, OptiMark
and Softbank hereby agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1 Definitions and Exhibits. Terms defined above or in the
text of this Loan Agreement shall have the meanings set forth herein. Other
capitalized terms shall have the meaning set forth in the Definitions Addendum,
which is attached and incorporated herein. All exhibits to this Loan Agreement
are also incorporated herein.
ARTICLE 2.
THE COMMITMENT
Section 2.1 Term Commitment. Subject to the terms and conditions of
this Loan Agreement, Softbank agrees to make a loan on the Closing Date to
OptiMark in the principal amount of $940,000 (the "Principal Amount"). The Loan
shall bear interest as provided in this Loan Agreement. The Loan shall be
evidenced by the Notes, in the form set forth on Exhibit A attached hereto, and
this Loan Agreement.
Subject to the conditions set forth in this Loan Agreement, Softbank shall
disburse the Loan amount, less (i) reimbursement to Softbank of fees and
disbursements of Softbank's counsel in connection with this Loan Agreement
including, without limitation, estimated fees in connection with the filing of
Financing Statements (Form UCC-1) and other instruments advisable to perfect the
Liens granted by the Security Agreement and Guarantees (in an amount specified
in writing to OptiMark at least one (1) Business Day prior to the Closing Date);
(ii) reimbursement to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to OptiMark, of fees and
disbursements in connection with (a) past
due invoices and (b) this Loan Agreement (in an amount specified in writing to
OptiMark at least one (1) Business Day prior to the Closing Date), by wire
transfer of immediately available funds to such account as OptiMark shall notify
Softbank in writing at least one (1) Business Day prior to the Closing Date and
(iii) payment of $463,333 to Aon Risk Services Companies, Inc., OptiMark's
director's and officer's insurance carrier, for premiums for insurance coverage
for the period commencing December 31, 2002 and ending December 31, 2003.
Section 2.2 Evidence of Indebtedness. Softbank shall maintain records
evidencing amounts of principal and interest paid by or on behalf of OptiMark to
Softbank hereunder. The books and records of Softbank shall be prima facie
evidence, absent manifest error, of all amounts of principal, interest and Costs
and Fees, outstanding or repaid pursuant to this Loan Agreement or any Related
Document.
ARTICLE 3.
REPAYMENT, INTEREST AND CONVERSION
Section 3.1 Payment Of Principal and Interest. The outstanding
principal balance of the Notes, together with all accrued but unpaid interest,
shall be due and payable on the 180th calendar day following the Closing Date
(the "Maturity Date"). The outstanding principal balance due on the Loan shall
be determined as specified in Section 3.2. The principal, interest and other
sums due on the Notes or under the Loan Agreement shall be reflected by
Softbank's records which will be prima facie evidence of the computation of the
amounts owing by OptiMark to Softbank, absent manifest error.
Section 3.2 Interest Rate, Interest Compounding, Outstanding Principal
Balance. Interest on the outstanding principal balance of the Loan shall accrue
at ten percent (10%) per annum, based on a year of 360 days and actual days
elapsed. Interest shall be compounded every 90 days following the Closing Date
and shall accrue from the Closing Date until the Loan is paid in full. Upon the
occurrence and during the continuance of an Event of Default, interest on the
outstanding principal balance of the Notes shall accrue at the Default Rate
specified in Section 4.2 hereof and shall also be compounded every 90 days
following the Closing Date. OptiMark may, at its election, from time to time
prior to the Maturity Date pay accrued and unpaid interest in cash. Except as
otherwise provided in Section 3.5 hereof, all accrued but unpaid interest shall
be due and payable on the Maturity Date in cash. All accrued but unpaid interest
shall be added to the outstanding principal balance on the last day of each
90-day period following the Closing Date and after such compounding, interest
shall accrue on such increased principal balance thereafter. If it is ever
determined that the rate of interest was in excess of any maximum rate (if any)
prescribed by law, then that portion of interest payments representing any
amounts in excess of said maximum shall be deemed a payment of principal and
applied by Softbank at any time against principal.
Section 3.3 Prepayment. The Loan may be prepaid at any time or from
time to time in whole or in part without prepayment fee, premium or penalty. Any
prepayment shall first be applied to Costs and Fees, if any, described in
Section 4.1, then
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to interest and then to principal, or in such other order as Softbank may, in
its sole discretion, determine.
Section 3.5 Manner, Method, Place, Time and Application of Payment,
Reinstatement, Waivers. Except as otherwise provided in Section 3.5 hereof, all
Obligations shall be paid in lawful currency of the United States and in
immediately available funds to Softbank by wire transfer in immediately
available funds to such bank account as Softbank or any assignee may designate
in writing. The liability of OptiMark hereunder and under any Related Document
shall be reinstated and revived and the rights of Softbank shall continue to the
extent of any amount at any time paid by or on behalf of OptiMark if such amount
shall thereafter be required to be restored, returned or forfeited by Softbank
pursuant to any Requirement of Law, and OptiMark's liability therefor shall
continue as if such amount had not been paid.
OptiMark agrees that if for any reason any amount due hereunder or under
any Related Document is paid by cashier's, certified teller's or other check,
there shall be no discharge of OptiMark's obligation until said check be finally
paid by the issuer thereof.
All payments under this Loan Agreement shall be made without counterclaim,
set-off, condition or qualification and free and clear of (and without deduction
for) any Taxes, deductions or charges of any nature whatsoever and irrespective
of any default by Softbank under this Loan Agreement or any Related Document.
All payments (other than prepayments which shall be applied as specified in the
preceding Section 3.3) shall be applied first against Costs and Fees, if any,
described in Section 4.1, then against indemnities and all amounts due hereunder
other than principal and interest, then against interest due on amounts in
default, then against interest due on amounts not in default, and then against
principal.
Section 3.6 OII Capital Stock.
(a) On or prior to the Maturity Date, in lieu of Softbank's
receipt of re-payment of the Obligations in lawful currency of the United States
in immediately available funds as provided in Section 3.4, Softbank may elect,
in its sole discretion:
(i) to require OptiMark to cause OptiMark, Inc. to deliver
to Softbank eighty-nine (89) shares (as adjusted pursuant to Sections 3.5(b),
(c) and (d) below) of OII Preferred Stock held by OptiMark, Inc. as re-payment
of the Principal Amount;
(ii) to decrease the number of shares of OII Common Stock
held by Softbank that OptiMark has the right to reacquire pursuant to Sections
5.2, 5.4 and 5.5 of that certain Amended and Restated Investors' Rights
Agreement, by and among OptiMark, OptiMark Innovations, OptiMark, Inc.,
Softbank, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Jurvetson ePlanet Ventures, L.P., ▇▇▇▇▇▇ ▇▇▇▇▇▇
Jurvetson ePlanet Partners Fund, LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Jurvetson ePlanet
Ventures GmBH & Co. KG., dated as of May 3, 2002 (the "Amended and Restated
Investors' Rights Agreement"), by twenty (20) shares (as adjusted pursuant to
Sections 3.5(b) and (d) below) in accordance with the
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terms of Amendment No. 1 to the Amended and Restated Investors' Rights Agreement
in the form set forth on Exhibit B attached hereto ("Amendment No. 1 to the
Amended and Restated Investors' Rights Agreement"); and
(iii) to receive payment of all Obligations less the
Principal Amount (the "Remainder Obligation") either:
(1) in cash, as set forth in Section 3.4 hereto; or
(2) by requiring OptiMark to cause OptiMark, Inc.
to deliver to Softbank that number of additional shares of OII Preferred
Stock (as adjusted pursuant to Sections 3.5(b), (c) and (d) below) held by
OptiMark, Inc. and equal to the Remainder Obligation, where each share of
OII Preferred Stock shall be valued at the OII Preferred Stock Conversion
Price (as adjusted pursuant to Section 3.5(d) below).
(b) Adjustments to Number of Shares of OII Common Stock and OII
Preferred Stock for Dividends and for Combinations or Subdivisions. In the event
that OptiMark Innovations at any time or from time to time after the Closing
Date but on or prior to the Maturity Date shall declare or pay, without
consideration, any dividend on shares of OII Common Stock payable in shares of
OII Common Stock or any dividend on shares of OII Preferred Stock payable in
shares of OII Preferred Stock or, in either case, in any right to acquire OII
Common Stock or OII Preferred Stock, respectively, for no consideration, or
shall effect a subdivision of the outstanding shares of OII Common Stock or OII
Preferred Stock into a greater number of shares of OII Common Stock or OII
Preferred Stock, respectively (by stock split, reclassification or otherwise
than by payment of a dividend in capital stock of OptiMark Innovations or in any
right to acquire such capital stock), or in the event the outstanding shares of
OII Common Stock or OII Preferred Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of OII Common
Stock or OII Preferred Stock, as applicable, then the number of shares of OII
Common Stock by which OptiMark's right to reacquire shall decrease pursuant to
Section 3.5(a)(ii) or OII Preferred Stock which OptiMark shall be required to
cause OptiMark, Inc. to deliver to Softbank pursuant to Section 3.5(a)(i), as
applicable, immediately prior to such event shall, concurrently with the
effectiveness of such event, be proportionately decreased or increased, as
appropriate. In the event that OptiMark Innovations shall declare or pay,
without consideration, any dividend on the OII Common Stock or OII Preferred
Stock payable in any right to acquire OII Common Stock or OII Preferred Stock,
respectively, for no consideration, then OptiMark Innovations shall be deemed to
have made a dividend payable in OII Common Stock or OII Preferred Stock, as the
case may be, in an amount of shares equal to the maximum number of shares
issuable upon exercise of such rights to acquire OII Common Stock or OII
Preferred Stock.
(c) Adjustments for Reclassification and Reorganization. If the
OII Preferred Stock which OptiMark shall be required to cause OptiMark, Inc. to
deliver to Softbank pursuant to Section 3.5(a) shall be exchanged for or changed
into any other class or series of capital stock of any issuer, cash or any other
property, right, or form of
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consideration, whether by capital reorganization, reclassification, merger,
consolidation, reorganization or otherwise (other than a subdivision or
combination of shares provided for in Section 3.5(b)), then the number of shares
of OII Preferred Stock that OptiMark shall be required to cause OptiMark, Inc.
to deliver to Softbank pursuant to Section 3.5(a) shall, concurrently with the
effectiveness of such reorganization, reclassification, merger, consolidation,
reorganization or other event, be modified so that the OII Preferred Stock to be
delivered pursuant to Section 3.5(a) shall be replaced by, in lieu of the number
of shares of OII Preferred Stock which Softbank would otherwise have been
entitled to receive, such number of shares of the class or series of capital
stock, such amount of cash or other property, right, or consideration, as the
case may be, received by OptiMark, Inc. in exchange for the OII Preferred Stock
to be delivered to Softbank pursuant to Section 3.5(a) immediately before such
event.
(d) Adjustments to Conversion Price for Certain Diluting Issues.
(i) Special Definitions. For purposes of this Section
3.5(d), the following definitions apply:
"Options" shall mean rights, options, or warrants to subscribe for,
purchase or otherwise acquire OII Common Stock or OII Preferred Stock
(collectively, "OII Stock").
"Additional Shares of OII Common Stock" shall mean all shares of OII Common
Stock issued by OptiMark Innovations after the Closing Date, other than shares
of OII Common Stock issued or issuable:
(1) upon exercise of Options to purchase OII Common
Stock issued by OptiMark Innovations to its employees, directors or
consultants with the approval of the board of directors of OptiMark
Innovations; or
(2) for which the number of shares of OII Common Stock
to be received by Softbank pursuant to Section 3.5(a) has been adjusted
pursuant to Sections 3.5(b) or (c).
"Additional Shares of OII Preferred Stock" shall mean all shares of OII
Preferred Stock issued by OptiMark Innovations after the Closing Date, other
than shares of OII Preferred Stock issued or issuable:
(3) upon exercise of Options to purchase OII Preferred
Stock issued by OptiMark Innovations to its employees, directors or
consultants with the approval of the board of directors of OptiMark
Innovations; or
(4) for which the number of shares of OII Preferred
Stock to be received by Softbank pursuant to Section 3.5(a) has been
adjusted pursuant to Sections 3.5(b) or (c).
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"OII Common Stock Conversion Price" shall be equal to US $2,500,
initially, and shall be subject to adjustment as provided in Section
3.5(d)(iii).
"OII Preferred Stock Conversion Price" shall be equal to US $10,000,
initially, and shall be subject to adjustment as provided in Section 3.5(d)(iv).
(ii) No Adjustment of Conversion Price. Any provision herein
to the contrary notwithstanding,
(1) no adjustment in the OII Common Stock Conversion
Price shall be made in respect of the issuance of Additional Shares of OII
Preferred Stock unless the consideration per share (determined pursuant to
Section 3.5(d)(v) hereof) for an Additional Share of OII Common Stock
issued or deemed to be issued by OptiMark Innovations is less than the OII
Common Stock Conversion Price in effect on the date of, and immediately
prior to, such issue.
(2) no adjustment in the OII Preferred Stock
Conversion Price shall be made in respect of the issuance of Additional
Shares of OII Preferred Stock unless the consideration per share
(determined pursuant to Section 3.5(d)(v) hereof) for an Additional Share
of OII Preferred Stock issued or deemed to be issued by OptiMark
Innovations is less than the OII Preferred Stock Conversion Price in effect
on the date of, and immediately prior to, such issue.
(iii) Adjustment of OII Common Stock Conversion Price. In
the event OptiMark Innovations, at any time after the Closing Date but on or
prior to the Maturity Date, shall issue Additional Shares of OII Common Stock
without consideration or for a consideration per share less than the OII Common
Stock Conversion Price in effect on the date of and immediately prior to such
issue, then and in such event, the OII Common Stock Conversion Price then in
effect shall be reduced, concurrently with such issue, to a price (calculated to
the nearest cent) determined by multiplying such OII Common Stock Conversion
Price by a fraction, the numerator of which shall be the sum of the number of
shares of OII Common Stock outstanding immediately prior to such issue plus the
number of shares of OII Common Stock which the aggregate consideration received
by OptiMark Innovations for the total number of Additional Shares of OII Common
Stock so issued would purchase at such OII Common Stock Conversion Price in
effect immediately prior to such issuance, and the denominator of which shall be
the number of shares of OII Common Stock outstanding immediately prior to such
issue plus the number of such Additional Shares of OII Common Stock so issued.
For the purpose of the above calculation, the number of shares of OII Common
Stock outstanding immediately prior to such issue shall be calculated on a fully
diluted basis, as if any outstanding Options to purchase OII Common Stock had
been fully exercised as of such date.
(iv) Adjustment of OII Preferred Stock Conversion Price. In
the event OptiMark Innovations, at any time after the Closing Date but on or
prior to the Maturity Date, shall issue Additional Shares of OII Preferred Stock
without consideration or for a consideration per share less than the OII
Preferred Stock
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Conversion Price in effect on the date of and immediately prior to such issue,
then and in such event, the OII Preferred Stock Conversion Price then in effect
shall be reduced, concurrently with such issue, to a price (calculated to the
nearest cent) determined by multiplying such OII Preferred Stock Conversion
Price by a fraction, the numerator of which shall be the sum of the number of
shares of OII Preferred Stock outstanding immediately prior to such issue plus
the number of shares of OII Preferred Stock which the aggregate consideration
received by OptiMark Innovations for the total number of Additional Shares of
OII Preferred Stock so issued would purchase at such OII Preferred Stock
Conversion Price in effect immediately prior to such issuance, and the
denominator of which shall be the number of shares of OII Preferred Stock
outstanding immediately prior to such issue plus the number of such Additional
Shares of OII Common Stock so issued. For the purpose of the above calculation,
the number of shares of OII Preferred Stock outstanding immediately prior to
such issue shall be calculated on a fully diluted basis, as if any outstanding
Options to purchase OII Preferred Stock had been fully exercised as of such
date.
(v) Determination of Consideration. For purposes of this
Section 3.5(d), the consideration received by OptiMark Innovations for the issue
of any Additional Shares of OII Common Stock or any Additional Shares of OII
Preferred Stock shall be computed as follows:
(1) Cash and Property: Such consideration shall:
a. insofar as it consists of cash, be computed at
the aggregate amount of cash received by OptiMark Innovations
excluding amounts paid or payable for accrued interest or accrued
dividends;
b. insofar as it consists of property other than
cash, be computed at the fair value thereof at the time of such issue,
as determined in good faith by the board of directors of OptiMark
Innovations; and
c. in the event Additional Shares of OII Common
Stock are issued together with Additional Shares of OII Preferred
Stock or other assets of OptiMark Innovations for consideration which
covers both, be the proportion of such consideration so received,
computed as provided in clauses (a.) and (b.) above, as determined in
good faith by the board of directors of OptiMark Innovations.
(2) Options and Convertible Securities. The
consideration per share received by OptiMark Innovations for Additional
Shares of OII Common Stock or Additional Shares of OII Preferred Stock
relating to Options shall be determined by dividing:
a. the total amount, if any, received or
receivable by OptiMark Innovations as consideration for the issue of
such Options, plus the minimum aggregate amount of additional
consideration (as set
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forth in the instruments relating thereto, without regard to any
provision contained therein designed to protect against dilution)
payable to OptiMark Innovations upon the exercise of such Options, by
b. the maximum number of shares of OII Stock
(as set forth in the instruments relating thereto, without regard to
any provision contained therein designed to protect against the
dilution) issuable upon the exercise of such Options.
(vi) Effect of Adjustment of the Conversion Prices. In the
event that either the OII Common Stock Conversion Price or the OII Preferred
Stock Conversion Price is adjusted pursuant to Section 3.5(d)(iii) or Section
3.5(d)(iv), respectively, the number of shares of OII Common Stock by which
OptiMark's right to reacquire shall decrease pursuant to Section 3.5(a)(ii) OII
Common Stock or OII Preferred Stock that OptiMark shall be required to cause
OptiMark, Inc. deliver to Softbank on the Maturity Date pursuant to Section
3.5(a)(i), as applicable, shall be adjusted as follows:
(1) the number of shares of OII Common Stock by which
OptiMark's right to reacquire shall decrease pursuant to Section 3.5(a)(ii)
shall be equal to US $50,000 divided by the OII Common Stock Conversion
Price in effect on the Maturity Date; and
(2) the number of shares of OII Preferred Stock to be
delivered to Softbank pursuant to Section 3.5(a)(i) shall be equal to US
$890,000 divided by the OII Preferred Stock Conversion Price in effect on
the Maturity Date, provided, however, in no event shall OptiMark be
required to cause OptiMark, Inc. to deliver to Softbank more shares of OII
Preferred Stock than are owned by OptiMark, Inc. on the Closing Date
(subject to adjustment for stock splits, reverse splits, stock dividends
and similar events).
ARTICLE 4.
OTHER PAYMENTS
Section 4.1 Costs and Fees. Upon demand therefor, OptiMark agrees to
pay to Softbank all Costs and Fees Arising Out Of: the performance of this Loan
Agreement and any other Related Document; the renewal, modification, extension,
forbearance (if any), refinancing, renegotiations or restructuring of this Loan
Agreement or any Related Document; collecting any and all Obligations;
protecting, preserving and realizing upon any Collateral or other security for
such amounts; and/or enforcing this Loan Agreement or any Related Document. The
Costs and Fees due hereunder are part of the Obligations and are secured by the
Liens granted by OptiMark to Softbank pursuant to the Security Agreement and
guaranteed pursuant to the Guarantees.
Section 4.2 Calculations; Default Interest; Compounded Interest.
Except as otherwise expressly set forth in this Loan Agreement, all computations
of interest and fees under this Loan Agreement or any Related Document shall be
made on the basis of a
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year consisting of 360 days and actual days elapsed. All amounts that are not
paid when due under this Loan Agreement shall bear interest at the interest rate
of fifteen percent (15%) per annum (the "Default Rate"), compounded every 90
days after the Default Rate becomes applicable.
ARTICLE 5.
CONDITIONS TO LENDING,
SECURITY
AND
OTHER COVENANTS
Section 5.1 Conditions. The obligation of Softbank to make the Loan is
subject to fulfillment by OptiMark of all of the following conditions:
(a) Execution and delivery by OptiMark or its Subsidiaries, as
applicable, of this Loan Agreement, Amendment No. 1 to the Amended and Restated
Investors' Rights Agreement, Notes, Security Agreement, UCC's, Guarantees and
all other executed Related Documents.
(b) The representations and warranties contained in Article 6
hereof and in each Related Document shall be correct and accurate in all
material respects on and as of Closing as though made on and as of such date and
no Event of Default and no condition or event which, with the giving of notice
or lapse of time or both, would become an Event of Default, shall have occurred
and be continuing on Closing and Softbank shall have received a certificate in
the form set forth on Exhibit C attached hereto and signed by the Chief
Executive Officer of OptiMark, dated as of the Closing Date, to that effect.
(c) OptiMark shall have complied in all material respects with
all covenants and obligations to be performed or observed by it at or prior to
such time, including but not limited to those set forth in the Existing Loan
Agreement; and shall not be in breach of any of the Existing Loan Agreement or
the agreements referred to in each of such Existing Loan Agreement as the
"Related Documents."
(d) OptiMark shall have obtained all consents of third parties,
including, without limitation, any Governmental Body, required in connection
with the execution and delivery of this Loan Agreement and the Related Documents
and consummation of the transactions contemplated hereby and thereby.
(e) Softbank shall have received copies of all corporate action
taken by OptiMark and its Subsidiaries to authorize this Loan Agreement, the
Related Documents, the borrowings hereunder and the Notes, certified as of the
Closing Date by the Secretary of OptiMark.
(f) Softbank shall have received (i) acknowledgement copies of
Financing Statements (Form UCC-1) duly filed under the Uniform Commercial Code
of all jurisdictions as may be necessary or, in the opinion of Softbank,
advisable to perfect the Liens created by the Security Agreement and the
Guarantees, (ii) acknowledgement
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copies of recordings in the U.S. Patent and Trademark Office of notices in
respect of patents, patent applications, trademark registrations and trademark
applications of OptiMark and/or the Subsidiaries created by the Security
Agreement or the Guarantees if, in the opinion of Softbank, such filings should
be made and (iii) evidence of the completion of all other recordings and filings
and such other actions necessary or, in the opinion of Softbank, advisable to
perfect the Liens created by the Security Agreement and the Guarantees.
(g) There shall not be pending or threatened any action or
proceeding before any court or administrative agency relating to the
transactions contemplated by this Loan Agreement, the Existing Loan Agreement or
the Related Documents which could reasonably be expected to materially impair
the ability of OptiMark to perform its obligations under this Loan Agreement or
under the Related Documents or which could reasonably be expected to materially
impair the ability of OptiMark to issue the Series F Preferred Stock or
materially adversely affect the rights of the Series F Preferred Stock.
(h) Except as described in OptiMark's Quarterly Report on Form
10-Q for the period ended March 31, 2002, OptiMark's Quarterly Report on Form
10-Q for the period ended June 30, 2002, OptiMark's Quarterly Report on Form
10-Q for the period ended September 30, 2002, (the "Forms 10-Q"), OptiMark's
Annual Report on Form 10-K for the period ended December 31, 2001 on file with
the SEC as of the Effective Date (the "Form 10-K"), or otherwise described on
Exhibit 5.1(h) of this Loan Agreement, since September 30, 2002, there has been
no event, occurrence, change, development or state of affairs that had or will
have a Material Adverse Effect.
(i) OptiMark shall have executed and delivered to Softbank the
forms for filing in the U.S. Patent and Trademark office, in form and substance
as reasonably satisfactory to Softbank, in respect of patents, patent
applications, trademark registrations and trademark applications of OptiMark
and/or the Subsidiaries created by the Security Agreement or the Guarantees.
(j) Softbank shall have received such other documents as Softbank
may reasonably request.
Section 5.2 Conditions Not Fulfilled. If the above conditions are not
fulfilled or if the Loan or any portion thereof is not made because of such
nonfulfillment of conditions, neither Softbank nor OptiMark shall be responsible
to each other or any other Person for any Loss Arising Out Of nonfulfillment of
the above conditions or a failure to make the Loan.
Section 5.3 Security. As security for the prompt payment and
performance of all Obligations, OptiMark is concurrently granting to Softbank a
Lien in all collateral described in the Security Agreement (all such collateral
collectively, the "Collateral").
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ARTICLE 6.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Representations, Warranties and Covenants of OptiMark. The
warranties, representations, and covenants contained in this Loan Agreement and
in any Related Document shall be deemed to have been relied upon by Softbank and
shall survive the Closing and continue until all Obligations have been paid in
full.
OptiMark hereby represents, warrants, covenants and agrees with Softbank
that:
Section 6.1.1. Good Standing and Power. OptiMark, each of the
Subsidiaries and OptiMark Innovations are corporations, each duly organized and
existing, in good standing, under the laws of the jurisdiction of its
incorporation, and each has the corporate power to own its property and to carry
on its business as now being conducted and is duly qualified to do business and
is in good standing in each jurisdiction in which the character of the
properties owned or leased by it therein or in which the transaction of its
business makes such qualification necessary, except for failures to be in good
standing or qualified that would not in the aggregate have a Material Adverse
Effect.
Section 6.1.2. Corporate Authority. OptiMark has full corporate power
and authority to enter into this Loan Agreement, and the Security Agreement, to
grant to Softbank the Liens described therein, to make the borrowings
contemplated hereby, to execute and deliver the Note and to incur the
Obligations provided for herein and therein, all of which have been duly
authorized by all proper and necessary corporate action. Each of the
Subsidiaries has full corporate power and authority to enter into the Guaranty
to which it is a party, to grant to Softbank the Liens described therein and to
incur the Obligations provided for therein. No consent or approval of
stockholders or of any Governmental Body is required as a condition to the
validity or performance by OptiMark of this Loan Agreement or any Related
Document.
Section 6.1.3. Authorizations. All authorizations, consents,
approvals, registrations, exemptions and licenses with or from Governmental
Bodies which are necessary for the borrowings hereunder, the grant of the Liens
on the Collateral, the execution and delivery by OptiMark or the Subsidiaries of
this Loan Agreement, the Security Agreement, the Notes and the Guarantees and
the performance by OptiMark and its Subsidiaries of their respective Obligations
hereunder and thereunder have been effected or obtained and are in full force
and effect.
Section 6.1.4. Binding Agreement. This Loan Agreement and the Related
Documents constitute the valid and legally binding obligations of OptiMark and
its Subsidiaries, as applicable, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and, as to enforcement,
to general equity principles.
Section 6.1.5. Litigation. Except as described in the Forms 10-Q, the
Form 10-K, or on Exhibit 5.1(h) of this Loan Agreement, there are no proceedings
or
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investigations pending or, so far as the officers of OptiMark know, threatened
before any court or arbitrator or before or by any Governmental Body which, in
any one case or in the aggregate, if determined adversely to the interests of
OptiMark, a Subsidiary or OptiMark Innovations, would have a Material Adverse
Effect.
Section 6.1.6. No Conflicts. There is no statute, regulation, rule,
order or judgment, and no provision of any mortgage, indenture, contract or
agreement binding on OptiMark, either of its Subsidiaries or OptiMark
Innovations or affecting their properties which would prohibit, conflict with or
in any way prevent the execution, delivery, or carrying out of the terms of this
Loan Agreement and the Related Documents.
Section 6.1.7. Financial Condition. The Financial Statements fairly
present, in all material respects in accordance with GAAP, the financial
condition of OptiMark and its Subsidiaries and the results of their operations
and cash flows as of the dates and for the periods referred to. Except as has
been described in documents referred to in Section 5.1(h) hereof or otherwise
described in writing to Softbank prior to the execution and delivery of this
Loan Agreement, (i) there are no material Liabilities of OptiMark or any of its
Subsidiaries as of the date of such balance sheet which are not reflected
therein or in the notes thereto, and (ii) except as has been described on
Exhibit 5.1(h) of this Loan Agreement or disclosed in the Financial Statements,
the Form 10-K, the Forms 10-Q and OptiMark's Current Reports on Form 8-K filed
with the SEC on October 3, 2002 and October 4, 2002, there has been no event,
occurrence, change, development or state of affairs that had or will have a
Material Adverse Effect since March 31, 2002. The Financial Statements are fair
and accurate in all material respects and, to OptiMark's knowledge, will not be
subject to material audit adjustments.
Section 6.1.8. The Security Agreement. The provisions of the Security
Agreement will be effective to maintain in favor of Softbank a valid, binding
and enforceable, security interest or lien in all right, title and interest of
OptiMark in all material parts of the Collateral, and shall constitute a first
priority, perfected security interest or lien in all right, title and interest
of OptiMark in all material parts of such Collateral.
ARTICLE 7.
FURTHER COVENANTS
Section 7.1 Covenants. Until principal and interest on the Loan is
paid in full, or deemed satisfied pursuant to Section 3.5 hereof, OptiMark
hereby covenants and agrees that unless Softbank otherwise Consents, OptiMark
shall:
Section 7.1.1. Use of Proceeds. Use the Loan proceeds for working
capital purposes, and apply such proceeds only to such purposes and in such
manner as shall be approved with reasonable particularity prior to such
application by OptiMark's Board of Directors.
Section 7.1.2. Financial Statements and Reports. Deliver to Softbank
in form and detail reasonably satisfactory to Softbank the following:
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(a) Monthly Reports. OptiMark shall furnish to Softbank as soon
as practicable, and in any case within fifteen (15) days of the end of each
calendar month (except the last month of OptiMark's fiscal year), monthly
unaudited financial statements, including an unaudited balance sheet, an
unaudited statements of operations and comprehensive loss and an unaudited
statement of cash flows, together with a comparison to OptiMark's operating plan
and budget and statements of the Chief Financial Officer of OptiMark, or person
acting in such capacity, explaining any significant differences in the
statements from OptiMark's operating plan and budget for the month covered and
stating that such statements fairly present, in all material respects in
accordance with GAAP, the consolidated financial position and consolidated
financial results of OptiMark for the month covered; and
(b) Annual Budget. OptiMark shall furnish to Softbank as soon as
practicable and in any event no later than thirty (30) days after the close of
each fiscal year of OptiMark, an annual operating plan and budget, prepared on a
monthly basis, for the next immediate fiscal year. OptiMark shall also furnish
to Softbank, within a reasonable time of its preparation, amendments to the
annual budget, if any.
Section 7.1.3. Notices. To the extent known to OptiMark, promptly give
written notice to Softbank of the occurrence of, and the occurrence of any
material development in, (a) any Event of Default or any event which, upon a
lapse of time or notice or both, would become an Event of Default; (b) any
material Claim or other dispute of any nature whatsoever concerning, or any
change in any Requirement of Law, adversely affecting or relating to, OptiMark,
or (c) any event or circumstance that could reasonably be expected to have a
Material Adverse Effect.
Section 7.1.4. Compliance with Laws. Conduct its operations and cause
those of its Subsidiaries to be conducted, and use the Collateral, only in
compliance with all policies of insurance and all Requirements of Law, except
where any failure could not reasonably be expected to have a Material Adverse
Effect.
Section 7.1.5. Maintenance of Records. Maintain adequate and complete
records and books of account in accordance with GAAP, which books shall reflect
all financial transactions of OptiMark. OptiMark shall also permit any of
Softbank's representatives upon reasonable request and during normal business
hours to visit and inspect any of the properties of OptiMark, to examine all its
books of account, records, reports and other papers and to make copies and
extracts therefrom. Upon reasonable request, Softbank may also conduct a
periodic audit of OptiMark's accounts receivable and inventory at Softbank's
expense. In addition, OptiMark shall also permit any of Softbank's
representatives to discuss its affairs, finances and accounts with its officers,
employees and independent public accountants (and by this provision OptiMark
authorizes said accountants to discuss the finances and affairs of OptiMark with
Softbank or its accountants or other agents) all at such reasonable times and as
often as may be reasonably requested.
Section 7.1.6. Indemnification. Indemnify, defend and hold harmless
Softbank from and against any and all Claims (whether known or unknown and
whether
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now or hereafter existing) Arising Out Of (a) any inaccuracy when made of any
representation or warranty contained in this Loan Agreement or any Related
Document or any breach by OptiMark of any covenant or agreement in this Loan
Agreement or any Related Document; and (b) the performance, enforcement
(including affirmative suits and the defense of any Claim or liability
whatsoever) and collection of this Loan Agreement or any Related Document.
Notwithstanding the foregoing, OptiMark shall not be required to indemnify,
defend or hold harmless Softbank for any Claims or Losses directly and actually
caused by the gross negligence or willful misconduct of Softbank. Nothing in
this section is intended to limit or shall limit any obligation of OptiMark to
Softbank, including but not limited to the repayment obligations of OptiMark
contained in Article 3.
Section 7.1.7. Preservation of Existence and Property. Preserve and maintain its
existence in the jurisdiction of its formation and qualify, and cause its
Subsidiaries to qualify, and remain qualified, and cause each of its
Subsidiaries to remain qualified, as a foreign corporation in each jurisdiction
where the failure to so qualify could have a Material Adverse Effect. OptiMark
shall take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable to the normal conduct of its business, and
shall comply and cause each of its Subsidiaries to comply with all Contractual
Obligations and Requirements of Law except to the extent that the failure to
comply therewith would not, in the aggregate, have a Material Adverse Effect.
Section 7.1.8. Incurrence of Indebtedness. OptiMark shall not create,
incur, assume or suffer to exist any Indebtedness, or permit any of its
Subsidiaries so to do, except (i) Indebtedness to Softbank, (ii) Indebtedness of
OptiMark (or its successor) to others that is subordinated by a written
agreement satisfactory in form and substance to Softbank to all Indebtedness of
OptiMark (or its successor) to Softbank and (iii) Indebtedness of OptiMark or
the Subsidiaries outstanding on the date hereof.
ARTICLE 8.
EVENTS OF DEFAULT
Section 8.1 Events of Default; Acceleration and Remedies. Without
regard to previous knowledge or any forbearance by Softbank, the following shall
be defaults under this Loan Agreement and the terms "Event of Default",
"default" or "Default" shall mean any one or more of the following events:
(a) Payment Default. OptiMark shall (i) fail to pay or cause to
be paid when due any portion of any Obligation (other than Costs and Fees) or
fail to deliver or cause to be delivered the OII Preferred Stock pursuant to
Section 3.5(a)(i) hereof, or (ii) fail to pay or cause to be paid Costs and Fees
for ten (10) days after the same shall be due; or
(b) Security Exposure. Any Lien of Softbank in any material
portion of the Collateral shall, for any reason, cease to exist as valid and
binding Liens; or any guarantor of any part of the Obligations shall attempt to
withdraw the Guaranty, state that such Guaranty has been discharged or take any
action or permit any action to be
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taken which would impair such guarantor's ability to perform its obligations
under such Guaranty; or
(c) Breach of Other Covenants of Failure of any Condition.
OptiMark shall fail to perform, keep or observe any provision (other than a
breach of the preceding Sections 7.1.1 or 7.1.8) not involving a payment
obligation of this Loan Agreement, contained in this Loan Agreement and any such
failure shall remain unremedied for thirty (30) days after written notification
thereof shall have been given to OptiMark by Softbank; or
(d) Breach of Representation or Warranty. Any representation or
warranty made by OptiMark under or in connection with this Loan Agreement or any
Related Document shall prove to have been untrue or misleading when made or
becomes untrue in any material respect; or
(e) Breach of Sections 7.1.1 or 7.1.8 Any failure to comply with
the preceding Section 7.1.1 or 7.1.8; or
(f) Cross Defaults. Any obligation (other than its obligation
hereunder) of OptiMark or any of its Subsidiaries for the payment of
Indebtedness in an aggregate amount of at least $250,000 is not paid when due or
becomes or is declared to be due and payable prior to the expressed maturity
thereof, or there shall have occurred an event which, with the giving of notice
or lapse of time, or both, would cause any such obligation to become, or allow
any such obligation to be declared to be, due and payable.
(g) Bankruptcy etc. OptiMark or any of its Subsidiaries shall
dissolve or liquidate or take an equivalent action or an involuntary petition
shall have been filed under any federal or state bankruptcy, reorganization,
insolvency, moratorium or similar statute against OptiMark or any of its
Subsidiaries, or a custodian, receiver, trustee, assignee for the benefit of
creditors or other similar official shall be appointed to take possession,
custody, or control of the property of OptiMark or any of its Subsidiaries,
unless such petition or appointment is set aside or withdrawn or ceases to be in
effect within sixty (60) days from the date of said filing or appointment; or
OptiMark or its Subsidiaries shall admit in writing its inability to pay any of
its debts as they mature, or shall file any petition or action for relief
relating to any bankruptcy, reorganization, insolvency or moratorium law, or any
other similar law or laws for the relief of, or relating to, debtors; or
OptiMark or any of its Subsidiaries shall make a general assignment for the
benefit of creditors or enter into an agreement of composition with its
creditors; or
(h) Change in Authority. Any material permit, license or other
authority of any nature from any Governmental Body now or hereafter required (i)
for the performance of OptiMark under this Loan Agreement or any other Related
Documents shall not be obtained or shall be revoked, withdrawn or withheld or
otherwise failed to remain in full force and effect, or (ii) in the conduct of
OptiMark's business shall not be obtained or shall be revoked, withdrawn or
withheld or otherwise failed to remain in full
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force and effect, in each case (i) and (ii), for thirty (30) days after notice
of such by Softbank; or
(i) Judgments. Either (i) a judgment or order for the payment of
money in excess of Two Hundred and Fifty Thousand Dollars ($250,000) or its
equivalent in another currency, or (ii) a temporary restraining order,
preliminary or final injunction, order of specific performance or similar
judgment, order or decree requiring OptiMark or either of the Subsidiaries to
take, or prohibiting them from taking, any action, if such order, injunction,
judgment or decree would be reasonably likely to have a Material Adverse Effect,
is entered against OptiMark, either of the Subsidiaries or any of their
respective assets, and such judgment, order, injunction or decree is not
discharged or appealed and stayed within sixty (60) days of entry or imposition
thereof.
Upon any Event of Default, Softbank may terminate any of its obligations
hereunder or under any Related Document. With respect to any Event of Default,
(i) in any such event described in Section 8.1(g), all Obligations shall
automatically be due and payable without notice or demand or any action
whatsoever by Softbank; and (ii) in all other Events of Default, Softbank may,
upon notice (of any nature allowed by law) to OptiMark, declare all Obligations
(or any part thereof), to be forthwith due and payable without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by OptiMark.
In addition, upon any Event of Default, Softbank may without prior notice
or demand, exercise any and all rights available to it under this Loan Agreement
or any Related Document in equity or by applicable law. No action taken by
Softbank shall be deemed to be an election of remedies by Softbank, it being the
intent of the parties that Softbank shall be entitled repeatedly to exercise all
remedies separately or concurrently and in any manner allowed by law.
ARTICLE 9.
MISCELLANEOUS
Section 9.1 Notices, etc. All notices, requests, demands or other
communications which are required or may be given pursuant to the terms of this
Loan Agreement shall be 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 in the United States mail, if mailed by
registered or certified mail, postage prepaid, return receipt requested, or (b)
sent by a nationally recognized overnight express courier, or (iii) by facsimile
upon written confirmation (other than the automatic confirmation that is
received from the recipient's facsimile machine) of receipt by the recipient of
such notice:
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If to Softbank: SOFTBANK Capital Partners LP
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SOFTBANK Capital Advisors Fund LP
SOFTBANK Capital LP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to OptiMark: OptiMark Holdings, Inc.
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c/o Vie Financial Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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Four Stamford Plaza
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided in this Section 9.1.
Section 9.2 No Waiver; Remedies. No failure on the part of Softbank to
exercise, and no delay in exercising, any right under this Loan Agreement or any
Related Document shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under any of the aforesaid preclude any other or
further exercise thereof or the exercise of any other right from time to time
and as often as Softbank may deem expedient and without notice (except any
notice which is specifically required by written agreement). The remedies
provided in this Loan Agreement and the Related Documents are cumulative and not
exclusive of any remedies provided by law or in equity, now or hereafter
existing.
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Section 9.3 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP except as otherwise
stated herein.
Section 9.4 Assignment. This Loan Agreement shall not be assignable by
OptiMark without Softbank's Consent. Softbank may assign to any Person the
obligation, subject to OptiMark's satisfaction of all conditions precedent in
Section 5.1 hereof, to make all or a portion of the Loan on the Closing Date to
OptiMark. In addition, Softbank may sell, transfer, assign, negotiate, pledge,
or hypothecate all or any portion of this Loan Agreement or the Security
Agreement (except that if Softbank assigns all of its rights under this Loan
Agreement it shall also assign all of its rights under the Security Agreement)
to any Person.
Section 9.5 Governing Law; Venue. This Loan Agreement and each Related
Document shall be deemed to have been made in New York and the validity of such
documents, their construction, interpretation and enforcement, shall be
determined under, governed by and construed in accordance with the laws of New
York. In any court proceeding, OptiMark agrees to submit to the jurisdiction of
the state or federal court selected by Softbank, and venue of any action
concerning this Loan Agreement or any Related Document shall be in the county of
New York in the State of New York. OptiMark hereby irrevocably waives to the
fullest extent permitted by law any objection which it may now or hereafter have
to the laying of such venue and any claim that any such forum is an inconvenient
forum. Nothing in this Section shall impair the right of Softbank to bring any
action or proceeding against OptiMark or its property in the courts of any other
county or jurisdiction.
Section 9.6 Entire Loan Documents; Headings; Amendments; Severability;
Time; Fair Construction; Counterparts. This Loan Agreement and the Related
Documents constitute the entire agreement between the parties regarding the
terms of this Loan and supersede any and all other agreements relating to the
subject matter of this Loan Agreement and the Related Documents, oral or
written, among any or all of the parties. The headings of the various sections
and subsections of this Loan Agreement and of any Related Document are for
convenience of reference only and do not constitute a part of the respective
document and shall not affect the meaning or construction of any provision.
No amendment, waiver or forbearance of any provision of this Loan Agreement
or of any Related Document shall be effective unless the same shall be in a
writing signed by Softbank. Any such waiver or forbearance shall only be
effective for the specific purpose and in the specific instance given and not
for other or subsequent purposes or instances and no forbearance or waiver shall
affect Softbank's right to refuse further forbearances or waivers. If any
portion of this Loan Agreement or any Related Document is held to be invalid or
unenforceable, the remaining portions and provisions and conditions thereof
shall remain in full force and effect.
Time is of the essence under this Loan Agreement and each Related Document.
Counsel for each party has participated in the review and revision of this Loan
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Agreement and each party agrees that the rules of construction requiring any
ambiguities to be resolved against the drafting party shall not be employed in
the interpretation of this Loan Agreement or any Related Document. The signature
pages of this Loan Agreement and of any Related Document may be executed in
counterparts.
Section 9.7 Confidentiality. Except as may be required to enforce the
rights and duties established hereunder (including establishing and maintaining
Softbank's perfected Lien in the Collateral), the parties hereto shall preserve
in a confidential manner all information received from the other pursuant to
this Loan Agreement and the Related Documents, and shall not disclose such
information except to those Persons with which a confidential relationship is
maintained (including regulators, legal counsel, accountants, agents or an
assignee or a prospective assignee of any of Softbank's rights hereunder), or
where required by law.
Section 9.8 No Waiver. Notwithstanding anything contained in this Loan
Agreement, the execution and delivery of this Loan Agreement by Softbank shall
not constitute a waiver by Softbank of any breach by OptiMark of a
representation, warranty, covenant or condition set forth in the Existing Loan
Agreement.
[Remainder of page intentionally left blank]
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Executed and dated as of February 6, 2003.
OPTIMARK HOLDINGS, INC., SOFTBANK CAPITAL PARTNERS LP,
a Delaware corporation SOFTBANK CAPITAL ADVISORS FUND LP,
SOFTBANK CAPITAL LP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: SOFTBANK CAPITAL PARTNERS LLC
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Its: General Partner
Title: Chief Executive Officer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Admin Member
Acknowledged and Agreed, solely
with respect to Section 3.5
OPTIMARK, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
DEFINITIONS ADDENDUM
This Definitions Addendum is an attachment to and part of that certain
LOAN AGREEMENT ("Loan Agreement") dated as of February ___, 2003 between
OptiMark Holdings, Inc. and Softbank Capital Partners LP, Softbank Capital
Advisors Fund LP, and Softbank Capital LP. Except as otherwise stated in the
Loan Agreement, the following terms shall have the following meanings:
"Additional Shares of OII Common Stock" has the meaning set forth in
Section 3.5(d)(i) of the Loan Agreement.
"Additional Shares of OII Preferred Stock" has the meaning set forth in
Section 3.5(d)(i) of the Loan Agreement.
"Advance" means the advance of Loan proceeds on the Closing Date.
"Amended and Restated Investors' Rights Agreement" has the meaning set
forth in Section 3.5(a)(ii) of the Loan Agreement.
"Amendment No. 1 to the Amended and Restated Investors' Rights
Agreement" has the meaning set forth in Section 3.5(a)(ii) of the Loan
Agreement.
"Arising Out Of" means directly or indirectly arising out of, relating
in any manner to, arising in connection with, growing out of or stemming from,
or in any manner caused by or resulting from, whether by action or inaction and
whether such action or inaction be culpable and whether such action be in
contract, tort or otherwise.
"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.
"Capital Lease Obligations" means, with respect to any Person, the
obligation of such Person to pay rent or other amounts under any lease with
respect to any property (whether real, personal or mixed) acquired or leased by
such Person that is required to be accounted for under GAAP as a liability on a
consolidated balance sheet of such Person.
"Claims" means any and all administrative, legal or other actions,
claims, suits, appeals, settlements, consent decrees, or investigations.
"Closing" or "Closing Date" shall mean the last to occur of: (a) the
date the Loan Agreement and the Related Documents are executed and delivered to
Softbank and (b) the date all conditions precedent contained in Section 5.1 of
the Loan Agreement are satisfied.
"Collateral" has the meaning set forth in Section 5.3 of the Loan
Agreement.
-i-
"Consent" means a written document containing the approval of and
executed by the Person to be bound by the document.
"Contractual Obligation" means, with respect to any Person, each
provision of this Loan Agreement, each Related Document, and all provisions of
all other agreements, contracts, instrument and undertakings to which such
Person is a party or by which it or any of its property is bound.
"Costs and Fees" means all reasonable out-of-pocket or incurred costs
(including without limitation those incurred by the following persons) and
expenses of every nature, including, without limitation, reasonable attorneys'
fees (whether of independent or in-house counsel whether incurred before trial,
at trial, or appeal and in any bankruptcy or arbitration proceeding), reasonable
fees of paralegals, clerks, accountants and other consultants or experts, and of
collection and other agents, and all other reasonable fees, costs and expenses
of every nature whatsoever now or hereafter incurred from time to time,
including, without limitation, all reasonable expenses related to the Collateral
(including without limitation, all appraisal(s), filing and recording fees).
"Default" or "Event of Default" has the meaning set forth in Section
8.1 of the Loan Agreement.
"Default Rate" has the meaning set forth in Section 4.2 of the Loan
Agreement.
"Effective Date" has the meaning set forth in the preamble of the Loan
Agreement.
"Existing Loan Agreement" means the Loan Agreement, dated as of
November 27, 2002 by and among OptiMark, Softbank and, solely with respect to
Section 3.5 thereof, OptiMark, Inc.
"Financial Statements" means the (i) consolidated balance sheets of the
Company as of September 30, 2002 and December 31, 2001, (ii) consolidated
statements of operations and comprehensive loss for the three and nine month
periods ended September 30, 2002 and 2001, and (iii) consolidated statements of
cash flows for the nine month period ended September 30, 2002 and 2001, all as
set forth in OptiMark's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2002.
"Form 10-K" has the meaning set forth in Section 5.1(h) of the Loan
Agreement.
"Forms 10-Q" has the meaning set forth in Section 5.1(h) of the Loan
Agreement.
"GAAP" or "Generally Accepted Accounting Principles" means generally
accepted accounting principles as in effect from time to time in the United
States.
-ii-
"Governmental Body" means any foreign or domestic government; court;
federal, state, county, municipal or other department, commission, board,
bureau, agency, administrator, public authority or instrumentality; arbitrator;
mediator; or other governmental regulator or authority.
"Guarantees" means the certain Second Amended and Restated Guarantees,
dated the Closing Date, between Softbank and each of the Subsidiaries, in the
forms attached as Exhibit D hereto.
"Indebtedness" means, with respect to any Person, (i) all obligations
of such Person for borrowed money or for the deferred purchase price of property
or services (including all obligations, contingent or otherwise, of such Person
in connection with letters of credit, bankers' acceptances, Interest Rate
Protection Agreement or other similar instruments, including currency swaps)
other than indebtedness to trade creditors and service providers incurred in the
ordinary course of business and payable on usual and customary terms, (ii) all
obligations or such Person evidenced by bonds, notes, debentures or other
similar instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the remedies available to the seller or
lender under such agreement are limited to repossession or sale of such
property), (iv) all Capital Lease Obligations of such Person, (v) all
obligations of the types described in clauses (i), (ii), (iii) or (iv) above
secured by (or for which the obligee has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in any property (including
accounts, contract rights and other intangibles) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Indebtedness, (vi) all preferred stock issued by such Person which is
redeemable, prior to full satisfaction of OptiMark's obligations under this Loan
Agreement and the Notes, other than at the option of such Person, (vii) all
Indebtedness of others subject to a Third Party Guaranty by such Person and
(viii) all Indebtedness of any partnership of which such Person is a general
partner.
"Interest Rate Protection Agreement" means any interest rate swap
agreement, interest rate cap agreement or similar hedging arrangement used by a
Person to fix or cap a floating rate of interest on Indebtedness to a negotiated
maximum rate or amount.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Lien" or "Liens" means, with respect to any Person, any security
interest, pledge, mortgage, charge, option, assignment, hypothecation,
encumbrance, attachment, garnishment, sequestration, forfeiture, execution or
other voluntary or involuntary lien upon or affecting the revenues of such
Person or any real or personal property in which such Person has or hereafter
acquires any interest, except (i) Liens for Taxes which are not delinquent or
which remain payable without penalty or the validity or amount of which is being
contested in good faith by appropriate proceedings and reserves
-iii-
Consented to by Softbank; (ii) Liens imposed by law (such as mechanics' liens)
incurred in good faith in the ordinary course of business which are not
delinquent or which remain payable without penalty or the validity or amount of
which is being contested in good faith by appropriate proceedings and reserves
Consented to by Softbank; and (iii) deposits or pledges under workmen's
compensation, unemployment insurance, social security, bids, tenders, contracts
(except for repayment of borrowed money), or leases, or to secure statutory
obligations or surety or appeal bonds or to secure indemnity, performance or
other similar bonds given in the ordinary course of business.
"Loan" or "Loans" means the loan from Softbank to OptiMark in the
original principal amount of $940,000 made pursuant to the Loan Agreement and as
the Loan may be extended, modified or renewed from time to time.
"Loan Agreement" means this Loan Agreement, as the same may be amended,
extended or renewed from time to time.
"Loan Documents" means the Related Documents.
"Loss" or "Losses" means any and all Costs and Fees, losses,
liabilities, deficiencies, obligations, damages and other expenses of every
nature, including without limitation interest and penalties.
"Material Adverse Effect" means an adverse effect upon the business,
financial condition, results of operations, property, assets or prospects of
OptiMark, each of the Subsidiaries, or, solely with respect to Sections 5.1(h),
6.1.1, 6.1.5, 6.1.7 and 7.1.3, OptiMark Innovations, or upon the validity or
enforceability of the Loan Agreement or any of the other Related Documents, or
upon the collectibility of the Loan, or upon the Contractual Obligations or
ownership of OptiMark of the Collateral or Softbank's Lien thereon, or upon the
ability of OptiMark to perform its obligations hereunder or under any Related
Document, or upon the rights of Softbank hereunder or under any Related
Document, which adverse effect would be viewed as material by a reasonably
prudent lender.
"Maturity Date" has the meaning given that term in Section 3.1 of the
Loan Agreement.
"Notes" means the promissory notes in substantially the form attached
as Exhibit A and any other promissory note now or hereafter evidencing an
Advance, all as extended, renewed or amended from time to time.
"Obligations" means all obligations for principal or interest on the
Notes, all Costs and Fees, all indemnification obligations and all other amounts
of every nature whatsoever due or to become due Softbank under this Loan
Agreement or under any Related Document.
-iv-
"OII Common Stock" means the Common Stock, par value $.01 per share, of
OptiMark Innovations.
"OII Common Stock Conversion Price" has the meaning set forth in
Section 3.5(d)(i) of the Loan Agreement.
"OII Preferred Stock" means the Non-Qualified Preferred Stock, par
value $0.01 per share, of OptiMark Innovations.
"OII Preferred Stock Conversion Price" has the meaning set forth in
Section 3.5(d)(i) of the Loan Agreement.
"OII Stock" has the meaning set forth in Section 3.5(d)(i) of the Loan
Agreement.
"OptiMark" means OptiMark Holdings, Inc., a Delaware corporation.
"OptiMark, Inc." means OptiMark, Inc., a Delaware corporation and
wholly-owned subsidiary of OptiMark.
"OptiMark Innovations" means OptiMark Innovations Inc., a Delaware
corporation.
"Options" has the meaning set forth in Section 3.5(d)(i) of the Loan
Agreement.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or any other entity or organization,
including a state, government or political subdivision or an agency or
instrumentality thereof.
"Principal Amount" has the meaning set forth in Section 2.1 of the Loan
Agreement.
"Related Documents" means the Loan Agreement, Amendment No. 1 to the
Amended and Restated Investors' Rights Agreement, Notes, Security Agreement, the
Guarantees and UCC's and all other certificates, documents or agreements now or
hereafter Arising Out Of or executed in connection with or pursuant to any of
the foregoing.
"Remainder Obligation" has the meaning set forth in Section 3.5(a)(iii)
of the Loan Agreement.
"Requirement of Law" means, with respect to any Person, the now or
hereafter existing articles or certificate of incorporation and bylaws, the
partnership or limited liability company agreement or other organizational or
governing documents of such Person, and any law, treaty, rule, order, judgment,
decree, injunction, writ, or regulation, or a final and binding determination of
an arbitrator, mediator, in each case applicable to
-v-
or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"SEC" means the Securities and Exchange Commission.
"Security Agreement" means that certain Second Amended and Restated
Pledge and Security Agreement, dated the Closing Date, between the parties in
the form attached as Exhibit E.
"Series F Preferred Stock" means the Series F Preferred Stock, par
value $.01 per share, of OptiMark.
"Softbank" has the meaning set forth in the first paragraph of this
Loan Agreement, and any of its successors or assigns.
"Subsidiaries" means OptiMark, Inc. and OptiMark U.S. Equities, Inc., a
Delaware corporation.
"Taxes" means for any Person any federal or state tax, assessment,
duty, levy, withholding liability, impost and other charges of every nature
whatsoever imposed by any Governmental Body on such Person or on any of its
property or because of any, revenue, income, sales, use, product, employee or
franchise, and any interest or penalty with respect to any of the foregoing.
"Third Party Guaranty" means, with respect to any Person, any
obligation, contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of such Person, (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness, (ii) to purchase
property, securities or services for the purpose of assuring the holder of such
Indebtedness of the payment of such Indebtedness of (iii) to maintain working
capital, equity capital or the financial condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness.
"UCC's" means the Uniform Commercial Code financing statements executed
and filed at the closing of the loans by Softbank to OptiMark pursuant to the
Loan Agreements.
-vi-
EXHIBIT A TO LOAN AGREEMENT
PROMISSORY NOTE
[$_______] Dated: February __, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
FOR VALUE RECEIVED, the undersigned, OPTIMARK HOLDINGS, INC. a Delaware
corporation, ("OptiMark") promises to pay to the order of SOFTBANK Capital
Partners LP, a Delaware limited partnership ("Softbank"), the principal sum of
[____________________________________________________________ Dollars
($_______)], or such lesser principal amount as shall then equal the outstanding
principal amount hereof, plus interest, in lawful, immediately available money
of the United States of America.
This Promissory Note ("Note") is issued by OptiMark pursuant to that
certain Loan Agreement dated as of the date hereof, (the "Loan Agreement")
between OptiMark and Softbank. Capitalized terms not otherwise defined in this
Note shall have the meaning set forth in the Loan Agreement, which definitions
are incorporated herein. The terms of the Loan Agreement are also incorporated
herein.
OptiMark further agrees as follows:
1. Interest Rate. Interest on the outstanding principal balance of this
Note shall accrue at the rate of ten percent (10%) per annum, based on a year of
360 days and actual days elapsed. Interest shall be compounded every 90 days
following the Closing Date, shall accrue from the Closing Date until the Loan is
paid in full and shall be added to principal as specified in the Loan Agreement.
Upon the occurrence and during the continuance of an Event of Default, interest
on the outstanding principal balance of this Note shall accrue at the Default
Rate specified in Section 4.2 of the Loan Agreement and shall also be compounded
every 90 days following the Closing Date. However, in no event shall the
interest rate exceed the maximum rate permitted by law. Interest shall be
payable on the Maturity Date.
2. Payment of Principal and Interest. The outstanding principal balance
of this Note, together with all accrued but unpaid interest, shall be due and
payable on the Maturity Date. The outstanding principal balance due on this Note
shall be determined as specified in Section 3.2 of the Loan Agreement. The
principal, interest and other sums due on this Note or under the Loan Agreement
shall be reflected by Softbank's records which will be prima facie evidence of
the computation of the amounts owing by OptiMark to Softbank, absent manifest
error.
3. Loan Agreement and Prepayment. This Note is issued pursuant to the
terms of the Loan Agreement and is secured by the Collateral. Voluntary
prepayments of this Note may be made without penalty.
4. Default. If an Event of Default shall occur, then all amounts due or
to become due under this Note or under the Loan Agreement or any of the Related
A-1
Documents shall become, or may be declared, immediately due and payable, all as
further provided in the Loan Agreement.
5. Maximum Amount of Interest. Notwithstanding any contrary provision,
the total liability of OptiMark for payment of interest hereunder shall not
exceed the maximum amount of interest permitted by law, and if any payment made
by the OptiMark includes interest in excess of such a maximum amount, Softbank
shall at any time before or after default apply such excess to the reduction of
principal hereunder.
6. Acceleration. This Note is subject to the provisions on acceleration
contained in Section 8.1 of the Loan Agreement.
7. Waivers by OptiMark. Subject to any provisions to the contrary in
the Loan Agreement, OptiMark waives presentment for payment, demand, notice of
nonpayment, notice of protest and protest of this Note, and all notices in
connection with the delivery, acceptance, or dishonor of this Note. OptiMark
agrees that (a) if for any reason any amount due hereunder is paid by cashier's,
certified teller's check or other check, there shall be no discharge of
OptiMark's obligation until said check be finally paid by the issuer thereof;
and (b) OptiMark shall have waived any rights to any accord and satisfaction of
any now or hereafter existing claim in dispute between Softbank and OptiMark (or
any of their respective successors and assigns), all of which provisions and
rights are hereby waived.
8. No Waiver by Softbank. Softbank shall not by any act of omission or
commission be deemed to waive any of its rights or remedies under this Note or
the Loan Agreement unless such waiver shall be in writing and signed by
Softbank, and then only to the extent specifically set forth therein.
9. Costs and Fees. OptiMark agrees to pay to Softbank all Costs and
Fees (including without limitation, reasonable attorneys' fees) payable under
the provisions of the Loan Agreement, including but not limited to Section 4.1
thereof, all of which provisions are incorporated herein by this reference.
10. Application of Article 3. OptiMark and Softbank agree that the
provisions of Article 3 of the Uniform Commercial Code of New York pertaining to
instruments shall be applied to this Note, even if this Note is not deemed to be
an "instrument" or a "negotiable instrument" thereunder, except that no assignee
of this Note shall have the status of a "holder-in-due course" under that
Article.
11. Governing Law; Venue. This Note shall be governed by and construed
in accordance with the internal laws of the State of New York. Without impairing
the other agreements made by OptiMark in the Loan Agreement, OptiMark hereby
irrevocably makes the agreements set forth in Sections 9.5 (Governing Law;
Venue) of the Loan Agreement.
[Remainder of page intentionally left blank]
A-2
OPTIMARK HOLDINGS, INC.
a Delaware corporation
By
--------------------------------------
Its
-------------------------------------
[Signature Page to SOFTBANK Capital Partners LP Promissory Note]
A-3
PROMISSORY NOTE
[$_______] Dated: February [__], ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
FOR VALUE RECEIVED, the undersigned, OPTIMARK HOLDINGS, INC. a Delaware
corporation, ("OptiMark") promises to pay to the order of SOFTBANK Capital LP, a
Delaware limited partnership ("Softbank"), the principal sum of
[______________________ ________________________ Dollars ($_______)], or such
lesser principal amount as shall then equal the outstanding principal amount
hereof, plus interest, in lawful, immediately available money of the United
States of America.
This Promissory Note ("Note") is issued by OptiMark pursuant to that
certain Loan Agreement dated as of the date hereof, (the "Loan Agreement")
between OptiMark and Softbank. Capitalized terms not otherwise defined in this
Note shall have the meaning set forth in the Loan Agreement, which definitions
are incorporated herein. The terms of the Loan Agreement are also incorporated
herein.
OptiMark further agrees as follows:
1. Interest Rate. Interest on the outstanding principal balance of this
Note shall accrue at the rate of ten percent (10%) per annum, based on a year of
360 days and actual days elapsed. Interest shall be compounded every 90 days
following the Closing Date, shall accrue from the Closing Date until the Loan is
paid in full and shall be added to principal as specified in the Loan Agreement.
Upon the occurrence and during the continuance of an Event of Default, interest
on the outstanding principal balance of this Note shall accrue at the Default
Rate specified in Section 4.2 of the Loan Agreement and shall also be compounded
every 90 days following the Closing Date. However, in no event shall the
interest rate exceed the maximum rate permitted by law. Interest shall be
payable on the Maturity Date.
2. Payment of Principal and Interest. The outstanding principal balance
of this Note, together with all accrued but unpaid interest, shall be due and
payable on the Maturity Date. The outstanding principal balance due on this Note
shall be determined as specified in Section 3.2 of the Loan Agreement. The
principal, interest and other sums due on this Note or under the Loan Agreement
shall be reflected by Softbank's records which will be prima facie evidence of
the computation of the amounts owing by OptiMark to Softbank, absent manifest
error.
3. Loan Agreement and Prepayment. This Note is issued pursuant to the
terms of the Loan Agreement and is secured by the Collateral. Voluntary
prepayments of this Note may be made without penalty.
4. Default. If an Event of Default shall occur, then all amounts due or
to become due under this Note or under the Loan Agreement or any of the Related
Documents shall become, or may be declared, immediately due and payable, all as
further provided in the Loan Agreement.
A-4
5. Maximum Amount of Interest. Notwithstanding any contrary provision,
the total liability of OptiMark for payment of interest hereunder shall not
exceed the maximum amount of interest permitted by law, and if any payment made
by the OptiMark includes interest in excess of such a maximum amount, Softbank
shall at any time before or after default apply such excess to the reduction of
principal hereunder.
6. Acceleration. This Note is subject to the provisions on acceleration
contained in Section 8.1 of the Loan Agreement.
7. Waivers by OptiMark. Subject to any provisions to the contrary in
the Loan Agreement, OptiMark waives presentment for payment, demand, notice of
nonpayment, notice of protest and protest of this Note, and all notices in
connection with the delivery, acceptance, or dishonor of this Note. OptiMark
agrees that (a) if for any reason any amount due hereunder is paid by cashier's,
certified teller's check or other check, there shall be no discharge of
OptiMark's obligation until said check be finally paid by the issuer thereof;
and (b) OptiMark shall have waived any rights to any accord and satisfaction of
any now or hereafter existing claim in dispute between Softbank and OptiMark (or
any of their respective successors and assigns), all of which provisions and
rights are hereby waived.
8. No Waiver by Softbank. Softbank shall not by any act of omission or
commission be deemed to waive any of its rights or remedies under this Note or
the Loan Agreement unless such waiver shall be in writing and signed by
Softbank, and then only to the extent specifically set forth therein.
9. Costs and Fees. OptiMark agrees to pay to Softbank all Costs and
Fees (including without limitation, reasonable attorneys' fees) payable under
the provisions of the Loan Agreement, including but not limited to Section 4.1
thereof, all of which provisions are incorporated herein by this reference.
10. Application of Article 3. OptiMark and Softbank agree that the
provisions of Article 3 of the Uniform Commercial Code of New York pertaining to
instruments shall be applied to this Note, even if this Note is not deemed to be
an "instrument" or a "negotiable instrument" thereunder, except that no assignee
of this Note shall have the status of a "holder-in-due course" under that
Article.
11. Governing Law; Venue. This Note shall be governed by and construed
in accordance with the internal laws of the State of New York. Without impairing
the other agreements made by OptiMark in the Loan Agreement, OptiMark hereby
irrevocably makes the agreements set forth in Sections 9.5 (Governing Law;
Venue) of the Loan Agreement.
[Remainder of page intentionally left blank]
A-5
OPTIMARK HOLDINGS, INC.
a Delaware corporation
By
-------------------------------------
Its
------------------------------------
[Signature Page to SOFTBANK Capital LP Promissory Note]
A-6
PROMISSORY NOTE
[$_____] Dated: February [__], ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
FOR VALUE RECEIVED, the undersigned, OPTIMARK HOLDINGS, INC. a Delaware
corporation, ("OptiMark") promises to pay to the order of SOFTBANK Capital
Advisors Fund LP, a Delaware limited partnership ("Softbank"), the principal sum
of [___________________ ____________________________ Dollars ($_____)], or such
lesser principal amount as shall then equal the outstanding principal amount
hereof, plus interest, in lawful, immediately available money of the United
States of America.
This Promissory Note ("Note") is issued by OptiMark pursuant to that
certain Loan Agreement dated as of the date hereof, (the "Loan Agreement")
between OptiMark and Softbank. Capitalized terms not otherwise defined in this
Note shall have the meaning set forth in the Loan Agreement, which definitions
are incorporated herein. The terms of the Loan Agreement are also incorporated
herein.
OptiMark further agrees as follows:
1. Interest Rate. Interest on the outstanding principal balance of this
Note shall accrue at the rate of ten percent (10%) per annum, based on a year of
360 days and actual days elapsed. Interest shall be compounded every 90 days
following the Closing Date, shall accrue from the Closing Date until the Loan is
paid in full and shall be added to principal as specified in the Loan Agreement.
Upon the occurrence and during the continuance of an Event of Default, interest
on the outstanding principal balance of this Note shall accrue at the Default
Rate specified in Section 4.2 of the Loan Agreement and shall also be compounded
every 90 days following the Closing Date. However, in no event shall the
interest rate exceed the maximum rate permitted by law. Interest shall be
payable on the Maturity Date.
2. Payment of Principal and Interest. The outstanding principal balance
of this Note, together with all accrued but unpaid interest, shall be due and
payable on the Maturity Date. The outstanding principal balance due on this Note
shall be determined as specified in Section 3.2 of the Loan Agreement. The
principal, interest and other sums due on this Note or under the Loan Agreement
shall be reflected by Softbank's records which will be prima facie evidence of
the computation of the amounts owing by OptiMark to Softbank, absent manifest
error.
3. Loan Agreement and Prepayment. This Note is issued pursuant to the
terms of the Loan Agreement and is secured by the Collateral. Voluntary
prepayments of this Note may be made without penalty.
4. Default. If an Event of Default shall occur, then all amounts due or
to become due under this Note or under the Loan Agreement or any of the Related
Documents shall become, or may be declared, immediately due and payable, all as
further provided in the Loan Agreement.
A-7
5. Maximum Amount of Interest. Notwithstanding any contrary provision,
the total liability of OptiMark for payment of interest hereunder shall not
exceed the maximum amount of interest permitted by law, and if any payment made
by the OptiMark includes interest in excess of such a maximum amount, Softbank
shall at any time before or after default apply such excess to the reduction of
principal hereunder.
6. Acceleration. This Note is subject to the provisions on acceleration
contained in Section 8.1 of the Loan Agreement.
7. Waivers by OptiMark. Subject to any provisions to the contrary in
the Loan Agreement, OptiMark waives presentment for payment, demand, notice of
nonpayment, notice of protest and protest of this Note, and all notices in
connection with the delivery, acceptance, or dishonor of this Note. OptiMark
agrees that (a) if for any reason any amount due hereunder is paid by cashier's,
certified teller's check or other check, there shall be no discharge of
OptiMark's obligation until said check be finally paid by the issuer thereof;
and (b) OptiMark shall have waived any rights to any accord and satisfaction of
any now or hereafter existing claim in dispute between Softbank and OptiMark (or
any of their respective successors and assigns), all of which provisions and
rights are hereby waived.
8. No Waiver by Softbank. Softbank shall not by any act of omission or
commission be deemed to waive any of its rights or remedies under this Note or
the Loan Agreement unless such waiver shall be in writing and signed by
Softbank, and then only to the extent specifically set forth therein.
9. Costs and Fees. OptiMark agrees to pay to Softbank all Costs and
Fees (including without limitation, reasonable attorneys' fees) payable under
the provisions of the Loan Agreement, including but not limited to Section 4.1
thereof, all of which provisions are incorporated herein by this reference.
10. Application of Article 3. OptiMark and Softbank agree that the
provisions of Article 3 of the Uniform Commercial Code of New York pertaining to
instruments shall be applied to this Note, even if this Note is not deemed to be
an "instrument" or a "negotiable instrument" thereunder, except that no assignee
of this Note shall have the status of a "holder-in-due course" under that
Article.
11. Governing Law; Venue. This Note shall be governed by and construed
in accordance with the internal laws of the State of New York. Without impairing
the other agreements made by OptiMark in the Loan Agreement, OptiMark hereby
irrevocably makes the agreements set forth in Sections 9.5 (Governing Law;
Venue) of the Loan Agreement.
[Remainder of page intentionally left blank]
A-8
OPTIMARK HOLDINGS, INC.
a Delaware corporation
By
-------------------------------------
Its
------------------------------------
[Signature Page to SOFTBANK Capital Advisors Fund LP Promissory Note]
A-9
EXHIBIT B TO LOAN AGREEMENT
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 ____ 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
____, 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.
B-1
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 ____, 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
B-2
"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
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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]
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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:
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
OPTIMARK, INC.
By:
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CEO
OPTIMARK HOLDINGS, INC.
By:
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CEO
SOFTBANK CAPITAL PARTNERS LP
By: SOFTBANK Capital Partners LLC,
its general partner
By:
------------------------------------
Name:
Title:
SOFTBANK CAPITAL LP
By: SOFTBANK Capital Partners LLC,
its general partner
By:
------------------------------------
Name:
Title:
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SOFTBANK CAPITAL ADVISORS FUND LP
By: SOFTBANK Capital Partners LLC,
its general partner
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇-▇▇▇▇▇▇ JURVETSON EPLANET VENTURES, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Jurvetson ePlanet
Partners, Ltd.,
its general partner
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇ JURVETSON EPLANET
PARTNERS FUND, LLC
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇ JURVETSON EPLANET VENTURES
GMBH & CO. KG
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Jurvetson ePlanet SLP
Germany, Ltd., its special limited partner
By:
------------------------------------
Name:
Title:
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EXHIBIT C TO LOAN AGREEMENT
CLOSING CERTIFICATE
PURSUANT TO SECTION 5.1 OF LOAN AGREEMENT
The undersigned (hereinafter "OptiMark"), through its duly elected and current
Chief Executive Officer, hereby certifies, represents and warrants to each of
SOFTBANK Capital Partners LP, SOFTBANK Capital Advisors LP, and SOFTBANK Capital
LP, each a Delaware limited partnership (together "Softbank"), the following in
connection with the execution and delivery of that certain Loan Agreement dated
as of February [__], 2003 ("Loan Agreement") between OptiMark and Softbank:
1. The representations and warranties of OptiMark contained in the Loan
Agreement and in each Related Document (as defined in the Loan Agreement) are
true and correct in all material respects as of the date hereof as though made
on and as of such date; and
2. The following officers or agents of OptiMark are authorized to
execute the Loan Agreement and every other Related Document on behalf of
OptiMark and each was at the time of such execution, and is now, a duly
authorized appointed officer or agent of OptiMark duly authorized to execute and
deliver such documents and to bind OptiMark to the terms and conditions thereof.
Each signature on behalf of OptiMark appearing on the Loan Agreement and each of
the Related Documents is the genuine signature of such officer. Any corporate
seal required by law or otherwise to appear on the Loan Agreement or any Related
Document has been affixed by OptiMark.
The names of the aforesaid authorized officers and agents and their
true and correct signatures are as follows:
-------------------------- -------------------------------
(Name of Officer or Agent) (Signature of Officer or Agent)
-------------------------- -------------------------------
(Name of Officer or Agent) (Signature of Officer or Agent)
3. Except as previously disclosed to Softbank in writing, to the best
of the undersigned's knowledge, OptiMark is not now in default in any material
respect under any material agreement or other instrument to which it is a party
or by which it is bound;
4. No event or condition has occurred and is continuing or would result
from the incurring of obligations by OptiMark under the Loan Agreement or any
Related Documents which is, or with the lapse of time or notice or both would
be, an Event of Default under the Loan Agreement or any of the Related
Documents.
5. The Board of Directors of OptiMark, pursuant to duly adopted
resolutions or by unanimous consent (either of which is attached hereto), has
authorized the execution,
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delivery, and performance by OptiMark of its obligations under the Loan
Agreement and all Related Documents to which it is a party, which resolutions or
consents remain in full force and effect and none of the proceedings had or
actions taken by OptiMark with respect to any of the foregoing have been
rescinded, revoked or repealed;
6. No document delivered pursuant to Section 5.1 of the Loan Agreement
has been amended or canceled since the date of certification or delivery
thereof; and
7. If the Loan Agreement or any Related Document was executed and/or
delivered by OptiMark or any other party prior to the date hereof, none of such
agreements or documents has been withdrawn or renounced by OptiMark or any other
party thereto and each remains in full force and effect.
DATED: February __, 2003 OPTIMARK HOLDINGS, INC.
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
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EXHIBIT D TO LOAN AGREEMENT
FORM OF GUARANTY
EXHIBIT E TO LOAN AGREEMENT
FORM OF SECURITY AGREEMENT