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EXHIBIT 10.8
STOCK OPTION AGREEMENT
THIS AGREEMENT is made this _______ day of ___________, 199__, by and
between OptiMark Technologies, Inc., a Delaware corporation (hereinafter
referred to as "Employer"), and ______________________ (hereinafter referred to
as "Employee").
WHEREAS, Employee is a valued and trusted employee of Employer, or of
a subsidiary of Employer, and Employer considers it desirable and in its best
interest that Employee be given an inducement to acquire a proprietary interest
in Employer, as an added incentive to advance the interests of Employer, by
giving Employee an option to purchase common stock of Employer in accordance
with the Incentive Stock Option Plan (hereinafter referred to as the "Plan")
adopted by the Board of Directors of Employer's predecessor on July 15, 1994,
and approved by the shareholders of Employer's predecessor as of July 15, 1994,
and adopted by Employer as its own plan on July 29, 1996;
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN EMPLOYER AND EMPLOYEE AS
FOLLOWS:
1. OPTION GRANTED. Employer hereby and herein grants Employee an
option to purchase _________ shares of OptiMark Technologies, Inc. common stock
subject to the terms and conditions contained herein. 20% of the shares of
OptiMark Technologies, Inc. common stock subject to the option shall vest each
year on the anniversary of ____________, beginning on ____________, 1999, and
ending on ____________, 2003, provided that Employee is employed by Employer or
a subsidiary of Employer (hereinafter also referred to as "Employer") on the
applicable anniversary date.
2. EXERCISE PRICE OF OPTION. Employee shall be entitled to exercise
the option granted herein at a purchase price of _____________________
($_____.__) per share, said price being the fair market value of a share of
Employer's common stock on the date the option is granted.
3. CUMULATIVENESS OF OPTION. The right to exercise the option
granted herein is cumulative, so that if Employee does not exercise his/her
option at the moment the option is first exercisable, as described in Paragraph
1 hereof, his/her right to exercise the same shall not lapse, but shall
continue, subject to the other conditions contained in this Agreement, until
such time as the option shall terminate, as described in Paragraph 6 hereof.
4. EXERCISE OF OPTION. Subject to the other conditions contained in
this Agreement, exercise of the option granted herein shall be made by the
giving of written notice to Employer by Employee. Such written notice shall be
deemed sufficient for purposes of this Agreement only if such notice is
delivered by registered or certified mail to Employer at its principal office,
states the number of shares with respect to which the option is being
exercised, and further states the date, not more than ninety (90) days after
the date of such notice, on which the shares of
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stock shall be taken up and payment therefor shall be made. If payment is not
received within the ninety (90) days after the date of such notice, the written
notice shall be deemed null and void.
The payment for shares of stock taken up pursuant to an
exercise of the option granted herein shall be made in cash or certified check
at the principal office of Employer or at any office of a transfer agent
appointed for the shares of the stock of Employer. Upon an exercise of the
option granted herein in compliance with the provisions of this paragraph, and
upon the receipt by Employer or its transfer agent of payment for the stock so
taken up, Employer shall deliver or cause to be delivered to Employee so
exercising his/her option a certificate or certificates for the number of
shares of stock with respect to which the option is so exercised and payment is
so made.
5. TRANSFER OF OPTION. The option granted herein shall not be
transferred by Employee, other than by will or the laws of descent and
distribution, and shall be exercisable, during his/her lifetime, only by
Employee. Notwithstanding the above, in the event of Employee's death, the
representative of Employee's estate, or the person who received by bequest or
inheritance the right to exercise such option, may exercise the option to the
same extent as if the option were being exercised by the decedent, and subject
to the same conditions as the decedent, except as otherwise noted herein.
6. TERMINATION OF OPTION. Upon the termination of Employee's
employment with Employer, whether by disability, death, retirement or
otherwise, any option, or part thereof, which is not exercisable as of the date
the Employee's employment so terminates (hereinafter referred to as
"Termination Date"), shall also terminate. As to any option, or part thereof,
which is exercisable on the Termination Date:
(a) in the event of Employee's disability (within the meaning
of Section 22(e)(3) of the Internal Revenue Code) while employed by Employer,
any option, or part thereof, granted to Employee under the Plan, which is
exercisable on the Termination Date and not previously exercised or otherwise
expired, shall be exercisable at any time within one (1) year from the date
Employee's employment so terminates;
(b) in the event of Employee's death while employed by
Employer, any option, or part thereof, granted to Employee under the Plan,
which is exercisable on the Termination Date and not previously exercised or
otherwise expired, shall be exercisable at any time within six (6) calendar
months from the date of Employee's death;
(c) in the event Employee's employment with Employer is
terminated as a result of the retirement of Employee, any option, or part
thereof, granted to Employee under the Plan, which is exercisable on the
Termination Date and not previously exercised or otherwise expired, shall be
exercisable at any time within ninety (90) days from the date employment so
terminates;
(d) in the event Employee's employment with Employer is
terminated by Employer, whether or not for Cause, any option, or part thereof,
granted to Employee under the Plan, which is exercisable on the Termination
Date and not previously exercised or otherwise expired, shall be exercisable at
any time within thirty (30) days from the date employment so terminates;
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(e) in the event Employee's employment with Employer is
terminated other than by disability, death, retirement or Employer (as provided
in Paragraphs 6(a), 6(b), 6(c) or 6(d) above), any option, or part thereof,
granted to Employee under the Plan, which is exercisable on the Termination
Date and not previously exercised or otherwise expired, shall be exercisable at
any time within thirty (30) days from the date employment so terminates;
Notwithstanding the above provisions, no option granted herein shall
be exercisable at any time after ten (10) years have passed from the date this
option is granted.
7. CHANGE OF CONTROL. In the event Employee's employment is
terminated by OptiMark (or its successor) without Cause within one year
following a Change in Control, any option granted to Employee under the Plan
shall become fully vested and exercisable in accordance with Section 6(d).
8. OWNERSHIP OF STOCK. Employee will not be deemed to be a holder of
any shares as to which this option is granted, and shall have none of the
rights of a shareholder as to any of the shares as to which this option is
granted, until payment of the option price by him/her and delivery of a stock
certificate to him/her for such shares, and then shall be deemed a holder of
shares with the corresponding shareholder rights only as to the number of
shares for which Employee has paid and a stock certificate delivered. Except
as otherwise provided in this Agreement, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date such
stock certificate is delivered.
All shares taken up by Employee pursuant to any exercise of
the option granted herein shall be registered in the name of Employee or in the
name of Employee jointly with his/her spouse. Nothing contained herein,
however, shall be construed to prohibit any shares taken up by Employee
pursuant to any exercise of the option granted herein from being registered in
the name of a trust pursuant to a qualified 401(k) plan or qualified family,
living or similar trust wherein the beneficiary of such plan or trust is
Employee or Employee and his/her heirs.
9. LIMITATION ON EXERCISE. The option granted herein may not be
exercised if the issuance of shares of common stock of Employer upon such
exercise would constitute a violation of any applicable Federal or State
securities or other laws. Employee, as a condition to his/her exercise of this
option, shall represent to Employer that the shares of common stock of Employer
that Employee acquires under this option are being acquired by and for Employee
for investment and not with a present view to distribution or resale, unless
counsel for Employer is of the opinion that such a representation is not
required under the Securities Act of 1933 or any other applicable law,
regulation or rule of any governmental agency or private regulating body.
Furthermore, the option granted herein shall be subject to the requirement that
if at any time Employer shall determine, in its sole discretion, that the
listing, registration or qualification of the shares covered thereby under any
State or Federal law, or the consent of or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in connection
with, the granting of such option, or the issue or purchase thereunder, such
option shall not be exercised in whole or in part unless and until such
listing, registration, qualification, consent, or approval shall have been
effected or obtained free of
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any condition not acceptable to Employer.
10. EFFECTIVE DATE OF PLAN. The Plan shall take effect upon its
approval by the shareholders of Employer, and when so approved shall be deemed
to have been in full force and effect from and after the date on which it is
adopted for Employer by action of its Board of Directors.
11. ACKNOWLEDGEMENT. Employee acknowledges receipt of a copy of the
Plan, a copy of which is annexed hereto, and represents that he/she is familiar
with the terms and provisions thereof. The Plan is incorporated herein by
reference. Employee hereby accepts this option subject to all the terms and
provisions of the Plan. Employee hereby agrees to accept, as binding,
conclusive and final, all decisions and interpretations of the Board of
Directors of Employer upon any question arising under the Plan. The Plan and
this Agreement constitute the entire agreement of the parties with respect to
the subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Employer and Employee with respect to the
subject matter hereof, and may not be modified adversely to the Employee's
interest except by means of a writing signed by the Employer and Employee. As
a condition to the issuance of shares of common stock of Employer under this
option, Employee authorizes Employer to withhold, in accordance with applicable
law, from any regular cash compensation payable to him, any taxes required to
be withheld by Employer under Federal, State or local law as a result of his
exercise of this option. This agreement is governed by the internal
substantive laws, but not the choice of law rules, of Colorado.
12. NO GUARANTEE OF CONTINUED SERVICE. EMPLOYEE ACKNOWLEDGES AND
AGREES THAT THE OPTION TO PURCHASE SHARES PURSUANT HERETO IS EARNED ONLY BY
CONTINUING AS A SERVICE PROVIDER AT THE WILL OF EMPLOYER (AND NOT THROUGH THE
ACT OF BEING HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES HEREUNDER).
EMPLOYEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF
CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR ANY PERIOD, OR AT ALL, AND SHALL
NOT INTERFERE WITH EMPLOYEE'S RIGHT OR EMPLOYER'S RIGHT TO TERMINATE EMPLOYEE'S
RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.
13. LOCK-UP PERIOD. Employee hereby agrees that, if so requested by
Employer or any representative of the underwriters (the "Managing Underwriter")
in connection with any registration of the offering of any securities of
Employer under the Securities Act, Employee shall not sell or otherwise
transfer any shares of OptiMark Technologies, Inc. common stock or other
securities of Employer during the 180-day period (or such other period as may
be requested in writing by the Managing Underwriter and agreed to in writing by
Employer) (the "Market Standoff Period") following the effective date of a
registration statement of Employer filed under the Securities Act. Such
restriction shall apply only to the first registration statement of Employer
to become effective under the Securities Act that includes securities to be
sold on behalf of Employer to the public in an underwritten public offering
under the Securities Act. Employer may impose stop-transfer instructions with
respect to securities subject to the foregoing restrictions until the end of
such Market Standoff Period.
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Signed and sealed on the date first above written with intent to
be legally bound.
EMPLOYER
OPTIMARK TECHNOLOGIES, INC.
By:
EMPLOYEE
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(Signature)
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(Name: Typed or Printed)
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