Exhibit 10.2
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AMENDMENT NO. 3, dated as of August 8, 2002 (the "Amendment")
to the EMPLOYMENT AGREEMENT dated as of August 16, 2001 (as previously amended,
the "Agreement"), between OPTIMARK HOLDINGS, INC., a Delaware corporation (the
"Company"), and XXXXXX X. XXXXXXX, an individual (the "Executive"). Capitalized
terms used herein without definition shall have the meanings ascribed to them in
the Agreement. All references below to "Sections" are to the corresponding
Sections of the Agreement.
Whereas the Executive has been serving as the interim Chief Executive
Officer of The Ashton Technology Group, Inc. ("Ashton") at the request of the
Company; and
Whereas, the Company and the Executive desire to amend the Agreement in
accordance with the terms hereof to reflect their understanding concerning the
Executive's service at Ashton.
Accordingly, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are mutually acknowledged, the Company and the Executive agree
to amend the Agreement as follows:
SECTION 1.01. Amendment to Section 2. Section 2 of the
Agreement is hereby amended by adding the following sentences at the end
thereof:
"The Company and the Executive agree that the Term of
Employment is hereby extended for an additional one-year period ending
on August 13, 2003. The Executive's Base Salary shall remain at
$250,000, and the annual incentive award described in Section 5(a)
shall continue, during such period."
SECTION 1.02. Amendment to Section 3. The following new
paragraphs (c) and (d) are hereby added to the end of Section 3 of the
Agreement:
"(c) The Executive shall continue to serve as interim Chief
Executive Officer of Ashton until December 31, 2002, or if earlier,
until Ashton employs a permanent Chief Executive Officer. The Executive
shall also continue to serve as a member of the board of directors of
Ashton and such other companies as the Company and the Executive
mutually agree upon. The Executive may be compensated for his duties as
a member of the board of directors of Ashton (after he ceases to serve
as Chief Executive Officer) and of any other companies at which he is
not employed.
(d) A portion of the Executive's compensation, including,
without limitation, the Base Salary and any incentive awards, may be
paid by Ashton. The amount payable by the Company as Base Salary and
annual incentive awards hereunder shall be reduced by the amount of any
cash payments received by the Executive from Ashton on or before
December 31, 2002;
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provided, however, that the Company shall continue to be
liable for all amounts due under this Agreement to the extent they are
not so paid by Ashton. In no event shall the total compensation paid to
the Executive by the Company and Ashton be less than the amounts due to
the Executive under this Agreement."
SECTION 1.03. Amendment to Section 5. The following paragraphs
(c) and (d) are hereby added to the end of Section 5 of the Agreement:
"(c) The Company shall pay the Executive a cash bonus of
$45,000 promptly following the execution of this Agreement.
(d) The Company shall pay the Executive a cash bonus of
$80,000 upon the employment of a full time Chief Executive Officer by
Ashton or upon Ashton's termination of the Executive's employment as
Ashton's Chief Executive Officer."
SECTION 1.04. Amendment to Section 9(d)(ii). Section 9(d)(ii)
of the Agreement is hereby amended and restated in its entirety to read as
follows:
"a severance payment equal to the sum of one year's
Base Salary, which is payable in installments in accordance
with the Company's regular payroll practices; provided,
however, that if the Executive's employment hereunder is
terminated within six months after the date the Executive
receives the bonus described in Section 5(d), he shall instead
receive a prompt lump-sum severance payment equal to
$125,000;"
SECTION 1.05. Amendment to Section 9(d)(iii). Section
9(d)(iii) of the Agreement is hereby amended and restated in its entirety to
read as follows:
"accelerated vesting of any option tranche that would
otherwise have vested within one year of the Termination Date;
provided, however, that no less than 75% of the original
options granted pursuant to Section 6 of this Agreement shall
become vested as of the Termination Date; and the ability to
exercise any vested options until the earliest of (i) three
years from the Termination Date; (ii) ninety days following
the date of the Company's underwritten public offering or a
Change in Control in which holders of the Company's Series F
Preferred Stock (including the Executive if he elects to
exercise options on Series F Preferred Stock) will receive
consideration, but in no event less than 90 days from the
Termination Date; or (iii) the maximum stated term of the
option;"
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SECTION 1.06. Amendment to Section 9(f). Section 9(f) of the
Agreement is hereby amended and restated in its entirety to read as follows:
"(f) Expiration of the Term of Employment. In the event that
the Executive's employment terminates because the Company has
delivered notice not to renew this Agreement in accordance
with Section 2 or because the Executive has delivered notice
not to renew this Agreement under the circumstances set forth
in the proviso at the end of Section 4, then the Executive
shall be entitled to:
(i) the Standard Benefits;
(ii) accelerated vesting of any option tranche that
would otherwise have vested within one year of the Termination
Date; provided, however, that no less than 75% of the original
options granted pursuant to Section 6 of this Agreement shall
become vested as of the Termination Date; and the ability to
exercise any vested options until the earliest of (i) three
years from the Termination Date; (ii) ninety days following
the date of the Company's underwritten public offering or a
Change in Control in which holders of the Company's Series F
Preferred Stock (including the Executive if he elects to
exercise options on Series F Preferred Stock) will receive
consideration, but in no event less than 90 days from the
Termination Date; or (iii) the maximum stated term of the
option; and
(iii) a severance payment equal to the sum of one
year's Base Salary, which is payable in installments in
accordance with the Company's regular payroll practices."
SECTION 1.07. Addition of Section 11(d). The following new
paragraph (d) is hereby added to the end of Section 11:
"(d) The Company agrees that, to the extent that the Executive
is not indemnified by Ashton, the indemnification provided by this
Section 11 shall apply to any Proceedings or Claims arising out of the
Executive's service as a director, officer, employee, agent, manager,
consultant or representative of Ashton."
SECTION 2.01. Effect of Amendment. Except as specifically
amended hereby, all of the agreements, terms and provisions of the Agreement
remain unchanged and are hereby ratified and confirmed. All references in any
other documents to the Agreement shall be deemed to refer to the Agreement as
amended hereby.
SECTION 2.02. Reimbursement of Legal Expenses. The Company
shall promptly reimburse the Executive for any and all expenses (including,
without
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limitation, attorney's fees and other charges of counsel) incurred by the
Executive in connection with the negotiation and documentation of this
Amendment.
SECTION 2.03. Governing Law. This Amendment shall be governed,
construed, performed and enforced in accordance with the laws of the State of
New York, without reference to principles of conflicts of laws, his employment
agreement with Ashton and any related maters.
SECTION 2.04. Counterparts. This Amendment may be executed in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this
Amendment as of the date first set forth above.
OPTIMARK HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Secretary
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
