Exhibit 10.2
INVESTOR RIGHTS AGREEMENT
INVESTOR RIGHTS AGREEMENT (this "Agreement"), dated as of
April 10, 2007, by and among: (a) Optionable, Inc., a Delaware corporation (the
"Company"), (b) NYMEX Holdings, Inc., a Delaware corporation (the "Investor"),
and (c) Xxxx Xxxxxxxxx, Xxxxxx X'Xxxxxx, through Ridgecrest Capital, Inc., a New
York corporation ("Ridgecrest"), and Xxxxx Xxxxxxx, through Xxxxxxxx Capital,
Inc., a New York corporation ("Xxxxxxxx") (each a "Founder" and collectively,
the "Founders").
WHEREAS, as part of the transactions contemplated by the Stock
and Warrant Purchase Agreement, dated as of April 10, 2007 (the "Stock and
Warrant Purchase Agreement"), by and among the Company, the Investor and the
Founders, the Investor is purchasing (i) an aggregate 10,758,886 shares of
Common Stock (as defined below) of the Company from the Founders, and (ii) the
Warrant (as defined below) from the Company;
WHEREAS, the Investor, the Founders and the Company desire to
enter into this Agreement for the purpose of governing certain aspects of the
Stockholders' (as defined below) relationships with each other and the Company;
and
WHEREAS, it is in the best interests of the Company and the
Stockholders that such aspects of their relationships be so governed;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein and intending to be legally bound the parties
hereto hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the
following terms shall have the meanings ascribed to them below:
(a) "Acceptance Period" has the meaning set forth in Section
2(a)(i) hereof.
(b) "Accepted Number" has the meaning set forth in Section
2(a)(ii) hereof.
(c) "Affiliate" of any Person means any other Person which
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. The term "control"
(including the terms "controlling," "controlled by" and "under common control
with") as used with respect to any Person means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise. Notwithstanding anything to the contrary herein, none of
(i) the Investor (and its Affiliates) nor (ii) any of the individual Founders
(and their Affiliates) shall be deemed to be an Affiliate of any other.
(d) "Agreement" has the meaning set forth in the introductory
paragraph.
(e) "Business Day" means any day that is not a Saturday, a
Sunday or other day on which banks are required or authorized by law to be
closed in New York, New York.
(f) "Change of Control" means the acquisition by any
independent third party or group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act, or any successor provision), including any
group acting for the purpose of acquiring, holding or disposing of securities
(within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single
transaction or in a related series of transactions, by way of merger,
consolidation or other business combination or purchase of beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act, or any successor
provision) of 50% or more of the total voting power of the Common Stock or
voting stock of the Company (directly or through the acquisition of voting power
of voting stock of any of the Company's direct or indirect parent companies, if
applicable).
(g) "Common Stock" means the common stock, par value $0.0001
per share, of the Company.
(h) "Company" has the meaning set forth in the introductory
paragraph and any successor corporation.
(i) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(j) "Excluded Stock" means any shares of Common Stock (A)
issued upon exercise of options granted under the Company's 2004 stock option
plan, (B) issued upon exercise of any other options, warrants or other rights
outstanding on the date hereof, (C) issued to officers and employees pursuant to
employment agreements in existence on the date hereof, (D) issued as
consideration when any corporation or business is acquired, merged into, or
becomes part of the Company or a subsidiary of the Company, (E) issued upon
exercise of any options, warrants or other rights assumed by the Company in
connection with a merger or other acquisition, provided, that such options,
warrants or other rights assumed by the Company shall not have been issued in
connection with or in contemplation of such merger or acquisition, (F) issued in
good faith in connection with any other acquisition of assets in an arms-length
transaction between the Company and an unaffiliated third party, (G) issued to,
or pursuant to rights granted to, unaffiliated market makers who enter into
warrant agreements with the Company and the issuance of such shares, or the
exercise of such rights, is (x) subject to the achievement by the market maker
of specified volume milestones in cleared products, and (y) at an issuance, or
exercise, price that is not less than the fair market value of the Common Stock
on the date of grant, or (H) issued to, or pursuant to rights granted to,
unaffiliated landlords, equipment lessors, lenders, other financial
institutions, or other vendors to, or strategic partners of, the Company;
provided, that any shares issuable pursuant to sections (D), (F) and (H) above
in excess of 300,000 shares in the aggregate, and any shares issuable pursuant
to section (G) above in excess of 1,200,000 shares in the aggregate shall not
constitute Excluded Stock.
(k) "First Offer" has the meaning set forth in Section 2(a)(i)
hereof.
(l) "Founders" has the meaning set forth in the introductory
paragraph.
(m) "Governmental Entity" means any national, federal, state,
municipal, local, territorial, foreign or other government or any department,
commission, board, bureau, agency, regulatory authority or instrumentality
thereof, or any court, judicial, administrative or arbitral body or public or
private tribunal.
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(n) "Investor" has the meaning set forth in the introductory
paragraph.
(o) "Investor Director" has the meaning set forth in Section 4
hereof.
(p) "Offer" has the meaning set forth in Section 2(c) hereof.
(q) "Offered Shares" has the meaning set forth in Section
2(a)(i) hereof.
(r) "own," "hold" or "held" (and words of similar import),
with respect to any shares of Common Stock, means either held of record or
beneficially owned within the meaning of Rule 13d-3 under the Exchange Act.
(s) "Person" means any individual, sole proprietorship,
partnership, limited liability company, joint venture, trust, incorporated
organization, association, corporation, institution, public benefit corporation,
Governmental Entity or other entity, and shall include any successor (by merger
or otherwise) of such entity.
(t) "Registration Rights Agreement" means that certain
Registration Rights Agreement, dated as of the date hereof, by and between the
Company and the Investor.
(u) "SEC" means the Securities and Exchange Commission or any
successor agency thereto.
(v) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC thereunder, as shall be in
effect from time to time.
(w) "Stock and Warrant Purchase Agreement" has the meaning set
forth in the recitals.
(x) "Stockholder" means the Investor and each Founder and, as
the context requires, their respective transferees to the extent that they are
required to be bound by the terms and provisions hereof and/or to the extent
that they have succeeded to the transferor's rights hereunder pursuant to the
terms and provisions hereof.
(y) "Stockholder Acceptance Period" has the meaning set
forth in Section 2(b)(i) hereof.
(z) "Stockholder Accepted Number" has the meaning set forth in
Section 2(b)(ii) hereof.
(aa) "Stockholder First Offer" has the meaning set forth in
Section 2(b)(i) hereof.
(bb) "Stockholder Offered Shares" has the meaning set forth in
Section 2(b)(i) hereof.
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(cc) "Stockholder Offeror" has the meaning set forth in
Section 2(b)(i) hereof.
(dd) "Third Party" means any Person (other than the Investor
or a Founder) that (i) is a prospective transferee of (A) Offered Shares from
the Company or (B) Stockholder Offered Shares from any Stockholder or (ii) makes
an Offer to the Company or any Founder.
(ee) "Transfer" has the meaning set forth in Section 2(a)(i)
hereof.
(ff) "Voting Stock" means the Common Stock and any other class
or series of securities of the Company having the power to elect directors (and
shall include any shares of Voting Stock issuable upon exercise, conversion or
exchange of securities exercisable or exchangeable for or convertible into
shares of Voting Stock).
(gg) "Warrant" means the warrant issued by the Company to the
Investor pursuant to the Stock and Warrant Purchase Agreement to purchase from
time to time such number of shares of Common Stock so as to increase the
Investor's ownership of the Company's Common Stock to an amount not to exceed
40% of the Company's then outstanding Common Stock on a fully diluted basis
(based on the assumption that the Investor had retained ownership of all the
shares of Common Stock purchased under the Stock and Warrant Purchase Agreement,
plus all shares of Common Stock issued upon exercise of the Warrant).
Section 2. Right of First Refusal; Change of Control Offers.
For so long as the Investor owns or holds at least 5,379,443 shares of Common
Stock:
(a) Transfers by the Company.
(i) If at any time the Company proposes to sell,
transfer or otherwise dispose of (a "Transfer"), any shares of Common
Stock (a "Company Offer"), options to purchase or rights to subscribe
for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock, or options to purchase or rights to
subscribe for such convertible or exchangeable securities (other than
shares issuable upon the exercise of options, warrants or convertible
securities outstanding as of January 22, 2007) (the "Offered Shares")
to any bona fide Third Party, the Company shall, before such Transfer,
deliver to the Stockholders an offer (the "First Offer") to Transfer to
the Stockholders a pro rata percentage of the Offered Shares based on
each Stockholder's percentage ownership interest in the Company and
upon the terms set forth in this Section 2(a). The First Offer shall
state that the Company proposes to Transfer the Offered Shares and
specify the number of Offered Shares and the terms (including the
purchase price) of the proposed Transfer and the maximum number of
Offered Shares each Stockholder would be entitled to purchase pursuant
to this Section 2(c), which is equal to such Stockholder's pro-rata
portion of the Offered Shares. The First Offer shall remain open and
irrevocable for a period of fifteen (15) days (the "Acceptance Period")
from the date of its receipt by the Stockholders.
(ii) Any of the Stockholders may accept the First
Offer, in whole or in part, by delivering to the Company written notice
within the Acceptance Period, which notice shall state the number of
Offered Shares such Stockholder desires to purchase (the "Accepted
Number").
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(iii) The Transfer of Offered Shares to a
Stockholder, to the extent a Stockholder has exercised its rights under
this Section 2(a), shall be made on a Business Day, as designated by
the Company, not less than ten (10) nor more than thirty (30) days
after expiration of the Acceptance Period on the terms and conditions
specified in the First Offer, which terms and conditions shall be
identical to the terms of the proposed Transfer to the Third Party.
(iv) If the number of Offered Shares exceeds the
aggregate Accepted Number of Offered Shares with respect to which the
Stockholders exercised their rights under this Section 2(a), the First
Offer shall be deemed to be withdrawn with respect to such excess and
the Company may Transfer, subject to the provisions of Section 3
hereof, such excess Offered Shares on the terms, conditions and
purchase price specified in the First Offer (which shall be the same
terms, conditions and purchase price available to a Stockholder
exercising rights pursuant to this Section 2(a)) to any Third Party
within ninety (90) days after expiration of the Acceptance Period. If
such Transfer is not made within such 90 day period, the restrictions
provided for in this Section 2(a) shall again become effective.
(v) In the event the Company or such Third Party, as
the case maybe, shall modify the terms of the proposed Transfer of
Offered Shares in any way, the Company shall send an amended First
Offer to each of the Stockholders. Each Stockholder shall, if it so
desires to exercise its right of First Offer, as so amended, prior to
the later of five (5) days after the date such amended First Offer is
received by such Stockholder or the end of the original Acceptance
Period, deliver to the Offeror an amended notice of acceptance
specifying the amended Accepted Number and/or such other amended term
of acceptance pursuant to this Section 2(a).
(b) Transfers by a Stockholder.
(i) In the event of a proposed Transfer of Common
Stock beneficially owned by any of the Stockholders (a "Stockholder
Offeror") which, in one or a series of related transactions, represents
5% or more of the Company's then outstanding Common Stock on a fully
diluted basis ("Stockholder Offered Shares") to any bona fide Third
Party, the Stockholder Offeror shall, before such Transfer, deliver to
the other Stockholders an offer (the "Stockholder First Offer") to
Transfer to such Stockholders a pro rata percentage of the Stockholder
Offered Shares based on each other Stockholder's percentage ownership
interest in the Company and upon the terms set forth in this Section
2(b); provided, however, that this Section 2(b) shall not apply in
connection with (A) any sales by the Investor in an underwritten
offering or in any such other offering by the Investor, both as
described in the Registration Rights Agreement or pursuant to Rule 144
(provided that the purchaser of the shares sold by the Investor in any
such non-underwritten offering shall not, as a result of such purchase
from the Investor, hold more than 5% of the Common Stock of the
Company), (B) any transfers by the Investor to a wholly-owned
subsidiary, (C) any distribution to the stockholders of the Investor,
(D) in the case of a Founder which is a corporation (v) any transfer to
a wholly-owned subsidiary, or (w) any distribution to the stockholders
of such corporation, (E) in the case of a Founder (or any distributee
of shares from a Founder permitted by clause (D)(w), above), any
transfer to (x) a spouse, sibling or lineal ancestor or descendant or
any adopted children, (y) a trust or trusts of which a Founder (or
permitted distributees) are the primary beneficiaries or charitable
remainder trusts in which any such stockholder (or permitted
distributee) has an interest, or (z) a partnership or limited liability
company in which any such Founder (or permitted distributees) are the
only partners or members, as the case may be; provided, however that
any such transferee or other recipient receiving shares of Common Stock
pursuant to a transfer governed by subsections (B), (C), (D) or (E) of
this Section 2(b) will agree to become bound by the same restrictions
on transfer and right of first refusal provisions and in the same
manner as the Investor and the Founders, as applicable. The Stockholder
First Offer shall state that the Stockholder Offeror proposes to
Transfer the Stockholder Offered Shares and specify the number of
Stockholder Offered Shares and the terms (including the purchase price)
of the proposed Transfer. The Stockholder First Offer shall remain open
and irrevocable for a period of fifteen (15) days (the "Stockholder
Acceptance Period") from the date of its receipt by the other
Stockholders.
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(ii) The other Stockholders may accept the
Stockholder First Offer by delivering to the Stockholder Offeror
written notice within the Stockholder Acceptance Period, which notice
shall state the number of Stockholder Offered Shares such other
Stockholder desires to purchase (the "Stockholder Accepted Number").
(iii) The Transfer of Stockholder Offered Shares to
the other Stockholders to the extent the other Stockholders have
exercised their rights under this Section 2(b), shall be made on a
Business Day, as designated by the Stockholder Offeror, not less than
ten (10) nor more than thirty (30) days after expiration of the
Stockholder Acceptance Period on the terms and conditions specified in
the Stockholder First Offer, which terms and conditions shall be
identical to the terms of the proposed Transfer to the Third Party.
(iv) If the number of Stockholder Offered Shares
exceeds the aggregate Stockholder Accepted Number of Stockholder
Offered Shares with respect to which the other Stockholders exercised
their rights under this Section 2(b), the Stockholder First Offer shall
be deemed to be withdrawn with respect to such excess and the
Stockholder Offeror may Transfer, subject to the provisions of Section
3 hereof, such excess Stockholder Offered Shares on the terms,
conditions and purchase price specified in the Stockholder First Offer
(which shall be the same terms, conditions and purchase price available
to the other Stockholders exercising rights pursuant to this Section
2(b)) to any Third Party within ninety (90) days after expiration of
the Stockholder Acceptance Period. If such Transfer is not made within
such 90 day period, the restrictions provided for in this Section 2(b)
shall again become effective.
(v) In the event a Stockholder Offeror or such Third
Party, as the case maybe, shall modify the terms of the proposed
Transfer of Stockholder Offered Shares in any way, the Stockholder
Offeror shall send an amended Stockholder First Offer to the other
Stockholders. The other Stockholders shall, if they so desire to
exercise their right of Stockholder First Offer, as so amended, prior
to the later of five (5) days after the date such amended Stockholder
First Offer is received by such other Stockholders or the end of the
original Stockholder Acceptance Period, deliver to the Stockholder
Offeror an amended notice of acceptance specifying the amended
Stockholder Accepted Number and/or such other amended term of
acceptance pursuant to this Section 2(b).
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(c) Transfer Leading to Change of Control. In the event that
any of the Company or the Founders has received a bona fide offer (an "Offer")
by an independent Third Party to purchase shares of capital stock of the Company
(including shares with preferential voting rights and shares issuable upon
conversion or exercise of options and warrants or other convertible securities
of the Company) that would reasonably likely lead to a Change of Control, before
accepting such Offer (i) the Company or the Founder, as the case may be, shall,
within three (3) days of receipt of such Offer, provide written notice to the
Investor of the identity of the independent Third Party and the material terms
and conditions of the Offer, and (B) afford the Investor a period of ten (10)
days in which to submit its own proposal for a Change of Control transaction. In
the event that the Company or the Founder, as the case may be, does not receive
a proposal for a Change of Control transaction from the Investor within such 10
day period, the Company or the Founder, as the case may be, shall be free to
accept the Offer upon terms no less favorable than those set forth in the
original Offer. In the event that the Company does receive a proposal for a
Change of Control transaction from the Investor, the Board of Directors of the
Company, in the good faith exercise of its business judgment, may determine to
accept neither offer, to accept the offer which the Board of Directors finds to
be more favorable to the Company or to solicit additional offers from the
independent Third Party, the Company and others. In the event of any
inconsistency between the provisions of Section 2(a) and this Section 2(c) with
respect to an Offer likely to lead to a Change of Control, the provisions of
this Section 2(c) shall control.
(d) The right of first refusal set forth in Sections 2(a) and
2(b) above shall not apply with respect to Excluded Stock.
Section 3. Standstill. The Investor will not purchase any
additional shares of the Company's Common Stock until the one year anniversary
of the date hereof, provided, however, that, notwithstanding the foregoing, the
foregoing shall not restrict, limit, prohibit or prevent (i) the Investor
Director from taking any action or omitting to take any action in his capacity
as a director of the Company, (ii) the Investor from voting its securities at
any meeting of the stockholders or by written consent in lieu thereof in any
manner determined by the Investor, (iii) any representative of the Investor who
serves as a director, officer or Affiliate of any other company (other than a
subsidiary of the Investor) from taking any action or omitting to take any
action in his capacity as a director, officer or Affiliate of such company, (iv)
the Investor from exercising its rights of first refusal (as described in
Section 2), (v) the Investor from exercising the Warrant, or (vi) the Investor
from investing in any entity that, prior to contemplation of any such
investment, owns or holds shares of the Company's Common Stock.
Section 4. Corporate Governance.
(a) As of the date hereof and for so long as the Investor owns
or holds at least 5,379,443 shares of Common Stock, the Investor will be
entitled to designate one (1) person (reasonably acceptable to the Company) that
the Company is required to nominate as a member of the Company's board of
directors (the "Investor Director"), who shall initially be Xxxxxxxx Xxxxxx, and
each of the Founders shall be required to vote shares they own or hold in
approval of such nomination. For so long as the Investor owns or holds at least
5,379,443 shares of Common Stock, the Investor shall be required to vote its
shares in favor of each individual nominated as a member of the Company's board
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of directors by the board of directors, by the nominating committee of the
Company or such other ad hoc committee as may be acting in such nominating role.
As of the date hereof the Company agrees to increase the number of members of
the Company's board of directors by one and to fill such additional position
with the Investor Director. Subject to applicable law and the rules governing
the over the counter bulletin board market or any national securities exchange
on which equity securities of the Company may be listed hereafter, as
applicable, as of the date hereof and for so long as the Investor owns or holds
at least 5,379,443 shares of Common Stock, the Investor Director shall have the
right to be designated to serve on each committee of the board of directors
(other than the audit committee, which shall be comprised solely of independent
directors).
(b) The Founders agree that in the event of any vacancy on the
Board of Directors, whether caused by the death, disability, retirement,
resignation, removal, termination of term of office or otherwise, with respect
to any Investor Director, the Founders will use their commercially reasonable
efforts to call, or to cause the appropriate officers of the Company to call, a
special or general meeting of stockholders and to vote, and to cause their
Affiliates to vote, all shares of Voting Stock beneficially owned or held of
record by them and their Affiliates for, or to take and to cause their
Affiliates to take all actions by written consent in respect of all such shares
of Voting Stock in lieu of any such meeting, and shall take all reasonable
actions within their control that are necessary to cause, the election to the
Board of Directors of another individual designated by the Investor to fill such
vacancy; provided that the foregoing shall not apply in the event that the Board
of Directors takes such action to so constitute the Board of Directors without
stockholder action.
(c) The Investor may at any time request that a person
nominated by it in accordance with this Section 4 be removed as a member of the
Board of Directors, with or without cause, and upon the written request of the
Investor to the Founders, the Founders agree to vote, and to cause their
respective Affiliates to vote, all of their Voting Stock to effect such removal.
(d) The Company agrees to cooperate with the Investor, and to
take all such actions that it may lawfully take, to achieve the results intended
by this Section 4.
(e) Notwithstanding anything to the contrary contained in this
Agreement, for so long as the Investor owns or holds 5,379,443 shares of Common
Stock, no transfer of shares of Voting Stock by the Investor or by the Founders
(or any of their respective Affiliates), other than transfers of less than 5% of
the Company's then outstanding shares of Common Stock on a fully diluted basis
permitted under Section 2(b)(i), shall be effective and the Company agrees that
no such purported transfer shall be recognized by it or registered on its books
and records, unless the transferee agrees in writing to be bound by the
obligations of the Investor or the Founders, as applicable, set forth in this
Section 4.
Section 5. Protective Provisions. For so long as the Investor
owns or holds at least 5,379,443 shares of Common Stock, consent of the Investor
Director, which consent, will not be unreasonably withheld, is required for:
(a) The issuance, authorization or increase in the authorized
amount of, or the issuance or authorization of any obligation or security
convertible into or evidencing a right to purchase, or the reclassification of
any of the Company's authorized stock into any stock of any class, or any
obligation or security convertible into or evidencing a right to purchase, any
stock of any class ranking senior to the Common Stock of the Company purchased
by the Investor as to voting or dividends or upon the distribution of assets
upon the Company's dissolution, liquidation or the winding up of its affairs
with an aggregate (since the date hereof) liquidation preference, either in one
or a series of related transactions, of greater than $10.0 million;
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(b) Acquiring any business or assets (including through the
entry into any joint venture or strategic alliance) involving aggregate
consideration or commitments having a value (taking into account the value of
any non-cash consideration paid or committed to) in excess of $30.0 million,
individually or in the aggregate from the date hereof, or making any sales or
other dispositions of businesses or assets (including issuance or sales of
capital stock of subsidiaries to third parties) having a value (taking into
account the value of any non-cash consideration paid or committed to) in excess
of $10.0 million, individually or in the aggregate, in each case during any 18
month period;
(c) Any related party transaction or series of related
party transactions in excess of $5.0 million;
(d) Any (x) dividend or distribution (whether made in cash,
securities or other property) declared or paid on or with respect to, or any
repurchase or optional redemption of, any shares of capital stock of the Company
or (y) issuance of debt (including convertible or exchangeable debt), which, in
the case of each of (x) and (y), exceed $10.0 million in the aggregate (since
the date hereof); and
(e) The Company or any subsidiary to engage in any business
other than any business which is the same, similar, ancillary or related to any
of the businesses that the Company and its subsidiaries were engaged in on
January 22, 2007.
Section 6. Information, Audit and Inspection Rights.
(a) Financial and Other Reports. For so long as the
Investor owns at least 5,379,443 shares of Common Stock:
(i) So long as the Company is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company will use its reasonable best efforts to file with the SEC, at
the times specified for the filing of such information, and shall
simultaneously furnish the Investor with copies of, such annual and
quarterly reports as are specified in Sections 13 or 15(d) of the
Exchange Act and applicable to a U.S. person subject to such sections.
If the Company has not filed such annual or quarterly reports with the
SEC within fifteen (15) calendar days of the times specified for the
filing of such information, the Company shall be required to,
immediately thereafter, provide the Investor with the financial
information set forth in Section 6(a)(ii) below.
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(ii) At any time that the Company is not subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act,
the Company shall furnish to the Investor (x) quarterly unaudited
summary consolidated financial information within 45 days after the end
of each quarter, and (y) annual consolidated audited financial
statements within 75 days after each year end, which, in the case of
(x) and (y) above, shall be prepared in accordance with U.S. generally
accepted accounting principles applied on a consistent basis.
(iii) If the Investor is required to consolidate the
Company into the Investor's financial statements, the Company shall
furnish such additional information as may be reasonably requested by
the Investor and necessary for such consolidation.
(iv) The Investor and, to the extent applicable, its
regulators will have reasonable access to information and the Company's
management and other employees.
(v) The Investor and its external and internal
auditors will have the right to audit or examine the Company's books
and records and its policies and procedures, within reasonable bounds
of frequency and amount of time required from the Company.
(vi) The Company will provide such other assistance
and cooperation as is reasonably requested by the Investor and its
auditors and regulators.
(vii) Confidentiality. For so long as the Company is
subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Investor, its employees and agents shall remain
subject to the confidentiality provisions set forth in the
Non-Disclosure Agreement by and between the New York Mercantile
Exchange, Inc. and the Company dated December 5, 2006, other than to
the extent information furnished pursuant to Section 6(a)(iii) is
consolidated in the Investor's financial statements as provided
therein.
(b) Rule 144. For so long as the Investor owns or holds any of
its initial investment of 10,758,886 shares of Common Stock or shares issued
upon exercise of the Warrant, the Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder, and it will take
such further action as the Investor may reasonably request to make available
adequate current public information with respect to the Company meeting the
current public information requirements of Rule 144(c) under the Securities Act,
to the extent required to enable the Investor to sell the Company's Common Stock
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of any Holder, the Company will deliver to
the Investor a written statement as to whether it has complied with such
information and requirements.
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(c) Expenses. The Investor shall bear all of the reasonable,
documented out of pocket costs and expenses associated with the information,
examination and audit provisions set forth in this Section 6 other than as
provided in Sections 6(a)(i) and Section 6(a)(ii) hereof and Section 6(c) and
shall promptly reimburse the Company for any documented expenses incurred by the
Company in connection therewith, provided, however, that in the event the
Company is otherwise required to have its financial information audited in its
capacity as a public company, the Investor shall not be responsible to bear any
costs or expenses in connection therewith. Notwithstanding the foregoing, the
Investor shall bear all of the reasonable, documented, out of pocket costs and
expenses relating to services not normally associated with the Company's
examination and audit process, but which are incurred in connection therewith in
response to a request for additional information by the Investor pursuant to
this Section 6.
Section 7. Effectiveness of Agreement; Termination. Without
affecting any other provision or parties to this Agreement, this Agreement shall
terminate and the rights and obligations of the parties hereto shall have no
force or effect at such time as the Investor ceases to own or hold any shares of
Common Stock issued pursuant to the Stock and Warrant Purchase Agreement,
including shares issued or issuable upon exercise of the Warrant. For the
purposes of the immediately preceding sentence, all shares issuable upon
exercise of the Warrant shall be deemed to be held by the Investor not
withstanding the fact that the Warrant has not yet been executed as it relates
to such shares.
Section 8. Amendments. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, except by a written instrument executed by the Stockholders and
the Company. This Agreement cannot be changed, modified, discharged or
terminated by oral agreement.
Section 9. No Inconsistent Agreement. Neither the Company nor
any Stockholder shall enter into any agreement with respect to the Common Stock
beneficially owned or held of record by it which is inconsistent with the rights
granted to the Investor or the Founders in this Agreement or otherwise conflicts
with the provisions hereof.
Section 10. Notices. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and shall be
hand delivered or mailed postage prepaid by registered or certified mail or by
facsimile transmission (with immediate telephonic confirmation thereafter),
(a) If to the Investor:
New York Mercantile Exchange
One North End Avenue
World Financial Center
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
11
with a copy to (which shall not constitute notice):
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
or (b) If to the Company:
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxxx Xxxx & Xxxxxx LLP
13th Floor, 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
or (c) if to any Founder, to the address(es) set forth on the
counterpart signature pages of this Agreement signed by such Founders;
or at such other address as the Company or the Stockholders each may specify by
written notice to the others, and each such notice, request, consent and other
communication shall for all purposes of the Agreement be treated as being
effective or having been given when delivered if delivered personally, upon
receipt of facsimile confirmation if transmitted by facsimile, or, if sent by
mail, at the earlier of its receipt or 72 hours after the same has been
deposited in a regularly maintained receptacle for the deposit of United States
mail, addressed and postage prepaid as aforesaid.
Section 11. Successors and Assigns. All the terms and
provisions of this Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective parties hereto, the successors and
permitted assigns of each party hereto and their respective successors of the
Company, whether so expressed or not, provided, however, that any such assignee
shall agree to execute a joinder to this agreement and be bound by the
provisions hereof.
Section 12. Counterparts; Effectiveness. This Agreement may be
executed in any number of counterparts (including by facsimile) and by different
parties hereto in separate counterparts, with the same effect as if all parties
had signed the same document. All such counterparts shall be deemed an original,
shall be construed together and shall constitute one and the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
12
Section 13. Headings. The headings and other captions in this
Agreement are for convenience and reference only and shall not be used in
interpreting, construing or enforcing any provision of this Agreement.
Section 14. Governing Law. The internal laws, and not the laws
of conflicts (other than Section 5-1401 of the General Obligations Law of the
State of New York), of New York shall govern the enforceability and validity of
this Agreement, the construction of its terms and the interpretation of the
rights and duties of the parties.
Section 15. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
Section 16. Entire Agreement. This Agreement contains the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes and replaces all other prior agreements, written or oral,
among the parties hereto with respect to the subject matter hereof.
Section 17. Specific Performance. Each party hereto, in
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement without proof of actual damages and without the
requirement of posting bond or other security. Each party hereto hereby agrees
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
Section 18. Jurisdiction. Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in any federal or state court located in the County and State of New
York, and each of the parties hereby consents to the jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 10 shall be deemed
effective service of process on such party.
Section 19. Waiver of Jury Trial. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
13
Section 20. Aggregation of Stock. All Common Stock held by or
acquired by any Affiliated Person will be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
Section 21. No Implied Waivers. No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
Section 22. Specific Share Count Number. Any references in
this Agreement to a specific number of shares of Common Stock of the Company
shall be subject to proportional adjustments for stock splits, stock dividends,
recapitalizations and the like.
[Execution Page Follows]
14
IN WITNESS WHEREOF, this Agreement has been duly executed by
each of the parties hereto as of the date first written above.
OPTIONABLE, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
NYMEX HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chairman
FOUNDERS:
Xxxx Xxxxxxxxx
By: /s/ Xxxx Xxxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxxx
c/o Optionable, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
RIDGECREST CAPITAL, INC.
By: /s/ Xxxxxx X'Xxxxxx
-------------------------
Name: Xxxxxx X'Xxxxxx
Title: Vice President
c/o Optionable, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
XXXXXXXX CAPITAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
c/o Optionable, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
