optionable_8k-070210.htm

0001437749-10-002089.txt : 20100702 0001437749-10-002089.hdr.sgml : 20100702 20100702142221 ACCESSION NUMBER: 0001437749-10-002089 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20100629 ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20100702 DATE AS OF CHANGE: 20100702 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Optionable Inc CENTRAL INDEX KEY: 0001303433 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY & COMMODITY BROKERS, DEALERS, EXCHANGES & SERVICES [6200] IRS NUMBER: 522219407 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-51837 FILM NUMBER: 10935459 BUSINESS ADDRESS: STREET 1: 465 COLUMBUS AVENUE STREET 2: SUITE 280 CITY: VALHALLA STATE: NY ZIP: 10595 BUSINESS PHONE: 914-773-1100 MAIL ADDRESS: STREET 1: 465 COLUMBUS AVENUE STREET 2: SUITE 280 CITY: VALHALLA STATE: NY ZIP: 10595 8-K 1 optionable_8k-070210.htm optionable_8k-070210.htm

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): June 29, 2010

OPTIONABLE, INC.

(Exact Name of Registrant as Specified in its Charter)

Delaware	000-51837	52-2219407
(State of Incorporation)	(Commission File Number)	(IRS Employer ID)

(Address of principle executive offices)

(914) 773-1100

(Registrant’s telephone number, including area code)

1230 Avenue of the Americas, 7th floor, New York, NY, 10020

(Former name or former address, if changed since last report)

Copies to:

Charles F. McCormick, Esq.

McCormick & O’Brien, LLP

9 East 40th Street, 4th Floor

New York, New York 10016

Phone: (212) 286-4471

Fax: (212) 504-9574

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):

/_/ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

/_/ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

/_/ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

/_/ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

On June 29, 2010. Optionable, Inc. (the “Company”) executed a compensation agreement with Brad P. O’Sullivan for his services as Interim Chief Executive Officer and Director. The agreement was dated May 17, 2010 to reflect the date on which Mr. O’Sullivan became the Company’s CEO. The terms of Mr. O’Sullivan’s compensation were first disclosed in a Form 8-K filed on May 18, 2010 but the contract was not finalized until June 29, 2010. Mr. O’Sullivan’s annual compensation is $25,000 for his services as CEO and $25,000 for his services as a Director, payable in 12 equal installments.

The Company also executed on June 29, 2010 a stock option agreement with Mr. O’Sullivan, in accordance with the Company’s standard terms and conditions for such an agreement. Mr. O’Sullivan was given options of 500,000 shares, with 50,000 vesting on June 29, 2010 and an exercise price of $0.015 per share (the closing price on the grant date).

The Company has executed an indemnification agreement with each of Andrew Samaan, who is a Director, and Mr. O’Sullivan.

The foregoing descriptions do not purport to be complete and are qualified in their entirety by reference to the four agreements, copies of which are attached hereto as exhibits.

Item 9.01 Financial Statements and Exhibits

(d) Exhibits

10.1

Brad P. O’Sullivan Employment and Compensation Agreement

10.2

Brad P. O’Sullivan Stock Option Agreement

10.3

Brad P. O’Sullivan Indemnification Agreement

10.4

Andrew Samaan Indemnification Agreement

SIGNATURE

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

	OPTIONABLE, INC.


Date: July 2, 2010	By:	/s/ Brad P. O’Sullivan
		Brad P. O’Sullivan Interim Chief Executive Officer

EX-10.1 2 ex10-1.htm ex10-1.htm

Exhibit 10.1

OPTIONABLE, INC.

May - -,2010

Mr. Brad P. O'Sullivan

401 East 89th Street

Apartment 3K

New York, NY 10128

Dear Mr. O'Sullivan:

As you are aware, you have been elected to the Board of Directors (the "Board") of Optionable, Inc. ("Optionable" or the "Company") and appointed interim Chief Executive Officer of Optionable, effective as of May 17,2010. We welcome you to Optionable and believe that the extensive experience, knowledge and insights which you will bring to Optionable will greatly benefit Optionable and its stockholders.

Your annual compensation (pro rated from May 17,2010 for the 2010 calendar year) for serving on the Board will be $25,000 paid in 12 equal monthly installments through the Company's normal payroll system. Your annual compensation (pro rated from May 17,2010 for the 2010 calendar year) for serving as the interim Chief Executive Officer will be an additional $25,000 paid in 12 equal monthly installments through the Company's normal payroll system. In addition, you will be granted options to purchase 500,000 shares of Optionable's Common Stock at an exercise price per share equal to at least 100%ofthe fair market value of shares of Optionable's Common Stock as of the date of grant and subject to the Company's customary vesting schedule and the other terms and conditions of the Company's standard option agreement. In the event that you resign from either position, you are removed from the either position for any reason, you are not re-elected as an officer or a director or you otherwise cease to be an officer or a director, effective on such date, the Company will have no further payment obligation to you other than amounts that may be owed to you for your service to the Company prior to such date. In return for such consideration you will be expected to fulfill your duties as an officer and a member of the Board, to attend in person (or if unavailable, by telephone) regularly scheduled meetings and special meetings of the Board, and to participate in committees of the Board to which you may be appointed.

Thank you for joining Optionable and we look forward to your valuable services as an officer and a director.

Very truly yours,

OPTIONABLE, INC.

EX-10.2 3 ex10-2.htm ex10-2.htm

EX-10.2

OPTIONABLE, INC.

NONSTATUTORY STOCK OPTION AGREEMENT

THIS NONSTATUTORY STOCK OPTION AGREEMENT (the “Agreement”) is made and entered into as of June 29, 2010 (the “Grant Date”) by and between Optionable, Inc., a Delaware corporation (the “Company”), and Brad O’Sullivan (the “Optionee”).

WHEREAS, the Company desires to grant the Optionee a stock option under the Company’s 2004 Stock Option Plan (the “Plan”) to acquire shares of the Company’s Common Stock, $0.001 par value per share (the “Common Stock”).

WHEREAS, the Plan provides that each option is to be evidenced by an award agreement, setting forth the terms and conditions of the option.

NOW THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the Company and the Optionee hereby agree as follows:

1. Grant of Option. The Company hereby grants to the Optionee, under the Plan and subject to the terms and conditions of the Plan, a stock option (the “Option”) to purchase all or any part of the number of shares of Common Stock (the “Shares”) set forth below the Optionee’s name on the signature page hereto, on the terms and conditions hereinafter set forth. The Option granted hereunder shall be treated as a nonstatutory stock option and is not intended to constitute an incentive stock option under section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).

2. Exercise Price. The exercise price per share (“Exercise Price”) for the Shares covered by the Option shall be the closing price per share of the Company’s stock upon grant ($0.015 per share), as quoted on the Over-the-Counter Bulletin Board, subject to adjustment pursuant to Section 10.

3. Vesting.

The right to exercise the Option shall be 50,000 vested upon the Grant Date. The “Vested Percentage” of the Option shall be as follows:

75,000 six month after the date of grant

125,000 twelve months after the date of grant

125,000 eighteen-months after the date of grant

125,000 twenty-four months after the date of grant

The right to exercise this Option shall immediately vest in the event of a “Change of Control” of the Company. For this purpose, a “Change of Control” means the acquisition after the date hereof, directly or indirectly, by any Person of ownership of, or the power to direct the exercise of voting power with respect to, a majority of the issued and outstanding voting shares of the Company. For this purpose, a “Person” means an individual or a corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind.

4. Term of Options.

(a) Cancellation and Forfeiture. The Option shall be cancelled and shall be null and void, and the Optionee shall forfeit all rights pursuant to the Option, (i) if the Optionee does not execute and return this Agreement to the Company within sixty (60) days of the Grant Date, (ii) unless otherwise agreed to in writing by the Board, upon the Optionee’s bankruptcy, and (iii) upon the Optionee’s attempted assignment or transfer of the Option in violation of Section 9.

(b) Termination. The Option shall terminate and shall no longer be exercisable, even if vested, upon the earliest to occur of the following events:

(i) if the Optionee dies, the first anniversary of the date of death; and

(ii) ninety days upon the termination of the Optionee’s services as the Chief Executive Officer/President

(iii) five years from the date of grant.

5. Exercise of Option.

(a) Exercisability. The Option shall be exercisable at any time prior to its termination pursuant to Section 4(b) only to the extent of the Vested Percentage as of that time. Notwithstanding termination of the Option pursuant to Section 4(b), the Board, in its discretion, may extend the period of exercisability of the Option for such time period as it deems appropriate.

(b) Method of Exercise. To the extent the Option is exercisable pursuant to Section 5(a), the Optionee may exercise the Option in full or in part by giving written notice to the Company, signed by the Optionee (or his legal representative or heir, in the event of the Optionee’s death), stating the Optionee’s election to exercise the Option and the number of whole Shares for which the Option is being exercised. The written notice must be accompanied by (i) full payment of the exercise price for the number of Shares being purchased, and (ii) an executed copy of the form of investor representation letter referred to in Section 6(b), if required pursuant to such Section 6(b).

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(c) Payment of Exercise Price. Payment of the exercise price for the number of Shares for which the Option is being exercised shall be made:

(i) In cash or by check payable to the order of the Company;

(ii) at the discretion of the Board, by tender to the Company of shares of Common Stock owned by the Optionee, acceptable to the Board, having a Fair Market Value (as defined in the Plan) on the date of exercise at least equal to the exercise price;

(iii) at the discretion of the Board, by a combination of the methods described above; or

(iv) by such other method as may be approved by the Board.

(d) Maintenance of Shares. The Company shall at all times during the term of the Option reserve and keep available such number of shares of its Common Stock as will be sufficient to satisfy the requirements of the Option.

6. Securities Law Restrictions.

(a) The grant of the Option and the issuance of Shares upon exercise of the Option shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities. The Option may not be exercised if the issuance of Shares upon such exercise would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations. In addition, the Option may not be exercised unless (i) a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), shall at the time of exercise of the Option be in effect with respect to the Shares to be issued upon exercise of the Option or (ii) in the opinion of legal counsel to the Company, the Shares to be issued upon exercise of the Option may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act. THE OPTIONEE IS CAUTIONED THAT THE OPTION MAY NOT BE EXERCISABLE UNLESS THE FOREGOING CONDITIONS ARE SATISFIED. ACCORDINGLY, THE OPTIONEE MAY NOT BE ABLE TO EXERCISE THE OPTION WHEN DESIRED EVEN THOUGH THE OPTION IS VESTED. As a condition to the exercise of the Option, the Company may require the Optionee to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company.

(b) In the event that, as of the date on which the Option is exercised in whole or in part, the Shares to be issued upon exercise of the Option shall not be effectively registered under the Securities Act, the person exercising the Option shall give a written representation to the Company in the form attached hereto as Exhibit A and the Company shall place an “investment legend,” as described in Exhibit A, upon any certificate for the Shares issued by reason of such exercise.

(c) The Company shall be under no obligation to cause a registration statement or a post-effective amendment to any registration statement to be prepared for the purposes of covering the issue of Shares.

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7. Tax Withholding. Upon exercise of the Option, in whole or in part, and as a condition thereto, the Optionee shall remit to the Company an amount sufficient to satisfy the Optionee’s share of all United States federal, state and local withholding tax requirements, in such manner and amount as shall be specified by the Board. With respect to an Optionee that is an employee or consultant of Company, the Company shall have the right to withhold (or to cause one of the Company’s subsidiaries to withhold), from compensation otherwise payable to the Optionee, an amount sufficient to satisfy all federal, state and local withholding tax requirements prior to the issuance of such Shares and the delivery of any certificate or certificates for such Shares, and from time to time thereafter to the extent such withholding obligations arise in connection with the Option, including, without limitation, obligations arising upon (i) the exercise, in whole or in part, of the Option, (ii) the transfer, in whole or in part, of any Shares acquired on exercise of the Option, (iii) the operation of any law or regulation providing for the imputation of interest, or (iv) the lapsing of any restriction with respect to any Shares acquired on exercise of the Option. The Optionee acknowledges that the Company may issue a Form W-2, W-2c, 1099 or substitute therefore, as appropriate, to the Optionee with respect to any United States income recognized by the Optionee with respect to the Option.

8. Non-Transferability.

(a) Unless otherwise approved by the Board in its discretion, the Option may be exercised during the lifetime of the Optionee only by the Optionee and may not be assigned or transferred in any manner, except by will or by the laws of descent and distribution. Upon the Optionee’s death, the Optionee’s legal representative, or any person empowered under the Optionee’s will or under applicable laws of descent and distribution, may exercise the Option to the extent unexercised and exercisable by the Optionee as of the date of death.

(b) Except as provided in Section 9(a), without the prior written consent of the Board, no right or benefit under this Agreement shall be subject to anticipation, alienation, sale, assignment, pledge, encumbrance or charge, and any attempt to anticipate, alienate, sell, assign, pledge, encumber or charge the same without such consent, if applicable, shall be void. Except with such consent, no right or benefit under this Agreement shall in any manner be liable for or subject to the debts, contracts, liabilities or torts of the Optionee.

9. Change in Stock Subject to Option. In the event of a recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other change in corporate structure affecting the Common Stock, the Board may adjust the terms of the Option in accordance with Section 3 of the Plan.

10. No Special Rights; Duties of Optionee.

(a) The Optionee shall have no rights as a stockholder with respect to any Shares covered by the Option until the date of the issuance of a certificate or certificates for the Shares for which the Option has been exercised. No adjustment shall be made for dividends or distributions or other rights for which the record date is prior to the date such certificate or certificates are issued, except as provided pursuant to Section 10.

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(b) Nothing contained in this Agreement shall be construed or deemed by any person under any circumstances to bind the Company to commence or continue the employment or consulting relationship of the Optionee for the period within which this Option may be exercised, nor shall this Agreement be construed to create any duty of the Company or any of its affiliates or any of its other shareholders to the Optionee, or any duty of the Optionee to the Company or any of its affiliates or other shareholders, comparable to the duties which partners or joint venturers may owe to each other. However, during the period that the Optionee provides employment or consulting services to the Company, the Optionee shall render diligently and faithfully the services which are assigned to the Optionee from time to time by the Board or by the executive officers of the Company. The Optionee shall at no time take any action which directly or indirectly would be inconsistent with the best interests of the Company.

11. Notices. Any notices or other communications required to be given hereunder shall be given by hand delivery or by certified or registered mail, return receipt requested, with all fees prepaid and addressed, if to the Company, to it at _____________, and if to the Optionee, at the address set forth on the signature page hereto, or to such other address as either party may specify in writing from time to time.

12. Termination or Amendment. The Board may terminate or amend the Plan and/or the Option at any time; provided, however, that no such termination or amendment may adversely affect the Option or any unexercised portion thereof without the written consent of the Optionee.

13. Integrated Agreement. This Agreement constitutes the entire understanding and agreement of the Optionee and the Company with respect to the subject matter contained herein and supersedes any prior understanding or agreement between the parties, whether or not in writing, including, but not limited to, any prior grant by the Company or any of its officers or authorized representatives to the Optionee of an option or warrant to purchase Common Stock. There are no agreements, understandings, restrictions, representations, or warranties among the Optionee and the Company other than those as set forth or provided for herein. To the extent contemplated herein, the provisions of this Agreement shall survive any exercise of the Option and shall remain in full force and effect.

14. Binding Effect. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrations, successors and assigns.

15. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware, without regard to principles of conflicts of laws.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the parties hereto have executed this Nonstatutory Stock Option Agreement as of the Grant Date.

OPTIONABLE, INC.

By:______________________________

Name:

Title:

The undersigned Optionee represents that the Optionee is familiar with the terms and provisions of this Nonstatutory Stock Option Agreement and the Plan, and hereby accepts the Option subject to all of the terms and provisions thereof. The Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Board upon any questions arising under this Nonstatutory Stock Option Agreement and the Plan. The undersigned acknowledges receipt of a copy of the Plan.

___________________________________

Signature of Optionee

Brad O’Sullivan

Address:

___________________________

Social Security Number:

Number of Shares Subject to Option: 500,000

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EXHIBIT A

Date:___________________

Optionable, Inc.

______________

Ladies and Gentlemen:

In connection with the acquisition by me of [__________________] shares of common stock, $0.0001 par value per share (the “Shares”), of Optionable, Inc., a Delaware corporation (the “Company”), I hereby represent to the Company as follows:

(a) I hereby confirm that: (i) the Shares to be received by me will be acquired for investment only, for my own account, not as a nominee or agent and not with a view to the sale or distribution of any part thereof; and (ii) I have no current intention of selling, granting participation in or otherwise distributing the Shares. I further represent that I do not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person, or to any third person, with respect to any of the Shares.

(b) I understand that the Shares have not been registered under the Securities Act of 1933, as amended (the “1933 Act”) on the basis that the acquisition of the Shares by me and the issuance of securities by the Company to me is exempt from registration under the 1933 Act and that the Company’s reliance on such exemption is predicated on my representations set forth herein.

(c) I represent that I have, either alone or together with the assistance of a “purchaser representative” (as that term is defined in Regulation D promulgated under the 1933 Act), such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of my investment in the Company. I further represent that I am familiar with the business and financial condition, properties, operations and prospects of the Company. I further represent that I have had, prior to my acquisition of the Shares, the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of the issuance and to obtain information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify the accuracy of any information furnished to me or to which I have had access. I am satisfied that there is no material information concerning the condition, properties, operations and prospects of the Company of which I am unaware. I have made, either alone or together with my advisors, such independent investigation of the Company as I deem to be, or my advisors deem to be, necessary or advisable in correction with this investment.

(d) I understand that the Shares may not be sold, transferred or otherwise disposed of without registration under the 1933 Act and applicable state securities laws, or an exemption there from, and that in the absence of an effective registration statement covering the Shares or an available exemption from registration tinder the 1933 Act or applicable state securities laws, the Shares must be held indefinitely. In particular, I acknowledge that I am aware that the Shares may not be sold pursuant to Rule 144 promulgated under the 1933 Act unless all of the conditions of that Rule are met. Among the current conditions for use of Rule 144 by certain holders is the availability to the public of current information about the Company. Such information is not now available, and the Company has no current plans to make such information available. I represent that, in the absence of an effective registration statement covering the Shares or an available exemption from registration under the 1933 Act or applicable state securities laws, I will not sell, transfer or otherwise dispose of the Shares.

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(e) I represent that I (i) am capable of bearing the economic risk of holding the unregistered Shares for an indefinite period of time and have adequate means for providing for my current needs and contingencies, (ii) can afford to suffer a complete loss of my investment in the Shares, and (iii) understand and have taken cognizance of all risk factors related to the acquisition of the Shares.

(f) I understand that the acquisition of the Shares involves a high degree of risk and there is no established market for the Company’s capital stock and it is not likely that any public market for such stock will develop in the near future.

(g) I represent that neither I nor anyone acting on my behalf has paid any commission or other remuneration to any person in connection with the acquisition of the Shares.

(h) Independent of the additional restrictions on the transfer of the Shares contained herein, I agree that I will not make a transfer, disposition or pledge of any of the Shares other than pursuant to an effective registration statement under the 1933 Act and applicable state securities laws, unless and until: (i) I shall have notified the Company of the proposed disposition and shall have furnished the Company with a statement of the circumstances surrounding the disposition and (ii) if requested by the Company and at my expense or at the expense of my transferee, I shall have furnished to the Company an opinion of counsel, reasonably satisfactory (as to counsel and as to substance) to the Company and its counsel, to the effect that such transfer may be made without registration of the Shares under the 1933 Act, and applicable state securities laws.

(i) I acknowledge that all certificates evidencing the Shares shall bear a legend in substantially the following form:

“TRANSFER RESTRICTED”

The shares represented by this certificate have not been registered under the Securities Act of 1933 and applicable state securities laws. These shares have been acquired for investment and not with a view to distribution or resale, and may not be sold, mortgaged, pledged, hypothecated or otherwise transferred without an effective registration statement for such shares under the Securities Act of 1933 and applicable state securities laws, or an opinion of counsel satisfactory to the Company that registration is not required under such Act and applicable state securities laws.

The shares of stock represented by this certificate are subject to certain restrictions on transfer, repurchase rights and lock-up provisions as set forth in the certain Stock Option Agreement pursuant to which such shares were acquired. Such Agreement is available for inspection without charge at the office of the Secretary of the Company.

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(j) The certificates evidencing the Shares shall also bear any legend required by any applicable state securities law.

(k) In addition, the Company shall make a notation regarding the restrictions on transfer of the Shares in its stock books, and the Shares shall be transferred on the books of the Company only if transferred or sold pursuant to an effective registration statement under the 1933 Act and applicable state securities laws covering such Shares or pursuant to and in compliance with the provisions of the Stock Option Agreement referenced above. A copy of this Agreement, together with any amendments thereto, shall remain on file with the Secretary of the Company and shall be available for inspection to any properly interested person without charge within five (5) days after the Company’s receipt of a written request therefore.

Sincerely yours,

______________________________

Brad O’Sullivan

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EX-10.3 4 ex10-3.htm ex10-3.htm

EX-10.3

INDEMNIFICATION AGREEMENT

THIS AGREEMENT is made and entered into this ___ day of May, 2010 by and between Optionable, Inc., a Delaware corporation (the “Corporation”), and Brad O’Sullivan (“Agent”).

WHEREAS, Agent will perform a valuable service to the Corporation in his capacity as a Director and Chief Executive Officer of the Corporation;

WHEREAS, the stockholders of the Corporation have adopted bylaws (the “Bylaws”) providing for the indemnification of the directors, officers, employees and other agents of the corporation, including persons servicing at the request of the Corporation in such capacities with other corporations or enterprises, as authorized by the Delaware General Corporation Law, as amended (the “DGCL”);

WHEREAS, the Bylaws and the DGCL, by their non-exclusive nature, permit contracts between the Corporation and its agents, officers, employees and other agents with respect to indemnification of such persons; and

WHEREAS, in order to induce Agent to serve as a Director and Chief Executive Officer of the Corporation, the Corporation has determined and agreed to enter into this Agreement with Agent;

NOW, THEREFORE, in consideration of Agent's service as a Director and Chief Executive Officer of the Corporation, after the date hereof, the parties hereto agree as follows:

1. Services to the Corporation. Agent will serve, at the will of the Corporation or under separate contract, if any such contract exists, as a director, officer or other fiduciary of an affiliate of the Corporation (including any employee benefit plan of the Corporation) faithfully and to the best of his ability so long as he is duly elected and qualified in accordance with the provisions of the Bylaws or other applicable charter documents of the Corporation or such affiliate; provided, however, that Agent may at any time and for any reason resign from s uch position (subject to any contractual obligation that Agent may have assumed apart from this Agreement) and that the Corporation or any affiliate shall have no obligation under this Agreement to continue Agent in any such position.

2. Indemnity of Agent. The Corporation hereby agrees to hold harmless and indemnify Agent to the fullest extent authorized, or permitted by the provisions of the Bylaws and the DGCL, as the same may be amended from time to time (but, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than the Bylaws or the DGCL permitted prior to adoption of such amendment).

3. Additional Indemnity. In addition to and not in limitation of the indemnification otherwise, provided for herein, subject only to the exclusions set forth in Section 4 hereof, the Corporation hereby further agrees to hold harmless and indemnify Agent:

(a) against any and all expenses (including attorneys' fees), witness fees, damages, judgments, fines and amounts paid settlement and any other amounts that Agent becomes legally obligated to pay because of any claim or claims made against or by him in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitration, administrative or investigative (including an action by or in the right of the Corporation) to which Agent is, was or at any time becomes a party, or is threatened to be made a party, by reason of the fact that Agent is, was or at any time becomes a director, officer, employee or other agent of the Corporation, or is or was serving or at anytime serves at the request of the Corporation as a director, officer, employee or other agent of another corporat ion, partnership, joint venture, trust, employee benefit plan or other enterprise; and

(b) otherwise to the fullest extent as may be provided to Agent by the Corporation under the non-exclusivity provisions of the DGCL and of the Bylaws.

4. Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:

(a) on account of any claim against Agent for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar

provisions of any federal, state or local statutory law;

(b) on account of Agent's conduct that was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;

(c) on account of Agent's conduct that constituted a breach of Agent's duty of loyalty to the Corporation or resulted in, any personal profit or advantage to which Agent was not legally entitled;

(d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;

(e) if indemnification is not lawful (and, in this respect, both the Corporation and the Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or

(f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the DGCL, or (iv) the proceeding is initiated pursuant to the provisions of Section 9 hereof.

5. Continuation of Indemnity. All agreements and obligations of the Corporation contained herein shall continue during the period Agent is a director, officer, employee or other agent of the Corporation (or is or was serving at the request of the Corporation as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise) and shall continue thereafter so long as Agent shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitration, administrative or investigative, by reason of the fact that Agent was serving in the capacity referred to herein.

6. Partial Indemnification. Agent shall be entitled under this Agreement to indemnification by the Corporation for a portion of the expenses (including attorneys' fees), witness fees, damages, judgments, fines and amounts paid in settlement and any other amounts that Agent becomes legally obligated to pay in connection with any action, suit or proceeding referred to in Section 3 hereof even if not entitled hereunder to indemnification for the total amount thereof, and the Corporation shall indemnify Agent for the portion thereof to which Agent is entitled.

7. Notification and Defense of Claim. Not later than thirty (30) days after receipt by Agent of notice of the commencement of any action, suit or proceeding, Agent will, if a claim in respect thereof is to be made against the Corporation under this Agreement, notify the Corporation of the commencement thereof; but the omission so to notify the Corporation will not relieve it from any liability which it may have to Agent otherwise than under this Agreement. With respect to any such action, suit or proceeding as to which Agent notifies the Corporation of the commencement thereof:

(a) the Corporation will be entitled to participate therein at its own expense;

(b) except as otherwise provided below, the Corporation may, at its option and jointly with any other indemnifying party similarly notified and electing to assume such defense, assume the defense thereof, with counsel reasonably satisfactory to Agent. After notice from the Corporation to Agent of its election to assume the defense thereof, the Corporation will not be liable to Agent under this Agreement for any legal or other expenses subsequently incurred by Agent in connection with the defense thereof except for reasonable costs of investigation or otherwise as provided below. Agent shall have the right to employ separate counsel in such action, suit or proceeding but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of Agent unless (i) the employment of counsel by Agent has been authorized by the Corporation, (ii) Agent shall have reasonably concluded that there may be a conflict of interest between the Corporation and Agent in the conduct of the defense of such action or (iii) the Corporation shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of Agent's separate counsel shall be at the expense of the Corporation. The Corporation shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Corporation or as to which Agent shall have made the conclusion provided for in clause (ii) above; and

(c) the Corporation shall not be liable to indemnify Agent under this Agreement for any amounts paid in settlement of any action or claim effected without its written consent, which shall not be unreasonably withheld. The Corporation shall be permitted to settle any action except that it shall not settle any action or claim in any manner which would impose any penalty or limitation on Agent without Agent's written consent, which may be given or withheld in Agent's sole discretion.

8. Expenses. The Corporation shall advance, prior to the full disposition of any proceeding, promptly following request therefor, all expenses incurred by Agent in connection with such proceeding upon receipt of an undertaking by or on behalf of Agent to repay said amounts if it shall be determined ultimately that Agent is not entitled to be indemnified under the provisions of this Agreement, the Bylaws, the DGCL or otherwise.

9. Enforcement. Any right to indemnification or advances granted by this Agreement to Agent shall be enforceable by or on behalf of Agent in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within ninety (90) days of request therefor. Agent, in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting his claim. It shall be a defense to any action for which a claim for indemnification is made under Section 3 hereof (other than an action brought to enforce a claim for expenses pursuant to Section 8 hereof, provided that the required undertaking has been tendered to the Corporation) that Agent is not entitled to indemnification because of the limitations set forth in Section 4 hereof. Neither the failure of the Corporation, (including its Board of Directors or its stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification of Agent is proper in the circumstances, nor an actual determination by the Corporation (including its Board of Directors or its stockholders) that such indemnification is improper shall be a defense to the action or create a presumption that

Agent is not entitled to indemnification under this Agreement or otherwise.

10. Subrogation. In the event of payment under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Agent, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Corporation effectively to bring suit to enforce such rights.

11. Non-Exclusivity of Rights. The rights conferred on Agent by this Agreement shall not be exclusive of any other right which Agent may have or hereafter acquire under any statute, provision of the Corporation's Articles of Incorporation or Bylaws, agreement, vote of stockholders or directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding office.

12. Survival of Rights.

(a) The rights conferred on Agent by this Agreement shall continue after Agent has ceased to be a director, officer, employee or other agent of the Corporation or to serve at the request of the Corporation as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise and shall inure to the benefit of Agent's heirs, executors and administrators.

(b) The Corporation shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporation, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place.

13. Severability. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. Furthermore, if this Agreement shall be invalidated in its entirety on any ground, then the Corporation shall nevertheless indemnify Agent to the fullest extent provided by the Bylaws, the DGCL or any other applicable law.

14. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of New York.

15. Amendment and Termination. No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both parties hereto.

16. Identical Counterparts. This Agreement may be executed in one or more original or facsimile counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute but one and the same Agreement. Only one such counterpart need be produced to evidence the existence of this Agreement.

17. Headings. The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction hereof.

18. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) upon delivery if delivered by hand to the party to whom such communication was directed, (ii) upon the third business day after the date on which such communication was mailed if mailed by certified or registered mail with postage prepaid or (iii) by confirmed email or facsimile:

(a) If to Agent, at the address indicated on the signature page hereof.

(b) If to the Corporation, to the address indicated on the signature page hereof.

With a copy to:

McCormick & O’Brien, LLP

9 East 40th Street

Fourth Floor

New York, NY 10016

Facsimile: (212)504-9574

Telephone: (212)286-4471

Attention: Charles F. McCormick, Esq.

E-mail: charles@mcoblaw.com

or to such other address as may have been furnished by either party to the other.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written.

OPTIONABLE, INC	AGENT

By:_________________________________	____________________________
Andrew Samaan, Authorized Signatory	Brad O’Sullivan

Address:	Address:
Date:	Date:

EX-10.4 5 ex10-4.htm ex10-4.htm

EX-10.4

INDEMNIFICATION AGREEMENT

THIS AGREEMENT is made and entered into this ___ day of May, 2010 by and between Optionable, Inc., a Delaware corporation (the “Corporation”), and Andrew Samaan (“Agent”).

WHEREAS, Agent will perform a valuable service to the Corporation in his capacity as a Director of the Corporation;

WHEREAS, in order to induce Agent to serve as a Director of the Corporation, the Corporation has determined and agreed to enter into this Agreement with Agent;

NOW, THEREFORE, in consideration of Agent's service as a Director of the Corporation, after the date hereof, the parties hereto agree as follows:

(b) otherwise to the fullest extent as may be provided to Agent by the Corporation under the non-exclusivity provisions of the DGCL and of the Bylaws.

4. Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:

provisions of any federal, state or local statutory law;

(b) on account of Agent's conduct that was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;

(c) on account of Agent's conduct that constituted a breach of Agent's duty of loyalty to the Corporation or resulted in, any personal profit or advantage to which Agent was not legally entitled;

(a) the Corporation will be entitled to participate therein at its own expense;

Agent is not entitled to indemnification under this Agreement or otherwise.

12. Survival of Rights.

14. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of New York.

15. Amendment and Termination. No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both parties hereto.

17. Headings. The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction hereof.

(a) If to Agent, at the address indicated on the signature page hereof.

(b) If to the Corporation, to the address indicated on the signature page hereof.

With a copy to:

McCormick & O’Brien, LLP

9 East 40th Street

Fourth Floor

New York, NY 10016

Facsimile: (212)504-9574

Telephone: (212)286-4471

Attention: Charles F. McCormick, Esq.

E-mail: charles@mcoblaw.com

or to such other address as may have been furnished by either party to the other.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written.

OPTIONABLE, INC	AGENT

By:_________________________________	____________________________
Brad O’Sullivan, Chief Executive Officer	Andrew Samaan

Address:	Address:
Date:	Date: