ex10-1.htm


    Exhibit 10.1

     

     

    
      SETTLEMENT
AND VOTING AGREEMENT

      


      


      This settlement and voting agreement
(this “Agreement”) is entered into this 26th day of February, 2009, by and
between Optionable, Inc., a Delaware corporation, (“Optionable”) and Mark
Nordlicht (“Mr. Nordlicht”).

       

      WHEREAS, Mr. Nordlicht holds a
Promissory Note dated March 22, 2004 (the “Original Note”);

       

      WHEREAS, the Original Note is due and
payable in full on March 22, 2014, and on the date of this Agreement was neither
payable nor in default;

       

      WHEREAS, as of the date hereof, the
outstanding balance of the Original Note is $5,044,509.90.

       

      WHEREAS,
as of the date hereof, Mr. Nordlicht holds 8,190,150 shares of common stock of
Optionable (the “Shares”);

       

      WHEREAS, Mr. Nordlicht desires a
prepayment of the Original Note;

       

      WHEREAS,
as a condition to its willingness to prepay the Original Note, Optionable has
required Mr. Nordlicht to execute and deliver this Agreement;

       

      NOW, THEREFORE, in consideration of the
covenants and conditions herein contained, the parties hereto hereby agree as
follows:

       

      
        	
                 
      

              	
                1.

              	
                Representations of Mr.
      Nordlicht

              


      

       

      (a)           As
of the date hereof, Mr. Nordlicht is the record and beneficial owner of the
Shares. For purposes of this Agreement, the term beneficial owner shall have the
meaning set forth in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended, (the “Exchange Act”) and the rules and regulations promulgated
thereunder.

       

      (b)           As
of the date hereof, Mr. Nordlicht is not the record or beneficial owner of any
common stock of Optionable other than the Shares.

       

      (c)           Other
than as expressly required or permitted by this Agreement and that certain
Investor Rights Agreement, dated as of April 10, 2007, by and among Optionable,
NYMEX Holdings, Inc., and Mr. Nordlicht, Edward O’Connor and Kevin Cassidy (the
“NYMEX Agreement”), the Shares are free and clear of all pledges, liens,
proxies, claims, charges, security interests, preemptive rights, voting trusts,
voting agreements, options, rights of first offer or refusal and any other
encumbrances or arrangements whatsoever with respect to the ownership, transfer
or voting of the Shares in any such case that would, individually or in the
aggregate, reasonably be expected to materially impair the ability of Mr.
Nordlicht to perform his obligations under this Agreement or prevent or delay
the consummation of any of the transactions contemplated by this Agreement, and
there are no outstanding options, warrants or rights to purchase or acquire, or
agreements or arrangements relating to the voting of, any of the Shares other
than this Agreement.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      (d)           Neither
the execution and delivery of this Agreement nor compliance with the terms and
provisions hereof on the part of Mr. Nordlicht will breach any statutes or
regulations of any governmental authority, domestic or foreign, or will conflict
with or will result in a breach of any of the terms, conditions or provisions of
any judgment, order, injunction, decree, contract, agreement or instrument to
which Mr. Nordlicht or any entity which holds the Shares is a party or by which
he/it or his/its assets may be bound, or constitute a default thereunder or an
event which with the giving of notice or passage of time or both would
constitute a default thereunder, or require the consent of any person or entity
which, in each of the foregoing cases, would have any material adverse impact on
Mr. Nordlicht’s ability to perform his obligations hereunder.

       

      (e)           Mr.
Nordlicht acknowledges his receipt of and his opportunity to review Optionable’s
2009 proxy statement and Optionable’s annual report to stockholders for the
fiscal year ended December 31, 2008.

       

      2.           Representations of
Optionable

       

      Neither
the execution and delivery of this Agreement nor compliance with the terms and
provisions hereof on the part of Optionable will (i) breach any statutes or
regulations of any governmental authority, domestic or foreign, or will conflict
with or will result in a breach of any of the terms, conditions or provisions of
any judgment, order, injunction, decree, contract, agreement or instrument to
which Optionable is a party or by which it or its assets may be bound, or
constitute a default thereunder or an event which with the giving of notice or
passage of time or both would constitute a default thereunder, or require the
consent of any person or entity which, in each of the foregoing cases, would
have any material adverse impact on Optionable’s ability to perform its
obligations hereunder, or (ii) violate its certificate of incorporation, as
amended, its by-laws, or any policy, procedure, charter or code of
Optionable.

       

      3.           Termination of the Original
Note

       

      (a)           Simultaneously
with the execution and delivery of this Agreement, including attached Annex B,
Optionable is paying to Mr. Nordlicht a cash payment equal to $2,575,000 (the
“Settlement Payment”), of which $2,500,000 shall be for settlement of the
Original Note and $75,000 shall be in payment of the Transaction
Shares.

       

      (b)           Upon
the payment of the Settlement Payment, the Original Note shall be deemed
cancelled and paid in full.

       

      (c)           Upon
the payment of the Settlement Payment, Mr. Nordlicht acknowledges and agrees
that, as of the date hereof, he is not owed any money from Optionable other than
the reimbursement of legal fees in connection with litigation against Mr.
Nordlicht in his former capacity as an officer or director of Optionable to the
extent permitted under Optionable’s amended and restated by-laws, certificate of
incorporation, as amended, and applicable law.

       

      4.      Transfer of Certain
Shares

       

      (a)           Simultaneously
with the execution and delivery of this Agreement, Mr. Nordlicht shall transfer
and deliver to Optionable half the number of Shares (the “Transaction Shares”)
in the form of one or more stock certificates duly endorsed in blank or
accompanied by a duly executed stock power (and Optionable shall promptly cause
a new stock certificate to be issued to Mr. Nordlicht for the balance of any
excess shares).

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (b)           Except
as expressly permitted in this Agreement, Mr. Nordlicht covenants and agrees
that from the date of this Agreement through August 26, 2010 (such period, the
“Proxy Period”), Mr. Nordlicht shall not directly or indirectly:

       

      (i)           transfer
(which term shall include, without limitation, any sale, gift, pledge, transfer,
encumbrance or other form of disposition of any kind or nature whatsoever),
without the prior written consent of Optionable, any of the Shares except for a
transfer in connection with a transaction in which control of more than 50
percent of Optionable’s voting shares are acquired (including by merger) by an
independent third party;

       

      (ii)           purchase,
receive or obtain any shares, options, warrants or swaps  in
Optionable or any instrument that entitles Mr. Nordlicht to have a voting
interest in Optionable’s shares; or

       

      (iii)           take
any other action which would make any representations of Mr. Nordlicht contained
herein untrue or incorrect or have the effect of preventing or disabling Mr.
Nordlicht from performing his obligations under this Agreement.

       

      5.      Voting
Agreement

       

      (a)           During
the Proxy Period, Mr. Nordlicht covenants and agrees to:

       

      (i)           at
any and all meetings of stockholders of Optionable, or at any adjournment
thereof, and at any time that stockholders of Optionable are requested to vote
their shares through the execution of an action by written consent, Mr.
Nordlicht shall vote, or cause to be voted, all shares entitled to be voted by
or on behalf of Mr. Nordlicht, including shares beneficially owned or controlled
by Mr. Nordlicht, at the time of the vote (all such shares, the “Covered
Shares”) in such manner directed by Optionable’s board of directors, in the sole
and absolute discretion of Optionable’s board of directors, including without
limitation to elect individuals to Optionable’s board of directors;

       

      (ii)           deliver
to Optionable upon request an irrevocable proxy, substantially in the form of
Annex A, authorizing the individual(s) designated by Optionable’s board of
directors to be the proxy or proxies for the Covered Shares and authorizing the
Covered Shares to be voted in such manner directed by Optionable’s board of
directors, in the sole and absolute discretion of Optionable’s board of
directors, including without limitation to elect individuals to Optionable’s
board of directors;

       

      (iii)           execute
a written consent with respect to the Covered Shares, if stockholders of
Optionable are requested to vote their shares through the execution of an action
by written consent, in such manner directed by Optionable’s board of directors,
in the sole and absolute discretion of Optionable’s board of directors,
including without limitation to elect individuals to Optionable’s board of
directors; and

       

      (iv)           appear
(in person or by proxy) at any annual or special meeting of the stockholders of
Optionable for the purpose of obtaining a quorum.

       

      (b)           Notwithstanding
anything to the contrary in the foregoing, Mr. Nordlicht agrees to vote all
Covered Shares for all of the nominees of Optionable’s board of directors at
Optionable’s annual meeting of stockholders on March 31, 2009 by granting an
irrevocable proxy to Mr. Peter J. Walsh and Mr. Arthur B. Crozier, and each of
them, and to any designee, if any, so appointed by Optionable’s board of
directors. Simultaneously with the execution and delivery of this Agreement, Mr.
Nordlicht shall execute and deliver the irrevocable proxy attached as Annex
B.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (c)           Except
as expressly permitted in this Agreement, Mr. Nordlicht covenants and agrees
that during the Proxy Period, Mr. Nordlicht shall not directly or
indirectly:

       

      (i)           grant
any proxy, right, power of attorney or other authorization with respect to any
of the Covered Shares;

       

      (ii)           enter
into any voting agreement, voting trust or other voting arrangement with respect
to any of the Covered Shares;

       

      (iii)           permit
any Covered Shares to become subject to any pledges, liens, preemptive rights,
security interests, claims, charges or other encumbrances or arrangements other
than the NYMEX Agreement;

       

      (iv)           solicit
or obtain, directly or indirectly, any proxies, power of attorney or other
authorization in or with respect to any shares in Optionable;

       

      (v)           directly
or indirectly, enter into any arrangement or agreement including, without
limitation, a voting agreement, options or swaps with respect to any shares in
Optionable; or

       

      (vi)           propose
or support an opposing slate of nominees or any individual nominee for
Optionable’s board of directors or encourage any person, group or any entity to
do so.

       

      (d)           For
the avoidance of doubt, Mr. Nordlicht’s obligations, covenants and
representations under this Agreement are not contingent upon Mr. Nordlicht’s
receipt of a proxy statement, an annual report or any similar
documents.

       

      6.      Power of
Attorney

       

      Mr. Nordlicht hereby grants to and
appoints the designee(s) of Optionable’s board of directors, or such other
person as Optionable’s board of directors may designate from time to time, as
Mr. Nordlicht’s attorney-in-fact (with full power of substitution), for and in
the name, place and stead of Mr. Nordlicht during the Proxy Period, to vote all
Covered Shares at any meeting of the stockholders of Optionable, or at any
adjournment thereof or in any circumstances upon which a vote, agreement,
written consent or other approval is sought. Mr. Nordlicht hereby authorizes and
expressly instructs the designee(s) of Optionable’s board of directors, or such
other person as Optionable’s board of directors may designate from time to time,
to take all necessary actions and execute and deliver all documents and proxies
deemed necessary and appropriate by Optionable’s board of directors to
effectuate the matters in the foregoing sentence during the Proxy
Period.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      7.      Intervening Factors and
Breach of Contract

       

      (a)           In
case of rescission of all or substantially all of the Settlement Payment for any
reason other than a material breach of this Agreement by Mr. Nordlicht (a
“Rescission”), Optionable covenants and agrees to hold a special meeting of
stockholders (the “Special Meeting”) within 90 to 120 days of the rescission of
the Settlement Payment for the purpose of electing new members of Optionable’s
board of directors. In the event of a Rescission, all obligations of Mr.
Nordlicht under Sections 4, 5 and 6 shall be rescinded in full and, at the
option of Mr. Nordlicht, (i) the Original Note shall be reinstated in full, and
all the terms and conditions of the Original Note shall be in full force and
effect, (ii) the release granted herein by Mr. Nordlicht to the Optionable
Parties and the provisions of Section 3(c) shall be void ab initio and of no force and
effect, (iii) Mr. Nordlicht shall have the right to pursue any and all of his
rights and/or remedies under applicable law or equity regarding, without
limitation, the Original Note, and (iv) Optionable shall reissue to Mr.
Nordlicht a number of shares equal to the Transaction Shares in exchange for
payment of $75,000 (to the extent not repaid as a result of the
Rescission).

       

      (b)           In
case of Rescission, Optionable further covenants and agrees that it will cause
its board of directors to promptly elect at least one designee so appointed by
Mr. Nordlicht to serve as an interim director of Optionable until the Special
Meeting. Notwithstanding anything to the contrary in the foregoing sentence, the
parties hereto agree that nothing in this Agreement obligates Optionable’s board
of directors to nominate such or any other designee of Mr. Nordlicht to
Optionable’s board of directors at the Special Meeting or during any other
election by Optionable’s stockholders.

       

      (c)           Subject
to the provisions of this paragraph (c), the parties hereto agree that the
Settlement Payment will be rescinded if Optionable receives any written
instructions to rescind all or substantially all of the Settlement Payment from
a governmental body or a regulatory agency, including, but not limited to, the
Securities and Exchange Commission, the Department of Justice and the Commodity
Futures Trading Commission, or an order from a judicial authority or a court of
competent jurisdiction demanding a Rescission  or demanding a payment
to a third party who objected to the Settlement Payment (any of the foregoing,
an “Intervening Act”).  In the event of an Intervening Act, Optionable
shall provide Mr. Nordlicht with prompt notice, and Optionable shall reasonably
cooperate to afford Mr. Nordlicht, at his sole cost and expense, the opportunity
to expeditiously satisfy the governmental body or regulatory agency that
rescission of the Settlement Payment is not required.  If Mr.
Nordlicht is not successful in expeditiously satisfying the governmental body or
regulatory agency, Mr. Nordlicht covenants and agrees that he will promptly
deliver the Settlement Payment to Optionable in immediately available
funds.  In the event of a rescission under this paragraph (c), the
provisions of paragraphs (a) and (b) of this Section 7 shall apply.

       

      (d)           Mr.
Nordlicht agrees that the Settlement Payment will be rescinded in the event that
any of the terms in Section 3, Section 4, Section 5 and Section 6 of this
Agreement are found to be unenforceable under, or in contravention of, any law
or regulation, in each case which would materially adversely affect Optionable’s
rights under this Agreement. Mr. Nordlicht further agrees that the Settlement
Payment will be rescinded in the event of a material breach of this Agreement by
or on behalf of Mr. Nordlicht, including but not limited to any breach of the
terms in Section 3, Section 4, Section 5 and Section 6 of this Agreement, in
each case which would materially adversely affect Optionable’s rights under this
Agreement. Mr. Nordlicht covenants and agrees that he, upon receiving notice
from Optionable of the occurrence of any of the foregoing event discussed in
this paragraph (d), will promptly deliver the Settlement Payment to Optionable
in immediately available funds.  In the event of a rescission under
this paragraph (d), the provisions of paragraphs (a) and (b) of this Section 7
shall apply.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (e)           For
the avoidance of doubt, a Rescission as defined in paragraph (a) above also
shall be triggered when both of the following occur: (i) Optionable is subject
to any insolvency proceedings of any nature, whether voluntary or involuntary,
and (ii) Mr. Nordlicht is required to refund or return or otherwise is held
liable for all or substantially all of the Settlement Payment to
Optionable.

       

      8.      SEC
Filings.

       

      Promptly
after the execution and delivery of this Agreement, each of the parties hereto
shall file all the schedules or amendments to schedules with the SEC as may be
required in connection with this Agreement and the transactions effected
hereby.

       

      9.      Release of Claims relating
to the Transaction Shares and the Original Note; Indemnification by
Optionable.

       

      (a)           Mr.
Nordlicht hereby irrevocably and unconditionally releases and forever discharges
Optionable and each of Optionable’s directors, officers, employees,
stockholders, agents, attorneys and representatives (collectively, the
“Optionable Parties”) from any and all manner of action, claims, suits, causes
of action, rights, dues, accounts, bonds, bills, debts, sums of money,
contracts, controversies, omissions, agreements, promises, variances,
trespasses, damages, liabilities, losses, costs, expenses, reimbursements,
indemnities, executions, judgments and demands whatsoever, in law, admiralty, or
equity which Mr. Nordlicht ever had, now has, or hereafter can, shall or may
have against any of the Optionable Parties, whether or not now known, for, upon,
or by reason of any matter, cause, or thing whatsoever related to the transfer
of the Transaction Shares under this Agreement (including if the future value
thereof far exceeds the market value on the date hereof) or the Original Note,
but excluding only those obligations of Optionable under this Agreement (the
"Nordlicht Released Claims”). Mr. Nordlicht hereby covenants not to commence,
prosecute, pursue or give any aid in connection with any action or proceeding
against any of the Optionable Parties with respect to any of the Nordlicht
Released Claims.

       

      (b)           Nothing
in this Agreement precludes Mr. Nordlicht from seeking from Optionable full
indemnification, including the reimbursement of legal fees in connection with
litigation against Mr. Nordlicht in his former capacity as an officer or
director of Optionable to the extent permitted under Optionable’s amended and
restated by-laws, certificate of incorporation, as amended, and applicable law.
Optionable will not amend (and represents that it has not amended), directly or
indirectly, the indemnification provisions of the amended and restated by-laws
and certificate of incorporation, as amended (as filed with the SEC on December
22, 2004 as exhibits 3(i) and 3(ii) to its registration statement on Form SB-2),
in any way that would adversely affect Mr. Nordlicht’s rights to
indemnification.

       

      (c)           Simultaneously
with the execution and delivery of this Agreement, Optionable is paying to Mr.
Nordlicht a cash payment equal to $97,906.93 for the reimbursement of legal fees
through December 31, 2008 in connection with litigation against Mr. Nordlicht in
his former capacity as an officer or director of Optionable.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      MR.
NORDLICHT EXPRESSLY ACKNOWLEDGES THAT THE CONSIDERATION SET FORTH HEREIN
CONSTITUTES ADEQUATE AND SUFFICIENT CONSIDERATION FOR THE FOREGOING
RELEASE.

       

      10.           Specific
Performance.

       

      Each
party to this Agreement acknowledges that it will be impossible to measure in
money the damages under this Agreement of a party if the other party hereto
fails to comply with any of the obligations imposed by this Agreement, that
every such obligation is material and that, in the event of any such failure,
the party other than the failing party will not have an adequate remedy at law
or in damages. Accordingly, each party hereto agrees that injunctive relief or
any other equitable remedy, in addition to remedies at law or in damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the party other than the failing party has an adequate
remedy at law or in damages. Each party hereto agrees that it will not seek, and
agrees to waive any requirement for, the securing or posting of a bond in
connection with the other party’s seeking or obtaining such equitable
relief.

       

      11.           
Enforcement and
Litigation Expenses.

       

      (a)           In
the event that any of the Optionable Parties prevails in a litigation initiated
to remedy Mr. Nordlicht’s breach of any of the terms of this Agreement, Mr.
Nordlicht agrees to reimburse Optionable for all losses, costs, damages, fees
and expenses resulting therefrom, including attorney’s fees.

       

      (b)           In
the event that Mr. Nordlicht prevails in a litigation initiated to remedy
Optionable’s breach of any of the terms of this Agreement, Optionable agrees to
reimburse Mr. Nordlicht for all losses, costs, damages, fees and expenses
resulting therefrom, including attorney’s fees.

       

      12.           Wire
Instructions

       

      All
payments to Mr. Nordlicht required under this Agreement shall be by bank check
or wire transfer of immediately available funds. If by wire transfer, then
to:

       

      13.           Non-disparagement.

       

      (a)           Each
party agrees not to disclose or cause to be disclosed any negative, adverse or
derogatory comment or information about any of the other party unless any of the
parties are engaged in a proxy contest or are soliciting proxies in opposition
to the other.

       

      (b)           Optionable
agrees to provide Mr. Nordlicht or his counsel the opportunity to review any
public announcement with respect to this Agreement by means of a press release,
in a Form 8-K or otherwise. Mr. Nordlicht agrees that Optionable’s writing,
filing and release of any such public announcement shall be made at Optionable’s
sole discretion. For the avoidance of doubt, Optionable does not need to obtain
Mr. Nordlicht’s or his counsel’s consent to write, file and release any public
announcement.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      14.           
Notices.

       

      All
notices and other communications hereunder shall be in writing and shall be
deemed given upon receipt by the parties at the following addresses or facsimile
number (or at such other address or number for a party as shall be specified by
like notice):

       

      
        
          	 	

                  (a)
      If to Optionable:

                
	 	 
	
                   
      

                	
                  Optionable,
      Inc.

                


        

      

      
        	
                 
      

              	
                95
      Croton Avenue, Suite 32

              


      

      
        	
                 
      

              	
                Ossining,
      New York 10562

              


      

      
        	
                 
      

              	
                Attention:
      Thomas F. Burchill

              


      

      


      
        	
                 
      

              	
                With
      a copy to (which shall not constitute
notice):

              


      

       

      
        	
                 
      

              	
                McCormick
      & O’Brien

              


      

      
        	
                 
      

              	
                42
      West 38th
      Street

              


      

      
        	
                 
      

              	
                Seventh
      Floor

              


      

      
        	
                 
      

              	
                New
      York, NY 10018

              


      

      
        	
                 
      

              	
                Attention:  Charles
      F. McCormick

              


      

      
        	
                 
      

              	
                Facsimile
      No.: (212) 504-9574

              


      

      


      
        	
                 
      

              	
                (b)
      If to Mr. Nordlicht:

              


      

       

      
        	
                 
      

              	
                With
      a copy to (which shall not constitute
notice):

              


      

       

      Curtis,
Mallet-Prevost, Colt & Mosle LLP

      101 Park
Avenue

      
        	
                 
      

              	
                New
      York, NY 10178-0061

              


      

      Atttention:  Jeffrey
N. Ostrager

      Facsimile
No.: (212) 697-1559

      


      15.            Governing
Law.

       

      This
Agreement is executed and delivered within the State of New York and it is
expressly agreed that it shall be construed in accordance with the laws of the
State of New York.

       

      16.           Severability.

       

      Except as
expressly stated otherwise in this Agreement, this Agreement shall be deemed
severable; the invalidity or unenforceability of the balance of this Agreement
or of any other term hereof, which shall remain in full force and effect. If any
of the provisions hereof are determined to be invalid or unenforceable, the
parties, except as expressly stated otherwise in this Agreement., shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      17.           
Entire Agreement and
Modification.

       

      This
Agreement sets forth the entire agreement and understanding between the parties
and may not be orally changed, altered, modified or amended in any
respect.  To effect any change, modification, alteration or amendment,
the same must be in writing signed by both parties hereto expressly indicating
that such writing is intended to be a change, alteration, modification or
amendment to this Agreement.

       

      18.           
Successors,
Assigns.

       

      This
Agreement shall inure to the benefit of and shall be binding upon the heirs,
executors, administrators, personal representatives, successors and assigns of
the parties hereto, and their respective Related Parties.  None of the
parties hereto shall assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other parties and any such
attempted assignment shall be void and of no force or effect.

       

      19.           
Headings.

       

      All
section headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement.

       

      20.           Counterparts.

       

      This
Agreement may be executed in separate original or facsimile counterparts, all of
which shall be considered on and the same agreement and shall become effective
when such counterparts have been signed by each of the parties and delivered to
the other parties, it being understood that all parties need not sign the same
counterpart.

       

      21.           Representation by
Counsel.

       

      EACH
PARTY HAS CAREFULLY READ AND FULLY UNDERSTANDS THE PROVISIONS OF THIS AGREEMENT
INCLUDING THE WAIVER OF CLAIMS AGAINST EACH OTHER.   EACH PARTY
HAS BEEN REPRESENTED BY LEGAL COUNSEL OF ITS CHOICE IN CONNECTION WITH ITS
ENTERING INTO THIS AGREEMENT.  NO PARTY HAS RELIED UPON ANY OTHER
REPRESENTATION OR STATEMENT, WRITTEN OR ORAL. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED HEREIN, EACH PARTY SHALL BEAR AND PAY ALL LEGAL COSTS AND EXPENSES
INCURRED BY THEM OR ON THEIR BEHALF IN CONNECTION WITH THE NEGOTIATION OF THIS
AGREEMENT AND THE EXECUTION AND COMPLETION OF THE TRANSACTIONS CONTEMPLATED
HEREUNDER.

       

      22.           Further Assurances and
Representations.

       

      (a) Each of the parties
hereto represents that he or it has all requisite power and authority (or
capacity) necessary to execute and deliver this Agreement and to consummate the
transactions contemplated herein.

       

      (b)
Optionable hereby represents that the execution, delivery and performance by
Optionable of this Agreement have been duly authorized by all necessary
corporate actions on the part of Optionable.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (c) Each
of the parties hereby represents that this Agreement has been duly executed and
delivered by such party and this Agreement constitutes a valid and binding
agreement by such party against the other party in accordance with its
terms.

       

      (d) Each
party shall, at any time and from time to time after the date of this Agreement,
upon the request of the other party, do, execute, acknowledge and deliver and
cause to be done, executed, acknowledged or delivered, all such further acts,
deeds, assignments, transfers, conveyances, powers of attorney or assurances as
may be reasonably required to effect and confirm the agreements contained
herein.

       

      


      


      


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

       

      


      OPTIONABLE, INC.

      


      


      By: /s/
Thomas F.
Burchill

        

      

      Thomas F.
Burchill

      President
and Chief Executive Officer

      


      


      MARK
NORDLICHT

      


      


      By: /s/
Mark Nordlicht

        
          

        

      

      Mark
Nordlicht

       

      


      


      


      [Settlement
and Voting Agreement Signature Page]

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      ANNEX A

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      FORM OF
IRREVOCABLE PROXY

      


      


      Mr. Mark
Nordlicht (“Mr. Nordlicht”) is a party to the Settlement and Voting Agreement,
dated February 26, 2009 (the “Agreement”), by and between Mr. Mark Nordlicht and
Optionable, Inc. a Delaware corporation (“Optionable”).

      


      Mr.
Nordlicht hereby revokes any proxies previously granted with respect to any
Covered Shares (as defined in the Agreement) and appoints the individual(s)
designated by the board of directors of Optionable as attorney-in-fact and proxy
of Mr. Nordlicht to attend any and all meetings of stockholders of Optionable
(or any adjournment or postponement thereof) and to vote all Covered Shares in
accordance with the terms of the Agreement, whether at a meeting of stockholders
or through the execution of an action by written consent.

      


      This
proxy has been granted pursuant to the Agreement and is irrevocable during the
Proxy Period (as defined in the Agreement).

      


      Dated:
[*]

      


      


      MARK
NORDLICHT

      


      


      By
________________________

      Mark Nordlicht

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      ANNEX B

       

       

      
 

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      OPTIONABLE,
INC.

      


      IRREVOCABLE
PROXY

      FOR
ANNUAL MEETING OF STOCKHOLDERS-MARCH 31, 2009

      


      THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS

      


      The
undersigned is a party to the Settlement and Voting Agreement, dated February
26, 2009 (the “Agreement”), by and between the undersigned and Optionable, Inc.,
a Delaware corporation (“Optionable”).

      


      The
undersigned hereby appoints Peter J. Walsh and Arthur B. Crozier, and each of
them, as proxies for the undersigned, with full power of substitution, to act
and to vote all shares of common stock of Optionable held by the undersigned at
the annual meeting of stockholders of Optionable. to be held on March 31, 2009
(the “Annual Meeting”) at 95 Croton Avenue, Suite 32, Ossining, New York, or at
any adjournment or postponement thereof.

      


      The
undersigned hereby revokes any proxy or proxies hereto previously given and
acknowledges his receipt of and his opportunity to review Optionable’s 2009
proxy statement and notice of the Annual Meeting, dated February 18, 2009, and
Optionable’s 2008 annual report.

      


      This
proxy has been granted pursuant to the Agreement and is
irrevocable.

      


      This
proxy, when properly executed and returned, will be voted in the manner directed
below by the undersigned stockholder. If this proxy is properly executed and
returned but no direction is made, this proxy will be voted for all the nominees
for director in proposal 1. Whether or not direction is made, this proxy, when
properly executed, will be voted in the discretion of the proxy holders upon
such other business as may properly come before the Annual Meeting or any
adjournment or postponement thereof.

      


      The
Board of Directors of Optionable recommends a vote “for” all of the nominees
below.

      


      Proposal
1: Election of Directors

       

      
        
          
            
              
                
                  	 
      	
                          For

                        	
                          Withhold

                        
	 
      	 
      	 
      
	
                          01
      - Marc-Andre Boisseau

                        	x  	o 
  
	 
      	 
      	 
      
	
                          02
      - Thomas F. Burchill

                        	x  	o 
  
	 
      	 
      	 
      
	
                          03
      - Edward O’Connor

                        	x  	o 
  
	 
      	 
      	 
      
	
                          04
      - Andrew Samaan

                        	x  	o 
  


                

              

            

          

        

      

       

      Date:  February
26, 2009

      


      


      MARK
NORDLICHT

      


      


      By:
__________________________

      Mark Nordlicht