EXHIBIT 4.3
AMENDMENT NO. 2
TO
THE SECURITIES PURCHASE AGREEMENT
This AMENDMENT NO. 2 (the "Amendment") to the Securities Purchase
Agreement, dated as of February 4, 2002 (as amended by that Amendment No. 1
dated March 6, 2002, the "Agreement"), by and between The Ashton Technology
Group, Inc. ("Ashton") and OptiMark Innovations Inc. ("Innovations") is made as
of this 3rd day of May, 2002 by and between Ashton and Innovations. Capitalized
terms used but not defined herein shall have the meanings ascribed to them in
the Agreement.
WHEREAS the Agreement provides that any term of the Agreement may be
amended with the written consent of Ashton and Innovations;
WHEREAS in accordance with the foregoing, Ashton and Innovations
desire to amend the Agreement;
NOW THEREFORE, in consideration of the premises and the covenants
hereinafter set forth, Ashton and Innovations agree as follows:
1. Section 1.1(b) of the Agreement. Section 1.1(b) of the Agreement is
hereby amended and restated as follows:
(b) Subject to the terms and conditions of this Agreement,
the Investor agrees to purchase at the Closing (as
hereinafter defined) and the Company agrees to sell and
issue to the Investor at the Closing, six hundred eight
million seven hundred seven thousand five hundred and
sixty-seven (608,707,567) shares of the Company's Common
Stock (as hereinafter defined) (the "Purchased
Securities"), for the purchase price of TWENTY-SEVEN
MILLION TWO HUNDRED SEVENTY TWO THOUSAND SEVEN HUNDRED
TWENTY SEVEN DOLLARS ($27,272,727) (the "Purchase
Price").
2. Section 2.2(c)(z) of the Agreement. Section 2.2(c)(z) of the
Agreement is hereby amended and restated as follows:
(z) an additional 52,870,757 shares of its Common Stock for
receipt upon conversion of the Senior Secured
Convertible Note (as hereinafter defined) in favor of
the Investor.
3. Except as modified by this Amendment, the Agreement shall remain in
full force and effect.
4. Each of Ashton and Innovations hereby represent and warrant to the
other that (i) all corporate action on its part and the part of its
directors necessary for the due authorization, execution and
delivery of this Amendment has been taken, and (ii) this
Amendment will be a valid and binding obligation of it enforceable
against it in accordance with its terms.
5. Miscellaneous.
a) Governing Law. This Agreement shall be governed in all
respects by the laws of the State of New York without
regard to principles of conflict of laws.
b) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an
original, but all of which together shall constitute one
instrument.
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2
IN WITNESS WHEREOF, each of the undersigned has caused this
Amendment to be executed as of the date first written above.
THE ASHTON TECHNOLOGY GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: General Counsel
OPTIMARK INNOVATIONS INC.
By: Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Secretary
