EXHIBIT 10.3
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STOCK EXCHANGE AND ACQUISITION AGREEMENT
STOCK EXCHANGE AND ACQUISITION AGREEMENT dated as of April 18, 2000 (the
"Agreement"), between and among ELECTRONIC MARKET CENTER, INC., a company
organized and existing under the laws of the State of Delaware ("EMC" or the
"Company"), located at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, THE ASHTON TECHNOLOGY GROUP, INC., a company organized and existing under
the laws of the State of Delaware ("Ashton"), located at 0000 Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, X-XXXXXXX.XXX, Inc., a company
organized and existing under the laws of the State of Delaware ("E-Trustco"),
located at 0 Xxxxxxx Xxxxx, Xxxxx 000, Xxxx, Xxxxxxxxxxx, 00000, XXXXXXX
XXXXXXXX ("Xxxxxxxx"), who resides at 0 Xxxxxx Xxxxx Xxxxx, Xxxx, Xxxxxxxxxxx,
00000, and XXXXX XXXXXXXXX ("Xxxxxxxxx"), who resides at 00 Xxxx Xxxx Xxxxxx,
XXX 000, Xxxx, Xxxxxxxxxxx, 00000. EMC and E-Trustco together are referred to
collectively as the "Parties" and each, a "Party."
WHEREAS, the Parties, Xxxxxxxx and Xxxxxxxxx desire that, upon the terms
and subject to the conditions contained herein, Xxxxxxxx and Xxxxxxxxx shall,
jointly, sell to the Company, and the Company shall purchase 165 shares of E-
Trustco's common stock, no par value per share (the "E-Trustco Common Stock")
from Xxxxxxxx and Xxxxxxxxx, which securities represents all of the equity,
voting rights, title and interest in E-Trustco, in exchange for 2,000,000 shares
of the Company's common stock, par value $.0001 per share (the "EMC Common
Stock") as more fully described herein; and
WHEREAS, as a condition of such exchange and acquisition of the E-Trustco
Common Stock, EMC and Ashton desire to enter into an employment agreement with
Xxxxxxx Xxxxxxxx, president of E-Trustco, which agreement sets forth the terms
and conditions of Xxxxxxxx'x employment as President and Chief Operating Officer
of EMC.
NOW, THEREFORE, the Parties hereto, Ashton, Xxxxxxxx and Xxxxxxxxx agree as
follows:
ARTICLE I
Transfer of Shares
Section 1.1 Sale of the E-Trustco Common Stock.
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(a) Xxxxxxxx and Xxxxxxxxx hereby agree to sell, jointly, to the Company
and the Company hereby agrees to purchase from Xxxxxxxx and Xxxxxxxxx the E-
Trustco Common Stock in exchange for the EMC Common Stock at the Closing (as
hereinafter defined). The Company shall issue to Xxxxxxxx 1,950,000 shares of
the EMC Common Stock and shall issue to Xxxxxxxxx 50,000 shares of the EMC
Common Stock at the Closing.
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(b) After the purchase and sale of the E-Trustco Common Stock, the Company
shall own 100% of the authorized, issued and outstanding voting equity of E-
Trustco.
(c) After the purchase and sale of the EMC Common Stock, Xxxxxxxx shall own
19.5% and Xxxxxxxxx shall own .5% of the authorized, issued and outstanding
voting equity of EMC.
Section 1.2 Closing.
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The purchase and sale of the E-Trustco Common Stock shall take place
as of 12:00 p.m., Eastern Standard Time, on April 18, 2000 (the "Closing Date")
at the offices of EMC first described above, or at such other place as the
Parties, Ashton, Xxxxxxxx and Xxxxxxxxx mutually agree upon orally or in writing
(which time and place are designated as the "Closing"). At the Closing, the
Parties, Ashton, Xxxxxxxx and Xxxxxxxxx shall complete each of the following
conditions:
(1) The delivery by Xxxxxxxx and Xxxxxxxxx to the Company of certificates,
executed stock powers and/or register share ownership, as the case may
be, representing the E-Trustco Common Stock;
(2) The delivery by the Company to E-Trustco of certificates representing
the EMC Common Stock;
(3) The execution and delivery by the Company, Ashton and Xxxxxxxx of an
employment agreement by and between the Company, Ashton and Xxxxxxxx
(the "Employment Agreement"), the form of which is attached hereto as
Exhibit A, and all exhibits, attachments and schedules thereto;
(4) The execution and delivery by the Company, Ashton, Saltzman, and
Xxxxxxxxx of a Stockholders Agreement, the form of which is attached
hereto as Exhibit B and all exhibits, attachments and schedules
thereto.
ARTICLE II
Representations and Warranties of E-Trustco
E-Trustco, and for purposes of Sections 2.6, 2.8 and 2.9, Xxxxxxxx and
Xxxxxxxxx, hereby represent and warrant to the Company and Ashton that the
following are true and correct as of the Closing Date:
Section 2.1 Corporate Existence and Power. E-Trustco is a
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corporation duly organized, validly existing and in good standing in the state
of its incorporation, and E-Trustco has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. E-Trustco is duly qualified to do business as
a foreign corporation and is in good standing in each jurisdiction where the
character of the property owned or leased by it or the nature of its activities
makes such qualification
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necessary, except for those jurisdictions where failure to be so qualified could
not reasonably be expected, individually or in the aggregate, to have a material
adverse effect on the condition (financial or otherwise), business, assets,
properties, results of operations or prospects (hereinafter, a "Material Adverse
Effect") of E-Trustco and its subsidiaries, taken as a whole.
Section 2.2 Corporate Authorization. E-Trustco has full power and
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authority (including full corporate power and authority) to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The transactions contemplated hereby have
been duly authorized and require no other action or proceeding on the part of E-
Trustco. The undersigned executing this Agreement on behalf of E-Trustco has
all right, power and authority to execute and deliver this Agreement on behalf
of E-Trustco. This Agreement has been duly executed and delivered by E-Trustco
and constitutes the valid and legally binding obligation of E-Trustco,
enforceable against E-Trustco in accordance with its terms and conditions.
Section 2.3 Capitalization. The entire authorized capital stock of
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E-Trustco consists of: one thousand five hundred (1,500) shares of common
stock, no par value per share, of which one hundred sixty five (165) shares are
issued and outstanding. All of the shares of E-Trustco Common Stock to be
issued pursuant to this Agreement have been duly authorized and, upon
consummation of this transaction, will be validly issued, fully paid and
nonassessable.
Section 2.4 Noncontravention. Neither the execution and the
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delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (i) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which E-Trustco is subject
or any provision of the charter or bylaws of E-Trustco, or (ii) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, mortgage, indenture, lease,
license, instrument or other arrangement, permit, concession or franchise to
which E-Trustco is a party or by which it is bound or to which any of its assets
is subject. E-Trustco does not need to give any notice to, make any filing with,
or obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions contemplated by this
Agreement.
Section 2.5 Broker's Fees. None of E-Trustco and its subsidiaries
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has any liability or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated by this Agreement
for which EMC or Ashton could become liable or obligated.
Section 2.6 Disclosure. E-Trustco, Xxxxxxxx and Xxxxxxxxx have fully
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provided the Company and Ashton with all the information the Company and Ashton
have requested for deciding whether to consummate this transaction. Neither
this Agreement, the Employment Agreement, nor any other statements or
certificates made or delivered by E-Trustco in connection herewith contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made herein or therein, in the light of the
circumstances under which they were made, not misleading.
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Section 2.7 No Undisclosed Liabilities or Events. E-Trustco has no
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liabilities or obligations (whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for taxes, other than those incurred in the ordinary course of E-
Trustco's business which, individually or in the aggregate, do not or would not
have a Material Adverse Effect on E-Trustco. No event or circumstance has
occurred or exists which is likely to have a Material Adverse Effect on E-
Trustco.
Section 2.8 Litigation. There is no action, proceeding or
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investigation pending, or to E-Trustco's knowledge threatened, against E-Trustco
that questions the validity of this Agreement, or the right of E-Trustco to
enter into this Agreement, or to consummate the transactions contemplated
hereby, or that might have a Material Adverse Effect on E-Trustco, or result in
a change in the current equity ownership of E-Trustco, nor is E-Trustco aware
that there is any basis for the foregoing. E-Trustco is not under the
jurisdiction of a court in a proceeding under Title 11 of the United States
Bankruptcy Code or similar proceeding. There is no action, proceeding or
investigation pending, or to Xxxxxxxx'x or Xxxxxxxxx'x knowledge threatened,
against Xxxxxxxx or Xxxxxxxxx that threatens the validity of this Agreement, or
the right of Xxxxxxxx or Xxxxxxxxx to enter into this Agreement, or to
consummate the transactions contemplated hereby, nor are Xxxxxxxx or Xxxxxxxxx
aware that there is any basis for the foregoing.
Section 2.9 Title to Assets. E-Trustco has good and marketable title
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to all properties and material assets owned by it, free and clear of any pledge,
lien, security interest, encumbrance, claim or equitable interest other than
such as are not material to the business of E-Trustco. With respect to the
property and assets it leases, E-Trustco is in compliance with such leases and,
to the best of its knowledge, holds a valid leasehold interest free of any
liens, claims or encumbrances. Xxxxxxxx and Xxxxxxxxx have good title to the E-
Trustco Common Stock, free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest.
Section 2.10 Required Governmental Permits. E-Trustco and its
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subsidiaries are in possession of and operating in compliance with all
authorizations, licenses, certificates, consents, orders and permits from state,
federal and other regulatory authorities which are material to the conduct of
its business, all of which are valid and in full force and effect, except for
such permits that E-Trustco has not yet obtained and is diligently pursuing to
obtain and which E-Trustco has no reason to believe will not be obtained.
Section 2.11 Other Outstanding Securities. Other than the E-Trustco
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Common Stock, there are no other outstanding securities, debt or equity
presently convertible into E-Trustco common stock.
Section 2.12 Patents and Trademarks. E-Trustco has sufficient title
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and ownership of all patents, trademarks, service marks, trade names,
copyrights, trade secrets information, proprietary rights and processes
necessary for the business as now conducted and as proposed to be conducted
without any conflict with or infringement of the rights of others except for
such licenses which E-Trustco shall obtain during the ordinary course of its
business. There
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are no outstanding options, licenses, or agreements of any kind with any person
or entity relating to the foregoing, nor is E-Trustco bound by or a party to any
options, licenses or agreements of any kind with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, proprietary rights and processes of any other person or entity. E-
Trustco has not received any communications alleging that it has violated or, by
conducting its business as proposed, would violate any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other person or entity.
ARTICLE III
Representations and Warranties of the Company
The Company and, for purposes of Section 3.6, Ashton, hereby represent
and warrant to E-Trustco, Xxxxxxxx and Xxxxxxxxx that the following are true and
correct as of the Closing Date:
Section 3.1 Corporate Existence. EMC is a corporation duly
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organized, validly existing and in good standing in the state of its
incorporation, and EMC has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted. EMC is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the character of
the property owned or leased by it or the nature of its activities makes such
qualification necessary, except for those jurisdictions where failure to be so
qualified could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect on EMC and its subsidiaries, taken as a whole.
Section 3.2 Corporate Authorization. EMC has full power and
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authority (including full corporate power and authority) to execute and deliver
this Agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby. The transactions contemplated hereby have been
duly authorized and require no other action or proceeding on the part of EMC.
The undersigned executing this Agreement on behalf of EMC has all right, power
and authority to execute and deliver this Agreement on behalf of EMC. This
Agreement has been duly executed and delivered by the Company and constitutes
the valid and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms and conditions.
Section 3.3 Capitalization. The entire authorized capital stock of
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EMC consists of twenty million (20,000,000) shares of common stock, par value
$.0001 per share, of which eight million (8,000,000) shares are issued and
outstanding, and three million (3,000,000) shares of preferred stock, par value
$.01 per share, of which no shares are issued and outstanding. All of the
shares of EMC Common Stock to be issued pursuant to this Agreement have been
duly authorized and, upon consummation of this transaction, will be validly
issued, fully paid and nonassessable.
Section 3.4 Noncontravention. Neither the execution and the delivery
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of this Agreement, nor the consummation of the transactions contemplated hereby,
will (i) violate any
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constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which EMC is subject or any provision of the charter or bylaws of EMC,
or (ii) conflict with, result in a breach of, constitute a default under, result
in the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract,
mortgage, indenture, lease, license, instrument or other arrangement, permit,
concession or franchise to which EMC is a party or by which it is bound or to
which any of its assets is subject. EMC does not need to give any notice to,
make any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the transactions
contemplated by this Agreement.
Section 3.5 Brokers' Fees. EMC does not have any liability or
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obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which any of E-
Trustco, its Subsidiaries or Xxxxxxxx could become liable or obligated.
Section 3.6 Disclosure. EMC and Ashton have fully provided
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E-Trustco, Xxxxxxxx and Xxxxxxxxx with all the information E-Trustco, Xxxxxxxx
and Xxxxxxxxx have requested for deciding whether to consummate this
transaction. Neither this Agreement, the Employment Agreement, nor any other
statements or certificates made or delivered by EMC in connection herewith
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made herein or therein, in the light
of the circumstances under which they will be made, not misleading.
Section 3.7 No Undisclosed Liabilities or Events. EMC has no
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liabilities or obligations (whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for taxes, other than those which, individually or in the
aggregate, do not or would not have a Material Adverse Effect on EMC. No event
or circumstance has occurred or exists which is likely to have a Material
Adverse Effect on EMC.
Section 3.8 Litigation. There is no action, proceeding or
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investigation pending, or to EMC's knowledge threatened, against EMC that
questions the validity of this Agreement, or the right of EMC to enter into this
Agreement, or to consummate the transactions contemplated hereby, or that might
have a Material Adverse Effect on EMC, or result in a change in the current
equity ownership of EMC, nor is EMC aware that there is any basis for the
foregoing. EMC is not under the jurisdiction of a court in a proceeding under
Title 11 of the United States Bankruptcy Code or similar proceeding.
Section 3.9 Title to Assets. EMC has good and marketable title to
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all properties and material assets owned by it, free and clear of any pledge,
lien, security interest, encumbrance, claim or equitable interest other than
such as are not material to the business of EMC. With respect to the property
and assets it leases, EMC is in compliance with such leases and, to the best of
its knowledge, holds a valid leasehold interest free of any liens, claims or
encumbrances.
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Section 3.10 Required Governmental Permits. EMC and its subsidiaries
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are in possession of and operating in compliance with all authorizations,
licenses, certificates, consents, orders and permits from state, federal and
other regulatory authorities which are material to the conduct of its business,
all of which are valid and in full force and effect, except for such permits
that EMC has not yet obtained and is diligently pursuing to obtain and which EMC
has no reason to believe will not be obtained.
Section 3.11 Other Outstanding Securities. Other than the EMC Common
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Stock there are no other outstanding securities, debt or equity presently
convertible into EMC common stock.
Section 3.12 Patents and Trademarks. EMC has sufficient title and
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ownership of all patents, trademarks, service marks, trade names, copyrights,
trade secrets information, proprietary rights and processes necessary for the
business as now conducted and as proposed to be conducted without any conflict
with or infringement of the rights of others except for such licenses which EMC
shall obtain during the ordinary course of its business. There are no
outstanding options, licenses, or agreements of any kind with any person or
entity relating to the foregoing, nor is EMC bound by or a party to any options,
licenses or agreements of any kind with respect to the patents, trademarks,
service marks, trade names, copyrights, trade secrets, licenses, information,
proprietary rights and processes of any other person or entity. EMC has not
received any communications alleging that it has violated or, by conducting its
business as proposed, would violate any of the patents, trademarks, service
marks, trade names, copyrights or trade secrets or other proprietary rights of
any other person or entity.
ARTICLE IV
Covenants
The Parties, Ashton, Xxxxxxxx and Xxxxxxxxx hereby agree as follows
with respect to the period from and after the Closing.
Section 4.1 General. Each of the Parties, Ashton, Xxxxxxxx and
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Xxxxxxxxx will use its or his reasonable best efforts to take all action and to
do all things necessary, proper, or advisable in order to consummate and make
effective the transactions contemplated by this Agreement.
Section 4.2 Regulatory Matters and Approvals. Each of the Parties
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will (and E-Trustco will cause each of its subsidiaries to) give any notices to,
make any filings with, and use its reasonable best efforts to obtain any
authorizations, consents, and approvals of governments and governmental agencies
in connection with the matters referred to in Sections 2.4, 2.10, 3.4 and 3.10
above.
Section 4.3 Full Access. E-Trustco will (and will cause each of its
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subsidiaries to) permit representatives of EMC or Ashton to have full access at
all reasonable times, and in a manner so as not to interfere with the normal
business operations of E-Trustco and its subsidiaries, to all premises,
properties, personnel, books, records (including tax records), contracts, and
documents of, or pertaining to, each of E-Trustco and its subsidiaries. EMC and
Ashton will treat and hold as such any confidential information they receive
from any of E-
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Trustco and its subsidiaries in the course of the reviews contemplated by this
Section 4.3, will not use any of the confidential information except in
connection with this Agreement, and, if this Agreement is terminated for any
reason whatsoever, agree to return to E-Trustco or its subsidiaries, as the case
may be, all tangible embodiments (and all copies) thereof which are in their
possession.
Section 4.4 Notice of Developments. Each Party will give prompt
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written notice to the other of any material adverse development causing a breach
of any of its own representations and warranties in Article II and Article III
above and its inability to comply with any of the covenants in Article IV. No
disclosure by any Party pursuant to this Section 4.4, however, shall be deemed
to prevent or cure any misrepresentation, breach of warranty, or breach of any
covenant to which notice is given under this Section 4.4.
Section 4.5 Exclusivity. E-Trustco will not (and will not cause or
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permit any of its subsidiaries to) solicit, initiate, or encourage the
submission of any proposal or offer from any person relating to the acquisition
of all or substantially all of the capital stock or assets of any of E-Trustco
and/or its subsidiaries (including any acquisition structured as a merger,
consolidation, or share exchange). E-Trustco shall notify EMC immediately if
any Person makes any proposal, offer, inquiry or contact with respect to any of
the foregoing.
ARTICLE V
Indemnification
Section 5.1 Indemnification. Each of the Parties, Ashton, Xxxxxxxx
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and Xxxxxxxxx agree to indemnify the other Party, Ashton, Xxxxxxxx and Xxxxxxxxx
as the case may be, and to hold the other harmless from and against any and all
losses, damages, liabilities, costs and expenses (including reasonable
attorneys' fees) which the other may sustain or incur in connection with the
breach by the indemnifying Party, Ashton, Xxxxxxxx or Xxxxxxxxx of any
representation, warranty or covenant made by it or him in this Agreement.
ARTICLE VI
Miscellaneous
Section 6.1 Termination. The Parties, Ashton, Xxxxxxxx and Xxxxxxxxx
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may terminate this Agreement by mutual written consent. If this Agreement is
terminated by mutual written consent, this Agreement shall become void and of no
effect with no liability on the part of any Party, Ashton, Xxxxxxxx or
Xxxxxxxxx.
Section 6.2 Survival. None of the provisions of this Agreement
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other than Sections 5.1, 6.2, 6.3, 6.6, 6.9, 6.11, 6.13 and 6.15 will survive
the termination of this Agreement.
Section 6.3 Press Releases and Public Announcements. Neither Party,
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nor Ashton, Xxxxxxxx or Xxxxxxxxx shall issue any press release or make any
public announcement relating to the subject matter of this Agreement without the
prior approval of the other signatories to this Agreement.
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Section 6.4 No Third Party Beneficiaries. This Agreement shall not
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confer any rights or remedies upon any Person other than the Parties, Ashton,
Xxxxxxxx or Xxxxxxxxx and their respective successors and permitted assigns.
Section 6.5 Entire Agreement. This Agreement (including the
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documents referred to herein) constitutes the entire agreement between the
Parties, Ashton, Xxxxxxxx and Xxxxxxxxx and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral, to
the extent they related in any way to the subject matter hereof.
Section 6.6 Succession and Assignment. This Agreement shall be
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binding upon and inure to the benefit of the Parties, Ashton, Xxxxxxxx and
Xxxxxxxxx and their respective successors and permitted assigns. Neither Party,
Ashton, Xxxxxxxx nor Xxxxxxxxx may assign either this Agreement or any of their
rights, interests, or obligations hereunder without the prior written approval
of each of the other signatories to this Agreement.
Section 6.7 Counterparts. This Agreement may be executed in one or
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more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
Section 6.8 Headings. The section headings contained in this
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Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 6.9 Notices. All notices, requests, demands, claims, and
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other communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
two business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:
If to EMC:
Electronic Market Center, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx, President
Facsimile: (000) 000-0000
If to Ashton:
The Ashton Technology Group, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, President
Facsimile: (000) 000-0000
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If to E-Trustco:
E-Trustco, Inc.
0 Xxxxxxx Xxxxx, Xxxxx 000
Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
If to Xxxxxxxx:
0 Xxxxxx Xxxxx Xxxxx
Xxxx, XX 00000
Facsimile: (000) 000-0000
If to Xxxxxxxxx:
Xxxxx Xxxxxxxxx
00 Xxxx Xxxx Xxxxxx
XXX 000
Xxxx, XX 00000
Any Party, Ashton, Xxxxxxxx or Xxxxxxxxx may send any notice, request,
demand, claim, or other communication hereunder to the intended recipient at the
address set forth above using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any Party, Xxxxxx Xxxxxxxx or
Xxxxxxxxx may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
Section 6.10 Share Legend. Each share certificate issued for shares
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of capital stock of EMC and E-Trustco delivered pursuant to this Agreement shall
be imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED,
OR UNDER ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED EXCEPT UPON DELIVERY TO THE CORPORATION OF AN OPINION OF
COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO IT THAT SUCH TRANSFER
WILL NOT VIOLATE THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAWS."
Section 6.11 Governing Law. This Agreement shall be governed by and
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construed in accordance with the domestic laws of the State of Delaware without
giving effect to
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any choice or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
Section 6.12 Amendments and Waivers. No amendment of any provision
----------------------
of this Agreement shall be valid unless the same shall be in writing and signed
by each of the Parties, Ashton, Xxxxxxxx and Xxxxxxxxx. No waiver by any Party,
Ashton, Xxxxxxxx or Xxxxxxxxx of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
Section 6.13 Severability. Any term or provision of this Agreement
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that is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
Section 6.14 Expenses. Each of the Parties, Ashton, Xxxxxxxx and
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Xxxxxxxxx will bear their own costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement and the transactions
contemplated hereby.
Section 6.15 Construction. The Parties, Ashton, Xxxxxxxx and
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Xxxxxxxxx have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties,
Ashton and Xxxxxxxx and no presumption or burden of proof shall arise favoring
or disfavoring any Party, Ashton and Xxxxxxxx by virtue of the authorship of any
of the provisions of this Agreement. Any reference to any federal, state, local,
or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context otherwise requires. The
word "including" shall mean including without limitation.
Section 6.16 Incorporation of Exhibits and Schedules. The Exhibits
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and Schedules identified in this Agreement are incorporated herein by reference
and made a part hereof.
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IN WITNESS WHEREOF, the Parties, Ashton, Xxxxxxxx and Xxxxxxxxx hereto
have executed this Agreement on as of the date first above written.
ELECTRONIC MARKET CENTER, INC. X-XXXXXXX.XXX, INC.
By: ________________________________ By:___________________________
Name: Xxxxxxx X. Xxxxxxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: President Title: President
THE ASHTON TECHNOLOGY GROUP, INC.
For purposes of Sections 1.2(3), 1.2(4),
3.6, 4.1, 5.1, 6.1, 6.3, 6.4, 6.5, 6.6,
6.9, 6.12, 6.14, and 6.15
By:_________________________________
Name: Xxxxxx X. Xxxxx
Title: President
XXXXXXX XXXXXXXX
For purposes of Sections 1.2(1), 1.2(3),
1.2(4), 2.6, 2.8, 2.9, 4.1, 5.1, 6.1,
6.3, 6.4, 6.5, 6.6, 6.9, 6.12, 6.14, and
6.15
__________________________________
XXXXX XXXXXXXXX
For purposes of Sections 1.2(1), 1.2(4),
2.6, 2.8, 2.9, 4.1, 5.1, 6.1, 6.3, 6.4,
6.5, 6.6, 6.9, 6.12, 6.14, and 6.15
___________________________________
12
Exhibit A
EMPLOYMENT AGREEMENT BY AND BETWEEN
XXXXXXX XXXXXXXX AND ELECTRONIC MARKET CENTER, INC.
13
Exhibit B
STOCKHOLDERS AGREEMENT
Of
ELECTRONIC MARKET CENTER, INC.
14
