EXHIBIT 4.11
INDEMNIFICATION AGREEMENT
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THIS INDEMNIFICATION AGREEMENT (this "Agreement") entered into as of
this 3rd day of May, 2002 by and among The Ashton Technology Group, Inc., a
Delaware corporation, its Subsidiaries, and its past and present officers,
directors, and employees (collectively, the "Company") and OptiMark US Equities,
Inc. (f/k/a OptiMark Technologies, Inc.) , a Delaware corporation ("Equities").
Unless otherwise stated in this Agreement, capitalized terms used herein but not
otherwise defined herein shall have the meanings ascribed to them in that
certain Securities Purchase Agreement dated as of the 4th day of February, 2002
(the "Securities Purchase Agreement"), by and between the Company and OptiMark
Innovations Inc. ("Innovations").
R E C I T A L S
WHEREAS, Equities is a defendant in that certain litigation captioned
Finova Capital Corporation v. OptiMark Technologies, Inc. (now known as
Equities), OptiMark, Inc. and OptiMark Holdings, Inc., Docket No.:
XXX-X-0000-00, Xxxxxxxx Xxxxx xx Xxx Xxxxxx - Xxxxxx Xxxxxx (the "Litigation");
WHEREAS, Equities and OptiMark, Inc. are wholly-owned subsidiaries of
OptiMark Holdings, Inc. and Innovations is a majority-owned subsidiary of
OptiMark, Inc.;
WHEREAS, the plaintiff in the Litigation, Finova Capital Corporation
("Finova") has alleged that Equities effected fraudulent conveyances of certain
assets to OptiMark Holdings, Inc.;
WHEREAS, Finova has alleged that OptiMark Holdings, Inc. effected
fraudulent conveyances of certain assets to OptiMark, Inc.;
WHEREAS, Finova has made a motion to add Innovations as a defendant in
the Litigation upon a theory that OptiMark, Inc. effected fraudulent conveyances
of certain assets to Innovations, which motion is pending;
WHEREAS, Innovations has not been added as a defendant in the
Litigation as of the date hereof;
WHEREAS, the Company anticipates that Finova may make a motion to
attempt to add the Company as an additional defendant in the Litigation to
assert one or more claims relating to the transfer by Innovations of certain
assets to the Company (the "Fraudulent Conveyance Claim");
NOW, THEREFORE, in consideration of the mutual agreements and
covenants herein contained, the parties hereto agree as follows:
1. INDEMNIFICATION BY EQUITIES. In the event Finova adds the Company as a
defendant in the Litigation, then Equities agrees to indemnify the Company from
and against the entirety of any actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, liabilities, obligations, taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses,
including indirect, consequential and punitive damages (collectively "Adverse
Consequences"), the Company may suffer through and after the date of the claim
for indemnification resulting from, arising out of, relating to, in the nature
of, or caused by any Fraudulent Conveyance Claims. For the purposes of clarity,
under no circumstances shall the Company be indemnified against any Adverse
Consequences other than the Fraudulent Conveyance Claim brought by Finova
against the Company.
2. INDEMNIFICATION PROCEDURES.
a. If Finova shall notify the Company with respect to any matter which
may give rise to a claim for indemnification ("Finova's Claim") against Equities
under Paragraph 1, then the Company shall promptly notify Equities thereof in
writing; provided, however, that delay on the part of the Company in notifying
Equities shall not relieve Equities from any obligation hereunder unless (and
then solely to the extent) Equities is prejudiced as a result of such delay.
b. Equities will have the right to defend the Company against Finova's
Claim with counsel of its choice reasonably satisfactory to the Company so long
as Equities conducts the defense of Finova's Claim actively and diligently.
c. So long as Equities is conducting the defense of Finova's Claim in
accordance with Paragraph 2(b) above, (A) the Company may retain separate
co-counsel at its sole cost and expense and participate in the defense of
Finova's Claim, (B) the Company will not consent to the entry of any judgment or
enter into any settlement with respect to Finova's Claim without the prior
written consent of Equities, and (C) Equities will not consent to the entry of
any judgment or enter into any settlement with respect to Finova's Claim, unless
such settlement includes an unconditional release of the Company, without the
prior written consent of the Company, which consent shall not be unreasonably
withheld.
3. OTHER INDEMNIFICATION PROVISIONS. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy any party may have with respect to the
transactions contemplated by this Agreement and any rights any party may have
under any other agreement.
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4. SEVERABILITY. Any provision of this Agreement which is deemed invalid,
illegal or unenforceable in any jurisdiction shall, as to that jurisdiction and
subject to this Paragraph 4, be ineffective to the extent of such invalidity,
illegality or unenforceability, without affecting in any way the remaining
provisions hereof in such jurisdiction or rendering such provision or any other
provision of this Agreement invalid, illegal or unenforceable in any other
jurisdiction. If any covenant should be deemed invalid, illegal or unenforceable
because its scope is considered excessive, such covenant shall be modified so
that the scope of the covenant is reduced only to the minimum extent necessary
to render the modified covenant valid, legal and enforceable.
5. NOTICE. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered to each party hereto by
hand or sent by reputable overnight courier, with receipt verified, or
facsimile, with receipt verified, or registered or certified mail, return
receipt requested, addressed as follows:
(i) If to the Company:
11 Penn Center
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxxxxxxxxx X. Xxxxxxx, Esq.
Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to OptiMark US Equities, Inc.:
00 Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxxxx & Xxxxxxxx
Four Stamford Plaza
000 Xxx Xxxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as any party may designate by written notice in the
aforesaid manner.
6. ASSIGNABILITY; BENEFIT. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their successors and permitted
assigns. This Agreement shall not be assignable by any of the parties except
with the prior written consent of all of the other parties hereto, and any
purported assignment without such consent shall be void.
7. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without regard to its conflicts of law principles.
8. WAIVER. Any failure of a party to comply with an obligation, covenant,
agreement or condition herein may be waived in writing by the other party, but
such waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of any other
failure.
9. AMENDMENT. This Agreement may be amended, modified or supplemented only
by written agreement executed by the Company, or its successors or permitted
assigns, and Equities.
10. REMEDIES CUMULATIVE. All remedies of the parties provided herein shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any
other remedies available to the parties, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements
contained herein and every remedy given herein or available by law to any party
hereto may be exercised from time to time, and as often as shall be deemed
expedient, by such party.
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11. HEADINGS. The section and other headings contained in this Agreement
are for reference purposes only and shall not affect the interpretation or
meaning of this Agreement.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
13. BANKRUPTCY. This Agreement shall become null, void, and unenforceable
in the event that (1) Company has dissolved or liquidated or taken an equivalent
action, (2) an involuntary petition shall have been filed under any federal or
state bankruptcy, reorganization, insolvency, moratorium or similar statute
against the Company or any of its subsidiaries, (3) a custodian, receiver,
trustee, assignee for the benefit of creditors or other similar official have
been appointed to take possession, custody, or control of the property of the
Company or any of its subsidiaries, (4) the Company or any of its subsidiaries
have admitted in writing its inability to pay any of its debts as they mature,
or have filed any petition or action for relief relating to any bankruptcy,
reorganization, insolvency or moratorium law, or any other similar law or laws
for the relief of, or relating to, debtors, (5) the Company or any of its
subsidiaries have made a general assignment for the benefit of creditors or
entered into an agreement of composition with its creditors, or (6) the Company
or any of its subsidiaries ceases to operate a guaranteed price and fill VWAP
service or system.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
THE ASHTON TECHNOLOGY GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: EVP & General Counsel
OPTIMARK US EQUITIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
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