Exhibit 2.3
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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.
[The Remainder Of This Page Is Intentionally Left Blank]
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
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Name: Xxxxxxx X. Xxxxxxxx
Title: General Counsel
OPTIMARK INNOVATIONS INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Secretary
