Exhibit 10.3
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of October 7, 2002 (this "Agreement"),
between THE ASHTON TECHNOLOGY GROUP, INC., a Delaware corporation ("Ashton"),
and Xxxxxx X. Xxxxx, an individual ("You" or the "Executive").
Ashton desires to employ the Executive and the Executive desires to accept
such employment.
Accordingly, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are mutually acknowledged, Ashton and the Executive agree as
follows:
1.0 Term
a. The term of Your employment under this Agreement shall commence on the
Effective Date (as defined below) and shall end on the first anniversary
thereof, unless terminated earlier or extended as provided herein (the "Term").
b. The "Effective Date" shall be May 8, 2002.
2.0 Employment Position and Responsibilities
You will be employed in the position of President and Chief Operating
Officer of Ashton. You will be responsible for such duties as are normally
associated with such position or as otherwise determined by the Board of
Directors.
3.0 Compensation and Benefits
a. Your base salary ("Base Salary") during the Term is guaranteed to be
no less than $160,000 per year, which will be payable in accordance with
Ashton's regular payroll practices. Your Base Salary may be reviewed from time
to time by the Board of Directors of Ashton to determine whether there should be
any increase in Base Salary. This determination will be made in view of Your
individual performance and the overall performance of Ashton. No guarantee is
made of any Base Salary increase as a result of any salary review.
b. You will receive three (3) weeks vacation per year, which is earned
pro-rata over the year; and receive five (5) paid-time-off days (personal/sick)
per year. You will also receive the same paid holidays as are observed by all of
Ashton's employees.
c. In addition to the benefits set forth in paragraphs 3a and 3b, You
shall be entitled to participate in other fringe benefits packages made
available generally to the executive management employees of Ashton, as such
benefits may be determined from time to time by the Board of Directors,
including but not limited to, 401(k), medical, dental, and flexible spending and
dependent care benefits.
d. From time to time, the Board of Directors of Ashton may consider, in
its sole discretion, whether You should receive a cash bonus ("Discretionary
Cash Bonus") based on Your performance during the Term. This determination will
be made in view of Your individual performance and the overall performance of
Ashton. Ashton does not guarantee that You will receive a Discretionary Cash
Bonus acceptable to You or at all.
e. At such time as the Board of Directors deems it appropriate, the Board
of Directors may consider whether to implement a cash bonus program for
executive management employees. Ashton does not guarantee that such a cash bonus
program will be implemented on terms acceptable to You or at all.
4.0 Stock Options
x. Xxxxxx has created the 2002 Stock Option Plan (the "Stock Option
Plan") for its common stock, par value $0.01 ("Common Stock"). On July 9, 2002,
Ashton has granted to You stock options ("Options") to acquire 23,777,639 shares
of Common Stock. The foregoing number of Options shall be adjusted
proportionately in the event of any stock split, stock dividend, combination, or
reclassification of the Common Stock or any other increase or decrease in the
number of issued shares of the Common Stock without receipt of consideration by
Ashton.
b. The grant of Options has been subject to the appropriate approvals,
including approval of Ashton's Board of Directors and, as incentive stock
options have been granted, shareholder approval of the Stock Option Plan. Your
Options will be subject to the same general terms and conditions as other
executive management employees, including but not limited to, the exercise price
of the Options, and the registration rights (if any) in respect of the shares of
Common Stock underlying the Options. Your Options will be governed by a stock
option agreement ("Stock Option Agreement"), which shall provide for an eight
(8) cent exercise price, and the following four year vesting schedule: 1/6/th/
shall vest six months from May 7, 2002 ("Vesting Commencement Date"); 1/6/th/
shall vest one year from the Vesting Commencement Date; and 2/9ths shall vest on
each of the second, third, and fourth anniversary dates from the Vesting
Commencement Date, subject in each case to You continuing to be a Service
Provider (as defined in the Stock Option Plan) on such dates. Additionally, Your
Stock Option Agreement will provide that in the event of a Change of Control (to
be defined in the Stock Option Plan and Stock Option Agreement) of Ashton, fifty
percent (50%) of Your unvested Options shall vest immediately upon the Change of
Control. Ashton will also make commercially reasonable efforts to provide for a
"cashless exercise" method for You to exercise Your Options, if legally
allowable.
5.0 Directors and Officers Liability Insurance
During the term of this Agreement, Ashton shall have in force and effect
(at its own cost) Directors and Officers Liability Insurance, with coverage in
such amounts as may be deemed appropriate by Ashton's Board of Directors.
6.0 Termination
a. Your employment under this Agreement may be terminated by You or
Ashton at any time, with or without Cause (as defined below).
b. In the event of termination by Ashton without Cause, or in the event
of a Constructive Termination (as defined below), Ashton shall pay You an amount
equal to the greater of (1) six (6) months of Your Base Salary or (2) the
remainder of the Base Salary due to You from the date of termination through the
expiration of the Term. In the event of termination by Ashton with Cause, or if
You voluntarily terminate Your employment, then You shall not be entitled to the
payment described in paragraph 6b.
c. In the event of termination by Ashton without Cause, or in the event
of a Constructive Termination (as defined below), You shall vest immediately in
one hundred percent (100%) of Your first two installments (100% of 1/6/th/ plus
1/6/th/ = 1/3/rd/) and fifty percent (50%) of Your next unvested anniversary
installment (50% of 2/9ths = 1/9/th/) respecting Your July 9, 2002 Options
grant. You may exercise such vested Options within one (1) year from such date
of Your termination. The effect of any other termination of Your employment on
Options granted to You shall be governed by the Stock Option Plan and Stock
Option Agreement.
d. In the event this Agreement lapses without being extended in
accordance with paragraph 6g, and at anytime thereafter You are either
terminated by Ashton without Cause or subject to a Constructive Termination (as
defined below), Ashton shall pay You an amount equal to six (6) months of Your
Base Salary and you shall automatically vest in any unvested portion of Your
July 9, 2002 Options grant up to 1/9/th/ of the total grant, which will be in
addition to Your Options that have previously vested. You may exercise such
vested Options within one (1) year from such date of Your termination. The
effect of any other termination of Your employment on Options granted to You
shall be governed by the Stock Option Plan and Stock Option Agreement, and shall
preclude You from receiving the payment described in paragraph 6d.
e. For the purposes of this Agreement, "Cause" shall mean (1) a refusal,
failure, or inability to perform any reasonable assigned duties; (2) a material
breach or violation of this Agreement; (3) conduct by the Executive that
constitutes gross negligence or gross misconduct; (4) material failure to follow
Ashton's policies, directives, or orders applicable to Ashton employees holding
comparable positions; (5) intentional destruction or theft of Ashton property or
falsifications of Ashton documents; (6) conviction of a felony or any crime
involving moral turpitude or a misdemeanor where imprisonment in excess of
fifteen (15) days is imposed; or (7) violation of the written Ashton Code of
Conduct (the "Code").
f. For the purposes of this Agreement, "Constructive Termination" shall
mean: (1) the material reduction by Ashton of the scope of Your duties for forty
(40) consecutive Business Days, (2) a material reduction in Your Base Salary, or
(3) the continued assignment to You of any duties materially inconsistent with
the level of Your
position with Ashton; provided that none of the foregoing events shall be deemed
to result in a Constructive Termination if You consent to such events or if such
events are the result of actions of Ashton or its Board of Directors that are
applicable to all officers of Ashton.
x. Xxxxxx may extend this Agreement for successive one year terms so long
as Ashton provides You at least sixty (60) calendar days advance written notice
prior to the expiration of the Term.
h. A "Business Day" means any day other than (1) a Saturday, Sunday or
legal holiday, or (2) a day on which commercial banks in New York City are
authorized or required by law or executive order to close.
7.0 Confidential Information
In the course of the Executive's employment with Ashton, the Executive may
become aware of confidential information including, without limitation, computer
system and software designs, plans for new product and service offerings,
customer lists, market research, strategic plans, domain management consulting
methodologies, and other non-public or similar information that relates to the
business of Ashton, its investors, business partners, customers and/or clients.
The Executive will not use or disclose any such confidential information of
Ashton or its investors, business partners, customers or clients except in the
course of his duties to Ashton or unless ordered to do so by a court of
competent jurisdiction (in which latter case the Executive will promptly inform
Ashton of such order). The Executive will comply with Ashton's policies and
procedures for the protection of confidential information. Further, the
Executive's obligation not to disclose or use such confidential information will
continue after the termination of the Executive's employment for whatever
reason. Confidential information excludes any information known by the Executive
prior to the commencement of the first date of employment with Ashton, which was
not obtained from Ashton (or a director, officer, employee or agent of Ashton)
or which is or becomes known by the public or in Ashton's industry other than by
a breach by the Executive of a confidentiality obligation to Ashton.
8.0 Non-solicitation and Non-compete
a. The Executive agrees that until his Termination Date (as defined
below), the Executive shall devote substantially all of his working time to the
business and affairs of Ashton.
b. The Executive agrees that for a period of twelve (12) months following
the date of termination of the Executive's employment with Ashton for any reason
(the "Termination Date"), the Executive will not, and will not assist anyone
else to, directly or indirectly solicit or induce any of Ashton's employees to
terminate their employment with Ashton or divert, interfere with or take away
from Ashton any person, company or entity which, within the six month period
immediately preceding the date of termination,
was an investor, customer, client, supplier, business partner, prime contractor,
subcontractor or independent contractor of Ashton.
c. From the Termination Date and for a period of twelve (12) months
thereafter, the Executive agrees that he will not, directly or indirectly, as an
equity owner, director, employee, consultant, lender, agent or in any other
capacity, (1) engage or participate in, or have any interest in any corporation,
entity or other person that engages or participates in any actual, contemplated,
or proposed business or activity engaged or participated in by Ashton or its
subsidiaries on the Termination Date, or (2) engage or participate in, or have
an interest in any corporation, entity or other person that participates in a
merger, acquisition or consolidation with Ashton or any of its subsidiaries. For
purposes of this paragraph 8c, the "business or activity" engaged or
participated in by Ashton or its subsidiaries consists of creating,
establishing, providing or supplying equity products and equity derivatives
thereof that guarantee liquidity based on a benchmark price, and the Executive
will be deemed directly or indirectly to be engaged or participating in the
operation of such a business or activity, or to have an interest in a
corporation, entity or other person, if he is a proprietor, partner, joint
venturer, shareholder, director, officer, lender, manager, employee, consultant,
advisor or agent or if he, directly or indirectly (including as a member of a
group), controls all or any part thereof; provided, that nothing in this
paragraph 8c shall prohibit the Executive from holding less than five percent
(5%) of a class of a corporation's outstanding securities that are listed on a
national securities exchange or traded in the over-the-counter market.
d. The noncompetition covenant set forth in paragraph 8c above shall not
apply where the Executive's employment is terminated by Ashton without Cause or
where You have been Constructively Terminated, unless, on or before ten (10)
Business Days following Your Termination Date, the Board of Directors of Ashton
directs Ashton to pay by wire transfer of immediately available funds to an
account that You specify (1) an amount equal to twelve times Your gross monthly
salary for the last complete calendar month immediately preceding Your
Termination Date, plus any cash bonus received by You during such period, and
(2) Ashton agrees in writing to maintain, at Ashton's expense for the twelve
(12) months following Your Termination Date, health and medical insurance
coverage to which You were entitled as of the Termination Date.
e. You acknowledge that the business conducted by Ashton is national in
nature and, accordingly, You agree that the competition restriction shall apply
to You in the United States for the period set forth in paragraph 8c. You
acknowledge that the restrictions, prohibitions and other provisions of
paragraph 8c are reasonable, fair and equitable in scope, terms and duration,
are necessary to protect the legitimate business interests of Ashton.
9.0 Intellectual Property
a. The Executive will fully and promptly disclose and describe to Ashton,
and hereby agrees to assign to Ashton, all of his full right, title, and
interest in all
intellectual property, including, without limitation, all inventions,
discoveries, concepts, ideas, systems, methods, processes, works, computer
programs and computer software (whether or not patentable or copyrightable or
constituting trade secrets), which the Executive makes, conceives, reduces to
practice, or creates as an employee of or in connection with his employment by
Ashton. The Executive also will disclose and assign to Ashton all of his
interest, if any, in any such intellectual property conceived of or created by
other employees or by clients of Ashton during the Term. The Executive
understands that he will have no rights to any royalties or other compensation
for the use of any intellectual property covered by this Agreement, unless
expressly agreed to in writing by Ashton.
b. The Executive will cooperate with Ashton in doing whatever is
appropriate, including executing assignments, to apply for, obtain and enforce
patent rights (U.S. and/or foreign) for Ashton or its clients on any invention
which is made by the Executive (either alone or jointly with others) during the
Term and to which Ashton is entitled to possession under the terms of this
Agreement, provided that (1) all expenses required to apply for, obtain and
enforce any patent rights will be paid by Ashton, and (2) if the Executive is no
longer employed by Ashton and is required to spend a substantial amount of time
to carry out his obligations under this paragraph 9, the Executive will be
entitled to reasonable compensation from Ashton for that time at levels based on
his total annual compensation in effect at the time the Executive's employment
with Ashton was terminated. The Executive understands that Ashton will have no
obligation to him to apply for or obtain any such patent rights.
c. Any written materials or software relating to the business of Ashton
that the Executive prepares, in whole or in part, during the Term, will be the
property of Ashton. The Executive hereby assigns to Ashton all of his full
right, title and interest in any such written materials or software. The
Executive also will do whatever is appropriate to obtain copyright protection of
any such written materials or software relating to his work for Ashton or its
clients, should Ashton so request.
d. Upon the termination of the Executive's employment with Ashton, or
during the Executive's employment if so requested by Ashton, the Executive will
deliver to an authorized representative of Ashton (1) all credit cards,
identification cards, badges, keys, and other items which have been provided to
the Executive by Ashton, (2) all tools, equipment, and software provided to the
Executive by Ashton, and (3) all written materials, records, tapes, disks and
other media which relate to the business of Ashton. The Executive will not
retain any copies or duplicates of the items described above, except that the
Executive may retain copies of his own records relating to his compensation and
benefits from Ashton, a copy of this Agreement and any other agreement between
the Executive and Ashton, and his personal copies of any papers which have been
written by the Executive and have been published without restriction.
10.0 Monies Owed to Ashton
Upon the separation of Your employment from Ashton, You agree to authorize
Ashton to deduct from Your final wages or other monies due to You any debts or
financial obligations owned to Ashton by You.
11.0 Arbitration
Any claim, controversy, or dispute arising out of or relating to this
Agreement, the Executive's employment with Ashton or the termination of such
employment shall be resolved by binding confidential arbitration, to be held in
Philadelphia, Pennsylvania, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
12.0 Remedies
You understand and agree that Ashton will be irreparably damaged in the
event that the provisions of paragraphs 7, 8, or 9 of this Agreement are
violated. You agree that Ashton shall be entitled to (in addition to any other
remedy to which it may be entitled, at law or in equity) to an injunction to
redress breaches of paragraphs 7, 8, or 9 of this Agreement and to specifically
enforce the terms and provisions thereof.
13.0 Separability
Each provision of this Agreement will be interpreted in such a manner as to
be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provisions, to the extent of such prohibition or invalidity, shall be deemed not
to be part of this Agreement, and shall not invalidate the remainder of such
provision or the remaining provisions of this Agreement.
14.0 Governing Law
The Agreement shall be governed by and interpreted under the laws of
Pennsylvania.
15.0 Amendments
This Agreement may not be modified or amended except by written instrument
executed by You and an authorized corporate officer of Ashton.
16.0 Entire Agreement
This Agreement constitutes the parties' entire agreement, and supersedes
and prevails over all other prior, or contemporaneous, agreements,
understandings or representations by or between the parties, whether oral or
written, with respect to the subject matters herein.
17.0 Legal Expenses
Upon presentation of an itemized invoice, Ashton shall reimburse You for
fees of counsel in connection with the negotiation of this Agreement, such fees
not to exceed two thousand five hundred dollars ($2,500.00).
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first set forth above.
THE ASHTON TECHNOLOGY GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: CEO
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
