EXHIBIT 10.46
THE ASHTON TECHNOLOGY GROUP, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
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THIS AGREEMENT, dated as of _______________, 1998, is made by and
between The Ashton Technology Group, Inc., a Delaware corporation (the
"Company"), and the person named on the signature page hereof (the "Grantee").
WHEREAS, the Board of Directors has determined that it would be to the
advantage and best interests of the Company and its stockholders to grant the
nonqualified option provided herein to the Grantee as an incentive for increased
efforts during the Grantee's employment with, or providing services to, the
Company, and has advised the Company thereof and instructed the undersigned
officers to issue said option;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do agree as follows:
ARTICLE I
DEFINITIONS
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Section 1.1 - Cause
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"Cause" shall mean (a) refusal to perform the Grantee's lawful duties
including, without limitation, those duties as directed by the Board of
Directors; (b) material misconduct; (c) gross negligence in the performance of
the Grantee's duties; (d) intentional destruction or theft of the Company's
property or falsification of the Company's documents; (e) conviction of a felony
or any crime involving moral turpitude; and (f) conduct that has or may have
material adverse effect on the reputation of the Company.
Section 1.2 - Common Stock
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"Common Stock" shall mean the Common Stock, par value $.01 per share,
of the Company.
Section 1.3 - Fair Market Value
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Unless otherwise specified herein, when a public market for the Common
Stock of the Company exists, the term "Fair Market Value" used in connection
with the value of shares of Common Stock shall mean the average of the high and
low reported sales prices of Common Stock on the exchange on which such Common
Stock is traded ( or such other market as shall constitute the principal trading
market for the Common Stock) on the date which Fair Market Value is being
determined (or, if there is no such trading on such date, the last preceding
date on which there was such trading). When no public market for the Common
Stock of the Company exists, Fair Market Value shall be determined by the Board.
Section 1.4 - Option
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"Option" shall mean the nonqualified option to purchase Common Stock
of the Company granted under this Agreement.
Section 1.5 - Permanent Disability
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The term "Permanent Disability" shall mean the inability of the
Grantee to perform substantially all the Grantee's duties and responsibilities
to the Company by reason of a physical or mental disability or infirmity for a
continuous period of six months. The date of such Permanent Disability shall be
the last day of such six-month period or if later, the day on which the Grantee
submits satisfactory medical evidence of such Permanent Disability.
Section 1.6 - Retirement
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"Retirement" shall mean, with respect to the Grantee, retirement on or
after the Grantee's attainment of age 65 or such earlier age as may be otherwise
determined by the Board of the Directors of the Company.
Section 1.7 - Secretary
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"Secretary" shall mean the Secretary of the Company.
Section 1.8 - Termination of Employment
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"Termination of Employment" shall mean the time when the employee-
employer relationship (or other relationship pursuant to which services are
performed) is terminated for any reason whatsoever. The Compensation Company of
the Company's Board of directors (the "Company"), in its absolute discretion,
shall determine the effect of all matters and questions relating to Termination
of Employment, including, but not limited to, all questions of whether
particular leaves of absences constitute Termination of Employment.
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ARTICLE II
GRANT OF OPTION
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Section 2.1 - Grant of Option
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For good and valuable consideration, on and as of the date hereof (the
"Grant Date"), the Company irrevocably grants to the Grantee the Option to
purchase any part or all of the number of shares of the Company's Common Stock
set forth on the signature page hereof, subject to adjustment as provided in
Section 2.4 hereof, upon the terms and conditions set forth in this Agreement.
Section 2.2 - Exercise Price
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The exercise price (the "Exercise Price") of the shares of stock
covered by the Option shall be $1.875 per share, without commission or other
charge.
Section 2.3 - Consideration to the Company
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In consideration of the granting of the Option by the Company, the
Grantee agrees by the execution of this Agreement that the Grantee shall render
faithful and efficient services to the Company, with such duties and
responsibilities as the Company shall from time to time prescribe.
Section 2.4 - Adjustment in Option
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Subject to Section 2.5, in the event the outstanding shares of Common
Stock subject to the Option are, from time to time, changed into or exchanged
for a different number or kind of shares of the Company or other securities of
the Company by reason of a merger, consolidation, recapitalization,
reclassification, stock split, stock dividend, combination of shares, or
otherwise, the Company shall make an appropriate and equitable adjustment in the
number and kind of shares or other consideration as to which the Option, or
portions thereof then unexercised, shall be exercisable. Any such adjustment
made by the Company shall be final and binding.
Section 2.5 - Merger or Consolidation, Recapitalization, Etc.
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In its absolute discretion, and on such terms and conditions as it
deem appropriate, the Company may at any time provide that the Option cannot be
exercised after the merger or consolidation of the Company with or into another
corporation, the sale or other disposition of all or substantially all of the
assets of the Company (including the exchange of such assets for the securities
of another corporation), the acquisition by another person of 80% or more of the
Company's then outstanding shares of voting stock or the recapitalization,
reclassification, liquidation or dissolution of the Company, and if the Company
so provides, it shall also provide, by a resolution adopted prior to the
occurrences of such merger, consolidation, disposition, acquisition,
recapitalization, reclassification, liquidation or dissolution, that, for some
period of time prior to such
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event, the Option shall be exercisable as to all shares subject thereto,
notwithstanding anything to the contrary in Section 3.1 and/or in any
installment provisions of such Option and/or that the grantee shall receive
cash, in lieu of exercising the Option, in the amount by which the Fair Market
Value as of the date of such event, of the number of shares of Common Stock to
which the Option relates exceeds the Exercise Price for the shares of Common
Stock which are subject to the Option, and that upon the occurrence of such
event, such Option shall terminated and be of no further force or effect;
provided, however, the Company may provide in its absolute discretion that even
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if the Option shall be exercisable only for the kind and amount of securities
and/or other property, or the cash equivalent thereof, receivable as a result of
such event by the holder of a number of shares of stock for which such Option
could have been exercised immediately
prior to such event.
ARTICLE III
PERIOD OF EXERCISABILITY
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Section 3.1 - Commencement of Exercisability
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(a) The Option is granted for an aggregate of the number os
shares of Company Common Stock set forth on the signature page hereof (the
"Option Shares");
(b) The Option shall automatically become exercisable after
September 12, 1997.
Section 3.2 - Expiration of Option
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After the first to occur of the following events, the Option
shall expire and may not be exercised to any extent by the Grantee:
(a) Immediately upon the Grantee's Termination of Employment for
Cause;
(b) Five years from the date of issuance; or
(c) 30 days after the Grantee's Termination of Employment for any
reason, other than death, Permanent Disability, Retirement or Cause.
ARTICLE IV
EXERCISE OF OPTION
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Section 4.1 - Person Eligible to Exercise
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During the lifetime of the Grantee, only the Grantee (or the
Grantee's legal guardian) may exercise the Option or any portion thereof. After
the death of the Grantee, any exercisable
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portion of the Option may, prior to the time when the Option becomes exercisable
under Section 2.5 or Section 3.2, be exercised by the Grantee's personal
representative or by any person empowered to do so under the Grantee's will or
under the then applicable laws of descent and distribution.
Section 4.2 - Partial Exercise
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Any exercisable portion of the Option or the entire Option, if
then wholly exercisable, may be exercised in whole or in part at any time prior
to the time when the Option or portion thereof becomes exercisable under Section
2.5 or Section 3.2; provided, however, that any partial exercise shall be for
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whole shares only.
Section 4.3 - Manner of Exercise
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The Option, or any exercisable portion thereof, may be exercised
solely by delivering to the Secretary or the Secretary's office all of the
following prior to the time when the Option or such portion becomes
unexercisable under Section 2.5 or Section 3.2:
(a) Notice in writing signed by the Grantee or the other person
then entitled to exercise the Option or portion thereof is thereby
exercised, such notice complying with all applicable rules established by
the Company.
(b) Full payment of the Exercise Price in cash or certified bank
check for the shares with respect to which such Option or portion thereof
is exercised or, if acceptable to the Company, (i) (A) by surrender or
delivery to the Company of shares equal to or less than the Exercise Price
or (B) in the event the Company registers its Common Stock under the
Securities Act of 1933, as amended (the "Act"), by registration on form S-8
(or any successor form), through the written election of the Grantee to
have shares of such Common Stock withheld by the Company from the shares
otherwise to be received, with such withheld shares having the aggregate
Fair Market Value on the date of exercise equal to or less than the
Exercise Price, plus (ii) cash or certified check for any difference
between the value of the shares so surrendered or withheld and the Exercise
Price;
(c) A bona fide written representation and agreement, in a form
satisfactory to the Company, signed by the Grantee or other person then
entitled to exercise such Option or portion thereof, stating that the
shares of stock are being acquired for the Grantee's own account, for
investment purposes only and without any present intention of distributing
or reselling said shares or any of them except as may be permitted under
the Act, and then applicable rules and regulations thereunder, and that the
Grantee or other person then entitled to exercise such Option or portions
thereof will indemnify the Company against and hold it free and harmless
from any loss, damage, expense of liability resulting to the Company if any
sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above; provided, however, that the
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Company may, in its absolute discretion, take whatever additional actions
it deems appropriate to ensure the observance
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and performance of such representation and agreement and to effect
compliance with the Act and any other federal or state securities laws or
regulations;
(d) Full payment to the Company of all amounts which, under federal,
state or local law, it is required to withhold and remit to any taxing
authority upon exercise of the Option; and
(e) In the event the Option or portion thereof shall be exercised
pursuant to Section 4.1 by any person or persons other than the Grantee,
appropriate proof of the right of such person or persons to exercise the
Option.
Without limiting the generality of the foregoing, the Company may require an
opinion of counsel acceptable to it to the effect that any subsequent transfer
of shares acquired on exercise of an Option does not violate the Act, and may
issue stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of the Option shall bear an appropriate legend
referring to the provisions of subsection (c) above and the agreements herein.
The written representation and agreement referred to in subsection (c) and the
legend referred to above shall, however, not be required if the shares to be
issued pursuant to such exercise have been registered under the Act, and such
registration is then effective in respect of such shares. The Company shall
determine acceptable methods for tendering and withholding Common Stock of the
Company as payment of the Exercise Price upon exercise of an Option and in
satisfaction of any withholding obligation and may impose such limitations and
prohibitions on the use of Common Stock of the Company to exercise an Option as
it deems appropriate, including without limitation, any limitation or
prohibition designed to avoid certain accounting consequences that may result
from the use of Common Stock of the Company as payment of the Exercise Price
upon exercise of an Option and in satisfaction of any withholding obligation.
Section 4.4 - Conditions to Issuance of Stock Certificates
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The shares of stock deliverable upon the exercise of the Option,
or any portion thereof, may be either previously authorized but unissued shares
of issued shares that have then been reacquired by the Company. Such shares
shall be fully paid and nonassessable. The Company shall not be required to
issue or deliver any certificates of shares of stock purchased upon the exercise
of the Option or portion thereof prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed if so required by
such exchanges;
(b) The completion of any registration or other qualification of
such shares under any state or federal law or under rulings or regulations
of the Securities and Exchange Commission or of any other governmental
regulatory body, which the Company shall, in its absolute discretion, deem
necessary or advisable;
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(c) The obtaining of approval or other clearance from any state
or federal governmental agency which the Company shall reasonably determine
to be necessary or advisable;
(d) The payment to the Company of all amounts which, under
federal, state or local law, it is required to withhold and remit to any
taxing authority upon exercise of the Option; and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Company may from time to time establish for
reasons of administrative convenience.
Section 4.5 - Cash Payment in Lieu of Stock
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Notwithstanding anything to the contrary contained herein, if at
the time the Option or any exercisable portion thereof is delivered for exercise
to the Company, or at any time prior to the issuance of a certificate of stock
in respect of such Option or portion thereof, the Common Stock has ceased to be
listed any national securities exchange or otherwise publicly traded (whether or
not listed on any stock exchange), the Board of Directors, in its sole
discretion, shall have the option of delivering (i) shares of Common Stock or
(ii) a cash payment in lieu of shares of Common Stock equal to the difference
between the Fair Market Value of the Common Stock and the Exercise Price,
multiplied by the number of shares of Common Stock that would have been issued
upon such exercise.
Section 4.6 - Rights as Stockholder
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The Grantee shall not be, nor have any of the rights or
privileges of a stockholder of the Company in respect of any shares purchasable
upon the exercise of the Option or any portion thereof unless and until
certificates representing such shares shall have been issued by the Company to
such Grantee.
ARTICLE V
MISCELLANEOUS
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Section 5.1 - Administration
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The Company's Board of Directors shall have the power to
interpret this Agreement. All actions taken and all interpretations and
determination made by the Company shall be final and binding upon the Grantee,
the Company and all other interested persons. No member of the Company shall be
personally liable for any action, determination or interpretation made in good
faith with respect to the Agreement or the Option. In its absolute discretion,
the board of directors may
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at any time and from time to time exercise any and all rights and duties of the
Company under this Agreement.
Section 5.2 - Option Not Transferable
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No Option or interest or right therein shall be subject to
disposition by transfer, alienation, anticipation, pledge, encumbrance,
assignment or any other means, whether such disposition be voluntary or
involuntary or by operation of law or by judgment, levy, attachment, garnishment
or any other legal or equitable proceeding (including bankruptcy) and any
attempted disposition thereof shall be null and void and of no effect; provided,
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however, that nothing in this Section 5.2 shall prevent transfers by will or by
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the applicable laws of descent and distribution.
Section 5.3 - Shares to Be Reserved
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The Company shall at all times during the term of the Option
reserve and keep available such number of shares of stock as will be sufficient
to satisfy the requirements of this Agreement.
Section 5.4 - Notices
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Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Grantee shall be addressed to the Grantee at the
address given beneath the Grantee's signature hereto. By a notice given
pursuant to this Section 5.4, either party may hereafter designate a different
address for notices to be given to such party. Any notice which is required to
be given to the Grantee shall, if the Grantee is then deceased, be given to the
Grantee's personal representative if such representative has previously informed
the Company of such representatives status and address by written notice under
this Section 5.4. Any notice shall have been deemed duly given when enclosed in
a properly sealed envelope or wrapper addressed as aforesaid, deposited (with
postage prepaid) in a post office of branch post office regularly maintained by
the United States Postal Service.
Section 5.5 - Titles
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Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
Section 5.6 - Amendment
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This Agreement may be amended only by a writing executed by the
parties hereto which specifically states that it is amending this Agreement.
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Section 5.7 - Governing Law
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The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under the principles of conflicts of
laws.
Section 5.8 - Jurisdiction
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Any suit, action or proceeding against the Grantee with respect
to this Agreement, or any judgment entered by any court in respect of any
thereof, may be brought in any court of competent jurisdiction in the State of
Pennsylvania, as the Company may elect in its sole discretion, and the Grantee
agrees to submit to the nonexclusive jurisdiction of such courts for the purpose
of any such suit, action, proceeding or judgment. By the execution and delivery
of this Agreement, the Grantee appoints the Secretary as the Grantee's agent
upon whom process may be served in any such suit, action or proceeding. Service
of process upon such agent, together with notice of such service given to the
Grantee in the manner provided in Section 5.4 hereof, shall be deemed in every
respect effective service of process upon him in any suit, action or proceeding.
Nothing herein shall in any way, be deemed to limit the ability of the Company
to serve any such writs, process or summonses in any other matter permitted by
applicable law or to obtain jurisdiction over the Grantee, in such other
jurisdictions, and in such manner, as may be permitted by applicable law. The
Grantee hereby irrevocably waives any objections which the Grantee may now or
hereafter have to the laying of the venue of any suit, action or proceeding
arising out of or relating to this Agreement brought in any court of competent
jurisdiction in the State of Pennsylvania, and hereby further irrevocably waives
any claim that any such suit, action or proceeding brought in any such court has
been brought in any inconvenient forum. No suit, action or proceeding against
the Company with respect to this Agreement may be brought in any court, domestic
or foreign, or before any similar domestic or foreign authority. The Company
hereby submits to the jurisdiction of such courts for the purpose of any such
suit, action or proceeding.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
THE ASHTON TECHNOLOGY GROUP, INC.
By:
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Name:
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Title:
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--------------------------- The aggregate number of shares
Name of Grantee: of Common Stock for which this
Title: Option is exercisable is ___________
(the "Option Shares")
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Address
Grantee's Taxpayer
Identification Number:
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