Exhibit 10.6
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of October 8, 2002 (this "Agreement"),
between THE ASHTON TECHNOLOGY GROUP, INC., a Delaware corporation ("Ashton"),
and Xxxx Xxxxxx, 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 October 9, 2002.
2.0 Employment Position and Responsibilities
You will be employed in the position of Chief Executive 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 $300,000 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 shall also be entitled to the following one-time bonuses: (1) a
$100,000 bonus payable to You subsequent to Ashton receiving net proceeds of a
financing of $10,000,000 or more prior to January 31, 2003, and (2) a $100,000
bonus payable to You where Ashton has achieved earnings before interest and
income taxes for any two consecutive months prior to May 1, 2003 and where there
has not been a material change to the operating cost structures of Ashton and
its affiliates without Ashton Board approval ("One-Time Bonus[es]"). For the
purposes of this clause material change means more than a ten percent (10%)
change from the operating cost structures as measured from the month prior to
the Effective Date. You shall be entitled
to a lump sum payment when either of the One-Time Bonuses is earned, less
required withholdings and deductions. Even if neither One-Time Bonuses is
earned, Ashton shall guarantee $100,000 of the One-Time Bonuses, which will be
payable to You in four (4) equal quarterly installments, with the first
installment payable to You on the 90/th/ day after the Effective Date, less
required withholdings and deductions ("Guaranteed Bonus"). The Guaranteed Bonus
shall: (1) to the extent paid, be deemed to be a pre-payment of One-Time Bonuses
You earn and shall be deducted from earned One-Time Bonus payments to You, (2)
not be required to be repayed by You if neither of the One-Time Bonuses is
earned, and (3) not be considered in the calculation of any severance payment to
You. Once Ashton pays You $100,000 for any earned One-Time Bonus, less required
withholding and deductions, Ashton shall cease making any further Guaranteed
Bonus installment payments.
c. 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.
d. In addition to the benefits set forth in paragraphs 3a, 3b, and 3c,
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.
e. 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.
f. 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"). Ashton shall
grant to You stock options ("Options") to acquire 47,555,279 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; except
that fifty percent (50%) of Your Options (to acquire 23,777,640 shares of Common
Stock), shall carry anti-dilution rights with respect to the first round of
financing, which is defined as Ashton receiving net proceeds (1) from a
single funding source of $1 million or greater during the Term of this Agreement
or (2) in aggregate of $3 million or greater during the Term of this Agreement.
b. The grant of Options shall be subject to the appropriate approvals,
including approval of Ashton's Board of Directors and, as incentive stock
options will be granted, shareholder approval of the Stock Option Plan (the
latter approval occurred on September 13, 2002). 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
the Effective Date ("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), either termination occurring
on or before the first year anniversary of the Effective Date, 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), either termination occurring
on or before the first year anniversary of the Effective Date, You shall vest
immediately in one hundred percent (100%) of Your first two installments (100%
of 1/3/rd/ = 15,851,760 shares) of Your Options. 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 is extended in accordance with paragraph
6h or lapses without being extended or replaced, and if You are either
terminated by Ashton without Cause or subject to a Constructive Termination (as
defined below) in or within six (6) months after the first anniversary of the
Effective Date, Ashton shall pay You an amount equal to six (6) months of Your
Base Salary, which will be payable in accordance with Ashton's regular payroll
practices (12 bi-monthly payments). Additionally, You shall automatically vest
in the lesser of 1/9/th/ of Your total Options or Your remaining unvested
Options, 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. In the event this Agreement is extended in accordance with paragraph
6h or lapses without being extended or replaced, and if You are either
terminated by Ashton without Cause or subject to a Constructive Termination (as
defined below) subsequent to six (6) months after the first anniversary of the
Effective Date, Ashton shall pay You an amount equal to one (1) year of Your
Base Salary, which will be payable in accordance with Ashton's regular payroll
practices (24 bi-monthly payments). Additionally, You shall automatically vest
in the lesser of 2/9ths of Your total Options or Your remaining unvested
Options, 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 6e.
f. 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; (7) violation of the written Ashton Code of
Conduct (the "Code"), or (8) executing any agreement with a third party that
materially restricts the Executive from personally developing business and/or
soliciting new customers on behalf of Ashton and/or its affiliated companies.
g. 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.
i. 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 Your employment is terminated by Ashton without Cause or where You
have been Constructively Terminated, unless (1) Ashton fulfills its obligations
to You in accordance with paragraphs 6b, 6d or 6e, 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 owed 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.
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/ Xxxx Xxxxxx
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XXXX XXXXXX
