Exhibit 4.5
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NON-COMPETITION AGREEMENT
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THIS NON-COMPETITION AGREEMENT (this "Agreement") entered into as of
this ___ day of May, 2002 by and among The Ashton Technology Group, Inc., a
Delaware corporation (the "Company"), OptiMark Innovations Inc., a Delaware
corporation (the "Investor"), OptiMark, Inc., a Delaware corporation, and
OptiMark Holdings Inc., a Delaware Corporation (the Investor, OptiMark, Inc. and
OptiMark Holdings Inc, collectively, the "Group"). Unless otherwise stated in
this Agreement, capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to them in the Securities Purchase Agreement
dated as of the 4th day of February, 2002, by and between the Company and the
Investor (the "Purchase Agreement").
R E C I T A L S
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WHEREAS, pursuant to the terms of the Purchase Agreement, on the date
of the Closing, the Investor is acquiring six hundred eight million seven
hundred seven thousand five hundred sixty seven (608,707,567) shares of the
Company's Common Stock; and
WHEREAS, pursuant to Section 4.29 of the Purchase Agreement, it is a
condition to consummate the transactions contemplated by the Purchase Agreement,
that the Group enter into a non-competition agreement with the Company in form
and substance mutually satisfactory to the Company and the Investor.
NOW, THEREFORE, in consideration of the consummation of the
transactions contemplated by the Purchase Agreement and the mutual agreements
and covenants herein contained, the parties hereto agree as follows:
1. THE GROUP'S NON-COMPETITION COVENANTS. The Group agrees that, for
the period commencing on the date of the Closing and ending five (5) years
following the date of the Closing (the "Restricted Period"), the Group will not,
within the Restricted Area (as hereinafter defined), (a) design, implement or
operate a system or service, for itself or (b) operate a system for a third
party, in the case of (a) and (b), that matches or fills equity orders for
Securities (hereinafter defined) priced at the Volume Weighted Average Price
("VWAP") or (c) design, develop, create or issue any derivative instrument whose
specifications or pricing is derived from the VWAP of an underlying equity
security or index of securities (the "Restricted Business"). "Securities" means
all equity securities and equity derivatives listed on a securities exchange or
eligible for quotation on a securities quotation system in the United States or
Canada, including American Depository Receipts, American Depository Shares and
similar instruments.
2. RESTRICTED AREA. The Group acknowledges that the Company will engage
in the Restricted Business following the date of the Closing, throughout the
world. For this reason, the Group acknowledges that the reasonable area covered
by the covenants set forth in Section 1 shall be the world (the "Restricted
Area").
3. REMEDIES. The Group acknowledges that the remedy at law of monetary
damages for any breach or threatened breach of the covenants of the Group
contained in Section 1 hereof may be inadequate or impossible to ascertain, and
that any breach or threatened breach by any member of the Group would cause
immediate and irreparable damage to the Company and its respective affiliates.
Therefore, the Group agrees that in the event of any breach or threatened breach
by any member of the Group of any of its covenants herein, in addition to any
and all legal and equitable remedies available to the Company, its affiliates
and its respective successors and permitted assigns for such breach or
threatened breach, including a recovery of damages, such party shall be entitled
to seek preliminary or permanent injunctive relief.
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 Section 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. MISCELLANEOUS.
(a) 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
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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 Innovations Inc.:
c/o OptiMark Holdings, Inc.
00 Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) If to OptiMark, Inc.:
00 Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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.
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(b) 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.
(c) 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.
(d) 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.
(e) AMENDMENT. This Agreement may be amended, modified or
supplemented only by written agreement executed by the Company, or its
successors or permitted assigns, and the Group.
(f) 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.
(g) 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.
(h) 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.
(i) BANKRUPTCY, ETC. This Agreement shall become null, void, and
unenforceable in the event that (1) the 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 debts,
individually or in the aggregate, that are equal to or greater than $250,000 as
they mature,
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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 INNOVATIONS INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
OPTIMARK, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: CEO
OPTIMARK HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: CEO
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