EXHIBIT 10.34
AGREEMENT
AGREEMENT (the "Agreement") dated as of September 22, 1999, between The
Ashton Technology Group, Inc. ("Ashton"), and its subsidiaries and affiliates
(collectively, the "Company"), on one hand, and Xxxx X. Xxxxx (the "Executive").
WHEREAS, the Executive has been employed as an officer and has served as a
director of the Company.
WHEREAS, the Company and the Executive mutually desire to have the
employment and service as a director of the Executive by the Company terminate;
and
WHEREAS, the parties wish to settle their mutual rights and obligations
arising from, or related to, the termination of the Executive's employment and
service as a director with the Company.
NOW THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive
agree as follows:
Section 1. Termination and Resignation from Offices. The Executive and
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the Company hereby confirm that Executive's employment with the Company
terminated effective July 15, 1999, that his service as a director of the
Company terminated effective September 1, 1999 and that effective the date
hereof he shall be deemed to occupy no position with the Company.
Section 2. Other Benefits. After the date hereof, Executive shall be
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entitled to only the benefits set forth in this Agreement.
Section 3. (a) Ashton Options. On the date hereof, Ashton and Executive
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agree to amend the stock option agreement entered into on July 15, 1998, a copy
of which is attached hereto as Exhibit A (the "Stock Option Agreement"), to
provide that the option grant to Executive shall be for 438,750 shares of
Ashton's common stock which option shall fully vest on the date this Agreement
is executed, shall be exercisable until September 30, 1999 and is otherwise
subject to the terms and subject to the conditions contained in such stock
option other than Sections 3.1, 3.2(a) and (b) and 4.3(b) of the Stock Option
Agreement. Notwithstanding the preceding sentence, in the event of an exercise
by Executive of some or all of his options, the portion of the options exercised
shall be deemed exercised upon full payment for such shares, and the shares
shall be issued by Ashton as of such date of such full payment. Full payment of
the Exercise Price of any stock option described in this Section shall be made
in cash or certified bank check for the shares with respect to which such option
or portion thereof is exercised or (A)(i) by surrender or delivery to the
Company of shares Ashton common stock equal to or less than the Exercise Price,
or (ii) through the written election of Executive to have shares of Ashton
common stock underlying such stock option, or the proceeds
from the sale of any Ashton common stock underlying such stock option, withheld
by the Company from the shares or proceeds otherwise to be received by
Executive, as the case may be, with such withheld shares or proceeds having an
aggregate fair market value on the date of the exercise equal to or less than
the Exercise Price (in either such case, a "cashless exercise"), plus (B) cash
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or certified bank check for any difference. Notwithstanding anything to the
contrary herein or in the Stock Option Agreement, the authority conferred upon
the Compensation Committee of the Board of Directors of Ashton in Section 5.1 of
the Stock Option Agreement to interpret such agreement shall not be construed to
permit the Compensation Committee to reduce the number of options granted to
Executive, or otherwise take any action which would disadvantage Executive as
compared to the other holders of stock options granted to executives of the
Company on July 15, 1998 with respect to the Executive's stock option, except as
may be provided in Sections 2.4 and 2.5 of the Stock Option Agreement, the
Certificate of Incorporation or Amended and Restated Bylaws of Ashton or
applicable law.
Section 5. No further Obligations of the Parties. Except as provided
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herein, neither party shall have any further obligations to the other.
Section 6. Conditions of Benefits. The Company shall provide to the
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Executive the rights, payments and benefits set forth herein as consideration
for (i) the Executive's execution, non-revocation and honoring of a release of
claims and covenant not to xxx in favor of the Company in the form attached
hereto as Exhibit B and (ii) the Executive's continued compliance with the
provisions of Sections 7, 8 and 9 hereof.
Section 7. Non-Disclosure; Noncompetition; Nonsolicitation. (a) The
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Executive agrees that for a period of one year from the date hereof, the
Executive will not (i) directly or indirectly, own, manage, operate, control or
participate in the ownership, management or control of, or be connected as an
officer, employee, partner, director, or otherwise with, or have any financial
interest in, or aid or assist anyone else in the conduct of, any entity or
business which is engaged in the development and commercialization of on-line
transaction systems for the securities markets, or (ii) either personally or by
his agent or by letters, circulars or advertisements, and whether for himself or
on behalf of any other person, company, firm or other entity canvass or solicit,
or enter into or effect (or cause or authorize to be solicited, entered into or
effected), directly or indirectly, for or on behalf of himself or any other
person, any business relating to the development and commercialization of on-
line transaction systems for the securities markets or orders for such business
from any person, company, firm or other entity who is, or has at any time within
two years prior to the date of such action been, a customer or supplier of the
Company or any of its subsidiaries, affiliates or divisions. Notwithstanding
the foregoing, the Executive's ownership of securities of a public company
engaged in competition with the Company not in excess of 5% of any class of such
securities shall not be considered a breach of the covenants set forth in this
Section.
(b) The Executive hereby agrees that he shall not, at any time
following the date hereof, disclose or use for any purpose confidential
information or proprietary data of the Company (or any of its subsidiaries),
except as required by applicable law or legal process; provided,
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however, that confidential information shall not include any information known
generally to the public or ascertainable from public or published sources (other
than as a result of unauthorized disclosure by the Executive) or any information
of a type not otherwise considered confidential by persons engaged in the same
business or a business similar to that conducted by the Company.
(c) The Executive acknowledges and agrees that the Company
will suffer irreparable injury in the event of any material breach of this
Section 7, that damages resulting from such injury will be incapable of being
precisely measured, and that the Company will not have an adequate remedy at law
to redress the harm which such violation shall cause. Therefore, the Executive
agrees that the Company shall have the rights and remedies of specific
performance and injunctive relief, in addition to any other rights or remedies
that may be available at law or in equity or under this Agreement, in respect of
any failure, or threatened failure, on the part of the Executive to comply with
the provisions of this Section 7, including, but not limited to, temporary
restraining orders and temporary injunctions to restrain any violation or
threatened violation of this Section 7 by the Executive.
Section 8. Return of Company Property. The Executive acknowledges that
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all records, files, documents (including marketing and presentation materials)
and equipment, all information relating to employees, Company suppliers, and any
other materials that in any way relate to the business of the Company which the
Executive has accumulated during his employment by the Company, other than
information and documents publicly known or disseminated, are the property of
the Company, including all duplicates and copies of any of the foregoing, and
that all such property shall be returned to the sole possession of the Company
at the date of execution hereof. In addition, the Executive shall deliver to
Company on the date hereof a list of all marketing and other contacts made by
the Executive on behalf of the Company.
Section 9. Business Goodwill. At all times following date hereof, unless
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required by process of law or subpoena, the Executive shall make no comments or
take any other actions, direct or indirect, that will reflect adversely on the
Company or its officers, directors, employees or agents in such capacity or
adversely affect their business reputation or goodwill. At all times following
the date hereof, the Board of Directors, each director and each officer of the
Company shall make no comments or take any other actions, direct or indirect,
that will reflect adversely on the Executive or adversely affect his business
reputation or goodwill. The Executive hereby agrees that for a period of two
years following the date hereof, he shall reasonably cooperate with the Company
in providing information that the Company reasonably requests and in taking such
other action as the Company may reasonably request, testifying in connection
with any legal proceeding or matter relating to the Company, other than
proceedings relating to the enforcement of this Agreement or other proceedings
in which the Executive is a named party whose interests are adverse to those of
the Company. In the event that Executive is requested by the Company to perform
any of the obligations set forth in the previous sentence, the Company shall pay
to Executive his reasonable out-of-pocket expenses.
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Section 10. Releases. Each of the Company and the Executive agree to
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execute and deliver to the other, a release of claims and covenant not to xxx in
the forms of Exhibit B and C.
Section 11. Miscellaneous.
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A. Complete Agreement. This Agreement constitutes the entire agreement
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between the parties and cancels and supersedes all other agreements and
understandings, whether written or oral, between the parties which may have
related to the subject matter contained in this Agreement.
B. Modification; Agreement: Waiver. No modification, amendment or waiver
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of any provisions of this Agreement shall be effective unless approved in
writing by both parties. The failure at any time to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of either party thereafter to enforce
each and every provision hereof in accordance with its terms.
C. Governing Law; Jurisdiction. This Agreement and performance under it,
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and all proceedings that may ensue from its breach, shall be construed in
accordance with and under the laws of the Commonwealth of Pennsylvania, and the
parties submit to the jurisdiction of the courts of the Commonwealth of
Pennsylvania located in Philadelphia for purposes of any actions or proceedings
that may be required to enforce this Agreement.
D. Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
E. Assignment. The rights and obligations of the parties under this
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Agreement shall be binding upon and inure to the benefit of their respective
successors, assigns, executors, administrators and heirs.
F. Notices. All notices and other communications under this Agreement
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shall be in writing and shall be given in person or by telegraph, telefax or
first class mail, certified or registered with return receipt requested, and
shall be deemed to have been duly given when delivered personally or three days
after mailing or one day after transmission of a telegram or telefax, as the
case may be, to the respective persons named below:
If to the Company: Xxxxxx X. Xxxxx
President
The Ashton Technology Group, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
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If to the Executive: Xxxx X. Xxxxx
00 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000-0000
The parties may give notice of change of address in which event the notices
required by this Section shall be furnished in accordance with the notice of
change.
G. Indemnification. Executive shall be entitled to the indemnification
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for claims for any act or omission in his capacity as an officer and director of
Ashton in accordance with the Certificate of Incorporation and By-laws of
Ashton.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
ASHTON TECHNOLOGY GROUP, INC.
By /s/ Xxxxxx X. Xxxxx
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Its President
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EXECUTIVE:
/s/ Xxxx X. Bolhm
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Xxxx X. Xxxxx
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