EXHIBIT 10.33
AGREEMENT
AGREEMENT (the "Agreement") dated as of June 29, 1999, between The Ashton
Technology Group, Inc., ("Ashton"), Universal Trading Technologies, Inc.
("UTTC"), and their subsidiaries and affiliates, (collectively, the "Company"),
on one hand, and Xxxxxx Xxxxxx (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 March 24, 1999 and that effective the date hereof he shall
be deemed to have resigned from all positions with the Company.
Section 2. Other Benefits.
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Health Insurance. The Company will pay for the cost to
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continue health insurance for the Executive and his family until June 30, 1999.
Section 3. UTTC Stock. On the date hereof, UTTC will deliver to the
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Executive a certificate representing 416,632 shares of common stock of UTTC.
Such shares shall be subject to the rights and obligations contained in Sections
2.3, 3.1, 3.2, 3.3, 3.4, 3.5, and 3.6 (with the exception that the reference to
Rosensaft shall be construed as a reference to the Executive) of the agreement
between the Company and Xxxxx Xxxxxxxxx dated March 19, 1999, a copy of which is
attached hereto as Exhibit A.
Section 4. (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 B (the "Stock Option Agreement"), to
provide that the grant to Executive shall be for 500,000 shares of Ashton's
common stock which option shall fully vest on the date this Agreement is
executed, shall be exercisable until July 15, 2003 and is otherwise subject to
the terms and subject to the conditions contained in such stock option
other than Sections 3.2(a) and (c) 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. 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 Option Shares with respect to the
stock option or the Option Shares, except as may be provided in Sections 2.4 and
2.5 of the Stock Option Agreement, the Certificate of Incorporation or Bylaws of
Ashton or applicable law.
(b) Registration of Shares Underlying Options.
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(i) In the event that Ashton registers some or all of the
shares of common stock underlying options granted to other executives
of the Company pursuant to stock option grants made on July 15, 1998
("Option Shares"), Ashton shall include on such registration statement
or registration statements, as the case may be, the amount of Options
Shares owned by Executive which is equal to the product of 500,000 and
a fraction, the numerator of which is the number of shares common
stock underlying options being registered by holders of Option Shares
other than Executive and the denominator of which is 4,460,000. If the
holders of a majority of the Option Shares being registered agree to
sell or to refrain from selling their shares in a particular manner,
then Executive shall agree to the same manner of sale of the Option
Shares owned by him. If such registration statement provides for an
underwritten offering, the Option Shares owned by Executive shall be
subject to any cutbacks or hold backs and indemnification and
contribution provisions and such other matters as requested by the
managing underwriter or underwriters. Neither of the foregoing
provisions contained in the immediately preceding two sentences are
intended to disadvantage Executive as compared to the other holders of
Option Shares with respect to the stock option or the Option Shares.
(ii) If the Option Shares owned by Executive are not
eligible for registration on the registration form on which such
Option Shares are registered, Ashton shall prepare and file with the
Securities and Exchange Commission (the "SEC") a registration
statement on a form which allows for the registration of Executive's
Option Shares. In such event, Executive shall pay all reasonable
costs, in an amount not to exceed $10,000, in connection with the
registration of such Option Shares, including, but not limited to,
filing fees, legal and accounting fees and expenses, expenses of the
transfer agent and the like.
Section 5. Ashton Stock. Following the nineteenth day of the date hereof,
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and upon receipt by Ashton of confirmation by Executive that he has owned
(assuming full payment of purchase price) the shares of Ashton stock referred to
below for in excess of one year, Ashton shall instruct its transfer agent to
remove the restrictive legend contained on the certificate or certificates
representing an aggregate of 750,000 shares of common stock and 5,062.5 shares
of Series A Convertible PIK Preferred Stock of Ashton (or, in the event such
shares of Series A Convertible PIK Preferred Stock have been converted, up to
50,000 shares of common stock underlying such Series A Convertible PIK Preferred
Stock), less any shares which may have been sold subsequent to March 24, 1999.
Section 6. 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 7. 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 C and (ii) the Executive's continued compliance with the
provisions of Sections 8, 9 and 10 hereof.
Section 8. 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, 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, however, that
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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 8, 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 8, including, but not limited to, temporary
restraining orders and temporary injunctions to restrain any violation or
threatened violation of this Section 8 by the Executive.
Section 9. 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 10. 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.
Section 11. Release by the Company. The Company agrees to execute and
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deliver to the Executive within ten days of the date hereof, a release of claims
and covenant not to xxx in the form of Exhibit D.
Section 12. 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: Ashton Technology Group, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Secretary
If to the Executive: Xxxxxx Xxxxxx
0 Xxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
with a copy to:
Xxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx, Veisz & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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. Advice of Counsel. The Executive acknowledges that he has consulted
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with his own legal counsel with respect to the subject matter and the terms of
this Agreement and that this Agreement is the product of negotiations between
the Company and its counsel on the one hand and the Executive and his counsel
on the other.
H. 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/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
