EXHIBIT 10.38
AMENDED STOCKHOLDERS AGREEMENT
of
XXXXX ADVISORS, INC.
(A Delaware Corporation)
Dated as of December 30, 1999
AMENDED STOCKHOLDERS AGREEMENT, dated as of December 30, 1999, by and
among XXXXX ADVISORS, INC., a Delaware corporation (the "Company"), THE ASHTON
TECHNOLOGY GROUP, INC., a Delaware corporation ("Ashton"), XXXXX XXXXX, an
individual ("Xxxxx"), XXXX X. XXXX, an individual ("Xxxx"), XXXXXXXXX XXXXX, an
individual ("Xxxxx"), and together with Xxxxx and Xxxx, (the "Xxxxx
Principals"), XXXXXXX X. XXXXXXXXXXX, an individual ("Rittereiser"), K. XXXX X.
XXXXXXX, an individual ("Gothner"), and XXXXXX X. XXXXX, an individual
("Bacci").
RECITALS:
WHEREAS, the parties previously entered into a Stockholders' Agreement
effective as of January 22, 1999 (the "Original Agreement").
WHEREAS, as of the date of the Original Agreement, the Company entered into
an Exchange Agreement (the "Exchange Agreement") with the other parties.
WHEREAS, in connection with the Company's issuance of shares of its Series
C Convertible Preferred Stock, par value $.01 per share (the "Series C Stock"),
the parties desire to amend the terms and provisions of the Original Agreement
(the Original Agreement, as so amended hereby and as further amended from time
to time in accordance with its terms being referred to as this "Agreement").
WHEREAS, the Company is authorized by its Restated Certificate of
Incorporation (the "Certificate of Incorporation") to issue (i) 50,000,000
shares of its Common Stock, par value $.0001 per share (the "Common Stock") and
(ii) 10,000,000 shares of preferred stock, par value $.01 per share (the
"Preferred Stock"), of which (a) 10,000 shares are designated as Series A
Convertible Preferred Stock (the "Series A Stock"), of which 4,905 shares are
issued and outstanding, (b) 1,300,000 shares are designated as Redeemable Series
B Convertible Preferred Stock ("Series B Stock"), of which 1,100,000 shares are
issued and outstanding and (c) 6,000,000 shares are designated as Series C
Stock, of which no shares were issued and outstanding as of November 2, 1999.
WHEREAS, the parties wish to (i) provide for the voting of the Shares
(as defined herein), certain rights and obligations relating to the transfer of
Shares and certain other arrangements concerning the governance of the Company
and related business matters, and (ii) provide registration rights with respect
to certain shares of Common Stock, all as set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual agreements contained herein, the parties agree as follows:
2
1. Construction.
1.1 Definitions. As used herein the following terms shall have the
following meanings:
Affiliate: with respect to a specified Person, an officer or director
of such Person, or a Person who, directly or indirectly through one or more
intermediaries, owns, Controls, is owned or Controlled by, or is under common
ownership or Control with, the Person specified.
Agreement: the meaning set forth in the Recitals.
Appraiser: the meaning set forth in Section 6.3.
Ashton Executives: together, Rittereiser, Gothner, Bacci and any other
person who, after the date of the Original Agreement, purchases shares of Common
Stock pursuant to Section 6.3 of the Exchange Agreement.
Ashton Executive Shares: all shares of Common Stock owned now or in
the future by the Ashton Executives and their Permitted Transferees, and any
Common Stock issued with respect to such Common Stock by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization.
Ashton Shares: all shares of Common Stock owned now or in the future
by Ashton, the Ashton Executives and their Permitted Transferees, the shares of
Common Stock issued upon conversion of the Series A Stock and any Common Stock
issued with respect to such Common Stock by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization.
3
ATG Shares: all shares of Common Stock owned now or in the future by
Ashton and its Permitted Transferees, the shares of Common Stock issued upon
conversion of the Series A Stock and any Common Stock issued with respect to
such Common Stock by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization.
Board: the Board of Directors of the Company.
Certificate of Incorporation: the meaning set forth in the Recitals.
Common Stock: the meaning set forth in the Recitals.
Company: the meaning set forth in the introductory paragraph.
Control: (including, with correlative meaning, the terms "Controlled
by" and "under common Control with"), as used with respect to any Person, means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
Disability: an individual's inability, due to physical or mental
incapacity or impairment, to fully perform the tasks usually encountered in such
individual's employment with the Company for at least 90 consecutive days, or
for a period shorter than 90 consecutive days as determined by the Board after
consultation with a medical expert.
for cause: with respect to any Stockholder who has an employment
agreement with the Company, as set forth in such employment agreement;
otherwise, any of the following: (i) the
4
willful failure or refusal, after notice thereof, to perform specific directives
of the Board, Chief Executive Officer or President of the Company, when such
directives are consistent with the scope and nature of the employee's duties and
responsibilities; (ii) willful dishonesty of the employee affecting the Company;
(iii) chronic alcoholism or drug abuse; (iv) the employee's conviction for
committing a felony or any crime involving moral turpitude or fraud; (iv)
engagement in negligence or conduct injurious to the Company or its affiliates;
or (v) substantial and repeated failure of the employee to adequately perform
the employee's duties and responsibilities to the Company, continuing after
notice thereof.
Xxxxx Shares: all shares of Common Stock owned now or in the future by
the Xxxxx Principals and their Permitted Transferees, the shares of Common Stock
issued upon exercise of the Xxxxx Principals Options (as defined in the Exchange
Agreement) and any Common Stock issued with respect to such Common Stock by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization.
IPO: an initial underwritten public offering pursuant to an effective
registration statement under the Securities Act covering the offer and sale of
Common Stock to the public.
Nominee: the meaning set forth in Section 2.1.
Note: a subordinated promissory note of the Company with the
following terms: (i) a maturity date four years after the Note Issue Date (but
which may be prepaid at any time without penalty); (ii) principal and interest
payments to commence on the first anniversary of the Note Issue Date; (iii)
principal and interest payable in annual installments comprising 25% of the
original principal amount of the Note plus interest accrued on
5
the unpaid principal amount of the Note to the date of such payment; (iv)
interest to accrue on all unpaid principal from the date of the Note at a rate
equal to the lowest rate that would not cause the recognition of imputed or
deemed interest pursuant to the Internal Revenue Code of 1986, as amended, and
the rules and regulations thereunder; and (v) payment subordinated to the
payment of all other indebtedness of the Company except Notes (all of which
shall rank pari passu).
Note Issue Date: the date of issuance by the Company of any Note.
Permitted Transferee: the issue, spouse or family trust of a
Stockholder to whom Shares are transferred by such Stockholder (i) by will or
the laws of descent or distribution or (ii) by gift without consideration of any
kind.
Person: an individual, firm, corporation, trust, joint venture,
partnership, limited liability company, association, unincorporated organization
or other entity or any governmental body or subdivision, agency, commission or
authority thereof.
Preferred Stock: the meaning set forth in the Recitals.
Securities Act: the Securities Act of 1933, as amended.
Series A Stock: the meaning set forth in the Recitals.
Shares: outstanding shares of Common Stock and Series A Stock,
including, without limitation, any shares of Common Stock or other securities
resulting from the exercise of stock options, a conversion, split-up,
combination, recapitalization, dividend or exchange.
6
Stockholder: Each Person (other than the Company) who shall be a
party to this Agreement whether in connection with the execution and delivery
hereof as of the date hereof, as a purchaser of any shares of Common Stock
pursuant to Section 6.3 of the Exchange Agreement, as a transferee of Shares who
becomes bound by the provisions hereof pursuant to Section 6 of this Agreement
or otherwise, so long as such Person shall beneficially own any Shares.
Subsidiary: as to any Person, a corporation, limited liability
company or other entity of which shares or other rights or securities having
voting power to elect a majority of the board of directors or other governing
body are at the time owned, directly or indirectly, through one or more
intermediaries, by such Person.
Termination Date: the earlier to occur of (i) the date that is two
years following the date hereof and (ii) the consummation of the IPO.
Transfer: the meaning set forth in Section 5.1.
1.2 Interpretation. When the context in which words are used in
this Agreement indicates that such is the intent, singular words include the
plural and vice versa and masculine words include the feminine and the neuter
and vice versa. References herein to Sections are to the appropriate sections
of this Agreement unless otherwise expressly so stated. The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section or other subdivision.
1.3 Headings. The headings or captions included in this Agreement
are inserted for convenience of reference only and
7
shall not be construed to define or limit the scope, extent or intent of this
Agreement or any of its provisions.
2. [INTENTIONALLY OMITTED].
3. Voting of Ashton Executives Shares. From the date of the Original
Agreement until the Termination Date, each Ashton Executive shall cause the
shares of Common Stock owned by such Ashton Executive to be voted at any meeting
of the stockholders of the Company or in any consent in lieu of such a meeting
for and/or against any proposal in the same proportion as all other Shares are
voted at such meeting or consent in lieu of meeting, as the case may be.
4. Forfeiture of Shares by Ashton Executives. Notwithstanding the
provisions of Section 6 of this Agreement, if any Ashton Executive is no longer
employed (as a direct employee or as a consultant) by Ashton or any of its
Subsidiaries (including the Company) on or after the date hereof and prior to
the Termination Date, then such Ashton Executive shall forfeit his Shares to the
Company and the Company shall have the right and obligation to purchase from
such Ashton Executive (including any Permitted Transferees of such Ashton
Executive) or his or her estate, and such Ashton Executive (including any
Permitted Transferees of such Ashton Executive) or his or her estate shall have
the right and obligation to sell to the Company, all of the Shares owned by such
Ashton Executive (and such Ashton Executive's Permitted Transferees) promptly
after such event at a purchase price equal to the purchase price paid by such
Ashton Executive for such Shares.
5. [INTENTIONALLY OMMITTED].
6. Mandatory Purchase on Death, Disability, or Termination of
Employment.
8
6.1 Death or Disability. Subject to the provisions of Section 4 of
this Agreement, in the event of the death or Disability of a Stockholder prior
to the IPO, the Company shall have the right and obligation to purchase from
such Stockholder (including any Permitted Transferees of such Stockholder) or
his or her estate, and such Stockholder (including any Permitted Transferees of
such Stockholder) or his or her estate shall have the right and obligation to
sell to the Company, all of the Shares held by such Stockholder (and such
Stockholder's Permitted Transferees) at the time of such event at a purchase
price equal to the Share Value (as defined in Section 6.3) of such Shares. The
purchase price for the Shares to be purchased shall be paid, at the option of
the Company in its sole discretion, in cash or by delivery of cash (equal to at
least 20% of the purchase price) and a Note in principal amount equal to the
balance of such purchase price, against receipt by the Company of all duly
executed instruments and documents necessary to transfer all right, title and
interest of the sellers in the Shares to the Company, free and clear of all
liens, claims and encumbrances. Except as provided in the next sentence, the
closing of such purchase and sale shall take place within 10 business days of
the event giving rise to such purchase and sale, except that in the event of an
appraisal as contemplated by the first sentence of Section 6.3, such closing
shall take place within 10 business days after the issuance of the report of the
Appraiser. Notwithstanding the previous sentence, if the event giving rise to
the purchase and sale is the death of the Stockholder, then the closing of such
purchase and sale shall take place as promptly as practicable (including, if
possible, within the periods specified in the previous sentence), but in no
event more than five business days after the appointment of the legal
representative of the deceased Stockholder.
9
6.2 Termination of Employment. Subject to the provisions of Section
4 of this Agreement, in the event that, prior to the IPO, any Stockholder's
employment with Ashton and/or its Subsidiaries (including the Company) is (i)
terminated by Ashton and/or its Subsidiaries for cause, or (ii) voluntarily
terminated by a Stockholder other than as a result of such Stockholder's death
or Disability, then the Company shall have the right and obligation to purchase
from the Stockholder (including any Permitted Transferees of such Stockholder),
and such Stockholder (including any Permitted Transferees of such Stockholder)
shall have the right and obligation to sell to the Company, all of the Shares
held by such Stockholder (and such Stockholder's Permitted Transferees) promptly
after such event. The purchase price for such Shares shall be determined as
follows: (i) if such Stockholder voluntarily terminates his employment with the
Company other than because of a Disability, then the purchase price shall be the
Share Value for such Shares, provided, that, in determining the Share Value, the
Appraiser (as defined in Section 6.3) shall take into account the diminution in
value of the Company resulting from the termination of employment of such
Stockholder; or (ii) if the employment of such Stockholder is terminated by the
Company for cause, then the purchase price shall be for an amount equal to the
lesser of (X) the Share Value for such Shares or (Y) the purchase price paid by
such Stockholder for such Shares. The purchase price for the Shares to be so
purchased shall be paid, at the option of the Company in its sole discretion, in
cash or by delivery at the closing of cash (equal to at least 20% of the
purchase price) and a Note in principal amount equal to the balance of such
purchase price, against receipt by the Company of all duly executed instruments
and documents necessary to transfer all right, title and interest of the sellers
in the Shares to the Company, free and clear of all liens, claims and
encumbrances. The closing of such purchase and sale shall take place within 10
business days of the event giving rise to such purchase and sale, except that
10
in the event of an appraisal as contemplated by the first sentence of Section
6.3, such closing shall take place within 10 business days after the issuance of
the report of the Appraiser.
6.3 Determination of Share Value. Subject to the provisions set
forth below, for purposes of this Agreement, "Share Value" shall be determined
by an appraisal of the Shares made by an independent accountant or investment
banking professional selected by the Board who shall be knowledgeable in valuing
the capital stock of companies engaged in businesses similar to the business
engaged in by the Company (the "Appraiser"); provided, however, that if such an
appraisal shall have been issued at any time during the preceding 12 months,
then, unless the Board elects to make a new appraisal of the Shares, the Share
Value shall be as set forth in such appraisal and no new appraisal shall be
required. Notwithstanding the preceding sentences, the Board may order an
appraisal of the Shares to determine Share Value at any time if the Board
believes that there has been, since the date of the last determination of Share
Value, a material adverse change in the business, operations, assets or
liabilities, employee relationships, customer relationships, results of
operations, prospects or the condition (financial or otherwise) of the Company.
The fees and disbursements of the Appraiser shall be paid by the Company. Within
30 days after being retained by the Company, the Appraiser shall issue a report
setting forth the value of the Shares and a reasonably detailed explanation of
the methods used to determine such value.
6.4 Voting of Shares. Notwithstanding anything to the contrary
contained in this Agreement, in the event of a Stockholder's death, Disability
or termination of employment with the Company (for any reason), such Stockholder
and such Stockholder's Permitted Transferees, if any, shall be required to vote
all Shares held by such Stockholder and such Permitted
11
Transferees (including, without limitation, abstaining from voting) as directed
by the Board.
7. Registration Rights.
7.1 Registration of the Xxxxx Shares in the IPO. (a) Holders of
the Xxxxx Shares have the right to request that such Xxxxx Shares be registered
in the registration statement (other than a registration statement on Form X-0,
X-0 or similar form) (the "IPO Registration Statement") that the Company files
with the Securities and Exchange Commission (the "Commission") for the purpose
of effecting the IPO; provided, however, that the maximum number of Xxxxx Shares
to be included in the IPO Registration Statement shall equal 10% of the total
number of shares of Common Stock offered in the IPO (exclusive of any
overallotment). The inclusion of such Xxxxx Shares in the IPO Registration
Statement is subject to any restrictions, cutbacks, lockups or other conditions
imposed by the managing underwriter of the Company's IPO (the "Underwriter")
which the Underwriter determines in its sole discretion are necessary to effect
the IPO.
(b) If the Underwriter informs the Company in writing that in the
Underwriter's opinion the total number of shares of the Common Stock which the
Company, the holders of the Xxxxx Shares and any other holders of shares of the
Common Stock entitled to participate in the IPO Registration Statement request
to include in the IPO Registration Statement is an amount which would adversely
affect the success of the IPO including, without limitation, the price at which
the Common Stock can be offered, then the Company will be required to include in
the IPO Registration Statement only the amount of shares of Common Stock which
it is so advised by the Underwriter. In such event, the shares shall be included
on the IPO Registration Statement pursuant to the following priority: first, the
shares of the
12
Common Stock to be sold for the account of the Company (including any shares to
be sold pursuant to any overallotment); and second, pro rata among the Xxxxx
Shares and shares of Common Stock to be sold for the account of such holders who
in the future may be granted incidental registration rights in the IPO
Registration Statement. In the event that the Underwriter determines that some,
but less than all, of the Xxxxx Shares requested for inclusion can be included
in the IPO Registration Statement, then a pro rata amount of the Xxxxx Shares
requested by each holder shall be included in the IPO Registration Statement
(subject to the rights of the Company to include all of its shares in the IPO
Registration Statement as provided above). The Underwriter may determine in its
sole discretion that none of the Xxxxx Shares should be included in the IPO
Registration Statement.
(c) Other than pursuant to Section 7.3, the Xxxxx Principals shall not
have any additional registration rights with respect to the Xxxxx Shares if all
or any portion of the Xxxxx Shares are cutback or not otherwise permitted to be
included in the IPO Registration Statement in accordance with this Agreement.
(d) If requested by the Underwriter, each holder of the Xxxxx Shares
participating in the IPO Registration Statement will enter into an underwriting
agreement with the Underwriter and the Company. Each holder of the Xxxxx Shares
will be required to make such representations and warranties to, and agreements
with, the Company and the Underwriter as are customarily contained in an
underwriting agreement of this type including, without limitation,
representations, warranties and agreements, including indemnities, regarding the
holders of the Xxxxx Shares, the Xxxxx Shares and the holders' of the Xxxxx
Shares intended method of distribution and any other representations required by
law.
13
(e) Each holder of the Xxxxx Shares hereby agrees that it/he will not
sell or otherwise dispose of any of the Xxxxx Shares during the period beginning
seven days prior to the effective date of the IPO Registration Statement and
ending 180 days after the effective date of the IPO Registration Statement;
provided, however, this Section 7.1(e) shall not apply to any of the Xxxxx
Shares which are included in the IPO Registration Statement.
(f) The Company shall notify each holder of the Xxxxx Shares appearing
on the Company's records as a record holder of the Xxxxx Shares as of the date
10 business days prior to the filing of the preliminary IPO Registration
Statement with the Commission of their right to request registration of their
Xxxxx Shares in the IPO Registration Statement pursuant to the terms and
conditions of this Agreement within 10 business days prior to the filing of such
preliminary IPO Registration Statement. In order to exercise its registration
rights under this Section 7.1, holders of the Xxxxx Shares must notify the
Company in writing of its request to include its Xxxxx Shares in the IPO
Registration Statement within 10 business days after the Company has delivered
such notice.
7.2 Registration Rights of the Ashton Shares. (a) Commencing 180
days following the consummation of the IPO, holders of the Ashton Shares shall
have the right to require the Company (subject to (x) the shares of the Common
Stock to be sold for the account of such holders who in the future may be
granted demand registration rights expressly senior to those of the holders of
the Ashton Shares and (y) the conditions set forth in Section 7.4) on four
separate occasions, to exercise its reasonable best efforts to (i) cause a
registration statement (each, a "Demand Registration Statement") to be declared
effective for the public sale under the Securities Act of the
14
Ashton Shares, and (ii) maintain the effectiveness of each such Demand
Registration Statement for at least 180 days.
(b) The Company shall include in each Demand Registration Statement at
least 25% of the total number of Ashton Shares outstanding as of the date of
this Agreement; provided, however, if market conditions allow, the Board may by
written resolution permit more than 25% of the total number of such shares to be
included in a Demand Registration Statement.
(c) Unless Ashton and each Ashton Executive otherwise unanimously
agree in writing:
(i) the first Demand Registration Statement shall contain (A) at least
50% of the Ashton Executive Shares, if so requested, and (B) a number of ATG
Shares which, when added to the Ashton Executive Shares equals at least 25% of
the total number of Ashton Shares outstanding as of the date of this Agreement;
(ii) the second Demand Registration Statement shall contain (A) the
remaining Ashton Executive Shares, if so requested, and (B) a number of ATG
Shares which, when added to the remaining Ashton Executive Shares, equals at
least 25% of the total number of Ashton Shares outstanding as of the date of
this Agreement;
(iii) the third Demand Registration Statement shall contain a number
of ATG Shares equal to at least 25% of the total number of Ashton Shares
outstanding as of the date of this Agreement; and
(iv) the fourth Demand Registration Statement shall contain all
remaining ATG Shares.
15
Unless otherwise unanimously agreed to in writing by each Ashton Executive, the
number of Ashton Executive Shares to be included in a Demand Registration
Statement for the account of each Ashton Executive shall be proportionate to the
total number of Ashton Executive Shares outstanding.
(d) The first demand registration right granted hereunder may be
exercised no earlier than 180 days after the consummation of the IPO, and each
successive demand registration right may be exercised no earlier than one year
after the effective date of the preceding Demand Registration Statement.
(e) Ashton and the Ashton Executives shall be entitled to use an
underwriter to effect the offering of the Ashton Shares pursuant to the Demand
Registration Statements. Ashton shall select the underwriters, if any, to use
in connection therewith, subject to the approval of the Board, which shall not
be unreasonably withheld. Ashton shall be entitled to select the form of the
Demand Registration Statement for the Company to use in connection with the
offering of the Ashton Shares.
(f) Xxxxx, Xxxx and Xxxxx agree not to sell any shares of Common Stock
for their respective accounts for a period beginning seven days prior to the
effective date of each Demand Registration Statement and ending on the earlier
of (i) 180 days after each such effective date, or (ii) the date that all shares
included in the Demand Registration Statement are sold.
(g) In order for the registration rights set forth in this Section 7.2
to be exercised, a written request with the signatures of holders of at least
67% of the Ashton Shares then outstanding must be delivered to the Company.
Upon the Company's receipt of such written request, which must include the
intended method of distribution of the Ashton Shares to be sold pursuant to such
registration statement, the Company within 20 business
16
days shall give notice of the exercise of this registration right to each holder
(the "Non-Participating Ashton Holders") of the Ashton Shares (other than those
included in such request) appearing on the Company's records as a record holder
of Ashton Shares as of the date the Company receives such request. In order to
exercise registration rights under this Section 7.2, each Non-Participating
Xxxxxx Xxxxxx must notify the Company in writing of its/his intention to be
included in the registration request within 10 business days after the Company
has delivered such notice.
7.3 Piggyback Registration. If, after one year following the
consummation of the IPO, the Company proposes to register Common Stock under the
Securities Act (otherwise than (i) in connection with the registration of
securities issuable pursuant to an employee stock option, stock purchase or
similar plan, (ii) pursuant to a merger, exchange offer or a transaction of the
type specified in Rule 145(a) under the Securities Act, or (iii) in connection
with the first Demand Registration Statement requested by the holders of the
Ashton Shares pursuant to Section 7.2), the Company shall give each holder of
Ashton Shares and Xxxxx Shares notice of such proposed registration at least 30
days prior to the filing of a registration statement. At the written request of
any such holder within 15 days after the receipt of the notice from the Company,
any such request stating the number of Ashton Shares or Xxxxx Shares that such
holder wishes to sell or distribute publicly under the registration statement
proposed to be filed by the Company, the Company shall use its reasonable best
efforts to register under the Securities Act the sale of such Ashton Shares
and/or Xxxxx Shares (which, in the aggregate, shall not exceed 25% of the shares
being registered), and to cause such registration statement (the "Piggyback
Registration") to become and remain effective for 180 days; provided, however,
that the holders of the Xxxxx Shares shall not have the right to include any
such Xxxxx Shares in the
17
first Demand Registration Statement requested by the holders of the Ashton
Shares pursuant to Section 7.2; and provided, further, that the holders of the
Ashton Shares shall not have the right to include any such Ashton Shares in the
first registration statement filed by the Company following the IPO which does
not involve an underwritten offering of the securities so being registered. The
Company may at any time withdraw or cease proceeding with the Piggyback
Registration if it shall at the same time withdraw or cease proceeding with the
registration of all the securities originally proposed to be registered.
If the Piggyback Registration involves an underwritten offering of the
securities so being registered and the managing underwriters advise the Company
in writing that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in such
offering, then the shares to be included in the registration and underwriting
shall be allocated (i) if the Piggyback Registration is also a Demand
Registration Statement (other than the first Demand Registration Statement)
initiated by the holders of the Ashton Shares pursuant to Section 7.2, first, to
shares of Common Stock to be sold for the account of such holders who in the
future may be granted registration rights expressly senior to those of the
holders of the Ashton Shares hereunder; second, to the minimum number of Ashton
Shares required to be included in such Demand Registration Statement pursuant to
Section 7.2(c), third, to the Company for shares being sold for its own account,
and fourth, in the ratio of one Ashton Share for every Xxxxx Share requested by
the holders thereof to be included in such registration statement, or (ii) if
the Piggyback Registration is not also a Demand Registration Statement, first,
to the Company for shares being sold for its own account, second, to shares of
Common Stock to be sold for the account of such holders who in the future may be
granted registration rights expressly senior to those of the holders of the
Ashton Shares and the Xxxxx Shares
18
hereunder, and third, in the ratio of one Ashton Share for every Xxxxx Share
requested by the holders thereof to be included in such registration statement.
7.4 General Registration Rights Provisions. The following
provisions, unless otherwise stated, shall be applicable to any registration to
be effected pursuant to the rights exercised under Section 7.1, 7.2 or 7.3
hereof.
(a) The holders whose Ashton Shares or Xxxxx Shares are to be included
in any registration statement as provided in Section 7.1 or 7.2 (the "Sellers")
agree to furnish the Company with such information regarding the Sellers and the
distribution of the Ashton Shares or Xxxxx Shares, as the case may be, as the
Company shall from time to time reasonably request in writing and as shall be
required by applicable federal or state law or the Commission in connection
therewith.
(b) Following the effective date of the applicable registration
statement, the Company shall upon the request of any Seller supply a reasonable
number of prospectuses meeting the requirements of the Securities Act as shall
be requested by such Seller to permit such Seller to make a public offering of
the securities of such Seller included therein.
(c) The Company shall use reasonable efforts (i) to qualify the
securities included in an applicable registration statement for sale in such
states as the Sellers shall reasonably designate, provided that no such
qualification shall be required in any jurisdiction where, as a result thereof,
the Company would be subject to service of general process or to taxation as a
foreign corporation doing business in such jurisdiction to which it is not then
subject and (ii) to qualify such offering with the National Association of
Securities Dealers, Inc., if applicable.
19
(d) The Company's obligations under Section 7.2 to exercise reasonable
best efforts to cause a registration statement to be declared effective by the
Commission for the public sale of Ashton Shares under the Securities Act are
limited to the following:
(i) The Company will prepare and file with the Commission the form
of registration statement selected by Ashton pursuant to Section 7.2(e) to
effect such registration and thereafter use reasonable best efforts in good
faith to cause such registration statement to become effective; provided,
however, that the Company may discontinue any registration of securities or
suspend the effectiveness of any registration statement in accordance with
Section 7.4(i); and
(ii) The Company will prepare and file with the Commission such
amendments and supplements to the applicable registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Ashton Shares covered by
such registration statement for 180 days or such earlier time as all of such
Ashton Shares included in such registration statement have been disposed of in
accordance with the intended methods of disposition by the Sellers set forth in
such registration statement; provided, however, that the Company may discontinue
any registration of securities or suspend the effectiveness of any registration
statement in accordance with Section 7.4(i).
(e) The Company shall indemnify and hold harmless each Seller and each
underwriter (if applicable), within the meaning of the Securities Act, who may
purchase from or sell for any Seller any Xxxxx Shares or Ashton Shares, as the
case may be, from and against any and all loss, liability, claim, damage and
expense whatsoever (including, but not limited to, any and all
20
expenses reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever) arising out of
any untrue statement or alleged untrue statement of a material fact contained in
the applicable registration statement or any prospectus included therein
required to be filed or furnished by reason of this Section 7 or any amendment
or supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such loss, liability, claim, damage or expense
is caused by any such untrue statement or alleged untrue statement or omission
or alleged omission based upon written information furnished to the Company by a
Seller or underwriter expressly for use therein. This indemnification shall
include each person, if any, who controls a Seller or underwriter within the
meaning of the Securities Act; provided, however, that the indemnity agreement
set forth in this Section 7 with respect to any registration statement or
prospectus which shall be subsequently amended prior to the written confirmation
of the sale of any Ashton Shares or Xxxxx Shares, as the case may be, pursuant
thereto, shall not inure to the benefit of any Seller or underwriter from whom
the person asserting any such loss, liability, claim, damage or expense
purchased the Ashton Shares or Xxxxx Shares, as the case may be, which are the
subject thereof (or to the benefit of any person controlling such Seller or
underwriter), if such Seller or underwriter failed to send or give a copy of the
prospectus as so amended to such person at or prior to the written confirmation
of the sale of such Ashton Shares or Xxxxx Shares, as the case may be, and if
the amended prospectus did not contain any untrue statement or alleged untrue
statement or omission or alleged omission giving rise to such loss, liability,
claim, damage or expense.
21
(f) Each Seller and underwriter (if applicable) shall at the same
time indemnify the Company, its directors, its executive officers, each officer
signing the applicable registration statement and each person who controls the
Company, within the meaning of the Securities Act, from and against any and all
loss, liability, claim, damage and expense whatsoever (including, but not
limited to, any and all expenses reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened, or any claim
whatsoever) arising out of any untrue statement of a material fact contained in
the applicable registration statement or any prospectus included therein
required to be filed or furnished by reason of this Section 7 or any amendment
or supplement thereto, or caused by any omission or alleged omission to state
therein a material fact to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, insofar as such loss, liability, claim, damage or expense is caused
by any untrue statement or alleged untrue statement or omission or alleged
omission based upon written information furnished to the Company by any such
Seller or underwriter expressly for use therein.
(g) If for any reason the foregoing indemnity is unavailable under
either Section 7.4(e) or 7.4(f), then the indemnifying party shall contribute to
the amount paid or payable by the indemnified party as a result of such losses,
liabilities, claims, damages or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
on the one hand and the indemnified party on the other, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or
provides a lesser sum to the indemnified party than is appropriate to reflect
not only the relative benefits received by the indemnifying party on the one
hand and the indemnified party on the other but also the relative fault of the
indemnifying party and the indemnified party as well
22
as any other relevant equitable considerations, then in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party as well as any other equitable considerations. Notwithstanding
the foregoing, neither party shall be required to contribute any amount in
excess of the amount the indemnifying party would have been required to pay to
an indemnified party if the indemnity under this Section 7.4(e) or 7.4(f) was
available. No person guilty of fraudulent misrepresentation (within the meaning
of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(h) In their applicable request for registration of their Ashton
Shares or Xxxxx Shares, the Sellers must inform the Company of their intended
method of distribution of the Ashton Shares or Xxxxx Shares, as the case may be.
In the event that Ashton and/or the Ashton Executives request pursuant to
Section 7.2 an underwritten offering of the Ashton Shares, each Seller selling
Ashton Shares pursuant to such underwritten offering hereby agrees to enter into
an underwriting agreement with the underwriter and the Company whereby such
Seller will be required to make such representations and warranties to, and
agreements with, the Company and the underwriter as are customarily contained in
an underwriting agreement of this type, including without limitation,
representations, warranties and agreements, including indemnities, regarding the
Sellers, the Ashton Shares and the Seller's intended method of distribution and
any other representations required by law.
(i) Subject to the next sentence of this paragraph, the Company shall
be entitled to postpone, for a reasonable period of time, the filing or
effectiveness of, or suspend the rights of any Sellers to make sales pursuant
to, any registration statement otherwise required to be prepared, filed and kept
effective by it under this Section 7; provided, however, that the
23
duration of such postponement or suspension may not exceed the earlier to occur
of (A) 15 business days after the cessation of the circumstances described in
the next sentence of this paragraph on which such postponement or suspension is
based or (B) 180 days after the date of the determination of the Board referred
to in the next sentence, or if the Company is filing a registration statement
under the Securities Act for the purpose of raising capital, 180 days after the
effective date of such registration statement. Such postponement or suspension
may only be effected if the Board determines in good faith that the filing or
effectiveness of, or sales pursuant to, the applicable registration statement
would materially impede, delay or interfere with any financing, offer or sale of
securities, acquisition, corporate reorganization or other significant
transaction involving the Company or any of its affiliates (whether or not
planned, proposed or authorized prior to an exercise of registration rights
hereunder or any other registration rights agreement) or require disclosure of
material information which the Company has a bona fide business purpose for
preserving as confidential. If (i) the Company shall postpone the filing or
effectiveness of a Demand Registration Statement or suspend the rights of
Sellers to make sales thereunder, (ii) a Demand Registration Statement does not
continue in effect for at least 180 days or until the sale of all Ashton Shares
included thereunder, or (iii) a Demand Registration Statement is interfered with
by a stop order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason not the fault of Ashton or the
Ashton Executives, the Company shall as promptly as practicable notify any
participating Sellers of such determination, and the holders of the Ashton
Shares shall have the right, upon the affirmative vote of such holders holding
not less than 51% of the Ashton Shares to be included in such registration
statement which are not sold, to withdraw the request for registration by giving
written notice to the Company within 10 business days after
24
receipt of such notice. Any registration right as to which the withdrawal
election referred to in the preceding sentence has been effected shall not be
counted for purposes of the registration rights which Ashton and the Ashton
Executives have been granted pursuant to Section 7.2.
(j) The registration rights set forth in Section 7.1 and 7.2 shall
terminate with respect to any holder of Ashton Shares and/or Xxxxx Shares at
such time as the Company receives a written opinion (the "Rule 144 Opinion")
from counsel to the Company that all of the Ashton Shares and/or Xxxxx Shares
owned by such holder will be eligible to be sold pursuant to Rule 144
promulgated under the Securities Act ("Rule 144") by the end of the calendar
quarter in which it receives such Rule 144 Opinion.
(k) The Company shall pay all expenses incurred in complying with
Section 7.1 and 7.2 including, without limitation, all registration and filing
fees, printing expenses, expenses of complying with securities or blue sky laws
(including fees and disbursements of counsel for the Company and counsel for any
underwriters of such offerings, but excluding fees and disbursements of counsel
representing the Sellers), all fees and disbursements of counsel for the Company
and accountants' fees and expenses incident to the applicable registration
statement; provided, however, that the Sellers shall pay for all underwriting
fees and commissions, all fees and disbursements of counsel for any Seller and
any transfer and similar taxes to be incurred by any Seller (collectively, the
"Selling Expenses"). Unless the Sellers otherwise unanimously agree in writing,
the Sellers shall bear the Selling Expenses in direct proportion to the number
of Ashton Shares or Xxxxx Shares, as the case may be, that they are seeking to
register.
8. Amendments to Employment Agreements.
25
8.1 Section 5 and Section 6 of the Employment Agreement between the
Company and Xxxxx, dated as of May 15, 1997, are hereby deleted.
8.2 Section 5 and Section 6 of the Employment Agreement between the
Company and Xxxx, dated as of May 15, 1997, are hereby deleted.
8.3 Section 5 and Section 6 of the Employment Agreement between the
Company and Xxxxx, dated as of May 15, 1997, are hereby deleted.
9. Representations and Warranties by the Company. the Company
hereby represents and warrants to the Stockholders as follows:
(a) the Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) the Company has the full right, power and authority to enter into
this Agreement and to carry out the transactions contemplated hereby. The
execution and delivery of this Agreement by the Company and the consummation by
the Company of the transactions contemplated hereby have been duly authorized by
all requisite action on the part of the Company. This Agreement has been duly
executed and delivered by the Company and is a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws and general principles of equity.
(c) There is no material claim, and no legal action, suit,
arbitration, governmental investigation or other legal or administrative
proceeding pending or threatened against, or
26
relating to the Company or any of its respective material properties or
businesses, which would if adversely determined prevent or impede the
consummation of, or have a material adverse effect on, any of the transactions
contemplated by this Agreement nor is there any basis known to the Company for
any such action, investigation or proceeding.
10. Term and Termination.
10.1 Term. This Agreement is effective as of the date hereof and,
unless earlier terminated, shall continue in force until the earlier of (A) five
years from the date of the Original Agreement, (B) three years from the closing
date of the IPO and (C) dissolution or liquidation of the Company.
10.2 Effect of Termination. Termination of this Agreement shall
not affect or impair any rights or obligations that arise prior to or at the
time of the termination of this Agreement, or which may arise by reason of an
event causing the termination of this Agreement, and all such rights and
obligations, including the rights and obligations under any provision of this
Agreement, which by their terms are to survive termination, shall also survive.
The rights and remedies provided in this Agreement and in such other agreements
shall be cumulative and not exclusive and shall be in addition to any other
rights and remedies which the Stockholders may have under this Agreement or
otherwise.
27
11.0 Miscellaneous.
11.1 Entire Agreement. This Agreement supersedes all prior oral and
written agreements between the parties with respect to the subject matter
hereof, and this Agreement and the other documents and agreements between the
parties which are referred to herein or executed contemporaneously herewith set
forth the entire agreement among the parties with respect to the transactions
contemplated hereby.
11.2 Amendment. Any term of this Agreement may be amended and the
observance of any such term may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of (i) the Board and (ii) Stockholders holding at least 67% of the
outstanding Shares held by Stockholders and their Permitted Transferees (after
notice to all Stockholders of the proposal to adopt such amendment). Anything
in this Section 11.2 to the contrary notwithstanding, (i) none of the terms of
this Agreement may be amended in a manner that would adversely affect the rights
hereunder of the Xxxxx Principals under Sections 2 and 7 without their prior
written consent and (ii) none of the terms of this Agreement may be amended in a
manner that would adversely affect the rights hereunder of the Ashton Executives
and Ashton under Sections 2 and 7 without their prior written consent, as the
case may be. Any amendment so adopted shall become effective upon the giving of
notice of such adoption to all of the Stockholders. Each Stockholder shall be
bound by any amendment or waiver adopted in accordance with this Section 11.2,
whether or not such Stockholder shall have consented thereto.
11.3 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs and permitted
successors and assigns. Except as otherwise expressly provided herein, neither
this Agreement nor
28
any rights or obligations hereunder shall be assignable or otherwise
transferable by any party, voluntarily or by operation of law, without the prior
written consent of the other parties hereto, and any assignment or transfer
without such consent shall be null and void.
11.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute a single agreement.
11.5 Governing Law. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of Delaware
(without regard to the conflict of laws or principles thereof).
11.6 Further Assurances. Each party shall, at any time and from
time to time after the date hereof, do, execute, acknowledge and deliver, or
cause to be done, executed, acknowledged and delivered, all such further acts,
deeds, assignments, transfers, conveyances, powers of attorney, receipts,
acknowledgments, acceptances and assurances as may be reasonably required to
procure for any party, his, her or its successors and assigns, the benefits
intended to be conferred upon such party under this Agreement.
11.7 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by reason of any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions or agreements of the parties contemplated hereby
are not affected in any manner materially adverse to any party. Upon the
determination that any term or other provision is invalid, illegal or incapable
of being
29
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner.
11.8 Negotiation and Arbitration. (a) The parties shall attempt in
good faith to resolve any dispute arising out of or relating to this Agreement
promptly by negotiation. If a matter in dispute has not been resolved within 60
days of a party's request for negotiation, any of the parties to the dispute may
initiate arbitration as provided hereinafter. Any dispute arising out of or
relating to this Agreement or the breach, termination or validity thereof,
including, without limitation, the determination of the scope or applicability
of this agreement to arbitrate, which has not been resolved by negotiation
within 60 days after a party's request for negotiation shall be settled by
arbitration before a panel of three arbitrators in the State of Massachusetts.
The arbitration shall be governed by the Federal Arbitration Act and
administered by the American Arbitration Association under its Commercial
Arbitration Rules, provided that persons eligible to be selected as arbitrators
shall be limited to persons who are either (i) retired judges of the state or
Federal courts in New York or Massachusetts or (ii) attorneys-at-law who have
engaged in the private practice of law in the Borough of Manhattan or the city
of Boston for at least 10 years concentrating either in general commercial
litigation or general corporate and commercial matters. To assure the parties
that disputes and controversies subject to arbitration will be resolved
expeditiously, the arbitration hearing shall occur within 60 days after the
arbitration is initiated and any discovery prior to the arbitration hearing
shall be limited (including no more than two depositions per party). The
arbitrators shall not have authority to award punitive or exemplary damages.
Each of the parties shall, subject to the award of the arbitrators, pay an equal
share of the arbitrators' fees. The arbitrators shall have the
30
power to award recovery of all costs (including attorneys' fees, administrative
fees, arbitrators' fees and court costs) to the prevailing party. Judgment upon
the award rendered may be entered in any court having jurisdiction.
(b) No provision of, nor the exercise of any rights under, this
Section 11.8 shall limit the right of any party to request and obtain from a
court of competent jurisdiction before, during or after the pendency of any
arbitration, provisional or ancillary remedies and relief including, but not
limited to, the remedies provided for in Section 11.9. The institution and
maintenance of an action or judicial proceeding for, or pursuit of, provisional
or ancillary remedies shall not constitute a waiver of the right of any party,
even if it is the plaintiff, to submit the dispute to arbitration if such party
would otherwise have such right. Each of the parties hereby, for purposes of
this provision, submits unconditionally to the non-exclusive jurisdiction of the
state and federal courts located in the State of New York, Borough of Manhattan,
waives objection to the venue of any proceeding in any such court or that any
such court provides an inconvenient forum and consents to the service of process
upon it in connection with any proceeding instituted under this Section 11.8 in
the same manner as provided for the giving of notice hereunder.
11.9 Equitable Relief. Since a party may sustain irreparable harm in
the event there is a breach of any of the covenants contained in this Agreement,
in addition to any other rights or remedies which a party may have under this
Agreement or otherwise (including the rights to require negotiation and
arbitration in accordance with Section 11.8), a party shall be entitled to
obtain specific performance or injunctive relief against any other party in any
court of competent jurisdiction for the purposes of restraining the other party
from any actual or threatened breach of any of such covenants or to compel such
31
other party to perform any of such covenants, without the necessity of proving
irreparable injury or the inadequacy of remedies at law or posting bond or other
security.
11.10 Notices. Any and all notices, requests, demands, consents and
other communications required or permitted under this Agreement shall be in
writing, signed by or on behalf of the party by which given, and shall be
considered to have been duly given when (i) delivered by hand, (ii) sent by
telecopier (with receipt confirmed), provided that a copy is mailed (on the same
date) by first class mail, postage prepaid, or (iii) received by the addressee,
if sent by Express Mail, Federal Express or other reputable express delivery
service (receipt requested), or by first class certified or registered mail,
return receipt requested, postage prepaid, in each case to the appropriate
addresses and telecopier numbers set forth below (or to such other addresses and
telecopier numbers as a party may from time to time designate as to itself by
notice similarly given to the other parties in accordance herewith). A notice
of change of address shall not be deemed given until received by the addressee.
Notice shall be given:
(1) to the Company at:
Xxxxx Advisors, Inc.
00 Xxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: President
Telecopier: (000) 000-0000
(2) to Ashton at:
The Ashton Technology Group, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: President
Telecopier: (000) 000-0000
(3) to the Ashton Executives at:
c/o The Ashton Technology Group, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
00
Xxxxxxxxxxxx, XX 00000
Attn: President
Telecopier: (000) 000-0000
(4) to the Xxxxx Principals at:
c/o Gomez Advisors, Inc.
00 Xxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: President
Telecopier: (000) 000-0000
11.11 Additional Stockholders. Notwithstanding anything to the
contrary contained herein, in connection with the issuance of Common Stock to an
employee of Ashton pursuant to Section 6.3 of the Exchange Agreement, the
parties agree to permit such person to become a party to this Agreement and
succeed to all of the rights and obligations of a "Stockholder" and "Ashton
Executive" under this Agreement by obtaining an executed counterpart signature
page to this Agreement, and, upon such execution, such person shall for all
purposes be a "Stockholder" and "Ashton Executive" party to this Agreement.
33
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed, and the Stockholders have executed this Agreement, as of the date of
the Original Agreement.
XXXXX ADVISORS, INC.
By: /s/ Xxxxx Xxxxx
----------------------------
Name: Xxxxx Xxxxx
Title: President & CEO
THE ASHTON TECHNOLOGY GROUP, INC.
By: /s/ Xxxxxxx Xxxxxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: President & CEO
/s/ Xxxxx Xxxxx
----------------------------
XXXXX XXXXX
/s/ Xxxx X. Xxxx
----------------------------
XXXX X. XXXX
/s/ Xxxxxxxxx Xxxxx
----------------------------
XXXXXXXXX XXXXX
/s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------
XXXXXXX X. XXXXXXXXXXX
/s/ K. Xxxx X. Xxxxxxx
----------------------------
K. XXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxx
----------------------------
XXXXXX X. XXXXX
34
/s/ Xxxxxxx Xxxxxxxx
----------------------------
XXXXXXX XXXXXXXX
/s/ Xxxxxxx Xxxxxx
----------------------------
XXXXXXX XXXXXX
/s/ Xxxx Xxxxxxxx
----------------------------
XXXX XXXXXXXX
35
