EXHIBIT 10.2
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STOCKHOLDERS AGREEMENT
Of
ELECTRONIC MARKET CENTER, INC.
(A Delaware Corporation)
Dated as of April 18, 2000
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amended and Restated Stockholders Agreement (the "Agreement") is made
as of this 18th day of April, 2000, between and among ELECTRONIC MARKET CENTER,
INC., a corporation organized under the laws of the State of Delaware (the
"Company"), THE ASHTON TECHNOLOGY GROUP, INC., a corporation organized under the
laws of the State of Delaware ("Ashton"), each existing holder of Common Stock,
par value $.0001 per share, of the Company ("Common Stock" or "Shares") listed
on Schedule A hereto (the "Ashton Executives"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"),
who resides at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇"), who resides at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇. Ashton, the Ashton Executives, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ are
hereafter individually referred to as a "Stockholder" and collectively as the
"Stockholders."
RECITALS:
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WHEREAS, the Company and the Ashton Executives have entered into that
certain Stockholders Agreement, dated as of January 31, 2000 (the "Prior
Agreement"), which Prior Agreement provided for the voting of the Company's
Common Stock, provided certain rights and obligations relating to the transfer
of the Company's Common Stock and related business matters, among other things;
and
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WHEREAS, the Company has entered into a definitive Stock Exchange and
Acquisition Agreement and a definitive Employment Agreement pursuant to which
▇▇▇▇▇▇▇▇ shall become president and chief operating officer of the Company (but
for purposes of this Agreement, ▇▇▇▇▇▇▇▇ shall not be considered an "Ashton
Executive") and pursuant to which ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ shall become
stockholders of the Company; and
WHEREAS, all the parties to the Prior Agreement deem it appropriate and
necessary to abrogate and supersede the Prior Agreement and all the
representations, warranties and covenants contained therein, to replace such
Prior Agreement with the current Agreement, and to add ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ as
parties to the Agreement; and
WHEREAS, the Company and Ashton consider it desirable and necessary to
identify those corporate actions of the Company and/or its management which must
be subject to approval by the Board of Directors of the Company; and
WHEREAS, all the parties hereto consider it desirable and necessary to
provide for such restrictions on the transfer of the Company's Common Stock as
are necessary to ensure the harmonious and successful management and control of
the Company.
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NOW THEREFORE, in consideration of the mutual promises and
undertakings of the parties hereto, and intending to be legally bound, the
parties hereby agree as follows:
1. Restrictions on Transfer.
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1.1 General Restrictions.
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(a) Except as provided in Section 1.1(b), no Stockholder shall sell,
assign, transfer, give, donate or dispose of any Common Stock or any right
or interest in any Common Stock now held or hereafter acquired by him,
whether voluntarily or by operation of law (other than by reason of the
death of such Stockholder), to any person or entity other than the Company
or any Permitted Transferee (as hereinafter defined), except in accordance
with the terms and conditions set forth in this Agreement or pursuant to
the prior written consent of all other Stockholders.
(b) Ashton may, at its discretion, transfer up to 75,000 Shares of
Common Stock held by Ashton to a future director of the Company appointed
by Ashton and may grant options to purchase up to 500,000 Shares of Common
Stock of the Company held by Ashton to certain future grantees.
1.2 Forfeiture of Shares by Ashton Executives. Subject to the provisions
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of Section 4 of this Agreement, if any Ashton Executive is no longer
employed (as a direct employee or consultant) by Ashton or any of its
Subsidiaries (including the
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Company) prior to the Termination Date (as hereinafter defined), 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 Transferee (as hereinafter defined) of such Ashton
Executive), and such Ashton Executive (including any Permitted Transferee
of such Ashton Executive) 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.
1.3 Definition of Permitted Transferee. For purposes of this Agreement,
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"Permitted Transferee" shall mean the issue, spouse or family trust of a
Stockholder to whom Shares are transferred by such Stockholder (a) by will
or the laws of descent or distribution, or (b) by gift without
consideration of any kind.
1.4 Purported Nonconforming Transfers. Any purported transfer of Common
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Stock by any Stockholder, including any purported transfer by any legal
representative of any deceased Stockholder, not in accordance with the
provisions of this Agreement shall be void and shall not operate to
transfer any interest therein or title thereto to the purported transferee.
The Company shall not cause or permit the transfer of any certificates
representing any Common Stock owned by any Stockholder to be made on its
books except in accordance with the terms of this Agreement.
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2. Co-Sale Rights.
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2.1 Sale of Shares by Stockholder. If any Stockholder (the "Selling
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Stockholder") including, without limitation, Ashton, wishes to sell any
Shares of his or its Common Stock or any right or interest in them (the
"Offered Stock") pursuant to a bona fide written offer from a third party
to purchase the Offered Stock (the "Bona Fide Offer"), he or it shall first
give written notice to the Company (the "Notice of Sale") and to the other
Stockholders (the "Non-selling Stockholders") of his or its intention to do
so. The Notice of Sale shall name the proposed transferee and specify the
number and price per share of the Offered Stock, the terms of payment and
any other terms or conditions thereof and shall have attached thereto a
copy of the Bona Fide Offer.
2.2 Co-Sale Right of Non-Selling Stockholders. In the event of a Bona Fide
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Offer, the Selling Stockholder provides the Notice of Sale to the Non-
Selling Stockholders, then each Non-Selling Stockholder (hereinafter
referred to as a "Co-Selling Stockholder") shall have the right (a "Co-Sale
Right") to transfer to the third party as a condition to the Selling
Stockholder's sale of such Offered Stock, for proportionately the same
total consideration and on the same terms and conditions set forth in the
applicable Bona Fide Offer, such number of shares owned by such Co-Selling
Stockholder such that the buyer will be purchasing such number of shares
from the Selling Stockholder and such number of shares
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from each such Co-Selling Stockholder, pro rata based upon their respective
percentages of ownership of all of the shares of the Company's Common Stock
(determined on a fully-diluted basis), (and if and to the extent any Co-
Selling Stockholder(s) shall exercise such Co-Sale Rights, then the amount
of shares of Offered Stock to be sold to such third party by the Selling
Stockholder shall be correspondingly reduced), provided, that no
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Stockholder shall be required in connection with any such transaction to
make any representation, warranty or covenant other than a representation
as to its power and authority to effect such transfer and as to its title
to the securities transferred by it, provided further, that without
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limiting the foregoing proviso, each Co-Selling Stockholder electing to
participate in such transfer shall be obligated to indemnify the proposed
transferee or transferees only if (a) all indemnification obligations are
shared among all transferors in proportion to the consideration paid to
each transferor, and (b) the maximum indemnification of any Co-Selling
Stockholder shall not exceed the net cash proceeds actually received by it
as a result of such transfer.
2.3 Third Party Consent. The Selling Stockholder shall use commercially
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reasonable efforts to obtain the agreement of the third party purchasing
the Offered Stock in the proposed transfer to the participation of the Co-
Selling Stockholders(s) exercising the Co-Sale Rights provided herein and
shall not consummate any such proposed transfer unless each such Co-Selling
Stockholder is permitted to participate in accordance with Article 2
hereto. No Stockholder shall be obligated to sell any Shares pursuant to
Article 2 hereto. If any
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Stockholder elects to exercise such Stockholder's Co-Sale Rights, such
Stockholder shall do so by furnishing a written notice of such election to
the Company and to the Selling Stockholder within ten (10) days after
receiving the Notice of Sale.
2.4 Closing. The closing of the purchase and sale of Offered Stock
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pursuant to a Bona Fide Offer, under Article 2 hereto, shall take place at
the principal executive office of the Company (or such other location as
may be agreed upon by the Selling Stockholder and the parties who are
purchasing the Offered Stock) within thirty (30) days after the last notice
to the Selling Stockholder and to the Company pursuant to Section 2.3
hereto of the Co-Selling Stockholder's exercise of their respective rights
to sell their pro rata portion of the Offered Stock. At the closing, the
Selling Stockholder and any Co-Selling Stockholder(s) shall deliver to the
purchaser or purchasers of the Offered Stock certificates representing such
shares, duly endorsed for transfer, free and clear of any lien, claim,
charge, pledge, security interest or encumbrance whatsoever, and the
purchaser or purchasers shall deliver to the Selling Stockholder and any
Co-Selling Stockholder(s) consideration therefor at the price and on the
terms of the Bona Fide Offer.
3. "Piggyback" Registration Rights.
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3.1 Procedure for Registration. If, at any time, the Company proposes to
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register any of its Common Stock under the Securities Act of 1933, as
amended (the "Securities Act"), whether as a result of a primary or
secondary offering of Common Stock or pursuant to registration rights
granted to holders of other securities of the Company, the Company shall,
each such time, give to the Stockholders written notice of its intent to do
so. Upon the written request of any Stockholder (the "Selling
Stockholder") given within 30 days after the giving of any such notice by
the Company, the Company shall cause to be included in such registration
the Shares of such Selling Stockholder, to the extent requested to be
registered; provided that such Selling Stockholder agrees to sell those of
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its Shares to be included in such registration in the same manner and on
the same terms and conditions as the other shares of Common Stock which the
Company proposes to register. The Company shall, as expeditiously as
reasonably possible:
(a) Prepare (and afford counsel to the Selling Stockholder(s)
reasonable opportunity to review and comment) and file with the Securities
and Exchange Commission ("SEC") a registration statement with respect to
such Shares and use commercially reasonable efforts to cause such
registration statement to become and remain effective; provided, however
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that, the Company shall in no event be obligated to cause any such
registration to remain effective for more than 90 days;
(b) Prepare (and afford counsel to the Selling Stockholder(s)
reasonable opportunity to review and comment thereon) and file with the SEC
such amendments and supplements to such registration statement and the
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prospectus used in connection therewith as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
Shares covered by such registration statement;
(c) Furnish to the Selling Stockholder(s) such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents (including,
without limitation, prospectus amendments and supplements as are prepared
by the Company in accordance with Section 3(d) below) as the Selling
Stockholder(s) may reasonably request in order to facilitate the
disposition of such Shares;
(d) Notify the Selling Stockholder(s), at any time when a prospectus
relating to such registration statement is required to be delivered under
the Securities Act, of the happening of any event as a result of which the
prospectus included in or relating to such registration statement contains
an untrue statement of a material fact or omits any fact necessary to make
the statements therein not misleading; and, thereafter, the Company will
promptly prepare (and, when completed, give notice to each Selling
Stockholder) a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Shares, such prospectus will
not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading; provided that
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upon such notification by the Company, the Selling Stockholder(s) will not
offer or sell Shares until the Company has notified the Selling
Stockholder(s) that it has prepared a supplement or amendment to such
prospectus and delivered copies of such supplement or amendment to the
Selling
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Stockholder(s) (it being understood and agreed by the Company that the
foregoing proviso shall in no way diminish or otherwise impair the
Company's obligation to promptly prepare a prospectus amendment or
supplement as above provided in this subsection (d) and deliver copies of
same as above provided in subsection (c) hereof); and
(e) Use commercially reasonable efforts to register and qualify such
Shares under such other securities or Blue Sky laws of such jurisdictions
as shall be reasonably appropriate in the opinion of the Company and the
managing underwriters.
3.2 Cooperation by Selling Stockholder. It shall be a condition precedent to
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the obligations of the Company to take any action pursuant to this Agreement
that the Selling Stockholder(s) shall furnish to the Company such information
regarding them and the securities of the Company held by them as the Company
shall reasonably request and as shall be required in order to effect any
registration by the Company pursuant to this Agreement. All expenses incurred in
connection with a registration pursuant to this Agreement (excluding
underwriting commissions and discounts and counsel fees of the Selling
Stockholder(s)), including without limitation all registration and qualification
fees, printing, and fees and disbursements of counsel for the Company, shall be
borne by the Company.
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4. Purchase on Death or Disability.
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4.1 Death or Disability. In the event of the death or Disability (as
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hereinafter defined) of a Stockholder prior to the Termination Date, the
Company shall have the right and obligation to purchase from such
Stockholder (including any Permitted Transferees of such Stockholder) or
his estate, and such Stockholder (including any Permitted Transferees of
such Stockholder) or his 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 4.3) 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 promissory note
in principal amount equal to the balance of such purchase price (which note
shall be payable in equal monthly installments of principal over a sixty
(60) month period and shall accrue interest at a rate of 12% per annum,
payable monthly, and shall be secured by a lien in the Shares so sold),
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 of the Company, free and clear of all liens, claims
and encumbrances. ▇▇▇▇▇▇▇▇▇ shall not be subject to this Section.
4.2 Closing. Except as provided in the next sentence, the closing of such
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purchase and sale under Section 3.1 shall take place within ten (10)
business days
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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 4.3,
such closing shall take place within ten (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, but in no event more than five business
days after the appointment of a legal representative of the deceased
Stockholder.
4.3 Determination of Share Value. For purposes of this Agreement, "Share
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Value" shall be determined by an appraisal of the Shares made by an
independent accountant or investment banking professional selected by the
Board of Directors of the Company 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
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an appraisal shall have been issued at any time during the preceding twelve
(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 previous sentences, the
Board shall 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 change in the business
operations, assets or liabilities, employee relationships, customer
relationships, results of operations, prospects or the condition (financial
or
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otherwise) of the Company. The Company shall pay the fees and disbursements
of the Appraiser. Within thirty (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.
4.4 Voting of Shares. Notwithstanding anything to the contrary contained
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in this Agreement, in the event of a Stockholder's death or Disability,
such Stockholder and such Stockholder's Permitted Transferees, if any,
shall be required to vote all Shares held by such Stockholder and such
Permitted Transferees as directed by the Board of Directors of the Company
(including, without limitation, abstaining from voting).
4.5 Definition of Disability. As used in this Agreement, "Disability"
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shall mean 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 or Ashton for at least ninety (90)
consecutive days, or for a period shorter than ninety (90) consecutive days
as determined by the Board after consultation with a medical expert.
5. Voting Block.
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5.1 Voting of Shares by Ashton Executives. From the date of this Agreement
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until the Termination Date, each Ashton Executive shall cause the Shares of
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Common Stock of the Company owned or controlled by such Ashton Executive
and his or its Permitted Transferees 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 manner and proportion as all other
shares owned by Ashton or its designee(s) are voted at such meeting or
consent in lieu of such a meeting, as the case may be.
6. Management of Electronic Market Center, Inc.
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6.1 Board of Directors. Notwithstanding anything in the Certificate of
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Incorporation or the By-Laws of the Company to the contrary, so long as the
Stockholders continue to hold Shares, the Stockholders agree that they
shall cause the Company to have a Board of Directors consisting of six (6)
directors, one of whom shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and one of whom shall be a
person appointed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. In the event that both ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and his appointee resign as, or cease to be, directors of the
Company, the remaining Stockholders shall elect their replacements to fill
the vacancies on the Board of Directors as provided in the Company's By-
Laws.
6.2 Board Approval Required for Certain Actions. ▇▇▇▇▇▇▇▇ and the
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Stockholders agree that they shall refrain from taking or causing the
Company or any of its subsidiaries to take, and the Company agrees that it
shall not take or cause any of its subsidiaries to take, any transaction
outside the ordinary course of
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business, without the express prior written consent of the Board of
Directors of the Company. "Ordinary Course of Business" shall mean the
ordinary course of business consistent with past custom and practice
(including with respect to quantity and frequency). Without limiting the
generality of the foregoing:
(i) none of the Company and its subsidiaries will authorize or
effect any change in their charter or bylaws;
(ii) none of the Company and its subsidiaries will grant any
options, warrants, or other rights to purchase or obtain any of their
capital stock or issue, sell, or otherwise dispose of any of their capital
stock (except upon the conversion or exercise of options, warrants, and
other rights currently outstanding);
(iii) none of the Company and its subsidiaries will declare, set
aside, or pay any dividend or distribution with respect to their capital
stock (whether in cash or in kind), or redeem, repurchase, or otherwise
acquire any of their capital stock, in either case outside the Ordinary
Course of Business;
(iv) none of the Company and its subsidiaries will issue any
note, bond, or other debt security or create, incur, assume, or guarantee
any indebtedness for borrowed money or capitalized lease obligation outside
the Ordinary Course of Business;
(v) none of the Company and its subsidiaries will impose any
security interest upon any of their assets outside the Ordinary Course of
Business;
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(vi) none of the Company and its subsidiaries will make any
capital investment in, make any loan to, or acquire the securities or
assets of any other person or entity outside the Ordinary Course of
Business;
(vii) none of the Company and its subsidiaries will make any
change in employment terms for any of their directors, officers, and
employees outside the Ordinary Course of Business;
(viii) the Company will not modify the duties assigned to the
President of the Company;
(ix) none of the Company and its subsidiaries will make any
change in the business lines of the Company;
(x) none of the Company and its subsidiaries will sell or
arrange a sale of all or substantially all of the Company's or any of its
subsidiary's assets, or merge or arrange a merger or other business
combination involving the Company, or any subsidiary thereof;
(xi) none of the Company and its subsidiaries will commit to
any of the foregoing.
6.3 Minority Stockholder Approval for Certain Actions. Ashton, the
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Company, and ▇▇▇▇▇▇▇▇ agree that they shall refrain from taking or causing
the Company or any of its subsidiaries to take, and the Company agrees that
it shall not take or cause any of its subsidiaries to take, any of the
following transactions, without the express prior written consent of
▇▇▇▇▇▇▇▇:
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(i) changing any lines of business of the Company from the area
of financial services;
(ii) borrowing any money for the purpose of financing Ashton or
any subsidiary of Ashton other than the Company;
(iii) making any loan to Ashton or any subsidiary of Ashton other
than the Company;
(iv) guaranteeing any third-party debt;
(v) committing to any of the foregoing.
7 Term and Termination.
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7.1 Term. This Agreement is effective as of the date hereof and, unless
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earlier terminated, shall continue in force until the earlier of (a) with
respect to the Ashton Executives, January 31, 2002, (b) the closing date of an
initial public offering of the Common Stock of the Company, (c) the dissolution
or liquidation of the Company, or (d) a change in control of Ashton or the
Company (such date being the "Termination Date").
7.2 Effect of Termination. Termination of this Agreement shall not affect
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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
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also survive. The rights and remedies provided in this Agreement 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.
8. Miscellaneous.
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8.1 Entire Agreement. This Agreement supersedes all prior and written
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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
thereby.
8.2 Amendment. Any term of this Agreement may be amended and the
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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 (a) the Board of Directors of the Company, (b) 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), and (c) ▇▇▇▇▇▇▇▇ and his Permitted Transferees (after notice to them
of the proposal to adopt such amendment). 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 7.2, whether or not such Stockholder shall have consented
thereto.
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8.3 Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective heirs, legal representatives
and permitted successors and assigns. Except as otherwise expressly provided
herein, neither this Agreement nor 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 parties hereto, and any
assignment or transfer without such consent shall be null and void.
8.4 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute a single agreement.
8.5 Governing Law. This Agreement is made under and shall be governed by
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and construed in accordance with the laws of the State of Delaware (without
regard to the conflict of laws principles thereof).
8.6 Severability. If any term or other provision of this Agreement is
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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
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incapable of being 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.
8.7 Negotiation and Arbitration.
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(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 sixty (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 sixty
(60) days after a party's request for negotiation shall be settled by
arbitration before a panel of three arbitrators in the Philadelphia,
Pennsylvania. 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 (a) retired judges of state or
Federal courts, or (b) attorneys-at-law who have engaged in the private practice
of law for at least ten (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 sixty (60) days after
the arbitration is initiated and any discovery prior to the arbitration
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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 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 8.7 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 8.8. 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 Pennsylvania, City of
Philadelphia, 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 8.7 in the same manner as provided for the giving of notice
hereunder.
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8.8 Equitable Relief. Since a party may sustain irreparable harm in the
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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 8.7), 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 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.
8.9 Notices. Any and all notices, requests, demands, consents and other
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communications required or permitted under this Agreement shall be in writing,
signed by or on behalf of the party by whom or which given, and shall be
considered to have been duly given when (a) delivered by hand, (b) sent by
telecopier (with receipt confirmed), provided that a copy is mailed (on the same
date) by first class mail, postage prepaid, or (c) 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:
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(1) to the Company at:
Electronic Market Center, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(2) to Ashton at:
The Ashton Technology Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(3) to ▇▇▇▇▇▇▇▇ at:
▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(4) to ▇▇▇▇▇▇▇▇▇ at:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ 352
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(5) to the Ashton Executives:
c/o The Ashton Technology Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
8.10 Additional Stockholders. Notwithstanding anything to the contrary
-----------------------
contained herein, in connection with the issuance of Common Stock to an employee
of Ashton, the parties agree to permit such person to become a party to this
Agreement and succeed to
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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 his execution of such signature page, such person shall for
all purposes be a "Stockholder" and "Ashton Executive" party to this Agreement.
8.11 Deadlines. If the last day of any time period specified in this
---------
Agreement for the giving of notice shall fall on any day that is not a "Business
Day" (as hereinafter defined), then such time period shall be extended until the
next Business Day. The term "Business Day" shall mean Monday through Friday,
except any such day on which the commercial banks in Philadelphia, Pennsylvania
are closed.
[The rest of this page has been left intentionally blank.]
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IN WITNESS WHEREOF, the parties have caused this Stockholders
Agreement to be executed as of the date first written above.
ELECTRONIC MARKET CENTER, INC.
By: _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chairman
THE ASHTON TECHNOLOGY GROUP, INC.
By: _______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: _______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: _______________________________
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SCHEDULE A
THE ASHTON EXECUTIVES
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
By: ___________________________
K. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: ___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: ___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: ___________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: ___________________________
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: ___________________________
▇▇▇▇▇▇ ▇▇▇▇▇
By: ___________________________
▇▇▇▇ ▇▇▇▇▇▇▇
By: ___________________________
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
By: ___________________________
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