Principals Agreement among New Century Equity Holdings Corp., Ascendant Capital Partners, and Executives (2005)

 EXHIBIT 10.2 EXECUTION COPY PRINCIPALS AGREEMENT This Principals Agreement (this "AGREEMENT") is made and entered into as of the 5th day of October, 2005, by and among New Century Equity Holdings Corp., a Delaware corporation ("NCEH"), Gary Shugrue, Constantine L. Catsavis and Timothy Holmes (referred to herein, collectively, as the "PRINCIPALS" and, individually, as a "PRINCIPAL"), ACP Investments LP (d/b/a Ascendant Capital Partners), a Delaware limited partnership ("ASCENDANT") and the other parties executing this Agreement (NCEH, the Principals, Ascendant and the other parties to this Agreement being referred to herein as the "PARTIES"). WITNESSETH: WHEREAS, NCEH and Ascendant are parties to that certain Revenue Sharing Agreement dated as of the date hereof (such Agreement as it may be amended or supplemented from time to time, the "REVENUE SHARING AGREEMENT"); WHEREAS, each of the Principals is employed as an executive by, and holds or controls a limited partnership interest in, Ascendant; and WHEREAS, the Parties hereto wish to provide for certain rights and obligations of the Parties hereto as provided herein; NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the Parties herein contained, the Parties hereto hereby agree as follows: Section 1. DEFINITIONS. 1.1. "APPLICABLE PERCENTAGE" shall have the meaning given to that term in the Revenue Sharing Agreement. 1.2. "AUM" shall have the meaning given to that term in the Revenue Sharing Agreement. 1.3. "BUSINESS DAY" shall mean any day except a Saturday, a Sunday or a day on which banks in the State of Texas are required or permitted by law to close. 1.4. "FAIR MARKET VALUE OF ASCENDANT" shall mean the cash price in an arms' length transaction, with neither party under a time constraint to sell or buy, that a strategically-motivated and financially able buyer would pay for all of the equity interests in Ascendant. 1.5. "FUNDS" shall have the meaning given to that term in the Revenue Sharing Agreement. 1.6. "NCEH EVENT OF DEFAULT" shall have the meaning given to that term in the Revenue Sharing Agreement.  1.7. "PARTNERSHIP AGREEMENT" shall mean the Second Amended and Restated Agreement of Limited Partnership of Ascendant entered into as of December 2004 as the same is in effect on the date of this Agreement. 1.8. "PRINCIPAL EVENT OF DEFAULT" shall mean, with respect to each Principal, the occurrence at any time of any one of the following: (a) such Principal ceases to provide services to Ascendant as his principal business activity; (b) such Principal ceases to be a full time employee of Ascendant; (c) such Principal is convicted of a felony; (d) such Principal, other than in connection with such Principal's engagement with and for the benefit of Ascendant, directly or indirectly, either individually or as a principal, partner, member, manager, agent, employee, employer, consultant, independent contractor, stockholder, joint venturer or investor, or as a director or officer of any corporation, limited liability company, partnership or other entity, or in any other manner or capacity whatsoever, on its own behalf or for others, while employed by Ascendant, engages in, assists or has any active interest in, any business that operates as or advises or manages a hedge fund, private investment fund, investment company or other collective investment vehicle or any other entity that invests in securities or that otherwise directly or indirectly competes with or is substantially similar to the business conducted by Ascendant, PROVIDED that this clause (d) shall not be construed to include the mere ownership by the Principal of less than two percent (2%) of the outstanding securities of any corporation that is publicly traded on a U.S. or foreign national securities exchange or through NASDAQ; or (e) Ascendant ceases normal business operations or engages in any effort to close the Funds. 1.9. "PRINCIPAL INTEREST" shall mean, with respect to any Principal, at any time, the entire limited partnership interest in Ascendant directly or indirectly owned or controlled at such time by any one or more of such Principal, the spouse or any sibling of such Principal, any lineal descendant or ancestor of such Principal, spouse or sibling or any trust for the benefit of or entity owned or controlled by any of the foregoing. 1.10. "REVENUE INTEREST" shall have the meaning given to that term in the Revenue Sharing Agreement. Section 2. SALE AND PURCHASE OF DEFAULTING PRINCIPAL INTEREST. 2.1. RIGHT TO ACQUIRE DEFAULTING PRINCIPAL INTEREST. If at any time (a) a Principal Event of Default has occurred with respect to a Principal (the "DEFAULTING PRINCIPAL"), (b) no NCEH Event of Default has occurred and is continuing and (c) the Applicable Percentage with respect to the Revenue Interest is greater than ten percent (10%), then NCEH shall have the right at any time for sixty days after the Defaulting Principal acknowledges the Event of 2  Default to exercise its rights under this Section 2.1 with respect to the Principal Interest of the Defaulting Principal (the "DEFAULTING PRINCIPAL INTEREST") by giving written notice of exercise (the "EXERCISE NOTICE") to the Defaulting Principal and the other Principals (the "NON-DEFAULTING PRINCIPALS") (the date on which the Exercise Notice is given being referred to herein as the "EXERCISE DATE"). Upon giving the Exercise Notice, (i) NCEH shall have the right to purchase all of the Defaulting Principal Interest (except to the extent purchased by Non-Defaulting Principals as provided below) on the terms and conditions set forth herein and (ii) each of the Non-Defaulting Principals shall have the right to elect to purchase up to a portion of the balance of the Defaulting Principal Interest that exceeds an amount (the "NCEH MINIMUM SHARE") equal to the Defaulting Principal Interest multiplied by the Applicable Percentage of the Revenue Interest as of the time the Principal Event of Default occurred, equal to the proportion of such balance in excess of the NCEH Minimum Share that its Principal Interest bears to the Principal Interests of all Non-Defaulting Principals (each a "PRINCIPAL SHARE"), by giving written notice of such election (an "ELECTION NOTICE") to NCEH and the other Principals not later than the date that is eleven (11) Business Days after the Purchase Price is finally determined as provided in Section 2.3 (such date being referred to herein as the "ELECTION TERMINATION DATE" and the Principals giving an Election Notice in accordance with the provisions of this Section being referred to herein as the "ELECTING PRINCIPALS"). 2.2. SUSPENSION OF DISTRIBUTIONS. From and after the Exercise Date, Ascendant shall make no distributions to the Defaulting Principal in respect of the Defaulting Principal Interest and shall segregate from its other funds and hold for disbursement as provided in this Agreement an amount equal to the aggregate of all cash and the fair market value of all property that would (but for this Section) be distributable to the Defaulting Principal in respect of the Defaulting Principal Interest after the Exercise Date (the "SUSPENDED DISTRIBUTIONS"). The Suspended Distributions and any income of Ascendant giving rise thereto shall not be considered in any determination of the Purchase Price under Section 2.3 hereof. 2.3. PURCHASE PRICE. The purchase price for which the Defaulting Principal Interest or any portion thereof shall be purchased pursuant to this Section 2 (the "PURCHASE PRICE") shall be determined as follows: (a) If AUM is less than or equal to $50,000,000 at the time the Exercise Notice is given: (i) the Purchase Price shall be $1,000 for each 10% of the aggregate interests in Ascendant purchased, pro rated for any interests purchased that are less than 10% of the aggregate interests in Ascendant and (ii) for purposes of this Agreement, the Purchase Price shall be deemed to have been finally determined as of the Exercise Date. (b) If AUM is greater than $50,000,000 at the Exercise Date, the Purchase Price shall be determined by mutual agreement of NCEH and the Defaulting Principal or, if they have not agreed on a Purchase Price within seven (7) Business Days after the Exercise Date, either NCEH or the Defaulting Principal may give written notice to the other and to the Electing Principals that it wishes to submit the determination of Purchase Price to binding arbitration as provided herein (an "ARBITRATION NOTICE"). Not later than seven (7) Business Days after an Arbitration Notice is given, each of NCEH and the Defaulting Principal shall give to the other and to the Electing Principals a written notice setting forth its proposal for the Fair Market Value of Ascendant as of the date of the Principal Event of Default (the "PROPOSED VALUE") to be used in the arbitration as described below (each a "VALUE NOTICE"). After the 3  Value Notices are given, NCEH may withdraw the Exercise Notice by giving written notice to the Electing Principals and the Defaulting Principal not later than three (3) Business Days after the Defaulting Principal's Value Notice is given, in which event no purchase and sale shall be held with respect to such Exercise Notice and for all purposes the terms and provisions of this Agreement shall be construed and applied as though such Exercise Notice had never been given. If NCEH has not withdrawn the Exercise Notice in accordance with the preceding sentence, the determination of the Purchase Price shall be submitted to binding arbitration before a single arbitrator who is experienced in the valuation of businesses of the type conducted by Ascendant selected by the American Arbitration Association (the "AAA"). (c) The arbitration referred to in Section 2.3(b) shall be conducted in Dallas, Texas in accordance with the Commercial Arbitration Rules of the AAA except that the scope of the arbitrator's authority is limited as set forth herein. The arbitrator's award shall be limited to the selection of whichever of the two Proposed Values more fairly represents the Fair Market Value of Ascendant as of the date of the Principal Event of Default (without regard to any Suspended Distributions or any income of Ascendant giving rise thereto) and the arbitrator shall not be permitted to make, and such award shall not contain, any other determination of the Fair Market Value of Ascendant apart from the selection of one of the two Proposed Values. The arbitrator shall issue his award in writing and shall send a copy of the award to NCEH and each Principal. The Purchase Price for each 10% of the aggregate interests in Ascendant shall be an amount equal to 10% of the Proposed Value selected by the arbitrator as set forth in the arbitrator's award, pro rated for any interests purchased that are less than 10% of the aggregate interests in Ascendant. The arbitrator shall issue his award as described above as promptly as possible (and in any event will endeavor to do within 30 days) after the appointment thereof, and the arbitrator's determination shall be conclusive and binding on the Parties hereto. All fees and expenses of the arbitration shall be borne 50% by the Defaulting Principal and 50% collectively by NCEH and the Non-Defaulting Principals who purchase portions of the Defaulting Principal Interest (the "PURCHASERS"), except that the Defaulting Principal on the one hand and the Purchasers on the other hand shall each bear their own counsel fees. The Purchasers shall be represented by counsel chosen by NCEH and shall bear the fees and disbursements of such counsel and the other expenses of the arbitration to be borne by the Purchasers in proportion to the interests to be purchased by them. 2.4. CLOSING. (a) The purchase of the Defaulting Principal Interest from the Defaulting Principal under this Section 2 shall take place at a closing (the "CLOSING") to be held at such place and time as are specified in the Exercise Notice, which time shall be not less than seven (7) Business Days after the Exercise Date, or at such other place and time as may be agreed to by NCEH and the Defaulting Principal. At the Closing, (i) NCEH and each Electing Principal that has given an Election Notice prior to the Closing (each a "PARTICIPATING PRINCIPAL") shall pay the Purchase Price for the interest purchased by it to the Defaulting Principal by wire transfer of immediately available funds (with NCEH purchasing any portion of the Defaulting Principal Interest not purchased by the Participating Principals), (ii) Ascendant shall pay to each of NCEH and the Participating Principals an amount equal to a portion of the Suspended Distributions in the proportion that the amount of the Defaulting Principal Interest purchased by it bears to the entire Defaulting Principal Interest, and (iii) the Parties to this Agreement shall execute and deliver such documents and 4  instruments as may be necessary or appropriate to effect the purchase and sale of all or portions of the Defaulting Principal Interest in accordance with this Agreement and to reflect the admission of NCEH as a limited partner of Ascendant and the interests of NCEH and the other partners of Ascendant after giving effect to such purchases and sales. (b) If the Purchase Price is subject to arbitration as provided in Section 2.3 and the amount thereof has not been finally determined at the time of the Closing, the Closing shall be held as described in Section 2.4(a) except that in lieu of the payment described in clause (i) thereof, NCEH and the Participating Principals shall pay on account of the Purchase Price an amount equal to the Proposed Value set forth in NCEH's Value Notice and, if the arbitrator's award results in a Purchase Price in excess of such Proposed Value, NCEH and each Participating Principal shall pay the excess allocable to the interest purchased by it to the Defaulting Principal by wire transfer of immediately available funds not later than five (5) Business Days after the award is issued. (c) If any of the Non-Defaulting Principals has not given an Election Notice and has not advised NCEH in writing that it will not be giving an Election Notice by the date of the Closing (a "NON-PARTICIPATING PRINCIPAL") and such Non-Participating Principal gives an Election Notice in accordance with this Agreement after the Closing, NCEH shall transfer to such Non-Participating Principal a portion of the interest purchased by NCEH at the Closing equal to the portion of the Defaulting Principal Interest that the Non-Participating Principal validly elected to purchase upon such Non-Participating Principal's payment to NCEH in immediately available funds of an amount equal to the Purchase Price for the interest so transferred. Such transfer shall take place after the Purchase Price is finally determined, but not later than five (5) Business Days after the later of the date such Non-Participating Principal gives his Election Notice and the date the Purchase Price is finally determined. Upon such transfer, the transferee shall also reimburse NCEH (or pay directly) the transferee's share of any arbitration costs, NCEH shall pay to the transferee an amount equal to a pro rata portion of the Suspended Distributions paid to NCEH at the Closing, based on the amount of the interest so transferred as compared with the interest acquired by NCEH at the Closing, and the Parties to this Agreement shall execute and deliver such documents and instruments as may be necessary or appropriate to reflect such transfer and the interests of the other partners of Ascendant after giving effect thereto. (d) If by the Election Termination Date any Non-Defaulting Principal has not given an Election Notice or has given an Election Notice for less than its Principal Share of the Defaulting Principal Interest (the excess of such Non-Defaulting Principal's Principal Share over the amount the amount of the Defaulting Principal Interest it validly elected to purchase, if any, being referred to herein as the "EXCESS INTEREST") and the other Non-Defaulting Principal (the "OTHER PRINCIPAL") has given a valid and timely Election Notice for its full Principal Share, the Other Principal shall be entitled to elect to purchase (in addition to its Principal Share) up to a portion of the Excess Interest that equals the Excess Interest multiplied by a fraction the numerator of which equals the Other Principal's Principal Share and the denominator of which equals the sum of the Other Principal's Principal Share plus the NCEH Minimum Share. The rights of the Other Principal under this Section 2.4(d) shall be exercisable by giving written notice of exercise to NCEH and, if the Closing 5  has not yet occurred, to the Defaulting Principal, not later than three (3) Business Days after the Election Termination Date. The purchase of the portion of the Defaulting Principal Interest that the Other Principal has elected to purchase in accordance with this Section 2.4(d) shall be made either from the Defaulting Principal at the Closing in accordance with Section 2.4(a) or, if the Closing has already occurred at the time such election is made, from NCEH not later than three (3) Business Days after such election is made and otherwise for the purchase price and on other terms set forth in Section 2.4(c). Section 3. RIGHT OF FIRST REFUSAL. 3.1. LIMITATION ON TRANSFERS. For as long as the Applicable Percentage with respect to the Revenue Interest is greater than ten percent (10%), no Principal shall sell, assign or otherwise transfer (each a "TRANSFER") all or any portion of its Principal Interest (the "OFFERED INTEREST") unless (A) such Transfer (i) is to a transferee to which a Transfer is permitted by clause (a), (b), (c) or (d) of Section 12.2 of the Partnership Agreement or (ii) is made pursuant to Article XIII of the Partnership Agreement or (B) such Principal (the "SELLER") has received a bona fide written offer (the "PURCHASE OFFER") from a purchaser (the "PURCHASER") to purchase the Offered Interest for a purchase price (the "OFFER PRICE") which offer shall be in writing signed by the Purchaser and shall be irrevocable for a period ending no sooner than the business day following the Offer Period (as herein defined) and the Seller first offers to sell the Offered Interest pursuant to the terms of this Section 3. 3.2. OFFER NOTICE. Prior to making any Transfer that is subject to the terms of this Section 3, the Seller shall give to NCEH and each of the other Principals written notice (the "OFFER NOTICE") which shall include a copy of the Purchase Offer and an offer (the "FIRM OFFER") to sell the Offered Interest to NCEH and the other Principals (the "OFFEREE PRINCIPALS" and, together with NCEH, the "OFFEREES") and for the Offer Price, payable in accordance with terms that are the same as (or more favorable to the Offerees than) those contained in the Purchase Offer, provided that the Firm Offer shall be made without regard to the requirement of any earnest money or similar deposit required of the Purchaser prior to closing, and without regard to any security (other than the Offered Interest) to be provided by the Purchaser for any deferred portion of the Offer Price. 3.3. OFFER PERIOD. The Firm Offer shall be irrevocable for a period (the "OFFER PERIOD") ending at 11:59 P.M. local time at NCEH's principal place of business on the forty-fifth (45th) day following the day the Offer Notice is given. 3.4. ACCEPTANCE OF FIRM OFFER. Not later than thirty (30) days after the Offer Notice is given, NCEH shall have the right to accept the Firm Offer as to not more than a portion of the Offered Interest equal to the Offered Interest multiplied by the Applicable Percentage of the Revenue Interest as of the time the Offer Notice is given by giving written notice of such acceptance to the Seller and each other Offeree. Thereafter, until not later than forty (40) days after the Offer Notice is given, each of the Offeree Principals shall have the right to accept the Firm Offer as to a portion of the balance of the Offered Interest not accepted by NCEH, up to the proportion thereof that its Principal Interest bears to the Principal Interests of all Offeree Principals, or in such other proportions among the Offeree Principals as they may agree, by giving written notice of such acceptance to the Seller and each other Offeree. If the Firm Offer has not been accepted in full in accordance with the foregoing 6  provisions, NCEH shall have the right to accept the Firm Offer as to the remaining balance of the Offered Interest by giving written notice of such acceptance to the Seller and each other Offeree not later than the end of the Offer Period. If Offerees do not accept the Firm Offer as to all of the Offered Interest during the Offer Period, the Firm Offer shall be deemed to be rejected in its entirety. 3.5. CLOSING OF PURCHASE PURSUANT TO FIRM OFFER. In the event that the Firm Offer is accepted, the closing of the sale of the Offered Interest shall take place within thirty (30) days after the Firm Offer is accepted or, if later, the date of closing set forth in the Purchase Offer. The Seller and all Accepting Offerees shall execute such documents and instruments as may be necessary or appropriate to effect the sale of the Offered Interest pursuant to the terms of the Firm Offer and this Section 3 and to reflect the admission of NCEH or its designee as a limited partner of Ascendant (if it is an Accepting Offeree) and the interests therein of NCEH or its designee and the other partners of Ascendant after giving effect to such sale. 3.6. NOT APPLICABLE TO NEW EQUITY ISSUANCES. The provisions of this Section 3 shall not apply to the issuance by Ascendant of limited partnership interests therein that are not connected to a Transfer. Section 4. PARTNERSHIP AGREEMENT PROVISIONS SUPERCEDED. The Parties hereto hereby agree that the rights of NCEH and the Principals to acquire Principal Interests under this Agreement supercede and take precedence over the rights of first refusal and any other rights that may be inconsistent with this Agreement granted to partners of Ascendant under the Limited Partnership Agreement thereof as it may be in effect from time to time, all of which are subject to the rights granted under this Agreement, and all Principal Interests purchased and sold hereunder shall be transferred free and clear of any and all rights of any other Party to acquire such interests or any diminution in or other adjustment of such interests, under Article XIII of the Partnership Agreement or otherwise. Section 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PRINCIPALS. 5.1. Each of the Principals hereby represents and warrants to NCEH that to the best of his knowledge all of the representations and warranties made by Ascendant in the Revenue Sharing Agreement are true and correct. 5.2. Each of the Principals hereby represents and warrants to NCEH that during the last five years: (a) No petition under any Federal or state insolvency or bankruptcy law has been filed by or against him, nor has a receiver, fiscal agent or similar officer been appointed by a court for any business or property of his, any partnership in which was a general partner at or within two years before the time of such filing, or any corporation or business association of which he was an executive officer at or within two years before the time of such filing. (b) He has not been convicted in a criminal proceeding or been the named subject of a criminal proceeding (other than traffic violations and other minor offenses). 7  (c) He has not been the subject of any order, judgment or decree of any court or Federal or state authority finding him to have violated any Federal or state securities or commodities laws or enjoining, barring or suspending him from (i) acting as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or from engaging in or continuing any conduct or practice in connection with any such activity; or (ii) engaging in any type of business practice; or (iii) engaging in any activity in connection with the purchase or sale of any security or in connection with any violation of Federal or state securities laws. (d) He has not been the subject of any order, judgment or decree of any Federal or state authority barring, suspending or otherwise limiting his right to engage in any activity described in subparagraph (c) above or to be associated with persons engaged in any such activity. 5.3. NON-SOLICITATION. Each of the Principals hereby covenants and agrees with NCEH that so long as he is employed by Ascendant and for the 12 month period following termination of his employment with Ascendant for any reason, he shall not, directly or indirectly, either individually or as a principal, partner, member, manager, agent, employee, employer, consultant, independent contractor, stockholder, joint venturer or investor, or as a director or officer of any corporation, limited liability company, partnership or other entity, or in any other manner or capacity whatsoever: (a) induce or cause, or attempt to induce or cause, any client or marketing relationship transacting business with Ascendant to terminate or modify such relationship or association; or (b) induce or cause, or attempt to induce or cause, any employee, representative, independent contractor, member, manager, partner, shareholder, director or officer of Ascendant to leave the employ or engagement of Ascendant. Section 6. MISCELLANEOUS 6.1. SUCCESSORS AND ASSIGNS. Neither this Agreement nor any of the rights, interests or obligations provided by this Agreement will be assigned by any of the Parties (whether by operation of law or otherwise) without the prior written consent of the other Parties except that NCEH shall be entitled to assign its rights and obligations hereunder to any person or entity controlling, controlled by or under common control with NCEH without the consent of any other Party hereto. Subject to the preceding sentence, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. 6.2. AMENDMENT. This Agreement may be amended by the execution and delivery of a written instrument by or on behalf of the Parties hereto. 6.3. SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited 8  by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. 6.4. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all such counterparts taken together will constitute one and the same Agreement, and a photostatic or facsimile copy of an executed counterpart hereof shall be given the same effect as the original. 6.5. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are inserted for convenience only and will not constitute a part of this Agreement. 6.6. NOTICES. Any notice, request, instruction or other document to be given hereunder will be in writing and delivered personally or sent by registered or certified mail (postage prepaid) or by facsimile, according to the instructions set forth below. Such notices will be deemed given: at the time delivered by hand, if personally delivered; three business days after being sent by registered or certified mail; and at the time when receipt is confirmed by the receiving facsimile machine if sent by facsimile: if to NCEH, to: New Century Equity Holdings Corp. 300 Crescent Court, Suite 1110 Dallas, TX 75201 Attention: Steven J. Pully Facsimile: (214) 661-7475 if to any of the Principals or any of the other Parties hereto, to such person: c/o ACP Investments LP 1235 Westlakes Drive, Suite 130 Berwyn, PA 19312 Attention: Gary Shugrue Facsimile: (610) 993-9991 or to such other address or to the attention of such other Party that the recipient Party has specified by prior written notice to the sending Party in accordance with the preceding. 6.7. ENTIRE AGREEMENT. This Agreement and the Revenue Sharing Agreement collectively constitute the entire agreement among the Parties with respect to, and supersede any prior and contemporaneous understandings, agreements or representations by or among the Parties, written or oral that may have related in any way to, the subject matter hereof. 6.8. CONSTRUCTION. The language used in this Agreement will be deemed to be the language chosen by the Parties to express their mutual intent and no rule of strict construction will be applied against any Party. The use of the word "including" in this Agreement means "including without limitation" and is intended by the Parties to be by way of example rather than limitation. References and definitions in the plural shall refer to the singular and vice 9  versa as the context may require and references expressed in any gender shall refer to all genders as the context requires. 6.9. CONSENT TO JURISDICTION. EACH OF THE PARTIES TO THIS AGREEMENT CONSENTS TO SUBMIT TO THE PERSONAL JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE STATE OF TEXAS, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT, AND AGREES NOT TO BRING ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY OTHER COURT. EACH OF THE PARTIES TO THIS AGREEMENT AGREES NOT TO ASSERT IN ANY ACTION OR PROCEEDING ARISING OUT OF RELATING TO THIS AGREEMENT THAT THE VENUE IS IMPROPER, AND WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF ANY ACTION OR PROCEEDING SO BROUGHT AND WAIVES ANY BOND, SURETY OR OTHER SECURITY THAT MIGHT BE REQUIRED OF ANY OTHER PARTY WITH RESPECT THERETO. 6.10. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHT TO, AND AGREES NOT TO ELECT, A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS AGREEMENT. 6.11. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY LAW OR RULE THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED. Signature page follows. 10  IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. NEW CENTURY EQUITY HOLDINGS CORP. By: /s/ Steven J. Pully ------------------------------------------- Steven J. Pully, Chief Executive Officer ACP INVESTMENTS LP (D/B/A ASCENDANT CAPITAL PARTNERS) By Ascendant Holdings, LLC, its General Partner By: /s/ Gary E. Shugrue ------------------------------------------- Gary E. Shugrue, Member /s/ GARY E. SHUGRUE ------------------------------------------- GARY E. SHUGRUE /s/ TIMOTHY HOLMES ------------------------------------------- TIMOTHY HOLMES /s/ CONSTANTINE L. CATSAVIS ------------------------------------------- CONSTANTINE L. CATSAVIS /s/ CONSTANTINE L. CATSAVIS ------------------------------------------- CONSTANTINE L. CATSAVIS, TRUSTEE OF THE CATSAVIS FAMILY TRUST UTA DATED MAY 2, 2000 /s/ CONSTANTINE L. CATSAVIS ------------------------------------------- ROBERT E. TURNER /s/ MARK D. TURNER ------------------------------------------- MARK D. TURNER /s/ CHRISTOPHER K. MCHUGH ------------------------------------------- CHRISTOPHER K. MCHUGH /s/ PAUL R. KNOLLMEYER ------------------------------------------- PAUL R. KNOLLMEYER