EXHIBIT 99(j)
AGREEMENT
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THIS AGREEMENT (the "Agreement") is entered into as of the 15th day of
June, 1999, by and between JWGenesis Financial Corp., a Florida corporation (the
"Company"), and Xxxx X. Xxxxx (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Company recently sold JWGenesis Clearing Corp. to Fiserv
Clearing, Inc. ("Fiserv") for an estimated total gain of $40 million; and
WHEREAS, because the Company agreed to pay Fiserv a penalty of up to $15
million if one or more of its subsidiaries ceased clearing through Fiserv at any
time during the ten years following the sale, the Company is only able to
recognize $25 million in income for 1999 and the remaining $15 million (the
"Deferred Amount") will be recognized over 10 years; and
WHEREAS, in June, 1998, the Executive and the Company entered into a
nonsolicitation agreement (the "Nonsolicitation Agreement") under which the
Executive agreed to avoid soliciting the Company's customers for a period of 7
years; and
WHEREAS, the Company has requested the Executive agree to amend the
Nonsolicitation Agreement to provide that the Executive will pay the Company
liquidated damages of $1 million if the Executive violates the Nonsolicitation
Agreement; and
WHEREAS, the Company has the cash benefit of the entire $40 million gain
and in consideration of the Executive agreeing to the amendment of the
Nonsolication Agreement, the Company has agreed to advance to the Executive an
amount estimated to equal the bonus amount the Executive would receive over the
next 10 years under the current bonus plan as the Deferred Amount is recognized
in income, discounted by 3% per year; and
WHEREAS, the Company will forgive this advance payment over the next 10
years subject to certain acceleration provisions.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Amendment of Nonsolicitation Agreement. The Executive and the Company
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hereby agree to the amendment of the Nonsolicitation Agreement to provide for
the payment by Executive of liquidated damages of $350,000 if the Executive
violates the Nonsolicitation Agreement.
2. Advance Payment. The Company agrees to advance to the Executive a total
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amount equal to $417,483 (the "Advance Amount") which equals the estimated
discounted amount that may become payable to Executive under the JWGenesis
Financial Corp. Management Incentive Plan as a result of the Company's
recognition of $15 million in income over the next 10 years from the sale of
Fiserv.
3. Forgiveness of Advance Payment - The Advance Payment shall be forgiven at
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the rate of $41,748.30 per year on each May 31, 2000 through 2009, subject to
paragraphs 4. And 5. below.
4. Termination of Employment.
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(a) By the Company For Cause - If the Executive's employment is terminated
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by the Company for Cause (as such term is defined in the Executive's Employment
Agreement with the Company) his and the Company's obligations pursuant to this
Agreement shall continue as if he were still employed by the Company.
(b) By the Company Without Cause - If the Company terminates Executive's
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employment without Cause prior to the full forgiveness of the Advance Amount,
the Company shall forgive the Advance Amount, including interest thereon.
(c) By the Executive - If the Executive voluntarily terminates his
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employment with the Company, his and the Company's obligations pursuant to this
Agreement shall continue as if he were still employed by the Company.
5. Acceleration of Advance Amount. If, at any time prior to the full
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forgiveness of the Advance Amount, the Company terminates its agreement with
Fiserv, or ceases to use Fiserv for its clearing services, and owes Fiserv a
penalty, as a direct result thereof, which reduces the Deferred Amount
recognized as income by the Company, a portion of the Advance Amount shall
become immediately due and payable by the Executive. The amount accelerated and
immediately due and payable by the Executive shall equal the Advance Amount
(including accrued interest thereon at 3% per annum) multiplied by a fraction,
the numerator of which equals the amount of the penalty paid to Fiserv and the
denominator of which equals fifteen million ($15,000,000.00).
Notwithstanding the above, if, in connection with the termination of the
agreement with Fiserv, the Company enters into an agreement with another
clearing firm and receives a monetary benefit from such other clearing firm
which is includible in income, such amount shall be credited against the penalty
paid to Fiserv for purposes of the computation of the amount accelerated above.
3. Sale of the Company. Upon the sale of substantially all the assets or stock
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of the Company, the Company shall immediately forgive the Advance Amount.
4. Modification of Agreement. This Agreement may be modified, amended,
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suspended or terminated only by a written instrument executed by the parties
hereto.
5. General and Miscellaneous.
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(a) The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Georgia without giving
effect to the conflicts of laws principles thereof.
(b) This Agreement shall inure to the benefit of the Company and its
successors and assignees and shall be binding upon Executive, Executive's heirs,
administrators, executors and personal representatives.
(c) The Company's failure to insist upon strict performance of any term or
to exercise any right shall not be construed as a waiver or relinquishment for
the future of such term or right, which shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement, as of the
date first above written.
COMPANY EXECUTIVE
JWGENESIS FINANCIAL CORP.
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxx X. Xxxxx
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Name: Xxxxx X. Xxxxxx XXXX X. XXXXX
Title: Chief Financial Officer
Address: __________________
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