EXHIBIT 10.23
SECOND AMENDMENT
SEVERANCE AND CORRESPONDENT CLEARING
AGREEMENT
This Second Amendment to Severance and Correspondent Clearing Agreement
("Second Amendment") is entered into by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇. ▇▇▇▇▇") and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Incorporated (the "Company").
WHEREAS, ▇▇. ▇▇▇▇▇ and the Company entered into that certain Severance and
Correspondent Clearing Agreement (the "Preexisting Agreement") on April 17, 1998
("Preexisting Agreement Date"; and
WHEREAS, the parties wish to clarify certain duties and obligations
thereunder in light of developments occurring subsequent to execution of the
Preexisting Agreement;
NOW THEREFORE, in consideration of the premises, the mutual promises,
covenants and conditions set forth below, and other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged, the
parties hereby agree as follows:
1. Definitions; References. (a) Unless otherwise specifically defined
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herein, each term used herein which is defined in the Preexisting Agreement
shall have the meaning assigned to such term in the Preexisting Agreement.
(b) The Preexisting Agreement as amended by the First Amendment dated
June 19, 1998 and this Second Amendment (the "Amended Agreement") is in full
force and effect and is hereby ratified and confirmed. Reference in the
Preexisting Agreement to "this Agreement" and to words such as "herein",
"hereafter", "hereof", "hereunder" and any other words of similar import shall
refer to the Amended Agreement. References to the Preexisting Agreement
contained in any other document executed and delivered in connection with the
transactions contemplated by the Preexisting Agreement shall refer to the
Amended Agreement.
2. Team. The Preexisting Agreement is hereby amended by deleting
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reference to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as a member of the "Team", as that term is defined
in Section 2.1.
3. ▇▇▇▇▇ ▇▇▇▇▇▇▇. Section 2.3 of the Preexisting Agreement and the
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severance agreement with ▇▇. ▇▇▇▇▇▇▇ are amended to allow ▇▇. ▇▇▇▇▇▇▇ to act on
behalf of NewCo and or The Trust Company and their affiliates consistent with
the terms of the Amended Agreement: provided however, that if NewCo does not
begin operations or if such are discontinued or ▇▇. ▇▇▇▇▇▇▇ leaves the
employment of NewCo during the term of his severance agreement with the Company,
the provisions of such severance agreement shall then reapply.
4. Solicitation. The Preexisting Agreement is hereby amended by adding
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the following sentences immediately prior to the final sentence of Section 2.5:
The Company hereby acknowledges and agrees that the Team may communicate
directly to Team clients assigned to accounts 510 as they may choose subject
however, in any event to the nondisparagement and
other provisions of the Amended Agreement. The Company will acquiesce to or
approve of written communications that otherwise conform with this Amended
Agreement. This acquiescence and approval in no way constitutes concurrence and
agreement by the Company with statements made in the communications. The Company
will send the Puget Sound Business Journal article regarding NewCo dated July
28, 1998 to clients assigned to account 510 and clients assigned to account 001
who have not executed a letter designating another account at the time of such
mailing as soon as practical upon execution of this Amendment. Neither the Team,
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ nor the Company shall send any written solicitation to
any clients assigned to account 001 (prior to the Preexisting Agreement Date)
who have not properly executed and returned a letter designating a
representative choice as of the date of this Agreement to transfer their account
to another for a period extending from the execution of this Second Amendment
through the earlier of three months or the date on which NewCo has registered
and qualified and begins operations as an independent broker-dealer and/or
investment advisor. Any communication between any of ▇▇. ▇▇▇▇▇, the Team,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or the Company and clients of the Company (prior to the
Preexisting Agreement Date) assigned to account 001 shall be subject to the
nondisparagement provisions of Section 2.6 of the Preexisting Agreement.
5. Transfer of Assets. The Preexisting Agreement is hereby amended by
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restating Section 3.5 in its entirety as follows:
No transfer of ▇▇▇▇▇ Client Assets (as defined below) will be made out of
the Company or NewCo to money managers, investment advisers, etc. (other than
with the ▇▇▇▇▇▇▇▇ Brothers, the fees for which are addressed in Section 3.2) for
which ▇▇. ▇▇▇▇▇, his Team, or NewCo will be paid, unless compensation
arrangements satisfactory to the Company are established and implemented. By
example but without limitation, any transfer of ▇▇▇▇▇ Client Assets to The Trust
Company of Washington, Inc., or any or its affiliates other than NewCo (now or
hereafter existing) (together defined as the "Trust Company") shall be deemed to
be a transfer of ▇▇▇▇▇ Client Assets for which ▇▇. ▇▇▇▇▇, his Team or NewCo are
paid within the meaning of this Section 3.5. NewCo shall compensate the Company
for any SEC-regulated business, performed with respect to such transferred ▇▇▇▇▇
Client Assets (so long as they continue to be held by Trust Company) as if ▇▇.
▇▇▇▇▇, his Team or NewCo still held such assets. However, the Trust Company
alone shall be entitled to any fees as trustee (but not for portfolio
management) or custodian services consistent with the Trust Company practices.
"▇▇▇▇▇ Client Assets" means assets of (a) clients in the Team account numbers at
the Company prior to the NewCo Employment Date except for (i) those assets (a)
that such clients have elected to have assigned to account 005, (ii) that such
clients have elected to have remain with the Company but be assigned to an
account other than accounts 005 or 510, (iii) that such clients have failed to
request by reassigned from account 001 prior to the NewCo Employment Date, and
(iv) that are moved to or held by a broker-dealer or investment adviser other
than the Company prior to the NewCo Employment Date, and (b) clients who became
clients of ▇▇. ▇▇▇▇▇, his Team or NewCo between the NewCo Employment Date and
the end of the Term.
6. Verification. The Preexisting Agreement is hereby amended by restating
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the introductory clause of Section 3 as follows: "The following fee and other
arrangements shall apply during the Term, except that where specifically
provided certain obligations shall survive the Term:" and by adding a new
Section 3.7 as follows:
3.7 VERIFICATION
(a) NewCo will cause The Trust Company to adopt policies that:
1. The Trust Company recognizes and confirms its intent to adhere to
and assist compliance with Sections 3.5, 3.7 and 3.8.
2. The Trust Company shall notify the Company in the event that it
agrees to pay or pays a referral fee or other compensation to ▇▇. ▇▇▇▇▇ or
the Team for Investment Services (as defined in Section 3.8) and set forth
the terms of such compensation.
3. The Trust Company will not accept during the Term a transfer of
▇▇▇▇▇ Client Assets from the Company, NewCo, ▇▇. ▇▇▇▇▇, the Team or any
affiliate of the foregoing (other than the Trust Company of Washington) now
or hereafter existing, unless prior to such transfer there is either (i) a
written agreement that NewCo will continue to manage such account, or (ii)
a written agreement between the Company and NewCo, ▇▇. ▇▇▇▇▇ the Team or
any affiliate as applicable concerning compensation arrangements pursuant
to Section 3.2.
(b) NewCo will prepare the following reports on a quarterly basis.
1. If and to the extent that assets are transferred from NewCo to the
Trust Company, all transfers will be reported, with identification of
assets.
2. The quarterly report will include a summary of compensation to be
paid to NewCo, ▇▇. ▇▇▇▇▇ or the Team by the Trust Company.
(c) NewCo will cause the Trust Company to prepare the following reports
on a quarterly basis.
1. The aggregate dollar value of assets in the Trust Company that had
been transferred by NewCo, ▇▇. ▇▇▇▇▇, or the Team, together with an
aggregate summary of all fees paid. This report will include data
(including change in asset value as a result of increase or decrease of
funds, or increase or decrease in market value) to permit a reconciliation
of the aggregate amounts on a quarterly basis.
2. The aggregate dollar amount of any compensation paid directly or
indirectly to NewCo, ▇▇. ▇▇▇▇▇ or the Team (other than in their capacity as
a shareholder of the Holding Company) as referral fees for new accounts
with The Trust Company or for Investment Services to the Trust Company
accounts.
3. The Trust Company's third party independent auditors will, on an
annual basis, confirm that the appropriate fees have been paid with respect
to all Trust Company assets as to which NewCo, ▇▇. ▇▇▇▇▇ or the Team are
obligated to make payments to the Company pursuant to the Amended Agreement
and that any compensation paid by the Trust Company to NewCo, ▇▇. ▇▇▇▇▇ or
the Team for referral fees or for Investment Services has been properly
reported.
(d) The Company will use the information provided pursuant to the
reports in this Section 3.7 ("Confidential Information") only for the
purpose of evaluating the compliance of ▇▇. ▇▇▇▇▇, his Team and NewCo with
this Agreement. The Company may provide the Confidential Information
received to its own employees or professional advisors (including
independent auditors and counsel) only on a "need to know" basis and only
for the purpose of assisting the Company in analyzing such compliance, as
long as such persons agree to operate under the same nondisclosure and use
restrictions as are imposed on the Company. The Company will make only as
many copies of the Confidential Information as are necessary for its own
internal use and purposes, and as necessary to transfer the information to
a third party pursuant to this paragraph. The Company will segregate all
Confidential Information from the Company's confidential materials and the
confidential materials of others in order to prevent commingling. The
Company shall maintain an ethical barrier within the Company such that its
personnel (other than those with a "need to know" for the limited purpose
permitted hereunder) do not have access to the investing strategies and
strategic planning information contained therein. In addition, the Company
may disclose Confidential Information as required by law, rule, regulation
or judicial process, provided that it promptly notifies NewCo of the
pending disclosure so that NewCo may have a reasonable period of time
within which to seek a protective order. The Company agrees to reasonably
cooperate with NewCo to obtain any such protective order that NewCo, in its
sole discretion, may decide to seek.
(e) "Confidential Information" for purposes of this Section 3.7 does
not include information which (i) is or becomes generally available to the
public other than as a result of a disclosure not permitted by this
Agreement, (ii) was available to the Company on a non-confidential basis
prior to its disclosure to the Company or (iii) becomes available to the
Company on a non-confidential basis from a person other than ▇▇. ▇▇▇▇▇, his
Team, ▇▇▇▇▇▇▇, NewCo or The Trust Company of Washington, Inc., who, to the
knowledge of the Company, is not otherwise bound by a confidentiality
agreement with ▇▇. ▇▇▇▇▇, his Team, ▇▇▇▇▇▇▇, NewCo or The Trust Company of
Washington, Inc., or is not otherwise prohibited from transmitting the
relevant information to the Company, or (iv) becomes available to the
Company as a result of regular reports or information provided by NewCo as
a clearing client of the Company, which information shall be handled in
accordance with the parties' Clearing Agreement.
(f) Notwithstanding the prior provisions of this Section 3.7, in the
event NewCo or The Trust Company reasonably determines, in good faith, that
disclosure of some or all of the information required by this Section 3.7
to the Company would expose
NewCo, The Trust Company, ▇▇. ▇▇▇▇▇, the Team, any of their affiliates now
or hereafter existing and/or the Company to liability for such disclosure,
NewCo and/or The Trust Company may withhold such information. In such
event, NewCo and The Trust Company agree to cooperate and use commercially
reasonable efforts to provide for a reasonably acceptable verification
procedure, whether by third party accounting firm or otherwise, which would
not violate any law, rule or regulation.
(g) The provisions of the preceding paragraphs (d) and (e) shall
survive the Term indefinitely.
7. Service of Trust Company Assets. The Preexisting Agreement if hereby
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amended by adding a new Section 3.8 as follows:
3.8 MANAGEMENT BY NEWCO OF TRUST COMPANY ASSETS
▇▇. ▇▇▇▇▇, his Team or NewCo will not be compensated, directly or
indirectly, by the Trust Company for referring clients or providing asset
management, investor counseling or related advice ("Investment Services"),
before compensation arrangements satisfactory to the Company and NewCo are
established and implemented. "Investment Services" shall not include
administrative, general client development or board services. If the parties
are unable to agree, then the Company will be paid 23% of compensation paid to
▇▇. ▇▇▇▇▇, his Team or NewCo for Investment Services.
8. Conduct of Business. The Preexisting Agreement is hereby amended by
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adding a new Section 4.5 as follows:
4.5 CONDUCT OF BUSINESS
Until the NewCo Employment Date, the Company shall promptly provide ▇▇.
▇▇▇▇▇ and his Team with all commercially reasonable administrative and
personnel support generally available to other brokers at the Company in a
substantially similar position or as might otherwise be reasonably
requested by ▇▇. ▇▇▇▇▇ and his Team. The Company agrees not to hinder
contact or communication of any kind or nature with ▇▇▇▇▇ Clients by ▇▇.
▇▇▇▇▇ or his designees, except to the extent that the content or substance
of the contact or communication (a) violates any applicable law or
regulation governing the securities business, or (b) breaches the Amended
Agreement. Without limiting the foregoing, the Company agrees, upon
request by ▇▇. ▇▇▇▇▇ or his designees, to promptly approve for release to
▇▇▇▇▇ Clients any correspondence, press releases or other items concerning
▇▇. ▇▇▇▇▇, his Team, NewCo, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and/or The Trust Company of
Washington, Inc., without any editorial intervention, except to the extent
required to prevent the content or substance of the contact or
communication from (x) violating any applicable law or regulation governing
the securities business, or (y) breaching or describing a proposed
structure or action which would breach the Amended Agreement. The Company
shall promptly set forth in writing a detailed explanation of any violation
or breach that the Company believes any such proposed contact or
communication would
cause, accompanied by the revisions to the contact or communication that
would alleviate the violation or breach.
9. Counterparts. ▇▇. ▇▇▇▇▇ and the Company hereby acknowledge the
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applicability of Section 22 of the Preexisting Agreement to this Amendment No.
1.
IN WITNESS WHEREOF, ▇▇. ▇▇▇▇▇ and the Company have executed this Second
Amendment as of the dates written below.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ INCORPORATED ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its CEO
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Date: September 18, 1998 Date: 9/21/98
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JOINDER
The undersigned has executed this Second Amendment to acknowledge her
agreement to the provisions of Section 4 as such relate to the undersigned.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Date: 9/21/98
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