SHAREHOLDERS AGREEMENT
THIS AGREEMENT is made and entered into as of this 12th day
of June, 1998, by and between XXXXXXXX X. XXXXX ("Leeds") and THE
WILL X. XXXXXXXXX REVOCABLE TRUST UNDER TRUST AGREEMENT DATED
FEBRUARY 27, 1990 ("Xxxxxxxxx") (collectively the
"Shareholders").
RECITALS:
WHEREAS, the Leeds owns, beneficially and of record, as of
the date of this Agreement, 618,906 shares (11.8 percent) of the
issued and outstanding $.001 par value common stock ("Common
Stock") of JWGenesis Financial Corp. ("JWGenesis") and Xxxxxxxxx
owns, beneficially and of record, as of the date of this
Agreement, 407,550 shares (7.8 percent) of the issued and
outstanding Common Stock of JWGenesis (such shares, together with
any other shares hereafter acquired by the Shareholders, are
collectively referred to as the "Shares");
WHEREAS, in accordance with Section 8.7 of that certain
Amended and Restated Agreement and Plan of Combination dated
March 9, 1998 by and among XX Xxxxxxx Financial Services, Inc.,
JWGenesis, Genesis Merchant Group Securities LLC ("Genesis") and
the Genesis members named therein (the "Plan of Combination"),
the execution of this Agreement, pursuant to which the parties
hereto agree to vote for the election as directors of JWGenesis a
specified number of nominees designated by Leeds, on the one
hand, and by Xxxxxxxxx, on the other hand, is a condition to the
closing of the Plan of Combination; and
WHEREAS, the Shareholders believe that it is desirable and
in their mutual interests to satisfy such condition and to
execute this Agreement to set forth their agreements with respect
to the election of directors of JWGenesis.
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants and agreements contained herein, and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
1.
Voting Agreement
----------------
Each Shareholder shall vote, or cause to be voted, the
Shares owned or controlled by him or it in favor of three (3)
nominees for director designated by Xxxxxxxxx, on the one hand,
and the remaining nominees for director (the greater of five (5)
or a majority of the total number of directors) designated by
Leeds, on the other hand, and shall cause to be taken all such
other actions within such Shareholder's power and authority as
may be required: (a) to cause to be elected or appointed to the
Board of Directors of JWGenesis the above number of nominees
designated by the other Shareholder; (b) to forthwith remove any
director so designated by the other Shareholder when such removal
is requested, for any reason, with or without cause, by such
Shareholder, and in the case of the death, resignation, or
removal of a director who was so designated, to elect a
replacement for such director as designated by the Shareholder
who designated such director; and (c) to use such Shareholder's
best efforts to prevent any action from being taken by the Board
of Directors of JWGenesis during the pendency of any vacancy due
to such death, resignation, or removal of a director who was
designated by the other Shareholder unless the Shareholder who
designated such director shall have failed for a period of ten
(10) days after receipt from JWGenesis of written notice of such
vacancy to designate a replacement; and (d) to cause the Board
of Directors of JWGenesis to be comprised of no less than eight
(8) directors.
2.
Power of Attorney
-----------------
If any Shareholder fails to execute any document or to do
anything that he or it is obligated to do under this Agreement,
such Shareholder hereby constitutes and appoints the other
Shareholder as his or its agent and attorney-in-fact for the
purpose of executing and delivering: (a) any and all documents
necessary or convenient to vote his or its Shares pursuant to the
provisions of Article 1 of this Agreement, and (b) any and all
other documents, instruments, agreements, and writings necessary
or convenient to effectuate the terms of this Agreement. The
powers of attorney granted herein, being coupled with an
interest, are irrevocable and shall not be revoked by the death,
dissolution, insolvency, or incapacity of any party or for any
other reason. Each Shareholder hereby releases the other
Shareholder who takes any action on his or its behalf as
authorized in this Agreement from any and all claims or
liabilities for or resulting from action so authorized.
3.
Binding on Transferees
----------------------
3. Anything in this Agreement to the contrary
notwithstanding, no sale, gift, assignment, encumbrance, or other
transfer or disposition (by operation of law or otherwise) of any
of the Shares shall have any force, validity, or effect, or vest
in the transferee any rights with respect thereto, unless and
until such transferee shall have agreed in writing to be bound by
the provisions of this Agreement with the same force and effect
as if such transferee had initially been a party to this
Agreement; provided, however, that this Agreement will not apply
to purchasers in bona fide pubic trading market transactions.
3. Except as otherwise expressly provided herein, the
provisions of this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, their successors, and
assigns, including, without limitation, all subsequent holders of
the Shares.
3. Each individual Shareholder hereby agrees to provide in
his will that the Shareholder or his personal representative
shall be bound to observe the terms and conditions of this
Agreement.
4.
Legend
Each certificate representing the Shares or any other voting
stock of JWGenesis now owned or hereafter acquired by any
Shareholder or any transferee, successor, or assign of any
Shareholder, shall bear the following legend:
"The voting of the shares represented by this
certificate are restricted by and entitled to
the benefits of a Shareholders Agreement
among certain of the Corporation's
shareholders, a copy of which may be
inspected at the principal office of the
Corporation."
5.
Termination
-----------
This Agreement shall terminate (a) upon the written
agreement of all parties hereto; (b) upon the dissolution or
liquidation of JWGenesis, the voluntary filing of a petition in
bankruptcy by JWGenesis, or the inability of JWGenesis to pay its
debts as they become due; (c) on December 31, 2001, or (d) at the
election of Leeds or Xxxxxxxxx on any date on which either
Shareholder beneficially owns less than 60% of the number of
Shares owned by such Shareholder on the date of this Agreement
(adjusted for stock splits and stock dividends).
6.
Miscellaneous
-------------
6. NOTICES. All offers or notices required or permitted
hereunder shall be in writing, and shall be deemed to be
delivered and received (a) if personally delivered or, if
delivered by telegram, facsimile, or courier service, when
actually received by the party to whom notice is sent (or upon
confirmation of receipt received by the sender), or (b) if
delivered by mail (whether actually received or not), at the
close of business on the third business day next following the
day when placed in the mail, postage prepaid, certified or
registered, addressed to the appropriate party or parties, at the
address of such party set forth below (or at such other address
as such party may designate by written notice to all other
parties in accordance herewith):
(a) If to JWGenesis:
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx, President
With a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx, 00000
Attention: W. Xxxxx Xxxxx, Esq.
(b) If to Xxxxxxxxx:
000 Xxxxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Will X. Xxxxxxxxx, President
With a copy to:
Xxxxxxx, Xxxxxxx & Xxxxx
0 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxxx, Esq.
6.2 GOVERNING LAW. This Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the
State of Florida without regard to its rules of conflicts of
laws.
6.3 PARTIAL INVALIDITY. All rights and restrictions
contained herein may be exercised and shall be applicable and
binding only to the extent that they do not violate any
applicable laws and are intended to be limited to the extent
necessary so that they will not render this Agreement illegal,
invalid, or unenforceable. If any term of this Agreement shall
be held to be illegal, invalid, or unenforceable, it is the
intention of the parties that the remaining terms hereof shall
constitute their agreement with respect to the subject matter
hereof and all such remaining terms shall remain in full force
and effect. To the extent legally permissible, any illegal,
invalid, or unenforceable provision of this Agreement shall be
replaced by a valid provision that will implement the commercial
purpose of the illegal, invalid, or unenforceable provision.
6.4 WAIVER. No failure on the part of any party hereto to
exercise, and no delay in exercising, any right, power, or remedy
hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power, or remedy by any such
party preclude any other or further exercise thereof or the
exercise of any other right, power, or remedy. No express waiver
or assent by any party hereto to any breach of or default in any
term or condition of this Agreement shall constitute a waiver of
or an assent to any succeeding breach of or default in the same
or any other term or condition hereof.
6.5 FURTHER DOCUMENTS AND ACTIONS. The parties shall take
such further actions and execute and deliver such further
documents as may be necessary or convenient from time to time to
more effectively carry out the intent and purposes of this
Agreement and to establish and protect the rights and remedies
created or intended to be created hereunder.
6.6 HEADINGS; DEFINED TERMS. The headings as to the
contents of particular sections of this Agreement are inserted
only for convenience and shall not be construed as a part of this
Agreement nor as a limitation on the scope of any of the terms or
provisions of this Agreement. All capitalized terms not
otherwise defined herein shall have the meanings set forth in
Plan of Combination.
6.7 GENDER. Where the context requires, the use of the
singular form herein shall include the plural, the use of the
plural shall include the singular, and the use of any gender
shall include any and all genders.
6.8 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the
same instrument.
6.9 ENTIRE AGREEMENT. This Agreement supersedes all prior
discussions and agreements between the parties with respect to
the subject matter hereof, and this Agreement contains the sole
and entire agreement between the parties with respect to the
matters covered hereby. This Agreement shall not be modified or
amended except by an instrument in writing signed by or on behalf
of the parties hereto.
6.10 ADDITIONAL SHAREHOLDERS. Additional shareholders may
become a party to this Agreement and shall be bound by its terms
by signing their name below or by signing a counterpart hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed under seal as of the day and year first above
written.
/s/ Xxxxxxxx X. Xxxxx [SEAL]
XXXXXXXX X. XXXXX
THE WILL X. XXXXXXXXX
REVOCABLE TRUST UNDER TRUST
AGREEMENT DATED FEBRUARY 27,
1990
By: /s/ Will X. Xxxxxxxxx
Will X. Xxxxxxxxx,
Trustee