STOCKHOLDERS AGREEMENT
among
JWGENESIS FINANCIAL CORP.,
WOODY SPRINGS LLC
and
XXX.XXX, INC.
Dated as of July 15, 1999
TABLE OF CONTENTS
PAGE
1. CERTAIN DEFINITIONS......................................................................................1
2. REPRESENTATION AND COVENANTS OF THE STOCKHOLDERS.........................................................3
2.1 Representations and Warranties..................................................................3
2.2 Covenant of Good Faith..........................................................................3
2.3 Business Purposes...............................................................................3
3. MANAGEMENT AND OPERATIONS................................................................................4
3.1 Board of Directors..............................................................................4
3.2 Executive Officers..............................................................................4
3.3 Actions Requiring Special Approval of JWG.......................................................5
3.4 Deadlock Resolution.............................................................................6
3.5 Buy-Sell........................................................................................6
3.6 Operating Budget................................................................................8
3.7 Expense Allowance for JE's Representatives......................................................8
3.8 Future Investment Obligations...................................................................8
3.9 Existing Endorsement Arrangements; Right of First Refusal.......................................9
3.10 Prohibited Activities..........................................................................10
4. TRANSFER RESTRICTIONS; RIGHT OF FIRST REFUSAL...........................................................10
4.1 Pledges........................................................................................10
4.2 Transfers; Right of First Refusal..............................................................10
4.3 Priority of Buy-Sell and First Refusal Provisions..............................................11
4.4 Transfer to Affiliate..........................................................................12
4.5 Ownership and Control of JE....................................................................12
5. PATENTS, TRADEMARKS, COPYRIGHTS, ETC....................................................................12
5.1 Intellectual Property..........................................................................12
5.2 Marks..........................................................................................12
6. TERMINATION AND EXPIRATION..............................................................................13
6.1 Termination of the Agreement...................................................................13
6.2 Tolling in Event of Stockholder Termination....................................................15
6.3 Effect of Termination..........................................................................15
7. GENERAL AND MISCELLANEOUS...............................................................................15
7.1 Non-Competition; Non-Solicitation..............................................................15
7.2 Confidentiality................................................................................16
7.3 Binding on Transferees.........................................................................16
7.4 Legend on Certificates.........................................................................16
7.5 Mediation; Arbitration.........................................................................17
7.6 Notices........................................................................................18
7.7 Governing Law..................................................................................19
7.8 Partial Invalidity.............................................................................19
7.9 Waiver.........................................................................................19
7.10 Further Documents and Actions..................................................................19
7.11 Headings.......................................................................................19
7.12 Entire Agreement...............................................................................20
EXHIBITS AND SCHEDULES
Exhibit A - Employment Agreement
Exhibit B - Existing Elway Sponsors
Schedule 4.5 Affiliates of Xxxx Xxxxx
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "AGREEMENT") is made as of the 15th
day of July, 1999, by and among JWGenesis Financial Corp., a Florida corporation
with its principal offices at 000 X. Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000 ("JWG"), Woody Springs LLC, a Colorado limited liability
corporation with its principal offices at 00000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxx 00000 ("WS"), and XXX.xxx, Inc., a Florida corporation with its
principal offices at 000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 000-X, Xxxxxxx, Xxxxxxx
00000 ("COMPANY"). JWG and WS are sometimes referred to herein individually as a
"STOCKHOLDER" and collectively as the "STOCKHOLDERS."
WHEREAS, each of the Stockholders owns 50% of the issued and
outstanding shares of common stock of Company (the "COMMON STOCK") (such initial
number of shares together with any other shares of Common Stock hereafter issued
by Company to any Stockholder are collectively referred to as the "SHARES"); and
WHEREAS, the Stockholders believe it is desirable and in their mutual
best interests to set forth their intentions and agreement with respect to
certain aspects of the management of Company, the transferability of their
respective Shares and other matters.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall, unless the
context otherwise requires, have the meanings respectively ascribed to them
below:
"AFFECTED STOCKHOLDER" shall have the meaning ascribed to it in Section
6.1(b) hereof.
"AFFILIATE" shall mean any Person controlling, controlled by or under
direct or indirect control with any Stockholder. For purposes of the foregoing,
one Person shall be deemed to "control" another if it possesses, directly or
indirectly, the exclusive power to direct or cause the direction of the
management or policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise. Notwithstanding the foregoing,
Company shall not be deemed to be an Affiliate of any Stockholder for purposes
of this Agreement.
"APPRAISAL" and "APPRAISER" shall have the respective meanings ascribed
to them in Section 6.1(c) hereof.
"ARTICLES" shall mean the Articles of Incorporation of Company, as
amended from time to time.
"BOARD" shall mean the Board of Directors of Company as constituted
from time to time.
"BUY-SELL OFFERS" shall have the meaning ascribed to it in Section
3.5(a) hereof.
"CLAIMS" shall have the meaning ascribed to it in Section 7.5(a)
hereof.
"COMPANY'S BUSINESS" shall have the meaning ascribed to it in Section
2.3 hereof.
"CONFIDENTIAL INFORMATION" shall have the meaning ascribed to it in
Section 7.2 hereof.
"DISPUTED MATTER" shall have the meaning ascribed to it in Section 3.4
hereof.
"EMPLOYMENT AGREEMENT" shall have the meaning ascribed to it in Section
3.2 hereof.
"FAIR VALUE" shall have the meaning ascribed to it in Section 6.1(c)
hereof.
"MARKS" shall have the meaning ascribed to it in Section 5.2 hereof.
"MEDIATION RESOLUTION" shall have the meaning ascribed to it in Section
3.4 hereof.
"MEDIATOR" shall have the meaning ascribed to it in Section 7.5(a)
hereof
"NON-DEFAULTING STOCKHOLDER" shall have the meaning ascribed to it in
Section 6.1(b) hereof.
"OFFERED STOCK" shall have the meaning ascribed to it in Section 4.2(a)
hereof.
"OFFEROR AND OFFEREE" shall have the respective meanings ascribed to
them in Section 3.5(a) hereof.
"OPERATING BUDGET" shall have the meaning ascribed to it in Section
3.4(a) hereof.
"OTHER STOCKHOLDER" shall have the meaning ascribed to it in Section
4.2(a) hereof.
"OWNER" shall have the meaning ascribed to it in Section 5.2 hereof.
"PERMANENT DISABILITY" shall mean the inability of Xxxx Xxxxx to
perform services requested by Company under the Employment Agreement because of
physical or mental injury or illness during any continuous period of one hundred
twenty (120) days or for shorter periods aggregating more than one hundred
twenty (120) days in any consecutive twelve-month period.
"PERSON" shall mean any individual, partnership, joint venture,
association, corporation, trust, government agency or any other legal entity or
organization.
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"PURCHASING STOCKHOLDER" shall have the meaning ascribed to it in
Section 3.5(b) hereof.
"REFUSAL OFFER", "REFUSAL OPTION" and "REFUSAL PRICE" shall have the
respective meanings ascribed to them in Section 4.2 hereof.
"RULES" shall have the meaning ascribed to it in Section 7.5(b) hereof.
"SELLER" shall have the meaning ascribed to it in Section 4.2(a)
hereof.
"SELLING STOCKHOLDER" shall have the meaning ascribed to it in Section
3.5(b) hereof.
"STOCKHOLDER TERMINATION" shall have the meaning ascribed to it in
Section 6.1(b) hereof.
"TERMINATION OPTION" shall have the meaning ascribed to it in Section
6.1(b) hereof.
"USER" SHALL have the meaning ascribed to it in Section 5.2 hereof.
ARTICLE 2.
REPRESENTATION AND COVENANTS OF THE STOCKHOLDERS
2.1 REPRESENTATIONS AND WARRANTIES. Each Stockholder represents and
warrants to the other Stockholder that: (i) it is a company duly organized,
validly existing and in good corporate standing under the laws of its
jurisdiction of incorporation; (ii) it has full corporate power and authority to
enter into and to perform this Agreement in accordance with its terms; and (iii)
its execution and performance of this Agreement in accordance with its terms
will not violate any provision of applicable law or regulation or its
organizational instruments, and will not result in any material breach of any
material contract or agreement by which it is bound.
2.2 COVENANT OF GOOD FAITH. Each Stockholder hereby agrees to exercise
good faith at all times when dealing with the other Stockholder and with
Company, and to exercise its reasonable best efforts to promote and further the
business and best interests of Company. Each Stockholder will keep the other
fully informed as to all significant matters relating to Company and Company's
Business. The parties shall use their reasonable efforts to give commercial
efficacy to the terms and conditions of this Agreement and to promote the
business of Company, including, without limitation, taking, or causing the
members of the Board designated for election by them to take, all necessary or
prudent actions in a timely fashion in order for Company to engage in Company's
Business as contemplated by this Agreement.
2.3 BUSINESS PURPOSES. The business purposes of Company (the "COMPANY'S
BUSINESS") shall be to serve as a provider of (i) comprehensive information,
communication and shopping and e-commerce services, (ii) on-line investing and
financial services; and (iii) Internet navigation services with extensive
personalization and targeting capabilities, and such other business as may be
expressly authorized from time to time by the Board in an action taken as
contemplated by Section 3.3 hereof.
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ARTICLE 3.
MANAGEMENT AND OPERATIONS
3.1 BOARD OF DIRECTORS. The business of Company shall be managed by and
shall be under the direction and supervision of the Board of Directors of
Company (the "BOARD"), which may exercise all such powers of Company and do all
lawful acts and things that are not by applicable statute, the Articles or this
Agreement specifically directed or required to be exercised or undertaken by the
Stockholders of Company.
The size and composition of the Board shall be as follows:
(a) For so long as the Stockholders hold an equal number of
Shares, and there are no other holders of securities entitling such
holders to elect a member of the Board, the Board shall consist of four
(4) members, two (2) of whom shall be designated for election by each
Stockholder.
(b) If and for so long as any Stockholder holds a greater
number of Shares than the other Stockholder, and there are no other
holders of securities entitling such holders to elect a member of the
Board, the Board shall consist of four (4) members, three of whom shall
be designated for election by the Stockholder with more Shares and one
of whom shall be designated for election by the Stockholder with less
Shares.
(c) JWG and WS shall mutually agree as to which director shall
serve as Chairman of the Board from time to time.
(d) It is understood and agreed that each designee by a
Stockholder shall be reasonably acceptable to the other Stockholder,
and that each Stockholder shall promptly vote its Shares for the
election of each such designee of the other (or, at the behest of the
other Stockholder, for the removal thereof) and, in the event of a
vacancy for any reason on the Board, shall promptly vote its Shares for
the election of a replacement director designated for election by the
Stockholder (in accordance with the foregoing procedures) which had
designated the director whose death, resignation or removal had
resulted in such vacancy. Notwithstanding anything to the contrary in
this Agreement, for the period of thirty (30) days from the effective
date of any such director's death, resignation or removal, the Board
shall not transact any business without the consent of the Stockholder
who designated the former director, except for the filling of such
vacancy.
3.2 EXECUTIVE OFFICERS. JWG shall have the right to designate an
individual to serve as Co-Chief Executive Officer of Company. JWG's designee
(the "JWG CEO") shall, subject to the provisions of Section 3.3 hereof, have the
authority and responsibility for the management, supervision and direction of
the day-to-day operations of Company. Xxxx Xxxxx may, at his option, maintain
the title of Co-Chief Executive Officer of Company in connection with his
provision of services under the Agreement between the Company and Xx. Xxxxx
dated July 15, 1999 (the "EMPLOYMENT AGREEMENT"), which is attached hereto as
EXHIBIT A and incorporated herein by reference. JWG and WS shall mutually agree
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on the appointment of any other executive officers of Company, or the
termination or replacement of either of the Co-Chief Executive Officers, and any
actions taken by the Board with respect thereto shall be subject to the
ratification thereof by JWG and WS.
3.3 ACTIONS REQUIRING SPECIAL APPROVAL OF JWG. The Company may not take
any of the following actions unless previously approved by JWG:
(a) Enter into any transaction between Company and any
Stockholder or any Affiliate of a Stockholder; provided, however, that
the Employment Agreement and the Stock Option Agreement between JWG and
Xxxx Xxxxx, dated July 15, 1999, are hereby approved for purposes of
this Section 3.3.
(b) Incur any indebtedness in the name of Company; modify,
extend, renew, refinance or restructure such debt; pledge, assign or
otherwise utilize any assets of Company as security for any
indebtedness; or obligate Company as a surety, guarantor or
accommodation party to any obligation of any other Person, in each case
except for indebtedness provided for or contemplated by the then
operative Operating Budget and except for aggregate indebtedness during
any fiscal year in the amount of $1,000,000 or less.
(c) Enter into any agreement for the lease (with annual rental
payments exceeding $240,000 or with total lease payments exceeding
$1,500,000 over the term of the lease), purchase or sale of real
property.
(d) Authorize or issue any additional share capital or other
equity security of Company of any class, kind or series, or any options
to purchase, or other security convertible into, such security, or
effect any public offering of any such security, except as expressly
contemplated by this Agreement.
(e) Consolidate with or merge into or with any other Person.
(f) Acquire any interest in any other Person or, except in the
ordinary course of business, any significant portion of the assets of
any other Person, or agree to enter into any partnership or joint
venture, except as expressly contemplated by this Agreement.
(g) Adopt a plan of reorganization, liquidation or
dissolution.
(h) Engage in any business other than Company's Business,
unless authorized by a unanimous vote of the Board.
(i) Make any redemption of any stock of Company, or make any
distribution or return of capital to any Stockholder.
(j) Increase the capital of Company (except as may be required
by applicable law), or issue any capital call to the Stockholders,
except as expressly contemplated by this Agreement.
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(k) Enter into any agreement for the sale, transfer, exchange,
licensing, assignment, subcontracting or other disposition of any
tangible or intangible asset of Company, except for any of the
foregoing that are incidental to the ordinary and necessary operation
of Company's Business and that are not material to Company's financial
condition.
(l) Enter into any agreement that requires performance for
more than one year or which involves aggregate consideration (whether
by payment or performance) in excess of $1,000,000, except for
agreements that are incidental to the ordinary and necessary operation
of Company's Business and that are not material to Company's financial
condition, but without limiting the approval requirement for all of the
preceding provisions of this Section 3.3.
3.4 DEADLOCK RESOLUTION.
(a) Mediation. If the Board is unable to resolve by majority
vote a matter that requires Board approval, then such matter (the
"DISPUTED MATTER") may be resolved according to the following
procedure. Within 30 days after the close of the meeting of the Board
in which the Disputed Matter was discussed and remained unresolved, the
Board may refer the Disputed Matter to a mutually acceptable third
party not employed or previously employed by JWG, WS, or any of their
respective Affiliates, who shall confer with the Stockholders and
propose a resolution of the Disputed Matter to JWG and WS in writing
(the "MEDIATION RESOLUTION") within 30 days after such reference.
Notwithstanding anything to the contrary herein, the Mediation
Resolution shall not be binding on the parties hereto. If, however, the
Mediation Resolution is mutually agreeable to JWG and WS and is signed
by each of them, then the Mediation Resolution shall be deemed to be
the decision of the Board with respect to the Disputed Matter.
(b) Trigger of Buy-Sell. If (i) a Disputed Matter is submitted
for resolution as provided in Section 3.4(a) above and JWG and WS fail
to agree on the Mediation Resolution within 30 days after the date on
which the Mediation Resolution is delivered to them, or (ii) at any
time the Board fails to refer a Disputed Matter within the respective
time limit for such reference set forth in Section 3.4(a), then either
Stockholder may trigger the buy-sell provisions of Section 3.5 hereof.
3.5 BUY-SELL.
(a) Buy-Sell Offers. At any time and for any reason during the
term of this Agreement, including without limitation upon a deadlock of
the Board as referenced in Section 3.4 hereof, either Stockholder (the
"OFFEROR") may make to the other Stockholder (the "OFFEREE") offers
("BUY-SELL OFFERS") in writing in the alternative (A) to sell all (but
not less than all) of the Shares owned by the Offeror, or (B) to
purchase all (but not less than all) of the Shares owned by the
Offeree, for a price and on terms and conditions specified by the
Offeror (the total price and terms applicable to sale and purchase
being the same); provided, however, that the price in any Buy-Sell
Offer shall be payable in cash only. Such Buy-Sell Offers shall be
6
irrevocable for a period of 30 days from the date made. The Offeree
shall, at the expiration of such 30-day period, automatically be deemed
to have accepted the offer of the Offeror to buy the Offeree's Shares
unless the Offeree accepts, by notifying the Offeror before the
expiration of such 30-day period, the offer of the Offeror to sell its
Shares. The making of a Buy-Sell Offer by a Stockholder to the other
Stockholder in accordance with this Section 3.5(a) shall suspend the
other Stockholder's right to make any Buy-Sell Offer under this
Section.
(b) Closing. Within 30 days after the date of acceptance by
the Offeree of one of the Buy-Sell Offers hereunder, the closing shall
be held at the principal offices of Company or at such other place upon
which the parties mutually agree. At the closing, the seller (the
"SELLING STOCKHOLDER") shall deliver to the purchaser (the "PURCHASING
STOCKHOLDER") a written instrument of transfer of the Selling
Stockholder's Shares in form and substance reasonably satisfactory to
the Purchasing Stockholder. The Shares shall be transferred and
assigned to the Purchasing Stockholder free and clear of all claims,
liens, encumbrances, restrictions and security interests (except for
the restrictions created by this Agreement), with full warranties of
title. Upon the delivery of such instrument of transfer, the Purchasing
Stockholder shall pay to the Selling Stockholder the purchase price in
cash in accordance with the terms and conditions of the applicable
Buy-Sell Offer.
(c) Indebtedness to Selling Stockholder; Guaranties. If at the
time of closing of a sale of Shares pursuant to this Section 3.5
Company is indebted to the Selling Stockholder, the Purchasing
Stockholder shall purchase and acquire such indebtedness from the
Selling Stockholder by paying to the Selling Stockholder in immediately
available funds the entire amount of the outstanding principal balance
of such indebtedness as of the date of closing of the sale of the
Selling Stockholder's Shares, and any interest accrued thereon (in
accordance with the terms of such indebtedness) to the date of payment,
on all such indebtedness of Company then remaining unpaid. If any such
loans are outstanding at the time that Buy-Sell Offers are made
pursuant to Section 3.5(a) above, then such Buy-Sell Offers shall
include (whether or not expressly stated therein) the requirements of
this Section 3.5(c) regarding outstanding loans of any Stockholder. If,
at the time of any such sale, the Selling Stockholder, or any Affiliate
of the Selling Stockholder, shall have any outstanding personal
guaranties or security placed with any lending institution or other
Person to secure any indebtedness, liability or obligation of Company,
then the Purchasing Stockholder shall obtain a full and complete
cancellation and release of the Selling Stockholder's guaranties and
security as of the date of closing of the sale of the Shares.
(d) Selling Stockholder Indebtedness. If at the time of the
sale of Shares pursuant to this Section 3.5, the Selling Stockholder is
indebted to Company or to the Purchasing Stockholder, the amount of
such indebtedness shall be credited toward the purchase price to be
paid for the Shares and the Purchasing Stockholder shall have the right
to pay, satisfy and discharge (and offset, where appropriate) all or
any portion of such indebtedness from such purchase price. If any such
indebtedness is outstanding at the time that Buy-Sell Offers are made
pursuant to Section 3.5(a) above, then such Buy-Sell Offers shall
7
include (whether or not expressly stated therein) the conditions of
this Section 3.5(d) regarding any such indebtedness.
3.6 OPERATING BUDGET.
(a) At least 60 days prior to the beginning of each fiscal
year, the JWG CEO will prepare and present to the Board for approval an
operating budget for such fiscal year (the operating budget of Company,
so adopted by the Board from time to time and in effect at any time,
being referred to herein as the "OPERATING BUDGET"). Each Operating
Budget shall include, at a minimum, a projected income statement, a
projected balance sheet, and projections of cash flow and capital or
other expenditures, and all material assumptions relied upon in
developing such projections, but excluding all items relating solely to
the initial organization and commencement of Company's operations.
(b) In the event that an Operating Budget for any fiscal year
subsequent to the year ending December 31, 1999 is not approved by the
Board by December 31 of the immediately preceding fiscal year, Company
shall continue to operate on the basis provided in the Operating Budget
for the preceding fiscal year until an Operating Budget for such fiscal
year is approved by the Board.
3.7 INTENTIONALLY OMITTED
3.8 FUTURE INVESTMENT OBLIGATIONS. If and to the extent that the Board
determines by unanimous vote that additional funding is required from the
Stockholders (as opposed to from outside investors or other third party sources)
for Company's operations, each Stockholder shall be obligated to provide a
percentage of such funding to Company pro rata in accordance with its holdings
of Shares.
3.9 EXISTING ENDORSEMENT ARRANGEMENTS; RIGHT OF FIRST REFUSAL.
(a) Attached hereto as EXHIBIT B is a list of companies and the
specific products of such companies for which Xxxx Xxxxx is currently
providing (i) consultation and advice with respect to strategies to
promote the business and profile of such company or product(s) of such
company and to motivate the personnel of such company; (ii) on-camera
spokesperson and broadcast personality services in connection with the
production and broadcast of one or more radio and/or television
commercials commissioned by such company; (iii) print media personality
services, including promotional photography sessions, in connection
with the production and dissemination of print-based advertising and/or
marketing campaigns commissioned by such company; (iv) on-line
services, including availability for on-line conferences and other
special promotional events sponsored by such company; (v) personal
appearances at sales conferences, employee meetings and public
functions sponsored by such company; or (vi) other endorsement services
(each an "EXISTING ELWAY SPONSOR").
(b) The Company agrees that prior to entering into a site sponsorship
(naming) agreement or exclusive electronic commerce sales or
8
sponsorship agreement (an "ONLINE SPONSORSHIP") with a company (a
"COMPETING SPONSOR") whose products are the same or substantially
similar to the product(s) then being endorsed by Xxxx Xxxxx for an
Existing Elway Sponsorship (such Existing Elway Sponsor a "CONFLICTING
ELWAY SPONSOR"), the Company shall first offer, in good faith, to such
Conflicting Elway Sponsor(s), the opportunity to negotiate for the
Online Sponsorship contemplated by the Company to be entered into with
the Competing Sponsor.
(c) Once the Company determines that a Conflicting Elway Sponsor exists
with respect to a contemplated Online Sponsorship, the Company shall
(unless granted a waiver by Xxxx Xxxxx with respect to such Conflicting
Elway Sponsor) contact the applicable Conflicting Elway Sponsor(s)
regarding the potential Online Sponsorship and, if the Conflicting
Online Sponsorship responds to the Company's offer to negotiate within
ten (10) days, negotiate in good faith to enter into with the
Conflicting Elway Sponsor the Online Sponsorship contemplated to be
negotiated with the Competing Sponsor; provided, however, the Company
shall only be required to enter into an Online Sponsorship with such
Conflicting Elway Sponsor if such Online Sponsorship is on
substantially the same economic terms as the Company contemplated in
good faith entering into such Online Sponsorship with the Competing
Sponsor. If the applicable Conflicting Elway Sponsor does not indicate
its willingness to negotiate for the Online Sponsorship within ten (10)
days of being contacted by the Company, then the Company shall be free
to negotiate and enter into the Online Sponsorship with the Competing
Sponsor.
(d) In the event that there are more than one Conflicting Elway
Sponsors with respect to an Online Sponsorship, the Company shall
determine, in its sole discretion, which Conflicting Elway Sponsors to
approach first regarding such Online Sponsorship, and, in the event
that the Company is able to negotiate with a Conflicting Elway Sponsor
for such Online Sponsorship, then the Company shall not be required to
contact or offer to negotiate with any of the other Conflicting Elway
Sponsors for such Online Sponsorship.
(e) It shall not be a breach of this section for the Company to reject
the offer of an Online Sponsorship or terminate negotiations for an
Online Sponsorship with a Conflicting Elway Sponsor and proceed to
negotiate with the Competing Sponsor; provided that, if the Company is
unable to agree upon terms for the Online Sponsorship with the
Competing Sponsor more favorable than the terms negotiated with the
Conflicting Elway Sponsor, then the Company shall (i) terminate its
plans for such Online Sponsorship for no less than three (3) months (at
which time the terms of this section shall once again apply to the
negotiations for such Online Sponsorship), or (ii) approach the
Conflicting Elway Sponsor and offer to enter into the Online
Sponsorship on the terms last discussed with such Conflicting Elway
Sponsor (or, if such negotiations were discontinued prior to an offer,
offer to continue to negotiate with such Conflicting Elway Sponsor). If
at such time the Conflicting Elway Sponsor indicates that it does not
wish to enter into such agreement on the same (or substantially similar
9
terms), or the Conflicting Elway Sponsor is not willing to resume
negotiations on terms acceptable to the Company, then the Company shall
be free to pursue the transaction with a Competing Sponsor.
(f) If at any time a Conflicting Elway Sponsor indicates that it does
not wish to negotiate or continue to negotiate for an Online
Sponsorship (or at such time as the Company determines in good faith
that negotiations with a Conflicting Elway Sponsor are not leading to
acceptable terms for the Online Sponsorship) then the Company shall be
free to pursue the transaction with a Competing Sponsor.
3.10 PROHIBITED ACTIVITIES. The Company shall not enter into Online
Sponsorships or accept advertising involving gambling, hard liquor (which term
shall specifically not include beer or wine), cigars, or cigarettes without the
prior written consent of WS.
ARTICLE 4.
TRANSFER RESTRICTIONS; RIGHT OF FIRST REFUSAL
4.1 PLEDGES. No Stockholder may pledge, mortgage, hypothecate or
otherwise transfer as security any of its Shares, or transfer, assign, or
endorse any debt owed by Company to the Stockholder, without the prior written
approval of the other Stockholder.
4.2 TRANSFERS; RIGHT OF FIRST REFUSAL. Subject to Section 4.4, the
Stockholders agree that neither Stockholder may sell, transfer, assign or
otherwise dispose of any or all of its Shares without the prior written consent
of the other Stockholder, except in accordance with the following terms and
conditions:
(a) Any Stockholder (the "SELLER") desiring to sell, transfer,
assign or otherwise dispose of any or all of its Shares (the "OFFERED
STOCK") shall first offer (the "REFUSAL OFFER") to sell the Offered
Stock to the other Stockholder (the "OTHER STOCKHOLDER") at a cash
price (due in its entirety at closing) specified by the Seller (the
"REFUSAL PRICE"). The Refusal Offer shall be in writing.
(b) For a period of 30 days after its receipt of the Refusal
Offer, the Other Stockholder shall have the right and option (the
"REFUSAL OPTION"), but not the obligation, to purchase all, but not
less than all, of the Offered Stock at the Refusal Price, exercisable
by delivery of a written notice to that effect to the Seller. If the
Other Stockholder so exercises the Refusal Option, the closing shall be
at the principal office of Company within 30 days after Seller's
receipt of acceptance. At the closing, the Seller shall deliver to the
Other Stockholder (or its designee) such documents as shall be
necessary to transfer all of the Offered Stock, free and clear of all
claims, liens, encumbrances, restrictions and security interests
(except for the restrictions created by this Agreement), with full
warranties of title, and with all transfer taxes and charges paid by
the Seller. Simultaneously with such deliveries by the Seller, the
Other Stockholder shall pay the Seller the Refusal Price.
(c) If the Refusal Option is not exercised by the Other
Stockholder as to all of the Offered Stock, then the Seller shall be
free to sell, transfer or assign all (but not less than all) of the
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Offered Stock to any party at a cash price (due in its entirety at
closing) not lower than the Refusal Price and upon the other terms and
conditions contained in the Refusal Offer; provided, however, that (i)
the sale and transfer of such stock shall not violate the provisions of
any applicable laws, and (ii) the Seller shall cause such party to
acknowledge and agree in writing to be bound by the terms, conditions
and restrictions of this Agreement to the same extent as if such party
had originally been a party to this Agreement.
(d) If the stock of Company so offered to the Other
Stockholder, but not accepted by it, has not been sold, transferred or
assigned to the party referred to in the preceding clause (c) in
accordance with the terms and conditions of the Refusal Offer within 30
days after the expiration of the Refusal Option, then the restrictions
provided in this Section 4.2 shall again become effective with respect
to such stock, and no sale, transfer, assignment or other disposition
of such stock may be made thereafter without the prior written consent
of the Other Stockholder as aforesaid or without again offering such
stock to the Other Stockholder in accordance with the provisions of
this Section 4.2.
4.3 PRIORITY OF BUY-SELL AND FIRST REFUSAL PROVISIONS. Except as
provided in the succeeding sentence, the prior delivery of a Refusal Offer to
the Other Stockholder by the Seller in accordance with Section 4.2(a) above
shall suspend the Stockholders' right to deliver Buy-Sell Offers under Section
3.5(a) above, until after the earliest to occur of (i) the closing of the
purchase of the Offered Stock by the Other Stockholder or the other party
referred to in Section 4.2(c), or (ii) the expiration of the time allowed under
Section 4.2(d) for the sale of the Offered Stock to the other party referred to
in Section 4.2(c). Notwithstanding anything to the contrary herein, the prior
delivery of Buy-Sell Offers by one Stockholder to the other Stockholder in
accordance with Section 3.5(a) above shall suspend the right of the Offeree to
deliver a Refusal Offer to the Offeror in accordance with Section 4.2(a) above.
4.4 TRANSFER TO AFFILIATE. Notwithstanding anything to the contrary
herein, each Stockholder shall have the right at any time to sell, transfer or
assign all, but not less than all, of its Shares to any Affiliate of such
Stockholder; provided that (a) the Affiliate first agrees in writing to become a
party to and be bound by this Agreement, and (b) the transferring Stockholder
shall remain liable for all of its obligations under this Agreement as if such
sale, transfer or assignment had not occurred; and further provided that if at
any time any such transferee ceases to be an Affiliate of the transferor, then
prior thereto the transferor Stockholder shall reacquire all of the Shares that
it transferred to its Affiliate. Upon any such sale, transfer or assignment of
stock to an Affiliate of a Stockholder, such Affiliate shall be deemed to be a
"Stockholder" for all purposes under this Agreement and shall have all of the
rights, obligations (including, without limitation, the obligations set forth in
ARTICLE 3 hereof) and liabilities of the transferring Stockholder.
4.5 OWNERSHIP AND CONTROL OF WS. WS represents and warrants to JWG and
Company that Xxxx Xxxxx personally or his Affiliates (as set forth on SCHEDULE
4.5, which is incorporated herein by reference) own all of the issued and
outstanding member interests of WS, and WS covenants that such ownership shall
continue at all times that WS owns Shares, unless any change thereto (other than
a change reflecting only a transfer to a member of the immediate family of Xxxx
11
Elway or to a trust whose sole beneficiary(ies) is or are such members) is
approved in writing by JWG.
ARTICLE 5.
PATENTS, TRADEMARKS, COPYRIGHTS, ETC.
5.1 INTELLECTUAL PROPERTY. Except as expressly provided herein or as
may be agreed by the Stockholders in writing, neither Stockholder shall acquire
any right, title or interest in any patent, patent right, copyright, trade
secret, know-how, invention, technology, innovation, computer program, software,
idea, design, plan, specification, process or method of any other Stockholder or
Company. If any such right, title or interest is so acquired by either
Stockholder by operation of law or otherwise, such Stockholder shall, upon the
request of the other Stockholder or Company (as the case may be), convey such
right, title or interest back to such other Stockholder or Company (as the case
may be).
5.2 MARKS. Except as expressly provided here or as may be agreed by the
Stockholders in writing, neither any Stockholder nor Company shall directly or
indirectly use as part of its corporate or business name, or in connection with
its business, all or any part of any trademark, service xxxx, trade name or logo
(collectively the "MARKS") that may now or hereafter be owned or used by any
other Stockholder or Company. If any such Marks are used by a Stockholder or
Company (the "USER") with the express written approval of the other Stockholder
or Company (the "OWNER"), then upon termination of this Agreement for any
reason, or in the event any party hereto ceases to be a Stockholder of Company,
the User shall delete and discontinue all such use, and shall not thereafter use
any name, title or expression in connection with any business in which the Owner
may thereafter be engaged that in the reasonable judgment of the Owner so nearly
resembles any of such Marks, or part thereof, owned or used by the Owner as may
be likely to lead to confusion or uncertainty on the part of the public. Except
as otherwise expressly provided herein, each Stockholder and Company expressly
disclaims any right, title, or interest in the ownership and use of any of the
Marks of the others, and such disclaimer shall survive any termination of this
Agreement.
ARTICLE 6.
TERMINATION AND EXPIRATION
6.1 TERMINATION OF THE AGREEMENT.
(a) This Agreement shall terminate automatically, without
action by any party hereto, upon the earliest occurrence of any of the
following events: (1) mutual written agreement of the Stockholders; (2)
the sale or other disposition of all or substantially all of Company's
assets; (3) the dissolution of Company; or (4) either Stockholder
purchases all of the Shares owned by the other Stockholder.
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(b) Upon the occurrence of any of the following events, the
Stockholder to which such event is not applicable shall have the right
to terminate this Agreement immediately by written notice to the other
Stockholder and Company:
(1) a trustee, receiver or liquidator is appointed
for all or a substantial part of the assets or property of
either Stockholder;
(2) a voluntary winding-up petition is filed with
respect to either Stockholder, or an involuntary petition is
filed and is not dismissed within ninety (90) days after
filing;
(3) the interests of either Stockholder are
assigned for the benefit of creditors;
(4) either Stockholder ceases the active conduct of
its business (provided that the Stockholders agree not to
cease the active conduct of their respective businesses
voluntarily during the two (2) year period immediately
following the date hereof);
(5) either Stockholder dissolves or liquidates
(provided that the Stockholders agree not to dissolve or
liquidate voluntarily during the two (2) year period
immediately following the date hereof);
(6) either Stockholder is in material breach or
default under this Agreement provided that such breaching
Stockholder is given notice of such breach and fails to cure
such breach within 30 days; or
(7) with respect to WS, upon the death or Permanent
Disability of Xxxx Xxxxx.
In the event of such termination (a "STOCKHOLDER TERMINATION"), the
Stockholder to which such event is not applicable (the "NON-DEFAULTING
STOCKHOLDER") shall have the right and option (the "TERMINATION
OPTION") but not the obligation, exercisable by written notice to the
other parties hereto, (i) to purchase the Shares of the Stockholder to
which such event is applicable (the "AFFECTED STOCKHOLDER") at a price
equal to a percentage of the Fair Value of Company (determined as
specified in the succeeding clause (c)) equal to the percentage of the
total issued and outstanding share capital of Company held by the
Affected Stockholder as of the date of the Stockholder Termination, or
(ii) to cause the sale of Company, either in a private transaction or
to the public (at the option of the Non-Defaulting Stockholder in its
discretion) to a third party that is not an Affiliate of either
Stockholder for a price equal to the Fair Value, in which case the
Affected Stockholder agrees to sell its Shares to such third party, or,
if applicable, to consent to a sale of all or substantially all of
Company's assets or a merger of Company with such third party. The
Termination Option may be exercised by the Non-Defaulting Stockholder
at any time from the date of the Stockholder Termination until the
later of (x) the date that is sixty (60) days after such Stockholder
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Termination, or (y) the date that is thirty (30) days after its receipt
of the Appraisal (as defined in the succeeding clause (c)).
(c) Determination of Fair Value. In the event of a Stockholder
Termination, the Non-Defaulting Stockholder shall notify Company of
such event, whereupon Company shall promptly engage an investment
banking firm (the "APPRAISER") to determine the Fair Value (as defined
below) of Company, at the expense of the Affected Stockholder. Company
shall provide any existing information in its possession or control
that the Appraiser may request in order to determine the Fair Value.
The Appraiser shall report the Fair Value of Company in writing (the
"APPRAISAL") to each Stockholder and Company within 60 days after its
engagement by Company. For purposes of this Agreement, "FAIR VALUE"
means the price that a willing buyer under no compulsion to buy and in
possession of all information considered relevant by the Appraiser
would pay for the stock of Company, and which a willing seller under no
compulsion to sell would accept, taking into account historical,
present and expected future values, and assuming that Company will
continue to operate Company's Business as a going concern and that the
covenants made in Sections 7.1 and 7.2 hereof shall continue. In
determining the Fair Value upon a Stockholder Termination pursuant to
Section 6.1(b)(7), the Appraiser shall also take into account the
effect upon Company of the death or Permanent Disability of Xxxx Xxxxx.
6.2 TOLLING IN EVENT OF STOCKHOLDER TERMINATION. Notwithstanding
anything to the contrary herein, the occurrence of a Stockholder Termination
shall suspend the right of the Affected Stockholder to deliver a Refusal Offer
or sell the Offered Stock under Section 4.2 above, or, if applicable, to deliver
Buy-Sell Offers under Section 3.5 above, until such time (if any) as the period
of time for the exercise of the Termination Option by the Non-Defaulting
Stockholder has expired without such Termination Option being exercised. If such
Termination Option is exercised by the Non-Defaulting Stockholder, then any
Refusal Offer or Buy-Sell Offers then in effect, and all proceedings under
Sections 3.5 or 4.2, shall be deemed to be canceled and shall be of no further
force or effect.
6.3 EFFECT OF TERMINATION. Termination of this Agreement shall not
affect any obligations of either of the Stockholders hereunder which have
accrued by, and are not discharged prior to (in accordance with their terms),
such termination, nor affect the rights of either Stockholder to recover damages
from the other Stockholder by reason of any breach of this Agreement which has
accrued prior to or would by its nature accrue after such termination. As an
example, and without limiting the effect of this Section, the provisions of
Sections 6.1(b), 7.1, 7.2 and 7.5 shall survive the termination of this
Agreement.
ARTICLE 7.
GENERAL AND MISCELLANEOUS
7.1 NON-COMPETITION; NON-SOLICITATION.
(a) As long as it remains a stockholder of Company, neither
any Stockholder nor any of its Affiliates shall, directly or
indirectly, other than through Company, engage in, or have any interest
14
in any Person that engages in, a business competitive with Company's
Business within the United States; provided, however, that if at any
time one Stockholder purchases all of the Shares owned by the other
Stockholder, the purchasing Stockholder shall no longer be bound by
this Section 7.1. The applicability of this Section 7.1 to each
Stockholder shall survive the termination or expiration of this
Agreement. Notwithstanding anything to the contrary herein, any
Stockholder may own, either of record or beneficially, solely for
investment purposes, up to one percent (1%) of the shares or stock or
other equity interest of any publicly traded corporation or other
entity which engages in a business competitive with Company's Business
within the United States.
(b) Notwithstanding the provisions of Section 7.1(a) above, WS
acknowledges that JWG and its Affiliates already provide securities
brokerage, corporate finance, asset management, capital formation,
investment banking and financial advisory services through traditional
means and on-line (including via the medium of e-commerce), and JWG and
its Affiliates may continue these activities independently. WS further
agrees that JWG and its Affiliates have no duties or obligations to
Company or WS with respect to such matters.
(c) As long as it remains a stockholder of Company and for a
period of six (6) months after it ceases to be a stockholder of
Company, JWG will not, and will not permit its Affiliates to, either
for themselves or on behalf of another, without the prior written
consent of Company, solicit, induce or cause any employee of Company or
WS, or of any Affiliate thereof, to leave the employment of Company,
WS, or such Affiliate, as the case may be, or become employed by JWG.
(d) As long as it remains a stockholder of Company and for a
period of six (6) months after it ceases to be a stockholder of
Company, WS will not, and will not permit its Affiliates to, either for
themselves or on behalf of another, without the prior written consent
of Company, solicit, induce or cause any employee of Company or JWG, or
of any Affiliate thereof, to leave the employment of Company, JWG or
such Affiliate, as the case may be, or become employed by WS.
7.2 CONFIDENTIALITY. For so long as this Agreement remains in effect
and for a period of five (5) years thereafter, neither any Stockholder nor any
of its Affiliates shall, directly or indirectly, divulge, use, furnish, disclose
or make available to anyone other than Company or its affiliates, or its or
their directors or officers as appropriate, any Confidential Information. For
purposes of this Agreement, "CONFIDENTIAL INFORMATION" means information
relating to Company, its clients, or its business that derives value from not
being generally known to other persons, including, but not limited to, technical
or nontechnical data, formulas (including criteria for weighing stock selection
factors), patterns (including investment patterns), compilations (including
stock selection and buy lists), programs, devices, methods (including stock
selection and portfolio design and monitoring methods), techniques, drawings,
processes, financial data, or lists of actual or potential clients, whether or
not reduced to writing. Confidential Information includes information disclosed
to Company by third parties that Company is obligated to maintain as
confidential. Confidential Information subject to this Agreement may include
information that is not a trade secret under applicable law, but information
15
that is not also a trade secret shall constitute Confidential Information only
for two (2) years after this Agreement is no longer in effect.
7.3 BINDING ON TRANSFEREES. Except as otherwise expressly provided
herein, the provisions of this Agreement shall be binding upon and shall inure
to the benefit of the Stockholders, and their permitted successors and assigns,
including, without limitation, all subsequent holders of the shares of Company.
Notwithstanding anything to the contrary herein, no sale, gift, assignment,
encumbrance or other transfer or disposition (by operation of law or otherwise)
of any 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.
7.4 LEGEND ON CERTIFICATES. Each certificate or other evidence
representing the Shares shall bear the following legend:
"Transfer of any of the shares represented by this certificate
and the exercise of the voting rights of such shares are
restricted by and entitled to the benefits of that certain
Stockholders Agreement dated July 15, 1999, as amended, by and
among the holders of issued and outstanding shares of Company,
a copy of which may be inspected at the principal office of
Company."
7.5 MEDIATION; ARBITRATION.
(a) Any controversy or claim arising from, out of or relating
to this Agreement, the breach hereof or the termination hereof which
would give rise to a claim under federal, state or local law (including
but not limited to claims based in tort or contract, claims for
discrimination under state or federal law, and/or claims for violation
of any federal, state or local law, statute or regulation) ("CLAIMS")
shall first be submitted for mediation in a conference with an
impartial mediator ("MEDIATOR") selected jointly by the parties. The
parties will use their best efforts to participate in such mediation
conference within forty five (45) days after either makes a Claim. Both
parties shall attend such mediation conference and attempt to resolve
any and all Claims. Notwithstanding the foregoing, either party shall
have the right to seek injunctive and/or other equitable relief in a
court of competent jurisdiction in the event of a material breach of
the provisions of Sections 7.1 or 7.2 of this Agreement upon
twenty-four (24) hours' prior written notice to the other party.
(b) If the parties are not able to resolve all Claims by
mediation, any unresolved Claims, including any dispute as to whether a
matter constitutes a Claim which must be submitted to arbitration,
shall be determined by final and binding arbitration in West Palm
Beach, Florida or Atlanta, Georgia (as selected by WS), or another
mutually agreed upon location in accordance with the commercial rules
("RULES") of the American Arbitration Association, by an experienced
arbitrator licensed to practice law in the State of Florida or Georgia,
16
in accordance with such Rules, except as herein specified. The
arbitrator shall be selected by alternate striking from a list of six
(6) arbitrators, half of which shall be supplied by JWG and half by WS.
If WS does not supply a list of arbitrators, JWG shall select the
arbitrator. If WS does supply a list, JWG shall strike first. The
process shall be repeated twice until an arbitrator is selected. If an
arbitrator is still not selected by the above process, then, the
Mediator shall provide a list of three (3) names which will be
alternately struck, with JWG striking first, until a selection is made.
(c) A demand for arbitration shall be made within a reasonable
time after the Claim has arisen and has not been resolved by mediation.
In no event shall the demand for arbitration be made after the date
when institution of legal and/or equitable proceedings based on such
Claim would be barred by the applicable statute of limitations. Each
party to the arbitration will be entitled to be represented by counsel
and will have the opportunity to take such depositions and undertake
such other discovery as the arbitrator may determine to be appropriate.
The arbitrator shall have the authority to hear and grant a motion to
dismiss and/or for summary judgment, applying the standards governing
such motions under the Federal Rules of Civil Procedure. Each party
shall have the right to subpoena witnesses and documents for the
arbitration hearing. A court reporter shall record all arbitration
proceedings. The decision of the arbitrator may be entered and enforced
in any court of competent jurisdiction by either JWG or WS.
(d) Each party shall pay the fees of its attorneys the
expenses of its witnesses and any other expenses connected with
presenting its case (except as otherwise awarded by the arbitrator).
Other costs, including the fees of the Mediator or the arbitrator, the
cost of any record or transcript of the proceedings, and administrative
fees, shall be borne one-half (1/2) by WS and one-half (1/2) by JWG.
Should either party pursue any dispute or matter covered by this
Section 7.5 by any method other than said arbitration, the defending
party shall be entitled to recover from the moving party all damages,
costs, expenses, and attorneys' fees incurred by the defending party as
a result of such action. The provisions contained in this Section 7.5
shall survive the termination and/or expiration of this Agreement.
(e) Notwithstanding this Section 7.5 or anything else in this
Agreement, the resolution of any Disputed Matter shall be addressed
pursuant to the terms of ARTICLE 3 hereof and not pursuant to this
Section 7.5.
7.6 NOTICES. All notices, consents, requests, and demands to or upon
the respective parties hereto to be effective shall be in writing and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made (i) on the date delivered in person; (ii) on the date indicated on the
return receipt if mailed postage prepaid, by certified or registered U.S. Mail,
with return receipt requested; (iii) on the date transmitted by facsimile, if
sent by 5:00 P.M., Eastern Time, and confirmation of receipt thereof is
reflected or obtained; or (iv) if sent by Federal Express or other national
recognized overnight courier service or overnight express U.S. Mail, with
17
service charges or postage prepaid, then on the next business day after delivery
to the courier service or U.S. Mail (in time for and specifying next day
delivery). In each case (except for personal delivery) such notices, requests,
demands, and other communications shall be sent to a party at the following
addresses:
To JWG: 000 X. Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx
Facsimile: 000 000-0000
To WS: 00000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx
Facsimile: (303)
To Company: 000 X. Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx
Facsimile: 000 000-0000
Any party hereto may change its address for the purpose of this Agreement by
giving notice to the other parties at the addresses and in the manner provided
above.
7.7 GOVERNING LAW. The validity and effect of this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Florida, without regard to its principles of conflicts of laws.
7.8 PARTIAL INVALIDITY. If any term, covenant or provision of this
Agreement, or any part thereof, is found by any court of competent jurisdiction
to be invalid, illegal or unenforceable in any respect, the same shall not
affect the remainder of such term, covenant or provision, or any other terms,
covenants or provisions of this Agreement, all of which shall be given the
maximum effect possible without regard to the invalid, illegal or unenforceable
term, covenant or provision, or portion thereof, unless the result of any such
invalidity, illegality or unenforceability shall be to cause a material failure
of consideration to the party seeking to sustain the validity, legality or
enforceability of the subject provision. In lieu of any such invalid, illegal or
unenforceable provision, and absent any such material failure of consideration,
the parties hereto intend that there shall be substituted therefor as part of
this Agreement a term, covenant or provision as similar in terms to such
invalid, illegal or unenforceable term, covenant or provision, or part thereof,
as may be possible and be valid, legal and enforceable.
7.9 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
18
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.
7.10 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.
7.11 HEADINGS. The headings as to the contents of particular sections
or paragraphs 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.
7.12 ENTIRE AGREEMENT. This Agreement supersedes all prior discussions
and agreements between the parties with respect to the subject matter hereof,
and this Agreement, together with any documents that are attached hereto as
Exhibits and Schedules, 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 party or parties to be bound by such modification or amendment.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
19
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf on the day and year set forth across its
signature below.
JWGENESIS FINANCIAL CORP.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President
WOODY SPRINGS LLC
By: /s/ Xxxx Xxxxx
Name:__________________________
Title:_________________________
XXX.XXX, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Secretary
