Exhibit 99(h)
NONSOLICITATION AGREEMENT
THIS AGREEMENT is made and entered into this 12th day of June, 1998, by
and among JWGENESIS FINANCIAL CORP., a Florida corporation ("Company"), XX
XXXXXXX FINANCIAL SERVICES, Inc., a Florida corporation ("JWCFS"), and
XXXXXXXX X. XXXXX ("Employee"):
W I T N E S S E T H:
WHEREAS, Company, JWCFS, and others have entered into that certain
Amended and Restated Agreement and Plan of Combination dated as of March 9,
1998 (the "Combination Agreement"), pursuant to which, among other things,
JWCFS became a wholly-owned subsidiary of Company;
WHEREAS, during the course of Employee's prior relationship with JWCFS
and current and contemplated relationship with Company, Employee has learned
or will learn important Confidential Information (as defined below) related
to Company's Business (as defined below). Employee acknowledges that the
Confidential Information (i) has been or will be developed through JWCFS' or
Company's expenditure of substantial effort, time and money; and (ii)
together with relationships developed with clients and personnel, could be
used to compete unfairly with Company during the post-employment period.
Because Company's ability to engage in the Business (as defined below) on a
competitive basis depends, in part, on its Confidential Information and
client relationships, Company would not share such information and promote
Employee's relationship with clients if Company believed that such
information or relationships would be disclosed or used in competition with
Company, or if Company believed that Employee's relationship with Company's
personnel or clients would be used to the detriment of Company, and
Employee's performance and opportunities would suffer; and
WHEREAS, pursuant to Article 8 of the Combination Agreement, Employee
and JWCFS agreed to terminate Employee's existing employment agreement with
JWCFS, and Employee and Company agreed to enter into an employment agreement
and a nonsolicitation agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth and contained herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. TERMINATION OF EXISTING EMPLOYMENT ARRANGEMENTS. Employee and
JWCFS hereby agree to the termination of the existing Employment Agreement,
dated _____________ between Employee and JWCFS, and hereby terminate such
arrangements (the "Prior Arrangements").
2. CONSIDERATION. As consideration for terminating the Prior
Arrangements and for entering into this Agreement, Company shall pay to
Employee an aggregate amount of $4,270,000, payable as follows, (i) within
30 days of the date hereof, cash of $533,750; (ii) within 30 days of the
date hereof, a number of shares of Company common stock, par value $.001 per
share, subject to resale restrictions and forfeiture provisions as described
below, with a value (based on 80% of the average closing price on the
American Stock Exchange of the JWCFS common stock for the 10 consecutive
trading days immediately preceding the date hereof) of $2,135,000 (the
"Restricted Stock"), provided, however, that if Employee has sold Company
common stock or JWCFS Common Stock within the six-month period prior to the
date otherwise scheduled for such payment and delivery, then the Restricted
Stock will not be issued until the date that is six months after such prior
sale; and (iii) on each of January 15, 1999, 2000, and 2001, an additional
cash payment of $533,750. Twenty-five percent of the Restricted Stock will
vest on January 15, 2002 and an additional twenty-five percent on each
January 15 in 2003 through 2005. Notwithstanding the foregoing, if the
employment of Employee with Company is terminated or deemed to be terminated
by Company for any reason other than cause (as defined in the employment
agreement then in effect between Employee and Company, a "Discharge"), any
unpaid cash installment hereunder shall become immediately due and payable
to him within 30 days of such termination, all of the Restricted Stock shall
become immediately vested, and the forfeiture provisions with respect to
such shares will no longer be in force. All unvested shares of the
Restricted Stock will be subject to forfeiture at any time there is a
violation of this Agreement by Employee. If a change in control of Company
(as defined below) occurs that is not approved by Employee, then all of the
Restricted Stock shall become immediately vested, and the forfeiture
provisions with respect to such shares will no longer be in force. For
purposes hereof, "change of control" shall mean (a) the acquisition by a
person or entity other than Employee or a now existing shareholder of
Company (or any affiliate of Employee or such a shareholder of Company),
whether in one or several transactions, by exchange, merger, consolidation,
assignment, stock spin-off, stock split-up, or other transaction, of more
than thirty-five percent (35%) of the voting stock of Company, or of the
right to vote or to direct the voting of such percentage of voting stock; or
(b) a change in the membership of the Board of Directors of Company such
that a majority of the members are persons who are not Continuing Directors.
For purposes of this Agreement, a "Continuing Director" is a person who is a
member of the Board of Directors of Company on the date hereof or a person
who is elected as a director of Company upon the nomination by or approval
of a majority of the Continuing Directors in office.
3. CERTAIN OTHER DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meaning specified below:
(a) "BUSINESS" means securities brokerage, corporate finance, asset
management, capital formation, investment banking, financial advisory and
other financial services as being provided by Company on the date hereof
and, with the knowledge of Employee thereof, from time to time in the future
during the term of this Agreement.
(b) "CLIENT" means any Person (except broker-dealers and nationally
recognized institutional accounts) receiving (or who has arranged to
receive) Business services from Company that Employee, during the year prior
to the Termination Date, (i) provided Business services or solicited for
Business services on behalf of Company; (ii) supervised others providing or
soliciting Business services on behalf of Company; or (iii) about whom
Employee had Confidential Information.
(c) "CONFIDENTIAL INFORMATION" means information relating to Company,
Clients or the 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 that is not also a trade secret shall
constitute Confidential Information only for two years after the Termination
Date; provided, however, Confidential Information shall not include
information of which Employee had knowledge of prior to his employment by
JWCFS, Company, or its predecessors.
(d) "PERSON" includes any individual, corporation, limited liability
company, partnership, association, unincorporated organization or other
entity.
(e) "TERMINATION DATE" means the last day Employee is employed by
Company, whether the termination is voluntary or involuntary, with or
without cause.
4. TREATMENT OF CONFIDENTIAL INFORMATION. Employee shall protect
Confidential Information. Employee will not use, except in connection with
work for Company, and will not disclose to third parties during or after
Employee's employment, Confidential Information.
5. SOLICITATION OF CLIENTS. For a period of seven (7) years from the
date hereof, whether or not Employee is employed by Company, Employee will
not solicit for the benefit of any Person other than Company, Clients for
the purpose of providing services identical to or competitive with the
Business.
6. SOLICITATION OF COMPANY PERSONNEL. For a period of seven (7) years
from the date hereof, whether or not Employee is employed by Company,
Employee will not solicit for employment with another Person anyone who is
or was, at any time during the year prior to the Termination Date, a Company
employee or a registered representative licensed with or through Company.
7. RETURN OF MATERIALS. On the Termination Date or at any time
thereafter at Company's request, Employee will deliver promptly to Company
all materials, documents, plans, records, notes, or other papers and any
copies in Employee's possession or control relating in any way to the
Business, which at all times shall be the property of Company.
8. EARLIER TERMINATION OF AGREEMENT. If Company effects a Discharge
of Employee, Employee may terminate this Agreement and the nonsolicitation
provisions contained herein shall have no further effect.
9. INTERPRETATION; SEVERABILITY. Rights and restrictions in this
Agreement may be exercised and shall be applicable only to the extent they
do not violate any applicable laws, and are intended to be limited to the
extent necessary so they will not render this Agreement illegal, invalid or
unenforceable. If any term shall be held illegal, invalid or unenforceable
by a court of competent jurisdiction, the remaining terms shall remain in
full force and effect. This Agreement does not in any way limit Company's
rights under the laws of unfair competition, trade secret, copyright,
patent, trademark or any other applicable law(s), which are in addition to
and cumulative of rights under this Agreement.
10. RELIEF. The parties acknowledge that a breach or threatened
breach of any term of this Agreement by Employee would result in material
and irreparable damage and injury to Company, and that it would be difficult
or impossible to establish the full monetary value of such damage.
Therefore, Company shall be entitled to injunctive relief by a court of
appropriate jurisdiction in the event of Employee's breach or threatened
breach of this Agreement.
11. GENERAL AND MISCELLANEOUS. (a) Notices given under this
Agreement shall be deemed made if hand-delivered or mailed by registered or
certified mail to the addresses appearing at the end of this Agreement.
(b) This Agreement shall inure to the benefit of Company and its
successors and assignees, and shall be binding upon Employee and Employee's
heirs, administrators, executors, and personal representatives.
(c) Company's failure to insist upon strict performance of any term or
to exercise any right shall not be construed as a waiver or a relinquishment
for the future of such term or right, which shall continue in full force and
effect.
(d) This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Florida.
Signatures begin on next page.
IN WITNESS WHEREOF, the parties have executed this Agreement, as of the
date first written above.
"Company" "Employee"
JWGENESIS FINANCIAL CORP.
By:_________________________________ _____________________________
Xxxx X. Xxxxx XXXXXXXX X. XXXXX
Vice President
Employee Address:
0000 Xxxxxxxxx Xx.
Xxxx Xxxxx, Xxxxxxx 00000
"JWCFS"
XX XXXXXXX FINANCIAL SERVICES, INC.
By:________________________________
Xxxx X. Xxxxx
Executive Vice President
Company and JWCFS Address:
000 Xxxxx Xxxxxxx Xxxxxxx Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
