EXHIBIT 10.5
LIBERTY - RJF
TERMINATION AND RELEASE AGREEMENT
THIS TERMINATION AND RELEASE AGREEMENT (the "AGREEMENT") is made and
entered into this 17 day of December, 1996, by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCIAL
, INC., a Florida corporation ("RJF"), EAGLE ASSET MANAGEMENT, INC., a Florida
corporation ("EAGLE"), HERITAGE ASSET MANAGEMENT, INC., a Florida corporation
("HERITAGE") (RJF, Eagle and Heritage are collectively referred to herein as the
"RJF GROUP"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual ("▇▇▇▇▇▇"), and LIBERTY
INVESTMENT MANAGEMENT, INC., formerly known as Eagle Institutional Asset
Management, Inc., a Florida corporation (the "CORPORATION").
BACKGROUND AND PURPOSE
WHEREAS, RJF, Eagle, Heritage, ▇▇▇▇▇▇ and the Corporation are parties
to that certain Separation Agreement dated October 27, 1994, as amended on May
19, 1995, (the "SEPARATION AGREEMENT"), pursuant to which the parties agreed to
terminate ▇▇▇▇▇▇' full-time employment with Eagle, subject to the terms and
conditions set forth therein, and the Corporation agreed to pay to Eagle
"Institutional Customer Liquidated Damages" as such term is defined in the
Separation Agreement (herein, the "INSTITUTIONAL CUSTOMER LIQUIDATED DAMAGES"),
subject to the terms and conditions of the Separation Agreement; and
WHEREAS, the Corporation and RJF are parties to that certain Option and
Option Agreement dated as of December 31, 1994 (the "OPTION AGREEMENT"),
pursuant to which RJF was granted an option by the Corporation to acquire a
number of non-voting shares of common stock of the Corporation which, upon
exercise, would represent twenty percent (20%) of the issued and outstanding
common stock of the Corporation, subject to the terms and conditions set
forth therein (the "OPTION"); and
WHEREAS, the Corporation has agreed to sell substantially all of the
assets of the Corporation (collectively, the "ASSETS") to ▇▇▇▇▇▇▇, Sachs & Co.,
a New York limited partnership ("GOLDMAN") pursuant to the terms and conditions
of an Agreement to Acquire the Business of Liberty Investment Management,
dated October 23, 1996 (the "ACQUISITION AGREEMENT"), in exchange for certain
payments to be made by Goldman to the Corporation as described in the
Acquisition Agreement, and
WHEREAS, the Corporation has furthermore agreed to purchase the Option
from RJF, AND RJF has agreed to sell the Option to the Corporation; and
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WHEREAS, pursuant to the terms and conditions set forth herein, the
Corporation has agreed to prepay the Institutional Customer Liquidated Damages
due under the Separation Agreement, and in consideration of such prepayment
Eagle has agreed to waive the right to receive any further Institutional
Customer Liquidated Damages under the Separation Agreement and, accordingly,
RJF, Eagle, Heritage, ▇▇▇▇▇▇ and the Corporation have agreed to terminate the
Separation Agreement subject to and effective as of the closing of the
transactions described in the Acquisition Agreement; and
WHEREAS, RJF and the Corporation have agreed to terminate the Option
Agreement, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties do hereby agree as follows:
AGREEMENT
1 . PAYMENT OF INSTITUTIONAL CUSTOMER LIQUIDATED DAMAGES AND
TERMINATION OF SEPARATION AGREEMENT. Subject to and in accordance with the terms
and conditions of this Agreement, the Corporation agrees to pay to RJF the
amounts described in this Section 1 (the "TOTAL PAYMENT"), which shall be
allocated as described in Section 5 of this Agreement:
1.1 The Corporation shall pay to RJF, on behalf of Eagle, the
installments due on January 15, 1997, and April 15, 1997, for the
Institutional Customer Liquidated Damages (the "1996 INSTALLMENTS"),
such installments to be paid on or before their respective due dates in
accordance with and computed pursuant to the terms and conditions of
the Separation Agreement. The 1996 Installments shall represent the
payments due to Eagle pursuant to Section 1.2 of the Separation
Agreement for investment advisory services rendered by the Corporation
through December 31, 1996. Any of the 1996 Installments which are paid
prior to the due date described in the Separation Agreement may be
discounted by the Corporation on a 5% per annum discounted basis.
1.2 Subject to the provisions of Section 1.3 hereof, the
Corporation shall pay to RJF (for itself and on behalf of any member of
the RJF Group, including Eagle, who is owed payments under the
Separation Agreement or under the Option) one-half (1/2) of the "Net
Proceeds" to be received by the Corporation as the "Initial Purchase
Price" pursuant to the terms and conditions of the Acquisition
Agreement. For purposes of this Agreement, the term "Net Proceeds"
shall mean (i) the gross proceeds paid to the Corporation by Goldman as
the "Initial Purchase Price" described in Section 2.5(a) of the
Acquisition Agreement to be paid for the Assets of the Corporation,
MINUS (ii) any and all fees, costs and expenses associated with the
sale of the Assets under the Acquisition Agreement (other than the
amounts to be paid by the Corporation to RJF under this Agreement),
but not in excess of $450,000.
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1.3 Notwithstanding the provisions of Section 1.2 above, to the
extent the "Initial Purchase Price" of $61,743,270 is adjusted as
described in Section 2.5(a) of the Acquisition Agreement, RJF and the
Corporation agree to share in any such adjustment as follows:
(a) To the extent any such adjustment to the "Initial Purchase
Price" of $61,743,270 is equal to or less than $2,400,000, such
adjustment shall be allocated to and solely borne by RJF; and
(b) To the extent such adjustment to the "Initial Purchase
Price" of $61,743,270 exceeds $2,400,000, the excess of such
adjustment over $2,400,000 shall be borne on an equal basis
(50%-50%) by RJF and the Corporation.
1.4 To the extent the adjustments described in Section 1.3 above
are recaptured by the Corporation pursuant to Section 2.5(b) or Section
2.5(c) of the Acquisition Agreement, the Corporation shall pay a
portion of such recaptured amount to RJF as follows: (i) first, such
recaptured amount shall be allocated to the Corporation and RJF to the
extent of any adjustment previously allocated pursuant to the
provisions of Section 1.3(b) above, and (ii) then, the balance of any
such recaptured amount, if any, shall be allocated to RJF to the extent
of any adjustment previously allocated to RJF pursuant to the
provisions of Section 1.3(a) above.
1.5 By way of example only, the "Initial Purchase Price" is
currently specified to be $61,743,270. Therefore, assuming there were
no adjustments to the "Initial Purchase Price," RJF and the Corporation
would each receive $30,871,635 prior to any fees, costs or expenses as
described above. If the "Initial Purchase Price" is adjusted pursuant
to Section 2.5(a) of the Acquisition Agreement by $2,000,000, then RJF
would receive $28,871,635 and the Corporation would receive $30,871,635
prior to any fees, costs or expenses as described above. If the
"Initial Purchase Price" is adjusted by $3,000,000, then RJF would
receive $28,171,635 and the Corporation would receive $30,571,635. If
the "Initial Purchase Price" is adjusted by $3,000,000 pursuant to
Section 2.5(a) of the Acquisition Agreement, and if $1,500,000 of such
adjustment were recaptured pursuant to Section 2.5(c) of the
Acquisition Agreement, then such $1,500,000 of recapture amount would
be paid $1,200,000 to RJF and $300,000 to the Corporation.
1.6 Except for the 1996 Installments, which shall be paid as
described in Section 1.1 hereof, any amount allocated to the payment
of the Institutional Customer Liquidated Damages as described in
Section 5 hereof (the "LIQUIDATED DAMAGES PAYMENT") shall be paid by
the Corporation to RJF prior to or simultaneously with the closing of
the transactions described in the Acquisition Agreement. The balance
of the Total Payment due to RJF hereunder, after deducting the payment
of the 1996 Installments and the Liquidated Damages Payment (such
balance is hereinafter referred to as the
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"OPTION PAYMENT") shall be paid by the Corporation to RJF
simultaneously with the closing of the transactions described in the
Acquisition Agreement.
2. PURCHASE OF OPTION AND TERMINATION OF OPTION AGREEMENT. On the
Closing Date, RJF hereby agrees to sell the Option, and the Corporation hereby
agrees to purchase the Option. Effective as of the Closing Date, and subject to
the performance by the Corporation of its obligations hereunder, RJF and the
Corporation agree that the Option Agreement shall be terminated in its
entirety and shall be considered null, void and of no further force or effect
whatsoever.
3. CLOSING DATE. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall occur simultaneously on the date of the closing
of the transactions described in the Acquisition Agreement (the "CLOSING DATE").
4. DOCUMENTS TRANSFERRED AT CLOSING.
4.1 Upon the Closing Date at the Closing, the Corporation will
deliver to RJF, on behalf of Eagle, the Liquidated Damages Payment (to
the extent not previously paid) by wire transfer or certified funds.
The RJF Group shall provide documentation reasonably safisfactory to
▇▇▇▇▇▇ and the Corporation to the effect that all obligations under the
Separation Agreement have been fulfilled and ▇▇▇▇▇▇, the Corporation
and the Corporation's employees are thereby released of and from any
and all restrictions under the terms of the Separation Agreement.
4.2 Upon the Closing Date at the Closing, RJF shall transfer, sell
and assign the Option to the Corporation pursuant to such documents and
instruments of transfer as are reasonably acceptable to the Corporation
and the Corporation shall pay to RJF the Option Payment by wire
transfer or by certified funds.
4.3 The Corporation and the RJF Group shall provide such other
documents, agreements, certificates or instruments as may be
reasonably requested by any other party hereto in order to fully
consummate the transactions described in this Agreement.
5. ALLOCATION OF PAYMENTS. The parties hereto agree that the 1996
Installments and an amount equal to the lesser of (x)(i) the Total Payment,
MINUS (ii) the 1996 Installments, and MINUS (iii) $275,000, or (y) $25,000,000,
shall be allocated to the prepayment of the Institutional Customer Liquidated
Damages under the Separation Agreement. The balance of the Total Payment
shall be allocated to the Option. It is the intent of the parties hereto that
the payment of the Institutional Customer Liquidated Damages hereunder,
excluding, the 1996 Installments, is to be allocated for the twelve
payments due from the Corporation to RJF for investment advisory services to be
rendered by the Corporation during the period beginning on January 1, 1997,
and ending on December 31, 1999.
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6. REPRESENTATIONS AND WARRANTIES.
6.1 CORPORATION. The Corporation hereby represents and warrants to the
other parties hereto as follows:
(a) The Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Florida and has all requisite power and authority, corporate and
otherwise, to own, lease, and operate its properties and carry on
its business as and in the places where such properties are now
owned, leased or operated or such business is now being conducted.
(b) The Corporation has all requisite capacity, power and
authority, corporate or otherwise, to enter into this Agreement and
to assume and perform its obligations hereunder. The execution and
delivery of this Agreement and the performance by the Corporation
of its obligations hereunder have been duly and validly authorized
by all necessary corporate action and no further action or
approval, corporate or otherwise, is required in order to
constitute this Agreement as a valid and binding obligation of the
Corporation, enforceable in accordance with its terms. The
execution and delivery of this Agreement and the performance by
the Corporation of its obligations hereunder (i) do not and will
not conflict with or violate any provision of the Articles of
Incorporation or By-Laws of the Corporation, (ii) do not and will
not conflict with or result in any breach of any condition or
provisions of, or constitute a default under or give rise to any
right of termination, cancellation or acceleration of any
contract, mortgage, lien, lease, agreement, indenture,
instrument, judgment or decree to which the Corporation is a party
or which is binding upon the Corporation, and (iii) does not and
will not result in the creation or imposition of any lien, charge,
pledge, security interest or other encumbrance upon the
Corporation.
(c) The Corporation is acquiring the Option for its own account
for investment purposes only within the meaning of the Securities
Act of 1933, with no intention of assigning, selling, or otherwise
transferring the Option or any participation or interest therein
and with no view to the sale or distribution thereof in violation
of any Federal or State securities laws.
6.2 REPRESENTATIONS AND WARRANTIES OF THE RJF GROUP. Each member
of the RJF Group. Jointly and severally, hereby represents and warrants
to the Corporation and to ▇▇▇▇▇▇, as follows:
(a) Each member of the RJF Group is a corporation duly
organized, validly existing, and in good standing under the laws of
its respective state of incorporation and each such member has all
requisite power and authority, corporate and otherwise, to own,
lease, and operate its properties and carry on its
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business as and in the places where such properties are now owned, leased or
operated or such business is now being conducted.
(b) The Option and the right to receive payments under the
Separation Agreement for the Institutional Customer Liquidated
Damages are owned solely by RJF and Eagle, respectively, free and
clear of any and all security interests, liens, pledges, claims,
charges, escrows, encumbrances, rights of first refusal, security
interests or other contracts, and RJF has the unrestricted right to
sell the Option hereunder and to accept prepayment on behalf of
Eagle, in full satisfaction of all Institutional Customer
Liquidated Damages owed under the Separation Agreement.
(c) Each member of the RJF Group has all requisite capacity,
power and authority, corporate or otherwise, to enter into this
Agreement and to assume and perform its obligations hereunder. The
execution and delivery of this Agreement and the performance by
each such member of the RJF Group of its obligations hereunder
have been duly and validly authorized by all necessary corporate
action on the part of each member of the RJF Group and no further
action or approval, corporate or otherwise, is required in order to
constitute this Agreement as a valid and binding obligation of each
member of the RJF Group, enforceable in accordance with its terms.
The execution and delivery of this Agreement and the performance by
each member of the RJF Group of its obligations hereunder (i) do
not and will not conflict with or violate any provisions of the
Articles of Incorporation or By-Laws of any member of the RJF
Group, (ii) do not and will not conflict with or result in any
breach of any condition or provisions of, or constitute a default
under or give rise to any right of termination, cancellation or
acceleration of any contract, mortgage, lien, lease, agreement,
indenture, instrument, judgment or decree to which a member of the
RJF Group is a party, and (iii) does not and will not result in the
creation or imposition of any lien, charge, pledge, security
interest or other encumbrance upon the Option or any of the rights
of RJF to payments of Institutional Customer Liquidated Damages
under the Separation Agreement.
(d) RJF has had access to such information concerning the
Corporation as RJF has deemed necessary in order for RJF to enable
it to make an informed decision concerning its disposition of the
Option and its acceptance of the prepayments for the Institutional
Customer Liquidated Damages due to RJF under the Separation
Agreement. RJF has consulted with its investment, accounting, legal
and tax advisors concerning the transactions described herein and
is sufficiently experienced in financial and business matters to
fully evaluate the risks and merits of the transactions described
in this Agreement. RJF understands that no Federal or state
agency has made any finding, or determination as to the fairness of
the terms and conditions of this Agreement as it relates to RJF.
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7. INDEMNITY.
7.1 Notwithstanding the provisions of Section 1.2 hereof, RJF
hereby agrees to indemnify and hold the Corporation and ▇▇▇▇▇▇ harmless
of and from 35% of any payments required to be made by the Corporation
or ▇▇▇▇▇▇ in connection with the indemnity provisions contained in
the Acquisition Agreement as described in Article VIII thereof but not
in excess of the Option Payment; provided, however, that in no event
shall RJF be required to indemnify the Corporation or ▇▇▇▇▇▇ if such
indemnification obligation arises as a result of the gross negligence
or willful misrepresentation by the Corporation or ▇▇▇▇▇▇ under the
Acquisition Agreement.
7.2 In the event ▇▇▇▇▇▇ or the Corporation seek indemnity from RJF
pursuant to the provisions of Section 7.1, the party seeking such
indemnification (the "INDEMNIFIED PARTY") shall give written
notice to RJF of the loss or potential loss. Written notice to RJF of
the existence of the loss or potential loss shall be given by the
Indemnified Party promptly after notice of the loss or potential loss;
provided, however, that the Indemnified Party shall not be foreclosed
from seeking indemnification pursuant to Section 7.1 by any failure to
provide prompt notice of the existence of a loss or potential loss
except and only to the extent that RJF actually incurs an incremental
out-of-pocket expense or otherwise has been materially damaged or
prejudiced as a result of such delay.
7.3 Except as otherwise provided herein, RJF may elect to defend at
RJF's own expense and by RJF's own counsel (which counsel shall be
reasonably satisfactory to the Indemnified Party), any claim giving
rise to a loss or potential loss to the extent of RJF's
indemnification obligation hereunder. If RJF elects to defend the
potential claim it shall, within thirty (30) days after receiving
notice of the claim, notify the Indemnified Party of RJF's intent to
defend and the Indemnified Party shall cooperate, at the expense of
RJF, in the defense of the third party claim. Such cooperation shall
include, if requested by RJF, not opposing RJF's intervention in any
judicial actions concerning the third party claim. If RJF elects not
to defend against a third-party claim or fails to notify the
Indemnified Party of its election to do so as herein provided or
otherwise abandons the defense of the third party claim (i) the
Indemnified Party may pay (without prejudice of any of its rights as
against RJF), compromise or defend the third party claim and (ii) the
costs and expenses of the Indemnified Party incurred in connection
therewith to the extent indemnification is due hereunder shall be
indemnifiable by RJF pursuant to the terms of this Agreement.
Notwithstanding anything to the contrary contained herein, in
connection with any third party claim in which the Indemnified Party
and RJF shall reasonably conclude based upon the written advice of
their respective counsel, that (x) there is a conflict of interest
between RJF and the Indemnified Party in the conduct of the defense of
the claim or (y) there are specific defenses available to the
Indemnified Party which are different from or additional to those
available to RJF and which could be materially adverse to RJF, then
the Indemnified Party shall have the right to assume and direct the
defense of the third party claim as it relates to the Indemnified
Party. Notwithstanding, the
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foregoing, the Indemnified Party shall have the right to settle or
compromise any claim upon providing written notice to RJF unless and
only to the extent that the settlement of the claim is proven by RJF in
a court of competent jurisdiction to have been unreasonable and the
claim was without merit. In any other event, RJF and the Indemnified
Party may each participate, at their own expense, in the defense of the
third party claim. RJF and the Indemnified Party shall cooperate with
each other in the defense of any claim in all respects including
making reasonably available to the other party any personnel or any
books, records or other documents within their control which are
reasonably necessary or appropriate for the defense, subject to the
receipt of appropriate confidentiality agreements or such other
agreements as counsel to the parties may deem reasonably necessary in
order to ensure that the attorney-client privileges applicable to a
party are not inadvertently waived.
8. MUTUAL RELEASE. Except for (i) the obligations of the parties as
described herein, and (ii) subject to verification by RJF that all obligations
of the Corporation under the Separation Agreement which have accrued prior to
the date hereof (the "Prior Obligations") have been fully paid in accordance
with the terms thereof (which PRIOR OBLIGATIONS shall not be released until
fully paid as described in the Separation Agreement), each member of the RJF
Group, on the one hand, and the Corporation and ▇▇▇▇▇▇, on the other hand, on
behalf of themselves, and their successors and assigns, jointly and severally,
hereby mutually agree to fully remise, release, acquit and forever discharge one
another, and each of their respective successors and assigns, their boards of
directors, shareholders, officers, employees and agents, and their respective
partners, agents, employees, stockholders, officers, successors and assigns,
jointly and severally, of and from any and all debts, costs, liabilities,
obligations, losses, suits, controversies, disputes, rights, claims, demands,
damages, actions and causes of action of any nature whatsoever, whether arising
at law or in equity, which any of the foregoing parties may have had, may now
have, or may have, or may hereafter have, against one another by reason of any
matter, cause, happening, thing, document, agreement, partnership agreement,
separation agreement, option agreement, lease, note, instrument or any other
matter whatsoever, from the beginning of time, to and including this date
hereof. Without limiting the foregoing, after payment of the Total Payment, and
subject to verification by RJF that the Prior Obligations have been paid in full
(which verification RJF agrees to complete within six (6) months after the
Closing Date), the parties hereto agree that the Corporation shall have no
further obligation to RJF or any member of the RJF Group, including Eagle, to
make any other payments whatsoever under this Agreement, the Separation
Agreement, the Option Agreement or any other agreement between the parties
hereto. Effective as of the Closing Date, and subject to the obligations of the
parties hereto to consummate the transactions described herein, the parties
hereto agree that the Separation Agreement shall be terminated in its entirety
and shall be considered null, void and of no further force or effect whatsoever.
9. OTHER AGREEMENTS OF THE PARTIES.
9.1 The Corporation agrees to provide RJF with such documents,
schedules and financial information as RJF shall reasonably request in
connection with the verification
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by RJF that all amounts due to it or Eagle under the provisions of the
Separation Agreement and this Agreement shall have been fully paid.
9.2 RJF and Eagle agree that, prior to December 31, 1999, neither
RJF nor Eagle shall amend their respective articles of incorporation or
bylaws in any way or manner so as to limit the indemnity available to
officers and directors (or former officers and directors) of RJF and
Eagle and shall ensure that ▇▇▇▇▇▇ and any employees of the Corporation
who would be entitled to indemnification under the provisions of the
current articles of incorporation and bylaws of RJF, Eagle or Heritage
continue in full force and effect. Until December 31, 1999, Eagle will
maintain "Directors and Officers Errors and Omissions Liability
Insurance" in an amount of not less that $10,000,000 and will cause
such policies to include as "Insureds" any past directors or officers
as is provided presently by Eagle pursuant to its insurance policy with
Gulf Underwriters Insurance Company.
9.3 RJF shall indemnify and hold ▇▇▇▇▇▇ harmless of and from any
and all costs, expenses, liability, damages or other impositions
whatsoever (including reasonable attorneys' fees) incurred by ▇▇▇▇▇▇
with respect to that certain litigation styled ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC., ET AL; NASD Arbitration No.
93-01860, and any other suits or actions filed by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
10. AUTOMATIC TERMINATION. In the event of the termination of the
Acquisition Agreement pursuant to the terms thereof, this Agreement shall
automatically terminate and shall be deemed null, void and of no further force
or effect whatsoever effective as of the date of such termination of the
Acquisition Agreement, and the parties hereto acknowledge and agree that the
Separation Agreement and the Option Agreement shall remain in full force and
effect in the event of such termination of the Acquisition Agreement.
11. COOPERATION. The RJF Group hereby agrees to cooperate and to do all
things necessary in order to assist the Corporation in obtaining the approval of
any and all mutual funds and accounts controlled by the RJF Group to the
assignment of the investment advisory agreements or subadvisory agreements
from the Corporation to Goldman; including, without limitation, the Heritage
Capital Appreciation Trust, the RJF Profit Sharing Plan and Trust and the United
Way of Pinellas County, Inc. Endowment Fund and Reserve Fund.
12. WAIVER. In connection with the termination of the Separation
Agreement, each party to this Agreement hereby agrees to waive and fully
discharge any and all rights and continuing obligations whatsoever existing
under the Separation Agreement effective as of the date of such termination,
including, without limitation, any and all restrictive covenants and
nonsolicitation provisions contained therein (including, without limitation,
Section 4.2, Section 4.3 and Section 9.1 of the Separation Agreement).
13. NOTICES. All notices or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and
shall be deemed to have been properly given
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or made, when deposited in the United States mail, postage prepaid, addressed to
the parties at their respective addresses shown on the signature pages hereof.
No other method of providing notice is hereby precluded, provided that (i) such
method is a reasonably acceptable, commercially utilized means of providing
notices (such as Federal Express, Purolator or United States Mail Next Day
Delivery, or if delivered by hand-delivery), (ii) such method of delivery
provides the sender with a receipt or other evidence that the person to whom the
notice has been sent has received same, and (iii) the postage or any charge
required to be paid in connection with such notice is prepaid by the sender.
14. GOVERNING LAW. The validity, construction, interpretation and
enforceability of this Agreement shall be governed by the laws of the State of
Florida.
15. NO JOINT VENTURE. The provisions of this Agreement shall not be
deemed to create any type of joint venture, partnership or other joint
enterprise between ▇▇▇▇▇▇ and the Corporation, on the one hand, and RJF, Eagle
or Heritage, on the other hand.
16. COUNTERPARTS AND ORIGINALS. The parties may execute this Agreement
in counterparts. Each executed counterpart shall be deemed an original, and all
of them, together, shall constitute the same agreement.
17. SUCCESSORS AND ASSIGNS. This Agreement is not assignable by any
party without the prior written consent of the other parties, and any attempted
assignment without the prior written consent of the other parties shall be
invalid and unenforceable against the other parties. Subject to the foregoing,
this Agreement is binding upon, and inures to the benefit of, the respective
heirs, authorized assignees, successors and personal representatives of the
parties to it.
18. HEADINGS, CAPTIONS AND PRONOUNS. The section headings, captions or
abbreviations are included solely for convenient reference and shall not control
the meanings or interpretation of any of the provisions of this Agreement. As
used herein, words in the singular include the plural and the words in the
masculine include the feminine and neuter gender, and vice versa whenever the
context so requires.
19. WAIVER. No waiver of any breach or default under this Agreement
shall be deemed to be a waiver of any subsequent breach or default.
20. FURTHER ASSURANCES. Each of the parties hereto agrees to take such
action as may be reasonably requested by any other party hereto in order to more
effectively carry out the terms and conditions of this Agreement or any
exhibit hereto.
21. INCORPORATION OF RECITALS. The recitals set forth at the beginning
of this Agreement are hereby incorporated into this Agreement by this
reference and this Agreement shall be interpreted with reference to such
recitals.
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22. SEVERABILTY. This Agreement shall not be severable in any way, but
if any provision shall be held to be invalid, the invalidity shall not affect
the validity of the remainder of this Agreement and the remainder of this
Agreement shall continue in full force and effect.
23. COSTS AND EXPENSES. Each of the parties hereto shall bear its own
costs and expenses with respect to the negotiation, execution and performance of
this Agreement and all exhibits hereto, including, without limitation, the costs
and expenses of each party's attorneys, accountants and financial advisors.
24. ANNOUNCEMENTS. Except for such statements and regulatory filings as
may be required by any applicable law, and except as may be required in order to
allow a party to comply with the terms and conditions of this Agreement, no
party shall make any public statements or disclose the terms and conditions of
this Agreement including, without limitation, making any press releases with
respect to this Agreement and the transactions contemplated herein without the
prior written consent of the other parties hereto (which consent may not be
unreasonably withheld).
* * *
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IN WITNESS WHEREOF, have executed this Termination and Release
Agreement the day and year first above written.
Attest: ▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman
Assistant Secretary
"RJF"
(Corporate Seal)
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attest: EAGLE ASSET MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- --------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, Secretary ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman
"Eagle"
(Corporate Seal)
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Witnesses:
HERITAGE ASSET MANAGEMENT, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman
--------------------------
(Type or Print Name)
(Corporate Seal)
/s/ ▇▇▇▇▇▇ GESUALDA
-------------------------------
Name: ▇▇▇▇▇▇ Gesualda
-------------------------- "Heritage"
(Type or Print Name)
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
[Signature Lines Continued on Next Page]
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Witnesses:
/s/ ▇▇▇▇ ▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ------------------------------
Name ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
(Type or Print Name)
"▇▇▇▇▇▇"
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
------------------------
(Type or Print Name)
Address: Two ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attest: LIBERTY INVESTMENT
MANAGEMENT, INC., formerly known as
Eagle Institutional Asset Management,
Inc., a Florida corporation
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- ------------------------------
Sydney ▇. ▇▇▇▇, Secretary W ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
(Corporate Seal) "Corporation"
Address: Suite 500
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
[Signature Page to termination and Release Agreement]
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