WOODSIDE CAPITAL PARTNERS V, LLC WOODSIDE CAPITAL PARTNERS V QP, LLC
WOODSIDE
CAPITAL PARTNERS V, LLC
WOODSIDE
CAPITAL PARTNERS V QP, LLC
00
Xxxx
Xxxx
Xxxxxxxxxx,
XX 00000
November
3, 2008
000
Xxxxx
Xxxxx Xxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxx, Chief Executive Officer
Ladies
and Gentlemen:
We
refer
to (a) that certain Securities Purchase and Loan Agreement, dated as of November
30, 2007 (as amended, modified, or supplemented from time to time, the
“Securities
Purchase Agreement”),
by
and among Woodside Capital Partners IV, LLC (“Woodisde
IV”),
Woodside Capital Partners IV QP, LLC (“Woodisde
IV QP”),
Woodside Capital Partners V, LLC, as
assignee of Woodlands Commercial Bank (f/k/a Xxxxxx Brothers Commercial
Bank)
(“Woodside
V”),
Woodside Capital Partners V QP, LLC, as
assignee of Woodlands Commercial Bank (f/k/a Xxxxxx Brothers Commercial
Bank)
(“Woodside
V QP”,
and
together with Woodside V, the “Assignees”)
(Woodside IV, Woodside IV QP, Woodside V and Woodside V QP are collectively
referred to herein as the “Holders”),
Woodside Agency Services, LLC, as Collateral Agent, and National Investment
Managers Inc. (the “Company”);
(b)
that certain Fee Agreement, dated as of November 30, 2007 (the “Fee
Agreement”)
among
the Company and the Holders; (c) that certain Contingent Interest Payment
Agreement, dated as of November 30, 2007 (the “CIP
Agreement”)
among
the Company and the Holders; and (d) those certain Warrants (evidenced by
Warrant Certificate Numbers WC-3, WC-6 and WC-9) issued to Woodlands
Commercial Bank (f/k/a Xxxxxx
Brothers Commercial Bank) (“Woodlands”)
on
November 30, 2007 and subsequently assigned by Woodlands to the Assignees and
reissued as Warrant Certificate Numbers WC-10, WC-11, WC-12, WC-13, WC-14 and
WC-15 (the “Assigned
Warrants”).
Capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Securities Purchase Agreement.
Notwithstanding
anything contained in the Securities Purchase Agreement, the Fee Agreement,
the
CIP Agreement, the Assigned Warrants or any other Financing Agreement to the
contrary, in the event that a Capital Transaction is consummated on or prior
to
May 4, 2009, each Assignee hereby agrees that it shall (a) surrender each of
the
Assigned Warrants held by it to the Company for cancellation and (b) forfeit
its
right to receive its portion of the CIP Amount (as defined in the CIP Agreement)
assigned to it by Woodlands
and
the
Fee Amount (as defined in the Fee Agreement) assigned to it by Woodlands.
For the
avoidance of doubt, the provisions of this paragraph shall only apply to the
Assigned Warrants and the portion of the CIP Amount and Fee Amount assigned
to
the Assignees by Woodlands
and
shall not apply to any other Warrants issued to any Holder or any other portion
of the CIP Amount and Fee Amount owing to any Holder.
Any
notice pursuant to this Agreement to the Company or any Assignee shall be in
writing and shall be deemed to have been duly given (a) if mailed by certified
or registered mail, postage prepaid, return receipt requested, when received,
(b) if by facsimile transmission, when electronic confirmation of receipt is
received, and (c) if by overnight courier, when receipted for, in each case
when
addressed to them at their respective addresses set forth above (or such other
address as any of them may designate by written notice to the others, in
accordance herewith).
THE
COMPANY HEREBY AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS
IN
AND OF THE COMMONWEALTH OF MASSACHUSETTS OVER ANY SUIT, ACTION OR PROCEEDING
EXISTING UNDER OR RELATING TO THIS LETTER AGREEMENT, AND CONSENTS THAT SERVICE
OF PROCESS WITH RESPECT TO ALL COURTS IN AND OF THE COMMONWEALTH OF
MASSACHUSETTS MAY BE MADE BY REGISTERED MAIL TO IT AT ITS ADDRESS DETERMINED
PURSUANT TO THE
IMMEDIATELY PRECEDING PARAGRAPH.
THIS
LETTER AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND MAY
BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS WHICH TOGETHER SHALL CONSTITUTE ONE
INSTRUMENT AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
DOMESTIC SUBSTANTIVE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE
THE
APPLICATION OF THE DOMESTIC SUBSTANTIVE LAWS OF ANY OTHER STATE, AND SHALL
BIND
AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS
AND ASSIGNS.
THE
COMPANY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION
OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS LETTER AGREEMENT,
ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY OF SUCH RIGHTS OR
OBLIGATIONS.
This
letter agreement sets forth the entire understanding of the parties hereto
with
respect to the matters set forth herein. The rights and remedies herein provided
are cumulative and not exclusive of any remedies provided by law or any other
agreement. The invalidity or unenforceability of any one or more sections of
this letter agreement shall not affect the validity or enforceability of its
remaining provisions. Captions are for the ease of reference only and shall
not
affect the meaning of the relevant provisions. The meanings of all defined
terms
used in this letter agreement shall be equally applicable to the singular and
plural forms of the terms defined.
This
letter agreement may be executed in any number of counterparts, and all such
counterparts shall together constitute but one instrument. In making proof
of
this letter agreement it shall not be necessary to produce or account for more
than one counterpart signed by each party hereto by and against which
enforcement hereof is sought. Any signature delivered by a party by facsimile
transmission or other electronic method of transmission (including without
limitation in “pdf” format) shall be deemed to be an original signature
hereto.
[Signature
page follows]
| Sincerely yours, | |
|
WOODSIDE
CAPITAL PARTNERS V, LLC
By:
Woodside Opportunity Partners II, LLC, its Manager
By:
Woodside Capital Management, LLC, its Manager
|
|
|
By:
/s/Xxxxx Xxx
Name:
Xxxxx Xxx
Title:
Executive Vice President
|
|
|
WOODSIDE
CAPITAL PARTNERS V QP, LLC
By:
Woodside Opportunity Partners II, LLC, its Manager
By:
Woodside Capital Management, LLC, its Manager
|
|
|
By:
/s/Xxxxx Xxx
Name:
Xxxxx Xxx
Title:
Executive Vice President
|
Acknowledged
and Agreed:
By: /s/Xxxxxx
Xxxx
Name:
Xxxxxx Xxxx
Title:
CEO
By:
Woodside Opportunity Partners, LLC, its Manager
By:
Woodside Capital Management, LLC, its Manager
By:/s/Xxxxx
Xxx
Name:
Xxxxx Xxx
Title:
Executive Vice President
WOODSIDE
CAPITAL PARTNERS IV QP, LLC
By:
Woodside Opportunity Partners, LLC, its Manager
By: Woodside
Capital Management, LLC, its Manager
By:/s/Xxxxx
Xxx
Name:
Xxxxx Xxx
Title:
Executive Vice President
WOODSIDE
AGENCY SERVICES, LLC,
as
Collateral Agent
By:
Woodside Capital Management, LLC, its Manager
By:/s/Xxxxx
Xxx
Name:
Xxxxx Xxx
Title:
Executive Vice President
