ESCROW AGREEMENT
This Agreement is dated as of the 3rd day of October, 2006 among National
Investment Managers Inc., a Florida corporation (the "Company"), THE LAMCO
Group, Inc. ("LAMCO"), and Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP (the "Escrow
Agent"):
W I T N E S S E T H:
WHEREAS, the Company and LAMCO have entered into a Stock Purchase
Agreement (the "Purchase Agreement") pursuant to which LAMCO agreed to transfer
all of the issued and outstanding shares in LAMORIELLO & CO., INC., CIRCLE
PENSION, INC., AND SOUTHEASTERN PENSION SERVICES, INC. (collectively, Lamoriello
& Co., Inc., Circle Pension, Inc., and Southeast Pensions Services, Inc. are
hereinafter referred to as the "Companies") in consideration of a payment of
$1,450,000 in cash, the extinguishment of debt in the aggregate amount of
$1,750,000 and the issuance of 3,000,000 shares of common stock of the Company
(the "Purchase Price Shares");
WHEREAS, the parties hereto require LAMCO to deliver 1,700,000 of the
Purchase Price Shares (the "Escrow Shares") to the Escrow Agent to be held in
escrow and released by the Escrow Agent in accordance with the terms and
conditions of this Agreement; and
WHEREAS, the Escrow Agent is willing to serve as escrow agent pursuant to
the terms and conditions of this Agreement;
NOW THEREFORE, the parties agree as follows:
ARTICLE I
INTERPRETATION
1.1. Entire Agreement. This Agreement along with the Purchase Agreement
(and exhibits and documents delivered thereunder) and constitute the entire
agreement between the parties and supersede all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties. There are no warranties, representations and other agreements made by
the parties in connection with the subject matter hereof except as specifically
set forth in this Agreement.
1.2. Extended Meanings. In this Agreement words importing the singular
number include the plural and vice versa; words importing the masculine gender
include the feminine and neuter genders. The word "person" includes an
individual, body corporate, partnership, trustee or trust or unincorporated
association, executor, administrator or legal representative.
1.3. Waivers and Amendments. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by all parties, or, in the
case of a waiver, by the party waiving compliance. Except as expressly stated
herein, no delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any right, power or privilege hereunder preclude any
other or future exercise of any other right, power or privilege hereunder.
1.4. Headings. The division of this Agreement into articles, sections,
subsections and paragraphs and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation of this
Agreement.
1.5. Law Governing this Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of laws. Any action brought by either party against the
other concerning the transactions contemplated by this Agreement shall be
brought only in the state courts of New York or in the federal courts located in
the state of New York. All parties and the individuals executing this Agreement
and other agreements on behalf of the Company agree to submit to the
jurisdiction of such courts and waive trial by jury. The prevailing party (which
shall be the party which receives an award most closely resembling the remedy or
action sought) shall be entitled to recover from the other party its reasonable
attorney's fees and costs. In the event that any provision of this Agreement or
any other agreement delivered in connection herewith is invalid or unenforceable
under any applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any such provision which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision of any agreement.
1.6. Specific Enforcement, Consent to Jurisdiction. The Company and LAMCO
acknowledge and agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injuction or injunctions to prevent or cure
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof or thereof, this being in addition to any other
remedy to which any of them may be entitled by law or equity. Each of the
Company and LAMCO hereby waives, and agrees not to assert in any such suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. Nothing in this Section shall affect or limit any right to serve
process in any other manner permitted by law.
ARTICLE II
DELIVERIES TO THE ESCROW AGENT
2.1. Company Deliveries. On the Closing Date, the Company shall deliver to
the Escrow Agent the executed Purchase Agreement.
2.2. LAMCO Deliveries. On the Closing Date, LAMCO shall deliver to the
Escrow Agent the Escrow Shares, the executed Purchase Agreement and ten (10)
medallion guaranteed stock powers executed in blank.
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2.3. Intention to Create Escrow Over the Escrow Shares. LAMCO and Company
intend that the Escrow Shares shall be held in escrow by the Escrow Agent
pursuant to this Agreement for their benefit as set forth herein.
2.4. Escrow Agent to Deliver the Escrow Shares. The Escrow Agent shall
hold and release the Escrow Shares only in accordance with the terms and
conditions of this Agreement.
ARTICLE III
RELEASE OF THE ESCROW SHARES
3.1. Release of Escrow. Subject to the provisions of Section 4.2, the
Escrow Agent shall release the Escrow Shares as follows:
(a) In accordance with joint written instructions executed by both
the Company and the Seller and delivered to Escrow Agent.
(b) Notwithstanding the above, upon receipt by the Escrow Agent of a
final and non-appealable judgment, order, decree or award of a court of
competent jurisdiction (a "Court Order"), the Escrow Agent shall deliver
the Escrow Shares and related medallion guaranteed stock powers executed
in blank in accordance with the Court Order. Any Court Order shall be
accompanied by an opinion of counsel for the party presenting the Court
Order to the Escrow Agent (which opinion shall be satisfactory to the
Escrow Agent) to the effect that the court issuing the Court Order has
competent jurisdiction and that the Court Order is final and
non-appealable.
3.2. Acknowledgement of Company and LAMCO; Disputes. The Company and LAMCO
acknowledge that the only terms and conditions upon which the Escrow Shares and
the related medallion guaranteed stock powers executed in blank are to be
released are set forth in Sections 3 and 4 of this Agreement. The Company and
LAMCO reaffirm their agreement to abide by the terms and conditions of this
Agreement with respect to the release of the Escrow Shares and the related
medallion guaranteed stock powers executed in blank. Any dispute with respect to
the release of the Escrow Shares and the related medallion guaranteed stock
powers executed in blank shall be resolved pursuant to Section 4.2 or by
agreement between the Company and LAMCO.
ARTICLE IV
CONCERNING THE ESCROW AGENT
4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's
duties and responsibilities shall be subject to the following terms and
conditions:
(a) LAMCO and Company acknowledge and agree that the Escrow Agent
(i) shall not be responsible for or bound by, and shall not be required to
inquire into whether either LAMCO or Company is entitled to receipt of the
Escrow Shares and the related medallion guaranteed stock powers executed in
blank pursuant to any other agreement or otherwise; (ii) shall be obligated only
for the performance of such duties as are specifically assumed by the Escrow
Agent pursuant to this Agreement; (iii) may rely on and shall be protected in
acting or refraining from acting upon any written notice, instruction,
instrument, statement, request or document furnished to it hereunder and
believed by the Escrow Agent in good faith to be genuine and to have been signed
or presented by the proper person or party, without being required to determine
the authenticity or correctness of any fact stated therein or the propriety or
validity or the service thereof; (iv) may assume that any person believed by the
Escrow Agent in good faith to be authorized to give notice or make any statement
or execute any document in connection with the provisions hereof is so
authorized; (v) shall not be under any duty to give the property held by Escrow
Agent hereunder any greater degree of care than Escrow Agent gives its own
similar property; and (vi) may consult counsel satisfactory to Escrow Agent, the
opinion of such counsel to be full and complete authorization and protection in
respect of any action taken, suffered or omitted by Escrow Agent hereunder in
good faith and in accordance with the opinion of such counsel.
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(b) LAMCO and Company acknowledge that the Escrow Agent is acting
solely as a stakeholder at their request and that the Escrow Agent shall not be
liable for any action taken by Escrow Agent in good faith and believed by Escrow
Agent to be authorized or within the rights or powers conferred upon Escrow
Agent by this Agreement. LAMCO and Company, jointly and severally, agree to
indemnify and hold harmless the Escrow Agent and any of Escrow Agent's partners,
employees, agents and representatives for any action taken or omitted to be
taken by Escrow Agent or any of them hereunder, including the reasonable fees of
outside counsel and other costs and expenses of defending itself against any
claim or liability under this Agreement, except in the case of gross negligence
or willful misconduct on Escrow Agent's part committed in its capacity as Escrow
Agent under this Agreement. The Escrow Agent shall owe a duty only to LAMCO and
Company under this Agreement and to no other person.
(c) LAMCO and Company jointly and severally agree to reimburse the
Escrow Agent for outside counsel fees, but only to the extent jointly authorized
by Lamco and the Company hereunder and incurred in connection with the
performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent
hereunder by giving five (5) days prior written notice of resignation to LAMCO
and the Company. Prior to the effective date of the resignation as specified in
such notice, LAMCO and Company will issue to the Escrow Agent joint instructions
authorizing delivery of the Escrow Shares and the related medallion guaranteed
stock powers executed in blank to a substitute escrow agent selected by LAMCO
and Company. If no successor escrow agent is named by LAMCO and Company, the
Escrow Agent may apply to a court of competent jurisdiction in the State of New
York for appointment of a successor escrow agent, and to deposit the Escrow
Shares and the related medallion guaranteed stock powers executed in blank with
the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in
the Escrow Shares and the related medallion guaranteed stock powers executed in
blank, but is serving only as escrow agent, having only possession thereof. The
Escrow Agent shall not be liable for any loss resulting from the making or
retention of any investment in accordance with this Escrow Agreement.
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(f) This Agreement sets forth exclusively the duties of the Escrow
Agent with respect to any and all matters pertinent thereto and no implied
duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the
Company in any dispute as to the disposition of the Escrow Shares and the
related medallion guaranteed stock powers executed in blank, in any other
dispute between LAMCO and Company, whether or not the Escrow Agent is then
holding the Escrow Shares and the related medallion guaranteed stock powers
executed in blank and continues to act as the Escrow Agent hereunder, provided,
however, in so acting as counsel for the Company, the Escrow Agent shall not
breach any of the terms hereof or its obligations hereunder and any and all fees
changed for its services as Escrow Agent hereunder shall be paid by the Company
and not LAMCO.
(h) The provisions of this Section 4.1 shall survive the resignation
of the Escrow Agent or the termination of this Agreement.
4.2. Dispute Resolution: Judgments. Resolution of disputes arising under
this Agreement shall be subject to the following terms and conditions:
(a) If any dispute shall arise with respect to the delivery,
ownership, right of possession or disposition of the Escrow Shares and the
related medallion guaranteed stock powers executed in blank, or if the Escrow
Agent shall in good faith be uncertain as to its duties or rights hereunder, the
Escrow Agent shall be authorized, without liability to anyone, to (i) refrain
from taking any action other than to continue to hold the Escrow Shares and the
related medallion guaranteed stock powers executed in blank pending receipt of a
joint instruction from LAMCO and Company, or (ii) deposit the Escrow Shares and
the related medallion guaranteed stock powers executed in blank with any court
of competent jurisdiction in the State of New York, in which event the Escrow
Agent shall give written notice thereof to LAMCO and the Company and shall
thereupon be relieved and discharged from all further obligations pursuant to
this Agreement. The Escrow Agent may, but shall be under no duty to, institute
or defend any legal proceedings which relate to the Escrow Shares and the
related medallion guaranteed stock powers executed in blank. The Escrow Agent
shall have the right to retain counsel if it becomes involved in any
disagreement, dispute or litigation on account of this Agreement or otherwise
determines that it is necessary to consult counsel.
(b) The Escrow Agent is hereby expressly authorized to comply with
and obey any Court Order. In case the Escrow Agent obeys or complies with a
Court Order, the Escrow Agent shall not be liable to LAMCO and Company or to any
other person, firm, corporation or entity by reason of such compliance.
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ARTICLE V
GENERAL MATTERS
5.1. Termination. This escrow shall terminate upon the release of the
Escrow Shares and the related medallion guaranteed stock powers executed in
blank or at any time upon the agreement in writing of LAMCO and Company.
5.2. Notices. All notices, demands, requests, consents, approvals, and
other communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (i) personally served, (ii)
deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed
as set forth below or to such other address as such party shall have specified
most recently by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by registered or certified mail or facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address or
number designated below (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business
hours where such notice is to be received) or (b) on the second business day
following the date of mailing by express courier service, fully prepaid,
addressed to such address, or upon actual receipt of such mailing, whichever
shall first occur. The addresses for such communications shall be:
(a) If to the Company, to:
National Investment Manages Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx, COO/CFO
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
1065 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to LAMCO, to: the addresses and fax numbers listed on Schedule A
hereto
LAMCO Group, Inc.
00000 Xxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxxxx, President
Phone: (000) 000-0000
Facsimile: (000) 000-0000
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Copy to:
E. Xxxxx Xxxxxxx, Esq.
Cameron & Xxxxxxxxx LLP
00 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
(d) If to the Escrow Agent, to:
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
1065 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as any of them shall give to the others by notice made
pursuant to this Section 5.2.
5.3. Assignment; Binding Agreement. Neither this Agreement nor any right
or obligation hereunder shall be assignable by any party without the prior
written consent of the other parties hereto. This Agreement shall enure to the
benefit of and be binding upon the parties hereto and their respective legal
representatives, successors and assigns.
5.4. Invalidity. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal, or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
5.5. Counterparts/Execution. This Agreement may be executed in any number
of counterparts and by different signatories hereto on separate counterparts,
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument. This Agreement
may be executed by facsimile transmission and delivered by facsimile
transmission.
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5.6 Agreement. Each of the undersigned states that he has read the
foregoing Escrow Agreement and understands and agrees to it.
NATIONAL INVESTMENT MANAGERS INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: COO/CFO
THE LAMCO GROUP, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
--------------------------
Xxxxxxxx X. Xxxxxxxxxx,
President
SICHENZIA XXXX XXXXXXXX XXXXXXX LLP
By: /s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx,
Partner
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