CROSS SALES AGREEMENT
This Cross Sales Agreement (the "Agreement") is entered into this 3rd day
of October 2006 (the "Effective Date"), by and among National Investment
Managers Inc. (the "NIM") and THE LAMCO GROUP, INC. ("Seller").
W I T N E S S E T H:
WHEREAS, the Seller owned an aggregate of fifty-five (55) shares of common
stock, $1.00 par value, of LAMORIELLO & CO., INC. ("LCI"), an aggregate of one
thousand (1,000) shares of common stock, $1.00 par value, of CIRCLE PENSION,
INC. ("CPI"), and an aggregate of one hundred (100) shares of common stock,
$1.00 par value, of SOUTHEASTERN PENSION SERVICES, INC. (the "SPSI" and together
with LCI and CPI, the Companies), which ownership represented 100% of the
outstanding equity interest of the Companies.
WHEREAS, the Seller, Xxxxxxxx X. Xxxxxxxxxx and NIM have entered into that
certain Stock Purchase Agreement dated September 27, 2006 (the "Purchase
Agreement") pursuant to which NIM acquired 100% of the outstanding equity
interest of the Companies (the "Transaction").
WHEREAS, an affiliate of Seller, Lamco Advisory Services, Inc.
("Advisory") is in the business of providing investment advisory and fiduciary
services.
WHEREAS, as further inducement to enter into the Transaction, Seller and
NIM have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, payments, and
agreements set forth in this Agreement, NIM and the Seller intending to be
legally bound thereby, and hereby warranting that they each have the capacity
and authority to execute this Agreement, it is agreed by and among the
undersigned parties, as follows:
1. Cross Sales. As further inducement for entering into the Purchase
Agreement, the parties agree as follows:
(a) Seller agrees to market and sell the retirement plan
administration services (the "Administration Services") provided by the
Companies for a period of three (3) years (the "Term"). Seller will use its best
commercial efforts in selling and marketing Administration Services on behalf of
the Companies. During the Term, Seller agrees that it will not market and sell
Administration Services for any party other than the Companies. Seller agrees
and acknowledges that the Companies will determine the pricing of each of the
Administration Services to be sold by Seller and what Administration Services
are to be marketed and sold at any specific time. All costs incurred by Seller
in connection with the marketing and sale of the Administration Services shall
be the sole responsibility of Seller. NIM acknowledges and agrees that the
Seller shall not be required to devote its full time to the provision of
services hereunder and that such services will be provided on a schedule to be
determined by Seller, subject to its availability and prior commitments.
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(b) NIM agrees to market and sell the fiduciary services (the
"Fiduciary Services") provided by Advisory during the Term. During the Term, NIM
will not market and sell fiduciary services for any party other than Advisory.
NIM will use its best commercial efforts in selling and marketing Fiduciary
Services on behalf of Advisory. NIM agrees and acknowledges that Advisory will
determine the pricing of each of the Fiduciary Services to be sold by NIM on its
behalf and what services are to be marketed and sold at any specific time. All
costs incurred by NIM in connection with the marketing and sale of the Fiduciary
Services shall be the sole responsibility of NIM. Seller acknowledges and agrees
that NIM shall not be required to devote its full time to the provision of
services hereunder and that such services will be provided on a schedule to be
determined by NIM, subject to its availability and prior commitments.
(c) Seller agrees that certain of Advisory's investment advisory
products shall be made available to NIM for use on NIM's investment advisory
platform.
2. Compensation.
(a) As consideration for the services to be rendered under this
Agreement by Seller, NIM shall pay Seller a percentage of the fees collected by
the Companies with respect to Administration Services accounts solicited by
Seller on behalf of the Companies, as follows: 25% of all fees actually
collected by the Companies during the first year of each such new client
account; and 10% of fees actually collected by the Companies, during the second
and third year after the origination of each such new client account.
(b) As consideration for services rendered by NIM under this
Agreement, Seller shall pay NIM 30% of all fees actually collected by Advisory
with respect to new Fiduciary Services accounts solicited by NIM on behalf of
Advisory during the first three (3) years of each such new client account.
(c) The parties agree that Seller shall make certain of Advisory's
investment advisory products available to NIM at compensation rates to be agreed
upon.
3. Binding Agreement. The terms of this Agreement are binding upon and
inure to the benefit of each of the parties hereto, their respective successors,
assigns, dependents, and all other related persons, affiliates or associates.
4. Headings. The captions of the paragraphs and sections of this Agreement
are provided solely for convenience, and are not intended to, and in fact, shall
not affect the substance or meaning of this Agreement.
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5. Representation. Each of the parties hereto represents that each has
read and fully understands each of the provisions as contained herein, and has
been afforded the opportunity to review same with his attorney of choice; and
further that each of the parties hereto represents that each and every one of
the provisions contained in this Agreement is fair and not unconscionable to
either party.
6. Counterparts/Execution. This Agreement may be executed in any number of
counterparts and by the 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 signature and delivered by facsimile transmission.
7. Entire Agreement; Assignment. This Agreement and other documents delivered in
connection herewith represent the entire agreement between the parties hereto
with respect to the subject matter hereof and may be amended only by a writing
executed by all parties. Neither NIM nor Seller have relied on any
representations not contained or referred to in this Agreement and the documents
delivered herewith. No right or obligation of either party shall be assigned by
that party without prior notice to and the written consent of the other party.
8. 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. The parties and the individuals executing this Agreement
and other agreements referred to herein or delivered in connection herewith on
behalf of NIM agree to submit to the jurisdiction of such courts and waive trial
by jury. The prevailing party 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.
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IN WITNESS WHEREOF, the parties have read and executed this Agreement as
of the date and year first above written.
NATIONAL INVESTMENT MANAGERS INC. THE LAMCO GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxx Xxxxxxxx X. Xxxxxxxxxx
Title: COO/CFO
[SIGNATURE PAGE TO CROSS SALES AGREEMENT BY AND AMONG
NATIONAL INVESTMENT MANAGERS INC. AND THE LAMCO GROUP, INC.
DATED OCTOBER 3, 2006]
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