EMPLOYMENT AGREEMENT
Exhibit
10.107
This
Employment Agreement (“Agreement”) is entered into as of April 15, 2009
(“Effective Date”) between National Investment Managers Inc. (“Company”) and
Xxxxxxxxxxx X. Xxxxxx (“Executive”).
RECITALS
Company
wishes to retain Executive as its Chief Financial Officer, and Executive wishes
to accept such employment under the terms and conditions set forth in this
Agreement.
IT IS AGREED as
follows:
1. Employment. Company
hereby offers Executive employment as its Chief Financial
Officer. Executive accepts such employment.
2. Term. The term of
employment under this Agreement shall commence on the Effective Date and shall
continue, unless otherwise terminated earlier under Section 10, until December
31, 2010. The Term shall be automatically extended for an additional
one (1) year period unless at least thirty (30) days prior to its expiration,
either Company or Executive furnishes the other with written notice that the
Term not be so extended.
3. Duties. Executive
shall devote his full-time efforts to the proper and faithful performance of all
duties customarily discharged by a Chief Financial Officer, consistent with
Company policies and budgets and directives of Company’s Board of Directors
together with any additional duties assigned to him from time to time by the
CEO, President and COO, and the Board of Directors. Executive agrees
to use his best efforts and comply with all fiduciary and professional standards
in the performance of his duties. Executive shall provide services to
any subsidiary or affiliate of Company without additional compensation and
benefits beyond those set forth in this Agreement. Notwithstanding
the foregoing, the parties acknowledge and agree that Executive may spend a
portion of his business time as an advisor to the Board of Directors or as a
director of unaffiliated entities.
4. Base
Salary. Executive shall be paid a base salary of Two Hundred
Thousand Dollars ($200,000) per annum for the Term payable, less applicable
withholding, in equal monthly payments or more frequently in accordance with
Company’s regular practice. Upon extension of the Term, Executive’s
base salary will be set by the Compensation Committee of Company; provided,
however, that Executive’s base salary shall not be reduced from the base salary
in effect immediately prior to extension of the Term.
5. Bonus. Executive
shall be eligible to receive an incentive bonus during each fiscal year of the
Term. The bonus shall be targeted at thirty-five percent (35%) of
Executive’s base salary with the determination of payout based upon the
achievement of performance targets and objectives as established by the
Company’s Board of Directors.
6. Stock
Options. Executive to receive a grant of an option to acquire
two-hundred-fifty-thousand (250,000) shares of the common stock of National
Investment Managers Inc. at an exercise price per share equal to $0.20. All
options will be issued on the effective date of this agreement, and options
shall be exercisable through twelve (12) months after the termination of
executive’s employment with the Company and its affiliates, and which options
shall vest 150,000 upon the effective date of this agreement and 100,000 in two
equal installments of fifty-thousand (50,000) over two equal periods (December
31, 2009, and December 31, 2010), respectively.
7. Vesting. Any unvested options
shall be vested immediately upon: (i) the event of an eligible Change of
Control, as defined in Section 8(a) below or (ii) employment with the Company is
terminated without Cause; the term “Cause” is defined in Section
12(a). The vesting of the options permissible by reason of Section 8
shall be conditioned upon the consummation of the Change of
Control.
8. Change of
Control.
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(a)
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Definitions
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(i)
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An
"Ownership Change Event" shall be deemed to have occurred if any of the
following occurs with respect to the
Company:
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(1)
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the
direct or indirect sale or exchange in a single or series of related
transactions by the stockholders of the Company of more than fifty percent
(50%) of the voting stock of the
Company;
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(2)
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a
merger or consolidation in which the Company is a
party;
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(3)
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the
sale, exchange, or transfer of all or substantially all of the assets of
the Company; or
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(4)
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a
liquidation or dissolution of the
Company.
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(ii)
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A
"Change of Control" shall mean an Ownership Change Event or a series of
related Ownership Change Events (collectively, the "Transaction") wherein
the stockholders of the Company immediately before the Transaction do not
retain immediately after the Transaction, in substantially the same
proportions as their ownership of shares of the Company's voting stock
immediately before the Transaction, direct or indirect beneficial
ownership of more than fifty percent (50%) of the total combined voting
power of the outstanding voting stock of the Company or the corporation or
corporations to which the assets of the Company were transferred (the
"Transferee Corporation(s)"), as the case may be, provided, however, that
an equity or convertible securities financing by the Company shall be
deemed an Ownership Change Event or Transfer of Control for the purpose of
any accelerated vesting of Shares. For purposes of the preceding sentence,
indirect beneficial ownership shall include, without limitation, an
interest resulting from ownership of the voting stock of one or more
corporations which, as a result of the Transaction, own the Company or the
Transferee Corporation(s), as the case may be, either directly or through
one or more subsidiary corporations. The Board shall have the
right to determine whether multiple sales or exchanges of the voting stock
of the Company or multiple Ownership Change Events are related, and its
determination shall be final, binding and
conclusive.
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9. Benefits.
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(a)
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Executive
shall be entitled to participate in all Company sponsored retirement
plans, 401(k) plans, life insurance plans, medical insurance plans,
short-term and long-term disability insurance plans, and such other
benefit plans generally available from time to time to executive
management of the Company for which he qualifies under the terms of the
plans. Executive’s participation in and benefits under any
benefit plan shall be on the terms and subject to the conditions specified
in such plan.
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(b)
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Executive
will receive at least four (4) weeks of paid vacation per
year.
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(c)
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The
Company shall maintain directors’ and officers’ insurance for the benefit
of Executive of the type and with at least the same coverage as the
directors’ and officers’ insurance currently in
effect.
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10. Reimbursement of
Expenses. The Company will reimburse Executive for the
ordinary and necessary expenses incurred by him in the performance of his duties
under this Agreement, including travel, entertainment expenses, and other
business expenses, in accordance with the Company’s policies in effect from time
to time.
11. Termination of
Employment.
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(a)
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Executive’s
employment under this Agreement may be terminated at any time by the Board
of Directors of Company for Cause.
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(b)
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Executive’s
employment under this Agreement shall terminate upon expiration of the
Term without extension as described in Section
2.
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(c)
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Executive’s
employment under this Agreement shall terminate upon his retirement,
resignation or death.
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(d)
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Executive’s
employment under this Agreement shall terminate upon written notice by
Company to Executive of a termination due to
Disability.
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(e)
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If
Executive’s employment terminates for Cause, Company shall be obligated
only to continue to pay Executive’s base salary and, to the extent earned,
accrued and unpaid, annual incentive bonus and furnish the then existing
benefits under Section 9 up to the date of termination; provided, that if
Executive’s employment is terminated as a result of Executive’s
Disability, Executive shall remain eligible for benefits under any
long-term disability program of Company, as amended from time to time, as
long as his Disability continues. Executive shall also be entitled to
reimbursement of all expenses.
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(f)
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If
Executive’s employment is terminated by Company or Board of Directors
other than for Cause (which shall not include termination in connection
with non-renewal pursuant to Section 2), or in the event the Executive
terminates employment for Good Reason, in addition to the amounts payable
under Section 11(e), Executive shall be entitled to receive a severance
payment equivalent to nine months of his then current base salary payable
as and when such amounts would have been paid in the absence of
termination, and medical and other insurance benefits under Section 9(a)
for a period of twelve (12) months. Further, Executive shall be
entitled to receive any restricted stock not yet issued at the time of
termination, and any options granted Executive not yet vested will fully
vest. As a condition to the salary and benefit continuation
under this Section 11(f), Executive must first execute and deliver to
Company, in a form prepared by Company, a release of all claims against
Company and other appropriate parties, excluding Company’s performance
under this Section 11(f) and of Executive’s vested rights under any
Company sponsored retirement plans, 401(k) plans and stock ownership
plans. Executive shall also be entitled to reimbursement of all
expenses.
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12. Definitions. The
meaning of certain terms in this Agreement are as follows:
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(a)
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“Cause”
shall consist of any of the
following:
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(i)
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Executive
is convicted of, or has pleaded guilty or entered a plea of nolo
contendere to, a felony (under the laws of the United States or any state
thereof);
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(ii)
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Fraudulent
conduct by the Executive in connection with the business or other affairs
of the Company or any related company or the theft, embezzlement, or other
criminal misappropriation of funds by the Executive from the Company or
any related company;
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(iii)
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Executive’s
failure to perform the duties of the Chief Financial Officer, after
reasonable notice has been provided of such non-performance and, if such
failure is curable, Executive has not cured such failure within a
reasonable period following such notice;
or
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(iv)
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Executive’s
failure to comply with reasonable directives of the Board which are
communicated to him in writing, after reasonable notice has been provided
of such non-performance and, if such failure is curable, Executive has not
cured such failure within a reasonable period following such
notice.
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(b)
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“Disability”
means the inability of Executive, due to injury, illness, disease or
bodily or mental infirmity, to engage in the performance of his material
duties of employment with Company as determined in good faith by Company,
for (i) any period of one hundred twenty (120) consecutive days or (ii) a
period of one hundred eighty days (180) in any continuous twenty-four (24)
month period, provided that interim returns to work of less than ten (10)
consecutive business days in duration shall not be deemed to interfere
with a determination of consecutive absent days if the reason for absence
before and after the interim return are the same. Benefits to
which Executive is entitled under any disability policy or plan provided
by Company shall reduce the base salary paid to Executive during any
period of Disability on a dollar-for-dollar
basis.
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(c)
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“Good
Reason” means (A) any material reduction in the Base Salary or duties and
responsibilities of Executive or (B) any material breach by the Company of
this Agreement or any other agreement between Executive and the
Company, or any affiliate of the Company, that continues without cure for
a period of thirty (30) days after notice of such breach is given by
Executive to the Company.
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13. Confidential
Information. During Executive’s employment with the Company
and at all times after the termination of such employment, regardless of the
reason for such termination, Executive shall hold all Confidential Information
relating to the Company in strict confidence and shall not use, disclose or
otherwise communicate the Confidential Information to anyone other than the
Company without the prior written consent of the
Company. “Confidential Information” includes, without limitation,
financial information, trade secrets, business plans, business methods or
practices, market studies, customer lists, referral lists and other proprietary
business information of the Company. “Confidential Information” shall
not include information which is or becomes in the public domain through no
action by Executive or information which is generally disclosed by the Company
to third parties without restrictions on such third
parties. Executive shall return all Confidential Information to the
Company upon termination of employment.
14. Solicitation of
Customers. During his employment with the Company and for a
period after the termination of Executive’s employment, regardless of the reason
for the termination, equal to the greater of (a) one (1) year or (b) the period
for which Executive receives payment of his base salary under Section 11(f) or
(g) (the “Non-Competition Period”), Executive shall not influence or attempt to
influence, directly or indirectly, any customer of the Company to divert its
business away from the Company.
15. Soliciting
Employees. Executive agrees that during his employment with
the Company and during the Non-Competition Period, he will not directly or
indirectly solicit any person who is then, or at any time within six months
prior thereto was, an employee of the Company to work for any person or entity
then in competition with the Company.
16. Non-Competition. During
his employment with the Company and for a three-month period after termination
of Executive’s employment, Executive shall not, directly or indirectly, in any
capacity:
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(a)
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Engage,
own or have any interest in;
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(b)
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Manage,
operate, join, participate in, accept employment with, render advice to,
or become interested in or be connected
with;
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(c)
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Furnish
consultation or advice to; or
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(d)
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Permit
his name to be used in connection
with;
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any
person or entity that competes with the business of the
Company. Notwithstanding the foregoing, holding five percent (5%) or
less of an interest in the equity, stock options or debt of any publicly traded
company shall not be considered a violation of this Section 16.
17. Remedies. In the
event of a material breach or threatened material breach of Section 13, Section
14, Section 15 or Section 16, Company, in addition to its other remedies at law
or in equity, shall be entitled to injunctive or other equitable relief in order
to enforce or prevent any violations of the aforementioned
Sections. In the event of any such material breach, if applicable
Company may immediately cease payment of Executive’s base salary and the
providing to Executive of benefits under Section 11(f) or (g).
18. Severability and
Savings. Each provision in this Agreement is separate. If
necessary to effectuate the purpose of a particular provision, the Agreement
shall survive the termination of Executive’s employment with the
Company. If any provision of this Agreement, in whole or in part, is
held to be invalid or unenforceable, the parties agree that any such provision
shall be deemed modified to make such provision enforceable to the maximum
extent permitted by applicable law. As to any provision held to be invalid or
unenforceable, the remaining provisions of this Agreement shall remain in
effect.
19. Binding
Effect. This Agreement shall be binding upon and shall inure
to the benefit of Company and its successors and assigns. This Agreement shall
be binding upon and inure to the benefit of Executive, his heirs and personal
representatives. This Agreement is not assignable by
Executive.
20. Indemnification. The Company
shall defend, indemnify and hold harmless Executive (and his heirs and personal
representatives) in his capacity as an officer of the Company to the fullest
extent permitted by applicable law against any losses or damages incurred by
Executive in connection with any action, suit or proceeding to which Executive
may be made a party by reason of his being or having been an officer or director
of the Company, or because of actions taken by Executive which were believed by
Executive to be in the best interests of the Company and not in violation of
applicable law, and Executive shall be entitled to be covered by any directors’
and officers’ liability insurance policies which the Company maintains for the
benefit of its directors and officers, subject to the limitations of any such
policies. The Company shall have the right to assume, with legal counsel of its
choice, who shall be reasonably acceptable to Executive, the defense of
Executive in any such action, suit or proceeding for which the Company is
providing indemnification to Executive. Should Executive determine to employ
separate legal counsel in any such action, suit or proceeding, any costs and
expenses of such separate legal counsel shall be the sole responsibility of
Executive unless the Executive shall have reasonably concluded, based upon the
written advice of legal counsel to the Executive, a copy of which shall be
furnished to the Company, that there may be conflicts in the defenses available
to the Executive which are different from or additional to those available to
the Company (if the Company is also a party or potential party to the claim), in
which case the reasonable costs and expenses of such separate legal counsel
shall be borne by the Company. If the Company does not assume the defense of any
such action, suit or proceeding, the Company shall, upon the request of the
Executive, promptly advance or pay any amount for costs or expenses, including
the reasonable fees of counsel retained by Executive, incurred by Executive in
connection with such action, suit or proceeding; provided that Executive agrees
in writing to repay any such amounts advanced if it is ultimately determined by
a court of competent jurisdiction that Executive is not entitled to such
indemnification. Executive shall be entitled to indemnification under this
clause regardless of any subsequent amendments of the Certificate Of
Incorporation or By-Laws of the Company.
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21. Miscellaneous.
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(a)
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No
provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing and signed
by the Company and Executive. The waiver or non-enforcement by
the Company of a breach by Executive of any provision of this Agreement
shall not be construed as a waiver of any subsequent breach by
Executive.
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(b)
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Any
notice under this Agreement must be in writing and delivered personally or
by overnight courier, sent by facsimile transmission or mailed by
registered or certified mail to the parties at their respective
addresses.
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(c)
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This
Agreement shall be governed by the laws of the State of
Ohio.
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(d)
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This
Agreement may be executed in counterparts, which together shall constitute
one Agreement.
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(e)
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By
their signatures below, the parties acknowledge that they have had
sufficient opportunity to read and consider, and that they have carefully
read and considered, each provision of this Agreement and that they are
voluntarily signing this Agreement.
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(f)
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All
notices and other communications under this Agreement shall be in writing
and may be given by personal delivery, registered or certified mail,
postage prepaid, return receipt requested or generally recognized
overnight delivery service. Notices shall be sent to the appropriate party
at the following addresses:
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Executive:
0000 Xxxxxxx Xxxx Xx., Xxxxxxxxxxx XX
00000
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Company:
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attn:
CEO
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All such
notices and communications shall be deemed received upon (a) actual receipt by
addressee or (b) actual delivery to the appropriate address.
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(g)
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This
Agreement may be executed in counterparts, both of which shall be
considered an original, but both of which together shall constitute the
same instrument.
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(h)
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This
Agreement contains the complete statement of all arrangements between the
parties with respect to its subject matter, supersedes all prior
agreements between them with respect to that subject matter, and may not
be changed or terminated orally. Any amendment or modification must be in
writing and signed by the party to be
charged.
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The
parties have executed this Agreement as of the Effective Date.
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/s/ Xxxxxxxxxxx X.
Xxxxxx
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Xxxxxxxxxxx
X. Xxxxxx
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By
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/s/ Xxxx X.
Xxxxx
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Its
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President &
COO
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By
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/s/ Xxxxxx X.
Xxxx
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Its
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CEO
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