EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement"), dated as of February 28, 2007, by and
between Xxxxx X. Xxxxxx, an individual with an address at 0000 Xxxxxxxx Xxxx
Xxxx, Xxxxxxxxxx, XX 00000 ("Executive"), and The Pension Alliance, Inc., a
Pennsylvania corporation with its principal office located at 0000 Xxxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 (the "Company").
RECITALS
A. Pursuant to that certain Stock Purchase Agreement entered by and
between National Investment Managers Inc. ("NIM"), the Company, Xxxxx X. Xxxxxx
and Xxxxxxx X. Xxxxxxxxx dated February 28, 2007 (the "Purchase Agreement"),
contemporaneously with the execution of this Agreement, the Company was acquired
by NIM.
B. Pursuant to the Purchase Agreement, NIM has agreed to cause the Company
to retain Executive as an employee during the Term (as defined below).
C. Executive desires to be employed by the Company during the Term, all
upon the terms and conditions set forth herein.
NOW, THEREFORE, the Company and Executive agree as follows:
1 Engagement; Duties. Subject to the terms and conditions set forth herein,
the Company shall employ Executive, and Executive shall serve the Company,
as Vice President during the Term (as defined in Section 2). In such
capacity, Executive shall perform duties and be assigned responsibilities
that are substantially similar to those performed by the Executive
immediately prior to the date hereof and as may be assigned to Executive
from time to time. During the Term, the Executive shall report to the
Chief Executive Officer and Chief Operating Officer of NIM. During the
Term, Executive shall use Executive's reasonable efforts to promote the
interests of the Company, shall perform Executive's duties faithfully and
diligently, consistent with sound business practices and shall devote
Executive's "full business time" to the performance of Executive's duties
for the Company in accordance with the terms hereof. For purposes of this
Section 1, "full business time" shall mean an average of forty (40) hours
per non vacation weeks during the Term (as defined below).
2 Term. Unless this Agreement is terminated pursuant to Section 5, the term
of this Agreement ("Term") shall be for a period of two (2) years.
3 Compensation. As consideration for the performance by Executive of
Executive's obligations under this Agreement, the Company shall pay
Executive a base salary as follows:
(A) During the Term, the Company shall pay Executive a base salary ("Base
Salary") at the annual rate equal to Seventy Five Thousand Dollars ($75,000) for
the first year of the Term and One Hundred Seventy Five Thousand Dollars
($175,000) for the second year of the Term.
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(B) The Base Salary shall be payable in accordance with the Company's
normal payroll policy. The Company shall deduct from the Base Salary any
federal, state or local withholding taxes, social security contributions and any
other amounts which may be required to be deducted or withheld by the Company
pursuant to any federal, state or local laws, rules or regulations.
4 Reimbursement of Expenses; Fringe Benefits.
(A) Expenses. During the Term, the Company shall reimburse Executive for
ordinary and necessary business expenses incurred by Executive in the
performance of Executive's duties on behalf of the Company and that any such
expenses in excess of $250 are approved in advance in writing by the Chief
Financial Officer of NIM.
(B) Fringe Benefits. During the Term, Executive shall be entitled to those
fringe benefits and perquisites that are provided to other executives of the
Company generally, including any health or other insurance, pension and/or
retirement, or welfare plan. Notwithstanding the foregoing, the parties
acknowledge and agree that Executive shall not be entitled to fringe benefits
and perquisites identified as non-recurring on Exhibit A annexed hereto.
(C) Vacation. Executive shall be entitled to five (5) weeks paid vacation
days during each calendar year of the Term, pro-rated for any partial calendar
year, at such times as are mutually agreed upon by Executive and NIM.
5 Termination. The Company may terminate this Agreement upon Executive's
death, and may terminate this Agreement at any earlier time at the option
of the Company due to Executive's Disability (as defined below) or for
Cause (as defined below).
(A) As used in this Agreement:
(i) The term "Disability" means the inability of Executive
substantially to perform Executive's duties and obligations under this Agreement
for sixty (60) consecutive days or sixty (60) days in any one hundred twenty
(120)-day period because of any mental or physical incapacity.
(ii) The term "Cause" means (A) any act by Executive that damages,
in any material respect, the reputation, business or business relationships of
the Company, (B) any action by Executive that constitutes a fraud against the
Company, (C) the conviction of Executive of a misdemeanor or felony, (D)
Executive's refusal or failure to perform Executive's duties that continues for
a period of ten (10) business days after notice of such refusal or failure is
given by the Company to Executive, (E) any material breach by Executive of this
Agreement or any other agreement between Executive and the Company, or any
affiliate of the Company, that continues for a period of ten (10) business days
after notice of such breach is given by the Company to Executive, or (F) any
failure by the Executive to maintain Executive's securities registrations and
other regulatory licenses and authorizations (other than insurance licenses in
states other than Pennsylvania), including without limitation, any willful
violation of applicable laws, rules or regulations by the Executive that results
in the suspension or revocation of such registrations, licenses or
authorizations.
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(iii) The term "Termination Date" shall mean the earlier of the
expiration of this Agreement or the effective date of the Company's termination
of this Agreement as provided in Section 5(A).
(B) Payments to Executive Upon Termination of This Agreement.
(i) In the event this Agreement is terminated prior to the
expiration of the Term by the Company without Cause, the Company shall pay to
Executive the amounts set forth in this Section 5(B)(i) within thirty (30) days
of the effective date of termination: (a) an amount equal to Executive's accrued
but unpaid Base Salary and earned but unpaid bonus prior to the date of
termination; (b) reimbursement for any reimbursable business expenses incurred
in accordance with this Agreement prior to the Termination Date; (c) Executive's
Base Salary for the remainder of the Term, payable as and when such Base Salary
otherwise would have been payable in accordance with the Company's payroll
practices; and (d) any other amounts or benefits due under this Agreement and
any benefit plan, or program through the remainder of the original employment
term in accordance with the terms of said plan or program, but without
duplication.
(ii) In the event this Agreement is terminated prior to the
expiration of the Term by the Company for Cause or due to Executive's death or
Disability, the Company shall pay to Executive the amounts set forth in this
Section 5(B)(ii): (a) an amount equal to Executive's accrued but unpaid Base
Salary and earned but unpaid bonus prior to the date of termination; (b)
reimbursement for any reimbursable business expenses incurred in accordance with
this Agreement prior to the Termination Date; and (c) any other amounts or
benefits due through the Termination Date under this Agreement and any benefit
plan, or program in accordance with the terms of said plan or program, but
without duplication.
(iii) Upon expiration of the Term, the Company shall pay to
Executive the amounts set forth in this Section 5(B) (iii): (a) all of
Executive's accrued but unpaid Base Salary and earned but unpaid bonus prior to
the date of termination; (b) reimbursement for any reimbursable business
expenses incurred in accordance with this Agreement prior to the end of the
Term; and (c) any other amounts or benefits due through the end of the Term
under this Agreement and any benefit plan, or program in accordance with the
terms of said plan or program, but without duplication.
The Company's obligations under Sections 5(B)(i), (ii) and (iii) shall survive
termination of this Agreement.
6 Non-Disclosure; Non-Competition and Non-Solicitation. Reference is made to
the Non-Competition, Non-Solicitation and Non-Disclosure Agreement, of
even date herewith, between NIM, the Company and Executive, which is
incorporated herein by reference and shall survive the expiration or
termination of this Agreement.
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7 Representation and Warranty of Executive. Executive represents and
warrants to Company that the execution and delivery of this Agreement and
the performance of Executive's obligations pursuant hereto shall not
conflict with or result in a breach of any provisions of any (a)
agreement, commitment, undertaking, arrangement or understanding to which
Executive is a party or by which Executive is bound; or (b) order,
judgment or decree of any court or arbitrator.
8 General Provisions.
(A) Notices. 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 that party's address set forth above or at such other address for that
party as shall be specified by notice given under this Section. All such notices
and communications shall be deemed received upon (a) actual receipt by the
addressee or (b) actual delivery to the appropriate address. Copies of notices
hereunder shall be sent as follows: If to Executive - to: 0000 Xxxxxxxx Xxxx
Xxxx, Xxxxxxxxxx, XX 00000, Facsimile: 000-000-0000 and to: Xxxxx X. Xxxxxx,
Xxxxxx Xxxx Xxxxx & Xxxxx, LLP, Suite 400, 000 Xxxxx 00xx Xxxxxx, Xxxxxxx, XX
00000, Facsimile: 000-000-0000 ; and if to the Company, to: National Investment
Managers Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, attention: Chief
Financial Officer, and to: Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, 1065 Avenue of
the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax no. 000 000 0000,
attention: Xxxxxxx Xxxxxxxxx, Esq.
(B) Assignment. This Agreement shall be binding upon, and inure to the
benefit of, the parties' respective successors, permitted assigns, and heirs and
legal representatives. This Agreement may be assigned to, and thereupon shall
inure to the benefit of, any organization which succeeds to substantially all of
the business or assets of the Company, whether by means of merger,
consolidation, acquisition of all or substantially all of the assets of the
Company or otherwise, including, without limitation, by operation of law,
provided, however, that in the event of any such assignment, equitable
adjustments shall be made to any financial criteria or targets required to be
met by Executive. This Agreement is a personal services contract and may not be
assigned by Executive nor may the duties of Executive hereunder be delegated by
Executive to any other person.
(C) Severability. If any provision of this Agreement, or the application
of any provision to any person or circumstance, shall for any reason or to any
extent be invalid or unenforceable, the remainder of this Agreement and the
application of that provision to other persons or circumstances shall not be
affected, but shall be enforced to the full extent permitted by law.
(D) No Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
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(E) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in that state, without regard to any of its principles of
conflicts of laws or other laws that would result in the application of the laws
of another jurisdiction. This Agreement shall be construed and interpreted
without regard to any presumption against the party causing this Agreement to be
drafted. Each of the parties hereby unconditionally and irrevocably waives the
right to a trial by jury in any action, suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the
parties unconditionally and irrevocably consents to the exclusive jurisdiction
of the courts of the State of New York located in the County of New York and the
Federal court in the Southern District of New York with respect to any suit,
action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, and each of the parties hereby unconditionally
and irrevocably waives any objection to venue in any such court.
(F) Counterparts. 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. In addition, the parties may execute multiple
original copies of this Agreement, each of which shall be considered an
original, but all of which shall be considered the same Agreement.
(G) Entire Agreement; Amendment. This Agreement contains the complete
statement of all the 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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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
THE PENSION ALLIANCE, INC.
By: __________________________
Name:
Title:
______________________________
Xxxxx X. Xxxxxx
[SIGNATURE PAGE - XXXXXX EMPLOYMENT AGREEMENT]
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EXHIBIT A
Non-Recurring Fringe Benefits
Auto reimbursement in excess of IRS mileage rate
Cell phones for spouses
Reimbursement of Personal Disability Coverage
Reimbursement of Personal Long Term Care Insurance
Club Dues
Key Man Insurance
Exotic Travel
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