AGREEMENT
AGREEMENT
Agreement,
entered into on June 15, 2005 but effective as of May 4, 2005 (“Effective
Date”), by and between Xxxxxxx Xxxxxx, an individual with an address at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Xxxxxx”),
and National Investment Managers Inc., a Florida corporation with its principal
office located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Company”).
RECITALS
The
Company desires to engage Xxxxxx to serve as Chairman of the Company’s Audit
Committee, in addition to Xxxxxx’x services as a director of the Company, and
Xxxxxx desires to perform such services.
NOW,
THEREFORE, the Company and Xxxxxx agree as follows:
1 Engagement;
Duties.
The
Company hereby retains the services of Xxxxxx, and Xxxxxx hereby agrees to
render services to the Company, all in accordance with the terms and conditions
hereof
during
the Term (as defined in Section 2). In such capacity, Xxxxxx
shall serve
as
Chairman of the Audit Committee of the Company’s Board of Directors,
non-executive Chairman of the Board of the Company, and a member of the
Corporate Governance and Executive Committees of the Board of Directors of
the
Company.
2 Term.The
term
of this Agreement (“Term”) shall be for a period of one (1) year from the
Effective Date, subject to earlier termination at such time as Xxxxxx no
longer
serves as Chairman of the Board and Chairman of the Audit Committee (the
“Term”).
3 Compensation.
(A) Annual
Xxx.Xx
consideration for the performance by Xxxxxx of Xxxxxx’x obligations under this
Agreement, Xxxxxx shall be compensated during the Term at a rate of Fifty-Two
Thousand Dollars ($52,000)
per
annum (the “Annual Fee”). The Annual Fee shall be payable in accordance with the
Company’s normal monthly payroll run. The Company
shall deduct from the Annual Fee 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.
(B) Stock
Options.
In addition, and subject to adoption and approval of the Company’s stock option
plan (“Stock Option Plan”) and the terms thereof and the terms of the stock
option agreement executed by the parties in connection therewith and pursuant
thereto (“Stock Option Agreement”), Xxxxxx is hereby granted options
(“Options”) to purchase 266,370 shares of the Company’s common stock at an
exercise price of $1.00 per share, as adjusted from time to time in accordance
with the provisions of the Stock Option Plan and the Stock Option Agreement
under which such Options are issued. The Options shall have a term of seven
(7)
years from the date of grant. All of such Options shall vest on the first
anniversary of the date of grant or, if sooner, upon any sale or other
disposition of all or substantially all of the Company’s assets, or upon a
merger, consolidation, reorganization or other similar transaction resulting
in
a change of control of the Company’s business. Other terms shall be as set forth
in the Company’s Stock Option Plan and/or related Stock Option Agreement. All
unvested Options and any vested but unexercised Options shall automatically
become null and void and shall automatically terminate upon the termination
of
Xxxxxx’x engagement by the Company for cause (as determined in good faith by the
Board of Directors) or upon Xxxxxx’x voluntary termination of his engagement by
the Company. Upon the termination of Xxxxxx’x engagement due to death,
disability (as determined in good faith by the Board of Directors) or by
the
Company without cause, all unvested Options shall automatically become null
and
void and shall terminate and all vested and unexercised Options shall be
exercisable in accordance with the Company’s Stock Option Plan and Stock Option
Agreement but in any event for a period not less than ninety (90) days following
the date of termination of his engagement. In the event of any conflict between
the terms and provisions of this Agreement and those of the Stock Option
Agreement, the terms of the Stock Option Agreement shall govern and be
controlling.
4 Reimbursement
of Expenses.During
the Term, the Company shall reimburse Xxxxxx for ordinary and necessary business
expenses incurred by Xxxxxx in the performance of Xxxxxx’x duties on behalf of
the Company, provided, however, that such expenses were authorized by the
Company in advance, and that Xxxxxx presents evidence of such expenses as
may be
required under the policies of the Company as are then in effect.
5 Representation
and Warranty of Xxxxxx.
Xxxxxx
represents and warrants to Company that the execution and delivery of this
Agreement and the performance of Xxxxxx’x 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 Xxxxxx is
a party
or by which Xxxxxx is bound; or (b) order, judgment or decree of any court
or
arbitrator.
6 General
Provisions.
(A) Notices.
All
notices and other communica-tions 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 Xxxxxx - to: 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX
00000, fax no. 000 000 0000; and if to the Company, to: National Investment
Managers Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: President,
and
to: Xxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxx, XX 00000, fax no. 000 000 0000, attention: Xxxx Xxxxx,
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.
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(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.
(E) Governing
Law; Arbitration.
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. All disputes relating
in any
way to this Agreement shall be resolved exclusively through arbitration
conducted in accordance with the Commercial Arbitration Rule of the American
Arbitration Association as then in effect. The arbitration hearing shall
be held
in New York, New York and shall be before a single arbitrator selected by
the
parties in accordance with the Commercial Arbitration Rules of the American
Arbitration Association pursuant to its rules on selection of arbitrators.
Any
arbitrator selected shall have reasonable experience as an arbitrator relating
to the dispute at issue. The arbitrator shall render a formal, binding
non-appealable resolution and award on each issue as expeditiously as possible
but not more than thirty days after the hearing. All discovery disputes shall
be
resolved by the arbitrator. The parties shall use all reasonable efforts
to keep
arbitration costs to a minimum.
(F) Counterparts.
This
Agreement may be executed by facsimile signatures and in counterparts, both
of
which shall be considered an original, but both of which together shall
constitute the same instrument.
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(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.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date first set forth
above.
| NATIONAL INVESTMENT MANAGERS INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx X Xxxxxxxxx | |
|
Name: Xxxxxxx X. Xxxxxxxxx |
||
| Title: Chief Executive Officer | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
|
XXXXXXX XXXXXX |
||
[SIGNATURE
PAGE - XXXXXX ENGAGEMENT AGREEMENT]
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