EMPLOYMENT AGREEMENT
Employment Agreement, dated as of January 1, 2006, by and between Xxxxxx
X. Xxxx, an individual with an address at 0000 Xxxxxxxx Xxxx, Xxxxx Xxxx, XX
00000 ("Executive"), and Valley Forge Enterprises, Ltd. (formerly known as VFE
Merger Corp.), a Pennsylvania corporation with its principal office located at
000 Xxx Xxxxxx Xxxx, Xxxx 0000, Xxxxx, XX 00000 (the "Company").
RECITALS
A. Pursuant to that certain Agreement and Plan of Merger, dated as of
January 1, 2006 (the "Merger Agreement"), among Valley Forge Enterprises, Ltd.
("Old VFE"), VFE Merger Corp., Executive, Xxxx X. Xxxxxxx and National
Investment Managers Inc. ("NIM"), contemporaneously with the execution of this
Agreement, Old VFE merged with and into the Company, and NIM thereby acquired
Executive's equity interest in Old VFE.
B. Pursuant to the Merger 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 [a
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 him from time to time, including (i)
the assumption of client relationships transferred from Xxxx X. Xxxxxxx
("Holland") over an 18-month period and (ii) assistance in corporate level
matters. During the Term, the Executive shall report to the Chief Executive
Officer and Chief Operating Officer of NIM. During the Term, Executive shall use
his reasonable efforts to promote the interests of the Company, shall perform
his duties faithfully and diligently, consistent with sound business practices
and shall devote his full business time (an average of forty (40) hours per
week) to the performance of his duties for the Company in accordance with the
terms hereof. During the Term, Employee shall not be required to relocate from
the Wayne, Pennsylvania vicinity.
2 Term. Unless this Agreement is terminated pursuant to Section 5, the term of
this Agreement ("Term") shall be for a period of one (1) year.
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 the excess of (i) Seventy Five Thousand
Dollars ($75,000) over (ii) the total of the annual base salaries to be paid
during the same period by the Company to Holland and one or more other persons
who will be hired for the purpose of assuming Holland's responsibilities in
connection with the transfer of client relationships under Section 1 hereof.
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(B) In addition to the Base Salary, the Company shall pay Executive, if
and when earned by Executive, a bonus for developing new business ("Bonus") in
accordance with the Account Executive Productivity Compensation Program annexed
hereto as Exhibit A (the "AEPC Program"). The Company will continue the AEPC
Program for a period of at least twelve (12) months following the date hereof,
which period shall be increased to twenty-four (24) months following the date
hereof if Minimum EBITDA (as defined in Exhibit D) is achieved for the first
twelve (12) month period following the date hereof. In the event that the
Company fails to achieve Minimum EBITDA for the first twelve (12) month period
following the date hereof, the Company may, in its discretion, replace the AEPC
Program with a bonus plan utilized by other members of NIM's affiliated group,
as determined by the President or Chief Executive Officer of NIM.
(C) The Base Salary shall be payable in accordance with the Company's
normal payroll policy. The Company shall deduct from the Base Salary and any
Bonus 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.
(D) Executive will also participate in the EBITDA bonus plan described in
Exhibit D annexed hereto.
(E) Executive will also participate in the Company's bonus pool, as
described in Exhibit E annexed hereto.
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 including but not
limited to automobile expense reimbursement at prevailing IRS mileage rates,
provided, however, that such expenses were incurred in the furtherance of the
Company's business, that Executive presents evidence of such expenses as may be
required under the policies of the Company, and that any such expenses in excess
of $500 are approved in advance in writing.
(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 B annexed hereto.
(C) Business Expense Allowance. Executive shall be entitled to a
non-accountable business expense allowance of $2,000 per month.
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(D) Vacation. Executive shall be entitled to eight (8) 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.
(E) Options. Subject to the terms of NIM's stock option plan, and in
consideration for assisting the Company and NIM in formulating corporate
strategy, formalizing the Company's business development efforts and assisting
with product selection and enhancement, effective as of the date hereof, the
Executive shall be granted options to purchase Fifty Thousand (50,000) shares of
the common stock of NIM at an exercise price of $1.00 per share for a term of
five (5) years, vesting quarterly over a two-year period, commencing March 31,
2006. Other terms shall be as set forth in NIM's stock option plan or related
grant letter, a copy of which is attached as Exhibit C. Provided that Executive
is then employed by the Company, additional stock options may be granted to
Executive at the end of each calendar year of employment based on the success of
the Company's business in accordance with criteria established by, and at the
sole discretion of, the Chief Executive Officer of NIM, as approved by the Board
of Directors of 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 his 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 his 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 his 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.
(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.
(B) Payments to Executive Upon Termination of This Agreement.
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(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; (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; (d) an amount equal to any earned but unpaid Bonus prior to
the Termination Date and (e) 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 Termination Date; (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 Bonuses; (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 and Executive, which is incorporated herein by reference
and shall survive the expiration or termination of this Agreement.
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.
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(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: Xxxxx Xxxx Herald,
Esq., 000 Xxxx Xxxxxx Xxxxxx Xxxxx, Xxxxx, XX 00000-0000, 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,
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.
(E) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania 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 Commonwealth of
Pennsylvania located in the County of Xxxxxxx and the Federal court in the
Eastern District of Pennsylvania 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.
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(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.
VALLEY FORGE ENTERPRISES, LTD.
By: __________________________
Name:
Title:
______________________________
XXXXXX X. XXXX
[SIGNATURE PAGE - XXXX EMPLOYMENT AGREEMENT]
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EXHIBIT A
Account Executive Productivity Compensation Program
The Account Executive Productivity Compensation Program (AEPCP) has been an
integral part of VFE's compensation system for approximately twenty years. It
has evolved significantly from its inception, as have VFE operations over the
same period.
Basically, the AEPCP measures the revenue that is received by VFE during each
fiscal year as a result of the efforts of a particular Account Executive (AE) on
behalf of new and existing clients. These revenues are then classified by line
of business (e.g. pension, insurance, and investment) and type (e.g.,
original-new, transferred-new, and transferred-existing). The amount of each
category of revenue is then multiplied by the percentage that applies to that
revenue category. See Chart of Five for further details and credit percentages
that applied for fye Feb-2005. Also see, Interoffice Memorandum dated March 1,
1995 regarding New Business Incentive. These amounts are then totaled to
determine that AE's total Productivity Compensation for that year.
An AE is entitled to a Productivity Bonus equal to the amount by which his
Productivity Compensation exceeds the amount of his non-refundable Draw
Compensation for the same period.
After the merger of VFE, the AEPCP will continue in its current form for all
AE's other than Xxxx Xxxxxxx and Xxxxx Xxxx (Xxxx and Xxxxx) and will continue
for Xxxx and Xxxxx in a modified form.
After the merger of VFE, for Xxxx and Xxxxx there will be one conceptual
difference, since Xxxx and Xxxxx have, in essence, sold their recurring revenue
to National Investment Managers, Inc. (NIM) in exchange for various
considerations plus a wage pool of $350,000 to be shared by Xxxx and Xxxxx and,
eventually, a new hire. For Xxxx and Xxxxx, the Productivity Bonus will be
attributable to only (a) the revenues from new clients (b) sales of new
insurance policies, including but not limited to sales of new policies to
clients that previously purchased insurance, and (c) sales of products and
services to existing clients different than the products and services purchased
by such existing clients before March 1, 2005 and there will be no offset by the
$350,000 compensation pool. New clients will be those that are not on the books
of VFE as of February 28, 2005, that date being the end of the EBITDA measuring
period. The standard New Business Incentive adjustment to payout percentages
under the Chart of Five will continue to apply to Xxxx and Xxxxx. A three-page
copy of the Chart of Five (one page each for pension, insurance and investments)
and a one-page interoffice memorandum dated March 1, 1995 regarding "New
Business Incentive" are attached, incorporated by reference and made a part of
this Exhibit A.
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EXHIBIT B
Non-Recurring Fringe Benefits
Auto reimbursement in excess of IRS mileage rate
Cell phones for wives
Reimbursement of Personal Disability Coverage
Reimbursement of Personal Long Term Care Insurance
Club Dues
Key Man Insurance
Exotic Travel
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EXHIBIT C
Stock Option Plan
[Attached]
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EXHIBIT D
EBITDA Bonus Plan
In the event that the Company and the Company Subsidiaries achieve, during
the 12-month period commencing January 1, 2006 (the "First Measurement Period"),
on a consolidated basis, EBITDA (as defined below) of more than $1,000,000 (the
"Minimum EBITDA"), as determined by MergerCo's Chief Financial Officer in
accordance with GAAP, Executive and Xxxx X. Xxxxxxx ("Holland") shall be
entitled to a cash bonus ("EBITDA Bonus") equal to the amount by which EBITDA
for the First Measurement Period exceeds the Minimum EBITDA, up to a maximum
EBITDA Bonus for the First Measurement Period of $275,000 in the aggregate for
both Executive and Holland. The EBITDA Bonus shall be allocated between
Executive and Holland in accordance with the joint written instruction of
Executive and Holland; if no such instruction is provided, then each of
Executive and Holland shall be entitled to 50% of the EBITDA Bonus. Such EBITDA
Bonus shall be paid to Executive no later than the date of the first scheduled
payroll following the date of completion of NIM's annual audit for the period to
which the EBITDA Bonus relates, accompanied by a written notice from MergerCo
(an "EBITDA Computation Notice") setting forth the Chief Financial Officer's
determination of EBITDA for the First Measurement Period together with the Chief
Financial Officer's worksheet setting forth the computation of EBITDA in
reasonable detail.
In the event that the Company and the Company Subsidiaries achieve, during
the 12-month period commencing January 1, 2007 (the "Second Measurement
Period"), on a consolidated basis, EBITDA of more than $1,000,000 (the "Minimum
EBITDA"), as determined by MergerCo's Chief Financial Officer in accordance with
GAAP, Executive and Holland shall be entitled to a cash bonus ("EBITDA Bonus")
equal to the amount by which EBITDA for the Second Measurement Period exceeds
the Minimum EBITDA, up to a maximum EBITDA Bonus for the Second Measurement
Period of $275,000 in the aggregate for both Executive and Holland. Executive
and Holland shall each be entitled to 50% of such EBITDA Bonus. Such EBITDA
Bonus shall be paid to Executive no later than the date of the first scheduled
payroll following the date of completion of NIM's annual audit for the period to
which the EBITDA Bonus relates, accompanied by an EBITDA Computation Notice
setting forth the Chief Financial Officer's determination of EBITDA for the
Second Measurement Period together with the Chief Financial Officer's worksheet
setting forth the computation of EBITDA in reasonable detail.
Thirty (30) days after receipt by the Executive of an EBITDA Computation
Notice, MergerCo's computation of EBITDA therein shall be deemed final and
binding on the parties unless, prior thereto, Executive shall have delivered to
MergerCo a written notice disputing the EBITDA computation and setting forth the
reasons for such dispute in reasonable detail. In the event that a dispute
notice is timely delivered, the determination of EBITDA shall be made by
Xxxxxxxx Xxxxxx Xxxxx LLP, whose expenses shall be shared equally by the
parties, and whose determination shall be final and binding on the parties.
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For purposes of this Agreement, "EBITDA" means pre-tax income, plus
interest expense, plus depreciation and amortization expense, plus lost revenues
resulting from any changes made by NIM with respect to a broker/dealer for VF
Investment Services Corp., V.F. Associates, Inc. or their producers that creates
higher or additional broker/dealer fees (but excluding any adjustment that would
otherwise result from reduced broker/dealer fees), as further adjusted by any
business combination of the Company or any Company Subsidiary after the date
hereof that directly or indirectly causes a decrease in EBITDA. The
determination of EBITDA for any period shall not be reduced by the amount of the
EBITDA Bonus for such period. Furthermore, EBITDA shall be increased by the
following: (i) any corporate overhead or administrative expenses charged by the
Company's parent in the form of management fees, overhead allocations or similar
charges; (ii) additional expenses directly caused by changes implemented by NIM
to the Company's profit sharing plan contributions or 401(k) matching expenses
for Company employees; (iii) additional expenses directly caused by changes
implemented by NIM during the 2006 calendar year to the Company's plan
administration software or plan administration record keeping; and (iv)
additional expenses directly caused by changes implemented by NIM to the
Company's health insurance and dental insurance plans for its employees.
Notwithstanding the foregoing:
(a) If the employment of Executive has terminated prior to the end of
the First Measurement Period due to (i) Executive's termination for
"Cause", (ii) Executive's death or Disability or (iii) Executive's
voluntary termination of employment, as the case may be, but
excluding a termination without Cause (collectively, a "Termination
Event"), then Executive shall be entitled to a ratable portion of
the EBITDA Bonus, if any, for the First Measurement Period based on
the portion of the First Measurement Period preceding the date of
the Termination Event, and shall forfeit the right to receive an
EBITDA Bonus for the balance of the First Measurement Period and the
Second Measurement Period.
(b) If the employment of Executive has terminated due to a Termination
Event after the end of the First Measurement Period but prior to the
end of the Second Measurement Period, then Executive shall be
entitled to a ratable portion of the EBITDA Bonus, if any, based on
the portion of the Second Measurement Period preceding the date of
the Termination Event and shall forfeit the right to receive an
EBITDA Bonus for the balance of the Second Measurement Period.
(c) In the event that Executive has been terminated on account of a
Termination Event, Executive's forfeited portion of the EBITDA Bonus
shall be paid to Holland for so long as a Termination Event has not
occurred with respect to Holland. At such time as both Executive and
Holland have been terminated due to a Termination Event, the EBITDA
Bonus payable by the Company for the applicable Measurement Period
shall be reduced on a pro rated basis as of the date of the later of
the two Termination Events.
(d) In the event that Executive has been terminated without Cause prior
to the end of the First Measurement Period or the Second Measurement
Period, Executive will nonetheless be entitled to the full amount of
the EBITDA Bonus, if any, payable for such period.
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EXHIBIT E
BONUS PROVISIONS
Pre-Tax Net Profits Bonus Pool
For the twelve-month period commencing January 1, 2006 and ending December
31, 2006, the Company will set aside for the Company's employees a bonus pool
("Pre-Tax Net Profits Bonus Pool") equal to ten percent (10%) of the amount by
which the Company's Pre-Tax Net Profits for such calendar year exceeds One
Million One Hundred Thousand Dollars ($1,100,000.00), based on the Company's
audited financial statements for the 2006 calendar year.
For the twelve-month period commencing January 1, 2007 and ending December
31, 2007, the Company will set aside for the Company's employees a Pre-Tax Net
Profits Bonus Pool equal to ten percent (10%) of the amount by which the
Company's Pre-Tax Net Profits for such calendar year exceeds the greater of (i)
One Million One Hundred Thousand Dollars ($1,100,000.00) or (ii) Pre-Tax Net
Profits for the 2006 calendar year, based on the Company's audited financial
statements for the 2006 and 2007 calendar years.
Xxxx X. Xxxxxxx will submit a proposed allocation of the bonus pool to the
Chief Executive Officer and Chief Operating Officer of National Investment
Managers Inc., who will have the discretion to allocate the pool in the exercise
of his business judgment. Such amount allocated to the employees shall be
payable to them no later than 120 days after the calendar year to which it
relates, pro-rated for any partial year of employment.
"Pre-Tax Net Profits" for any period shall mean the pre-tax net income (if
any), as defined by GAAP (as such term is defined in the Merger Agreement), of
the Company for such period (after adjustment for any EBITDA Bonuses payable to
Executive and Holland) as determined by the Company's certified public
accountants, which determination shall be binding on the parties.
For purposes of this Exhibit E, "Company" means, collectively, Valley
Forge Enterprises, Ltd., Valley Forge Consulting Corporation, V.F. Associates,
Inc. and VF Investment Services Corp.
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