AGREEMENT
AGREEMENT
This
Agreement (the “Agreement”)
is
dated November __, 2007 and is made by and among National Investment Managers
Inc. (the “Company”), DC Associates LLC (“DCA”),
and
Xxxxxxx Xxxx, an individual residing in
0000 Xxxxx Xx, Xxxxxxxxx, XX 00000 (“Crow”
and,
together with DCA, the “Xxxxxx
Parties”).
WHEREAS,
the
Company and DCA entered into that certain advisory agreement dated January
1,
2006, as amended, including pursuant to a Memorandum dated February 15, 2007
from Xxxxxx Capital Group, LLC to the Company (the “DCA
Agreement”)
pursuant to which DCA agreed to provide the Company with financial consulting
services;
WHEREAS,
a true
and correct copy of the DCA Agreement is attached as Exhibit
B
hereto.
WHEREAS,
DCA has
provided certain advisory services to the Company pursuant to the DCA Agreement,
including, without limitation, (i) advice to the Company in structuring the
Company’s Series E Private Placement, (ii) advice to the Company in structuring
the Company’s issuance of notes and borrowings of loans from certain proposed
investors, (iii) advice to the Company in the operations of the Company and
integration of recent acquisitions, and (iv) advice regarding a possible
sale of
the Company and introductions to investment banking firms in connection
therewith (collectively, the “Performed
Services”);
WHEREAS,
the DCA
Agreement, pursuant to its terms, provides that the Company shall pay to
DCA a
monthly retainer fee of $10,000 for the remaining months on the term of the
DCA
Agreement (i.e. November and December 2007) (the “Balance
Consulting Fee”);
WHEREAS,
the DCA
Agreement provides that DCA may be entitled to a fee in an amount to be
negotiated for services which may be provided by DCA as an advisor to the
Company in connection with possible future corporate and/or capital
opportunities of the Company (the “Prospective
Fees”);
WHEREAS,
the
Company and the Xxxxxx Parties have agreed to terminate DCA’s and Crow’s rights
and obligation to provide services under the DCA Agreement on the terms and
conditions set forth herein;
WHEREAS,
the
Company and the Xxxxxx Parties desire to terminate DCA’s and Crow’s rights and
obligation to provide services under the DCA Agreement on the terms and
conditions set forth herein and all compensation owed pursuant to the DCA
Agreement including, but not limited to, all amounts owed in respect of the
Performed Services, the Balance Consulting Fee and the Prospective Fees;
WHEREAS,
as
consideration for the Xxxxxx Parties agreeing to cancel their rights under
the
DCA Agreement on the terms set forth therein, the Company will pay DCA a
one-time sum of, $80,000 (the “Settlement
Payment”);
WHEREAS,
Crow is
legal and beneficial owner of 100% of the equity interests in DCA and is
the
sole and ultimate recipient of the benefits flowing to DCA from the DCA
Agreement; and
WHEREAS,
the
parties agree that the Settlement Payment has been negotiated on arm’s-length
terms and represents the parties informed and considered judgment as to a
fair
and reasonable estimate for the mutual agreements contained herein.
NOW,
THEREFORE,
in
consideration of the mutual conditions and covenants contained in this
Agreement, and for other good and valuable consideration, the sufficiency
and
receipt of which is hereby acknowledged, it is hereby stipulated, consented
to
and agreed by and among the Company and the Xxxxxx Parties as
follows:
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1. DCA
and
Crow agree that, except as set forth in the immediately succeeding sentence,
all
obligations of the Company under the DCA Agreement (whether now existing
or
hereafter arising, contingent or liquidated, earned or prospective, known
or
unknown), including all obligations in respect of the Performed Services,
the
Balance Consulting Fee and the Prospective Fees, and all other obligations
for
fees, compensation and expenses, shall be terminated, discharged, satisfied,
waived, relinquished and released. Notwithstanding the foregoing, the Company
and DCA agree that the indemnification obligations of the Company set forth
in
Section 7 and Exhibit A of the DCA Agreement shall survive and shall remain
in
effect; provided
that
the
Exhibit A to the DCA Agreement shall be modified by deleting the penultimate
sentence of the first paragraph thereof and inserting the following new
sentence: “The Company will not, however, be responsible for any Claim to the
extent arising from the negligence, gross negligence, willful misconduct
or
unlawful actions of any person seeking indemnification hereunder.”
2. DCA
and
Crow represent, warrant and agree that, except for the Agreement attached
as
Exhibit
B
hereto
(as in effect on the date hereof, the “Continuing
Arrangements”),
the
DCA Agreement is the only existing agreement between DCA, Crow or any of
their
affiliates, on the one hand, and the Company or any of its affiliates, on
the
other hand, and the only agreement pursuant to which the Company or any of
its
affiliates has any obligation, contingent, prospective, or otherwise, to
DCA,
Crow or any of their affiliates (all such other agreements and obligations,
exclusive of the Continuing Arrangements, referred to herein as the
“Other
Agreements”).
Except for the Continuing Arrangements and the indemnification obligations
of
the Company set forth in Section 7 and Exhibit A of the DCA Agreement (as
modified pursuant to paragraph 1 hereof), DCA, Crow, on behalf of themselves
and
their affiliates, successors and assigns, hereby terminate, discharge,
relinquish, waive and release any and all other claims for any fees,
compensation and expenses against the Company or any Company Person (defined
below) under or in connection with the Other Agreements.
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3. In
consideration for DCA and Crow agreeing to terminate the Company’s obligations
under DCA Agreement (other than as expressly set forth above), the Company
agrees to make the Settlement Payment to DCA upon the closing of the Company’s
contemplated financing arrangements. The Company agrees that, upon the
effectiveness hereof, all further obligations of DCA and/or Crow to act as
a
financial consultant to the Company under the DCA Agreement are terminated
and
discharged.
4. DCA
and
Crow warrant and represent that no person or entity other than DCA or Crow
has
now or ever had any interest in the DCA Agreement, the Other Agreements,
the
Performed Services, the Balance Consulting Fee, or the Prospective Fees herein,
and that neither of them has assigned or transferred, or purported to assign
or
transfer, to any person or entity all or any portion of the foregoing or
any of
the rights or benefits thereunder.
5. The
parties understand and agree that this Agreement, including the facts and
circumstances underlying this Agreement shall forever be deemed confidential
among the parties to this Agreement unless disclosure of the facts and
circumstances is required by law or to enforce the terms hereof; provided
that
the
Company may disclose this Agreement and the subject matter hereof to any
of the
Company’s past, present and future: heirs, executors, successors,
administrators, insurers, assigns, shareholders, investors, lenders, and
each
past, present and future advisor, attorney, consultant and other advisor
of the
foregoing (collectively, the “Company
Persons”).
DCA
and Crow further agree that the Company’s rights hereunder may be collaterally
assigned to certain Company Persons and that such Company Persons shall be
entitled to enforce the provisions hereof. DCA and Crow agree that each of
the
Company Persons is an intended third party beneficiary of this Agreement,
that
certain Company Persons are entering into financing arrangements with the
Company in reliance upon the representations and agreements of DCA and Crow
hereunder, and that the representations and agreements of DCA and Crow hereunder
shall be a material inducement to such Company Persons agreeing to enter
into
such financing arrangements with the Company.
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6. Each
party acknowledges and represents that: (a) they have read the Agreement;
(b)
they clearly understand the Agreement and each of its terms; (c) they fully
and
unconditionally consent to the terms of this Agreement; (d) they have had
the
benefit and advice of counsel of their own selection; (e) they have executed
this Agreement, freely, with knowledge, and without influence or duress;
(f)
they have not relied upon any other representations, either written or oral,
express or implied, made to them by any person; and (g) the consideration
received by them has been actual and adequate.
7. This
Agreement contains the entire agreement and understanding concerning the
subject
matter hereof between the parties and supersedes and replaces all prior
negotiations, proposed agreement and agreements, written or oral. Each of
the
parties hereto acknowledges that neither any of the parties hereto, nor agents
or counsel of any other party whomsoever, has made any promise, representation
or warranty whatsoever, express or implied, not contained herein concerning
the
subject hereto, to induce it to execute this Agreement and acknowledges and
warrants that it is not executing this Agreement in reliance on any promise,
representation or warranty not contained herein.
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8. This
Agreement may not be modified or amended in any manner except by an instrument
in writing specifically stating that it is a supplement, modification or
amendment to the Agreement and signed by each of the parties hereto, with
the
prior written consent of the Company’s lenders.
9. Should
any provision of this Agreement be declared or be determined by any court
or
tribunal to be illegal or invalid, the validity of the remaining parts, terms
or
provisions shall not be affected thereby and said illegal or invalid part,
term
or provision shall be severed and deemed not to be part of this Agreement.
10. The
Parties agree that this Agreement is governed by the Laws of the State of
New
York and that any and all disputes that may arise from the provisions of
this
Agreement shall be tried in the Supreme Court, State of New York, County
of New
York. THE
PARTIES AGREE TO WAIVE THEIR RIGHT TO TRIAL BY JURY FOR ANY DISPUTE ARISING
OUT
OF THIS AGREEMENT.
11. This
Agreement may be executed in facsimile counterparts, each of which, when
all
parties have executed at least one such counterpart, shall be deemed an
original, with the same force and effect as if all signatures were appended
to
one instrument, but all of which together shall constitute one and the same
Agreement.
[REMAINDER
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IN
WITNESS WHEREOF,
the
parties have duly executed this Agreement as of the date first indicated
above.
/s/
Xxxxxx Xxxx
Name: Xxxxxx
Xxxx
Title:
CEO
DC
Associates LLC
/s/Xxxxxxx
Xxxx
Name:
Xxxxxxx Xxxx
Title:
/s/
Xxxxxxx
Xxxx
Xxxxxxx
Xxxx, an individual
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Exhibit
A
Copy
of
DCA Agreement dated January 1, 2006 and Memorandum dated February 15,
2007
8
Exhibit
B
Copy
of
Agreement, dated as of December 20, 2006 by and among the Company, Xxxxxx
Capital Group LLC, and DCI Master LDC.
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