EMPLOYMENT AGREEMENT
Employment Agreement, dated as of December 1, 2006, by and between XXXX X.
XxXXXX, an individual with an address at 0000 Xxxxx Xxxx, Xxxxxxxx, Xxxxx 00000
("Executive"), and National Actuarial Pension Services, Inc., a Texas
corporation with its principal office located at 00000 Xxxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000 (the "Company").
RECITALS
A. Pursuant to that certain Stock Purchase Agreement, dated as of December
1, 2006 (the "Purchase Agreement"), by and among, the Company, National
Investment Managers Inc. ("NIM") and Xxxxxxx X. XxXxxx ("X. XxXxxx") and Xxxx X.
XxXxxx ("X. XxXxxx" and collectively with X. XxXxxx, the "Sellers"),
contemporaneously with the execution of this Agreement, NIM acquired Sellers'
equity interest in the Company.
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
Assistant Treasurer 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. 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" to the performance of his duties for the Company
in accordance with the terms hereof. For purposes of this Section 1, "full
business time" shall mean an average of 37.5 hours per week for the Term as
extended.
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 Twelve Thousand Five Hundred Dollars
($12,500).
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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 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.
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 A annexed hereto.
(C) Vacation/CE. Executive shall be entitled to 15 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. Executive may
attend continuing education conferences in accordance with Company policy
without loss of compensation, which shall include attendance at Board of
Directors and other committee meetings for American Society of Pension
Professionals and Actuaries and similar organizations.
(D) Sick Leave. Executive shall be entitled to sick leave in accordance
with Company policy.
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). The Executive may terminate this Agreement for Good Reason,
immediately upon written notice from the Executive to the Company.
(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
thirty (30) consecutive days or thirty (30) days in any one hundred eighty
(180)-day period because of any mental or physical incapacity.
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(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 five (5) days after written 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 five (5) days after written 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, 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.
(iv) The term "Good Reason" shall mean (a) the breach by the Company
of this Agreement, including the failure by the Company to make payments
required to be made to the Executive under this Agreement and the failure to
cure such breach within 15 days after receipt of written notice thereof from
Executive, or (b) the imposition by the Company of a requirement that the
principal office of the Company from which the Executive will perform services
under this Agreement be located outside of the Houston, Texas metropolitan area
unless such relocation of the principal office of the Company is agreed to in
writing by the Executive.
(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 or by the Executive for Good
Reason, 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; 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 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.
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(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; (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.
(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:1819 Xxxxx Xxxx,
Xxxxxxxx, Xxxxx 00000, fax no. ______________; and if to the Company, to:
National Investment Managers Inc., shall be in writing and shall be given in
accordance with the notice provisions of the Purchase Agreement.
(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.
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(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 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 district court for the Southern District of New York located in the
County 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.
NATIONAL ACTUARIAL PENSION SERVICES, INC.
By: /s/Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
/s/ Xxxx X. XxXxxx
-----------------------------
Xxxx X. XxXxxx
[SIGNATURE PAGE - XXXX X. XxXXXX EMPLOYMENT AGREEMENT]
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EXHIBIT A
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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