EMPLOYMENT AGREEMENT
Exhibit
10.75
This
Employment Agreement (“Agreement”) is entered on November 30, 2007 (the
“Execution Date”) and is effective as of the closing of the Xxxxxx/Xxxxxxxx
financing (“Effective Date”) between National Investment Managers Inc.
(“Company”) and Xxxxxx X. Xxxx (“Executive”).
RECITALS
Company
wishes to employ Executive as its Chief Executive Officer and Executive wishes
to accept such employment under the terms and conditions set forth in this
Agreement.
IT IS AGREED as
follows:
1. Employment. Company
hereby employs Executive as its Chief Executive Officer. Executive
accepts such employment.
2. Term. The term of
employment under this Agreement shall commence on the Effective Date and shall
continue, unless otherwise terminated earlier under Section 11, until December
31, 2009. The Term shall be automatically extended for an additional
one (1) year period unless at least thirty (30) days prior to such anniversary
date, either Company or Executive furnishes the other with written notice that
the Term not be so extended.
3. Duties. Executive
shall devote his full-time efforts to the proper and faithful performance of all
duties customarily discharged by a Chief Executive Officer, consistent with
Company policies and budgets and directives of Company’s Board of Directors,
together with any additional duties assigned to him from time to time by the
Board of Directors. Executive agrees to use his best efforts and
comply with all fiduciary and professional standards in the performance of his
duties. Executive shall provide services to any subsidiary of Company
without additional compensation and benefits beyond those set forth in this
Agreement. Executive shall serve on the Board(s) of Directors of
Company and any subsidiary.
4. Base
Salary. Executive shall be paid an initial base salary of Four
Hundred Seventy-Five Thousand Dollars ($475,000.00) per annum for the Term
payable, less applicable withholding, in equal monthly payments or more
frequently in accordance with Company’s regular practice. Upon
extension of the Term, Executive’s base salary will be set by the Compensation
Committee of Company; provided, however, that Executive’s base salary shall not
be reduced from the base salary in effect prior to the extension of the
Term. In addition to his base salary, Executive shall receive
non-cash compensation for service on the Board of Directors in an amount
consistent with the non-cash compensation of other non-employee Board members,
including annual stock option grants issued to Board members.
5. Bonus. Executive
shall be eligible to receive an incentive bonus during each fiscal year of the
Term. The annual bonus shall be targeted at fifty percent (50%) of
Executive’s base salary based upon the achievement of certain targets to be
determined by the Company’s Board of Directors; provided, however, the annual
bonus for the second year of the contract shall be targeted at sixty-five
percent (65%) of Executive’s base salary based upon the achievement of certain
targets to be determined by the Company’s Board of Directors. The
Executive remains eligible for payment of the 2007 fiscal year
bonus.
Exhibit
10.75
6. Restricted
Stock. 700,000 shares of Restricted Stock provided for in the
October 24, 2006 Employment Agreement and not yet issued shall be issued on
January 2, 2008. Executive shall receive an additional grant of
200,000 shares of restricted stock in the Company, of which 100,000 shares are
to be issued on December 31, 2008, and 100,000 shares on December 31, 2009, or
immediately upon contract termination. Executive is granted piggyback
registration rights on all shares issued pursuant to this contract.
7. Stock
Options. Executive retains previously granted stock options to
acquire 400,000 shares of common stock of the Company. Provided that
(i) Executive’s employment shall not have been terminated by the Company for
Cause or (ii) Executive’s employment shall not have been terminated due to
Disability, or (iii) Executive shall not have terminated his employment for
other than Good Reason, Executive shall also receive an option grant to purchase
800,000 shares of the Company stock at $0.57, of which 400,000 will vest on
December 31, 2008 and 400,000 will vest on December 31, 2009.
8. Change of
Control.
|
(a)
|
Definitions
|
|
(i)
|
A
"Change of Control" shall be deemed to have occurred if any of the
following occurs with respect to the
Company
|
|
(1)
|
Any
person or group of persons (within the meaning of the Securities Exchange
Act of 1934) shall have acquired beneficial ownership (within the meaning
of Rule 13D-3 promulgated by the Securities and Exchange Commission under
the Securities Exchange Act of 1934,) of 50% or more of the issued and
outstanding shares of capital stock of the Company having the right to
vote for the election of directors of the Company under ordinary
circumstance;
|
|
(2)
|
a
merger or consolidation in which the Company is not the surviving
entity;
|
|
(3)
|
the
sale, exchange, or transfer of all or substantially all of the assets of
the Company;
|
|
(4)
|
a
liquidation or dissolution of the Company;
or
|
|
(5)
|
a
repayment in full in cash of all obligations of Xxxxxx and Xxxxxxxx,
including the financing debt which closes as of the date
hereof.
|
2
Exhibit
10.75
|
(b)
|
Effect
of Change of Control on Shares and Options. In the event of an
eligible Change of Control, any unissued Shares or Options shall be vested
immediately and issued. The vesting of the Shares or Options
permissible solely by reason of this Section 8(b) shall be conditioned
upon the consummation of the Change of
Control.
|
9. Benefits.
|
(a)
|
Executive
shall be entitled to participate in all Company sponsored retirement
plans, 401(k) plans, life insurance plans, medical insurance plans,
short-term and long-term disability insurance plans, and such other
benefit plans generally available from time to time to executive
management of the Company for which he qualifies under the terms of the
plans. Executive’s participation in and benefits under any
benefit plan shall be on the terms and subject to the conditions specified
in such plan. The Company shall supplement the insurance
coverage and benefits in a separate executive benefits plan, including
supplementary health insurance coverage, a minimum of $1 million life
insurance coverage and appropriate long-term disability coverage, to be
fully paid by Company.
|
|
(b)
|
Executive
will receive at least four (4) weeks of paid vacation per
year.
|
|
(c)
|
Executive
shall receive a housing and office allowance of Five Thousand Dollars
($5,000.00) per month.
|
|
(d)
|
The
Company shall maintain directors’ and officers’ insurance for the benefit
of Executive of the type and with at least the same coverage as the
directors’ and officers’ insurance currently in
effect.
|
10. Reimbursement of
Expenses. The Company will reimburse Executive for the
ordinary and necessary expenses incurred by him in the performance of his duties
under this Agreement in accordance with the Company’s policies in effect from
time to time (it being understood that such expenses shall not include housing
expenses in the New York area or office expenses in California, it being
understood that the allowance set forth in Section 9(c) may be applied in
payment of such expenses).
11. Termination of
Employment.
|
(a)
|
Executive’s
employment under this Agreement may be terminated at any time by the Board
of Directors of Company for Cause.
|
|
(b)
|
Executive’s
employment under this Agreement shall terminate upon expiration of the
Term without extension as described in Section
2.
|
|
(c)
|
Executive’s
employment under this Agreement shall terminate upon his resignation or
death.
|
|
(d)
|
Executive’s
employment under this Agreement shall terminate upon written notice by
Company to Executive of a termination due to
Disability.
|
3
Exhibit
10.75
|
(e)
|
If
Executive’s employment terminates for Cause, Company shall be obligated
only to continue to pay Executive’s base salary and, to the extent earned,
accrued and unpaid, annual incentive bonus and vacation pay, and furnish
the then existing benefits under Section 9 up to the date of termination;
provided, that if Executive’s employment is terminated as a result of
Executive’s Disability, Executive shall remain eligible for benefits under
any long-term disability program of Company, as amended from time to time,
as long as his Disability continues. Executive shall also be
entitled to reimbursement of all
expenses.
|
|
(f)
|
If
Executive’s employment is terminated by Company or Board of Directors
other than for Cause (which shall not include termination in connection
with non-renewal pursuant to Section 2), or in the event the Executive
terminates employment for Good Reason, or in the event of a Change in
Control, in addition to the amounts payable under Section 11(e), Executive
shall be entitled to receive (a) a lump sum payment equivalent to one year
of his current base salary and the targeted bonus compensation pursuant
hereto payable for such year and medical and other insurance benefits
under Section 9(a) for a period of twelve (12) months or (b) if there are
more than twelve (12) months remaining in the Term at the time of
termination, payment of current base salary for such period in excess of
twelve (12) months and any targeted bonus compensation (if any) for any
subsequent year during the Term, in each case, payable as and when such
amounts would have been paid in the absence of termination; provided that,
in the event of termination in the event of a Change of Control, the
amounts set forth in this clause (b), if any, shall be paid upon
termination in a lump sum. Further, if Executive’s employment
is terminated by Company or Board of Directors other than for Cause (but
excluding termination in connection with non-renewal pursuant to Section
2), or in the event the Executive terminates employment for Good Reason,
or in the event of a Change in Control, in addition to the amounts payable
under Section 11(e) and 11(f), Executive shall be entitled to receive any
restricted stock not yet issued at the time of termination, including the
100,000 shares due December 31, 2009, will be issued to Executive, and any
options granted Executive not yet vested will fully
vest. Further, (a) if Executive’s employment is terminated due
to non-renewal by Company pursuant to Section 2 at the end of the Term
where the Executive has offered to continue Executive’s employment on
substantially similar terms, but Company declines, Executive shall be
entitled to receive a lump sum payment equivalent to nine (9) months of
his current base salary, (b) if Executive’s employment is terminated due
to a non-renewal by Executive pursuant to Section 2 at the end of the Term
where the Company has offered to continue Executive’s employment on
substantially similar terms, but Executive declines, no additional
payments will be made, and (c) in the event of any other non-renewal at
the expiration of the Term, no additional payments will be
made. As a condition to the salary and benefit continuation
under this Section 11(f), Executive must first execute and deliver to
Company, in a form prepared by Company, a release of all claims against
Company and other appropriate parties, excluding Company’s performance
under this Section 11(f) and of Executive’s vested rights under any
Company sponsored retirement plans, 401(k) plans and stock ownership
plans. Executive shall also be entitled to reimbursement of all
expenses.
|
4
Exhibit
10.75
12. Definitions. The
meaning of certain terms in this Agreement are as follows:
|
(a)
|
“Cause”
shall consist of any of the
following:
|
|
(i)
|
the
Executive is convicted of, or has pleaded guilty or entered a plea of nolo
contendere to, a felony (under the laws of the United States or any state
thereof);
|
|
(ii)
|
fraudulent
conduct by the Executive in connection with the business or other affairs
of the Company or any related company or the theft, embezzlement, or other
criminal misappropriation of funds by the Executive from the Company or
any related company;
|
|
(iii)
|
the
Executive’s failure to perform the duties of Chief Executive Officer,
after reasonable notice has been provided of such non-performance and, if
such failure is curable, Executive has not cured such failure within a
reasonable period following such notice;
or
|
|
(iv)
|
the
Executive’s failure to comply with reasonable directives of the Board
which are communicated to him in writing, after reasonable notice has been
provided of such non-performance and, if such failure is curable,
Executive has not cured such failure within a reasonable period following
such notice.
|
|
(b)
|
“Disability”
means the inability of Executive, due to injury, illness, disease or
bodily or mental infirmity, to engage in the performance of his material
duties of employment with Company as determined in good faith by Company,
for (i) any period of one hundred twenty (120) consecutive days or (ii) a
period of one hundred eighty days (180) in any continuous twenty-four (24)
month period, provided that interim returns to work of less than ten (10)
consecutive business days in duration shall not be deemed to interfere
with a determination of consecutive absent days if the reason for absence
before and after the interim return are the same. Benefits to
which Executive is entitled under any disability policy or plan provided
by Company shall reduce the base salary paid to Executive during any
period of Disability on a dollar-for-dollar
basis.
|
|
(c)
|
“Good
Reason” means (a) any material reduction in the Base Salary or executive
duties and responsibilities of the Executive or (b) any material breach by
the Company of this Agreement that continues without cure for a period of
thirty (30) days after notice of such breach is given by Executive to the
Company.
|
13. Confidential
Information. During Executive’s employment with the Company
and at all times after the termination of such employment, regardless of the
reason for such termination, Executive shall hold all Confidential Information
relating to the Company in strict confidence and shall not use, disclose or
otherwise communicate the Confidential Information to anyone other than the
Company without the prior written consent of the
Company. “Confidential Information” includes, without limitation,
financial information, trade secrets, business plans, business methods or
practices, market studies, customer lists, referral lists and other proprietary
business information of the Company. “Confidential Information” shall
not include information which is or becomes in the public domain through no
action by Executive or information which is generally disclosed by the Company
to third parties without restrictions on such third
parties. Executive shall return all Confidential Information to the
Company upon termination of employment.
5
Exhibit
10.75
14. Solicitation of
Customers. During his employment with the Company and for a
period after the termination of Executive’s employment, regardless of the reason
for the termination, equal to one (1) year in addition to the period for which
Executive receives payment of his base salary under Section 11(e) of (f) (the
“Non-Solicitation Period”), Executive shall not influence or attempt to
influence, directly or indirectly, any customer of the Company to divert its
business away from the Company.
15. Soliciting
Employees. Executive agrees that during his employment with
the Company and during the Non-Solicitation Period, he will not directly or
indirectly solicit any person who is then, or at any time within six months
prior thereto was, an employee of the Company to work for any person or
entity.
16. Non-Competition. During
his employment with the Company and for a period after termination of
Executive’s employment, regardless of the reason for the termination, equal to
one (1) year in addition to the period for which Executive receives payment of
his base salary under Section 11(e) or (f), Executive shall not, directly or
indirectly, in any capacity:
|
(a)
|
Engage,
own or have any interest in;
|
|
(b)
|
Manage,
operate, join, participate in, accept employment with, render advice to,
or become interested in or be connected
with;
|
|
(c)
|
Furnish
consultation or advice to; or
|
|
(d)
|
Permit
his name to be used in connection
with;
|
any
person or entity that is engaged in the business of retirement plan consulting,
design or administration. Notwithstanding the foregoing, holding five
percent (5%) or less of an interest in the equity, stock options or debt of any
publicly traded company shall not be considered a violation of this Section
16.
17. Remedies. In the
event of a material breach or threatened material breach of Section 13, Section
14, Section 15 or Section 16, Company, in addition to its other remedies at law
or in equity, shall be entitled to injunctive or other equitable relief in order
to enforce or prevent any violations of the aforementioned
Sections. In the event of any such material breach, if applicable
Company may immediately cease payment of Executive’s base salary and the
providing to Executive of benefits under Section 11(e) or (f).
6
Exhibit
10.75
18. Severability and
Savings. Each provision in this Agreement is separate. If
necessary to effectuate the purpose of a particular provision, the Agreement
shall survive the termination of Executive’s employment with the
Company. If any provision of this Agreement, in whole or in part, is
held to be invalid or unenforceable, the parties agree that any such provision
shall be deemed modified to make such provision enforceable to the maximum
extent permitted by applicable law. As to any provision held to be invalid or
unenforceable, the remaining provisions of this Agreement shall remain in
effect.
19. Binding
Effect. This Agreement shall be binding upon and shall inure
to the benefit of Company and its successors and assigns. This Agreement shall
be binding upon and inure to the benefit of Executive, his heirs and personal
representatives. This Agreement is not assignable by
Executive.
20. Miscellaneous.
|
(a)
|
No
provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing and signed
by the Company and Executive. The waiver or nonenforcement by
the Company of a breach by Executive of any provision of this Agreement
shall not be construed as a waiver of any subsequent breach by
Executive.
|
|
(b)
|
Any
notice under this Agreement must be in writing and delivered personally or
by overnight courier, sent by facsimile transmission or mailed by
registered or certified mail to the parties at their respective
addresses.
|
|
(c)
|
This
Agreement shall be governed by the laws of the State of
California.
|
|
(d)
|
This
Agreement may be executed in counterparts, which together shall constitute
one Agreement.
|
|
(e)
|
By
their signatures below, the parties acknowledge that they have had
sufficient opportunity to read and consider, and that they have carefully
read and considered, each provision of this Agreement and that they are
voluntarily signing this Agreement.
|
|
(f)
|
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 the following
addresses:
|
Executive: 0
Xxxxxx Xxx, Xxxxxxx Xxxxx, XX 00000
Company: 000
Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000
All
such notices and communications shall be deemed received upon (a)
actual
receipt
by addressee or (b) actual delivery to the appropriate address.
7
Exhibit
10.75
|
(g)
|
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.
|
|
(h)
|
This
Agreement contains the complete statement of all 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.
|
21. Indemnification. The Company
shall defend, indemnify and hold harmless Executive (and his heirs and personal
representatives) in his capacity as an officer of the Company to the fullest
extent permitted by applicable law against any losses or damages incurred by
Executive in connection with any action, suit or proceeding to which Executive
may be made a party by reason of his being or having been an officer or director
of the Company, or because of actions taken by Executive which were believed by
Executive to be in the best interests of the Company and not in violation of
applicable law, and Executive shall be entitled to be covered by any directors’
and officers’ liability insurance policies which the Company maintains for the
benefit of its directors and officers, subject to the limitations of any such
policies. The Company shall have the right to assume, with legal counsel of its
choice, who shall be reasonably acceptable to Executive, the defense of
Executive in any such action, suit or proceeding for which the Company is
providing indemnification to Executive. Should Executive determine to employ
separate legal counsel in any such action, suit or proceeding, any costs and
expenses of such separate legal counsel shall be the sole responsibility of
Executive unless the Executive shall have reasonably concluded, based upon the
written of legal counsel to the Executive, a copy of which shall be furnished to
the Company, that there may be conflicts in the defenses available to the
Executive which are different from or additional to those available to the
Company (if the Company is also a party or potential party to the claim), in
which case the reasonable costs and expenses of such separate legal counsel
shall be borne by the Company. If the Company does not assume the defense of any
such action, suit or proceeding, the Company shall, upon the request of the
Executive, promptly advance or pay any amount for costs or expenses, including
the reasonable fees of counsel retained by Executive, incurred by Executive in
connection with such action, suit or proceeding; provided that Executive agrees
in writing to repay any such amounts advanced if it is ultimately determined by
a court of competent jurisdiction that Executive is not entitled to such
indemnification. Executive shall be entitled to indemnification under this
clause regardless of any subsequent amendments of the Certificate Of
Incorporation or By-Laws of the Company.
The
parties have executed this Agreement as of the Execution Date.
By: /s/ Xxxxxx X.
Xxxx
Xxxxxx X. Xxxx
By: /s/ Xxxxxxx X.
Xxxxxx
Xxxxxxx Xxxxxx, Chairman
8
