VOTING AGREEMENT
Exhibit
99.3
THIS
VOTING AGREEMENT (this "Agreement") is made as of November__ , 2010
by and between National Investment Managers Inc., a Florida corporation (the
"Company"), and each of the holders of Common Stock of the
Company (the "Consenting Holders") that has signed a counterpart of this
Agreement on a signature page hereto.
RECITALS
WHEREAS, except where the
context otherwise indicates, the capitalized terms used in this Agreement shall
have the respective meanings set forth in Section 1 below;
WHEREAS, the Company is
considering strategic alternatives for the recapitalization of the Company,
including a sale (a "Sale") of the Company to a third party;
WHEREAS, a Sale by means of a
merger of the Company or a sale of substantially all of its assets would require
the approval of the holders of each Series of Preferred Stock voting
as separate classes, as well as the holders of the Preferred and Common Stock
voting as a single class;
WHEREAS, the Company believes
that, in order to pursue a Sale as a potential Strategic Alternative, it is
important for the Company to obtain advance assurance that, if an agreement for
a Sale can be reached, (a) shares of each series of Preferred Stock sufficient
to approve such Sale will be voted in its favor and (b) sufficient Available
Sale Proceeds will be allocated to the holders of the Common Stock to induce
them to vote in favor of such Sale;
WHEREAS, the Company is
requesting holders of each series of Preferred Stock to agree in advance to vote
their shares in favor of an Approved Sale in which they will receive a specified
portion of the Available Proceeds that is expected to be less than the
Liquidation Preference per share of such series; and
WHEREAS, the Company is hereby
requesting holders of Common Stock to agree in advance to vote their shares in
favor of an Approved Sale that allocates a specified portion of the Available
Sale Proceeds to them.
NOW, THEREFORE, in
consideration of the agreements of the parties herein, and other good and
valuable consideration, the parties hereto agree as follows:
Section
1. Definitions
As used herein, the following terms
have the following meanings.
1
Exhibit
99.3
1.1 "Affiliate" means, as to
any Person, any other Person that, directly or indirectly, controls, is
controlled by or is under common control with such Person, is a director or
officer of such Person, or, with respect to an individual, is a spouse, lineal
ancestor or descendant of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting stock, by
contract or otherwise.
1.2. "Approved Sale" means a
purchase by a third-party of all or substantially all of the Company's business
and assets for cash consideration, by means of merger, sale of stock or assets,
or a combination thereof, pursuant to an agreement or agreements that provide
for Available Sale Proceeds of not less than $8 million that will be distributed
as follows:
(a) First,
the holders of the Series A Preferred will receive its Stated Value of $.50 per
share (the "Series A Consideration"); and
(b) Second,
the holders of the Common Stock will receive 12% of the Available Sale Proceeds
remaining after payment of the Series A Consideration; and the holders of the
Junior Preferred Stock will receive the 88% balance of such remaining Available
Sale Proceeds.
An
illustration of the allocation of Available Sale Proceeds under various
scenarios is attached hereto as Exhibit 1.
1.3. "Available Sale
Proceeds" means the aggregate net proceeds from an Approved Sale available for
distribution or payment to the Company's shareholders after payment of
outstanding debt and other liabilities that are not assumed by the Buyer in the
case of a sale of assets or that are required to be paid out of the merger
consideration in the case of a merger.
1.4 "Certificate of
Designation" means, with respect to any Series of Preferred Stock, the
Certificate of Designation of Preferences, Rights and Limitations, or, in the
case of the Series A, the Articles of Amendment to the Articles of
Incorporation, that set(s) forth the rights and preferences of such Series of
Preferred Stock.
1.5 "Common
Stock" means the common stock, $.001 per share, of the Company, of which
41,476,929 shares were outstanding on September 20, 2010.
1.6 "Junior Preferred Stock"
means the Series B, C, D and E Preferred.
1.7 "Liquidation Preference"
means, with respect to any Series of Preferred Stock, the amount per share that
the Certificate of Designation for such Series provides the holders of such
Series will be entitled to receive upon any liquidation, dissolution or
winding-up of the Company before any payment shall be made to the holders of any
Common Stock or other securities stated to be junior to such
Series.
1.8 "Person" means an
individual, partnership, corporation, limited liability company, limited
partnership, joint stock company, trust, unincorporated association, joint
venture, or any other entity.
2
Exhibit
99.3
1.9 "Preferred
Stock" means, collectively, the following Series of Preferred Stock of the
Company:
(a) the
Series A 12% Cumulative Convertible Preferred Stock (the "Series A Preferred"),
of which 2,420,000 shares are outstanding at the date hereof, having (i) a
Stated Value of $.50 per share and (ii) a Liquidation Preference equal to two
times the Stated Value Per Share plus declared and unpaid
dividends;
(b) the
Series B Cumulative Convertible Preferred Stock of the Company (the "Series B
Preferred"), of which 3,615,000 shares are outstanding at the date hereof,
having (i) a Stated Value of $1.00 per share and (ii) a
Liquidation Preference equal to two times the original purchase price per share
plus any accrued and unpaid dividends thereon;
(c) the
Series C Cumulative Convertible Preferred Stock (the "Series C Preferred"), of
which 633,334 shares are outstanding at the date hereof, having (i) a Stated
Value of $6.00 per share and (ii) a Liquidation Preference equal to two times
the original purchase price per share plus any accrued and unpaid dividends
thereon;
(d) the
Series D Cumulative Convertible Preferred Stock (the "Series D Preferred"), of
which 400,987 shares are outstanding at the date hereof, having (i) a
Stated Value of $10.00 per share and (ii) a Liquidation Preference
equal to two times the original purchase price per share plus any accrued and
unpaid dividends thereon; and
(e) 29,350
shares of Series E 12% Cumulative Convertible Preferred Stock (the "Series E
Preferred"), of which 29,350 shares are outstanding at the date hereof, having
(i) a Stated Value of $100.00 per share and (ii) a Liquidation
Preference equal to two times the original purchase price per share plus any
accrued and unpaid dividends thereon.
1.10 "Stated Value" means,
with respect to any Series of Preferred Stock, the amount set forth in the
Certificate of Designation for such Series as the Stated Value of a
share.
SECTION
2. Voting Agreement
2.1. Each Consenting Holder
agrees (a) to vote the Common Stock owned by it in favor of an Approved Sale at
any meeting of shareholders of the Company called for the purpose of voting on
such Approved Sale, (b) if so requested by the Company, (i) to execute and
deliver to the Person(s) designated by the Company a proxy, in a form provided
by the Company, to vote such shares in favor of such Approved Sale and related
matters at such meeting and/or (ii) to execute and deliver to the Company a
written consent, in a form provided by the Company, to the adoption of a
resolution or resolutions of, or other action by, shareholders of the Company
approving such Approved Sale and related matters and (c) not to revoke or modify
any such proxy or written consent except as requested by the
Company. Such agreement to vote, or execute and deliver a proxy or
consent, as the case may be, shall apply to any action to be taken by
shareholders of the Company with respect to such Approved Sale, including, but
not limited to, (i) any vote of the Preferred and Common Stock as a single class
and (ii) any vote on a proposed dissolution of the Company following an Approved
Sale that takes the form of a sale of assets. Notwithstanding the
foregoing, the agreements in this Section 2.1 shall only apply to an Approved
Sale approved by the Board of Directors of the Company , and each Consenting
Holder agrees to vote its shares of Common Stock against, not give a proxy or
consent in favor of, or tender such shares in connection with, any Sale not
recommended to shareholders of the Company by the Board of Directors of the
Company.
3
Exhibit
99.3
2.2. Each
Consenting Holder represents and warrants that it has full legal power and
authority to vote the shares of Common Stock listed as being owned by it on the
signature pages of this Agreement and does not, and none of its/his Affiliates
nor any funds managed by it or any such Affiliate does, own or have the power to
vote any shares of Preferred Stock or other shares of Common Stock of the
Company. Each Consenting Holder agrees that its obligations under
this Section 2, including the voting obligations, shall apply to any shares of
Preferred Stock and any additional shares of Common Stock that it or any such
fund or Affiliate acquires or become entitles to vote after the date
hereof.
2.3 Each Consenting Holder
agrees not to sell or otherwise transfer any of its shares of Common Stock
unless the buyer or other transferee contemporaneously executes and delivers to
the Company an instrument satisfactory to the Company by which such buyer or
other transferee agrees to be bound by, observe and perform all of the
provisions and obligations of a Consenting Holder contained in this
Agreement.
2.5. The obligations of the
Consenting Holders under this Section 2 shall expire on March 31,
2011.
SECTION
3. General
3.1. This
Agreement reflects the entire agreement of the parties on the matters set forth
herein and supersedes all prior negotiations, understandings, and agreements
between or among the parties. This agreement may only be modified or
changed by a writing duly executed by the parties and may not be orally
modified, changed or altered in any way.
3.2. This
Agreement shall in all respects be interpreted, enforced and governed under the
laws of the State of Ohio.
3.3. All
notices and other communications required or permitted by this Agreement shall
be in writing and will be effective, and any applicable time period shall
commence, when (a) delivered to the following address by hand or by a nationally
recognized overnight courier service (costs prepaid) addressed to the following
address or (b) transmitted electronically to the following facsimile numbers or
e-mail addresses, in each case marked to the attention of the Person (by name or
title) designated below (or to such other address, facsimile number, e-mail
address, or Person as a party may designate by notice to the other
parties):
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The
Company:
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National
Investment Managers, Inc.
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000
Xxxxx Xxxxx Xxxxx, Xxxxx 000
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Xxxxxx,
XX 00000
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Attention:
Xxxxxx Xxxx, Chief Executive Officer
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E-mail
address: xxxxx@xxxx.xxx
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4
Exhibit
99.3
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with
a copy to:
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Xxxxxxxx
& Shohl LLP
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000
X. Xxxxx Xxxxxx, Xxxxx 0000
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Xxxxxxxxxx,
Xxxx 00000
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Attention:
Xxx Xxxxxx Xxxxx, Esq.
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Fax
no. (000) 000-0000
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Email
address: xxx.xxxxx@xxxxxxx.xxx
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Consenting
Holders:
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The
respective names and addresses set forth in the stockholder lists
maintained by the Company.
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3.4. This
Agreement may be executed in counterparts with the same force and effect as if a
single original had been executed by all of the parties hereto. This
Agreement constitutes a separate agreement between the Company and each
Consenting Holder who has executed this Agreement and is enforceable against
each such Consenting Holder irrespective of whether any other holder of Common
Stock has executed this Agreement.
[Signature
Pages to Follow]
5
Exhibit
99.3
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the
date set forth above.
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By:
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Dated: _________,
2010
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Name:
Xxxxxx X. Xxxx
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Title:
Chief Executive Officer
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Signature
Page to Voting Agreement
6
Exhibit
99.3
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Consenting Holder:
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Common Shares
Owned:
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Shares
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[Name]
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Signature
Page to Voting Agreement
7
Exhibit
99.3
EXHIBIT
1
FOR
ILLUSTRATIVE PURPOSES ONLY. NOT INDICATIVE OF ANY OFFERS OR RANGE OF
OFFERS.
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Available
Sale Proceeds
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$ | 10,000,000 | $ | 12,000,000 | $ | 14,000,000 | $ | 16,000,000 | ||||||||
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Preferred
Series A Stated Value
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$ | 1,210,000 | $ | 1,210,000 | $ | 1,210,000 | $ | 1,210,000 | ||||||||
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Net
Available for Distribution
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$ | 8,790,000 | $ | 10,790,000 | $ | 12,790,000 | $ | 14,790,000 | ||||||||
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Common
Allocation (12%)
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$ | 1,054,800 | $ | 1,294,800 | $ | 1,534,800 | $ | 1,774,800 | ||||||||
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Per Common Share1
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$ | 0.025 | $ | 0.031 | $ | 0.037 | $ | 0.043 |
1
= There were 41,476,929 Common shares outstanding at 9/30/10
8
