Attached files
| file | filename |
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| 10-Q - National Investment Managers Inc. | v201560_10q.htm |
| EX-32 - National Investment Managers Inc. | v201560_ex32.htm |
| EX-31.1 - National Investment Managers Inc. | v201560_ex31-1.htm |
| EX-31.2 - National Investment Managers Inc. | v201560_ex31-2.htm |
| EX-21.1 - National Investment Managers Inc. | v201560_ex21-1.htm |
| EX-10.117 - National Investment Managers Inc. | v201560_ex10-117.htm |
Exhibit
10.116
National
Investment Managers Inc.
Agreement
For Service As Lead Director
This
Agreement for Service as Lead Director (this “Agreement”) is effective as of the
1st day of July, 2010 (the “Effective Date”) by and between National Investment
Managers Inc., a Florida corporation (the “Company”), and Steven Virany, a
member of the Board of Directors of the Company (the “Lead Director”) (each a
“Party” and together, the “Parties”).
Whereas, the Board of
Directors of the Company (the “Board”) desires to appoint Steven Virany to
perform the services of Lead Director of the Board, and Steven Virany desires to
be so appointed and to perform the duties required of such position in
accordance with the terms and conditions of this Agreement.
Now, Therefore, in
consideration of the above recited promises and the mutual agreements and
covenants of the Company and the Lead Director contained herein, the Company and
the Lead Director hereby agree as follows:
1. Term. The term of
this Agreement shall commence on the Effective Date and shall continue until the
earlier of (i) consummation of a Transaction (as defined in Section 2 below) or
(ii) January 31, 2011, on which date the Term shall expire, unless earlier
terminated pursuant to Section 4 hereof (the
“Term”).
2. Duties
and Responsibilities. During
the Term of this Agreement, in addition to his normal responsibilities as a
member of the Board, the Lead Director shall oversee the Company’s financial
reporting and forecasting, including working closely with the Company's
management and financial advisors to review and revise, as appropriate, the
Company’s existing business plan. The Lead Director shall also
oversee the process by which the Company will seek to recapitalize its debt
obligations, raise equity and/or sell the Company (a “Transaction”), including
working closely with the Company’s management and financial and other
professional advisors to assist with the due diligence process,
review of preliminary indications of interest and letters of intent, and
negotiations with prospective lenders, equity investors and/or purchasers.
The Lead Director shall provide regular oral reports to the Transaction
Committee of the Board (the “Transaction
Committee”)
and to the full Board on the progress of the recapitalization
process. The Lead Director shall also work closely with the Company’s
management and professional advisors in discussions with existing
lenders.
3. Compensation. As
consideration for the performance by the Lead Director of his obligations under
this Agreement, commencing on the Effective Date, the Company shall pay the Lead
Director, Thirty-Five Thousand Dollars ($35,000.00) per month, such compensation
to be paid monthly in advance on the first day of each month during the
Term. The July payment is payable on the date of execution of this
Agreement. The foregoing compensation is in addition to the Lead
Director's compensation as a member of the Transaction Committee during the
months of May and June of 2010, for which the Lead Director shall receive
Twenty-Five Thousand Dollars ($25,000) for each such month, such compensation to
be paid on the earlier of: (i) consummation of a Transaction or (ii) January 31,
2011. In addition, the Company shall reimburse reasonable and
necessary business expenses incurred by the Lead Director in connection with the
services rendered under this Agreement pursuant to the Company’s then-current
policy for reimbursement of business expenses.
4. Termination.
The Company or the Lead Director may terminate this Agreement at any time, with
or without cause, upon ten (10) days' prior written notice to the other
Party. The Agreement will automatically terminate on a Change of
Control. Termination shall become effective ten days after the date
upon which the Company or the Lead Director provides written notice of
termination to the other Party in accordance with this Agreement or a Change of
Control (the “Termination Date”).
5. Payments
to the Lead Director on Termination. (a) In the event that
this Agreement is terminated by the Company for Cause, the Company shall pay to
the Lead Director on the Termination Date the pro rata share of compensation the
Lead Director has earned as of the Termination Date. (b) In the event
that this Agreement is terminated by the Company other than for Cause or upon a
Change of Control prior to the end of the Term, the Company shall pay to the
Lead Director $295,000 minus the amounts already paid to the Lead Director under
this Agreement. (c) In the event that this Agreement is terminated by
the Lead Director, the Company shall pay to the Lead Director on the Termination
Date the pro rata share of compensation the Lead Director has earned as of the
Termination Date.
6. Indemnification. The Company shall
indemnify the Lead Director to the fullest extent allowed by law.
7. Definitions. The meaning of
certain terms in this Agreement are as follows:
(a) “Cause”
shall consist of any of the following:
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(i)
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the
Lead Director 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);
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(ii)
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fraudulent
conduct by the Lead Director in connection with the business or other
affairs of the Company or any related company or the theft, embezzlement,
or other criminal misappropriate of funds by the Lead Director from the
Company or any related company;
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(iii)
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the
Lead Director’s failure to perform the duties of the Lead Director, after
reasonable notice has been provided of such non-performance and, if such
failure is curable, Lead Director has not cured such failure within a
reasonable period following such notice,
or
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(iv)
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the
Lead Director’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, Lead
Director has not cured such failure within a reasonable period following
such notice.
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(b)
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A
“Change of Control” shall be deemed to have occurred if any of the
following occurs with respect to the
Company:
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(i)
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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 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;
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(ii)
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a
merger or consolidation in which the Company is not the surviving
entity;
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(iii)
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the
sale, exchange, or transfer of all or substantially all of the assets of
the Company;
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(iv)
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a
liquidation or dissolution of the Company;
or
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(v)
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a
repayment in full in cash of all obligations of Woodside and
RBS.
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8. Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Ohio, without reference to principles of conflict of laws.
9. Severability. If any term or
other provision of this Agreement is held to be illegal, invalid or
unenforceable by any rule of law or public policy, (A) such term or
provision shall be fully severable and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision were not a part
hereof; (B) the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by such illegal, invalid or
unenforceable provision or by its severance from this Agreement; and
(C) there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and still be legal, valid and enforceable. If any
provision of this Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only as broad as is enforceable.
10. Waiver. The Parties
acknowledge and agree that the failure of either Party to enforce any provision
of this Agreement shall not constitute a waiver of that particular provision, or
of any other provisions of this Agreement.
11. Notices. All notices, requests,
demands and other communications provided in connection with this Agreement
shall be in writing and shall be deemed to have been duly given at the time when
hand delivered, delivered by express courier, or sent by facsimile (with receipt
confirmed by the sender’s transmitting device). Such notices,
requests, demands and other communications shall be sent to the respective
Parties as follows (or at such other address for a Party as shall be specified
by like notice to the other Party):
If to the
Company:
National Investment Managers
Inc.
Attention: Steven J. Ross, Chief
Executive Officer
485 Metro Place South
Suite
275
Dublin,
Ohio 43017
If to Lead Director:
Mr. Steven Virany
__________________________
__________________________
__________________________
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12. Counterparts. This Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one instrument. Facsimile execution and delivery of this
Agreement is legal, valid and binding for all purposes.
13. Amendment. No amendment or
modification of this Agreement shall be effective unless in writing signed by
both Parties.
[REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
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Lead
Director:
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National
Investment Managers Inc.
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By:
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/s/ Steven M. Virany
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By:
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/s/ Steven J. Ross
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Name:
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Steven
M. Virany
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Name:
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Steven J. Ross
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Title:
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CEO
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Date:
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August 05, 2010
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Date:
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August 05,
2010
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