Attached files
| file | filename |
|---|---|
| 8-K - National Investment Managers Inc. | v204329_8k.htm |
| EX-99.2 - National Investment Managers Inc. | v204329_ex99-2.htm |
| EX-99.3 - National Investment Managers Inc. | v204329_ex99-3.htm |
| EX-4.84 - National Investment Managers Inc. | v204329_ex4-84.htm |
| EX-4.85 - National Investment Managers Inc. | v204329_ex4-85.htm |
Exhibit
99.1
SETTLEMENT AND VOTING
AGREEMENT
THIS
SETTLEMENT AND VOTING AGREEMENT (this "Agreement") is made as
of November 24, 2010 by and between National Investment
Managers Inc., a Florida corporation (the "Company"), and CAMOFI Master LDC, a
Cayman Islands limited duration company ("CAMOFI") and Richard Smithline
("Smithline").
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, CAMOFI has asserted
certain claims against the Company in a lawsuit (the "Lawsuit") filed in 2009 in
the United States District Court for the Southern District of New York (Index
No.: 09 CIV 7094);
WHEREAS, as of the date
hereof, the Company has 2,420,000 outstanding shares of Series A 12% Cumulative
Convertible Preferred Stock (the "Series A Preferred"), of which CAMOFI owns
1,100,000 shares and Smithline owns up to100,000 shares, if any;
WHEREAS, according to its
Certificate of Designation, the Series A Preferred (i) is senior to all other
classes of Preferred Stock; (ii) has a Stated Value of $.50 per
share, (iii) has a Liquidation Preference equal to two times the
Stated Value per share plus declared and unpaid dividends, and (iv) is entitled
to dividends of 12% per annum, when and if declared by the Company;
WHEREAS, the
Company is considering strategic alternatives for the recapitalization of the
Company, including refinancing its debt, raising equity capital and/or the sale
(a "Sale") of the Company to a third party;
WHEREAS, under the respective
Certificates of Designation for the Preferred Stock, in the event of
a Sale, the holders of the Series A Preferred would be entitled to receive a
Liquidation Preference, prior to and in preference to the holders of the Junior
Preferred Stock and the Common Stock;
WHEREAS, in consideration of
(i) the delivery by the Company to CAMOFI of the Note, and (ii) payment in cash
in full to CAMOFI of all amounts outstanding under the Note, and to CAMOFI and
Smithline of the Stated Value in respect of the shares of Series A Preferred
owned by each of them upon consummation of an Approved Sale, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, subject to the terms and conditions contained in this Agreement
(a) CAMOFI is willing to dismiss the Lawsuit and (b) CAMOFI and Smithline are
willing to commit to vote their shares of Series A Preferred in favor of an
Approved Sale and in favor of an amendment to the Company's Articles of
Incorporation or the Certificate of Designation for the Series A Preferred
aligning the rights of the Series A Preferred with the consideration provided to
the Series A Preferred in an Approved Sale.
1
Exhibit
99.1
NOW, THEREFORE, in
consideration of the agreements of the parties herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section
1. Definitions
As used
herein, the following terms have the following meanings.
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 in the following order of priority:
(a) First,
the holders of the Series A Preferred will receive such Series A Preferred’s
Stated Value of $.50 per share for each share of Series A Preferred held by each
such holder (the "Series A Consideration"); and
(b) Second,
the holders of the Common Stock will receive up to 12% of the Available Sale
Proceeds remaining after payment of the Series A Consideration; and the balance
of such remaining Available Sale Proceeds, to the extent sufficient therefor,
shall be distributed to holders of the Junior Preferred Stock in
accordance with the Voting Agreement (defined hereinafter).
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 that is not assumed by the Buyer in the case of a
sale of assets or that is required to be paid out of the merger consideration in
the case of a merger, including payment of the Note.
1.4 "CAMOFI
Released Parties" means CAMOFI and its officers, directors, employees,
investors, attorneys, successors, predecessors, agents, subsidiaries,
representatives, assigns, and Smithline and his attorneys, agents,
representatives, assigns and, with respect to any of the foregoing parties that
is an individual, the heirs, administrators and executors of such individual, or
any other Affiliate of CAMOFI or Smithline.
2
Exhibit
99.1
1.5 "CAMOFI
Releasing Parties" means CAMOFI and Smithline, individually and collectively, on
their behalf and on behalf of their respective attorneys, successors,
predecessors, agents, subsidiaries, representatives, assigns and, with respect
to any of the foregoing parties that is an individual, the heirs, administrators
and executors of such individual, or any other Affiliate of CAMOFI or
Smithline.
1.6 "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.
1.7 "Common
Stock" means the common stock, $.001 per share, of the Company.
1.8 "Company
Released Parties" means the Company and its officers, directors, employees,
attorneys, successors, predecessors, agents, subsidiaries, representatives,
assigns and, with respect to any of the foregoing parties that is an
individual, the heirs, administrators and executors of such individual, or any
other Affiliate of the Company.
1.9 "Company
Releasing Parties" means the Company on its own behalf and on behalf of its
attorneys, successors, predecessors, agents, subsidiaries, representatives,
assigns and, with respect to any of the foregoing parties that is an individual,
the heirs, administrators and executors of such individual, or any other
Affiliate of the Company.
1.10 "Junior
Preferred Stock" means, collectively, the following Series of Preferred
Stock:
(a) the
Series B Cumulative Convertible Preferred Stock of the Company (the "Series B
Preferred");
(b) the
Series C Cumulative Convertible Preferred Stock (the "Series C
Preferred");
(c) the
Series D Cumulative Convertible Preferred Stock (the "Series D
Preferred"); and
(d) the
Series E 12% Cumulative Convertible Preferred Stock (the "Series E
Preferred").
1.11 "Liquidation
Preference" means, with respect to any Series of Preferred Stock, the amount per
share that the Certificate of Designation for such Series (and in the case of
the Series A Preferred, the Articles of Amendment to the Articles of
Incorporation), 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.
1.12 "Note"
means a $440,000 subordinated promissory note in the form attached hereto as
Exhibit A, duly executed by the Company.
3
Exhibit
99.1
1.13 "Person"
means an individual, partnership, corporation, limited liability company,
limited partnership, joint stock company, trust, unincorporated association,
joint venture, or any other entity.
1.14 "Preferred
Stock" means the Series A, Series B, Series C, Series D and Series E
Preferred.
1.15 "Stated
Value" means, with respect to any Series of Preferred Stock, the amount set
forth in the Certificate of Designation for such Series (and in the case of the
Series A Preferred, the Articles of Amendment to the Articles of Incorporation),
as the Stated Value of a share.
SECTION
2. Delivery of the Note; Payment of Series A Consideration;
Representations and Warranties by the Company.
2.1(a) Simultaneously
with the execution and delivery of this Agreement, the Company is delivering the
Note to CAMOFI.
(b)
Simultaneously with or immediately after the consummation of an Approved Sale,
the Company shall pay, or cause to be paid, to each of CAMOFI and Smithline in
cash the full amount of Series A Consideration based on their respective shares
of Series A Preferred.
2.2 The
execution and delivery by the Company of this Agreement and the Note have been
duly and validly authorized by all necessary corporate action on the part of the
Company, and this Agreement and the Note have been duly executed and delivered
by the Company, and constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their respective terms, except to the
extent such enforceability may be limited by the effect of (i) any applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally, and (ii) general
equitable principles, regardless of whether such enforceability is considered in
a proceeding at law or in equity.
2.3 The
execution and delivery by the Company of this Agreement and the Note do not, and
the consummation of the transactions contemplated hereby and thereby will not
conflict with or result in any violation of, or default or event of default of
(with or without notice or lapse of time, or both), or give rise to a right of
termination, cancellation or acceleration of any obligation pursuant to (i) any
provision of the Company's Articles of Incorporation or By-laws, each as in
effect on the date hereof, (ii) except as set forth on Schedule 2.4, any
contract, agreement, instrument or document to which the Company or any of its
Affiliates is a party, or (iii) any statute, law, order, decree, rule,
regulation or judgment binding upon the Company or any of its
Affiliates.
2.4 Except
as set forth on Schedule 2.4 attached hereto, the Company does not require the
consent, approval, order, or authorization from any third party in connection
with the execution and delivery of this Agreement and the Note, and the
consummation of the transactions contemplated hereby and
thereby.
4
Exhibit
99.1
2.5 The
Company and certain holders of Preferred Stock and Common Stock have entered
into a Voting Agreement dated as of November 24, 2010, a copy of
which is attached hereto as Exhibit B (the "Voting Agreement"). Other
than this Agreement, the Voting Agreement and the Certificate of Designation for
each Series of Preferred Stock, there does not exist any agreement between the
Company and any holder of Preferred Stock or Common Stock providing for the
payment by the Company of any consideration, directly or indirectly, in respect
of such equity securities and, upon consummation of an Approved Sale, no holder
of Preferred Stock or Common Stock will receive any payment, directly or
indirectly, in consideration of such equity securities other than as provided in
this Agreement and the Voting Agreement.
SECTION
3. Settlement of the Lawsuit
3.1. The
CAMOFI Releasing Parties hereby accept delivery of the Note as complete and
final settlement, satisfaction, compromise and release of any and all claims
against the Company, including all claims that were or could have been asserted
in the Lawsuit. Each of the CAMOFI Releasing Parties hereby
irrevocably and unconditionally releases, acquits and forever discharges the
Company Released Parties from any claims of any nature whatsoever, past or
present, pending or not pending, known or unknown, foreseen or unforeseen, which
such CAMOFI Releasing Party now has, owns, or holds or claims to have, own or
hold or which at anytime prior to the date hereof has owned or held or has
claimed to have had, owned or held against any of the Company Released Parties
through and including the date of this Agreement; provided, however, that the
release contained in this Section 3.1 applies to the actions, inactions and
omissions, of any of the Company Released Parties solely as they relate to the
Company.
3.2
Promptly after the date hereof, CAMOFI shall dismiss, with prejudice, all claims
and causes of action against the Company in the Lawsuit.
3.3. Nothing
in the Agreement shall be deemed to be or be construed to be an admission of
liability by the parties and any such liability is expressly
denied.
3.4 The
parties expressly acknowledge and agree that notwithstanding anything contained
in this Agreement to the contrary, the CAMOFI Releasing Parties are not
releasing the Company Released Parties from (i) any failure to deliver the Note
or any breach by the Company of any of the terms of the Note, or (ii) any breach
by the Company of any of the terms of this Agreement.
3.5
Each of the Company Releasing Parties hereby irrevocably and
unconditionally releases, acquits and forever discharges the CAMOFI Released
Parties from any claims of any nature whatsoever, past or present, pending or
not pending, known or unknown, foreseen or unforeseen, which such Company
Releasing Party now has, owns, or holds or claims to have, own or hold or which
at anytime prior to the date hereof has owned or held or has claimed to have
had, owned or held against any of the CAMOFI Released Parties through and
including the date of this Agreement; provided, however, that the release
contained in this Section 3.5 applies to the actions, inactions and omissions,
of any of the CAMOFI Released Parties solely as they relate to the
Company.
5
Exhibit
99.1
SECTION
4. Voting Agreement
4.1. Subject to and
expressly conditioned upon CAMOFI and Smithline receiving (i) the Note
simultaneously with the execution hereof, and payment in full in cash of such
Note simultaneously with or immediately after the consummation of an Approved
Sale, and (ii) the full amount of the Series A Consideration in respect of their
shares of Series A Preferred simultaneously with, or immediately after, the
consummation of an Approved Sale, CAMOFI and Smithline each agree (a) to vote
the Series A Preferred shares owned by it/him 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, which form shall be reasonably acceptable to CAMOFI and
Smithline, to vote such shares in favor of such Approved Sale at such meeting
and/or (ii) to execute and deliver to the Company a written consent, in a form
provided by the Company, which form shall be reasonably acceptable to CAMOFI and
Smithline, 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 Series A Preferred as a
separate class and any vote of Preferred Stock and Common Stock as a single
class, (ii) any vote on a proposed amendment of the Company's Articles of
Incorporation or the Certificate of Designation for the Series A Preferred
aligning the rights of the Series A Preferred with the consideration provided to
the holders of the Series A Preferred in an Approved Sale and (iii) 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 4.1 shall only apply to an Approved Sale approved by
the Board of Directors of the Company, and CAMOFI and Smithline each agree to
vote their shares of Preferred 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.
4.2. CAMOFI
and Smithline each represent and warrant that it/he has full legal power and
authority to vote the shares of Series A Preferred Stock referred to as being
owned by it/him in the Recitals above (in the case of Smithline, to the extent
any such shares are owned by him) and does not, and none of its/his Affiliates
nor any funds managed by it/him or any such Affiliates does, own or have the
power to vote any other shares of Preferred Stock or Common Stock of the
Company. CAMOFI and Smithline agree that their respective obligations
under this Section 4, including the voting obligations, shall apply to any
additional shares of Preferred Stock or Common Stock that it/he or
any such fund or Affiliate acquires or becomes entitled to vote after the date
hereof. Notwithstanding anything contained in this Agreement to the
contrary, failure by Smithline to deliver any shares of Series A Preferred Stock
shall not affect any of the Company's obligations under this Agreement, the Note
or any other agreement, document or instrument executed in connection herewith
or therewith, except that the Company shall not have any obligation to pay
Smithline Stated Value for any shares of Series A Preferred Stock he fails to
deliver.
4.3 CAMOFI and Smithline
each agree not to sell or otherwise transfer any of its/his shares of Series A
Preferred 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 CAMOFI or Smithline, as the case may be, contained
in this Agreement.
6
Exhibit
99.1
4.4. Subject
to and expressly conditioned upon satisfaction in full by the Company of all of
its obligations under the Note and this Agreement, and the truthfulness of the
Company's representation and warranty contained in Section 2.5 of this
Agreement, CAMOFI and Smithline each agree that their rights in connection with
a consummated Approved Sale will be limited to the right to receive in cash (i)
the Series A Consideration, and (ii) payment in full of the Note, and waive any
claims to payments in respect of accrued and unpaid dividends or liquidation
preference related to their shares of Series A Preferred.
4.5. The
obligations of CAMOFI and Smithline under this Section 4 shall expire on
March 31, 2011.
SECTION
5. General
5.1. 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, whether oral or written. This Agreement
may only be modified or changed by a writing duly executed by the parties hereto
and may not be orally modified, changed or altered in any way.
5.2. This
Agreement shall in all respects be interpreted, enforced and governed under the
laws of the State of New York applicable to agreements to be wholly delivered
and performed within said State
5.3. 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):
|
The
Company:
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National
Investment Managers, Inc.
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485
Metro Place South, Suite 275
|
|
|
Dublin,
OH 43017
|
|
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Attention: Steven
J. Ross
|
|
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Fax
no.:
|
|
|
E-mail
address: sross@nivm.com
|
|
with
a copy to:
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Dinsmore
& Shohl LLP
|
|
255
E. Fifth Street, Suite 1900
|
|
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Cincinnati,
Ohio 45202
|
|
|
Attention:
Kim Martin Lewis, Esq.
|
|
|
Fax
no. (513) 977-8141
|
|
|
Email
address:
kim.lewis@dinslaw.com
|
7
Exhibit
99.1
|
CAMOFI:
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CAMOFI
Master LDC
|
|
c/o
Centrecourt Asset Management LLC
|
|
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350
Madison Avenue, 8th
Floor
|
|
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New
York, NY 10017
|
|
|
Attention:
Michael Loew, Esq.
|
|
|
Fax
no.: 646-758-6751
|
|
|
Email
address: MLoew@Centrecourtam.com
|
|
Smithline
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Richard
Smithline
|
|
Chief
Executive Officer
|
|
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Centrecourt
Asset Management LLC
|
|
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350
Madison Avenue, 8th
Floor
|
|
|
NYC,
NY 10017
|
|
|
Fax
no.: 646-758-6751
|
|
|
Email
address:
RSmithline@Centrecourtam.com
|
5.4. 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.
5.5. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, heirs and assigns; provided, however, that the
Company may not assign this Agreement or any of its obligations hereunder
without the prior written consent of CAMOFI and Smithline, and any attempted
assignment or delegation by the Company of this Agreement or any of its
obligations hereunder without CAMOFI’s and Smithline’s prior written consent
shall be void and of no effect.
[Signature
Pages Follow]
8
Exhibit
99.1
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the
date set forth above.
NATIONAL
INVESTMENT MANAGERS INC.
|
By:
|
/s/ Steven J. Ross
|
|
|
Name: Steven
J. Ross
|
||
|
Title: Chief
Executive Officer
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CAMOFI
MASTER LDC
|
By:
|
/s/ Michael Loew
|
|
|
Name: Michael
Loew
|
||
|
Title:
General Counsel
|
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/s/ Richard Smithline
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|
|
Richard Smithline
|
9
Exhibit
99.1
EXHIBIT
A
SUBORDINATED
PROMISSORY NOTE
$440,000
November
24, 2010
FOR VALUE
RECEIVED, National Investment Managers Inc., a Florida corporation (“Maker”), hereby promises to
pay CAMOFI Master LDC, a Cayman Islands corporation (the "Holder"), the principal
amount of Four Hundred Forty Thousand Dollars ($440,000), without
interest, on the earlier of (i) the Sale Date (as defined below) or (ii) March
31, 2011 (the “Maturity Date”), in lawful money of the United States of America
in cash or by wire transfer at the place designated in writing by the Holder and
delivered to the Maker. The "Sale Date" means the same business day
as receipt by the Maker of the cash proceeds of the sale to a third party buyer
of all or substantially all of the Maker's business and assets, by means of
merger, sale of stock or assets, or a combination thereof. In the
event that Maker fails to pay this promissory note (the “Note”) in full on or
prior to the Maturity Date, then any remaining unpaid portion of this Note shall
accrue interest at the rate of ten percent (10%) per annum from the Maturity
Date until the date on which this Note is paid in full.
The
indebtedness evidenced hereby may be prepaid in whole or in part at any time
without penalty.
At the
option of the Holder, the entire unpaid principal balance of this Note, together
with all accrued interest, shall be immediately due and payable upon the
occurrence of any of the following (each, and “Event of
Default”):
(a) If
the Maker shall default in the payment in full of this Note on or prior to the
Maturity Date; or
(b) If
the Maker shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking of possession by
any such official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or shall
take any corporate action to authorize any of the foregoing; or an involuntary
case or other proceeding shall be commenced against the Maker seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed or unstayed for a
period of 60 consecutive days; or
(c) Any representation
or warranty made by the Maker herein or in that certain Settlement
and Voting Agreement of even date herewith among Maker, CAMOFI Master LDC and
Richard Smithline (the “Settlement Agreement”) shall prove to have been false or
incorrect, or Maker otherwise breaches the Settlement Agreement in any respect
and the Holder delivers written notice to the Maker of the occurrence thereof;
or
10
Exhibit
99.1
(d) Maker shall (i) default in any payment of any amount or
amounts of principal of or interest on any indebtedness, the aggregate principal
amount of which indebtedness is in excess of $100,000 (other than "Senior
Indebtedness," as defined below) or (ii)
default in the observance or performance of any other agreement or condition
relating to any indebtedness (other than "Senior Indebtedness") or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders or
beneficiary or beneficiaries of such indebtedness to cause with the giving of
notice if required, such indebtedness to become due prior to its stated
maturity.
Upon the
occurrence of any Event of Default, Maker will pay to the Holder reasonable
attorneys’ fees, court costs and expenses incurred by the Holder in connection
with the Holder’s efforts to collect the indebtedness evidenced
hereby.
This Note
is unsecured.
All
rights and remedies available to the Holder pursuant to the provisions of
applicable law and otherwise are cumulative, not exclusive and enforceable
alternatively, successively and/or concurrently during an Event of Default by
Maker pursuant to the provisions of this Note.
This Note
may not be changed, modified or terminated orally, but only by an agreement in
writing, signed by Maker and the Holder.
Notwithstanding
anything to the contrary in this Note or the Settlement Agreement, the Holder
agrees that the indebtedness represented by this Note and the payment of
principal and other amounts owed by Maker are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all Senior
Indebtedness, and any fees, costs, enforcement expenses (including legal fees
and disbursements), collateral protection expenses and other enforcement
expenses (including legal fees and disbursements), and other reimbursement or
indemnity obligations related to such Senior Indebtedness. As used
herein, “Senior
Indebtedness” means the principal of (and premium, if any) and interest
on (i) all indebtedness of Maker arising in connection with (A) that certain
Revolving Line of Credit and Term Loan Agreement, dated as of November 30, 2007,
between Maker and RBS Citizens, National Association (“RBS”), and (B) that certain
Securities Purchase and Loan Agreement, dated November 30, 2007, by and among
Maker, Woodside Capital Partners IV, LLC, Woodside Capital Partners IV QP, LLC,
Lehman Brothers Commercial Bank and Woodside Agency Services, LLC, as collateral
agent (collectively, “Woodside”); and (ii) any
amendments, deferrals, renewals, increases, extensions or refinancings of any
such Senior Indebtedness referred to in clause (i) above. The Holder
agrees to furnish to each of RBS and Woodside subordination agreements in the
forms attached hereto as Exhibits A and B, respectively. No payment
shall be made by or on behalf of the Maker, or demand made by or on behalf of
the Holder, on this Note until all Senior Indebtedness has been discharged by
payment in full in cash. The Holder acknowledges that at the date
hereof the Maker is in default beyond applicable grace periods under the Senior
Indebtedness evidenced by the Revolving Line and Credit and Term Loan Agreement
and the Securities Purchase and Loan Agreement referred to above, in each case
as amended.
11
Exhibit
99.1
This Note
and all rights and obligations hereunder shall be governed by and construed
under the laws of the State of New York without regard to any conflicts of law
doctrine and shall be binding upon the successor, endorsees and permitted
assigns. If any provision hereof is or becomes invalid or
unenforceable under any law of mandatory application, it is the intent of Maker
and the Holder that such provision will be deemed severed and omitted herefrom,
the remaining portions hereof to remain in full force and effect as
written.
IN
WITNESS WHEREOF, Maker has duly executed this Note as of the day and year first
written above.
|
NATIONAL
INVESTMENT MANAGERS INC.
|
||||
|
As
Maker
|
||||
|
By:
|
|
|||
|
Name:
|
|
|||
|
Title:
|
|
|||
|
CAMOFI
Master LDC
|
|
|
As
Holder
|
|
By:
|
|
|||
|
Name:
|
|
|||
|
Title:
|
|
|||
12
Exhibit
99.1
EXHIBIT
B
Form
of Voting Agreement
13