EXHIBIT 10.4
EMPLOYMENT AGREEMENT
Employment Agreement, dated as of August 2, 2005, by and between ▇▇▇▇
▇▇▇▇▇▇▇, an individual with an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇"), and Haddon Strategic Alliances, Inc., a New
Jersey corporation with its principal office located at ▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company").
RECITALS
A. Pursuant to that certain Stock Purchase Agreement, dated August 2, 2005
(the "Purchase Agreement"), among the Company, ▇▇▇▇▇▇▇ and National Investment
Managers Inc. ("Purchaser"), contemporaneously with the execution of this
Agreement, Purchaser is acquiring 100% of the Company's issued and outstanding
common stock from ▇▇▇▇▇▇▇. Capitalized terms used but not defined herein have
the meanings given to them in the Purchase Agreement.
B. Purchaser has agreed to cause the Company to retain ▇▇▇▇▇▇▇ as an
employee, and ▇▇▇▇▇▇▇ desires to be employed by the Company, all upon the terms
and conditions set forth herein.
NOW, THEREFORE, the Company and ▇▇▇▇▇▇▇ agree as follows:
1 Engagement; Duties. Subject to the terms and conditions set forth herein, the
Company shall employ ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ shall serve the Company, as Vice
President - Investments. In such capacity, ▇▇▇▇▇▇▇ shall continue to perform
duties and be assigned responsibilities that are substantially similar to those
performed by ▇▇▇▇▇▇▇ immediately prior to the date hereof and as may be assigned
to him from time to time. The Purchaser will create an investment committee with
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Chairperson to periodically review Company investment
policies and approved investment products for sales personnel. During the Term
(as defined below), ▇▇▇▇▇▇▇ shall report to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and/or such other
person in charge of managing the entity for whom ▇▇▇▇▇▇▇ performs services.
During the Term, ▇▇▇▇▇▇▇ shall use his best 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.
2 Compensation. As consideration for the performance by ▇▇▇▇▇▇▇ of Ermilio's
obligations under this Agreement, the Company shall compensate ▇▇▇▇▇▇▇ as
follows:
(A) During the Term, ▇▇▇▇▇▇▇ will be paid an amount equal to a fixed
percentage (the "Net Revenue Percentage") of Net Revenues (as defined below) of
New Clients, based on amounts collected. "New Clients" means persons or entities
engaged by the Company as clients after the date hereof, excluding Existing
Clients (as defined below). The Net Revenue Percentage with respect to any New
Client shall be (i) Forty Percent (40%) for the first year after such New Client
engages the Company, (ii) Ten Percent (10%) for the second year of such
engagement, (iii) Ten Percent (10%) for the third year of such engagement, and
(iv) Zero Percent (0%) thereafter. All Net Revenues from all sources shall be
paid first to the Company, which shall thereafter pay to ▇▇▇▇▇▇▇ his allocable
portion of Net Revenues as determined hereunder. In addition, if ▇▇▇▇▇▇▇ is the
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introducing seller on a product marketed by an affiliated entity of the
Purchaser other than the Company, such as wrap products and separate managed
accounts, ▇▇▇▇▇▇▇ will be paid an amount equal to Twenty Percent (20%) of the
revenues ultimately derived by such affiliate that are generated by such product
for three years after the initial sale.
(B) "Net Revenues" shall mean an amount equal to (i) gross commissions,
overrides on securities transactions paid by or through broker-dealers and any
other fees payable to ▇▇▇▇▇▇▇ or the Company, less (ii) any commissions and
other fees payable to the broker-dealer(s) or insurance companies with whom
▇▇▇▇▇▇▇ is affiliated, less (iii) any other costs or charges imposed by the
broker-dealer, insurance company or any other third party, as determined by the
Company. The determination of Net Revenues by the Company shall be binding on
the parties, absent manifest error.
(C) Compensation shall be payable to ▇▇▇▇▇▇▇ on a monthly basis, in all
cases subject to collection of Net Revenues by the Company. The Company shall
deduct from the compensation paid to ▇▇▇▇▇▇▇ 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.
(D) The parties acknowledge and agree that ▇▇▇▇▇▇▇ shall not receive any
compensation on future revenues generated from persons, entities or plans that
are clients of the Company on the date hereof, a list of which clients is
attached hereto as Schedule 2, or their respective affiliates and/or plans
managed or operated by them (collectively, "Existing Clients"). "Existing
Clients" shall also include (i) clients establishing accounts with the Company
after the date hereof with funds transferred from Company accounts in existence
on the date hereof, and (ii) clients having accounts with the Company on the
date hereof into which new funds are deposited after the date hereof.
(E) ▇▇▇▇▇▇▇ shall make record-keeping arrangements with the
broker-dealer(s) with whom he is affiliated, in a manner satisfactory to the
Company, to distinguish between revenues derived from New Clients and revenues
derived from Existing Clients.
3 Delivery of Funds to the Company. During the Term, ▇▇▇▇▇▇▇ (a) shall promptly
deliver to the Company, or cause his bank, broker-dealer or other third party,
as the case may be, to automatically transfer to the Company, without deduction,
by irrevocable written instruction, all revenues derived by him as a registered
representative, registered investment adviser or otherwise, to an account in the
name of the Company, and (b) shall ensure that any current or future employee of
the Company (irrespective of whether ▇▇▇▇▇▇▇ splits commissions with such
employee) shall promptly deliver to the Company, or cause his or her bank,
broker-dealer or other third party, as the case may be, to automatically
transfer to the Company, without deduction, by irrevocable written instruction,
all revenues derived by such person as a registered representative, registered
investment adviser or otherwise, to an account in the name of the Company.
4 Compliance with Rules and Regulations. ▇▇▇▇▇▇▇ shall act in strict compliance
with all applicable rules and regulations relating to the performance of his
obligations hereunder, including, without limitation, the rules and regulations
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of the Securities and Exchange Commission and the NASD, the Investment Advisers
Act of 1940, as amended, and all other applicable federal and state securities
and other statutes and regulations, and shall maintain all securities and
insurance licenses and registrations required for the performance of his
obligations hereunder in full force and effect at all times during his
employment by the Company. ▇▇▇▇▇▇▇ shall bear the costs of applying for and
maintaining all such licenses and registrations. ▇▇▇▇▇▇▇ shall promptly notify
the Company in writing of any inquiry, claim or actual or threatened complaint
or action by any third party or regulatory agency relating to his duties and
obligations hereunder. If any required license or registration terminates,
expires or is revoked, ▇▇▇▇▇▇▇ shall so advise the Company and shall immediately
cease any and all activities until such license is reinstated.
5 Indemnification. ▇▇▇▇▇▇▇ shall indemnify and hold harmless the Company and its
affiliates (including the Company), and each of their respective directors,
officers, employees, agents, representatives, stockholders and controlling
parties and all of their successors and assigns (each an "Indemnified Person")
from, and defend each of them from and against, and will pay each Indemnified
Person for, any and all demands, claims, actions, liabilities, losses (trading
or otherwise), judgments, settlement costs, judgments, damages (including,
without limitation, special, consequential and punitive damages), costs,
penalties, fines and expenses (including, without limitation, interest, costs of
investigation and defense and the reasonable fees and expenses of attorneys and
other professionals and experts), asserted against, imposed upon or incurred by
any such Indemnified Person, directly or indirectly, resulting from or arising
out of or in connection with (i) any breach by ▇▇▇▇▇▇▇ of his duties,
responsibilities or obligations hereunder, (ii) any alleged violation by ▇▇▇▇▇▇▇
of any law or regulation relating to such duties, responsibilities or
obligations, (iii) any failure by ▇▇▇▇▇▇▇ to maintain in full force and effect
all required licenses and registrations and (iv) any complaint, regulatory
action or investigation by any third party or governmental agency relating to
any account for which ▇▇▇▇▇▇▇ is the representative of record. The provisions of
this Section shall survive termination of this Agreement.
6 Fringe Benefits. During the Term, ▇▇▇▇▇▇▇ shall be entitled to those fringe
benefits and perquisites that are provided to other employees of the Company
generally, including any health or other insurance, pension and/or retirement,
or welfare plan.
7 Term. The term of this Agreement ("Term") shall commence on the date hereof.
This Agreement is terminable by either party at any time on written notice to
the other party. Upon termination of this Agreement, Ermilio's rights to payment
of compensation hereunder shall cease, and the Company shall pay to ▇▇▇▇▇▇▇ (a)
any compensation due and payable to ▇▇▇▇▇▇▇ for the period preceding such
termination, based on amounts collected, and (b) any amounts or benefits due
through the date of termination under this Agreement and any benefit plan, or
program in accordance with the terms of said plan or program, but without
duplication.
8 Non-Disclosure; Non-Competition and Non-Solicitation.
(A) Non-Disclosure. ▇▇▇▇▇▇▇ understands and agrees that the business of
the Company is based upon specialized work and Confidential Information (as
hereinafter defined). ▇▇▇▇▇▇▇ agrees that he shall keep secret all Confidential
Information and that he will not, directly or indirectly, use for his own
benefit or for the benefit of others nor Disclose (as hereinafter defined),
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without the prior written consent of the Company, any Confidential Information.
At any time upon the Company's request and upon expiration or earlier
termination of this Agreement, ▇▇▇▇▇▇▇ shall turn over to the Company all books,
notes, memoranda, manuals, notebooks, records and other documents made, compiled
by, delivered to, or in the possession or control of ▇▇▇▇▇▇▇ containing or
concerning any Confidential Information, including all copies thereof, in any
form or format, including any computer hard disks, wherever located, containing
any such information, it being agreed that the same and all information
contained therein are at all times the exclusive property of the Company. The
provisions of this Section 8(A) shall survive for a period of three (3) years
following the Termination Date.
As used in this Agreement, the term "Confidential Information" means any
information or compilation of information not generally known to the public or
the industry, that is proprietary or confidential to the Company, its Affiliates
(as hereinafter defined) and/or those doing business with the Company and/or its
Affiliates, including but not limited to know-how, process, techniques, methods,
plans, specifications, trade secrets, patents, copyrights, supplier lists,
customer lists, mailing lists, financial information, business plans and/or
policies, methods of operation, sales and marketing plans and any other
information acquired or developed by ▇▇▇▇▇▇▇ in the course of his past, present
and future dealings with the Company, which is not readily available to the
public.
"Confidential Information" does not include any information, datum or
fact: (a) currently available to the public as of the date hereof; (b) after it
becomes available to the public other than as a result of a breach hereof or
other wrongful conduct by ▇▇▇▇▇▇▇; (c) after it becomes available to ▇▇▇▇▇▇▇ on
a nonconfidential basis from a source other than the Company or its Affiliates
or a person or entity breaching his or its confidentiality agreement or other
relationship of confidence with the Company or its Affiliates; or (d) developed
independently by ▇▇▇▇▇▇▇ without any reference to or use whatsoever of any
Confidential Information of the Company or its Affiliates.
As used in this Agreement, the term "Disclose" means to reveal, deliver,
divulge, disclose, publish, copy, communicate, show, allow or permit access to,
or otherwise make known or available to any third party, any of the Confidential
Information.
(B) Non-Competition. ▇▇▇▇▇▇▇ covenants and agrees that, during the term of
the Non-Competition, Non-Solicitation and Non-Disclosure Agreement, of even date
herewith ("Non-Competition Agreement"), between the Purchaser and ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ will refrain from competing with the Company and its affiliates in
accordance with the terms thereof.
(C) Injunctive Relief. If ▇▇▇▇▇▇▇ shall breach or threaten to breach any
of the provisions of Section (8(A) and/or Section 8(B), in addition to and
without limiting any other remedies available to Company at law or in equity,
the Company shall be entitled to seek immediate injunctive relief in any court
to restrain any such breach or threatened breach and to enforce the provisions
of Section 8(A) and/or Section 8(B), as the case may be. ▇▇▇▇▇▇▇ acknowledges
and agrees that there is no adequate remedy at law for any such breach or
threatened breach and, in the event that any proceeding is brought seeking
injunctive relief, ▇▇▇▇▇▇▇ shall not use as a defense thereto that there is an
adequate remedy at law.
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9 Representations and Warranties of ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ represents and warrants to
Company that the execution and delivery of this Agreement and the performance of
Ermilio'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 ▇▇▇▇▇▇▇ is a party or by which ▇▇▇▇▇▇▇ is
bound; or (b) order, judgment or decree of any court or arbitrator. ▇▇▇▇▇▇▇
further represents and warrants to the Company that he currently holds, and
covenants to the Company that during the Term he shall continue to hold, all
required licenses and registrations for the performance of his duties hereunder.
All such required licenses and registrations are listed on Schedule 1 annexed
hereto.
10 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 ▇▇▇▇▇▇▇ - to: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, fax no. ▇▇▇ ▇▇▇ ▇▇▇▇; and
if to the Company, to: National Investment Managers Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: President, and to: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, fax no. ▇▇▇ ▇▇▇ ▇▇▇▇,
attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
(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 by the Company 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.
This Agreement is a personal services contract and may not be assigned by
▇▇▇▇▇▇▇ nor may the duties of ▇▇▇▇▇▇▇ hereunder be delegated by ▇▇▇▇▇▇▇ 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.
(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
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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.
(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.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
HADDON STRATEGIC ALLIANCES, INC.
By: __________________________
Name:
Title:
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[SIGNATURE PAGE - ▇▇▇▇▇▇▇ EMPLOYMENT AGREEMENT]
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