AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
Exhibit
10.113
AMENDMENT
NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 to the Employment
Agreement (“Amendment”) is by and between Xxxxxx X. Xxxx (“Executive”) and
National Investment Managers Inc. (the “Company”), effective as of August 12,
2010.
Whereas,
reference is made to a certain Employment Agreement (“Employment Agreement”)
between Executive and the Company dated November 30, 2007. All capitalized terms
used herein and not otherwise defined herein shall have the meanings as set
forth in the Employment Agreement;
Whereas,
the Company and Executive are amending the terms of the Employment
Agreement;
Now,
Therefore, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Executive and the Company hereby agree as
follows:
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1.
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Amend
Section 2 by replacing it in its entirety with the following “The Term of
the Agreement shall expire on March 31, 2011 (the “Stated Termination
Date”), unless terminated earlier pursuant to section
11.”
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2.
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Section
5 shall expire as of December 31, 2010 and shall not be effective for the
period beginning January 1, 2011.
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3.
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Amend
11(b) by deleting “without extension as described in Section
2”.
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4.
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Replace
section 11(f) in its entirety with the
following:
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(1)
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If
Executive’s employment is terminated by Company other than for Cause,
Executive shall be entitled to receive payment of his current base salary
through the Stated Termination Date and the targeted bonus compensation
pursuant hereto payable for such year and medical and other insurance
benefits through the Stated Termination Date on a basis that is consistent
with medical benefits provided to other employees. Payments
under this clause (1) shall preclude any other compensation to Executive
(including, without limitation, any other payment under this Section
11(f)).
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(2)
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In
the event a Change in Control occurs on or prior to the Stated Termination
Date and provided that Executive is still employed by the Company on the
date of such Change in Control, to reward Executive for his contributions
and efforts to the company related to the recapitalization process,
Executive shall receive a one-time single payment, which shall preclude
any other compensation to Executive (including, without limitation, any
other payment under this Section 11(f)), in the amount of seven hundred
thousand dollars; provided that, in the event that Executive’s employment
is terminated by the Company other than for Cause prior to such date,
Executive shall be entitled the payment under this clause (2). Payment
shall be made within one (1) business day after a Change of
Control. In addition, Company shall provide Executive with
medical benefits through December 31, 2011 on a basis that is consistent
with medical benefits provided to other employees should Executive’s
employment be terminated related to a Change of
Control.
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Exhibit 10.113
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(3)
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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.
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5.
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Section
12(c) of the Employment Agreement is hereby
deleted.
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6.
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No
other changes to the Employment Agreement are made, except as expressly
set forth herein.
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7.
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This
Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assign, and no other parties
shall be a beneficiary hereunder. Neither this Amendment nor
any of the provisions hereof can be changed, waived, discharged or
terminated except by a written instrument signed by the party against whom
enforcement the change, waiver, discharge or termination is
sought.
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8.
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This
Amendment may be signed in counterparts, each of which shall be deemed an
original and all of which, when taken together, shall constitute one and
the same instrument. Signatures delivered by facsimile
transmission shall have the same force and effect as original signatures
delivered in person.
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[Remainder
of Page Intentionally Blank – Signature Page Follows]
Exhibit 10.113
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the day and year
first above written.
NATIONAL
INVESTMENT MANAGERS
INC. XXXXXX
X. XXXX
By:
_/s/ Xxxx X.
Davis____________ By:_/s/ Xxxxxx X.
Ross______________
Name:
Xxxx X. Xxxxx
Title: President
& COO
