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SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
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This Second Amendment to Employment Agreement (this "Second Amendment")
is entered into as of December 20, 1996 by and between Xxxx X. Xxxxxxxx
("Employee") and Cardinal Realty Services, Inc., an Ohio corporation
("Employer").
RECITALS:
A. Employee and Employer are a party to that certain Employment
Agreement dated as of April 1, 1996, as amended by that certain Amendment to
Employment and Award Agreements dated as of April 18, 1996 (as so amended, the
"Employment Agreement").
B. Terms which are used but not otherwise defined in this Second
Amendment (including, without limitation, terms defined in the Amendment to
Employment and Award Agreements) have the meanings given them in the Employment
Agreement. The Employer desires to extend the period during which Employee is
entitled to receive shares of Matching Stock from Employer pursuant to Section
3(c) of the Employment Agreement and, further, to allow Employee to elect to
receive payment of his Cash Bonus, if any, on account of Employer's 1996 fiscal
year in shares of Common Stock in lieu of cash with any such shares of Common
Stock received by Employee pursuant to such election qualifying as purchases of
Common Stock by Employee for purposes of Section 3(c) of the Employee Agreement.
NOW THEREFORE, Employer and Employee agree to amend the Employment
Agreement as provided in this Second Amendment:
1. Amendments to Employment Agreement.
(a) Section 3(b)(ii) of the Employment Agreement is hereby
deleted and the following Section 3(b)(ii) is substituted therefor:
(ii) For purposes of determining the Cash Bonus, if
any, payable to Employee on account of Employer's 1996 fiscal
year, Employee and Employer acknowledge and agree that
Employee's 1996 base compensation will be deemed for purposes
of the Cash Bonus to equal $175,000 comparison EBITDA equals
$7,600,00 and the maximum Cash Bonus payable to Employee on
account of Employer's 1996 fiscal year equals $105,000.
(b) Section 3(c) of the Employment Agreement is hereby amended
by deleting the date "March 31, 1997" and substituting the date "April
30, 1997" therefor.
(c) Section 3(c) of the Employment Agreement is hereby further
amended by adding the following language to the end of said Section
3(c):
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Notwithstanding the provisions of Section 3(b)(iv) of this
Agreement, in the event that Employee shall be entitled to the
payment of a Cash Bonus on account of Employer's 1996 fiscal
year, then, in such event, on or before April 30, 1997
Employee may furnish Employer with his written election to
receive shares of Common Stock having a fair market value
(such fair market value to be determined in the same manner as
shares of Common Stock issuable to the Trustee for the benefit
of Employee on account of Employee's Stock Bonus for
Employer's 1996 fiscal year) in an amount specified by
Employee in such written election in lieu of such Cash Bonus.
Employee may make such an election only on account of
Employer's 1996 fiscal year. Any shares of Common Stock so
issued to the Trustee for the benefit of Employee on account
of such written election will, in turn, qualify under this
Section 3(c) as shares of Common Stock purchased by Employee
and, accordingly, the Trustee will be entitled to receive one
share of Matching Stock on account of each share of Common
Stock issued to Trustee for the benefit of Employee in lieu of
Employee's Cash Bonus in accordance with the provisions of
this Section 3(c).
2. Miscellaneous.
(a) Effect of Amendment. Except as specifically provided
herein, this Second Amendment does not in any way waive, amend, modify,
affect or impair the terms and conditions of the Employment Agreement,
and all terms and conditions of the Employment Agreement are to remain
in full force and effect unless otherwise specifically amended, waived
or changed pursuant hereto.
On and after the date of this Second Amendment, each reference
in the Employment Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Employment Agreement
shall mean and be a reference to the Employment Agreement as heretofore
amended and as further amended by this Second Amendment.
This Second Amendment constitutes the entire agreement among
the parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, representations
or other arrangements, whether express or implied, written or oral, of
the parties in connection therewith except to the extent expressly
incorporated or specifically referred to herein.
(b) Counterparts. This Second Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute
but one and the same instrument.
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(c) Governing Law. This Second Amendment shall be governed by,
and shall be construed and enforced in accordance with, the internal
laws of the State of Ohio, without regard to conflicts of laws
principles.
IN WITNESS WHEREOF, Employer and Employee have signed this Second
Amendment so as of the date hereinabove provided.
CARDINAL REALTY SERVICES, INC.
Attest:
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Xxxx X. Xxxxxxxx, Xx.
President and
Chief Executive Officer
/s/ Xxxx X. Xxxxxxxx
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XXXX X. XXXXXXXX
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