AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
Exhibit
10.114
AMENDMENT
NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 to the Employment
Agreement (“Amendment”) is by and between Xxxx X. Xxxxx (“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 April 14, 2009. 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 entire with the
following: “The term of employment under this Agreement shall
commence on the Effective Date and shall continue, unless otherwise
terminated earlier pursuant to Section 11, until June 30, 2011. (the
“Term”).”
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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, in
addition to the amounts payable under Section 11(e), Executive shall be
entitled to 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); however, any such payment shall not
exclude any recapitalization incentive under Section 5.1), equivalent to
all base and targeted bonus compensation for one year, and the Company
shall provide medical benefits through December 31, 2011 on a basis that
is consistent with medical benefits provided to other
employees.
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(2)
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In
the event of a Change in Control, to reward Executive for his
contributions and efforts to the company related to the recapitalization
process, in addition to the amounts payable under 11(e), 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); however,
any such payment shall not exclude any recapitalization incentive under
Section 5.1), a lump sum payment equivalent to one year of his base salary
and targeted bonus compensation. 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 consistent basis as provided to other employees should Executive’s
employment be terminated related to a Change of
Control.
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Exhibit 10.114
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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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Add
Section 11(g): If Executive’s employment terminates at end of
Term, Company shall be obligated to pay such Executive’s base salary up to
the date of termination.
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6.
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Add
a Section 5.1 as follows:
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5.1 Recapitalization
Incentives.
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a.
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Executive
shall be compensated for work related to a recapitalization effort as
follows:
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(i)
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Working
with the Company’s financial advisor to provide information related to
financial reporting, including budgeting cash flows, cash accounts and
compliance with established revenue and disbursement
budgets.
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(ii)
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Developing
an expense improvement plan, in conjunction with the Company’s financial
advisor, by which the Company shall reduce its operating expenses. Working
to achieve the milestones and targets contained in such plan by the dates
set forth therein.
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(iii)
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Collaborating
with the Company’s financial advisor regarding due diligence, preparing
the offering memorandum, preparing presentation, updating the data site,
reviewing recapitalization alternatives, negotiating relevant
recapitalization documents and agreements, and closing a
transaction.
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b.
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The
recapitalization incentive shall be fifty percent of the amount in Section
4 of the Employment Agreement to be paid as $2,581.46 bi-monthly (with the
exception of the first payment for August 13, 2010 which shall be
$7,744.37), and as part of the Company’s normal payroll, until the close
of a recapitalization transaction, at which time the unpaid amount of the
incentive shall be paid. Notwithstanding any other term herein,
upon the close of a recapitalization transaction this Section 5.1 and all
payments hereunder shall become fully vested, earned, accrued, and
immediately payable. Executive shall be entitled to the full
and complete recapitalization incentive provided he does not voluntarily
resign or is not terminated for
Cause.
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Exhibit 10.114
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7.
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No
other changes to the Employment Agreement are made, except as expressly
set forth herein.
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8.
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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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9.
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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 10.114
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the day and year
first above written.
NATIONAL
INVESTMENT MANAGERS
INC.
XXXX X. XXXXX
By:_/s/ Xxxxxx X.
Ross___________ By:_/s/ Xxxx X.
Davis_____
Name:
Xxxxx. X. Xxxx
Title: CEO
