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Exhibit 10.40.1
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment (this "AMENDMENT") to that certain Employment
Agreement dated as of April 1, 2000 (the "EMPLOYMENT AGREEMENT") by and between
the Executive and the Company is entered into as of this 16th day of June, 2000
by and between Xxxxxxx X. Xxxxxxxxx (the "EXECUTIVE") and Xxxxxxx Company, a
Delaware corporation (the "COMPANY"). Terms used and not defined herein shall
have the meanings ascribed to such terms in the Employment Agreement.
The Employment Agreement is hereby amended to the extent set forth
below, such amendment to be effective upon the execution hereof by the Company
and the Executive. All other provisions of the Employment Agreement shall remain
in full force and effect.
1. ANNUAL BONUS. The annual bonus provision set forth in Section 3.2 of the
Employment Agreement is hereby amended to read in its entirety as follows:
ANNUAL BONUS. As additional compensation for services
hereunder, the Executive shall be eligible for a bonus for each Bonus
Year commencing on the first day of each fiscal year and ending on or
prior to the last day of the term hereof. For the sole purpose of
calculating Executive's annual bonus for fiscal year 2000 pursuant to
this Section 3.2, the Executive will be presumed to have commenced
employment with the Company as of the first day of fiscal year 2000.
The target bonus payable for any Bonus Year shall equal 60% of the
Salary (the "TARGET BONUS"). The actual amount of any such bonus
payable with respect to any Bonus Year shall be based upon the
Company's achievement of specified performance targets set by the Board
for such Bonus Year, as set forth on Exhibit A hereto. Such performance
targets will be determined and set by the Board at the beginning of
each Bonus Year as set forth on Exhibit A and will be based upon
various performance measures such as EBITDA and sales. Any bonus
payable under this Section 3.2 is referred to herein as an "ANNUAL
BONUS".
2. EXHIBIT A. Exhibit A of the Employment Agreement is hereby amended to read in
its entirety as follows:
ILLUSTRATION OF COMPUTATION OF ANNUAL BONUS
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% of Performance
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Targets Achieved % of Target Bonus
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less than or equal to 90 0
91 10
92 20
93 30
94 40
95 50
96 60
97 70
98 80
99 90
100 100
- A minimum achievement of at least 91% of the performance
targets is required in order for any portion of the Annual
Bonus to be awarded.
- Upon attaining 100% of the performance targets, the amount of
the Annual Bonus is increased thereafter by 4% of the Salary
for each 1% increase over the performance targets.
- The Board will approve performance targets for any Bonus Year
on or prior to the later of (a) the date which is 45 days
after the end of the immediately preceding fiscal year or (b)
the date which is 15 days after the release of the audited
financial statements of the Company for the immediately
preceding fiscal year.
3. MISCELLANEOUS. The Employment Agreement is confirmed as being in full force
and effect. This Amendment and the Employment Agreement constitute the entire
agreement between the parties hereto, and supersede any and all prior
communications, agreements and understandings, written or oral, with respect to
the terms and conditions of the Executive's employment with the Company;
PROVIDED, HOWEVER, that this Amendment shall not terminate or supersede any
additional obligations of the Employee pursuant to any other agreement
(including, without limitation, the Employment Agreement) with respect to the
Proprietary Information, Confidential Information or the like or with respect to
any restrictions on the activities of the Employee or the like or with respect
to the securities of the Company. This Amendment may be executed in any one or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument. Each of this
Amendment and the Employment Agreement shall inure to the benefit of and be
binding upon (a) the Executive, his personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees
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and (b) the Company and its successors (including by means of reorganization,
merger, consolidation or liquidation) and permitted assigns. The validity,
interpretation, construction and performance of this Amendment and the legal
relations created thereby shall be governed by the domestic substantive laws of
the State of Georgia without giving effect to any choice or conflict of laws
provision or rule that would cause the application of the domestic substantive
laws of any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands under seal, as of the date first above written.
THE COMPANY:
XXXXXXX COMPANY
By /s/ XXXXXXX X. XXXXX CHAIRMAN
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Name:
Title:
THE EXECUTIVE:
/s/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
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