EXHIBIT 10.40
AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
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This AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT, made as of June 1, 2000
(the "Effective Date"), is entered into by and between NorthPoint
Communications, Inc. (the "Company") and Xxxxx X. Xxxxxxxxx (the "Executive").
WHEREAS, the Company and Executive are parties to that certain
Employment Agreement dated as of March 7, 2000, as amended by that certain
Amendment No. 1 to Employment Agreement dated as of April 17, 2000 (together,
the "Original Employment Agreement").
WHEREAS, the Company and Executive wish to amend the Original
Employment Agreement to revise Executive's salary.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
1. Amendment to Sections 3.B and 3.C. Sections 3.B and 3.C of the Original
Employment Agreement are hereby amended by deleting such section in its entirety
and inserting in their place the following:
"B. Cash Compensation. Executive is paid a base salary at the annual rate
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of One Hundred Eighty Thousand Dollars ($190,000.00), to be paid in
accordance with the Company's standard payroll policy. Such base salary may
be increased by the Board of Directors in its sole discretion.
C. Bonus. Executive shall be eligible to receive an annual target
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bonus of up to a maximum of forty-five percent (45%) of her annual base
salary. Payment of the bonus shall be at the discretion of the
Compensation Committee of the Company's Board of Directors and shall be
based on the achievement of objectives agreed to by the Compensation
Committee of the Board of Directors. In future years, payment of the bonus
shall be at the discretion of the Compensation Committee of the Company's
Board of Directors and shall be based on the achievement of objectives as
determined by such Committee."
2. Successors and Assigns. The provisions of this Amendment shall inure to
the benefit of, and shall be binding upon, the Company, its successors and
assigns, and the Executive, the personal representative of his estate and his
heirs and legatees; provided, however, Executive may not assign, transfer or
delegate his rights or obligations hereunder and any attempt to do so shall be
void.
3. Governing Document; Effect of Amendment. This Amendment, the Original
Employment Agreement, the Option Agreement and the Option Plan, and all other
exhibits and attachments thereto, constitute the entire agreement and
understanding of the Company and Executive with respect to the terms and
conditions of Executive's employment with the Company and the payment of
severance and other benefits, and supersedes all prior and
contemporaneous written or verbal agreements and understandings between
Executive and the Company relating to such subject matter. Where the terms of
the Option Agreement conflict with the terms of the Original Employment
Agreement, as amended by this Amendment, the terms of the Original Employment
Agreement shall control. Any and all prior agreements, understandings or
representations relating to Executive's employment with the Company are hereby
terminated and cancelled in their entirety and are of no further force or
effect. On and after the date hereof, each reference in the Original Employment
Agreement to the "Employment Agreement" or the "Agreement" shall mean the
Original Employment Agreement as amended hereby. Except as specifically amended
above, the Original Employment Agreement shall remain in full force and effect
and is hereby ratified and confirmed.
4. Governing Law. The provisions of this Amendment shall be construed and
interpreted under the laws of the State of California applicable to agreements
executed and to be wholly performed within the State of California. If any
provision of this Amendment as applied to any party or to any circumstance
should be adjudged by a court of competent jurisdiction to be void or
unenforceable for any reason, the invalidity of that provision shall in no way
affect (to the maximum extent permitted by law) the application of such
provision under circumstances different from those adjudicated by the court, the
application of any other provision of this Amendment, or the enforceability or
invalidity of this Amendment as a whole. Should any provision of this Amendment
become or be deemed invalid, illegal or unenforceable in any jurisdiction by
reason of the scope, extent or duration of its coverage, then such provision
shall be deemed amended to the extent necessary to conform to applicable law so
as to be valid and enforceable or, if such provision cannot be so amended
without materially altering the intention of the parties, then such provision
shall be stricken and the remainder of this Amendment shall continue in full
force and effect.
5. Counterparts. This Amendment may be executed in more than one counterpart,
each of which shall be deemed an original, but all of which together shall
constitute but one and the same instrument.
6. No Other Amendments. Except as specifically provided in this Amendment, no
amendments, revisions or changes are made to the Original Employment Agreement.
All other terms and conditions of the Original Employment Agreement remain in
full force and effect and apply fully to this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2
to Employment Agreement as of the day and year first above written.
NORTH POINT COMMUNICATIONS, INC.
By /s/ J. Xxxxx Xxxxxx
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Name: J. Xxxxx Xxxxxx
Title: Chairman of the Compensation
Committee of the Board of Directors
EXECUTIVE:
/s/ Xxxxx X. Xxxxxxxxx
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(Signature)
Xxxxx X. Xxxxxxxxx
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(Print Name)
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