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EXHIBIT 10(d)
SECOND AMENDMENT TO AMENDED AND
RESTATED EMPLOYMENT AGREEMENT
This is an amendment made effective February 17, 1999, to the Amended
and Restated Employment Agreement dated March 23, 1993 (the "Original
Agreement") between Metatec Corporation, a Florida corporation (the "Company"),
and Xxxxxxx X. Xxxxxxx ("Xx. Xxxxxxx"), as amended by the First Amendment To
Amended and Restated Employment Agreement dated March 21, 1996 between the
Company and Xx. Xxxxxxx (the "First Amendment", and together with the Original
Agreement, the "Agreement"). The Company and Xx. Xxxxxxx hereby agree as
follows:
Section 1. Board Committee Authorization. For purposes of
clarification, and without limiting any provision of the Agreement, the
authority of the Company's board of directors under the Agreement may be
exercised by any duly designated committee of the board.
Section 2. Incentive Bonus Plan. Section 6 of the Original Agreement
and Section 1 of the First Amendment are hereby deleted from the Original
Agreement and the First Amendment, respectively, in their entirety, and no
bonuses shall be payable under those provisions for any period after December
31, 1998.
Beginning with calendar year 1999 and for each calendar year
thereafter, the Company shall pay to Xx. Xxxxxxx an annual bonus (the "Incentive
bonus") based upon the amount of the Pre-Tax Profit (defined below) for the
applicable calendar year, with the amount of the Incentive Bonus calculated as
follows:
(a) For calendar year 1999, the Incentive Bonus shall be an
amount equal to 5% of the Pre-Tax Profit that year, up to a maximum of
$7.5 million of Pre-Tax Profit (the "Threshold"), plus 2.5% of any
Pre-Tax Profit that year in excess of the Threshold.
(b) For calendar year 2000, the Incentive Bonus shall be an
amount equal to 4% of the Pre-Tax Profit that year, up to the
Threshold, plus 2.5% of any Pre-Tax Profit that year in excess of the
Threshold.
(c) For calendar year 2001, the Incentive Bonus shall be an
amount equal to 3% of the Pre-Tax Profit that year, up to the
Threshold, plus 2.5% of any Pre-Tax Profit that year in excess of the
Threshold.
(d) For calendar year 2002 and each calendar year thereafter,
the Incentive Bonus shall be an amount equal to 2.5% of the Pre-Tax
Profit for the applicable calendar year.
Each annual Incentive Bonus shall be payable in quarterly installments,
based upon calendar quarters, with each quarterly installment to be in an amount
equal to the result obtained when (i) the Pre-Tax Profit for that calendar
quarter and all prior calendar quarters is multiplied by the percentage or
percentages applicable to such Pre-Tax Profit under the preceding provisions of
this section, and (ii) the result is reduced by the aggregate amount of all
Incentive Bonus installment payments previously made with respect to that
calendar year; provided that if Xx. Xxxxxxx receives Incentive Bonus installment
payments for any or all of the first three calendar quarters in any calendar
year in an aggregate amount
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which exceeds the annual Incentive Bonus payable for that calendar year, then
the Company shall have the right to offset such excess against the amounts next
payable by the Company under the Agreement until such excess is fully recovered
by the Company or, if such offsets are insufficient to permit the recovery of
such excess, require Xx. Xxxxxxx to repay the unrecovered portion of such excess
promptly following the Company's request.
The Incentive Bonus installment payments for the first three calendar
quarters of each calendar year shall be paid not later than 30 days after the
applicable calendar quarter, and the final Incentive Bonus installment payment,
if any, for each calendar year shall be payable not later than 90 days after the
end of that calendar year.
The obligation of the Company to pay Incentive Bonuses shall continue
with respect to the three calendar years of the Company ending after the date of
termination of Xx. Xxxxxxx' employment under the Agreement, including without
limitation termination in the event of Xx. Xxxxxxx' death or Long-Term
Disability or termination by Xx. Xxxxxxx for Good Reason under Section 10(c) of
the Agreement (as those terms are defined in the Agreement), unless such
termination is a result of a voluntary termination by Xx. Xxxxxxx other than for
Good Reason under Section 10(c) of the Agreement or a termination by the Company
for Cause under Section 10(b) of the Agreement (as those terms are defined in
the Agreement).
For purposes of this amendment and the Agreement, the term "Pre-Tax
Profit" for any period shall mean the net pre-tax profit of the Company for such
period, determined on a consolidated basis in accordance with generally accepted
accounting principles, consistently applied, before deducting (A) any amounts
payable for any federal, state, or local taxes based upon or measured by income,
and (B) any amounts paid or payable to Xx. Xxxxxxx under this section.
Section 3. Construction. In the event of any inconsistency between the
provisions of this amendment and the Agreement, the provisions of this amendment
shall control. Except as modified by this amendment, the Agreement shall
continue in full force and effect with change.
METATEC CORPORATION
By /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, Vice President, Finance
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
