EXHIBIT 10.1
FIRST AMENDMENT
TO
EMPLOYMENT AGREEMENT
This First Amendment (this "Amendment") to the Employment
Agreement (the "Agreement"), dated as of April 19, 2001, by and between 3dfx
Interactive, Inc., a California corporation (the "Company"), and Xxxxxxx X.
Xxxxxxxxx ("Executive"), is made and entered into this 14th day of October,
2002. Capitalized terms used but not defined herein shall have the meanings
ascribed to those terms in the Agreement.
WHEREAS, Executive has provided services to the Company under
the Agreement, originally serving as Chief Financial Officer and now serving as
President, Chief Executive Officer, Chief Financial Officer, Secretary and
Treasurer;
WHEREAS, pursuant to the Agreement, the Company's most recent
salary payment to Executive was made on April 15, 2002;
WHEREAS, Executive has continued to provide services to the
Company and agrees to continue providing services to the Company through the
date of the Company's eventual dissolution and liquidation, provided the Company
pays Executive an annual salary of $206,250, commencing April 16, 2002 and
thereafter through the date of the Company's dissolution and liquidation;
WHEREAS, Executive has incurred expenses on behalf of the
Company for which the Company is obligated to reimburse Executive; and
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
A. Amendment to Section 1(a). The first sentence of Section 1(a) is
hereby amended in its entirety to read as follows:
"For the term of his employment under this Agreement, the
Company agrees to employ Executive as its President, Chief
Executive Officer, Chief Financial Officer, Secretary and
Treasurer reporting directly to the Board of Directors of the
Company."
B. Amendment to Section 1(b). The first sentence of Section 1(b) is
hereby amended in its entirety to read as follows:
"During the Employment Period, Executive shall devote such
time and energy to the affairs of the Company as is necessary
to fulfill the responsibilities of the offices he holds and as
the affairs of the Company shall dictate, and Executive shall
not be engaged in any competitive business activity without
the express written consent of the Board."
C. Amendment to Section 3(a). Section 3(a) of the Agreement is hereby
amended in its entirety to read as follows:
"Salary. The Company shall pay Executive as salary
compensation for his services of Two Hundred Six Thousand Two
Hundred Fifty Dollars ($206,250) per annum ("Base Salary
Amount"), less applicable deductions and withholdings,
commencing April 16, 2002 and thereafter through the date of
the Company's dissolution and liquidation (the "Base Salary
Amount"); provided, that in the event that Executive spends
less than twenty hours per week engaged in addressing the
Company's affairs for three or more consecutive calendar
weeks, then the Base Salary Amount shall be adjusted
accordingly. The Base Salary Amount shall be paid twice
monthly on the first and fifteenth day of each month (or, if
such day is not a business day, then the immediately preceding
business day)."
D. Addition of Section 3(c). A new Section 3(c) shall be added to the
Agreement, as follows:
"(c) Retention Incentive Bonus. In the event the Company
becomes a debtor under the United States Bankruptcy Code,
Executive shall become entitled to earn additional
compensation in the form of a retention incentive bonus equal
to one and one-half percent (1 1/2%) of the fair market value
of all assets actually collected by the Company
post-bankruptcy petition, which bonus shall be paid as an
administrative expense of the Company's bankruptcy estate and
shall be subject to the approval of the Bankruptcy Court;
provided that, subject to Section 4(a)(iv) hereof, Executive
shall only be entitled to a retention incentive bonus to the
extent that Executive is employed by the Company at the time
of the actual collection of such assets. Executive's right to
the retention incentive bonus will attach at the time such
assets are actually collected by the Company. It is not
necessary, however, that Executive be employed by the Company
at the time Executive applies for Bankruptcy Court approval of
the retention incentive bonus."
E. Amendment to Section 4(a). Section 4(a) of the Agreement is hereby
amended by adding a new clause (iv) thereto, as follows:
"(iv) the retention incentive bonus amount provided for under
Section 3(c) of the Agreement as if he continued to be
employed by the Company through the date of collection by the
Company of all assets."
F. Full Force and Effect. Except as expressly amended herein, all other
terms and provisions of the Agreement shall remain in full force and effect and
are hereby ratified and confirmed in all respects.
G. Past Due Expenses. The Company and Xxxxxxxxx mutually acknowledge
and agree that as of the date hereof and in accordance with Section 3(d) of the
Agreement, the Company is currently obligated to reimburse certain business
expenses incurred by Executive in the amount of $25,000.
H. Counterparts. This Amendment may be executed in one or more
counterparts, each of which such counterparts shall be deemed an original and
all of which together shall constitute one and the same Amendment.
IN WITNESS WHEREOF, the undersigned have duly executed this
First Amendment to the Agreement as of the date first written above.
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
3DFX INTERACTIVE, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board of Directors
