EXHIBIT 10.40
AMENDMENT AND WAIVER
SILICON GRAPHICS, INC., a Delaware corporation (the "COMPANY") has
engaged XXXXXXX X. XXXXXXXX (the "EXECUTIVE") as its Chief Executive Officer on
the terms set forth in an offer letter dated as of January 22, 1998 and in an
Agreement, also dated as of January 22, 1998 (the "AGREEMENT"). This Amendment
and Waiver amends certain terms of the Agreement and sets forth the Executive's
irrevocable waiver of certain of his rights thereunder.
1. ELIMINATION OF RIGHT TO SUPPLEMENTAL PAYMENT
(a) The Executive hereby waives any right he may have under the
Agreement to be paid the Supplemental Payment (as such term is defined in the
Agreement) and agrees to the deletion in full of Section 1 of the Agreement.
(b) In connection with the waiver and agreement set forth in
subsection (a), the Executive and the Company agree to the following additional
amendments to the Agreement:
(i) the parenthetical phrase in the last sentence of Section 3(a)(i)
is deleted in its entirety;
(ii) Section 3(b)(ii) is deleted in its entirety;
(iii) the last sentence of Section 3(c) is deleted in its entirety;
(iv) the definitions of "Average Fair Market Value", "Fair Market
Value", "Final Measurement Date", "First Measurement Date", "In-the-Money
Value", "Measurement Date", "Shortfall Amount" and "Unrestricted Stock" set
forth in Section 7 are deleted in their entirety; and
(v) (A) Sections 2, 3, 4, 5, 6 and 7 are renumbered Sections 1, 2,
3, 4, 5 and 6 respectively, and all internal cross-references are
renumbered accordingly; and
(B) subsections (iii), (iv), (v) (vi) and (vii) of former
Section 3(b) (renumbered as Section 2(b) pursuant to clause (A)
above) are renumbered subsections (ii), (iii), (iv), (v) and
(vi), respectively, and all internal cross-references are
renumbered accordingly.
2. REPRESENTATIONS OF THE EXECUTIVE.
The Executive represents and warrants to the Company that he is
entering into this Agreement and Waiver freely, upon his own initiative and in
consideration of his judgment concerning the best interests of the Company and
its shareholders and his own interests as Chief Executive Officer and a
shareholder of the Company.
3. AGREEMENT REMAINS IN EFFECT.
Except as amended hereby, the Agreement remains in full force and
effect in accordance with its original terms.
4. GOVERNING LAW.
This Amendment and Waiver, together with the Agreement which it
amends, shall be governed by and construed in accordance with the laws of the
State of California (determined without regard to the choice of law provisions
thereof).
IN WITNESS WHEREOF, the parties have executed this Amendment and
Waiver effective as of the 20th day of April, 1998.
SILICON GRAPHICS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President,
Corporate Operations
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxx
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