EXHIBIT 10.41
AMENDMENT AND RESCISSION OF PROVISION OF EXECUTIVE
SEVERANCE BENEFITS AGREEMENT
WHEREAS, pursuant to Section 2.3 of that certain Executive Severance
Benefits Agreement (the "Agreement"), dated as of December 1, 1997, by and
between Award Software International, Inc. (the "Company") and the undersigned,
the undersigned has certain rights to accelerate the vesting of stock options
such that all of those option shares held by the undersigned which would not
otherwise be vested and exercisable on the date of the Executive's Covered
Termination (as that term is defined therein) shall become immediately vested
and exercisable as of such date.
WHEREAS, pursuant to Section 2.2 of the Agreement, undersigned has the
right to receive, within thirty (30) days following the date of the
undersigned's Covered Termination, a lump sum cash payment equal to three
hundred percent (300%) of the sum of Base Pay plus Deemed Bonus (as those terms
are defined in the Agreement), subject to applicable tax withholding.
WHEREAS, neither the undersigned nor the Company intended to prohibit,
restrict or otherwise limit the Company's ability to structure transactions that
the Company may otherwise engage in.
WHEREAS, the undersigned and the Company desire to rescind any rights
pursuant to Section 2.3 of the Agreement.
WHEREAS, the undersigned and the Company desire to amend Section 2.2 of the
Agreement to reduce the lump sum cash payment from three hundred percent (300%)
to two hundred percent (200%) of the sum of Base Pay plus Deemed Bonus, subject
to applicable tax withholding.
NOW, THEREFORE, the undersigned and the Company hereby irrevocably and
unconditionally agree to rescind the rights under Section 2.3 of the Agreement,
which shall be deemed null and void ab initio. The Optionee agrees to return
any documentation received in connection with the rights under Section 2.3 of
the Agreement to the Company. Each of the undersigned and the Company
represents that he or it is not relying on any representation or promise of any
other person in executing this Rescission, or in making the rescission provided
for herein, and has assumed the risk of any misrepresentation, concealment or
mistake. If either party should subsequently discover that a fact relied upon
by he or it in entering into this Rescission was untrue, or that a fact was
concealed from it, or that is understanding of the facts or of the law was
incorrect, such party shall not be entitled to any relief in connection
therewith, including, without limitation, any alleged right or claim to set
aside or rescind this Rescission. This Rescission is intended to be and is
final and binding, regardless of any claims of misrepresentation, promise made
without the intention to perform, concealment of fact, mistake of fact or law,
or of any other circumstance. This Rescission may be executed in one or more
counterparts, each of which shall constitute an original and all of which shall
constitute one instrument.
NOW, THEREFORE, the undersigned and the Company hereby irrevocably and
unconditionally agree to amend Section 2.2 of the Agreement in its entirety to
read:
"Within thirty (30) days following the date of Executive's Covered
Termination, Executive shall receive a lump sum cash payment equal to
only two hundred percent (200%) of the sum of Base Pay plus Deemed
Bonus, subject to applicable tax withholding."
IN WITNESS WHEREOF, the undersigned has executed this Rescission as of
April ___, 1998.
OPTIONEE: AWARD SOFTWARE INTERNATIONAL, INC.
By:
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Name: Xxxxxx X. Xxxxx Name:
Title:
2.
