EXHIBIT 10.9
AMENDMENT NO. 3
TO
EMPLOYMENT AGREEMENT
AMENDMENT NO. 3, dated as of November 10, 2003 ("Amendment No. 3") to
the Employment Agreement, dated as of November 1, 1999, as amended to date
(the "Agreement"), by and between eAcceleration Corp., a Delaware Corporation
(the "Company") and Xxxxx X. Xxxxxxx ("Employee").
WHEREAS, the Company and the Employee desire to amend the terms of the
Agreement, pursuant to the terms and conditions set forth herein, as of the date
hereof.
NOW, THEREFORE in consideration of the premises and of the mutual
covenants contained herein, and intending to be legally bound, the parties
hereto agree as follows:
1. The third sentence of subparagraph (b) of
Paragraph 4 of the Agreement is hereby deleted in its entirety
and replaced with the following:
"For purposes of this Agreement, "Cash Flow" shall mean, for
the period for which the bonus is being calculated, an amount
equal to the net income of the Company, before taxes,
depreciation, amortization, and extraordinary items, in each
case computed in accordance with United States generally
accepted accounting principles, consistently applied, plus (i)
an amount equal to the Company's non-cash expenses less its
non-cash gains or income (other than those removed from the
calculation of net income as set forth above), plus (ii) an
amount equal to the Company's deferred revenues less its
deferred expenses, in each case as reflected on the Company's
statement of cash flows with respect to operating activities."
2. Affirmation of Agreement. Except as expressly amended hereby,
the terms and provisions of the Agreement shall remain in full
force and effect.
3. Counterparts. This Amendment No. 3 may be executed in
counterparts, which taken together shall constitute one and the
same instrument, and either of the parties hereto may execute
Amendment No. 3 by signing either such counterpart.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment No. 3 as of the date first above written.
eACCELERATION CORP.
By: /s/ E. Xxxxxx Xxxxxx
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E. Xxxxxx Xxxxxx
Chief Financial Officer
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
