Exhibit 10.4
AMENDMENT TO EMPLOYMENT AGREEMENT FOR EXECUTIVE OFFICER
THIS AMENDMENT TO EMPLOYMENT AGREEMENT FOR EXECUTIVE OFFICER
("Agreement") made the 13th day of December, 1998, between XXXXXXXXX, INC., a
Texas corporation (the "Company"), and J. XXXXX XXXX ("Executive").
WHEREAS, Executive and the Company have executed an Employment Agreement
dated as of November 1, 1996 (the "Employment Agreement"); and
WHEREAS, under an Agreement and Plan of Reorganization dated as of
December 13, 1998 (the "Merger Agreement"), the Company will become a
wholly-owned subsidiary of Tweety Inc., a California corporation ("Tweety");
as of the Effective Time (as defined in the Merger Agreement) (the "Merger");
and
WHEREAS, at the Effective Time of the Merger, Tweety will assume the
Employment Agreement and become the employer thereunder; and
WHEREAS, Executive and the Company desire to set forth in this Agreement
the amended terms for Executive's continued employment following the Merger.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree as follows:
FIRST
The terms of this Agreement shall become effective only at the Effective
Time of the Merger, at which time Tweety shall assume the Employment
Agreement, as amended by this Agreement, and all references in such
Employment Agreement and this Agreement to the "Company" shall be deemed to
refer to Tweety. Paragraphs 1 and 2 of the Employment Agreement will be
amended in their entirety to provide as follows:
"1. EMPLOYMENT. The Company hereby agrees to employ Executive and Executive
hereby agrees to serve the Company on the terms and conditions set forth
herein, for the period commencing on the Effective Time of the Merger and
expiring on the date that is three (3) months following such date (unless
sooner terminated as hereinafter set forth). The term of this Agreement may
be referred to herein as the "Period of Employment."
2. POSITION AND DUTIES. Executive shall serve as the Senior Vice
President of Worldwide Sales of the Company, performing the functions and
duties as shall be prescribed from time to time provided that such functions
and duties are consistent with and attendant to Executive's position or other
positions that he may hold from time to time. Executive shall devote his
full working time and efforts to the business and affairs of the Company and
the promotion of its interests and perform all duties and services on behalf
of the Company necessary to carry out such functions."
SECOND
Subparagraphs 3a, 3b and 3c of the Employment Agreement will be amended
in their entirety to read as follows:
"3. COMPENSATION AND RELATED MATTERS.
a. BASE SALARY. Executive shall receive a base salary ("Base
Salary") at the annualized rate of Two Hundred Fifteen Thousand Dollars and
No/100 Cents ($215,000.00). The term "Base Salary" as used in this Agreement
shall mean, at any point in time, Executive's annual base salary at such
time. The Base Salary shall be payable in substantially equal semi-monthly
installments or in accordance with the Company's regular payroll practices.
b. INCENTIVE COMPENSATION. In addition to Base Salary, Executive
shall participate in the Company's incentive compensation plan for its senior
executive management employees at a rate of 10% of his Base Salary and Sales
Commissions.
c. SALES COMMISSIONS. In addition to Base Salary and Incentive
Compensation, Executive shall be targeted to receive sales commissions equal
to One Hundred Ten Thousand Dollars and No/100 Cents ($110,000.00) (as a
multiplier or ratio of sales revenue) that shall be payable monthly on the
fifteenth of the month following the month in which they are earned."
THIRD
Paragraph 8(b) of the Employment Agreement will be amended in its
entirety to provide as follows:
"(b) If Executive is entitled to receive the Parachute Payment Amount
under Paragraph 11, or if Executive remains employed with the Company through
the Period of Employment and the Agreement terminates in accordance with
Subparagraph 9(h) hereof, then the provisions of Subparagraph 8(a) shall not
apply.
XXXXXX
Xxxxxxxxxxxx 0x of the Employment Agreement will be amended to delete
therefrom Subsection (A) in its entirety. Subsection (C) of the definition
of "Good Reason" in Subparagraph 9d of the Employment Agreement will be
amended in its entirety to reflect more clearly the original intent of the
parties, to read as follows:
"(C) without Executive's consent, a reduction of Executive's Base Salary
to an amount less than previously determined and fixed for the immediately
preceding twelve-month period by the Compensation Committee in accordance
with Subparagraph 3(a) other than a reduction deemed necessary by the Board
for all executive officers;"
FIFTH
Paragraph 12 of the Employment Agreement will be amended in its entirety
to provide as follows:
"12. NOTICE. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as
follows:
if to the Executive:
At his home address as shown
in the Company's personnel records;
if to the Company:
3Dfx Interactive, Inc.
0000 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Secretary
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt."
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
set forth above.
STB SYSTEMS, INC.
/s/ J. Xxxxx Xxxx /s/ Xxxxxxx X. Xxxx
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J. XXXXX XXXX By:
Its.: Chief Executive Officer
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