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EXHIBIT 10.38
AMERICAN ARBITRATION ASSOCIATION
DALLAS, TEXAS
XXXXXXX X. XXXX, )
)
CLAIMANT, )
)
V. ) ARBITRATION NO. 71 160 00207 00
)
3Dfx INTERACTIVE, INC. AND )
STB SYSTEMS, INC. )
)
RESPONDENT. )
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement is entered into by and between Xxxxxxx X. Xxxx
("Xxxx") on the one hand, and 3dfx Interactive, Inc. and STB Systems, Inc.
(collectively, "3dfx") on the other hand.
ARTICLE I.
DEFINITIONS: As used in the Settlement Agreement, the following terms
shall have the definition indicated throughout.
1.1 "Agreement" shall mean this Settlement Agreement.
1.2 "3dfx" shall mean Respondents 3dfx Interactive, Inc. and STB
Systems, Inc., together with any of their parents, subsidiaries,
affiliates, and all of their officers, directors, agents,
representatives, employees, and/or attorneys.
1.3 "Xxxx" shall mean Xxxxxxx X. Xxxx, together with any of his
agents, representatives, employees, and/or attorneys.
1.4 "Party" or "Parties" shall mean "3dfx" and "Xxxx" as those terms
are herein defined.
1.5 "Transaction in Question" shall mean all of the underlying
facts: events, transactions, facts, agreements, and disputes
referenced in or pertaining to the arbitration styled XXXXXXX X.
XXXX V. 3Dfx INTERACTIVE, INC. AND STB SYSTEMS, INC.;
Arbitration No. 71 160 00207 00; before the American Arbitration
Association, including all claims and counterclaims arising out
of any
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employment agreements or amendments between the Parties,
representations made by any Party, any claims for stock options,
profit sharing incentive compensation, commissions, any claims
arising out of Xxxx'x relationship with 3dfx, including his
employment and departure from 3dfx, and including Xxxx'x claims
for libel, slander, and defamation, regardless of whether such
claims are pending in or subject to this arbitration.
1.6 "Closing Date" is the date this Agreement is signed by the
Parties and an executed original counterpart of this Agreement
is delivered to Xxxxxxx X. Xxxxxx and Xxxxxx Xxxxxxx.
ARTICLE II.
RECITALS AND PURPOSES
2.1 Bona fide disputes and controversies exist between the Parties
both as to liability and the amount of damages thereof, if any,
by reason of such disputes and controversies, and the Parties
desire to compromise and settle all claims and causes of action
hereto of any kind whatsoever, which the Parties had, now have,
or may have in the future, arising, out of any part of the
Transaction in Question and intend that the full terms and
conditions of the compromise and settlement be set forth in this
Agreement.
ARTICLE III.
Upon execution of this Agreement, and in consideration of the Mutual
Promises contained herein, the Recitals contained herein, and for other good and
valuable consideration, the receipt of which is hereby acknowledged, Parties
agree to the following:
3.1 DISPOSITION OF LITIGATION: Upon the execution of this Agreement
and Mutual Release, 3dfx and Xxxx agree to enter into an Agreed
Order of Dismissal with Prejudice (Exhibit A) in XXXXXXX XXXX V.
3Dfx INTERACTIVE, INC. AND STB SYSTEMS, INC.; Arbitration No. 71
160 00207 00; before the American Arbitration Association
("AAA").
3.2 3Dfx'S CONSIDERATION: In consideration for signing and abiding
by this Agreement and for dismissing the pending lawsuit, 3dfx
shall tender to Xxxx the following:
(a) Three hundred thousand dollars ($300,000) as payment of
his Parachute Payment as that term is defined in the
Employment Agreement as Amended payable as 3dfx's entire
fee simple interest in that certain condominium and
personal property therein known as Xxxx 000, located at
the Texas Motor Speedway, free and clear of all liens
and encumbrances, together with all rights and
privileges associated with ownership of said
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condominium. Pursuant to this transfer, 3dfx will
execute a General Warranty Deed transferring the
condominium and all personal property therein to Xxxxxxx
X. Xxxx, and pay to Xxxxxxx X. Xxxx a sum equal to all
unpaid taxes and assessments accrued or accruing for the
year 2000, pro-rated through November 29, 2000. The
Parties agree to a fair market valuation of three
hundred thousand dollars ($300,000) for the condominium
and all personal property located therein. A copy of
said General Warranty Deed shall be attached to this
Settlement Agreement as Exhibit B and incorporated
herein, and all personal property found in that certain
condominium known as Xxxx 000, located at the Texas
Motor Speedway, listed on Exhibit C
(b) An assignment of fifty percent (50%) of all future
principal and interest payments payable by Enseo, Inc.
beginning February 2001 (the "Assignment") under that
certain promissory note executed by Enseo, Inc.
("Enseo") owed to 3dfx in the principal amount of
$3,000,000 dated March 1, 2000 (the "Note") and the
security agreement entered into as collateral for such
Note, as payment for any remaining claims made by Xxxx
against 3dfx in the Arbitration or otherwise released
pursuant to this Agreement. A copy of such assignment of
the payments due under the Note and security interest is
attached here to as Exhibit D. Such assignment is
without recourse against 3dfx for collection of those
amounts from Enseo unless such payment(s) are actually
received by 3dfx, in which case 3dfx shall hold Xxxx'x
share of such payment(s) in trust for Xxxx and forward
them to Xxxx within five business days of receipt from
Enseo. 3dfx agrees to instruct Enseo to pay directly to
Xxxx the entire principal and interest from Enseo's
payments of the next three (3) Note payments, namely,
the principal and interest payments made in February
2001, May 2001, and August, 2001 and forty-three and
65/100 percent (43.65%) of all such future payments made
by Enseo under the Note. Such letter of instruction is
attached hereto as Exhibit E with a payment schedule
outlining the percentages and amounts to be paid
attached thereto. It is expressly agreed and understood
among the Parties that, in the event Enseo defaults on
any or all of its Note payments, Xxxx shall have no
recourse against 3dfx, and any default by Enseo does not
constitute a breach of this Agreement. In the event of a
default by Enseo, under the Note, however, both 3dfx and
Xxxx retain a right to xxx Enseo on the Note and to
foreclose the security interest to the extent of their
fifty percent (50%) interest in Enseo's obligations
under the Note.
(c) As additional consideration, 3dfx hereby releases Xxxx
from all obligations under the Employment Agreement as
Amended.
(d) As additional consideration, 3dfx hereby agrees that any
Indemnification Agreement executed between Xxxx and 3dfx
or STB will remain in full force and effect as relates
to claims asserted against Xxxx as an officer or
director of 3dfx or STB for acts taking place prior to
Xxxx'x resignation.
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3.3 XXXX'X CONSIDERATION: In consideration for signing and abiding
by this Agreement and for dismissing the pending lawsuit, Xxxx
makes the following promises and representations to 3dfx:
x. Xxxx agrees to sign and abide by the Agreed Order of
Dismissal to be filed with the AAA.
x. Xxxx acknowledges and agrees that he has the right to
discuss all aspects of this Agreement with a private
attorney, has been encouraged to do so by 3dfx, and has
done so to the extent he desires. Further, Xxxx
understands that he has twenty-one (21) days to sign
this Agreement after receipt of it in order to consider
all of its terms fully. This Agreement may be revoked by
Xxxx only by delivering a written Notice of Revocation
to 3dfx's attorney, Xxxxxxx X. Xxxxxx, Xxxxxxx & Xxxxxx,
0000 Xxxx Xxx.; Xxxxx 000, Xxxxxx Xxxxx 00000 before
5:00 p.m. on Wednesday, December 6, 2000, and this
Agreement shall not become effective or enforceable
until the revocation period has expired. If Xxxx does
not agree with and sign this Agreement within twenty-one
(21) days of receipt of this Agreement, this Agreement
is automatically withdrawn and is null and void.
3.4 COVENANT NOT TO XXX: Upon the execution of this Agreement and
Mutual Release, the Parties agree not to xxx one another over
any matter relating to or arising out of any part of the
Transaction in Question.
3.5 ATTORNEY'S FEES AND COSTS: The Parties shall bear his or its own
costs and attorneys fees.
3.6 RELEASES: The Parties execute the following Releases except as
to their obligations set forth in this Agreement:
(a) 3dfx forever releases, discharges, acquits, and
relinquishes Xxxx, together with his agents,
representatives, employees, assigns, successors,
trustees, administrators, attorneys, and legal
representatives, of and from any and all claims,
demands, suits, damages, actions, causes of action, of
any kind or nature whatsoever, both at law and in
equity, whether heretofore or hereafter accruing,
whether now known or not known, whether foreseen or
unforeseen, for or because of any matter or thing done,
omitted, or suffered to be done by any of the Parties,
prior to and including the date hereof, including all
claims in any way directly or indirectly arising out of
the actions made the basis of Arbitration referenced in
paragraph 1.5 above, or any part of the Transaction in
Question, including claims for breach of Xxxx'x
Employment Agreement or its Amendment, fraud, fraud in
the inducement (both of the Xxxx Employment Agreement
Amendment and of the merger between STB Systems, Inc.
and 3dfx Interactive, Inc.), or any other
representations made by Xxxx, 3dfx, or STB, or any of
their agents, attorneys and affiliates at any time, and
attorneys fees.
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(b) Xxxx forever releases, discharges, acquits, and
relinquishes 3dfx, together with their parents,
subsidiaries, affiliates, and all of their agents,
representatives, officers, directors, employees,
assigns, successors, trustees, administrators,
attorneys, and legal representatives, of and from any
and all claims, demands, suits, damages, actions, causes
of action, of any kind or nature whatsoever, both at law
and in equity, whether heretofore or hereafter accruing,
whether now known or not known, whether foreseen or
unforeseen, for or because of any matter or thing done,
omitted, or suffered to be done by any of the Parties,
prior to and including the date hereof, including all
claims in any way directly or indirectly arising out of
the actions made the basis of the Arbitration referenced
in paragraph 1.5 above, or any part of the Transaction
in Question, including claims for breach of Xxxx'x
Employment Agreement or its Amendment, fraud, fraud in
the inducement (both of the Xxxx Employment Agreement
Amendment and of the merger between STB Systems, Inc.
and 3dfx Interactive, Inc.), libel, slander, defamation,
or any other representations made by Xxxx or 3dfx, or
any of their agents, attorneys and affiliates at any
time, and any claim for attorneys fees.
(c) In consideration of the above agreements,
understandings, arrangements, and obligations made by
each of the Parties, including but not limited to those
set forth in paragraphs 3.2 and 3.3, both Parties
voluntarily and knowingly waive, release, and discharge
each other, their predecessors, successors, affiliates,
employees, officers, directors, shareholders, partners,
assigns, employee retirement, health and welfare benefit
plans and the fiduciaries thereof, and agents from all
claims, liabilities, demands, and causes of action,
known or unknown, fixed or contingent, which each may
have against the other or may have or claim to have
against any of them as a result of Xxxx'x employment
and/or separation from employment (excluding breach of
this Agreement), as well as all claims or causes of
action of any kind arising out of Xxxx'x employment
agreements with 3dfx or STB. Xxxx and 3dfx and STB agree
not to file any future action to assert such claims.
This includes, but is not limited to:
(i) claims concerning Xxxx'x employment with 3dfx
and/or separation therefrom;
(ii) claims arising, under federal, state, or local
laws prohibiting discrimination such as, without
limitation, the Civil Rights Acts of 1964 and
1991, the Age Discrimination in Employment Act
of 1967 (for all claims arising through the date
you sign this Agreement), the Americans with
Disabilities Act, the Equal Pay Act, the Texas
Commission on Human Rights Act, and the Family
and Medical Leave Act;
(iii) claims for breach of contract, excluding breach
of this Agreement by 3dfx, quasi-contract, or
wrongful or constructive discharge;
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(iv) claims for personal injury, harm, or damages
(whether intentional or unintentional),
including but not limited to, libel, slander,
assault, battery, invasion of privacy, negligent
or intentional infliction of emotional distress,
or interference with business opportunity or
with contracts;
(v) claims arising out of any legal restrictions on
3dfx's right to terminate its employees;
(vi) claims arising under the Employee Retirement
Income Security Act:
(vii) for salary, vacation pay, sick pay, bonus,
profit sharing, incentive compensation, stock
options, severance pay, future pay, compensation
of any kind, retirement, health insurance,
long-term disability, AD&D, life insurance, or
any other employee benefit; or
(viii) claims arising out of any exercise and/or sale
of any incentive stock options or stock in 3dfx.
3.7 SURVIVABILITY: It is understood and agreed that this Agreement
shall be binding upon and inure to the benefit of all the
Parties and their respective heirs, spouses, representatives,
successors, and assigns in each and all capacities of each
Party.
3.8 OTHER DOCUMENTATION: Each of the Parties agrees promptly to
execute, acknowledge and deliver all further documents and
instruments that may be necessary to consummate this Agreement
and to execute, acknowledge, attest, and deliver all additional
documents, instruments, consents and approvals necessary or
advisable to fully evidence and perfect each Parties rights and
obligation described in paragraphs 3.1 to 3.6 of this Agreement.
3.9 ENTIRE AGREEMENT: It is understood and agreed that this
Agreement contains the entire agreement between the Parties and
supersedes any and all prior agreements or undertakings between
the Parties relating to the subject matter of this Agreement or
relating in any way to the Transaction in Question. No oral
understandings, statements, promises or inducements that tend to
alter or are contrary to the terms of this Agreement exist. This
Agreement cannot be changed orally. Any changes or amendments
must be signed by all Parties affected by the amendment.
3.10 NO ADMISSION OF LIABILITY: It is understood and agreed that this
a compromise of disputed claims and that nothing contained
herein shall be construed as an admission of liability by, or on
behalf of any Party, any such liability being expressly denied.
The Parties further recognize that this Agreement has been
entered into for the release and compromise of any claims which
might be asserted by any Party and to avoid the expense and
burden of litigation.
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3.11 GOVERNING LAW AND VENUE: It is understood and agreed that this
Agreement shall be governed by, construed, and enforced in
accordance with the laws of the State of Texas applicable to
contracts made and to be fully performable therein. Any dispute
regarding this Agreement shall be filed in Dallas County, Texas.
3.12 COUNTERPARTS: It is understood and agreed that this Agreement
may be executed in multiple originals and or counterparts each
of which shall be deemed an original for all purposes but such
counterparts together shall constitute one and the same
instrument.
3.13 HEADINGS: The headings of this agreement are for purposes of
reference only and shall not limit or define the meaning of the
provisions of this Agreement.
3.14 SEVERABILITY: If any section, paragraphs, sentence, clause or
phrase contained in this Agreement shall become illegal, null or
void, or shall be found to be against public policy for any
reason or shall be held by any Court of competent jurisdiction
to be illegal, null or void or found to be against public policy
the remaining sections, paragraphs, sentences, clauses or
phrases contained in this Agreement shall not be affected
thereby. In the event Xxxx is required to repay or reassign any
portion of the consideration, or any part of the consideration
is voided, Xxxx retains a claim against 3dfx to the extent of
the repaid, reassigned, or voided consideration, notwithstanding
the releases contained in this Agreement or other provisions
contained in this paragraph.
3.15 WAIVER: The waiver of any beach of any provision hereunder by
any Party to this Agreement shall not be deemed to be a waiver
of any proceeding or subsequent breach hereunder.
3.16 BINDING CONTRACT: It is expressly agreed and understood that the
terms of this Agreement are contractual, and not mere recitals
of the Parties hereto, and the Parties intend to be hereby bound
by its terms.
3.17 AUTHORITY: Each Party hereto and each Party's authorized agents
or representatives, if any, hereby acknowledge and expressly
warrant and represent for himself or itself and for his or its
predecessors, successors, assigns, heirs, administrators, and
legal representatives that he or it:
(a) is legally competent and authorized to execute this
Agreement;
(b) has not assigned, sold, or transferred, either by
instrument in writing or otherwise, any right, title,
interest or ownership in any asset or thing to be
conveyed or released in this Agreement;
(c) has read and understands the effect of this Agreement;
(d) is represented by independent legal counsel of the
Party's choice;
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(e) has received all additional information requested prior
to executing this Agreement;
(f) executes this Agreement of the Party's own free will and
accord for the purposes and consideration set forth
herein without reliance upon any statement,
representation or inducement of any other Party not
contained herein;
(g) has the full right and authority to enter into this
Agreement and to consummate the transfer and assignments
contemplated herein;
(h) has obtained all consents or waivers from all lending
institutions sufficient to transfer the consideration
expressed on paragraph 3.2 free and clear of all liens
or superior security interests; and
(i) is authorized to sign this Agreement on behalf of any of
the Parties hereto.
3.18 RETURN OF DOCUMENTS: The Parties shall return all documents
marked "Confidential" and produced by the opposing Party or its
counsel to the offices of the producing Party's counsel for
disposal within fourteen (14) days from the execution of this
document, together with a letter certifying its compliance with
this paragraph and with paragraph 13 of the Stipulation and
Protective Order dated July 13, 2000.
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IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT on the 29th day of
November 2000.
3Dfx INTERACTIVE, INC. STB SYSTEMS, INC.
By /s/ XXXXX X. XXXXX By /s/ XXXXX X. XXXXX
--------------------------------------- ---------------------------------
XXXXX X. XXXXX XXXXX X. XXXXX
Its Vice President and General Counsel Its Vice President and General
Counsel
STATE OF TEXAS )
COUNTY OF DALLAS )
BEFORE ME, the undersigned Notary Public, on this day personally
appeared XXXXX X. XXXXX, the Vice President and General Counsel of 3dfx
Interactive, Inc., a Texas corporation, and the Vice President and General
Counsel of STB Systems, Inc., a Texas corporation, known to me (or
satisfactorily proven) to be the person and officer who executed the foregoing
instrument, and acknowledged that he executed the same as such officer, for the
purposes therein contained, as the free act and deed of said corporation, by its
authority.
SUBSCRIBED AND SWORN TO BEFORE ME this 29th day of November 2000.
/s/ XXXXX XXXXXX
-------------------------------------------
Notary Public in and for the State of Texas
My Commission Expires: 08-10-04
--------------------
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/s/ XXXXXXX X. XXXX
-----------------------------
XXXXXXX X. XXXX
STATE OF TEXAS )
COUNTY OF DALLAS )
BEFORE ME, the undersigned Notary Public, on this day personally
appeared XXXXXXX X. XXXX, known to me (or satisfactorily proven) to be the
person and officer who executed the foregoing instrument, and acknowledged that
he executed the same for the purposes therein contained, as the free act and
deed.
SUBSCRIBED AND SWORN TO BEFORE ME this 29th day of November 2000.
/s/ XXXXX XXXXXX
-------------------------------------------
Notary Public in and for the State of Texas
My Commission Expires: 08-10-04
--------------------
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AMERICAN ARBITRATION ASSOCIATION
DALLAS, TEXAS
XXXXXXX X. XXXX, )
)
CLAIMANT, )
)
V. ) ARBITRATION NO. 71 160 00207 00
)
3Dfx INTERACTIVE, INC. AND )
STB SYSTEMS, INC. )
)
RESPONDENT. )
AGREED ORDER OF DISMISSAL WITH PREJUDICE
Today, Claimant XXXXXXX X. XXXX and Respondents 3Dfx INTERACTIVE, INC.
AND STB SYSTEMS, INC. presented this Agreed Order of Dismissal with Prejudice to
the arbitrator, Mr. Xxxxxx Xxxxx Xxxxxx, representing to Xx. Xxxxxx that
Claimant and Respondents have compromised and settled all claims and disputes
between and among them., and that, as a result of such settlement, they no
longer desire or require such disputes to be adjudicated in this or any other
forum.
The arbitrator finds that, in light of such settlement, this case should
be dismissed with prejudice,
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this case, including
all claims or counter-claims asserted herein, or which could have been asserted
herein, are hereby dismissed with prejudice to the refiling of same.
SO ORDERED this _____ day of _______________________, 2000.
-----------------------------------------
XXXXXX XXXXX XXXXXX, Arbitrator
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Agreed and Accepted as to Form and Content:
By By
------------------------------- --------------------------------------
Xxxxxx Xxxxxxx Xxxxxxx X. Xxxxxx
Attorney for Claimant Attorney for Respondents
Xxxxxxx X. Xxxx 3dfx Interactive, Inc.
and STB Systems, Inc.
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