EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is entered
into by and between Gemstar-TV Guide International, Inc. ("Company" or
"Gemstar") and Xxx Xxxxxx ("Executive") and is made effective as of March 18,
2002 ("Effective Time").
WITNESSETH:
WHEREAS, Company and Executive are parties to an Employment Agreement, made
effective as of January 3, 2001 (the "Predecessor Agreement"), pursuant to
which Executive has served the Company as Deputy General Counsel and Senior
Vice President; and
WHEREAS, the Executive was promoted on March 18, 2002, to the position of
Executive Vice President and General Counsel for the Company and has
accordingly assumed increased duties and responsibilities;
WHEREAS, Company desires to obtain the benefit of continued service by
Executive to Company, and Executive desires to render services to Company; and
WHEREAS, the Executive possesses expertise in the legal, licensing and
business of the Company, and it is in the best interest of the Company to
retain the services of Executive and to provide Executive certain additional
benefits; and
WHEREAS, Company and Executive desire to set forth in this Agreement the
terms and conditions of Executive's future employment with the Company.
NOW, THEREFORE, in connection of the mutual promises and covenants herein
contained, the parties agree to terminate in its entirety, unless otherwise
specified in this Agreement, the Predecessor Agreement, and the parties further
agree as follows:
1. Period of Employment.
(a) Basic Term. The Company hereby employs Executive to render services to
the Company in the position and with the duties and responsibilities described
in Section 2 for the period (the "Period of Employment") commencing, without
any further action by either party, at the Effective Time and ending on the
earlier of (i) five (5) years following the date of the Effective Time (the
"Term") or (ii) the date the Period of Employment is terminated in accordance
with Section 4.
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2. Position, Duties and Responsibilities.
(a) Position. Executive hereby accepts employment with the Company as
Executive Vice President and General Counsel reporting directly to Xxxxx Xxxx,
Chief Executive Officer, and Chairman of the Board of the Company
("Supervisor").
(b) Other Activities. Executive, during the Period of Employment, will not
(i) accept any other employment, or (ii) engage in any other business activity
(whether or not pursued for pecuniary advantage) that is competitive with, or
that places him in a competing position to that of, the Company or any
Affiliated Company.
3. Compensation, Benefits, Etc.
(a) Compensation. In consideration of the services to be rendered
hereunder, including without limitation, services to any Affiliated Company,
Executive shall be paid an annual salary of Six Hundred Thousand Dollars (US
$600,000) (the "Annual Salary") effective March 18, 2002, subject to an annual
increase at the discretion of Xxxxx Xxxx, CEO, provided that such increase
shall not be less than the increase, if any, in the Consumer Price Index for
All Urban Consumers, U.S. City Average, for all items as published by the
Bureau of Labor Statistics of the Department of Labor ("CPI"). The Annual
Salary shall first be subject to such increase adjustment on July 1, 2003 and,
thereafter, on July 1 of each calendar year ("DATE OF ADJUSTMENT"). The CPI
increase measure shall be equal (on a cumulative basis) to the percentage
change between July 1, 2002 and the DATE OF ADJUSTMENT in the CPI. The Annual
Salary (as increased during the term) shall be payable in installments at the
times and pursuant to the procedures regularly established, and as they may be
amended, by the Company during the term of this Agreement.
(b) Stock Options. The Company shall grant to Executive within ninety (90)
days of the Effective Time, a nonqualified stock option under Gemstar's 1994
Stock Incentive Plan to purchase 200,000 shares of Gemstar common stock (the
"Common Shares"), at an exercise price per share equal to the market price per
share on the date of grant. The option shall vest and become exercisable in
equal annual installments over 3 years on the anniversary date of the Effective
Time. Such option shall be evidenced by a stock option agreement ("Option
Agreement") utilized by Gemstar for the grant of other stock options under the
plan and shall contain the aforementioned vesting and other terms which are
consistent with the grants of stock options made to other senior executives of
the Company. For avoidance of doubt, all previous options granted to Executive,
including those granted under the Predecessor Agreement remain effective in
accordance with their terms. Executive shall be entitled to exercise all vested
options under any option grant granted to Executive in the past, present or
future until the 10th anniversary of the date of any grant. To the extent any
of the terms of the Option Agreement or other option agreements with Executive
are inconsistent with the terms of this Agreement, the terms of this Agreement
shall control.
(c) Benefits. As Executive becomes eligible therefor, the Company shall
provide Executive with the right to participate in and to receive benefits from
all present and
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future life, accident, disability, medical, pension and savings plans and all
similar benefits made available generally to executives of the Company. The
amount and extent of benefits to which Executive is entitled shall be governed
by the specific benefit plan, as it may be amended from time to time.
Additionally, the Executive shall receive other such benefits as he may
reasonably request, such as disability and life insurance benefits that are
commensurate with his position.
(d) Expenses. The Company shall reimburse Executive for reasonable travel
(including first class air travel), professional and other business expenses
incurred by Executive in the performance of his duties hereunder in accordance
with the Company's general policies, as they may be amended from time to time
during the terms of this Agreement.
(e) Bonus. The Executive shall receive an annual bonus, on or before
February 1, for each fiscal during the Term in an amount to be determined in
the sole discretion of the Company, but in no event less than twenty-five
percent (25%) of the then current Annual Salary.
(f) Automobile Allowance. As additional compensation for Executive's
services to the Company, the Company shall pay Executive's monthly automobile
allowance of US $750 during the Period of Employment.
(g) Vacation. Executive shall be entitled to four weeks paid vacation, per
calendar year.
(h) Previous Relocation. The Executive has relocated to corporate
headquarters located in Pasadena on July 1, 2001. In connection with such
relocation the Predecessor Agreement provided for certain consideration for
such relocation. Accordingly, Section 3(h) (excluding the last sentence
thereof) of the Predecessor Agreement is hereby incorporated by reference into
this Agreement, and shall remain in force.
(i) Constructive Termination. In the event the Executive, without
Executive's written consent, has been reassigned by the Company, to a position
with responsibilities which are substantially less or greater than that
described in Section 2(a) above, or assigned duties or responsibilities
inconsistent with such position, or has his responsibilities or duties
materially diminished or materially reduced or increased at any time, or
relocation of Executive's principal office to a geographic location outside of
the Los Angeles, California area is required, or in the event of requirement of
Executive to report to any person other than Xxxxx Xxxx as CEO of the Company;
then any of the foregoing shall constitute a "constructive termination" of
Executive and Executive shall be treated as being terminated without cause as
provided in Section 4(d) below.
(j) Change of Control. A "Change of Control" for purposes of this Agreement
shall be defined as any of the following acts:
(i) If News Corporation or any affiliated person or entity sells more
than two-thirds of its existing equity interest in the Company; or
(ii) if News Corporation or any affiliated person or entity acquires
greater than 43 percent of the equity of the Company; or
(iii) If News Corporation or any affiliated person or entity gains
effective or actual control of the Company's Board of Directors; or
(iv) The acquisition after the Effective Time by any person, entity, or
group, within the meaning of (S)13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), of beneficial ownership of
twenty-five percent (25%) or more of the Company's outstanding ordinary
shares.
The Executive shall have the right in his sole discretion, to terminate this
Agreement at any time during the one hundred eighty (180) days following a
Change of Control, and in the event of any such termination Company shall
thereafter promptly pay the Executive as if such termination was a termination
without cause as provided in Section 4(d) below.
4. Termination of Employment.
(a) By Death. The Period of Employment shall terminate automatically upon
the death of Executive. The Company shall pay to Executive's beneficiaries or
estate, as appropriate, the compensation to which he was entitled pursuant to
Section 3(a) and Section 3(b) through the end of the month in which the death
occurs. Thereafter, the Company's obligations hereunder shall terminate. All
stock options, which shall have vested as of the date of Executive's death,
shall be exercisable by Executive's estate or beneficiaries until the 10/th/
anniversary of the date of grant. Nothing in this section shall affect any
entitlement of Executive's heirs to the benefits under any life insurance plan.
(b) By Disability. If, in the sole opinion of the Board, Executive shall be
prevented from properly performing his duties hereunder by reason of any
physical or mental incapacity for a period of more than 150 days in the
aggregate or 120 consecutive days in any twelve month period, then, to the
extent permitted by law, the Period of Employment shall terminate on and the
compensation to which Executive is entitled pursuant to Section 3(a) and
Section 3(e) shall be paid up through the last day of the month in which the
Board determines Executive to be disabled hereunder, and thereafter the
Company's obligations hereunder shall terminate. All stock options, which shall
have vested as of the date of Executive's termination due top disability, shall
be exercisable until the third anniversary of executive's termination due to
disability. Nothing in this section shall affect Executive's rights under any
disability plan in which he is a participant.
(c) By Company For Cause. The Company may terminate the Period of
Employment for Cause (as defined below) at any time upon thirty days written
notice to Executive of the cause and provided Executive is given no less than
thirty (30) days to cure such cause. Termination shall be for "Cause" if: (i)
Executive engages in conduct that constitutes continued willful neglect or
willful misconduct that is materially detrimental to the business or
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reputation of the Company, or is convicted of or pleads guilty or nolo
contendre to, a felony; (ii) Executive willfully refuses or fails to act in
accordance with any reasonable direction in order of the Supervisor; provided,
that the Supervisor has given Executive written notice of such refusal or
failure and Executive fails to comply with such direction or order within
thirty (30) days after the date of such notice; or (iii) Executive has engaged
in any fraud, embezzlement, misappropriation or similar conduct against the
Company. In the event the Company terminates Executive's employment for Cause,
(i) he shall be entitled to his then current Annual Salary through the date of
the termination of his employment for Cause, (ii) all unvested or unexercisable
options as of the date of termination for Cause shall be forfeited and (iii)
all previously vested options as of the date of termination for Cause shall
remain exercisable for a period of 90 days following such date.
(d) By Company Without Cause. The Company may terminate the Period of
Employment without Cause at any time upon written notice to Executive ("Notice
of Termination Without Cause.") In the event of a termination without cause the
Executive shall be entitled to and paid on termination the following:
(i) The greater of: (a) a lump sump payment equivalent to the sum of
Executive's then current Annual Salary and the bonus pursuant to Section 3
(e), multiplied by the remaining years and fraction thereof in the Term; or
(b) the sum of Executive's then current Annual Salary and the bonus pursuant
to Section 3 (e) multiplied by one; and
(ii) the right to exercise any vested stock options and any unvested
options which would have vested if the Executive continued his employment
until the end of the Term; In each case the Executive shall have the right
to exercise such options until the 10/th/ anniversary of the grant; and
(iii) until the earlier of the end of the Term and the date on which
Executive finds other employment, continued participation in the employee
plans and programs (including the programs set forth in Section 3 (c), but
not including any new option grants under the applicable option plans) which
he was participating on the date of Termination Without Cause.
Executive agrees to accept the severance provided in the Section 4 (d) as
liquidated damages in lieu of any other damages or severance benefits to which
he might be entitled as a result of the termination of his employment with the
Company. All amounts paid to the Executive pursuant to this Section 4 (d) shall
be paid without regard to whether the Executive has taken actions to mitigate
damages.
(e) By Executive without Cause. The Executive may terminate this
agreement anytime during the Term by providing the Company thirty (30) days
written notice.
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In the event the Executive's provides such notice to end his employment without
cause, (i) he shall be entitled to his then current Annual Salary (through the
date of termination given by Executive) and bonus (prorated through the date of
termination given by Executive) pursuant to Section 3(e) through the date of
the termination of his employment under this Section 4(e), (ii) all unvested or
unexercisable options as of the date of termination under this Section 4(e)
shall be forfeited and (iii) all previously vested options as of the date of
termination under this Section 4(e) shall remain exercisable for a period of 90
days following such date.
(f) Termination Obligations.
(i) Executive hereby acknowledges and agrees that all personal property,
including, without limitation, all books, manuals, records, reports, notes,
contracts, lists, blueprints and other documents, or materials, or copies
thereof, Proprietary Information (as defined below), furnished to or prepared
by Executive in the course of or incident to his employment, including, without
limitation, records and any other materials pertaining to Invention Ideas (as
defined below), belong to the Company.
(ii) Upon termination of the Period of Employment, Executive shall be deemed
to have resigned from all offices then held with the Company or any Affiliated
Company, including any seats on any Board or Boards if requested by Xxxxx Xxxx,
subject to then applicable law.
(iii) Section 3(b), Section 5 and the Executive's obligations under Sections
6, 7 and 8 shall survive termination of the Period of Employment and expiration
of this Agreement.
5. Indemnity.
To the maximum extent permitted by applicable law, Company shall indemnify
Executive and hold Executive harmless from and against any and all claims,
liabilities, judgments, fines, penalties, costs and expenses (including,
without limitation, reasonable attorneys' fees, costs of investigation and
experts, settlements and other amounts incurred or suffered by Executive in
connection with or relating to the defense of any action, suit or proceeding,
and in connection with any appeal thereon) (a) in any and all threatened,
pending or completed actions, suits or proceedings, whether civil or criminal,
administrative or investigative (including, without limitation, actions suits
or proceedings brought by or in the name of the Company or related person or
entity or shareholder), by reasons of Executive's status, actions or inaction,
including actual or alleged errors or omissions, as an employee or agent of
Company or any affiliate of Company or (b) arising out of any breach of this
Agreement by Company.
Executive shall be entitled to such indemnification notwithstanding any
actual or alleged negligence or breach of duty by Executive, provided only that
Executive shall not be entitled to indemnification if a court shall finally
determine that acts of active and deliberate dishonesty by Executive were
material to the claim adjudicated.
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Company shall promptly advance to Executive any and all expenses incurred by
Executive in defending any and all such actions, suits or proceeding. The
advances to be made hereunder shall be paid by the Company to Executive within
twenty (20) days following delivery of a written request therefor by Executive
to the Company.
If a claim under this Agreement is not paid in full by the Company within
forty-five (45) days after a written request for payment thereof has first been
received by the Company or, Executive may, but need not, at any time thereafter
bring an action against the Company or to recover the unpaid amount of the
claim. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in connection with any action or
proceeding in advance of its final disposition) that Executive has not met the
standards of conduct which make it permissible under this Agreement and
applicable law for the Company to indemnify Executive for the amount claimed,
but the burden of proving such defense shall be on the Company, and Executive
shall be entitled to receive interim payments of expenses unless and until such
defense may be finally adjudicated by court order or judgment from which no
further right of appeal exists. In the event of any action under this Agreement
to enforce or interpret any of the terms hereof, Executive shall be entitled to
be paid all court costs and expenses, including reasonable attorneys' fees,
incurred by Executive with respect to such action, unless as part of such
action, a court of competent jurisdiction determines that each of the material
assertions made by Executive as a basis for such action were not made in good
faith or were frivolous.
6. Proprietary Information.
(a) Defined. "Proprietary Information" is all information and any idea in
whatever form, tangible or intangible, pertaining in any manner to the business
of the Company or any Affiliated Company, or to its clients, consultants or
business associates, unless: (i) the information is or becomes publicly known
through lawful means; (ii) the information was rightfully in Executive's
possession or part of his general knowledge prior to his employment by the
Company; or (iii) the information is disclosed to Executive without
confidential or proprietary restriction by a third party who rightfully
possesses the information (without confidential or proprietary restriction) and
did not learn of it, directly or indirectly, from the Company.
(b) General Restrictions on Use. Executive agrees to hold all Proprietary
Information in strict confidence and trust for the sole benefit of Company and
not to, directly or indirectly, disclose, use, copy, publish, summarize or
remove from the Company's premises any Proprietary Information (or remove from
the premises any other property of the Company), except (i) during the Period
of Employment to the extent necessary to carry out Executive's responsibilities
under this Agreement, and (ii) after termination of the Period of Employment as
specifically authorized in writing by the Board.
(c) Interference with Business Competitive Activities. Executive
acknowledges that pursuit of the activities prohibited by this Section 6(c)
would necessarily involve the use or disclosure of Proprietary Information in
breach of Section 6(b), but that proof
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of such breach would be extremely difficult. To prevent such disclosure, use
and breach and in consideration of employment under this Agreement, Executive
agrees for a period of one (1) year after termination of the Period of
Employment, he shall not for himself or any third party, directly or
indirectly, (i) divert or attempt to divert from the Company (or any Affiliated
Company) any business of any kind in which it is engaged, including, without
limitation, the solicitation of or interference with any of its suppliers or
customers, (ii) employ, solicit for employment, or recommend for employment any
person employed by the Company, or any Affiliated Company, during the period of
such person's employment for a period of one year thereafter, or (iii) engage
in any business activity that is competitive with the Company, unless Executive
can prove that action taken in contravention of this Section 6(c)(iii) was done
without the use of any Proprietary Information; provided, that in no event
shall Executive engage in such competitive activities during the period which
Executive continues to receive payments pursuant to Section 3(a) above. For
purposes of this Section 6(c), "competitive activities" shall be business
activities that are directly competitive with an existing or presently planned
business of the Company on the date of termination.
(d) Remedies. Nothing in this Section 6 is intended to limit any remedy of
the Company under the California Uniform Trade Secrets Act (California Civil
Code (S) 3426) or otherwise available under law.
7. Executive Inventions and Ideas.
(a) Defined; Statutory Notice. The term "Invention Ideas" means any and all
ideas, processes, trademarks, service marks, inventions, technology, computer
programs, original works of authorship, designs, formulas, discoveries,
patents, copyrights, and all improvements, rights, and claims related to the
foregoing that are conceived, developed, or reduced to practice by the
Executive alone or with others except to the extent that California Labor Code
Section 2870 lawfully prohibits assignment of rights in such ideas, processes,
inventions, etc. Section 2870(a) provides;
Any provision in an employment agreement which provides that an Executive
shall assign, or offer to assign, any of his or her rights in an invention to
his or her employer shall not apply to an invention that the Executive
developed entirely on his or her own time without using employer's equipment,
supplies, facilities, or trade secret information except for those inventions
that either:
(i) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer.
(ii) Result from any work performed by the Executive for the employer.
Executive hereby acknowledges that he understands the foregoing limitations
created by Section 2870.
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(b) Disclosure. Executive agrees to maintain adequate and current written
records on the development of all Invention Ideas and to disclose promptly to
the Company all Invention Ideas and relevant records, which records will remain
the sole property of the Company. Executive further agrees that all information
and records pertaining to any idea, process, trademark, service xxxx,
invention, technology, computer program, original work of authorship, design,
formula, discovery, patent, or copyright that Executive does not believe to be
an Invention Idea, but is conceived, developed, or reduced to practice by
Executive (alone or with others) during his Period of Employment or during the
one year period following termination of employment, shall be promptly
disclosed to the Company (such disclosure to be received in confidence). The
Company shall examine such information to determine if in fact the idea,
process, or invention, etc., is an Invention Idea subject to this Agreement.
(c) Assignment. Executive agrees to assign to the Company, without further
consideration, his entire right, title, and interest (throughout the United
States and in all foreign countries), free and clear of all liens and
encumbrances, in and to each Invention Idea, which shall be the sole property
of the Company, whether or not patentable. In the event any Invention Idea
shall be deemed by the Company to be patentable or otherwise registerable,
Executive shall assist the Company (at its expense) in obtaining letters
patent, copyright, trademark, or other applicable intellectual property
registrations thereon and shall execute all documents and do all other things
(including testifying at the Company's expense) necessary or proper to obtain
letters patent, copyright, trademark, or other applicable intellectual property
registrations thereon and to vest the Company, or any Affiliated Company
specified by the Board, with full title thereto. Should the Company be unable
to secure Executive's signature on any document necessary to apply for,
prosecute, obtain, or enforce any patent, copyright, or other right or
protection relating to any Invention Idea, whether due to the Executive's
mental or physical incapacity or any other cause, Executive hereby irrevocably
designates and appoints Company and each of its duly authorized officers and
agents as the Executive's agent and attorney in fact, to act for and in the
Executive's behalf and stead and to execute and file any such document, and to
do all other lawfully permitted acts to further the prosecution, issuance, and
enforcement of patents, copyrights, or the rights or protections with the same
force and effect as if executed and delivered by Executive. Executive hereby
agrees to maintain, update, improve and modify the Invention Ideas, for so long
as he is living, regardless of whether the Period of Employment has terminated.
(d) Exclusions. Executive acknowledges that there are no ideas, processes,
trademarks, service marks, technology, computer programs, original works of
authorship, designs, formulas, inventions, discoveries, patents, copyrights, or
improvements to the foregoing that he desires to exclude from the operation of
this Agreement, except for the inventions and ideas of Executive and his
associates outside of the Company (i) which were or are developed entirely by
Executive and each such associate entirely outside of his or her activities for
the Company, (ii) which do not relate at the time of conception or reduction to
practice to the Company's business, or actually or demonstrably anticipated
research development, and (iii) which do not result from any work performed by
Executive for the Company. To the best of the Executive's knowledge, there is
no existing contract in conflict with this Agreement or any other contract to
assign ideas, processes, trademarks, service marks, inventions, technology,
computer
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programs, original works of authorship, designs, formulas, discoveries,
patents, or copyrights that is now in existence between Executive and any other
person or entity.
(e) Post-Termination Period. Because of the difficulty of establishing when
any idea, process, invention, etc., is first conceived or developed by
Executive, or whether it results from access to Proprietary Information or the
Company's equipment, facilities, and data, Executive agrees that any idea,
process, trademark, service xxxx, technology, computer program, original work
of authorship, design, formula, invention, discovery, patent, copyright, or any
improvement, rights, or claims related to the foregoing shall be presumed to be
an Invention Idea if it is conceived, developed, used, sold exploited, or
reduced to practice by Executive or with the aid of Executive within one (1)
year after termination of the Period of Employment. Executive can rebut the
above presumption if he proves that the invention, idea, process, etc., (i) was
first conceived and/or developed prior to the date of this Agreement, (ii) was
first conceived or developed after termination of the Period of Employment,
(iii) was conceived or developed entirely on Executive's own time without using
the Company's equipment, supplies, facilities, or Proprietary Information, and
(iv) did not result from any work performed by Executive for the Company.
Nothing in this Agreement is intended to expand the scope of protection
provided Executive by Sections 2870 through 2872 of the California Labor Code.
8. Assignment: Successors and Assigns.
Executive agrees that he will not assign, sell, transfer, delegate or
otherwise dispose of, whether voluntarily or involuntarily, or by operation of
law, any rights or obligations under this Agreement, nor shall Executive's
rights be subject to encumbrance or the claim of creditors. Any purported
assignment, transfer or delegation shall be null and void. Nothing in this
Agreement shall prevent the consolidation of the Company with, or its merger
into, any other corporation, or the sale by the Company of all or substantially
all of its properties or assets, or the assignment by the Company of this
Agreement and the performance of its obligations hereunder to any successor in
interest or any Affiliated Company. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of the parties and their
respective heirs, legal representatives, successors and permitted assigns, and
shall not benefit any person or entity other than those enumerated above.
In the event of a consolidation or merger of the Company with or into
another corporation, or the sale of all, or substantially all, of the Company's
assets to another corporation, such corporation as may survive said transaction
shall assume this Agreement and become obligated to perform all the terms and
conditions hereof, and Executive's obligations hereunder shall continue in
favor of such surviving corporation.
9. Notices. All notices or other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered by hand or mailed, postage prepaid, by certified or registered
mail, return receipt requested, and addressed to the Company at:
Gemstar-TV Guide International, Inc.
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000 Xxxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx, CEO
or to Executive at:
Xxxxxxxx Xxxxxx
000 Xxxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Notice of change of address shall be effective only if done in accordance with
this section.
10. Entire Agreement. Except as expressly provided herein with respect to
certain rights of Executive under the Prior Employment Agreement, the terms of
this Agreement are intended by the parties to be the final and exclusive
expression of their agreement with respect to the employment of Executive by
the Company and may not be contradicted by evidence of any prior or
contemporaneous agreement any and all of which are superceded as of the
Effective Time. The parties further intend that this Agreement shall constitute
the complete and exclusive statement of its terms and that no extrinsic
evidence whatsoever may be introduced in any judicial, administrative or other
legal proceeding involving this Agreement.
11. Amendments; Waivers. This Agreement may not be modified, amended or
terminated except by an instrument in writing, signed by Executive and by a
duly authorized representative of the Company other than Executive. By an
instrument in writing similarly executed, either party may waive compliance by
the other party with any provision of this Agreement that such other party was
or is obligated to comply with or perform, provided, however, that such waiver
shall not operate as a waiver of, or estoppel with respect to, any other or
subsequent failure. No failure to exercise and no delay in exercising any
right, remedy or power hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, remedy or power hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy or power provided herein or by law or in equity.
12. Severability; Enforcement. If any provision of this Agreement, or the
application thereof to any person, place or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other persons,
places and circumstances shall remain in full force and effect.
13. Governing Law. The validity, interpretation, enforceability and
performance of this Agreement shall be governed by and construed in accordance
with the law of the State of California.
14. Injunctive Relief. The parties agree that in the event of any breach
or threatened breach of any of the covenants in Section 6, the damage or
imminent damage to the value and the goodwill of the Company's business will be
irreparable and extremely difficult to estimate, making any remedy at law or in
damages inadequate. Accordingly, the parties that the
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Company shall be entitled to injunctive relief against Executive in the event
of any breach of threatened breach of any such provisions by Executive, in
addition to any other relief (including damages) available to the Company under
this Agreement or under laws.
15. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, its enforcement or interpretation, or because of an alleged
breach, default, misrepresentation in connection with any of its provisions,
shall be submitted to arbitration, to be held in Los Angeles, California in
accordance with California Code of Civil Procedure Sections 1282-1284.2. In the
event either party institutes arbitration under this Agreement, the prevailing
party in any such arbitration shall be entitled, in addition, to all other
relief, to reasonable attorneys' fees relating to such arbitration. The
nonprevailing party shall be responsible for all costs of the arbitration,
including but not limited to, the arbitration fees, court reporter fees, etc.
The parties have duly executed this Agreement as of the date first written
above.
/s/ XXX XXXXXX
-----------------------------
Xxx Xxxxxx
Executive
/s/ XXXXX XXXX
-----------------------------
Gemstar-TV Guide
International, Inc.
By: Xxxxx Xxxx, CEO
