EXHIBIT 10.2
MACROVISION CORPORATION
EXECUTIVE SEVERANCE AND ARBITRATION AGREEMENT
THIS EXECUTIVE SEVERANCE AND ARBITRATION AGREEMENT (the "Agreement") is
made and entered into as of September 6, 2005 by and between Macrovision
Corporation, a Delaware corporation (the "Company") and Xxxxx Xxxxx
("Executive").
WHEREAS, the Board of Directors (the "Board") of the Company has
recommended and authorized the Company to enter into a severance agreement in
the form hereof with Executive; and
WHEREAS, the Board has determined that, in the event of a possible
threatened or pending sale or other change in control of the Company, it is
imperative that the Company and the Board be able to rely upon Executive to
continue in Executive's position, and that the Company be able to receive and
rely upon Executive's advice, if requested, as to the best interests of the
Company and its stockholders without concern that Executive might be distracted
by the personal uncertainties and risks created by any such possible
transactions; and
WHEREAS, in connection with the foregoing, Executive may, in addition to
Executive's regular duties, be called upon to assist in the assessment of any
such possible transactions, advise management and the Board as to whether such
proposals would be in the best interests of the Company and its stockholders,
and to take such other actions as the Board might determine to be appropriate;
NOW, THEREFORE, to assure the Company that it will have the continued
dedication of Executive and the availability of Executive's advice and counsel
through the occurrence of any Change in Control (as defined in Section 1(b)
below) of the Company, and to induce Executive to remain in the employ of the
Company, and for other good and valuable consideration, the Company and
Executive agree as follows:
1. PAYMENT OF SEVERANCE BENEFIT.
(a) In the event that a Change in Control (as hereinafter
defined) occurs and, within the period beginning ninety (90) days before the
date of the Change in Control and ending twelve (12) months thereafter, (a)
Executive's employment is terminated by the Company or a Subsidiary (as
hereinafter defined) without Cause (as hereinafter defined) or (b) Executive
voluntarily terminates his/her employment with Company and its Subsidiaries with
Good Reason (as hereinafter defined), then the Company shall pay to Executive
severance pay under this Agreement. Transfer of Executive's employment from the
Company to a Subsidiary (or to an entity of which the Company is a Subsidiary)
or from a Subsidiary to the Company or to another Subsidiary (or to an entity of
which the Company is a Subsidiary), by itself shall not be considered a
termination of Executive's employment. Such severance pay shall be in the form
of salary continuation of Executive's regular base pay in effect ninety (90)
days before the time of the Change in Control or at the time of the termination
of his
employment, whichever is greater. The Company shall pay such severance pay
during the twelve (12) month period immediately following the date on which
Executive's employment with the Company terminates; provided, however, that, if
Executive commences new employment within such twelve (12) month period, such
severance pay shall cease on the later of (i) the date six (6) months after
Executive's employment with the Company terminates or (ii) the date Executive
commences new employment.
(b) "CHANGE IN CONTROL" means any of the following events:
(i) any "person" or "group" (as defined in or pursuant to Sections 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
other than the Company, is or becomes the "beneficial owner" (as defined in Rule
13d-3 promulgated under the Exchange Act), directly or indirectly (including by
holding securities which are exercisable for or convertible into shares of
capital stock of the Company), of securities of the Company representing 50% or
more of the voting power of the outstanding shares of capital stock of the
Company entitled to vote generally in the election of directors; (ii) the
Company sells or exchanges, through merger, assignment or otherwise, in one or
more transactions, other than in the ordinary course of business, assets which
provided at least seventy percent (70%) of the revenues or pre-tax net income of
the Company and its Subsidiaries on a consolidated basis during the most
recently completed fiscal year; or (iii) Continuing Directors cease to
constitute at least a majority of the Board. "Continuing Directors" are (A) each
director serving on the Board on January 1, 2005, and (B) any successor to any
such director whose nomination or selection was approved by a majority of the
directors in office at the time of the director's nomination or selection.
Notwithstanding the foregoing, the following events shall not constitute a
Change in Control: any acquisition of beneficial ownership pursuant to (i) a
reclassification, however effected, of the Company's authorized common stock, or
(ii) a corporate reorganization involving the Company or a Subsidiary which does
not result in a material change in the ultimate ownership by the stockholders of
the Company (through their ownership of the Company or its successor resulting
from the reorganization) of the assets of the Company and its Subsidiaries, but
only if such reclassification or reorganization has been approved by the Board.
(c) "CAUSE" means the occurrence of any one or more of the
following: (i) conviction of any felony or any act of fraud, misappropriation or
embezzlement which has an immediate and materially adverse effect on the Company
or a Subsidiary; (ii) engaging in a fraudulent act to the material damage or
prejudice of the Company or a Subsidiary or engaging in conduct or activities
materially damaging to the property, business or reputation of the Company or a
Subsidiary; (iii) failure to comply in any material respect with the terms of
any applicable employment agreement or any written policies or directives of the
Board which have an immediate and materially adverse effect on the Company or a
Subsidiary and which has not been corrected within 30 days after written notice
from the Company of such failure; (iv) any material act or omission involving
malfeasance or negligence in the performance of employment duties which has an
immediate and materially adverse effect on the Company or a Subsidiary and which
has not been corrected within 30 days after written notice from the Company; or
(v) material breach of any other agreement with the Company, which has an
immediate and materially adverse effect on the Company or a Subsidiary and which
has not been cured within 30 days after written notice from the Company of such
breach.
(d) "GOOD REASON" means the occurrence of any of the
following without the Executive's consent: (i) a substantial diminution in the
Executive's status, position or
responsibilities, or the assignment to the Executive of any duties or
responsibilities that are inconsistent with the Executive's status, position or
responsibilities; (ii) a reduction in the Executive's base salary; or (iii) a
relocation of the Executive's principal place of employment to a new work site
requiring an increase in one-way commute from Executive's residence of more than
thirty-five (35) miles.
(e) "SUBSIDIARY" means (i) any corporation, foreign or
domestic, in which the Company directly or indirectly owns 50% or more of the
issued and outstanding voting stock on an "as converted basis" or (ii) any
partnership, foreign or domestic, in which the Company owns a direct or indirect
interest equal to 50% or more of the outstanding equity interests.
2. WELFARE BENEFITS.
(a) During the period that Company is obligated to pay
Executive severance pay pursuant to Section 1(a) above, or, if sooner, until
Executive is entitled to Welfare Benefits (as defined below) under any plan
maintained by any entity employing Executive after Executive's employment with
the Company terminates, Company shall provide to Executive (and his/her spouse
and other qualified dependents) all Welfare Benefits that Company provided to
Executive (and his/her spouse and qualified dependents) immediately prior to the
Change in Control. For purposes of this Agreement, the term "Welfare Benefits"
shall include, without limitation, all life, dental, health, accident and
disability benefit plans, other similar welfare plans, and any equivalent
successor policy, plan, program or arrangement that may now exist or be adopted
hereafter by the Company or a Subsidiary. Notwithstanding the foregoing, with
respect to any Welfare Benefits provided through an insurance policy, the
Company's obligation to provide such Welfare Benefits following a Change in
Control shall be limited by the terms of such policy; provided, however, that
(i) the company shall make reasonable efforts to amend such policy to provide
the continued coverage described in this Section 2(a) and (ii) if such policy is
not amended to provide the continued benefits described in this Section 2(a),
the Company shall pay Executive's cost of comparable replacement coverage.
(b) If prior to the Change in Control Executive was required
to contribute towards the cost of a Welfare Benefit as a condition of receiving
such Welfare Benefit, the Executive may be required to continue contributing
towards the cost of such Welfare Benefit under the same terms and conditions as
applied to the Executive immediately prior to the Change in Control in order to
receive such Welfare Benefit.
3. EQUITY COMPENSATION. The Company has granted Executive options
to purchase Company common stock that are currently outstanding, but not yet
exercisable in whole or in part, and the Company may grant Executive additional
stock options or other forms of equity compensation in the future. The currently
outstanding stock options and any future equity compensation Company grants to
Executive are hereinafter referred to as the "Stock Awards." Notwithstanding the
provisions of any agreement(s) pursuant to which the Stock Awards are granted,
in the event that a Change in Control occurs and, within the period beginning
ninety (90) days before the date of the Change in Control and ending twelve (12)
months thereafter, (a) Executive's employment is terminated by the Company or a
Subsidiary without Cause or (b) Executive voluntarily terminates his employment
with Company and its Subsidiaries with Good Reason, then on the last day of
Executive's employment with the Company and its Subsidiaries, all of the Stock
Awards held by Executive shall become fully vested and exercisable.
4. OTHER EMPLOYEE BENEFITS. The benefits provided to Executive
hereunder shall not be affected by or reduced because of any other benefits
(including, but not limited to, salary, bonus, pension, stock option or stock
purchase plan) to which Executive may be entitled by reason of his employment
with the Company or any Subsidiary thereof or the termination of his employment
with the Company, and no other such benefit by reason of such employment shall
be so affected or reduced because of the benefits bestowed by this Agreement.
Notwithstanding the foregoing, if Executive qualifies for severance pay under
Section 1(a) of this Agreement, such severance pay will be in lieu of, and not
in addition to, any severance to other termination payments to which Executive
may be entitled under any employment agreement with, or other plan or
arrangement of, the Company.
5. WITHHOLDING. All amounts payable by the Company hereunder shall
be subject to all federal, state, local and other withholdings and employment
taxes as required by applicable law.
6. SUBSEQUENT EMPLOYMENT WITH COMPETITOR. Executive's right to
receive benefits under this Agreement, including Executive's right to exercise
any Stock Options that have accelerated under this Agreement, shall cease
immediately upon Executive's employment by any company that the Company
reasonably determines to be a competitor of the Company and its Subsidiaries.
7. NO SOLICITATION OF EMPLOYEES. Executive hereby agrees that for a
period of one year following the termination of Executive's employment from or
contractual relationship with Macrovision, for whatever reason, Executive will
not directly or indirectly solicit, induce or influence any person who is
engaged as an employee or otherwise by Macrovision to seek employment with any
other business, nor will Executive provide any information regarding employees
of Macrovision for the purpose of directly or indirectly soliciting, inducing or
influencing an employee of Macrovision to seek employment with any other
business, including without limitation name, e-mail address, telephone or fax
numbers, job titles or compensation information, to any third party without the
prior written consent of Macrovision. Executive acknowledges that such
information is proprietary to Macrovision and that providing such information
for any unauthorized purpose, including without limitation the direct or
indirect solicitation of such employees for employment, is strictly prohibited,
and Executive further acknowledges that violation of this provision would result
in damage to Macrovision for which Executive may be held personally liable, and
Executive agrees that should Executive violate this provision, Macrovision may
obtain injunctive relief as well as actual, incidental, or punitive damages, if
appropriate.
8. ARBITRATION OF CLAIMS. The following arbitration provisions
shall apply to any claim brought by Executive or the Company after the date of
this Agreement even if the facts upon which the claim is based arose prior to
the execution of this Agreement.
(a) CLAIMS COVERED BY THIS AGREEMENT. To the maximum extent
permitted by law, the Company and Executive mutually consent to the resolution
by arbitration of all claims or causes of action that the Company may have
against Executive or that Executive may have against the Company or against its
officers, directors, employees, or agents in the capacity as such or otherwise
(collectively "claims"). The claims covered by this Agreement include, but are
not limited to, claims for breach of any contract or covenant (express or
implied); tort claims; claims for discrimination (including, but not limited to,
race, sex, sexual harassment, or any type of unlawful harassment, religion,
national origin, age, marital status, medical condition, disability or sexual
orientation); claims
for wrongful termination in violation of public policy; and claims for violation
of any federal, state, or other governmental law, statute, regulation or
ordinance, including, but not limited to, all claims arising under Title VII of
the Civil Rights Act of 1969, as amended, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act, the California Fair Employment
& Housing Act, the California Labor Code, the Consolidated Omnibus Budget
Reconciliation Act of 1985, the Fair Labor Standards Act or Employee Retirement
Income Security Act.
(b) CLAIMS NOT COVERED BY THE AGREEMENT. Claims Executive
may have for workers' compensation, unemployment compensation benefits or wage
and hour claims within the jurisdiction of the California Labor Commissioner are
not covered by this Agreement. Notwithstanding the fact that Executive is not
required to arbitrate such claims, he/she may, if he/she so chooses, submit wage
and hour claims to binding arbitration pursuant to this Agreement. Also not
covered are claims by either party for injunctive and/or other equitable relief,
as to which the parties understand and agree that either party may seek and
obtain relief from a court of competent jurisdiction.
(c) REQUIRED NOTICE OF ALL CLAIMS. The Company and Executive
agree that the aggrieved party must give written notice of any claim to the
other party. Written notice to the Company, or its officers, employees or agents
shall be sent to the Company's Chief Executive Officer. Executive will be given
notice at the last address recorded in his/her personnel file or such other
address as Executive may provide to the Company from time to time following the
date of this Agreement by a writing specifying that it is the address for notice
under this Agreement. The written notice shall identify and describe the nature
of all claims asserted and detail the facts upon which such claims are based.
The notice shall be sent to the other party by certified or registered mail,
return receipt requested.
(d) ARBITRATION PROCEDURES. The Company and Executive agree
that, except as provided in this Agreement, any arbitration shall be in
accordance with and under the auspices and rules of the American Arbitration
Association (hereinafter the "Arbitration Service"). The arbitration shall take
place in Santa Xxxxx County, California, unless the parties mutually agree to
conduct the arbitration in a different location. The arbitrator shall be
selected by the mutual agreement of the parties. If the parties cannot agree on
a neutral arbitrator, Executive first, and then the Company, will alternately
strike names from a list provided by the Arbitration Service until only one name
remains. The arbitrator shall have exclusive authority to resolve any dispute
relating to the interpretation, applicability, enforceability or formation of
this Agreement, including but not limited to any claim that all or any part of
this Agreement is void or voidable. The arbitrator shall apply the applicable
statue of limitations to any claim, taking into account compliance with
subparagraph paragraph 6(c) of this Agreement. The arbitrator shall issue a
written opinion and award, which shall be signed and dated. The arbitrator shall
be permitted to award those remedies that are available under applicable law.
The arbitrator's decision regarding the claims shall be final and binding upon
the parties. The arbitrator's award shall be enforceable in any court having
jurisdiction thereof.
(e) ACKNOWLEDGMENT OF JURY TRAIL WAIVER. Executive
understands that, by this Agreement, he/she is waiving his right to have a claim
adjudicated by a court or jury. Any party may be represented by an attorney or
other representative selected by the party.
(f) ARBITRATION FEES AND COSTS; ATTORNEYS' FEES. Executive
will be required to pay an arbitration fee to initiate the arbitration equal to
what he/she would be charged as a first appearance fee in court. The Company
shall advance the remaining fees and costs of the arbitrator. However, to the
extent permissible under the law, and following the arbitrator's ruling on the
matter, the arbitrator may rule that the arbitrator's fees and costs be
distributed in an alternative manner. The arbitrator's award in any arbitration
brought pursuant to the provisions of this Agreement shall provide for the
prevailing party to recover from the other party the prevailing party's
reasonable attorneys' fees relating to such action.
(g) REQUIREMENTS FOR MODIFICATION OR REVOCATION. This
agreement to arbitrate shall survive the termination of Executive's employment
with the Company. It can only be revoked or modified by a writing signed by the
parties that specifically states an intent to revoke or modify this Agreement.
(h) CONSIDERATION. Executive understands that the provisions
for severance pay as set forth herein and his continued employment with the
Company are consideration for his/her acceptance of these arbitration
provisions. In addition, the promises by the Company and by Executive to
arbitrate claims, rather than litigate them before courts or other bodies,
provide consideration for each other.
(i) VIOLATION OF THIS AGREEMENT. Should any party to this
Agreement hereafter institute any legal action or administrative proceeding
against the other with respect to any claim required to be arbitrated under this
Agreement or pursue any arbitral dispute by any method other than arbitration,
the responding party shall recover from the initiating party all damages, costs,
expenses and attorneys' fees incurred as a result of such action.
9. ENTIRE AGREEMENT; EFFECT OF PRIOR AGREEMENTS. This is the
complete agreement of the parties on the subjects set forth herein, including
severance pay upon a Change in Control and arbitration of disputes. This
Agreement supersedes any prior or contemporaneous oral or written understanding
on such subjects. No party is relying on any representations, oral or written,
on the subject of the effect, enforceability, or meaning of this Agreement,
except as specifically set forth in this Agreement. In the event of a conflict
between any of the terms of this Agreement and any of the terms of (i) any of
the agreements related to the Stock Awards, or (ii) that certain accepted
original offer of employment between Executive and the Company dated July 22,
2005, the terms of this Agreement shall prevail. Without limiting the generality
of the foregoing, the arbitration provisions of the original offer of employment
shall be superseded by the arbitration provisions set forth in this Agreement.
10. AMENDMENT. This Agreement may not be amended without the prior
written consent of both Executive and the Company.
11. NO RIGHT TO CONTINUED EMPLOYMENT. This Agreement does not
constitute a contract of employment, does not change the status of the
Executive's employment and does not change the Company's policies regarding
termination of employment. Nothing in this Agreement shall be deemed to give
Executive the right to be retained in the service of the Company or to deny the
Company any right it may have to discharge or demote Executive at any time;
provided, however, that any termination of employment of Executive, or any
removal of Executive as an executive officer of
the Company primarily in contemplation of a Change in Control shall not be
effective to deny Executive the benefits of this Agreement, including without
limitation Sections 1, 2 and 3 hereof. No provision of this Agreement shall in
any way limit, restrict or prohibit Executive's right to terminate employment
with the Company or leave his/her position as a senior executive.
12. SEVERABILITY. If a court or other body of competent jurisdiction
determines that any provision of this Agreement is invalid or unenforceable,
that provision will be adjusted rather than voided, if possible, so that it is
enforceable to the maximum extent possible, or, if it is not possible to so
adjust such provision, this Agreement shall be construed in all respects as if
such invalid or unenforceable provision were omitted. The invalidity and
unenforceability of any particular provision of this Agreement shall not affect
any other provision hereof, and all other provisions of the Agreement shall be
valid and enforceable to the fullest extent possible.
13. SUCCESSORS.
(a) The Company will require any successor, whether direct
or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
(b) This Agreement shall inure to the benefit of, and be
enforceable by, Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributes, devisees and legatees.
14. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without regard or
reference to the rules of conflicts of law that would require the application of
the laws of any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, effective as of the date set forth in the first paragraph hereof.
MACROVISION CORPORATION EXECUTIVE
By /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx Xxxxx
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Xxxxxx X. Xxxxxxx
CEO Xxxxx Xxxxx
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