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Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into by and between
Xxxxxxx Xxxxxx ("Employee") and USA Networks, Inc., a Delaware corporation (the
"Company"), and is effective March 30, 1998 (the "Effective Date").
WHEREAS, the Company desires to establish its right to the services of
Employee, in the capacity described below, on the terms and conditions
hereinafter set forth, and Employee is willing to accept such employment on such
terms and conditions.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, Employee and the Company have agreed and do hereby agree as follows:
1A. EMPLOYMENT. The Company agrees to employ Employee as Vice President -
Controller of the Company, and Employee accepts and agrees to such employment.
During Employee's employment with the Company, Employee shall do and perform all
services and acts necessary or advisable to fulfill the duties and
responsibilities as are commensurate and consistent with Employee's position and
shall render such services on the terms set forth herein. During Employee's
employment with the Company, Employee shall report directly to the Chief
Financial Officer and/or the senior executive officer who has responsibility for
corporate staff functions (such person(s) as from time to time may be designated
by the Company, hereinafter referred to as the "Reporting Officer"). Employee
shall have such powers and duties with respect to the Company as may reasonably
be assigned to Employee by the Reporting Officer, to the extent consistent with
Employee's position and status. Employee agrees to devote all of Employee's
working time, attention and efforts to the Company and to perform the duties of
Employee's position in accordance with the Company's policies as in effect from
time to time. Employee's principal place of employment shall be the Company's
offices located in New York City; however, Employee's position shall require
long-distance travel on Company business.
2A. TERM OF AGREEMENT. The term ("Term") of this Agreement shall commence on the
Effective Date and shall continue for a period of three years, unless sooner
terminated in accordance with the provisions of Section 1 of the Standard Terms
and Conditions attached hereto.
3A. COMPENSATION.
(a) BASE SALARY. During the Term, the Company shall pay Employee an
annual base salary of $250,000 (the "Base Salary"), payable in equal biweekly
installments or in accordance with the Company's payroll practice as in effect
from time to time. For all purposes under this Agreement, the term "Base Salary"
shall refer to Base Salary, including adjustments thereto, if any, as made from
time to time.
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(b) DISCRETIONARY BONUS. During the Term, Employee shall be eligible to
receive discretionary annual bonuses on the same basis as peer employees of the
Company.
(c) STOCK OPTION. In consideration of Employee's entering into this
Agreement and as an inducement to join the Company, Employee shall be granted
under USA Networks, Inc.'s 1997 Stock and Annual Incentive Plan (the "Plan") a
non-qualified stock option (the "Option") to purchase 50,000 shares of USA
Networks, Inc. ("USAi") common stock, par value $.0l per share (the "Common
Stock"), after giving effect to the two-for-one stock split paid to holders of
record of the Common Stock on March 12, 1998. The date of grant of the Option
shall be the Effective Date. The exercise price of the Option shall equal the
last reported sales price of the Common Stock in the over-the-counter market on
the date preceding the Effective Date. Such Option shall vest and become
exercisable in four equal installments on each of the first, second, third and
fourth anniversaries of the Effective Date, provided that the Option shall
become 100% vested and exercisable upon a Change in Control (as such term is
defined in the Plan). The Option shall expire upon the earlier to occur of (i)
ten years from the date of grant (the "Option Term") or (ii) except as otherwise
provided in the Option award agreement, 90 days following the termination of
Employee's employment with the Company for any reason.
(d) BENEFITS. During the Term, Employee shall be entitled to
participate in any welfare, health and life insurance and pension benefit and
incentive programs as may be adopted from time to time by the Company on the
same basis as that provided to other senior executives of the Company. Without
limiting the generality of the foregoing, Employee shall be entitled to the
following benefits:
(i) Reimbursement for Business Expenses. During the Term, the
Company shall reimburse Employee for all reasonable and necessary
expenses incurred by Employee in performing Employee's duties for the
Company, on the same basis as similarly situated employees and in
accordance with the Company's policies as in effect from time to time.
(ii) Vacation. During the Term, Employee shall be entitled to
four weeks of paid vacation per year, in accordance with the plans,
policies, programs and practices of the Company applicable to similarly
situated employees of the Company generally.
4A. NOTICES. All notices and other communications under this Agreement shall be
in writing and shall be given by first-class mail, certified or registered with
return receipt requested or hand delivery acknowledged in writing by the
recipient personally, and shall be deemed to have been duly given three days
after mailing or immediately upon duly acknowledged hand delivery to the
respective persons named below:
If to the Company: USA Networks, Inc.
000 Xxxx 00 Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
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If to Employee: Xxxxxxx Xxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxxx Xxxxxx, XX 00000
Either party may change such party's address for notices by notice duly given
pursuant hereto.
5A. GOVERNING LAW. This Agreement and the legal relations thus created between
the parties hereto shall be governed by and construed under and in accordance
with the internal laws of the State of New York without reference to the
principles of conflicts of laws.
6A. COUNTERPARTS. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument. Employee expressly understands and
acknowledges that the Standard Terms and Conditions attached hereto are
incorporated herein by reference, deemed a part of this Agreement and are
binding and enforceable provisions of this Agreement. References to "this
Agreement" or the use of the term "hereof" shall refer to this Agreement and the
Standard Terms and Conditions attached hereto, taken as a whole.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed and delivered by its duly authorized officer and Employee has
executed and delivered this Agreement on March 31, 1998.
USA NETWORKS, INC.
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By: Xxxxxx X. Xxxx
Title: Senior Vice President & General Counsel
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XXXXXXX XXXXXX
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STANDARD TERMS AND CONDITIONS
1. TERMINATION OF EMPLOYEE'S EMPLOYMENT.
(a) DEATH. In the event Employee's employment hereunder is terminated
by reason of Employee's death, the Company shall pay Employee's designated
beneficiary or beneficiaries, within 30 days of Employee's death in a lump sum
in cash, Employee's Base Salary through the end of the month in which death
occurs and any Accrued Obligations (as defined in paragraph 1(f) below).
(b) DISABILITY. If, as a result of Employee's incapacity due to
physical or mental illness ("Disability"), Employee shall have been absent from
the full-time performance of Employee's duties with the Company for a period of
four consecutive months and, within 30 days after written notice is provided to
Employee by the Company (in accordance with Section 6 hereof), he shall not have
returned to the full-time performance of Employee's duties, Employee's
employment under this Agreement may be terminated by the Company for Disability.
During any period prior to such termination during which Employee is absent from
the full-time performance of Employee's duties with the Company due to
Disability, the Company shall continue to pay Employee's Base Salary at the rate
in effect at the commencement of such period of Disability, offset by any
amounts payable to Employee under any disability insurance plan or policy
provided by the Company. Upon termination of Employee's employment due to
Disability, the Company shall pay Employee within 30 days of such termination
(i) Employee's Base Salary through the end of the month in which termination
occurs in a lump sum in cash, offset by any amounts payable to Employee under
any disability insurance plan or policy provided by the Company; and (ii) any
Accrued Obligations (as defined in paragraph 1(f) below).
(c) TERMINATION FOR CAUSE. The Company may terminate Employee's
employment under this Agreement for Cause at any time prior to the expiration of
the Term. As used herein, "Cause" shall mean: (i) the plea of guilty or nolo
contendere to, or conviction for, the commission of a felony offense by
Employee; provided, however, that after indictment, the Company may suspend
Employee from the rendition of services, but without limiting or modifying in
any other way the Company's obligations under this Agreement; (ii) a material
breach by Employee of a fiduciary duty owed to the Company; (iii) a material
breach by Employee of any of the covenants made by Employee in Section 2 hereof;
or (iv) the willful and gross neglect by Employee of the material duties
required by this Agreement. In the event of Employee's termination for Cause,
this Agreement shall terminate without further obligation by the Company, except
for the payment of any Accrued Obligations (as defined in paragraph 1(f) below).
(d) TERMINATION BY THE COMPANY OTHER THAN FOR DEATH, DISABILITY OR
CAUSE. If Employee's employment is terminated by the Company for any reason
other than Employee's death or Disability or for Cause, then (i) the Company
shall pay Employee the Base Salary through the end of the Term over the course
of the then remaining
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Term; and (ii) the Company shall pay Employee within 30 days of the date of such
termination in a lump sum in cash any Accrued Obligations (as defined in
paragraph 1(f) below).
(e) MITIGATION; OFFSET. In the event of termination of Employee's
employment prior to the end of the Term, Employee shall use reasonable best
efforts to seek other employment and to take other reasonable actions to
mitigate the amounts payable under Section 1 hereof. If Employee obtains other
employment during the Term, the amount of any payment or benefit provided for
under Section 1 hereof which has been paid to Employee shall be refunded to the
Company by Employee in an amount equal to any compensation earned by Employee as
a result of employment with or services provided to another employer after the
date of Employee's termination of employment and prior to the otherwise
applicable expiration of the Term, and all future amounts payable by the Company
to Employee during the remainder of the Term shall be offset by the amount
earned by Employee from another employer. For purposes of this Section 1(e),
Employee shall have an obligation to inform the Company regarding Employee's
employment status following termination and during the period encompassing the
Term.
(f) ACCRUED OBLIGATIONS. As used in this Agreement, "Accrued
Obligations" shall mean the sum of (i) any portion of Employee's Base Salary
through the date of death or termination of employment for any reason, as the
case may be, which has not yet been paid; and (ii) any compensation previously
earned but deferred by Employee (together with any interest or earnings thereon)
that has not yet been paid.
2. CONFIDENTIAL INFORMATION; NON-SOLICITATION; AND PROPRIETARY RIGHTS.
(a) CONFIDENTIALITY. Employee acknowledges that while employed by the
Company he will occupy a position of trust and confidence. Employee shall not,
except as may be required to perform Employee's duties hereunder or as required
by applicable law, without limitation in time or until such information shall
have become public other than by Employee's unauthorized disclosure, disclose to
others or use, whether directly or indirectly, any Confidential Information
regarding the Company or any of its subsidiaries or affiliates. "Confidential
Information" shall mean information about the Company or any of its subsidiaries
or affiliates, and their clients and customers that is not disclosed by the
Company or any of its subsidiaries or affiliates for financial reporting
purposes and that was learned by Employee in the course of employment by the
Company or any of its subsidiaries or affiliates, including (without limitation)
any proprietary knowledge, trade secrets, data, formulae, information and client
and customer lists and all papers, resumes, and records (including computer
records) of the documents containing such Confidential Information. Employee
acknowledges that such Confidential Information is specialized, unique in nature
and of great value to the Company and its subsidiaries or affiliates, and that
such information gives the Company and its subsidiaries or affiliates a
competitive advantage. Employee agrees to deliver or return to the Company, at
the Company's request at any time or upon termination or expiration of
Employee's employment or as soon thereafter as possible, all documents, computer
tapes and disks, records, lists, data, drawings, prints, notes and written
information (and all copies thereof) furnished by the
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Company and its subsidiaries or affiliates or prepared by Employee in the course
of Employee's employment by the Company and its subsidiaries or affiliates. As
used in this Agreement, "subsidiaries" and "affiliates" shall mean any company
controlled by, controlling or under common control with the Company.
(b) NON-SOLICITATION OF EMPLOYEES. Employee recognizes that he will
possess confidential information about other employees of the Company and its
subsidiaries or affiliates relating to their education, experience, skills,
abilities, compensation and benefits, and inter-personal relationships with
suppliers to and customers of the Company and its subsidiaries or affiliates.
Employee recognizes that the information he will possess about these other
employees is not generally known, is of substantial value to the Company and its
subsidiaries or affiliates in developing their respective businesses and in
securing and retaining customers, and will be acquired by Employee because of
Employee's business position with the Company. Employee agrees that, during the
Term (and for a period of 12 months beyond the expiration of the Term), he will
not, directly or indirectly, solicit or recruit any employee of the Company or
any of its subsidiaries or affiliates for the purpose of being employed by
Employee or by any business, individual, partnership, firm, corporation or other
entity on whose behalf he is acting as an agent, representative or employee and
that he will not convey any such confidential information or trade secrets about
other employees of the Company or any of its subsidiaries or affiliates to any
other person except within the scope of Employee's duties hereunder.
(c) PROPRIETARY RIGHTS; ASSIGNMENT. All Employee Developments shall be
made for hire by the Employee for the Company or any of its subsidiaries or
affiliates. "Employee Developments" means any idea, discovery, invention,
design, method, technique, improvement, enhancement, development, computer
program, machine, algorithm or other work or authorship that (i) relates to the
business or operations of the Company or any of its subsidiaries or affiliates,
or (ii) results from or is suggested by any undertaking assigned to the Employee
or work performed by the Employee for or on behalf of the Company or any of its
subsidiaries or affiliates, whether created alone or with others, during or
after working hours. All Confidential Information and all Employee Developments
shall remain the sole property of the Company or any of its subsidiaries or
affiliates. The Employee shall acquire no proprietary interest in any
Confidential information or Employee Developments developed or acquired during
the Term. To the extent the Employee may, by operation of law or otherwise,
acquire any right, title or interest in or to any Confidential Information or
Employee Development, the Employee hereby assigns to the Company all such
proprietary rights. The Employee shall, both during and after the Term, upon the
Company's request, promptly execute and deliver to the Company all such
assignments, certificates and instruments, and shall promptly perform such other
acts, as the Company may from time to time in its discretion deem necessary or
desirable to evidence, establish, maintain, perfect, enforce or defend the
Company's rights in Confidential Information and Employee Developments.
(d) COMPLIANCE WITH CODE OF CONDUCT. During the Term, Employee shall
adhere to the policies and standards of professionalism set forth in the
Company's Code of Conduct as it may exist from time to time.
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(e) REMEDIES FOR BREACH. Employee expressly agrees and understands that
the remedy at law for any breach by Employee of this Section 2 will be
inadequate and that damages flowing from such breach are not usually susceptible
to being measured in monetary terms. Accordingly, it is acknowledged that upon
Employee's violation of any provision of this Section 2 the Company shall be
entitled to obtain from any court of competent jurisdiction immediate injunctive
relief and obtain a temporary order restraining any threatened or further breach
as well as an equitable accounting of all profits or benefits arising out of
such violation. Nothing in this Section 2 shall be deemed to limit the Company's
remedies at law or in equity for any breach by Employee of any of the provisions
of this Section 2, which may be pursued by or available to the Company.
(f) SURVIVAL OF PROVISIONS. The obligations contained in this Section 2
shall, to the extent provided in this Section 2, survive the termination or
expiration of Employee's employment with the Company and, as applicable, shall
be fully enforceable thereafter in accordance with the terms of this Agreement.
If it is determined by a court of competent jurisdiction in any state that any
restriction in this Section 2 is excessive in duration or scope or is
unreasonable or unenforceable under the laws of that state, it is the intention
of the parties that such restriction may be modified or amended by the court to
render it enforceable to the maximum extent permitted by the law of that state.
3. TERMINATION OF PRIOR AGREEMENTS. This Agreement constitutes the entire
agreement between the parties and terminates and supersedes any and all prior
agreements and understandings (whether written or oral) among the parties with
respect to the subject matter of this Agreement. Employee acknowledges and
agrees that neither the Company nor anyone acting on its behalf has made, and is
not making, and in executing this Agreement, the Employee has not relied upon,
any representations, promises or inducements except to the extent the same is
expressly set forth in this Agreement. Employee hereby represents and warrants
that by entering into this Agreement, he will not rescind or otherwise breach an
employment agreement with Employee's current employer prior to the natural
expiration date of such agreement
4. ASSIGNMENT; SUCCESSORS. This Agreement is personal in its nature and none of
the parties hereto shall, without the consent of the others, assign or transfer
this Agreement or any rights or obligations hereunder, provided that, in the
event of the merger, consolidation, transfer, or sale of all or substantially
all of the assets of the Company with or to any other individual or entity, this
Agreement shall, subject to the provisions hereof, be binding upon and inure to
the benefit of such successor and such successor shall discharge and perform all
the promises, covenants, duties, and obligations of the Company hereunder, and
all references herein to the "Company" shall refer to such successor.
5. WITHHOLDING. The Company shall make such deductions and withhold such amounts
from each payment and benefit made or provided to Employee hereunder, as may be
required from time to time by applicable law, governmental regulation or order.
6. HEADING REFERENCES. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other
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purpose. References to "this Agreement" or the use of the term "hereof" shall
refer to these Standard Terms and Conditions and the Employment Agreement
attached hereto, taken as a whole.
7. WAIVER; MODIFICATION. Failure to insist upon strict compliance with any of
the terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance with, any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times. This Agreement shall not be modified in any
respect except by a writing executed by each party hereto.
8. SEVERABILITY. In the event that a court of competent jurisdiction determines
that any portion of this Agreement is in violation of any law or public policy,
only the portions of this Agreement that violate such law or public policy shall
be stricken. All portions of this Agreement that do not violate any statute or
public policy shall continue in full force and effect. Further, any court order
striking any portion of this Agreement shall modify the stricken terms as
narrowly as possible to give as much effect as possible to the intentions of the
parties under this Agreement.
9. INDEMNIFICATION. The Company shall indemnify and hold Employee harmless for
acts and omissions in Employee's capacity as an officer, director or employee of
the Company to the maximum extent permitted under applicable law; provided,
however, that neither the Company, nor any of its subsidiaries or affiliates
shall indemnify Employee for any losses incurred by Employee as a result of acts
described in Section 1(c) of this Agreement.
ACKNOWLEDGED AND AGREED:
Date: March 31, 1998
THE COMPANY
By:
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EMPLOYEE
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