EXHIBIT 10.23
CONFIDENTIALITY, NON COMPETITION AND OWNERSHIP
OF WORK PRODUCT AGREEMENT
Effective December 22, 2003, and as part of the Employment Agreement
("Employment Agreement") made December 22, 2003 between Time Warner Inc. (the
"Company") and Xxxxxxx Xxxxxx ("You") and as a condition to your continued
employment by the Company, you hereby agree as follows:
1. Protection of Confidential Information. You
acknowledge that your employment by the Company (which, for purposes of this
Agreement shall mean Time Warner Inc. and its affiliates) will, throughout the
term of employment, bring you into close contact with many confidential affairs
of the Company, including information about costs, profits, markets, sales,
products, key personnel, pricing policies, operational methods, technical
processes and other business affairs and methods and other information not
readily available to the public, and plans for future development. You further
acknowledge that the services to be performed under this Agreement are of a
special, unique, unusual, extraordinary and intellectual character. You further
acknowledge that the business of the Company is international in scope, that its
products and services are marketed throughout the world, that the Company
competes in nearly all of its business activities with other entities that are
or could be located in nearly any part of the world and that the nature of your
services, position and expertise are such that you are capable of competing with
the Company from nearly any location in the world. In recognition of the
foregoing, you covenant and agree:
a. You shall keep secret all confidential
matters of the Company and shall not, except in the proper performance
of your duties as an officer of the Company, disclose such matters to
anyone outside of the Company, or to anyone inside the Company who does
not have a need to know or use such information, and shall not use such
information for personal benefit or the benefit
of a third party, either during or after the term of employment, except
with the Company's written consent, provided that (i) you shall have no
such obligation to the extent such matters are or become publicly known
other than as a result of your breach of your obligations hereunder and
(ii) you may, after giving prior notice to the Company to the extent
practicable under the circumstances, disclose such matters to the
extent required by applicable laws or governmental regulations or
judicial or regulatory process;
b. You shall deliver promptly, upon request of
the Company, to the Company on termination of your employment, or at
any other time the Company may so request, all memoranda, notes,
records, reports and other documents (and all copies thereof) relating
to the Company's business, which you obtained while employed by, or
otherwise serving or acting on behalf of, the Company and which you may
then possess or have under your control; and
c. If the term of employment is terminated, for
a period of one year after such termination, without the prior written
consent of the Company, you shall not employ, and shall not cause any
entity of which you are an affiliate to employ, any person who was a
full-time employee of the Company at the date of such termination or
within six months prior thereto but such prohibition shall not apply to
your secretary or executive assistant or to any other employee eligible
to receive overtime pay.
2. Non-Compete. During the term of employment and
through the earlier of (i) the Term of the Employment Agreement; and (ii) twelve
months after the effective date of any termination of your employment, you shall
not, directly or indirectly, without the prior written consent of the Company's
Board of Directors, render any services to, or act in any capacity for, any
Competitive Entity, or acquire any interest of any type in any Competitive
Entity; provided, however, that the foregoing shall not be deemed to prohibit
you from acquiring, (a) solely as an investment and through market purchases,
securities of any Competitive Entity which are registered under Section 12(b)
or 12(g) of the Securities Exchange Act of 1934 and which are publicly traded,
so long as you are not part of any control group of such Competitive Entity and
such securities, including converted securities, do not constitute more than one
percent (1%) of the outstanding voting power of that entity and (b) securities
of any Competitive Entity that are not publicly traded, so long as you are not
part of any control group of such Competitive Entity and such securities,
including converted securities, do not constitute more than three percent (3%)
of the outstanding voting power of that entity. For purposes of the foregoing,
the following shall be deemed to be a Competitive Entity: (x) during the period
that you are actively employed with the Company, any person or entity that
engages in any line of business that is substantially the same as either (i) any
line of business which the Company engages in, conducts or, to your knowledge,
has definitive plans to engage in or conduct or (ii) any operating business that
is engaged in or conducted by the Company as to which, to your knowledge, the
Company covenants, in writing, not to compete with in connection with the
disposition of such business, and (y) during the period following a termination
of your term of employment pursuant to Section 4, any of the following: AT&T
Corporation, Bertelsmann A.G., Comcast Corporation, The Xxxx Disney Company,
EarthLink, Inc., General Electric Corporation, Microsoft Corporation, The News
Corporation, Sony Corporation, Vivendi Universal, S.A., Viacom Inc. and Yahoo!
Inc., and their respective subsidiaries and affiliates and any successor to the
internet service provider, media or entertainment businesses thereof.
3. Ownership of Work Product. You acknowledge that
during the term of employment, you may conceive of, discover, invent or create
inventions, improvements, new contributions, literary property, material, ideas
and discoveries, whether patentable or copyrightable or not (all of the
foregoing being collectively referred to herein as "Work Product"), and that
various business opportunities shall be presented to you by reason of your
employment by the Company. You acknowledge that all of the foregoing shall be
owned by and belong exclusively to the Company and that you shall have no
personal interest therein, provided that they are either related in any manner
to the business (commercial or experimental) of the Company, or are, in the case
of Work Product, conceived or made on the Company's time or with the use of the
Company's
facilities or materials, or, in the case of business opportunities, are
presented to you for the possible interest or participation of the Company. You
shall (i) promptly disclose any such Work Product and business opportunities to
the Company; (ii) assign to the Company, upon request and without additional
compensation, the entire rights to such Work Product and business opportunities;
(iii) sign all papers necessary to carry out the foregoing; and (iv) give
testimony in support of your inventorship or creation in any appropriate case.
You agree that you will not assert any rights to any Work Product or business
opportunity as having been made or acquired by you prior to the date of this
Agreement except for Work Product or business opportunities, if any, disclosed
to and acknowledged by the Company in writing prior to the date hereof.
4. No Conflict. You represent and warrant to the Company
that this Agreement, together with the accompanying Employment Agreement, is
legal, valid and binding upon you and the execution of this Agreement and the
Employment Agreement the performance of your obligations thereunder will not
constitute a breach of, or conflict with the terms or provisions of, any
agreement or understanding to which you are a party (including, without
limitation, any other employment agreement).
5. Specific Remedy. You acknowledge and agree that a
material breach of any of the promises or agreements contained in this Agreement
will result in irreparable and continuing damage to the Company for which there
will be no adequate remedy at law. Accordingly, in addition to such other rights
and remedies as the Company may have at equity or in law with respect to any
breach of this Agreement (including monetary damages if appropriate), if you
commit a material breach of any of the provisions of this Agreement, the Company
shall have the right and remedy to have such provisions specifically enforced by
any court having equity jurisdiction, it being acknowledged and agreed that any
such breach or threatened breach will cause irreparable injury to the Company.
6. Resolution of Disputes. Except as provided in the
preceding Section 5, any dispute or controversy arising with respect to this
Agreement, the Employment
Agreement and/or your employment thereunder (whether based on contract or tort
or upon any federal, state or local statute, including but not limited to claims
asserted under the Age Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964, as amended, any state Fair Employment Practices Act and/or
the Americans with Disability Act) shall, at the election of either you or the
Company, be submitted to JAMS/ENDISPUTE for resolution in arbitration in
accordance with the rules and procedures of JAMS/ENDISPUTE. Either party shall
make such election by delivering written notice thereof to the other party at
any time (but not later than 45 days after such party receives notice of the
commencement of any administrative or regulatory proceeding or the filing of any
lawsuit relating to any such dispute or controversy) and thereupon any such
dispute or controversy shall be resolved only in accordance with the provisions
of this Section 6. Any such proceedings shall take place in New York City before
a single arbitrator (rather than a panel of arbitrators), pursuant to any
streamlined or expedited (rather than a comprehensive) arbitration process,
before a non-judicial (rather than a judicial) arbitrator, and in accordance
with an arbitration process which, in the judgment of such arbitrator, shall
have the effect of reasonably limiting or reducing the cost of such arbitration.
The resolution of any such dispute or controversy by the arbitrator appointed in
accordance with the procedures of JAMS/ENDISPUTE shall be final and binding.
Judgment upon the award rendered by such arbitrator may be entered in any court
having jurisdiction thereof, and the parties consent to the jurisdiction of the
New York courts for this purpose. Each party shall pay its own expenses with
respect to the the arbitration. If at the time any dispute or controversy arises
with respect to this Agreement, JAMS/ENDISPUTE is not in business or is no
longer providing arbitration services, then the American Arbitration Association
shall be substituted for JAMS/ENDISPUTE for the purposes of the foregoing
provisions of this Section 6.
7. Amendments; Waivers. This Agreement and the
Employment Agreement may be amended, modified, superseded, cancelled, renewed or
extended and the terms or covenants hereof may be waived only by written
instrument executed by both of the parties hereto, or in the case of a waiver,
by the party waiving compliance. The failure of either party at any time or
times to require performance of any provision of the Agreement or the Employment
Agreement shall in no manner affect such party's
right at a later time to enforce the same. No waiver by either party of the
breach of any term or covenant contained in this Agreement or the Employment
Agreement, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such breach, or a waiver of the breach of
any other term or covenant contained in this Agreement.
8. Assignability. This Agreement and the Employment
Agreement and your rights and obligations hereunder may not be assigned by you
and except as specifically contemplated in this Agreement, neither you, your
legal representative nor any beneficiary designated by you shall have any right,
without the prior written consent of the Company, to assign, transfer, pledge,
hypothecate, anticipate or commute to any person or entity any payment due in
the future pursuant to any provision of this Agreement, and any attempt to do so
shall be void and shall not be recognized by the Company. The Company may assign
this Agreement pursuant to the provisions of Section 11 of the Employment
Agreement.
9. Survival. The provisions of this Agreement shall
survive any termination of your employment by the Company.
10. Severability. If any provision of this Agreement or
the Employment Agreement shall be held invalid, the remainder of this Agreement
shall not be affected thereby; provided, however, that the parties shall
negotiate in good faith with respect to equitable modification of the provision
or application thereof held to be invalid. To the extent that it may effectively
do so under applicable law, each party hereby waives any provision of law which
renders any provision of this Agreement invalid, illegal or unenforceable in any
respect.
11. All notices, requests, consents and other
communications required or permitted to be given under this Agreement or under
the Employment Agreement shall be effective only if given in writing and shall
be deemed to have been duly given if delivered personally or sent by a
nationally recognized overnight delivery service, or
mailed first-class, postage prepaid, by registered or certified mail, as follows
(or to such other or additional address as either party shall designate by
notice in writing to the other in accordance herewith):
If to the Company:
Time Warner Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - Global
Compensation and Benefits
(with a copy, similarly addressed
but Attention: General Counsel)
If to you, to your residence address set forth on the
records of the Company,
with copy to:
Xxxx X. Xxxxxx, Esq.
Kronish Xxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
13. Governing Law. This Agreement and the Employment
Agreement shall be governed by and construed and enforced in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in New York.
14. Entire Agreement. This Agreement, together with the
Employment Agreement, sets forth the entire agreement and understanding of the
parties relating to the subject matter of this Agreement and supersedes all
prior agreements, arrangements and understandings, written or oral, between the
parties.
Time Warner Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
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/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
