Exhibit 10.38
MACROVISION CORPORATION
EMPLOYMENT PROTECTION AGREEMENT
THIS EMPLOYMENT PROTECTION AGREEMENT is made and entered into as of
April 27, 2001 by and between Macrovision Corporation, a Delaware corporation
(the "Company") and Xxxx Xxxxxxxx ("Xxxxxxxx").
WHEREAS, the Board of Directors (the "Board") of the Company has
determined that, in connection with the integration of the Company's recently
acquired Globetrotter Software subsidiary ("Globetrotter") with the Company and
the related transfer of Xxxxxxxx'x employment from the Company to Globetrotter,
it is in the best interests of the Company and its shareholders that Xxxxxxxx
not be distracted by the personal uncertainties and risks created by his
employment transfer from the Company to Globetrotter by assuring Xxxxxxxx a
right to continued employment with the Company for a limited period of time;
NOW, THEREFORE, to assure the Company that it will have the
continued dedication of Xxxxxxxx and the availability of Xxxxxxxx'x advice and
counsel through the Globetrotter integration and, and to induce Xxxxxxxx to
remain in the employ of Globetrotter and the Company, and for other good and
valuable consideration, the Company and Xxxxxxxx agree as follows:
53. Return to Company. In the event that Globetrotter or the Company
terminates Xxxxxxxx'x employment with Globetrotter prior to April 30, 2002, for
any reason other than Cause (as defined below), then, immediately upon such
termination, Xxxxxxxx shall be considered to have transferred employment to the
Company and shall become an employee of the Company.
54. Position and Compensation. Upon any such transfer of employment
to the Company pursuant to Section 1 above, Xxxxxxxx will report directly to the
Company's chief operating officer (or if no one holds such position, to the
Company's chief executive officer), and will work under the direction and
supervision of such chief operating officer (or chief executive officer) in such
position as such chief operating officer (or chief executive officer) shall
determine. Unless Xxxxxxxx and the Company shall otherwise agree, Xxxxxxxx'x
compensation for such employment with the Company shall continue at the rate of
compensation he was being paid by Globetrotter immediately prior to termination
of his Globetrotter employment.
55. Term of Employment. Xxxxxxxx'x employment with the Company
pursuant to this Agreement, if any, shall continue through April 30, 2002,
unless earlier terminated by the Company for Cause.
56. No other Employment. Xxxxxxxx shall not work for any entity
other than the Company or a Subsidiary during the term of his employment with
the Company hereunder. Notwithstanding the above, this Section 4 shall not be
construed to prohibit Xxxxxxxx from providing services to charitable
organizations, so long as Xxxxxxxx does not receive compensation for such
services, and shall not be construed to prohibit Xxxxxxxx from managing his
personal assets or from serving as a limited partner in investment partnerships
or venture capital funds.
57. Definitions.
(a) "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 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 have 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.
(b) "Subsidiary" means (i) Globetrotter, (ii) any other
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," and (iii) 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.
58. Arbitration of Claims. Any dispute between Xxxxxxxx and the
Company relating to this Agreement shall be resolved by arbitration pursuant to
the provision of the Executive Severance and Arbitration Agreement dated April
27, 2001, by and between Xxxxxxxx and the Company.
59. Amendment. This Agreement may not be amended without the prior
written consent of both Xxxxxxxx and the Company.
60. No Right to Any Particular Position. Subject to the general
assurance of continued employment through April 30, 2002, as described above,
nothing in this Agreement shall be deemed to give Xxxxxxxx the right to be
retained in any particular position within the Company or to deny the Company
any right it may have to change Xxxxxxxx'x position at any time.
61. 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.
62. 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, Xxxxxxxx'x personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
63. 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
By /s/ Xxxxxxx X. Krepick /s/ Xxxx X. Xxxxxxxx
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Xxxxxxx X. Krepick, President XXXX XXXXXXXX
