Norris Employment Agreement AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
Xxxxxx
Employment Agreement
AMENDED
AND RESTATED
This
Amended and Restated Executive Employment Agreement (this “Agreement”),
effective as of February 25, 2008 (the “Effective Date”) is made by and between
Sonic Solutions (“Company”) and Xxxx X. Xxxxxx (“Executive”).
RECITALS
WHEREAS,
Company and Executive previously entered into an Executive Employment Agreement
dated January 23, 2007 (the “Prior Agreement”); and
WHEREAS,
Company and Executive now wish to amend and restate the Prior Agreement in
its
entirety as set forth herein;
NOW,
THEREFORE, for and in consideration of the mutual promises, covenants and
obligations contained herein, Company and Executive agree as
follows:
AGREEMENT
1. Employment
and Duties.
1.1. Employment.
Beginning as of Effective Date, Company agrees to employ Executive and Executive
agrees to be employed by Company in accordance with the terms and conditions
of
this Agreement.
1.2. Position.
During
the term of employment under this Agreement, Company shall employ Executive
in
the position of Executive Vice President, Interim Chief Financial Officer and
General Counsel of Company, or in such other executive positions as the parties
mutually may agree.
1.3. Duties
and Services.
Executive agrees to serve in the position referred to in Section 1.2
and
to
perform diligently and to the best of his abilities the duties and services
appertaining to such office as reasonably directed by Company. Executive’s
employment shall also be subject to the policies contained in Company’s Conduct
of Conduct and other similar documents, all as amended from time to
time.
1.4. Other
Interests.
Executive agrees, during the period of his employment by Company, to devote
his
full business time, energy and best efforts to the business and affairs of
Company and its affiliates and not to engage without the Company’s consent,
directly or indirectly, in any other business, investment, or activity that
interferes with Executive’s performance of Executive’s duties hereunder, is
contrary to the interests of Company or any of its affiliates, or except as
approved by Company in advance, requires any significant portion of Executive’s
business time.
1.5. Duty
of Loyalty.
Executive acknowledges and agrees that Executive owes a fiduciary duty of
loyalty, fidelity and allegiance to act at all times in the best interests
of
Company and to do no act which would injure the business, interests, or
reputation of Company or any of its subsidiaries or affiliates. In keeping
with
these duties, Executive shall make full disclosure to Company of all business
opportunities pertaining to Company’s business and shall not appropriate for
Executive’s own benefit business opportunities concerning the subject matter of
the fiduciary relationship.
1.6. Conflicts
of Interest.
It is
agreed that any direct or indirect interest in, connection with, or benefit
from
any outside activities, particularly commercial activities, which interest
might
in any way adversely affect Company or any of its affiliates, involves a
possible conflict of interest. In keeping with Executive’s fiduciary duties to
Company, Executive agrees that Executive shall not knowingly become involved
in
a conflict of interest with Company or any of its affiliates, or upon discovery
thereof, allow such a conflict to continue. Moreover, Executive agrees that
Executive shall disclose to Company any facts which might involve such a
conflict of interest that has not been approved by Company’s Chief Executive
Officer or Board of Directors (the “Board”). Executive agrees that Company’s
determination as to whether a conflict of interest exists shall be conclusive.
Company reserves the right to take such action as, in its judgment, will end
the
conflict.
2. At
Will Employment.
Executive’s employment is at-will, and, subject to Section 6 and
the
other terms hereof, either Executive or Company may terminate the employment
relationship at any time, with or without cause or notice.
3. Compensation.
3.1. Base
Salary.
Executive shall receive an annual base salary equal to $300,000. Executive’s
base salary shall be reviewed periodically, and may be modified from time to
time by the Board (or as the Board may designate consistent with applicable
laws
and regulations, by the Compensation Committee or other committee of the Board
or by an officer of the Company) in its sole discretion and, after any such
change, Executive’s new level of base salary shall be Executive’s base salary
for purposes of this Agreement until the effective date of any subsequent
change. Executive’s base salary shall be paid in equal installments in
accordance with Company’s standard policy regarding payment of compensation to
its employees.
3.2. Incentive
Compensation.
While
Executive is actively employed under this Agreement, Executive shall be entitled
to participate in any long term or annual incentive plans maintained by Company
for its executives.
3.3. Other
Benefits.
While
employed by Company, Executive shall be allowed to participate, on the same
basis generally as other employees of Company, in all general employee benefit
plans and programs, including improvements or modifications of the same, which
on the Effective Date or thereafter are made available by Company to Company’s
employees. Such benefits plans and programs may include, without limitation,
medical, health, and dental care, life insurance, and disability protection.
Nothing in this Agreement is to be construed or interpreted to provide greater
rights, participation, coverage, or benefits under such benefit plans or
programs than provided to similarly situated employees pursuant to the terms
and
conditions of such benefit plans and programs.
3.4. Changes
Permitted.
Company
shall not by reason of Sections 3.2 and
3.3
be
obligated to institute, maintain, or refrain from changing, amending, or
discontinuing, any of such benefit plans or programs, so long as such actions
are similarly applicable to covered employees generally.
4. Protection
of Information.
Executive and Company each ratify, confirm and acknowledge their continuing
agreement to the terms set forth in the Invention and Confidential Information
Agreement previously entered into between them.
5. Statements
Concerning Company; Legal Requirements.
5.1. Statements
Concerning Company.
Executive shall refrain, both during the employment relationship and after
the
employment relationship terminates, from publishing any oral or written
statements about Company, any of its affiliates, or any of such entities’
officers, employees, agents or representatives that are slanderous, libelous,
or
defamatory; or that disclose confidential information about Company, any of
its
affiliates, or any of such entities’ business affairs; or that place Company,
any of its affiliates, or any of such entities’ officers, employees, agents, or
representatives in a false light before the public. A violation or threatened
violation of this prohibition may be enjoined by the courts.
5.2. Compliance
with Laws.
Executive shall at all times comply with United States laws applicable to
Executive’s actions on behalf of Company, including, without limitation, the
United States Foreign Corrupt Practices Act.
6. Benefits
Upon Termination of Employment.
6.1. Termination
without Cause or for Good Reason.
In the
event that Executive’s employment is terminated by Company without Cause (as
defined in Section 6.2)
or
voluntarily by Executive for Good Reason (as defined in Section 6.3)
and
unless such termination occurs within 180 days of a Change in Control (as
defined in Section 7),
Company shall provide Executive with a lump sum payment in an amount equal
to
100% of Executive’s annual base salary at the level in effect immediately prior
to his termination, less applicable deductions or withholdings. Notwithstanding
any other provision of this Agreement to the contrary, if Executive is a
“specified employee” within the meaning of Section 409A of the Internal
Revenue Code (the “Code”) and the related final regulations and other guidance
(“Section 409A”) at the time of Executive’s termination of employment, then
only that portion of the payment provided by this Section 6.1 that
does
not exceed the Section 409A Limit (as defined below) and which qualifies as
separation pay under
Treasury
Regulation Section 1.409A-1(b)(9)(iii), may
be
paid within the thirty (30) days following Executive’s termination. Any portion
of the payment that exceeds the Section 409A Limit will accrue during the six
(6) month period following Executive’s termination and will become payable in a
lump sum on the date six (6) months and one (1) day following such termination
(or the next business day if such date is not a business day). For
purposes of this Agreement, “Section 409A Limit” means the lesser of two
(2) times: (i) Executive’s annual base salary paid to Executive during
Company’s taxable year preceding the taxable year of Executive’s termination of
employment as determined under Treasury Regulation
Section 1.409A-1(b)(9)(iii)(A)(1) and any related Internal Revenue Service
guidance; or (ii) the maximum amount that may be taken into account under a
qualified plan pursuant to Section 401(a)(17) of the Code for the year in
which such termination occurs.
6.2. Circumstances
Under Which Termination Benefits Will Not Be Paid.
Company
shall not be obligated to provide Executive the termination benefits described
in Section 6.1
if
Executive’s employment is terminated by Company for Cause or if Executive
voluntarily terminates his employment with Company other than for Good Reason.
For purposes hereof, “Cause” shall mean (i) Executive’s conviction of any felony
under federal or state law, or any fraud, misappropriation or embezzlement,
or
(ii) Executive’s breach of a fiduciary duty owed to Company or commission
of a material violation of Section 4.
6.3. Termination
for Good Reason.
Executive may voluntarily terminate his employment with Company for Good Reason
upon giving Company thirty (30) days written notice of the occurrence of any
of
the following without Executive’s consent and which has not been cured by
Company within sixty (60) days of receipt of such notice from Executive:
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(a)
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a
material adverse change in Executive’s authority, duties, or
responsibilities, and such a materially adverse change shall in all
events
be deemed to occur if Executive no longer serves as Executive Vice
President and General Counsel of a publicly traded company, unless
Executive consents in writing to such change;
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(b)
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a
reduction in his level of base
salary;
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(c)
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a
relocation of his principal place of employment by more than 50 miles,
or
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(d)
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a
material breach by Company (or its successor) of this
Agreement.
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7. Change
in Control.
7.1. Definition.
For
purposes of this Agreement, “Change in Control” shall have the same meaning as
“Corporate Transaction,” as such term is defined in the Company’s 2004 Equity
Compensation Plan.
7.2. Benefit
Upon Change in Control.
In the
event of a Change in Control that is also a “change in control event” as
determined under Section 409A, Company shall provide Executive with the
following benefits:
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(a)
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Executive
shall receive a lump sum payment in an amount equal to 100% of his
annual
base salary at the level in effect immediately prior to the Change
in
Control, less applicable deductions or withholdings;
and
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(b)
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All
unvested stock options, restricted stock units, or other equity
compensation held by Executive at the time of such Change in Control
shall
immediately vest in full.
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8. Miscellaneous.
8.1. Notices.
For
purposes of this Agreement, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as
follows:
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If
to Company to:
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Sonic
Solutions
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000
Xxxxxxx Xxx
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Xxxxxx,
XX 00000
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Attention:
Chief Executive Officer
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If
to Executive to:
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Xxxx
Xxxxxx
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c/o
Sonic Solutions
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000
Xxxxxxx Xxx
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Xxxxxx,
XX 00000
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or
to
such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
8.2. Applicable
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
state of California, as applied to agreements entered into and performed
entirely within the state of California between residents of the state of
California.
8.3. No
Waiver.
No
waiver of any breach of any provision of this Agreement will constitute a waiver
of any prior, concurrent or subsequent breach of the same or any other
provisions hereof, and no waiver will be effective unless made in writing and
signed by a duly authorized representative of the waiving party.
8.4. Severability.
If for
any reason a court of competent jurisdiction finds any provision of this
Agreement, or portion thereof, to be unenforceable, that provision of the
Agreement will be enforced to the maximum extent permissible so as to effect
the
intent of the parties, and the remainder of this Agreement will continue in
full
force and effect.
8.5. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but all of which together will constitute one and
the
same Agreement.
8.6. Withholding
of Taxes and Other Employment Deductions.
Company
may withhold from any benefits and payments made pursuant to this Agreement
all
federal, state, city and other taxes as may be required pursuant to any law
or
governmental regulation or ruling and all other normal employee deductions
made
with respect to Company’s employees generally.
8.7. Headings.
The
Section headings have been inserted for purposes of convenience and shall not
be
used for interpretive purposes.
8.8. Gender
and Plurals.
Wherever the context so requires, the masculine gender includes the feminine
or
neuter, and the singular number includes the plural and conversely.
8.9. Affiliate.
As used
in this Agreement, the term “affiliate” shall mean any entity which owns or
controls, is owned or controlled by, or is under common ownership or control
with, Company.
8.10. Assignment.
This
Agreement shall be binding upon and inure to the benefit of Company and any
successor of Company, by merger or otherwise. Except as provided in the
preceding sentence, this Agreement, and the rights and obligations of the
parties hereunder, are personal and neither this Agreement, nor any right,
benefit, or obligation of either party hereto, shall be subject to voluntary
or
involuntary assignment, alienation or transfer, whether by operation of law
or
otherwise, without the prior written consent of the other party.
8.11. Entire
Agreement.
(a) Except
as
provided in (i) written company policies promulgated by Company dealing
with issues such as securities trading, business ethics, governmental affairs
and political contributions, consulting fees, commissions or other payments,
compliance with law, investments and outside business interests as officers
and
employees, reporting responsibilities, administrative compliance, and the like,
(ii) the written benefits, plans, and programs referenced in Sections
3.2
and
3.3,
and
(iii) any written agreements contemporaneously or hereafter executed by
Company and Executive, this Agreement constitutes the entire agreement of the
parties with regard to such subject matters, and contains all of the covenants,
promises, representations, warranties, and agreements between the parties with
respect to Executive’s employment relationship with Company and the term and
termination of such relationship, and replaces and merges previous agreements
and discussions pertaining to the employment relationship between Company and
Executive. Notwithstanding the preceding provisions of this Section
8.11,
except
as may expressly be provided herein, the execution of this Agreement shall
not
affect the rights of the parties pursuant to (A) stock options and
restricted stock units previously awarded to Executive and currently outstanding
under any and all stock plans maintained by Company, and (B) any
confidentiality, non-disclosure or similar agreement or commitment between
the
parties. Each party to this Agreement acknowledges that no representation,
inducement, promise or agreement, oral or written, has been made by either
party, or by anyone acting on behalf of either party, which is not embodied
herein, and that no agreement, statement, or promise relating to the employment
of Executive by Company, which is not contained in this Agreement, shall be
valid or binding. Any modification of this Agreement will be effective only
if
it is in writing and signed by the party to be charged.
(b) This
Agreement is intended to comply with Section 409A of the Code (as amplified
by any Internal Revenue Service or U.S. Treasury Department guidance), and
shall
be construed and interpreted in accordance with such intent. Executive and
the
Company agree
to
cooperate with one another and, to the extent reasonably requested by the other
party, amend
or
modify this Agreement to
restructure any compensation set forth in this Agreement in a manner, if
possible and without any increase in cost to the Company, such that no earlier
and/or additional taxes to Executive or the Company will arise under Code
Section 409A.
Any
provision of this Agreement that would cause the payment of any benefit to
fail
to satisfy Section 409A of the Code shall have no force and effect until
amended to comply with Code Section 409A (which amendment may be
retroactive to the extent permitted by the Code or any regulations or rulings
thereunder).
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
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EXECUTIVE
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SONIC
SOLUTIONS
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By:
/s/ Xxxx X.
Xxxxxx
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By:
/s/ Xxxxx X.
Xxxxxxx
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Name:
Xxxx X.
Xxxxxx
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Name:
Xxxxx X.
Xxxxxxx
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Date:
2/25/08
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Title:
President and Chief Executive Officer
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Date:
2/25/08
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