1
EXHIBIT 10.2
EMPLOYMENT AGREEMENT
DATED AS OF JANUARY 1, 1999
BY AND BETWEEN THQ INC.,
A DELAWARE CORPORATION (THE "COMPANY"),
AND XXXXXXX X. XXXXX (THE "EXECUTIVE")
------------------------
The parties hereto desire to provide for the Executive's employment by
the Company in accordance with the terms and provisions set forth below:
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT: TERM.
The Company will employ the Executive, and the Executive will work for
the Company, as its Vice Chairman until December 31, 2001, unless sooner
terminated in accordance with Section 7 hereof. Such period, together with the
period of any extension or renewal of such employment, is referred to herein as
the "Employment Period."
2. DUTIES.
During the Employment Period, the Executive shall serve as the Vice
Chairman of the Company and of its subsidiaries and affiliated companies, and
perform such further duties as shall, from time to time, be reasonably delegated
or assigned to the Executive by the Chief Executive Officer or the Board of
Directors of the Company consistent with his position and abilities.
3. DEVOTION OF TIME.
During the Employment Period, the Executive shall: (i) expend
substantially all of his working time for the Company; (ii) devote his best
efforts, energy and skill to the services of the Company and the promotion of
its interests; and (iii) not take part in activities reasonably known by
Executive to be detrimental to the best interests of the Company.
4. COMPENSATION.
4.1 In consideration for the services to be performed by the
Executive during the Employment Period hereunder, the Company shall compensate
the Executive at an annual base salary (payable at the normal pay periods of the
Company) during the Employment Period of $225,000 for the first year (commencing
January 1, 1999), $275,000 for the second year
2
(commencing January 1, 2000) and $325,000 for the third year (commencing January
1, 2001). The base salary shall be subject to annual review commencing at the
end of 1999 and at the end of each year thereafter, and may be increased (but
not decreased) for subsequent years.
4.2 In addition to the annual base salary payable to the Executive
pursuant to the provisions of Section 4.1 hereof, the Executive is also entitled
to a bonus for each fiscal year of the Company commencing during the Employment
Period, equal to the lesser of (i) 100% of his annual base salary for that year,
or (ii) 3.5% of the Company's net income before taxes for such year (prorated
for partial years). Net income before taxes shall be determined by the
independent public accountants for the Company in accordance with generally
accepted accounting principles consistently applied.
4.3 Executive shall also be eligible for awards of options and any
other stock or equity based awards that may be available to executives of the
Company.
5. EXPENSES; ADDITIONAL BENEFITS; INDEMNIFICATION.
5.1 [Omitted]
5.2 The Company shall pay directly, or reimburse the Executive for,
all reasonable and necessary expenses and disbursements incurred by him for and
on behalf of the Company in the performance of his duties under this Agreement.
For such purpose, the Executive shall submit to the Company itemized reports of
such expenses in accordance with the Company's policies.
5.3 The Executive shall be entitled to paid vacations during the
Employment Period in accordance with the Company's then prevalent practices for
executive employees; provided, however, that Executive shall be entitled to such
paid vacations for not less than four (4) weeks per annum.
5.4 The Executive shall be entitled to participate in, and to
receive benefits under, any employee benefit plans of the Company (including,
without limitation, pension, profit sharing, group life insurance and group
medical insurance plans) as may exist from time to time for its executive
employees. Subject to the limitation contained in Section 5.7 below, the Company
shall make the maximum pension and profit sharing contribution for the Executive
legally permitted to be made by an employer and shall permit the Executive to
contribute the maximum pension and profit sharing contribution legally permitted
to be made by an employee, equaling an aggregate of $30,000 (the current maximum
allowable payment) each year during the Employment Period.
5.5 The Company shall provide to Executive, and (subject to the
limitation contained in Section 5.7 below) pay the premiums therefor, insurance
on Executive's life in an amount equal to $1,500,000 as well as disability
insurance for the Executive during the
-2-
3
Employment Period and for a period of twelve (12) months thereafter, each of
which shall have the coverage reasonably requested by Executive; provided,
however, that the foregoing coverage shall be subject to any insurance
examinations of Executive required by the insurer. Executive shall designate the
beneficiaries under the disability and life insurance policies.
5.6 As a director and officer of the Company, the Executive shall be
entitled to the benefits of all provisions of the Articles of Incorporation of
the Company, as amended, and the Bylaws of the Company, as amended, that provide
for indemnification of officers and directors of the Company. No such provisions
shall be amended in any way to limit or reduce the extent of the indemnification
available to Executive as an officer or director of the Company.
In addition, to the fullest extent permitted by law, the Company shall
indemnify and save and hold harmless the Executive from and against any and all
claims, demands, liabilities, costs and expenses, including judgments, fines or
amounts paid on account thereof (whether in settlement or otherwise), and
reasonable expenses, including attorneys' fees actually and reasonably incurred
(except only if and to the extent that such amounts shall be finally adjudged to
have been caused by Executives willful breach of the express provisions of this
Agreement) to the extent that the Executive is made a party to or witness in any
action, suit or proceeding, or if a claim or liability is asserted against
Executive (whether or not in the right of the Company), by reason of the fact
that he was or is a director or officer, or acted in such capacity on behalf of
the Company, or by reason of or arising out of or resulting from entering into
this Agreement or the rendering of services by the Executive pursuant to this
Agreement, whether or not the same shall proceed to judgment or be settled or
otherwise brought to a conclusion. The Company shall advance to Executive on
demand all reasonable expenses incurred by Executive in connection with the
defense or settlement of any such claim, action, suit or proceeding, and
Executive hereby undertakes to repay such amounts if and to the extent that it
shall be finally adjudged that the Executive is not entitled to be indemnified
by the Company under this Agreement or under the provisions of the Certificate
of Incorporation or Bylaws of the Company as of the date hereof that govern
indemnification of officers or directors of the Company (but giving effect to
future amendments that broaden or expand any such indemnification and
obligations or right more favorably to Executive). Executive shall also be
entitled to recover any costs of enforcing his rights under this Section
(including, without limitation, reasonable attorneys' fees and disbursements) in
the event any amount payable hereunder is not paid within thirty (30) days of
written request therefore by Executive. The rights of Executive under this
Section shall survive the termination of this Agreement and shall be applicable
for so long as Executive may be subject to any claim, demand, liability, cost or
expense against which this Section is intended to protect and indemnify him.
Notwithstanding anything contained in this Agreement to the contrary,
the Company shall, at no cost to the Executive, use its best efforts to at all
times include the Executive during the term of the Employment Period and for a
period of not less than four (4) years thereafter, as an insured under any
directors and officers liability insurance policy maintained by
-3-
4
the Company, which policy shall provide such coverage in such amounts as the
Board of Directors shall deem appropriate for coverage of all directors and
officers of the Company.
5.7 The Company's share of the pension and profit sharing
contribution referenced in Section 5.4 and insurance premiums referenced in
Section 5.5 shall not exceed in any calendar year an aggregate of $30,000.
6. RESTRICTIVE COVENANT.
6.1 During the Employment Period and thereafter, the Executive shall
not reveal, divulge or make known to any person, firm, corporation or other
business organization, and shall not directly or indirectly use for his own
benefit, or for the benefit of anyone else, any secret or confidential
information used by the Company in its business, including, without limitation,
(i) pricing information, (ii) the terms of the Company's existing contracts with
suppliers, licensors and/or developers, (iii) any material information
pertaining to the Company's customers and their requirements, and (iv) any other
of the Company's trade secrets, all of which shall be collectively referred to
hereafter as the "Confidential Information."
6.2 The services of the Executive are unique, extraordinary and
essential to the business of the Company, particularly in view of the
Executive's access to Confidential Information. Accordingly, the Executive
agrees that if his employment hereunder shall at any time be terminated
voluntarily by the Executive, or by the Company for cause (as defined in Section
7.3), the Executive will not at any time within twelve months of such
termination, without the prior written approval of the Board of Directors of the
Company, directly or indirectly engage in any business activity competitive with
the business of the Company. Furthermore, the Executive agrees that, during such
twelve month period, he shall not solicit, directly or indirectly or knowingly
affect to the Company's detriment any relationship of the Company with any
customer, supplier, licensor, developer or employee of the Company or knowingly
cause any customer, supplier, licensor or developer to refrain from entrusting
additional business to the Company. If the employment of the Executive hereunder
is terminated by the Company other than for cause, the restraints on the
Executive set forth in the preceding two sentences shall be inapplicable. If
this Agreement shall not be renewed by either the Company or by the Executive
prior to its scheduled expiration date as recited in Section 1, such restraints
will apply for the period from January 1, 2002 through March 31, 2002.
6.3 In the event that any of the provisions of Section 6.1 and 6.2
hereof shall be adjudicated to exceed the time, geographic or other limitations
permitted by applicable law in any jurisdiction, then such provision shall be
deemed reformed in any such jurisdiction to the maximum time, geographic or
other limitations permitted by applicable law.
6.4 As used in this Section 6, the term "Company" shall mean and
include any and all subsidiaries of the Company which either now exist or which
may hereafter be organized.
-4-
5
6.5 The Executive hereby acknowledges and agrees that, in the event
he shall violate any provisions of this Section 6, the Company will be without
an adequate remedy at law and accordingly, will be entitled to enforce such
restrictions by temporary or permanent injunctive or mandatory relief obtained
in any action or proceeding instituted in any court of competent jurisdiction
without the necessity of proving damages and without prejudice to any other
remedies which it may have at law or in equity.
7. EARLIER TERMINATION.
7.1 The Executive's employment hereunder shall automatically be
terminated upon the death of the Executive or the Executive's voluntarily
leaving the employ of the Company. In addition, the Executive's employment by
the Company may be terminated by the Company as follows:
(a) Upon thirty (30) days' prior written notice by the
Company, in the event of the Executive's disability as set forth in Section 7.2
below; or
(b) Upon thirty (30) days' prior written notice by the
Company, in the event that the Company terminates the Executive's employment
hereunder for cause as set forth in Section 7.3 below.
7.2 The Executive shall be deemed disabled hereunder if in the
opinion of the Board of Directors of the Company, as confirmed by competent
medical advice, he shall become physically or mentally unable to perform his
duties for the Company hereunder and such incapacity shall have continued for
any period of six (6) consecutive months.
7.3 For purposes hereof, "Cause" shall be limited to the following:
(a) the Executive's willful malfeasance or gross negligence; (b) any material
misrepresentation or concealment of a material fact made by the Executive in
connection with this Agreement; or (c) the material breach of any covenant made
by the Executive hereunder.
Notwithstanding the foregoing, termination by the Company for Cause
shall not be effective until and unless (i) in the event of any acts or
circumstances alleged to be a basis for termination that is capable of cure by
the Executive, the Executive is given written notice by the Board of such
alleged acts or circumstances, and such alleged acts or circumstances shall not
have been cured by the Executive within 20 days of receipt of such notice to the
satisfaction of the Board in the exercise of its reasonable judgment (or, if
within such 20-day period the Executive commences and proceeds to take all
reasonable actions to effect such cure, within such reasonable additional time
period (no longer than 60 days) as may be necessary), (ii) notice of intention
to terminate for Cause has been given by the Company within four months after
the Board learns of the act, failure or event constituting "Cause" and (iii) the
Board has voted (at a meeting of the Board duly called and held as to which
termination of Executive is an agenda item) by a majority vote to terminate
Executive for Cause after Executive has been given notice of the particular acts
-5-
6
or circumstances which are the basis for the alleged termination for Cause and
has been afforded at least 20 days notice of the meeting and an opportunity to
present his position in writing and the Board has given notice of termination to
Executive within three days thereafter, and (iii) if Executive has commenced an
expedited arbitration in the manner prescribed below within 15 days after such
notice of termination, disputing the Company's right under this Agreement to
terminate for Cause, the Arbitrator shall have determined that the Executive is
terminable for Cause. Unless a majority of the Board at the time of the giving
of such notice of termination is then comprised of persons other than Xxxxx X.
Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxx Xxxxxxxx, L. Xxxxxxx Xxxxxxx, Xxxxx Xxxxx and L.
Xxxxxxx Xxxxxx, then upon the giving of such notice of termination, Executive
(x) shall be deemed suspended with pay until he shall be deemed to have been
terminated for Cause hereunder or until the Arbitrator shall have determined
that Executive is not terminable for Cause and (y) while suspended, Executive
shall cease to act as an executive of the Company and shall depart the premises
of the Company. If Executive or his representative fails to file a demand for
arbitration with the American Arbitration Association and file the requisite
fees pursuant to Rule 4 of the national Rules within 15 days of receipt of
notice of termination from the Board, and diligently pursue such proceeding in
accordance with the procedures set forth in Section 15 hereof, such termination
shall be conclusively presumed to have been for Cause.
7.4 In the event that the Executive's employment shall be terminated
due to the Executive's death or disability, then the Company shall within 20
days of such termination pay to the Executive or his personal representative, as
the case may be, severance pay in a lump sum amount equal to his then annual
base salary, as set forth in Section 4 hereof, for a period of twelve months
from the date of such termination. If, however, subject to the provisions of
Sections 7.5 and 7.6 hereafter, this Agreement shall be terminated for any other
reason whatsoever, then the Company shall not obligated to make any severance
payments whatsoever to the Executive hereunder, except the compensation set
forth in Section 4 hereof which shall have accrued but be unpaid at the
effective time of termination.
7.5 In the event that the Executive's employment shall be terminated
due to the Executive's death or disability, effective as of the date of such
termination all Options (as herein after defined) not previously fully vested
shall become immediately vested and exercisable (not withstanding any provision
of the Company's stock option plan(s) to the contrary). The Options shall be
exercisable for the full Option term as is provided in such plan(s) and/or the
agreement(s) pursuant to which the Options were granted, notwithstanding any
subsequent events.
7.6 Notwithstanding any other provision herein, in order to protect
the Executive against the possible consequences and uncertainties of a Change of
Control (as hereinafter defined) of the Company and thereby induce the Executive
to remain in the employ of the Company, the Company undertakes the obligations
and makes the agreements set forth in Exhibit I to this Agreement (which
provisions are hereby incorporated herein).
-6-
7
8. NO REQUIREMENT OF RELOCATION.
The Company expressly agrees that the Executive, as a condition of his
employment, need not relocate his residence from the community in which he
presently resides. Any demand or requirement by the Company that the Executive
principally perform his duties at a location or office that requires more than
an additional hour of one-way commutation time than the Executive currently
experiences shall, in the absence of the Executive's consent (which may be
withheld for any reason), constitute a termination without cause by the Company
of the Executive's employment thereunder.
9. SERVICES AS DIRECTOR.
During the Employment Period, the Executive shall, if elected or
appointed, serve as a Director of the Company and/or any subsidiary of the
Company upon such terms as shall be mutually agreed upon by the Executive and
the Company.
10. ASSIGNMENT.
This Agreement, as it relates to the employment of the Executive, is a
personal contract and the rights and interests of the Executive hereunder may
not be sold, transferred, assigned, pledged or hypothecated, except as otherwise
set forth herein. This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns, including without limitation,
any corporation or other entity into which the Company is merged or which
acquires all of the outstanding share of the Company's capital stock or all or
substantially all of the assets of the Company.
11. RIGHT TO PAYMENTS.
The Executive shall not under any circumstances have any option or
right to require payments hereunder otherwise than in accordance with the terms
hereof. To the extent permitted by law, the Executive shall not have any power
of anticipation, alienation or assignment of payments contemplated hereunder,
and all rights and benefits of the Executive shall be for the sole personal
benefit of the Executive, and no other person shall acquire any right, title or
interest hereunder by reason of any sale, assignment, transfer, claim or
judgment or bankruptcy proceedings against the Executive.
12. NOTICES.
For purposes of this Agreement, all notices and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered or three days after deposit in the United States
mail, certified and return receipt requested, postage prepaid, addressed (i) if
to the Executive, to the residence address of the Executive maintained from time
to time by the Company; and if to the Company, to its chief executive office,
addressed to the attention Chief Executive Officer, with a copy to the Secretary
of the Company at that address; (ii) to such other address as either party may
have furnished to
-7-
8
the other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
13. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of California without reference to conflicts
of laws, principles or rules.
14. WAIVER.
The waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and not in any way affect or render invalid or unenforceable
any other provisions of this Agreement, and this Agreement shall be carried out
as if such invalid or unenforceable provisions were not embodied therein.
15. ARBITRATION.
Except as provided below, in the event of any controversy, dispute or
claim arising out of or related to this Agreement or the Executive's employment
by the Company, the parties shall negotiate in good faith in an attempt to reach
a mutually acceptable settlement of such dispute. If negotiations in good faith
do not result in a settlement of any such controversy, dispute or claim, it
shall be finally settled by expedited arbitration in accordance with the
National Rules of the American Arbitration Association governing employment
disputes, subject to the following:
(a) The Arbitrator shall be determined from a list of names of
five impartial arbitrators each of whom shall be an attorney experienced in
arbitration matters concerning executive employment disputes, supplied by the
American Arbitration Association (the "Association") chosen by Executive and the
Company each in turn striking a name from the list until one name remains.
(b) The Arbitrator shall determine whether and to what extent
any party shall be entitled to damages under this Agreement.
(c) The Arbitrator shall not have the power to add to nor
modify any of the terms or conditions of the this Agreement. The Arbitrator's
decision shall not go beyond what is necessary for the interpretation and
application of the provision of this Agreement in respect of the issue before
the Arbitrator. The Arbitrator shall not substitute his or her judgment for that
of the parties in the exercise of rights granted or retained by this Agreement.
The Arbitrator's award or other permitted remedy, if any, and the decision shall
be based upon the issue as drafted and submitted by the respective parties and
the relevant and competent evidence adduced at the hearing.
-8-
9
(d) The Arbitrator shall have the authority to award any
remedy or relief provided for in this Agreement, in addition to any other remedy
or relief (including provisional remedies and relief) that a court of competent
jurisdiction could order or grant. In addition, the Arbitrator shall have the
authority to decide issues relating to the interpretation, meaning or
performance of this Agreement even if such decision would constitute an advisory
opinion in a court proceeding or if the issues would otherwise not be ripe for
resolution in a court proceeding, and any such decision shall bind the parties
in their continuing performance of this Agreement. The Arbitrator's written
decision shall be rendered within sixty days of the hearing. The decision
reached by the Arbitrator shall be final and binding upon the parties as to the
matter in dispute. To the extent that the relief or remedy granted by the
Arbitrator is relief or remedy on which a court could enter judgment, a judgment
upon the award rendered by the Arbitrator shall be entered in any court having
jurisdiction thereof (unless in the case of an award of damages, the full amount
of the award is paid within 10 days of its determination by the Arbitrator).
Otherwise, the award shall be binding on the parties in connection with their
continuing performance of this Agreement and in any subsequent arbitral or
judicial proceedings between the parties.
(e) The arbitration shall take place in Los Angeles,
California.
(f) The arbitration proceeding and all filing, testimony,
documents and information relating to or presented during the arbitration
proceeding shall be disclosed exclusively for the purpose of facilitating the
arbitration process and for no other purpose and shall be deemed to be
information subject to the confidentiality provisions of this Agreement.
(g) The parties shall continue performing their respective
obligations under this Agreement notwithstanding the existence of a dispute
while the dispute is being resolved unless and until such obligations are
terminated or expire in accordance with the provisions hereof.
(h) The Arbitrator may order a pre-hearing exchange of
information including depositions, interrogatories, production of documents,
exchange of summaries of testimony or exchange of statements of position, and
the Arbitrator shall limit such disclosure to avoid unnecessary burden to the
parties and shall schedule promptly all discovery and other procedural steps and
otherwise assume case management initiative and control to effect an efficient
and expeditious resolution of the dispute. At any oral hearing of evidence in
connection with an arbitration proceeding, each party and its counsel shall have
the right to examine its witness and to cross-examine the witnesses of the other
party. No testimony of any witness shall be presented in written form unless the
opposing party or parties shall have the opportunity to cross-examine such
witness, except as the parties otherwise agree in writing.
(i) Notwithstanding the dispute resolution procedures
contained in this Section 15, either party may apply to any court having
jurisdiction (i) to enforce this Agreement to arbitrate, (ii) to seek
provisional injunctive relief so as to maintain the status quo until the
arbitration award is rendered or the dispute is otherwise resolved, (iii) to
challenge or vacate any final judgment, award or decision of the Arbitrator that
does not comport with the express
-9-
10
provisions of this Section 15, or (iv) to enforce or interpret the Company's
obligations, or to resolve any other dispute that arises, in whole or in part,
under the provisions set forth in Exhibit I hereto.
16. ATTORNEYS' FEES
If any contest or dispute shall arise under the provisions of this
Agreement or involving the failure or refusal of the Company to perform fully in
accordance with the terms of this Agreement, the Company bear the expense of,
and shall pay and advance to the Executive, on a current basis, all legal fees
and expenses, if any, incurred by the Executive in connection with such contest
or dispute, together with interest in an amount equal to the prime or reference
rate of the Company's principal bank from time to time in effect, but in no
event higher than the maximum legal rate permissible under applicable law, such
interest to accrue from the date the Company receives the Executive's statement
for such fees and expenses through the date of payment thereof; provided,
however, that in the event the resolution of any such contest or dispute
includes a finding denying, in total, the Executive's claims in such contest or
dispute, (i) the Company shall be entitled to deduct and withhold from any funds
payable by the Company to the Executive the amount advanced to the Executive
pursuant to this Section 16, and (ii) to the extent not deducted by the Company
in such manner, the Executive shall be required to reimburse the Company, in
twelve equal monthly installments commencing 30 days after such resolution, such
amount.
17. HEADINGS.
The Article, Section, paragraph and subparagraph headings are for
convenience of reference only and shall not define or limit the provisions
hereof.
-10-
11
18. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and there are no representations,
warranties or commitments except as set forth herein. This Agreement supersedes
any other prior and contemporaneous agreements, understandings, negotiations and
discussions, whether written or oral, of the parties hereto relating to the
transactions contemplated by this Agreement; provided, however, that it is the
intention of the parties that this Agreement shall be interpreted and applied in
conjunction with the term of any option, warrant or other right now in existence
or hereinafter granted to the Executive to acquire shares of capital stock of
the Company. In the event of any conflict, however, the terms of this Agreement
shall govern and prevail. This Agreement may be amended only in a writing
executed by the parties hereto affected by such amendment.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date and year first above written.
THQ Inc.,
a Delaware Corporation
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Xxxxx Xxxxxxx, President
/s/ Xxxxxxx X. Xxxxx
-----------------------------
XXXXXXX X. XXXXX
-11-
12
EXHIBIT I: CHANGE OF CONTROL SEVERANCE BENEFITS
Preliminary Statement: This Exhibit I is attached to and made a part of
the Amended and Restated Employment Agreement, dated as of June 30, 1999,
between THQ Inc. and Xxxxx X. Xxxxxxx (the "Employment Agreement"). The
Employment Agreement provides for the employment of the Executive by the Company
as an employee of the Company through December 31, 2001 (unless such employment
is extended by agreement of the parties or is sooner terminated as provided in
the Employment Agreement), and provides for certain bases upon which the
Executive's employment may be terminated by the Company "for cause." For the
purposes of integrating and clarifying the rights of the Executive and the
obligations of the Company under this Exhibit and the other provisions of this
Employment Agreement in the event of the termination of the Executive's
employment, the following shall apply:
A. In the event of any termination of the Executive's employment prior
to or following the Termination Period, or in the event of any termination of
the Executive's employment during the Termin ation Period by reason of a
Non-Qualifying Termination, the provisions of this Exhibit that provide or grant
to the Executive certain compensation, benefits, rights and remedies shall not
be applicable; and the rights and remedies of the Executive shall be governed
solely by the other provisions Employment Agreement (to the extent then in
effect) and/or any other written agreements that may be entered into between the
Executive and the Company and then in effect.
B. In the event of any termination of the Executive's employment during
the Termination Period other than by reason of a Non-Qualifying Termination:
(i) the Executive shall be entitled to the benefits set forth
in Section 3.2 of this Exhibit; and
(ii) the Executive shall have the right to elect whether to
receive (i) the amounts that would then be payable by the Company
pursuant to Section 3.1 of this Exhibit, or (ii) the amounts in respect
of salary and bonus that would then be payable by the Company pursuant
to the other provisions of the Employment Agreement (to the extent then
in effect) and/or any other written agreements that may be entered into
between the Executive and the Company and then in effect. Employee
shall make such election by notifying the Company in writing not later
than 60 days after the termination of his employment, and such election
shall be binding on the Executive and his successors and assigns and
shall be irrevocable. In the event that the Executive fails to make
such election within such time, the Executive shall be deemed to have
made the election to receive the payments that would then be payable by
the Company pursuant to this Exhibit.
C. In the event of any inconsistency or conflict between any provision
of this Exhibit, on the one hand, and (i) any other provision of the Employment
Agreement, any provision of the stock option plan(s) or agreements(s) pursuant
to which the Options are issued, on the other hand, the provision that provide
the greater protection, benefit or remedies to the Executive (as determined by
the Executive) shall prevail.
1. Definitions. The terms defined in Annex I hereto shall have the
respective meanings set forth therein.
13
2. Effect of Change of Control on Stock Options.
2.1 Effective as of the date a Change of Control shall occur, all
Options not previously fully vested shall become immediately vested and
exercisable (notwithstanding any provision of the Company's stock option plan(s)
to the contrary). The Options shall be exercisable for the full Option term as
is provided in such plan(s) and/or the agreement(s) pursuant to which the
Options were granted, notwithstanding any subsequent events.
2.2 In lieu of exercising or retaining his right to exercise the
Options, the Executive may elect to surrender to the Company his rights in the
Options (whether or not then exercisable) and, upon such surrender, the Company
shall pay to the Executive an amount in cash per share equal to the difference
between (i) the aggregate exercise price of such surrendered Options, and (ii)
the greater of (A) the average price per share paid in connection with the
Change in Control if such control is acquired by the payment of cash, or the
then fair market value per share of the consideration paid if such control is
acquired for consideration other than cash, (B) the price per share paid in
connection with any tender offer leading to or constituting the Change of
Control, or (C) the closing price of the common stock on the Date of Termination
on NASDAQ or any other national securities exchange upon which the common stock
shall then be listed (or, if such date is not a trading day, on the immediately
preceding trading day). For purposes of this Section 2.2, "common stock" shall
mean the common stock of the Company or such other securities as may be issuable
to the Executive upon exercise of the surrendered Options.
3. Payments Upon Termination of Employment.
3.1 If during the Termination Period the employment of the
Executive shall terminate other than by reason of a Nonqualifying Termination,
the Company shall pay to the Executive (or to the Executive's beneficiary or
estate), as compensation for services rendered to the Company:
3.1.1 Within 10 days following the Date of Termination, a
cash amount equal to the sum of (i) the Executive's annual base salary from the
Company and its affiliated companies through the Date of Termination, to the
extent not theretofore paid, and (iii) any compensation previously deferred by
the Executive (together with any interest and earnings thereon) and any accrued
vacation pay, in each case to the extent not theretofore paid; plus
3.1.2 A cash amount equal to (i) 2.99 times the Executive's
annual base salary from the Company and its affiliated companies in effect at
the time the Change of Control occurs, plus (ii) 2.99 times the Executive's
annual bonus paid or payable, including by reason of any deferral, to the
Executive by the Company and its affiliated companies in respect of the fiscal
year of the Company immediately preceding the fiscal year in which the Change in
Control occurs. Such aggregate amount shall be payable, at the election of the
Executive (or the Executive's beneficiary or estate) either in a lump sum
(subject to any applicable payroll or other taxes required to be withheld)
within 10 days following the date of Termination or in 12 equal monthly
installments commencing 30 days following the date of Termination. The amounts
payable pursuant to this Section 3.1.2, together with any amounts or benefits
otherwise payable pursuant to this Exhibit, shall be paid in lieu of any other
amount of severance relating to salary or bonus continuation to be received by
the Executive upon termination of employment of the Executive under any
severance plan, policy or arrangement of the Company.
2
14
3.2 If during the Termination Period the employment of the
Executive shall terminate other than by reason of a Nonqualifying Termination,
the Executive shall also be entitled to the following:
3.2.1 If on the Date of Termination the Executive shall not
be fully vested in the employer contributions made on his behalf under the Plan,
the Company shall pay to the Executive within 30 days following the Date of
Termination a lump sum cash amount equal to the value of the unvested portion of
such employer contributions; provided, however, that if any payment pursuant to
this Section 3.2.1 may or would result in such payment being deemed a
transaction which is subject to Section 16(b) of the Securities Exchange Act,
the Company shall make such payment so as to meet the conditions for an
exemption from such Section 16(b) as set forth in the rules (and interpretive
and no-action letters relating thereto) under Section 16. The value of any such
unvested employer contributions shall be determined as of the Date of
Termination as provided in clause (ii)(C) of Section 2.2 of this Exhibit.
3.2.2 For a period of 12 months commencing on the Date of
Termination, the Company shall continue to keep in full force and effect all
policies of medical, accident, disability and life insurance with respect to the
Executive and his dependents with the same level of coverage, upon the same
terms and otherwise to the same extent as such policies shall have been in
effect immediately prior to the Date of Termination or, if more favorable to the
Executive, as provided generally with respect to other peer executives of the
Company and its affiliated companies, and the Company and the Executive shall
share the costs of the continuation of such insurance coverage in the same
proportion as such costs were shared immediately prior to the Date of
Termination.
4. Limitation on Payments by the Company. Solely for the purposes of
the computation of benefits under this Exhibit and notwithstanding any other
provisions hereof, payments to the Executive under this Exhibit shall be reduced
(but not below zero) so that the present value, as determined in accordance with
Section 280G(d)(4) of the Code, of such payments plus any other payments that
must be taken into account for purposes of any computation relating to the
Executive under Section 280G(b)(2)(A)(ii) of the Code, shall not, in the
aggregate, exceed 2.99 times the Executive's "base amount," as such term is
defined in Section 280G(b)(3) of the Code. Notwithstanding any other provision
hereof, no reduction in payments under the limitation contained in the
immediately preceding sentence shall be applied to payments hereunder which do
not constitute "excess parachute payments" within the meaning of the Code. Any
payments in excess of the limitation of this Section 4 or otherwise determined
to be "excess parachute payments" made to the Executive hereunder shall be
deemed to be overpayments which shall constitute an amount owing from the
Executive to the Company with interest from the date of receipt by the Executive
to the date of repayment (or offset) at the applicable federal rate under
Section 1274(d) of the Code, compounded semi-annually, which shall be payable to
the Company upon demand.
5. Withholding Taxes. The Company may withhold from all payments due
to the Executive (or his beneficiary or estate) hereunder all taxes which, by
applicable federal, state, local or other law, the Company is required to
withhold therefrom.
6. Termination of Company Obligations. This obligations of the Company
set forth in this Exhibit shall terminate only upon (i) the Executive's death,
or (ii) termination of the Executive's employment with the Company prior to a
Change in Control, notwithstanding any prior expiration of the
3
15
Employment Agreement or other event not resulting in the actual termination of
Executive's services to the Company.
7. Successors; Binding Agreement.
7.1 The obligations of the Company set forth in this Exhibit shall
not be terminated by any Reorganization irrespective of whether the Company is
or is not the surviving or resulting corporation or as a result of any transfer
of all or substantially all of the assets of the Company. In the event of any
such Reorganization or transfer of assets, the provisions of this Exhibit shall
be binding upon the surviving or resulting corporation or the Person to which
such assets are transferred.
7.2 The Company agrees that concurrently with any Reorganization
or transfer of assets in which either the Company is not the surviving Person or
the surviving Person or successor or transferee is not deemed to assume the
Company's obligations set forth in this Exhibit by operation of law, the Company
will cause the surviving Person, successor or transferee unconditionally to
assume, by written instrument delivered to the Executive (or his beneficiary or
estate), all of the obligations of the Company hereunder. Failure of the Company
to obtain such assumption prior to the effectiveness of any such Reorganization
or transfer of assets shall be a breach of the Company's obligations to the
Executive and shall entitle the Executive to compensation and other benefits
from the Company in the same amount and on the same terms as the Executive would
be entitled hereunder if the Executive's employment were terminated following a
Change in Control other than by reason of a Nonqualifying Termination. For
purposes of implementing the foregoing, the date on which any such
Reorganization or transfer becomes effective shall be deemed the Date of
Termination.
7.3 This Company's obligations set forth in this Exhibit shall
inure to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive shall die while any amounts would be
payable to the Executive hereunder had the Executive continued to live, then,
unless otherwise provided herein, all such amounts, shall be paid in accordance
with the terms of this Exhibit to such Persons appointed in writing by the
Executive to receive such amounts or, if no Person is so appointed, to the
Executive's estate.
8. Notices. A written notice of the Executive's Date of Termination by
the Company or the Executive, as the case may be, to the other, shall (i)
indicate the specific termination provision in this Exhibit relied upon, (ii) to
the extent applicable, set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and (iii) specify the termination
date (which date shall be not less than 15 days after the giving of such
notice). In addition, in the event the Company desires to terminate the
Executive's employment for Cause, the Company shall comply with Section 7.3 of
the Employment Agreement (if the Employment Agreement is then in effect) or with
any applicable provisions of any successor or other employment agreement. The
failure by the Executive or the Company to set forth in such notice any fact or
circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company hereunder or preclude the
Executive or the Company from asserting such fact or circumstance in enforcing
the Executive's or the Company's rights hereunder.
4
16
9. Full Settlement; No Mitigation; Resolution of Disputes.
9.1 The Company's obligation to make any payments provided for in
this Exhibit and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or other Persons. In
no event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Exhibit, and such amounts shall not be reduced
whether or not the Executive obtains other employment.
9.2 If there shall be any dispute between the Company and the
Executive in the event of any termination of the Executive's employment, then,
unless and until there is a final, nonappealable judgment by a court of
competent jurisdiction declaring that such termination was for Cause, that the
determination by the Executive of the existence of Good Reason was not made in
good faith, or that the Company is not otherwise obligated to pay any amount or
provide any benefit to the Executive and his dependents or other beneficiaries,
as the case may be, under Sections 2 or 3 hereof, the Company shall pay all
amounts, and provide all benefits, to the Executive and his dependents or other
beneficiaries, as the case may be, that the Company would be required to pay or
provide pursuant to Sections 2 and 3 hereof as though such termination were by
the Company without Cause or by the Executive with Good Reason; provided,
however, that the Company shall not be required to pay any disputed amounts
pursuant to this section except upon receipt of an undertaking by or on behalf
of the Executive to repay all such amounts to which the Executive is ultimately
adjudged by such court not to be entitled.
10. Validity. The invalidity or unenforceability of any provision of
this Exhibit shall not affect the validity or enforceability of any other
provision of this Exhibit, which other provisions shall remain in full force and
effect.
11. Miscellaneous. No provision of this Exhibit may be modified or
waived unless such modification or waiver is agreed to in writing and signed by
the Executive and by a duly authorized officer of the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Exhibit to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. Failure by the
Executive or the Company to insist upon strict compliance with any provision of
this Exhibit or to assert any right the Executive or the Company may have
hereunder, including, without limitation, the right of the Executive to
terminate employment for Good Reason, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Exhibit. The rights
of, and benefits payable to, the Executive, his estate or his beneficiaries
pursuant to this Exhibit are in addition to any rights of, or benefits payable
to, the Executive, his estate or his beneficiaries under any other employee
benefit plan or compensation program of the Company.
5
17
ANNEX A
TO
EXHIBIT I
CERTAIN DEFINED TERMS
1. "Board" means the Board of Directors of the Company.
2. "Cause" means, for purposes of this Exhibit (and notwithstanding any
other definition of "cause" or "for cause" set forth in the Employment Agreement
or any successor agreement thereto or other employment agreement in effect): a
material breach by the Executive of those duties and responsibilities of the
Executive which do not differ in any material respect from the duties and
responsibilities of the Executive during the 90-day period immediately prior to
a Change in Control (other than as a result of incapacity due to physical or
mental illness), which breach is (a) demonstrably willful and deliberate on the
Executive's part, (b) is committed in bad faith or without reasonable belief
that such breach is in the best interests of the Company, and (c) is not
remedied in a reasonable period of time after receipt of written notice from the
Company specifying such breach; or (ii) the commission by the Executive of a
felony involving moral turpitude.
3. "Change in Control" means the occurrence of any of the following:
3.1 The acquisition by any Person of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of
either (i) the Outstanding Company Common Stock, or (ii) the combined voting
power of the Outstanding Company Voting Securities; provided, however, that the
following acquisitions shall not constitute a Change in Control:
3.1.1 any acquisition of voting securities of the Company
directly from the Company (including any acquisition resulting from the exercise
of a conversion or exchange privilege in respect of outstanding convertible or
exchangeable securities), unless such acquisition in connection with a
Reorganization;
3.1.2 any acquisition by the Company of voting securities of
the Company; or
3.1.3 any acquisition by an employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation controlled by
the Company;
provided further that, for purposes of Section 3.1.2 of this Annex, if any
Person (other than the Company or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company) shall become the beneficial owner of 30% or more of the Outstanding
Company Common Stock or 30% or more of the Outstanding Company Voting Securities
by reason of an acquisition by the Company of another entity, and such Person
shall, after such acquisition by the Company, become the beneficial owner of any
additional shares of the Outstanding Company Common Stock or any additional
Outstanding Company Voting Securities and such beneficial ownership is publicly
announced, such additional beneficial ownership shall constitute a Change in
Control.
3.2 The acquisition by any Person of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 10% or more of
either (i) the Outstanding Company Common
18
Stock, or (ii) the combined voting power of the Outstanding Company Voting
Securities, if such beneficial ownership is deemed by the Board as having or
likely to have a material adverse impact on the business, operations or
prospects of the Company; provided, however, that the acquisitions set forth in
Sections 3.1.1 through 3.1.3 of this Annex shall not constitute a Change in
Control.
3.3 The individuals who, at any time, constitute the Incumbent Board
cease for any reason to constitute at least a majority of the Board.
4. "Code" means the Internal Revenue Code of 1986, as amended.
5. "Date of Termination" means (i) the effective date on which the
Executive's employment by the Company terminates as specified in a prior written
notice by the Company or the Executive, as the case may be, to the other, or
(ii) if the Executive's employment by the Company terminates by reason of death,
the date of death of the Executive.
6. "Employment Agreement" has the meaning set forth in the Preliminary
Statement to this Exhibit.
7. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
8. "Good Reason" means, unless the Executive expressly consents in
writing, the occurrence of any of the following events after a Change in
Control:
8.1 any removal or involuntary termination of the Executive by the
Company otherwise than as expressly permitted by this Exhibit;
8.2 a reduction by the Company in the Executive's rate of annual
base salary as in effect immediately prior to such Change in Control or as the
same may be increased from time to time thereafter, or the Company's failure to
pay such salary;
8.3 any reduction or other adverse change in the title(s),
responsibilities or nature of duties of the Executive;
8.4 any requirement of the Company that the Executive be based
anywhere other than in the Los Angeles metropolitan area (or, if at the time of
the Change of Control the Executive is based in another metropolitan area, any
requirement of the Company that the Executive be based anywhere other than in
that metropolitan area);
8.5 the failure of the Company to:
8.5.1 provide the Executive with employee benefit plans,
compensation plans, paid vacation and other fringe benefits, and expense
reimbursement, in accordance with the most favorable plans, practices, programs
and policies of the Company and its affiliated companies in effect for the peer
executives of the Company and its affiliated companies after the Change of
Control; or
8.5.2 provide the Executive and the Executive's dependents
welfare benefits (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee
A-2
19
life, group life, accidental death and travel accident insurance plans and
programs) in accordance with the most favorable plans, practices, programs and
policies of the Company and its affiliated companies in effect for the peer
executives of the Company and its affiliated companies after the Change of
Control.
8.6 the failure of the Company to obtain the assumption agreement as
contemplated by Section 7.2 of Exhibit I.
9. "Incumbent Board" means (i) the individuals who, as of the date
hereof, constitute the Board, and (ii) any individual who becomes a director of
the Company subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, is approved by the vote of at least a
majority of the directors then comprising the Incumbent Board; provided,
however, that no individual who was initially elected as a director of the
Company as a result of an actual or threatened election contest, as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act, or
any other actual or threatened solicitation of proxies or consents by or on
behalf of any Person other than the Board, shall be deemed to be a member of the
Incumbent Board
10. "Nonqualifying Termination" means a termination of the Executive's
employment (i) by the Company for Cause, (ii) by the Executive for any reason
other than a Good Reason, (iii) as a result of the Executive's death, or (iv) by
the Company due to the Executive's absence from his duties with the Company on a
full-time basis for at least 180 consecutive days as a result of the Executive's
incapacity due to physical or mental illness (or such other period as may be
provided in the Employment Agreement (or any successor agreement thereto),
during such times as such agreement is in effect); provided, however, that
during the first 180 days after a Change of Control, Executive shall have the
right to terminate his employment for any reason or for no expressed reason, and
such termination shall not constitute a Nonqualifying Termination.
11. "Options" means all options, warrants and rights to acquire shares
of common stock of the Company, whether pursuant to employee benefit plans or
otherwise, granted by the Company to the Executive.
12. "Outstanding Company Common Stock" means, as of any time, the
shares of common stock of the Company outstanding as of that time.
13. "Outstanding Company Voting Securities" means, as of any time, the
securities of the Company entitled to vote generally in the election of
directors outstanding as of that time.
14. "Plan" means the Company's 401(k) Plan or any successor plan.
15. "Person" means any individual, entity or group, and includes any
"person" within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act.
16. "Reorganization" means reorganization, merger or consolidation to
which the Company is a party.
17. "Termination Period" means the period of time beginning with a
Change in Control and ending on the earlier to occur of (i) one year following
such Change in Control, and (ii) the Executive's death.
A-3
