Exhibit 4.28
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of March 14, 2001 by and between Xxxxx
Xxx ("Executive") and OpenTV, Inc., a Delaware corporation (the "Company").
1. Duties and Scope of Employment.
(a) Position. The Company agrees to employ Executive as its Executive
Vice President and Chief Financial Officer for the period of his employment
under this Agreement ("Employment"). Executive will have worldwide
responsibility for Finance and Accounting, Legal, Human Resources, Information
Technology and Facilities. Executive shall report to the Company's Chief
Executive Officer (the "CEO").
(b) Obligations. During the term of his Employment, Executive shall
devote his full business efforts and time to the Company and shall not render
services to any other person or entity without the express prior approval of the
Board of Directors (the "Board") of the Company. Executive represents and
warrants to the Company that he is under no contractual obligations or
commitments inconsistent with his obligations under this Agreement.
2. Cash and Incentive Compensation.
(a) Salary. The Company shall pay Executive as compensation for his
services a base salary at an annual rate of not less than $250,000 for the term
of this Agreement unless terminated earlier pursuant to Section 7. Such salary
shall be payable in accordance with the Company's standard payroll procedures.
Such salary and other benefits herein shall be subject to review by the Board
annually or more often. (The annual compensation specified in this Subsection
(a), together with any increases in such compensation that the Company may grant
from time to time, are referred to in this Agreement collectively as "Base
Compensation.")
(b) Incentive Bonuses. Executive shall be eligible to participate in
the OpenTV Bonus Plan at a targeted annual bonus rate of 45% based upon total
regular earnings during the measurement period, which is currently calendar year
based. Executive's actual annual bonus will be at the discretion of the CEO,
subject to ratification of the Board based upon individual and company
performance assessments as agreed by the Company and Executive from time to
time.
3. Stock Benefits. As soon as practicable following the date of this
Agreement, the Compensation Committee of the Board of Directors of OpenTV Corp.
(the "Compensation Committee") shall grant Executive options to purchase 200,000
shares of OpenTV Corp. Class A Ordinary Shares (the "Ordinary Shares") under
OpenTV Corp.'s 1999 Amended and Restated Stock Option/Stock Issuance Plan at an
exercise price equal to the fair market value of the Ordinary Shares on the date
of the grant. This grant will be structured so that Executive will receive
options to purchase up to the maximum number of Incentive Stock Options ("ISOs")
permissible under Internal Revenue Code section 422 per the Compensation
Committee's resolution detailing the above information and included in the
individual Stock Grant. The option will be evidenced by OpenTV Corp.'s standard
stock option agreement and shall incorporate an executive addendum to such stock
option agreement, the form of which is attached hereto as Exhibit A (the
"Executive Addendum"). So long as Executive continues in service with the
Company, the option will vest with respect to 25% of the option shares upon
completion of one year of service with the Company and with respect to the
balance in 36 successive equal monthly installments upon your completion of each
additional month of Executive's service thereafter.
4. Vacation Time and Executive Benefits. During the term of his
Employment, Executive shall be eligible for paid vacation time in accordance
with the Company's vacation policy applicable to its senior management which
shall in any event be not less than 15 days per year in addition to customary
public
holidays. Executive also shall be eligible to participate in any Executive
benefit plans maintained by the Company for the benefit of its senior
management, subject in each case to the generally applicable terms and
conditions of the plan in question and to the determinations of any person or
committee administering such plan.
5. Business Expenses. During the term of his Employment, Executive shall be
authorized to incur necessary and reasonable travel, entertainment and other
business expenses in connection with his duties hereunder. In respect of
international business trips by air, Executive shall be entitled to business
class travel. The Company shall reimburse Executive for such expenses upon
presentation of an itemized account and appropriate supporting documentation,
all in accordance with the Company's generally applicable policies.
6. Annual physical exam. The Company shall pay the full cost of an annual
physical exam for Executive.
7. Term of Employment.
(a) Term. The Company agrees to continue Executive's employment, and
Executive agrees to remain in employment with the Company, from the date of this
Agreement for four (4) years ("The Term"), or until the date when Executive's
Employment terminates. The term of this agreement will terminate at Executive's
death. The term may be terminated at the Company's option, by notice to
Executive, as a result of Executive's Permanent Disability (defined in
Subsection 7(b)), or for Cause (defined in Subsection 8(f)). In addition, the
Company may terminate Executive's employment without Cause (subject to the
provisions of Section 8). The Term shall be automatically renewed for successive
periods of one (1) year unless either party gives written notice of non-renewal
to the other party no later than sixty (60) days prior to the expiration of the
then current Term.
(b) Permanent Disability. The Company may terminate Executive's Employment
due to Permanent Disability by giving Executive notice in writing. For all
purposes under this Agreement, "Permanent Disability" shall mean that Executive,
at the time notice is given, has failed to perform his duties under this
Agreement for not less than 90 working days (whether or not consecutive) in any
365-day period of as the result of his incapacity due to physical or mental
illness. If Executive's employment is terminated under this Subsection (b), the
Company shall continue paying Executive's Base Compensation for a period six (6)
months following the effective date of the termination.
(c) Voluntary Resignation. Executive may terminate his Employment
voluntarily by giving the Company sixty (60) days' advance notice in writing.
8. Termination Benefits.
(a) Eligibility for Termination Benefits. This Section 8 shall apply
if, during the term of this Agreement:
(i) The Company terminates Executive's Employment for any
reason other than Cause (as defined below), Permanent Disability or death; or
(ii) Executive resigns his Employment.
If Executive terminates his employment during the term of this
Agreement by voluntary resignation, death, or disability or by the Company for
Cause, the Company will pay, in lieu of any other payments hereunder (including
bonus payments), Executive's Base Compensation that has actually accrued to the
date of termination, any expense reimbursements, and any vacation pay that has
accrued to that date and is
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payable under the Company's standard policies. Executive acknowledges that upon
receipt of such payments pursuant to this subparagraph, the Company will have no
further obligations to you under this agreement
(b) Severance Pay. If Executive's employment is terminated during the Term
of this agreement other than by voluntary resignation, death, or disability or
by the Company for Cause, Executive shall receive, in lieu of all amounts
otherwise payable hereunder, an additional six months of the then-current Base
Compensation which would be payable during the remainder of the term, continued
vesting for an additional six months (or for such greater period of time as
provided under the Executive Addendum) on the option grant referred to in
Section 3, any amounts which Executive is entitled to reimbursement under
Section 5, and those amounts owed under Subsections 8(c) and 8(d). Such Base
Compensation payments will be made at the same intervals as they would have been
made if this Agreement had not been terminated. Executive acknowledges that upon
receipt of such payments pursuant to this Subsection, the Company will have no
further obligations to Executive under this Agreement. At the end of the
original four year Term, thereafter Executive shall only be entitled to six
months severance and six months continued vesting (or vesting for such greater
period of time as provided under the Executive Addendum) on the option grant
referred to in Section 3, along with any amounts which Executive is entitled to
reimbursement under Section 5.
(c) Health Insurance. If this Section 8 applies, and if Executive
elects to continue his health insurance coverage under the Consolidated Omnibus
Budget Reconciliation Act ("COBRA") following the termination of his Employment,
then the Company shall pay Executive's monthly premium under COBRA until the
earliest of (i) six months or (ii) the date when Executive receives
substantially equivalent health insurance coverage in connection with new
employment or self-employment.
(d) Outplacement Services. If this Section 8 applies, the Company
will pay up to a maximum of $25,000 for outplacement services to be chosen by
Executive.
(e) Noncompetition. Executive agrees that, during his employment with
the Company and following termination of employment for any reason, for the
period of 6 months thereafter (the "Severance Period"), Executive will not,
without first obtaining the Company's prior written approval, directly or
indirectly engage or prepare to engage in any Competitive Activities or accept
employment, provide services to, or establish a business relationship with a
business or individual engaged in or preparing to engage in Competitive
Activities. As used herein, "Competitive Activities" shall mean the development,
marketing, or sale of products related to the Company's industry. Executive
agrees to notify the Company, in writing, at least ten business days prior to
engaging in any work for any business purpose other than work for the Company.
For purposes of this paragraph, the holding of less than five percent of the
outstanding voting securities of any firm or business organization in
competition with the Company shall not constitute activities or services
precluded by this paragraph.
(f) Definition of "Cause". For all purposes under this Agreement,
"Cause" shall mean:
(i) Gross and willful failure to perform services, if such
failure materially injures the Company and has not been cured within 30 days
after Executive was given notice of such failure by the Company;
(ii) Material dishonesty;
(iii) Breach of fiduciary duty;
(iv) Fraud or embezzlement as determined by a court;
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(v) Conviction of, or a plea of "guilty" or "no contest" to,
a felony under the laws of the United States or any state thereof, if such
felony either is work-related or materially impairs Executive's ability to
perform services for the Company;
(vi) A material breach of this Agreement, if such breach has
not been cured within 30 days after Executive was given notice of such failure
by the Company.
9. Nondisclosure.
Executive has entered into a Proprietary Information and Inventions
Agreement with the Company, which is incorporated herein by reference.
10. Successors.
(a) Company's Successors. This Agreement shall be binding upon any
successor (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Company's business and/or assets. For all purposes under this Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which becomes bound by this Agreement.
(b) Executive's Successors. This Agreement and all rights of
Executive hereunder shall inure to the benefit of, and be enforceable by,
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
11. Miscellaneous Provisions.
(a) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered mail, return receipt
requested and postage prepaid. In the case of Executive, mailed notices shall be
addressed to him at the home address that he most recently communicated to the
Company in writing. In the case of the Company, mailed notices shall be
addressed to its corporate headquarters, and all notices shall be directed to
the attention of its Secretary.
(b) Modifications and Waivers. No provision of this Agreement shall
be modified, waived or discharged unless the modification, waiver or discharge
is agreed to in writing and signed by Executive and by an authorized officer of
the Company (other than Executive). No waiver by either party of any breach of,
or of compliance with, any condition or provision of this Agreement by the other
party shall be considered a waiver of any other condition or provision or of the
same condition or provision at another time.
(c) Whole Agreement. No other agreements, representations or
understandings (whether oral or written and whether express or implied) which
are not expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof. This Agreement and the
Proprietary Information and Inventions Agreement contain the entire
understanding of the parties with respect to the subject matter hereof.
(d) Withholding Taxes. All payments made under this Agreement shall
be subject to reduction to reflect taxes or other charges required to be
withheld by law.
(e) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California (except the provisions governing the choice of law).
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(f) Severability. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceability
of any other provision hereof, which shall remain in full force and effect.
(g) Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled in San Francisco,
California, by arbitration in accordance with the Commercial Arbitration Rules
of the American Arbitration Association. The decision of the arbitrator shall be
final and binding on the parties, and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The parties
hereby agree that the arbitrator shall be empowered to enter, an equitable
decree mandating specific enforcement of the terms of this Agreement. The
Company and Executive shall bear equally all fees and expenses of the
arbitrator; provided, however, that the Company and Executive shall bear such
fees and expenses of the arbitrator and such of the legal fees and out-of-pocket
expenses of the other party as the arbitrator may determine if the arbitrator
determines that the claim or position of the Company or Executive (as the case
may be) was without reasonable foundation. Executive hereby consents to personal
jurisdiction of the state and federal courts located in the State of California
for any action or proceeding arising from or relating to this Agreement or
relating to any arbitration in which the parties are participants.
(h) No Assignment. This Agreement and all rights and obligations of
Executive hereunder are personal to Executive and may not be transferred or
assigned by Executive at any time. The Company may assign its rights under this
Agreement to any entity that assumes the Company's obligations hereunder in
connection with any sale or transfer of all or a substantial portion of the
Company's assets to such entity.
(i) Counterparts. This Agreement may be executed in two or
counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year first
above written.
/s/ Xxxxx X. Xxx 2/28/01
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Xxxxx Xxx
OpenTV, Inc.
By: /s/ Xxxx Xxxxxxx
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Title: February 28, 2001
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Exhibit A
ADDENDUM
TO
STOCK OPTION AGREEMENT
The following provisions are hereby incorporated into, and are hereby
made a part of, that certain Notice of Grant of Stock Option, dated
_______________, and related Stock Option Agreement (the "Option Agreement"), by
and between OpenTV Corp. (the "Company") and _______________ ("Optionee")
evidencing the stock option (the "Option") granted on such date to Optionee
under the terms of the Company's Amended and Restated 1999 Share Option/Share
Issuance Plan (the "Plan"), and such provisions shall be effective immediately.
All capitalized terms in this Addendum, to the extent not otherwise defined
herein, shall have the meanings assigned to them in the Option Agreement and the
Plan.
INVOLUNTARY TERMINATION FOLLOWING
CORPORATE TRANSACTION
1. To the extent the Option is, in connection with a Corporate
Transaction, to be assumed in accordance with the Plan and the Option Agreement,
none of the Option Shares shall vest on an accelerated basis upon the occurrence
of that Corporate Transaction, and Optionee shall accordingly continue, over his
or her period of Service following the Corporate Transaction, to vest in the
Option Shares in one or more installments in accordance with the provisions of
the Option Agreement. However, upon an Involuntary Termination of Optionee's
Service within eighteen (18) months following such Corporate Transaction, all
the Option Shares at the time subject to the Option shall automatically vest in
full on an accelerated basis so that the Option shall immediately become
exercisable for all the Option Shares as fully-vested shares and may be
exercised for any or all of those Option Shares as vested shares. The Option
shall remain so exercisable until the earlier of (i) the Expiration Date or (ii)
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the expiration of the one (1)-year period measured from the date of the
Involuntary Termination.
2. For purposes of this Addendum, an Involuntary Termination shall
mean the termination of Optionee's Service by reason of:
(i) Optionee's involuntary dismissal or discharge by the Company
for reasons other than for Misconduct, or
(ii) Optionee's voluntary resignation following (A) a change in
Optionee's position with the Company (or Parent or Subsidiary employing
Optionee) which materially reduces Optionee's level of responsibility, (B)
a reduction in Optionee's level of compensation (including base salary,
fringe benefits and target bonuses under any corporate-performance based
incentive programs) by more than fifteen percent (15%) or (C) a relocation
of Optionee's place of employment by more than fifty (50) miles, provided
and only if such change, reduction or relocation is
effected by the Company (or Parent or Subsidiary employing Optionee)
without Optionee's consent.
3. For purposes of this Addendum, a Corporate Transaction shall mean
either of the following shareholder-approved transactions to which the Company
is a party:
(i) a merger or consolidation in which securities
possessing more than fifty percent (50%) of the total combined voting power
of the Company's outstanding securities are transferred to a person or
persons different from the persons holding those securities immediately
prior to such transaction, or
(ii) the sale, transfer or other disposition
of all or substantially all of the Company's assets in complete liquidation
or dissolution of the Company.
4. For purposes of this Addendum, Misconduct shall mean (i) gross
and willful failure to perform services, if such failure materially injures the
Company (or Parent or Subsidiary employing Optionee) and has not been cured
within 30 days after Optionee was given notice of such failure by the Company
(or Parent or Subsidiary employing Optionee), (ii) material dishonesty, (iii)
breach of fiduciary duty, (iv) fraud or embezzlement as determined by a court,
(v) conviction of, or a plea of "guilty" or "no contest" to, a felony under
the laws of the United States or any state thereof, if such felony either is
work-related or materially impairs Optionee's ability to perform services for
the Company (or Parent or Subsidiary employing Optionee), or (vi) a material
breach of Optionee's Employment Agreement with OpenTV, Inc. if such breach has
not been cured within 30 days after Optionee was given notice of such failure by
OpenTV, Inc).
5. The provisions of Paragraph 1 of this Addendum shall govern the
period for which the Option is to remain exercisable following the Involuntary
Termination of Optionee's Service within eighteen (18) months after the
Corporate Transaction and shall supersede any provisions to the contrary in the
Option Agreement. The provisions of this Addendum shall also supersede any other
provision to the contrary in the Option Agreement.
6. Notwithstanding any of the foregoing, in the event that the
acceleration of the Option as set forth above or any other benefits received or
to be received by you in connection with a Corporate Transaction are deemed to
be excess parachute payments under Code Section 280G, then the acceleration of
the Option and the other benefits shall be limited (in the order selected by
you) to the extent (and only to the extent) necessary to provide you with the
maximum after-tax benefit available, after taking into account any parachute
excise tax which might otherwise be payable by you under Code Section 4999, and
any analogous State income tax provision. However, no such limitation will be
enforced if the shareholder approval requirements of Code Section 280G(b)(5) are
satisfied with respect to such acceleration and other benefits.
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IN WITNESS WHEREOF, OpenTV Corp. has caused this Addendum to be
executed by its duly-authorized officer as of the Effective Date specified
below.
OPENTV CORP.
BY: _______________________________
TITLE: ____________________________
EFFECTIVE DATE:
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