Exhibit 10.2
REDACTED VERSION
Execution Copy
TERMINATION AGREEMENT
*** Confidential treatment has been requested as to certain portions of
this agreement. Such omitted confidential information has been designated
by an asterisk and has been filed separately in accordance with the
Securities and Exchange act of 1934, as amended, and the Commission's rules
and regulations promulgated under the Freedom of Information Act, pursuant
to a request for confidential treatment. ***
This TERMINATION AGREEMENT (this "Agreement") is entered into on November
7, 2002 (the "Effective Date") by and between Gemstar-TV Guide International,
Inc., a Delaware corporation (the "Company"), Gemstar Development Corporation, a
California corporation ("GDC"), and Xxxxx X. Xxxx ("Employee").
WITNESSETH:
WHEREAS, the Company (as successor in interest to Gemstar International
Group Limited, a British Virgin Islands corporation), Employee and GDC are
parties to that certain Amended and Restated Employment Agreement dated as of
January 7, 1998, as amended (the "Current Employment Agreement"), pursuant to
which Employee is currently employed as Chief Executive Officer and Chairman of
the Board of the Company and as President and Chief Executive Officer of GDC;
and
WHEREAS, the Company, GDC and Employee have agreed that Employee will (i)
relinquish the titles of Chief Executive Officer of the Company and the titles
of President and Chief Executive Officer of GDC, (ii) terminate the Current
Employment Agreement on the terms and conditions set forth herein, including
providing for the mutual releases set forth herein, and (iii) enter into a new
employment agreement with the Company (the "New Employment Agreement") pursuant
to which Employee will serve as the non-executive Chairman of the Board of the
Company and as head of a business unit of the Company focused on developing new
international markets ("Gemstar International").
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties agree as follows:
1. Resignations and Termination of Current Employment Agreement.
Subject to the payment by the Company of the amounts required to be
paid to Employee on the Effective Date as provided in Section 2 hereof and the
performance by the Company of its other obligations to be performed on the
Effective Date as provided herein, (a) Employee hereby resigns, effective as of
the Effective Date, (i) as Chief Executive Officer of the Company, (ii) as
President and Chief Executive Officer of GDC, (iii) from each and every office
that he may hold with any direct or indirect Subsidiary (as such term is defined
below), (iv) as a member of the Board of Directors of any Subsidiary of which he
may be a director, including without limitation, the Board of Directors of GDC,
(v) as a member of any committee of the Board of Directors of the Company and
any Subsidiary of which he may be a member, (vi) as a
trustee or member of any committee in connection with any employee benefit or
compensation plan, fund or program, of the Company or any Subsidiary of which he
may be a trustee or committee member and (vii) from any and all other titles,
capacities, or functions with the Company, GDC and their respective Subsidiaries
and affiliates other than as a member of the Board of Directors of the Company
and as the head of "Gemstar International" (as defined in and as contemplated by
the New Employment Agreement) and (b) as of the Effective Date, the Current
Employment Agreement shall terminate in its entirety and shall be of no further
force or effect. As used in this Agreement, the term "Subsidiary" means any
corporation, limited liability company, partnership, business trust, limited
liability partnership, joint stock company, trust, unincorporated association,
joint venture or other entity of which securities (or other interests) having
the power to elect a majority of that entity's board of directors or similar
governing body, or otherwise having the power to direct the business and
policies of that entity (other than securities or other interests having such
power only upon the happening of a contingency that has not occurred) are held
by the Company or one or more of its Subsidiaries.
2. Payments and Other Benefits.
(a) The Company shall pay to Employee by wire transfer on the Effective
Date, subject in each case to any required tax and similar withholdings, (i) a
termination fee of $22,452,640 and (ii) $7,030,778 (in full and complete
settlement for all unpaid salary, bonuses and unused vacation days due under the
Current Employment Agreement or otherwise).
(b) In addition to the foregoing, and notwithstanding any other provision
of this Agreement, the Company shall reimburse Employee pursuant to Sections
3(e), 3(g), 5, and 7 of the Current Employment Agreement for any amounts due and
owing (or required to be reimbursed) under such Sections through the Effective
Date, such reimbursement to be made in accordance with the terms of such
Sections; provided, however, that no request for reimbursement pursuant to
Section 3(e), 3(g) or 5 of the Current Employment Agreement shall be permitted
after the Effective Date with respect to any expense incurred prior to January
1, 2002; and provided further, that any and all requests for reimbursement
pursuant to Section 3(e), 3(g) or 5 of the Current Employment Agreement must be
submitted by Employee no later than thirty (30) business days after the
Effective Date; and provided further, that no request for reimbursement shall be
permitted after the Effective Date for any expenses described in clause (A) of
the second sentence of Section 3(e) of the Current Employment Agreement, it
being understood that all such expenses are to be reimbursed pursuant to, and
subject to the limitations set forth in, Section 4 of this Agreement.
(c) Employee and the Company acknowledge that, pursuant to the Current
Employment Agreement, the Company entered into split dollar life insurance
agreements with the trustee of a trust of which Employee is a trustor pursuant
to which the Company is required to pay all of the premiums with respect to, and
otherwise to maintain in full force and effect, one or more life insurance
policies on the life of Employee, which policies provide, in the aggregate,
death benefits minus the aggregate of all premiums paid by the Company, of at
least $20,000,000 (the "Existing Split Dollar Life Insurance Arrangements").
Employee and the Company further acknowledge that uncertainty exists as to the
continued permissibility of the Existing Split Dollar Life Insurance
Arrangements because of the Xxxxxxxx-Xxxxx Act of 2002, and any rules or
regulations arising thereunder, as it may be amended from time to time (the
"Sarbanes-
2
Oxley Act"). Pending resolution of that uncertainty, as provided below, the
premiums required to maintain the Existing Split Dollar Life Insurance
Arrangements shall be paid out of the cash value of the policies, and if the
cash value of a particular policy shall be insufficient to pay the premium on
that policy, such premium may be paid out of the cash value of any other policy.
In no event shall the Company have any obligation to pay any amount under the
policies (with respect to premiums or otherwise) regardless of whether the
result is that the policy will lapse on account of non-payment of the premium.
The permissibility of the Existing Split Dollar Life Insurance Arrangements
under the Xxxxxxxx-Xxxxx Act shall be deemed resolved when the Board of
Directors of the Company determines that governing Federal authority has
specifically resolved the issue. If it is determined by the Board of Directors
of the Company that the Existing Split Dollar Life Insurance Arrangements are
permissible, the Company shall resume paying the premiums with respect to
policies still in force, and the Existing Split Dollar Life Insurance
Arrangements shall continue with respect thereto, including the Company's
obligations to reimburse Employee with respect to certain tax costs. If it is
determined by the Board of Directors of the Company that the Existing Split
Dollar Life Insurance Arrangements are not permissible: (i) the Existing Split
Dollar Life Insurance Arrangements shall be deemed to be terminated; (ii) the
Company shall not be obligated to pay any additional premiums or other amounts
with respect to the Existing Split Dollar Life Insurance Arrangements; (iii) the
Company shall be entitled to receive the premiums that it has paid on the
policies; and (iv) Employee shall be entitled to receive the remaining interest
in the policies, if any.
(d) To the extent that any Payment (as such term is defined in Schedule II
to the Current Employment Agreement) made on or prior to the Effective Date is
or was determined (as provided in the following sentence) to be subject to the
Excise Tax (as such term is defined in Schedule II to the Current Employment
Agreement) imposed by Section 4999 (as such term is defined in Schedule II to
the Current Employment Agreement), Employee shall be entitled to the benefits
and protections set forth in Schedule II of the Current Employment Agreement,
which is incorporated herein by this reference to the same extent as if set
forth in this Agreement in its entirety. Notwithstanding any provision in
Schedule II to the Current Employment Agreement to the contrary, the
determination that any Payment made on or prior to the Effective Date is or was
subject to the Excise Tax shall be established only by a final determination by
the Internal Revenue Service ("IRS") that such Payment is or was subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), and that such Payment was actually made by the Employee.
Further, Employee agrees to provide written notice of such IRS determination
(and other IRS actions related hereto) to the Company within ten (10) days of
receipt, and the Company, in its discretion, may challenge such IRS
determination. If the Company determines to challenge such IRS determination,
Employee agrees to provide full cooperation with the Company in order to
effectuate such challenge.
3. Current Stock Options and other Equity Awards.
(a) On the Effective Date, Employee will surrender to the Company for
cancellation and without any additional consideration all options to purchase
shares of the Company's Common Stock ("Common Shares") that were granted to
Employee by the Company (or its predecessor) at any time from and after May 31,
1998 (collectively, the "Cancelled Stock Options"). The Company and Employee
agree that, prior to such cancellation, the Cancelled Stock Options represent
the right to acquire, subject to the terms and conditions thereof, an
3
aggregate of seventeen million fifty-five thousand four hundred thirteen
(17,055,413) Common Shares.
(b) As of the Effective Date, and without any further action required on
the part of the Company or Employee, all stock options held by Employee as of
the Effective Date other than the Cancelled Stock Options shall immediately vest
in full and shall become fully exercisable for their full term.
(c) Subject to receiving the requisite stockholder approval, the Company
shall cause the Company's 1994 Stock Incentive Plan (the "SIP") to be amended
(the "SIP Amendment") to provide for awards of restricted stock, such amendment
to be substantially in the form attached hereto as Exhibit A. The Company will
schedule an annual or special stockholders' meeting of the Company to occur as
soon as reasonably practicable following the Effective Date (the "Stockholder
Meeting"); provided, however, the parties acknowledge that the SIP Amendment
will not be submitted for stockholder approval at the informational stockholder
meeting expected to be scheduled in either November or December of 2002. At the
Stockholder Meeting, the Company shall submit the SIP Amendment for stockholder
approval.
On the date of the Stockholder Meeting or as soon as reasonably
practicable thereafter, the Company shall either issue restricted stock or grant
Stock Units (as such term is defined under the SIP) to Employee as follows (the
date of such issuance or grant is referred to herein as the "Share Grant Date"):
(i) if the SIP Amendment is approved by the requisite vote of the Company
stockholders at the Stockholder Meeting, the Company shall issue five
million two hundred seventy-four thousand five hundred and nineteen
(5,274,519) shares of restricted stock under the SIP to the Employee in
accordance with the terms and conditions set forth in the Termination
Restricted Stock Agreement attached hereto as Exhibit B, such shares to
be issued in certificates of such denominations as Employee may request;
or
(ii) If the SIP Amendment is not approved by the requisite vote of the
Company stockholders at the Stockholder Meeting, the Company shall grant
to Employee under the SIP (i) five million two hundred seventy-four
thousand five hundred and nineteen (5,274,519) Stock Units and (ii)
Dividend Equivalent Rights (as such term is defined under the SIP)
representing the right to receive, if, when and as ordinary cash
dividends are paid on the Company's Common Stock generally, an amount (of
cash or other property) equal to the ordinary cash dividends that would
be paid with respect to five million two hundred seventy-four thousand
five hundred and nineteen (5,274,519) shares of the Company's Common
Stock, in each case in accordance with the terms and conditions set forth
in the Termination Stock Unit Agreement attached hereto as Exhibit C.
The Company represents and warrants that, as of the date hereof, there
are sufficient Common Shares available under the SIP to permit either of the
grants described in (i) or (ii) above. Additionally, the Company represents and
warrants that, as of the Share Grant
4
Date, there will be sufficient Common Shares available under the SIP to permit
either of the grants described in (i) or (ii) above.
(d) If the SIP Amendment is approved by the Company stockholders at the
Stockholder Meeting, with respect to those shares of restricted stock granted in
Section 3(c)(i) above for which Employee makes a valid election within 30 days
after the Share Grant Date under Section 83(b) of the Code (the "83(b) Shares"),
the Company shall pay Employee, within five business days after the Company's
receipt from Employee of evidence of such valid election, or as soon as
reasonably practicable thereafter, an amount in cash (subject to applicable
withholding) equal to X multiplied by Y multiplied by Z divided by W (the "83(b)
Payment"), where:
X is the number of 83(b) Shares;
Y is the excess, if any, of the Maximum Share Price (as defined
herein) over the Company Share Price (as defined herein) on the
Effective Date;
Z is equal to the difference between (i) the lowest Federal long
term capital gain rate and (ii) the sum of the highest marginal
Federal income tax rate and highest marginal income tax rate for
state ordinary income applicable to a California resident
(adjusted for any applicable state tax deduction under Federal
income tax laws)(this calculation shall be determined using those
rates applicable in the year of the Share Grant Date); and
W is equal to (i) one (1) minus (ii) the amount equal to the sum
of the highest marginal Federal income tax rate and highest
marginal state income tax rate applicable to a California
resident (adjusted for any applicable state tax deduction under
Federal income tax laws)(this calculation shall be determined
using those rates applicable in the year of the Share Grant
Date).
The "Company Share Price" on any date shall be the Fair Market Value
(as such term is defined in the SIP) for one Common Share on such date. The
"Trading Period" shall be the period beginning on the Effective Date until the
close of business on the thirtieth Trading Day (as defined herein) following the
Effective Date. The term "Trading Day" shall mean any day on which the Company's
Common Stock is traded on a national securities exchange on which such Company
Common Stock is listed or admitted to trade; provided, however, that if the
Company's Common Stock is not listed or admitted to trade on any national
securities exchange, the term "Trading Day" shall mean any business day. The
"Maximum Share Price" shall be the lesser of (i) the highest Company Share Price
of any date within the Trading Period or (ii) the Company Share Price on the
applicable Share Grant Date. Notwithstanding anything herein to the contrary, no
payment shall be made under this Section 3(d) if the Company Share Price on the
Effective Date exceeds the Maximum Share Price. To the extent Company makes any
payments to satisfy any tax withholding obligation relating to the Section 83(b)
election above prior to paying the 83(b) Payment, the 83(b) Payment (to the
extent possible) shall be reduced by such payments made by the Company to
satisfy such tax withholding obligation, and, except as
5
provided in the immediately following sentence, in no event shall Employee be
required to reimburse the Company for such tax withholding obligation until the
83(b) Payment is made to Employee. If the 83(b) Payment is insufficient to repay
such payments made by the Company to satisfy such tax withholding obligation,
Employee shall pay the Company an amount in cash equal to the amount of
deficiency on such date the 83(b) Payment would have been made (if not for the
deduction of the prior sentence).
(e) If the SIP Amendment is not approved by the Company stockholders, the
Company shall pay Employee, on each Stock Unit vesting date, or as soon as
reasonably practicable thereafter, an amount in cash (subject to applicable
withholdings) equal to X multiplied by Y multiplied by Z divided by W (the
"Stock Unit Payment"), where:
X is the number of Stock Units that vest on the applicable Stock
Unit vesting date pursuant to the Termination Stock Unit
Agreement attached hereto as Exhibit C;
Y is the excess, if any, of the Maximum Share Price over the
Company Share Price on the Effective Date;
Z is equal to the difference between (i) the lowest Federal long
term capital gain rate and (ii) the sum of the highest marginal
Federal income tax rate and highest marginal income tax rate for
state ordinary income applicable to a California resident
(adjusted for any applicable state tax deduction available under
Federal income tax laws)(this calculation shall be determined
using those rates applicable in the year of the Stock Unit
vesting date in question); and
W is equal to (i) one (1) minus (ii) the amount equal to the sum
of the highest marginal Federal income tax rate and highest
marginal state income tax rate applicable to a California
resident (adjusted for any applicable state tax deduction
available under Federal income tax laws)(this calculation shall
be determined using those rates applicable in the year of the
Stock Unit vesting date in question).
Notwithstanding anything herein to the contrary, no payment shall be made
under this Section 3(e) if the Company Share Price on the Effective Date exceeds
the Maximum Share Price. To the extent that the Company has any tax withholding
obligation relating to the Stock Units (or payment of such Stock Units) that
vest on the applicable Stock Unit vesting date, the Company may reduce (to the
extent possible) the Stock Unit Payment to the extent of such tax withholding
obligation and, except as provided in the immediately following sentence, in no
event shall Employee be required to reimburse the Company for such tax
withholding obligation until the Stock Unit Payment is made to Employee. If the
Stock Unit Payment is insufficient to repay such payments made by the Company to
satisfy such tax withholding obligation, Employee shall pay the Company an
amount in cash equal to the amount of deficiency on such date the Stock Unit
Payment would have been made (if not for the deduction of the prior sentence).
To the extent any payments to be made under this Section 3(e) are accelerated
due to Employee's employment terminating as provided in Sections 4(a), 4(b),
4(d) or 4(f) of the New
6
Employment Agreement, such payments shall be contingent on Employee (or, if
deceased, his estate's legal representative) signing a general release of claims
in a form provided by the Company which shall be substantially similar to
Exhibit D.
(f) The number and type of shares set forth above with respect to any
restricted stock, Stock Units or Dividend Equivalent Rights (the "Equity
Awards") provided under this Section 3, and applicable share prices for purposes
of Sections 3(d) and 3(e), shall be proportionately adjusted by the Company to
the extent (if any) necessary to account for, and preserve the intended level of
benefits following, any extraordinary dividend or other extraordinary
distribution in respect of the outstanding Common Shares (to the extent paid in
the form of Common Shares or other equity securities), or any recapitalization,
stock split (including a stock split in the form of a stock dividend), reverse
stock split, reorganization, merger, combination, consolidation, split-up,
spin-off, exchange of Common Shares, or similar extraordinary event, in each
case to the extent such event affects the outstanding Common Shares.
(g) Notwithstanding any provision herein or in the Termination Restricted
Stock Agreement, Termination Stock Unit Agreement or SIP to the contrary, no
Equity Awards shall be granted under this Section 3 after any (i) termination of
Employee's employment pursuant to Sections 4(c) or 4(g) of the New Employment
Agreement prior to the grant of such Equity Awards, or (ii) occurrence of any
Breach Event (as defined below) which (if capable of cure) has not (together
with all effects thereof) been fully cured by Employee within thirty (30) days
after receipt of written notice from the Company of such Breach Event (the
"Breach Cure Period"); provided, however, no Equity Awards shall be granted
during any Breach Cure Period (but if all Breach Events are cured during the
corresponding Breach Cure Periods, any Equity Awards scheduled to be granted
during such Breach Cure Periods shall be deemed to have been granted as of the
scheduled grant date); provided, further, no Equity Awards shall be granted
during any For Cause Determination Period (as defined in the New Employment
Agreement) (but, in the event that the Company Board determines no termination
for Cause has occurred or Employee is successful in challenging any purported
termination under Section 4(c) of the New Employment Agreement, any Equity
Awards scheduled to be granted during such For Cause Determination Period shall
be deemed to have been granted as of the scheduled grant date). The term "Breach
Event" shall mean any (i) material breach by Employee of Section 12 of this
Agreement, (ii) breach by Employee of any representation or warranty contained
in Section 15 of this Agreement, or (iii) material breach by Employee of
Sections 6, 8, 10(h) or 10(i) of the New Employment Agreement. The determination
that a Breach Event has occurred shall be made by the Company Board and
following such determination, written notice of such Breach Event shall be
provided to Employee by the Company Board or any proper officer of the Company.
Employee agrees that, in his capacity as a Company Board member, he shall not
vote on such a determination nor shall he vote on any Company Board
determination that a Breach Event (as such term is defined in Xxxxx Xxxxx'x
termination agreement with the Company of even date hereof) has occurred with
respect to Xxxxx Xxxxx. Any disputes related to this Section 3(g) shall be
resolved pursuant to Section 10(f) of the New Employment Agreement.
(h) Subject to Section 3(g) above, if Employee's employment under the New
Employment Agreement terminates under Sections 4(a), 4(b), 4(d) or 4(f) thereof
prior to the granting of any Equity Awards required to be granted hereunder,
such Equity Awards not yet
7
granted shall be granted to the Employee as provided in Section 3(c) and shall
be immediately vested in full upon grant.
(i) In the event of a conflict or inconsistency between the terms and
conditions of this Agreement and the terms and conditions of the agreement
evidencing any Equity Award, the terms and conditions of the agreement
evidencing such Equity Award shall govern. In the event of a conflict or
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of the SIP, the terms and conditions of the SIP shall govern.
(j) Notwithstanding any provisions herein to the contrary, to the extent
any Equity Award required hereunder is made on a post-employment basis (such
basis being with respect to Employee), the granting of such Equity Award, to the
extent required by applicable law, shall be contingent upon the recipient making
a valid representation that such recipient is an accredited investor under
Regulation D of the Securities Act of 1933, as amended.
(k) With respect to any Equity Awards issued to Employee pursuant to this
Agreement, to the extent the Company is eligible to file a Registration
Statement on Form S-8, the Company shall take all steps reasonably necessary to
maintain the effectiveness of the Company's current Registration Statements on
Form S-8.
4. Expenses.
The Company shall reimburse Employee for (or pay directly at Employee's
request) any and all fees, costs and other expenses incurred in connection with
the events leading to and the negotiation of this Agreement (and the termination
of the Current Employment Agreement as provided herein), the New Employment
Agreement, that certain Amendment No. 1 to the Stockholders' Agreement of even
date herewith by and among the Company, Employee and a stockholder of the
Company (the "Stockholders' Agreement Amendment") (which amends the
Stockholders' Agreement among the Company, Employee and certain stockholders of
the Company dated October 4, 1999), or that certain Patent Rights Agreement of
even date herewith between Employee and the Company (the "Patent Rights
Agreement") or any other agreement referred to herein or therein; provided,
however, that in no event shall the aggregate amount paid by the Company
pursuant to this Section 4, plus the amount paid pursuant to Section 4 of that
certain Termination Agreement between the Company and Xxxxx Ma Xxxxx, exceed
$1,000,000, it being understood that any amount not paid as a result of such
limitation shall be allocated between Employee and Xx. Xxxxx in proportion to
their respective requests for reimbursement.
5. Public Announcements and Press Releases.
Employee shall have the right to review and approve, such approval not
to be unreasonably withheld or delayed, any press release or other public
announcement made by the Company or any Subsidiary more or less
contemporaneously with the execution hereof and relating to the matters
addressed by this Agreement; provided, however, that the press release in the
form of Exhibit E attached to this Agreement is hereby approved for joint public
release by each of the parties to this Agreement.
6. Non-Disparagement.
8
(a) The Company will direct its directors and executive officers to not
publicly disparage, denigrate or ridicule Employee in respect of Employee's
integrity or business practices, performance, skills, acumen, experience or
success, or concerning Employee personally; provided, however, that nothing in
this Section 6(a) shall prohibit the Company or any director or executive
officer of the Company from disclosing such information as may be required by
law, or by judicial or administrative process or order or the rules of any
securities exchange or similar self-regulatory organization applicable to such
person. The Company shall only be responsible for, and bear any and all
liability, for, any breach of this Section 6(a) by any of its directors or
executive officers (other than Xxxxx Ma Xxxxx), if such breach is knowingly and
willfully committed by any such director or executive officer in connection with
such director's or executive officer's duties to the Company and involves a
material public disparagement of Employee.
(b) Employee will not publicly disparage, denigrate or ridicule the
Company or its directors or executive officers in respect of their integrity or
business practices, performance, skills, acumen, experience or success or
concerning any directors or executive officers personally; provided, however,
that nothing in this Section 6(b) shall prohibit Employee from disclosing such
information as may be required by law, or by judicial or administrative process
or order or the rules of any securities exchange or similar self-regulatory
organization applicable to such person. Employee shall only be responsible for,
and bear any and all liability, for, any breach of this Section 6(b) if such
breach is knowingly and willfully committed and involves a material public
disparagement of the Company or its directors or executive officers.
(c) Notwithstanding the foregoing, Employee shall not be entitled to
terminate, rescind, repudiate or seek judicial invalidation of this Agreement or
any other agreement with the Company as a remedy for any breach or alleged
breach of Section 6(a); provided, however, that, Employee shall be entitled to
the remedy specified in Section 4(f) of the New Employment Agreement.
7. Mutual Releases.
(a) Employee, on behalf of himself and his heirs, executors,
administrators, successors and assigns, hereby knowingly, voluntarily and
irrevocably releases and discharges the Company and each Subsidiary, and any and
all of their respective current and former officers, employees, agents,
directors, legal representatives, attorneys and any successor or assign or
predecessor of any of the foregoing, from any and all claims, charges, actions
or causes of action any of them may have against any such released person,
whether known or unknown, from the beginning of time through the Effective Date
based upon any matter, cause or thing whatsoever related to or arising out of
(1) Employee's employment with the Company, GDC or any other Subsidiary or any
predecessor entity prior to the Effective Date, (2) Employee's service as a
director of the Company, GDC or any other Subsidiary or any predecessor entity
through the Effective Date, (3) any such released person's service to the
Company, GDC or any other Subsidiary or any predecessor entity through the
Effective Date, (4) the termination of certain of Employee's positions with the
Company, GDC or any other Subsidiary or any predecessor entity as of or prior to
the Effective Date as contemplated by this Agreement, (5) the events leading to
the execution of, or the execution of, any of the Restructuring Agreements (as
such term is defined in the Umbrella Agreement (as defined below)), or (6)
except for
9
agreements and arrangements specified in the proviso to this sentence, any
agreement or arrangement between Employee and any of the Company, GDC or any
other Subsidiary or predecessor entity; provided, however, that this release
shall not limit in any way or constitute a waiver of any rights or claims
Employee may have (i) under this Agreement (or any Equity Award issued pursuant
hereto), (ii) under the New Employment Agreement (or any equity award issued
pursuant thereto), (iii) under the Stockholders' Agreement Amendment, (iv) under
the Patent Rights Agreement, (v) under that certain Umbrella Agreement of even
date herewith among Employee, Xxxxx Ma Xxxxx and The News Corporation Limited
(the "Umbrella Agreement"), (vi) under the Company's, GDC's or any other
Subsidiary's Certificate of Incorporation or Bylaws (or similar organizational
documents), as such exist as of the date hereof, (vii) under any applicable
insurance policy, (viii) for contribution as permitted by law in the event of
entry of judgment against Employee as a result of any act or failure to act for
which Employee and any other person are jointly liable, (ix) that arise from, or
that are based on, events that occur after the Effective Date, (x) under any
stock option, deferred compensation or other similar compensation plan, program,
agreement or arrangement, or (xi) under any pension, retirement or welfare
benefit plan, program, agreement or arrangement, all of which rights shall be
preserved.
(b) Except as set forth herein, the Company and GDC, on behalf of
themselves and each other Subsidiary, and any successor or assign of any of the
foregoing, hereby knowingly, voluntarily and irrevocably release and discharge
Employee, his family, estate, legal representatives, agents, attorneys, heirs,
executors, successors and assigns, and any entity controlled by Employee from
any and all claims, charges, actions or causes of action any of them may have
against any such released person, whether known or unknown, from the beginning
of time through the Effective Date based upon any matter, cause or thing
whatsoever related to or arising out of (1) Employee's employment with the
Company, GDC or any other Subsidiary or any predecessor entity prior to the
Effective Date, (2) Employee's service as a director of the Company, GDC or any
other Subsidiary or any predecessor entity through the Effective Date, (3) the
termination of certain of Employee's positions with the Company, GDC or any
other Subsidiary or any predecessor entity as of or prior to the Effective Date
as contemplated by this Agreement, (4) the events leading to the execution of,
or the execution of, any of the Restructuring Agreements, or (5) except for
agreements and arrangements specified in the proviso to this sentence, any
agreement or arrangement between Employee and any of the Company, GDC or any
other Subsidiary or predecessor entity; provided, however, that this release
shall not limit in any way or constitute a waiver of any rights or claims the
Company, GDC or any Subsidiary may have (i) under this Agreement (or any Equity
Award issued pursuant hereto), (ii) under the New Employment Agreement (or any
equity award issued pursuant thereto), (iii) under the Stockholders' Agreement
Amendment, (iv) under the Patent Rights Agreement, (v) under the Umbrella
Agreement, (vi) for contribution as permitted by law in the event of entry of
judgment against the Company, GDC or any other Subsidiary as a result of any act
or failure to act for which the Company or any such Subsidiary and any other
person are jointly liable, or (vii) that arise from, or that are based on,
events that occur after the Effective Date, all of which rights shall be
preserved. Nothing in this Agreement shall be construed to release or discharge
any rights or claims the Company has or may have against Employee arising under
the Xxxxxxxx-Xxxxx Act.
8. Waiver.
10
The parties expressly waive and relinquish all rights and benefits
afforded by Section 1542 of the Civil Code of the State of California with
respect to the releases provided herein, and do so understanding and
acknowledging the significance of such specific waiver of Section 1542. Section
1542 of the Civil Code of the State of California states as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Thus, notwithstanding the provisions of Section 1542, and for the purpose of
implementing the releases provided herein, the parties expressly acknowledge
that this Agreement is intended to include in its effect, without limitation
other than the express limitations set forth herein, all claims which either
party does not know or suspect to exist in such party's favor at the time of
execution hereof, and that this Agreement contemplates the extinguishment of any
such claims. The parties acknowledge and agree that the foregoing waiver of the
provisions of Section 1542 has been expressly bargained for by each of the
parties in the negotiation of this Agreement.
9. Covenant Not to Xxx.
Each party represents and covenants that such party has not filed any
complaints, charges or lawsuits, nor commenced any arbitration or similar
proceedings, against any other party with respect to any claim or potential
claim released hereunder, and covenants that such party will not do so at any
time hereafter, it being understood that this Section 9 shall not prohibit any
party from commencing appropriate proceedings for the purpose of enforcing any
claims not released hereunder. Nothing in this Agreement shall in any way be
construed as an admission by any party that it or any affiliated entity has
acted wrongfully or that any party in fact has any rights whatsoever against any
other party.
10. Indemnification.
(a) To the maximum extent permitted by applicable law, the Company and GDC
shall, and shall cause each other Subsidiary to, indemnify Employee, defend
Employee and hold Employee harmless from and against any and all:
(i) claims, liabilities, injuries, judgments, fines, interest, legal
expenses, penalties, costs and expenses (including, without limitation,
attorneys' fees, costs of investigation and experts, and court reporter fees),
settlements and other amounts incurred or suffered by Employee in connection
with or relating to the defense or resolution of any threatened, pending or
completed action, suit, proceeding or investigation (and in connection with any
appeal with respect thereto), whether civil or criminal, administrative or
investigative (including, without limitation, actions, suits, proceedings and
investigations brought by or in the name of the Company or related person or
entity or stockholder), or otherwise ("Expenses"), arising by reason of
Employee's status, action or inaction, including, without limitation, actual or
alleged errors or omissions, as an officer, director, employee, agent or
stockholder of the Company,
11
GDC, any other Subsidiary or any other affiliate of the Company prior to the
Effective Date, so long as (A) Employee's conduct was in good faith, (B)
Employee reasonably believed such conduct to be in or not opposed to the best
interests of the Company, and (C) Employee's conduct was not in violation of the
representations and warranties set forth in Section 15 below; or
(ii) legal expenses and costs (including, without limitation, attorneys'
fees, costs of investigation and experts and court reporter fees) and other
amounts incurred or suffered by Employee in connection with or relating to the
defense or resolution of any threatened, pending or completed action, suit,
proceeding or investigation (and in connection with any appeal with respect
thereto), whether civil or criminal, administrative or investigative (including,
without limitation, actions, suits, proceedings and investigations (a) brought
by or in the name of the Company or related person or entity or stockholder or
(b) pursuant to the Xxxxxxxx-Xxxxx Act), or otherwise, arising as a result of
the execution of this Agreement (or any equity award issued pursuant hereto) or
the execution of the New Employment Agreement (or any equity award issued
pursuant thereto), the Stockholders' Agreement Amendment and the Patent Rights
Agreement.
(b) To the maximum extent permitted by applicable law, the Company shall
promptly advance to Employee any and all expenses actually incurred by Employee
in defending any and all actions, suits, proceedings or investigations or in
preparing to defend any threatened action, suit, proceeding or investigation, in
each case for which Employee is indemnified by the Company pursuant to Section
10(a). The advances to be made hereunder shall be paid by the Company to
Employee within ten (10) days following delivery of a written request for
payment therefor by Employee to the Company. Employee shall have a right to
select attorneys to defend him in any actual or threatened action, suit,
proceeding or investigation, subject to the Company's approval, which shall not
be unreasonably withheld. Without limiting the generality of the foregoing, in
(i) the class action lawsuits pending against Employee, the Company and others
as of the Effective Date, (ii) any future stockholder lawsuits are brought
naming Employee as a defendant, and (iii) any investigation, inquiry or request
for information, formal or informal, by the Securities and Exchange Commission
or any other governmental entity or any self-regulatory organization, including
without limitation, NASD, the Company shall, to the extent (1) permitted by
applicable law and (2) Employee is indemnified by the Company pursuant to
Section 10(a), directly pay or cause a Subsidiary to pay (rather than advance to
Employee or reimburse Employee for) all expenses, including the fees and
expenses of separate counsel for Employee, regardless of whether counsel for the
Company or for any other party has agreed or offered to, or is in fact,
representing Employee in such lawsuit.
(c) [Reserved]
(d) The Company shall maintain a directors' and officers' liability
insurance policy (or policies) providing coverage until the later of (x) the
sixth anniversary of the date on which Employee ceases to be a director or
employee of the Company and (y) the date on which all claims against Employee
that would otherwise be covered by such policy (or policies) become fully
time-barred, providing coverage to Employee that is no less favorable to him in
any respect (including, without limitation, with respect to scope, exclusions,
amounts, and deductibles) than
12
the coverage then being provided to any other present or former senior executive
or director of the Company.
(e) The indemnification, defense and hold harmless provided pursuant to
this Section 10 shall continue even after Employee has ceased to be an officer,
director, employee, agent or stockholder of the Company, and the rights and
benefits thereof shall inure to the benefit of Employee's heirs, executors and
administrators. Employee shall not be responsible for reimbursement of any
expenses paid, reimbursed or advanced pursuant to this Section 10 except to the
extent required by applicable law.
(f) The parties acknowledge that, in addition to the rights provided in
this Section 10, Employee has certain indemnification, defense and hold harmless
rights as well as certain rights to be reimbursed for, or have the Company or a
Subsidiary advance or pay, certain costs and expenses under other agreements and
instruments, including, without limitation, the Certificates of Incorporation
and Bylaws (or similar organizational documents) of the Company and certain of
its Subsidiaries, the New Employment Agreement, the Stockholders' Agreement
Amendment and the Patent Rights Agreement. Such rights are intended to be
cumulative and the existence of any such right shall not limit or restrict in
any way any other such right, and Employee shall have the right to pursue his
rights of indemnification, defense, and hold harmless or seek reimbursement for,
or advances or payment of, costs and expenses under any or all of such
agreements and instruments and shall be entitled to the maximum benefits
provided under such agreements and instruments.
(g) Notwithstanding any other provision, this Section 10 shall not apply
to disputes between Employee and the Company with respect to any alleged breach
of, or seeking an interpretation of, or a determination of the rights or
obligations of either party under, this Agreement, the New Employment Agreement,
the Patent Rights Agreement or the Umbrella Agreement, which shall be resolved
(i) as provided in Section 13 in the case of this Agreement and (ii) by the
terms of such agreement, in the case of the New Employment Agreement, the Patent
Rights Agreement and the Umbrella Agreement.
11. Wire Transfers; No Offset.
All payments to be made to Employee hereunder shall be made by wire
transfer in accordance with such wire transfer instructions as Employee may
provide to the Company (or if Employee has not provided wire transfer
instructions to the Company prior to the date any payment is due, by corporate
check). The Company may not make any offset against amounts due to Employee
under this Agreement, on account of any claim the Company may have against him.
12. Inventions and Patents.
(a) As used in this Section 12, the following terms have the meanings
indicated:
(i) "Assigned Intellectual Property" means, collectively, all
Developed Inventions and all Developed Intellectual Property other than Employee
Intellectual Property.
13
(ii) "Developed Inventions" means all inventions (whether or not
patentable) and all embodiments of such inventions, developments, concepts,
know-how, technology, ideas, methods, techniques, products or processes, which
Employee solely or jointly made, conceived of or reduced to practice (as those
terms have been interpreted by the Federal Courts in connection with the Patent
Act (35 U.S.C. Sections 101 et. seq.)) prior to the Effective Date and any works
of authorship that Employee authored prior to the Effective Date.
(iii) "Developed Intellectual Property" means (x) all patents or
patent applications or other proprietary rights arising from any Developed
Inventions, (y) any other proprietary or intellectual property rights with
respect to which Employee is an inventor, creator or author prior to the
Effective Date, and (z) all other proprietary or intellectual property rights
owned or controlled as of the Effective Date by Employee directly or indirectly
through an entity owned or controlled by Employee.
(iv) "Employee Intellectual Property" means, collectively, the
Developed Inventions and the Developed Intellectual Property that Employee (x)
specifically identifies by patent number, patent application serial number or
other information sufficient to uniquely identify the intellectual property
right on Schedule B hereto or (y) can establish does not relate in whole or in
part to the Restricted Fields or other aspects of the Company's business as
conducted prior to or as of the Effective Date.
(v) "Restricted Fields" means the fields of Interactive Television
or Interactive Program Guides (as such terms are defined in the Patent Rights
Agreement).
(b) The Company and Employee agree that the U.S. and foreign patents,
patent applications, and invention disclosures listed on Schedule A hereto are
Assigned Intellectual Property. All Assigned Intellectual Property shall belong
exclusively to the Company, and, to the extent not previously conveyed and
assigned to the Company, Employee agrees to assign, and hereby conveys and
assigns to the Company all of Employee's right, title and interest in and to all
Assigned Intellectual Property, together with the right to xxx for past
infringement or misappropriation thereof, including, without limitation, all of
Employee's right, title and interest in and to the U.S. and foreign patents,
patent applications, and invention disclosures listed in Schedule A attached
hereto. The Company shall have the exclusive right to direct and control all
future prosecution of any patent or other applications or registrations,
domestic and foreign, for protection of any and all Assigned Intellectual
Property, including that which is not the subject of an application or
registration for intellectual property protection as of the Effective Date.
(c) Employee believes that the Developed Inventions and the Developed
Intellectual Property listed in Schedule B attached hereto are Employee
Intellectual Property. Schedule B shall be supplemented from time to time with
such additional Developed Inventions and such additional Developed Intellectual
Property as may be identified by Employee from time to time which Employee is
able to establish do not relate in whole or in part to the Restricted Fields.
Nothing in this Agreement shall be construed as acknowledgment or acquiescence
by the Company that any Developed Inventions and Developed Intellectual Property
identified in Schedule B are Employee Intellectual Property. Schedule B is not
binding on the Company and the Company shall have the right to challenge the
inclusion of any Developed Inventions or any
14
Developed Intellectual Property listed therein. Any disputes relating to the
contents of Schedule B shall be resolved in accordance with the dispute
resolution procedures of Section 14.
(d) As soon as practicable after the Effective Date and in any event
within thirty days following the Effective Date, Employee shall identify and
disclose to the Company any Developed Inventions and any Developed Intellectual
Property that have not previously been disclosed to the Company, such written
disclosure to be in as much detail as is reasonably necessary to identify such
Developed Inventions and Developed Intellectual Property. All such disclosures
shall be made solely on a "need to know" basis to such legal and other
professional advisors reasonably identified by the Company as may be necessary
to determine the proper allocation of Developed Inventions and the Developed
Intellectual Property between Assigned Intellectual Property and Employee
Intellectual Property, provided such legal and other professional advisors
reasonably identified by the Company have first executed a nondisclosure
agreement reasonably acceptable to Employee. Employee shall continue to be
obligated to disclose to the Company any Developed Inventions and any Developed
Intellectual Property even after the expiration of such thirty day period, such
follow-up disclosures being provided to the Company as promptly as reasonably
possible upon such information being available to Employee. The disclosure to
the Company of Developed Inventions and Developed Intellectual Property pursuant
to the this Section 12(d) shall be for the sole and exclusive purpose of
determining the Company's rights therein, if any, pursuant to this Agreement,
and the Company shall not use any such disclosure for any other purpose
whatsoever.
(e) Employee shall consult with the Company as reasonably necessary to
confirm that all Developed Inventions are disclosed to the Company in sufficient
detail to enable one of ordinary skill in the art to practice any inventions,
developments, concepts, know-how, technology, ideas, methods, techniques,
products or processes contained therein. From and after the Effective Date,
Employee shall (i) take all actions reasonably requested by the Company and make
all further assurances reasonably warranted to confirm that the Company is the
exclusive owner of all Assigned Intellectual Property, all at the Company's sole
cost and expense, and (ii) shall provide all reasonable assistance in obtaining,
perfecting or enforcing the Assigned Intellectual Property or any legal rights
in and to the same in any administrative agency or court, domestic or foreign
including, but not limited to, reviewing and signing all lawful declarations,
oaths, affidavits and other documents in connection with any of the foregoing,
all at the Company's sole cost and expense.
(f) Employee acknowledges hereby receipt of written notice from the
Company pursuant to California Labor Code Section 2872 that this Agreement (to
the extent it requires an assignment or offer to assign rights to any invention
of Employee) does not apply to an Developed Intellectual Property that qualifies
fully under California Labor Code Section 2870.
(g) Employee represents and warrants that (i) except for the disclosures
to be made as provided in Section 12(d), (x) there are no U.S. or foreign
patents, patent applications or invention disclosures included in the Developed
Intellectual Property and related to the business of the Company that have not
been disclosed to the Company, and (y) to Employee's knowledge, there are no
Developed Inventions or other Developed Intellectual Property material to the
business of the Company that have not been disclosed to the Company, (ii) he has
not previously conveyed any rights in the Assigned Intellectual Property to any
third party, including any
15
ownership rights or rights to use the Assigned Intellectual Property, (iii)
there are no agreements to which he or his property are bound that are
inconsistent with this Agreement or that would limit his ability to assign the
Assigned Intellectual Property to the Company free and clear of any liens or
encumbrances of any kind, (iv) the Assigned Intellectual Property is free and
clear of any liens or encumbrances (other than liens created by the Company and
its subsidiaries) and (v) except as set forth in Schedule A or Schedule B, all
U.S. and foreign patents, patent applications and invention disclosures included
in the Developed Inventions and Developed Intellectual Property have been
previously assigned to the Company.
13. Resolutions of Disputes.
In the event of any dispute, controversy, claim or disagreement
between Employee and the Company with respect to any alleged breach of this
Agreement, the interpretation of this Agreement, or the rights or obligations of
either party under this Agreement, the parties shall consult and negotiate with
each other in good faith and, recognizing their mutual interests, attempt to
reach a solution satisfactory to both parties. If they do not resolve the
dispute, controversy, claim or disagreement within a period of 30 days, or such
longer period as they may mutually agree, then such dispute, controversy, claim
or disagreement shall be resolved pursuant to confidential binding arbitration
in New York, New York by a panel of three neutral arbitrators. The arbitration
shall be conducted in accordance with the Commercial Rules of the American
Arbitration Association then in effect. Within 15 days after the initiation of
arbitration, the parties shall select three neutral arbitrators, all of whom
shall be members of a state bar actively engaged in the practice of law for at
least 10 years. Either party may seek interim or preliminary relief from the
arbitrators until an arbitration award is rendered or the controversy is
otherwise resolved. Either party also may, prior to the establishment of the
arbitral tribunal, and without waiving any remedy under this Agreement, seek
interim or provisional relief that is necessary to protect the rights or
property of that party. The arbitration award shall be made as promptly as
practicable and in any event within nine months of the filing of the notice of
intention to arbitrate, and the arbitrators shall agree to comply with this
schedule before accepting appointment; provided, however, that this time limit
may be extended by agreement of the parties or by the arbitrators if necessary.
The award of the arbitrators shall be in writing, shall be signed by a majority
of the arbitrators, and shall include findings of fact and the reasons for the
disposition of each claim. In the award, the arbitrators shall allocate all of
the costs of the arbitration, including the fees of the arbitrators and the
reasonable attorneys' fees of the prevailing party, against the non-prevailing
party. This Section 13 shall not be construed to limit either party's right to
obtain equitable relief with respect to any dispute and, pending a final
arbitration by the arbitrators with respect to any such disputes, either party
shall be entitled to obtain any such relief by direct application to state,
federal or other applicable court, without being required to first arbitrate
such dispute. Except as may be required by law, or by judicial or administrative
process or order or the rules of any securities exchange or similar
self-regulatory organization applicable to the party or arbitrator, neither the
parties nor the arbitrators may disclose the existence, content or results of
any arbitration hereunder without the prior written consent of all of the
parties. Judgment on the award may be entered in any court having jurisdiction
thereof. In connection with any dispute as to whether any Developed Invention or
any Developed Intellectual Property is Employee Intellectual Property or
Assigned Intellectual Property, as such terms are defined in Section 12,
discovery shall be on an expedited basis, the
16
decision of the arbitration panel shall be final and there shall be no right of
appeal or right to petition to vacate such award.
14. [Reserved]
15. Employee Representation and Warranties.
Employee represents and warrants that:
(a) Since January 1, 2002, to the best of Employee's knowledge and
belief and except as set forth in Exhibit 1 attached hereto:
(i) each material form, report and document filed by the
Company with the Securities and Exchange Commission (the "SEC") (together with
the amendments and supplements to such filings filed prior to the date of this
Agreement, the "Company SEC Documents"), as of its filing date (or if amended,
as of the date of its last amendment) complied as to form in all material
respects with the applicable requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as the case may be;
(ii) no Company SEC Document filed pursuant to the Securities
Act, as of the date such document or amendment became effective (or if amended
or supplemented, as of the date of its last amendment or supplement), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(iii) no Company SEC Document filed pursuant to the Exchange
Act, as of its filing date (or if amended, as of the date of its last
amendment), contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading;
and
(iv) each of the consolidated balance sheets and consolidated
financial statements (including the notes thereto) included in the Company SEC
Documents (collectively, the "Company Financial Statements"): (A) presented
fairly, in all material respects, the financial position of the Company as of
the respective dates thereof; (B) presented fairly, in all material respects,
the results of operations and cash flows of the Company for the respective
periods set forth therein; (C) complied in all material respects with the then
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto; and (D) were prepared in conformity with
accounting principles generally accepted in the United States applied on a
consistent basis during the periods or as of the respective dates involved
(except as otherwise noted therein and subject, in the case of unaudited interim
financial statements, to normal year-end adjustments).
In making the foregoing representations and warranties, Employee has
also relied, in part, to the extent reasonable, upon information provided to
Employee by other directors,
17
officers, employees, and agents of the Company and advice provided by attorneys
and other professional advisors to the Company.
(b) To the best of Employee's knowledge and belief, the information
that Employee provided to the Company's Audit Committee and to the Company's
Board of Directors in connection with the Audit Committee's investigation of the
accounting treatment of the matters set forth and designated in Exhibit 1 as
being subject to the Audit committee's investigation was true, complete and
accurate in all material respects.
(c) Employee has not knowingly violated or participated in, or
consented to, any violation of, or directed any employee or agent of the Company
to violate or participate in, any violation of any law, governmental regulation,
stock exchange requirement, accounting standard (except, in the case of any
accounting standard, to the extent of the qualifications to Employee's
representations and warranties in subsection (a) above) or Company policy, the
violation of which could reasonably be expected to have a material adverse
effect upon the Company.
(d) Since April 1, 2002, Employee has not received any grant of
options from the SIP, or any other arrangement, to purchase Common Shares, other
than pursuant to this Agreement or the New Employment Agreement.
16. Miscellaneous.
(a) Notices.
Any notice or other communication provided for in this Agreement shall
be in writing and sent, if to the Company or to GDC, to its office at:
Gemstar - TV Guide International, Inc.
Suite 800
000 Xxxxx Xxx Xxxxxx Xxx.
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
or at such other address as the Company may from time to time in writing
designate, and, if to Employee, at such address as Employee may from time to
time in writing designate (or Employee's business address of record in the
absence of such designation). Each such notice or other communication shall be
effective (i) if given by telecommunication, when transmitted to the applicable
number so specified in (or pursuant to) this Section and an appropriate
answerback is received, (ii) if given by mail, three days after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when actually
delivered at such address.
(b) Entire Agreement; Amendments.
This Agreement, the Stockholders' Agreement Amendment, the Patent
Rights Agreement, the Umbrella Agreement, the New Employment Agreement, and the
other
18
agreements referred to herein and therein or entered into in connection
therewith contain the entire agreement of the parties relating to the subject
matter hereof and thereof and supersede any prior agreements, undertakings,
commitments and practices relating to Employee's employment (or termination
thereof) by the Company, GDC or any Subsidiary or any of their respective
affiliates except for any and all other agreements necessary to give effect to
the provisions of this Agreement, including, without limitation, stock option
agreements, life insurance agreements, and agreements relating to Additional
Benefits (as such term is defined in the New Employment Agreement). No amendment
or modification of the terms of this Agreement shall be valid unless made in
writing and signed by Employee and, on behalf of the Company and GDC, by senior
executive officers of the Company and GDC after approval thereof by the
respective Board of Directors of the Company and GDC.
(c) Waiver.
No failure on the part of any party to exercise or delay in exercising
any right hereunder shall be deemed a waiver thereof or of any other right, nor
shall any single or partial exercise preclude any further or other exercise of
such right or any other right.
(d) Choice of Law.
This Agreement, the legal relations between the parties and any
action, whether contractual or non-contractual, instituted by any party with
respect to matters arising under or growing out of or in connection with or in
respect of this Agreement, the relationship of the parties or the subject matter
hereof shall be governed by and construed in accordance with the laws of the
State of California applicable to contracts made and performed in such State and
without regard to conflicts of law doctrines.
(e) Severability.
If any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and
effect, and if any provision is held invalid or unenforceable with respect to
particular circumstances, it shall nevertheless remain in full force and effect
in all other circumstances, to the fullest extent permitted by law.
(f) Section Headings.
Section and other headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Counterparts.
This Agreement and any amendment hereto may be executed in several
counterparts. All of such counterparts shall constitute one and the same
agreement and shall become effective when a copy signed by each party has been
delivered to the other party.
(h) Successors and Assigns.
19
No rights or obligations of any party under this Agreement may be
assigned or transferred by any party without the prior written consent of the
other parties hereto; provided, however, that the Company or GDC may assign or
transfer their rights and obligations hereunder in whole, but not in part,
pursuant to a merger or consolidation in which the Company or GDC, as the case
may be, is not the continuing entity, or a sale, liquidation or other
disposition of all or substantially all of the business and assets of the
Company or GDC, as the case may be, provided that the assignee or transferee is
the successor to all or substantially all of the business and assets of the
Company or GDC and assumes the liabilities, obligations and duties of the
Company or GDC, as the case may be, under this Agreement, either contractually
or as a matter of law. In the event of any disposition of its business and
assets described in the preceding sentence, the Company or GDC shall take
whatever action it can in order to cause such assignee or transferee expressly
to assume the liabilities, obligations and duties of the selling party
hereunder. To the extent applicable, this Agreement shall be binding upon, and
inure to the benefit of, the successors and assigns, beneficiaries, devisees,
heirs, next of kin, executors and administrators of Employee. In the event of
Employee's death or a judicial determination of his incompetence, references in
this Agreement to Employee shall be deemed to refer, where appropriate, to his
legal representative, or, where appropriate, to his beneficiary or
beneficiaries.
(i) Facsimile Signatures.
This Agreement may be executed by delivery of a facsimile copy of an
executed signature page with the same force and effect as the delivery of an
originally executed signature page. In the event any party delivers a facsimile
copy of a signature page to any document or agreement, such party shall deliver
an originally executed signature page within three (3) business days of
delivering such facsimile signature page or at any time thereafter upon request;
provided, however, that the failure to deliver any such originally executed
signature page shall not affect the validity of the signature page delivered by
facsimile, which has and shall continue to have the same force and effect as the
originally executed signature page.
[The remainder of this page has been intentionally left blank - Signature page
follows]
20
[SIGNATURE PAGE TO TERMINATION AGREEMENT]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
GEMSTAR-TV GUIDE INTERNATIONAL, INC. EMPLOYEE
By: /s/ Xxxx Xxxxx /s/ Xxxxx X. Xxxx
--------------------------- ---------------------
Xxxx Xxxxx, Co-President XXXXX X. XXXX
GEMSTAR DEVELOPMENT CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Xxxxxxxx X. Xxxxxx
Executive Vice President
21
Exhibit A
DRAFT AMENDMENT TO THE 1994 STOCK INCENTIVE PLAN
Delete the last sentence of Section 1.9 and replace with:
Except to the extent required by Sections 1.10 and 4.4 or by the
Committee in the Award Agreement, the restrictions set forth herein shall not
apply to (i) shares of Common Stock actually issued on exercise of any Options,
(ii) shares of Common Stock actually issued as payment for Stock Units or DERs,
or (iii) Restricted Stock awards that have vested and otherwise satisfied the
conditions that may be imposed by the Committee pursuant to Section 3.3.
Delete the last sentence of Section 3.2 and replace with:
DERs shall be payable in cash, shares of Common Stock or other Awards
and (to the extent permitted by law) may be subject to such conditions, not
inconsistent with Section 162(m) of the Code (in the case of Options or other
Awards intended to satisfy its conditions with respect to deductibility), as may
be determined by the Committee.
Add new Section 3.3:
3.3 Restricted Stock Awards.
Restricted Stock represents awards made in Common Stock in
which the shares granted may not be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated, except upon passage of time, or upon
satisfaction of other conditions, or both, in every case as provided by the
Committee in its sole discretion (including, without limitation, Awards that may
vest immediately). The Committee, in its sole discretion, shall determine the
specific terms, conditions and provisions relating to each grant of Restricted
Stock (including, without limitation, the extent to which the recipient of the
Restricted Stock Award may have dividend and/or voting rights with respect to
the shares subject to the Award prior to the time such shares become vested) as
set forth in duly adopted rules or specific Award Agreements.
Delete the last sentence of Section 4.7 and replace with:
Except as otherwise expressly authorized by the Committee or this
Plan, no adjustment will be made for dividends or other shareholder rights for
which a record date is prior to such date of delivery.
Delete Section 5.1(a) and replace with:
(a) "Award" shall mean an award of any Option, Stock Unit,
Restricted Stock award, or DER, or any combination thereof, whether alternative,
sequential, or cumulative, authorized or granted under this Plan.
Add Section 5.1(gg):
(gg) "Restricted Stock" means an award of Common Stock, the vesting
of which is subject to vesting or other conditions pursuant to Section 3.3.
***********************************************
Exhibit B
GEMSTAR-TV GUIDE INTERNATIONAL, INC.
TERMINATION RESTRICTED STOCK AGREEMENT
THIS AGREEMENT dated as of ________, ____ between Gemstar-TV Guide
International, Inc., a Delaware corporation (the "Company"), and Xxxxx X. Xxxx
("Employee").
W I T N E S S E T H
WHEREAS, pursuant to the Gemstar-TV Guide International, Inc. 1994 Stock
Incentive Plan, as amended (the "SIP"), the Company has granted to Employee
effective as of the date hereof (i) five million two hundred seventy four
thousand five hundred nineteen (5,274,519) shares of restricted stock under the
SIP and (ii) the right to receive dividends on such restricted stock, if, when
and as dividends are paid on the shares of Common Stock generally, in each case,
upon and subject to the terms and conditions set forth herein and in the SIP.
NOW, THEREFORE, in consideration of the mutual promises and covenants made
herein and the mutual benefits to be derived herefrom, the parties agree as
follows:
1. Defined Terms. Capitalized terms shall have the meaning assigned
to them herein. Where capitalized terms are not defined herein they shall have
the meaning assigned to them in the SIP.
For purposes of this Agreement:
"Breach Event" shall have the meaning assigned to it under the Termination
Agreement.
"Breach Cure Period" shall have the meaning assigned to it under the Termination
Agreement.
"Effective Date" shall have the meaning assigned to it under the New Employment
Agreement.
"For Cause Determination Period" shall have the meaning assigned to it under the
New Employment Agreement.
"New Employment Agreement" shall mean the employment agreement between the
Company and Employee dated as of _________, 2002.
"Termination Agreement" shall mean the termination agreement between the
Company, Employee and Gemstar Development Corporation, a California corporation,
dated as of _______, 2002.
2. Grant of Restricted Stock. Effective as of the date hereof, the
Company hereby grants to Employee, subject to the vesting provisions and
restrictions set forth below, five million two hundred seventy four thousand
five hundred nineteen (5,274,519) shares of restricted stock (the "Grant
Shares") under the SIP.
1
On behalf of himself and on behalf of his beneficiaries, estate and permitted
assigns, Employee agrees:
(i) to the terms, provisions and restrictions provided by this
Agreement on any Restricted Property (as defined below) received with respect to
the Grant Shares; and
(ii) that Employee (or his beneficiaries, estate and permitted
assigns) will not vote (nor assign, pledge or transfer the right to vote to any
other party in any manner) with respect to the Grant Shares until such Grant
Shares are vested.
Employee shall have the right to receive ordinary cash dividends (if, when and
as ordinary cash dividends are paid on shares of Common Stock generally) with
respect to any unforfeited Grant Shares held under this Agreement.
Employee shall have the right to receive any securities or other property (if,
when and as such securities or properties are paid on shares of Common Stock
generally) as a result of any dividend or other distribution (other than
ordinary cash dividends), conversion or exchange with respect to any unforfeited
Grant Shares held under this Agreement (such securities or other property shall
be referred to herein as "Restricted Property"); provided, however, that such
Restricted Property received with respect to such Grant Shares shall be subject
to the terms and conditions of this Agreement. To the extent Restricted Property
is received with respect of the Grant Shares, the Restricted Property will be
subject to the restrictions set forth in this Agreement to the same extent as
the Grant Shares to which such securities or other property relate and shall be
held and accumulated for the benefit of Employee, but subject to such risks
(including, but not limited to, the risk of forfeiture).
The Company shall issue a certificate or certificates for the Grant Shares,
registered in the name of Employee, which certificate(s) shall be held by the
Company until such Grant Shares shall have become vested or forfeited in
accordance with this Agreement. The certificate(s) representing Grant Shares
forfeited in accordance with this Agreement and any shares accumulated thereon
and any other cash, rights or property (including Restricted Property)
accumulated in respect thereof shall, upon such forfeiture, automatically revert
to the Company. The certificate(s) representing Grant Shares (before such shares
shall have become vested) shall bear the following legends and/or any other
appropriate or required legends under applicable laws:
"OWNERSHIP OF THIS CERTIFICATE AND THE SHARES EVIDENCED BY THIS CERTIFICATE AND
ANY INTEREST THEREIN ARE SUBJECT TO SUBSTANTIAL RESTRICTIONS ON TRANSFER UNDER
APPLICABLE LAW AND UNDER AN AGREEMENT WITH THE CORPORATION, INCLUDING
RESTRICTIONS ON SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION, A COPY
OF WHICH IS AVAILABLE FOR REVIEW AT THE OFFICE OF THE SECRETARY OF THE
CORPORATION."
To the extent that a certificate evidencing the Grant Shares or any related
Restricted Property is delivered to Employee prior to the vesting of such Grant
Shares, Employee shall promptly redeliver such certificate(s) to the Company to
be held by the Company pursuant to the terms hereof. Upon the occurrence of any
forfeiture of Grant Shares (including any related Restricted Property), such
forfeited Grant Shares (and related Restricted Property) shall be automatically
transferred to the
2
Company, without any other action by Employee, or Employee's Personal
Representative or Beneficiary, as the case may be. The Company may take any
other action necessary or advisable to evidence such transfer. Employee, or
Employee's Personal Representative or Beneficiary, as the case may be, shall
deliver any additional documents of transfer that the Company may reasonably
request to confirm such transfer. Without limiting the generality of the
foregoing, Employee, by execution of this Agreement, shall be deemed to appoint
the Company and each of its authorized representatives as Employee's
attorney(s)-in-fact to effect any such transfer of unvested Grant Shares (and
any related Restricted Property) and to execute such documents as the Company or
such representatives deem necessary or advisable in connection with any such
transfer.
Promptly after the vesting of the Grant Shares in accordance with the terms
hereof, a certificate or certificates evidencing the number of Grant Shares that
have vested shall be delivered to Employee (or, in the event of his death or
disability, Employee's Personal Representative or Beneficiary). Employee or such
other person shall deliver to the Company any representations or other documents
or assurances required pursuant to Section 4.4 of the SIP.
Employee shall not sell, transfer, pledge, assign or otherwise alienate or
hypothecate the Grant Shares or any Restricted Property in respect thereof until
such Grant Shares are vested. Any sale or transfer, or purported sale or
transfer, shall be null and void.
In the event that the Company determines that the Company (or any affiliate or
subsidiary of Company) is required to withhold any tax as a result of the
issuance, vesting, payment or disposition of any Grant Shares, the tax
withholding obligation shall be satisfied in accordance with the provisions and
terms of Section 4.5 of the SIP.
3. Vesting of Grant Shares. The Grant Shares shall vest as follows:
(i) one million seven hundred fifty eight thousand one hundred seventy three
(1,758,173) Grant Shares shall vest on the first anniversary of the Effective
Date,
(ii) one million seven hundred fifty eight thousand one hundred seventy three
(1,758,173) Grant Shares shall vest on the second anniversary of the Effective
Date, and
(iii) one million seven hundred fifty eight thousand one hundred seventy three
(1,758,173) Grant Shares shall vest on the third anniversary of the Effective
Date;
provided, however, that no Grant Shares shall vest after any (i)
termination of Employee's employment pursuant to Section 4(c) or Section 4(g) of
the New Employment Agreement, or (ii) occurrence of any Breach Event which (if
capable of cure) has not (together with all effects thereof) been fully cured by
Employee within the Breach Cure Period;
provided, further, that no Grant Shares shall vest during any Breach
Cure Period (but if all Breach Events are cured during the corresponding Breach
Cure Periods, any unvested Grant Shares scheduled to vest during such Breach
Cure Periods shall be deemed to have vested as of the scheduled vesting date);
provided, further, no Grant Shares shall vest during any For Cause
Determination Period (but, in the event that the Company Board determines no
termination for Cause has occurred or
3
Employee is successful in challenging any purported termination under Section
4(c) of the New Employment Agreement, any Grant Shares scheduled to vest during
such For Cause Determination Period shall be deemed to have vested as of the
scheduled vesting date); and
provided, further, and subject to the foregoing paragraphs, that if
Employee's employment under the New Employment Agreement terminates as provided
in Sections 4(a), 4(b), 4(d) or 4(f) of the New Employment Agreement, the Grant
Shares shall be vested at such termination provided Employee (or, if deceased,
his estate's legal representative) signs a general release of claims in a form
provided by the Company which shall be substantially similar to Exhibit D of the
Termination Agreement.
4. Continuance of Employment Required; No Employment Commitment. The
vesting schedule requires continued service through each applicable vesting date
as a condition to the vesting of the applicable installment of the Grant Shares
and the rights and benefits under this Agreement. Service for less than the full
portion of any vesting period, even if substantial, will not entitle Employee to
any proportionate vesting or avoid or mitigate a termination of rights and
benefits upon or following a termination of employment or services as provided
herein or under the SIP.
Nothing contained in this Agreement or the SIP constitutes an employment
commitment by the Company, affects the termination provisions of Section 4 of
the New Employment Agreement, confers upon Employee any right to remain employed
by the Company or any Subsidiary, interferes in any way with the right of the
Company or any Subsidiary at any time to terminate Employee's employment, or
affects the right of the Company or any Subsidiary to increase or decrease
Employee's other compensation.
5. Forfeiture.
All Grant Shares then unvested shall be automatically terminated and forfeited
upon any (i) termination of Employee's employment pursuant to Section 4(c) or
Section 4(g) of the New Employment Agreement, or (ii) occurrence of any Breach
Event which (if capable of cure) has not (together with all effects thereof)
been fully cured by Employee within the Breach Cure Period. Notwithstanding
anything herein to the contrary, in the event that Employee is successful in
challenging any purported termination under Section 4(c) of the New Employment
Agreement, any unvested Grant Shares that terminated due to such purported
termination shall be deemed reinstated and vested upon the conclusion of such
successful challenge.
6. Change in Control Event. All Grant Shares shall be subject to
immediate vesting upon the occurrence of:
(i) a Change in Control Event (as defined below); and
(ii) the Company has not provided for either (A) the cash-out of such Grant
Shares at their then fair market value, or (B) the continuation of such Grant
Shares in an economically equivalent amount (e.g. replacement shares of
restricted stock, options or stock units, based on a successor company's stock,
provided that such replacement award will have substantially similar terms and
conditions as the Grant Shares immediately prior to the Change in Control
Event).
4
The term "Change in Control Event" shall have the meaning assigned to such term
under SIP Section 5; provided, however, that the measurement period for
determining a "Change in Control Event" under SIP Section 5.1(f)(5) shall not
include the one-year period after the Effective Date and such measurement period
shall only commence upon the first anniversary of the Effective Date.
7. Termination of Grant Shares Under Certain Events. As contemplated
by Section 4.2 of the SIP, the Grant Shares may be terminated in certain
circumstances, as described therein.
8. Non-Transferability of Grant Shares. Unvested Grant Shares and
any other rights of Employee under this Agreement or the SIP are nontransferable
and subject to extensive restrictions under Section 1.9 of the SIP and as set
forth herein. The Grant Shares are also subject to restrictions on transfer
under Section 1.10 of the SIP and to any and all repurchase or redemption rights
of the Company that may be provided under its Certificate of Incorporation and
Bylaws, as amended from time to time.
9. Notices. Any notice to be given under the terms of this Agreement
shall be in writing and addressed to the Company at its principal office and to
Employee at the addresses given beneath their respective signatures hereon, or
at such other address as either party may hereafter designate in writing to the
other. Any such notice shall be deemed given only when received, but if Employee
is no longer an Eligible Person, any notice to Employee shall be deemed to have
been duly given when enclosed in a properly sealed envelope addressed as
aforesaid, registered or certified, and deposited (postage and registry or
certification fee prepaid) in a post office or branch post office regularly
maintained by the United States Government.
10. Plan. The Grant Shares and all rights of Employee thereunder are
subject to, and Employee agrees to be bound by, all of the terms and conditions
of the provisions of the SIP, incorporated herein by this reference. In the
event of a conflict or inconsistency between the terms and conditions of this
Agreement, and the terms and conditions of the SIP, the terms and conditions of
the SIP shall govern except as expressly set forth herein. In the event of a
conflict or inconsistency between the terms and conditions of this Agreement,
and the terms and conditions of the Termination Agreement, the terms and
conditions of this Agreement shall govern. Employee acknowledges receipt of a
copy of the SIP, which is made a part hereof by this reference, and agrees to be
bound by the terms thereof. Unless otherwise expressly provided in other
Sections of this Agreement, provisions of the SIP that confer discretionary
authority on the Committee do not (and shall not be deemed to) create any rights
in Employee, unless such rights are expressly set forth herein or are otherwise
in the sole discretion of the Committee so conferred by appropriate action of
the Committee under the SIP after the date hereof.
11. Entire Agreement. This Agreement, the New Employment Agreement,
the Termination Agreement and the SIP together constitute the entire agreement
and supersede all prior understandings and agreements, written or oral, of the
parties hereto with respect to the subject matter hereof. The SIP and this
Agreement may be amended pursuant to Section 4.6 of the SIP. Such amendment must
be in writing and signed by the Company. The Company may, however, unilaterally
waive any provision hereof in writing to the extent such waiver does not
adversely affect the interests of Employee, but no such waiver shall operate as
or be construed to be a subsequent waiver of the same provision or a waiver of
any other provision hereof.
5
12. Severability. If a court of competent jurisdiction determines
that any portion of this Agreement is in violation of any statute or public
policy, then only the portions of this Agreement which violate such statute or
public policy shall be stricken, and all portions of this Agreement which do not
violate any statute or public policy shall continue in full force and effect.
Further, it is the parties' intent that any court order striking any portion of
this Agreement should modify the terms as narrowly as possible to give as much
effect as possible to the intentions of the parties' under this Agreement.
13. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of California.
14. No Restriction on Corporate Powers. The existence of the SIP
and/or the Grant Shares shall not affect or restrict in any way the right or
power of the Board or the stockholders of the Company to make or authorize any
adjustment, recapitalization, reorganization or other change in the Company's
capital structure or its business, any merger or consolidation of the Company,
any issue of bonds, debentures, preferred or prior preference stocks ahead of or
affecting the Company's capital stock or the rights thereof, the dissolution or
liquidation of the Company or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding.
15. Further Assurances. Each of the parties hereto shall use its
reasonable and diligent best efforts to proceed promptly with the transactions
contemplated herein, to fulfill the conditions precedent for such party's
benefit or to cause the same to be fulfilled and to execute such further
documents and other papers and perform such further acts as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated herein.
6
16. Execution. The grant of Grant Shares hereunder shall be rendered
ineffective if Employee and spouse fail to execute this Agreement (with Consent
of Spouse) and return the executed Agreement (with Consent of Spouse) to the
Company within 30 days of the date hereof.
17. Counterparts. This Agreement and any amendment hereto may be
executed in several counterparts. All of such counterparts shall constitute one
and the same agreement and shall become effective when a copy signed by each
party has been delivered to the other party.
[Remainder of page intentionally left blank.]
7
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by a duly authorized officer and Employee has hereunto
set his or her hand.
GEMSTAR-TV GUIDE INTERNATIONAL, INC.
By:
-------------------------------------
Title:
----------------------------------
EMPLOYEE
----------------------------------------
Xxxxx X. Xxxx
----------------------------------------
(Address)
----------------------------------------
(City, State, Zip Code)
8
CONSENT OF SPOUSE
In consideration of the execution of the foregoing Termination Restricted Stock
Agreement by Gemstar-TV Guide International, Inc., I,
____________________________, the spouse of Employee herein named, do hereby
join with my spouse in executing the foregoing Termination Restricted Stock
Agreement and do hereby agree to be bound by all the terms and provisions
thereof and of the SIP.
Dated as of the ____ of ____, ____. -------------------------
Signature of Spouse
9
Exhibit C
GEMSTAR-TV GUIDE INTERNATIONAL, INC.
TERMINATION STOCK UNIT AGREEMENT
THIS AGREEMENT dated as of ______, _____ between Gemstar-TV Guide
International, Inc., a Delaware corporation (the "Company"), and Xxxxx X. Xxxx
("Employee").
W I T N E S S E T H
WHEREAS, pursuant to the Gemstar-TV Guide International, Inc. 1994 Stock
Incentive Plan, as amended (the "SIP"), the Company has granted to Employee
effective as of the date hereof (i) five million two hundred seventy four
thousand five hundred nineteen (5,274,519) Stock Units and (ii) Dividend
Equivalent Rights ("DERs") representing the right to receive, if, when and as
ordinary cash dividends are paid on the shares of Common Stock generally, an
amount (of cash or other property) equal to the ordinary cash dividends that
would be paid with respect to five million two hundred seventy four thousand
five hundred nineteen (5,274,519) shares of Common Stock, in each case, upon and
subject to the terms and conditions set forth herein and in the SIP.
NOW, THEREFORE, in consideration of the mutual promises and covenants made
herein and the mutual benefits to be derived herefrom, the parties agree as
follows:
1. Defined Terms. Capitalized terms shall have the meaning assigned
to them herein. Where capitalized terms are not defined herein they shall have
the meaning assigned to them in the SIP.
For purposes of this Agreement:
"Breach Cure Period" shall have the meaning assigned to it under the Termination
Agreement.
"Breach Event" shall have the meaning assigned to it under the Termination
Agreement.
"Effective Date" shall have the meaning assigned to it under the New Employment
Agreement.
"For Cause Determination Period" shall have the meaning assigned to it under the
New Employment Agreement.
"New Employment Agreement" shall mean the employment agreement between the
Company and Employee dated as of _________, 2002.
"Termination Agreement" shall mean the termination agreement between the
Company, Employee and Gemstar Development Corporation, a California corporation,
dated as of _______, 2002.
2. Grant of Stock Units. Effective as of the date hereof, the
Company hereby grants to Employee, subject to the vesting provisions and
restrictions set forth below, five million two hundred seventy four thousand
five hundred nineteen (5,274,519) Stock Units (the "Grant
1
Shares") under the SIP. The number and type of Grant Shares are subject to
adjustment pursuant to Section 4.2 of the SIP.
Employee shall be eligible for payment of Grant Shares at or following the
vesting of such Grant Shares. The form of payment of Grant Shares shall only be
in Company Common Stock and Employee shall be paid one share of Common Stock for
each Grant Share.
Employee shall have no voting rights with respect to the Grant Shares until such
Grant Shares are vested. Employee shall not sell, transfer, pledge, assign or
otherwise alienate or hypothecate the Grant Shares. Any sale or transfer, or
purported sale or transfer, shall be null and void.
If, when and as ordinary cash dividends are paid on shares of Common Stock
generally, Employee shall be paid DERs equivalent to the ordinary cash dividends
that would be paid with respect to Z shares of Common Stock where "Z" is the
number of the unvested (and unforfeited) Grant Shares at the time of such
ordinary cash dividend payment. Any DERs provided under this Agreement shall be
paid in cash, shares of Common Stock or other Awards as may be determined by the
Committee.
In the event that the Company determines that the Company (or any affiliate or
subsidiary of Company) is required to withhold any tax as a result of the
issuance, vesting, payment or disposition of any Grant Shares, the tax
withholding obligation shall be satisfied in accordance with the provisions and
terms of Section 4.5 of the SIP.
3. Vesting of Grant Shares. The Grant Shares shall vest as follows:
(i) one million seven hundred fifty eight thousand one hundred seventy three
(1,758,173) Grant Shares shall vest on the first anniversary of the Effective
Date,
(ii) one million seven hundred fifty eight thousand one hundred seventy three
(1,758,173) Grant Shares shall vest on the second anniversary of the Effective
Date, and
(iii) one million seven hundred fifty eight thousand one hundred seventy three
(1,758,173) Grant Shares shall vest on the third anniversary of the Effective
Date;
provided, however, that no Grant Shares shall vest after any (i)
termination of Employee's employment pursuant to Section 4(c) or Section 4(g) of
the New Employment Agreement, or (ii) occurrence of any Breach Event which (if
capable of cure) has not (together with all effects thereof) been fully cured by
Employee within the Breach Cure Period;
provided, further, that no Grant Shares shall vest during any Breach
Cure Period (but if all Breach Events are cured during the corresponding Breach
Cure Periods, any unvested Grant Shares scheduled to vest during such Breach
Cure Periods shall be deemed to have vested as of the scheduled vesting date);
provided, further, no Grant Shares shall vest during any For Cause
Determination Period (but, in the event that the Company Board determines no
termination for Cause has occurred or Employee is successful in challenging any
purported termination under Section 4(c) of the New Employment Agreement, any
Grant Shares scheduled to vest during such For Cause Determination Period shall
be deemed to have vested as of the scheduled vesting date); and
2
provided, further, and subject to the foregoing paragraphs, that if
Employee's employment under the New Employment Agreement terminates as provided
in Sections 4(a), 4(b), 4(d) or 4(f) of the New Employment Agreement, the Grant
Shares shall be vested at such termination provided Employee (or, if deceased,
his estate's legal representative) signs a general release of claims in a form
provided by the Company which shall be substantially similar to Exhibit D of the
Termination Agreement.
4. Continuance of Employment Required; No Employment Commitment. The
vesting schedule requires continued service through each applicable vesting date
as a condition to the vesting of the applicable installment of the Grant Shares
and the rights and benefits under this Agreement. Service for less than the full
portion of any vesting period, even if substantial, will not entitle Employee to
any proportionate vesting or avoid or mitigate a termination of rights and
benefits upon or following a termination of employment or services as provided
herein or under the SIP.
Nothing contained in this Agreement or the SIP constitutes an employment
commitment by the Company, affects the termination provisions of Section 4 of
the New Employment Agreement, confers upon Employee any right to remain employed
by the Company or any Subsidiary, interferes in any way with the right of the
Company or any Subsidiary at any time to terminate Employee's employment, or
affects the right of the Company or any Subsidiary to increase or decrease
Employee's other compensation.
5. Forfeiture.
All Grant Shares then unvested shall be automatically terminated and forfeited
upon any (i) termination of Employee's employment pursuant to Section 4(c) or
Section 4(g) of the New Employment Agreement, or (ii) occurrence of any Breach
Event which (if capable of cure) has not (together with all effects thereof)
been fully cured by Employee within the Breach Cure Period. Notwithstanding
anything herein to the contrary, in the event that Employee is successful in
challenging any purported termination under Section 4(c) of the New Employment
Agreement, any unvested Grant Shares that terminated due to such purported
termination shall be deemed reinstated and vested upon the conclusion of such
successful challenge.
6. Change in Control Event. All Grant Shares shall be subject to
immediate vesting upon the occurrence of:
(i) a Change in Control Event (as defined below); and
(ii) the Company has not provided for either (A) the cash-out of such Grant
Shares at their then fair market value, or (B) the continuation of such Grant
Shares in an economically equivalent amount (e.g. replacement shares of
restricted stock, options or stock units, based on a successor company's stock,
provided that such replacement award will have substantially similar terms and
conditions as the Grant Shares immediately prior to the Change in Control
Event).
The term "Change in Control Event" shall have the meaning assigned to such term
under SIP Section 5; provided, however, that the measurement period for
determining a "Change in Control
3
Event" under SIP Section 5.1(f)(5) shall not include the one-year period after
the Effective Date and such measurement period shall only commence upon the
first anniversary of the Effective Date.
7. Termination of Grant Shares Under Certain Events. As contemplated
by Section 4.2 of the SIP, the Grant Shares may be terminated in certain
circumstances, as described therein.
8. Non-Transferability of Grant Shares. The Grant Shares and any
other rights of Employee under this Agreement or the SIP are nontransferable and
subject to extensive restrictions under Section 1.9 of the SIP and as set forth
herein. The Common Stock issuable on the Grant Shares are also subject to
restrictions on transfer under Section 1.10 of the SIP and to any and all
repurchase or redemption rights of the Company that may be provided under its
Certificate of Incorporation and Bylaws, as amended from time to time.
9. Notices. Any notice to be given under the terms of this Agreement
shall be in writing and addressed to the Company at its principal office and to
Employee at the addresses given beneath their respective signatures hereon, or
at such other address as either party may hereafter designate in writing to the
other. Any such notice shall be deemed given only when received, but if Employee
is no longer an Eligible Person, any notice to Employee shall be deemed to have
been duly given when enclosed in a properly sealed envelope addressed as
aforesaid, registered or certified, and deposited (postage and registry or
certification fee prepaid) in a post office or branch post office regularly
maintained by the United States Government.
10. Plan. The Grant Shares, DERs and all rights of Employee
thereunder are subject to, and Employee agrees to be bound by, all of the terms
and conditions of the provisions of the SIP, incorporated herein by this
reference. In the event of a conflict or inconsistency between the terms and
conditions of this Agreement, and the terms and conditions of the SIP, the terms
and conditions of the SIP shall govern except as expressly set forth herein. In
the event of a conflict or inconsistency between the terms and conditions of
this Agreement, and the terms and conditions of the Termination Agreement the
terms and conditions of this Agreement shall govern. Employee acknowledges
receipt of a copy of the SIP, which is made a part hereof by this reference, and
agrees to be bound by the terms thereof. Unless otherwise expressly provided in
other Sections of this Agreement, provisions of the SIP that confer
discretionary authority on the Committee do not (and shall not be deemed to)
create any rights in Employee, unless such rights are expressly set forth herein
or are otherwise in the sole discretion of the Committee so conferred by
appropriate action of the Committee under the SIP after the date hereof.
11. Entire Agreement. This Agreement, the New Employment Agreement,
the Termination Agreement and the SIP together constitute the entire agreement
and supersede all prior understandings and agreements, written or oral, of the
parties hereto with respect to the subject matter hereof. The SIP and this
Agreement may be amended pursuant to Section 4.6 of the SIP. Such amendment must
be in writing and signed by the Company. The Company may, however, unilaterally
waive any provision hereof in writing to the extent such waiver does not
adversely affect the interests of Employee, but no such waiver shall operate as
or be construed to be a subsequent waiver of the same provision or a waiver of
any other provision hereof.
12. Severability. If a court of competent jurisdiction determines
that any portion of this Agreement is in violation of any statute or public
policy, then only the portions of this Agreement which violate such statute or
public policy shall be stricken, and all portions of this Agreement
4
which do not violate any statute or public policy shall continue in full force
and effect. Further, it is the parties' intent that any court order striking any
portion of this Agreement should modify the terms as narrowly as possible to
give as much effect as possible to the intentions of the parties under this
Agreement.
13. California Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of California.
14. Privileges of Stock Ownership. Except as otherwise expressly
authorized by the Committee or the SIP, Employee will not be entitled to any
privilege of stock ownership as to any shares of Common Stock not actually
delivered to and held of record by Employee. No adjustment will be made for
dividends or other rights as a stockholder for which a record date is prior to
such date of delivery.
15. No Restriction on Corporate Powers. The existence of the SIP,
DERs and/or the Grant Shares shall not affect or restrict in any way the right
or power of the Board or the stockholders of the Company to make or authorize
any adjustment, recapitalization, reorganization or other change in the
Company's capital structure or its business, any merger or consolidation of the
Company, any issue of bonds, debentures, preferred or prior preference stocks
ahead of or affecting the Company's capital stock or the rights thereof, the
dissolution or liquidation of the Company or any sale or transfer of all or any
part of its assets or business, or any other corporate act or proceeding.
16. Further Assurances. Each of the parties hereto shall use its
reasonable and diligent best efforts to proceed promptly with the transactions
contemplated herein, to fulfill the conditions precedent for such party's
benefit or to cause the same to be fulfilled and to execute such further
documents and other papers and perform such further acts as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated herein.
17. Execution. The grant of Grant Shares hereunder shall be rendered
ineffective if Employee and spouse fail to execute this Agreement (with Consent
of Spouse) and return the executed Agreement (with Consent of Spouse) to the
Company within 30 days of the date hereof.
18. Counterparts. This Agreement and any amendment hereto may be
executed in several counterparts. All of such counterparts shall constitute one
and the same agreement and shall become effective when a copy signed by each
party has been delivered to the other party.
[Remainder of page intentionally left blank.]
5
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on
its behalf by a duly authorized officer and Employee has hereunto set his or her
hand.
GEMSTAR-TV GUIDE INTERNATIONAL, INC.
By:
---------------------------------
Title:
-----------------------------
EMPLOYEE
------------------------------------
Xxxxx X. Xxxx
------------------------------------
(Address)
------------------------------------
(City, State, Zip Code)
6
CONSENT OF SPOUSE
In consideration of the execution of the foregoing Termination Stock Unit
Agreement by Gemstar-TV Guide International, Inc., I,
______________________________, the spouse of the Employee herein named, do
hereby join with my spouse in executing the foregoing Termination Stock Unit
Agreement and do hereby agree to be bound by all the terms and provisions
thereof and of the SIP.
Dated as of the ____ of ____, ____. ----------------------------
Signature of Spouse
7
Exhibit D
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (hereinafter this
"Agreement") is made and entered into by and between ___________ (hereinafter,
"Employee") and Gemstar - TV Guide International, Inc., a Delaware corporation
(hereinafter, the "Company").
1. Employee's employment by the Company has terminated [or will
terminate] on __________________ (hereinafter, the "Termination Date").
2. Pursuant to the terms of that certain Employment Agreement
dated as of November __, 2002 between the Company and Employee (hereinafter, the
"Employment Agreement"), Employee is required to execute this Agreement in order
to obtain certain benefits under the Employment Agreement .
3. To the fullest extent permitted by law, Employee hereby
RELEASES and COVENANTS NOT TO XXX the Company, its parents, subsidiaries,
affiliates, predecessors, successors, assigns, its or their employee benefit
plans, trustees, fiduciaries and administrators, and any and all of its and
their respective past or present officers, directors, partners, insurers,
agents, representatives, attorneys and employees (all collectively included in
the term the "Company" for purposes of this Agreement ), from any and all
claims, demands or causes of action, known or unknown, based on any events or
circumstances relating to his employment at the Company or any subsidiary of the
Company and arising or occurring prior to and including the date of Employee's
execution of this Agreement, which Employee, his heirs, executors,
administrators, agents, attorneys, representatives or assigns (all collectively
included in the term "Employee" for purposes of this release and covenant not to
xxx), has, had or may have against the Company under Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Americans With
Disabilities Act, the Age Discrimination in Employment Act, the Employee
Retirement Income Security Act, the Family and Medical Leave Act, Executive
Order No. 11246, 42 U.S.C. ss. 1981, and all other federal, state and local
statutes or ordinances,, any claims that his employment was unlawfully
terminated, any rights to severance pay or benefits (other than as provided for
in the Employment Agreement or that certain Termination Agreement dated as of
November __ 2002 between the Company, Gemstar Development Corporation and
Employee), and any rights of continued employment, reinstatement or reemployment
by the Company, PROVIDED, HOWEVER, Employee is not waiving, releasing or giving
up any rights Employee may have (i) to test the knowing and voluntary nature of
this Agreement under The Older Workers Benefit Protection Act, (ii) to workers'
compensation benefits, (iii) to vested benefits under any qualified pension or
savings plan, (iv) to continued benefits in accordance with the Consolidated
Omnibus Budget Reconciliation Act of 1985, or (v) to unemployment insurance.
4. Employee agrees and acknowledges that he was hereby informed
by the Company in writing to consult with an attorney and that he had at least
21 days to consider this Agreement; that he has entered into this Agreement
knowingly and voluntarily with full understanding of its terms and after having
had the opportunity to seek and receive advice from counsel of his choosing; and
that he has had a reasonable period of time within which to consider
this Agreement. Employee represents that he has not filed a complaint, charge or
claim with any court or governmental agency against the Company with respect to
any claim released hereby and has not assigned any such claim against the
Company to any person or entity.
5. Employee expressly waives and relinquishes all rights and
benefits afforded by Section 1542 of the Civil Code of the State of California
with respect to the releases provided herein, and does so understanding and
acknowledging the significance of such specific waiver of Section 1542. Section
1542 of the Civil Code of the State of California states as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Thus, notwithstanding the provisions of Section 1542, and for the purpose of
implementing the releases provided herein, Employee expressly acknowledges that
this Agreement is intended to include in its effect, without limitation other
than the express limitations set forth herein, all claims of the kind released
hereby even if he does not know or suspect such claim to exist in his favor at
the time of execution hereof, and that this Agreement contemplates the
extinguishment of any such claims. Employee acknowledges and agrees that the
foregoing waiver of the provisions of Section 1542 has been expressly bargained
for by each of the parties in the negotiation of this Agreement.
6. [This Section 6 is intentionally left blank]
7. Employee may accept this Agreement by delivering an executed
copy of this Agreement on or after the Termination Date and on or before
_______________________, in the manner described in Section 10(b), "Notices," of
the Employment Agreement.
8. Employee may revoke this Agreement within seven (7) days
after it is executed by Employee by delivering a written notice of revocation in
the manner described in Section 10(b), "Notices," of the Employment Agreement,
no later than the close of business on the seventh (7th) calendar day after this
Agreement was signed by Employee. This Agreement will not become effective or
enforceable until the eighth (8th) calendar day after Employee signs. If
Employee revokes this Agreement, the parties shall have no obligations under
this Agreement.
9. This Agreement does not constitute and shall not be
construed as an admission by the Company that it has violated any law,
interfered with any rights, breached any obligation or otherwise engaged in any
improper or illegal conduct with respect to Employee, and the Company expressly
denies that it has engaged in any such conduct.
10. If any provision, section, subsection or other portion of
this Agreement shall be determined by any court of competent jurisdiction to be
invalid, illegal or unenforceable
-2-
in whole or in part, and such determination shall become final, such provision
or portion shall be deemed to be severed or limited, but only to the extent
required to render the remaining provisions and portion of this Agreement
enforceable. This Agreement as thus amended shall be enforced so as to give
effect to the intention of the parties insofar as that is possible. In addition,
the parties hereby expressly empower a court of competent jurisdiction to modify
any term or provision of this Agreement to the extent necessary to comply with
existing law and to enforce this Agreement as modified.
11. Employee hereby agrees and acknowledges that he has
carefully read this Agreement, fully understands what this Agreement means, and
is signing this Agreement knowingly and voluntarily, and that Employee has not
relied on any statement by anyone associated with the Company that is not
contained in this Agreement in deciding to sign this Agreement.
12. This Agreement, the legal relations between the parties and
any action, whether contractual or non-contractual, instituted by any party with
respect to matters arising under or growing out of or in connection with or in
respect of this Agreement, the relationship of the parties or the subject matter
hereof shall be governed by and construed in accordance with the laws of the
State of California applicable to contracts made and performed in such State and
without regard to conflicts of law doctrines.
13. All disputes arising under this Agreement shall be resolved
pursuant to Section 10(f) of the Employment Agreement.
[Remainder of page intentionally left blank]
-3-
WHEREFORE, the parties have executed this Agreement on the date or dates
set forth below.
EMPLOYEE: GEMSTAR - TV GUIDE INTERNATIONAL, INC.
[_____________________] By:
--------------------------------
Name:
--------------------------------
Date: Title:
----------------------- --------------------------------
Date:
--------------------------------
-4-
REDACTED VERSION
EXHIBIT 1
***
*** Confidential treatment has been requested pursuant to Section IV.3 of the
request for confidential treatment dated November 12, 2002.
SCHEDULE A
ASSIGNED INTELLECTUAL PROPERTY
1. Patent Application.
TITLE: ***
APPLICATION NO ***
FILED: ***
Foreign Applications: ***
2. Patent Application.
TITLE: ***
APPLICATION NO ***
FILED: ***
3. Patent Application.
TITLE: ***
APPLICATION NO: ***
FILED: ***
4. Patent Application.
TITLE: ***
APPLICATION NO ***
FILED: ***
5. Patent Application.
TITLE: ***
APPLICATION NO ***
FILED: ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
1
Schedule A- Assigned Intellectual Property
6. Patent Application.
TITLE: ***
APPLICATION NO ***
FILED: ***
7. Patent Application.
TITLE: ***
APPLICATION NO ***
FILED: ***
8. Patent Application.
TITLE: ***
APPLICATION NO ***
9. Patent Application.
TITLE: ***
APPLICATION NO. ***
FILED: ***
10. Patent.
TITLE: METHOD AND APPARATUS FOR PORTABLE STORAGE AND USE OF DATA TRANSMITTED
BY TELEVISION SIGNAL
APPLICATION NO.: 08/048,761
FILING DATE: 04/16/1993
STATUS: U.S. Patent No. 5,523,794; Issued on 06/04/1996.
11. Patent.
TITLE: APPARATUS AND METHOD FOR TRACKING THE PLAYING OF VCR PROGRAMS
APPLICATION NO.: 08/122,794
FILING DATE: 09/16/1993 (CIP of 08/066,666, filed 5/27/93, abandoned
1/2/97)
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
2
Schedule A- Assigned Intellectual Property
STATUS: U.S. Patent No. 5,488,409; Issued on 01/30/1996.
12. Patent.
TITLE: APPARATUS AND METHODS FOR AVOIDING LOSS OF CLOSED CAPTION DATA WHEN
USING EXTENDED DATA SERVICES
APPLICATION NO.: 08/265,709
FILING DATE: 06/24/1994
STATUS: U.S. Patent No. 5,543,852; Issued on 08/06/1996.
13. Patent.
TITLE: STILL FRAME VIDEO IN INDEX
APPLICATION NO.: 08/480,485
FILING DATE: 06/07/1995
STATUS: U.S. Patent No. 5,621,579; Issued on 04/15/1997; Maintenance Due
10/15/04 ***
FOREIGN CASES: ***
14. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ****
STATUS: ***
FOREIGN CASES: ***
15. Patent Application
***
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
STATUS: ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
3
Schedule A- Assigned Intellectual Property
FOREIGN CASES: ***
16. Patent
TITLE: ENHANCING OPERATIONS OF VIDEO TAPE CASSETTE PLAYERS
APPLICATION NO.: 08/773,612
FILING DATE: 12/30/1996
STATUS: U.S. Patent No. 6,091,884; Issued 7/1/00.
FOREIGN CASES: ***
17. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
STATUS: ***
18. Patent
TITLE: STILL FRAME VIDEO IN INDEX
APPLICATION NO.: 08/839,458
FILING DATE: 04/14/1997
STATUS: U.S. Patent No. 6,240,241; Issued 5/29/01.
19. Patent
TITLE: COMBINATION OF VCR INDEX AND EPG
APPLICATION NO.: 08/952,530
FILING DATE: 04/24/98 (Based on provisional 60/013371, filed 3/15/96
[I148:29064] and 30480-PCT)
STATUS: U.S. Patent No. 6,147,715; Issued 11/14/00; Maintenance fee due 5/14/04
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
4
Schedule A- Assigned Intellectual Property
FOREIGN CASES: *** Issued: AUS, JPN, SIN, MEX
20. Patent Application
TITLE: ***
APPLICATION NO.:***
FILING DATE: ***
STATUS: ***
FOREIGN CASES: ***
21. Patent
TITLE: SYSTEM AND METHOD FOR GRAZING TELEVISION CHANNELS FROM AN ELECTRONIC
PROGRAM GUIDE
APPLICATION NO.: 08/952,382
FILING DATE: 11/12/1997 (Based on provisional 60/024598, filed 8/29196
[I148:29636] and 30554-PCT) (Continuation to 36034)
STATUS: U.S. Patent No. 6,154,203; Issued 11/28/00
FOREIGN CASES: *** Issued: AUS, SIN
22. Patent
TITLE: TELEVISION SYSTEM AND METHOD FOR SUBSCRIPTION OF INFORMATION SERVICE
APPLICATION NO.: 08/853,702
FILING DATE: 05/13/1997 (Based on provisional 60/006585, filed 11/13/95
[I148:28600] and 60/024965, filed 8/30/96 [I148:29539] and 29974-PCT)
STATUS: U.S. Patent No. 5,995,092; Issued 11/30199
FOREIGN CASES: ***
23. Patent
TITLE: TWO-WAY INTERACTIVE TELEVISION SYSTEM INCORPORATING PAGER TRANSMITTER
AND RECEIVER FOR CONDUCTING MESSAGING WITH INFORMATION PROVIDER
APPLICATION NO.: 08/879,146
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
5
Schedule A- Assigned Intellectual Property
FILING DATE: 06/19/1997 (Based on provisional 60/012146, filed 2/23/96
[I148:28943] and 60/028555, filed 10/15/96 [I148:29677] and 29868-PCT)
STATUS: U.S. Patent No. 5,812,931, Issued 09/22/98; Maintenance fee due
03/22/06
FOREIGN CASES: ***
24. Patent
TITLE: CORDLESS PHONE BACK LINK FOR INTERACTIVE TELEVISION SYSTEM
APPLICATION NO.: 08/914,336
FILING DATE: 07/14/1997 (Based on provisional applications 60/012,303,
filed 2/26/96 [I148:28987], 60/012,968, filed 3/7/96 [I148:29034] and
60/027,671, filed 10/7/96 [I148:29835] and 29678-PCT)
STATUS: U.S. Patent No. 5,898,919; Issued 4/27/99; Maintenance fee due 10/27/02
FOREIGN CASES: ***
25. Patent
TITLE: METHOD OF ADDING TITLES TO A DIRECTORY OF TELEVISION PROGRAMS RECORDED
ON VIDEO TAPE
APPLICATION NO.: 08/916,618
FILING DATE: 08/22/1997 (Based on provisional application 60/025218, filed
8/23/96 [I148:29619])
STATUS: U.S. Patent No. 6,125,231; Issued 9/26/00; Maintenance fee due 3/26/04
FOREIGN CASES: ***
26. Patent
TITLE: METHOD AND APPARATUS FOR TRANSMITTING AND DOWNLOADING SETUP
APPLICATION NO.: 08/913,145
FILING DATE: 03/09/98
STATUS: U.S. Patent No. 6,252,634; Issued 6/26/01
FOREIGN CASES: ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
6
Schedule A- Assigned Intellectual Property
27. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
28. Patent
TITLE: SYSTEMS AND METHODS FOR DISPLAYING AND RECORDING CONTROL INTERFACE WITH
TELEVISION PROGRAMS, VIDEO, ADVERTISING INFORMATION AND PROGRAM
SCHEDULING INFORMATION
APPLICATION NO.: 09/120,488
FILING DATE: 7/21/98 (Based on provisional applications 60/053330, filed 7/21/97
[31154], 60/05237, filed 8/12/97 [31273], 60/055,761, filed 8/14/97 [31304],
60/061119, filed 10/6/97 [31534], 60/068,375, filed 12/22/97 [31920], 60/071811,
filed 1/20/98 [32568], 60/071812, filed 1/20/98 [32569], 60/071882, filed
1/20/98 [32570] and CIP of US97/23852, filed 12/19/97 [31912-PCT]); PCT
published 1/28/99
STATUS: U.S. Patent No. 6,177,931; Issued 1/23/01
FOREIGN CASES: ***
29. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
30. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
31. Patent Application
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
7
Schedule A- Assigned Intellectual Property
TITLE: ***
APPLICATION NO.:***
FILING DATE: ***
STATUS: ***
FOREIGN CASES: ***
32. Patent Application
TITLE: ***
APPLICATION NO.:***
FILING DATE: ***
FOREIGN CASES: ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
8
Schedule A- Assigned Intellectual Property
33. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
34. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
35. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
36. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
9
Schedule A- Assigned Intellectual Property
37. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
38. Patent Application
TITLE: ***
APPLICATION NO: ***
FILING DATE: ***
FOREIGN CASES: ***
39. Patent Application
TITLE: ***
APPLICATION NO: ***
FILING DATE: ***
FOREIGN CASES: ***
40. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
41. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
10
Schedule A- Assigned Intellectual Property
FOREIGN CASES: ***
42. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
43. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
44. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES. ***
45. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
F0REIGN CASES: ***
46. Patent Application
TITLE: ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
11
Schedule A- Assigned Intellectual Property
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
47. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
48. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
49. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
50. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
12
Schedule A- Assigned Intellectual Property
51. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
52. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
53. Patent
TITLE: APPARATUS AND METHOD USING COMPRESSED CODES FOR RECORDER
PRE-PROGRAMMING
APPLICATION NO.: 07/676,934
FILING DATE: 03/27/1991
STATUS: U.S. Patent No. 5,335,079; Issued 08/02/1994
FOREIGN CASES: ***Issued: IND, MAY, NZL, PRC; *** Issued: AUR, AUS,
AUS(01), BEL, BRA, CAN, ENG, FRA, GER, HOL, ITA, KOR, LUX, RUS, SPA(01), SIN,
SWE, SWI***
54. Patent
TITLE: APPARATUS AND METHOD USING COMPRESSED CODES FOR TELEVISION PROGRAM
RECORD SCHEDULING
APPLICATION NO.: 07/829,412
FILING DATE: 02/03/1992
STATUS: U.S. Patent No. 5,307,173; Issued 04/26/1994
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
13
Schedule A- Assigned Intellectual Property
FOREIGN CASES: Issued: BEL, CAN, DEN, ENG, FRA, GER, HOL, ITA, MAY, NZL,
PHI, PRC, SPA, TAI
***
55. Patent
TITLE: SYSTEM AND METHOD FOR AUTOMATICALLY RECORDING TELEVISION PROGRAMS IN
TELEVISION SYSTEMS WITH TUNERS EXTERNAL TO VIDEO RECORDERS
APPLICATION NO.: 08/072,764
FILING DATE: 06/02/1993
STATUS: U.S. Patent No. 5,515,173; Issued 05/07/1996.
FOREIGN CASES: Issued: ENG, FRA, GER, EPO
***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
14
Schedule A- Assigned Intellectual Property
56. Patent
TITLE: APPARATUS AND METHODS FOR USNG COMPRESSED CODES FOR MONITORING
TELEVISION PROGRAM VIEWING
APPLICATION NO.: 08/122,146
FILING DATE: 09/16/1993
STATUS: U.S. Patent No. 5,532,732; Issued 07/02/1996
FOREIGN CASES: ***
57. Patent
TITLE: APPARATUS AND METHOD USING COMPRESSED CODES FOR RECORDER PREPROGRAMMING
APPLICATION NO.: 08/284,371
FILING DATE: 08/01/1994
STATUS: U.S. Patent No. 6,091,882; Issued 07/18/00
FOREIGN CASES: ***
58. Patent
TITLE: APPARATUS AND METHODS FOR PROVIDING INITIALIZING SETTINGS FOR AN
APPLIANCE
APPLICATION NO.: 08/237,506
FILING DATE: 05/03/1994
STATUS: U.S. Patent No. 5,600,711; Issued 02/04/1997
FOREIGN CASES: ***
59. Patent
TITLE: REMOTE CONTROLLER FOR CONTROLLING TURNING APPLIANCES ON AND OFF
APPLICATION NO.: 08/310,937
FILING DATE: 09/22/1994
STATUS: U.S. Patent No. 5,539,391; Issued 07/23/1996
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
15
Schedule A- Assigned Intellectual Property
60. Patent
TITLE: REMOTE CONTROL MOUNTING STAND
APPLICATION NO.: 08/263,771
FILING DATE: 06/22/1994
STATUS: U.S. Patent No. 5,475,382; Issued 12/12/1995
FOREIGN CASES: ***
61. Patent
TITLE: BAR CODE MATRIX TELEVISION CALENDAR
APPLICATION NO.: 08/279,628
FILING DATE: 07/25/1994 (Continuation of 07/780,639, filed 10/23/91
[G207:23927])
STATUS: U.S. Patent No. 6,137,950; Issued 10/24/00
FOREIGN CASES: ***Issued: PRC, TAI
***
62. Patent
TITLE: APPARATUS AND METHODS FOR A TELEVISION ON-SCREEN GUIDE
APPLICATION NO.: 08/368,340
FILING DATE: 12/30/1994
STATUS: U.S. Patent No. 5,659,367; Issued 08/19/1997;
FOREIGN CASES: ***
63. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
STATUS: ***
FOREIGN CASES: ***
64. Patent
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
16
Schedule A- Assigned Intellectual Property
TITLE: APPARATUS AND METHOD FOR USING COMPRESSED CODES FOR RECORDER
PREPROGRAMMING
APPLICATION NO.: 08/404,939
FILING DATE: 03/15/1995
STATUS: U.S. Patent No. 6,049,652; Issued 4/11/00
FOREIGN CASES: ***
65. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
STATUS: ***
FOREIGN CASES: ***
66. Patent
TITLE: METHOD AND SYSTEM FOR SIMULTANEOUSLY DISPLAYING TELEVISION PROGRAM AND
INFORMATION ABOUT THE PROGRAM
APPLICATION NO.: 08/475,395
FILING DATE: 06/07/1995 (CIP of 08/424,863, filed 4/17/95, abandoned
[I148:27659])
STATUS: U.S. Patent No. 6,239,794; Issued 5/29/01
FOREIGN CASES: ***
Issued. BEL, ENG, EPO, FRA, GER, ITA, SPA, TAI
***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
17
Schedule A- Assigned Intellectual Property
67. Patent
TITLE: SYSTEM AND METHOD FOR AUTOMATICALLY RECORDING TELEVISION PROGRAMS IN
TELEVISION SYSTEMS WITH TUNERS EXTERNAL TO VIDEO RECORDERS
APPLICATION NO.: 08/647,443
FILING DATE: 05/07/1996
STATUS: U.S. Patent No. 5,987,213; Issued 11/16/99
FOREIGN CASES: ***
68. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
69. Patent
TITLE: APPARATUS AND METHOD USING COMPRESSED CODES FOR RECORDER PREPROGRAMMING
APPLICATION NO.: 08/679,652
FILING DATE: 07/11/1996
STATUS: U.S. Patent No. 5,673,089; Issued 09/30/97
FOREIGN CASES: *** Issued: EPO, JPN
70. Patent
TITLE: APPARATUS AND METHOD FOR IMPROVED PARENTAL CONTROL OF TELEVISION USE
APPLICATION NO.: 08/684,678
FILING DATE: 07/19/1996
STATUS: U.S. Patent No. 5,949,471; Issued 9/7/99
FOREIGN CASES: ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
18
Schedule A- Assigned Intellectual Property
71. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
72. Patent
TITLE: METHOD AND APPARATUS FOR DISPLAYING TELEVISION PROGRAMS AND RELATED
TEXT
APPLICATION NO.: 08/728,614
FILING DATE: 10/10/1996 (CIP of 08/475,395, filed 6/7/95 [G207:27971])
STATUS: U.S. Patent 6,028,599; Issued 2/22/00
FOREIGN CASES: ***
73. Patent
TITLE: TELEVISION GUIDE READER AND PROGRAMMER
APPLICATION NO.: 08/706,132
FILING DATE: 08/30/1996
STATUS: U.S. Patent No. 5,870,150; issued 2/9/99
FOREIGN CASES: ***
74. Patent
TITLE: APPARATUS AND METHODS FOR A TELEVISION ON-SCREEN GUIDE
APPLICATION NO.: 08/862,199
FILING DATE: 05/23/1997 (CIP of 08/368,340, filed 12/30/94 and issued on
08/19/1997, U.S. Patent 5,659,367 [G207:27114])
STATUS: U.S. Patent No. 6,341,195; Issued 1/22/02
FOREIGN CASES: ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
19
Schedule A- Assigned Intellectual Property
75. Patent
TITLE: TELEVISION CALENDAR AND METHOD FOR CREATING SAME
APPLICATION NO.: 08/834,468
FILING DATE: 04/11/1997
STATUS: U.S. Patent No. 5,970,206; Issued 10/19/99
FOREIGN CASES: ***
76. Patent
TITLE: APPARATUS AND METHOD USING COMPRESSED CODES FOR SCHEDULING BROADCAST
INFORMATION RECORDING
APPLICATION NO.: 08/848,533
FILING DATE: 04/28/1997 (Continuation of 08/327,140, filed 10/20/94
[G207:27338], which is a continuation of 07/806,152, filed 12/11/91
[G207:23285])
STATUS: U.S. Patent No. 5,974,222; Issued 10/26/99;
FOREIGN CASES: ***
Issued: AUR, BEL, DEN, ENG, EPO, FRA, GER, HOL, ITA, MEX, SIN, SPA, TAI
***
77. Patent
TITLE: METHODS FOR CHANNEL SCANNING
APPLICATION NO.: 08/889,786
FILING DATE: 07/08/97
STATUS: U.S. Patent No. 5,886,746; Issued 3/23/99;
FOREIGN CASES: ***
Issued: EPO, JPN
78. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
20
Schedule A- Assigned Intellectual Property
FOREIGN CASES: ***
79. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
80. Patent
TITLE: SYSTEM FOR IMPROVED PARENTAL CONTROL OF TELEVISION USE
APPLICATION NO.: 09/344,634
FILING DATE: 6/25/99 (Cont of 08/684,678, filed 7/19/96 [G207:29493])
STATUS: U.S. Patent No. 6,072,520; Issued 06/06/00;
FOREIGN CASES: ***
81. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
STATUS: ***
FOREIGN CASES: ***
Issued: AUR, BEL, DEN, ENG, EPO, FRA, GER, HOL, ITA, MEX, SIN, SPA, TAI
***
82. Patent
TITLE: SYSTEM FOR IMPROVED PARENTAL CONTROL OF TELEVISION USE
APPLICATION NO.: 09/558,536
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
21
Schedule A- Assigned Intellectual Property
FILING DATE: 04/26/00 (Cont of 09/344,634, filed 06/25/99 [G207:34873];
Cont of 08/684,678, filed 7/19/96 [G207:29493])
STATUS: U.S. Patent No. 6,321,381; Issued 11/20/01
FOREIGN CASES: ***
83. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
84. Patent Application
TITLE: ***
APPLICATION NO: ***
FILING DATE: ***
FOREIGN CASES: ***
85. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
86. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
87. Patent Application
TITLE: ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
22
Schedule A- Assigned Intellectual Property
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
88. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
89. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
90. Patent Application
TITLE: ***
APPLICATION NO. ***
FILING DATE: ***
FOREIGN CASES: ***
91. Patent Application
TITLE: ***
APPLICATION NO. ***
FILING DATE: ***
FOREIGN CASES: ***
92. Patent Application
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
23
Schedule A- Assigned Intellectual Property
TITLE: ***
APPLICATION NO. ***
FILING DATE: ***
FOREIGN CASES: ***
93. Patent Application
TITLE: ***
APPLICATION NO. ***
FILING DATE: ***
FOREIGN CASES: ***
94. Patent Application
TITLE: ***
APPLICATION NO. ***
FILING DATE: ***
FOREIGN CASES: ***
95. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
96. Patent Application
TITLE: ***
APPLICATION NO.: ***
FILING DATE: ***
FOREIGN CASES: ***
97. Patent
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
24
Schedule A- Assigned Intellectual Property
TITLE: APPARATUS AND METHOD FOR CONTROLLING EDUCATIONAL AND AMUSEMENT USE OF A
TELEVISION
APPLICATION NO. 540,749
FILING DATE: 10/11/95
STATUS: U.S. Patent No. 5,716,273 issued 02/10/98
FOREIGN CASES; ***
*** Confidential treatment has been requested pursuant to Section IV.1 of the
request for confidential treatment dated November 12, 2002.
25
SCHEDULE B
EMPLOYEE INTELLECTUAL PROPERTY
1.
Patent No. 5,903,868, "Audio Recorder With Retroactive Storage," issued May 11,
1999.
***
Abstract:
***
*** Confidential treatment has been requested pursuant to Section IV.2 of the
request for confidential treatment dated November 12, 2002.
1
2.
***
Status: ***
Abstract:
***
*** Confidential treatment has been requested pursuant to Section IV.2 of the
request for confidential treatment dated November 12, 2002.
2
3.
***
Status: ***
Abstract:
***
*** Confidential treatment has been requested pursuant to Section IV.2 of the
request for confidential treatment dated November 12, 2002.
3
4.
***
Status: ***
Abstract:
***
*** Confidential treatment has been requested pursuant to Section IV.2 of the
request for confidential treatment dated November 12, 2002.
4
5.
***
Status: ***
Abstract:
***
*** Confidential treatment has been requested pursuant to Section IV.2 of the
request for confidential treatment dated November 12, 2002.
5
6.
***
Status: ***
Abstract:
***
*** Confidential treatment has been requested pursuant to Section IV.2 of the
request for confidential treatment dated November 12, 2002.
6
7.
***
*** Confidential treatment has been requested pursuant to Section IV.2 of the
request for confidential treatment dated November 12, 2002.
7
8.
***
*** Confidential treatment has been requested pursuant to Section IV.2 of the
request for confidential treatment dated November 12, 2002.
8
9.
***
*** Confidential treatment has been requested pursuant to Section IV.2 of the
request for confidential treatment dated November 12, 2002.
9
