EXHIBIT 10.3
[VIACOM LETTERHEAD]
As of May 1, 2000
Xxxxxxx X. Xxxxxxxx
00 Xxxxxxxxx Xxxxx, Xxx. 00-X
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxxxx:
Viacom Inc. ("Viacom"), 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, agrees
to employ you and you agree to accept such employment upon the following terms
and conditions:
1. Term. The term of your employment under this Agreement shall commence
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on May 1, 2000 and, unless terminated by Viacom or you pursuant to paragraph
8(a), (b) or (c), shall continue through and until August 1, 2003. The period
from May 1, 2000 through August 1, 2003 is referred to as the "Term"
notwithstanding any earlier termination of your employment for any reason.
2. Duties. You agree to devote your entire business time, attention and
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energies to the business of Viacom and its subsidiaries during your employment
with Viacom. You will be Executive Vice President, General Counsel and Secretary
of Viacom, reporting directly and solely to the President and Chief Operating
Officer (the "COO") or the Chief Executive Officer (the "CEO") of Viacom, and
you agree to perform all duties reasonable and consistent with that office as
the COO or the CEO may assign to you from time to time. You will have such
authority as is necessary for the performance of your obligations hereunder.
Your principal place of business shall be Viacom's headquarters in the New York
City metropolitan area.
3. Compensation.
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(a) Salary. For all the services rendered by you in any capacity
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under this Agreement, Viacom agrees to pay you Eight Hundred Thousand Dollars
($800,000) a year in base salary ("Salary"), less applicable deductions and
withholding taxes, in accordance with Viacom's payroll practices as they may
exist from time to time. Your Salary will be increased on May 1, 2001 to Eight
Hundred Seventy Five Thousand Dollars ($875,000) a year and on May 1, 2002 to
Nine Hundred Fifty Thousand Dollars ($950,000) a year.
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(b) Bonus Compensation. You also shall be entitled to receive annual
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bonus compensation ("Bonus") during your employment with Viacom under this
Agreement, determined and payable as follows:
(i) Your Bonus for each calendar year during your employment with
Viacom under this Agreement will be determined in accordance with
the Viacom Senior Executive Short-Term Incentive Plan, as the
same may be amended from time to time (the "STIP").
(ii) Your target bonus ("Target Bonus") for each of those calendar
years shall be 60% of your Salary as in effect on November 1st of
such year. Your Bonus may be prorated for any portion of the
calendar year that you were employed by Xxxxxx.
(iii) Your Bonus for any calendar year shall be payable, less
applicable deductions and withholding taxes, by February 28th of
the following year.
(c) Long-Term Incentive Plans.
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(i) Special Grant: You have been awarded a special grant (the
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"Special Grant") under Viacom's 1997 Long-Term Management
Incentive Plan (the "l997 LTMIP") of stock options to purchase
One Hundred Thousand (100,000) shares of Viacom's Class B Common
Stock, effective as of May 25, 2000 (the "Date of Special
Grant"), with an exercise price of $54.0625 for each share (the
closing price of the Class B Common Stock on the NYSE on the date
of grant). The Special Grant shall vest in three equal
installments on the first, second and third anniversaries of the
Date of Special Grant.
(ii) Additional Grants: In addition to the Special Grant, during your
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employment under this Agreement, you shall be eligible to
participate in one or more of Viacom's long-term incentive plans
at a level appropriate to your position as determined by the
Viacom Board of Directors or a committee of the Board.
4. Benefits. You shall participate in such vacation, medical, dental, life
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insurance, long-term disability insurance, 401(k), pension and other plans as
Viacom may have or establish from time to time and in which you would be
entitled to participate under the terms of the plan. This provision, however,
shall not be construed to either require Viacom to establish any welfare,
compensation or long-term incentive plans, or to prevent the modification or
termination of any plan once established, and no action or inaction with respect
to any plan shall affect this Agreement.
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As of May 1, 2000
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5. Business Expenses; Car Allowance and Insurance. During your employment
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under this Agreement, Viacom shall reimburse you for such reasonable travel and
other expenses incurred in the performance of your duties as are customarily
reimbursed to Viacom executives at comparable levels. You shall receive a car
allowance and car insurance for one vehicle in accordance with Viacom's
policies, as the same may be amended from time to time.
6. Non-Competition, Confidential Information, Etc.
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(a) Non-Competition. You agree that your employment with Viacom is on
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an exclusive basis and that, while you are employed by Viacom, you will not
engage in any other business activity which is in conflict with your duties and
obligations (including your commitment of time) under this Agreement. You agree
that, during the Non-Compete Period (as defined below), you shall not directly
or indirectly engage in or participate as an owner, partner, stockholder,
officer, employee, director, agent of or consultant for any business competitive
with any business of Viacom, without the written consent of Viacom; provided,
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however, that this provision shall not prevent you from investing as less than a
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one (1%) percent stockholder in the securities of any company listed on a
national securities exchange or quoted on an automated quotation system. The
Non-Compete Period shall cover the entire Term; provided, however, that, if your
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employment terminates before the end of the Term, the Non-Compete Period shall
terminate, if earlier, (i) one year after you terminate your employment for Good
Reason or Viacom terminates your employment without Cause, or on such earlier
date as you may make the election under paragraph 6(j) (which relates to your
ability to terminate your obligations under this paragraph 6(a) in exchange for
waiving your right to certain compensation and benefits); or (ii) eighteen (18)
months after Viacom terminates your employment for Cause. (Defined terms used
without definitions in the preceding sentence have the meanings provided in
paragraphs 8(a) and (b).)
(b) Confidential Information. You agree that, during the Term or at
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any time thereafter, (i) you shall not use for any purpose other than the duly
authorized business of Viacom, or disclose to any third party, any information
relating to Viacom or any of its affiliated companies which is proprietary to
Viacom or any of its affiliated companies ("Confidential Information"),
including any trade secret or any written (including in any electronic form) or
oral communication incorporating Confidential Information in any way (except as
may be required by law or in the performance of your duties under this Agreement
consistent with Viacom's policies); and (ii) you will comply with any and all
confidentiality obligations of Viacom to a third party, whether arising under a
written agreement or otherwise. Information shall not be deemed Confidential
Information which (x) is or becomes generally available to the public other than
as a result of a disclosure by you or at your direction or by any other person
who directly or indirectly receives such information from you, or (y) is or
becomes available to you on a non-confidential basis from a source which is
entitled to disclose it to you.
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As of May 1, 2000
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(c) No Employee Solicitation. You agree that, during the Term and for one
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(1) year thereafter, you shall not, directly or indirectly, engage, employ or
solicit the employment or consulting services of any person who is then or has
been within six (6) months prior to the time of such action, an employee of
Viacom or any of its affiliated companies, or agree to do so.
(d) Viacom Ownership. The results and proceeds of your services under this
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Agreement, including, without limitation, any works of authorship resulting from
your services during your employment with Viacom and/or any of its affiliated
companies and any works in progress resulting from such services, shall be
works-made-for-hire and Viacom shall be deemed the sole owner throughout the
universe of any and all rights of every nature in such works, whether such
rights are now known or hereafter defined or discovered, with the right to use
the works in perpetuity in any manner Viacom determines in its sole discretion
without any further payment to you. If, for any reason, any of such results and
proceeds are not legally deemed a work-made-for-hire and/or there are any rights
in such results and proceeds which do not accrue to Viacom under the preceding
sentence, then you hereby irrevocably assign and agree to assign any and all of
your right, title and interest thereto, including, without limitation, any and
all copyrights, patents, trade secrets, trademarks and/or other rights of every
nature in the work, whether now known or hereafter defined or discovered, and
Viacom shall have the right to use the work in perpetuity throughout the
universe in any manner Viacom determines in its sole discretion without any
further payment to you. You shall, as may be requested by Viacom from time to
time, do any and all things which Viacom may deem useful or desirable to
establish or document Viacom's rights in any such results and proceeds,
including, without limitation, the execution of appropriate copyright, trademark
and/or patent applications, assignments or similar documents and, if you are
unavailable or unwilling to execute such documents, you hereby irrevocably
designate the CEO or his designee as your attorney-in-fact with the power to
execute such documents on your behalf. To the extent you have any rights in the
results and proceeds of your services under this Agreement that cannot be
assigned as described above, you unconditionally and irrevocably waive the
enforcement of such rights. This paragraph 6(d) is subject to, and does not
limit, restrict, or constitute a waiver by Viacom or any of its affiliated
companies of any ownership rights to which Viacom or any of its affiliated
companies may be entitled by operation of law by virtue of being your employer.
(e) Litigation. You agree that, during the Term, for one (1) year
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thereafter and, if longer, during the pendancy of any litigation or other
proceeding, (i) you shall not communicate with anyone (other than your own
attorneys and tax advisors), except to the extent necessary in the performance
of your duties under this Agreement, with respect to the facts or subject matter
of any pending or potential litigation, or regulatory or administrative
proceeding involving Viacom or any of Viacom's affiliated companies, other than
any litigation or other proceeding in which you are a party-in-opposition,
without giving prior notice to Viacom or Viacom's counsel; and (ii) in the event
that any other party attempts to obtain information or documents from you with
respect to matters possibly related to such litigation or other proceeding, you
shall promptly notify Viacom's counsel before providing such information or
documents.
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As of May 1, 2000
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(f) No Right to Give Interviews or Write Books, Articles, Etc. During
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the Term, except as authorized by Viacom, you shall not (i) give any interviews
or speeches, or (ii) prepare or assist any person or entity in the preparation
of any books, articles, television or motion picture productions or other
creations, in either case, concerning Viacom or any of its affiliated companies
or any of their respective officers, directors, agents, employees, suppliers or
customers.
(g) Return of Property. All documents, data, recordings, or other
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property, whether tangible or intangible, including all information stored in
electronic form, obtained or prepared by or for you and utilized by you in the
course of your employment with Viacom or any of its affiliated companies shall
remain the exclusive property of Viacom. In the event of the termination of
your employment for any reason, Viacom reserves the right, to the extent
permitted by law and in addition to any other remedy Viacom may have, to deduct
from any monies otherwise payable to you the following: (i) all amounts you may
owe to Viacom or any of its affiliated companies at the time of or subsequent to
the termination of your employment with Viacom; and (ii) the value of the Viacom
property which you retain in your possession after the termination of your
employment with Viacom. In the event that the law of any state or other
jurisdiction requires the consent of an employee for such deductions, this
Agreement shall serve as such consent.
(h) Non-Disparagement. You agree that, during the Term and for one
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(1) year thereafter, you shall not, in any communications with the press or
other media or any customer, client or supplier of Viacom or any of its
affiliated companies, criticize, ridicule or make any statement which disparages
or is derogatory of Viacom or any of its affiliated companies or any of their
respective directors or senior officers.
(i) Injunctive Relief. Viacom has entered into this Agreement in
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order to obtain the benefit of your unique skills, talent, and experience. You
acknowledge and agree that any violation of paragraphs 6(a) through (h) of this
Agreement will result in irreparable damage to Viacom, and, accordingly, Viacom
may obtain injunctive and other equitable relief for any breach or threatened
breach of such paragraphs, in addition to any other remedies available to
Viacom.
(j) Survival; Modification of Terms. Your obligations under
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paragraphs 6(a) through (i) shall remain in full force and effect for the entire
period provided therein notwithstanding the termination of your employment under
this Agreement for any reason or the expiration of the Term; provided, however,
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that your obligations under paragraph 6(a) (but not under any other provision of
this Agreement) shall cease if you terminate your employment for Good Reason or
Viacom terminates your employment without Cause and you notify Viacom in writing
that you have elected to waive your right to receive, or to continue to receive,
termination payments and benefits under paragraphs 8(d)(i) through (vi) and/or
8(e). You and Viacom
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As of May 1, 2000
Page 6
agree that the restrictions and remedies contained in paragraphs 6(a) through
(i) are reasonable and that it is your intention and the intention of Viacom
that such restrictions and remedies shall be enforceable to the fullest extent
permissible by law. If a court of competent jurisdiction shall find that any
such restriction or remedy is unenforceable but would be enforceable if some
part were deleted or the period or area of application reduced, then such
restriction or remedy shall apply with the modification necessary to make it
enforceable.
7. Disability. In the event that you become "disabled" within the
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meaning of such term under Viacom's Short-Term Disability ("STD") program and
its Long-Term Disability ("LTD") program during the Term (such condition is
referred to as a "Disability"), you will receive compensation under the STD
program in accordance with its terms. Thereafter, you will be eligible to
receive benefits under the LTD program in accordance with its terms. If you
have not returned to work by December 31st of a calendar year during the Term,
you will receive bonus compensation for the calendar year(s) during the Term in
which you receive compensation under the STD program, determined as follows:
(i) for the portion of the calendar year from January 1st until
the date on which you first receive compensation under the
STD program, bonus compensation shall be determined in
accordance with the STIP (i.e., based upon Viacom's
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achievement of its goals and Viacom's good faith estimate of
your achievement of your personal goals) and prorated for
such period; and
(ii) for any subsequent portion of that calendar year and any
portion of the following calendar year in which you receive
compensation under the STD program, bonus compensation shall
be in an amount equal to your Target Bonus and prorated for
such period(s).
Bonus compensation under this paragraph 7 shall be paid, less applicable
deductions and withholding taxes, by February 28th of the year(s) following the
year as to which such bonus compensation is payable. You will not receive bonus
compensation for any portion of the calendar year(s) during the Term while you
receive benefits under the LTD program. For the periods that you receive
compensation and benefits under the STD and LTD programs, such compensation and
benefits and the bonus compensation provided under this paragraph 7 are in lieu
of Salary and Bonus under paragraphs 3(a) and (b). The stock options granted to
you under the LTMIP (as defined in paragraph 8(d)(vii)) which are exercisable on
or prior to the date on which benefits commence under the LTD program, together
with all LTMIP stock options that would have vested and become exercisable on or
before the last day of the Term (which options shall become immediately vested
and exercisable), shall be exercisable until the first anniversary of the date
on which such benefits commence or, if earlier, the expiration date of the stock
options.
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8. Termination.
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(a) Termination for Cause. Viacom may, at its option, terminate your
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employment under this Agreement forthwith for Cause and thereafter shall have no
further obligations under this Agreement, including, without limitation, any
obligation to pay Salary or Bonus or provide benefits. Cause shall mean: (i)
embezzlement, fraud or other conduct which would constitute a felony; (ii)
willful unauthorized disclosure of Confidential Information; (iii) your failure
to obey a material lawful directive that is appropriate to your position from an
executive(s) in your reporting line; (iv) your material breach of this
Agreement; or (v) your failure (except in the event of your Disability) or
refusal to substantially perform your material obligations under this Agreement.
Viacom will give you written notice prior to terminating your employment
pursuant to (iii), (iv), or (v) of this paragraph 8(a), setting forth the nature
of any alleged failure, breach or refusal in reasonable detail and the conduct
required to cure. Except for a failure, breach or refusal which, by its nature,
cannot reasonably be expected to be cured, you shall have ten (10) business days
from the giving of such notice within which to cure any failure, breach or
refusal under (iii), (iv), or (v) of this paragraph 8(a); provided, however,
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that, if Viacom reasonably expects irreparable injury from a delay of ten (10)
business days, Viacom may give you notice of such shorter period within which to
cure as is reasonable under the circumstances.
(b) Good Reason Termination. You may terminate your employment under
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this Agreement for Good Reason at any time during the Term by written notice to
Viacom no more than thirty (30) days after the occurrence of the event
constituting Good Reason. Such notice shall state an effective date no earlier
than thirty (30) business days after the date it is given. Viacom shall have
ten (10) business days from the giving of such notice within which to cure and,
in the event of such cure, your notice shall be of no further force or effect.
Good Reason shall mean without your consent (other than in connection with the
termination or suspension of your employment or duties for Cause or in
connection with your Disability): (i) the assignment to you of duties or
responsibilities substantially inconsistent with your position(s) or duties;
(ii) the withdrawal of material portions of your duties described in paragraph 2
or a change in your reporting relationships such that you do not report directly
and solely to the COO or CEO; (iii) the material breach by Viacom of its
material obligations under this Agreement; or (iv) the relocation of your
position outside the New York City metropolitan area.
(c) Termination Without Cause. Viacom may terminate your employment
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under this Agreement without Cause at any time during the Term by written notice
to you.
(d) Termination Payments/Benefits. In the event that your employment
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terminates under paragraph 8(b) or (c), you shall thereafter receive, less
applicable withholding taxes:
(i) your Salary, as in effect on the date on which your employment
terminates, until the end of the Term, paid in accordance with
Viacom's then effective payroll practices;
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As of May 1, 2000
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(ii) bonus compensation for the calendar year in which such
termination occurs, payable by February 28th of the following
year, determined as follows:
(x) for the portion of the calendar year from January 1st until
the date of the termination, bonus compensation shall be
determined in accordance with the STIP (i.e., based on
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Viacom's achievement of its goals and Viacom's good faith
estimate of your achievement of your personal goals) and
prorated for such period; and
(y) for the remaining portion of such calendar year during the
Term, bonus compensation shall be in an amount equal to your
Target Bonus and prorated for such period;
(iii) bonus compensation for each subsequent calendar year or portion
thereof during the Term, in an amount equal to your Target Bonus,
prorated for any partial calendar year and payable by February
28th of the following year;
(iv) your car allowance until the end of the Term, paid in accordance
with Viacom's then effective payroll practices;
(v) medical and dental insurance coverage provided under COBRA at no
cost to you (except as hereafter described) pursuant to Viacom's
then-current benefit plans until the end of the Term or, if
earlier, the date on which you become eligible for medical and
dental coverage from a third party; provided, that, during the
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period that Viacom provides you with this coverage, an amount
equal to the applicable COBRA premiums (or such other amounts as
may be required by law) will be included in your income for tax
purposes to the extent required by law and Viacom may withhold
taxes from your compensation for this purpose; and provided,
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further, that you may elect to continue your medical and dental
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insurance coverage under COBRA at your own expense for the
balance, if any, of the period required by law;
(vi) life insurance coverage until the end of the Term pursuant to
Viacom's then-current policy in the amount then furnished to
Viacom employees at no cost (the amount of such coverage will be
reduced by the amount of life insurance coverage furnished to you
at no cost by a third party employer); and
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(vii) the following with respect to any stock options granted to you
under the 1997 LTMIP and any predecessor or successor plans
("LTMIP"):
(x) all LTMIP stock options that have not vested and become
exercisable on the date of such termination but that would
have vested on or before the end of the Term shall vest on
the date of termination; such LTMIP stock options shall
remain exercisable for six (6) months after such date or, if
earlier, until their expiration date; and
(y) all outstanding LTMIP stock options that have previously
vested and become exercisable by the date of such
termination shall remain exercisable for six (6) months
after such date or, if earlier, until their expiration date.
You shall be required to mitigate the amount of any payment provided for in (i),
(ii), (iii) and (iv) of this paragraph 8(d) by seeking other employment, and the
amount of such payments shall be reduced by any compensation earned by you from
any source, including, without limitation, salary, sign-on or annual bonus
compensation, consulting fees, commission payments, car allowance and, in the
event you receive long-term compensation with a present value, as reasonably
determined by Viacom, greater than you would likely have received from Viacom
during a comparable period (based on historical grants of long-term compensation
during your service with Viacom and Viacom's practices with respect to your
position, and prorating the value of such long-term compensation over the term
of service required to vest therein), in each case as reasonably determined by
Viacom, the amount of such excess; provided, that mitigation shall not be
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required, and no reduction for other compensation shall be made, for twelve (12)
months after the termination of your employment or, if less, the balance of the
Term.
(e) Non-Renewal Notice/Payments. If Viacom elects not to extend or renew
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this Agreement at the end of the Term, you shall receive the following:
(i) If (x) Viacom notifies you less than twelve (12) months before
the end of the Term that it has elected not to extend or renew
this Agreement (such notice is referred to as a "Non-Renewal
Notice"), or (y) your employment terminates under paragraph 8(b)
or (c) during the final twelve (12) months of the Term, you shall
continue to receive, after your employment terminates, your then-
current Salary for the balance of the twelve (12) months from the
date on which the Non-Renewal Notice is given or your employment
terminates, whichever is earlier.
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(ii) If Viacom does not give you a Non-Renewal Notice by the end of
the Term and you remain employed through that date but have not
entered into a new contractual relationship with Viacom or any of
its affiliated companies, and Viacom thereafter terminates your
employment without Cause, you shall continue to receive your
then-current Salary for the balance, if any, of the twelve (12)
months after the expiration of the Term.
Notwithstanding the foregoing, you shall not receive Salary under this
paragraph 8(e) with respect to any period for which you receive Salary under
paragraph 8(d)(i). Payments under this paragraph 8(e) shall be made, less
applicable withholding taxes, in accordance with Viacom's then effective payroll
practices. You shall be required to mitigate the amount of any payment under
this paragraph 8(e) by seeking other employment, and the amount of any such
payment shall be reduced by any compensation earned by you from any source,
including, without limitation, salary, sign-on or annual bonus compensation,
consulting fees, commission payments, car allowance and, in the event you
receive long-term compensation with a present value, as reasonably determined by
Viacom, greater than you would likely have received from Viacom during a
comparable period (based on historical grants of long-term compensation during
your service with Viacom and Viacom's practices with respect to your position,
and prorating the value of such long-term compensation over the term of service
required to vest therein), in each case as reasonably determined by Viacom, the
amount of such excess.
(f) Termination of Benefits. Notwithstanding anything in this
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Agreement to the contrary (except as otherwise provided in paragraph 8(d) with
respect to medical and dental benefits and life insurance), participation in all
Viacom benefit plans and programs (including, without limitation, vacation
accrual, the Viacom Investment Plan, the Viacom Pension Plan and the related
excess plans, LTD, car insurance and accidental death and dismemberment and
business travel and accident insurance) will terminate upon the termination of
your employment except to the extent otherwise expressly provided in such plans
or programs and subject to any vested rights you may have under the terms of
such plans or programs. The foregoing shall not apply to the LTMIP and, after
the termination of your employment, your rights under the LTMIP shall be
governed by the terms of the LTMIP option agreements and the applicable LTMIP
plans together with paragraph 8(d)(vii).
(g) Resignation from Official Positions. If your employment with
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Viacom terminates for any reason, you shall be deemed to have resigned at that
time from any and all officer or director positions that you may have held with
Viacom or any of its affiliated companies and all board seats or other positions
in other entities you held on behalf of Viacom. If, for any reason, this
paragraph 8(g) is deemed insufficient to effectuate such resignation, you agree
to execute, upon the request of Xxxxxx, any documents or instruments which
Viacom may deem necessary or desirable to effectuate such resignation or
resignations, and you hereby authorize the Secretary and any Assistant Secretary
of Viacom to execute any such documents or instruments as your attorney-in-fact.
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(h) Election of Rights Under Executive Severance Plan. In the event
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that your employment is terminated on or before May 4, 2001 by Viacom without
Cause or by you for Good Reason within the meaning of such terms under this
Agreement and the Viacom Executive Severance Plan for Senior Vice Presidents
(the "Severance Plan"), then you may elect to receive the severance compensation
and benefits provided either (i) in this Agreement, or (ii) in the Severance
Plan. By entering into this Agreement, you waive your right to terminate your
employment for Good Reason under the Severance Plan based on events that
occurred before you entered into this Agreement. If your employment terminates
without Cause or for Good Reason, you will remain subject to all of the terms
and conditions, including, without limitation, restrictive covenants and the
requirement of a general release (i) provided in this Agreement if you elect the
severance compensation and benefits provided in this Agreement, or (ii) provided
in the Severance Plan if you elect the severance compensation and benefits
provided in the Severance Plan.
9. Death. In the event of your death prior to the end of the Term
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while actively employed, your beneficiary or estate shall receive (i) your
Salary up to the date on which the death occurs; (ii) any Bonus earned in the
prior year but not yet paid; and (iii) bonus compensation for the calendar year
in which the death occurs, determined in accordance with the STIP (i.e., based
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upon Viacom's achievement of its goals and Viacom's good faith estimate of your
achievement of your personal goals) and pro-rated for the portion of the year
through the date of death, payable, less applicable deductions and withholding
taxes, by February 28th of the following year. In the event of your death after
the termination of your employment while you are entitled to receive
compensation under paragraph 8(d) or (e), your beneficiary or estate shall
receive (x) any Salary payable under paragraph 8(d)(i) or 8(e) up to the date on
which the death occurs; (y) any bonus compensation earned under paragraph
8(d)(ii) or (iii) with respect to the prior year but not yet paid; and (z) any
bonus compensation for the calendar year in which the death occurs, determined
in accordance with paragraph 8(d)(ii) or (iii) and pro-rated for the portion of
the year through the date of death, payable, less applicable deductions and
withholding taxes, by February 28th of the following year. Your beneficiary or
estate or permitted transferee shall also be entitled to exercise LTMIP stock
options which are exercisable on or prior to your death, together with all LTMIP
stock options that would have vested and become exercisable on or prior to the
last day of the Term but for your death (which options shall immediately become
vested and exercisable), until the first anniversary of the date of death or, if
earlier, the expiration date of the stock options.
10. No Acceptance of Payments. You represent that you have not
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accepted or given nor will you accept or give, directly or indirectly, any
money, services or other valuable consideration from or to anyone other than
Viacom for the inclusion of any matter as part of any film, television program
or other production produced, distributed and/or developed by Viacom and/or any
of its affiliated companies.
Xxxxxxx X. Xxxxxxxx
As of May 1, 2000
Page 12
11. Equal Opportunity Employer; Employee Statement of Business Conduct.
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You recognize that Viacom is an equal opportunity employer. You agree that you
will comply with Viacom policies regarding employment practices and with
applicable federal, state and local laws prohibiting discrimination on the basis
of race, color, sex, religion, national origin, citizenship, age, marital
status, sexual orientation, disability or veteran status. In addition, you
agree that you will comply with the Viacom Employee Statement of Business
Conduct.
12. Indemnification. Viacom hereby agrees that it shall indemnify and hold
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you harmless to the maximum extent permitted by law. Neither the determination
of Viacom, its Board of Directors, independent legal counsel or stockholders
that you are not entitled to indemnification or the failure of any or all of
them to make any determination regarding such entitlement shall create any
presumption or inference that you have not met the applicable standard of
conduct. If you have any knowledge of any actual or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, as to
which you may request indemnity under this provision (a "Proceeding"), you will
give Viacom prompt written notice thereof; provided, that the failure to give
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such notice shall not affect your right to indemnification. Viacom shall be
entitled to assume the defense of any Proceeding and you will use reasonable
efforts to cooperate with such defense. To the extent that you in good faith
determine that there is an actual or potential conflict of interest between
Viacom and you in connection with the defense of a Proceeding, you shall so
notify Viacom and shall be entitled to separate representation by counsel
selected by you (provided that Viacom may reasonably object to the selection of
counsel within five (5) business days after notification thereof) which counsel
shall cooperate, and coordinate the defense, with Viacom's counsel and minimize
the expense of such separate representation to the extent consistent with your
separate defense. Viacom shall not be liable for any settlement of any
Proceeding effected without its prior written consent. You shall be entitled to
advancement of expenses incurred by you in defending any Proceeding upon receipt
of an undertaking by you or on your behalf to repay such amount if it shall
ultimately be determined that you are not entitled to be indemnified by Viacom.
13. Notices. All notices under this Agreement must be given in writing,
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by personal delivery or by mail, at the parties' respective addresses shown on
this Agreement (or any other address designated in writing by either party),
with a copy, in the case of Viacom, to the attention of the Senior Vice
President, Human Resources and Administration of Viacom. Any notice given by
mail shall be deemed to have been given three days following such mailing.
14. Assignment. This is an Agreement for the performance of personal
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services by you and may not be assigned by you or Viacom except that Viacom may
assign this Agreement to any affiliated company of or any successor in interest
to Viacom.
Xxxxxxx X. Xxxxxxxx
As of May 1, 2000
Page 13
15. NEW YORK LAW, ETC. YOU ACKNOWLEDGE THAT THIS AGREEMENT HAS BEEN
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EXECUTED, IN WHOLE OR IN PART, IN NEW YORK, AND YOUR EMPLOYMENT DUTIES ARE
PRIMARILY PERFORMED IN NEW YORK. ACCORDINGLY, YOU AGREE THAT THIS AGREEMENT AND
ALL MATTER OR ISSUES ARISING OUT OF OR RELATING TO YOUR VIACOM EMPLOYMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS ENTERED
INTO AND PERFORMED ENTIRELY THEREIN. ANY ACTION TO ENFORCE THIS AGREEMENT SHALL
BE BROUGHT SOLELY IN THE STATE OR FEDERAL COURTS LOCATED IN THE CITY OF NEW
YORK, BOROUGH OF MANHATTAN.
16. No Implied Contract. Nothing contained in this Agreement shall
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be construed to impose any obligation on Viacom or you to renew this Agreement
or any portion thereof. The parties intend to be bound only upon execution of a
written agreement and no negotiation, exchange of draft or partial performance
shall be deemed to imply an agreement. Neither the continuation of employment
nor any other conduct shall be deemed to imply a continuing agreement upon the
expiration of the Term.
17. Entire Understanding. This Agreement contains the entire
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understanding of the parties hereto relating to the subject matter contained in
this Agreement, and can be changed only by a writing signed by both parties.
18. Void Provisions. If any provision of this Agreement, as applied
---------------
to either party or to any circumstances, shall be found by a court of competent
jurisdiction to be unenforceable but would be enforceable if some part were
deleted or the period or area of application were reduced, then such provision
shall apply with the modification necessary to make it enforceable, and shall in
no way affect any other provision of this Agreement or the validity or
enforceability of this Agreement.
Xxxxxxx X. Xxxxxxxx
As of May 1, 2000
Page 14
19. Supersedes Prior Agreements. With respect to the period covered by the
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Term, this Agreement supersedes and cancels all prior agreements relating to
your employment by Viacom or any of its affiliated companies.
If the foregoing correctly sets forth our understanding, please sign, date
and return all three (3) copies of this Agreement to the undersigned for
execution on behalf of Viacom; after this Agreement has been executed by Xxxxxx
and a fully-executed copy returned to you, it shall constitute a binding
agreement between us.
Very truly yours,
VIACOM INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President,
Human Resources and
Administration
ACCEPTED AND AGREED:
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Dated: September 12, 2000
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