Exhibit 10.05 MACROVISION CORPORATION EXECUTIVE SEVERANCE AND ARBITRATION AGREEMENTArbitration or Mediation Agreement |
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Exhibit 10.05
MACROVISION CORPORATION
EXECUTIVE SEVERANCE AND ARBITRATION AGREEMENT
THIS EXECUTIVE SEVERANCE AND ARBITRATION AGREEMENT (the Agreement) is made and entered into as of (date) by and between Macrovision Corporation, a Delaware corporation (the Company) and (Executive).
WHEREAS, the Board of Directors (the Board) of the Company has recommended and authorized the Company to enter into a severance agreement in the form hereof with Executive; and
WHEREAS, the Board has determined that, in the event of a possible threatened or pending sale or other change in control of the Company, it is imperative that the Company and the Board be able to rely upon Executive to continue in Executives position, and that the Company be able to receive and rely upon Executives advice, if requested, as to the best interests of the Company and its stockholders without concern that Executive might be distracted by the personal uncertainties and risks created by any such possible transactions; and
WHEREAS, in connection with the foregoing, Executive may, in addition to Executives regular duties, be called upon to assist in the assessment of any such possible transactions, advise management and the Board as to whether such proposals would be in the best interests of the Company and its stockholders, and to take such other actions as the Board might determine to be appropriate;
NOW, THEREFORE, to assure the Company that it will have the continued dedication of Executive and the availability of Executives advice and counsel through the occurrence of any Change in Control (as defined in Section 1(b) below) of the Company, and to induce Executive to enter into and remain in the employ of the Company, and for other good and valuable consideration, the Company and Executive agree as follows:
1. Payment of Severance Benefit.
(a) In the event that a Change in Control (as hereinafter defined) occurs and, within the period beginning ninety (90) days before the date of the Change in Control and ending twelve (12) months thereafter, (a) Executives employment is terminated by the Company or a Subsidiary (as hereinafter defined) without Cause (as hereinafter defined) or (b) Executive voluntarily terminates his/her employment with Company and its Subsidiaries with Good Reason (as hereinafter defined), then the Company shall pay to Executive severance pay under this Agreement. Transfer of Executives employment from the Company to a Subsidiary (or to an entity of which the Company is a Subsidiary) or from a Subsidiary to the Company or to another Subsidiary (or to an entity of which the Company is a Subsidiary), by itself shall not be considered a termination of Executives employment. Such severance pay shall be in the form of salary continuation of Executives regular base pay in effect ninety (90) days before the time of the Change in Control or at the time of the termination of his employment, whichever is greater. The Company shall pay such severance pay during the twelve (12) month period immediately following the date on which Executives employment with the Company terminates; provided, however, that, if Executive commences new employment within such twelve (12) month period, such severance pay shall cease on the later of (i) the date six (6) months after Executives employment with the Company terminates or (ii) the date Executive commences new employment.
(b) Change in Control means any of the following events: (i) any person or group (as defined in or pursuant to Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act)) other than the Company, is or becomes the beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly (including by holding securities which are exercisable for or convertible into shares of capital stock of the Company), of securities of the Company representing 50% or more of the voting power of the outstanding shares of capital stock of the Company entitled to vote generally in the election of directors; (ii) the Company sells or exchanges, through merger, assignment or
otherwise, in one or more transactions, other than in the ordinary course of business, assets which provided at least seventy percent (70%) of the revenues or pre-tax net income of the Company and its Subsidiaries on a consolidated basis during the most recently completed fiscal year; or (iii) Continuing Directors cease to constitute at least a majority of the Board. Continuing Directors are (A) each director serving on the Board on July 1, 2007, and (B) any successor to any such director whose nomination or selection was approved by a majority of the directors in office at the time of the directors nomination or selection. Notwithstanding the foregoing, the following events shall not constitute a Change in Control: any acquisition of beneficial ownership pursuant to (i) a reclassification, however effected, of the Companys authorized common stock, or (ii) a corporate reorganization involving the Company or a Subsidiary which does not result in a material change in the ultimate ownership by the stockholders of the Company (through their ownership of the Company or its successor resulting from the reorganization) of the assets of the Company and its Subsidiaries, but only if such reclassification or reorganization has been approved by the Board.
(c) Cause means the occurrence of any one or more of the following: (i) conviction of any felony or any act of fraud, misappropriation or embezzlement which has an immediate and materially adverse effect on the Company or a Subsidiary; (ii) engaging in a fraudulent act to the material damage or prejudice of the Company or a Subsidiary or engaging in conduct or activities materially damaging to the property, business or reputation of the Company or a Subsidiary; (iii) failure to comply in any material respect with the terms of any applicable employment agreement or any written policies or directives of the Board which have an immediate and materially adverse effect on the Company or a Subsidiary and which has not been corrected within 30 days after written notice from the Company of such failure; (iv) any material act or omission involving malfeasance or negligence in the performance of employment duties which has an immediate and materially adverse effect on the Company or a Subsidiary and which has not been corrected within 30 days after written notice from the Company; or (v) material breach of any other agreement with the Company, which has an immediate and materially adverse effect on the Company or a Subsidiary and which has not been cured within 30 days after written notice from the Company of such breach.
(d) Good Reason means the occurrence of any of the following without the Executives consent: (i) a material diminution in the Executives authority, duties or responsibilities, or the assignment to the Executive of any duties or responsibilities that are inconsistent with the Executives authority, duties or responsibilities; (ii) a material diminution in the Executives base salary; or (iii) a relocation of the Executives principal place of employment to a new work site requiring an increase in one-way commute from Executives residence of more than thirty-five (35) miles. Within 90 days of the initial occurrence of any of the events listed in this section, Executive must provide written notice to the Company of the occurrence of the event, and the Company shall have 30 days following receipt of such notice during which it may remedy the condition. If Executive fails to give such notice within the 90 day period or the Company remedies the condition within the 30 day period, the occurrence of such event shall not constitute Good Reason.
(e) Subsidiary means (i) any corporation, foreign or domestic, in which the Company directly or indirectly owns 50% or more of the issued and outstanding voting stock on an as converted basis or (ii) any partnership, foreign or domestic, in which the Company owns a direct or indirect interest equal to 50% or more of the outstanding equity interests.
(f) Notwithstanding the foregoing, if any payment hereunder, or any portion thereof, is considered nonqualified deferred compensation that is to be paid to Executive at a time that he is considered to be a specified employee, in each case as defined and determined for purposes of Section 409A of the Internal Revenue Code of 1986 as amended (Section 409A), and is to be paid within six months following Executives termination of employment, then to the extent that such payment is not otherwise exempt from the application of the 20% excise tax under Section 409A, such payment shall be delayed and paid on the first day of the seventh calendar month following the month in which Executives termination of employment occurs.
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2. Welfare Benefits.
(a) During the period that Company is obligated to pay Executive severance pay pursuant to Section 1(a) above, or, if sooner, until Executive is entitled to Welfare Benefits (as defined below) under any plan maintained by any entity employing Executive after Executives employment with the Company terminates, Company shall provide to Executive (and his/her spouse and other qualified dependents) all Welfare Benefits that Company provided to Executive (and his/her spouse and qualified dependents) immediately prior to the Change in Control. For purposes of this Agreement, the term Welfare Benefits shall include, without limitation, all life, dental, health, accident and disability benefit plans, other similar welfare plans, and any equivalent successor policy, plan, program or arrangement that may now exist or be adopted hereafter by the Company or a Subsidiary. Notwithstanding the foregoing, with respect to any Welfare Benefits provided through an insurance policy, the Companys obligation to provide such Welfare Benefits following a Change in Control shall be limited by the terms of such policy; provided, however, that (i) the company shall make reasonable efforts to amend such policy to provide the continued coverage described in this Section 2(a) and (ii) if such policy is not amended to provide the continued benefits described in this Section 2(a), the Company shall pay Executives cost of comparable replacement coverage.
(b) If prior to the Change in Control Executive was required to contribute towards the cost of a Welfare Benefit as a condition of receiving such Welfare Benefit, the Executive may be required to continue contributing towards the cost of such Welfare Benefit under the same terms and conditions as applied to the Executive immediately prior to the Change in Control in order to receive such Welfare Benefit.
3. Equity Compensation. The Company has granted Executive options to purchase Company common stock that are currently outstanding, but not yet exercisable in whole or in part, and the Company may grant Executive additional stock options or other forms of equity compensation in the future. The currently outstanding stock options and any future equity compensation Company grants to Executive are hereinafter referred to as the Stock Awards. Notwithstanding the provisions of any agreement(s) pursuant to which the Stock Awards are granted, in the event that a Change in Control occurs and, within the period beginning ninety (90) days before the date of th







