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Exhibit 10.11
[SVP Version]
Change of Control
Terms and Conditions
TiVo Inc. (the "Corporation") considers it essential to the best
interests of its shareholders to foster the continuous employment
of the Corporation’s key management personnel. In this
regard, the Corporation’s Board of Directors (the "Board")
recognizes that, as is the case with many publicly-held
corporations, the possibility of a change in control of the
Corporation may exist and the uncertainty and questions that it may
raise among management could result in the departure or distraction
of management personnel to the detriment of the Corporation and its
shareholders.
The Board has decided to reinforce and encourage the continued
attention and dedication of members of the Corporation’s
management, including yourself, to their assigned duties without
the distraction arising from the possibility of a change in control
of the Corporation.
In order to induce you to remain in its employ, the Corporation
hereby agrees that after this letter agreement (this "Agreement")
has been fully executed, you shall receive the severance benefits
set forth in this Agreement in the event that your employment with
the Corporation is terminated under the circumstances described
below in anticipation of or subsequent to a Change in Control (as
defined below).
Term of Agreement . This Agreement shall commence on
January 1, 2007 the "Effective Date") and shall continue in
effect until the earlier of its termination by mutual consent of
you and the Corporation or the date all payments or benefits
required to be made or provided hereunder have been made or
provided in their entirety.
1. Change in Control . No benefits shall be payable
hereunder unless there has been a Change in Control. For purposes
of this Agreement, a "Change in Control" shall mean:
(i) a dissolution or liquidation of the Corporation;
(ii) a sale of all or substantially all of the assets of the
Corporation;
(iii) a sale by the stockholders of the Corporation of the
voting stock of the Corporation to another corporation or its
subsidiaries that results in the ownership by such corporation
and/or its subsidiaries of eighty percent (80%) or more of the
combined voting power of all classes of the voting stock of the
Corporation entitled to vote;
(iv) a merger or consolidation involving the Corporation in
which the Corporation is not the surviving corporation or a merger
or consolidation of a subsidiary of the Corporation and in which,
in either case, beneficial ownership of securities of the
Corporation representing at least fifty percent (50%) of the
combined voting power entitled to vote in the election of members
of the Board of Directors ("Directors") has changed;
(v) a reverse merger in which the Corporation is the surviving
corporation but the shares of the Corporation’s Common Stock
outstanding immediately preceding the merger are
converted by virtue of the merger into other
property, whether in the form of securities, cash or otherwise, and
in which beneficial ownership of securities of the Corporation
representing at least fifty percent (50%) of the combined
voting power entitled to vote in the election of Directors has
changed;
(vi) an acquisition by any person, entity or group within the
meaning of Section 13(d) or 14(d) of the Exchange Act, or any
comparable successor provisions (excluding any employee benefit
plan, or related trust, sponsored or maintained by the Corporation
or subsidiary of the Corporation or other entity controlled by the
Corporation) of the beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act, or comparable
successor rule) of securities of the Corporation representing at
least fifty percent (50%) of the combined voting power
entitled to vote in the election of Directors; or
(vii) for any reason during any period of two
(2) consecutive years (not including any period prior to the
Effective Date) a majority of the Board is constituted by
individuals other than (1) individuals who were directors
immediately prior to the beginning of such period, and (2) new
directors whose election or appointment by the Board or nomination
for election by the Corporation’s stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors immediately prior to the
beginning of the period or whose election or nomination for
election was previously so approved.
2. Termination in Anticipation of or Following Change in
Control .
(i) General . If a Change in Control shall have occurred
during the term of this Agreement, you shall be entitled to the
benefits provided in Section 4(ii) if your employment is
terminated within the thirteen (13) month period immediately
following the date of such Change in Control (a) by the
Corporation other than for Cause or Disability (each as defined
below), or (b) by you for Good Reason (as defined below) (a
termination of your employment under the circumstances described in
this sentence is sometimes hereinafter referred to as a "Payment
Termination"). Notwithstanding anything contained herein, if your
employment is terminated during the period commencing on the public
announcement of a transaction which if consummated will constitute
a Change in Control and ending on the date of consummation of such
Change in Control either by the Corporation other than for Cause or
Disability or by you for Good Reason, and if such termination
(1) was at the request of a third party effecting the Change
in Control or (2) otherwise arose in connection with or in
anticipation of the Change in Control, then for all purposes of
this Agreement your employment shall be deemed to have been
terminated immediately after the actual occurrence of the Change in
Control; provided, however that nothing herein shall extend the
period within which any option to purchase the Corporation’s
capital stock that you hold may be exercised following your
termination of employment in such a manner as to result in adverse
tax consequences to you under Section 409A of the Internal
Revenue Code of 1986, as amended (the "Code"). Except as described
in the preceding sentence, in the event that your employment with
the Corporation is terminated for any reason and subsequently a
Change in Control occurs, you shall not be entitled to any benefits
hereunder.
(ii) Death or Disability . Your employment with the
Corporation shall terminate automatically upon your death. The
Corporation may terminate your employment for Disability, but only
if that Disability continues through the Date of Termination (as
hereinafter
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defined). For purposes of this Agreement,
"Disability" shall mean your absence from the full-time performance
of your duties with the Corporation for six (6) consecutive
months by reason of your physical or mental illness.
(iii) Cause . The Corporation may terminate your
employment for Cause. For purposes of this Agreement, "Cause" shall
mean (a) your willful and continued failure to substantially
perform your duties with the Corporation (other than any such
failure resulting from your incapacity due to physical or mental
illness or any such actual or anticipated failure after your
issuance of a Notice of Termination (as defined below) for Good
Reason), after a written demand for substantial performance is
delivered to you by the Board, which demand specifically identifies
the manner in which the Board believes that you have not
substantially performed your duties, (b) your willful and
continued failure to substantially follow and comply with the
specific and lawful directives of the Board, as reasonably
determined by the Board (other than any such failure resulting from
your incapacity due to physical or mental illness or any such
actual or anticipated failure after your issuance of a Notice of
Termination for Good Reason), after a written demand for
substantial performance is delivered to you by the Board, which
demand specifically identifies the manner in which the Board
believes that you have not substantially performed your duties,
(c) your willful commission of an act of fraud or dishonesty
resulting in material economic or financial injury to the
Corporation, or (d) your conviction of, or entry by you of a
guilty or no contest plea to, the commission of a felony involving
moral turpitude. For purposes of this Section 3(iii), no act,
or failure to act, on your part shall be deemed "willful" unless
done, or omitted to be done, by you not in good faith.
(iv) Good Reason . You may terminate your employment with
the Corporation for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean the occurrence, after a Change in Control,
of any one or more of the following events without your prior
written consent, unless the Corporation fully corrects the
circumstances constituting Good Reason (provided such circumstances
are capable of correction) prior to the Date of Termination:
(a) A material reduction in the nature or scope of your
responsibilities, or the assignment to you of duties that are
materially inconsistent with your position (in each case as
compared to your responsibilities, duties or position immediately
prior to the Change in Control);
(b) the Corporation’s reduction of your annual base salary
or bonus opportunity, each as in effect on the date hereof or as
the same may be increased from time to time;
(c) the relocation of the Corporation’s offices at which
you are principally employed immediately prior to the date of the
Change in Control (your "Principal Location") such that your
one-way daily commute from your principal residence to the
Corporation’s offices at which you are principally employed
is increased by more than fifty (50) miles;
(d) the Corporation’s failure to pay to you any portion of
your then current compensation or any portion of an installment of
deferred compensation under any deferred compensation program of
the Corporation, in each case within seven (7) days of the
date such compensation is due;
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(e) the Corporation’s failure to continue
in effect compensation and benefit plans which provide you with
benefits which are no less favorable on an aggregate basis, both in
terms of the amount of benefits provided and the level of your
participation relative to other participants, to the benefits
provided to you under the Corporation’s compensation and
benefit plans and practices immediately prior to the Change in
Control;
(f) the Corporation’s failure to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement, as contemplated in Section 5 hereof; or
(g) any purported termination of your employment that is not
effected pursuant to a Notice of Termination satisfying the
requirements of Section 3(v) hereof (and, if applicable, the
requirements of Section 3(iii) hereof), which purported
termination shall not be effective for purposes of this
Agreement.
Your right to terminate your employment pursuant to this
Section 3(iv) shall not be affected by your incapacity due to
physical or mental illness. Your continued employment shall not
constitute consent to, or a waiver of rights with respect to, any
circumstance constituting Good Reason hereunder.
(v) Notice of Termination . Any purported termination of
your employment by the Corporation or by you (other than
termination due to your death, which shall terminate your
employment automatically) shall be communicated by a written Notice
of Termination to the other party hereto in accordance with
Section 6. For purposes of this Agreement, "Notice of
Termination" shall mean a notice that shall indicate the specific
termination provision in this Agreement (if any) relied upon and
shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of your employment under
the provision so indicated.
(vi) Date of Termination . For purposes of this
Agreement, "Date of Termination" shall mean (a) if your
employment is terminated due to your death, the date of your death;
(b) if your employment is terminated for Disability, thirty
(30) days after Notice of Termination is given (provided that
you shall not have returned to the full time performance of your
duties during such thirty (30) day period), and (c) if
your employment is terminated for any reason other than death or
Disability, the date specified in the Notice of Termination (which,
in the case of a termination by the Corporation without Cause shall
not be less than thirty (30) days from the date such Notice of
Termination is given, and in the case of a termination by you for
Good Reason shall not be less than fifteen (15) nor more than
thirty (30) days from the date such Notice of Termination is
given).
3. Compensation Upon Termination .
(i) If your employment with the Corporation is terminated by
reason of your death, by the Corporation for Cause or Disability,
or by you other than for Good Reason, the Corporation shall pay you
your full base salary, when due, through the Date of Termination at
the rate in effect at the time Notice of Termination is given, plus
all other amounts to which you are entitled under any compensation
plan or practice of the Corporation at the time such payments are
due, and the Corporation shall have no further obligations to you
under this Agreement.
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(ii) If you incur a Payment Termination, then,
subject to Section 4(v), in lieu of any severance benefits to
which you may otherwise be entitled under any severance plan or
program of the Corporation or by law, you shall be entitled to the
benefits provided below:
(a) the Corporation shall, at the time specified in
Section 4(iii), pay to you your full base salary, when due,
through the Date of Termination at the rate in effect at the time
Notice of Termination is given, plus all other amounts to which you
are entitled under any compensation plan or practice of the
Corporation at the time such payments are due;
(b) the Corporation shall, at the time specified in
Section 4(iii), pay as severance pay to you a lump-sum
severance payment equal to the sum of the following:
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(A) seventy-five percent (75%) of the greater of
(x) your annual base salary as in effect immediately prior to
delivery of the Notice of Termination or (y) your annual base
salary as in effect immediately prior to the Change in Control;
and
(B) seventy-five percent (75%) of the greater of
(x) your targeted annual bonus for the year in which the Date
of Termination occurs or (y) your targeted annual bonus for
the year in which the Change in Control occurs, as if the
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