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Exhibit 10.22
FORM OF
MACROVISION CORPORATION
EXECUTIVE SEVERANCE AND ARBITRATION AGREEMENT
THIS EXECUTIVE SEVERANCE AND ARBITRATION AGREEMENT (the
"Agreement") is made and entered into as of
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 Executive’s
position, and that the Company be able to receive and rely upon
Executive’s 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 Executive’s 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
Executive’s 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.
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(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) Executive’s
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 Executive’s 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
Executive’s employment. Such severance pay shall be in the
form of salary continuation of Executive’s 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 six (6) month period immediately following the date
on which Executive’s employment with the Company terminates;
provided, however, that, if Executive commences new employment
within such six (6) month period, such severance pay shall
cease on the later of (i) the date six (6) months after
Executive’s 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
, 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 director’s 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
Company’s 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 Executive’s consent: (i) a
substantial diminution in the Executive’s status, position or
responsibilities, or the assignment to the Executive of any duties
or responsibilities that are inconsistent with the
Executive’s status, position or responsibilities; (ii) a
material reduction in the Executive’s base salary; or
(iii) a relocation of the Executive’s principal place of
employment to a new work site requiring an increase in one-way
commute from Executive’s residence of more than thirty-five
(35) miles.
(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.
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(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 Executive’s 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 Company’s
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 Executive’s 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 a
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