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Exhibit 10.1
MACROVISION CORPORATION
EXECUTIVE SEVERANCE AND ARBITRATION AGREEMENT
THIS EXECUTIVE SEVERANCE AND ARBITRATION AGREEMENT (the
"Agreement") is
made and entered into as of February 3,
2005 by and between Macrovision
Corporation, a Delaware corporation (the
"Company") and James Wickett
("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 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)
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), 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
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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 Executive's 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 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 January 1,
2005, 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
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.
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(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 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.
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 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
