Exhibit 10.18
AMENDMENT
TO
AMENDED AND
RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
WHEREAS, Mattel, Inc. (“ Mattel ”) and
Neil B. Friedman (the “ Executive ”) have
entered into an Amended and Restated Executive Employment Agreement
dated January 31, 2000 as amended February 10, 2000, as
amended November 14, 2000, as amended March 17, 2005, and
as amended March 27, 2007 (the “ Agreement
”);
WHEREAS, pursuant to Section 12 of the Agreement,
Mattel and the Executive may amend the Agreement pursuant to a
written instrument executed by the Executive and Mattel;
and
WHEREAS, as a result of the enactment in 2004 of
Section 409A of the Internal Revenue Code of 1986, as amended
from time to time (the “ Code ”), the Company
and the Executive desire to amend the Agreement to evidence the
intention that the terms of the Agreement be exempt from or comply
with Section 409A of the Code.
NOW, THEREFORE,
pursuant to Section 12 of the
Agreement, the Agreement is hereby amended, effective as of
December 31, 2008, as follows:
1. Capitalized Terms .
Capitalized terms that are not defined in this Amendment shall have
the meanings ascribed thereto in the Agreement.
2. All references to New York, New
York in the Agreement shall be amended to refer to Los Angeles,
California.
3. The first sentence of
Section 4(a) of the Agreement shall be amended by adding the
following proviso at the end thereof to read as follows:
“; provided , further,
that all such payments in respect of the Executive’s death
pursuant to this Section 4(a) shall be paid to the
Executive’s estate no later than March 15th of the
calendar year following the calendar year in which the Executive
dies, including, if applicable, a final lump sum payment on
March 15th (or the last business day immediately prior
thereto) of the calendar year following the Executive’s
death, such that the aggregate of such payments in respect of the
continued Base Salary equals 50% of the Executive’s annual
Base Salary at the rate in effect at the time of
death.”
4. The first paragraph of
Section 4(c) of the Agreement shall be amended in its entirety
to read as follows:
“(c) Good Reason . The
Executive may terminate his employment for Good Reason. For
purposes of this Agreement, “Good Reason” means the
good faith determination by the Executive that any one or more of
the following have occurred, provided that (i) the
Executive provides Mattel with written notice of the Good Reason
event within ninety (90) days of the initial existence of such
event, (ii) such event is not remedied by Mattel within thirty
(30) days following the delivery of written notice of such
Good Reason event and (iii) the Executive actually terminates
his employment within two (2) years following the initial
existence of such Good Reason event:”
5. Section 4(c)(i) of the
Agreement shall be amended in its entirety to read as
follows:
“(i) without the express
written consent of the Executive, any material diminution in any of
the duties, authority, or responsibilities of the Executive as
contemplated by Section 2 of this Agreement;”
6. Section 4(c)(iii) of the
Agreement shall be amended in its entirety to read as
follows:
“(iii) any other action or
inaction that constitutes a material breach of this Agreement by
Mattel;”
7. Section 4(c)(iv) of the
Agreement shall be amended in its entirety to read as
follows:
“(iv) any failure by Mattel to
obtain the assumption and agreement to perform this Agreement by a
successor as contemplated by Section 11(b), except where such
assumption and agreement occurs by operation of law;
or”
8. Section 4(d)(i) of the
Agreement shall be amended in its entirety to read as
follows:
“(i) the acquisition by any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 35% or
more of either (i) the then outstanding shares of common stock
of Mattel (the “Outstanding Company Common Stock”) or
(ii) the
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combined voting power of the then
outstanding voting securities of Mattel entitled to vote generally
in the election of directors (the “Outstanding Company Voting
Securities”); provided, however , that for purposes of
this subsection (i), the following shall not constitute a
Change of Control: (a) any acquisition directly from Mattel,
(b) any acquisition by Mattel or any corporation controlled by
Mattel, (c) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by Mattel or any corporation
controlled by Mattel, (d) any acquisition by a Person of 35%
or more of either the Outstanding Company Common Stock or the
Outstanding Company Voting Securities as a result of an acquisition
of common stock of Mattel by Mattel which, by reducing the number
of shares of common stock of Mattel outstanding, increases the
proportionate number of shares beneficially owned by such Person to
35% or more of either the Outstanding Company Common Stock or the
Outstanding Company Voting Securities; provided ,
however , that if a Person shall become the beneficial owner
of 35% or more of either the Outstanding Company Common Stock or
the Outstanding Company Voting Securities by reason of a share
acquisition by Mattel as described above and shall, after such
share acquisition by Mattel, become the beneficial owner of any
additional shares of common stock of Mattel, then such acquisition
shall constitute a Change of Control or (e) any acquisition
pursuant to a transaction which complies with clauses (a),
(b) and (c) of subsection (iii) of this
Section 4(d); or”
9. Section 4(d)(iii)(b) of the
Agreement shall be amended in its entirety to read as
follows:
“(b) no Person (excluding
any employee benefit plan (or related trust) of Mattel or such
corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 35% or more of, respectively, the
then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting
power of the then outstanding voting securities of such corporation
except to the extent that such ownership existed prior to the
Business Combination and”
10. The final paragraph of
Section 4(d) of the Agreement shall be deleted in its entirety
and replaced with the following sentence:
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“As soon as practicable after
a Change of Control, Mattel shall notify the Executive that a
Change of Control has occurred.”
11. The final sentence of
Section 5(a) of the Agreement shall be amended in its entirety
to read as follows:
“As of the Date of
Termination, the Executive’s family shall be entitled to
continued healthcare coverage as in effect from time to time on the
same terms and conditions as such insurance is available to active
employees of Mattel and financial counseling benefits through the
vendor engaged and paid for by Mattel until the third anniversary
of the Date of Termination.”
12. The first paragraph of
Sections 5(d)(i) and 5(e)(i) of the Agreement shall be amended
in their entirety to read as follows:
“(i) Mattel shall pay to the
Executive in a lump sum in cash on the 55th day after the Date of
Termination (or the first business day thereafter) the aggregate of
the following amounts:”
13. Sections 5(d)(i)(B),
5(d)(i)(C), 5(e)(i)(B) and 5(e)(i)(C) of the Agreement shall
be amended by adding the phrase, “subject to
Section 5(f),” at the beginning of such
provisions.
14. Sections 5(d)(iv) and 5(e)(iii)
of the Agreement shall be amended in their entirety to read as
follows:
“(iv) Mattel shall, promptly
upon submission by the Executive of supporting documentation, pay
or reimburse to the Executive any costs and expenses paid or
incurred by the Executive during the Employment Period which would
have been payable under Section 3(e) if his employment had not
terminated.”
15. Sections 5(d)(v)(A) and
5(e)(iv)(A) of the Agreement shall be amended in their entirety to
read as follows:
“(A) a monthly amount equal to
the applicable COBRA premium for the level of coverage that the
Executive has as of the Date of Termination (i.e., single, single
plus one, or family) under Mattel’s medical, dental,
prescription drug and vision care group insurance as in effect from
time to time, which payment shall be paid in advance on the
first
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payroll day of each month,
commencing with the month immediately following the
Executive’s Date of Termination; provided, however ,
that any such payments otherwise payable to the Executive within
the first 54 days following the Date of Termination shall not be
paid on the otherwise scheduled payment date but shall instead
accumulate and be and on the 55th day following the Date of
Termination. During such period, subject to the Executive’s
continued payment of premiums, Mattel will make available to the
Executive and the Executive’s eligible dependents, at the
Executive’s cost (in an amount equal to the COBRA premium
cost therefor), coverage under Mattel’s medical, dental,
prescription drug and vision care group insurance (which shall be
concurrent with any health care continuation benefits to which the
Executive or his eligible dependents are entitled under
COBRA);”
16. Sections 5(d)(v)(E) and
5(e)(iv)(E) of the Agreement shall be amended in their entirety to
read as follows:
“(E) membership in one city or
country club and related expenses. Mattel shall cause the
membership to be transferred to the Executive at no cost to the
Executive, provided that such transfer shall occur no later than
March 15th of the calendar year following the calendar year in
which the Date of Termination occurs.”
17. Sections 5(d)(vi) and
5(e)(v) of the Agreement shall be amended by adding the following
proviso at the end thereof to read as follows:
“; provided ,
however , that such credit for additional years of service
and age shall not accelerate the time of payment under such
arrangements in a manner that would result in the imposition of
tax, interest and/or penalties upon the Executive under
Section 409A of the Code (“Section
409A”).”
18. The first paragraph of
Section 5(e) of the Agreement shall be amended in its entirety
to read as follows:
“(e) Change of Control
. Except as provided below, if, within 18 months following a Change
of Control, (x) the Executive terminates his employment for
Good Reason , (y) Mattel or the surviving entity terminates
the Executive’s employment other than for Cause or Disability
or (z) the Executive terminates his employment for any reason
within
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the 30 day period immediately
following the six (6) month anniversary of a Change
of
