Exhibit 10.27
AMENDMENT
TO
AMENDED AND RESTATED EXECUTIVE
EMPLOYMENT AGREEMENT
WHEREAS, Mattel, Inc. (“ Mattel ”) and
Thomas A. Debrowski (the “ Executive ”) have
entered into an Amended and Restated Executive Employment Agreement
dated November 13, 2000, as amended March 17, 2005 and as
amended October 11, 2005 (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. 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.”
3. 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:”
4. 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, reporting structure or responsibilities of
the Executive as contemplated by Section 2 of this
Agreement;”
5. 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;”
6. 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”
7. 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 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
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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”
8. 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”
9. The final paragraph of
Section 4(d) of the Agreement shall be deleted in its entirety
and replaced with the following sentence:
“As soon as practicable after
a Change of Control, Mattel shall notify the Executive that a
Change of Control has occurred.”
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10. 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 second anniversary
of the Date of Termination.”
11. 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:”
12. Sections 5(d)(i)(C) 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.
13. Sections 5(d)(iv) and 5(e)(iii)
of the Agreement shall be amended in their entirety to read as
follows:
“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 the Executive’s
employment had not terminated.”
14. 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
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
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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);”
15. Sections 5(d)(v)(D) and
5(e)(iv)(E) of the Agreement shall be amended in their entirety to
read as follows:
“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.”
16. 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 the Executive’s
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 the 30 day period immediately following the six
(6) month anniversary of a Change of Control (the
“Window Period”):”
17. Section 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
Sect
