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Exhibit
10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (this “ Agreement ”) is
entered into by and between TiVo Inc., a Delaware corporation (the
“ Company ”), and Thomas S. Rogers (“
Executive ”), and shall be effective as of
March 21, 2007 (the “ Restatement Effective Date
”).
WHEREAS, the Company and
Executive desire to amend and restate that certain Employment
Agreement dated as of July 1, 2005 (the “ Original
Effective Date ”), between the Company and Executive (the
“ Prior Agreement ”).
NOW, THEREFORE, in
consideration of the mutual promises herein contained, the parties
agree as follows:
1. Definitions . As
used in this Agreement, the following terms shall have the
following meanings:
(a) Board . “
Board ” means the Board of Directors of the
Company.
(b) Cause . “
Cause ” means (i) Executive’s willful and
continued failure to substantially perform his duties with the
Company (other than any such failure resulting from
Executive’s incapacity due to physical or mental illness or
any such actual or anticipated failure after Executive’s
issuance of a Notice of Termination (as defined below) for Good
Reason), after a written demand for substantial performance is
delivered to Executive by the Board, which demand specifically
identifies the manner in which the Board believes that Executive
has not substantially performed his duties,
(ii) Executive’s willful and continued failure to
substantially follow and comply with such specific and lawful
directives of the Board that are not inconsistent with
Executive’s position as President and Chief Executive Officer
of the Company (other than any such failure resulting from
Executive’s incapacity due to physical or mental illness or
any such actual or anticipated failure after Executive’s
issuance of a Notice of Termination for Good Reason), after a
written demand for substantial performance is delivered to
Executive by the Board, which demand specifically identifies the
manner in which the Board believes that Executive has not
substantially performed his duties, (iii) Executive’s
willful commission of an act of fraud or dishonesty resulting in
material economic or financial injury to the Company, or
(iv) Executive’s conviction of, or entry by Executive of
a guilty or no contest plea to, the commission of a felony
involving moral turpitude. For purposes of this Section 1(b),
no act, or failure to act, on Executive’s part shall be
deemed “willful” unless done, or omitted to be done, by
Executive not in good faith.
(c) Change of Control
. “ Change of Control ” means (i) a sale,
lease or other disposition of all or substantially all of the
assets of the Company, (ii) a sale by the stockholders of the
Company of the voting stock of the Company to another corporation
and/or its subsidiaries or other person or group that results in
the ownership by such corporation and/or its subsidiaries or other
person or group (the “ Acquiring Entity
”) of eighty percent (80%) or more of the combined
voting power of all classes of the voting stock of the Company
entitled to vote; provided , however , that a sale by
the stockholders of the Company of voting stock that results in the
ownership by such Acquiring Entity of less than eighty percent
(80%) of the combined voting power of all classes of the
voting stock of the Company entitled to vote shall nonetheless
constitute a Change of Control if it results in the Acquiring
Entity having the ability to appoint a majority of the members of
the Board, (iii) a merger or consolidation in which the
Company is not the surviving corporation, or (iv) a reverse
merger in which the Company is the surviving corporation but less
than fifty-one percent (51%) of the shares of the
Company’s common stock outstanding immediately after the
merger are beneficially owned by the Company’s stockholders
(as determined immediately before the merger).
(d) Good Reason .
“ Good Reason ” means the occurrence of any one
or more of the following events without Executive’s prior
written consent, unless the Company fully corrects the
circumstances constituting Good Reason (provided such circumstances
are capable of correction) prior to the Date of
Termination:
(i) the removal of Executive
from his position as Chief Executive Officer or President of the
Company for any reason other than for Cause or Executive’s
Disability;
(ii) a material reduction in
the nature or scope of Executive’s responsibilities, or the
assignment to Executive of duties that are materially inconsistent
with Executive’s position (in each case as compared to
Executive’s responsibilities, duties or position on the
Restatement Effective Date);
(iii) the Company’s
reduction of Executive’s annual base salary or bonus
opportunity, each as in effect on the Restatement Effective Date or
as the same may be increased from time to time;
(iv) the Company’s
failure to maintain a suitable and appropriate office for Executive
in New York, New York or the Company’s failure to reimburse
Executive for first class air travel for travel between New York,
New York and the Company’s offices in Alviso,
California;
(v) the Company’s
failure to pay to Executive any portion of his then current
compensation or any portion of an installment of deferred
compensation under any deferred compensation program of the
Company, in each case within seven (7) days of the date such
compensation is due;
(vi) the Company’s
failure to continue in effect compensation and benefit plans which
provide Executive with benefits which are no less favorable on an
aggregate basis, both in terms of the amount of benefits provided
and the level of Executive’s participation relative to other
participants, to the benefits provided to Executive under the
Company’s compensation and benefit plans and practices on the
Restatement Effective Date;
(vii) the Company’s
failure to obtain a satisfactory agreement from any successor to
assume and agree to perform this Agreement, as contemplated in
Section 10(b)(i) hereof;
(viii) the Company requiring
Executive to relocate his primary residence from New
York;
(ix) the Company’s
purported modification of this Agreement or any termination of this
Agreement by the Company for any reason other than for Cause or
Executive’s Disability;
(x) the Company’s
providing notice to Executive, as contemplated by Section 1
thereof, that it does not wish to extend the term of
Executive’s Change of Control Agreement (as defined below);
or
(xi) the Company’s
material breach of any provision of this Agreement.
Executive’s right to
terminate his employment pursuant to this Section 1(d) shall
not be affected by his incapacity due to physical or mental
illness. Executive’s continued employment shall not
constitute consent to, or a waiver of rights with respect to, any
circumstance constituting Good Reason hereunder.
(e) Date of
Termination . “ Date of Termination ” means
(i) if Executive’s employment is terminated due to his
death, the date of Executive’s death, (ii) if
Executive’s employment is terminated for Disability, thirty
(30) days after Notice of Termination is given (provided that
Executive shall not have returned to the full time performance of
his duties during such thirty (30) day period), and
(iii) if Executive’s 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
Company 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 Executive 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).
(f) Disability .
Executive’s “ Disability ” means his
absence from the full-time performance of his duties with the
Company for one hundred eighty (180) consecutive days by
reason of his physical or mental illness.
(g) Notice of
Termination . Any purported termination of Executive’s
employment by the Company or by Executive (other than termination
due to Executive’s death, which shall terminate
Executive’s employment automatically) shall be communicated
by a written Notice of Termination to the other party hereto in
accordance with Section 10(g). “ Notice of
Termination ” means 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
Executive’s employment under the provision so
indicated.
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(h) Stock Awards .
“ Stock Awards ” means all stock options, stock
appreciation rights, restricted stock and such other awards granted
pursuant to the Company’s stock option and equity incentive
award plans or agreements and any shares of stock issued upon
exercise thereof.
2. Employment Period .
Subject to the provisions for earlier termination hereinafter
provided, the term of this Agreement shall continue in effect until
Executive’s employment with the Company is terminated (the
“ Employment Period ”).
3. Services to Be
Rendered .
(a) Duties and
Responsibilities . Executive shall serve as a member of the
Board and as President and Chief Executive Officer of the Company.
So long as Executive is serving as the President and Chief
Executive Officer of the Company, he will be nominated to, and if
elected by the stockholders of the Company, be a member of, the
Board. In the performance of such duties, Executive shall report
directly to the Board, shall be the senior-most executive officer
of the Company and shall have the duties and responsibilities
consistent with the positions set forth above in a company the size
and nature of the Company. Executive hereby consents to serve as an
officer and/or director of the Company or any subsidiary or
affiliate thereof without any additional salary or compensation, if
so requested by the Board. Executive shall be employed by the
Company on a full time basis. Executive shall perform his duties at
the Company’s offices in Alviso, California and at the
offices maintained by the Company for Executive in New York, New
York. Executive shall be subject to and comply with the policies
and procedures generally applicable to senior executives of the
Company or such other policies and procedures that apply to
Executive particularly, in each case to the extent the same are not
inconsistent with any term of this Agreement. While Executive
serves as President and Chief Executive Officer of the Company, the
Board shall consult with him regarding any appointments to the
offices of Chairman of the Board and Vice Chairman of the
Board.
(b) Exclusive Services
. Executive agrees to devote substantially all of Executive’s
business time, attention and energies to the business of the
Company. Subject to the terms of Section 6, this shall not
preclude Executive from devoting time to personal and family
investments or serving on advisory boards, community and civic
boards or the corporate boards on which Executive currently serves,
or participating in industry associations, provided such activities
do not materially interfere with his duties to the Company.
Executive agrees that he will not join any additional corporate
boards without the prior approval of the Board, which approval
shall not be unreasonably withheld or delayed.
(c) Support Services .
Executive shall be entitled to all of the administrative,
operational and facility support customary for a similarly-situated
executive. This support shall include an executive assistant
selected by Executive exclusively assigned to him and the
non-exclusive services of an administrative assistant located in
the Company’s Alviso, California offices.
4. Compensation and
Benefits . The Company shall pay or provide, as the case may
be, to Executive the compensation and other benefits and rights set
forth in this Section 4.
(a) Base Salary . The
Company shall pay to Executive a base salary of $800,000 per fiscal
year, payable in accordance with the Company’s usual pay
practices (and in any event no less frequently than monthly).
Executive’s base salary shall be subject to review annually
by and at the sole discretion of the Compensation Committee of the
Board.
(b) Bonus . In
addition to the base salary described above, for each fiscal year
ending during the Employment Period, Executive shall have the
opportunity to earn an annual performance bonus based on reasonable
criteria established by the Compensation Committee of the Board in
good faith no later than ninety (90) days following the start
of each fiscal year. Upon full attainment of the aforementioned
criteria established by the Compensation Committee of the Board,
Executive’s annual bonus will be equal to $525,000, but for
less than full achievement of such aforementioned criteria,
Executive’s annual bonus shall be a lesser amount in
accordance with
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a specific formula determined
by the Compensation Committee of the Board, in its discretion, no
later than ninety (90) days following the start of each fiscal
year. Notwithstanding the foregoing, for fiscal year 2005,
Executive shall be paid a bonus equal to no less than a pro-rated
portion of his target annual bonus based upon the actual number of
days worked by Executive during such fiscal year. The annual bonus
shall be determined in good faith by the Compensation Committee of
the Board as soon as practicable after the end of the fiscal year
with respect to which it is payable, and shall be paid to Executive
in a lump sum promptly thereafter and in no event later than
April 15 immediately following the end of such fiscal year,
subject to all withholding with respect thereto as is required by
applicable law. The Compensation Committee of the Board will
consider and shall have the discretion to exclude extraordinary
items in good faith when determining Executive’s annual
bonus, it being understood that the final determination shall be
within the discretion of the Compensation Committee of the
Board.
(c) Benefits .
Executive shall be entitled to participate in benefits under the
Company’s benefit plans and arrangements, including, without
limitation, any employee benefit plan or arrangement made available
in the future by the Company to its senior executives, subject to
and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements. The Company shall
have the right to amend or delete any such benefit plan or
arrangement made available by the Company to its senior executives
and not otherwise specifically provided for herein. The Company
shall also pay directly or reimburse Executive or TRget Media LLC
for the premiums payable with respect to the long-term disability
and life insurance policies maintained by Executive or TRget Media
LLC as of the Original Effective Date; provided ,
however , that upon Executive’s request, the Company
shall provide comparable replacement long-term disability and/or
life insurance coverage to the extent the available replacement
coverage will not result in a material increase to the Company in
the aggregate cost of such coverage for Executive. Executive shall
also be entitled to such supplemental benefits as are agreed upon
by Executive and the Company from time to time.
(d) Expenses . The
Company shall reimburse Executive for reasonable business
entertainment expenses and any other out-of-pocket business
expenses incurred in connection with the performance of his duties
hereunder, subject to (i) such policies as the Company may
from time to time establish, and (ii) Executive furnishing the
Company with evidence in the form of receipts satisfactory to the
Company substantiating the claimed expenditures. Executive shall be
reimbursed for first class air travel for travel between New York,
New York and the Company’s offices in Alviso, California.
Executive shall be reimbursed pursuant to the Company’s
standard travel policies for other business travel, provided that
Executive shall be reimbursed for first class air travel if
Executive determines reasonably and in good faith that such travel
is appropriate. The Company shall also: (i) lease, furnish and
maintain an apartment reasonably acceptable to Executive within
fifteen (15) miles of the Company’s Alviso, California
offices, (ii) lease and maintain at no cost to Executive an
automobile for Executive’s use while working out of the
Company’s Alviso, California offices, and (iii) pay or
reimburse Executive for the costs associated with Executive’s
non-business related meals while working out of the Company’s
offices in Alviso, California, not to exceed $5,000 per
year.
(e) Paid Time Off;
Vacation . Executive shall be entitled to such periods of paid
time off (“ PTO ”) each year as provided under
the Company’s PTO policy and as otherwise provided for senior
executive officers, which shall in any event be no less than four
(4) weeks per year.
(f) Stock Awards
.
(i) On the Original Effective
Date, the Company granted to Executive (A) stock options to
purchase 1,000,000 shares of the Company’s common stock
pursuant to the TiVo Inc. 1999 Equity Incentive Plan (the “
Plan ”), (B) 1,000,000 stock appreciation rights
pursuant to the Plan, and (C) 350,000 shares of the
Company’s common stock pursuant to the Plan. Such Stock
Awards are subject to the terms and conditions of the Plan and the
award agreements pursuant to which such Stock Awards were granted
to the extent such provisions are not less favorable to Executive
than the applicable provisions of this Agreement.
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(ii) On the Restatement
Effective Date, the Company shall grant to Executive the following
stock options (the “ New Stock Options
”):
(A) New Stock Options to
purchase 700,000 shares of the Company’s common stock
pursuant to the Plan. Subject to Sections 4(f)(iii) and 5,
(A) 300,000 of such New Stock Options shall vest on the fourth
anniversary of the Restatement Effective Date and (B) 400,000
of such New Stock Options shall vest in forty-eight (48) equal
monthly installments commencing on the first monthly anniversary of
the Restatement Effective Date, in the case of both (A) and
(B) subject to Executive’s continued employment or
service with the Company on each such date.
(B) New Stock Options to
purchase 300,000 shares of the Company’s common stock
pursuant to the Plan. Subject to Sections 4(f)(iii) and 5, all of
such New Stock Options shall vest on the fourth anniversary of the
Restatement Effective Date, subject to Executive’s continued
employment or service with the Company on such date. Such New Stock
Options shall vest on an accelerated basis as follows:
(1) If the Company attains
4,700,000 active subscribers on or prior to the second anniversary
of the Restatement Effective Date, 150,000 of such New Stock
Options shall vest on the date such achievement is certified by the
Compensation Committee of the Board of Directors, subject to
Executive’s continued employment or service with the Company
on such date.
(2) If the Company achieves
$25,000,000 in ad/ARM revenue for the 2007 or 2008 fiscal years,
150,000 of such New Stock Options shall vest on the date such
achievement is certified by the Compensation Committee of the Board
of Directors, subject to Executive’s continued employment or
service with the Company on such date.
Any New Stock Options granted
pursuant to this Section 4(f)(ii) shall have a per share
exercise price equal to the then-current fair market value of a
share of the Company’s common stock (as determined pursuant
to the Plan) on the date the grant is approved by the Board or the
Compensation Committee of the Board, which shall be no later than
the Restatement Effective Date. Such New Stock Options shall be
incentive stock options to the extent permitted under
Section 422 of the Internal Revenue Code of 1986, as amended
(the “ Code ”). Such New Stock Options shall
have a ten (10) year term and shall be subject to the terms
and conditions of the Plan and the stock option agreement pursuant
to which such New Stock Options are granted to the extent such
provisions are not less favorable to Executive than the applicable
provisions of this Agreement.
(iii) In the event that,
following July 1, 2007, Executive elects to have the Company
engage a full-time replacement Chief Executive Officer so that
Executive may be elected Chairman of the Board, the vesting of
Executive’s Stock Awards described in Section 4(f)(i)
and 4(f)(ii) shall be automatically adjusted so that (A) the
time-based vesting period of such Stock Awards shall be extended to
twice the length of the remaining vesting period at the time of
such role conversion (performance-based accelerated vesting shall
be unaffected) and (B) the number of Stock Awards vesting on
each time-based vesting date during the extended vesting period
shall be proportionately adjusted to reflect such extension
(performance-based accelerated vesting shall be unaffected), it
being understood that such changes shall be implemented so that one
hundred percent (100%) of the Stock Awards will vest by the
end of the revised vesting schedule. Except as set forth in the
immediately preceding sentence, Executive’s change in status
from President and Chief Executive Officer shall have no adverse
effect on his Stock Awards provided Executive continues to be a
member of the Board.
(iv) In addition to the Stock
Awards described in this Section 4(f), Executive shall be
entitled to participate in any equity or other employee benefit
plan that is generally available to senior executive officers, as
distinguished from general management, of the Company and shall be
eligible to be considered for annual grants of equity awards.
Except as otherwise provided in this Agreement, Executive’s
participation in and benefits under any such plan shall be on the
terms and subject to the conditions specified in the governing
document of the particular plan.
(g) New York Office .
The Company shall maintain an office in New York, New York for
Executive’s use in connection with his performance of
services for the Company pursuant to this Agreement. As of the
Restatement Effective Date, the Company and Executive have agreed
on the initial location of such office. Following the Restatement
Effective Date, the New York office may be relocated by the Company
to any location reasonably satisfactory to Executive.
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(h) Media Equipment .
The Company shall reimburse Executive up to $15,000 for media
equipment purchased by Executive for his home office. In addition,
the Company shall reimburse Executive up to $6,000 annually for
home media expenses, which reimbursements may be made at any time
during such year. Executive shall also be reimbursed approximately
$5,000 annually for home office expenses, with any significant
deviation from such amount to be mutually agreed by the Company and
Executive, which reimbursements may be made at any time during such
year.
(i) Family Travel
Expenses . The Company shall reimburse Executive for business
class airfare for his immediate family for travel no more
frequently than once each fiscal quarter between New York, New York
and the San Francisco Bay Area. In addition, the Company shall
reimburse Executive for the reasonable cost of hotel accommodations
incurred by Executive’s immediate family during such trips to
the extent such hotel accommodations are necessary as a result of
an absence of sufficient accommodations for Executive’s
family in his Company-provided apartment.
(j) Executive
Assistant . During the Employment Period, the Company shall
either pay directly or reimburse Executive or TRget Media LLC for
the reasonable costs of providing Executive administrative support
through the services of his current executive assistant as of the
Restatement Effective Date, including without limitation
reimbursement for coach class airfare for such executive assistant
for travel between New York, New York and Alviso, California, as
well as the reasonable cost of hotel accommodations incurred by
such executive assistant during such trip or as needed in New York,
New York, at such hotels as may be mutually agreed upon be the
Company and Executive. The parties agree that the current
compensation and benefits costs of Executive’s executive
assistant are reasonable.
5. Termination and
Severance . Executive shall be entitled to receive benefits
upon termination of employment only as set forth in this
Section 5:
(a) At-Will Employment;
Termination . The Company and Executive acknowledge that
Executive’s employment is and shall continue to be at-will,
as defined under applicable law, and that Executive’s
employment with the Company may be terminated by either party at
any time for any or no reason, with or without notice. If
Executive’s employment terminates for any reason, Executive
shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided in this Agreement.
Executive’s employment under this Agreement shall be
terminated immediately on the death of Executive.
(b) Termination by Death,
For Cause or Disability, Voluntary Resignation Without Good
Reason . If Executive’s employment with the Company is
terminated by reason of Executive’s death, by the Company for
Cause or Disability, or by Executive other than for Good Reason,
the Corporation shall pay Executive (or his estate) his 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 Executive is entitled under any compensation plan
or practice of the Company at the time such payments are due
(including, without limitation, all accrued and unused vacation),
and the Company shall have no further obligations to Executive (or
his estate) under this Agreement. In addition, if Executive’s
employment with the Company is terminated by the Company for Cause,
or by Executive other than for Good Reason, all vesting of
Executive’s unvested Stock Awards previously granted to him
by the Company shall cease and none of such unvested Stock Awards
shall be exercisable following the Date of Termination. If
Executive’s employment with the Company is terminated by
reason of Executive’s death or by the Company for Disability,
then the greater of (i) fifty percent (50%) of
Executive’s unvested Stock Awards as of the Date of
Termination, or (ii) such number of Executive’s Stock
Awards as would vest pursuant to Section 5(c)(i)(D) as of the
Date of Termination if such Section were applicable, shall
immediately vest and remain exercisable for the balance of their
original term. The foregoing shall be in addition to, and not in
lieu of, any and all other rights and remedies which may be
available to the Company under the circumstances, whether at law or
in equity.
(c) Termination Without
Cause or Voluntary Resignation for Good Reason .
(i) Termination Apart From
Change of Control . If Executive’s employment is
terminated (A) by the Company other than for Cause or
Disability or (B) by Executive for Good Reason, and such
termination is not a Payment Termination (as defined in that
certain Amended and Restated Change of Control Terms and Conditions
of even date herewith, a copy of which is attached hereto as
Exhibit A and incorporated herein by this reference (the
“ Change of Control Agreement ”)), then, subject
to Section&nb
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