Exhibit 10.3
EMPLOYMENT TRANSITION
AGREEMENT
This Employment Transition Agreement
(this “ Agreement ”) is entered into between
Michael Ramsay, an individual (“ Executive ”),
and TiVo Inc., (the “ Company ”), effective as
of July 29, 2005 (the “ Effective Date
”).
WHEREAS, the Company desires to
retain Executive to provide services to the Company and wishes to
provide Executive with certain compensation and benefits in return
for Executive’s services; and
WHEREAS, Executive wishes to provide
services to the Company in return for certain compensation and
benefits.
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, unless Executive fully corrects the
circumstances constituting Cause (provided such circumstances are
capable of correction) prior to the Date of Termination, (a)
Executive’s willful and continued failure to substantially
perform his duties or services to the Company, including his duties
as a member of the Board (other than any such failure resulting
from Executive’s incapacity due to physical or mental illness
or any such actual or anticipated failure after his 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 or services to the Company, (b)
Executive’s willful and continued failure to substantially
follow and comply with the specific and lawful directives of the
Chief Executive Officer of the Company or the Board, as reasonably
determined by the Board (other than any such failure resulting from
Executive’s incapacity due to physical or mental illness or
any such actual or anticipated failure after his 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
or services to the Company, (c) Executive’s willful
commission of an act of fraud or dishonesty resulting in material
economic or financial injury to the Company, (d) Executive’s
conviction of, or entry by Executive of a guilty or no contest plea
to, the commission of a felony involving moral turpitude, or (e)
Executive’s breach of the non-disparagement provisions of
Section 10 of this Agreement or any material breach of his
confidential or proprietary information obligations to the Company.
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 him not in good faith.
(c) Change of Control .
“ Change of Control ” means, in one or a series
of related transactions, (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) Constructive Termination as a
Director . “ Constructive Termination as a
Director ” 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
Constructive Termination as a Director (provided such circumstances
are capable of correction) prior to the Date of Termination, (i)
the Company’s failure to timely pay Executive compensation or
reimbursement owed to him by virtue of his service as a
non-employee member of the Board within seven (7) days of the date
such compensation or reimbursement is due, (ii) the Company’s
failure to provide Executive with notice of Board meetings and
Board meeting materials at a time no later than such are provided
to other Board members generally, (iii) holding one or more
meetings of the Board including substantially all of the Board and
intentionally excluding Executive, unless Executive’s
inclusion in such meetings would present a conflict of interest,
(iv) a majority of the Board requests that Executive resign from
the Board (other than for reasons that would constitute Cause
hereunder), (v) the Company’s failure to obtain a
satisfactory agreement from any successor to assume and agree to
perform this Agreement, as contemplated in Section 14(b)(i) hereof,
or (vi) the Company’s breach of the non-disparagement
provisions of Section 10 of this Agreement.
(e) Date of Termination .
“ Date of Termination ” means (i) if
Executive’s employment by or service to the Company under
this Agreement is terminated due to his death, the date of his
death; (ii) if Executive’s employment by or service to the
Company 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 or services to
the Company under this Agreement during such thirty (30) day
period); and (iii) if Executive’s employment by or service to
the Company under this Agreement 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, for Constructive
Termination as a Director or by the Company for Cause shall not be
less than fifteen (15) nor more than thirty (30) days from the date
such Notice of Termination is given).
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(f) Disability . “
Disability ” means Executive’s absence from the
full-time performance of his duties or services to the Company with
the Company for six (6) consecutive months by reason of
Executive’s physical or mental illness.
(g) 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 Company’s reduction of
Executive’s base salary or retainer as provided for in this
Agreement;
(ii) the relocation of the
Company’s offices at which Executive is providing services
such that Executive’s one-way daily commute from his
principal residence to the Company’s offices at which he is
providing services is increased by more than fifty (50)
miles;
(iii) the Company’s failure to
pay to Executive any portion of his then current compensation under
Section 4 below within seven (7) days of the date such compensation
is due;
(iv) the Company’s failure to
obtain a satisfactory agreement from any successor to assume and
agree to perform this Agreement, as contemplated in Section
14(b)(i) hereof;
(v) any purported termination of
Executive’s employment or service under this Agreement that
is not effected pursuant to a Notice of Termination satisfying the
requirements of Section 1(i) hereof (and, if applicable, the
requirements of Section 1(b) hereof), which purported termination
shall not be effective for purposes of this Agreement;
or
(vi) the Company’s breach of
the non-disparagement provisions of Section 10 of this
Agreement.
Executive’s right to terminate
his employment by or service to the Company pursuant to this
Section 1(g) shall not be affected by his incapacity due to
physical or mental illness. Executive’s continued service
shall not constitute consent to, or a waiver of rights with respect
to, any circumstance constituting Good Reason hereunder.
(h) New Outside Technology. “
New Outside Technology ” shall mean any technology
that, as of the Effective Date, is not embodied in any released or
beta test product of the Company or would be reasonably deemed to
be within the Company’s long-term business plan. Without
limitation, a technology will be deemed embodied in a product if
the product or its use would infringe the associated intellectual
property rights owned or controlled by the Company.
(i) Notice of Termination .
Any purported termination of Executive’s employment by or
service to the Company by the Company or by Executive (other
than
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termination due to Executive’s
death, which shall terminate Executive’s employment or
service automatically), including a termination from Board
membership following a Constructive Termination as a Director,
shall be communicated by a written Notice of Termination to the
other party hereto in accordance with Section 14(g). For purposes
of this Agreement, “ Notice of Termination ”
shall mean 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 or
Board membership under the provision so indicated.
(j) 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. Transition Period
.
(a) First Transition Period .
During the period commencing on the Effective Date and ending on
September 9, 2005 (the “ First Transition Period
”), Executive will continue to be employed by the
Company.
(b) Second Transition Period
. Following the First Transition Period. Executive shall continue
to be employed by the Company for a period of six (6) months (the
“ Second Transition Period ”).
(c) Subsequent Transition
Periods . Following the end of the Second Transition Period,
Executive may continue to be employed by the Company for additional
six-month periods as shall be mutually agreed upon by Executive and
the Chief Executive Officer of the Company (the “
Subsequent Transition Periods ,” and together with the
First Transition Period and the Second Transition Period, the
“ Transition Period ”). The parties expressly
acknowledge that the Chief Executive Officer may determine that
there will be no Subsequent Transition Periods.
(d) Status as Employee .
During the Transition Period, Executive shall continue to be
considered an employee of the Company for all purposes, including
for purposes of state and federal income taxation. Subject to
Section 5, the Company and Executive acknowledge that
Executive’s employment under this Agreement may be terminated
by either party at any time for any or no reason, with or without
notice.
3. Duties and Services
.
(a) Scope of Services During
Transition Period . Executive shall devote such percentage of
his business time and effort to the performance of his services
hereunder as may be mutually agreed upon by the Chief Executive
Officer of the Company and Executive. Executive shall, upon the
request or direction of the Board or the Chief Executive Officer of
the Company, provide such additional information, advice and
assistance concerning matters that are within the scope of
Executive’s knowledge and expertise. The scope of
Executive’s services during the Transition Period shall
include, but is not necessarily limited to, serving as
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Chairman of the Technology Advisory
Committee and the Company’s beta test program and providing
other advice and assistance that reasonably falls within
Executive’s knowledge and expertise. During the First
Transition Period, Executive shall also assist the Company’s
Chief Executive Officer with transition matters. Executive’s
advice shall be of an advisory nature and Company shall not have
any obligation to follow such advice. During the Transition Period,
Executive shall continue to be provided with office space,
voicemail access, email access and such other support as the
Company may determine in good faith is necessary for
Executive’s satisfactory performance of his services
hereunder.
(b) Availability . Executive
shall be available to provide services under this Agreement during
normal business hours (“normal business hours” being
9:00 a.m. to 5:00 p.m. Pacific Time on any day excluding Saturday,
Sunday and any day which is a legal holiday under the laws of the
State of California or is a day on which banking institutions
located in California are authorized or required by law or other
governmental action to close). If requested by the Board or the
Chief Executive Officer of the Company, Executive shall provide the
services in person at the principal executive offices of Company or
at another location to be mutually agreed by Executive and the
Chief Executive Officer of the Company, unless Executive is on a
scheduled vacation. The Company shall reasonably accommodate
Executive’s schedule when requesting Executive’s
assistance pursuant to this Section 3(b). The Company acknowledges
and agrees that Executive’s service during the Transition
Period will be on a limited, part-time basis, and the Company
agrees to not make unreasonable demands on Executive’s time
during the Transition Period.
(c) Continued Board
Membership . Executive shall continue to serve as a member of
the Board following the Effective Date. Following the expiration of
the Executive’s current term on the Board, Executive will be
considered for continued membership on the Board upon the mutual
agreement of the Board and Executive. Following the expiration of
the First Transition Period, Executive shall be considered a
non-employee member of the Board regardless of whether or not he
continues to be an employee of the Company for the remainder of the
Transition Period. For his service as a non-employee member of the
Board, Executive shall be eligible to receive director fees and
Stock Awards in accordance with standard Company policy regarding
such fees and Stock Awards for non-employee members of the
Board.
4. Compensation .
(a) First Transition Period .
During the First Transition Period, Executive shall be entitled to
receive the following compensation and benefits from the
Company:
(i) The Company shall pay to
Executive his base salary as was in effect immediately prior to the
Effective Date, payable in accordance with the Company’s
standard payroll practices;
(ii) The Company shall pay to
Executive fifty percent (50%) of Executive’s target cash
bonus for the fiscal year in which the end of the First Transition
Period occurs, based on the Company’s achievement of the
relevant performance targets through July 31, 2005 (the “
July Bonus ”). Such cash bonus shall be paid as soon
as practicable following
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July 31, 2005. If, following the end
of the fiscal year in which the end of the First Transition Period
occurs, fifty percent (50%) of Executive’s target cash bonus
for such fiscal year, calculated based on the Company’s
actual performance for the full fiscal year (the “ Actual
Bonus Amount ”), is greater than the July Bonus, the
Company shall pay to Executive an additional cash bonus equal to
the amount by which the Actual Bonus Amount exceeds the July Bonus
at the time Company bonuses are customarily paid to Company
employees;
(iii) Executive shall be eligible to
participate in any employee benefit plans or programs, including
but not limited to group medical, dental, and vision benefits, life
and disability insurance benefits, long term care insurance, and
other programs, maintained or established by the Company to the
same extent as full-time employees of the Company, subject to the
generally applicable terms and conditions of the plan or program in
question relating to full-time employees and the determination of
any committee administering such plan or program; and
(iv) All accrued but unpaid vacation
earned by Executive shall be paid to Executive by the Company on
the last day of the First Transition Period.
(b) Second and Subsequent
Transition Periods . During the Second Transition Period and
the Subsequent Transition Periods, if any, Executive shall be
entitled to receive the following compensation and benefits from
the Company:
(i) The Company shall pay Executive
a base salary of $100,000 per year, payable monthly in accordance
with the Company’s standard payroll practices; and
(ii) Executive will be eligible for
continued benefits as described in Section 4(a)(iii)
above.
(c) Expenses . The Company
shall reimburse Executive for reasonable out-of-pocket business
expenses incurred in connection with the performance of his
services hereunder, subject to (i) such written 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.
(d) Stock Awards . During the
Transition Period, and thereafter for so long as Executive
continues to serve as a member of the Board, all of
Executive’s unexercised Stock Awards shall continue to vest
and be exercisable, if applicable, pursuant to the terms of the
Company equity plan(s) and stock award agreements pursuant to which
they were granted; provided , however , that the
vesting of Executive’s stock options to purchase 250,000
shares of the Company’s common stock granted on March 11,
2005 (the “ CEO Stock Options ”) shall be
automatically adjusted so that (A) the vesting period of such CEO
Stock Options shall be extended to twice the length of the
remaining vesting period at the Effective Date and (B) the number
of shares of the Company’s common stock subject to such CEO
Stock Options vesting on each vesting date during the extended
vesting period shall be proportionately adjusted to reflect such
extension, it being understood that such changes shall be
implemented so that one hundred percent (100%) of the CEO Stock
Options will vest by the end of the revised vesting schedule.
Notwithstanding the foregoing, following the Effective Date,
Executive shall not be
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entitled to any additional grants of
Stock Awards, except grants to which Executive may be entitled as a
non-employee member of the Board.
5. Termination and Severance
. Executive shall be entitled to receive benefits upon termination
of his employment by the Company during the Transition Period and
the termination of his service as a member of the Board only as set
forth in this Section 5:
(a) Termination . If
Executive’s employment by the Company during the Transition
Period terminates for any reason, or if Executive’s service
as a member of the Board terminates for any reason, Executive shall
not be entitled to any payments, benefits, damages, awards or
compensation other than as provided in this Agreement. This
Agreement shall automatically terminate upon the death of
Executive.
(b) Payments Upon Termination of
Transition Period.
(i) Termination For Cause,
Voluntary Resignation Without Good Reason or Expiration of Second
or Subsequent Transition Periods . If Executive’s
employment by the Company during the Transition Period is
terminated (x) by the Company for Cause, (y) by Executive other
than for Good Reason, or (z) as a result of the expiration of the
Second Transition Period or a Subsequent Transition Period and the
non-renewal of Subsequent Transition Periods, the Company shall pay
Executive (or his estate) all amounts due and payable under Section
4 above up to and including the Date of Termination, and the
Company shall have no further obligations to Executive (or his
estate) under this Section 5(b). 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.
(ii) Termination Without Cause or
for Good Reason . If Executive’s employment by the
Company during the Transition Period is terminated (y) by the
Company other than for Cause or Disability, (y) by Executive for
Good Reason, then, subject to Section 9, Executive shall be
entitled to receive the benefits provided below:
(A) the Company shall pay to
Executive all amounts due and payable under Section 4 above up to
and including the Date of Termination;
(B) the Company shall pay to
Executive all base salary and bonus amounts which would be payable
to Executive pursuant to Section 4 for the six (6) month period
following the Date of Termination, payable to Executive at the same
times and in the same manner as such amounts would be payable to
Executive had his employment not been terminated; and
(C) for the period beginning on the
Date of Termination and ending on the earlier of (i) the date which
is six (6) full months following the Date of Termination or (ii)
the first day of Executive’s eligibility to participate in a
comparable group health plan maintained by a subsequent employer,
Executive will be eligible for continued benefits as described in
Section 4(a)(iii) above. At the termination of the benefits
coverage under the first sentence of this Section 5(b)(ii)(C),
Executive and his
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dependents shall be entitled to
continuation coverage to the extent required under COBRA (and, if
applicable, Cal-COBRA) at Executive’s expense.
(iii) Termination Due to Death or
Disability . If Executive’s employment by the Company
during the Transition Period is terminated due to Executive’s
death or Disability while Executive is a member of the Board, then
Executive (or his estate or personal representative) shall receive
the accelerated vesting of his Stock Awards and post-termination
exercise period specified in Section 5(c)(i) hereof.
(iv) No Duplication of
Benefits . Executive shall only be entitled to receive the
severance and benefits described in Section 5(b)(ii) upon the
termination of his employment by the Company during the Transition
Period as described above and a termination of his service as a
member of the Board without a corresponding termination of his
employment by the Company during the Transition Period will not
entitle Executive to such severance and benefits. In the event
that, following a termination of Executive’s employment by
the Company during the Transition Period, Executive continues to
serve as a member of the Board, Executive shall not receive any
additional benefits under Section 5(b)(ii) upon the termination of
Executive’s service as a member of the Board.
(c) Termination of Service as a
Member of the Board .
(i) Termination Prior to August
1, 2007 . If, prior to August 1, 2007, (x) Executive’s
service as a member of the Board is terminated by the Company for
any reason other than for Cause or as a result of Executive’s
death or Disability, (y) if Executive resigns from the Board
following a Constructive Termination as a Director, or (z) if
Executive is not renominated for election to the Board at or
following the expiration of his current term, then, subject to
Section 9, the vesting and/or exercisability of each of
Executive’s outstanding Stock Awards shall be automatically
accelerated on the date of termination of Executive’s service
as a member of the Board as to the lesser of (A) the number of
Stock Awards that would vest over the twelve (12) month period
following the date of termination had Executive remained as a
member of the Board during such period, or (B) the number of Stock
Awards that would vest over the period commencing on the date of
termination and ending on July 31, 2007 had Executive remained as a
member of the Board during such period; provided ,
however , that in no event shall the accelerated vesting
pursuant to this sentence apply to less than the number of Stock
Awards that would vest over the six (6) month period following the
date of termination had Executive remained as a member of the Board
during such period. In addition, Executive’s Stock Awards
shall remain exercisable by Executive for a period of one (1) year
following the date of termination or such shorter maximum period as
will not result in adverse tax consequences to Executive under
Section 409A of the Internal Revenue Code of 1986, as amended (the
“ Code ”), and the Treasury Regulations
thereunder.
(ii) Termination On or After
August 1, 2007 . If, on or after August 1, 2007, (x)
Executive’s service as a member of the Board is terminated by
the Company for any reason other than for Cause or as a result of
Executive’s death or Disability, (y) if Executive resigns
from the Board following a Constructive Termination as a Director,
or (z) if Executive is not renominated for election to the Board
following the expiration of his current term, then,
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subject to Section 9, the vesting
and/or exercisability of each of Executive’s outstanding
Stock Awards shall be automatically accelerated on the date of
termination of Executive’s service as a member of the Board
as to the number of Stock Awards that would vest over the six (6)
month period following the date of termination had Executive
remained as a member of the Board during such period. In addition,
Executive’s Stock Awards shall remain exercisable by
Executive for a period of one (1) year following the date of
termination or such shorter maximum period as will not result in
adverse tax consequences to Executive under Section 409A of the
Code and the Treasury Regulations thereunder.
(iii) No Duplication of
Benefits . Executive shall only be entitled to receive the
benefits described in this Section 5(c) upon the termination of his
service as a member of the Board as described above and a
termination of his employment by the Company during the Transition
Period without a corresponding termination of his service as a
member of the Board will not entitle Executive to such benefits. In
the event that, following a termination of Executive’s
service as a member of the Board, Executive continues to serve as
an employee or consultant to the Company, (i) Executive’s
Stock Awards shall continue to vest pursuant to the vesting
schedules applicable to such Stock Awards after giving effect to
the foregoing acceleration for so long as Executive continues to
serve as an employee or consultant to the Company (i.e., the shares
that would otherwise vest last shall accelerate and the Stock
Awards shall continue monthly vesting at the same rate as prior to
the acceleration), and (ii) Executive shall not receive any
additional benefits under this Section 5(c) upon the termination of
Executive’s employment by or service to the Company. In the
event that Executive’s service as a member of the Board is
terminated at the same time as the termination of his employment by
the Company during the Transition Period, Executive shall be
entitled to receive benefits under Section 5(a) or 5(b), as
applicable, in addition to any benefits to which he is entitled
under this Section 5(c).
(d) Change of Control . In
the event of a Change of Control prior to the termination of
Executive’s service as a member of the Board or his service
as an employee during the Transition Period, the vesting and/or
exercisability of each of Executive’s outstanding Stock
Awards shall be automatically accelerated on the effective date of
the Change of Control as to a number of Stock Awards equal to the
lesser of (i) the number of Stock Awards that would vest over the
twelve (12) month period following the effective date of the Change
of Control pursuant to the vesting schedule applicable to such
Stock Awards, or (ii) the number of Stock Awards that would vest
over the period commencing on the effective date of the Change of
Control and ending on July 31, 2007 pursuant to the vesting
schedule applicable to such Stock Awards; provided ,
however , that in no event shall the accelerated vesting
pursuant to this sentence apply to less than the number of Stock
Awards that would vest over the nine (9) month period following the
effective date of the Change of Control pursuant to the vesting
schedule applicable to such Stock Awards. In addition,
Executive’s Stock Awards shall remain exercisable by
Executive for a period of one (1) year following the date of his
termination of employment or services or such shorter maximum
period as will not result in adverse tax consequences to Executive
under Section 409A of the Code and the Treasury Regulations
thereunder. In the event that Executive’s service as a member
of the Board is terminated on the effective date of a Change of
Control, Executive shall receive benefits under Section 5(c) or
this Section 5(d), whichever is more favorable to Executive, but he
shall not be entitled to benefits under both Sections. In the event
that Executive continues to be employed
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by or provide services to the
Company or continues to serve as a member of the Board following
the effective date of the Change of Control, (i) Executive’s
Stock Awards shall continue to vest following the effective date of
such Change of Control pursuant to the vesting schedules applicable
to such Stock Awards after giving effect to the foregoing
acceleration so long as Executive continues to serve as an employee
or consultant to the Company or as a member of the Board (i.e., the
shares that would otherwise vest last shall accelerate and the
Stock Awards shall continue monthly vesting at the same rate as
prior to the acceleration), and (ii) Executive shall not receive
any additional benefits under Section 5(c) upon the termination of
Executive’s service as a member of the Board.
(e) Exclusive Remedy . Except
as otherwise expressly required by law (e.g., COBRA) or as
specifically provided herein, all of Executive’s rights to
severance, benefits, and other amounts hereunder (if any) accruing
after the termination of Executive’s employment by or service
to the Company shall cease upon such termination. In the event of a
termination of Executive’s employment by the Company during
the Transition Period or the termination of Executive’s
service as a member of the Board, Executive’s sole remedy
shall be to receive the payments and benefits described in this
Section 5.
(f) Return of the Company’s
Property . If Executive’s employment by or service to the
Company is terminated for any reason, the Company shall have the
right, at its option, to require Executive to vacate his offices
prior to or on the effective Date of Termination and to cease all
activities on the Company’s behalf. Upon the termination of
his employment by or service to the Company in any manner, as a
condition to the Executive’s receipt of any post-termination
benefits described in this Agreement, Executive shall promptly
surrender to the Company all lists, books and records containing
Confidential Information (as defined below) and all other property
belonging to the Company, it being distinctly understood that all
such lists, books and records containing Confidential Information
are the property of the Company; provided , however ,
that, in the event Executive continues to serve as a member of the
Board following the Date of Termination, Executive shall be
entitled to retain such lists, books, records and property as he is
entitled to retain in his capacity as a member of the Board;
provided , further , that Executive shall be able to
keep copies of any materials relating to a New Outside Technology
unless and until the Company is pursuing such New Outside
Technology in accordance with Section 7 hereto.
(g) Retirement of Email
Address . Following the Date of Termination, the Company shall
permanently retire Executive’s email address
(mike@tivo.com).
6. Resignation from Technology
Advisory Committee . Upon the Company’s request at any
time, Executive shall resign from his position as a member of the
Company’s Technology Advisory Committee and any such request
shall not constitute Good Reason or Constructive Termination as a
Director for purposes of this Agreement, nor shall such resignation
constitute a termination of any Transition Period then in
effect.
7. New Outside Technology .
If, during the Transition Period, Executive in the course of his
employment for the Company obtains knowledge of a New Outside
Technology and wishes to use the New Outside Technology, Executive
may do so in accordance with this Section 7 provided that Company
is not pursuing, planning to pursue, or evaluating in
good
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faith whether to pursue commercialization of the
New Outside Technology. Prior to Executive pursuing
commercialization of the New Outside Technology, Executive shall
notify the Chief Executive Officer in writing of the New Outside
Technology and Executive’s interest in pursuing
commercialization of such New Outside Technology. Company will be
deemed to not be pursuing the New Outside Technology unless the
Co
