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Exhibit
10.04
S EVERANCE
A GREEMENT
A ND R
ELEASE O F A LL C
LAIMS
This Severance Agreement and
Release of All Claims (“Agreement”) is made and entered
into by and between EVP and GM, Digital Commerce, Loren Hillberg
(referred to as “Employee”) and Macrovision Corporation
(referred to as “Company”).
Employee and Company desire
to settle fully and finally all differences between them resulting
from Employee’s employment and separation therefrom effective
Thursday, May 31, 2007 and in consideration of the mutual
covenants and promises contained herein and for other good and
valuable consideration, receipt of which is hereby acknowledged,
and to avoid unnecessary litigation, it is hereby agreed by and
between the parties as follows:
1. N O A
DMISSION . This Agreement and compliance with
this Agreement shall not be construed as an admission by Company of
any liability whatsoever, nor as an admission by Company of any
violation of the rights of Employee or of any other person, or of
the violation of any law, duty, or contract whatsoever.
2(a). A GREEMENT .
The Company and Employee hereby agree as follows:
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(i) |
Employee’s last day of employment with the Company shall
be May 31, 2007 (“Termination Date”). |
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(ii) |
On the Termination Date, Employee will receive payment for:
(a) normal base salary compensation for the period ending on
the Termination Date and (b) balance of unused FTO remaining
as of the Termination Date. All such amounts will be less ordinary
taxes and withholdings |
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(iii) |
On the Termination Date, Employee will also receive a lump-sum
payment of One Hundred and Forty One Thousand Dollars ($141,000)
less ordinary withholdings |
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(iv) |
The Company will also pay six (6) months of COBRA coverage
(medical and dental) for you and your eligible dependents, if
elected. |
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(v) |
On the Termination Date, the Company will accelerate the
vesting of certain equity awards of Employee as
follows: |
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a. |
Restricted Stock Award granted November 3, 2005: the
Company shall accelerate vesting of an additional 6,250 shares such
that a total of 12,500 shares shall be vested as of the Termination
Date. |
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b. |
Restricted Stock Award granted July 28, 2006: the Company
shall accelerate vesting of an additional 3,750 shares such that a
total of 3,750 shares shall be vested as of the Termination
Date. |
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c. |
Stock Option Awards granted April 4, 2005: the Company
shall accelerate vesting of an additional 37,500 shares such that a
total of 112,500 shares shall be vested as of the Termination
Date. |
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d. |
Stock Option Awards granted July 28, 2006: the Company
shall accelerate vesting of an additional 3,750 shares such that a
total of 3,750 shares shall be vested as of the Termination
Date. |
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e. |
Any portion of the above stock option or restricted stock
awards that is unvested as of the Termination Date shall be
cancelled on the Termination Date. Employee shall be entitled to
exercise his vested options during the 3 month period after the
Termination Date in accordance with the terms of the applicable
stock option agreement. |
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(vi) |
Except as explicitly set forth in this Section 2(a),
effective as of the Termination Date, Employee shall no longer be
eligible to participate in any other Company compensation or
benefit programs, including but not limited to any bonus
payments. |
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(vii) |
Except for the consideration provided for in
Section 2(a)(ii), all of the other compensation and benefits
above are contingent upon Employee signing and performing this
Agreement. |
2(b). C ONSIDERATION
. The parties hereto agree that the consideration set for the
in this Section 2 of this Agreement ((except for
Section 2(a)(ii)) represents the full and complete settlement
of any and all of Employee’s potential claims against the
Company or any other entity or person with respect Employee’s
employment and that Employee will not seek any further compensation
for any other claimed damage, costs, or attorneys’ fees in
connection with the matters resolved by this Agreement. Employee
agrees that the Company is entitled to reject without cause any
application for employment with the Company made by
Employee.
2(c). T AX R
ESPONSIBILITY . Employee acknowledges and agrees
that Company has made no representations to Employee regarding the
tax consequences of any amounts received by Employee pursuant to
this Agreement. Employee further agrees to pay federal or state
taxes, if any, which are required by law to be paid with respect to
said amounts.
2(d). E XERCISE
OF S TOCK O PTIONS
. Prior to the Termination Date, Employee shall be entitled to
exercise vested Company stock options only in accordance with the
terms of the applicable stock option plan, option agreements and
Company’s securities trading policy. Company
acknowledges that after the Termination Date such trading policy
shall not restrict Employee from exercising such options and
selling the issued shares. Employee acknowledges that he has
received a copy of such policy, that he has been informed that he
is subject to the laws regarding insider trading and that his
trading in Company stock is at his sole risk.
3. N O C
LAIMS F ILED . Employee
represents that Employee has not filed any complaints, claims, or
actions against the Company, its officers, directors, employees,
supervisors, agents, or representatives, with any state, federal,
or local agency or court concerning his employment with the Company
or separation therefrom and that, to the fullest extent of the law,
Employee will not do so at any time hereafter.
4. C ONFIDENTIALITY
. The parties agree that they will keep the fact, terms, and
amount of this Agreement completely confidential to the full extent
allowed by law and that they will not hereafter disclose any
information concerning this Agreement to anyone, provided, however,
that any party hereto may make such disclosures as are required by
law and as are necessary for legitimate law enforcement or
compliance purposes. The parties agree that any breach of this
confidentiality requirement shall be considered a material breach
of this Agreement.
5. W AIVER . The
parties hereto hereby agree to waive all rights under California
Civil Code Section 1542 which provides: “A general
release does not extend to claims which the creditor does not know
or suspect to exist in its favor at the time of executing the
release, which if known by the creditor must have materially
affected its settlement with the debtor.”
6. R ELEASE .
Notwithstanding the provisi
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