{"id":39931,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/executive-severance-and-arbitration-agreement-macrovision-corp3.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"executive-severance-and-arbitration-agreement-macrovision-corp3","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/executive-severance-and-arbitration-agreement-macrovision-corp3.html","title":{"rendered":"Executive Severance and Arbitration Agreement &#8211; Macrovision Corp. and Carol Flaherty"},"content":{"rendered":"<pre>                             MACROVISION CORPORATION\n                  EXECUTIVE SEVERANCE AND ARBITRATION AGREEMENT\n\n            THIS EXECUTIVE SEVERANCE AND ARBITRATION AGREEMENT is made and\nentered into as of April 30, 2001 by and between Macrovision Corporation, a\nDelaware corporation (the \"Company\") and Carol Flaherty (\"Executive\").\n\n            WHEREAS, the Board of Directors (the \"Board\") of the Company has\nrecommended and authorized the Company to enter into a severance agreement in\nthe form hereof with Executive; and\n\n            WHEREAS, the Board has determined that, in the event of a possible,\nthreatened or pending sale or other change in control of the Company, it is\nimperative that the Company and the Board be able to rely upon Executive to\ncontinue in Executive's position, and that the Company be able to receive and\nrely upon Executive's advice, if requested, as to the best interests of the\nCompany and its shareholders without concern that Executive might be distracted\nby the personal uncertainties and risks created by any such possible\ntransactions; and\n\n            WHEREAS, in connection with the foregoing, Executive may, in\naddition to Executive's regular duties, be called upon to assist in the\nassessment of any such possible transactions, advise management and the Board as\nto whether such proposals would be in the best interests of the Company and its\nshareholders, and to take such other actions as the Board might determine to be\nappropriate;\n\n            NOW, THEREFORE, to assure the Company that it will have the\ncontinued dedication of Executive and the availability of Executive's advice and\ncounsel through the occurrence of any Change in Control of the Company, and to\ninduce Executive to remain in the employ of the Company, and for other good and\nvaluable consideration, the Company and Executive agree as follows:\n\n            27. Payment of Severance Benefit.\n\n                  (a) In the event that a \"Change in Control\" (as hereinafter\ndefined) occurs and, within the period beginning ninety (90) days before the\ndate of the Change in Control and ending twelve (12) months thereafter, (a)\nExecutive's employment is terminated by the Company or a Subsidiary (as\nhereinafter defined) without Cause (as hereinafter defined) or (b) Executive\nvoluntarily terminates his employment with Company and its Subsidiaries with\nGood Reason (as hereinafter defined), then the Company shall pay to Executive\nseverance pay under this Agreement. Transfer of Executive's employment from the\nCompany to a Subsidiary (or to an entity of which the Company is a Subsidiary)\nor from a Subsidiary to the Company or to another Subsidiary (or to an entity of\nwhich the Company is a Subsidiary) shall not be considered a termination of\nExecutive's employment. Such severance pay shall be in the form of\n\n\n\nsalary continuation of Executive's regular base pay in effect ninety (90) days\nbefore the time of the Change in Control or at the time of the termination of\nhis employment, whichever is greater. The Company shall pay such severance pay\nduring the twelve (12) month period immediately following the date on which\nExecutive's employment with the Company terminates; provided, however, that, if\nExecutive commences new employment within such twelve (12) month period, such\nseverance pay shall cease on the later of (i) the date six (6) months after\nExecutive's employment with the Company terminates or (ii) the date Executive\ncommences new employment.\n\n                  (b) \"Change in Control\" means any of the following events (i)\nany \"person\" or \"group\" (as defined in or pursuant to Sections 13(d) or 14(d) of\nthe Securities Exchange Act of 1934, as amended (the \"Exchange Act\")) other than\nthe Company, is or becomes the \"beneficial owner\" (as defined in Rule 13d-3\npromulgated under the Exchange Act), directly or indirectly (including by\nholding securities which are exercisable for or convertible into shares of\ncapital stock of the Company), of securities of the Company representing 50% or\nmore of the voting power of the outstanding shares of capital stock of the\nCompany entitled to vote generally in the election of directors; or, (ii) the\nCompany sells or exchanges, through merger, assignment or otherwise, in one or\nmore transactions, other than in the ordinary course of business, assets which\nprovided at least seventy percent (70%) of the revenues or pre-tax net income of\nthe Company and its Subsidiaries on a consolidated basis during the most\nrecently-completed fiscal year, or, (iii) Continuing Directors cease to\nconstitute at least a majority of the Board. \"Continuing Directors\" are (A) each\nDirector in office on January 1, 2001, and (B) any successor to any such\nDirector whose nomination or selection was approved by a majority of the\nDirectors in office at the time of the Director's nomination or selection.\nNotwithstanding the foregoing, the following events shall not constitute a\nChange in Control: any acquisition of beneficial ownership pursuant to (i) a\nreclassification, however effected, of the Company's authorized common stock, or\n(ii) a corporate reorganization involving the Company or a Subsidiary which does\nnot result in a material change in the ultimate ownership by the shareholders of\nthe Company (through their ownership of the Company or its successor resulting\nfrom the reorganization) of the assets of the Company and its Subsidiaries, but\nonly if such reclassification or reorganization has been approved by the Board.\n\n                  (c) \"Cause\" means the occurrence of any one or more of the\nfollowing: (i) conviction of any felony or any act of fraud, misappropriation or\nembezzlement which has an immediate and materially adverse effect on the Company\nor a Subsidiary, (ii) engaging in a fraudulent act to the material damage or\nprejudice of the Company or a Subsidiary or in conduct or activities materially\ndamaging to the property, business or reputation of the Company or a Subsidiary,\n(iii) failure to comply in any material respect with the terms of any applicable\nemployment agreement or any written policies or directives of the Board which\nhave an immediate and materially adverse effect on the Company or a Subsidiary\nand which have not been corrected within 30 days after written notice from the\nCompany of such failure, (iv) any material act or omission involving malfeasance\nor negligence in the performance of employment duties which has an immediate and\nmaterially adverse effect on the Company or a Subsidiary and which has not been\ncorrected within 30 days after written notice from the Company, or (v) material\nbreach of any other agreement with the Company, which has an immediate and\n\n\n\nmaterially adverse effect on the Company or a Subsidiary and which has not been\ncured within 30 days after written notice from the Company of such breach.\n\n                  (d) \"Good Reason\" means the occurrence of any of the following\nwithout the employee's consent: (i) a substantial diminution in the employee's\nstatus, position or responsibilities, or the assignment to the employee of any\nduties or responsibilities that are inconsistent with the employee's status,\nposition or responsibilities; (ii) a reduction in the employee's base salary; or\n(iii) a relocation of the employee's principal place of employment to a new work\nsite requiring an increase in one-way commute from employee's residence of more\nthan thirty-five (35) miles.\n\n                  (e) \"Subsidiary\" means (i) any corporation, foreign or\ndomestic, in which the Company directly or indirectly owns 50% or more of the\nissued and outstanding voting stock on an \"as converted basis\" and (ii) any\npartnership, foreign or domestic, in which the Company owns a direct or indirect\ninterest equal to 50% or more of the outstanding equity interests.\n\n            28. Welfare Benefits.\n\n                  (a) During the period that Company is obligated to pay\nExecutive severance pay pursuant to Section 1(a) above, or, if sooner, until\nExecutive is entitled to Welfare Benefits (as defined below) under any plan\nmaintained by any entity employing Executive after Executive's employment with\nthe Company terminates, Company shall provide to Executive (and his spouse and\nother qualified dependents) all Welfare Benefits that Company provided to\nExecutive (and his spouse and qualified dependents) immediately prior to the\nChange in Control. For purposes of this Agreement, the term \"Welfare Benefits\"\nshall include, without limitation, all life, dental, health, accident and\ndisability benefit plans, other similar welfare plans, and any equivalent\nsuccessor policy, plan, program or arrangement that may now exist or be adopted\nhereafter by the Company or a Subsidiary. Notwithstanding the foregoing, with\nrespect to any Welfare Benefits provided through an insurance policy, the\nCompany's obligation to provide such Welfare Benefits following a Change in\nControl shall be limited by the terms of such policy; provided, however, that\n(i) the Company shall make reasonable efforts to amend such policy to provide\nthe continued coverage described in this Section 2(a), and (ii) if such policy\nis not amended to provide the continued benefits described in this Section 2(a),\nthe Company shall pay Executive's cost of comparable replacement coverage.\n\n                  (b) If prior to the Change in Control Executive was required\nto contribute towards the cost of a Welfare Benefit as a condition of receiving\nsuch Welfare Benefit, the Executive may be required to continue contributing\ntowards the cost of such Welfare Benefit under the same terms and conditions as\napplied to the Executive immediately prior to the Change in Control in order to\nreceive such Welfare Benefit.\n\n            29. Stock Options. The Company has granted Executive options to\npurchase Company common stock that are currently outstanding, but not yet\nexercisable in whole or in part, and the Company may grant Executive additional\nstock options in the future. The currently outstanding stock options and any\nfuture stock options Company grants to Executive are\n\n\n\nhereinafter referred to as the \"Stock Options.\" Notwithstanding the provisions\nof any agreement(s) pursuant to which the Stock Options are granted, in the\nevent that a Change in Control occurs and, within the period beginning ninety\n(90) days before the date of the Change in Control and ending twelve (12) months\nthereafter, (a) Executive's employment is terminated by the Company or a\nSubsidiary without Cause or (b) Executive voluntarily terminates his employment\nwith Company and its Subsidiaries with Good Reason, then on the last day of\nExecutive's employment with the Company and its Subsidiaries, all of the Stock\nOptions held by Executive shall become fully vested and exercisable.\n\n            30. Other Employee Benefits. The benefits provided to Executive\nhereunder shall not be affected by or reduced because of any other benefits\n(including, but not limited to, salary, bonus, pension, stock option or stock\npurchase plan) to which Executive may be entitled by reason of his employment\nwith the Company or any Subsidiary thereof or the termination of his employment\nwith the Company, and no other such benefit by reason of such employment shall\nbe so affected or reduced because of the benefits bestowed by this Agreement.\nNotwithstanding the foregoing, if Executive qualifies for severance pay under\nSection 1(a) of this Agreement, such severance pay will be in lieu of, and not\nin addition to, any severance or other termination payments to which Executive\nmay be entitled under any employment agreement with, or other plan or\narrangement of, the Company.\n\n            31. Withholding. All amounts payable by the Company hereunder shall\nbe subject to all federal, state, local and other withholdings and employment\ntaxes as required by applicable law.\n\n            32. Subsequent Employment with Competitor. Executive's right to\nreceive benefits under this Agreement, including Executive's right to exercise\nany Stock Options that have accelerated under this Agreement, shall cease\nimmediately upon Executive's employment by any competitor of the Company and its\nSubsidiaries.\n\n            33. Arbitration of Claims. The following arbitration provisions\nshall apply to any claim brought by Executive or the Company after the date of\nthis Agreement even if the facts upon which the claim is based arose prior to\nthe execution of this Agreement:\n\n                  (a) Claims Covered by this Agreement. To the maximum extent\npermitted by law, the Company and Executive mutually consent to the resolution\nby arbitration of all claims or causes of action that the Company may have\nagainst Executive or that Executive may have against the Company or against its\nofficers, directors, employees, or agents in the capacity as such or otherwise\n(collectively \"claims\"). The claims covered by this Agreement include, but are\nnot limited to, claims for breach of any contract or covenant (express or\nimplied); tort claims; claims for discrimination (including, but not limited to,\nrace, sex, sexual harassment, or any type of unlawful harassment, religion,\nnational origin, age, marital status, medical condition, disability or sexual\norientation); claims for wrongful termination in violation of public policy; and\nclaims for violation of any federal, state, or other governmental law, statute,\nregulation or ordinance, including, but not limited to, all claims arising under\nTitle VII of the Civil Rights Act of 1969, as amended, the Age Discrimination in\nEmployment Act of 1967, the Americans with Disabilities Act, the California Fair\nEmployment &amp; Housing Act, the California\n\n\n\nLabor Code, the Consolidated Omnibus Budget Reconciliation Act of 1985, the Fair\nLabor Standards Act or Employee Retirement Income Security Act.\n\n                  (b) Claims Not Covered by the Agreement. Claims Executive may\nhave for workers' compensation, unemployment compensation benefits or wage and\nhour claims within the jurisdiction of the California Labor Commissioner are not\ncovered by this Agreement. Notwithstanding the fact that Executive is not\nrequired to arbitrate such claims, he may, if he so chooses, submit wage and\nhour claims to binding arbitration pursuant to this Agreement. Also not covered\nare claims by either party for injunctive and\/or other equitable relief, as to\nwhich the parties understand and agree that either party may seek and obtain\nrelief from a court of competent jurisdiction.\n\n                  (c) Required Notice of All Claims. The Company and Executive\nagree that the aggrieved party must give written notice of any claim to the\nother party. Written notice to the Company, or its officers, employees or\nagents, shall be sent to the Company's Chief Executive Officer. Executive will\nbe given notice at the last address recorded in his personnel file or such other\naddress as Executive may provide to the Company from time to time following the\ndate of this Agreement by a writing specifying that it is the address for notice\nunder this Agreement. The written notice shall identify and describe the nature\nof all claims asserted and detail the facts upon which such claims are based.\nThe notice shall be sent to the other party by certified or registered mail,\nreturn receipt requested.\n\n                  (d) Arbitration Procedures. The Company and Executive agree\nthat, except as provided in this Agreement, any arbitration shall be in\naccordance with and under the auspices and rules of the American Arbitration\nAssociation (hereinafter the \"Arbitration Service\"). The arbitration shall take\nplace in Santa Clara County, California, unless the parties mutually agree to\nconduct the arbitration in a different location. The arbitrator shall be\nselected by the mutual agreement of the parties. If the parties cannot agree on\na neutral arbitrator, Executive first, and then the Company, will alternately\nstrike names from a list provided by the Arbitration Service until only one name\nremains. The arbitrator shall have exclusive authority to resolve any dispute\nrelating to the interpretation, applicability, enforceability or formation of\nthis Agreement, including but not limited to any claim that all or any part of\nthis Agreement is void or voidable. The arbitrator shall apply the applicable\nstatute of limitations to any claim, taking into account compliance with\nsubparagraph paragraph 6(c) of this Agreement. The arbitrator shall issue a\nwritten opinion and award, which shall be signed and dated. The arbitrator shall\nbe permitted to award those remedies that are available under applicable law.\nThe arbitrator's decision regarding the claims shall be final and binding upon\nthe parties. The arbitrator's award shall be enforceable in any court having\njurisdiction thereof.\n\n                  (e) Acknowledgment of Jury Trial Waiver. Executive understands\nthat, by this Agreement, he is waiving his right to have a claim adjudicated by\na court or jury. Any party may be represented by an attorney or other\nrepresentative selected by the party.\n\n                  (f) Arbitration Fees and Costs; Attorneys' Fees. Executive\nwill be required to pay an arbitration fee to initiate the arbitration equal to\nwhat he would be charged as a first appearance fee in court. The Company shall\nadvance the remaining fees and costs of the\n\n\n\narbitrator. However, to the extent permissible under the law, and following the\narbitrator's ruling on the matter, the arbitrator may rule that the arbitrator's\nfees and costs be distributed in an alternative manner. The arbitrator's award\nin any arbitration brought pursuant to the provisions of this Agreement shall\nprovide for the prevailing party to recover from the other party the prevailing\nparty's reasonable attorneys' fees relating to such action.\n\n                  (g) Requirements for Modification or Revocation. This\nagreement to arbitrate shall survive the termination of Executive's employment\nwith the Company. It can only be revoked or modified by a writing signed by the\nparties that specifically states an intent to revoke or modify this Agreement.\n\n                  (h) Consideration. Executive understands that the provisions\nfor severance pay as set forth herein and his continued employment with the\nCompany are consideration for his acceptance of these arbitration provisions. In\naddition, the promises by the Company and by Executive to arbitrate claims,\nrather than litigate them before courts or other bodies, provide consideration\nfor each other.\n\n                  (i) Violation of this Agreement. Should any party to this\nAgreement hereafter institute any legal action or administrative proceeding\nagainst the other with respect to any claim required to be arbitrated under this\nAgreement or pursue any arbitrable dispute by any method other than arbitration,\nthe responding party shall recover from the initiating party all damages, costs,\nexpenses and attorneys' fees incurred as a result of such action.\n\n            34. Entire Agreement; Effect of Prior Agreements. This is the\ncomplete agreement of the parties on the subjects set forth herein, including\nseverance pay upon a Change in Control and arbitration of disputes. This\nAgreement supersedes any prior or contemporaneous oral or written understanding\non such subjects. No party is relying on any representations, oral or written,\non the subject of the effect, enforceability, or meaning of this Agreement,\nexcept as specifically set forth in this Agreement. In the event of a conflict\nbetween any of the terms of this Agreement and any of the terms of (i) any of\nthe Option Agreements, or (ii) that certain accepted offer of employment between\nExecutive and the Company dated April 10, 1999, the terms of this Agreement\nshall prevail. Without limiting the generality of the foregoing, the arbitration\nprovisions of the April 10, 1999 offer of employment shall be superseded by the\narbitration provisions set forth in this Agreement.\n\n            35. Amendment. This Agreement may not be amended without the prior\nwritten consent of both Executive and the Company.\n\n            36. No Right to Continued Employment. This Agreement does not\nconstitute a contract of employment, does not change the status of the\nExecutive's employment and does not change the Company's policies regarding\ntermination of employment. Nothing in this Agreement shall be deemed to give\nExecutive the right to be retained in the service of the Company or to deny the\nCompany any right it may have to discharge or demote him at any time; provided,\nhowever, that any termination of employment of Executive, or any removal of\nExecutive as an executive officer of the Company primarily in contemplation of a\nChange in Control shall not be effective to deny Executive the benefits of this\nAgreement, including\n\n\n\nwithout limitation Sections 1 and 2 hereof. No provision of this Agreement shall\nin any way limit, restrict or prohibit Executive's right to terminate employment\nwith the Company or leave his position as senior executive.\n\n            37. Severability. If a court or other body of competent jurisdiction\ndetermines that any provision of this Agreement is invalid or unenforceable,\nthat provision will be adjusted rather than voided, if possible, so that it is\nenforceable to the maximum extent possible, or, if it is not possible to so\nadjust such provision, this Agreement shall be construed in all respects as if\nsuch invalid or unenforceable provision were omitted. The invalidity and\nunenforceability of any particular provision of this Agreement shall not affect\nany other provision hereof, and all other provisions of the Agreement shall be\nvalid and enforceable to the fullest extent possible.\n\n            38. Successors.\n\n                  (a) The Company will require any successor, whether direct or\nindirect, by purchase, merger, consolidation or otherwise, to all or\nsubstantially all of the business and\/or assets of the Company to expressly\nassume and agree to perform this Agreement in the same manner and to the same\nextent that the Company would be required to perform it if no such succession\nhad taken place.\n\n                  (b) This Agreement shall inure to the benefit of, and be\nenforceable by, Executive's personal or legal representatives, executors,\nadministrators, successors, heirs, distributees, devisees and legatees.\n\n            39. Governing Law. This Agreement shall be governed by and construed\nin accordance with the laws of the State of California without regard or\nreference to the rules of conflicts of law that would require the application of\nthe laws of any other jurisdiction..\n\n            IN WITNESS WHEREOF, the parties hereto have duly executed this\nAgreement, effective as of the date set forth in the first paragraph hereof.\n\n\nMACROVISION CORPORATION                 EXECUTIVE\n\n\nBy \/s\/ John O. Ryan                     \/s\/ Carol Flaherty\n   ---------------------------------    ----------------------------------------\n       John Ryan                        CAROL FLAHERTY\n       Chief Executive Officer\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8106],"corporate_contracts_industries":[9466],"corporate_contracts_types":[9539,9551],"class_list":["post-39931","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-macrovision-corp","corporate_contracts_industries-media__movies","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39931","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39931"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39931"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39931"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39931"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}