Participation Letter Agreement under the Mattel, Inc. Executive Severance Plan B between Mattel, Inc. and Anthony P. DiSilvestro, dated June 19, 2020
7 College Avenue
Haverford, PA 19041
Re: The Mattel, Inc. Executive Severance Plan B
This letter agreement (Letter Agreement) relates to the Mattel, Inc. Executive Severance Plan B (the Plan).
Through this Letter Agreement, you are being offered the opportunity to become a participant in the Plan (a Participant), and thereby to be eligible to receive the severance benefits set forth therein. The day you start employment with Mattel (anticipated to be June 29, 2020) shall be your Eligibility Date for purposes of the Plan. Terms used in this Letter Agreement, but not otherwise defined, will have the meaning set forth in the Plan.
A copy of the Plan is attached to this Letter Agreement. You should read it carefully and become comfortable with its terms and conditions, and those set forth below.
By signing below, you will be acknowledging and agreeing to the following provisions:
that you have received and reviewed a copy of the Plan;
that participation in the Plan requires that you agree irrevocably and voluntarily to the terms of the Plan (including, without limitation, the covenants set forth in Section 7 of the Plan) and the terms set forth below; and
that you have had the opportunity to carefully evaluate this opportunity, and desire to participate in the Plan according to the terms and conditions set forth herein.
Subject to the foregoing, we invite you to become a Participant in the Plan.
NOW, THEREFORE, you and Mattel (hereinafter referred to as the parties) hereby AGREE as follows:
1. As a condition of receiving the Severance Benefit (other than the Accrued Amounts and Other Benefits), you must (a) execute and accept the terms and conditions of, and the effectiveness of, a General Release of All Claims (the Release) in substantially the form attached hereto as Exhibit A (which form may be modified by Mattel to the extent Mattel determines in good faith that any such modification is necessary to make it valid and encompassing under applicable law) and such Release must become irrevocable within fifty- five (55) days following your Date of Termination, (b) comply with the covenants set forth in Section 7 of the Plan and (c) promptly resign from any position as an officer, director or fiduciary of any Mattel-related entity.
2. In consideration of becoming eligible to receive the Severance Benefits provided under the terms and conditions of the Plan, you agree to waive any and all rights, benefits, and privileges to severance benefits that you might otherwise be entitled to receive under any other plan or arrangement.
3. You understand that the waiver set forth in Section 2 above is irrevocable for so long as this Letter Agreement is in effect, and that this Letter Agreement and the Plan set forth the entire agreement between the parties with respect to any subject matter covered herein.
4. This Letter Agreement shall terminate, and your status as a Participant in the Plan shall end, on the first to occur of
your termination of employment for a reason other than a Covered Termination as defined in Section 2(e) of the Plan, and
the first anniversary of your Eligibility Date; provided that commencing on the first day of the first month following the month in which your Eligibility Date occurs and on the first day of each month thereafter (the most recent of such dates is hereinafter referred to as the Renewal Date), your participation in the Plan shall be automatically extended so as to terminate one year from such Renewal Date, unless at least 90 days prior to any Renewal Date (including prior to your Eligibility Date) Mattel shall give notice to you that your participation in the Plan shall not be so extended beyond the first anniversary of such Renewal Date. Accordingly, you shall retain your status as a Participant for at least 15 months following any notice from Mattel that your participation in the Plan is not being extended.
5. Notwithstanding anything herein to the contrary, if a Change of Control occurs while you are a Participant in the Plan, in no event will your status as a Participant in the Plan end prior to the end of the twenty-four (24) month period beginning on a Change of Control regardless of when any written notification is given to you terminating your participation in the Plan (including any written notification given prior to such Change of Control) in accordance with Section 4(b).
6. Your participation in the Plan shall continue in effect following any Covered Termination that occurs while you are a Participant in the Plan with respect to all rights and obligations accruing as a result of such termination.
7. You recognize and agree that your execution of this Letter Agreement results in your enrollment and participation in the Plan, that you agree to be bound by the terms and conditions of the Plan and this Letter Agreement, and that you understand that this Letter Agreement may not be amended or modified except pursuant to Section 12 of the Plan.
|Dated: June 19, 2020|| |
|By: Ynon Kreiz|
|Title: Chairman and Chief Executive Officer|
ACCEPTED AND AGREED TO this 19th day of June, 2020.
|Your Name (printed)|
EXHIBIT A TO PARTICIPATION LETTER AGREEMENT
OF ALL CLAIMS
1. For valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned (the Participant) does hereby on behalf of the Participant and the Participants successors, assigns, heirs and any and all other persons claiming through the Participant, if any, and each of them, forever relieve, release, and discharge Mattel, Inc. (Mattel) and its respective predecessors, successors, assigns, owners, attorneys, representatives, affiliates, Mattel corporations, subsidiaries (whether or not wholly-owned), divisions, partners and their officers, directors, agents, employees, servants, executors, administrators, accountants, investigators, insurers, and any and all other related individuals and entities, if any, and each of them (collectively, the Released Parties), in any and all capacities from any and all claims, debts, liabilities, demands, obligations, liens, promises, acts, agreements, costs and expenses (including, but not limited to attorneys fees), damages, actions and causes of action, of whatever kind or nature, including, without limiting the generality of the foregoing, any claims arising out of, based upon, or relating to the hire, employment, remuneration (including salary; bonus; incentive or other compensation; vacation, sick leave or medical insurance benefits; or other benefits) or termination of the Participants employment with Mattel.
2. This release (Release) includes a release of all known and unknown claims the Participant may have as of the time of signing this Agreement against any Released Parties including, but not limited to, all claims under the Federal Age Discrimination in Employment Act (ADEA), as amended by the Older Workers Benefit Protection Act (OWBPA), Worker Adjustment & Retraining Notification Act (the WARN Act), the Family and Medical Leave Act (FMLA), Title VII of the Civil Rights Act of 1964, Sections 1981 and 1983 of the Civil Rights Act of 1866, the Americans With Disabilities Act (ADA), the Employee Retirement Income Security Act of 1974 (ERISA), and all claims based upon or related to discrimination, harassment, retaliation, defamation, breach of a contract or covenant, fraud, negligence, breach of duty, privacy, copyright, trademark or patent infringement, trade secrets, unfair competition, termination of the employment relationship, tort claims, common law claims, equitable claims, and any and all claims for violation of any federal, state, local, municipal, or other governmental law, statute, regulation, or ordinance.
This Release does not include: (i) any claims that the law does not permit the Participant to release by private agreement (including unemployment and workers compensation benefits); (ii) vested benefits (except already validly denied benefits) under any employee-benefit plan governed by ERISA; (iii) any right to be indemnified by the Company (including, without limitation, the Participants rights under Section 2802 of the California Labor Code); (iv) Participants right to enforce the Participant Letter Agreement and this Release.
3. Notwithstanding any other provision of this Release, this Release does not apply to any rights or claims which arise after the execution of this Release.
4. This Release covers both claims that the Participant knows about and those the Participant may not know about. The Participant expressly waives all rights afforded by any statute (such as Section 1542 of the Civil Code of the State of California) which limits the effect of a release with respect to unknown claims. The Participant understands the significance of the Participants release of unknown claims and the Participants waiver of statutory protection against a release of unknown claims (such as under Section 1542). Section 1542 of the Civil Code of the State of California states as follows:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
Notwithstanding the provisions of Section 1542, the Participant expressly acknowledges that this Release is intended to include both claims that the Participant knows about and those the Participant does not know or suspect to exist.
5. The Participant hereby represents and warrants that he or she has not filed, initiated, or prosecuted (or caused to be filed, initiated, or prosecuted) any lawsuit, complaint, charge, action, compliance review, investigation, or proceeding with respect to any claim this Release purports to waive, and the Participant covenants never to do so in the future, whether as a named plaintiff, class member, or otherwise. The Participant understands that this Release does not prevent him/her from communicating directly with, cooperating with, or providing information to any government or regulatory entity (such as the U.S. Equal Employment Opportunity Commission (EEOC), National Labor Relations Board (NLRB), U.S. Department of Labor (DOL), U.S. Securities and Exchange Commission (SEC)), and/or state or local analogues, subject to any obligation Participant may have to take steps to protect confidential information from public disclosure. Further, the Participant understands that this Release does not prevent him/her from filing, cooperating with, or participating before the Equal Employment Opportunity Commission or any state or local fair employment practices agency. Provided however, that the Participant acknowledges that he/she releases any right to personally seek reinstatement, damages, remedies, or other relief as to any claim that the Participant released by signing this Release, as the Participant has waived any right the Participant might have had to any of those things to the extent such release is not prohibited by law.
If the Participant is ever awarded or recovers any amount as to a claim the Participant purported to waive in this Release, the Participant agrees that the amount of the award or recovery shall be reduced by the amounts he or she was paid under this Plan, increased appropriately for the time value of money, using an interest rate of 10% per annum. The Participant covenants to never directly or indirectly make a claim against any Released Party under California Business & Professions Code Section 17200 or under any other unfair competition law of any jurisdiction, whether as a named plaintiff, class member, or otherwise.
6. The provisions of this Release are severable, and if any part of it is found to be unenforceable, the other paragraphs shall remain fully valid and enforceable. This Release shall be construed in accordance with its fair meaning and in accordance with the laws of the State of California, without regard to conflicts of laws principles thereof.
7. The Participant is strongly encouraged to consult with an attorney before signing this Release. The Participant acknowledges that the Participant has been advised of this right to consult an attorney and the Participant understands that whether to do so is the Participants decision. The Participant acknowledges that Mattel has advised the Participant that the Participant has twenty-one (21) days in which to consider whether the Participant should sign this Release and has advised the Participant that if the Participant signs this Release, the Participant has seven (7) days following the date on which the Participant signs the Release to revoke it and that the Release will not be effective until after this seven-day period had lapsed. In order to revoke the Release, Participant must deliver a signed notice of revocation to the Chief People Officer at 333 Continental Blvd. El Segundo, CA, 90245, no later than the end of the seventh calendar day after the day on which the Participant signed this Release. If Participant revokes this Release, it will not go into effect and Participant will not receive any payments or benefits that are contingent on Participants agreement to this Release.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.