ROVICORPORATION EXECUTIVESEVERANCE AND ARBITRATION AGREEMENT

 

    THIS EXECUTIVE SEVERANCE AND ARBITRATION AGREEMENT (the “Agreement”) is made and entered into as of December 21, 2009 by and between Rovi Corporation, a Delaware corporation (the “Company”) and Thomas Carson (“Executive”).

 

   WHEREAS, the Board of Directors (the “Board”) of the Company has recommended and authorized the Company to enter into a severance agreement in the form hereof with Executive; and

 

   WHEREAS, the Board has determined that, in the event of a possible threatened or pending sale or other change in control of the Company, it is imperative that the Company and the Board be able to rely upon Executive to continue in Executive’s position, and that the Company be able to receive and rely upon Executive’s advice, if requested, as to the best interests of the Company and its stockholders without concern that Executive might be distracted by the personal uncertainties and risks created by any such possible transactions; and

 

   WHEREAS, in connection with the foregoing, Executive may, in addition to Executive’s regular duties, be called upon to assist in the assessment of any such possible transactions, advise management and the Board as to whether such proposals would be in the best interests of the Company and its stockholders, and to take such other actions as the Board might determine to be appropriate;

 

   NOW, THEREFORE, to assure the Company that it will have the continued dedication of Executive and the availability of Executive’s advice and counsel through the occurrence of any Change in Control (as defined in Section 1(b) below) of the Company, and to induce Executive to enter into and remain in the employ of the Company, and for other good and valuable consideration, the Company and Executive agree as follows:

1.	Payment of Severance Benefit.

 

   (a)    In the event that a Change in Control (as hereinafter defined) occurs and, within the period beginning ninety (90) days before the date of the Change in Control and ending twelve (12) months thereafter, (a) Executive’s employment is terminated by the Company or a Subsidiary (as hereinafter defined) without Cause (as hereinafter defined) or (b) Executive voluntarily terminates his/her employment with Company and its Subsidiaries with Good Reason (as hereinafter defined), then the Company shall pay to Executive severance pay under this Agreement.  Transfer of Executive’s employment from the Company to a Subsidiary (or to an entity of which the Company is a Subsidiary) or from a Subsidiary to the Company or to another Subsidiary (or to an entity of which the Company is a Subsidiary), by itself shall not be considered a termination of Executive’s employment.  Such severance pay shall be in the form of salary continuation of Executive’s regular base pay in effect ninety (90) days before the time of the Change in Control or at the time of the termination of his employment, whichever is greater.  The Company shall pay such severance pay during the twelve (12) month period immediately following the date on which Executive’s employment with the Company terminates; provided, however, that, if Executive commences new employment within such twelve (12) month period, such severance pay shall cease on the later of (i) the date six (6) months after Executive’s employment with the Company terminates or (ii) the date Executive commences new employment.

 

   (b)     “Change in Control” means any of the following events: (i) any “person” or “group” (as defined in or pursuant to Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) other than the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly (including by holding securities which are exercisable for or convertible into shares of capital stock of the Company), of securities of the Company

 

 

representing 50% or more of the voting power of the outstanding shares of capital stock of the Company entitled to vote generally in the election of directors; (ii) the Company sells or exchanges, through merger, assignment or otherwise, in one or more transactions, other than in the ordinary course of business, assets which provided at least seventy percent (70%) of the revenues or pre-tax net income of the Company and its Subsidiaries on a consolidated basis during the most recently completed fiscal year; or (iii) Continuing Directors cease to constitute at least a majority of the Board.  “Continuing Directors” are (A) each director serving on the Board on May 5, 2008, and (B) any successor to any such director whose nomination or selection was approved by a majority of the directors in office at the time of the director’s nomination or selection.  Notwithstanding the foregoing, the following events shall not constitute a Change in Control: any acquisition of beneficial ownership pursuant to (i) a reclassification, however effected, of the Company’s authorized common stock, or (ii) a corporate reorganization involving the Company or a Subsidiary which does not result in a material change in the ultimate ownership by the stockholders of the Company (through their ownership of the Company or its successor resulting from the reorganization) of the assets of the Company and its Subsidiaries, but only if such reclassification or reorganization has been approved by the Board.

 

   (c)   “Cause” means the occurrence of any one or more of the following: (i) conviction of any felony or any act of fraud, misappropriation or embezzlement which has an immediate and materially adverse effect on the Company or a Subsidiary; (ii) engaging in a fraudulent act to the material damage or prejudice of the Company or a Subsidiary or engaging in conduct or activities materially damaging to the property, business or reputation of the Company or a Subsidiary; (iii) failure to comply in any material respect with the terms of any applicable employment agreement or any written policies or directives of the Board which have an immediate and materially adverse effect on the Company or a Subsidiary and which has not been corrected within 30 days after written notice from the Company of such failure; (iv) any material act or omission involving malfeasance or negligence in the performance of employment duties which has an immediate and materially adverse effect on the Company or a Subsidiary and which has not been corrected within 30 days after written notice from the Company; or (v) material breach of any other agreement with the Company, which has an immediate and materially adverse effect on the Company or a Subsidiary and which has not been cured within 30 days after written notice from the Company of such breach.

 

   (d)   “Good Reason” means the occurrence of any of the following without the Executive’s consent: (i) a material diminution in the Executive’s authority, duties or responsibilities, or the assignment to the Executive of any duties or responsibilities that are inconsistent with the Executive’s authority, duties or responsibilities; (ii) a material diminution in the Executive’s base salary; or (iii) a relocation of the Executive’s principal place of employment to a new work site requiring an increase in one-way commute from Executive’s residence of more than thirty-five (35) miles.    Within 90 days of the initial occurrence of any of the events listed in this section, Executive must provide written notice to the Company of the occurrence of the event, and the Company shall have 30 days following receipt of such notice during which it may remedy the condition.  If Executive fails to give such notice within the 90 day period or the Company remedies the condition within the 30 day period, the occurrence of such event shall not constitute “Good Reason.”

 

    (e)   “Subsidiary” means (i) any corporation, foreign or domestic, in which the Company directly or indirectly owns 50% or more of the issued and outstanding voting stock on an “as converted basis” or (ii) any partnership, foreign or domestic, in which the Company owns a direct or indirect interest equal to 50% or more of the outstanding equity interests.

 

   (f)    Notwithstanding the foregoing, if any payment hereunder, or any portion thereof, is considered “nonqualified deferred compensation” that is to be paid to Executive at a time that he is considered to be a “specified employee,” in each case as defined and determined for purposes of Section 409A of the Internal Revenue Code of 1986 as amended ("Section 409A"), and is to be paid within six months following Executive’s termination of employment, then to the extent that such payment is not otherwise exempt from the application of the 20% excise tax under Section 409A, such payment shall be delayed and paid on the first day of the seventh calendar month following the month in which Executive’s termination of employment occurs.

 

2.	Welfare Benefits.

 

   (a)    During the period that Company is obligated to pay Executive severance pay pursuant to Section 1(a) above, or, if sooner, until Executive is entitled to Welfare Benefits (as defined below) under any plan maintained by any entity employing Executive after Executive’s employment with the Company terminates, Company shall provide to Executive (and his/her spouse and other qualified dependents) all Welfare Benefits that Company provided to Executive (and his/her spouse and qualified dependents) immediately prior to the Change in Control.  For purposes of this Agreement, the term “Welfare Benefits” shall include, without limitation, all life, dental, health, accident and disability benefit plans, other similar welfare plans, and any equivalent successor policy, plan, program or arrangement that may now exist or be adopted hereafter by the Company or a Subsidiary.  Notwithstanding the foregoing, with respect to any Welfare Benefits provided through an insurance policy, the Company’s obligation to provide such Welfare Benefits following a Change in Control shall be limited by the terms of such policy; provided, however, that (i) the company shall make reasonable efforts to amend such policy to provide the continued coverage described in this Section 2(a) and (ii) if such policy is not amended to provide the continued benefits described in this Section 2(a), the Company shall pay Executive’s cost of comparable replacement coverage.

 

   (b)    If prior to the Change in Control Executive was required to contribute towards the cost of a Welfare Benefit as a condition of receiving such Welfare Benefit, the Executive may be required to continue contributing towards the cost of such Welfare Benefit under the same terms and conditions as applied to the Executive immediately prior to the Change in Control in order to receive such Welfare Benefit.

  

3.	Equity Compensation.

The Company has granted Executive options to purchase Company common stock that are currently outstanding, but not yet exercisable in whole or in part.  Additionally, the Company has granted Executive restricted shares of Company common stock that have not yet vested and become nonforfeitable.  The Company may grant Executive additional stock options, restricted stock or other forms of equity compensation in the future.  The currently outstanding stock options and restricted stock and any future equity compensation Company grants to Executive are hereinafter referred to as the “Stock Awards.”   Notwithstanding the provisions of any agreement(s) pursuant to which the Stock Awards are granted, in the event that a Change in Control occurs and, within the period beginning ninety (90) days before the date of the Change in Control and ending twelve (12) months thereafter, (a) Executive’s employment is terminated by the Company or a Subsidiary without Cause or (b) Executive voluntarily terminates his employment with Company and its Subsidiaries with Good Reason, then on the last day of Executive’s employment with the Company and its Subsidiaries, all of the Stock Awards held by Executive shall become fully vested and exercisable.

 

4.	Other Employee Benefits.

5.	Withholding.

All amounts payable by the Company hereunder shall be subject to all federal, state, local and other withholdings and employment taxes as required by applicable law.

 

 

6.	Subsequent Employment with Competitor.

 

 

 

7.	No Solicitation of Employees.

 

 

8.	Arbitration of Claims.

 

   (a)           Claims Covered by this Agreement.  To the maximum extent permitted by law, the Company and Executive mutually consent to the resolution by arbitration of all claims or causes of action that the Company may have against Executive or that Executive may have against the Company or against its officers, directors, employees, or agents in the capacity as such or otherwise (collectively “claims”).  The claims covered by this Agreement include, but are not limited to, claims for breach of any contract or covenant (express or implied); tort claims; claims for discrimination (including, but not limited to, race, sex, sexual harassment, or any type of unlawful harassment, religion, national origin, age, marital status, medical condition, disability or sexual orientation); claims for wrongful termination in violation of public policy; and claims for violation of any federal, state, or other governmental law, statute, regulation or ordinance, including, but not limited to, all claims arising under Title VII of the Civil Rights Act of 1969, as amended, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act, the California Fair Employment & Housing Act, the California Labor Code, the Consolidated Omnibus Budget Reconciliation Act of 1985, the Fair Labor Standards Act or Employee Retirement Income Security Act.

 

   (b)           Claims Not Covered by the Agreement.  Claims Executive may have for workers’ compensation, unemployment compensation benefits or wage and hour claims within the jurisdiction of the California Labor Commissioner are not covered by this Agreement.  Notwithstanding the fact that Executive is not required to arbitrate such claims, he/she may, if he/she so chooses, submit wage and hour claims to binding arbitration pursuant to this Agreement.  Also not covered are claims by either party for injunctive and/or other equitable relief, as to which the parties understand and agree that either party may seek and obtain relief from a court of competent jurisdiction.

 

    (c)           Required Notice of All Claims.  The Company and Executive agree that the aggrieved party must give written notice of any claim to the other party.  Written notice to the Company, or its officers, employees or agents shall be sent to the Company’s Chief Executive Officer.  Executive will be given notice at the last address recorded in his/her personnel file or such other address as Executive may provide to the Company from time to time following the date of this Agreement by a writing specifying that it is the address for notice under this Agreement.  The written notice shall identify and describe the nature of all claims asserted and detail the facts upon which such claims are based.  The notice shall be sent to the other party by certified or registered mail, return receipt requested.

 

   (d)           Arbitration Procedures.  The Company and Executive agree that, except as provided in this Agreement, any arbitration shall be in accordance with and under the auspices and rules of the American Arbitration Association (hereinafter the “Arbitration Service”).  The arbitration shall take place in Santa Clara County, California, unless the parties mutually agree to conduct the arbitration in a different

 

 

location.  The arbitrator shall be selected by the mutual agreement of the parties.  If the parties cannot agree on a neutral arbitrator, Executive first, and then the Company, will alternately strike names from a list provided by the Arbitration Service until only one name remains.  The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable.  The arbitrator shall apply the applicable statue of limitations to any claim, taking into account compliance with subparagraph paragraph 8(c) of this Agreement.  The arbitrator shall issue a written opinion and award, which shall be signed and dated.  The arbitrator shall be permitted to award those remedies that are available under applicable law.  The arbitrator’s decision regarding the claims shall be final and binding upon the parties.  The arbitrator’s award shall be enforceable in any court having jurisdiction thereof.

 

   (e)           Acknowledgment of Jury Trail Waiver.  Executive understands that, by this Agreement, he/she is waiving his right to have a claim adjudicated by a court or jury.  Any party may be represented by an attorney or other representative selected by the party.

 

   (f)           Arbitration Fees and Costs; Attorneys’ Fees.  Executive will be required to pay an arbitration fee to initiate the arbitration equal to what he/she would be charged as a first appearance fee in court.  The Company shall advance the remaining fees and costs of the arbitrator.  However, to the extent permissible under the law, and following the arbitrator’s ruling on the matter, the arbitrator may rule that the arbitrator’s fees and costs be distributed in an alternative manner.  The arbitrator’s award in any arbitration brought pursuant to the provisions of this Agreement shall provide for the prevailing party to recover from the other party the prevailing party’s reasonable attorneys’ fees relating to such action.

   

   (g)           Requirements for Modification or Revocation.  This agreement to arbitrate shall survive the termination of Executive’s employment with the Company.  It can only be revoked or modified by a writing signed by the parties that specifically states an intent to revoke or modify this Agreement.

 

   (h)           Consideration.  Executive understands that the provisions for severance pay as set forth herein and his continued employment with the Company are consideration for his/her acceptance of these arbitration provisions.  In addition, the promises by the Company and by Executive to arbitrate claims, rather than litigate them before courts or other bodies, provide consideration for each other.

   

    (i)           Violation of this Agreement.  Should any party to this Agreement hereafter institute any legal action or administrative proceeding against the other with respect to any claim required to be arbitrated under this Agreement or pursue any arbitral dispute by any method other than arbitration, the responding party shall recover from the initiating party all damages, costs, expenses and attorneys’ fees incurred as a result of such action.

 

 

9.

Entire Agreement; Effect of Prior Agreements.

This is the complete agreement of the parties on the subjects set forth herein, including severance pay upon a Change in Control and arbitration of disputes.  This Agreement supersedes any prior or contemporaneous oral or written understanding on such subjects.  No party is relying on any representations, oral or written, on the subject of the effect, enforceability, or meaning of this Agreement, except as specifically set forth in this Agreement.  In the event of a conflict between any of the terms of this Agreement and any of the terms of (i) any of the agreements related to the Stock Awards, or (ii) that certain accepted original offer of employment between Executive and the Company dated May 2, 2008, the terms of this Agreement shall prevail.  Without limiting the generality of the foregoing, the arbitration provisions of the arbitration policy accompanying the original offer of employment shall be superseded by the arbitration provisions set forth in this Agreement.

 

 

10.	Amendment.
This Agreement may not be amended without the prior written consent of both Executive and the Company.

 

11.

No Right to Continued Employment.

This Agreement does not constitute a contract of employment, does not change the status of the Executive’s employment and does not change the Company’s policies regarding termination of employment.  Nothing in this Agreement shall be deemed to give Executive the right to be retained in the service of the Company or to deny the Company any right it may have to discharge or demote Executive at any time; provided, however, that any termination of employment of Executive, or any removal of Executive as an executive officer of the Company primarily in contemplation of a Change in Control shall not be effective to deny Executive the benefits of this Agreement, including without limitation Sections 1, 2 and 3 hereof.  No provision of this Agreement shall in any way limit, restrict or prohibit Executive’s right to terminate employment with the Company or leave his/her position as a senior executive.

 

12.	Severability.
If a court or other body of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, that provision will be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, or, if it is not possible to so adjust such provision, this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.  The invalidity and unenforceability of any particular provision of this Agreement shall not affect any other provision hereof, and all other provisions of the Agreement shall be valid and enforceable to the fullest extent possible.

 

14.	Governing Law.

This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard or reference to the rules of conflicts of law that would require the application of the laws of any other jurisdiction.

 

 

   IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, effective as of the date set forth in the first paragraph hereof.