EXHIBIT 10.47
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into by and between
▇▇▇▇ ▇▇▇▇▇▇ ("Employee") and USA Networks, Inc., a Delaware corporation (the
"Company"), and is effective October 12, 1999 (the "Effective Date").
WHEREAS, Employee and USA Networks, a New York general partnership and
an affiliate of the Company ("Networks"), are parties to an Employment
Agreement, dated July __, 1999 and effective September 13, 1999 (the "Existing
Employment Agreement").
WHEREAS, Employee and Networks desire to terminate the Existing
Employment Agreement, and the Company desires to establish its right to the
services of Employee, in the capacity described below, on the terms and
conditions hereinafter set forth, and Employee is willing to accept such
employment on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, Employee and the Company have agreed and do hereby agree as follows:
1. EMPLOYMENT. The Company agrees to employ Employee as Senior Vice President
and Chief Financial Officer of the Company, and Employee accepts and agrees to
such employment, effective as of the date on which the Board of Directors of the
Company or a Committee thereof approves such appointment. As Senior Vice
President and Chief Financial Officer of the Company, the Employee shall have
responsibility for the financial and administrative operations of the Company.
Notwithstanding the foregoing, during Employee's employment with the Company,
Employee shall do and perform all services and acts necessary or advisable to
fulfill the duties and responsibilities as are commensurate and consistent with
Employee's position and shall render such services on the terms set forth
herein. During Employee's employment with the Company, Employee shall report
directly to the Vice Chairman of the Company or such person(s) as from time to
time may be designated by the Company (hereinafter referred to as the "Reporting
Officer"). Employee shall have such powers and duties with respect to the
Company as may reasonably be assigned to Employee by the Reporting Officer, to
the extent consistent with Employee's position and status. Employee agrees to
devote all of Employee's working time, attention and efforts to the Company and
to perform the duties of Employee's position in accordance with the Company's
policies as in effect from time to time. Employee's principal place of
employment shall be the Company's offices located in New York, New York.
2. TERM OF AGREEMENT. The term ("Term") of this Agreement shall commence on
the Effective Date and shall continue for a period of two (2) years, unless
sooner terminated in accordance with the provisions of Section 1 of the Terms
and Conditions attached hereto.
3. COMPENSATION.
(a) BASE SALARY. During the Term, the Company shall pay Employee an annual
base salary of $400,000 (the "Base Salary"), payable in equal biweekly
installments or in accordance with the Company's payroll practice as in effect
from time to time. For all purposes under this Agreement, the term "Base Salary"
shall refer to Base Salary as in effect from time to time.
(b) DISCRETIONARY BONUS. During the Term, Employee shall be eligible to
receive discretionary annual bonuses.
(c) STOCK OPTION. In consideration of Employee's entering into this
Agreement and as an inducement to join the Company, Employee shall be granted
under USA Networks, Inc.'s 1997 Stock and Annual Incentive Plan (the "Plan") a
non-qualified stock option (the "Option") to purchase an additional 37,500
shares of the Company's common stock, par value $.0l per share (the "Common
Stock"), subject to the approval of the Compensation Committee of the Board of
Directors of the Company. The date of grant of the Option shall be the later of
(x) the Effective Date and (y) the date on which the grant is approved by such
Compensation Committee. The exercise price of the Option shall equal the last
reported sales price of the Common Stock in the over-the-counter market (or such
other market on which the Common Stock is then traded) on the date preceding the
date of grant. Such Option shall vest and become exercisable in four equal
installments on each of the first, second, third and fourth anniversaries of the
Effective Date, provided that the Option shall become 100% vested and
exercisable upon a Change in Control (as such term is defined in the Plan). The
Option shall expire upon the earlier to occur of (i) ten years from the date of
grant (the "Option Term") or (ii) except as otherwise provided in the Option
award agreement, 90 days following the termination of Employee's employment with
the Company for any reason. Other than acceleration of the Option following a
Change in Control, the Option shall not otherwise become vested and exercisable
as a result of the termination or non-renewal of this Agreement (or the
termination of Employee's employment with the Company) for any reason.
(d) BENEFITS. During the Term, Employee shall be entitled to participate
in any welfare, health and life insurance and pension benefit and incentive
programs as may be adopted from time to time by the Company on the same basis as
that provided to similarly situated employees of the Company. Without limiting
the generality of the foregoing, Employee shall be entitled to the following
benefits:
(i) REIMBURSEMENT FOR BUSINESS EXPENSES. During the Term, the Company
shall reimburse Employee for all reasonable and necessary expenses incurred by
Employee in performing Employee's duties for the Company, on the same basis as
similarly situated employees and in accordance with the Company's policies as in
effect from time to time.
(ii) RELOCATION EXPENSES. (A) Networks shall reimburse Employee for
all reasonable and necessary commission expenses incurred by Employee in
connection with the sale of his house in order to relocate to commence
employment with Networks, but in no event shall the amount reimbursed exceed 6%
of the sales price of such house.
2
(B) Networks shall reimburse Employee for all reasonable and
necessary moving expenses incurred by Employee in connection with his relocation
in accordance with Networks' policies as in effect from time to time.
(iii) VACATION. During the Term, Employee shall be entitled to such
number of weeks of paid vacation per year as are provided to similarly situated
employees of the Company in accordance with the plans, policies, programs and
practices of the Company.
(iv) MEDICAL EXPENSES. Networks shall reimburse Employee for any
amounts paid by Employee to obtain medical benefits under COBRA during the
period between termination of Employee's employment immediately prior to
commencing employment with Networks and the date on which Employee commences
coverage under the medical benefits plan of Networks or the Company, whichever
occurs first.
4. NOTICES. All notices and other communications under this Agreement shall be
in writing and shall be given by first-class mail, certified or registered with
return receipt requested or hand delivery acknowledged in writing by the
recipient personally, and shall be deemed to have been duly given three days
after mailing or immediately upon duly acknowledged hand delivery to the
respective persons named below:
If to the Company: USA Networks, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Employee: ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Either party may change such party's address for notices by notice duly given
pursuant hereto.
5. GOVERNING LAW; JURISDICTION. This Agreement and the legal relations thus
created between the parties hereto shall be governed by and construed under and
in accordance with the internal laws of the State of New York without reference
to the principles of conflicts of laws. Any and all disputes between the parties
which may arise pursuant to this Agreement will be heard and determined before
an appropriate federal court in New York, or, if not maintainable therein, then
in an appropriate New York state court. The parties acknowledge that such courts
have jurisdiction to interpret and enforce the provisions of this Agreement, and
the parties consent to, and waive any and all objections that they may have as
to, personal jurisdiction and/or venue in such courts.
6. COUNTERPARTS. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument. Employee expressly understands and
acknowledges that the Terms and Conditions attached hereto are incorporated
herein by reference, deemed a part of this Agreement
3
and are binding and enforceable provisions of this Agreement. References to
"this Agreement" or the use of the term "hereof" shall refer to this Agreement
and the Terms and Conditions attached hereto, taken as a whole.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and delivered by its duly authorized officer and Employee has executed
and delivered this Agreement on November 2, 1999.
USA NETWORKS, INC.
By:
---------------------------------
Name:
Title:
-----------------------
▇▇▇▇ ▇▇▇▇▇▇
4
TERMS AND CONDITIONS
1. TERMINATION OF EMPLOYEE'S EMPLOYMENT.
(a) DEATH. In the event Employee's employment hereunder is terminated by
reason of Employee's death, the Company shall pay Employee's designated
beneficiary or beneficiaries, within 30 days of Employee's death in a lump sum
in cash, Employee's Base Salary through the end of the month in which death
occurs and any Accrued Obligations (as defined in paragraph 1(f) below).
(b) DISABILITY. If, as a result of Employee's incapacity due to physical
or mental illness ("Disability"), Employee shall have been absent from the
full-time performance of Employee's duties with the Company for a period of four
consecutive months and, within 30 days after written notice is provided to
Employee by the Company (in accordance with Section 6 hereof), Employee shall
not have returned to the full-time performance of Employee's duties, Employee's
employment under this Agreement may be terminated by the Company for Disability.
During any period prior to such termination during which Employee is absent from
the full-time performance of Employee's duties with the Company due to
Disability, the Company shall continue to pay Employee's Base Salary at the rate
in effect at the commencement of such period of Disability, offset by any
amounts payable to Employee under any disability insurance plan or policy
provided by the Company. Upon termination of Employee's employment due to
Disability, the Company shall pay Employee within 30 days of such termination
(i) Employee's Base Salary through the end of the month in which termination
occurs in a lump sum in cash, offset by any amounts payable to Employee under
any disability insurance plan or policy provided by the Company; and (ii) any
Accrued Obligations (as defined in paragraph 1(f) below).
(c) TERMINATION FOR CAUSE. The Company may terminate Employee's employment
under this Agreement for Cause at any time prior to the expiration of the Term.
As used herein, "Cause" shall mean: (i) the plea of guilty or nolo contendere
to, or conviction for, the commission of a felony offense by Employee; PROVIDED,
HOWEVER, that after indictment, the Company may suspend Employee from the
rendition of services, but without limiting or modifying in any other way the
Company's obligations under this Agreement; (ii) a material breach by Employee
of a fiduciary duty owed to the Company; (iii) a material breach by Employee of
any of the covenants made by Employee in Section 2 hereof; or (iv) the willful
or gross neglect by Employee of the material duties required by this Agreement.
In the event of Employee's termination for Cause, this Agreement shall terminate
without further obligation by the Company, except for the payment of any Accrued
Obligations (as defined in paragraph 1(f) below).
(d) TERMINATION BY THE COMPANY OTHER THAN FOR DEATH, DISABILITY OR CAUSE.
If Employee's employment is terminated by the Company for any reason other than
Employee's death or Disability or for Cause, then (i) the Company shall pay
Employee the Base Salary through the end of the Term over the course of the then
remaining
Term; and (ii) the Company shall pay Employee within 30 days of the date of such
termination in a lump sum in cash any Accrued Obligations (as defined in
paragraph 1(f) below).
(e) MITIGATION; OFFSET. In the event of termination of Employee's
employment prior to the end of the Term, Employee shall use reasonable best
efforts to seek other employment and to take other reasonable actions to
mitigate the amounts payable under Section 1 hereof. If Employee obtains other
employment during the Term, the amount of any payment or benefit provided for
under Section 1 hereof which has been paid to Employee shall be refunded to the
Company by Employee in an amount equal to any compensation earned by Employee as
a result of employment with or services provided to another employer after the
date of Employee's termination of employment and prior to the otherwise
applicable expiration of the Term, and all future amounts payable by the Company
to Employee during the remainder of the Term shall be offset by the amount
earned by Employee from another employer. For purposes of this Section 1(e),
Employee shall have an obligation to inform the Company regarding Employee's
employment status following termination and during the period encompassing the
Term.
(f) ACCRUED OBLIGATIONS. As used in this Agreement, "Accrued Obligations"
shall mean the sum of (i) any portion of Employee's Base Salary through the date
of death or termination of employment for any reason, as the case may be, which
has not yet been paid; and (ii) any compensation previously earned but deferred
by Employee (together with any interest or earnings thereon) that has not yet
been paid.
2. CONFIDENTIAL INFORMATION; NON-SOLICITATION; AND PROPRIETARY RIGHTS.
(a) CONFIDENTIALITY. Employee acknowledges that while employed by the
Company Employee will occupy a position of trust and confidence. Employee shall
not, except as may be required to perform Employee's duties hereunder or as
required by applicable law, without limitation in time or until such information
shall have become public other than by Employee's unauthorized disclosure,
disclose to others or use, whether directly or indirectly, any Confidential
Information regarding the Company or any of its subsidiaries or affiliates.
"Confidential Information" shall mean information about the Company or any of
its subsidiaries or affiliates, and their clients and customers that is not
disclosed by the Company or any of its subsidiaries or affiliates for financial
reporting purposes and that was learned by Employee in the course of employment
by the Company or any of its subsidiaries or affiliates, including (without
limitation) any proprietary knowledge, trade secrets, data, formulae,
information and client and customer lists and all papers, resumes, and records
(including computer records) of the documents containing such Confidential
Information. Employee acknowledges that such Confidential Information is
specialized, unique in nature and of great value to the Company and its
subsidiaries or affiliates, and that such information gives the Company and its
subsidiaries or affiliates a competitive advantage. Employee agrees to deliver
or return to the Company, at the Company's request at any time or upon
termination or expiration of Employee's employment or as soon thereafter as
possible, all documents, computer tapes and disks, records, lists, data,
drawings, prints, notes and written information (and all copies thereof)
furnished by the Company and its subsidiaries or affiliates or prepared by
Employee in the course of Employee's employment by the Company and its
subsidiaries or affiliates. As used in this Agreement,
2
"subsidiaries" and "affiliates" shall mean any company controlled by,
controlling or under common control with the Company.
(b) NON-SOLICITATION OF EMPLOYEES. Employee recognizes that he will
possess confidential information about other employees of the Company and its
subsidiaries or affiliates relating to their education, experience, skills,
abilities, compensation and benefits, and inter-personal relationships with
suppliers to and customers of the Company and its subsidiaries or affiliates.
Employee recognizes that the information he will possess about these other
employees is not generally known, is of substantial value to the Company and its
subsidiaries or affiliates in developing their respective businesses and in
securing and retaining customers, and will be acquired by Employee because of
Employee's business position with the Company. Employee agrees that, during the
Term (and for a period of 12 months beyond the expiration of the Term), Employee
will not, directly or indirectly, solicit or recruit any employee of the Company
or any of its subsidiaries or affiliates for the purpose of being employed by
Employee or by any business, individual, partnership, firm, corporation or other
entity on whose behalf Employee is acting as an agent, representative or
employee and that Employee will not convey any such confidential information or
trade secrets about other employees of the Company or any of its subsidiaries or
affiliates to any other person except within the scope of Employee's duties
hereunder.
(c) PROPRIETARY RIGHTS; ASSIGNMENT. All Employee Developments shall be
made for hire by the Employee for the Company or any of its subsidiaries or
affiliates. "Employee Developments" means any idea, discovery, invention,
design, method, technique, improvement, enhancement, development, computer
program, machine, algorithm or other work or authorship that (i) relates to the
business or operations of the Company or any of its subsidiaries or affiliates,
or (ii) results from or is suggested by any undertaking assigned to the Employee
or work performed by the Employee for or on behalf of the Company or any of its
subsidiaries or affiliates, whether created alone or with others, during or
after working hours. All Confidential Information and all Employee Developments
shall remain the sole property of the Company or any of its subsidiaries or
affiliates. The Employee shall acquire no proprietary interest in any
Confidential Information or Employee Developments developed or acquired during
the Term. To the extent the Employee may, by operation of law or otherwise,
acquire any right, title or interest in or to any Confidential Information or
Employee Development, the Employee hereby assigns to the Company all such
proprietary rights. The Employee shall, both during and after the Term, upon the
Company's request, promptly execute and deliver to the Company all such
assignments, certificates and instruments, and shall promptly perform such other
acts, as the Company may from time to time in its discretion deem necessary or
desirable to evidence, establish, maintain, perfect, enforce or defend the
Company's rights in Confidential Information and Employee Developments.
(d) COMPLIANCE WITH POLICIES AND PROCEDURES. During the Term, Employee
shall adhere to the policies and standards of professionalism set forth in the
Company's Policies and Procedures as they may exist from time to time.
(e) REMEDIES FOR BREACH. Employee expressly agrees and understands that
the remedy at law for any breach by Employee of this Section 2 will be
inadequate and that damages
3
flowing from such breach are not usually susceptible to being measured in
monetary terms. Accordingly, it is acknowledged that upon Employee's violation
of any provision of this Section 2 the Company shall be entitled to obtain from
any court of competent jurisdiction immediate injunctive relief and obtain a
temporary order restraining any threatened or further breach as well as an
equitable accounting of all profits or benefits arising out of such violation.
Nothing in this Section 2 shall be deemed to limit the Company's remedies at law
or in equity for any breach by Employee of any of the provisions of this Section
2, which may be pursued by or available to the Company.
(f) SURVIVAL OF PROVISIONS. The obligations contained in this Section 2
shall, to the extent provided in this Section 2, survive the termination or
expiration of Employee's employment with the Company and, as applicable, shall
be fully enforceable thereafter in accordance with the terms of this Agreement.
If it is determined by a court of competent jurisdiction in any state that any
restriction in this Section 2 is excessive in duration or scope or is
unreasonable or unenforceable under the laws of that state, it is the intention
of the parties that such restriction may be modified or amended by the court to
render it enforceable to the maximum extent permitted by the law of that state.
3. TERMINATION OF PRIOR AGREEMENTS. This Agreement constitutes the entire
agreement between the parties and terminates and supersedes any and all prior
agreements and understandings (whether written or oral) between the parties with
respect to the subject matter of this Agreement, including, without limitation,
the Existing Employment Agreement. Employee acknowledges and agrees that neither
the Company nor anyone acting on its behalf has made, and is not making, and in
executing this Agreement, the Employee has not relied upon, any representations,
promises or inducements except to the extent the same is expressly set forth in
this Agreement. Employee hereby represents and warrants that by entering into
this Agreement, Employee will not rescind or otherwise breach an employment
agreement with Employee's current employer prior to the natural expiration date
of such agreement
4. ASSIGNMENT; SUCCESSORS. This Agreement is personal in its nature and none
of the parties hereto shall, without the consent of the others, assign or
transfer this Agreement or any rights or obligations hereunder, provided that,
in the event of the merger, consolidation, transfer, or sale of all or
substantially all of the assets of the Company with or to any other individual
or entity, this Agreement shall, subject to the provisions hereof, be binding
upon and inure to the benefit of such successor and such successor shall
discharge and perform all the promises, covenants, duties, and obligations of
the Company hereunder, and all references herein to the "Company" shall refer to
such successor.
5. WITHHOLDING. The Company shall make such deductions and withhold such
amounts from each payment and benefit made or provided to Employee hereunder, as
may be required from time to time by applicable law, governmental regulation or
order.
6. HEADING REFERENCES. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose. References to "this Agreement" or the use of
the term "hereof" shall refer to these Terms and Conditions and the Employment
Agreement attached hereto, taken as a whole.
4
7. WAIVER; MODIFICATION. Failure to insist upon strict compliance with any of
the terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance with, any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times. This Agreement shall not be modified in any
respect except by a writing executed by each party hereto. Notwithstanding
anything to the contrary herein, neither the assignment of Employee to a
different Reporting Officer due to a reorganization or an internal restructuring
of the Company or its affiliated companies nor a change in the title of the
Reporting Officer shall constitute a modification or a breach of this Agreement.
8. SEVERABILITY. In the event that a court of competent jurisdiction
determines that any portion of this Agreement is in violation of any law or
public policy, only the portions of this Agreement that violate such law or
public policy shall be stricken. All portions of this Agreement that do not
violate any statute or public policy shall continue in full force and effect.
Further, any court order striking any portion of this Agreement shall modify the
stricken terms as narrowly as possible to give as much effect as possible to the
intentions of the parties under this Agreement.
9. INDEMNIFICATION. The Company shall indemnify and hold Employee harmless for
acts and omissions in Employee's capacity as an officer, director or employee of
the Company to the maximum extent permitted under applicable law; PROVIDED,
HOWEVER, that neither the Company, nor any of its subsidiaries or affiliates
shall indemnify Employee for any losses incurred by Employee as a result of acts
described in Section 1(c) of this Agreement.
ACKNOWLEDGED AND AGREED:
Date: November 2, 1999
USA NETWORKS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
Senior Vice President, General Counsel
and Secretary
/s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇▇
5
