EXHIBIT 10.21
CONFIDENTIALITY, NON COMPETITION AND OWNERSHIP
OF WORK PRODUCT AGREEMENT
Effective December 17, 2003, and as part of the Employment Agreement
("Employment Agreement") made December 18, 2003, between Time Warner Inc. (the
"Company") and Xxxxxxx X. Xxxxxxx ("You") and as a condition to your continued
employment by the Company, you hereby agree as follows:
1. Protection of Confidential Information. You
acknowledge that your employment by the Company (which, for purposes of this
Agreement shall mean Time Warner Inc. and its affiliates) will, throughout the
term of employment, bring you into close contact with many confidential affairs
of the Company, including information about costs, profits, markets, sales,
products, key personnel, pricing policies, operational methods, technical
processes and other business affairs and methods and other information not
readily available to the public, and plans for future development. You further
acknowledge that the services to be performed under this Agreement are of a
special, unique, unusual, extraordinary and intellectual character. You further
acknowledge that the business of the Company is international in scope, that its
products and services are marketed throughout the world, that the Company
competes in nearly all of its business activities with other entities that are
or could be located in nearly any part of the world and that the nature of your
services, position and expertise are such that you are capable of competing with
the Company from nearly any location in the world. In recognition of the
foregoing, you covenant and agree:
a. You shall keep secret all confidential
matters of the Company and shall not disclose such matters to anyone
outside of the Company, or to anyone inside the Company who does not
have a need to know or use such information, and shall not use such
information for personal benefit or the benefit of a third party,
either during or after the term of employment, except with the
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Company's written consent, provided that (i) you shall have no such
obligation to the extent such matters are or become publicly known
other than as a result of your breach of your obligations hereunder and
(ii) you may, after giving prior notice to the Company to the extent
practicable under the circumstances, disclose such matters to the
extent required by applicable laws or governmental regulations or
judicial or regulatory process;
b. You shall deliver promptly to the Company on
termination of your employment, or at any other time the Company may so
request, all memoranda, notes, records, reports and other documents
(and all copies thereof) relating to the Company's business, which you
obtained while employed by, or otherwise serving or acting on behalf
of, the Company and which you may then possess or have under your
control; and
c. If the term of employment is terminated, for
a period of one year after such termination, without the prior written
consent of the Company, you shall not employ, and shall not cause any
entity of which you are an affiliate to employ, any person who was a
full-time employee of the Company at the date of such termination or
within six months prior thereto but such prohibition shall not apply to
your secretary or executive assistant or to any other employee eligible
to receive overtime pay.
2. Non-Compete. During the term of employment and
through the later of (i) the Severance Term Date set forth in your Employment
Agreement; and (ii) twelve months after the effective date of any termination of
your employment, you shall not, directly or indirectly, without the prior
written consent of the Company's Board of Directors, render any services to, or
act in any capacity for, any Competitive Entity, or acquire any interest of any
type in any Competitive Entity; provided, however, that the foregoing shall not
be deemed to prohibit you from acquiring, (a) solely as an investment and
through market purchases, securities of any Competitive Entity which are
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934
and which are
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publicly traded, so long as you are not part of any control group of such
Competitive Entity and such securities, including converted securities, do not
constitute more than one percent (1%) of the outstanding voting power of that
entity and (b) securities of any Competitive Entity that are not publicly
traded, so long as you are not part of any control group of such Competitive
Entity and such securities, including converted securities, do not constitute
more than three percent (3%) of the outstanding voting power of that entity. For
purposes of the foregoing, the following shall be deemed to be a Competitive
Entity: (x) during the period that you are actively employed with the Company,
any person or entity that engages in any line of business that is substantially
the same as either (i) any line of business which the Company engages in,
conducts or, to your knowledge, has definitive plans to engage in or conduct or
(ii) any operating business that is engaged in or conducted by the Company as to
which, to your knowledge, the Company covenants, in writing, not to compete with
in connection with the disposition of such business, and (y) during the period
following a termination of your term of employment pursuant to Section 4, any of
the following: AT&T Corporation, Bertelsmann A.G., Comcast Corporation, The Xxxx
Disney Company, EarthLink, Inc., General Electric Corporation, Microsoft
Corporation, The News Corporation, Sony Corporation, Vivendi Universal, S.A.,
Viacom Inc. and Yahoo! Inc., and their respective subsidiaries and affiliates
and any successor to the internet service provider, media or entertainment
businesses thereof.
3. Ownership of Work Product. You acknowledge that
during the term of employment, you may conceive of, discover, invent or create
inventions, improvements, new contributions, literary property, material, ideas
and discoveries, whether patentable or copyrightable or not (all of the
foregoing being collectively referred to herein as "Work Product"), and that
various business opportunities shall be presented to you by reason of your
employment by the Company. You acknowledge that all of the foregoing shall be
owned by and belong exclusively to the Company and that you shall have no
personal interest therein, provided that they are either related in any manner
to the business (commercial or experimental) of the Company, or are, in the case
of Work Product, conceived or made on the Company's time or with the use of the
Company's
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facilities or materials, or, in the case of business opportunities, are
presented to you for the possible interest or participation of the Company. You
shall (i) promptly disclose any such Work Product and business opportunities to
the Company; (ii) assign to the Company, upon request and without additional
compensation, the entire rights to such Work Product and business opportunities;
(iii) sign all papers necessary to carry out the foregoing; and (iv) give
testimony in support of your inventorship or creation in any appropriate case.
You agree that you will not assert any rights to any Work Product or business
opportunity as having been made or acquired by you prior to the date of this
Agreement except for Work Product or business opportunities, if any, disclosed
to and acknowledged by the Company in writing prior to the date hereof.
4. No Conflict. You represent and warrant to the Company
that this Agreement, together with the accompanying Employment Agreement, is
legal, valid and binding upon you and the execution of this Agreement and the
Employment Agreement the performance of your obligations thereunder will not
constitute a breach of, or conflict with the terms or provisions of, any
agreement or understanding to which you are a party (including, without
limitation, any other employment agreement).
5. Specific Remedy. You acknowledge and agree that a
breach of any of the promises or agreements contained in this Agreement will
result in irreparable and continuing damage to the Company for which there will
be no adequate remedy at law. Accordingly, in addition to such other rights and
remedies as the Company may have at equity or in law with respect to any breach
of this Agreement (including monetary damages if appropriate), if you commit a
material breach of any of the provisions of this Agreement, the Company shall
have the right and remedy to have such provisions specifically enforced by any
court having equity jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to the Company.
6. Resolution of Disputes. Except as provided in the
preceding Section 5, any dispute or controversy arising with respect to this
Agreement, the Employment Agreement and/or your employment thereunder (whether
based on contract or tort or
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upon any federal, state or local statute, including but not limited to claims
asserted under the Age Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964, as amended, any state Fair Employment Practices Act and/or
the Americans with Disability Act) shall, at the election of either you or the
Company, be submitted to JAMS/ENDISPUTE for resolution in arbitration in
accordance with the rules and procedures of JAMS/ENDISPUTE. Either party shall
make such election by delivering written notice thereof to the other party at
any time (but not later than 45 days after such party receives notice of the
commencement of any administrative or regulatory proceeding or the filing of any
lawsuit relating to any such dispute or controversy) and thereupon any such
dispute or controversy shall be resolved only in accordance with the provisions
of this Section 6. Any such proceedings shall take place in New York City before
a single arbitrator (rather than a panel of arbitrators), pursuant to any
streamlined or expedited (rather than a comprehensive) arbitration process,
before a non-judicial (rather than a judicial) arbitrator, and in accordance
with an arbitration process which, in the judgment of such arbitrator, shall
have the effect of reasonably limiting or reducing the cost of such arbitration.
The resolution of any such dispute or controversy by the arbitrator appointed in
accordance with the procedures of JAMS/ENDISPUTE shall be final and binding.
Judgment upon the award rendered by such arbitrator may be entered in any court
having jurisdiction thereof, and the parties consent to the jurisdiction of the
New York courts for this purpose. The prevailing party shall be entitled to
recover the costs of arbitration (including reasonable attorneys fees and the
fees of experts) from the losing party. If at the time any dispute or
controversy arises with respect to this Agreement, JAMS/ENDISPUTE is not in
business or is no longer providing arbitration services, then the American
Arbitration Association shall be substituted for JAMS/ENDISPUTE for the purposes
of the foregoing provisions of this Section 6. If you shall be the prevailing
party in such arbitration, the Company shall promptly pay, upon your demand, all
legal fees, court costs and other costs and expenses incurred by you in any
legal action seeking to enforce the award in any court.
7. Amendments; Waivers. This Agreement and the
Employment Agreement may be amended, modified, superseded, cancelled, renewed or
extended and
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the terms or covenants hereof may be waived only by written instrument executed
by both of the parties hereto, or in the case of a waiver, by the party waiving
compliance. The failure of either party at any time or times to require
performance of any provision of the Agreement or the Employment Agreement shall
in no manner affect such party's right at a later time to enforce the same. No
waiver by either party of the breach of any term or covenant contained in this
Agreement or the Employment Agreement, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any such
breach, or a waiver of the breach of any other term or covenant contained in
this Agreement.
8. Attorney's Fees. In the event any action is taken to
enforce this Agreement or the terms of the Employment Agreement, the prevailing
party shall be entitled to its reasonable attorneys' fees and court costs.
9. Assignability. This Agreement and the Employment
Agreement and your rights and obligations hereunder may not be assigned by you
and except as specifically contemplated in this Agreement, neither you, your
legal representative nor any beneficiary designated by you shall have any right,
without the prior written consent of the Company, to assign, transfer, pledge,
hypothecate, anticipate or commute to any person or entity any payment due in
the future pursuant to any provision of this Agreement, and any attempt to do so
shall be void and shall not be recognized by the Company. The Company may assign
this Agreement at any time without your consent and the Agreement shall be
binding upon all successors and assigns of the Company and upon your heirs,
executors and administrators.
10. Survival. The provisions of this Agreement shall
survive any termination of your employment by the Company.
11. Severability. If any provision of this Agreement or
the Employment Agreement shall be held invalid, the remainder of this Agreement
shall not be affected thereby; provided, however, that the parties shall
negotiate in good faith with respect to equitable modification of the provision
or application thereof held to be
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invalid. To the extent that it may effectively do so under applicable law, each
party hereby waives any provision of law which renders any provision of this
Agreement invalid, illegal or unenforceable in any respect.
12. All notices, requests, consents and other
communications required or permitted to be given under this Agreement or under
the Employment Agreement shall be effective only if given in writing and shall
be deemed to have been duly given if delivered personally or sent by a
nationally recognized overnight delivery service, or mailed first-class, postage
prepaid, by registered or certified mail, as follows (or to such other or
additional address as either party shall designate by notice in writing to the
other in accordance herewith):
If to the Company:
Time Warner Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - Global
Compensation and Benefits
(with a copy, similarly addressed
but Attention: General Counsel)
If to you, to your residence address set forth on the
records of the Company.
13. Governing Law. This Agreement and the Employment
Agreement shall be governed by and construed and enforced in accordance with the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely in New York.
14. Entire Agreement. This Agreement, together with the
Employment Agreement, sets forth the entire agreement and understanding of the
parties relating to the subject matter of this Agreement and supersedes all
prior agreements, arrangements and understandings, written or oral, between the
parties.
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TIME WARNER INC.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Executive Vice President and
Chief Financial Officer
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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