Severance Agreement - THQ Inc.
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (this "Agreement") is entered into as of
the ___ day of _________, ______, by and between THQ INC., a Delaware
corporation (the "Company"), and _______________________ (the "Executive").
W I T N E S S E T H
WHEREAS, the Executive currently serves as a key employee of the
Company and The Executive's services and knowledge are valuable to the Company
in connection with the management of one or more of the Company's principal
operating functions, departments, divisions or subsidiaries; and
WHEREAS, the Board has determined that it is in the best
interests of the Company and its stockholders to secure the Executive's
continued services and to ensure the Executive's continued dedication and
objectivity in the event of any threat or occurrence of, or negotiation or other
action that could lead to, or create the possibility of, a Change in Control of
the Company, without concern as to whether the Executive might be hindered or
distracted by personal uncertainties and risks created by any such possible
Change in Control; and
WHEREAS, and to encourage the Executive's full attention and
dedication to the Company, the Board has authorized the Company to enter into
this Agreement.
NOW, THEREFORE, the Company and the Executive hereby agree as
follows:
1. Definitions. The terms defined in Annex I hereto shall have
the respective meanings set forth therein.
2. Obligations of the Executive. The Executive agrees that in the
event any Person attempts a Change in Control, The Executive shall not
voluntarily leave the employ of the Company without Good Reason until the
earlier of (a) such attempted Change in Control terminates, or (b) if a Change
in Control shall occur, 90 days following such Change in Control. For purposes
of the foregoing clause (a), Good Reason shall be determined as if a Change in
Control had occurred when such attempted Change in Control became known to the
Board.
3. Payments Upon Termination of Employment.
3.1 If during the Termination Period the employment of the
Executive shall terminate other than by reason of a Nonqualifying Termination,
the Company shall pay to the Executive (or to the Executive's beneficiary or
estate), as compensation for services rendered to the Company:
3.1.1 Within 30 days following the Date of Termination, a
cash amount equal to the sum of (i) the Executive's annual base salary
from the Company and its affiliated companies through the Date of
Termination, to the extent not theretofore paid, and (iii) any
compensation previously deferred by the Executive (together with any
interest and earnings thereon) and any accrued vacation pay, in each
case to the extent not theretofore paid; plus
3.1.2 A cash amount equal to (i) one times the Executive's
annual base salary from the Company and its affiliated companies in
effect at the time the Change of Control occurs,
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plus (ii) one times the Executive's annual bonus paid or payable,
including by reason of any deferral, to the Executive by the Company and
its affiliated companies in respect of the fiscal year of the Company
immediately preceding the fiscal year in which the Change in Control
occurs. Such aggregate amount shall be payable, at the election of the
Executive (or the Executive's beneficiary or estate) either in a lump
sum (subject to any applicable payroll or other taxes required to be
withheld pursuant to Section 5 hereof) within 30 days following the date
of Termination or in 12 equal monthly installments commencing 30 days
following the date of Termination. The amounts payable pursuant to this
Section 3.1.2, together with any amounts or benefits otherwise payable
pursuant to this Agreement, shall be paid in lieu of any other amount of
severance relating to salary or bonus continuation to be received by the
Executive upon termination of employment of the Executive under any
severance plan, policy or arrangement of the Company.
3.2 If during the Termination Period the employment of the
Executive shall terminate other than by reason of a Nonqualifying Termination,
the Executive shall also be entitled to the following:
3.2.1 If on the Date of Termination the Executive shall
not be fully vested in the employer contributions made on his behalf
under the Plan, the Company shall pay to the Executive within 30 days
following the Date of Termination a lump sum cash amount equal to the
value of the unvested portion of such employer contributions; provided,
however, that if any payment pursuant to this Section 3.2.1 may or would
result in such payment being deemed a transaction which is subject to
Section 16(b) of the Securities Exchange Act, the Company shall make
such payment so as to meet the conditions for an exemption from such
Section 16(b) as set forth in the rules (and interpretive and no-action
letters relating thereto) under Section 16. The value of any such
unvested employer contributions shall be determined as of the Date of
Termination; provided that if the common stock of the Company is traded
on NASDAQ or any stock exchange on the Date of Termination, the value of
a share of common stock of the Company shall be the closing price on
NASDAQ or such stock exchange on the Date of Termination or, if such
date is not a trading day, on the immediately preceding trading day.
3.2.2 For a period of 12 months commencing on the Date of
Termination, the Company shall continue to keep in full force and effect
all policies of medical, accident, disability and life insurance with
respect to the Executive and his dependents with the same level of
coverage, upon the same terms and otherwise to the same extent as such
policies shall have been in effect immediately prior to the Date of
Termination or, if more favorable to the Executive, as provided
generally with respect to other peer executives of the Company and its
affiliated companies, and the Company and the Executive shall share the
costs of the continuation of such insurance coverage in the same
proportion as such costs were shared immediately prior to the Date of
Termination.
3.2.3 If on the Date of Termination the Executive shall
not be fully vested with respect to any stock options previously granted
to the Executive, on the Date of Termination all such stock options
shall become immediately vested and exercisable (notwithstanding any
provision of the Company's stock option plans to the contrary). Such
options shall be exercisable for such period following the Date of
Termination as is provided in the plan and/or agreement pursuant to
which such options were granted.
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3.3 If during the Termination Period the employment of the
Executive shall terminate by reason of a Nonqualifying Termination, then the
Company shall pay to the Executive within 30 days following the Date of
Termination, a cash amount equal to the sum of (i) the Executive's full annual
base salary from the Company and its affiliated companies through the Date of
Termination, to the extent not theretofore paid, and (ii) any compensation
previously deferred by the Executive (together with any interest and earnings
thereon) and any accrued vacation pay, in each case to the extent not
theretofore paid.
4. Limitation on Payments by the Company. Solely for the purposes
of the computation of benefits under this Agreement and notwithstanding any
other provisions hereof, payments to the Executive under this Agreement shall be
reduced (but not below zero) so that the present value, as determined in
accordance with Section 280G(d)(4) of the Code, of such payments plus any other
payments that must be taken into account for purposes of any computation
relating to the Executive under Section 280G(b)(2)(A)(ii) of the Code, shall
not, in the aggregate, exceed 2.99 times the Executive's "base amount," as such
term is defined in Section 280G(b)(3) of the Code. Notwithstanding any other
provision hereof, no reduction in payments under the limitation contained in the
immediately preceding sentence shall be applied to payments hereunder which do
not constitute "excess parachute payments" within the meaning of the Code. Any
payments in excess of the limitation of this Section 4 or otherwise determined
to be "excess parachute payments" made to the Executive hereunder shall be
deemed to be overpayments which shall constitute an amount owing from the
Executive to the Company with interest from the date of receipt by the Executive
to the date of repayment (or offset) at the applicable federal rate under
Section 1274(d) of the Code, compounded semi-annually, which shall be payable to
the Company upon demand.
5. Withholding Taxes. The Company may withhold from all payments
due to the Executive (or his beneficiary or estate) hereunder all taxes which,
by applicable federal, state, local or other law, the Company is required to
withhold therefrom.
6. Reimbursement of Expenses. If any contest or dispute shall
arise under this Agreement involving termination of the Executive's employment
with the Company or involving the failure or refusal of the Company to perform
fully in accordance with the terms hereof, the Company shall reimburse the
Executive, on a current basis, for all legal fees and expenses, if any, incurred
by the Executive in connection with such contest or dispute, together with
interest in an amount equal to the prime or reference rate of the Company's
principal bank from time to time in effect, but in no event higher than the
maximum legal rate permissible under applicable law, such interest to accrue
from the date the Company receives the Executive's statement for such fees and
expenses through the date of payment thereof; provided, however, that in the
event the resolution of any such contest or dispute includes a finding denying,
in total, the Executive's claims in such contest or dispute, (i) the Company
shall be entitled to deduct and withhold from any funds payable by the Company
to the Executive the amount advanced to the Executive pursuant to this Section
6, and (ii) to the extent not reimbursed to the Company in such manner, the
Executive shall be required to reimburse the Company, in twelve equal monthly
installments commencing 30 days after such resolution, such amount.
7. Operative Event. Notwithstanding any provision herein to the
contrary, no amounts shall be payable hereunder unless and until there is a
Change in Control at a time when the Executive is employed by the Company.
8. Termination of Agreement.
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8.1 This Agreement shall be effective on the date hereof and
shall continue until terminated by the Company as provided in Section 8.2
hereof; provided, however, that this Agreement shall terminate in any event upon
the first to occur of (i) the Executive's death, and (ii) termination of the
Executive's employment with the Company prior to a Change in Control.
8.2 The Company shall have the right prior to a Change in
Control, in its sole discretion, pursuant to action by the Board, to approve and
cause the termination of this Agreement on such date as is fixed by the Board
for such termination, which date shall be at least 90 days after notice thereof
is given by the Company to the Executive in accordance with Section 11 hereof;
provided, however, that no such action shall be taken by the Board during any
period of time when the Board has knowledge that any Person has taken steps
reasonably calculated to effect a Change in Control until, in the opinion of the
Board, such Person has abandoned or terminated its efforts to effect a Change in
Control; and provided further, that in no event shall this Agreement be
terminated in the event of a Change in Control.
9. Scope of Agreement. Nothing in this Agreement shall be deemed
to entitle the Executive to continued employment with the Company or its
subsidiaries, and if the Executive's employment with the Company shall terminate
prior to a Change in Control, the Executive shall have no further rights under
this Agreement; provided, however, that any termination of the Executive's
employment following a Change in Control shall be subject to all of the
provisions of this Agreement.
10. Successors; Binding Agreement.
10.1 This Agreement shall not be terminated by any Reorganization
of the Company irrespective of whether the Company is or is not the surviving or
resulting corporation or as a result of any transfer of all or substantially all
of the assets of the Company. In the event of any such Reorganization or
transfer of assets, the provisions of this Agreement shall be binding upon the
surviving or resulting corporation or the Person to which such assets are
transferred.
10.2 The Company agrees that concurrently with any Reorganization
or transfer of assets referred to in Section 10.1 in which either the Company is
not the surviving Person or the surviving Person or successor or transferee is
not deemed to assume this Agreement by operation of law, the Company will cause
the surviving Person, successor or transferee unconditionally to assume, by
written instrument delivered to the Executive (or his beneficiary or estate),
all of the obligations of the Company hereunder. Failure of the Company to
obtain such assumption prior to the effectiveness of any such Reorganization or
transfer of assets shall be a breach of this Agreement and shall entitle the
Executive to compensation and other benefits from the Company in the same amount
and on the same terms as the Executive would be entitled hereunder if the
Executive's employment were terminated following a Change in Control other than
by reason of a Nonqualifying Termination. For purposes of implementing the
foregoing, the date on which any such Reorganization or transfer becomes
effective shall be deemed the Date of Termination.
10.3 This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive shall die while any amounts would be payable to the Executive
hereunder had the Executive continued to live, then, unless otherwise provided
herein, all such amounts, shall be paid in accordance with the terms of this
Agreement to such Persons appointed in writing by the Executive to receive such
amounts or, if no Person is so appointed, to the Executive's estate.
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11. Notices.
11.1 For purposes of this Agreement, all notices and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered or five days after deposit in the
United States mail, certified and return receipt requested, postage prepaid,
addressed (i) if to the Executive, to the residence address of the Executive
maintained from time to time by the Company; and if to the Company, to its chief
executive office, attention Chief Executive Officer, with a copy to the
Secretary of the Company; (ii) to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
11.2 A written notice of the Executive's Date of Termination by
the Company or the Executive, as the case may be, to the other, shall (i)
indicate the specific termination provision in this Agreement relied upon, (ii)
to the extent applicable, set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and (iii) specify the termination
date (which date shall be not less than 15 days after the giving of such
notice). The failure by the Executive or the Company to set forth in such notice
any fact or circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of the Executive or the Company hereunder or preclude
the Executive or the Company from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
12. Full Settlement; No Mitigation; Resolution of Disputes.
12.1 The Company's obligation to make any payments provided for
in this Agreement and otherwise to perform its obligations hereunder shall not
be affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action which the Company may have against the Executive or other
Persons. In no event shall the Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement and, such amounts shall
not be reduced whether or not the Executive obtains other employment.
12.2 If there shall be any dispute between the Company and the
Executive in the event of any termination of the Executive's employment, then,
unless and until there is a final, nonappealable judgment by a court of
competent jurisdiction declaring that such termination was for Cause, that the
determination by the Executive of the existence of Good Reason was not made in
good faith, or that the Company is not otherwise obligated to pay any amount or
provide any benefit to the Executive and his dependents or other beneficiaries,
as the case may be, under Sections 3.1 or 3.2 hereof, the Company shall pay all
amounts, and provide all benefits, to the Executive and his dependents or other
beneficiaries, as the case may be, that the Company would be required to pay or
provide pursuant to Sections 3.1 and 3.2 hereof as though such termination were
by the Company without Cause or by the Executive with Good Reason; provided,
however, that the Company shall not be required to pay any disputed amounts
pursuant to this section except upon receipt of an undertaking by or on behalf
of the Executive to repay all such amounts to which the Executive is ultimately
adjudged by such court not to be entitled.
13. Employment with Subsidiaries. Employment with the Company for
purposes of this Agreement shall include employment with any corporation or
other entity in which the Company has a direct or indirect ownership interest of
50% or more of the total combined voting power of the then
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outstanding securities of such corporation or other entity entitled to vote
generally in the election of directors.
14. Governing Law; Validity. The interpretation, construction and
performance of this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware without regard to the
principle of conflicts of laws. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which other provisions shall remain in
full force and effect.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
16. Miscellaneous. No provision of this Agreement may be modified
or waived unless such modification or waiver is agreed to in writing and signed
by the Executive and by a duly authorized officer of the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. Failure by the
Executive or the Company to insist upon strict compliance with any provision of
this Agreement or to assert any right the Executive or the Company may have
hereunder, including, without limitation, the right of the Executive to
terminate employment for Good Reason, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement. The rights
of, and benefits payable to, the Executive, his estate or his beneficiaries
pursuant to this Agreement are in addition to any rights of, or benefits payable
to, the Executive, his estate or his beneficiaries under any other employee
benefit plan or compensation program of the Company.
IN WITNESS WHEREOF, the Company and the Executive have executed
this Agreement as of the day and year first above written.
THQ INC.
By: /s/ BRIAN J. FARRELL
----------------------------------
Brian J. Farrell, Chief Executive
Officer
EXECUTIVE:
________________________________________
Name: _________________________________
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ANNEX A
CERTAIN DEFINED TERMS
1. "Board" means the Board of Directors of the Company.
2. "Cause means (i) a material breach by the Executive of those
duties and responsibilities of the Executive which do not differ in any material
respect from the duties and responsibilities of the Executive during the 90-day
period immediately prior to a Change in Control (other than as a result of
incapacity due to physical or mental illness), which breach is (a) demonstrably
willful and deliberate on the Executive's part, (b) is committed in bad faith or
without reasonable belief that such breach is in the best interests of the
Company, and (c) is not remedied in a reasonable period of time after receipt of
written notice from the Company specifying such breach; or (ii) the commission
by the Executive of a felony involving moral turpitude.
3. "Change in Control" means the occurrence of either of the
following:
3.1 The acquisition by any Person of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of
either (i) the Outstanding Company Common Stock, or (ii) the combined voting
power of the Outstanding Company Voting Securities; provided, however, that the
following acquisitions shall not constitute a Change in Control:
3.1.1 any acquisition of voting securities of the Company
directly from the Company (including any acquisition resulting from the
exercise of a conversion or exchange privilege in respect of outstanding
convertible or exchangeable securities), unless such acquisition in
connection with a Reorganization;
3.1.2 any acquisition by the Company of voting securities
of the Company; or
3.1.3 any acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation
controlled by the Company;
provided further that, for purposes of Section 3.1.2 of this Annex, if
any Person (other than the Company or any employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation
controlled by the Company) shall become the beneficial owner of 30% or
more of the Outstanding Company Common Stock or 30% or more of the
Outstanding Company Voting Securities by reason of an acquisition by the
Company of another entity, and such Person shall, after such acquisition
by the Company, become the beneficial owner of any additional shares of
the Outstanding Company Common Stock or any additional Outstanding
Company Voting Securities and such beneficial ownership is publicly
announced, such additional beneficial ownership shall constitute a
Change in Control.
3.2 The individuals who, at any time, constitute the Incumbent
Board cease for any reason to constitute at least a majority of the Board.
4. "Code" means the Internal Revenue Code of 1986, as amended.
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5. "Date of Termination" means (i) the effective date on which
the Executive's employment by the Company terminates as specified in a prior
written notice by the Company or the Executive, as the case may be, to the
other, or (ii) if the Executive's employment by the Company terminates by reason
of death, the date of death of the Executive.
6. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
7. "Good Reason" means, unless the Executive expressly consents
in writing, the occurrence of any of the following events after a Change in
Control:
7.1 any removal or involuntary termination of the Executive from
the Company otherwise than as expressly permitted by this Agreement;
7.2 a reduction by the Company in the Executive's rate of annual
base salary as in effect immediately prior to such Change in Control or as the
same may be increased from time to time thereafter, or the Company's failure to
pay such salary;
7.3 any requirement of the Company that the Executive be based
anywhere other than in the Los Angeles metropolitan area (or, if at the time of
the Change of Control the Executive is based in another metropolitan area, any
requirement of the Company that the Executive be based anywhere other than in
that metropolitan area);
7.4 the failure of the Company to:
7.4.1 provide the Executive with employee benefit plans,
compensation plans, paid vacation and other fringe benefits, and expense
reimbursement, in accordance with the most favorable plans, practices,
programs and policies of the Company and its affiliated companies in
effect for the peer executives of the Company and its affiliated
companies after the Change of Control; or
7.4.2 provide the Executive and the Executive's
dependents welfare benefits (including, without limitation, medical,
prescription, dental, disability, salary continuance, employee life,
group life, accidental death and travel accident insurance plans and
programs) in accordance with the most favorable plans, practices,
programs and policies of the Company and its affiliated companies in
effect for the peer executives of the Company and its affiliated
companies after the Change of Control.
7.5 the failure of the Company to obtain the assumption agreement
as contemplated by Section 10.2 of the Agreement.
8. "Incumbent Board" means (i) the individuals who, as of the
date hereof, constitute the Board, and (ii) any individual who becomes a
director of the Company subsequent to the date hereof whose election, or
nomination for election by the Company's stockholders, is approved by the vote
of at least a majority of the directors then comprising the Incumbent Board;
provided, however, that no individual who was initially elected as a director of
the Company as a result of an actual or threatened election contest, as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act, or any other actual or threatened solicitation of proxies or consents by or
on behalf of any Person other than the Board, shall be deemed to be a member of
the Incumbent Board
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9. "Nonqualifying Termination" means a termination of the
Executive's employment (i) by the Company for Cause, (ii) by the Executive for
any reason other than a Good Reason, (iii) as a result of the Executive's death,
or (iv) by the Company due to the Executive's absence from his duties with the
Company on a full-time basis for at least 180 consecutive days as a result of
the Executive's incapacity due to physical or mental illness.
10. "Outstanding Company Common Stock" means, as of any time, the
shares of common stock of the Company outstanding as of that time.
11. "Outstanding Company Voting Securities" means, as of any
time, the securities of the Company entitled to vote generally in the election
of directors outstanding as of that time.
12. "Plan" means the Company's [401(k) Plan] or any successor
plan.
13. "Person" means any individual, entity or group, and includes
any "person" within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act.
14. "Reorganization" means reorganization, merger or
consolidation.
15. "Termination Period" means the period of time beginning with
a Change in Control and ending on the earlier to occur of (i) one year following
such Change in Control, and (ii) the Executive's death.
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