Exhibit 10.13
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement")
between Mattel, Inc., a Delaware corporation ("Mattel") and __________
_________________ (the "Executive"), dated as of the ____ day of _____
____ , 199_.
Executive and Mattel are parties to an Employment Agreement
dated as of __________________, (the "Existing Employment Agreement")
providing for the employment of Executive.
Executive and Mattel desire to amend and restate the Existing
Employment Agreement in its entirety.
In consideration of the premises and for other good and valuable
consideration, the receipt of which is hereby acknowledged, Executive
and Mattel agree to amend and restate the Existing Employment
Agreement in its entirety as follows:
1. Employment Period. Mattel hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain
in the employ of Mattel for the period commencing on the date of this
Agreement and ending on the earlier to occur of (i) the third
anniversary of such date or (ii) the first day of the month
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coinciding with or next following the Executive's sixty-fifth birthday.
Such date is herein called the "Normal Retirement Date" and such
period the "Employment Period"; provided, however, that commencing
on the first day of the month next following the effective date
hereof, and on the first day of each month hereafter (the most recent
of such dates is hereinafter referred to as the "Renewal Date"), the
Employment Period shall be automatically extended so as to terminate
on the earlier of (x) three years from such Renewal Date or (y) the
first day of the month coinciding with or next following the
Executive's Normal Retirement Date, unless at least 60 days prior to
any Renewal Date Mattel or the Executive shall give notice to the
other that the Employment Period shall not be so extended.
2. Duties. (a) Executive's Position and Duties. During the
Employment Period, the Executive's position (including titles),
authority and responsibilities shall be similar to those held by the
Executive on the date hereof with such additions and modifications,
and consistent with responsibilities generally assigned to executive
officers of Mattel as the Chief Executive Officer of Mattel may in
his discretion and acting in good faith from time to time assign to
Executive. The Executive's services shall be performed in the
general area in which Executive was employed on the date of this
Agreement and Executive will not be transferred outside the area
without Executive's consent, other than for normal business travel
and temporary assignments.
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(b) Full Time. The Executive agrees to devote his full
business time to the business and affairs of Mattel and to use his
best efforts to perform faithfully and efficiently the responsibil-
ities assigned to him hereunder to the extent necessary to discharge
such responsibilities, except for (i) services on corporate, civic
or charitable boards or committees not significantly interfering with
the performance of such responsibilities; (ii) periods of vacation
and sick leave to which he is entitled; and (iii) the management of
his personal investments and affairs. Executive will not engage in
any outside business activity including, but not limited to, activity
as a consultant, agent, partner or officer or provide services of any
nature directly or indirectly to a corporation or other business
enterprise.
3. Compensation. (a) Base Salary. During the Employment
Period, the Executive shall receive a base salary ("Base Salary") at
a monthly rate at least equal to the monthly salary paid to Executive
by Mattel on the date of this Agreement. The Base Salary shall be
reviewed at least every two years and may be increased at any time
and from time to time by action of the Board of Directors of Mattel
(the "Board") or any committee thereof or any individual having
authority to take such action in accordance with Mattel's regular
practices. Any increase in the Base Salary shall not serve to limit
or reduce any other obligation of Mattel hereunder, and after any
such increase, the Base Salary shall not be reduced.
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(b) Bonus Programs. In addition to the Base Salary, the
Executive shall continue to participate in Mattel's cash and deferred
bonus or incentive plans or programs ("Bonus Programs") as may be in
effect from time to time with respect to executives employed by
Mattel at a participation level reflecting Executive's responsibili-
ties, including but not limited to, the Management Incentive Plan and
Long-Term Incentive Plan as they may be modified from time to time
and including any plans substituted therefore, provided, however,
except as provided in Section 5(f) hereof, the determination of the
amounts to be paid pursuant to such plans shall be made by the Board
or a committee thereof authorized to take such action and shall be
made in accordance with Mattel's compensation practice and the terms
and provisions of such plans or programs.
(c) Incentive and Savings Plans. In addition to the Base
Salary and participation in the Bonus Programs, during the Employment
Period the Executive shall continue to be entitled to participate in
all incentive and savings plans and programs, including stock option
plans, as well as in all retirement plans, including the Mattel
Supplemental Executive Retirement Plan, as may be in effect from time
to time with respect to executives employed by Mattel at Executive's
level reflecting Executive's responsibilities.
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(d) Benefit Plans. The Executive and/or his family, as
the case may be, shall be entitled to receive all amounts which he
or his family is or would have been entitled to receive as benefits
under all medical, dental, disability, group life, accidental death
and travel accident insurance plans and programs of Mattel in which
Executive is a participant as in effect from time to time with
respect to executives employed by Mattel.
(e) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the policies
and practices of Mattel as in effect from time to time with respect
to executives employed by Mattel.
(f) Fringe Benefits. The Executive shall be entitled to
fringe benefits, including an automobile, a club membership and
related expenses, and financial counseling in accordance with the
policies of Mattel as in effect from time to time with respect to
executives employed by Mattel.
(g) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the policies
of Mattel as in effect from time to time with respect to executives
employed by Mattel.
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(h) Certain Amendments. Nothing herein shall be construed
to prevent Mattel from amending, altering, eliminating or reducing
any plans, benefits or programs so long as the Executive continues
to have the opportunity to receive compensation and benefits consis-
tent with Sections 3(a) through (g).
4. Termination. (a) Death or Disability. This Agreement
shall terminate automatically upon the Executive's death. Mattel may
terminate this Agreement, after having established the Executive's
Disability, by giving to the Executive written notice of its
intention to terminate his employment, and his employment with Mattel
shall terminate effective on the 90th day after receipt of such
notice (the "Disability Effective Date"). For purposes of this
Agreement, an Executive's Disability shall be deemed to have occurred
when the Executive becomes entitled to receive disability benefits
under the Mattel Long-Term Disability Plan for exempt employees.
(b) Cause. Mattel may terminate the Executive's employ-
ment for "Cause" if a majority of the Board determines that "Cause"
exists. For purposes of this Agreement, "Cause" means (i) an act or
acts of dishonesty on the Executive's part which are intended to
result in his substantial personal enrichment at the expense of
Mattel or (ii) repeated violations by the Executive of his obliga-
tions under Section 2 of this Agreement which are demonstrably
willful and deliberate on the Executive's part and
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which resulted in material injury to Mattel or (iii) conduct of a
criminal nature may or which is likely to have an adverse impact on Mattel's
reputation or standing in the community or on its relationship with
its customers or those who purchase or use its products (iv)
fraudulent conduct in connection with the business or affairs of
Mattel, regardless of whether said conduct is designed to defraud
Mattel or others.
(c) Good Reason. The Executive may terminate his
employment for Good Reason. For purposes of this Agreement, "Good
Reason" means:
(i) Without the express written consent of the
Executive, the assignment to the Executive of any duties inconsistent
in any substantial respect with the Executive's position, authority
or responsibilities as contemplated by Section 2 of this Agreement;
(ii) any failure by Mattel to comply with any of the
provisions of Section 3 of this Agreement, other than an insubstan-
tial and inadvertent failure remedied by Mattel promptly after
receipt of notice thereof given by the Executive;
(iii) Mattel requires the Executive without his
consent to be based at any office or location other than an office
or location in the general area where Executive was based on the
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date of this Agreement, except for travel reasonably required in the
performance of the Executive's responsibilities;
(iv) any purposed termination by Mattel of the
Executive's employment otherwise than as permitted by this Agreement;
or
(v) any failure by Mattel to obtain the assumption and
agreement to perform this Agreement by a successor as contemplated
by Section 11(b).
(d) Change of Control. A "Change of Control" shall be
deemed to have occurred if:
(i) any "Person", which shall mean a "person" as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (other than Mattel, any
trustee or other fiduciary holding securities under an employee
benefit plan of Mattel) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirect-
ly, or securities of Mattel representing 30% or more of the combined
voting power of Mattel's then outstanding voting securities;
(ii) during any period of 24 consecutive months,
individuals, who at the beginning of such period constitute the Board
of Mattel, and any new director whose election by the Board,
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or whose nomination for election by Mattel's stockholders, was approved
by a vote of at least one-half (1/2) of the directors (other than in
connection with a contested election) cease for any reason to
constitute at least a majority thereof;
(iii) the stockholders of Mattel approve (I) a plan
of complete liquidation of Mattel or (II) the sale or disposition by
Mattel for all or substantially all of Mattel's assets unless the
acquirer of the assets or its board of directors shall meet the
conditions for a merger or consolidation in subparagraphs (iv) (I)
or (iv) (II) below; or
(iv) the consummation of a merger or consolidation of
Mattel with any other company other than:
(I) such a merger or consolidation which would
result in the voting securities of Mattel outstanding immediately
prior thereto continuing to represent (either by remaining outstand-
ing or by being converted into voting securities of the surviving
entity) more than 50% of the combined voting power of Mattel's or
such surviving entity's outstanding voting securities immediately
after such merger or consolidation; or
(II) such a merger or consolidation, which would
result in the directors of Mattel who were directors immediately
prior thereto, continuing to constitute at least 50% of
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the directors of the surviving entity immediately after such merger
or consolidation.
In this paragraph (iv), "surviving entity" shall mean only an entity
in which all of Mattel's stockholders immediately before such merger
or consolidation become stockholders by the terms of such merger or
consolidation, and the phrase "directors of Mattel who were directors
immediately prior thereto" shall include only individuals who were
directors of Mattel at the beginning of the 24 consecutive month
period preceding the date of such merger or consolidation.
(e) Notice of Termination. Any termination by Mattel for
Cause or following a Change of Control or by the Executive for Good
Reason shall be communicated by Notice of Termination to the other
party hereto given in accordance with Section 13(b). Any termination
by Mattel due to Disability shall be given in accordance with Section
4(a). For purposes of this Agreement, a "Notice of Termination"
means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) and except in the event
of a termination as a result of a Change of Control, sets 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) if the termination date is other
than the date of receipt of such notice,
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specifies the termination date of this Agreement (which date shall
be not more than 15 days after the giving of such notice).
(f) Date of Termination. "Date of Termination" means the
fifth day following the mailing (or if personally delivered, the date
of delivery) of the Notice of Termination or any later date specified
therein, as the case may be. Notwithstanding any contrary provision
in Section 4(e), if the Executive's employment is terminated by
Mattel for any reason other than Cause, Death, or Disability, the
Date of Termination is the date on which Mattel notifies the
Executive of such termination; if the Executive's employment is
terminated due to Disability, the Date of Termination is the
Disability Effective Date, and if the Executive's employment is
terminated due to the Executive's death, the Date of Termination
shall be the date of death.
5. Obligations of Mattel upon Termination.
(a) Death. If the Executive's employment is terminated
by reason of the Executive's death, this Agreement shall terminate
without further obligations to the Executive's legal representatives
under this Agreement other than those obligations accrued hereunder
at the date of his death. Anything in this Agreement to the contrary
notwithstanding, the Executive's family shall be entitled to receive
benefits at least equal to those provided by Mattel to surviving
families of executives of Mattel under the plan, programs and
policies described in Sections 3(d) and 3(f) of
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this Agreement, if any, as in effect from time to time with respect
to executives employed by Mattel with comparable responsibilities and
their families.
(b) Disability. If the Executive's employment is
terminated by reason of the Executive's Disability, the Executive
shall be entitled to receive after the Disability Effective Date
disability and other benefits at least equal to those provided by
Mattel to disabled employees and/or their families in accordance with
the plans, programs and policies described in Sections 3(d) and 3(f)
of this Agreement if and as in effect on the Disability Effective
Date with respect to executives with comparable responsibilities and
their families.
(c) Cause. If the Executive's employment shall be
terminated for Cause or if the Executive terminates his employment
without Good Reason, Mattel shall pay the Executive his full Base
Salary through the Date of Termination at the rate in effect at the
time Notice of Termination is given, and Mattel shall have no further
obligations to the Executive under this Agreement.
(d) Good Reason Other Than for Cause or Disability.
(i) Lump Sum Payments. If during the Employment
Period Mattel shall terminate the Executive's employment other than
for Cause or Disability, or the Executive shall terminate his
employment for Good Reason other than a termination for Good Reason
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within 18 months following a Change of Control as provided in Section
5(e);
(I) Mattel shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the
aggregate of the following amounts:
(A) if not theretofore paid, the Executive's
Base Salary through the Date of Termination at the rate in effect
at the time of Notice of Termination was given; and
(B) an amount equal to the average annual
Management Incentive Plan bonus, if any, paid to Executive pursuant
to the Bonus Programs provided in Section 3(b) with respect to the
two fiscal years next preceding the Date of Termination ("Annual
Bonus") multiplied by a fraction whose numerator shall be the number
of full months that have elapsed from the end of the last fiscal year
with respect to which a Management Incentive Plan bonus calculation
was made, and ending on the Date of Termination and the denominator
shall be 12.
(C) an amount under the Long-Term Incentive
Plan which had been determined and allocated to Executive's account
under such plan plus amounts that had been earned in the next
preceding fiscal year that were not determined or allocated at the
Date of Termination but would have been allocated to Executive had
he continued in the employ of Mattel; such latter
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amounts to be payable 30 days after such amounts have been determined.
(D) three times the sum of (x) the
Executive's annual Base Salary at the rate in effect at the time the
Notice of Termination is given and (y) the Annual Bonus defined in
Section 5(d)(I)(B).
(II) Options granted to Executive under Mattel's
stock option plans (the "Stock Option Plan") which options have been
outstanding for more than six months shall become immediately
exercisable and Executive shall have for a period of 90 days
following such Date of Termination to exercise all options granted
under the Stock Option Plans then exercisable, but not to exceed the
term of the grant, or which become exercisable pursuant to this
clause (II).
(III) Awards of share units granted to Executive
shall become payable as of the Date of Termination and the amount
payable shall be determined by multiplying the value of the share
units by a fraction whose numerator shall be the number of full
months that have elapsed since the date of award of the share units
and the denominator shall be the number of months from the date of
the award of the share units to the date the share
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units are payable. The value of the share units shall be determined
in accordance with Section 6 of the award agreement with the Valuation
Date defined therein being the Date of Termination.
(IV) In addition, Mattel shall, promptly upon
submission by the Executive of supporting documentation, pay or
reimburse to the Executive any costs and expenses paid or incurred
by the Executive which would have been payable under Section 3(e) if
his employment had not terminated; and
(V) Until the earlier of (i) the first day of
the month coinciding with or next following the Executive's Normal
Retirement Date, (ii) the third anniversary of the Date of Termina-
tion referred to in this Section, or (iii) the date Executive accepts
other employment, Mattel shall continue benefits to the Executive
and/or his family at least equal to those which would have been
provided to them in accordance with the plans, programs and policies
described in Sections 3(d) and 3(f) of this Agreement if the
Executive's employment had not been terminated, if and as in effect
from time to time with respect to executives employed by Mattel with
comparable responsibilities and their families. The last 18 months
of Executive's participation shall be deemed to be participation
under an election to continue such benefits under the Consolidated
Omnibus Budget Reconciliation Act.
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(VI) For purposes of the Mattel Supplemental
Executive Retirement Plan, Executive shall be credited with three
years of service in addition to his years of service actually accrued
through the Date of Termination.
(e) Change of Control. If during the Employment Period
and within 18 months following a Change of Control, Executive shall
terminate his employment for Good Reason as defined in Section 4(c)
or if Mattel terminates the Executive's employment other than for
Cause or Disability;
(i) Mattel shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the
aggregate of the following amounts:
(A) if not theretofore paid, the Executive's
Base Salary through the Date of Termination at the rate in effect
at the time of Notice of Termination was given; and
(B) an amount equal to the Management
Incentive Plan bonus that would have been payable to executives of
Mattel in the same bonus category as Executive pursuant to the Bonus
Programs provided in Section 3(b) assuming, for purposes of calculat-
ing the amount of the bonus pool under the plan, that the "maximum"
amount, as that term is used in the plan, were achieved, ("Annual
Bonus") multiplied by a fraction whose numerator shall be the number
of full months that have elapsed from the end of the last fiscal year
with respect to which a Management Incentive Plan bonus calculation
was made, and ending on the Date of Termination
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and the denominator shall be 12. The year on which the computation
is based shall be the year in which the Date of Termination occurred;
(C) an amount under the Long-Term Incentive
Plan which had been determined and allocated to Executive's account
under such plan plus amounts that had been earned in the next
preceding fiscal year that were not determined or allocated as of the
Date of Termination but would have been allocated to Executive had
he continued in the employ of Mattel; such latter amounts to be
payable 30 days after such amounts have been determined.
(D) three times the sum of (x) the
Executive's annual Base Salary at the rate in effect at the time the
Notice of Termination is given, (y) the Executive's Annual Bonus, and
(z) Current Year's Long-Term Bonus. For purposes of this clause (D),
Current Year's Long-Term Bonus shall be an amount equal to the Long-
Term Bonus provided in Section 3(b) that would have been allocated
to Executive, assuming, for purposes of calculating the amount earned
under the plan, that the maximum payment, as that term is used in the
plan, was achieved and the year on which the computation is based is
the year in which the Date of Termination occurred.
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(ii) If it is determined that the payment or
distribution by Mattel to Executive pursuant to Section 5(e)
(determined without regard to any additional payments required
pursuant to this sentence) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of
1986 (the "Code") or any interest or penalties are incurred by
Executive with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then Executive shall be entitled
to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-
Up Payment, Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
(iii) In addition, Executive shall receive the
amounts and be entitled to the benefits provided in clauses (IV), (V)
and (VI) of Section 5(d)(i).
(f) Bonus During Cancellation Period. If Mattel notifies
the Executive that the Employment Period provided in Section 1 hereof
will not be automatically extended as provided therein, the compensa-
tion of Executive shall continue as provided
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in this Agreement for the period provided therein, except that the
amount of short-term incentive compensation payable under the Bonus
Programs with respect to each fiscal year during such period (including
the year in which the notice was given) shall be the Annual Bonus as
determined in Section 5(d)(I)(B). Amounts payable with respect to the
year in which the term specified in Section 1 expires shall be prorated
based on a fraction the numerator of which is the number of full months
from the beginning of such year until the date of the expiration of
this Agreement and denominator is 12.
6. Non-exclusivity of Rights. Nothing in this Agreement
shall prevent or limit the Executive's continuing or future partici-
pating in any benefit, bonus, incentive or other plan or program
provided by Mattel and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the
Executive may have under any stock option or other agreements with
Mattel or any of its affiliated companies. Except as otherwise
provided herein, amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or program
of Mattel at or subsequent to the Date of Termination shall be
payable in accordance with such plan or program.
7. No Set Off, Payment of Fees. Except as provided herein,
Mattel's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall
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not be affected by any circumstances, including without limitation
any set-off, counterclaim, recoupment, defense or other right which
Mattel may have against the Executive or others. Mattel agrees to
pay, to the full extent permitted by law, all legal fees and expenses
which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by Mattel or others of the
validity or enforceability of, or liability under, any provision of
this Agreement other than expenses relating to a claim by Executive
that he terminated for Good Reason or that the termination for Cause
was improper, in which case such fees and expenses shall be paid only
if Executive prevails in whole or in part. All amounts provided
herein shall include, in each case, interest, compounded quarterly,
on the total unpaid amount determined to be payable under this
Agreement, such interest to be calculated on the basis of the prime
commercial lending rate announced by Bank of American National Trust
and Savings Association in effect from time to time during the period
of such nonpayment. In the event that the Executive shall in good
faith give a Notice of Termination for Good Reason and it shall
thereafter be determined that Good Reason did not exist, the
employment of the Executive shall, unless Mattel and the Executive
shall otherwise mutually agree, be deemed to have terminated at the
date of giving such purported Notice of Termination by mutual consent
of Mattel and the Executive shall be entitled to receive only those
payments and benefits which he would have been entitled to receive
at such date.
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8. Arbitration of Disputes. (a) The parties agree that any
disputes, controversies or claims which arise out of or relate to
this Agreement, Executive's employment or the termination of his
employment, including, but not limited to, any claim relating to the
purported validity, interpretation, enforceability or breach of this
Agreement, and/or any other claim or controversy arising out of the
relationship between the Executive and Mattel (or the nature of the
relationship) or the continuation or termination of that relation-
ship, including, but not limited to, claims that a termination was
for Cause, including the Board's determination in accordance with
Section 4(b), or for Good Reason, claims for breach of covenant,
breach of an implied covenant of good faith and fair dealing,
wrongful termination, breach of contract, or intentional infliction
of emotional distress, defamation, breach of right of privacy,
interference with advantageous or contractual relations, fraud,
conspiracy or other tort or property claims of any kind, which are
not settled by agreement between the parties, shall be settled by
arbitration before a board of three arbitrators.
One arbitrator shall be selected by the Executive, one by Mattel
and the third by the two persons so selected, all in accordance with
the labor arbitration rules of the American Arbitration Association
then in effect. In the event that the arbitrator selected by the
Executive and the arbitrator selected by Mattel are unable to agree
upon a third arbitrator, then the third arbitrator shall be selected
from a list of seven provided by the
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office of the American Arbitration Association nearest to the employee's
residence with the parties striking names in order and the party striking
first to be determined by the flip of a coin. The arbitration shall be
held in a location to be mutually agreed upon by the parties. In the absence
of agreement, the Chairman of the Board of Mattel shall determine the
location.
(b) In consideration of the parties' agreement to submit
to arbitration all disputes with regard to this Agreement and/or with
regard to any alleged contract, or any other claim arising out of
their conduct, the relationship existing hereunder or the continua-
tion or termination of that relationship, and in further consider-
ation of the anticipated expedition and the minimizing of expense of
this arbitration remedy, the arbitration provisions of this Agreement
shall provide the exclusive remedy, and each party expressly waives
any right he or it may have to seek redress in any other forum.
(c) Any claim which either party has against the other
party which could be submitted for resolution pursuant to this
Section must be presented in writing by the claiming party to the
other within one year of the date the claiming party knew or should
have known of the facts giving rise to the claim, except that claim
arising out of or related to the termination of the Executive's
employment must be presented by him within one year of the Date of
Termination. Unless the party against whom any claim is asserted
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waives the time limits set forth above, any claim not brought within
the time periods specified shall be waived and forever barred.
(d) Mattel will pay all costs and expenses of the
arbitration to the extent provided in Section 8, hereof. In the
event expenses are not paid by Mattel, and without diminishing the
Executive's right to reimbursement as provided in this Section costs
and expenses shall be paid as follows: (x) the expenses of the
neutral arbitrator and of a transcript of any arbitration proceeding
shall be divided equally between the Executive and Mattel; and (y)
each party shall bear the expenses of the arbitrator selected by it
and of the witnesses it calls.
(e) Any decision and award or order of the majority of the
arbitrators shall be binding upon the parties hereto and judgment
thereon may be entered in the Superior Court of the State of
California or any other court having jurisdiction.
(f) Each of the above terms and conditions shall have
separate validity and the invalidity of any part thereof shall not
affect the remaining parts.
(g) Any decision and award or order of the majority of the
arbitrators shall be final and binding between the parties as to all
claims which were or could have been raised in connection
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with the dispute to the full extent permitted by law. In all other cases,
the parties agree that the decision of the board of arbitrators shall be
a condition precedent to the institution or maintenance of any legal,
equitable, administrative, or other formal proceeding by the employee
in connection with the dispute, and that the decision and opinion of
the board of arbitrators may be presented in any other forum on the
merits of the dispute.
9. General Release. Executive acknowledges and agrees that
this Agreement includes the entire agreement and understanding
between the parties with regard to Executive's employment or the
termination thereof during the Employment Period and all amounts to
which Executive shall be entitled whether during the term of
employment or upon termination thereof. Accordingly, upon Mattel's
fulfilling its obligations to Executive hereunder, Executive, on
behalf of himself and his related individuals and entities, if any,
including, but not limited to, any predecessors, successors/ assigns,
and any and all other related individuals and entities, if any, and
each of them, shall and does hereby forever relieve, release, and
discharge Mattel and its respective predecessors, successors,
assigns, owners, attorneys representatives, affiliates, parent
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, in any and all capacities,
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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 limitation, any statutory, civil or administrative
claim, or any claim, arising out of acts or omissions occurring
before the execution of this Agreement, whether known or unknown,
suspected or unsuspected, fixed or contingent, apparent or concealed
(collectively referred to as "claims"), including, but not limited
to, any claims based on, arising out of, related to or connected with
the subject matter of this Agreement, Executive's employment or the
termination thereof, and any and all facts in any manner arising out
of, related to or connected with Executive's employment with, or
termination of employment from, Mattel or any of its related
entities, including, but not limited to, any claims arising from
rights under federal, state, and local laws prohibiting discrimina-
tion on the basis of race, national origin, sex, religion, age,
marital status, pregnancy, handicap, ancestry, sexual orientation,
or any other form of discrimination, and any common law claims of any
kind, including, but not limited to, contact, tort, and property
rights including, but not limited to, breach of contract, breach of
the implied covenant of good faith and fair dealing, tortious
interference with contract or current or prospective economic
advantage, fraud, deceit, misrepresentation, defamation, wrongful
termination, infliction of emotional distress, breach of
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fiduciary duty, and any other common law claim of any kind whatever.
Upon Mattel's fulfilling its obligations to Executive hereunder,
Executive expressly waives any and all rights under Section 1542 of
the Civil Code of the State of California, or any other federal or
state statutory rights or rules, or principles of common law or
equity, or those of any jurisdiction, government, or political
subdivision thereof, similar to Section 1542 ("similar provision").
Thus Executive may not invoke the benefits of Section 1542 or any
similar provision in order to prosecute or assert in any manner any
claims released hereunder. Section 1542 provides as follows:
"A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing the
release, which if known by him must have materi-
ally affected his settlement with the debtor."
10. Confidential Information. The Executive shall hold in
a fiduciary capacity for the benefit of Mattel all secret or
confidential information, knowledge or data relating to Mattel or any
of its affiliated companies, and their respective businesses,
26
which shall have been obtained by the Executive during his employment
by Mattel or any of its affiliated companies and which shall not be
public knowledge and will continue to be bound by the provisions of
the Patent and Confidence Agreement previously executed by Executive.
After termination of the Executive's employment with Mattel, he shall
not, without the prior written consent of Mattel, communicate or
divulge any such information, knowledge or data to anyone other than
Mattel and those designated by it.
11. Successors. (a) This Agreement is personal to the Executive
and without the prior written consent of Mattel shall not be
assignable by the Executive otherwise than by will or the laws of
descent and distribution. This Agreement shall inure to the benefit
of and be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon Mattel and its successors. Mattel shall require any
successor to all or substantially all of the business and/or assets
of Mattel, whether direct or indirect, by purchase, merger, consoli-
dation, acquisition of stock, or otherwise, by an agreement in form
and substance satisfactory to the Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the same
extent as Mattel would be required to perform if no such succession
had taken place.
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12. Amendment. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and may
be amended or modified only by a written instruction executed by
Executive and Mattel.
13. Miscellaneous. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of California,
without reference to principles of conflict of laws. The captions of
this Agreement are not part of the provisions hereof and shall have
no force or effect. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto
or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall
be in writing and shall be given by hand delivery to the other party
or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
--------------------
__________________________
__________________________
__________________________
If to the Corporation:
----------------------
MATTEL, INC.
333 Continental Blvd.
El Segundo, CA 90245
ATTENTION: General Counsel
or to such other address as either party shall have furnished to
28
the other in writing in accordance herewith.
(c) The invalidity of unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(d) Mattel may withhold from any amounts payable under
this Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
IN WITNESS WHEREOF, the Executive has hereunto set hand and,
pursuant to the authorization from the Board of Directors, Mattel has
caused these presents to be executed in its name on its behalf,
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and its corporate seal to be hereunto affixed and attested by its Secretary,
all as of the day and year first above written.
__________________________
Executive
MATTEL, INC.
By:_______________________
ATTEST:
__________________________
Secretary
(SEAL)
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