EXHIBIT 10.0
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
BETWEEN
MATTEL, INC.
AND
JILL E. BARAD
TABLE OF CONTENTS
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Page
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1. Employment Period................................. 1
2. Duties............................................ 2
(a) Executive's Positions and Titles............. 2
(b) Executive's Duties........................... 3
(c) Full Time.................................... 3
3. Compensation...................................... 4
(a) Base Salary.................................. 4
(b) Bonus Programs............................... 5
(c) Incentive and Savings Plans.................. 6
(d) Stock Options................................ 7
(e) Benefit Plans................................ 8
(f) Expenses..................................... 8
(g) Fringe Benefits.............................. 8
(h) Vacation..................................... 9
(i) Home Mortgage Loan........................... 9
(j) Life Insurance............................... 10
(k) Stock Purchase Loan.......................... 11
(l) Certain Amendments........................... 12
4. Termination....................................... 12
(a) Death or Disability.......................... 12
(b) Cause........................................ 14
(c) Good Reason.................................. 15
(d) Change of Control............................ 16
(e) Retirement................................... 19
(f) Notice of Termination........................ 19
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Page
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(g) Date of Termination.......................... 20
5. Obligations of Mattel Upon Termination............ 20
(a) Death........................................ 20
(b) Disability................................... 22
(c) Cause/Other Than for Good Reason............. 23
(d) Other Than for Cause/For Good Reason, Death,
Disability or Retirement..................... 23
(e) Retirement................................... 27
(i) Bonus Programs.......................... 28
(ii) Retirement Plans........................ 29
(iii) Benefit Plans........................... 30
(iv) Expenses and Office Space............... 31
(v) Fringe Benefits......................... 31
(vi) Stock Option Grants..................... 32
(vii) Certain Amendments...................... 32
(f) Change of Control............................ 33
(g) Bonus During Cancellation Period............. 34
6. Indemnification................................... 34
7. Non-exclusivity of Rights......................... 35
8. No Set Off, Payment of Fees....................... 35
9. Arbitration of Disputes........................... 37
10. General Release; Time to Consider and
Cancel the Agreement; Age Discrimination in
Employment Act Waiver............................. 40
11. Confidential Information.......................... 43
12. Successors........................................ 44
13. Amendment; Waiver................................. 45
14. Miscellaneous..................................... 45
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of January 1,
1997 (the "Agreement"), is between Mattel, Inc., a Delaware corporation
("Mattel"), and Jill E. Barad (the "Executive").
The Executive and Mattel are parties to an Amended and Restated
Employment Agreement, dated as of July 29, 1996 (the "Existing Employment
Agreement"), providing for the employment of the Executive.
The Executive and Mattel desire to amend the Existing Employment
Agreement in order to reflect the change of her title and duties and of the
terms and conditions of her employment related thereto and to clarify
certain provisions of the Existing Employment Agreement.
In consideration of the premises and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Executive
and Mattel agree to amend and restate the Existing Employment Agreement in
its entirety as follows:
1. Employment Period. Mattel hereby agrees to employ and continue
in its employ the Executive, and the Executive hereby accepts such
employment and agrees to remain in the
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employ of Mattel, for the period
commencing on the date of this Agreement (the "Effective Date") and ending
on the fifth anniversary of such date (the "Employment Period"); provided
that commencing on the first day of the month next following the Effective
Date, and on the first day of each month thereafter (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 five
years from such Renewal Date, unless at least 60 days prior to any Renewal
Date Mattel or the Executive shall give written notice to the other that
the Employment Period shall not be so extended.
2. Duties.
(a) Executive's Positions and Titles. During the Employment
Period, the Executive's positions and titles shall be President and Chief
Executive Officer, Mattel, Inc. In addition to such positions and titles,
Executive shall assume the position and title of Chairman of the Board upon
the earliest of the following dates: (i) on January 1, 1998; (ii) thirty
days after notice to Mattel that she elects to assume the position and
title of Chairman of the Board; or (iii) on the date when John W. Amerman
elects to resign as Chairman of the Board. At Executive's election,
Executive may relinquish the position and title of President at such time
as a person approved by the Executive other than Executive assumes such
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position and title. Such relinquishment shall not affect Executive's
duties as provided in Section 2 (b).
(b) Executive's Duties. Executive shall report directly to the
Board of Directors. Throughout the Employment Period, the Executive's
duties, responsibilities and authority shall include all of the duties,
responsibilities, and authority normally performed by the Chief Executive
Officer of Mattel, with such additions or modifications thereto which are
consistent with her position and existing duties, responsibilities and
authority hereunder, as the Board of Directors of Mattel may, from time to
time, in its discretion and acting in good faith after consultation with
the Executive, adopt. In no event shall the duties, responsibilities and
authority of Executive be less than those initially performed by her. The
Executive's services shall be performed in the greater Los Angeles,
California, area at Mattel's headquarters, and, without the Executive's
consent, she shall not be transferred outside the area, other than for
normal business travel and temporary assignments, nor shall her office or
administrative staff be changed.
(c) Full Time. The Executive agrees to devote her full business
time to the business and affairs of Mattel and to use her best efforts to
perform faithfully and efficiently the duties and responsibilities assigned
to her hereunder, subject to periods of vacation and sick leave to which
she is
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entitled. Notwithstanding the foregoing, Executive may serve on
civic or charitable boards or committees and manage her personal
investments and affairs to the extent such activities do not materially
interfere with the performance of her duties and responsibilities. After
consultation with the Board of Directors or Executive Committee as to
appropriateness with regard to the Executive's duties and responsibilities
to Mattel, the Executive may also serve on corporate boards of directors of
corporations which do not directly compete with Mattel. In no event will
Executive invest in any business which directly competes with Mattel, nor
will she engage in any outside business activity of any nature, including
but not limited to activity as a consultant, agent, partner, officer or
provider of business services of any nature directly or indirectly to a
corporation or other business enterprise. Nothing in this Agreement shall
be construed to prohibit the Executive from investing in up to 1% of the
stock of any corporation which does not directly compete with Mattel and
whose stock is listed on a national securities exchange or on the Nasdaq
National Market System.
3. Compensation.
(a) Base Salary. During the Employment Period, the Executive
shall receive a base salary ("Base Salary") at a bi-weekly rate at least
equal to the bi-weekly salary paid to the Executive by Mattel on the date
of this Agreement. The Base Salary shall be reviewed at least every
eighteen months in
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conjunction with the review of the base salaries of the
other senior executive officers of Mattel, with the first review to be no
later than February 1, 1998, and may be increased at any time and from time
to time by action of the Board of Directors of Mattel 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.
(b) Bonus Programs. In addition to the Base Salary, the
Executive shall participate throughout the Employment Period in all of
Mattel's cash bonus, deferred bonus and incentive plans and programs
("Bonus Programs") which may be in effect from time to time with respect to
executives employed by Mattel (including, but not limited to, the
Management Incentive Plan ("MIP") and the Long-Term Incentive Plan ("LTIP")
as they may be modified from time to time and any plans or programs
substituted therefor) at a participation level reflecting the Executive's
duties and responsibilities, and, in any event, at a level higher than any
other executive. Except as otherwise provided in this Agreement, the
determination of the amounts to be paid pursuant to such plans or programs
shall be made by the Board of Directors of Mattel or a committee thereof
authorized to take such action and shall be made in accordance with
Mattel's
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compensation practice and the terms and provisions of such plans
or programs. The Executive's eligibility for and participation in each of
the Bonus Programs shall be at a level and on terms and conditions which
are more favorable than those available to any other executive of Mattel.
(c) Incentive and Savings Plans. In addition to the Base Salary
and participation in the Bonus Programs, during the Employment Period the
Executive shall be entitled to participate in all incentive and savings
plans and programs, including, but not limited to, retirement plans, as may
be in effect from time to time with respect to executives employed by
Mattel. It is hereby provided that in consideration of Executive's
agreement herein to waive and renounce any and all rights and benefits
under the 1990 Supplemental Executive Retirement Plan, Executive is deemed
currently vested in the 1994 Supplemental Executive Retirement Plan or any
successor plan ("SERP"). The foregoing sentence is subject to the
following limitations: (i) if the Executive's employment shall terminate
by reason of Retirement (as defined in Section 4 (e)) benefits under the
SERP shall become payable at the end of the Extended Employment Period (as
defined in Section 5 (e); (ii) if the Executive's employment shall be
terminated by Mattel without Cause or by the Executive for Good Reason, or
if the Executive's employment shall terminate due to death or disability,
benefits under the SERP shall be immediately payable; (iii) if
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the Executive's employment shall be terminated by Mattel for Cause or by the
Executive other than for Good Reason, benefits under the SERP shall be
payable upon the Executive's attaining age 55; (iv) in any event, the
benefit component attributable to the Executive's age shall be the full
benefit under the SERP to which the Executive would have been entitled if
she had retired at age 60 (i.e. full benefit); (v) whenever the Executive
shall become eligible for her benefit under the SERP, such benefit shall be
35% of the average of the final three years of annual Base Salary
(including the calendar year in which she retires), plus the average of the
greatest two of the five most recent annual MIP bonuses received by the
Executive.
(d) Stock Options. On February 6, 1997, the Executive received
a grant of 825,000 options granted under one or more of Mattel's Stock
Option Plans ("Options") exercisable at $25.75 per share. During the
Employment Period commencing with the first quarter of l998, the Executive
shall receive additional annual grants of Options under Mattel's Stock
Option Plans as in effect from time to time in accordance with Mattel's
policies and practices for other executives. Such options shall be in
amounts greater than those granted to any other executive and in any event
each such grant shall cover a minimum of 300,000 shares of the Common Stock
of Mattel (adjusted for stock splits and dividends).
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(e) Benefit Plans. During the Employment Period, the Executive
and/or her family, as the case may be, shall be entitled to receive all
amounts which she or her 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
the Executive is a participant as in effect from time to time with respect
to executives employed by Mattel.
(f) 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.
(g) Fringe Benefits. During the Employment Period, the
Executive shall be entitled to fringe benefits at a level at or above those
available to other senior executives of Mattel, including a leased
automobile, car and driver (at her disposal whenever required by her),
personal and home security, and related expenses as well as first class
travel expenses, the use of a company-issued gasoline credit card, club
memberships and related expenses, and financial counseling and tax return
preparation services in accordance with the policies of Mattel as in effect
from time to time with respect to senior executives employed by Mattel. It
is
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further agreed and understood that Executive is entitled to purchase all
of her office furnishings for $1.00, upon her termination from Mattel,
irrespective of the reason for termination.
(h) 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 senior executives employed by
Mattel.
(i) Home Mortgage Loan. Mattel agrees that the existing
provisions of the home mortgage loan, which was previously provided to the
Executive pursuant to terms and conditions memorialized in the Amended and
Restated Employment Agreement dated as of November 30, 1993 (the "Home
Mortgage Loan"), shall remain in effect, except that: (A) interest shall
accrue annually and be payable on the due date of the Home Mortgage Loan,
and (B) if Executive's employment is terminated by Mattel other than for
"Cause," or by the Executive for "Good Reason," or in connection with a
"Change in Control," or upon termination of her employment by reason of
Retirement (as such terms are hereinafter defined), or if the Executive
dies or becomes permanently disabled, the principal amount of the Home
Mortgage Loan and all accrued unpaid interest shall be forgiven and forever
cancelled. The term of the Home Mortgage Loan, as modified by this Section
3 (i), is hereby extended to May 20, 2000, on the same terms as
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now in effect. Further, Mattel reserves the right to extend the term of
the Home Mortgage Loan for an additional period of time beyond May 20, 2000,
and, in the event of such an extension, Mattel may, in its sole discretion,
modify the particulars of the Home Mortgage Loan to preserve the intent and
purpose of its interest therein, provided that the terms of such
modification (other than the rate of interest which shall be the Applicable
Federal Rate at the time of such modification) shall be no less favorable
to the Executive than those of the present Home Mortgage Loan as modified
by this Section 3 (i).
(j) Life Insurance. Within sixty days after the execution of
this Agreement, Mattel shall implement a split dollar life insurance plan,
in which the Executive shall be included. Under the plan, the Executive
shall have a basic fixed death benefit of not less than $5,000,000 paid for
by Mattel. Such benefit shall vest upon the earlier of Executive's
attainment of age 55 or her termination by Mattel without Cause or by her
for Good Reason or upon her termination in connection with a Change of
Control or by reason of Retirement or disability. Once vested, such benefit
shall continue in effect until the Executive's death, and Mattel shall pay
the premiums thereon, whether before or after her termination. In
addition, under the plan the Executive shall have the following options:
(i) at any time before or after the termination of her employment to
purchase additional
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coverage in an amount up to the basic coverage, and
(ii) at any time after the termination of her employment to purchase the
basic coverage, whether or not vested. Both options shall be exercisable
at the Executive's own expense, and option (ii) shall be at a purchase
price equal to the net cash surrender value of the policy providing the
basic coverage on the date of purchase. Mattel shall have no obligation
regarding the payment of premiums on the optional coverage after the
exercise by her of option (i) or on the basic or optional coverage after
the exercise by her of option (ii). In the event that the Executive shall
die before the split dollar life insurance plan is implemented Mattel will
provide her legal representative with the basic fixed death benefit which
she would have received under the plan.
(k) Stock Purchase Loan. Mattel agrees to loan the Executive
the lesser of $4,236,000 or the actual amount of the federal and California
income tax and applicable Medicare withholding tax incurred by her in
connection with the vesting of 292,968 shares of the Common Stock of Mattel
previously issued to her as "restricted stock" (the "Loan). A promissory
note representing a portion of the Loan in the amount of $3,800,000 was
executed by the Executive and funded by Mattel on May 20, 1997, and the
balance of the Loan will be funded and an additional promissory note
executed at any time the Executive shall so request. The Loan bears
interest at the Applicable Federal Rate on the dates on which the Loan is
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funded with interest and principal payable on May 20, 2000. In the event
that, for any consecutive 20 trading days during the term of the Loan, the
Common Stock of Mattel is trading at a per share price of $45 or more
(adjusted for stock splits and dividends) the principal of and the accrued
interest on the Loan shall thereupon be forgiven by Mattel. In the event
that, prior to the due date of the Loan, the Executive sells any of such
292,968 shares, the entire principal of and accrued interest on the entire
Loan shall become immediately due and payable.
(l) 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 receive
compensation and benefits consistent with Sections 3(a) through (k).
4. Termination.
(a) Death or Disability. This Agreement shall terminate
automatically upon the Executive's death. In the event that the Executive
suffers a disability, due to illness or injury, which materially limits her
from performing each of the material and substantial duties of her job,
even with reasonable accommodation, for a period in excess of six
consecutive months, Mattel reserves the right to terminate the Executive's
employment during the continuance of such disability by giving to the
Executive written notice of
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termination (the "Disability Notice"). For
purposes of this Agreement, the material and substantial duties of the
Executive's job include duties which are normally required for the
performance of her job, duties which cannot be reasonably omitted or
modified and duties which if not performed by the Executive may result in
or contribute to materially detrimental impact upon Mattel's financial
standing. Furthermore, the Executive will not be considered to be disabled
unless (i) she is under the regular and continuous care and treatment of a
licensed physician or physicians who is/are practicing within the scope of
his/her/their license or licenses during the entire period of disability;
or (ii) there is sufficient documented medical evidence to support the
disability. If the Executive disputes a disability termination, Mattel may
require that the Executive be evaluated, at Mattel's expense, by an
independent physical of Mattel's choice. In the event that the Executive's
physician and Mattel's independent physician report contrary findings as to
the nature and duration of the disability, Mattel may require an additional
evaluation, at Mattel's expense, by a second independent physician of
Mattel's choice. At such time that the second independent physician's
evaluation of the Executive is completed, Mattel will use the findings
reported by two of the three physicians to determine the nature and
duration of the disability and its resulting effect on the continuation or
termination of employment.
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(b) Cause. Mattel may terminate the Executive's employment for
"Cause" if "Cause" as defined below exists and if at least 2/3 of the non-
management members of the Board of Directors make the good faith
determination that termination is appropriate. For purposes of this
Agreement, "Cause" shall be limited to (i) one or more factually
substantiated willful and deliberate act or acts of dishonesty (acts
commonly defined as felonies in criminal statutes) on the Executive's part
which are intended to result in her substantial personal enrichment at the
expense of Mattel; (ii) repeated violations by the Executive of her
obligations under Section 2 (b) or (c) of this Agreement which are
factually substantiated to be willful and deliberate and to constitute bad
faith on the Executive's part and which resulted in material injury to
Mattel; (iii) conduct by the Executive of a factually substantiated
criminal nature (commonly defined as a "felony" in criminal statutes) which
has a material adverse effect on Mattel's reputation or standing in the
community or on its continuing relationships with its customers or those
who purchase or use its products; or (iv) factually substantiated
fraudulent conduct by the Executive in connection with the business or
affairs of Mattel, regardless of whether said conduct is designed to
defraud Mattel or others; provided that, in each case, the Executive has
received written notice of the described activity, has been afforded a
reasonable opportunity to cure or correct the activity described in the
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notice, and has failed to substantially cure, correct or cease the
activity, as appropriate.
(c) Good Reason. The Executive may terminate her employment at
any time for Good Reason, provided that, in each case, Mattel has received
written notice describing the circumstances giving rise to her action, has
been afforded a reasonable opportunity to cure or correct the circumstances
described in the notice and has failed to substantially cure, correct or
cease the circumstances, as appropriate. For purposes of this Agreement,
"Good Reason" means the good faith determination by the Executive that any
one or more of the following has occurred:
(i) without the express written consent of the Executive,
any changes in the positions, duties, titles, authority, reporting
relationships, or responsibilities of the Executive which are inconsistent
in any material respect with the Executive's positions, duties, authority,
reporting relationships, responsibilities or privileges as contemplated by
this Agreement;
(ii) any failure by Mattel to comply with any of the
provisions of Section 3 or any other material provision of this Agreement,
other than an insubstantial and inadvertent failure remedied by Mattel
promptly after receipt of notice thereof given by the Executive, so long as
Mattel reimburses
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Executive for cash payments due to Executive and not
theretofore paid, together with interest thereon at prevailing rates;
(iii) without the Executive's consent, any requirement by
Mattel that Executive be based at any office or location other than an
office or location in greater Los Angeles, California, or at an office
other than Mattel's headquarters, except for travel reasonably required in
the performance of the Executive's responsibilities, or a change in her
office or material reduction in her administrative staff;
(iv) any proposed 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 12(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
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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 indirectly, of securities of Mattel representing
20% 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
Directors of Mattel, and any new director whose election by the Board of
Directors, or whose nomination for election by Mattel's stockholders, was
approved by a vote of at least one-half (1/2) of the directors then in
office (other than in connection with a contested election), cease for any
reason to constitute at least a majority of the Board of Directors;
(iii) the stockholders of Mattel approve (I) a plan of
complete liquidation of Mattel; (II) the sale or other disposition by
Mattel of all or substantially all of Mattel's assets; or (III) the
distribution, sale or transfer of one or more significant subsidiaries,
divisions, lines of business or product lines (whether to shareholders of
Mattel or otherwise) unless the acquireror or transferee or its board of
directors shall meet the conditions for a merger, consolidation or
reorganization in subparagraphs (iv)(I) or (iv)(II) below; or
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(iv) the consummation of a merger, consolidation or
reorganization of Mattel with any other entity other than:
(A) a merger, consolidation or reorganization which
results in the voting securities of Mattel outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than
50% of the combined voting power of the surviving entity's outstanding
voting securities immediately after such merger, consolidation or
reorganization; or
(B) a merger, consolidation or reorganization which
would result in the directors of Mattel (who were directors immediately
prior thereto) continuing to constitute at least 50% of all directors of
the surviving entity immediately after such merger, consolidation or
reorganization.
In this paragraph (iv), "surviving entity" shall mean only an entity
in which all of Mattel's stockholders immediately before such merger,
consolidation or reorganization (determined without taking into account any
stockholder's properly exercising appraisal or similar rights) become
stockholders by the terms of such merger, consolidation or reorganization,
and the phrase "directors of Mattel (who
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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, consolidation or reorganization.
(e) Retirement. The Executive's employment shall be deemed to
have terminated by Retirement if: (i) on or after her 55th birthday she
shall deliver to Mattel a Notice of Termination to that effect; or (ii) the
Employment Period (as defined in Section 1) shall have expired based upon
notice by Mattel to the Executive pursuant to Section 1 of non-extension
thereof.
(f) Notice of Termination. Any termination of the Executive's
employment by Mattel for Cause or following a Change of Control or by the
Executive for Good Reason shall be communicated by written notice to the
other party hereto given in accordance with Section 14(b) ("Notice of
Termination"). Any termination by Mattel due to disability shall be made
by Mattel's giving the Disability Notice 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 of this
Agreement relied upon; (ii) 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) specifies the Date
of Termination (defined below).
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(g) Date of Termination. "Date of Termination" means the date
of actual receipt of the Notice of Termination or any later date specified
therein (but not more than fifteen (15) days after the giving of the Notice
of Termination); provided that (i) if the Executive's employment is
terminated by Mattel for any reason other than Cause or disability, the
Date of Termination is the date on which Mattel notifies the Executive of
such termination; (ii) if the Executive's employment is terminated due to
disability, the Date of Termination is the date on which the Disability
Notice provided for in Section 4 (a) is received by the Executive; and
(iii) if the Executive's employment is terminated due to the Executive's
death, the Date of Termination is the date of death.
5. Obligations of Mattel Upon Termination. Other than as
specifically set forth or referenced in this Agreement, the Executive shall
not be entitled to any benefits on or after the Date of Termination.
(a) Death. If the Executive's employment is terminated by
reason of the Executive's death, this Agreement shall terminate without
further obligations by Mattel to the Executive's legal representatives
under this Agreement or otherwise, except as set forth in this Section 5
(a) or as contained in the applicable Mattel plan or program which
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takes effect at the date of her death, but in no event shall Mattel's
obligations be less than those provided by this Agreement.
(i) For a period of three years following the Date of
Termination, the Executive's spouse and children shall be entitled to the
Executive's benefits described in Section 5 (d) (vi) (A) and (D);
(ii) For a period of one year following the Date of
Termination, the Executive's legal representatives shall be entitled to
receive an amount equal to Executive's Base Salary.
(iii) On the dates of payment to other senior executive
officers, the Executive's legal representatives shall be entitled to
receive a short term annual bonus for the year in which the Executive died,
based on the average of the two largest of the most recent three bonuses
received by her, and any payments which would have been payable to the
Executive under the LTIP for the three year period during which she died as
if she had survived until the end of the period.
(iv) From and after the Date of Termination, the Executive's
legal representatives shall be entitled to receive those retirement
benefits payable to Executive's
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surviving spouse or other named
beneficiaries under the provisions of the SERP in accordance with the
Executive's eligibility for SERP as provided for under Section 3 (c) and
the applicable provisions of the SERP, including the Executive's legal
representatives' eligibility for receipt of benefits commencing immediately
upon her death, and a benefit amount predicated upon the formula set forth
in Section 3(c).
(v) On the Date of Termination, the Executive's country
club membership shall be transferred to the Executive's spouse at no cost
to the spouse, or if there is no spouse, to such child of Executive as
Executive or her executor may designate by will or other written notice to
Mattel.
(vi) On the Date of Termination, all Options theretofore
granted and not exercised by the Executive shall become fully vested and
shall be exercisable by her legal representatives for a period of one year
thereafter.
(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 date of receipt by her of the Disability Notice: (i) the
maximum disability benefits then provided by Mattel to disabled executives
and/or their families and (ii) all of the payments and other benefits set
forth in Section 5 (a), except that the
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benefits payable under clause (i)
of this Section 5 (b) shall not commence until after the payments provided
for in Section 5(a)(ii) shall have been received by her, and, further, all
SERP benefits for which the Executive is or shall become eligible shall be
immediately available. In addition, after receipt by the Executive of the
Disability Notice, she shall be entitled to the benefit set forth in
Section 5 (d) (v).
(c) Cause/Other Than for Good Reason. If the Executive's
employment is terminated for Cause or if the Executive terminates her
employment without Good Reason, Mattel shall pay the Executive her 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, except for benefits
under the SERP to which she is or shall become entitled. In addition, the
Executive shall be entitled to the benefits provided for in Sections 5 (d)
(iii) and (iv) and any other benefits which shall be fully vested on the
date of her termination.
(d) Other Than for Cause/For Good Reason, Death, Disability or
Retirement. If Mattel terminates the Executive's employment other than for
Cause or Disability or the Executive terminates her employment for Good
Reason (in each case, other than within 18 months following a Change of
Control as provided in Section 5(e)):
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(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;
(B) an amount equal to the MIP bonus that would have
been payable to Executive pursuant to the Bonus Programs provided in
Section 3(b) assuming, for purposes of calculating the amount of the bonus
pool under the plan, that the "maximum" amount, as that term is used in the
plan, was achieved for the current plan year (the "Maximum Annual Bonus"),
with such amount prorated to reflect the number of full months the
Executive is employed in the year in which termination occurs;
(C) an LTIP payment for the current year, based on an
assumption of achievement of the three-year maximum award, prorated to
reflect the total number of full months the Executive is employed in the
year in which termination occurs;
(D) a full term payout for the three year period of
the LTIP, assuming for purposes of calculating the
-24-
amount earned under the
LTIP achievement of the three-year maximum award, less any interim payments
previously received by the Executive; and
(E) five 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 Average Annual Bonus defined in Section 5(d)(i)(B) (and,
in each such case, without regard to any contributions by Mattel for the
Executive's benefit to the Mattel Personal Investment Plan ("PIP")).
(ii) Options granted to the Executive under the Stock Option
Plans and not theretofore exercised shall become immediately vested and
the Executive shall have a period of ninety days following the Date of
Termination (but in no event past the expiration of the term of the
Options) to exercise all Options then exercisable or which become
exercisable pursuant to this clause (ii).
(iii) 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 her employment had not terminated.
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(iv) The Executive shall be entitled to purchase her office
furnishings from Mattel for $1.00.
(v) The Executive may continue to use the car leased by
Mattel that is in the Executive's possession on the Date of Termination
until the earlier of (x) the end of the lease term or (y) the fifth
anniversary of the Date of Termination, at which time the Executive may
purchase the car for $1.00 (if at the end of the lease term) or Mattel's
book value (if on the fifth anniversary of the Date of Termination). As of
the Date of Termination, all expenses other than lease payments related to
such leased car, including but not limited to repairs, maintenance,
gasoline, and car phone and associated expenses, shall be the sole
responsibility of the Executive.
(vi) Until the date the Executive accepts other full-time
employment, Mattel shall provide to the Executive at Mattel's expense:
(A) medical, dental, prescription drug and vision care
group insurance in accordance with the coverage in effect immediately prior
to the Date of Termination;
(B) outplacement services at the expense of Mattel
commensurate with those provided to terminated
-26-
executives of comparable level and made available through and at the
facilities of a reputable and experienced vendor;
(C) continuation of country-club membership
"signatory/representative" status as in effect immediately prior to the
Date of Termination; and within ninety (90) days following the Date of
Termination, Mattel shall cause the membership to be transferred to the
Executive at no cost to the Executive; and
(D) personal financial counseling and tax return
preparation service through the vendor engaged and paid for by Mattel.
(vii) Regardless of her age, the Executive shall be
immediately entitled to the benefits under the SERP as provided in Section
3 (c).
(e) Retirement. For a period of two years following the
termination of the Executive's employment by way of Retirement, the
Executive shall be employed by Mattel as a Senior Advisor in an advisory
capacity and on a nonexclusive basis, and shall receive a Base Salary equal
to the Base Salary which she was receiving immediately prior to her
Retirement. The Employment Period shall continue thereafter for a period
of two years (the "Extended Employment Period").
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In addition, the Executive shall be entitled to the following compensation:
(i) Bonus Programs. In addition to the Base Salary, the
Executive shall participate throughout the Extended Employment Period in
the MIP and the LTIP, collectively described as "Bonus Programs". The
Executive's participation in the MIP and the LTIP shall be provided for as
follows:
(A) For the first year following the date of the
Executive's Retirement (payable the following year) her award shall be made
by the Compensation/Options Committee of the Board of Directors of Mattel
in accordance with the terms and provisions of the MIP for such year;
(B) For the second year following the date of the
Executive's Retirement (payable the following year) she shall participate
in accordance with the terms and provisions of the MIP for such year,
except that her award shall be made by the Compensation/Options Committee
of the Board of Directors of Mattel, and the amount of such award shall be
based exclusively on Mattel's overall corporate financial performance in
such year pursuant to its level of achievement with respect to pre-
established goals approved by the Compensation/Options Committee, so long
as such
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performance is at or above "Cut-In" as defined in the provisions of
the MIP for such year;
(C) For the third year following the date of the
Executive's Retirement (payable the following year) she shall participate
in accordance with the terms and provisions of the MIP for that year,
except that her award shall be made by the Compensation/Options Committee
of the Board of Directors of Mattel, and the amount of such award shall be
based exclusively on Mattel's overall corporate financial performance in
such year pursuant to its level of achievement with respect to pre-
established goals approved by the Compensation/Options Committee, so long
as such performance is at or above "Cut In" as defined in the provisions of
the MIP for such year; and,
(D) The Executive's eligibility and participation in
the LTIP then in effect shall continue on the same basis as provided for
under this Agreement.
(ii) Retirement Plans. In addition to the Base Salary and
participation in the Bonus Programs, during the Extended Employment Period,
the Executive shall be entitled to participate in all retirement plans,
specifically, but not limited to, Mattel's 401(k) Plan and Mattel's
Supplemental Executive Retirement Plan ("SERP"), as such plans may be in
effect from time to time at Mattel. Payments under the SERP
-29-
shall commence
at the end of the Extended Employment Period. It is agreed that in the
calculation of the Executive's SERP benefit, the provision in the Plan
which defines the short-term bonus ("MIP") component of her "Final Average
Compensation" shall be the average of the highest two out of the last five
year's awards. In the event of the Executive's death prior to the
conclusion of the Extended Employment Period, the Executive's spouse shall
receive a retirement benefit, as provided for pursuant to the Executive's
election and if no such election is made, then the 100% Joint and Survivor
Option" shall apply in accordance with the applicable provisions of the
SERP, and payment shall begin as soon as practicable after the Executive's
death.
(iii) Benefit Plans. During the Extended Employment Period,
the Executive and/or her family, as the case may be, shall be entitled to
receive all amounts which she or her 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 the Executive is a participant as in effect from time to time at
Mattel. Further, following the completion of the Extended Employment
Period, the Executive and her family shall continue to be eligible for
benefits under the medical, dental, and group life insurance plans in
effect as of the date of her retirement, with the Executive and her
family's eligibility for coverages to continue up
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through and until the
Executive's death, whereupon the applicable spouse-related coverages
pertaining to the medical and dental insurance plans shall continue to
apply to the Executive's spouse, if living, for a period of six months
following the Executive's death.
(iv) Expenses and Office Space. During the Employment Period,
the Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by her in accordance with the policies and
practices of Mattel as in effect from time to time at Mattel. In the event
that the Executive's offices during the Extended Employment Period are
located at a site other than at Mattel's headquarters' building in El
Segundo, California, Mattel shall provide the Executive with Company-paid
office accommodations reasonably comparable to those which she last
occupied in the Mattel headquarters' building and appropriate
administrative support as requested by the Executive.
(v) Fringe Benefits. During the Extended Employment Period, the
Executive shall be entitled to fringe benefits on the same basis as
received by her under the terms of this Agreement, including the automobile
currently in her possession, along with associated auto-related expenses as
well as the use of a company-issued gasoline credit card, country club
memberships and related expenses, and financial counseling in accordance
with the policies of Mattel as in
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effect from time to time at Mattel.
Further, following completion of the Extended Employment Period, the
Executive shall be entitled to: (i) continued use of the same automobile
for a period of five years following the date of her Retirement whereupon
the Executive may purchase said automobile for $1.00 with such purchase to
be consummated not later than one month thereafter; (ii) continued use of
gasoline credit cards issued by Mattel for a period of five years following
the date of her Retirement; (iii) financial counseling paid for by Mattel
until the Executive's death; and (iv) continued payment by Mattel of annual
country club dues and associated expenses for a period of five years
following the date of her Retirement, when said membership shall be wholly
transferred to the Executive at no cost to her (but subject to tax
reporting as imputed income applicable to the year in which the membership
is transferred).
(vi) Stock Option Grants. During the Extended Employment Period,
the Board of Directors, in its sole discretion, may award stock option
grants to the Executive in accordance with the terms and conditions of the
1996 Mattel Stock Option Plan.
(vii) 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 receive
compensation and benefits consistent with Sections 4(a) through (g).
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(f) Change of Control. If, within 18 months following a Change
of Control, the Executive terminates her employment for Good Reason or
Mattel or the surviving entity terminates the Executive's employment other
than for Cause or by reason of disability, the Executive shall be entitled
to all of the payments and benefits described in Section 5 (d), except (i)
she shall be entitled to receive two times the payout provided for in
Section 5 (d) (i) (D). Furthermore, if it is determined by an independent
accounting firm mutually agreed on by Mattel and the Executive, that any
payment or distribution by Mattel to the Executive pursuant to this Section
5 (f) (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, as amended
(the "Code"), or any interest or penalties are incurred by the 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 the Executive shall be entitled to receive with respect
to each Payment an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the 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, the Executive retains an amount of
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the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(g) Bonus During Cancellation Period. If either party to this
Agreement notifies the other party that the Employment Period provided in
Section 1 hereof will not be automatically extended as provided therein,
the compensation of the Executive set forth in Section 3 shall continue as
provided therein for the balance of the Employment Period, except that the
amount of short-term incentive compensation payable under the Bonus
Programs with respect to each fiscal year during the balance of the
Employment Period (including the year in which the notice was given) shall
not be less than 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 of which is
12.
6. Indemnification. Whereas Executive is party to an Indemnity
Agreement with Mattel, pursuant to her positions as both a member of the
Board of Directors and as an Officer of the Corporation, with such
indemnity agreement having been entered into on December 11, 1986, and
amended thereto on January 1, 1993 to provide similar coverage to
Executive's spouse, the terms and provisions of said Indemnity Agreement,
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as amended, are hereby incorporated within this Amended and Restated
Employment Agreement.
7. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation 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 diminish such rights as the Executive may have under any stock
option or other agreement 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.
8. No Set Off, Payment of Fees. Except as expressly provided
herein, Mattel's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall 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
-35-
under, any provision of this Agreement other than expenses
relating to a claim by the Executive that she terminated for Good Reason or
that the termination for Cause was improper, in which case such fees and
expenses shall be paid only if the 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 America 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 pursuant to Section 9 hereof that Good Reason did not exist,
Mattel or the Executive may then offer to reinstate the Executive's
employment as if no Notice of Termination had been given by the Executive.
If Mattel so offers and the Executive declines to accept its offer, then
the Executive's employment shall be deemed to have been terminated without
Good Reason. If the Executive offers to reinstate her employment as if no
Notice of Termination had been given by the Executive and Mattel declines
to accept her offer, then the Executive's employment shall be deemed to
have been terminated for Good Reason.
-36-
9. Arbitration of Disputes.
(a) The parties agree that any disputes, controversies or claims
which arise out of or relate to this Agreement, the Executive's employment
or the termination of her 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 relationship,
including, but not limited to, claims that a termination was for Cause,
including the determination of Mattel's Board of Directors 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 expedited arbitration under the then-
applicable arbitration rules of JAMS/Endispute (or any other mutually
agreed arbitrator) before a board of three arbitrators, as selected
thereunder.
One arbitrator shall be selected by the Executive, one by Mattel and
the third by the two persons so selected, all in
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accordance with the then- applicable arbitration rules of JAMS/Endispute 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 each of whom
shall be a member of the "Independent List" of retired judges with experience
in resolving employment disputes provided by the Los Angeles office of
JAMS/Endispute 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 arbitration panel 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 continuation or termination of
that relationship, and in further consideration of the anticipated
expedition and the minimizing of expense resulting from this arbitration
remedy, the arbitration provisions of this Agreement shall provide the
exclusive remedy, and each party expressly waives any right she or it may
have to seek redress in any other forum.
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(c) Any claim which either party has against the other party
which could be submitted for resolution pursuant to this Section 9 must be
presented in writing by the claiming party to the other within the period
of the applicable statute of limitations. Unless the party against whom
any claim is asserted 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 this Section 9.
(e) Any decision and award or order of a 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 of this Section 9
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 a majority of the
arbitrators shall be final and binding between the parties as to all claims
which were raised in connection with the dispute to the full extent
permitted by law. In all other cases, the parties agree that a decision of
a majority of
-39-
arbitrators shall be a condition precedent to the institution
or maintenance of any legal, equitable, administrative, or other formal
proceeding by the Executive 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.
10. General Release; Time to Consider and Cancel the Agreement; Age
Discrimination in Employment Act Waiver. The Executive and Mattel
acknowledge and agrees that this Agreement includes the entire agreement
and understanding between the parties with regard to the Executive's
employment, the termination thereof during the Employment Period, and all
amounts to which the Executive shall be entitled whether during the term of
employment or upon termination thereof. Accordingly, in the event of
Executive's termination, Executive agrees that as a condition of receiving
the post-termination compensation or benefits, Executive or Executive's
successors, assigns, heirs or anyone claiming through Executive will
execute a release in essentially the following form:
The Executive, on behalf of herself and her successors, assigns, heirs
and any and all other persons claiming through the Executive, if any, and
each of them, shall and does hereby forever relieve, release, and discharge
Mattel and its respective predecessors, successors, assigns, owners,
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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, 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, the Executive's
employment or the termination thereof, and any and all facts in any manner
arising out of, related to or connected with the 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 discrimination 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,
-41-
including, but not limited to, contract, 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 fiduciary duty, and any other common law claim of any kind whatever.
The Executive expressly waives any and all rights under Section 1542
of the Civil Code of the State of California, and all other federal or
state statutory rights, rules, and principles of common law or equity,
including without limitation those of any jurisdiction, government, or
political subdivision thereof, similar to Section 1542 ("similar
provision"). Thus the 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 her favor at the time of executing the
release, which if known by her must have materially affected her settlement
with the debtor."
The waiver given below is given only in exchange for consideration in
addition to anything of value to which the
-42-
Executive is already entitled. The waiver does not waive rights or claims
which may arise after the date of execution of this Agreement. The Executive
acknowledges that: (i) this entire Agreement is written in a manner calculated
to be understood by her; (ii) she has consulted with an attorney before
executing this Agreement; (iii) she was given a period of 21 days within which
to consider this Agreement, and (iv) to the extent she executes this Agreement
before the expiration of the 21 day period, she does so knowingly and
voluntarily and only after consulting her attorney. The Executive shall have
the right to cancel and revoke this Agreement during a period of 7 days
following her execution of this Agreement, and this Agreement shall not become
effective, and no money shall be paid hereunder until the expiration of such
7-day period. The 7-day period of revocation shall commence upon the date of
execution of this Agreement. In order to revoke this Agreement, the
Executive shall deliver to Mattel, prior to the expiration of said 7-day
period, a written notice of revocation.
In addition to the release set forth in this Section 10, the
Executive hereby voluntarily and knowingly waives all rights or claims
arising under the Federal Age Discrimination in Employment Act.
11. Confidential Information. The Executive shall hold in a
fiduciary capacity for the benefit of Mattel all secret
-43-
or confidential information, knowledge or data relating to Mattel or any of
its affiliated companies, and their respective businesses, which shall have
been obtained by the Executive during her 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 the Executive. After termination of the Executive's employment
with Mattel, she 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, except to the extent such
confidential information has become public knowledge or such communication
or divulgence shall be required by law.
12. 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,
-44-
by purchase, merger, consolidation, reorganization,
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.
13. Amendment; Waiver. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and may be
amended, modified or changed only by a written instrument executed by the
Executive and Mattel. No provision of this Agreement may be waived except
by a writing executed and delivered by the party sought to be charged. Any
such written waiver will be effective only with respect to the event or
circumstance described therein and not with respect to any other event or
circumstance, unless such waiver expressly provides to the contrary.
14. 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.
(b) All notices and other communications hereunder shall be in
writing; shall be delivered by hand delivery to
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the other party or mailed by registered or certified mail, return receipt
requested, postage prepaid; shall be deemed delivered upon actual receipt;
and shall be addressed as follows:
if to the Executive:
Jill E. Barad
*
*
copy to:
M. Kenneth Suddleson Esq.
Katten Muchin & Zavis
1999 Avenue of the Stars Suite 1400
Los Angeles, California 90067-6042
if to Mattel:
Mattel, Inc.
333 Continental Boulevard
El Segundo, California 90245
Attention: General Counsel
copy to:
Ronald M. Loeb, Esq.
Irell & Manella LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067
or to such other address as either party shall have furnished to the other
in writing in accordance herewith.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or render
unenforceable such provision in any other jurisdiction.
* CONFIDENTIAL
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(d) Mattel may withhold from any amounts or other transfers or
assignments payable under this Agreement, or any other benefits received
pursuant hereto such Federal, state or local taxes as shall be required to
be withheld from any such, or any other, payments, transfers, assignments
or benefits pursuant to any applicable law or regulation. Mattel may
report, as required by any applicable Federal, state or local law or
regulation, any income or imputed income payable under this Agreement.
(e) Mattel agrees to pay reasonable legal fees and costs
incurred by the Executive in connection with this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of the date first set forth above.
EXECUTIVE:
/s/ Jill E. Barad
-------------------------------
Jill E. Barad
Mattel:
Mattel, Inc.,
a Delaware corporation
By: /s/ Ned Mansour
----------------------------
Ned Mansour
President, Corporate
Operations
ATTEST:
/s/ Leland P. Smith
-------------------------------
Leland P. Smith
-------------------------------
(print name)
Assistant Secretary
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