Exhibit 4.9
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EMPLOYMENT AGREEMENT
     EMPLOYMENT AGREEMENT (the “Agreement”), dated September 25, 2002, by andbetween Vivendi Universal U.S. Holding Co. (the “Company”) and Mr. EdgarBronfman, Jr. (the “Executive”).
     WHEREAS, the Company desires to employ Executive in order to assist theCompany and its U.S. affiliates in the definition and implementation of thestrategy regarding their U.S. entertainment businesses, among other things, andto enter into an agreement embodying the terms of such employment;
     WHEREAS, Executive desires to accept such employment and enter into suchan employment agreement;
     NOW, THEREFORE, in consideration of the premises and mutual covenants setforth herein and for other good and valuable consideration, the parties agreeas follows:
     1. Term of Employment. Subject to the provisions of Section 6 of thisAgreement, Executive shall be employed by the Company for a period commencingon September 25, 2002 and ending on December 31, 2004 (the “Employment Term”)on the terms and subject to the conditions set forth in this Agreement.
     2. Position/Location
     a. During the Employment Term, Executive shall serve as an executiveemployee of the Company. In such position, Executive shall render services tothe Company, and shall perform such duties commensurate with such office as heshall reasonably be directed by the Chief Executive Officer of the Company, Mr.Jean-Rene Fourtou (the “CEO”). Without limiting the generality of theforegoing, Executive shall use his experience in, and knowledge of, theentertainment business in the U.S. to advise the CEO in connection with theCompany’s and its U.S. affiliates’ entertainment businesses in the U.S. morespecifically, including but not limited to the following matters:
     • definition and implementation of the strategy concerning theCompany’s and its U.S. affiliates’ entertainment businesses in the U.S.;
     • definition and implementation of the synergies between theCompany’s and its U.S. affiliates’ music business and the Company’s andits         U.S. affiliates’ other entertainment businesses (e.g., theme parks);
     • maintenance and development of the relationships between theCompany’s and its U.S. affiliates’ new management team and the         Company’sand its U.S. affiliates’ U.S. businesses.
     b. During the Employment Term, Executive will be required to devote asubstantial time commitment to the performance of his duties under thisAgreement, but he will not be precluded or prohibited from securing one or moreadditional part time employment or consulting positions. Executive agrees torender the services described above in a diligent and businesslike manner.Executive’s principal place of business will be located
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in the Borough of Manhattan, New York City, subject to reasonable travelrequirements on behalf of the Company.
     3. Salary. During the Employment Term, the Company shall pay Executive asalary (the “Salary”) at the annual rate of US$ 1,000,000, payable in regularinstallments in accordance with the Company’s usual payment practicesapplicable to senior executives.
     4. Employee Benefits. During the Employment Term, Executive shall beentitled to participate in the Company’s employee benefit plans (including,without limitation, pension, welfare, flexible perquisites, matching gifts, andfringe benefit plans) (collectively, “Employee Benefits”) at the levelsafforded to other senior executives of the Company. Notwithstanding any termsor provisions of this Agreement to the contrary, the Company acknowledges andagrees that (a) Executive has earned certain benefits, including, withoutlimitation, pension benefits, in connection with his prior relationship in anyand all capacities with Vivendi Universal S.A., its affiliates, including,without limitation, the Company, and their respective predecessors, and (b)nothing in this Agreement shall result in any cessation of or reduction in anypension benefits or other benefits payable to Executive as a result of suchprior service or his retirement therefrom; provided, however, that the partieshereto acknowledge and agree that, during the Employment Term, Executive willnot accrue any benefits under the Company’s Benefit Equalization Plan inaddition to those he was entitled to receive as of the first day of theEmployment Term.
     5. Business Expenses and Perquisites. During the Employment Term, allbusiness expenses reasonably incurred by Executive in the performance ofExecutive’s duties hereunder shall be reimbursed by the Company in accordancewith the Company’s policies applicable to senior executives. In addition,during the Employment Term, the Company shall provide Executive in connectionwith the performance of his obligations hereunder; (i) appropriate office spacein the Borough of Manhattan, New York City; (ii) the services of an assistant;and (iii) such other facilities as may be necessary or appropriate, inaccordance with the Company’s policies, for the performance by Executive of hisservices under this Agreement (collectively, the “Perquisites”).
     6. Termination. The Employment Term and Executive’s employment hereundermay be terminated by the Company or Executive at any time and for any reason.
     a. By the Company for Cause or by Executive’s Resignation Without GoodReason.
     (i) The Employment Term and Executive’s employment hereunder may beterminated by the Company for Cause (as defined below) and shall terminateautomatically upon Executive’s resignation without Good Reason (as defined inSection 6(c)(ii)).
     (ii) For purposes of this Agreement, “Cause” shall mean (A) conviction ofa felony under the laws of the United States or any state thereof, (B)Executive’s willful malfeasance or willful misconduct in connection withExecutive’s duties hereunder, or Executive’s repeated willful refusal toperform Executive’s duties which, in each case, results in demonstrable harm tothe financial condition or business reputation of the Company or any of itssubsidiaries or affiliates or (C) Executive engages in or provides services toa business that is a material competitor of Vivendi Universal S.A., the Companyor any of their respective affiliates; provided, however, that thecircumstances described in Section 6(a)(ii)(C) above shall not constitute Causeunless Executive fails to cure such circumstances
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within twenty days following receipt by Executive of written notice from theCompany describing such competitive activity in reasonable detail.
     (iii) If Executive’s employment is terminated by the Company for Cause, orif Executive resigns without Good Reason, Executive shall be entitled toreceive;
     (A) the Salary and Perquisites through the date of termination;
     (B) reimbursement for any unreimbursed business expenses properlyincurred by Executive in accordance with the Company’s policy prior to the dateof Executive’s termination; and
     (C) such Employee Benefits, if any, to which Executive may be entitled(the amounts described in clauses (A) through (C) hereof being referred to asthe “Accrued Rights”).
     Following such termination of Executive’s employment by the Company forCause or resignation by Executive without Good Reason, except as set forth inthis Section 6(a)(iii), as well as Sections 7, 9(j) and 9(k), Executive shallhave no further rights to any compensation or any other benefits under thisAgreement.
     b. Disability or Death.
     (i) The Employment Term and Executive’s employment hereunder shallterminate upon Executive’s death and may be terminated by the Company uponExecutive’s inability, by reason of any physical or mental impairment, tosubstantially perform the significant aspects of his regular duties, which inability has lasted for sixconsecutive months and is reasonably expected to be permanent (such incapacityis hereinafter referred to as “Disability”). Any question as to the existenceof the Disability of Executive as to which Executive and the Company cannotagree shall be determined in writing by a qualified independent physicianmutually acceptable to Executive and the Company. If Executive and the Companycannot agree as to a qualified independent physician, each shall appoint such aphysician and those two physicians shall select a third who shall make suchdetermination in writing. The determination of Disability made in writing tothe Company and Executive shall be final and conclusive for all purposes ofthis Agreement.
     (ii) Upon termination of Executive’s employment hereunder for eitherDisability or death, Executive or Executive’s estate (as the case may be) shallbe entitled to receive the Accrued Rights. Following Executive’s termination ofemployment due to death or Disability, except as set forth in this Section6(b)(ii), as well as Sections 7, 9(j) and 9(k). Executive shall have no furtherrights to any compensation or any other benefits under this Agreement.
     c. By the Company without Cause or Resignation by Executive for GoodReason.
     (i) The Employment Term and Executive’s employment hereunder may beterminated by the Company without Cause (other than by reason of death orDisability) or by Executive’s resignation for Good Reason.
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     (ii) For purposes of this Agreement, “Good Reason” shall mean theoccurrence of any of the following without Executive’s express writtenapproval, other than due to Executive’s death or Disability: (A) any decreasein the Salary, (B) any diminution in Executive’s title or reportingrelationship, or substantial diminution in duties or responsibilities, (C) anyrelocation of Executive’s principal place of business outside of the Borough ofManhattan, New York City, other than reasonable travel and travel to and fromParis as required to perform Executive’s duties hereunder, provided, however,that Executive shall have six months from the time Executive first becomesaware of the existence of Good Reason to give notice of his resignation forGood Reason.
     (iii) If Executive’s employment is terminated by the Company without Cause(other than by reason of death or Disability) or if Executive resigns for GoodReason, Executive shall be entitled to receive the following payments andbenefits:
     (A) the Accrued Rights;
     (B) a lump-sum payment equal to the total amount of Salary that Executivewould have received had the Employment Term continued through December 31,2004.
     Following Executive’s termination of employment by the Company withoutCause (other than by reason of Executive’s death or Disability) or byExecutive’s resignation for Good Reason, except as set forth in this Section6(c)(iii), as well as Sections 7, 9(j) and 9(k), Executive shall have nofurther rights to any compensation or any other benefits under this Agreement.
     d. Timing of Payment. All lump sum payments provided in this Section 6shall be made within fifteen days after the termination of Executive’semployment.
     e. Notice of Termination. Any purported termination of employment by theCompany or by Executive (other than due to Executive’s death) shall becommunicated by written Notice of Termination to the other party hereto inaccordance with Section 9(i) hereof. For purposes of this Agreement, a “Noticeof Termination” shall mean a notice which shall indicate the specifictermination provision in this Agreement relied upon and shall set forth inreasonable detail the facts and circumstances claimed to provide a basis fortermination of employment under the provision so indicated.
     7. Gross-Up
     a. In the event it shall be determined that any payment, benefit ordistribution (or combination thereof) by the Company, any of its affiliates, orone or more trusts established by the Company for the benefit of its employees,to or for the benefit of Executive (whether paid or payable or distributed ordistributable pursuant to the terms of this Agreement, or otherwise)(a“Payment”) is subject to the excise tax imposed by Section 4999 of the Code orany interest or penalties are incurred by Executive with respect to such excisetax (such excise tax, together with any such interest or penalties, hereinaftercollectively referred to as the “Excise Tax”), Executive shall be entitled toreceive an additional payment (a “Gross-Up Payment”) in an amount such thatafter payment by Executive of all taxes (including any interest or penaltiesimposed with respect to such taxes), including, without limitation, any incometaxes (and any interest and penalties imposed with respect thereto)and the Excise Tax imposed upon the Gross-Up Payment, Executive retains anamount of the Gross-Up Payment equal to the Excise Tax imposed upon thePayments.
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     b. All determinations required to be made under this Section 7,including whether and when a Gross-Up Payment is required and the amount ofsuch Gross-Up Payment and the assumptions to be utilized in arriving at suchdetermination, shall be made by a nationally recognized certified publicaccounting firm as may be designated by the Company (the “Accounting Firm”)which shall provide detailed supporting calculations both to the Company andExecutive within ten business days of the receipt of notice from Executivethat there has been a Payment, or such earlier time as is requested by theCompany and Executive; provided that for purposes of determining the amountof any Gross-Up Payment, Executive shall be deemed to pay federal income taxat the highest marginal rates applicable to individuals in the calendar yearin which any such Gross-Up Payment is to be made deemed to pay state andlocal income taxes at the highest effective rates applicable to individualsin the state or locality of Executive’s residence or place of employment inthe calendar year in which any such Gross-Up Payment is to be made, net ofthe maximum reduction in federal income tax at the highest marginal rates.All fees and expenses of the Accounting Firm shall be borne solely by theCompany. Any Gross-Up Payment, as determined pursuant to this Section 7,shall be paid by the Company to Executive (or to the appropriate taxingauthority on Executive’s behalf) when due. If the Accounting Firm determinedthat no Excise Tax is payable by Executive, it shall so indicate to Executivein writing. Any determination by the Accounting Firm shall be binding uponthe Company and Executive. As a result of the uncertainty in the applicationof Section 4999 of the Code, it is possible that the amount of the Gross-UpPayment determined by the Accounting Firm to be due to (or on behalf of)Executive was lower than the amount actually due (“Underpayment”). In theevent that the Company exhausts its remedies pursuant to Section 7(c) andExecutive thereafter is required to make a payment of any Excise Tax, theAccounting Firm shall determine the amount of the Underpayment that hasoccurred and any such Underpayment shall be promptly paid by the Company toor for the benefit of Executive.
     c. Executive shall notify the Company in writing of any claim by theInternal Revenue Service that, if successful, would require the payment bythe Company of any Gross-Up Payment. Such notification shall be given as soonas practicable but no later than ten business days after Executive isinformed in writing of such claim and shall apprise the Company of the natureof such claim and the date on which such claim is requested to be paid.Executive shall not pay such claim prior to the expiration of the thirty dayperiod following the day on which he gives notice to the Company (or suchshorter period ending on the date that any payment of taxes with respect tosuch claim is due). If the Company notifies Executive in writing prior to theexpiration of such period that it desires to contest such claim, Executiveshall (i) give the Company any information reasonably requested by theCompany relating to such claim, (ii) take such action in connection withcontesting such claim as the Company shall reasonably request in writing fromtime to time, including, without limitation, accepting legal representationwith respect to such claim by an attorney reasonably selected by the Company,(iii) cooperate with the Company in good faith in order to effectivelycontest such claim and (iv) permit the Company to participate in anyproceedings relating to such claim; provided, however, that the Company shallbear and pay directly all costs and expenses (including additional interestand penalties) incurred in connection with such contest and shall indemnifyand hold Executive harmless, on an after-tax basis, for any Excise Tax orincome tax (including interest and penalties with respect thereto) imposed asa result of such representation and payment of costs and expenses. Withoutlimitation of the foregoing provisions of this Section 7(c), the Companyshall control all proceedings taken in connection with such contest and, atits sole option, may pursue or
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forego any and all administrative appeals, proceedings, hearings andconferences with the taxing authority in respect of such claim and may, at itssole option, either direct Executive to pay the tax claimed and sue for arefund or contest the claim in any permissible manner, and Executive agrees toprosecute such contest to a determination before any administrative tribunal,in a court of initial jurisdiction and in one or more appellate courts, as theCompany shall determine; provided, further, that if the Company directsExecutive to pay such claim and sue for a refund, the Company shall advance theamount of such payment to Executive, on an interest-free basis, and shallindemnify and hold Executive harmless, on an after-tax basis, from any ExciseTax or income tax (including interest and penalties with respect thereto)imposed with respect to such advance or with respect to any imputed income withrespect to such advance: provided further, that if Executive is required toextend the statute of limitations to enable the Company to contest such claim,Executive may limit this extension solely to such contested amount. TheCompany’s control of the contest shall be limited to issues with respect towhich a Gross-Up Payment would be payable hereunder and Executive shall beentitled to settle or contest, as the case may be, any other issue raised by theInternal Revenue Service or any other taxing authority.
     d. If, after the receipt by Executive of an amount paid or advanced bythe Company pursuant to this Section 7, Executive becomes entitled to receive arefund with respect to a Gross-Up Payment, Executive shall (subject to theCompany’s complying with the requirements of Section 7(c)) promptly pay to theCompany the amount of such refund received (together with any interest paid orcredited thereon after taxes applicable thereto). If, after the receipt byExecutive of an amount advanced by the Company pursuant to Section 7(c), adetermination is made that Executive shall not be entitled to any refund withrespect to such claim and the Company does not notify Executive of its intentto contest such denial of refund prior to the expiration of thirty days aftersuch determination, then such advance shall be forgiven and shall not berequired to be repaid and the amount of such advance shall offset, to theextent thereof, the amount of the Gross-Up Payment required to be paid.
     8. Confidentiality.
     a. Executive acknowledges that Executive’s employment by the Company(which, for purposes of this Section 8, shall include its affiliates, includingVivendi, Universal S.A.) will, throughout the Employment Term, bring Executiveinto close contact with many confidential affairs of the Company, includinginformation about costs, profits, markets, sales, products, key personnel andother information not readily available to the public, and plans for futuredevelopment.
     b. In recognition of the foregoing, Executive covenants and agrees tokeep secret all confidential matters of the Company and to not intentionallydisclose such matters to anyone outside of the Company, either during or afterthe Employment Term, except with the Company’s prior written consent or in theperformance of Executive’s duties to the Company; provided that (A) Executiveshall have no such obligation to the extent such matters are or become publiclyknown other than as a result of Executive’s breach of Executive’s obligationshereunder, (B) Executive may, after giving prior notice to the Company to theextent reasonably practicable under the circumstances, disclose such matters tothe extent required by applicable laws or governmental regulations or judicialor regulatory processes and (C) Executive may disclose information with regardto the terms of this Agreement to his lawyers, financial advisors and immediatefamily members, and, if he does so, will instruct them to abode by thisconfidentiality covenant. In the event of his termination of employment,Executive shall use reasonable beet efforts to provide the
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Company, upon the Company’s reasonable request, a limited number ofspecifically identified confidential Company documents that he alone possesses.
     9. Miscellaneous.
     a. Governing Law/Jurisdiction. This Agreement shall be governed by andconstrued in accordance with the laws of the State of New York, without regardto conflicts of laws principles thereof, and all actions and proceedingsarising out of or relating to this Agreement shall be heard and determinedexclusively in any federal or state court of competent jurisdiction, located inthe Borough of Manhattan, New York.
     b. Entire Agreement/Amendments. This Agreement contains the entireunderstanding of the parties with respect to the employment of Executive by theCompany and its affiliates during the Employment Term. This Agreement may notbe altered, modified, or amended except by written instrument signed by theparties hereto.
     c. No Waiver. The failure of a party to insist upon strict adherence toany term of this Agreement on any occasion shall not be considered a waiver ofsuch party’s rights or deprive such party of the right thereafter to insistupon strict adherence to that term or any other term of this Agreement.
     d. Severability. In the event that any one or more of the provisions ofthis Agreement shall be or become invalid, illegal or unenforceable in anyrespect, the validity, legality and enforceability of the remaining provisionsof this Agreement shall not be affected thereby.
     e. Assignment. This Agreement shall not be assignable by Executive. ThisAgreement shall be assigned, if Executive consents, by the Company to a personor entity which is an affiliate or a successor in interest to substantially allof the business operations of the Company. Upon such assignment, the rights and obligations of the Companyhereunder shall become the rights and obligations of such affiliate orsuccessor person or entity.
     f. No Set Off/No Mitigation. The Company’s obligation to pay Executivethe amounts provide and to make the arrangements provided hereunder shall notbe subject to set-off, counterclaim or recoupment of amounts owed by Executiveto the Company or its affiliates. Executive shall not be required to mitigateany payments or benefits made or provided to Executive in connection with thetermination of his employment by seeking alternative employment, nor shall theCompany’s obligations to Executive be reduced by any compensation payable toExecutive following his termination of employment with the Company.
     g. Authorization of Agreement. All corporate action has been taken onthe part of the Company’s or its affiliates’ directors and shareholdersnecessary for the authorization of, execution of, delivery of, and theperformance of all obligations of the Company under, the Agreement. TheAgreement, when executed and delivered by the Company, and assuming the dueexecution and delivery by Executive, will constitute valid and legally bindingobligations of the Company, enforceable against the Company in accordance withits terms. Employee represents and warrants that entering into this Agreementdoes not, and that his performance under this Agreement will not, violate theprovisions of any employment, severance, consulting, termination, resignation,non-competition, non-solicitation, assignment of inventions or otherintellectual property, or confidentiality agreement or instrument to
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which Employee is a party, or any decree, judgment or order to which Employeeis subject, and that this Agreement constitutes a valid and binding obligationof Employee in accordance with its terms.
     h. Successors/Binding Agreement. This Agreement shall inure to thebenefit of and be binding upon personal or legal representatives, executors,administrators, successors, heirs, distributes, devisees and legatees.
     i. Notices. For the purposes of this Agreement, notices and all othercommunications provided for in this Agreement shall be in writing and shall bedeemed to have been duly given when delivered by hand or overnight courier orthree days after it has been mailed by United States registered mail, returnreceipt requested, postage prepaid (or similar method outside of the U.S.),addressed to the respective addresses set forth below, or to such other addressas either party may have provided to the other in writing in accordanceherewith, except that notice of change of address shall be effective only uponreceipt.    If to Vivendi Universal U.S. Holding Co.:    Vivendi Universal U.S. Holding Co. 375 Park Avenue New York, New York 10152 Attention: Daniel J. Losito, Esquire   If to Executive:
     To the most recent address of Executive set forth in the personnel recordof the Company.
     j. D&O Indemnification. The Company shall indemnify Executive to thefullest extent permitted by applicable law against damages in connection withhis status or performance of duties as an officer of the Company and shallmaintain and cover Executive under customary and appropriate directors andofficers liability insurance during the Employment Term and throughout theperiod of any applicable statute of limitations.
     k. Legal Fees and Expenses. The Company will reimburse Executive for alllegal fees and related expenses incurred in connection with, or arising out of,any dispute in respect of severance following his termination of employment, solong as either Executive and the Company agree on the basis for suchtermination being, or Executive prevails as to such termination being, otherthan for Cause or for Good Reason.
     l. Withholding Taxes. The Company may withhold from any amounts payableunder this Agreement such federal, state and local and foreign taxes as may berequired to be withheld pursuant to any applicable law or regulation.
     m. Counterparts. This Agreement may be signed in counterparts, each ofwhich shall be an original, with the same effect as if the signatures theretoand hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement asof September 25, 2002.      VIVENDI UNIVERSAL U.S. HOLDING CO.