Amendment to Amended and Restated Executive Employment Agreement - Farr



 Exhibit 10.23 
  
 AMENDMENT 
 TO 
 AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT 
  
 WHEREAS, Mattel, Inc. (“Mattel”) and Kevin M. Farr (the “Executive”) have entered
into an Amended and Restated Executive Employment Agreement dated March 28, 2000, as amended April 6, 2000, as amended July 20, 2000, as amended March 6, 2002, as amended March 17, 2005 (the “Agreement”);

  
 WHEREAS, pursuant to Section 12 of the Agreement,
Mattel and the Executive may amend the Agreement pursuant to a written instrument executed by the Executive and Mattel; and 
  
 WHEREAS, as a result of the enactment in 2004 of Section 409A of the Internal Revenue Code of 1986, as amended from time to time (the
“Code”), the Company and the Executive desire to amend the Agreement to evidence the intention that the terms of the Agreement be exempt from or comply with Section 409A of the Code. 
  
 NOW, THEREFORE, pursuant to Section 12 of the Agreement, the
Agreement is hereby amended, effective as of December 31, 2008, as follows: 
  
 1. Capitalized Terms. Capitalized terms that are not defined in this Amendment shall have the meanings ascribed thereto in the Agreement. 
  
 2. The first sentence of Section 4(a) of the Agreement shall be amended by adding the following proviso at the end
thereof to read as follows: 
  
 “;
provided, further, that all such payments in respect of the Executive’s death pursuant to this Section 4(a) shall be paid to the Executive’s estate no later than March 15th of the calendar year following the calendar year
in which the Executive dies, including, if applicable, a final lump sum payment on March 15th (or the last business day immediately prior thereto) of the calendar year following the Executive’s death, such that the aggregate of such
payments in respect of the continued Base Salary equals 50% of the Executive’s annual Base Salary at the rate in effect at the time of death.” 
  
 3. The first paragraph of Section 4(c) of the Agreement shall be amended in its entirety to read as follows: 
  
 “(c) Good Reason. The Executive may terminate
his employment for Good Reason. For purposes of this Agreement, “Good Reason” means the good faith determination by the Executive that any one or more of the 








 
following have occurred, provided that (i) the Executive provides Mattel with written notice of the Good Reason event within ninety
(90) days of the initial existence of such event, (ii) such event is not remedied by Mattel within thirty (30) days following the delivery of written notice of such Good Reason event and (iii) the Executive actually terminates
his employment within two (2) years following the initial existence of such Good Reason event:” 
  
 4. Section 4(c)(i) of the Agreement shall be amended in its entirety to read as follows: 
  
 “(i) without the express written consent of the
Executive, any material diminution in any of the duties, authority, reporting structure or responsibilities of the Executive as contemplated by Section 2 of this Agreement;” 
  
 5. Section 4(c)(iii) of the Agreement shall be amended in its entirety to read as follows: 
  
 “(iii) any other action or inaction that constitutes a
material breach of this Agreement by Mattel;” 
  
 6.
Section 4(c)(iv) of the Agreement shall be amended in its entirety to read as follows: 
  
 “(iv) any failure by Mattel to obtain the assumption and agreement to perform this Agreement by a successor as contemplated by
Section 11(b), except where such assumption and agreement occurs by operation of law; or” 
  
 7. Section 4(d)(i) of the Agreement shall be amended in its entirety to read as follows: 
  
 “(i) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 35% or more of either (i) the then outstanding shares of common stock of Mattel (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of Mattel
entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this 

  

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subsection (i), the following shall not constitute a Change of Control: (a) any acquisition directly from Mattel, (b) any acquisition by
Mattel or any corporation controlled by Mattel, (c) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Mattel or any corporation controlled by Mattel, (d) any acquisition by a Person of 35% or more
of either the Outstanding Company Common Stock or the Outstanding Company Voting Securities as a result of an acquisition of common stock of Mattel by Mattel which, by reducing the number of shares of common stock of Mattel outstanding, increases
the proportionate number of shares beneficially owned by such Person to 35% or more of either the Outstanding Company Common Stock or the Outstanding Company Voting Securities; provided, however, that if a Person shall become the beneficial
owner of 35% or more of either the Outstanding Company Common Stock or the Outstanding Company Voting Securities by reason of a share acquisition by Mattel as described above and shall, after such share acquisition by Mattel, become the beneficial
owner of any additional shares of common stock of Mattel, then such acquisition shall constitute a Change of Control or (e) any acquisition pursuant to a transaction which complies with clauses (a), (b) and (c) of
subsection (iii) of this Section 4(d); or” 
  
 8.
Section 4(d)(iii)(b) of the Agreement shall be amended in its entirety to read as follows: 
  
 “(b) no Person (excluding any employee benefit plan (or related trust) of Mattel or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 35% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then
outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination and” 
  
 9. The final paragraph of Section 4(d) of the Agreement shall be deleted in its entirety and replaced with the following sentence: 
  
 “As soon as practicable after a Change of Control,
Mattel shall notify the Executive that a Change of Control has occurred.” 
  

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 10. The final sentence of Section 5(a) of the Agreement shall be amended in its entirety to read as
follows: 
  
 “As of the Date of Termination,
the Executive’s family shall be entitled to continued healthcare coverage as in effect from time to time on the same terms and conditions as such insurance is available to active employees of Mattel and financial counseling benefits through the
vendor engaged and paid for by Mattel until the third anniversary of the Date of Termination.” 
  
 11. The first paragraph of Sections 5(d)(i) and 5(e)(i) of the Agreement shall be amended in their entirety to read as follows: 
  
 “(i) Mattel shall pay to the Executive in a lump sum in
cash on the 55th day after the Date of Termination (or the first business day thereafter) the aggregate of the following amounts:” 
  
 12. Sections 5(d)(i)(C), 5(e)(i)(B) and 5(e)(i)(C) of the Agreement shall be amended by adding the phrase, “subject to
Section 5(f),” at the beginning of such provisions. 
  
 13. Sections 5(d)(iv) and 5(e)(iii) of the Agreement shall be amended in their entirety to read as follows: 
  
 “(iv) 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 during the Employment Period which would have been payable under Section 3(e) if his employment had not terminated.” 
  
 14. Sections 5(d)(v)(I) and 5(e)(iv)(I) of the Agreement shall be amended in their entirety to read as follows:

  
 “(A) a monthly amount equal to the
applicable COBRA premium for the level of coverage that the Executive has as of the Date of Termination (i.e., single, single plus one, or family) under Mattel’s medical, dental, prescription drug and vision care group insurance as in effect
from time to time , which payment shall be paid in advance on the first payroll day of each month, commencing with the month immediately following the Executive’s Date of Termination; provided, however, that any such payments otherwise
payable to the Executive within the first 54 days following the Date of Termination shall not be paid on the 

  

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otherwise scheduled payment date but shall instead accumulate and be and on the 55th day following the Date of Termination. During such period, subject to
the Executive’s continued payment of premiums, Mattel will make available to the Executive and the Executive’s eligible dependents, at the Executive’s cost (in an amount equal to the COBRA premium cost therefor), coverage under
Mattel’s medical, dental, prescription drug and vision care group insurance (which shall be concurrent with any health care continuation benefits to which the Executive or his eligible dependents are entitled under COBRA);” 
  
 15. Sections 5(d)(iv)(V) and 5(e)(iv)(V) of the Agreement shall be amended in
their entirety to read as follows: 
  
 “(V)
membership in one city or country club and related expenses. Mattel shall cause the membership to be transferred to the Executive at no cost to the Executive, provided that such transfer shall occur no later than March 15th of the
calendar year following the calendar year in which the Date of Termination occurs.” 
  
 16. Sections 5(d)(vi) and 5(e)(v) of the Agreement shall be amended by adding the following proviso at the end thereof to read as follows: 
  
 “provided, however, that such credit for additional years of service and age shall not
accelerate the time of payment under such arrangements in a manner that would result in the imposition of tax, interest and/or penalties upon the Executive under Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as
amended (the “Code”).” 
  
 17. The first paragraph
of Section 5(e) of the Agreement shall be amended in its entirety to read as follows: 
  
 “(e) Change of Control. Except as provided below, if, within 18 months following a Change of Control, (x) the
Executive terminates his employment for Good Reason, (y) Mattel or the surviving entity terminates the Executive’s employment other than for Cause or Disability or (z) the Executive terminates his employment for any reason within the
30-day period immediately following the six (6) month anniversary of a Change of Control (the “Window Period”):” 
  
 18. A new Section 5(f) shall be added to the Agreement to read as follows: 
  

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 “(f) Limitation on Certain Payments. Notwithstanding the provisions of
Sections 5(d) or 5(e), in the event of a Change of Control, the Executive’s right to receive the lump sum cash payment following a termination of employment pursuant to Section 5(d)(i)(C), 5(e)(i)(B) or 5(e)(i)(C) shall terminate on
March 15th of the calendar year following the calendar year in which the Window Period commenced, and no such amount shall be payable thereafter. Subject to the preceding sentence, if a Change of Control occurs during the Employment Period,
then (regardless of when the Employment Period would otherwise end under any other provision of this Agreement) Section 5(e), and all other parts of this Agreement which relate to Section 5(e), shall continue to apply to the Executive for
18 months after the Change of Control.” 
  
 19. A new
Section 5(g) shall be added to the Agreement to read as follows: 
  
 “(g) Effect of Deferral Elections. If any payment payable pursuant to Section 5 or Section 13 is subject to a valid deferral election under the terms of another plan or arrangement maintained by
Mattel, the payment of such amount shall be in accordance with the provisions of such deferred compensation plan or arrangement (including the Executive’s deferral elections regarding the form and timing of such deferrals).” 
  
 20. The final sentence of Section 9 of the Agreement shall be amended in
its entirety to read as follows: 
  
 “The
Executive shall not be entitled to any severance payments or other benefits to which the Executive would otherwise be entitled under subsections (b), (d) and (e) of Section 5 of this Agreement unless (i) the Executive
complies with the covenants set forth in Section 10 and (ii) the Executive executes the Release and such Release becomes irrevocable within fifty-five (55) days following the Executive’s Date of Termination.” 
  
 21. The second sentence of Section 14(a) of the Agreement shall be
amended in its entirety to read as follows: 
  
 “Notwithstanding the foregoing provisions of this Section 14(a), if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Parachute Value of Payments (as defined below) does not exceed 110% of
the Safe Harbor Amount (as defined below), then no Gross-Up 

  

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Payment shall be made to the Executive and the Agreement Payments (as defined below), in the aggregate, shall be reduced (but not below zero) such that the
Parachute Value of all Payments equals the Safe Harbor Amount.” 
  
 22. Section 14(a) of the Agreement shall be amended by adding the following language at the end thereof to read as follows: 
  
 “If a reduction in the Agreement Payments is necessary so that the Parachute Value of all Payments equals the Safe Harbor Amount and
none of the Payments is a “deferral of compensation” within the meaning of and subject to Section 409A (“Nonqualified Deferred Compensation”), then the reduction shall occur in the manner the Executive elects in writing
prior to the date of payment. If any Payment constitutes Nonqualified Deferred Compensation or the Executive fails to elect an order, then the reduction shall occur in the following order: (i) cancellation of acceleration of vesting on any
equity awards for which the exercise price exceeds the then fair market value of the underlying equity; (ii) reduction in the benefits described in Section 5(e)(iv) (with such reduction being applied to the benefits in the manner having
the least economic impact to the Executive and, to the extent the economic impact is equivalent, such benefits shall be reduced in the reverse order of when the benefits would have been provided to the Executive, that is, benefits payable later
shall be reduced before benefits payable earlier); (iii) reduction of cash payments (with such reduction being applied to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before
earlier payments); (iv) cancellation of acceleration of vesting of equity awards not covered under (i) above; provided, however, that in the event that acceleration of vesting of equity awards is to be cancelled, such acceleration
of vesting shall be cancelled in the reverse order of the date of grant of such equity awards, that is, later equity awards shall be canceled before earlier equity awards.” 
  
 23. The second sentence of Section 14(b) of the Agreement shall be amended by adding the following proviso at the end
thereof to read as follows: 
  
 “provided, however, that any Gross-Up Payment shall in all events be paid no later than the end of the Executive’s taxable year immediately following the Executive’s taxable 

  

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year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue
Service or any other applicable taxing authority or, in the case of amounts relating to a claim described in Section 14(c) that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other
taxes, the calendar year in which the claim is finally settled or otherwise resolved.” 
  
 24. The third sentence of Section 14(b) of the Agreement shall be amended in its entirety to read as follows: 
  
 “Any determination by the Accounting Firm shall be binding upon Mattel and the Executive, including any determination by the
Accounting Firm of the amount that equals 110% of the Safe Harbor Amount and any amount of cutback in benefits necessary because Payments are calculated to have a Parachute Value between 100% and 110% of the Safe Harbor Amount.” 
  
 25. The second sentence of the proviso following Section 14(c)(iv) of
the Agreement shall be amended in its entirety to read as follows: 
  
 “Without limitation on the foregoing provisions of this Section 14(c), Mattel shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole option, either pay the tax claimed to the appropriate taxing authority on behalf of the Executive and
direct the Executive to sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as Mattel shall determine; provided, however, that if Mattel pays such claim and directs the Executive to sue for a refund, Mattel shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax
or income tax (including interest or penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment; and further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Executive with respect to 

  

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which such contested amount is claimed to be due is limited solely to such contested amount.” 
  
 26. Section 14(d) of the Agreement shall be amended in its entirety to
read as follows: 
  
 “(d) If, after the
receipt by the Executive of a Gross-Up Payment or payment by Mattel of an amount on the Executive’s behalf pursuant to Section 14(c), the Executive becomes entitled to receive any refund with respect to the Excise Tax to which such
Gross-Up relates or with respect to such claim, the Executive shall (subject to Mattel’s complying with the requirements of Section 14(c)) promptly pay to Mattel the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after payment by Mattel of an amount on the Executive’s behalf pursuant to Section 14(c), a determination is made that the Executive shall not be entitled to any refund with respect to such
claim and Mattel does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then the amount of such payment shall offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid.” 
  
 27.
Section 14(e) of the Agreement shall be amended in its entirety to read as follows: 
  
 “(e) Notwithstanding any other provision of this Section 14, Mattel may withhold and pay over to the Internal Revenue Service or
any other applicable taxing authority for the benefit of the Executive all or any portion of the Gross-Up Payment that it determines in good faith that it is or may be in the future required to withhold, and the Executive hereby consents to such
withholding.” 
  
 28. The definition of “Agreement
Payment” in Section 14(f) shall be amended by striking the phrase “and any payment relating to the Loan Agreement.” 
  
 29. A new Section 16 shall be added to the Agreement to read as follows: 
  
 “16. Section 409A. 
  
 (a) It is the parties’ intention that the reimbursements, payments and benefits to
which the Executive could become entitled in connection with the Executive’s employment under this Agreement be exempt 

  

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from or comply with Section 409A and the regulations and other guidance promulgated thereunder. The provisions of this Section 16 shall qualify and
supersede all other provisions of this Agreement as necessary to fulfill the foregoing intention. If the Executive or Mattel believes, at any time, that any of such reimbursement, payment or benefit is not exempt or does not so comply, the Executive
or Mattel will promptly advise the other party and will negotiate reasonably and in good faith to amend the terms of such arrangement such that it is exempt or complies (with the most limited possible economic effect on the Executive and on Mattel)
or to mitigate any additional tax, interest and/or penalties that may apply under Section 409A if exemption or compliance is not practicable. Mattel agrees that it will not, without the Executive’s prior written consent, knowingly take any
action, or knowingly refrain from taking any action, other than as required by law, that would result in the imposition of tax, interest and/or penalties upon the Executive under Section 409A, unless such action or omission is pursuant to the
Executive’s written request. 
  
 (b) To the extent applicable, each and every payment to be made pursuant to Section 5 or Section 13 of this Agreement shall be treated as a separate payment and not as one of a series of payments treated as a single payment for
purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii). 
  
 (c) If the Executive is a “specified employee” (determined by Mattel in accordance with Section 409A and
Treasury Regulation Section 1.409A-3(i)(2)) as of the date that the Executive experiences a “separation from service” with Mattel, as defined for purposes of Section 409A (a “Separation from Service”), and if any
reimbursement, payment or benefit to be paid or provided under this Agreement or otherwise both (i) constitutes Nonqualified Deferred Compensation and (ii) cannot be paid or provided in a manner otherwise provided herein without subjecting
the Executive to additional tax, interest and/or penalties under Section 409A, then any such reimbursement, payment or benefit that is payable during the first six (6) months following the Date of Termination shall be paid or provided to
the Executive in a lump sum cash payment to be made on the earlier of (x) the Executive’s death and (y) the first business day of the 

  

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seventh (7th) month immediately following the Executive’s Separation from Service. 
  
 (d) Except to the extent any reimbursement, payment or benefit to be paid or provided under
this Agreement does not constitute Nonqualified Deferred Compensation, (i) the amount of expenses eligible for reimbursement or the provision of any in-kind benefit (as defined in Section 409A) to the Executive during any calendar year
will not affect the amount of expenses eligible for reimbursement or provided as in-kind benefits to the Executive in any other calendar year (subject to any lifetime and other annual limits provided under Mattel’s health plans), (ii) the
reimbursements for expenses for which the Executive is entitled shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred and (iii) the right to payment or reimbursement
or in-kind benefits may not be liquidated or exchanged for any other benefit. 
  
 (e) Any reimbursement, payment or benefit to be paid or provided under Section 5 hereof or otherwise to be paid or
provided due to a Separation from Service that is exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9)(v) will be paid or provided to the Executive only to the extent the expenses are not incurred or the benefits
are not provided beyond the last day of the Executive’s second taxable year following the Executive’s taxable year in which the Separation from Service occurs; provided, however that Mattel shall reimburse such expenses no later
than the last day of the third taxable year following the Executive’s taxable year in which the Executive’s Separation from Service occurs. 
  
 (f) It is the parties’ intention that the definition of Good Reason and the separation-from-service procedures
specified in Section 4(c) hereof satisfy the conditions set forth in Treasury Regulation Section 1.409A-1(n)(2) for a termination for Good Reason to be treated as an “involuntary separation from service” for purposes of
Section 409A. 
  
 (g)
Subject to Section 9, any reimbursement, payment or benefit to be paid or provided under this Agreement that constitutes Nonqualified Deferred Compensation due upon a termination of 

  

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employment shall be paid or provided to the Executive only in the event of a Separation from Service.” 
  
 30. Ratification and Confirmation. Except as specifically
amended hereby, the Agreement is hereby ratified and confirmed in all respects and remains in full force and effect. 
  
 31. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of California, without
reference to principles of conflict of laws. 
  
 32.
Headings. Section headings are for convenience only and shall not be considered a part of this Amendment. 
  
 33. Counterparts. This Amendment may be executed (including by facsimile transmission confirmed promptly thereafter by actual delivery of
executed counterparts) in counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. 
  

(Signature Page Follows) 
  

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 IN WITNESS WHEREOF, Mattel and the Executive have caused this Amendment to be executed, effective
as of December 31, 2008. 
  

			
	MATTEL, INC.
	
	/s/ ROBERT A. ECKERT
	Name:	 	Robert A. Eckert
	Title:	 	Chairman & CEO
		
	Dated:	 	December 19, 2008
	
	EXECUTIVE
	
	/s/ KEVIN M. FARR
	Name:	 	Kevin M. Farr
		
	Dated:	 	December 22, 2008