**EXHIBIT 10.33**

 

EMPLOYMENT AGREEMENT 

 

This Employment Agreement (the “Agreement”) is entered into by and between Gemstar-TV Guide International, Inc. (the “Company”) and Doug Macrae(“Employee”), as of the 22nd day of December 2003 (“Effective Date”). 

 

I. EMPLOYMENT

 

The Company hereby employs Employee and Employee hereby accepts such employment, upon the terms and conditions hereinafter set forth, from December 22, 2003(“Employment Date”), to and including January 1, 2007 (the “Term”). This Agreement is subject to renewal only as set forth in Section VI below. In the event the Agreement is renewed pursuant to Section VI below, reference to theTerm in this Agreement shall also refer to such renewal term. 

 

II. DUTIES

 

A. Employeeshall serve during the course of his employment as President of the TV Guide Consumer Electronics Group and shall have such other duties and responsibilities as are consistent with those generally performed by the president of a company as the ChiefExecutive Officer of the Company shall determine from time to time. The Company acknowledges that the TV Guide Consumer Electronics Group is an operating division of the Company, provided however that, subject to the provisions of Section IV-Cbelow, the Company retains absolute discretion to reorganize the Company from time to time and that nothing in this Agreement shall in any way affect or limit such discretion. 

 

B. Employee agrees to devote substantially all of his time, energy and ability to the business of the Company. Nothingherein shall prevent Employee, upon approval of the Board of Directors of the Company, from serving as a director or trustee of other corporations or businesses which are not in competition with the business of the Company or in competition with anypresent or future affiliate of the Company; provided, however, that no approval of the Board of Directors of the Company shall be required for Employee to (i) continue to serve as a director of any company of which he was a director as of theEffective Date so long as such company is not in competition with the Company or (ii) serve as a director or trustee of any non-profit organization. Nothing herein shall prevent Employee from (i) investing in real estate for his own account, (ii)becoming a partner or a stockholder in any corporation, partnership or other venture not in competition with the business of the Company or in competition with any present affiliate of the Company, or (iii) becoming up to a 5% stockholder in anypublicly held corporation whether or not in competition with the business of the Company or in competition with any present or future affiliate of the Company. 

 

C. For the Term of this Agreement, Employee shall report to the Chief Executive Officer of the Company. 

 

III. COMPENSATION

 

A. Salary: The Company will pay to Employee a base salary at theannual rate of $600,000. Such salary shall be earned monthly and shall be payable in periodic installments no less frequently than monthly in accordance with the Company’s customary practices. Amounts payable shall be reduced by standardwithholding and other authorized deductions. Annual increases shall be at of the Company’s sole discretion but in line with those of the Presidents of the TV Guide Publishing and Television Groups, adjusting for performance. 

 

B. Annual Bonus: Employee shall be paid an annual bonus at theCompany’s sole discretion based upon the performance of the TV Guide Consumer Electronics Group and of Gemstar-TV Guide International, Inc. with a target bonus equal to the average of the target bonuses measured in dollars of the Presidents ofthe TV Guide Publishing and Television Groups. 

C. Stock Options: The Company shall grant to Employee, subject to Compensation Committee approvaland the vesting provisions described in this Agreement, nonqualified stock options (the “Options”) under the Company’s 1994 Stock Incentive Plan, as amended (the “Plan”), to acquire 350,000 shares of the Company’sCommon Stock (“Common Shares”). Each Option shall represent the right to acquire one (1) Common Share. Subject to earlier termination of the Options as described below, 22,500 Options shall vest in full and become immediately exercisableon the first of day of each quarter during the Term of this Agreement. The Options shall expire on the first to occur of (i) the close of business on the last business day of the Company coinciding with or immediately preceding the day before thetenth anniversary of the Effective Date, (ii) the termination of the Options pursuant to Section 4.2 of the 1994 Plan, or (iii) the termination of the Options in connection with a termination of Employee’s employment with the Company ascontemplated by the Option Agreement (as such term is defined below) and as modified by Section IV-E-1 and IV-E-3 below. The exercise price per Common Share under each Option shall equal the closing price for a Common Share on the NASDAQ NationalMarket Reporting System on the day which this Agreement is approved by the Compensation Committee (which shall be the grant date of the Options). The Options shall be evidenced by a written option agreement in the form attached hereto as Exhibit A(the “Option Agreement”) and shall, except as expressly provided in this Section III-G and in Sections IV-E-1 and IV-E-3 below, be subject to the terms and conditions set forth in the Plan and the Option Agreement. Additional annual Optiongrants with a target equal to the target of the President of the TV Guide Television Group may be made at Company’s sole discretion, subject to Compensation Committee approval. 

 

D. Vacation: Employee shall be entitled to four (4) weeks paid vacation each year which shall be taken in accordancewith the policies and practices as in effect generally with respect to other peer executives of the Company. 

 

IV. TERMINATION 

 

A. Death or Disability: Employee’s employment shall terminate automatically upon Employee’s death. If a Disability of Employee hasoccurred (pursuant to the definition of Disability set forth below), the Company may give to Employee written notice of its intention to terminate Employee’s employment. In such event, Employee’s employment with the Company shall terminateeffective on the 120th day after receipt of such notice by Employee, provided that, within the 120 days after such receipt, Employee shall not have returned to full-time performance of his duties. For purposes of this Agreement,“Disability” shall mean either a physical or mental impairment which substantially limits a major life activity of Employee and which renders Employee unable to perform the essential functions of his position, even with reasonableaccommodation which does not impose an undue hardship on the Company for an aggregate of 120 days in any twelve-month period. The determination of disability under the preceding sentence, shall be based upon information supplied by Employee and/orhis medical personnel, as well as information from medical personnel (or others) selected by the Company. In the event Employee’s health care provider and the Company do not agree as to whether Employee has a Disability, Employee and theCompany shall appoint a third-party qualified physician who shall evaluate Employee and provide a determination of whether Employee has a Disability. 

 

B. Cause: The Company may terminate Employee’s employment for “Cause” in the event the Employee has engaged in or committed: willfulmisconduct; gross negligence; theft, or fraud; any willful act that is reasonably likely to and which does in fact have the effect of materially injuring the reputation, business or a business relationship of the Company; and material breach of anymaterial term of this Agreement. In the event the Company determines that Cause for termination exists based upon willful misconduct or gross negligence, the Company shall give Employee fourteen (14) days prior written notice of such terminationwhich notice shall include reasonable detail as to the ground for such termination. If such ground is curable, Employee shall be given thirty (30) days from the date of such notice to cure such ground for termination for Cause. After the expirationof any such cure period, the Company shall make a good faith determination as to whether Employee has cured such ground for termination for Cause and shall give written notice thereof to the Employee which, in the case of a determination thatEmployee has failed to cure, shall include reasonable detail as to why Employee’s efforts to cure were not adequate. Notwithstanding anything to the contrary set forth in this Section IV-B, the Company shall not have the right to terminate theEmployee for “Cause” after the expiration of six (6) months from discovery by the Company of the conduct or circumstances that are the basis for such termination. 

 

C. Good Reason: Employee may terminate employment for Good Reason. For purposes of this Agreement, “GoodReason” shall mean any of the following: (i) the Company requires Employee to relocate his principal office more than 25 miles of Weston, Massachusetts area without Employee’s consent; (ii) the Company assigns Employee to a position otherthan President of the TV Guide Consumer Electronics Group without Employee’s consent; (iii) the Company requires Employee to report directly to anyone other than the Chief Executive Officer without Employee’s consent; (iv) the Companysubstantially diminishes Employee’s duties or responsibilities; (v) the Company fails to pay any amounts owed to Employee when due or otherwise materially breaches any material term of this Agreement; (vi) the occurrence of a Change in Controlof the Company. For purposes of this Agreement, a “Change in Control” shall mean either (1) the accumulation or acquisition of a majority of the Common Shares of the Company by any person or entity which, as of the Effective Date, ownedless than ten percent (10%) of the Common Shares or (2) the purchase of substantially all of the assets of the Company by any person or entity which, as of the Effective Date, owned less than ten percent (10%) of the Common Shares. Beforeterminating his employment with Good Reason under subsections (i) (vi), Employee shall give the Company written notice of his intent to terminate for Good Reason and the basis therefor, 

and the Company shall have thirty (30) days to cure (the “Cure Period”) the Good Reason. At the end the CurePeriod, Employee shall determine in good faith determination as to whether the Company has cured such Good Reason. If Employee determines that the Company has failed to cure the Good Reason within the Cure Period, Employee may terminate hisemployment and this Agreement upon an additional ten (10) days’ written notice which notice shall include reasonable detail as to why the Company’s efforts to cure such Good Reason were inadequate. In the event Employee intends toterminate his employment upon a Change in Control, Employee must give the Company written notice of such termination within six (6) months days after the Change in Control occurrence. For all purposes under this Agreement, any termination byEmployee with Good Reason shall be treated as a termination without Cause and Employee shall be entitled to the payments and benefits set forth in Section IV-E-3 pursuant to its terms. 

 

D. Other than Cause or Death or Disability: The Company may terminate Employee’s employment at any time, with orwithout cause, upon ninety (90) days’ written notice. 

 

E.Obligations of the Company Upon Termination: 

 

1.Death or Disability: If Employee’s employment is terminated by reason of Employee’s Death or Disability, this Agreement shall terminate without further obligations to Employee or his legal representatives under this Agreement, otherthan for (a) payment of the sum of (i) Employee’s annual base salary through the date of termination to the extent not theretofore paid, (ii) Employee’s pro rata bonus (based on number of days elapsed) for the calendar year during whichthe Employee’s Death or Disability occurs, and (iii) any compensation previously deferred by Employee (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (thesum of the amounts described in clauses (i), (ii), and (iii) shall be hereinafter referred to as the “Accrued Obligations”), which shall be paid to Employee or his estate or beneficiary, as applicable, in a lump sum in cash within 30 daysof the date of termination; and (b) payment to Employee or his estate or beneficiary, as applicable, any amounts due pursuant to the terms of any applicable welfare benefit plans. Upon a termination as a result of Death or Disability, the Options,and any other options granted to Employee by the Company during his employment, to the extent outstanding and not previously vested at the time of such termination, shall thereupon vest in full and shall continue to be exercisable for a period ofthree (3) years after such termination. 

 

2. Cause: IfEmployee’s employment is terminated by the Company for Cause, this Agreement shall terminate without further obligations to Employee other than for the timely payment of Accrued Obligations. If it is subsequently determined that the Company didnot have Cause for termination under Section IV-B, then the Company’s decision to terminate shall be deemed to have been made under Section IV-D and the amounts payable under Section IV-E-3 shall be the only amounts Employee may receive for histermination. 

 

3. Other than Cause or Death orDisability: If the Company terminates Employee’s employment for other than Cause or Death or Disability, or if Employee terminates his employment with Company for Good Reason, this Agreement shall terminate without further obligations toEmployee other than (a) the immediate payment of Accrued Obligations; (b) upon Employee’s execution, and non-revocation, of a release substantially in the form attached hereto as Exhibit B, payment to Employee of a lump sum equal to the greaterof (i) eighteen months of his then current salary, or (ii) the balance of base salary payments for all remaining years of this Agreement; and (c) payment to Employee of any remaining guaranteed bonus, less standard withholdings and other authorizeddeductions. Furthermore, if the Company terminates Employee’s employment for other than Cause, Death or Disability, or if Employee terminates his employment with Company for Good Reason, the Options, and any other options granted to Employee bythe Company during his employment, to the extent outstanding and not previously vested at the time of such termination, shall thereupon vest in full and shall continue to be exercisable for a period of three (3) years after such termination.

 

4. Termination By Employee Other than for Good Reason:Employee may terminate his employment with Company upon 30 days’ written notice for any reason other than Good Reason, Death or Disability. For all purposes under this Agreement, any such termination by Employee shall be treated as atermination for Cause. 

 

5. Exclusive Remedy; Mitigation:Employee agrees that the payments contemplated by this Agreement shall constitute the exclusive and sole remedy for any termination of his employment and Employee covenants not to assert or pursue any other remedies, at law or in equity, withrespect to any termination of employment. The Company agrees that the payments contemplated by the Agreement shall not be reduced by any compensation Employee may receive as a result of employment by any other person or entity after the terminationof his employment. 

 

V. ARBITRATION

 

Any controversy arising out of or relating to this Agreement, its enforcementor interpretation, or because of an alleged breach, default, or misrepresentation in connection with any of its provisions, or any other controversy arising out of Employee’s employment, including, but not limited to, any state or federalstatutory claims, shall be submitted to arbitration in Los Angeles, California, before a sole arbitrator selected from the American Arbitration Association (“AAA”), and shall be conducted in accordance with the AAA rules for the resolutionof Employment Disputes as the exclusive forum for the resolution of such dispute; provided, however, that provisional injunctive relief may, but need not, be sought by either party to this Agreement in a court of law while arbitration proceedingsare pending, and any provisional injunctive relief granted by such court shall remain effective until otherwise modified by the Arbitrator; provided, however, that such provisional injunctive relief shall be sought in aid and in advance of thearbitration only. Final resolution of any dispute through arbitration may include any remedy or relief which the Arbitrator deems just 

and equitable, including any and all remedies provided by applicable state or federal statutes. At the conclusion of thearbitration, the Arbitrator shall issue a written decision that sets forth the essential findings and conclusions upon which the Arbitrator’s award or decision is based. Any award or relief granted by the Arbitrator hereunder shall be final andbinding on the parties hereto and may be enforced by any court of competent jurisdiction. The parties acknowledge and agree that they are hereby waiving any rights to trial by jury in any action, proceeding or counterclaim brought by either of theparties against the other in connection with any matter whatsoever arising out of or in any way connected with this Agreement or Employee’s employment. Employee and Company agree that in any proceeding to enforce the terms of this Agreement,the prevailing party shall be entitled to its or his reasonable attorneys’ fees and costs (including forum costs associated with the arbitration) incurred by it or him in connection with resolution of the dispute in addition to any other reliefgranted. 

 

VI. RENEWAL. 

 

This Agreement shall automatically renew for one additional term of two (2) yeas, commencingJanuary 2, 2007, unless either Employee or the Company gives the other written notice on or before December 2, 2006, of an intent not to renew. In the event the Company notifies Employee of its election not to renew, this Agreement shall expire andterminate on January 2, 2007, and such termination shall be treated for all purposes under Agreement as a termination by the Company without Cause. In the event Employee notifies the Copy of his election not to renew, this Agreement shall expire andterminate on January 1, 2007, and such termination shall be treated for all purposes under this Agreement as a termination by Employee without Good Reason. 

 

VII. ANTISOLICITATION

 

Employee promises and agrees that during the term of this Agreement, and for a period of twelve months thereafter, he will not influence or attempt to influence anycompany which has material business with Company if such influence would be viewed as detrimental to the Company. 

 

VIII. SOLICITING EMPLOYEES

 

Employee promises and agrees that he will not, during the term of this Agreement and for a period of twelve (12) months following termination of his employment or theexpiration of this Agreement or renewal in accordance with Section VI above, directly or indirectly solicit any of the Company employees who earned annually $50,000 or more as a Company employee during the last six months of his or her ownemployment to work for any business, individual, partnership, firm, corporation, or other entity then in Competition with the business of the Company or any subsidiary of the Company. For the purposes of this provision, “indirectlysolicit” shall mean that Employee has provided name(s) or other identifying information to aid in the solicitation of such person. 

 

IX. CONFIDENTIAL INFORMATION 

 

Employee, in the performance of Employee’s duties on behalf of the Company, shall have access to, receive and be entrusted with confidential information, includingbut in no way limited to development, marketing, organizational, financial, management, administrative, production, distribution and sales information, data, specifications and processes presently owned or at any time in the future developed, by theCompany or its agents or consultants, or used presently or at any time in the future in the course of its business that is not otherwise part of the public domain (collectively, the “Confidential Material”). All such Confidential Materialis considered secret and will be available to Employee in confidence. Except in the performance of duties on behalf of the Company, Employee shall not, directly or indirectly for any reason whatsoever, disclose or use any such Confidential Material,unless such Confidential Material ceases (through no fault of Employee’s) to be confidential because it has become part of the public domain. All records, files, drawings, documents, equipment and other tangible items, wherever located,relating in any way to the Confidential Material or otherwise to the Company’s business, which Employee prepares, uses or encounters, shall be and remain the Company’s sole and exclusive property and shall be included in the ConfidentialMaterial. Upon termination of this Agreement by any means, or whenever requested by the Company, Employee shall promptly deliver to the Company any and all of the Confidential Material, not previously delivered to the Company, that may be or at anyprevious time has been in Employee’s possession or under Employee’s control, provided however, that Employee may retain in his possession any Confidential Material that reflects the terms of his employment with the Company or the terms oramount of his compensation and benefits. 

 

X.INDEMNIFICATION

 

To the maximum extent permitted by applicable law,Company shall indemnify Employee and hold Employee harmless from and against any and all claims, liabilities, judgments, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs of investigation andexperts, settlements and other amounts actually incurred by Employee in connection with the defense of any action, suit or proceeding, and in connection with any appeal thereon) incurred by Employee in any and all threatened, pending or completedactions, suits or proceedings, whether civil, criminal, administrative or investigative (including, without limitation, actions, suits or proceedings brought by or in the name of Company) arising, directly or indirectly, by reason of Employee’sstatus, action or 

inaction as a director, officer, employee or agent of Company or of an affiliate of Company. The Company shall promptlyadvance to Employee upon request any and all expenses incurred by Employee in defending any and all such actions, suits or proceedings to the maximum extent permitted by law. 

 

XI. SUCCESSORS 

 

A. This Agreement is personal to Employee and shall not, without the prior written consent of the Company, be assignable byEmployee. 

 

B. This Agreement may not be assigned by the Companywithout Employee’s prior written consent, unless such assignment is made in connection with a Change in Control, in which case, this Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns and anysuch successor or assignee shall be deemed substituted for the Company under the terms of this Agreement for all purposes. With respect to any assignment of this Agreement by Company requiring Employee’s prior written consent, no such permittedassignment shall relieve the Company of its obligations or liability hereunder unless Employee otherwise agrees in writing. 

 

XII. WAIVER

 

No waiver of any breach of any term or provision of this Agreement shall be construed to be, nor shall be, a waiver of any other breach of this Agreement. No waiver shallbe binding unless in writing and signed by the party waiving the breach. 

 

XIII. MODIFICATION

 

This Agreement maynot be amended or modified other than by a written agreement executed by Employee and the Company’s Chief Executive Officer. 

 

XIV. SAVINGS CLAUSE 

 

If any provision of this Agreement or the application thereof is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which canbe given effect without the invalid provisions or applications and to this end the provisions of this Agreement are declared to be severable. 

 

XV. COMPLETE AGREEMENT 

 

This Agreement constitutes and contains the entire agreement and final understanding concerning Employee’s employment with the Company and the other subject mattersaddressed herein between the parties. It is intended by the parties as a complete and exclusive statement of the terms of their agreement. It supersedes and replaces all prior negotiations and all agreements proposed or otherwise, whether written ororal, concerning the subject matter hereof. Any representation, promise or agreement not specifically included in this Agreement shall not be binding upon or enforceable against either party. This is a fully integrated agreement. To the extent thatthere is any conflict or inconsistency between the terms of this Agreement and the terms of the Option Agreement or the Plan, the terms of this Agreement shall govern. 

 

XVI. GOVERNING LAW 

 

This Agreement shall be deemed to have been executed and delivered within the State of California, and the rights and obligations of theparties hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of California without regard to principles of conflict of laws. 

 

XVII. CONSTRUCTION 

 

Each party has cooperated in the drafting and preparation of this Agreement. Hence, in any construction to be made of this Agreement, thesame shall not be construed against any party on the basis that the party was the drafter. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. 

 

XVIII. COMMUNICATIONS 

 

All notices, requests, demands and other communications hereunder shall be in writing andshall be deemed to have been duly given if delivered or if mailed by registered or certified mail, postage prepaid, addressed to Employee at 209 Burlington Road, Bedford, MA 02493, or addressed to the Company at 6922 Hollywood Blvd., Los Angeles, CA90028, Attention: Gloria Dickey. Either party may change the address at which notice shall be given by written notice given in the above manner. 

 

XIX. EXECUTION 

 

This Agreement is being executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the sameinstrument. Photographic copies of such signed counterparts may be used in lieu of the originals for any purpose. 

 

In witness whereof, the parties hereto have executed this Agreement as of the date first above written. 

GEMSTAR-TV GUIDE INTERNATIONAL, INC.

/s/    Jeff Shell

JEFF SHELL, CEO

DOUG MACRAE

/s/    Doug Macrae

 

EXHIBIT A 

OPTION AGREEMENT 

EXHIBIT B 

General Release Agreement 

 

ThisGeneral Release Agreement (the “Agreement”) is entered into as of             , 200_, by and between Doug Macrae (the “ Employee “) and GEMSTAR-TV GUIDEINTERNATIONAL, INC. (the “ Company “). Employee and the Company are parties to an Employment Agreement dated as of             , 2003 (the “EmploymentAgreement”). 

 

Employee’s employment with the Companywill terminate effective on             , 200_ (the “Termination Date”). In exchange for the severance pay and other severance benefits provided to Employee under SectionIV-E-3 of the Employment Agreement, and except for the obligations of Company under such Section IV-E-3, Employee hereby covenants not to sue and releases the Company, and its subsidiaries, parent and affiliated entities, past and present, and eachof them, as well as their respective trustees, directors, officers, agents, employees, shareholders, assignees, successors, attorneys, and insurers, past and present, and each of them (individually and collectively referred to herein as“Releasees”), from any and all claims, wages, agreements, contracts, obligations, covenants, demands, costs, expenses, attorneys’ fees, rights, debts, liens, and causes of action, known or unknown, suspected or unsuspected, arisingout of or in any way connected with his employment or any other transactions, occurrences, acts or omissions, or any loss, damage or injury whatsoever, known or unknown, suspected or unsuspected, resulting from any act or omission by or on the partof said Releasees, or any of them, committed or omitted, prior to the execution of this Agreement, whether based on contract, tort, common law, or statute. Employee acknowledges by the execution of this Agreement that he has no further claimsagainst the Releasees other than for the performance of the obligations set forth in Section IV-E-3 and Section IX of the Employment Agreement. 

 

The Employee hereby acknowledges that he has read this Agreement, understands its contents and agrees to its terms and conditions knowingly, voluntarilyand of his own free will. Specifically, the Employee agrees: (a) that he is releasing any and all claims under the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act, and any federal, state or localfair employment acts arising up to the date of the execution of this Agreement; (b) that the consideration being received by the Employee is greater than he would have been entitled to receive before signing this Agreement; (c) that the Employee ishereby advised to consult an attorney of his choice prior to the execution of this Agreement; (d) that the Employee was given twenty-one (21) days from the date of receipt of this Agreement to decide whether or not to execute it; and (e) that theEmployee has seven (7) days from the execution of this Agreement to revoke its execution and this Agreement will become null and void if he elects revocation during that time. Any revocation must be in writing and must be received by the Companyduring the seven-day revocation period. In the event of such revocation, the Company will not have any obligations under this Agreement or Section IV-E-3 of the Employment Agreement except for the payment of Accrued Obligations as defined in theEmployment Agreement. 

 

If any provision of this Agreement orits application is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given effect without the invalid provisions or application and, therefore, the provisions of this Agreement are declaredto be severable. 

 

The undersigned have read and understand theconsequences of this Agreement and voluntarily sign it. 

 

INWITNESS WHEREOF, the Parties have executed this Agreement as of the              day of             200    . 

 

 
DOUG MACRAEGEMSTAR-TV GUIDE INTERNATIONAL, INC.By 
 
Its