SHARE DISPOSITION AGREEMENT
Exhibit
10.5
SHARE
DISPOSITION AGREEMENT (the “Agreement”), dated as of May 20, 2007, by and
between Marvel Entertainment, Inc., a Delaware corporation (the
“Company”), and Xxxxx Xxxxxxxxxx (the “Stockholder”).
RECITALS
WHEREAS,
the Stockholder owns beneficially shares of the Company’s common stock, par
value $0.01 per share (“Common Stock”) and options to purchase shares of
Common Stock;
WHEREAS,
on May 20, 2007, the Board of Directors of the Company (the “Board of
Directors”) authorized a stock repurchase program pursuant to which the
Company may purchase up to $200 million of the Common Stock in the open market
or through privately negotiated transactions (the “May 2007
Program”);
WHEREAS,
the Board of Directors has provided that the May 2007 Program shall remain
in
effect until the earlier of: (i) its cancellation by the Board of
Directors; or (ii) the Company completing the purchase of $200 million of the
Common Stock under the May 2007 Program; or (iii) December 31,
2007 (the “Stock Repurchase
Period”); and
WHEREAS,
the Company and the Stockholder are entering into this Agreement to provide
for
certain rights and obligations in connection with the shares and options owned
by the Stockholder, upon the terms and subject to the conditions hereinafter
set
forth;
NOW,
THEREFORE, in consideration of the mutual premises and covenants contained
herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
to
be legally bound, hereby agree as follows:
ARTICLE
I.
Section
1.01 RESTRAINT
ON ALIENATION. The Stockholder agrees that, during the period
beginning from the date hereof and continuing to the earlier of (a) the end
of
the Stock Repurchase Period, or (b) the date the Stockholder is neither an
employee nor a director of the Company, or (c) a “Change of Control”, the
Stockholder will not offer, sell, contract to sell, grant any option to
purchase, make any short sale or otherwise dispose of any shares of Common
Stock, or any options or warrants to purchase any shares of Common Stock, or
any
securities convertible into, exchangeable for or that represent the right to
receive shares of Common Stock, whether now owned or hereinafter acquired,
owned
directly by the Stockholder (including holding as a custodian) or with respect
to which the Stockholder has beneficial ownership within the rules and
regulations of the SEC (collectively, the “Stockholder’s
Stock”). For the avoidance of doubt, the restriction contained in
the previous sentence shall not restrict, in any way, the Stockholder’s ability
to exercise any options or warrants held by or granted to the Stockholder during
the Stock Repurchase Period provided that the Stockholder retains beneficial
ownership of the Common Stock or restricted Common Stock underlying such options
or warrants during the Stock Repurchase Period. For purpose of this
Agreement, a Change of Control shall mean a transaction whereby (i) any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), is or becomes the
“beneficial owner” (as defined in Rule 13d-3
promulgated
under the Exchange Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting power of the
Company’s then outstanding securities entitled to vote in the election of
directors of the Company, (ii) the Company is a party to any merger,
consolidation or similar transaction as a result of which the stockholders
of
the Company immediately prior to such transaction beneficially own securities
of
the surviving entity representing less than fifty percent (50%) of the combined
voting power of the surviving entity’s outstanding securities entitled to vote
in the election of directors of the surviving entity or (iii) all or
substantially all of the assets of the Company are acquired by a third
party.
Section
1.02 RESTRICTIONS
ON HEDGING OR OTHER TRANSACTIONS. The foregoing restriction is
expressly agreed to preclude the Stockholder from engaging in any hedging or
other transaction which is designed to or which reasonably could be expected
to
lead to or result in a sale or disposition of the Stockholder’s Stock even if
such Shares would be disposed of by someone other than the
Stockholder. Such prohibited hedging or other transactions would
include without limitation any short sale or any sale or grant of any right
(including without limitation any put or call option) with respect to any of
the
Stockholder’s Stock or with respect to any security that includes, relates to,
or derives any significant part of its value from such Stockholder’s
Stock.
Section
1.03 ALLOWABLE
TRANSFERS. Notwithstanding the foregoing, the Stockholder may
transfer the Stockholder’s Stock (i) as a bona fide gift or gifts, provided that
the donee or donees thereof receiving in excess of 1,000 shares of the
Stockholder’s Stock agree to be bound in writing by the restrictions set forth
herein, (ii) to any trust, limited partnership or similar vehicle for the direct
or indirect benefit of the Stockholder or the immediate family of the
Stockholder or to any corporation which is wholly-owned by such a trust, limited
partnership or similar vehicle, provided that the trustee of the trust, the
general partner of the limited partnership or the person holding the similar
position in another vehicle agrees to be bound in writing by the restrictions
set forth herein, and provided further that any such transfer shall not involve
a disposition for value, or (iii) among any entities described in clause (ii)
provided that any such transfer shall not involve a disposition for
value. For purposes of this Agreement, any transfer by the
Stockholder of the Stockholder’s Stock pursuant to clause (ii) above in
consideration for an ownership interest in such limited partnership, trust
or
similar vehicle shall be deemed to not involve a disposition for
value. In addition, for purposes of this Agreement, “immediate
family” shall mean any relationship by blood, marriage or adoption, not more
remote than first cousin.
ARTICLE
II.
Section
2.01 DISPOSITION
OF COMMON STOCK. Nothing contained herein shall in any way
supersede, replace, diminish, or nullify any other restrictions or obligations
promulgated by the Securities Act of 1933, as amended, or otherwise binding
on
the Stockholder with respect to disposition of the Stockholder’s
Stock.
Section
2.02 ENTIRE
AGREEMENT. This Agreement represents the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes any and all prior oral and written agreements, arrangements
and
understandings among the parties hereto with respect to such subject matter,
and
can be amended, supplemented or changed, and any provision hereof can be waived,
only by a written instrument making specific reference to this Agreement signed
by the party against whom enforcement of any such amendment, supplement,
modification or waiver is sought.
2
Section
2.03 SUCCESSORS
AND ASSIGNS. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns, including any person to
whom
the Stockholder may assign Stockholder’s rights and obligations and shall inure
to the benefit of the parties hereto and, their respective successors and
assigns.
Section
2.04 PARAGRAPH
HEADINGS. The paragraph headings contained in this Agreement are
for general reference purposes only and shall not affect in any manner the
meaning or interpretation of the terms or other provisions of this
Agreement.
Section
2.05 APPLICABLE
LAW. This Agreement shall be governed by, construed and enforced
in accordance with the laws of the State of New York without regard to the
conflicts of law principles of such state.
Section
2.06 SEVERABILITY. If
at any time subsequent to the date hereof, any provision of this Agreement
shall
be held by any court of competent jurisdiction to be illegal, void or
unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon
and
shall not impair the enforceability of any other provision of this
Agreement.
Section
2.07 NO
WAIVER. The failure of any party at any time or times to require
performance of any provision hereof shall not affect the right at a later time
to enforce the same. No waiver by any party of any condition, and no
breach of any provision, term, covenant, representation or warranty contained
in
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
Section
2.08 COUNTERPARTS. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute but one and
the
same original instrument.
IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement, as of the day and year first above written.
| COMPANY: | |||
| MARVEL ENTERTAINMENT, INC. | |||
|
|
By:
|
/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Executive Vice President, Office of the Chief Executive | |||
| STOCKHOLDER: | |||
|
|
/s/
Xxxxx Xxxxxxxxxx
|
||
|
Xxxxx
Xxxxxxxxxx
|
|||
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