EMPLOYMENT AGREEMENT
I,
Xxxxxxx X. Xxxx, agree to the terms and conditions of employment with Marvel
Entertainment, Inc. (“Company”) set forth in this employment agreement
(“Agreement”).
1. Term of Employment. My
employment under this Agreement (“Term”) shall commence on June 1, 2009 and
shall end on May 31, 2010 (“Expiration Date”) or such earlier date on which my
employment is terminated under Section 5 of this Agreement. If the
Company continues to employ me beyond the Expiration Date without entering into
a written agreement extending the term of this Agreement, except as provided in
a new written employment agreement between the Company and me, all obligations
and rights under this Agreement shall lapse as of the Expiration Date, except my
confidentiality and other obligations under Sections 6 and 7, the Company’s
ongoing indemnification obligation under Section 8, and our mutual arbitration
obligations under Section 9, and I thereafter shall be an at-will employee of
the Company.
2. Nature of Duties. I
shall be the Company’s Executive Vice President and Chief Financial Officer, and
I shall report to the members of the Company’s Office of the Chief Executive or
their designee, or to such other person as the Company’s Board of Directors
(“Board”) or its designee shall designate. I shall work exclusively
for the Company and shall have all of the customary powers and duties associated
with that position, together with such other and further duties as the Company
shall from time to time assign me. I shall devote my full business
time and effort to the performance of my duties for the Company, which I shall
perform faithfully and to the best of my ability. I shall be subject
to the Company’s policies, procedures and approval practices, as generally in
effect from time to time.
I further
agree to accept election, and to serve during all or any part of the Term, as an
officer or director of the Company and of any subsidiary or affiliate of the
Company, without any compensation therefor other than that specified in this
Agreement, if elected to any such position by the stockholders or by the Board
or of any subsidiary or affiliate, as the case may be. Unless
otherwise agreed to in writing by the Company and me, I shall immediately resign
any such office or directorship upon the expiration of the Term.
3. Place of
Performance. I shall be based at the Company’s principal
executive office in New York City, except for required travel on the Company’s
business. Any business travel shall be arranged in accordance with
the travel policies and procedures established by the Company.
4. Compensation and Related
Matters.
(a) Base Salary. The
Company shall pay me base salary at an annual rate of $425,000, or
such other rate as it elects to pay me. My base salary shall be
reduced only in connection with a broad-based salary reduction that affects
other employees of comparable rank and that does not occur within 12 months
after a Third Party Change in Control, as defined in Section 5(h)
below. My base salary shall be paid in conformity with the Company’s
salary payment practices generally applicable to other similarly situated
Company employees. In addition to my base salary, I shall receive
$1,000 per month (the amount formerly provided to me as “car allowance”) as
salary not subject to raises, bonuses or severance pay.
(b) Bonuses. I will be
eligible to receive an annual cash bonus, in such amount (if any) as the Board
may determine in its sole discretion, based in whole or in part upon the
attainment of performance goals set by the Board (the “Bonus Performance
Goals”). My target annual bonus amount shall be 50% of my base salary
received for the year. The Board shall have the sole discretion to
determine whether I have attained the Bonus Performance Goals and to determine,
regardless of any such attainment, whether and in what amount a bonus shall be
paid to me for any particular year. Each annual bonus shall be paid
when annual bonuses are paid generally to the Company’s other similarly situated
employees but in no event later than a day that is within the first two and
one-half months of the next calendar year.
(c) Standard
Benefits. During my employment, I shall be entitled to
participate in all employee benefit plans and programs (including any group
health plans, qualified pension plans, and 401(k) plans) to the same extent
generally available to other similarly situated Company employees, in accordance
with the terms of those plans and programs. The Company shall have
the right to terminate or change any such plan or program at any
time.
(d) Vacation. I shall
be entitled during my employment to a vacation period or periods of 3 (three)
weeks per year, to be accrued and taken in accordance with the vacation policy
of the Company.
(e) Expenses. I shall
be entitled to receive prompt reimbursement for all reasonable and customary
travel and business expenses I incur in connection with my employment, but I
must incur and account for those expenses in accordance with the policies and
procedures established by the Company.
5. Termination.
(a) Rights and
Duties. If my employment is terminated, I shall be entitled to
the amounts or benefits shown on the applicable row of the following table,
subject to the balance of this Section 5. The Company and I shall
have no further obligations to each other, except my confidentiality and other
obligations under Sections 6 and 7, the Company’s ongoing indemnification
obligation under Section 8, and our mutual arbitration obligations under
Section 9, or as set forth in any written agreement I subsequently enter
into with the Company. In no event will any of the payments or
benefits provided under this section be delayed from the time they become
payable except on terms and to the extent permitted under Section 409A of the
Internal Revenue Code (the “Code”). Payments and benefits hereunder
will be payable at the times specified herein, subject in all cases to
applicable Section 409A Compliance Rules adopted by the Company and in effect to
provide for compliance with Code Section 409A, which Compliance Rules are hereby
incorporated into this Agreement by reference. Any amounts payable to
me under this section shall first be applied to repay any amounts I owe the
Company.
-2-
|
(i)
DISCHARGE FOR CAUSE
|
Payment
or provision when due of (1) any unpaid base salary, expense
reimbursements, and vacation days accrued prior to termination of
employment, and (2) other unpaid vested amounts or benefits under Company
compensation, incentive, and benefit plans.
|
|
(ii)
DEATH OR DISABILITY
|
Same
as for “Discharge for Cause” EXCEPT that, in exchange for my (or my
estate’s) execution of a release in accordance with this section and
provided that I have not violated any of my obligations under Section 6,
below, (1) I (or my estate) will receive the bonus, if any, that the
Company awarded me for the previously completed fiscal year, if unpaid;
(2) I (or my estate) will receive a portion of the bonus that the Company
would have awarded me for the fiscal year in which termination occurs,
prorated for the number of days I actually worked for the Company in that
fiscal year (and payable when such bonus would have been paid had my
employment not terminated); (3) any award made to me under the Company’s
stock incentive plan(s) or long-term cash incentive compensation plan(s)
shall immediately vest in full; and (4) any stock options awarded to me by
the Company shall remain exercisable for 90 days after my termination date
(but in no event beyond their stated expiration date).
|
|
(iii)
DISCHARGE OTHER THAN FOR CAUSE, DEATH, OR DISABILITY
|
Same
as for “Discharge for Cause” EXCEPT that, in exchange for my execution of
a release in accordance with this section and provided that I have not
violated any of my obligations under Section 6, below, (1) my base salary,
but not my employment, shall continue for 12 months after my termination
date or until such date as I commence employment with another entity (or
self-employment), whichever comes first, but in no event shall I receive
more than $750,000 in salary continuance; (2) I will receive the bonus, if
any, that the Company awarded me for the previously completed fiscal year,
if unpaid; (3) the Company will reimburse me for the cost of any COBRA
health continuation coverage I purchase (in excess of the amount I would
have paid for group health coverage had I remained on the Company’s group
health plan as an employee) until the earlier of (A) the date on which I
become eligible for health insurance benefits under another employer’s
plan or (B) 12 months after the date of discharge; and (4) any stock
options awarded to me by the Company shall, to the extent vested, remain
exercisable for 90 days after my termination date (but in no event beyond
their stated expiration date).
|
|
(iv)
RESIGNATION WITHOUT GOOD REASON
|
Same
as for “Discharge for Cause.”
|
-3-
|
(v)
RESIGNATION WITH GOOD REASON
|
Same
as for “Discharge Other Than for Cause, Death, or
Disability.”
|
|
(vi)
DISCHARGE WITHOUT CAUSE, OR RESIGNATION WITH GOOD REASON, WITHIN 12 MONTHS
AFTER A THIRD PARTY CHANGE IN CONTROL
|
Same
as for “Discharge for Cause” EXCEPT that, in exchange for my execution of
a release in accordance with this section and provided that I have not
violated any of my obligations under Section 6, below, (1) I will receive,
in a lump sum within 30 days after my termination date, an amount equal to
two times the sum of (A) my then current base salary and (B) the average
of the two most recent annual bonuses paid to me by the Company (treating
any annual bonus which is not paid as a result of my failure to attain the
Bonus Performance Goals as having been paid in an amount equal to zero) or
if only one annual bonus has been paid to me by the Company, the amount of
that annual bonus; (2) I will receive the bonus, if any, that the Company
awarded me for the previously completed fiscal year, if unpaid; (3) I will
receive a portion of the bonus that the Company would have awarded me for
the fiscal year in which termination occurs, prorated for the number of
days I actually worked for the Company in that fiscal year (and payable
when such bonus would have been paid had my employment not terminated);
(4) the Company will reimburse me for the cost of any COBRA health
continuation coverage I purchase (in excess of the amount I would have
paid for group health coverage had I remained on the Company’s group
health plan as an employee) until the earlier of (A) the date on
which I become eligible for health insurance benefits under another
employer’s plan or (B) 12 months after my termination date; (5) any award
made to me under the Company’s stock incentive plan(s) or long-term cash
incentive compensation plan(s) shall continue to vest for 12 months after
my termination date, unless vested sooner pursuant to the terms of the
award; and (6) any stock options awarded to me by the Company shall,
to the extent vested, remain exercisable for 90 days after the 12-month
anniversary of my termination date (but in no event beyond their stated
expiration date).
Any
payments or benefits provided to me under this Section 5(a)(vi) shall be
in lieu of any other benefits or payment available or otherwise payable to
me under this Section 5.
|
|
(vii)
EXPIRATION OF AGREEMENT
|
Same
as for “Discharge for
Cause.”
|
-4-
(b) Discharge for
Cause. The Company may terminate my employment at any time for
Cause. “Cause” means that one or more of the following events
occurred:
(i) my
indictment for, or conviction of, a felony, a crime involving theft,
fraud, dishonesty or moral turpitude, or any violation of any federal or
state securities law (whether by plea of nolo contendere or otherwise)
or my being enjoined from violating any federal or state securities law or being
determined to have violated any such law.
(ii) my
failure or refusal to follow the Company’s lawful directions or to perform my
duties (other than by reason of physical or mental illness, injury, or
condition), in either case, after I have been given notice of my default and
five business days to cure my default;
(iii) my
engaging in conduct constituting embezzlement, willful assistance to a
competitor, fraud, misappropriation, material violation of the Company’s
anti-discrimination, equal employment opportunity, prohibition against
harassment or similar policies or material violation of the Company’s xxxxxxx
xxxxxxx policy, corporate code of business conduct and ethics or other material
policy, or my engaging in conduct tending to bring the Company or any other
member of the Group (as defined in Section 6(a), below) into public disgrace or
disrepute;
(iv) my
failure (including, but not limited to, my refusal to be deposed or to provide
accurate and complete testimony at any trial or inquiry) to participate, if
requested by the Board, in any investigation or inquiry, whether internal or
external, into my actions (or inactions) or the Company’s business
practices;
(v) my
possession on Company premises of any prohibited drug or substance that would
amount to a criminal offense, or my being under the influence of any such
substance while on Company premises;
(vi) my
intentional misconduct or gross negligence in connection with the business of
the Company or any affiliate;
(vii) my
material breach of this Agreement, including of any promise I made in Section 6,
below; or
(viii) my
seeking, exploring, or accepting a position with another business enterprise or
venture without the Company’s written consent at any time more than 90 days
before the Expiration Date.
If my employment ends for any reason
other than discharge by the Company for Cause, but at a time when the Company
had Cause to terminate me (or would have had Cause if it then knew all relevant
facts), my termination shall be treated as a discharge by the Company for
Cause.
(c) Termination for
Disability. Except as prohibited by applicable law, the
Company may terminate my employment on account of Disability, or may transfer me
to inactive employment status, which shall have the same effect under this
Agreement as a termination for Disability. “Disability” means a
physical or mental illness, injury, or condition that prevents me from
performing substantially all of my duties under this Agreement for at least 90
consecutive calendar days or for at least 120 calendar days, whether or not
consecutive, in any 365 calendar-day period, or is likely to do so, as certified
by a physician selected by the Company.
-5-
(d) Discharge Other Than for Cause,
Death, or Disability. The Company may terminate my employment
at any time for any reason, and without advance notice. If I am
terminated by the Company other than for Cause, Death, or Disability, I will
receive the special benefits provided for a non-Cause discharge under Section
5(a) only if I sign a separation agreement and general release form furnished to
me by the Company within 45 days from its delivery to me (or such shorter
deadline as the Company establishes at the time) and I do not thereafter
properly revoke the release.
(e) Resignation. I
promise not to resign my employment before the Expiration Date unless I have
been given Good Reason (as defined below) to do so. If I break that
promise and resign other than for Good Reason, I shall nevertheless remain
employed under this Agreement except to the extent the Company elects to cancel
it. If I resign other than for Good Reason and the Company accepts my
resignation, the Company may do so effective on the date set forth in my notice
or any earlier date. If I resign for Good Reason, my employment will
end on my last date of work and I will receive the benefits to which I am
entitled under Section 5(a), but only if I sign a separation agreement and
general release form furnished to me by the Company within 45 days from its
delivery to me (or such shorter deadline as the Company establishes at the time)
and I do not thereafter properly revoke the release. “Good Reason” means that,
without my express written consent, one or more of the following events
(1) occurred after my execution of this Agreement, (2) was described in
written notice to the Company within 30 days of becoming known to me, such
notice explicitly informing the Company that I consider the event (if it
remains) to have given me “Good Reason” for resigning and (3) was not reversed
or cured within 30 days of that notice:
(i) a
diminishment of my duties or responsibilities (but not my base salary, except as
provided in Section 4(a) above) to the point where they are below the level
generally associated with being a senior executive (or, if within 12 months
after a Third Party Change in Control, to a level materially and adversely below
my highest-ranking position at the Company since six months before the Third
Party Change in Control);
(ii) a
transfer of my principal office to a location more than 50 miles from the
location set forth in Section 3, above;
(iii) the
Company’s material breach of Section 4 or Section 8 of this Agreement;
or
(iv) the
distribution of financial statements of the Company to any third party where (A)
I have informed the Chairman of the Board of Directors and/or the Chairman of
the Board’s Audit Committee that I object to the presentation of any material
matter contained in those financial statements on the basis that it does not
adequately conform to generally accepted accounting principles, (B) the
Company’s independent registered public accounting firm agrees with my position,
and (C) the financial statements failed to clearly disclose my objections,
including the effect on the financial statements if they were to be revised to
comply with my position.
-6-
An event that is or would constitute
Good Reason, however, shall cease to be Good Reason if: (1) I do not
terminate employment within 30 days after the end of the 30-day cure period
referred to above (but in any event during the Term); or (2) I was a primary
instigator of the Good Reason event and the circumstances make it inappropriate
for me to receive Good Reason resignation benefits under this
Agreement.
(f) Death. If I die
while employed under this Agreement, my employment shall be considered
terminated as of my date of death and the payments required by Section 5(a) in
the event of my death shall be made.
(g) Transfers to Group
Member. My transfer to another member of the Group shall not
be deemed a termination of my employment under this Agreement if it assumes this
Agreement.
(h) Third Party Change in
Control.
(i) Definition. For
purposes of this Agreement, a “Third Party Change in Control” shall be deemed to
have occurred if (i) any “person” or “group” (as those terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), other than an Excluded Person or Excluded Group (as defined
below) (hereinafter, a “Third Party”), is or becomes the “beneficial owner” (as
defined below), 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 shareholders of
the Company immediately prior to the 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. “Excluded Group” means a “group” (as that term is used in
Sections 13(d) and 14(d) of the Exchange Act) that includes one or more Excluded
Persons; provided that the voting power of the voting stock of the Company
beneficially owned by those Excluded Persons represents a majority of the voting
power of the voting stock beneficially owned by the group. “Excluded
Person” means Xxxxx Xxxxxxxxxx, any spouse or descendant of Xx. Xxxxxxxxxx, any
trust established solely for the benefit of, and any charitable trust or
foundation established by, Xx. Xxxxxxxxxx or his spouse or descendants and each
of their respective affiliates and estates. “Beneficial owner”,
“beneficially own” and “beneficially owned” have the same meanings as in Rule
13d-3 under the Exchange Act.
-7-
(ii) Effect of Sections 4999 and
280G on Payments. In the event a Third Party Change in Control
occurs and I become entitled to any benefits or payments in the nature of
compensation (within the meaning of Section 280G(b)(2) of the Code) under this
Agreement or under any other plan, arrangement, or agreement with the Company
(the “Payments”), and such Payments will be subject to the tax (the “Excise
Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter
be imposed), the Payments under this Agreement shall be reduced (but not below
zero) to the Reduced Amount (as defined below), if so reducing the Payments
under this Agreement will provide me with a greater net after-tax amount than
would be the case if no such reduction were made. The “Reduced
Amount” shall be an amount expressed in present value which maximizes the
aggregate present value of the Payments without causing any of the Payments to
be subject to the Excise Tax, determined in accordance with Section 280G(d)(4)
of the Code. Only amounts payable under this Agreement shall be
reduced pursuant to this Section 5(h)(ii). In determining the
potential impact of the Excise Tax, the Company may rely on any advice it deems
appropriate, including, but not limited to, the advice of its independent
accounting firm. For purposes of determining whether any of the
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
the Company may take into account any relevant guidance under the Code and the
regulations promulgated thereunder, including, but not limited to, the
following:
(A) The
amount of the Payments which shall be treated as subject to the Excise Tax shall
be equal to the amount of excess parachute payments within the meaning of
Section 280G(b)(1) of the Code, as determined by the Company’s independent
accounting firm or other advisor;
(B) The
value of any non-cash benefits or any deferred or accumulated payment or benefit
shall be determined by the Company’s independent accounting firm or other
advisor in accordance with the principles of Sections 280G(d)(3) and (4) of the
Code; and
(C) The
value of the non-competition covenants contained in this Agreement shall be
taken into account to reduce “parachute payments” to the maximum extent
allowable under Section 280G of the Code.
For
purposes of the determinations under this Section 5(h)(ii), I shall be deemed to
pay federal income taxes at the highest marginal rate of federal income taxation
in the calendar year in which the applicable payment is to be made, and shall be
deemed to pay state and local income taxes at the highest marginal rate of
taxation in the state and locality of my residence, net of the maximum reduction
in federal income taxes which could be obtained from deduction of such state and
local taxes (unless it is impracticable for me to itemize my
deductions).
(i) Garden Leave. The
Company shall not be obligated to use my services or any of the results and
proceeds thereof or to permit me to retain any corporate office, and the Company
shall have the unilateral right, at any time and from time to time, without
notice, in its sole and absolute discretion, to suspend that use and that
permission and to require me to remain otherwise exclusively available to
provide my services to the Company (the “Garden Leave Option”). Any
period of Garden Leave shall not exceed 12 months (and in no event shall
continue beyond the Expiration Date). If the Company elects to
exercise the Garden Leave Option, the Company shall have no obligation or
liability to me pursuant to this Agreement or otherwise, except to pay to me my
salary under Section 4(a) above and my benefits under Section 4(c) above, in
each case in the same installments and on the same dates as if the Company had
not exercised the Garden Leave Option. No exercise by the Company of
the Garden Leave Option shall, under any circumstances, be deemed to constitute
(i) a breach by the Company of any term of this Agreement, express or implied
(including, without limitation, a breach of any implied covenant of good faith
and fair dealing), (ii) a wrongful deprivation by the Company of my corporate
office (or authority, opportunities or other benefits relating thereto) or (iii)
“Good Reason” for my resignation. No exercise by the Company of the
Garden Leave Option shall prevent the Company from exercising its termination
rights set forth elsewhere in this Section 5 or from requiring me, from time to
time, to render services under this Agreement.
-8-
6. Confidentiality
Obligations.
(a) Acknowledgments. I
recognize and agree that the Company and its subsidiaries and affiliates
(collectively or separately as the context may require, the “Group”) currently
conduct their business world-wide. I further recognize and agree
that, in my position with the Company, I will be responsible for: (i)
actively conducting the Group’s business, (ii) overseeing Company activities,
(iii) developing and implementing strategies on behalf of the Company everywhere
the Group currently conducts its business, and (iv) affecting customers,
suppliers, and distributors everywhere the Group currently conducts its
business. In addition, I recognize and agree that, to enable me to
satisfy my duties and responsibilities under this Agreement, the Company will
invest substantial resources in me by making available to me Confidential
Information (as defined below) and other valuable resources and assets for which
I would not have had access, but for my employment with the
Company. To protect the Group’s business interests, including its
Confidential Information (as defined below) and business relationships, I make
the following promises in this Section 6.
(b) Non-Disclosure of Confidential
Information. I promise and agree that I will never, directly
or indirectly, use, disclose or retain (other than, during my employment, in
furtherance of the Company’s business) any trade secret, proprietary and/or
confidential information relating to the Group that I receive or become aware of
during my employment with or service to the Company (or that I have already
received or become aware of) concerning, among other things, the Group’s
business, operations, customers, licensees, talent (actors, writers, etc.),
suppliers, investors, and business partners (“Confidential
Information”). “Confidential Information” may include, among other
things, information relating to the Group’s business, operational or accounting
methods; corporate plans and strategies; management systems; finances; new
business opportunities; scripts, storylines and production details of
entertainment projects; details concerning talent; plans or activities involving
the financing, development, casting, marketing, release and/or distribution of
entertainment projects; story and character ideas; profits; costs of media
trades/investments; pricing and sales arrangements; terms of business; marketing
or sales of any products or services; technical processes; research projects;
inventions; designs; applications; know-how; lists or details of actual, past or
potential clients, customers or suppliers or the arrangements made with any of
them; and any information in respect of which the Group owes an obligation of
confidentiality to any third party, conveyed orally or reduced to a tangible
form in any medium. “Confidential Information” does not include
information that (i) is generally known within the relevant industry or (ii)
that I can demonstrate by a preponderance of the evidence has subsequently
become known to me other than through my work for the Group and not as a result
of a breach of any duty owed to the Group by me or any third
party. Notwithstanding this paragraph, I may disclose Confidential
Information as required by court order, subpoena, or otherwise as required by
law, provided that upon receiving such order, subpoena, or request and prior to
disclosure, I shall provide written notice to the Company of such order,
subpoena, or request and of the content of any testimony or information to be
disclosed and shall cooperate fully with the Company to lawfully resist
disclosure of such information. Nothing in this Agreement shall
prevent me from testifying or meeting with any representatives of any federal,
state or local law enforcement agency who are investigating any matters
involving the Company’s business practices.
-9-
(c) Non-Competition and
Non-Solicitation. I promise and agree that I will not (except
on behalf of the Company), directly or indirectly, on my own behalf or on behalf
of any other person or entity, whether as an owner, director, officer, partner,
employee, agent or consultant, for pay or otherwise, during my employment with
the Company and for a period of 12 months after that employment ends for any
reason:
(i) (A)
render services of a financial, executive, marketing, supervisory, technical,
research, purchasing, entertainment-developing, entertainment-producing or
consulting nature to any person or entity (or on my own behalf, if I am
self-employed) that is engaged in a business that competes with or intends to
compete with any business conducted by the Group, including but not limited to
development, production and distribution of entertainment, character-based
licensing or publication (in any medium) of comic books or other graphic fiction
or (B) become interested in any such business, directly or indirectly, as an
individual, partner, shareholder, director, officer, principal, agent, employee,
trustee, consultant, or in any other relationship or capacity; provided, however, that nothing
contained in this paragraph shall be deemed to prohibit me from acquiring,
solely as an investment, up to five percent (5%) of the outstanding shares of
capital stock of any public corporation;
(ii) solicit
or serve, participate in soliciting or serving or induce, advise, encourage or
attempt to solicit or serve any customer, supplier, vendor, or distributor of
the Group (A) for which I was responsible during my employment with the Company,
(B) with whom I had business contacts or dealings on behalf of the Company
during my employment with the Company, or (C) about which I learned confidential
information during my employment with the Company;
(iii)
induce or attempt to induce any employee of, independent
contractor for or service provider to the Group to stop working, or to reduce
their work or services, for the Group or to work for any competitor of the
Group; or
(iv)
induce or attempt to induce any party referred to in Section
6(c)(ii) hereof to alter its business dealings with the Group.
(d) Return of
Information. I promise and agree that, prior to my last day of
employment with the Company or at the Company’s earlier request, I will return
all Company property and/or Confidential Information in any form or media and
all copies thereof in my possession, custody, or control, including memoranda,
notes, records, reports, manuals, drawings, blueprints, and other documents, and
I shall delete all Confidential Information from any computers, e-mail accounts,
or other electronic memory devices I own or use outside the Company’s workplace
(including, but not limited to, PDAs, cell phones, and USB storage
devices).
-10-
(e) Remedies. I
understand and acknowledge that the promises and agreements made by me in this
Section 6 are essential, material, and indispensable conditions of this
Agreement, and that the payment and benefits provided for herein by the Company
would not have been provided in the absence of these promises and
agreements. I acknowledge that the terms of this Section
6: (i) are reasonable and necessary to protect the Group’s legitimate
interests; (ii) will not prevent me from earning or seeking a livelihood; and
(iii) shall apply wherever permitted by law. I further acknowledge
and agree that my violation of any of the terms of this Section 6 would
irreparably harm the Group. Accordingly, I agree that if I violate or
threaten to violate any promise or agreement made by me in this Section
6:
(i) the
Company may terminate my employment immediately for Cause;
(ii) all
payments and benefits otherwise owing to me under Section 5 of this Agreement
shall immediately cease and be considered forfeited, and I shall have no further
entitlement to such payments or benefits;
(iii) the
Company shall have the right and remedy to require me to account for and pay
over to the Company all compensation, profits, monies, accruals, increments, or
other benefits (collectively “Benefits”) derived or received by me as the result
of any transactions constituting a breach of any of the provisions of this
Section 6, and I hereby promise and agree to account for and pay over such
Benefits to the Company;
(iv) the
Group will be entitled to, in addition to and without limiting any other
remedies available to it, an injunction to be issued by any court of competent
jurisdiction restraining me from committing or continuing any such violation,
without the need to prove the inadequacy of money damages or to post any bond or
to make any other undertaking; and
(v) with
respect to any proceedings under this Section 6(e), I consent to the
non-exclusive jurisdiction of the Federal and state courts located in New York
County, New York State and I waive any objection to those courts’ being the
venue of those proceedings.
Each
of the rights and remedies enumerated above shall be independent of the other,
and shall be severally enforceable, and all of such rights and remedies shall be
in addition to, and not in lieu of, any other rights and remedies available to
the Company under law or in equity.
-11-
(f) Enforceability. If
any of the provisions, covenants, or parts thereof in this Section 6 are
construed to be invalid or unenforceable, the same shall not affect the
remainder of the provisions, covenants, or parts thereof, which shall be given
full effect, without regard to the invalid portions. If any of the
provisions, covenants, or parts thereof in this Section 6 are held to be
unenforceable because of the duration or scope of such provision or the area
covered thereby, the parties hereto agree that the court making such
determination shall have the power to reduce the duration, scope and/or area of
such provision and, in its reduced form, said provision shall then be
enforceable. The parties hereto intend to and hereby confer
jurisdiction to enforce the covenants contained in this Section 6 upon the
courts of any state or other jurisdiction within the geographical scope of such
covenants. In the event that the courts of any one or more of such
states or other jurisdictions shall hold such covenants wholly unenforceable by
reason of the breadth of such covenants or otherwise, it is the intention of the
parties hereto that such determination not bar or in any way affect the
Company’s right to the relief provided above in the courts of any other states
within the geographical scope of such covenants as to breaches of such covenants
in such other respective jurisdictions, the above covenants as they relate to
each state being for this purpose severable into diverse and independent
covenants.
(g) Survival. This
Section 6, and the promises and agreements I made in this section, shall survive
the end of my employment and the termination of this Agreement for any
reason.
7. Inventions and Patents; Intellectual
Property; Work for Hire.
(a) I
agree that all processes, technologies and inventions, including new
contributions, improvements, ideas and discoveries, whether patentable or not,
conceived, developed, invented or made by me during my employment by the Company
or for one year thereafter (collectively, “Inventions”) shall belong to the
Company, provided that such Inventions grew out of my work with the Company or
any of its subsidiaries or affiliates, are related to the business (commercial
or experimental) of the Company or any of its subsidiaries or affiliates or are
conceived or made on the Company’s time or with the use of the Company’s
facilities or materials. I shall promptly disclose any Inventions to
the Company and shall, subject to reimbursement by the Company for all
reasonable expenses incurred by me in connection therewith, (a) assign to the
Company, without additional compensation, all patent and other rights to such
Inventions for the United States and foreign countries; (b) sign all papers
necessary to carry out the foregoing; and (c) give testimony in support of my
inventorship.
(b) The
Company shall be the sole owner of all the products and proceeds of my services
hereunder, including, but not limited to, all materials, ideas, concepts,
formats, suggestions, developments, arrangements, packages, programs and other
intellectual properties that I may acquire, obtain, develop or create in
connection with and during my employment, free and clear of any claims by me (or
anyone acting or claiming on my behalf) of any kind or character whatsoever
(other than the my right to receive payments hereunder). I shall, at
the request of the Company, execute such assignments, certificates or other
instruments as the Company may from time to time deem necessary or desirable to
evidence, establish, maintain, perfect, protect, enforce or defend its right,
title or interest in or to any such properties.
(c) I
understand that within the scope of my employment, I may create or contribute to
literary, artistic, or other kinds of material (collectively, the “Works”) that
may qualify as “works made for hire” under U.S. copyright law, and if so, that
the Company is the author and sole owner of the Works in the U.S. and worldwide,
and I waive any rights I may have to the Works, including moral
rights. If at any time, any of the Works are deemed not to be works
made for hire, I assign, grant, transfer and convey to the Company all my right,
title and interest to the Works for the entire length of time they are protected
by any applicable law. I agree (whether during or after my employment
with the Company) to sign any document the Company may reasonably request in
order to secure or enforce the Company’s rights in the Works. I
irrevocably appoint the Company and any of its officers as my attorney-in-fact
to secure and enforce the rights in my name. To the extent that I
retain any right, title or interest to the Works, I agree to:
(i) unconditionally and irrevocably waive the enforcement of such rights,
and all claims and causes of action of any kind against the Company with respect
to such rights; (ii) consent to and join in any action to enforce such rights at
the Company’s request; and (iii) grant to the Company an irrevocable, fully
paid-up, transferable, sublicensable, worldwide right and license to use,
reproduce, distribute, display and perform, prepare derivative works of and
otherwise modify without limitation, make, sell, offer to sell, import and
otherwise use and exploit all or any portion of the Works, in any form or media
(now known or later developed).
-12-
8. Indemnification. To
the fullest extent permitted by applicable law, I shall be indemnified and held
harmless for any action or failure to act in my capacity as an officer or
employee of the Company or any of its affiliates or subsidiaries. In
furtherance of the foregoing and not by way of limitation, if I am a party or am
threatened to be made a party to any suit because I am or was an officer or
employee of the Company or such affiliate or subsidiary, I shall be indemnified
against expenses, including reasonable attorney’s fees, judgments, fines and
amounts paid in settlement, if I acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interest of the Company, and, with
respect to any criminal action or proceeding, I had no reasonable cause to
believe that my conduct was unlawful. I shall give the Company prompt
notice of any such suit; provided, that my failure to do so shall not relieve
the Company from any obligation that it would otherwise have pursuant to this
Section 8 except to the extent that the Company has been prejudiced by that
failure. The Company shall have the option to control the defense and
settlement of any such suit. No settlement affecting my rights shall
be entered into by the Company without my consent, such consent not to be
unreasonably withheld. Indemnification under this Section 8 shall be
in addition to any other indemnification by the Company of its officers and
directors. Expenses incurred by me in defending an action, suit or
proceeding for which I claim the right to be indemnified pursuant to this
Section 8 shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of me to repay such amount in the event that it shall ultimately be determined
that I am not entitled to indemnification by the Company. Such
undertaking shall be accepted without reference to my financial ability to make
repayment. The provisions of this Section 8 shall apply as well to my
actions and omissions as a trustee of any employee benefit plan of the Company,
its affiliates or subsidiaries.
9. Arbitration of
Disputes. Except as expressly prohibited by law and except for
the Company’s right to seek injunctive relief as set forth in Section 6(e),
above, all disputes between the Company and me (“Arbitrable Disputes”) are to be
resolved by final and binding arbitration in accordance with this Section
9. This section shall remain in effect after the termination of this
Agreement or my employment. I acknowledge that the Company is willing
to employ me without entering into any employment agreement at all, in which
case there would be no agreement between me and the Company to
arbitrate. My agreement with the Company to arbitrate is expressly
not a condition of my employment but rather is only effective because of this
Agreement, which the Company is entering into at my request.
-13-
(a) Scope of
Agreement. This arbitration agreement applies to, among other
things, disputes concerning my employment with and/or termination from the
Company; the validity, interpretation, enforceability or effect of this
Agreement or alleged violations of it; claims of discrimination under federal or
state law; or other statutory or common law claims.
(b) The
Arbitration. The arbitration shall take place under the
auspices of JAMS in the metropolitan area in which I am then (or was last)
employed and conducted in accordance with the JAMS Comprehensive (or, if
applicable, Streamlined) Arbitration Rules and Procedures then in effect, except
that in any case of a conflict between this Agreement and those rules, this
Agreement will prevail. The arbitrator may not modify or change this
Agreement in any way except as expressly set forth herein. The
arbitration and any associated materials or proceedings (such as discovery
documents and depositions recorded in any form or medium) shall be confidential
and non-public except to the extent required by law.
(c) Fees and
Expenses. Each party shall pay the fees of its attorneys, the
expenses of its witnesses, and any other costs and expenses that the party
incurs in connection with the arbitration, but all other costs of the
arbitration, including the fees of the arbitrator, the cost of any record or
transcript of the arbitration, administrative fees and other fees and costs
shall be paid one half by the Company and one half by me.
(d) Exclusive
Remedy. Arbitration pursuant to this Section 9 shall be the
exclusive remedy for any Arbitrable Dispute. Should I or the Company
attempt to resolve an Arbitrable Dispute by any method other than arbitration
pursuant to this Section 9, the responding party will be entitled to recover
from the initiating party all damages, expenses and attorneys’ fees incurred as
a result of that breach.
(e) Judicial
Enforcement. In the event that ten business days have passed
without an arbitrator’s award’s being complied with, nothing in this Section 9
shall preclude any party to this agreement from seeking judicial enforcement of
the award. Judgment may be entered on the arbitrator’s award in any
court having jurisdiction.
10. Notices. All
notices, requests, consents and other communications required or permitted
to be given hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally, sent by overnight courier (notices sent by
overnight courier shall be deemed to have been given on the scheduled delivery
date) or mailed first class, postage prepaid, by registered or certified mail
(notices mailed shall be deemed to have been given on the third business day
after mailing), as follows (or to such other address as either party shall
designate by notice in writing to the other in accordance
herewith):
If to the
Company, to:
000 Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: General
Counsel
-14-
If to me,
to me at my address as then on file with the Company’s Human Resources
Department.
11. Amendment. No
provisions of this Agreement may be modified, waived, or discharged except by a
written document signed by a duly authorized Company officer and
me. Thus, for example, promotions, commendations, and/or bonuses
shall not, by themselves, modify, amend, or extend this Agreement. A
waiver of any conditions or provisions of this Agreement in a given instance
shall not be deemed a waiver of such conditions or provisions at any other
time.
12. Interpretation; Governing
Law. The validity, interpretation, construction, and
performance of this Agreement, and any proceedings under Section 6(e) or
arbitrations under Section 9, shall be governed by the law of the State of New
York (excluding where it mandates the use of another jurisdiction’s
laws).
13. Successors. This
Agreement shall be binding upon, and shall inure to the benefit of, me and my
estate, but I may not assign or pledge this Agreement or any rights arising
under it, except to the extent permitted under the terms of the benefit plans in
which I participate. Without my consent, the Company may assign this
Agreement to any affiliate or successor that agrees in writing to be bound by
this Agreement, after which any reference to the “Company” in this Agreement
shall be deemed to be a reference to the affiliate or successor, and the Company
thereafter shall have no further primary, secondary or other responsibilities or
liabilities under this Agreement of any kind.
14. Taxes. The Company
shall withhold taxes from payments it makes pursuant to this Agreement as it
determines to be required by applicable law.
15. Validity. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
16. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute the same
instrument.
17. Section
Headings. The section headings contained in this Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
18. Subsidiaries and
Affiliates. As used herein, the term “subsidiary” shall mean
any corporation or other business entity controlled directly or indirectly by
the Company or other business entity in question, and the term “affiliate” shall
mean and include any corporation or other business entity directly or indirectly
controlling, controlled by or under common control with the Company or other
business entity in question.
19. Entire
Agreement. All oral or written agreements or representations,
express or implied, with respect to the subject matter of this Agreement are set
forth in this Agreement. This Agreement overrides and supersedes any
prior agreements or representations, express or implied, with respect to the
subject matter of this Agreement. This Agreement does not, however,
override or supersede other written agreements I have executed relating to
specific aspects of my employment, such as conflicts of interest.
-15-
20. Former Employers. I
am not subject to any employment, confidentiality, or other agreement or
restriction that would prevent me from fully satisfying my duties under this
Agreement or that would be violated if I did so. Without the
Company’s prior written approval, I promise I will not:
(a) use
or disclose proprietary information belonging to a former employer or other
entity without its written permission;
(b) contact
any former employer’s customers or employees to solicit their business or
employment on behalf of the Group; or
(c) distribute
announcements about or otherwise publicize my employment with the
Group.
I will indemnify and hold the Company
harmless from any liabilities, including defense costs, that it may incur
because I am alleged to have broken any of these promises or improperly revealed
or used such proprietary information or to have threatened to do so, or if a
former employer challenges my entering into this Agreement or rendering services
pursuant to it.
[remainder
of page intentionally left blank]
-16-
21. Department of Homeland Security
Verification Requirement. I agree to file, in a timely manner,
all documents required by the Department of Homeland Security to verify my
identity and my lawful employment in the United
States. Notwithstanding any other provision of this Agreement, if I
fail to meet any such requirements promptly after receiving a written request
from the Company to do so, I agree that my employment shall terminate
immediately and that I shall not be entitled to any compensation from the
Company of any type.
|
I
acknowledge that all understandings and agreements between the Company and
me relating to the subjects covered in this Agreement are contained in it
and that I have entered into this Agreement voluntarily and not in
reliance on any promises or representations by the Company other than
those contained in this Agreement itself.
I
further acknowledge that I have carefully read this Agreement, that I
understand all of it, and that I have been given the opportunity to
discuss this Agreement with my private legal counsel and have availed
myself of that opportunity to the extent I wished to do so. I
understand that by signing this Agreement I am giving up my right to a
jury trial.
|
|
Date:
June 8, 2009
|
|||
|
By:
|
/s/
Xxxx Xxxxxxxx
|
||
|
Xxxx
X. Xxxxxxxx
|
|||
|
Executive
Vice President, Office of the Chief Executive and General
Counsel
|
|||
|
Date:
June 8, 2009
|
/s/
Xxxxxxx X. Xxxx
|
||
|
Xxxxxxx
X. Xxxx
|
|||
-17-
