EMPLOYMENT AGREEMENT
Exhibit
10.2
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 May 28, 2007 and shall end on May 31, 2009 (“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
Section 6, 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 higher rate as it elects to pay me. 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. 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 to a vacation period or periods of three (3) weeks per year
taken in accordance with the vacation policy of the Company during each year
of
the Term. Vacation time not used by the end of a calendar year shall
be forfeited.
(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, subject to my understanding that
any
reimbursements for expenses I incur in a calendar year must be submitted for
reimbursement and reimbursed not later than the last day of the next calendar
year.
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 the Company’s ongoing
indemnification obligation under Section 8, my confidentiality and other
obligations under Section 6, 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 to be made
under this section be made later than the seventy-fourth (74th) day of the
next
fiscal year after they become payable.
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DISCHARGE
FOR CAUSE
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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.
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DEATH
OR DISABILITY
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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 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.
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DISCHARGE
OTHER THAN FOR CAUSE, DEATH, OR DISABILITY
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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; (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 the date of discharge; (5)
any award made to me under the Company’s stock incentive plan(s) or cash
incentive compensation plan(s) shall continue to vest during the
period
described in clause (1) of this sentence; and (6) any stock options
awarded to me by the Company shall remain exercisable, to the extent
vested, for 90 days after the expiration of the period described
in clause
(1) of this sentence.
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RESIGNATION
WITHOUT GOOD REASON
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Same
as for “Discharge for Cause.”
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RESIGNATION
WITH GOOD REASON
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Same
as for “Discharge Other Than for Cause, Death, or
Disability.”
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TERMINATION
WITHOUT CAUSE OR RESIGNATION WITH GOOD REASONS WITHIN 12 MONTHS AFTER
A
THIRD PARTY CHANGE IN CONTROL
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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) twelve months after my termination date; (5) any award
made to
me under the Company’s stock incentive plan(s) or cash incentive
compensation plan(s) shall continue to vest for twelve months after
my
termination date; and (6) any stock options awarded to me by the
Company
shall remain exercisable, to the extent vested, for 90 days after
the
twelve-month anniversary of my termination date
Any
payments or benefits provided to me in connection with a Third Party
Change on Control shall be in lieu of any other benefits or payment
available or otherwise payable to me under this Section
5.
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EXPIRATION
OF AGREEMENT
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Same
as for “Discharge for Cause.”
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(b) Discharge
for Cause. The Company may terminate my employment at any
time if the Board believes that it has Cause to terminate me. “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
refusal to follow the Company’s lawful directions or my material failure 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
testimony at any trial or inquiry) to cooperate, if requested by the Board,
with
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;
(vi) my
gross 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.
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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.
(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 to do so, and, in any event, not without giving the
Company at least 90 days’ advance written notice. 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 occurred
after my execution of this Agreement and was not reversed or cured within 30
days of my giving the Company written notice that I consider the event (if
it
remains) to have given me “Good Reason” for resigning:
(i) a
substantial and adverse diminishment of my duties or
responsibilities;
(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 this Agreement; or
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(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.
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 notice period
referred to above; 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) Disputes
Under This Section. All disputes relating to this Agreement,
including disputes relating to this section, shall be resolved by final and
binding arbitration under Section 9. For example, if the Company and
I disagree as to whether the Company had Cause to terminate my employment,
we
will resolve the dispute through arbitration; the arbitrator will decide whether
the Company had Cause to terminate my employment.
(i) Amounts
Owed to the Company. Any amounts payable to me under this
section shall first be applied to repay any amounts I owe the
Company.
(j) Third
Party Change in Control. 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
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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.
(k) Section
409A. Notwithstanding anything in this Section 5 to
the contrary, if and to the extent that the Company determines in good faith
that (i) any payment or benefit that exceeds two times the limit in effect
under
Code Section 401(a)(17) for the calendar year of my termination (or, if less,
two times my annualized compensation for the preceding calendar year) and that
is otherwise payable to me under this Section 5 constitutes a “deferral of
compensation” under Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”) (as set forth in Treasury Regulations or binding
administrative notices or rulings issued by the Internal Revenue Service) and
(ii) I am a “specified employee” within the meaning of Code Section
409A(a)(2)(B)(i), then the Company shall delay commencement of any such payment
or benefit until six months after my last day of employment with the Company
(the “409A Suspension Period”). Within fourteen calendar days after
the end of the 409A Suspension Period, the Company shall pay me a lump sum
payment in cash equal to any payments (including interest on any such payments,
at an interest of not less than the prime interest rate, as published in The
Wall Street Journal, over the period such payment is restricted from being
paid to me) and benefits that the Company would otherwise have been required
to
provide under this Section 5 but for the imposition of the 409A Suspension
Period. Thereafter, I shall receive any remaining payments and
benefits due under this Section 5 in accordance with the terms of this section
(as if there had not been any suspension period beforehand).
(l) Golden
Parachute Limitation. If
any payment or benefit (within the meaning of Section
280G(b)(2) of the Code), to me or for my benefit paid or payable or distributed
or distributable pursuant to the terms of this Agreement or otherwise in
connection with, or arising out of, my employment with the Company or a change
in ownership or effective control of the Company or of a substantial portion
of
its assets (a “Parachute Payment” or “Parachute Payments”), would be subject to
the excise tax imposed by Section 4999 of the Code or any interest or penalties
are incurred by me with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively referred
to
as the “Excise Tax”), then I will be entitled to receive an additional payment
(a “Gross-Up Payment”) in an amount such that after payment by me of all taxes
(including any interest or penalties, other than interest and penalties imposed
by reason of my failure to file timely a tax return or pay taxes shown to be
due
on my return), including any Excise Tax imposed upon the Gross-Up Payment,
I
retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Parachute Payments. I shall receive any payments due under this
Section 5(l) within two and one-half months after they become payable (to the
extent reasonably practicable), and in no event later than the end of the
calendar year after the year in which I remit the taxes giving rise to the
payment hereunder.
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The
determination as to whether a Gross-Up Payment is required pursuant to this
Agreement and the amount of such Gross-Up Payment shall be made at the Company’s
expense by the Company’s regular outside auditors (the “Accounting
Firm”). The Accounting Firm shall provide its determination (the
“Determination”), together with detailed supporting calculations and
documentation to the Company and me within ten days of the Termination Date
if
applicable, or promptly upon request by the Company or by me (provided I
reasonably believe that any of the Parachute Payments may be subject to the
Excise Tax) and if the Accounting Firm determines that no Excise Tax is payable
by me with respect to a Parachute Payment or Parachute Payments, it shall
furnish me with an opinion reasonably acceptable to me that no Excise Tax will
be imposed with respect to any such Parachute Payment or Parachute
Payments. \ The Gross-Up Payment, if any, as determined
pursuant to this Section 5(l) shall be paid by the Company to me within ten
days
of the receipt of the accounting Firm’s determination. The
Determination shall be binding, final and conclusive upon the Company and
me. Notwithstanding the foregoing, in no event shall payment of
the
Gross-Up Payment occur before the earlier of my “separation from service”
(within Treasury Regulation
§
1.409A-1(h)) from the Company or a change in control event (as
described within Treasury Regulation § 1.409A-3(i)(5),
a “Qualifying Change in
Control”). If I
become entitled to receive a Gross Up Payment in connection with a change in
control that is not a Qualifying Change in Control, the unpaid Gross-Up Payment
shall accrue interest an annual interest rate of prime
plus one-percent until paid
immediately following my last day of employment; however, if I am a
“specified
employee” within the
meaning of Code Section 409A(a)(2)(B)(i), then the Company shall pay me the
deferred Gross-Up Payment on the date that is six
months after my last day of employment
with the Company.
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 the Business (as defined below) world-wide. I further
recognize and agree that, in my position with the Company, I will be responsible
for: (i) actively conducting the Business, (ii) overseeing Company
activities, (iii) developing and implementing strategies on behalf of the
Company and everywhere the Group currently conducts the Business, and (iv)
affecting customers, suppliers, and distributors everywhere the Group currently
conducts the 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 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, suppliers, investors, and business
partners (“Confidential
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Information”). “Confidential
Information” may include, among other things, information relating to the
Group’s business or operational methods; corporate plans; management systems;
finances; new business opportunities; 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.
(c) Non-Competition
and Non-Solicitation. I promise and agree that I will not,
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 (except
on behalf of the Company) and for a period of one year after that employment
ends for any reason:
(i) render
services of an executive, advertising, marketing, sales, supervisory, technical,
research, purchasing, 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 character-based licensing, publication (in any medium) of comic
books or other graphic fiction, toy manufacturing, film production and
entertainment (“Business”), nor shall I 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; or
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(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.
(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).
(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;
(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; and
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11 -
(vi) the
Group shall be entitled to recover from me the reasonable costs, including
attorneys’ fees, it incurs in pursuing legal action to enforce this Section 6,
but only if that legal action results in a money judgment, temporary restraining
order, or injunction against me.
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.
(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 within the geographical scope of such
covenants. In the event that the courts of any one or more of such
states 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.
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(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 his 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).
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. 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
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13 -
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
(“ArbitrableDisputes”) 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.
(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 Employment Arbitration Rules
and Procedures then in effect before an experienced employment law arbitrator
licensed to practice law in that jurisdiction who has been selected in
accordance with such rules. The arbitrator may not modify or change
this Agreement in any way except as expressly set forth herein.
(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. Notwithstanding the foregoing, the arbitrator may, in his or her
discretion, award reasonable attorneys’ fees (in addition to any other damages,
expenses or relief awarded) to the prevailing party.
(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. Nothing in this
Section
9 shall
preclude any party to this
agreement from seeking judicial enforcement of an arbitrator’s
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
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14 -
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
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.
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15 -
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.
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) 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.
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.
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16 -
| 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 20, 2007
|
MARVEL ENTERTAINMENT, INC. | ||
|
|
By:
|
/s/ Xxxx X. Xxxxxxxx | |
| Name: Xxxx X. Xxxxxxxx | |||
| Title: General Counsel and Executive Vice President | |||
|
Date:
June 20, 2007
|
/s/
Xxxxxxx X. Xxxx
|
||
| Xxxxxxx X. Xxxx | |||
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