EXHIBIT 10.4
MARVEL ENTERPRISES, INC.
PERFORMANCE-BASED RESTRICTED STOCK AGREEMENT
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THIS AGREEMENT, made as of the [___] day of [__________] (the "Grant
Date"), between Marvel Enterprises, Inc. (the "Company"), and [________________]
("Participant"), is entered into pursuant to the Marvel Enterprises, Inc. 2005
Stock Incentive Plan (the "Plan"). Capitalized terms used herein, but not
defined herein, shall have the meanings ascribed to them in the Plan.
WHEREAS, the Company has adopted the Plan in order to provide
additional incentive to certain officers, employees, consultants and directors
of the Company and its Subsidiaries; and
WHEREAS, the Committee responsible for administration of the Plan has
determined to grant restricted stock to Participant as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Restricted Stock. Pursuant to and subject to the
terms and conditions set forth herein and in the Plan, the Committee hereby
confirms the grant to Participant of [______] shares, subject to the
restrictions set forth herein (the "Restricted Stock"), of the Company's common
stock, par value $0.01 per share (the "Common Stock"). The Restricted Stock is a
Performance Award granted under Sections 6(d),(i) and (7) of the Plan and is
subject to the risk of forfeiture and other restrictions specified in this
Agreement.
2. Grant Date. The Grant Date of the Restricted Stock is defined
in the first paragraph of this Agreement.
3. Incorporation of Plan by Reference. All terms, conditions and
restrictions of the Plan are incorporated herein and made part hereof as if
stated herein. If there is any conflict between the terms and conditions of the
Plan and this Agreement, the terms and conditions of the Plan as interpreted by
the Committee shall govern.
4. Vesting of Restricted Stock.
(a) Vesting Schedule. The Restricted Stock shall become vested and
non-forfeitable only if the following performance goal (the "Performance Goal")
is met: [insert performance criteria expressed in terms of operating income or
such other performance criteria determined by the Committee and permitted by the
Plan]; provided, that, even if the Performance Goal has not been met, the
Restricted Stock shall become vested and non-forfeitable in full immediately
upon (i) a Third-Party Change of Control, as defined in subsection (b) below, or
(ii) the termination of Participant's employment with or service to the Company
because of Participant's death or
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disability, unless the events described in clauses (i) and (ii) of this sentence
occur after the Committee has determined that the Performance Goal was not met.
If the Performance Goal has been met, then the Restricted Stock shall become
vested and non-forfeitable in accordance with the following schedule: [One-half
of the Restricted Stock granted hereunder shall become vested and
non-forfeitable on the second anniversary of the Grant Date and an additional
one-half of the Restricted Stock granted hereunder shall become vested and
non-forfeitable on the third anniversary of the Grant Date] [or insert other
vesting schedule determined by the Committee].
(b) Definition of Third-Party Change of 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 such 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 in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of securities of
the Company representing fifty percent (50%) or more of the combined voting
power of the Company's then outstanding securities entitled to vote in the
election of directors of the Company, (ii) the Company is a party to any merger,
consolidation or similar transaction as a result of which the stockholders of
the Company immediately prior to such transaction beneficially own securities of
the surviving entity representing less than fifty percent (50%) of the combined
voting power of the surviving entity's outstanding securities entitled to vote
in the election of directors of the surviving entity or (iii) all or
substantially all of the assets of the Company are acquired by a Third Party.
"Excluded Group" means a "group" (as such 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"
(as such term is used in Rule 13d-3 promulgated under the Exchange Act) by such
Excluded Persons (without attribution to such Excluded Persons of the ownership
by other members of the "group") represents a majority of the voting power of
the voting stock "beneficially owned" (as such term is used in Rule 13d-3
promulgated under the Exchange Act) by such group. "Excluded Person" means Xxxxx
Xxxxxxxxxx and Xxx Xxxx or any of their affiliates, any spouse or any lineal
descendants of Messrs. Xxxxxxxxxx or Arad, and any trust established solely for
the benefit of, and any charitable trust or foundation established by, Messrs.
Xxxxxxxxxx or Arad or their spouses or lineal descendants and each of their
respective affiliates.
5 Effect of Termination of Employment or Service. Except as
otherwise provided in Section 4(a)(ii) hereof or in an employment agreement
between Participant and the Company, if Participant's employment with or service
to the Company is terminated for any reason, any portion of the Restricted Stock
that has not become vested and non-forfeitable prior to such termination shall
be immediately forfeited.
6. Restriction on Transfer of Restricted Stock. Until such time
as the Restricted Stock has become vested and non-forfeitable, Participant shall
have no right to sell, transfer, assign, pledge, or otherwise encumber or
dispose of the shares of Restricted Stock (except for forfeitures to the
Company).
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7. Dividends and Adjustments.
(a) Dividends. In the event of dividends or distributions on
Restricted Stock, the following terms and conditions shall apply except
as provided in Section 7(b) below:
(i) In the event of a cash dividend or distribution
on Restricted Stock, such dividend or distribution shall be
paid in cash to Participant and shall be non-forfeitable.
(ii) In the event of any non-cash dividend or
distribution in the form of property other than the Company's
Common Stock payable on Restricted Stock (including shares of
a subsidiary of the Company distributed in a spin-off), the
Company shall retain in its custody the property so
distributed in respect of Participant's Restricted Stock,
which property thereafter will become vested and
non-forfeitable if and to the same extent as the original
Restricted Stock with respect to which the property was
distributed becomes vested and non-forfeitable and, to the
greatest extent practicable, shall, along with any dividends
or distributions paid thereon, be subject to all other terms
and conditions as applied to the original Restricted Stock,
including with respect to the placement of any legend on
certificate(s) or documents representing such property;
provided, however, that any dividend or distributed rights
that expire before the latest Vesting Date will be
unrestricted and exercisable by Participant in accordance with
their terms.
(iii) In the event of a dividend or distribution in
the form of Common Stock or a split-up of shares, the Common
Stock issued or delivered as such dividend or distribution or
resulting from such split-up will be deemed to be additional
Restricted Stock and will become vested and non-forfeitable if
and to the same extent as the Restricted Stock with respect to
which the dividend or distribution was payable becomes vested
and non-forfeitable, and shall be subject to all other terms
and conditions as applied to the original Restricted Stock.
(b) Adjustments. The Committee shall conclusively determine
the appropriate adjustments, if any, to the number and kind of shares
of Restricted Stock, the number of such shares to be vested and
non-forfeitable, and other terms and conditions of the Restricted Stock
or otherwise contained in this Agreement, in order to prevent dilution
or enlargement of Participant's rights hereunder and to reflect any
changes in the number of outstanding shares of Common Stock resulting
from any Change in Capitalization, taking into account any Restricted
Stock or other amounts paid or credited to Participant in connection
with such event under Section 7(a) hereof. In addition, the Committee
may vary the treatment of any dividend or distribution as specified
under Section 7(a), in its discretion. The Committee may determine how
to treat or settle any fractional share resulting under this Agreement.
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8. Other Terms of Restricted Stock.
(a) Voting and Other Stockholder Rights. Participant shall be
entitled to vote Restricted Stock on any matter submitted to a vote of
holders of Common Stock, and shall have all other rights of a
stockholder of the Company except as expressly limited by this
Agreement and the Plan.
(b) Consideration for Grant of Restricted Stock. Participant
shall be required to pay no cash consideration for the grant of the
Restricted Stock, but Participant's performance of services to the
Company prior to the vesting of the Restricted Stock shall be deemed to
be consideration for this grant of Restricted Stock. Participant's
services performed on the Grant Date are hereby determined to have a
value at least equal to the aggregate par value of the shares being
newly issued in connection with the grant of Restricted Stock.
(c) Xxxxxxx Xxxxxxx Policy Applicable. Participant
acknowledges that sales of shares resulting from Restricted Stock that
has become vested and non-forfeitable will be subject to the Company's
then-applicable securities trading policy.
(d) Certificates Evidencing Restricted Stock. Restricted Stock
shall be evidenced by issuance of one or more certificates in the name
of Participant, bearing an appropriate legend referring to the terms,
conditions, and restrictions applicable hereunder, and shall remain in
the physical custody of the Secretary of the Company or his designee
until such time as such shares of Restricted Stock shall have become
vested and non-forfeitable and the restrictions hereunder shall have
therefore lapsed. In addition, Restricted Stock shall be subject to
such stop-transfer orders and other restrictive measures as the General
Counsel of the Company shall deem advisable under federal or state
securities laws, and the rules and regulations thereunder, and the
rules of the New York Stock Exchange, or to implement the terms,
conditions and restrictions hereunder, and the General Counsel may
cause a legend or legends to be placed on any such certificates to make
appropriate reference to the terms, conditions and restrictions
hereunder.
(e) Stock Powers. In order to effect the provisions of Section
5 hereof, Participant agrees, upon reasonable request of the General
Counsel, to execute and deliver to the Company such stock powers or
other documents of transfer as may be specified by the General Counsel,
authorizing the transfer of the Restricted Stock to the Company.
(f) Compliance Matters. The Company shall have no obligation
to issue or deliver Restricted Stock to Participant until such time as
counsel to the Company shall have determined that such actions by the
Company are in compliance with all applicable laws and regulations of
governmental authorities and the requirements of any securities
exchange on which shares of Common Stock are traded.
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9. No Right to Continued Employment. Nothing in this Agreement or
the Plan shall be interpreted or construed to confer upon Participant any right
with respect to continuance of employment by the Company or any subsidiary, nor
shall this Agreement or the Plan interfere in any way with the right of the
Company to terminate Participant's employment at any time.
10. Withholding of Taxes. The Company shall have the right to
deduct from any distribution to Participant an amount equal to the federal,
state and local income taxes and other amounts as may be required by law to be
withheld (the "Withholding Taxes") with respect to the Restricted Stock and any
distribution relating thereto. In connection with any vesting of the Restricted
Stock, unless, prior to vesting, other arrangements have been made by
Participant satisfactory to the Committee providing for payment of Withholding
Taxes, the Company shall withhold from the shares of Common Stock deliverable
upon vesting a number of shares of Common Stock having an aggregate Fair Market
Value equal to the Withholding Taxes then due.
11. Receipt of Plan. Participant hereby acknowledges receipt of a
copy of the Plan. Participant hereby acknowledges that all decisions,
determinations and interpretations of the Committee in respect of the Plan, this
Agreement and the Restricted Stock shall be final and conclusive.
12. Modification of Agreement. This Agreement may be modified,
amended, suspended or terminated, and any terms or conditions may be waived, but
only by a written instrument executed by the Company and, if such change is
materially adverse to or imposes any additional obligation on Participant, by
Participant.
13. Severability. Should any provision of this Agreement be held
by a court of competent jurisdiction to be unenforceable or invalid for any
reason, the remaining provisions of this Agreement shall not be affected by such
holding and shall continue in full force in accordance with their terms.
14. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without giving effect to the conflicts of laws principles thereof.
15. Successors in Interest. This Agreement shall inure to the
benefit of and be binding upon any successor corporation to the Company. This
Agreement shall inure to the benefit of Participant's legal representatives. All
conditions and other terms imposed upon Participant and all rights granted to
the Company under this Agreement shall be final, binding and conclusive upon
Participant's heirs, executors, administrators and successors.
16. Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties hereto with respect to the subject matter
hereof.
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17. Resolution of Disputes. Any dispute or disagreement which may
arise under, or as a result of, or in any way relate to, the interpretation,
construction or application of this Agreement shall be determined by the
Committee. Any determination made hereunder shall be final, binding and
conclusive on Participant and the Company for all purposes.
COMPANY:
MARVEL ENTERPRISES, INC.
By: ____________________________________
Name:
Title:
PARTICIPANT:
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