Exhibit 10.24
November 21, 2002
Xxxxx Xxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Re: Amended and Restated Employment Agreement
Dear Xxxxx:
On behalf of Marvel Enterprises, Inc. (hereinafter the "Company"), I am pleased
to confirm in this letter agreement (the "Agreement") that your employment with
the Company will continue on a part-time basis on the date (the "Effective
Date") that any one of the following events occur: (i) you give the Company
notice pursuant to Section 4.4(a) of the Employment Agreement between the
Company and you dated as of October 29, 1999 and amended as of the date hereof
by Amendment No. 1 to Employment Agreement (the "1999 Employment Agreement");
(ii) you give the Company notice pursuant to Section 4.4(b) of the 1999
Employment Agreement, as amended; (iii) the Company gives you notice of the
termination of the 1999 Agreement, other than pursuant to Section 4.1, 4.2 or
4.3 thereof; or (iv) the Company gives you a Notice of Nonrenewal, as described
in 1999 Employment Agreement.
The occurrence of any of the foregoing events does not terminate the "Term" of
the 1999 Employment Agreement, but instead automatically results in the 1999
Employment Agreement being amended and restated in its entirety by this
Agreement. The "Term" of your employment is hereby revised to mean the period
starting on the Effective Date and ending on the second anniversary of the
Effective Date (the "Scheduled Expiration Date"), unless sooner terminated
pursuant to Section 3 below.
1. POSITION AND DUTIES.
On the Effective Date, you will cease to be a regular full time employee of
the Company but you will continue to be employed by the Company as an
employee in a part time special assignment position, with the title of
Special Advisor to the Chief Executive Officer ("CEO") or his successor
(collectively "Your Supervisor"). You will also resign as an officer of the
Company and as an officer and/or director any of its subsidiaries or
affiliates on the Effective Date. In connection with resigning your
offices, you agree to execute and return to the Company with this Agreement
two signed, undated original resignation letters on Company letterhead in
the forms provided in Appendices A through _ to this Agreement. Appendices
A through _ are hereby incorporated into and made part of this Agreement by
reference. In addition, you agree to take all such further steps as the
Company may reasonably deem necessary or appropriate in order to accomplish
the official formalities of your resignation of the officer and/or director
positions that you hold with the Company's subsidiaries or affiliates,
including but not limited to executing board resolutions.
As Special Advisor to the CEO, you will have any or all of the following
duties and responsibilities as determined by Your Supervisor in his/her
discretion:
1. advising the CEO regarding the Company's financial, legal and licensing
matters;
2. providing assistance with the Company's investor relations program;
3. assisting with the evaluation and integration of business acquisitions;
and
4. assisting Your Supervisor in such other matters that are consistent with
your background and experience as Your Supervisor may assign you.
The times and places where this work will be performed will be at your
choosing unless otherwise requested by Your Supervisor. Your Supervisor
will assign matters to you from time to time and you will provide Your
Supervisor with written or oral reports as reasonably, requested by Your
Supervisor (or if not requested by Your Supervisor, then periodically, but
not less frequently than annually) detailing your progress toward
accomplishing the tasks and directives given to you by Your Supervisor. You
will also provide additional reports and materials, upon reasonable request
by Your Supervisor. Your Supervisor will evaluate your performance.
Your Supervisor will control and direct the manner (including the order) in
which you perform the services under this Agreement, including the details
and means by which you provide your services.
You will be an employee of the Company for all purposes during the term of
this Agreement and will not be an independent contractor.
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The position of Special Advisor to the CEO, is a part time special
assignment position in which you will be required to work a minimum of ten
(10) hours per month, however, you also agree that, to the extent that Your
Supervisor requests, you will work up to twenty (20) hours per month. You
will not be required to work more than twenty (20) hours per month ,
however, in the event that you do work more than twenty (20) hours per
month, then you will receive no additional compensation or benefits for
such additional work. If, in any month, Your Supervisor does not
specifically assign you a sufficient amount of work to meet your minimum
hour requirement, you will satisfy your minimum requirement by
independently researching and evaluating developments and trends in your
areas of responsibility, as set forth above, and reporting your findings to
Your Supervisor. Your time spent on business travel at the Company's
request (but not commuting to and from your residence to the Company's New
York City headquarters) shall count toward your ten hour minimum monthly
work requirement under this Agreement.
If requested by Your Supervisor, you agree to attend certain meetings or
programs related to your area of expertise, so long as such meeting or
program does not unreasonably interfere with your other activities.
Furthermore, from time to time, your duties may require you to travel and
attend meetings at various locations, and you agree that no reasonable
request by Your Supervisor for travel or attendance at meetings will be
refused. Your Supervisor will work with you in scheduling any such business
trips or meetings so that they do not unreasonably interfere with your
other activities. The Company will reimburse you for your reasonable travel
expenses pursuant to the reimbursement policy(ies) in place at the Company
at the time you incur such expenses.
You will maintain an accurate and contemporaneous log showing the time you
have spent performing the foregoing services and this log shall be deemed
conclusive evidence of the time spent. Your Supervisor, at any time, may
request a copy of your log and you agree to provide such a copy within a
reasonable period of time after the request is made.
We have agreed that your part time special assignment will continue until
the Scheduled Expiration Date, subject to earlier termination by you or the
Company as set forth in Section 3 of this Agreement.
During the Term, except as set forth herein, you may not be employed by any
other person or company, other than the Company, without the Company's
prior written approval, which shall not be unreasonably withheld. You may,
however engage in the following activities without the Company's prior
approval, provided that the three conditions listed below are met. The
permissible activities are: teaching, sitting on boards of directors or
advisory committees of other companies and providing services to other
companies either as a consultant or an employee. These listed activities
are permissible provided that each (1) is performed outside the fields of
publishing, licensing and entertainment, (2) does not violate the
provisions of Section 5.2 herein, and (3) does not interfere with your
duties under this Agreement. You also agree that, during the term of this
Agreement and for one year after its termination, you will not induce any
employee of the Company to leave the employ of the Company or otherwise
solicit for employment or affiliation, including as an independent
contractor, any officer, director, or employee of the Company or its
subsidiaries.
2. COMPENSATION AND BENEFITS.
Following is a brief description of the compensation and benefits you will
receive under this Agreement during your part time special assignment. The
terms and conditions of all of your benefits are subject to the terms and
conditions of each of the applicable plans, policies or arrangements, as
they may be amended or terminated by the Company from time to time, except
that the amount of your compensation as set forth in Section 2.1 may not be
modified, except as provided in Section __ of this Agreement.
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2.1 Compensation. Your compensation will be at the rate of $200,000 per
annum ("Salary") for the period from the Effective Date through the
Scheduled Expiration Date, payable biweekly in arrears, subject to
applicable income tax and employment tax withholding requirements. The
Company also will reimburse you for any reasonable business expenses
you incur in performing your duties, subject to the Company's standard
employee expense reimbursement policies.
2.2 Administrative Support. The Company will provide you with an office
and secretarial assistance for any work that you perform while at the
Company's New York City headquarters. You also will be provided any
office equipment and supplies you may need to perform your duties
under this Agreement. The Company will not reimburse you or pay for
any office space you may rent or any office equipment you may purchase
in connection with performing your services under this Agreement
without the Company's prior written approval.
2.3 Retirement and Savings Plan. Subject to the terms of the Company's
401(k) Plan, you will be eligible to participate in such Plan until
the expiration of the Term (the "Termination Date").
2.4 Stock Options:
2.4.1 No New Grants. As an employee in a part time special
assignment position, you ------------- will not be eligible
to receive additional stock option grants after the
Effective Date.
2.4.2 Vesting During Special Assignment. To the extent that you
continue in your part time special assignment, you will be
eligible to continue to vest in all unvested options that
have previously been granted to you by the Company on the
dates and in the manner provided in your stock option grant
agreements and applicable stock option plans. No unvested
stock options will vest following the Termination Date
except as otherwise set forth in this Agreement.
2.4.3 Cooperation To Restructure. As we have discussed, it is our
intention that your -------------------------- ability to
continue to vest in and exercise options while in your part
time special assignment position will not result in any
additional compensation charges to the Company in accordance
with U.S. generally accepted accounting principles.
Accordingly, if at any time the Company determines that it
is reasonably likely that the Company will incur a
compensation charge as a result of your vesting or
exercising options in your part time special assignment
position, then you agree that you will use your reasonable
best efforts to cooperate with the Company to restructure
this Agreement and your position as the Company reasonably
determines is necessary for you to continue to be able to
vest and exercise your options without creating a
compensation charge to the Company in accordance with U.S.
generally accepted accounting principles and without causing
you to lose any of the benefits of this Agreement. It is
expressly understood that your "reasonable best efforts to
cooperate with the Company" shall not require that you take
or forbear from taking any action that would result in any
loss of value of the options.
2.4.4 No Amendment to Stock Option Grant Agreements or Stock
Option Plans. Nothing in this Agreement shall be deemed to
alter, amend, or otherwise modify the terms of your stock
option grant agreements or the terms of the applicable stock
option plans.
2.5 Medical and Dental Insurance. Your medical and dental insurance
coverage will terminate on the ----------------------------
Termination Date.
2.6 Life Insurance, Accidental Death and Dismemberment Insurance and Long
Term Disability. Unless permitted under the terms of the applicable
Plans, your Life Insurance, Accidental Death and Dismemberment
Insurance and Long Term Disability coverage will terminate on the
Effective Date.
2.7 Other Benefits. As an employee in a part time special assignment
position, after the Effective Date you will not be eligible to
participate in any of the Company's other benefit plans and programs,
not specifically listed in this letter, including but not limited to
any bonus program, personal illness, vacation/optional holiday pay;
family illness/personal time; bereavement leave; or holidays. By
signing this Agreement, you agree that, notwithstanding any rights you
may otherwise have under these programs, you hereby waive your claim
to any benefits under these programs.
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3. EARLY TERMINATION OF SPECIAL ASSIGNMENT.
If you accept this position, it will become your new assignment and you
will have no right to return to your current position. We have agreed that
you will continue in your part time special assignment position until the
Scheduled Expiration Date, at which time your employment with the Company
will terminate; provided however, that the Term may end sooner in the event
of the following:
3.1 Death. If you shall die during the Term, the Term shall terminate
immediately. -----
3.2 Disability. If during the Term you shall become physically or mentally
disabled, whether totally or partially, such that you are unable to
perform the principal services hereunder for (i) a period of six
consecutive months or (ii) for shorter periods aggregating six months
during any twelve month period, the Company may at any time after the
last day of the six consecutive months of disability or the day on
which the shorter periods of disability shall have equaled an
aggregate of six months, by written notice to you (but before you have
recovered from such disability), terminate the Term.
3.3 Cause. The Term may be terminated by the Company upon notice to you
upon the occurrence of any event constituting "Cause" as defined
herein. As used herein, the term "Cause" means: your willful and
intentional failure or refusal to perform or observe any of your
material duties, responsibilities or obligations set forth in this
Agreement; provided, however, that the Company shall not be deemed to
have Cause pursuant to this clause (i) unless the Company gives you
written notice that the specified conduct has occurred and making
specific reference to this Section 3.3, you are given an opportunity
to appear before the Board of Directors to discuss the conduct alleged
to constitute Cause and you fail to cure the conduct within thirty
(30) days after receipt of such notice; (ii) breach by you of any of
your obligations under Section 5 hereof; (iii) any willful and
intentional acts by you involving fraud, theft, misappropriation of
funds, embezzlement or material dishonesty affecting the Company or
willful misconduct by you which has, or could reasonably be expected
to have, a material adverse effect on the Company; or (iv) your
conviction of, or plea of guilty or nolo contendre to, an offense
which is a felony in the jurisdiction involved.
3.4 Permitted Termination by You.
3.4.1 The Term may be terminated by you upon notice to the Company
of any event constituting "Good Reason" as defined herein.
As used herein, the term "Good Reason" means the occurrence
of any of the following, without your prior written consent:
(i) assignment of duties materially inconsistent with duties
as described in Section 1 hereof; (ii) any material breach
of this Agreement by the Company which is continuing; or
(iii) if the Company's headquarters are moved outside the
New York City metropolitan area and you are required to
perform your duties at the new headquarters; provided,
however, that you shall not be deemed to have Good Reason
pursuant to clauses (i) and (ii) above unless you give the
Company written notice that the specified conduct or event
has occurred and making specific reference to this Section
3.4.1 and the Company fails to cure such conduct or event
within thirty (30) days of receipt of such notice.
3.4.2 The Term may be terminated by you at any time by giving the
Company a notice of termination specifying a termination
date no less than sixty (60) days after the date the notice
is given.
4. SEVERANCE
4.1 If the Term is terminated pursuant to Section 3.1, 3.2 or 3.3 hereof,
or by you other than pursuant to Section 3.4.1, you shall be entitled
to receive your Salary and any additional benefits provided hereunder
at the rates provided in Section 2 hereof to the date on which such
termination shall take effect.
4.2 If the Term is terminated by you pursuant to Section 3.4.1, the
Company shall continue thereafter to provide you (i) payments of your
Salary in the manner and amounts specified in Section 3.1 until the
Expiration Date (the "Good Reason Severance Period") and (ii) fringe
benefits in the manner and amounts specified in Section 2.6 until the
end of Good Reason Severance Period. In addition, all unvested equity
arrangements provided to you prior to the Effective Date or under any
employee benefit plan of the Company shall continue to vest until the
Expiration Date unless vesting is accelerated upon the occurrence of
the Third Party Change in Control and shall remain exercisable for
ninety days thereafter.
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4.3 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 either (x) the Company's common stock ceases to
be listed on a national securities exchange or on NASDAQ or (y) the
shareholders 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.
4.3.1 "Excluded Person" means (i) Xxxxx Xxxxxxxxxx and Xxx Xxxx or
any of their affiliates, (ii) any spouse or any one or more
lineal descendants Messers Xxxxxxxxxx and Arad or any of
their affiliates, and (iii) any trust established solely for
the benefit of, and any charitable trust or foundation
established by, any person or entity included in the
foregoing clauses (i) and (ii); provided that each such
persons and entity included in clauses (i) and (ii) shall
only be deemed to be an Excluded Person to the extent that
the Company's securities was received by such person or
entity directly or indirectly from Xx. Xxxxxxxxxx or Xx.
Xxxx, respectively.
4.4 If any payment or benefit (within the meaning of Section 280G(b)(2) of
the Internal Revenue Code of 1986, as amended (the "Code")), to you or
for your benefit paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise in connection
with, or arising out of, your 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 you 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 you will be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by you of all
taxes (including any interest or penalties, other than interest and
penalties imposed by reason of the you failure to file timely a tax
return or pay taxes shown to be due on you return), including any
Excise Tax imposed upon the Gross-Up Payment, you retain an amount of
the Gross-Up Payment equal to the Excise Tax imposed upon the
Parachute Payments.
4.5 An initial 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
you within ten days of the Termination Date if applicable, or promptly
upon request by the Company or by you (provided you 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
you with respect to a Parachute Payment or Parachute Payments, it
shall furnish you with an opinion reasonably acceptable to you that no
Excise Tax will be imposed with respect to any such Parachute Payment
or Parachute Payments. Within ten days of the delivery of the
Determination to you, you shall have the right to dispute the
Determination (the "Dispute"). The Gross-Up Payment, if any, as
determined pursuant to this Section 4.7 shall be paid by the Company
to you within ten days of the receipt of the Accounting Firm's
determination notwithstanding the existence of any Dispute. If there
is no Dispute, the Determination shall be binding, final and
conclusive upon the Company and you subject to the application of
Section 4.8 below. The Company and you shall resolve any Dispute in
accordance with the terms of this Agreement.
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4.6 As a result of the uncertainty in the application of Sections 4999 and
280G of the Code, the parties acknowledge that it is possible that a
Gross-Up Payment (or a portion thereof) will be paid which should not
have been paid (an "Excess Payment") or a Gross-Up Payment (or a
portion thereof) which should have been paid will not have been paid
(an Underpayment"). An Underpayment shall be deemed to have occurred
(i) upon notice (formal or informal) to you from any governmental
taxing authority that your tax liability (whether in respect of your
current taxable year or in respect of any prior taxable year) may be
increased by reason of the imposition of the Excise Tax on a Parachute
Payment or Parachute Payments with respect to which the Company has
failed to make a sufficient Gross-Up Payment, (ii) upon a
determination by a court, (iii) by reason of determination by the
Company (which shall include the position taken by the Company,
together with its consolidated group, on its federal income tax
return) or (iv) upon the resolution of the Dispute to your
satisfaction. If an Underpayment occurs, you shall promptly notify the
Company and the Company shall promptly, but in any event, at least
five days prior to the date on which the applicable government taxing
authority has requested payment, pay to you an additional Gross-Up
Payment equal to the amount of the Underpayment plus any interest and
penalties (other than interest and penalties imposed by reason of your
failure to file timely a tax return or pay taxes shown to be due on
your return) imposed on the Underpayment. An Excess Payment shall be
deemed to have occurred upon a "Final Determination" (as hereinafter
defined) that the Excise Tax shall not be imposed upon a Parachute
Payment or Parachute Payments (or portion thereof) with respect to
which you had previously received a Gross-Up Payment. A "Final
Determination" shall be deemed to have occurred when you have received
from the applicable government taxing authority a refund of taxes or
other reduction in the your tax liability by reason of the Excise
Payment and upon either (x) the date a determination is made by, or an
agreement is entered into with, the applicable governmental taxing
authority which finally and conclusively binds you and such taxing
authority, or in the event that a claim is brought before a court of
competent jurisdiction, the date upon which a final determination has
been made by such court and either all appeals have been taken and
finally resolved or the time for all appeals has expired or (y) the
statute of limitations with respect to your applicable tax return has
expired. If an Excess Payment is determined to have been made, the
amount of the Excess Payment shall be treated as a loan by the Company
to you and you shall pay to the Company on demand (but not less than
10 days after the determination of such Excess Payment and written
notice has been delivered to you) the amount of the Excess Payment
plus interest at an annual rate equal to the Applicable Federal Rate
provided for in Section 1274(d) of the Code from the date the Gross-
Up Payment (to which the Excess Payment relates) was paid to you until
the date of repayment to the Company.
4.7 Notwithstanding anything contained in this Agreement to the contrary,
in the event that, according to the Determination, an Excise Tax will
be imposed on any Parachute Payment or Parachute Payments, the Company
shall pay to the applicable government taxing authorities as Excise
Tax withholding, the amount of the Excise Tax that the Company has
actually withheld from the Parachute Payment or Parachute Payments or
the Gross Up Payment.
5. PROTECTION OF CONFIDENTIAL INFORMATION; NON-COMPETITION.
5.1 In view of the fact that your work for the Company has brought you and
will continue to bring you into close contact with many confidential
affairs of the Company not readily available to the public, as well as
plans for future developments by the Company, you agree:
5.1.1 To keep and retain in the strictest confidence all
confidential matters of the Company, including, without
limitation, "know how", trade secrets, customer lists,
pricing policies, operational methods, technical processes,
formulae, inventions and research projects, and other
business affairs of the Company ("Confidential
Information"), learned by you heretofore or hereafter, and
not to use or disclose them to anyone outside of the
Company, either during or after your employment with = the
Company, except in the course of performing your duties
hereunder or with the Company's express written consent;
provided, however, that the restrictions of this Section
5.1.1 shall not apply to that part of the Confidential
Information that you demonstrate is or becomes generally
available to the public other than as a result of a
disclosure by you or is available, or becomes available, to
you on a non-confidential basis, but only if the source of
such information is not prohibited from transmitting the
information to you by a contractual, legal, fiduciary, or
other obligation; and
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5.1.2 To deliver promptly to the Company on termination of your
employment by the Company, or at any time the Company may so
request, all memoranda, notes, records, reports, manuals,
drawings, blueprints and other documents (and all copies
thereof) relating to the Company's business and all property
associated therewith, which you may then possess or have
under your control.
5.2 Prior to Scheduled Expiration Date, you shall not, directly or
indirectly, enter the employ of, or render any services to, any
person, firm or corporation engaged in any business competitive with
the business of the Company or of any of its subsidiaries or
affiliates; you shall not engage in such business on your own account;
and you shall not 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 Section 5.2 shall be deemed to prohibit you from acquiring,
solely as an investment, up to five percent (5%) of the outstanding
shares of capital stock of any public corporation or taking a position
with a business the main business of which is the sale of retail
products to customers.
5.3 If you commit a breach, or threaten to commit a breach, of any of the
provisions of Sections 5.1 or 5.2 hereof, the Company shall have the
following rights and remedies:
5.3.1 The right and remedy to have the provisions of this
Agreement specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to
the Company and that money damages will not provide an
adequate remedy to the Company; and
5.3.2 The right and remedy to require you to account for and pay
over to the Company all compensation, profits, monies,
accruals, increments or other benefits (collectively
"Benefits") derived or received by you as the result of any
transactions constituting a breach of any of the provisions
of Section 5.2 hereof, and you hereby agree to account for
and pay over such Benefits to the Company. 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.
5.4 If any of the covenants contained in Sections 5.1 or 5.2 hereof, or
any part thereof, hereafter are construed to be invalid or
unenforceable, the same shall not affect the remainder of the covenant
or covenants, which shall be given full effect, without regard to the
invalid portions.
5.5 If any of the covenants contained in Sections 5.1 or 5.2 hereof, or
any part thereof, are held to be unenforceable because of the duration
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 and/or area of such provision and, in its reduced
form, said provision shall then be enforceable.
5.6 The parties hereto intend to and hereby confer jurisdiction to enforce
the covenants contained in Sections 5.1 and 5.2 hereof 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.
5.7 In the event that any action, suit or other proceeding in law or in
equity is brought to enforce the covenants contained in Sections 5.1
and 5.2 hereof or to obtain money damages for the breach thereof, and
such action results in the award of a judgment for money damages or in
the granting of any injunction in favor of the Company, all expenses
(including reasonable attorneys' fees) of the Company in such action,
suit or other proceeding shall (on demand of the Company) be paid by
you. In the event the Company fails to obtain a judgment for money
damages or an injunction in favor of the Company, all expenses
(including reasonable attorneys' fees) of yours in such action, suit
or other proceeding shall (on your demand) be paid by the Company.
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6. INVENTIONS AND PATENTS.
You agree that all processes, technologies and inventions, including new
contributions, improvements, ideas and discoveries, whether patentable or
not, conceived, developed, invented or made by you during your employment
by the Company, whether heretofore or hereafter, or for one year thereafter
(collectively, "Inventions") shall belong to the Company, provided that
such Inventions grew out of your 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. You shall promptly disclose such
Inventions to the Company and shall, subject to reimbursement by the
Company for all reasonable expenses incurred by you 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 your inventorship.
7. INTELLECTUAL PROPERTY.
The Company shall be the sole owner of all the products and proceeds of
your services hereunder and under the Employment Agreement, including, but
not limited to, all materials, ideas, concepts, formats, suggestions,
developments, arrangements, packages, programs and other intellectual
properties that you may acquire, obtain, develop or create in connection
with and during your employment whether heretofore or hereafter, free and
clear of any claims by you (or anyone claiming under you) of any kind or
character whatsoever (other than your right to receive payments hereunder).
You 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.
8. INDEMNIFICATION.
To the fullest extent permitted by applicable law, you shall be indemnified
and held harmless for any action or failure to act in your capacity as an
officer or employee of the Company or any of its affiliates or
subsidiaries, whether prior to or after the date hereof. In furtherance of
the foregoing and not by way of limitation, if you are a party or are
threatened to be made a party to any suit because you were or are an
officer or employee of the Company or such affiliate or subsidiary, you
shall be indemnified against expenses, including reasonable attorney's
fees, judgments, fines and amounts paid in settlement if you 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, you had no reasonable cause to believe your 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 you in defending an action, suit or proceeding for
which you 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 you to repay such amount in the event that it shall ultimately be
determined that you are not entitled to indemnification by the Company.
Such undertaking shall be accepted without reference to your financial
ability to make repayment. The provisions of this Section 8 shall apply as
well to your actions and omissions as a trustee of any employee benefit
plan of the Company, its affiliates or subsidiaries.
9. ARBITRATION; LEGAL FEES.
Except with respect to injunctive relief under Section 5 of this Agreement,
any dispute or controversy arising out of or relating to this Agreement
shall be resolved exclusively by arbitration in New York City in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association then in effect. Judgment on the award may be entered in any
court having jurisdiction thereof. The Company shall reimburse your
reasonable costs and expenses incurred in connection with any arbitration
proceeding pursuant to this Section 9 if you are the substantially
prevailing party in that proceeding.
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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 or
mailed first class, postage prepaid, by registered or certified mail
(notices mailed shall be deemed to have been given on the date mailed), 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:
Marvel Enterprises, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
If to Xx. Xxxxxx, to:
Xxxxx X. Xxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
11. GENERAL.
11.1 This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in New York, without
regard to the conflict of law principles of such state.
11.2 The section headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of this
Agreement.
11.3 As of the Effective Date, this Agreement and your stock option
agreements will set forth the entire agreement and understanding of
the parties relating to the subject matter hereof and will supersede
all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof, including the Employment
Agreement between you and the Company dated October 29, 1999, as
amended, and you expressly acknowledge the termination of such
Employment Agreement at that time, except as otherwise provided
herein. No representation, promise or inducement has been made by
either party that is not embodied in this Agreement, and neither party
shall be bound by or liable for any alleged representation, promise or
inducement not so set forth.
11.4 This Agreement, and your rights and obligations hereunder, may not be
assigned by you. The Company may assign its rights, together with its
obligations, hereunder (i) to any affiliate or (ii) to third parties
in connection with any sale, transfer or other disposition of all or
substantially all of its business or assets; in any event the
obligations of the Company hereunder shall be binding on its
successors or assigns, whether by merger, consolidation or acquisition
of all or substantially all of its business or assets.
11.5 This Agreement may be amended, modified, superseded, canceled, renewed
or extended and the terms or covenants hereof may be waived, only by a
written instrument executed by both of the parties hereto, or in the
case of a waiver, by the party waiving compliance. The failure of
either party at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later time
to enforce the same. No waiver by either party of the breach of any
term or covenant contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this
Agreement.
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11.6 Implementation. The Company and you both agree, without the receipt of
further consideration, to sign and deliver any documents and do
anything else that is necessary in the future to make the provisions
of this Agreement effective.
Sincerely yours,
Marvel Enterprises Inc.
/s/----------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman
Acknowledged and Agreed:
Dated: November 21, 2002
/s/----------------------
Xxxxx X. Xxxxxx
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