EXHIBIT 10.1
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (this "Agreement") dated as of May 17, 2005,
between Marvel Enterprises, Inc., a Delaware corporation (the "Company") and Xxx
Xxxx (the "Executive").
WHEREAS, the Company and Executive are parties to that certain
Employment Agreement, dated as of September 30, 1998 (as amended on January 3,
2000, December 9, 2002 and May 1, 2004, the "Original Employment Agreement");
and
WHEREAS, the Company and Executive desire to amend and restate the
Original Employment Agreement on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
made herein and the mutual benefits to be derived herefrom, the parties hereto
agree as follows:
1. Employment, Duties and Acceptance.
1.1 Employment, Duties. The Company hereby employs the Executive for the
Term (as defined in Section 2.1), to render his exclusive and full-time services
to the Company, subject to the permitted activities set forth at the end of this
Section 1.1 as (i) the Chief Creative Officer of the Company, which is the most
senior creative office within the Company with respect to all of the Company's
Media Activities, and to whom the entire creative operations of the Company will
report, either directly or indirectly, as to Media Activities (as defined
below), and (ii) the Chairman and Chief Executive Officer of Marvel Studios,
Inc., a wholly owned subsidiary of the Company and the entity through which the
Company will, directly or indirectly through subsidiaries of Marvel Studios,
Inc., conduct all of its filmed entertainment, including without limitation its
motion picture and television production activities, or in such other executive
position as may be mutually agreed upon by the Company and the Executive. As
used in the preceding sentence, the term "Media Activities" means all filmed
entertainment activities and any and all agreements or operations pertaining
thereto including without limitation all production, distribution and marketing
matters pertaining to any film, direct to video, television or other
entertainment project. Media Activities shall not be construed to include print
publishing, Internet (other than comic book TV or the distribution or production
of a filmed entertainment property over the Internet) or video game activities.
The Executive shall report solely to the Company's Chief Executive Officer and
Board of Directors and shall perform such other duties consistent with such
positions as may be assigned to the Executive by the Company's Chief Executive
Officer or Board of Directors. The Executive may also devote time in connection
with the activities of Arad Productions, Inc., a Delaware corporation
("Productions"), and up to 120 hours in any twelve-month period to business
activities, other than those of the Company, in connection with any activity of
Xxx Xxxx & Associates ("Associates"), subject to the restrictions of Section
5.2.
1.2 Acceptance. The Executive hereby accepts such employment and agrees to
render the services described above. During the Term, the Executive agrees to
serve the Company faithfully and to the best of the Executive's ability, to
devote the Executive's entire business time, energy
and skill to such employment (subject to the final sentence of Section 1.1), and
to use the Executive's best efforts, skill and ability to promote the Company's
interests; provided however, the foregoing shall not constitute a representation
or warranty as to the outcome of any such efforts. The Executive further agrees
to accept election as a director of the Company and of any subsidiary or
affiliate of the Company and to serve as a director of such entities or as an
officer of any subsidiary of the Company engaged in media activities without any
compensation therefor other than that specified in this Agreement if elected to
any such position by the shareholders or by the Board of Directors of the
Company or of any subsidiary or affiliate, as the case may be; provided,
however, that any such position shall not diminish the scope of duties required
to be performed by Executive, or Executive's position or authority, pursuant to
Section 1.1 hereof. Unless otherwise agreed to in writing by the Company and the
Executive, the Executive shall upon the expiration of the Term immediately
resign any such officer or director position.
1.3 Location. The duties to be performed by the Executive hereunder shall be
performed at the office of the Company in the Los Angeles metropolitan area,
subject to reasonable and customary travel requirements on behalf of the
Company.
2. Term of Employment
2.1 The Term. The term of the Executive's employment under this Agreement
(the "Term") shall commence as of January 1, 2005 (the "Effective Date") and
shall end on the date that is two years after the Effective Date or such date to
which the Term is extended or reduced pursuant to Section 2.2 hereof (the
"Expiration Date").
2.2 Special Curtailment or Extension of the Term. The Term shall end earlier
than the original two-year expiration date provided in Section 2.1 hereof, if
sooner terminated pursuant to Section 4 hereof. The Term may also be extended by
the written mutual consent of the parties. Non-extension of the Term shall not
be deemed to be a wrongful termination of the Term or this Agreement by the
Company pursuant to Section 4 hereof.
3. Compensation; Benefits.
3.1 Base Salary. As compensation for all services to be rendered pursuant to
this Agreement, the Company agrees to pay the Executive during the Term a base
salary, payable bi-weekly in arrears, at the annual rate of not less than
$1,000,000.00, less such deductions or amounts to be withheld as required by
applicable law and regulations and deductions authorized by the Executive in
writing (the "Base Salary"). The Compensation Committee of the Board of
Directors of the Company (the "Compensation Committee") shall, on an annual
basis no later than sixty (60) days following the end of each calendar year,
review the Executive's Base Salary and determine, in its discretion, whether to
increase the Base Salary, and if so determined, such increased amount shall,
from and after the effective date of the increase retroactive to the first day
of such calendar year, constitute "Base Salary" for purposes of this Agreement.
3.2 Company Performance Bonus. In addition to the amounts to be paid to the
Executive pursuant to Section 3.1, 3.3 and 3.4 hereof, the Compensation
Committee has determined both the amount and the criteria for an annual
performance-based bonus for Executive (the "Company Performance Bonus"). The
target levels with respect to the specific quantitative and qualitative
performance factors involved in the Company Performance Bonus calculation shall
be provided to Executive in an award letter ( the "Award Letter"). The Company
acknowledges that
Executive shall be eligible to receive a Company Performance Bonus during each
year of the Term. If the performance-based criteria are achieved during the
Company's fiscal year, the Executive shall receive the Company Performance Bonus
when annual bonuses are paid generally to the Company's other senior executive
officers but in no event later than the ninetieth day of the next calendar year.
Executive's target amount for the Company Performance Bonus for each year during
the Term shall be no less than $1,000,000.
3.3 Annual Producer Fee Bonus. In addition to the amounts to be paid to the
Executive pursuant to Sections 3.1, 3.2 and 3.4 hereof, the Compensation
Committee has determined both the amount and the criteria for an additional
annual performance-based bonus for Executive (the "Annual Producer Fee Bonus").
The Annual Producer Fee Bonus provides no compensation in a given year unless
one movie in which Executive serves as producer or executive producer opens in
that year and goes on to achieve a specified amount in worldwide box office
receipts. The target levels with respect to the specific quantitative and
qualitative performance factors involved in the Annual Producer Fee Bonus
calculation shall be provided to Executive in an Award Letter. If a movie
reaches this threshold based on the calculation set forth in the Award Letter,
then the Company shall pay Executive a bonus of $1,250,000 within ten business
days thereof. If multiple movies are released in a single year which go on to
reach this threshold, only one bonus shall be paid to Executive with respect to
such year. The Company acknowledges that Executive shall be eligible to receive
an Annual Producer Fee Bonus for each year during the Term.
3.4 Net Sales Bonus. In addition to the amounts to be paid to the Executive
pursuant to Sections 3.1, 3.2, and 3.3, hereof, the Compensation Committee has
determined both the amount and the criteria for an annual additional
performance-based bonus for Executive (the "Net Sales Bonus"). The "Net Sales
Bonus" provides no compensation unless "Net Sales" in a year equal or exceed a
threshold percentage of the Net Sales Budget. In a given year, the "Net Sales
Budget" for that year is adopted at or before the beginning of that year by the
Board of Directors of the Company. If Net Sales in a year reaches the threshold
percentage but is not above the Net Sales Budget for that year, then Executive
shall be entitled to a fraction of a percentage of Net Sales that increases on a
straight-line basis (back to the first dollar of Net Sales) up to a target
fraction of a percentage. If Net Sales are above the Net Sales Budget for that
year, Executive shall be entitled to the target fraction of a percentage up to
Net Sales Budget and an incrementally increased percentage as to any excess over
the budgeted amount. The target levels with respect to the specific quantitative
and qualitative performance factors involved in the Net Sales Bonus calculation
shall be provided to Executive in an Award Letter. Executive's target amount for
the Net Sales Bonus for each year during the Term shall be no less than
$2,016,800.
3.5 Business Expenses. The Company shall pay for or reimburse the Executive
for all reasonable first-class travel and other expenses actually incurred by or
paid by the Executive during the Term in the performance of the Executive's
services under this Agreement, upon presentation of expense statements or
vouchers or such other supporting information as the Company customarily and
reasonably may require of its executive officers.
3.6 Vacation. During the Term, the Executive shall be entitled to a vacation
period or periods customarily accorded executive officers of the Company during
each year of the Term, which in
any event shall not be less than four (4) weeks per calendar year. Vacation time
not used by the end of a calendar year shall be forfeited.
3.7 Fringe Benefits. During the Term, the Executive will participate in all
plans now existing or hereafter adopted by the Company generally for its
executive officers or for the general benefit of its employees, such as any
pension, profit-sharing, bonus, stock option or other incentive compensation
plans, life and health insurance or other insurance plans and benefits on the
same basis and subject to the same qualifications as the other senior most
executive officers.
3.8 Additional Benefits. During the Term, the Executive shall be entitled to
such other benefits as are specified in Schedule I to this Agreement.
4. Termination.
4.1 Death; Disability. If the Executive shall die during the Term, the Term
shall terminate immediately and no further amounts or benefits shall be payable
to Executive hereunder other than (i) any Pro-Rata Bonus as defined in and as
set forth in Section 4.5 below, and (ii) healthcare coverage for Executive's
immediate family, if covered immediately prior to the termination date, for a
period of six (6) months following the termination date. If during the Term the
Executive shall become physically or mentally disabled, whether totally or
partially, such that the Executive is unable to perform the Executive's
principal services hereunder for (i) a period of six (6) consecutive months or
(ii) for shorter periods aggregating six (6) months during any twelve month
period, the Company may at any time after the last day of the six (6)
consecutive months of disability or the day on which the shorter periods of
disability shall have equaled an aggregate of six (6) months, by written notice
to the Executive (but before the Executive has recovered from such disability),
terminate the Term and no further amounts or benefits shall be payable hereunder
other than such amount referenced in (i)-(ii) above.
4.2 Cause. The Term may be terminated by the Company upon written notice to
the Executive upon the occurrence of any event constituting "Cause" as defined
herein. As used herein, the term "Cause" shall include: (i) the Executive's
willful and intentional failure or refusal to perform any of his 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 the Executive written notice that the
specified conduct has occurred and making specific reference to this Section
4.2(i) and the Executive fails to cure the conduct within thirty (30) days after
receipt of such notice; or (ii) to comply with the Company's written policies
which have been presented to the Executive either in writing (including via
e-mail) or by directing Executive in writing to a URL containing such policies
in each instance as and when such policies are updated; or (iii) any willful and
intentional acts of the Executive involving fraud, theft, misappropriation of
funds, embezzlement or material dishonesty materially affecting or against the
Company or its subsidiaries; or (iv) the Executive's conviction for an offense
which is a felony or crime of moral turpitude in the jurisdiction involved.
4.3 Good Reason. The Term may be terminated by the Executive upon written
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 the prior written consent of the Executive: (i) assignment of
the Executive to duties materially inconsistent with the
Executive's positions as described in Section 1.1 hereof, or any significant
diminution of or substantial increase in the Executive's duties or
responsibilities existing as of the date of execution of this Agreement, other
than in connection with the termination of the Executive's employment for Cause,
disability or as a result of the Executive's death, or by the Executive other
than for Good Reason; (ii) a change in the location of the Executive's principal
place of employment to a location outside of the West Los Angeles area; (iii)
any material breach of this Agreement by the Company which is continuing;
provided, however, that the Executive shall not be deemed to have Good Reason
pursuant to clauses (i) and (iii) above unless the Executive gives the Company
written notice that the specified conduct or event has occurred and the Company
fails to cure such conduct or event within thirty (30) days of receipt of such
notice.
4.4 Change in Control.
(a) If on or after the date hereof, and prior to the Expiration Date, there
occurs a "Change in Control" then (i) any unvested securities, including without
limitation any options, warrants, restricted stock, or SARs granted to Executive
shall immediately vest, (ii) any restrictions imposed on any such securities
exercisable or held by Executive shall immediately lapse other than the portion
of any restriction designed to assure compliance with applicable securities laws
and the Company's xxxxxxx xxxxxxx policy then in effect, and no exemption is
then available, and (iii) the Executive shall have the right, at any time within
thirty (30) days of obtaining knowledge of such Change in Control, to give
notice to the Company of termination of the Term as of a date (which shall not
be earlier than ten (10) days from such notice) to be specified in such notice,
and the Term shall terminate on the date so specified.
(b) For purposes of this Agreement, a 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 and Exchange Act of 1934, as amended (the
"Exchange Act"), other than Excluded Persons 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 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 (i) 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
Persons" means Xxxxx Xxxxxxxxxx, Executive and any trust established solely for
the benefit of, and any charitable trust or foundation established by, Messrs.
Xxxxxxxxxx or Executive or their spouses or lineal descendants and each of their
respective affiliates.
4.5 Severance. (a) If the Term is terminated upon the Executive's death or
disability, or by the Company for Cause, the Executive shall be entitled to
receive his Base Salary and any additional benefits provided hereunder at the
rates provided in Sections 3.1 and 3.8 hereof to the date on which such
termination shall take effect. In addition, if the Term is terminated pursuant
to Sections 4.1 or 4.3 the Executive shall also be entitled to receive any bonus
which has been awarded under Sections 3.2, 3.3 and 3.4 in respect of a
previously completed fiscal year but which has not yet been paid, a pro rata
portion (based on time) of the bonus amounts set-forth in Sections 3.2 and 3.4
and the entire bonus, if vested, set forth in Section 3.3 for the year in which
the termination date occurs (collectively, a "Pro Rata Bonus") and all equity
arrangements provided to the Executive hereunder or under any employee benefit
plan of the Company shall accelerate immediately and vest. The Pro Rata Bonus to
which the Executive is entitled, if any, shall be determined by reference to the
attainment of the performance goals referred to in Sections 3.2, 3.3 and 3.4
respectively as of the end of the fiscal year in which termination of employment
occurs and shall be paid when bonuses in respect of that year are generally paid
to the Company's other executives unless otherwise specified in the Award Letter
but in no event later than the ninetieth (90) day of the next fiscal year.
(b) If the Term is terminated by the Executive for Good Reason, by the Company
other than for Cause, or pursuant to a Change in Control, the Executive shall be
entitled to: (i) a lump sum payment equal to a sum which is the greater of the
compensation due to the Executive under Sections 3.1, 3.2 and 3.3 (without the
requirement of Executive receiving a credit of producer or executive producer),
3.4 and 3.8 of this Agreement as if Executive were still rendering services to
the Company until (aa) the scheduled expiration date of the Term, as noted in
Section 2.1 hereof, or (bb) one (1) year after the date of such termination; and
(ii) continuation of all other benefits provided by the Company to the Executive
hereunder for the greater of (aa) the period until the scheduled termination of
the Term or (bb) one (1) year after the date of such termination. In addition,
all equity arrangements provided to the Executive hereunder or under any
employee benefit plan of the Company shall continue to vest for the greater of
the period until the scheduled termination of the Term or one (1) year after the
date of such termination it being understood that any Company performance
vesting criterion (e.g., achievement of certain Net Income) placed on any equity
arrangement shall continue to apply during such continued vesting period.
(c) The amounts required to be paid and the benefits required to be made
available to the Executive under this Section 4.5 are absolute. Under no
circumstances shall the Executive, upon the termination of his employment
hereunder, be required to seek alternative employment and, in the event that the
Executive does secure other employment, no compensation or other benefits
received in respect of such employment shall be off-set or in any other way
limit or reduce the obligations of the Company under this Section 4.5.
4.6 Equitable Relief for Breach. Executive acknowledges that the services to
be rendered by Executive under the terms of this Agreement are of a special,
unique, unusual, extraordinary and intellectual character, which gives them a
peculiar value, the loss of which cannot be reasonably or adequately compensated
in damages in any action at law, and that a material breach by Executive of any
of the provisions contained in this Agreement will cause the Company great and
irreparable injury and damage. Executive acknowledges that the Company shall be
entitled, in addition to any other remedies it may have at law, to seek the
remedies of injunction, specific
performance, and other equitable relief for any breach of this Agreement by
Executive. This provision shall not, however, be construed as a waiver of any of
the rights which the Company may have for damages, or otherwise.
5. Protection of Confidential Information; Non-Competition; Non-Solicit
5.1 In view of the fact that the Executive's work for the Company will bring
the Executive 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, the Executive agrees:
5.1.1 To keep and retain in the strictest confidence all confidential matters
of the Company (unless such matters have entered the public domain other than by
Executive's breach of this Agreement), including, without limitation: (i) trade
secrets; (ii) customer lists; (iii) pricing policies; (iv) Award Letters under
the 2005 Cash Incentive Plan or restricted stock or option agreements under the
2005 Stock Incentive Plan ("Award Agreements"); (v) operational methods: (vi)
technical processes, formulae, inventions and research projects; and (vii) other
business affairs of the Company, learned by the Executive heretofore or
hereafter, and not to disclose them to anyone outside of the Company, either
during or after the Executive's employment with the Company, except in the
course of performing the Executive's duties hereunder or with the Company's
express written consent; and
5.1.2 To deliver promptly to the Company on termination of the Executive's
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 the Executive may then possess or have
under the Executive's control other than Executive's rolodex, and other personal
items.
5.2 (a) During the Term, the Executive 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; the Executive shall not engage in such
business on the Executive's own account; and the Executive 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 the Executive
from acquiring, solely as an investment, up to five percent (5%) of the
outstanding shares of capital stock of any public corporation or restrict
Executive's activities on behalf of Associates or Productions provided that any
such activity does not constitute a Restricted Activitiy.
(b) "Restricted Activities" mean: (i) services on comic books or graphic
novels (other than comic books or graphic novels based on toys for which the
Executive has performed services as permitted by this Agreement); (ii) services
on a toy that is (x) based on a media property or which the Executive actually
knows is actively planned to be developed as a media property at the time that
he begins performing those services or (y) based on fictional characters with
superhuman abilities that would be considered part of the fantasy, science
fiction or action-adventure genre (e.g. Super Heroes); and (iii) services on
Media Activities, internet entertainment or video games, if those Media
Activities, entertainment or games are based on
comic book characters or characters described in (y) above. Clause (iii) shall
not include Media Activities, entertainment or video games based on toys for
which Executive has performed services as permitted by this Agreement. For the
avoidance of doubt, Executive's services on a property that started as a
video-game (provided such video-game is not based on a character of the type
described in clause (y) above) is not a Restricted Activity.
5.3 If the Executive commits a breach, or threatens 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
5.4 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 the Executive. 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 the Executive in
such action, suit or other proceeding shall (on demand of the Executive) be paid
by the Company.
5.8 The Executive will not, during the Term and for a period of one year
from the last payment to Executive hereunder, induce or attempt to induce any
employee of the Company or its subsidiaries (other than an employee who is an
immediate family member of Executive) to
stop working for the Company or its subsidiaries or to work for any competitor
of the Company or its subsidiaries.
6. Inventions and Patents.
6.1 The Executive agrees that all processes, technologies and inventions,
including new contributions, improvements, ideas and discoveries, whether
patentable or not, conceived, developed, invented or made by him during the Term
(other than any of the foregoing which are developed by the Executive in the
course of his activities for Associates as permitted by Section 1.1)
(collectively, "Inventions") shall belong to the Company, provided that such
Inventions directly relate to the services of Executive for the Company or any
of its subsidiaries, are related to the business (commercial or experimental) of
the Company or any of its subsidiaries or are conceived or made on the Company's
time or with the use of the Company's facilities or materials. The Executive
shall further: (a) promptly disclose such Inventions to the Company; (b) assign
to the Company, without additional compensation, all patent and other rights to
such Inventions for the United States and foreign countries; (c) sign all papers
necessary to carry out the foregoing; and (d) give testimony in support of the
Executive's inventorship.
6.2 The Executive agrees that the Executive will not assert any rights to
any Invention as having been made or acquired by the Executive prior to the date
of this Agreement, except for Inventions, if any, listed on Schedule III of the
Original Employment Agreement.
7. Intellectual Property.
Except as provided in Section 6 above, the Company shall be the sole
owner of all the products and proceeds of the Executive's services hereunder,
including, but not limited to, all materials, ideas, concepts, formats,
suggestions, developments, arrangements, packages, programs and other
intellectual properties that the Executive may develop or create during the
Term, free and clear of any claims by the Executive (or anyone claiming under
the Executive) of any kind or character whatsoever (other than the Executive's
right to receive payments hereunder). The Executive shall, at the request of the
Company, execute such assignments, certificates or other instruments consistent
with the terms hereof 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, Executive shall be
indemnified and held harmless for any action or failure to act in his capacity
as an officer, director or employee of the Company. In furtherance of the
foregoing and not by way of limitation, if Executive is a party or is threatened
to be made a party to any suit because he is an officer, director or employee of
the Company, he shall be indemnified against expenses, including reasonable
attorneys' fees, judgments, fines and amounts paid in settlement to the fullest
extent permitted by applicable law. Indemnification under this Section 8 shall
be in addition to any other indemnification by the Company of its officers and
directors. Expenses incurred by Executive in defending an action, suit or
proceeding for which he claims 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 Executive to repay such amount in the event
that it shall ultimately be determined that he is not entitled to
indemnification by the Company. Such undertaking shall be accepted without
reference to the financial ability of Executive to make repayment. In addition,
the Company shall use its best efforts to obtain and maintain a directors' and
officers' liability insurance policy at a reasonable cost providing insurance
coverage with respect to claims made against officers and directors as to which
they are entitled to be indemnified by the Company.
9. 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.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Executive Vice President and General Counsel
If to the Executive, to:
Xxx Xxxx
Chairman and CEO, Marvel Studios
00000 Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxx, Esq.
Liner, Yankelevitz, Sunshine & Regenstreif, LLP
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
10. General.
10.1 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.
10.2 The section headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.
10.3 This Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter hereof and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof. 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.
10.4 This Agreement, and the Executive's rights and obligations hereunder,
may not be assigned by the Executive. 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.
10.5 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 manually 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.
10.6 This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
11. 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.
12. Royalties Under Master License. In consideration of the compensation
provided to Executive under this Agreement, Executive hereby agrees on behalf of
Associates to amend that certain Master License Agreement, dated as of April 30,
1993, between Associates and Toy Biz Acquisition, Inc. (the "Original Master
License" and as amended, the "Master License") to provide that the Company shall
have no further royalty obligation to the Executive under the Master License for
so long as this Agreement remains in effect and that the term of the Master
License will be coterminous with the Term of this Agreement. After the
expiration of the Term, Company shall have the unilateral right to renew the
Master License on the terms set forth in the Original Master License.
13. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, its enforcement or interpretation, or because of an alleged breach,
default, or misrepresentation in connection with any of its provisions, or
arising out of or relating in any way to Executive's employment or termination
thereof, shall be submitted to binding arbitration administered by JAMS pursuant
to its Employment Arbitration Rules & Procedures and subject to JAMS Policy on
Employment Arbitration Minimum Standards of Procedural Fairness. The arbitration
shall be
held in Los Angeles County, California. Judgment on the arbitration award may be
entered in any court having jurisdiction. Notwithstanding the forgoing, Company
shall have the right to obtain injunctive relief against Executive from an
appropriate court as provided in Sections 4.6 and 5.3.1 of this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
MARVEL ENTERPRISES, INC.
By: /s/ Xxxx Xxxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Vice President & General Counsel
EXECUTIVE:
/s/ Xxx Xxxx
---------------------------------------------
Xxx Xxxx
SCHEDULE I
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Additional Benefits:
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The Executive shall be entitled to participate in the Company's stock incentive
plan, then in effect, at a level commensurate with Executive's salary level,
title and responsibilities, as determined by the Compensation Committee of the
Board of Directors of the Company.
