EXHIBIT 10.19
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of October 29, 1999, between Marvel
Enterprises, Inc., a Delaware corporation (the "Company") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Executive").
WHEREAS, the Company wishes to employ the Executive, and the Executive
wishes to accept such employment, 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 exclusive and full-time
services, except as stated herein below, to the Company as President of the
Company's Marvel Characters Group or in such other executive position as may be
mutually agreed upon by the Company and the Executive. 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.
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. The Company and Executive acknowledge that the Company has also entered
into a Loan Out Agreement for Executive Producer Services of the Executive,
dated the same date as this Agreement, pursuant to which Brentwood Television
Funnies, Inc. ("Brentwood") has agreed to supply the Executive to the Company to
serve as an Executive Producer of television programs of the Company (the
"Loan-Out Agreement"). The Executive agrees to devote the Executive's entire
business time, energy and skill to the Executive's employment under this
Agreement and to the provision of services under the Loan Out Agreement and to
use the Executive's professional efforts, skill and ability to promote the
Company's interests. The Company acknowledges that the Executive is currently
involved in various business projects which are listed on Schedule 1 to this
Agreement (the "Prior Projects"). The Company acknowledges that the Prior
1
Projects are the personal business activities of the Executive and agrees that
the Executive may continue to devote up to 10% of his business time, in the
aggregate, to the Prior Projects and to any other personal business activities
of the Executive which are approved by the Board (the "Other Approved
Activities") to the extent that the Prior Projects and the Other Approved
Activities do not materially interfere with the performance of the Executive's
duties under this Agreement. The Executive agrees to accept election, and to
serve during all or any part of the Term, as an officer or director of the
Company and of any subsidiary or affiliate of the Company, without any
compensation therefor other than that specified in this Agreement, if elected to
any such position by the shareholders or by the Board of Directors of the
Company or of any subsidiary or affiliate, as the case may be. If the Executive
is elected a director of the Company, as contemplated herein, the Company shall
provide the Executive with the same director and officer liability insurance
coverage as that provided to other directors under any director and officer
liability insurance policy of the Company which is in effect at that time.
1.3 Location. The duties to be performed by the Executive hereunder
shall be performed primarily at the offices of the Company in Los Angeles,
California, subject to reasonable and customary travel requirements on behalf of
the Company. The Company and the Executive understand that the Executive's
duties are likely to require him to spend a portion of his business time at the
Company's office in New York City and that the amount of time that the Executive
is required to spend at the Company's New York City office will fluctuate from
month to month based upon the projects on which the Executive is then working.
The Company agrees, however, that the portion of the Executive's time that he is
required to spend at the Company's New York City office is not generally
expected to exceed one week per month.
2. Term of Employment
2.1 The Term. The term of the Executive's employment under this
Agreement (the "Term") shall commence on October 25, 1999 (the "Effective Date")
and shall end on October 25, 2002 (the "Expiration Date"). The Term shall end
earlier than the Expiration Date if sooner terminated pursuant to Section 4
hereof. The Expiration Date shall be automatically postponed for one year, and
the Term shall be automatically extended by one year, unless either party hereto
provides the other party with written notice (a "Notice of Nonrenewal"), not
later than sixty days prior to the Expiration Date, of its election not to
permit the Term to be so extended, and the Expiration Date shall thereafter be
automatically postponed for one additional year and the Term shall thereafter be
automatically extended by one additional year, on each subsequent anniversary of
the date of this Agreement, unless either party provides the other party with
written notice, not later than sixty days prior to such subsequent anniversary
2
of the date of this Agreement, of its election not to permit the Term to be so
extended.
3. Compensation; Benefits.
3.1 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 $250,000 less
such deductions or amounts to be withheld as required by applicable law and
regulations and deductions authorized by the Executive in writing. The
Executive's base salary shall be reviewed no less frequently than annually by
the Board of Directors and may be increased, but not decreased, by the Board of
Directors. The Executive's base salary as in effect from time to time is
referred to in this Agreement as the "Base Salary".
3.2 Bonus. In addition to the amounts to be paid to the Executive
pursuant to Section 3.1 hereof, the Executive will be entitled to receive a cash
bonus on the Effective Date in the amount of $40,000 as a starting bonus (the
"Effective Date Bonus") and an additional cash bonus in respect of 1999 in the
amount of $100,000 (the "1999 Bonus"). With respect to each fiscal year of the
Term after 1999, the Executive will be eligible to receive a cash bonus based
upon the attainment of performance goals set by the Board of Directors (the
"Bonus Performance Goals"). The Executive's target annual bonus amount shall be
85% of his base salary for the year. If the Executive's Base Salary is increased
by the Board of Directors, the Board of Directors shall also review the
Executive's target annual bonus amount and may increase, but not decrease, the
Executive's target annual bonus as a percentage of his base salary. The 1999
Bonus shall be paid to the Executive no later than February 1, 2000. Each annual
bonus in respect of subsequent fiscal years shall be paid 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 fiscal year.
3.3 Business Expenses. The Company shall pay for or reimburse the
Executive for all reasonable expenses actually incurred by or paid by the
Executive during the Term in the performance of the Executive's services under
this Agreement, including the cost and expense associated with the use of a cell
phone, upon presentation of expense statements or vouchers or such other
supporting information as the Company customarily may require of its officers.
3.4 Vacation. During the Term, the Executive shall be entitled to a
vacation period or periods of four (4) weeks per year taken in accordance with
the vacation policy of the Company during each year of the Term. Vacation time
not used by the end of a calendar year shall be forfeited.
3
3.5 Fringe Benefits. During the Term, the Executive shall be entitled
to all benefits for which the Executive shall be eligible under any qualified
pension plan, 401(k) plan, group insurance or other so-called "fringe" benefit
plan which the Company provides to its executive employees generally, together
with executive medical benefits for the Executive, as from time to time in
effect for executive employees of the Company generally.
3.6 Additional Benefits. During the Term, the Executive shall be
entitled to such other benefits as are specified in Schedule 2 to this
Agreement.
4. Termination.
4.1 Death. If the Executive shall die during the Term, the Term shall
terminate immediately.
4.2 Disability. 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 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 the Executive (but before the Executive has recovered from
such disability), terminate the Term.
4.3 Cause. The Term may be terminated by the Company upon notice to
the Executive upon the occurrence of any event constituting "Cause" as defined
herein. As used herein, the term "Cause" means: (i) the Executive's willful and
intentional failure or refusal to perform or observe 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 4.3(i) and the
Executive fails to cure the conduct within thirty (30) days after receipt of
such notice; (ii) breach by the Executive of any of his obligations under
Section 5 hereof; (iii) any willful and intentional acts of the Executive
involving fraud, theft, misappropriation of funds, embezzlement or material
dishonesty affecting the Company or willful misconduct by the Executive which
has, or could reasonably be expected to have, a material adverse effect on the
Company; or (iv) the Executive's conviction of, or plea of guilty or nolo
contendre to, an offense which is a felony in the jurisdiction involved.
4
4.4 Other Permitted Termination by the Company. The Term may be
terminated by the Company at any time if the term of Brentwood's engagement
under the Loan Out Agreement (the "Loan Out Term") is terminated by the Company
as permitted by, and not in breach by the Company of, the Loan Out Agreement or
if the Loan Out Term is terminated by Brentwood for any reason.
4.5 Permitted Termination by the Executive. (a) The Term may be
terminated by the Executive 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 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 in the Executive's duties or responsibilities, other than
in connection with the termination of the Executive's employment for Cause or
disability or by the Executive other than for Good Reason; (ii) any material
breach of this Agreement by the Company which is continuing;(iii) a change in
the location of the Executive's principal place of employment to a location
other than as specified in Section 1.3 hereof; or (iv) the occurrence of a Third
Party Change in Control (as defined in Section 4.5(d)) provided, however, that
the Executive shall not be deemed to have Good Reason pursuant to clauses (i)
and (ii) above unless the Executive gives the Company written notice that the
specified conduct or event has occurred and making specific reference to this
Section 4.5 and the Company fails to cure such conduct or event within thirty
(30) days of receipt of such notice.
(b) The Term may be terminated by the Executive 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.
(c) The Term may be terminated by the Executive at any time if the
Loan Out Term is terminated by Brentwood as permitted by, and not in breach by
Brentwood of, the Loan Out Agreement or if the Loan Out Term is terminated by
the Company for any reason.
4.6 Severance. (a) If the Term is terminated (A) pursuant to Section
4.1, 4.2 or 4.3 of this Agreement, (B) by the Executive other than pursuant to
Section 4.5(a) of this Agreement, or (C) by the Company pursuant to Section 4.4
of this Agreement in connection with or following termination of the Loan Out
Term under the circumstances described in clauses (A) or (B) of Section 4.6(a)
of the Loan Out Agreement the Executive shall be entitled to receive his Base
Salary, benefits and reimbursements provided hereunder at the rates provided in
Sections 3.1, 3.3, 3.5 and 3.6 hereof to the date on which such termination
5
shall take effect. In addition, if the Term is terminated pursuant to Section
4.1 or 4.2 of this Agreement or by the Company pursuant to Section 4.4 of this
Agreement in connection with or following termination of the Loan Out Agreement
pursuant to Section 4.1 or 4.2 of the Loan Out Agreement, the Executive shall
also be entitled to receive any bonus which he has been awarded under Section
3.2 in respect of a previously completed fiscal year but which has not been paid
and a pro rata portion (based on time) of the annual bonus for the year in which
the termination date occurs (a "Pro Rata Bonus"). The Pro Rata Bonus to which
the Executive is entitled, if any, for each year other than 1999 shall be
determined by reference to the attainment of the performance goals referred to
in Section 3.2 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 but in no event later than the
ninetieth day of the next fiscal year. If, within three months after the
Effective Date, the Term is terminated pursuant to Section 4.3 of this
Agreement, by the Executive other than pursuant to Section 4.5(a) of this
Agreement, or by the Company pursuant to Section 4.4 of this Agreement in
connection with or following termination of the Loan Out Agreement pursuant to
Section 4.3 of the Loan Out Agreement or under the circumstances described in
clause (B) of Section 4.6(a) of the Loan Out Agreement, the Executive shall
promptly repay to the Company the Effective Date Bonus and the Company shall
have the right to offset any severance amounts due to the Executive by the
amount not so repaid. If, prior to June 30, 2000, the Term is terminated
pursuant to Section 4.3 of this Agreement, by the Executive other than pursuant
to Section 4.5(a) of this Agreement, or by the Company pursuant to Section 4.4
of this Agreement in connection with or following termination of the Loan Out
Agreement pursuant to Section 4.3 of the Loan Out Agreement or under the
circumstances described in clause (B) of Section 4.6(a) of the Loan Out
Agreement, the Executive shall promptly repay to the Company the 1999 Bonus and
the Company shall have the right to offset any severance amounts due to the
Executive by the amount not so repaid.
(b) Except as provided in Section 4.6(c) of this Agreement, if the
Term is terminated (A) by the Executive pursuant to clauses (i), (ii) or (iii)
of Section 4.5(a) of this Agreement, (B) by the Company other than pursuant to
Section 4.1, 4.2, 4.3 or 4.4 of this Agreement, (C) by the Executive pursuant to
Section 4.5(c) of this Agreement in connection with or following termination of
the Loan Out Term under the circumstances described in clause (A) or (B) of
Section 4.6(a) of the Loan Out Agreement, or (D) if the Term expires on the
Scheduled Expiration Date as a result of the Company giving a Notice of
Nonrenewal, the Company shall continue thereafter to provide the Executive (i)
payments of Base Salary in the manner and amounts specified in Section 3.1 until
the second anniversary of the date of termination, (ii) if termination occurs
prior to the time that the 1999 Bonus is paid, a bonus in the amount of
6
$100,000, if termination occurs after December 31, 1999, a Pro Rata Bonus, and
if termination occurs at any time after a bonus has been awarded under Section
3.2 in respect of a previously completed fiscal year and prior to the time that
the bonus has been paid, the amount of that bonus, and (iii) fringe benefits in
the manner and amounts specified in Section 3.5 until the earlier of the
Expiration Date, the period ending on the date the Executive begins work as an
employee or consultant for any other entity or twelve (12) months after the date
of 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 period specified in clause (iii) of this Section 4.6(b)(unless
vesting is accelerated upon the occurrence of a Third Party Change in Control as
described in Schedule I) and shall remain exercisable for ninety days after the
end of that period. Bonuses payable pursuant to this Section 4.6(b), other than
the Pro Rata Bonus, shall be payable in the manner described in Section 3.2
within 30 days after the date of termination. The Pro Rata Bonus to which the
Executive is entitled, if any, shall be paid within the time period provided in
Section 4.6(a) of this Agreement. The Executive shall have no duty or obligation
to mitigate the amounts or benefits required to be provided pursuant to this
Section 4.6(b), nor shall any such amounts or benefits be reduced or offset by
any other amounts to which Executive may become entitled; provided, that if the
Executive becomes employed by a new employer or self-employed prior to the
earlier of the Expiration Date or twelve (12) months after the date of
termination, up to one-half of the Base Salary payable to the Executive pursuant
to this Section 4.6(b) shall be reduced by an amount equal to the amount earned
from such employment with respect to that period (and the Executive shall be
required to return to the Company, without interest, any amount by which such
payments pursuant to this Section 4.6(b) exceed the Base Salary to which the
Executive is entitled after giving effect to that reduction) and, if the
Executive becomes eligible to receive medical or other welfare benefits under
another employer provided plan, the corresponding medical and other welfare
benefits provided under this Section 4.6(b) shall be terminated. As a condition
to the Executive receiving the payments under Section 4.6(b), the Executive
agrees to permit verification of his employment records and Federal income tax
returns by an independent attorney or accountant, selected by the Company but
reasonably acceptable to the Executive, who agrees to preserve the
confidentiality of the information disclosed by the Executive except to the
extent required to permit the Company to verify the amount received by Executive
from other active employment.
(c) If the Term is terminated upon or following the occurrence of a
Third Party Change in Control (as defined in Section 4.6(d)) or in contemplation
of a Third Party Change in Control, and such termination is by the Executive
7
pursuant to Section 4.5(a) of this Agreement, by the Company other than pursuant
to Section 4.1, 4.2, 4.3 or 4.4 of this Agreement, by the Executive pursuant to
Section 4.5(c) of this Agreement in connection with or following termination of
the Loan Out Agreement under the circumstances described in to clause (A) or (B)
of Section 4.6(b) of the Loan Out Agreement, or occurs on the Scheduled
Expiration Date as a result of the Company giving a Notice of Nonrenewal, the
Company shall thereafter provide the Executive (i) an amount equal to two (2)
times the sum of (x) the then current Base Salary and (y) the average of the two
most recent annual bonuses paid (treating any annual bonus which is not paid as
a result of the Executive's failure to attain the Bonus Performance Goals as
having been paid in an amount equal to zero) to the Executive during the Term
(or if only one annual bonus has been paid, the amount of that annual bonus, and
if that termination occurs prior to the time at which the 1999 Bonus is paid,
$100,000), to be paid in a lump sum within 30 days after the date of
termination, and (ii) benefits in the manner and amounts specified in Section
3.5 until the second anniversary of the date of termination or, with respect to
medical and other welfare benefits, when the Executive becomes eligible to
receive medical or other welfare benefits under another employer provided plan
if sooner than the second anniversary of the date of termination. In addition,
all equity arrangements provided to the Executive hereunder or under any
employee benefit plan of the Company shall continue to vest until the second
anniversary of the date of termination unless vesting is accelerated upon the
occurrence of the Third Party Change in Control as described in Schedule I.
(d) 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 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
8
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 or (ii)
exists solely by virtue of the fact that the members of such group are parties
to the Stockholders' Agreement, dated as of October 1, 1998, by and among the
Company, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, The ▇▇▇▇▇ Manhattan Bank,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Whippoorwill Associates Incorporated and
various other stockholders of the Company, as that agreement may be amended from
time to time (the "Stockholders Agreement"). "Excluded Person" means (i) while
the Stockholders Agreement is in effect in substantially its current form, any
person or entity who or which is a party to the Stockholders Agreement as of the
Effective Date and any affiliate of such a party to the Stockholders Agreement
who becomes a party to the Stockholders Agreement, and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and
▇▇▇ ▇▇▇▇ or any of their affiliates.
(e)(i) 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
the Executive or for the Executive's benefit paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise in connection
with, or arising out of, the Executive's 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 the Executive 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 the Executive will be entitled to receive
an additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Executive of all taxes (including any interest or penalties,
other than interest and penalties imposed by reason of the Executive's failure
to file timely a tax return or pay taxes shown to be due on the Executive's
return), including any Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Parachute Payments.
(ii) 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 the Executive within ten days of the
9
Termination Date if applicable, or promptly upon request by the Company or by
the Executive (provided the Executive reasonably believes 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 the Executive with respect to a
Parachute Payment or Parachute Payments, it shall furnish the Executive with an
opinion reasonably acceptable to the Executive 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 the Executive, the Executive
shall have the right to dispute the Determination (the "Dispute"). The Gross-Up
Payment, if any, as determined pursuant to this Section 4.6(e)(ii) shall be paid
by the Company to the Executive 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 the Executive subject to the application of Section 4.6(e)(iii)
below. The Company and the Executive shall resolve any Dispute in accordance
with the terms of this Agreement.
(iii) 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 the Executive from any governmental taxing authority that the
Executive's tax liability (whether in respect of the Executive's 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 the Executive's satisfaction. If an Underpayment
occurs, the Executive 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 the
Executive an additional Gross-Up Payment equal to the amount of the Underpayment
plus any interest and penalties (other than interest and penalties imposed by
10
reason of the Executive's failure to file timely a tax return or pay taxes shown
to be due on the Executive's 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 the
Executive had previously received a Gross-Up Payment. A "Final Determination"
shall be deemed to have occurred when the Executive has received from the
applicable government taxing authority a refund of taxes or other reduction in
the Executive's 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 the Executive 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 the Executive's 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 the Executive and
the Executive 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 the Executive) 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 the Executive until the date of repayment to the Company.
(iv) 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 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, 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 the Executive
heretofore or hereafter, and not to use or 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
11
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 the Executive demonstrates is or becomes generally available to the public
other than as a result of a disclosure by the Executive or is available, or
becomes available, to the Executive on a non-confidential basis, but only if the
source of such information is not prohibited from transmitting the information
to the Executive by a contractual, legal, fiduciary, or other obligation; 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.
5.2 During his employment and for a period of one (1) year after he
ceases to be employed by the Company under this Agreement or otherwise, if such
cessation arises pursuant to Section 4.3, or as a result of termination by the
Executive other than pursuant to Section 4.4(a), 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 from engaging in the Prior Projects and Other Approved Activities
as contemplated by Section 1.2.
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
5.3.2 The right and remedy to require the Executive to account for and
pay over to the Company all compensation, profits, monies, accruals, increments
or other benefits (collectively "Benefits") derived or received by the Executive
12
as the result of any transactions constituting a breach of any of the provisions
of Section 5.2 hereof, and the Executive hereby agrees 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 the Executive. In the event the Company
fails to obtain a judgment for money damages or an injunction in favor of the
13
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.
6. Inventions and Patents.
6.1 The Executive agrees that, except as provided in Section 6.2, all
processes, technologies and inventions, including new contributions,
improvements, ideas and discoveries, whether patentable or not, conceived,
developed, invented or made by him during his employment by the Company or for
one year thereafter (collectively, "Inventions") shall belong to the Company,
provided that such Inventions grew out of the Executive's 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. The Executive shall promptly disclose such
Inventions to the Company and shall, subject to reimbursement by the Company for
all reasonable expenses incurred by the Executive 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 the Executive's inventorship.
6.2 The Company acknowledges that the Executive may conceive, develop
or invent Inventions in connection with his work on the Prior Projects and Other
Permitted Activities. The Company agrees that it shall have no interest in any
Inventions which relate primarily to the Prior Projects or Other Permitted
Activities. Nothing contained herein shall be construed so as to grant the
Company any interest whatsoever in any such Inventions or in any Inventions
which were created prior to the Effective Date.
7. Intellectual Property.
7.1 Except as provided in Section 7.2, 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 acquire, obtain, develop or
create in connection with and during his employment (collectively, "Intellectual
Property"), 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
14
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 Intellectual Property.
7.2. The Company acknowledges that the Executive will acquire, obtain,
develop and create Intellectual Property in connection with his work on the
Prior Projects and Other Permitted Activities. The Company agrees that it shall
have no right, title or interest in any Intellectual Property which was
developed in connection with, or relates primarily to, the Prior Projects or
Other Permitted Activities. Nothing contained herein shall be construed so as to
grant the Company any right, title or interest whatsoever in any Intellectual
Property which was created or acquired by the Executive prior to the Effective
Date.
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 or employee of the Company or any of its affiliates or
subsidiaries. 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 or employee of the Company or such affiliate or subsidiary, he
shall be indemnified against expenses, including reasonable attorney's fees,
judgments, fines and amounts paid in settlement if he 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, he had no
reasonable cause to believe his 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 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. The provisions of this Section 8 shall
apply as well to the Executive's 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
15
having jurisdiction thereof. The Company shall reimburse the Executive's
reasonable costs and expenses incurred in connection with any arbitration
proceeding pursuant to this Section 9 if the Executive (and, if the arbitration
proceeding also relates to the Loan Out Agreement, the Producer) is the
substantially prevailing party in that proceeding.
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.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
If to the Executive, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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 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
16
bound by or liable for any alleged representation, promise or inducement not so
set forth. This Agreement expressly supersedes all agreements and understandings
between the parties regarding the subject matter hereof and any such agreement
is terminated as of the date first above written.
11.4 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.
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.
11.6 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.
12. 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
17
corporation or other business entity directly or indirectly controlling,
controlled by or under common control with the Company or other business entity
in question.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
MARVEL ENTERPRISES, INC.
/s/ F. ▇▇▇▇▇ ▇▇▇▇▇
By: -------------------------
Name: F. ▇▇▇▇▇ ▇▇▇▇▇
Title: President & Chief
Executive Officer
EXECUTIVE:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
SCHEDULE 1
Prior Projects
In Production:
"▇▇▇ ▇▇▇▇: Pilot of the Future"
"Kong: The Animated Series"
In Development:
"Dojo Dogs"
"ComBatz"
"Snug as a Bug in a Rug"
"Pencilneck Mall"
Toys in Development:
"ToolBots"
"Hop Scotch Babies"
Other Business Interests:
Unnamed Art ▇▇▇▇▇▇ Internet Company - involvement to be limited to advisory role
and possibly a board seat.
Consultancy and board membership with BKN until December 31, 1999.
SCHEDULE 2
Additional Benefits:
1. Automobile Allowance. The Executive shall be eligible for an
automobile allowance in the amount of $1,300 per month in accordance with the
Company's policy.
2. Stock Option Plan. The Executive shall be eligible to participate
in the Marvel Enterprises, Inc. Stock Option Plan (the "Stock Option Plan") and
to receive 200,000 options to purchase shares (the "Shares") of the common
stock, par value $.01 per share ("Common Stock"), of the Company pursuant to the
terms of the Marvel Enterprises, Inc. Stock Option Plan (the "Stock Option
Plan") and related Stock Option Agreement subject to the terms and conditions
approved by the committee of the Board of Directors of the Company which
administers the Stock Option Plan. The options shall be scheduled to vest as to
one-third of the Shares on each of the first, second and third anniversaries of
the date they are granted, shall vest as to all of the Shares upon a Third Party
Change in Control and shall be subject to all other terms and conditions of the
Stock Option Plan and the related Stock Option Agreement between the Company and
the Executive. The Executive's participation in the Stock Option Plan shall not
be, or be deemed to be, a fringe benefit or additional benefit for purposes of
Section 4.6(b)(iii) of this Agreement, and the Executive's stock option rights
shall be governed strictly in accordance with the Stock Option Plan and the
related Stock Option Agreement. In the event of any conflict between this
Agreement and the Stock Option Plan and the related Stock Option Agreement, or
any ambiguity in any such agreements, the Stock Option Plan and the related
Stock Option Agreement shall control.
3. Travel. The Executive shall be reimbursed for all reasonable costs
and expenses when traveling on Company business. The Executive shall be entitled
to travel by business class on all trans-continental and international business
flights. When the Executive stays overnight in New York City in the performance
of his duties, the Company shall, at the option of the Executive, either
reimburse the Executive for the cost of hotel accommodations in an amount up to
$250 per night plus taxes or, if the Executive stays in his own apartment in New
York City, pay the Executive $200 per night in lieu of hotel expense.
4. Reimbursement of COBRA Expenses. The Executive shall be reimbursed
for the cost of continued COBRA coverage under the health insurance plans of his
former employer until he becomes eligible to participate in the Company's health
insurance plan.
5. Reimbursement of Legal Fees. The Executive shall be reimbursed for
his reasonable legal fees and expenses incurred in connection with the review
and negotiation of this Agreement.
