Nonqualified Stock Option Agreement - Marvel Enterprises Inc. and Isaac Perlmutter
EXECUTION COPY
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of the 30th day of November, 2001,
between Marvel Enterprises, Inc., a Delaware corporation (the "Company"), and
Isaac Perlmutter (the "Optionee"), is entered into pursuant to the Marvel
Enterprises, Inc. 1998 Stock Incentive Plan, as amended (the "Plan").
Capitalized terms used herein, but not defined herein, shall have the meanings
ascribed to them in the Plan.
WHEREAS, the Company has adopted the Plan in order to provide
additional incentive to certain directors, officers, employees and consultants
of the Company and its Subsidiaries;
WHEREAS, the Committee responsible for administration of the Plan
has determined to grant an option to the Optionee as provided herein; and
WHEREAS, the Company and the Optionee are entering into an
employment agreement (the "Employment Agreement"), dated as of the date of this
Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
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1.1 The Company hereby grants to the Optionee, effective as of
November 30, 2001 (the "Grant Date"), the right and option (the "Option") to
purchase all or any part of an aggregate of 3,950,000 whole Shares subject to,
and in accordance with, the terms and conditions set forth in this Agreement and
subject to approval by the Stockholders of an amendment of the Plan to increase
the number of shares of Common Stock available for issuance under the Plan (the
"Stock Plan Amendment") and of the grant of the Option.
1.2 The Option is not intended to qualify as an Incentive Stock
Option within the meaning of Section 422 of the Code.
1.3 This Agreement shall be construed in accordance and
consistent with, and subject to, the provisions of the Plan (the provisions of
which are incorporated herein by reference); however, in the event of any
conflict between the terms of this Agreement and the Plan, the terms of this
Agreement shall govern.
2. Purchase Price.
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The price at which the Optionee shall be entitled to purchase
Shares upon the exercise of the Option shall be $3.30 per Share.
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3. Duration of Option.
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Subject to Section 1.1, the Option shall be exercisable to the
extent and in the manner provided herein from and after the date of the meeting
of Stockholders of the Company at which the Stock Plan Amendment and the Option
are either approved or not approved by the Stockholders of the Company, until
the sixth anniversary of the Grant Date (the "Exercise Term"); provided,
however, that the Option may be earlier terminated as provided in Section 6
hereof.
4. Exercisability of Option.
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The Option shall be fully vested at all times and shall entitle
the Optionee to purchase the Shares covered by this Option, in whole at any time
or in part from time to time during the period referred to in Section 3, unless
and until the Option ceases to be exercisable as provided in this Agreement.
5. Manner of Exercise and Payment.
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5.1 Subject to the terms and conditions of this Agreement and the
Plan, the Option may be exercised by delivery of written notice to the Company,
in the form attached hereto as Appendix A, at its principal executive office.
Such notice shall state that the Optionee is electing to exercise the Option and
the number of Shares in respect of which the Option is being exercised and shall
be signed by the person or persons exercising the Option. If any of the Shares
in respect of which the Option is being exercised are required to be issued as
shares of Restricted Stock as provided in Section 5.5 below, the notice of
exercise must also be accompanied by a stock power, duly executed by the
Optionee in blank. If requested by the Committee, such person or persons shall
(i) deliver this Agreement to the Secretary of the Company who shall endorse
thereon a notation of such exercise and (ii) provide satisfactory proof as to
the right of such person or persons to exercise the Option.
5.2 The notice of exercise described in Section 5.1 hereof shall
be accompanied by the full purchase price for the Shares in respect of which the
Option is being exercised, in cash.
5.3 Upon receipt by the Company of notice of exercise, full
payment for the Shares in respect of which the Option is being exercised and a
stock power, if required by Section 5.1, the Optionee shall immediately have
full voting and other ownership rights with respect to the number of Shares as
to which such exercise was effective. The Company shall enter the Optionee's
name as a stockholder of record on the books of the Company and, subject to
Section 17 of the Plan, promptly take such action as may be necessary to deliver
the Shares as provided in Section 5.5 below.
5.4 The Optionee shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to any Shares subject to the
Option until the Option shall have been exercised pursuant to the terms of this
Agreement and the
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Optionee shall have paid the full purchase price for the number of Shares in
respect of which the Option was exercised.
5.5 Shares issued upon exercise of the Option shall be either
Unrestricted Shares or Restricted Stock as provided in this Section 5.5. If the
Option is exercised prior to the fourth anniversary of the Grant Date, all of
the Shares issued upon exercise of the Option shall be issued as Shares of
Restricted Stock. If the Option is exercised, in the aggregate, for more than
one-third of the Shares covered by the Option on or after the fourth anniversary
of the Grant Date but prior to the fifth anniversary of the Grant Date, a number
of Shares equal to the excess of (x) the number of Shares issued upon exercise
of the Option at all times up to and including such exercise over (y) one-third
of the Shares covered by the Option shall be issued as shares of Restricted
Stock. If the Option is exercised, in the aggregate, for more than two-thirds of
the Shares covered by the Option on or after the fifth anniversary of the Grant
Date but prior to the sixth anniversary of the Grant Date, a number of Shares
equal to the excess of (x) the number of Shares issued upon exercise of the
Option at all times up to and including such exercise over (y) two-thirds of the
Shares covered by the Option shall be issued as shares of Restricted Stock. The
vesting restrictions on shares of Restricted Stock issued upon exercise of the
Option shall lapse, and such Shares shall cease to be Restricted Stock, as
provided in Section 6 of this Agreement.
5.6 Any shares of Restricted Stock will be issued upon exercise
of the Option subject to the following conditions:
(i) the Company shall deliver certificates representing shares of
Restricted Stock, together with the stock power executed by the Optionee to the
Secretary of the Company, who shall hold such certificates in escrow pursuant to
this Agreement;
(ii) Certificates representing shares of Restricted Stock shall
bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO REACQUISITION
BY MARVEL ENTERPRISES, INC., AND SUCH SHARES MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO THE PROVISIONS OF THE
NONQUALIFIED STOCK OPTION AGREEMENT BY AND BETWEEN MARVEL ENTERPRISES,
INC. AND THE REGISTERED OWNER OF SUCH SHARES;
(iii) any dividends on the Restricted Stock in the form of
additional Shares or other securities of the Company shall be shares of
Restricted Stock, subject to the same terms and conditions as the Restricted
Stock with respect to which the dividends were paid;
(iv) as vesting restrictions lapse on the Restricted Stock as
provided in Section 6 of this Agreement, upon the written request of the
Optionee, the Company shall cause the Secretary to deliver certificates
representing such shares of Restricted Stock to the Optionee at the address
requested by the Optionee. Such certificates shall not be
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delivered to the Optionee unless he has made arrangements satisfactory to the
Company to satisfy tax-withholding obligations. Such certificates shall bear any
legends which the Company reasonably deems appropriate to assure compliance with
applicable securities laws, but shall not bear the legend required by paragraph
(ii) above; and
(v) if the Optionee's service as an employee terminates before
all vesting restrictions lapse on his Restricted Stock, the Company may, at its
election, repurchase within ninety (90) days from the date of termination all or
any portion of the shares of Restricted Stock as to which vesting restrictions
have not lapsed. The Company may assign such right to repurchase Restricted
Stock, in whole or in part, to a third party. Such a repurchase shall be at a
price equal to the exercise price paid by the Optionee for such Shares and shall
be effected by delivery by the Company (or that assignee) of a certified check,
payable to the Optionee in the full amount of the purchase price together with a
notice that the Company has exercised its right to repurchase the shares of
Restricted Stock pursuant to this section. Such a repurchase shall be effective
as of the time the Company gives such a notice and such payment is made, whether
or not such notice and payment have been received by the Optionee. Upon such a
repurchase, the Secretary of the Company shall deliver such certificates to the
Company (or that assignee) together with the stock power executed by the
Optionee, and the Secretary of the Company shall execute and deliver any
instruments reasonably deemed appropriate by the Company to effect that delivery
on behalf of the Optionee and transfer of ownership of such shares to the
Company (or that assignee). The Optionee hereby irrevocably authorizes the
Secretary of the Company to effect that delivery and to execute and deliver any
such instruments on behalf of, and in the name of, the Optionee. Any shares of
Restricted Stock not purchased in accordance with this Section 5.6(v) shall
thereafter be free of all restrictions and rights of repurchase.
6. Lapse of Restrictions; Termination of Employment during the Term.
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6.1 Termination of Employment Under the Optionee's Employment
Agreement for Good Reason or for other than Cause.
(a) Except as provided in Section 6.1(b) hereof, if the Term (as
defined in the Employment Agreement) is terminated (x) by the Optionee upon the
occurrence of an event described in Section 4.4(a) of the Employment Agreement,
or (y) by the Company other than pursuant to Section 4.1, 4.2 or 4.3 of the
Employment Agreement, the Option shall thereafter be exercisable until the
expiration of the Exercise Term for a number of Shares equal to the greater of
(i) the amount, if any, by which one-third of the Shares covered by the Option
exceeds the number of Shares in respect of which the Option was previously
exercised, or (ii) the amount, if any, by which (x) the product of the number of
full months elapsed from the Grant Date to the date on which the Term is
terminated, multiplied by the number of Shares covered by the Option divided by
72, exceeds (y) the number of Shares previously issued upon exercise of the
Option. The Option shall cease to be exercisable after the termination of the
Term for any Shares in excess of such number. If the number of Shares previously
issued upon exercise of the Option is equal to or less than such number, any
remaining vesting restrictions on those Shares shall lapse and such Shares shall
cease to be Restricted Stock. Any Shares issued upon
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exercise of the Option to the extent it remains exerciseable thereafter shall be
fully vested and shall not be Restricted Shares.
(b) If the Term is terminated pursuant to Section 4.1 or 4.2 of
the Employment Agreement, the Option shall thereafter be exercisable until the
expiration of the Exercise Term for a number of Shares equal to the amount, if
any, by which, (i) the product of the number of full months elapsed from the
Grant Date to the date on which the Term is terminated multiplied by the number
of Shares covered by the Option divided by 72, exceeds (ii) the number of Shares
previously issued upon exercise of the Option. The Option shall cease to be
exercisable after the termination of the Term for any Shares in excess of such
number. If the number of shares previously issued upon exercise of the Option is
equal to or less than such number, any remaining vesting restrictions on those
Shares shall lapse and such Shares shall cease to be Restricted Stocks. Any
Shares issued upon exercise of the Option to the extent it remains exerciseable
thereafter shall be fully vested and shall not be Restricted Shares. In the
event of termination of employment pursuant to Section 4.1 of the Employment
Agreement, the Option shall be exercisable, to the extent provided in the Plan
and this Agreement, by the legatee or legatees under the Optionee's will, or by
the Optionee's personal representatives or distributees and such person or
persons shall be substituted for the Optionee each time the Optionee is referred
to herein.
6.2 Termination of Employment Under the Optionee's Employment
Agreement for Cause. If the Term is terminated by the Company pursuant to
Section 4.3 of the Employment Agreement, or by the Optionee other than pursuant
to Section 4.4 (a) of the Employment Agreement, the Option shall thereafter
cease to be exercisable.
6.3 Breach of Restrictive Covenants. If the Optionee commits a
breach of any of the provisions of Sections 5.1, 5.2 or 5.3 of the Employment
Agreement, in addition to the Company's rights and remedies set forth in Section
5.6 of the Employment Agreement or otherwise, any profit received by the
Optionee from any exercise of the Option shall inure to and be repaid to the
Company upon its demand. The foregoing provision may be satisfied at the
Optionee's option by payment of cash and/or tender of shares of Common Stock
which are not Restricted Shares. Shares of Common Stock tendered pursuant to
this section shall be valued at the average of the daily closing sale prices (or
the equivalent in an over the counter market) for the Common Stock, on the stock
exchange or over the counter market that is the primary trading market for the
Common Stock, for the 10 consecutive days immediately preceding the date of the
tender.
6.4 Change in Control. Provided the Optionee is then employed by
the Company, in the event of a Change in Control during the Term, all
restrictions on shares of Restricted Stock shall lapse and, to the extent not
therefore exercised, the Option shall remain exercisable in full until the sixth
anniversary of the Grant Date. The vesting restrictions on Shares of Restricted
Stock previously issued upon exercise of the Option shall lapse and such Shares
shall cease to be Restricted Stock and any Shares issued upon exercise of the
Option after the Change in Control shall be fully vested and shall not be
Restricted Shares. A Change in Control shall be deemed to have occurred if (i)
any
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"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
the Optionee or any of his affiliates, or any "group" of which the Optionee or
any of his affiliates is a member (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 the 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, (iii) all or
substantially all of the assets of the Company are acquired by a Third Party, or
(iv) a majority of the members of the Company's board of directors ceases to be
Continuing Directors. "Continuing Directors" means individuals who are members
of the board of directors on the date of this Agreement and individuals who have
hereafter been nominated for election to the board of directors by a majority of
the Continuing Directors serving as directors at the time of such nomination.
6.5 Lapse of Restrictions. Unless such restrictions on shares of
Restricted Stock issued on exercise of the Option during the Term shall have
previously lapsed as provided in this Section 6, restrictions shall lapse on
each anniversary of the Grant Date commencing with the fourth anniversary of the
Grant Date on a number of such shares equal to one-third of the total number
Shares covered by the Option; provided, that, although the parties intend that
the effect of the termination of the Optionee's employment on restrictions under
all circumstances is addressed under other sections of this Agreement, for the
avoidance of doubt the parties acknowledge that the lapse of restrictions under
this Section 6.5 shall occur only if the Optionee is employed by the Company on
the applicable anniversary date referred to in this Section 6.5.
6.6 Fractional Shares. Any fractional number of Shares resulting
from the application of the calculations provided in this Section 6 shall be
rounded to the next higher whole number of Shares, provided Optionee is then
employed by the Company.
7. Nontransferability.
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Neither the Option nor any shares of Restricted Stock with
respect to which the vesting restrictions have not lapsed shall be transferable
other than by will or by the laws of descent and distribution. In the event of
such transfer, the transferee shall acquire the Option and any shares of
Restricted Stock subject to the restrictions set forth in this Agreement. During
the lifetime of the Optionee, the Option shall be exercisable only by the
Optionee.
8. No Right to Continued Employment.
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Nothing in this Agreement or the Plan shall be interpreted or
construed to confer upon the Optionee any right with respect to continuance of
employment by the Company, nor shall this Agreement or the Plan interfere in any
way with the right of the Company to terminate the Optionee's employment at any
time.
9. Adjustments.
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In the event of a Change in Capitalization, the Committee may
make appropriate adjustments to the number and class of Shares or other stock or
securities subject to the Option and the purchase price for such Shares or other
stock or securities. The Committee's adjustment shall be made in accordance with
the provisions of Section 10 of the Plan and shall be effective and final,
binding and conclusive for all purposes of the Plan and this Agreement.
10. Certain Transactions.
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Upon the effective date of (i) the liquidation or dissolution of
the Company or (ii) a merger or consolidation of the Company (a "Transaction"),
the Option shall continue in effect in accordance with its terms and the
Optionee shall be entitled to receive in respect of all Shares subject to the
Option, upon exercise of the Option, the same number and kind of stock,
securities, cash, property or other consideration that each holder of Shares was
entitled to receive in the Transaction.
11. Withholding of Taxes.
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The Company shall have the right to deduct from any distribution
of cash to the Optionee an amount equal to the federal, state and local income
taxes and other amounts as may be required by law to be withheld (the
"Withholding Taxes") with respect to the Option. If the Optionee is entitled to
receive Shares upon exercise of the Option, the Optionee shall pay the
Withholding Taxes to the Company in cash prior to the issuance of such Shares.
In satisfaction of the Withholding Taxes, the Optionee may make a written
election (the "Tax Election"), which may be accepted or rejected in the
discretion of the Committee, to have withheld a portion of the Unrestricted
Shares, if any, issuable to him upon exercise of the Option, having an aggregate
Fair Market Value, on the date preceding the date of such issuance, equal to the
Withholding Taxes.
12. Receipt of Plan Summary.
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The Optionee hereby acknowledges receipt of a summary of the
Plan.
13. Modification of Agreement.
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This Agreement may be modified, amended, suspended or terminated,
and any terms or conditions may be waived, but only by a written instrument
executed by the parties hereto.
14. Severability.
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Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any reason, the
remaining provisions of this Agreement shall not be affected by such holding and
shall continue in full force in accordance with their terms.
15. Governing Law.
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The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of New York without
giving effect to the conflicts of laws principles thereof.
16. Successors in Interest.
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This Agreement shall inure to the benefit of and be binding upon
any successor to the Company. This Agreement shall inure to the benefit of the
Optionee's legal representatives. All obligations imposed upon the Optionee and
all rights granted to the Company under this Agreement shall be final, binding
and conclusive upon the Optionee's heirs, executors, administrators and
successors.
17. Resolution of Disputes.
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Any dispute or disagreement which may arise under, or as a result
of, or in any way relate to, the interpretation, construction or application of
this Agreement shall be determined by the Committee. Any determination made
hereunder shall be final, binding and conclusive on the Optionee and Company for
all purposes.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
COMPANY:
MARVEL ENTERPRISES, INC.
By:
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Name:
Title:
OPTIONEE:
/s/ Isaac Perlmutter
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Isaac Perlmutter
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Appendix A
NOTICE OF EXERCISE OF OPTION
UNDER THE
MARVEL ENTERPRISES, INC. 1998 STOCK INCENTIVE PLAN
Marvel Enterprises, Inc.
685 Third Avenue
New York, NY 10017
Attn: Corporate Secretary
Gentlemen:
I hereby exercise my option to purchase common stock of Marvel
Enterprises, Inc. (the "Company"), par value $.01 per share (the "Common
Stock"), under the terms and conditions of that certain Nonqualified Stock
Option Agreement, dated as of November 30, 2001, by and between Isaac Perlmutter
and the Company, as follows:
(1) Number of shares: _____________________________________
(2) Option Price per share: $______________________________
(3) Aggregate purchase price [(1) X (2)]: $________________
Date:_________________________ __________________________
(Signature)
App. A-1