Employment Agreement - Marvel Enterprises Inc. and Timothy Rothwell
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of August 1, 2003, between Marvel
Enterprises, Inc., a Delaware corporation (the "Company") and Timothy Rothwell
(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
to the Company as President, Consumer Products Group or in such other executive
position as may be mutually agreed upon by the Company and the Executive. The
Executive shall report 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 the
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, to devote the Executive's entire business time, energy and skill to
such employment and to use the Executive's professional efforts, skill and
ability to promote the Company's interests. The Executive further 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.
1.3 Location. The duties to be performed by the Executive hereunder
shall be performed primarily at the principal executive office of the Company in
New York City, subject to 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 on September 3, 2003 (the "Effective
Date") and shall end on the date that is two years after the Effective Date (the
"Expiration Date"). The Term shall end earlier than the Expiration Date if
sooner terminated pursuant to Section 4 hereof.
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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 three hundred
eighty-five thousand dollars ($385,000) 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 the
following:
(a) a bonus of fifty thousand dollars ($50,000), less any amounts paid
to the Executive pursuant to the consultancy agreement between the Company and
the Executive dated July 24, 2003, payable within ten days after the Effective
Date; provided, that such bonus shall be fully refundable by the Executive to
the Company in the event that the Term is terminated within six months of the
Effective Date by the Executive other than pursuant to Section 4(a) hereof; and
(b) a cash bonus in respect of calendar year 2003 and thereafter based
in part 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 50% of his base salary for the year; provided that for calendar year
2003, Executive shall receive the amount to which he may be entitled under the
2003 bonus program on the assumption that he has been employed for the entire
year or $192,500, whichever is greater (the "2003 Bonus"). Each annual bonus,
including the 2003 Bonus, 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 calendar 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, 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.
3.5 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 employees generally, together with
executive medical benefits for the Executive, as from time to time in effect for
executive employees of the Company generally.
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3.6 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. 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 four 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) material 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 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; or (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; 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 4.4 and the Company fails to cure such conduct or event within thirty
(30) days of receipt of such notice; provided, further, that such thirty-day
period shall be replaced, in the case of a breach by the Company that consists
of a failure to pay the Executive his Base Salary, by a period of five (5)
business days.
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(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.
4.5 Severance. (a) If the Term is terminated pursuant to Section 4.1,
4.2 or 4.3 hereof, or by the Executive other than pursuant to Section 4.4(a),
the Executive shall be entitled to receive his Base Salary, benefits and
reimbursements provided hereunder at the rates provided in Sections 3.1, 3.5 and
3.6 hereof to the date on which such termination shall take effect. In addition,
if the Term is terminated pursuant to Section 4.1 or 4.2, the Executive shall
also be entitled to receive any bonus which has been awarded under Section 3.2
in respect of a previously completed fiscal year but which has not yet 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 2003 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.
(b) Except as provided in Section 4.5(c), if the Term is terminated by
the Executive pursuant to clauses (i), (ii) or (iii) of Section 4.4(a) or by the
Company other than pursuant to Section 4.1, 4.2 or 4.3, 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 twelve (12) month
anniversary of the date of termination, (ii) 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, (iii) a Pro Rata Bonus for the year in which termination
occurs and (iv) 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
(iv) of this Section 4.5(b) (unless vesting is accelerated upon the occurrence
of a Third Party Change in Control as described in Section 4.5(d)) and shall
remain exercisable for ninety days after the end of that period. Bonuses payable
pursuant to this Section 4.5(b), other than the Pro Rata Bonus, shall be payable
in the manner described in Section 3.2. The Pro Rata Bonus to which the
Executive is entitled, if any, shall be paid within the time period provided in
Section 4.5(a). The Executive shall have no duty or obligation to mitigate the
amounts or benefits required to be provided pursuant to this Section 4.5(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, the Base
Salary payable to the Executive pursuant to this Section 4.5(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
4.5(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
4.5(b) shall be terminated. As a condition to the Executive receiving the
payments under Section 4.5(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.
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(c) If the Term is terminated by the Executive pursuant to Section
4.4(a), or by the Company other than pursuant to Section 4.1, 4.2 or 4.3, and,
in any such event, the termination shall occur upon or within twelve (12) months
following the occurrence of a Third Party Change in Control (as defined in
Section 4.5(d)) or in contemplation of a Third Party Change in Control, 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, 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 twelve (12)
months after 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
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 until twelve (12) months after the
date of termination unless vesting is accelerated upon the occurrence of the
Third Party Change in Control as described in subparagraph (d) below.
(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 includes one or more Excluded Persons;
provided that the voting power of the voting stock of the Company "beneficially
owned" (as such term is used in Rule 13d-3 promulgated under the Exchange Act)
by such Excluded Persons (without attribution to such Excluded Persons of the
ownership by other members of the "group") represents a majority of the voting
power of the voting stock "beneficially owned" (as such term is used in Rule
13d-3 promulgated under the Exchange Act) by such group. "Excluded Person" means
Isaac Perlmutter and Avi Arad or any of their affiliates.
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(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
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 4.5(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 4.5(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
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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
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.
(f) Except as provided in this Section 4.5, pursuant to the Marvel
Enterprises, Inc. Stock Incentive Plan as provided in Schedule I to this
Agreement and as required by law, the Company shall have no further obligation
to the Executive after termination of the Term.
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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
(i) in the course of his communications with the Company and its representatives
heretofore with respect to his service as a consultant to the Company or his
prospective employment hereunder or (ii) 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 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 known
by the Executive to be 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. The Executive shall be entitled, however, to
retain a copy of any such materials that (i) were in his possession before his
employment hereunder and (ii) are in his "Rolodex"; provided that, in either
case, the Company shall also retain a copy.
5.2 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 which is not
pursuant to Section 4.4(a) or is otherwise in breach of this Agreement, the
Executive shall not, directly or indirectly, enter the employ of, or render any
services to, DC Comics; and the Executive shall not become interested in DC
Comics, 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
any publicly traded capital stock of DC Comics or any parent entity of DC
Comics.
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5.3 If the Executive commits a breach, or threatens to commit a
breach, of any of the provisions of Section 5.1 or Section 5.2 hereof, the
Company shall have the following rights and remedies:
5.3.1 The right and remedy to seek to have the provisions of this
Agreement specifically enforced by any court having equity jurisdiction, as any
such breach or threatened breach may cause irreparable injury to the Company and
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
as the result of any transactions constituting a material 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 Section 5.1 or Section 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 New York State and of any other state within the geographical scope of such
covenants where the Executive maintains his principal office at the time of
enforcement. In the event that the courts of either such state 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 the other such state as to breaches of such covenants in such other
state , 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 Section 5.1 or
Section 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.
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6. Inventions and Patents.
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 his
employment by the Company (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.
7. Inventions and Patents; Intellectual Property.
(a) 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
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.
(b) 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, 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 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.
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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. The parties agree to allow discovery in accordance
with the Federal Rules of Civil Procedure then in effect. Judgment on the award
may be entered in any court 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 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):
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If to the Company, to:
Marvel Enterprises, Inc.
10 East 40th Street
New York, New York 10016
Attention: President
If to the Executive, to:
Timothy Rothwell
-----------------
with a copy to:
Nelson Felker LLP
10880 Wilshire Boulevard, Suite 2070
Los Angeles, CA 90024
Attn: Patti Felker, Esq.
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
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 (provided,
that the Company shall not be relieved thereby of any of its obligations
hereunder) 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.
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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
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. EXECUTIVE:
By::/s/ Allen S. Lipson /s/ Timothy Rothwell
------------------------- -------------------------
Allen S. Lipson Timothy Rothwell
President and Chief Executive Officer
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SCHEDULE I
Additional Benefits:
1. Automobile Allowance. The Executive shall be eligible for an
automobile allowance in the amount of $1,100 per month in accordance
with the Company's policy.
2. Relocation Expenses. The Executive shall be reimbursed for reasonable
moving expenses (after receiving multiple bids) in connection with his
and his family's relocating to the New York City area from California.
3. Housing Search Expense. The Executive shall be reimbursed for up to
three (3) round-trip coach-class airline tickets from California to
the New York City area plus hotel, food and transportation for each of
the Executive and his wife for the purpose of their searching for
housing in the New York City area.
4. Temporary Housing Expense. The Executive shall be reimbursed at a rate
not to exceed $6,000 per month, for a maximum of four months, for
temporary housing expenses for himself and his family during the time
in which they are looking for permanent housing in the New York City
area. In the event of extraordinary and unforeseen circumstances, the
period of such reimbursement shall be extended for a further two
months.
5. Stock Incentive Plan. As set forth in the consultancy agreement
between the Company and the Executive dated July 24, 2003, the
Executive shall be eligible to participate in the Marvel Enterprises,
Inc. 1998 Stock Incentive Plan (the "Stock Incentive Plan"). Pursuant
to the consultancy agreement, the Executive has already been made
entitled to receive 150,000 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 Stock Incentive 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 Incentive Plan. The Executive's participation in
the Stock Incentive Plan shall not be, or be deemed to be, a fringe
benefit or additional benefit for purposes of Section 4.5(b)(iv) of
this Agreement, and the Executive's stock option rights shall be
governed strictly in accordance with the Stock Incentive Plan and the
related Stock Option Agreement. In the event of any conflict among
this Agreement, the consultancy agreement, the Stock Incentive Plan
and the related Stock Option Agreement, or any ambiguity in any such
agreements, the Stock Incentive Plan and the related Stock Option
Agreement shall control.
6. Directors and Officers Insurance. In the event that the Executive
serves as an officer or director of the Company or any subsidiary or
affiliate of the Company in accordance with Section 1.2 hereof, the
Executive shall be covered by the Company's directors' and officers'
insurance policy(ies) in place at the time.
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7. COBRA Reimbursements. The Company shall reimburse the Executive for
COBRA health benefits paid for the period of the Term prior to the
Executive's eligibility for medical benefits pursuant to Section 3.5
of the Agreement.
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