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Exhibit
10.1
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
I,
David Maisel, agree to the terms and conditions of employment
with Marvel Entertainment, Inc. (“Company”) set
forth in this employment agreement (“Agreement”),
which amends and restates my employment agreement dated May 3,
2005, as amended.
1.
Term of
Employment . My employment under this Agreement
(“Term”) shall commence on May 2, 2008 and shall
end on December 31, 2010 (“Expiration Date”) or
such earlier date on which my employment is terminated under
Section 5 of this Agreement. If the Company
continues to employ me beyond the Expiration Date without
entering into a written agreement extending the term of this
Agreement, except as provided in a new written employment
agreement between the Company and me, all obligations and
rights under this Agreement shall lapse as of the Expiration
Date, except my confidentiality and other obligations under
Sections 6 and 7, the Company’s ongoing indemnification
obligation under Section 8, and our mutual arbitration
obligations under Section 9, and I thereafter shall be an
at-will employee of the Company.
2.
Nature of
Duties . I shall be the Company’s
Executive Vice President, Office of the Chief Executive and
the Chairman of Marvel Studios, and I shall report to the
Company’s Chief Executive Officer. I shall
work exclusively for the Company and shall perform such senior
executive duties as the Company shall from time to time assign
me. I shall devote my full business time and effort
to the performance of my duties for the Company, which I shall
perform faithfully and to the best of my ability. I
shall be subject to the Company’s policies, procedures
and approval practices, as generally in effect from time to
time, except to the extent that they conflict with this
Agreement.
I
further agree 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 stockholders
or by the Board or of any subsidiary or affiliate, as the case
may be. Unless otherwise agreed to in writing by
the Company and me, I shall immediately resign any such office
or directorship upon the expiration of the Term.
3.
Place of
Performance . I shall be based at the
Company’s offices in Beverly Hills, CA, except for
required travel on the Company’s business, and with the
understanding that the Company may require that half or less
of my time performing my duties hereunder be spent at the
Company’s headquarters in New York City. Any
business travel shall be arranged in accordance with the
travel policies and procedures established by the
Company.
4.
Compensation
and Related Matters .
(a)
Base
Salary . The Company shall pay me base
salary at the following annual rates, or such higher rate as
it elects to pay me: (i) from January 1, 2008 (retroactively)
through December 31, 2008: $800,000; and (ii) thereafter:
$1,000,000. My base salary shall be paid in
conformity with the Company’s salary payment practices
generally applicable to other similarly situated Company
employees. In addition to my base salary, I
shall
receive,
through December 31, 2008, $1,100 per month (the amount
formerly provided to me as “car allowance”) as
salary not subject to raises, bonuses or severance
pay.
(b)
Bonuses
.
(i) I will be
eligible to receive an annual cash bonus, in such amount (if
any) as the Board may determine in its sole discretion, based
in whole or in part upon the attainment of the performance
goals set by the Board, all of the preceding to be consistent
with the Company’s executive officers in general (the
“Bonus Performance Goals”). My target
annual bonus amount shall be 50% of my Base Salary received
for the year. The Board shall have the sole
discretion to determine in good faith whether I have attained
the Bonus Performance Goals. Each annual bonus
shall be paid when annual bonuses are paid generally to the
Company’s other similarly situated employees but in no
event later than a day that is within the first two and
one-half months of the next calendar year.
(ii) In
addition, with respect to each of 2009 and 2010, I shall
receive an award entitling me to a bonus of
$2,662,426. Both the 2009 and 2010 bonuses under
this Section 4(b)(ii) shall be earned in full upon the
achievement of the performance goal set forth in the award
letter issued to me by the Compensation Committee of the
Company’s Board on April 21, 2008. The
2009 bonus shall be payable in early 2010, on the schedule
described in Section 4(b)(i) for 2009 bonuses; the 2010 bonus
shall be payable in early 2011, on the schedule described in
Section 4(b)(i) for 2010 bonuses. If the
performance goal for the bonuses under this Section 4(b)(ii)
is not met, then, notwithstanding anything herein to the
contrary, I shall be permitted, on at least 60 days’
notice received on or before January 31, 2009, to resign my
employment hereunder effective at any date on or before March
31, 2009, in which case, provided that I have complied with
the confidentiality provisions of this Agreement and executed
a separation agreement and general release on the
Company’s standard form: (1) I will receive the bonus,
if any, that the Company awarded me for the previously
completed fiscal year, if unpaid; (2) I will receive a
portion of the bonus that the Company would have awarded me
for the fiscal year in which the resignation is effective,
prorated for the number of days I actually worked for the
Company in that fiscal year (and payable when such bonus
would have been paid had my employment not terminated);
(3) any award made to me under the Company’s stock
incentive plan(s) or cash incentive compensation plan(s)
shall continue to vest through March 31, 2009; (4) any stock
options awarded to me by the Company shall remain
exercisable, if they have not expired by their terms, for 90
days after March 31, 2009; and (5) I shall be released from
any obligation hereunder not to compete with the
Company.
(c)
Standard
Benefits . During my employment, I shall be
entitled to participate in all employee benefit plans and
programs (including any group health plans, qualified pension
plans, and 401(k) plans) to the same extent generally
available to other similarly situated Company employees, in
accordance with the terms of those plans and
programs. The Company shall have the right to
terminate or change any such plan or program at any
time.
(d)
Vacation.
I shall be entitled to a vacation period or
periods of four (4) weeks in 2008, and three (3) weeks per
year in each year after 2008, taken in accordance with the
vacation policy of the Company during each year of the
Term.
(e)
Expenses
. I shall be entitled to receive prompt
reimbursement for all reasonable and customary travel and
business expenses I incur in connection with my employment,
but I must incur and account for those expenses in accordance
with the policies and procedures established by the
Company.
5.
Termination
.
(a)
Rights and
Duties . If my employment is terminated, I
shall be entitled to the amounts or benefits shown on the
applicable row of the following table, subject to the balance
of this Section 5. The Company and I shall have no
further obligations to each other, except my confidentiality
and other obligations under Sections 6 and 7, the
Company’s ongoing indemnification obligation under
Section 8, and our mutual arbitration obligations under
Section 9, or as set forth in any written agreement I
subsequently enter into with the Company. In no
event will any of the payments to be made under this section
be made later than the seventy-fourth (74th) day of the next
fiscal year after they become payable.
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DISCHARGE FOR CAUSE
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Payment
or provision when due of (1) any unpaid base salary, expense
reimbursements, and vacation days accrued prior to termination
of employment, and (2) other unpaid vested amounts or benefits
under Company compensation, incentive, and benefit
plans.
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DEATH OR DISABILITY
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Same
as for “Discharge for Cause” EXCEPT that, in
exchange for my (or my estate’s) execution of a release
in accordance with this section and provided that I have not
violated any of my obligations under Section 6, below, (1) I
(or my estate) will receive the bonus, if any, that the
Company awarded me for the previously completed fiscal year,
if unpaid; (2) I (or my estate) will receive a portion of the
bonus that the Company would have awarded me for the fiscal
year in which termination occurs, prorated for the number of
days I actually worked for the Company in that fiscal year
(and payable when such bonus would have been paid had my
employment not terminated); (3) any award made to me under the
Company’s stock incentive plan(s) or cash incentive
compensation plan(s) shall immediately vest in full; and (4)
any stock options awarded to me by the Company shall remain
exercisable, if they have not expired by their terms, for 90
days after my termination date.
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DISCHARGE OTHER THAN FOR CAUSE, DEATH, OR DISABILITY
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Same
as for “Discharge for Cause” EXCEPT that, in
exchange for my execution of a release in accordance with this
section and provided that I have not violated any of my
obligations under Section 6, below, (1) my base salary, but
not my employment, shall continue through the Expiration Date
or such date as I commence employment with another entity (or
self-employment), whichever comes first; (2) I will receive
the bonus, if any, that the Company awarded me for the
previously completed fiscal year, if unpaid; (3) I will
receive the bonus(es) that the Company would have awarded
me
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for
the period remaining through the Expiration Date (and payable when
such bonus would have been paid had my employment not terminated);
(4) the Company will reimburse me for the cost of any COBRA health
continuation coverage I purchase (in excess of the amount I would
have paid for group health coverage had I remained on the
Company’s group health plan as an employee) until the earlier
of (A) the date on which I become eligible for health insurance
benefits under another employer’s plan or (B) the Expiration
Date; (5) any award made to me under the Company’s stock
incentive plan(s) or cash incentive compensation plan(s) shall
continue to vest during the period described in clause (1) of this
sentence, subject to the achievement of any applicable performance
goals; and (6) any stock options awarded to me by the Company shall
remain exercisable, to the extent vested and if they have not
expired by their terms, for 90 days after the expiration of the
period described in clause (1) of this sentence.
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RESIGNATION WITHOUT GOOD REASON
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Same
as for “Discharge for Cause.”
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RESIGNATION WITH GOOD REASON
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Same
as for “Discharge Other Than for Cause, Death, or
Disability.”
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TERMINATION WITHOUT CAUSE OR RESIGNATION WITH GOOD REASONS WITHIN
12 MONTHS AFTER A THIRD PARTY CHANGE IN CONTROL
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Same
as for “Discharge for Cause” EXCEPT that, in
exchange for my execution of a release in accordance with this
section and provided that I have not violated any of my
obligations under Section 6, below, (1) I will receive, in a
lump sum within 30 days after my termination date, an amount
equal to two times the sum of (A) my then current Base Salary
and (B) the average of the two most recent annual bonuses paid
to me by the Company (treating any annual bonus which is not
paid as a result of my failure to attain the Bonus Performance
Goals as having been paid in an amount equal to zero) or if
only one annual bonus has been paid to me by the Company, the
amount of that annual bonus; (2) I will receive the bonus, if
any, that the Company awarded me for the previously completed
fiscal year, if unpaid; (3) I will receive the bonus(es) that
the Company would have awarded me for the period remaining
through the Expiration Date (and payable when such bonus would
have been paid had my employment not terminated); (4) the
Company will reimburse me for the cost of any COBRA health
continuation coverage I purchase (in excess of the amount I
would have paid for group health coverage had I remained on
the
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Company’s
group health plan as an employee) until the earlier of (A) the date
on which I become eligible for health insurance benefits under
another employer’s plan or (B) the Expiration Date; (5) any
award made to me under the Company’s stock incentive plan(s)
or cash incentive compensation plan(s) shall continue to vest
through the Expiration Date, unless vested sooner pursuant to the
terms of the award; and (6) any stock options awarded to me by the
Company shall remain exercisable, to the extent vested and if they
have not expired by their terms, for 90 days after the Expiration
Date.
Any
payments or benefits provided to me in connection with a Third
Party Change on Control shall be in lieu of any other benefits
or payment available or otherwise payable to me under this
Section 5.
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EXPIRATION OF AGREEMENT
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Same
as for “Discharge for Cause,” except that my
bonuses with respect to 2010 shall be payable in accordance
with their terms (e.g., subject to the achievement of any
applicable performance goals) as if my employment continued
through the payment date.
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In
the event that any limitation is imposed by a court or
arbitrator on the enforceability of my covenants in Section
6(c)(i) and/or Section 6(c)(ii), I agree that I shall
nevertheless forfeit any right to future benefits under this
Section 5(a) in the event that I directly or indirectly, on my
own behalf or on behalf of any other person or entity, whether
as an owner, director, officer, partner, employee, agent or
consultant, for pay or otherwise:
(i) render
services of an executive, advertising, marketing, sales,
supervisory, technical, research, purchasing, or consulting
nature to any person or entity (or on my own behalf, if I am
self-employed) that is engaged in a business that competes
with or intends to compete with any business conducted by the
Group (as defined in Section 6(a), below), including but
not limited to character-based licensing, publication (in any
medium) of comic books or other graphic fiction, toy
manufacturing, film production and entertainment, or in the
event that I 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 I shall not forfeit any rights under this Section 5(a)
solely by acquiring, solely as an investment, up to five
percent (5%) of the outstanding shares of capital stock of any
public corporation or by continuing to hold my current 0.5%
equity interest in YoungHollywood.com; or
(ii) solicit
or serve, participate in soliciting or serving or induce,
advise, encourage or attempt to solicit or serve any customer,
supplier, vendor, or distributor of the Group (A) for which I
was responsible during my employment with the Company, (B)
with whom I had business contacts or dealings on behalf of the
Company during my employment with the Company, or (C) about
which I learned confidential information.
(b)
Discharge for
Cause . The Company may terminate my
employment at any time for
Cause. “Cause” means that one or more
of the following events occurred:
(i)
my conviction of a felony, a
crime involving theft, fraud, dishonesty or
moral turpitude, or any violation of any federal or state
securities law (whether by plea of nolo contendere
or otherwise) or my being enjoined from violating any federal
or state securities law or being determined to have violated
any such law.
(ii)
my refusal to follow the Company’s lawful
directions consistent with Sections 2 and 3 above or my
material failure to perform my duties (other than by reason of
physical or mental illness, injury, or condition), in either
case, after I have been given written notice of my default
describing the default in reasonable detail, and 30 business
days to cure my default;
(iii) my
engaging in conduct constituting embezzlement, willful
assistance to a competitor, fraud, misappropriation, material
violation of the Company’s anti-discrimination, equal
employment opportunity, prohibition against harassment or
similar written policies provided to me by the Company or
material violation of the Company’s insider trading
policy or corporate code of business conduct and
ethics;
(iv) my
failure (including, but not limited to, my refusal to be
deposed or to provide testimony at any trial or inquiry) to
cooperate, if requested by the Board, with any investigation
or inquiry, whether internal or external, into my actions (or
inactions) or the Company’s business
practices;
(v)
my possession on Company premises of any prohibited drug
or substance that would amount to a criminal
offense;
(vi) my
gross misconduct or gross negligence in connection with the
business of the Company or any affiliate;
(vii) my
material breach of this Agreement, including of any promise I
made in Section 6, below; or
(viii) my
seeking, exploring, or accepting a position with another
business enterprise or venture without the Company’s
written consent at any time more than 90 days before the
Expiration Date.
If my employment ends for
any reason other than discharge by the Company for Cause, but
at a time when the Company had Cause to terminate me (or
would have had Cause if it then knew all relevant facts), my
termination shall be treated as a discharge by the Company
for Cause.
(c)
Termination
for Disability . Except as prohibited by
applicable law, the Company may terminate my employment on
account of Disability, or may transfer me to inactive
employment status, which shall have the same effect under this
Agreement as a termination for
Disability. “Disability” means a
physical or mental illness, injury, or
condition
that
prevents me from performing substantially all of my duties
under this Agreement for at least 90 consecutive calendar days
or for at least 120 calendar days, whether or not consecutive,
in any 365 calendar-day period, or is likely to do so, as
certified by a physician selected by the Company.
(d)
Discharge
Other Than for Cause, Death, or Disability
. The Company may terminate my employment at any
time for any reason, and without advance notice. If
I am terminated by the Company other than for Cause, Death, or
Disability, I will receive the special benefits provided for a
non-Cause discharge under Section 5(a) only if I sign a
separation agreement and general release form furnished to me
by the Company within 45 days from its delivery to me (or such
shorter deadline as the Company establishes at the time) and I
do not thereafter properly revoke the release.
(e)
Resignation
. I promise not to resign my employment before the
Expiration Date unless I have been given Good Reason (as
defined below) to do so. If I break that promise
and resign other than for Good Reason, I shall nevertheless
remain employed under this Agreement except to the extent the
Company elects to cancel it. If I resign other than
for Good Reason and the Company accepts my resignation, the
Company may do so effective on the date set forth in my notice
or any earlier date. If I resign for Good Reason,
my employment will end on my last date of work and I will
receive the benefits to which I am entitled under Section
5(a), but only if I sign a separation agreement and general
release form furnished to me by the Company within 45 days
from its delivery to me (or such shorter deadline as the
Company establishes at the time) and I do not thereafter
properly revoke the release. “Good Reason” means
that, without my express written consent, one or more of the
following events occurred after my execution of this Agreement
and was not reversed or cured within 30 days of my giving the
Company written notice that I consider the event (if it
remains) to have given me “Good Reason” for
resigning:
(i)
assignment to me of duties inconsistent with Section 2
above;
(ii) a
transfer of my principal office to a location more than 50
miles from the location set forth in Section 3 above;
or
(iii) the
Company’s material breach of this
Agreement.
An event that is or would
constitute Good Reason, however, shall cease to be Good
Reason if: (1) I do not terminate employment
within 30 days after the end of the 30-day notice period
referred to above; or (2) I was a primary instigator of the
Good Reason event and the circumstances make it inappropriate
for me to receive Good Reason resignation benefits under this
Agreement.
(f)
Death
. If I die while employed under this Agreement, my
employment shall be considered terminated as of my date of
death and the payments required by Section 5(a) in the event
of my death shall be made.
(g)
Transfers to
Group Member . My transfer to another member
of the Group shall not be deemed a termination of my
employment under this Agreement if it assumes this
Agreement.
(h)
Garden
Leave. The Company shall not be obligated
to use my services or any of the results and proceeds thereof
or to permit me to retain any corporate office, and the
Company shall have the unilateral right, at any time and from
time to time, without notice, in its sole and absolute
discretion, to suspend that use and that permission and to
require me to remain otherwise exclusively available to
provide my services to the Company (the “Garden Leave
Option”). If the Company elects to exercise
the Garden Leave Option prior to the Expiration Date, the
Company shall have no obligation or liability to me pursuant
to this Agreement or otherwise, except to pay to me my salary
under Section 3(a) above, my bonuses under Section 3(b) above
and my benefits under Section 3(c) above, in each case in the
same installments and on the same dates as if the Company had
not exercised the Garden Leave Option. No exercise
by the Company of the Garden Leave Option shall, under any
circumstances, be deemed to constitute (i) a breach by the
Company of any term of this Agreement, express or implied
(including, without limitation, a breach of any implied
covenant of good faith and fair dealing) or (ii) a wrongful
deprivation by the Company of my corporate office (or
authority, opportunities or other benefits relating
thereto). No exercise by the Company of the Garden
Leave Option s
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