AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
I,
John Turitzin, 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 March
13, 2006, as amended.
1.
Term of Employment . My employment under this Agreement
(“Term”) shall commence on March 13, 2008 and shall end
on March 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 General
Counsel, and I shall report to the Company’s Chief Executive
Officer or such other person as the Company’s Board of
Directors (“Board”) or its designee shall
designate. I shall work exclusively for the Company and
shall have all of the customary powers and duties associated with
that position, together with such other and further 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.
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 principal executive office in New York City, except
for required travel on the Company’s business. 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 an annual rate of $600,000, or such higher rate as it
elects to pay me. 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 $1,000 per month (the amount formerly provided to me as
“car allowance”) as salary not subject to raises,
bonuses or severance pay.
(b)
Bonuses . 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 performance goals set by the Board (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 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.
(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 three (3) 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.
(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
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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 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 for six months after my
termination date or until 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 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); (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) six months after the date of
discharge; (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; and (6) any stock options awarded to me
by the Company shall remain exercisable, to the extent vested,
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 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); (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) twelve months after my
termination 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 for twelve months
after my termination 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, for 90 days after the twelve-month anniversary of my
termination 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.”
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(b)
Discharge for Cause . The Company may terminate
my employment at any time if the Board believes that it has Cause
to terminate me. “Cause” means that one or
more of the following events occurred:
(i)
my
indictment for, or 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 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 notice of my default and five 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 policies or material
violation of the Company’s insider trading policy, corporate
code of business conduct and ethics or other material policy, or my
engaging in conduct tending to bring the Company or any other
member of the Group (as defined in Section 6(a), below) into public
disgrace or disrepute;
(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)
a
substantial and adverse diminishment of my duties or
responsibilities;
(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)
Disputes Under This Section . All disputes
relating to this Agreement, including disputes relating to this
section, shall be resolved by final and binding arbitration under
Section 9. For example, if the Company and I disagree as
to whether the Company had Cause to terminate my employment, we
will resolve the dispute through arbitration; the arbitrator will
decide whether the Company had Cause to terminate my
employment.
(i)
Amounts Owed to the Company . Any amounts payable
to me under this section shall first be applied to repay any
amounts I owe the Company.
(j)
Third Party Change in Control . For purposes of
this Agreement, a Third Party Change in Control shall be deemed to
have occurred if (i) any “person” or
“group” (as those 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 below), 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 the 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 that 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 by those Excluded Persons represents a
majority of the voting power of the voting stock beneficially owned
by the group. “Excluded Person” means Isaac
Perlmutter, any spouse or descendant of Mr. Perlmutter, any trust
established solely for the benefit of, and any charitable trust or
foundation established by, Mr. Perlmutter or his spouse or
descendants and each of their respective affiliates and
estates. “Beneficial owner”,
“beneficially own” and “beneficially owned”
have the same meanings as in Rule 13d-3 under the Exchange
Act.
(k)
Section 409A . Notwithstanding anything in
this Section 5 to the contrary, if and to the extent that the
Company determines in good faith that (i) any payment or benefit
that exceeds two times the limit in effect under Code Section
401(a)(17) for the calendar year of my termination (or, if less,
two times my annualized compensation for the preceding calendar
year) and that is otherwise payable to me under this Section 5
constitutes a “deferral of compensation” under Section
409A of the Internal Revenue Code of 1986, as amended (the
“Code”) (as set forth in Treasury Regulations or
bin
