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Exhibit 10.2
EMPLOYMENT AGREEMENT
I,
Kenneth P. West, agree to the terms and conditions of
employment with Marvel Entertainment, Inc.
(“Company”) set forth in this employment agreement
(“Agreement”).
1.
Term of Employment . My employment under this
Agreement (“Term”) shall commence on May 28, 2007
and shall end on May 31, 2009 (“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
Section 6, 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 and Chief Financial
Officer, and I shall report to the members of the
Company’s Office of the Chief Executive or their
designee, or to 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 $425,000, 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, subject to my understanding that any reimbursements
for expenses I incur in a calendar year must be submitted for
reimbursement and reimbursed not later than the last day of
the next calendar year.
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 the Company’s ongoing
indemnification obligation under Section 8, my confidentiality
and other obligations under Section 6, 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 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 12 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) 12 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; 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 to do so, and, in any event, not
without giving the Company at least 90 days’ advance
written notice. 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;
(iii) the
Company’s material breach of this Agreement;
or
(iv) the
distribution of financial statements of the Company to any
third party where (A) I have informed the Chairman of the
Board of Directors and/or the Chairman of the Board’s
Audit Committee that I object to the presentation of any
material matter contained in those financial statements on the
basis that it does not adequately conform to generally
accepted accounting principles, (B) the Company’s
independent registered public accounting firm agrees with my
position, and (C) the financial statements failed to clearly
disclose my objections, including the effect on the financial
statements if they were to be revised to comply with my
position.
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 sp
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