EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated as of July 12, 2001 by
and between JAKKS Pacific, Inc., a Delaware corporation (the "Company"), and
Xxxxxxx Xxxxxx ("Executive")
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, since October 1, 1999, Executive has served as Senior Vice
President - Sales and Development of the Company's Flying Colors division
pursuant to this Employment Agreement as hereinbefore in effect; and
WHEREAS, the Company and Executive desire to amend and restate this
Employment Agreement to provide for Executive's continued employment by the
Company on the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the Company and Executive agree as follows:
1. Offices and Duties. The Company hereby employs Executive during the
Term (as hereinafter defined) to serve as an Executive Vice President of the
Company and, as such, to perform such executive and supervisory duties on behalf
of the Company as the Company's Board of Directors, chief executive officer or
chief operating officer may from time to time reasonably direct. The Company's
Board of Directors may elect or designate Executive to serve in such other
corporate offices of the Company or a subsidiary thereof as they may from time
to time deem necessary, proper or advisable. Executive hereby accepts such
employment and agrees that throughout the Term he shall faithfully, diligently
and to the best of his ability, in furtherance of the business of the Company,
perform the duties assigned to him or incidental to the offices assumed by him
pursuant to this Section. Executive shall devote substantially all of
his business time and attention to the business and affairs of the Company,
but Executive shall not be required to devote any minimum amount of time or
report or perform his duties hereunder on a fixed or periodic basis, and,
subject to Sections 9, 10 and 11, Executive may engage or participate in such
other activities incidental to any other employment, occupation or business
venture or enterprise as do not materially interfere with or compromise his
ability to perform his duties hereunder. Executive shall at all times be subject
to the direction and control of the Company's Board of Directors, chief
executive officer and chief operating officer and observe and comply with such
rules, regulations, policies and practices as they may from time to time
establish.
2. Term. The employment of Executive hereunder shall commence on
the date hereof and continue for a term ending on December 31, 2007, subject to
earlier termination upon the terms and conditions provided elsewhere herein (the
"Term"). As used herein, "Termination Date" means the last day of the Term.
3. Compensation.
(a) As compensation for his services hereunder, the Company
shall pay to Executive during the Term:
(i) a base salary in 2001 at the rate of $550,000
per annum, and, in each subsequent year during the Term, at a rate to be
determined by the Company's Board of Directors that is at least $25,000 more
than the rate in the immediately preceding year (the "Base Salary"), such Base
Salary to be paid in substantially equal installments no less often than twice
monthly;
(ii) a bonus for each year beginning in 2003,
determined in accordance with Annex I (the "Bonus"); and
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(iii) such additional incentive or bonus compensation
as the Company's Board of Directors may from time to time determine.
(b) In addition to his Base Salary and other compensation
provided herein, Executive shall be entitled to participate, to the extent he is
eligible under the terms and conditions thereof, in any stock, stock option or
other equity participation plan and any profit- sharing, pension, retirement,
insurance, medical service or other employee benefit plan generally available to
the executive officers of the Company, and to receive any other benefits or
perquisites generally available to the executive officers of the Company
pursuant to any employment policy or practice, which may be in effect from time
to time during the Term. Except as otherwise expressly provided herein, the
Company shall be under no obligation hereunder to institute or to continue any
such employee benefit plan or employment policy or practice.
(c) During the Term, Executive shall not be entitled to
additional compensation for serving as a director or corporate officer (other
than Executive Vice President) of the Company (or any subsidiary thereof) to
which he is elected or appointed. Throughout any period or periods during which
he shall serve as a director of the Company (or such subsidiary), Executive
shall be entitled to directors' fees in accordance with the policies and
practices of the Company (or such subsidiary) then in effect.
4. Expense Allowance. The Company shall pay directly, or advance
funds to Executive or reimburse Executive for, all expenses reasonably incurred
by him in connection with the performance of his duties hereunder and the
business of the Company, upon the submission to the Company of itemized expense
reports, receipts or vouchers in accordance with its then customary policies and
practices.
5. Location. Except for routine travel and temporary accommodation
reasonably required to perform his services hereunder, Executive shall not be
required to perform his
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services hereunder at any location other than the Company's principal executive
office, which office shall be located throughout the Term at its location on the
date hereof, or, if relocated, at a location within a distance of 30 miles from
its location on the date hereof, or at such other office or site to which
Executive may, in his sole discretion, consent; nor shall he be required to
relocate his principal residence to, or otherwise to reside at, any location
specified by the Company.
6. Office. The Company shall provide Executive with suitable office
space, furnishings and equipment, secretarial and clerical services and such
other facilities and office support as are reasonably necessary for the
performance of his services hereunder.
7. Vacation. Executive shall be entitled to four weeks paid
vacation during each year of his employment hereunder, such vacation to be taken
at such time or times as shall be agreed upon by Executive and the Company.
Vacation time shall be cumulative from year to year, except that Executive shall
not be entitled to take more than six weeks vacation during any consecutive
12-month period during the Term.
8. Key-Man Insurance. The Company shall have the right from time to
time to purchase, increase, modify or terminate insurance policies on the life
of Executive for the benefit of the Company in such amounts as the Company may
determine in its sole discretion. In connection therewith, Executive shall, at
such times and at such places as the Company may reasonably direct, submit
himself to such physical examinations and execute and deliver such documents as
the Company may deem necessary or appropriate.
9. Trade Secrets. Executive shall hold in a fiduciary capacity for
the benefit of the Company all confidential or proprietary information relating
to or concerned with its operations, business and affairs, and he shall not, at
any time hereafter, use or disclose any such information to any Person other
than the Company or its designees or except as may otherwise be required in
connection with the business and affairs of the Company.
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10. Intellectual Property. Subject to Sections 2870 and 2871 of the
California Labor Code:
(a) Any invention, design, process, system, procedure,
improvement, development or discovery conceived, developed, created or made by
Executive, alone or with others, during the Term and applicable to the business
of the Company, whether or not patentable or registrable, shall become the sole
and exclusive property of the Company.
(b) Executive shall disclose the same promptly and
completely to the Company and shall, during the Term or thereafter, (i) execute
all documents requested by the Company for vesting in the Company the entire
right, title and interest in and to the same, (ii) execute all documents
requested by the Company for filing and procuring such applications for patents,
trademarks, service marks or copyrights as the Company, in its sole discretion,
may desire to prosecute, and (iii) give the Company all assistance it may
reasonably require, including the giving of testimony in any Proceeding (as
hereinafter defined), in other to obtain, maintain and protect the Company's
right therein and thereto.
11. No Competition.
(a) During the Term, and unless his employment terminates
pursuant to Section 14 or by action of the Company other than pursuant to
Section 13, for a further period of one year thereafter, Executive shall not,
directly or indirectly:
(i) own, control, manage, operate, participate or
invest in, or otherwise be connected with, in any manner, any business activity,
venture or enterprise which is engaged in any business in which the Company (or
any subsidiary thereof) is engaged on the Termination Date; provided, however,
that Executive may invest his funds in securities of an issuer engaged in such
business if the securities of such issuer are listed for trading on a
registered securities
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exchange or actively traded in an over-the-counter market and Executive's
holdings therein represent less than 1% of the total number of shares or
principal amount of the securities of such issuer outstanding; or
(ii) for himself or on behalf of any other Person,
employ or engage any Person who at the time shall have been within the preceding
12-month period an employee of the Company (or any subsidiary thereof) or
contact any supplier, customer or employee of the Company (or such subsidiary)
for the purpose of soliciting or diverting any supplier, customer or employee
from the Company (or such subsidiary).
(b) Executive acknowledges that the provisions of this
Section, and the period of time, geographic area and scope and type of
restrictions on his activities set forth herein, are reasonable and necessary
for the protection of the Company.
12. Termination Upon Death or Disability. Executive's employment
hereunder shall terminate immediately upon his death. In the event that
Executive is unable to perform his duties hereunder by reason of any disability
or incapacity (due to any physical or mental injury, illness or defect) for an
aggregate of 90 days in any consecutive 12-month period, the Company shall have
the right to terminate Executive's employment hereunder within 60 days after the
90th day of his disability or incapacity by giving Executive notice to such
effect at least 30 days prior to the date of termination set forth in such
notice, and on such date such employment shall terminate.
13. Termination for Cause.
(a) In addition to any other rights or remedies provided by
law or in this Agreement, the Company may terminate Executive's employment under
this Agreement if:
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(i) Executive is convicted of, or enters a plea of
guilty or nolo contendere (which plea is not withdrawn prior to its approval by
the court) to, a felony offense and either Executive fails to perfect an appeal
of such conviction prior to the expiration of the maximum period of time within
which, under applicable law or rules of court, such appeal may be perfected or,
if Executive does perfect such an appeal, his conviction of a felony offense is
sustained on appeal; or
(ii) the Company's Board of Directors determines,
after due inquiry, that Executive has:
(A) committed fraud against, or embezzled or
misappropriated funds or other assets of, the Company
(or any subsidiary thereof);
(B) violated, or caused the Company (or any
subsidiary thereof) or any officer, employee or other
agent thereof, or any other Person to violate, any
material law, regulation or ordinance, which violation
has or would reasonably be expected to have a
significant detrimental effect on the Company, or any
material rule, regulation, policy or practice
established by the Company's Board of Directors, chief
executive officer or chief operating officer;
(C) willfully, or because of gross or
persistent negligence, (A) failed properly to perform
his duties hereunder or (B) acted in a manner
detrimental to, or adverse to the interests of, the
Company; or
(D) violated, or failed to perform or
satisfy any material covenant, condition or obligation
required to be performed or satisfied by Executive
hereunder.
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(b) The Company may effect such termination for cause by
giving Executive notice to such effect, setting forth in reasonable detail the
factual basis for such termination, at least 20 days prior to the date of
termination set forth therein; provided however that Executive may avoid such
termination if Executive, prior to the date of termination set forth in such
notice, cures or explains to the reasonable satisfaction of the Company's Board
of Directors the factual basis for termination set forth therein.
(c) In making any determination pursuant to Section 13(a) as
to the occurrence of any act or event described in clauses (A) to (D) of
paragraph (ii) thereof (each, a "For Cause Event"), each of the following shall
constitute convincing evidence of such occurrence:
(i) if Executive is made a party to, or target of,
any Proceeding arising under or relating to any For Cause Event, Executive's
failure to defend against such Proceeding or to answer any complaint filed
against him therein, or to deny any claim, charge, averment or allegation
thereof asserting or based upon the occurrence of a For Cause Event;
(ii) any judgment, award, order, decree or other
adjudication or ruling in any such Proceeding finding or based upon the
occurrence of a For Cause Event (that is not reversed or vacated on appeal); or
(iii) any settlement or compromise of, or consent
decree issued in, any such Proceeding in which Executive expressly admits the
occurrence of a For Cause Event;
provided that none of the foregoing shall be dispositive or create an
irrebuttable presumption of the occurrence of such For Cause Event; and provided
further that the Company's Board of Directors may rely on any other factor or
event as convincing evidence of the occurrence of a For Cause Event.
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14. Termination by Executive for Good Reason or Upon a Change of
Control. In addition to any other rights or remedies provided by law or in this
Agreement, Executive may terminate his employment hereunder if:
(a) (i) the Company violates, or fails to perform or satisfy
any material covenant, condition or obligation required to be performed or
satisfied by it hereunder or (ii) as a result of any action or failure to act by
the Company, there is a material adverse change in the nature or scope of the
duties, obligations, rights or powers of Executive's employment, by giving the
Company notice to such effect, setting forth in reasonable detail the factual
basis for such termination, at least 20 days prior to the date of termination
set forth therein; provided however that the Company may avoid such termination
if it, prior to the date of termination set forth in such notice, cures or
explains to the reasonable satisfaction of Executive the factual basis for
termination set forth therein; or
(b) a Change of Control (as hereinafter defined) occurs
during the Term, at any time within the two-year period thereafter, by giving
the Company notice to such effect, setting forth the event or circumstance
constituting such Change of Control, such termination to be effective upon the
date of termination, not more than 30 days after the date of such notice, set
forth therein or, if no such date is set forth therein, immediately upon
delivery of such notice to the Company.
The termination by Executive of his employment pursuant to this Section 14 shall
not constitute or be deemed to constitute for any purpose a "voluntary
resignation" of his employment.
15. Compensation upon Termination.
(a) Upon termination of Executive's employment hereunder, he
shall be entitled to receive, in any case, any compensation or other amount due
to him pursuant to Section 3 or 4 in respect of his employment prior to the
Termination Date.
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(b) If Executive's employment hereunder terminates upon his
death, disability or incapacity pursuant to Section 12 or he is discharged "for
cause" pursuant to Section 13, except for the payment of any amount required to
be made by Section 15(a), from and after the Termination Date, the Company shall
have no further obligation to Executive hereunder.
(c) If Executive terminates his employment hereunder for
Good Reason pursuant to Section 14(a) or if the Company terminates his
employment hereunder other than upon his death, disability or incapacity
pursuant to Section 12 and other than for cause pursuant to Section 13, he shall
be entitled to receive an amount equal to the product of (i) the sum of (A) his
Base Salary in effect on the Termination Date and (B) his Bonus for the last
Bonus Period ending before the Termination Date (annualized if such Bonus Period
is other than a 12-month fiscal year of the Company), and (ii) a fraction, the
numerator of which is the number of full months remaining in the balance of the
Term after the Termination Date and the denominator of which is 77.
(d) If his employment terminates pursuant to Section 14(b)
and, if at the time Executive gives the Company the notice of termination
referred to therein, the Company has not given to Executive a notice of
termination upon his disability or incapacity pursuant to Section 12 or "for
cause" pursuant to Section 13, he shall be entitled to receive, upon the terms
and subject to the conditions set forth in Section 16, the Parachute Amount (as
hereinafter defined).
(e) Any amount payable to Executive upon termination of his
employment hereunder shall be paid promptly, and in any event within 30 days,
after the Termination Date.
(f) Executive shall have no obligation hereunder to seek or
to accept any other employment after the Termination Date or otherwise to
mitigate the payments required to be made by this Section. No compensation or
other amount received or receivable by Executive on
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account of any employment or engagement after the Termination Date shall be
offset against or deducted from any payment required to be made by this Section.
16. Change of Control.
(a) For the purposes of this Section 16:
(i) The "Act" is the Securities Exchange Act of
1934, as amended.
(ii) A "person" includes a "group" within the meaning
of Section 13(d)(3) of the Act.
(iii) "Control" is used herein as defined in Rule
12b-2 under the Act.
(iv) "Beneficially owns" and "acquisition" are used
herein as defined in Rules 13d-3 and 13d-5, respectively, under the Act.
(v) "Non-Affiliated Person" means any person, other
than Executive, an employee stock ownership trust of the Company (or any trustee
thereof for the benefit of such trust), or any person controlled by Executive,
the Company or such a trust.
(vi) "Voting Securities" includes Common Stock and
any other securities of the Company that ordinarily entitle the holders thereof
to vote, together with the holders of Common Stock or as a separate class, with
respect to matters submitted to a vote of the holders of Common Stock, but
securities of the Company as to which the consent of the holders thereof is
required by applicable law or the terms of such securities only with respect to
certain specified transactions or other matters, or the holders of which are
entitled to vote only upon the occurrence of certain specified events (such as
default in the payment of a mandatory
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dividend on preferred stock or a scheduled installment of principal or interest
of any debt security), shall not be Voting Securities.
(vii) "Right" means any option, warrant or other right
to acquire any Voting Security (other than such a right of conversion or
exchange included in a Voting Security).
(viii) The "Code" is the Internal Revenue Code of 1986,
as amended.
(ix) "Base amount," "present value" and "parachute
payment" are used herein as defined in Section 280G of the Code.
(b) A "Change of Control" occurs when:
(i) a Non-Affiliated Person acquires control of the
Company;
(ii) upon an acquisition of Voting Securities or
Rights by a Non- Affiliated Person or any change in the number or voting power
of outstanding Voting Securities, such Non-Affiliated Person beneficially owns
Voting Securities or Rights entitling such person to cast a number of votes
(determined in accordance with Section 16(g)) equal to or greater than 25% of
the sum of (A) the number of votes that may be cast by all other holders of
outstanding Voting Securities and (B) the number of votes that may be cast by
such Non-Affiliated Person (determined in accordance with Section 16(g)); or
(iii) upon any change in the membership of the
Company's Board of Directors, a majority of the directors are persons who are
not nominated or appointed by the Company's Board of Directors as constituted
prior to such change.
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(c) The "Parachute Amount" to which Executive shall be
entitled pursuant to Section 15(d) shall equal 2.99 times Executive's base
amount.
(d) It is intended that the present value of any payments or
benefits to Executive, whether hereunder or otherwise, that are includable in
the computation of parachute payments shall not exceed 2.99 times the base
amount. Accordingly, if Executive receives any payment or benefit from the
Company prior to payment of the Parachute Amount which, when added to the
Parachute Amount, would subject any of the payments or benefits to Executive to
the excise tax imposed by Section 4999 of the Code, the Parachute Amount shall
be reduced by the least amount necessary to avoid such tax. The Company shall
have no obligation hereunder to make any payment or provide any benefit to
Executive after the payment of the Parachute Amount which would subject any of
such payments or benefits to the excise tax imposed by Section 4999 of the Code.
(e) Any other provision hereof notwithstanding, Executive
may, prior to his receipt of the Parachute Amount pursuant to Section 15(d),
waive the payment thereof, or, after his receipt of the Parachute Amount
thereunder, treat some or all of such amount as a loan from the Company which
Executive shall repay to the Company within 180 days after the receipt thereof,
together with interest thereon at the rate provided in Section 7872 of the Code,
in either case, by giving the Company notice to such effect.
(f) Any determination of the base amount, the Parachute
Amount, any liability for excise tax under Section 4999 of the Code or other
matter required to be made pursuant to this Section 16, shall be made by the
Company's regularly-engaged independent certified public accountants, whose
determination shall be conclusive and binding upon the Company and Executive;
provided that such accountants shall give to Executive, on or before the date on
which payment of the Parachute Amount or any later payment or benefit would be
made, a notice setting forth in reasonable detail such determination and the
basis therefor, and stating expressly that Executive is entitled to rely
thereon.
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(g) The number of votes that may be cast by holders of
Voting Securities or Rights upon the issuance or grant thereof shall be deemed
to be the largest number of votes that may be cast by the holders of such
securities or the holders of any other Voting Securities into which such Voting
Securities or Rights are convertible or for which they are exchangeable or
exercisable, determined as though such Voting Securities or Rights were
immediately convertible, exchangeable or exercisable and without regard to any
anti-dilution or other adjustments provided for therein.
17. Limitation of Authority. Except as expressly provided herein, no
provision hereof shall be deemed to authorize or empower either party hereto to
act on behalf of, obligate or bind the other party hereto.
18. Notices. Any notice or demand required or permitted to be given
or made hereunder to or upon either party hereto shall be deemed to have been
duly given or made for all purposes if (a) in writing and sent by (i) messenger
or an overnight courier service against receipt, or (ii) certified or registered
mail, postage paid, return receipt requested, or (b) sent by telegram, telecopy,
telex or similar electronic means, provided that a written copy thereof is sent
on the same day by postage-paid first-class mail, to such party at the following
address:
to the Company at: 00000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
with a copy to: Feder, Kaszovitz, Isaacson, Weber, Xxxxx,
Bass & Rhine LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
to Executive at: 0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
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Fax: (000) 000-0000
or such other address as either party hereto may at any time, or from time to
time, direct by notice given to the other party in accordance with this Section.
The date of giving or making of any such notice or demand shall be, in the case
of clause (a) (i), the date of the receipt; in the case of clause (a) (ii), five
business days after such notice or demand is sent; and, in the case of clause
(b), the business day next following the date such notice or demand is sent.
19. Amendment. No amendment of this Agreement shall be valid or
effective, unless in writing and signed by or on behalf of the parties hereto.
20. Waiver. No course of dealing or omission or delay on the part of
either party hereto in asserting or exercising any right hereunder shall
constitute or operate as a waiver of any such right. No waiver of any provision
hereof shall be effective, unless in writing and signed by or on behalf of the
party to be charged therewith. No waiver shall be deemed a continuing waiver or
waiver in respect of any other or subsequent breach or default, unless expressly
so stated in writing.
21. Governing Law. This Agreement shall be governed by, and
interpreted and enforced in accordance with, the laws of the State of New York
without regard to principles of choice of law or conflict of laws.
22. Jurisdiction. Each of the parties hereto hereby irrevocably
consents and submits to the jurisdiction of the courts of the State of New York
and the United States District Court for the Southern District of New York in
connection with any suit, action or proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby, waives any objection to
venue in the County of New York, State of New York, or such District, and agrees
that service of any summons, complaint, notice or other process relating to such
proceeding may be effected in the manner provided by clause (a) (ii) of Section
18.
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23. Remedies. In the event of any actual or prospective breach or
default under this Agreement by either party hereto, the other party shall be
entitled to equitable relief, including remedies in the nature of rescission,
injunction and specific performance. All remedies hereunder are cumulative and
not exclusive, and nothing herein shall be deemed to prohibit or limit either
party from pursuing any other remedy or relief available at law or in equity for
such actual or prospective breach or default, including the recovery of damages;
provided that, except as otherwise provided in Section 15 and except with
respect to a breach by Executive of his obligations pursuant to Sections 9, 10
and 11, no party hereto shall be liable under this Agreement for lost profits or
consequential damages.
24. Severability. The provisions hereof are severable and in the
event that any provision of this Agreement shall be determined to be invalid or
unenforceable in any respect by a court of competent jurisdiction, the remaining
provisions hereof shall not be affected, but shall, subject to the discretion of
such court, remain in full force and effect, and any invalid or unenforceable
provision shall be deemed, without further action on the part of the parties
hereto, amended and limited to the extent necessary to render the same valid and
enforceable.
25. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and which together shall constitute
one and the same agreement.
26. Assignment. This Agreement, and each right, interest and
obligation hereunder, may not be assigned by either party hereto without the
prior written consent of the other party hereto, and any purported assignment
without such consent shall be void and without effect, except that this
Agreement shall be assigned to, and assumed by, any Person with or into which
the Company merges or consolidates, or which acquires all or substantially all
of its assets, or which otherwise succeeds to and continues the Company's
business substantially as an entirety. Except as otherwise expressly provided
herein or required by law, Executive shall not have any power of anticipation,
assignment or alienation of any payments required to be made to him
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hereunder, and no other Person may acquire any right or interest in any thereof
by reason of any purported sale, assignment or other disposition thereof,
whether voluntary or involuntary, any claim in a bankruptcy or other insolvency
Proceeding against Executive, or any other ruling, judgment, order, writ or
decree.
27. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement is not intended, and shall not be deemed, to
create or confer any right or interest for the benefit of any Person not a party
hereto.
28. Titles and Captions. The titles and captions of the Sections of
this Agreement are for convenience of reference only and do not in any way
define or interpret the intent of the parties or modify or otherwise affect any
of the provisions hereof.
29. Grammatical Conventions. Whenever the context so requires, each
pronoun or verb used herein shall be construed in the singular or the plural
sense and each capitalized term defined herein and each pronoun used herein
shall be construed in the masculine, feminine or neuter sense.
30. References. The terms "herein," "hereto," "hereof," "hereby,"
and "hereunder," and other terms of similar import, refer to this Agreement as a
whole, and not to any Section or other part hereof.
31. No Presumptions. Each party hereto acknowledges that it has had
an opportunity to consult with counsel and has participated in the preparation
of this Agreement. No party hereto is entitled to any presumption with respect
to the interpretation of any provision hereof or the resolution of any alleged
ambiguity herein based on any claim that the other party hereto drafted or
controlled the drafting of this Agreement.
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32. Certain Definitions. As used herein:
(a) "Person" includes without limitation a natural person,
corporation, joint stock company, limited liability company, partnership, joint
venture, association, trust, government or governmental authority, agency or
instrumentality, or any group of the foregoing acting in concert.
(b) A "Proceeding " is any suit, action, arbitration, audit,
investigation or other proceeding before or by any court, magistrate,
arbitration panel or other tribunal, or any governmental agency, authority or
instrumentality of competent jurisdiction.
33. Entire Agreement. This Agreement embodies the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes any prior agreement, commitment or arrangement relating thereto.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the day and year first above written.
THE COMPANY:
JAKKS PACIFIC, INC.
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
EXECUTIVE:
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/s/ XXXXXXX XXXXXX
----------------------------------------
Xxxxxxx Xxxxxx
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ANNEX I
The Bonus shall be paid for each year including 2003 and thereafter
during the Term in respect of each Bonus Period (as hereinafter defined) in
which Pre-Tax Income (as hereinafter defined) equals or exceeds the Bonus Target
(as hereinafter defined) for such Bonus Period, payable within 90 days after the
end of such Bonus Period, in an amount equal to the lesser of (A) 2% of such
Pre-Tax Income and (B) $2,000,000. For these purposes:
(a) A "Bonus Period" is either a fiscal year of the Company
ending during the Term after January 1, 2003 or, if the Term ends on a day other
than the last day of a fiscal year of the Company, the portion of such fiscal
year ending on the last day of the last full month ending during the Term.
(b) The "Bonus Target" for any Bonus Period is (i) $2
million, if such Bonus Period consists of 12 calendar months, or (ii) in any
other case, the product of (A) $5,479.45 and (B) the number of days included in
such Bonus Period.
(c) The "Pre-Tax Income" in any Bonus Period is the
Company's income before any deduction or reserve for income taxes and without
adjustment for any extraordinary item.
The determination of the Bonus Target, Pre-Tax Income and the Bonus for any
Bonus Period, including all estimates, allocations or prorations required to be
made in connection therewith, shall be made by the Company's regularly-engaged
independent certified public accounts in accordance with generally accepted
accounting principles applied on a basis consistent with past periods, which
determination, absent manifest error, shall be conclusive and binding upon the
Company and Executive. If a Bonus Period ends prior to the end of a fiscal year
of the Company, and any year-end adjustment is subsequently made that affects
the determination of the Bonus for such Bonus Period, the Company shall promptly
give written notice to Executive
of any change proposed to be made to such Bonus, setting forth in reasonable
detail therein the amount of and basis for such change. If such change involves
an increase to such Bonus, the Company shall pay such increase to Executive
concurrently with the delivery of such notice; and if such change involves a
decrease to such Bonus, Executive shall repay the amount of such decrease to the
Company promptly, and in any event within 60 days, after receipt of such notice.
