EMPLOYMENT AGREEMENT
Exhibit 4.5e
This
Employment Agreement (“Agreement”), made this 1st day of March, 2007, by and
between INTERNATIONAL PLAYTHINGS, INC., a Delaware corporation with principal
executive offices at 00X Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (the
“Company”),
and
XXXXXXX XXXXX, residing at 00 Xxxxxx Xxxxx Xxxx Xxx Xxxxx XX
(“Varda”).
WHEREAS
the Company is engaged in the business of importing and wholesaling high quality
toys and toy-related products for children and developing various proprietary
lines of toy products, and distributing the same through a unique network of
specialty toy and other retailers throughout the United States; and
WHEREAS
Varda shall serve as Chief Executive Officer of the Company, and Varda and
the
Company are desirous of formalizing their understanding for Varda’s employment,
all upon the terms and subject to the conditions hereinafter
provided.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE
I EMPLOYMENT.
The
Company agrees to employ Varda, and Varda agrees to be employed by the Company,
upon the terms and subject to the conditions of this Agreement.
ARTICLE
II TERM.
Subject
to the provisions governing termination as hereinafter provided, the term of
this Agreement (the “Term”) shall be for a period of three (3) years commencing
on the date hereof (the “Commencement Date”) and ending on February 28,
2010, unless sooner terminated as hereinafter provided (the
“Term”).
ARTICLE
III DUTIES;
BEST EFFORTS; INDEMNIFICATION.
Section
3.1 Varda
shall serve as Chief Executive Officer of the Company, and shall report directly
to the Chairmen of the Board (“Chairman”) and the Chief Executive Officer
(“Grand CEO”) of it’s Parent Company Grand Toy International Limited (“Grand”).
Varda shall have the general supervision and control over, and responsibility
for, the day to day operations of the Company and shall have such other duties
which are not inconsistent with his position as Chief Executive Officer of
a
company of comparable size as shall be assigned to him by the Board of Directors
of the Company, the Chairman or the Grand CEO. Varda shall be based within
a 25
mile radius of Parsippany, New Jersey and shall undertake such domestic and
foreign travel as shall be reasonably required to fulfill his
duties.
Section
3.2 Varda
shall devote all of his business time, attention and energies, on a full time
and exclusive basis, to the business and affairs of the Company, shall use
his
best efforts to advance the best interests of the Company, and shall not during
the Term be engaged in any other business activities, whether or not such
business activities are pursued for gain, profit or other pecuniary advantage,
without the consent of the Chairman or Grand CEO; provided,
however,
that,
it shall not be a violation of this Agreement for Varda to (i) serve on
corporate, civic or charitable boards or committees or (ii) manage passive
personal investments, in either case so long as any such activities do not
interfere with the performance of his responsibilities as an employee of the
Company in accordance with this Agreement.
Section
3.3 The
Company shall indemnify Varda to the fullest extent permitted by applicable
law
for all amounts (including, without limitation, judgments, fines, settlement
payments, expenses and attorney’s fees) incurred or paid by Varda in connection
with any third party action, suit, investigation or proceeding arising out
of or
relating to the performance by Varda of services for, or the acting by Varda
as
a director, officer or employee of, the Company or of any other person or entity
at the Company’s request, and the Company shall advance to Varda, or pay on his
behalf, such amounts as the Board determines to be due by reason of such
indemnification.
ARTICLE
IV COMPENSATION
AND BENEFITS.
Section
4.1 The
Company shall pay to Varda a base salary (the “Base
Salary”)
at a
rate of Two Hundred and Thirty Thousand Dollars (US$230,000) per annum, payable
in accordance with the Company’s payroll practices for its executive employees.
The Chairman and Grand CEO will review the Base Salary for possible increase
not
less than annually during the Term with a view to ensuring that it remains
commensurate with the time and effort required for the discharge of his
responsibilities pursuant to this Agreement. The Company may from time to time
exercise its discretion to xxxxx Xxxxx additional compensation or bonuses upon
such terms and conditions as the Board of Directors of the Company shall deem
to
be in its business interest. The Company shall not be obligated to pay Varda
any
additional compensation or bonus, regardless of whether additional compensation
or bonus was paid to him in any past or succeeding year or additional
compensation or bonus was paid to other employees in any year. The Company’s
determination with respect to the payment and amount of any additional
compensation or bonus for any fiscal year shall be final and
conclusive.
Section
4.2 The
Company shall promptly pay to Varda the reasonable expenses incurred by him
in
the performance of his duties hereunder in accordance with the Company’s
policies in effect from time to time, including, without limitation, those
incurred in connection with business related travel or entertainment, or, if
such expenses are paid directly by Varda, shall promptly reimburse him for
such
payment, provided that Varda provides proper documentation thereof in accordance
with the Company’s policy.
Section
4.3 Varda
shall be entitled to paid vacation days in each calendar year determined by
the
Company from time to time, but not less than four (4) weeks in any calendar
year. Vacation shall be prorated in any calendar year of the Term during which
Varda is employed hereunder for less than an entire year in accordance with
the
number of days in such year during which he is so employed. Varda shall also
be
entitled to annual paid sick leave, personal leave and holidays as per the
Company’s policies as same may be amended from time to time. Varda shall also be
entitled to other benefits as may be provided in applicable plans and programs
of the Company, without limitation, according to the terms and conditions of
such plans and programs.
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Section
4.4 The
Company may, at its discretion, subscribe for and maintain, on behalf of the
Company, life insurance, key-man insurance and long-term disability insurance,
in such amount and upon such terms or conditions as the Company may deem
reasonable. Varda shall cooperate with the Company in connection with the
obtaining of any such policies, including the submission to physical examination
and blood testing.
Section
4.5 Varda
shall be Granted 200,000 (Two Hundred Thousand) stock options for American
Depository Shares of Grand Toy International Limited subject to the approval
of
the Board of Directors at the next meeting held following the execution of
this
contract. The exercise price the options will be the fair market value on the
date of grant by the Board of Directors and the options will vest equally over
3
years and are otherwise subject to Grand Toys International Limited 2004 Stock
Option Plan.
ARTICLE
V
TERMINATION.
This
Agreement may be terminated by either party with or without notice and without
“Cause” (as defined herein). Further, this Agreement may be terminated by the
Company with Cause in accordance with Section 5(a) below, or because of any
“Disability” (as defined herein) in accordance with Section 5(b)
below.
(a) For
Cause.
The
Company shall have the right to terminate Varda’s employment for “Cause.” A
termination for “Cause”
is
a
termination evidenced by a resolution adopted by the Board finding that Varda
has:
(i) materially
breached or failed to comply with any of the material terms of this Agreement,
including, without limitation, Sections 3, 7, 8, 9 or 12 of this
Agreement;
(ii) failed
to
perform his duties under this Agreement, including refusing to carry out the
reasonable written instructions of the Board, the Chairman or the Grand CEO,
or
deliberately and intentionally disregarding the lawful instructions from the
Board, the Chairman or the Grand CEO, in any case which instructions are
consistent with the responsibilities and duties of Varda contemplated by this
Agreement and provided that the instructions do not knowingly violate any of
the
inherent responsibilities accorded to the Chief Executive Officer.
(iii) engaged
in gross negligence or willful misconduct in connection with or arising out
of
the performance of his duties hereunder;
(iv) been
under the influence of drugs (other than prescription medicine or other
medically-related drugs to the extent that they are taken in accordance with
their directions) or alcohol during the performance of his duties under this
Agreement, or while under the influence of drugs or alcohol, engages in
inappropriate conduct;
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(v) engaged
in behavior that would constitute grounds for liability for sexual harassment
(as proscribed by the U.S. Equal Employment Opportunity Commission Guidelines,
the New Jersey Division of Human Rights and or any other applicable state
regulatory body) or, in the reasonable opinion of the Board, other egregious
conduct violative of laws governing the workplace; or
(vi) committed
any act of fraud, larceny, misappropriation of funds or embezzlement or been
convicted of a felony or a crime of moral depravity;
provided,
however,
that
(A) in the case of clauses (i), (ii) and (iii) above, Varda shall receive
thirty (30) days’ advance written notice that the Board intends to meet to
consider Varda’s termination and specifying the actions constituting Cause, and
Varda shall have the opportunity to cure the conduct constituting Cause during
such thirty (30) day period and (B) any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or based
upon
the advice of counsel for the Company shall be conclusively presumed to be
done,
or omitted to be done, by Varda in good faith and in the best interests of
the
Company. As used herein, “Good
Reason”
shall
mean Varda’s termination of this Agreement following the Company’s material
breach thereof, provided,
however,
that
the Company shall receive thirty (30) days’ advance written notice that Varda
intends to terminate this Agreement and specifying the actions constituting
material breach, and the Company shall have the opportunity to cure the conduct
constituting Good Reason during such thirty (30) day period
(b) For
Disability.
The
Company shall have the right to terminate Varda’s employment as a result of
Varda’s “Disability.” For purposes of this Agreement, a termination for
“Disability”
shall
occur upon rendering of a written termination notice by the Company after Varda
has been unable to substantially perform his duties hereunder for 90 consecutive
calendar days (exclusive of any vacation permitted under Section 4(f)
hereof) or for 120 days in any 360 Calendar day period by reason of any physical
or mental illness or injury. This should not be deemed to limit the right of
the
Company under Section 5 regarding termination. Nothing in this
Section 5 is intended to alter or impair Varda’s rights under the federal
Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.
Varda
agrees to make himself available and to cooperate in any reasonable examination
by a reputable independent physician selected by the Company for the purpose
of
a termination pursuant to Section 5(b)(i).
ARTICLE
VI EFFECT
OF TERMINATION.
Section
6.1 Death
or Disability.
In the
event of the termination of Varda’s employment as a result of his death or
Disability, the Company shall:
(a) pay
to
Varda or his estate, as the case may be, the Base Salary (including Base Salary
for accrued and unused vacation days) plus accrued and unpaid bonus and other
benefits, if any, in accordance with Section 4(b) through the date of his
death or Disability (pro rated for any partial month); and
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(b) reimburse
Varda, or his estate, as the case may be, for any expenses pursuant to
Section 4(d) (the amounts payable pursuant to the foregoing clauses (i) and
(ii) are hereafter referred to as the “Accrued Obligations”).
Section
6.2 Termination
for Cause by the Company, by Varda Voluntarily or upon expiration of the
Term.
In the
event that Varda’s employment is terminated by the Company for Cause or by Varda
voluntarily or upon expiration of the Term (or any extension thereof), Varda
shall only be entitled to:
(a) the
Base
Salary (including Base Salary for accrued and unused vacation days) plus accrued
and unpaid bonus and other benefits, if any, in accordance with
Section 4(c) and Company policy through the date of
termination;
(b) Reimbursement
for any and all expenses incurred pursuant to Section 4(b), but not paid
prior to termination; and
(c) Such
rights to other benefits as may be provided in applicable plans and programs
of
the Company, including, without limitation, applicable employee benefit plans
and programs, according to the terms and conditions of such plans and
programs.
Section
6.3 Termination
by the Company other than for Cause.
In the
event that Varda’s employment is terminated by the Company other than for Cause,
Varda shall be entitled to:
(a) Reimbursement
for any and all expenses incurred pursuant to Section 4(b), but not paid
prior to termination; and
(b) the
Base
Salary (including Base Salary for accrued and unused vacation days) plus accrued
and unpaid bonus and other benefits, if any, in accordance with
Section 4(c) of the Company policy, until the earlier of: (A) the last
day of the Term (as if Varda’s termination had not occurred) or (B) the
date that shall be six (6) months after the date of such termination
Section
6.4 This
Section 6 sets forth the only obligations of the Company with respect to
the termination of Varda’s employment with the Company, and Varda acknowledges
that upon the termination of his employment, he shall not be entitled to any
payments or benefits which are not explicitly provided herein hereof,
provided,
that
the foregoing shall not affect Varda’s accrued benefits under any benefit plans
in which Varda participated pursuant to Sections 4(b) and 4(c) hereof, all
of which benefits shall be governed and controlled by the terms of the
applicable benefit plans. Any and all Accrued Obligations shall be paid within
fifteen (15) calendar days of the termination of Varda’s
employment.
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ARTICLE
VII COVENANT
REGARDING INVENTIONS AND COPYRIGHTS.
Section
7.1 Varda
hereby acknowledges that all Innovations (as defined below) created by Varda
(either working alone or as part of a group) that are used, useful or useable
in
connection with the present or future Business of the Company or any of its
affiliates which (i) were or will be made using equipment, supplies,
facilities or trade secret information of the Company, or (ii) were or will
be developed at least in part on the Company’s time, or (iii) relate at the
time of conception or reduction to practice thereof either to the Business
or to
the Company’s or its affiliates’ actual or demonstrably anticipated research or
development, or (iv) result from any work that Varda performs or performed
for the Company, were created at the request of the Company pursuant to this
Agreement or other arrangement (written or unwritten) between the Company and
Varda. The term “Innovations” shall include all of the results and proceeds of
Varda’s services under this Agreement, including without limitation, all right,
title and interest in any inventions, know-how, discoveries, improvements,
original works of authorship, designs, software, source code, object code,
programs, formulas, processes, developments, trade secrets, trademarks,
copyrights, service marks, logos and related proprietary information and
materials, whether patentable, copyrightable, subject to trademark registration,
or not, and all drafts, prototypes, proposals, sketches, revisions and
demonstration and “beta” versions thereof, written, created, developed or
produced or to be written, created, developed or produced, by Varda (either
working alone or as part of a group) in connection therewith (subject, in the
case of Innovations created by Varda pursuant to an agreement between the
Company and any licensor, to the terms of such agreement).
Section
7.2 Varda
hereby acknowledges that the Innovations were specifically ordered or
commissioned by the Company for the Business. Varda hereby irrevocably assigns
to the Company all right, title and interest in and to all Innovations and
all
right, title and interest in and to all patents, domain names, trade secrets,
trademarks and other intellectual property derived therefrom, such assignment
to
be effective when first capable of being so assigned, transferred or vested.
All
Innovations shall be delivered to the Company as required herein or on
termination or completion of the Agreement, whichever is earlier, unless the
Company requests otherwise. To the extent that any Innovation is or shall be
a
copyrightable work, Varda agrees that such Innovation constitutes and shall
constitute a work-made-for-hire as defined in the United States Copyright Act
of
1976; that the Company is and shall be the author of said work-made-for hire
and
the owner of all rights in and to such Innovation throughout the universe,
in
perpetuity and in all languages, for all now known or hereafter existing uses,
media and forms, including, without limitation, the copyrights therein and
thereto throughout the universe for the initial term and any and all extensions
and renewals thereof; and that the Company shall have the right to make such
changes therein and such uses thereof as it may deem necessary or desirable.
To
the extent that such copyrightable Innovation is not recognized as a
work-made-for-hire, Varda hereby irrevocably assigns, transfers and conveys
to
the Company, without reservation, all of his right, title and interest
throughout the universe in perpetuity in such Innovation, including, without
limitation, all rights of copyright and copyright renewal in such Innovation
or
any part thereof, and all rights to exclusively or non-exclusively license
or
sublicense the foregoing.
Section
7.3 Varda
hereby waives all rights of “droit moral” or “moral rights of authors” or any
similar rights or principles of law which Varda may now or later have in the
Innovations. Varda covenants and agrees that his contributions to any
Innovations shall not be an unauthorized copy of any existing work or violate
or
infringe upon any common law or statutory right of any party including, without
limitation, contractual rights, copyrights, trademarks, patents, service marks
and rights of privacy, publicity, or any other right of any person or entity
and
is not the subject of any litigation or claim that might give rise to
litigation.
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Section
7.4 By
execution hereof, Varda hereby irrevocably constitutes and appoints the Company
with full power of substitution, to be Varda’s true and lawful attorney to
execute, acknowledge, swear and file all instruments and documents, and to
take
any action which shall be deemed necessary, appropriate or desirable to
effectuate the terms of this Section 8. The powers of attorney granted
herein shall be deemed to be coupled with an interest and shall be irrevocable
and survive the occurrence of Varda’s death, disability or
bankruptcy.
ARTICLE
VIII PROTECTION
OF CONFIDENTIAL INFORMATION.
Varda
acknowledges that he has been and will be provided with information about,
and
his employment by the Company will, throughout the Term, bring him into close
contact with, many confidential affairs of the Company and its affiliates,
including proprietary information about costs, profits, customers, suppliers,
vendors, advertisers, markets, sales, products, key personnel, pricing policies,
operational methods, technical processes and other business affairs and methods,
plans for future developments and other information not readily available to
the
public (“Confidential Information”), all of which are highly confidential and
proprietary and all of which were developed by the Company at great effort
and
expense. Varda further acknowledges that the services to be performed by him
under this Agreement are of a special unique, unusual, extraordinary and
intellectual character, that the Business will be conducted throughout the
world
(the “Territory”), that the Company’s services and products will be marketed
throughout the Territory, that the Company competes and will compete in nearly
all of its business activities with other organizations which are located in
nearly any part of the Territory and that the nature of the relationship of
Varda with the Company is such that Varda is capable of competing with the
Company from nearly any location in the Territory. In recognition of the
foregoing, Varda covenants and agrees during the Term and for a period of five
(5) years thereafter that he will:
(i) keep
secret all Confidential Information and not divulge or disclose any Confidential
Information to anyone outside of the Company or its affiliates, either during
or
after the Term, except with the Company’s prior written consent;
(ii) not
make
use of any of such Confidential Information for his own purposes or the benefit
of anyone other than the Company and its affiliates; and
(iii) deliver
promptly to the Company on termination of this Agreement, or at any time the
Company may so request, all confidential memoranda, notes, records, reports
and
other confidential documents (and all copies thereof) relating to the
Confidential Information and/or business of the Company and its affiliates,
which he may then possess or have under his control.
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Notwithstanding
the foregoing, the term “Confidential Information” shall not include any
information (i) which is already known by Varda or which is or becomes
publicly known through no wrongful act of Varda, (ii) which is rightfully
received by Varda from any third party, provided that such third party was
not
known by Varda to be bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality with respect
to
such information, (iii) which is disclosed by the Company to any third
party without similar restriction, or (iv) which is disclosed by Varda
pursuant to applicable law or the order of any court of competent
jurisdiction.
ARTICLE
IX RESTRICTION
OF COMPETITION; INTERFERENCE; AND NON-SOLICITATION.
Section
9.1 Non-Solicitation
- As a significant inducement to the Company to enter into and perform its
obligations under this Agreement, during the Term and until the second
anniversary of the expiration of this Agreement or the termination of Varda’s
employment, as applicable, for any reason Varda will not, either directly or
indirectly, alone or in association with others:
(a) solicit,
or permit any person or organizations directly or indirectly to solicit, any
individual who at the time of the solicitation is, or who within the six (6)
month period prior to such solicitation was, an employee of the Company to
leave
the employ of the Company or terminate his or her employment relationship with
the Company, or hire or attempt to hire or induce, any employee or employees
of
the Company to terminate their employment with, or otherwise cease their
relationship with, the Company;
(b) solicit,
divert or take away, or attempt to divert or to take away, the business or
patronage of any of the clients, customers, vendors or accounts of the
Company;
(c) induce
any client, customer, vendor, agent or other person or entity with whom or
which
the Company has a business relationship, contractual or otherwise, to terminate
or alter such business relationship; or
(d) take
any
action reasonably likely to cause injury to the relationship between the Company
or any of its respective employees and any client, lessor, lessee, vendor,
supplier, customer, distributor, employee, consultant or other business
associate of the Company or any of its affiliates as such relationship relates
to the Company or its affiliates’ conduct of their business.
Section
9.2 Restriction
of Competition - As a further significant inducement to the Company to enter
into and perform its obligations under this Agreement, during the Term and
for a
period of six (6) months from the expiration of this Agreement or the
termination of Varda’s employment, as applicable, for any reason Varda will not,
either directly or indirectly:
(a) engage
in
any business which develops, manufactures, promotes or distributes products
that
are competitive with those that are marketed by the Company, or those products
which are then under active development by the Company (a “Competing
Business”),
whether such engagement shall be as a director, officer, employee, stockholder,
shareholder, partner, member or other owner, affiliate or other participant
in
any Competing Business, provided, however, that Varda’s employment by an entity
that (A) carries both a Competing Business and one or more other businesses
or (B) can be shown not to involve participation in such Competing
Business; shall not constitute a breach of this clause; or
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(b) assist
any other person or entity in organizing or engaging in any Competing Business
in any capacity or manner described in clause (i) above.
Section
9.3 Non-Disparagement
- Neither during the Term nor at any time thereafter shall Varda disparage
the
Company, any director, officer, employee or shareholder of the Company, or
any
affiliate of any such director, officer, employee or shareholder of the Company
by making (or causing others to make) any oral or written statements or
representations that could reasonably be construed to be a false and misleading
statement of fact or a libelous, slanderous or disparaging statement of or
concerning any of the aforementioned persons.
Section
9.4 Waiver
-
Sections 9(a), 9(b), and 9(c) of this Agreement shall apply in their
entirety in the event that Varda’s employment with the Company is terminated by
any party, and for any of the reasons set forth in Section 5 herein.
However, if Varda remains employed by the Company and is not presented with
a
written offer of continued employment by the Grand CEO at least six (6) months
prior to the expiration of the Agreement at equal or greater Compensation than
that which he is receiving at that time, and there is a voluntary termination
of
the agreement by Varda, then Sections 9(a)(ii) and (iii) and 9(b)(i) and
(ii) will be waived.
ARTICLE
X
SPECIFIC
REMEDIES.
It
is
understood by Varda and the Company that the covenants contained in this
Section 10 and in Sections 7, 8 and 9 hereof are essential elements of
this Agreement and that, but for the agreement of Varda to comply with such
covenants, the Company would not have agreed to enter into this Agreement or
consummate the transactions contemplated by the Asset Purchase Agreement. The
Company and Varda have independently consulted with their respective counsel
and
have been advised concerning the reasonableness and propriety of such covenants
with specific regard to the nature of the business conducted by the Company
and
all interests of the Company and its stockholders. Varda agrees that the
covenants of Sections 7, 8 and 9 are reasonable and valid. If Varda commits
a breach of any of the provisions of Sections 7, 8 or 9 hereof, such breach
shall be deemed to be grounds for termination for Cause. In addition,
notwithstanding the provisions of Sections 8 and 9, Varda acknowledges that
the Company may have no adequate remedy at law if he violates any of the terms
hereof. Varda therefore understands and agrees that the Company shall have
without prejudice as to any other remedies, the right upon application to any
court of proper jurisdiction to a temporary restraining order, preliminary
injunction, injunction, specific performance or other equitable
relief.
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ARTICLE
XI INDEPENDENCE;
SEVERABILITY AND NON-EXCLUSIVITY.
Each
of
the rights enumerated in Sections 7, 8 or 9 hereof and the remedies
enumerated in Section 10 hereof shall be independent of the others and
shall be in addition to and not in lieu of any other rights and remedies
available to the Company at law or in equity. If any provision of this
Agreement, or any part of any of them, is hereafter construed or adjudicated
to
be invalid or unenforceable, the same shall not affect the remainder of the
covenants or rights or remedies which shall be given full effect without regard
to the invalid portions. If any covenant set forth herein is held to be invalid
or unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or area of such provision and in its
reduced form said provision shall then be enforceable. No such holding of
invalidity or unenforceability in one jurisdiction shall bar or in any way
affect the Company’s right to the relief provided in Section 10 or
otherwise in the court of any other state or jurisdiction within the
geographical scope of such covenants as to breaches of such covenants in such
other respective states or jurisdictions, such covenants being, for this
purpose, severable into diverse and independent covenants.
ARTICLE
XII CONFLICTING
AGREEMENTS.
Section
12.1 Varda
hereby represents that he is not bound by the terms of any agreement with any
previous employer, or with any other party, that would impair his right or
ability to enter the employ of the Company or perform fully his obligations
pursuant to this Agreement. Varda further represents and warrants that his
performance of all the terms of this Agreement and as an executive of the
Company does not and will not breach any agreement to keep in confidence
proprietary information, knowledge or data acquired by him in confidence or
in
trust prior to his employment with the Company.
ARTICLE
XIII SUCCESSORS;
BINDING AGREEMENT.
This
Agreement is personal to Varda and without the prior written consent of the
Company shall not be assignable by Varda otherwise than by will or the laws
of
descent and distribution or by the Company, except that the Company shall be
permitted to assign its rights, interests and obligations to a parent or
subsidiary of, or an Affiliate controlled by the Company which assumes in
writing all of the obligations under this Agreement, without obtaining any
consent from Varda. This Agreement shall inure to the benefit of and be
enforceable by Varda’s legal representatives and the Company’s successors and
permitted assigns. Arbitration of Employment-Related Disputes
The
parties hereby unmistakably and voluntarily agree that all employment-related
disputes, including workplace discrimination claims, are to be submitted to
arbitration before a single arbitrator, to be selected by the parties, in
accordance with the National Rules for the Resolution of Employment Disputes
of
the American Arbitration Association. It is further agreed and understood that
the site of any arbitration shall be within Xxxxxx County in the State of New
Jersey.
The
agreement to arbitrate applies to all employment-related disagreements and
problems, which are those that concern a right, privilege, or interest
recognized by applicable law. Such disputes include claims, demands or actions
under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866,
the Civil Rights Act of 1991, the Equal Pay Act, the Age Discrimination in
Employment Act, the Americans with Disabilities Act, the Employee Retirement
Security Act of 1974, the Fair Labor Standards Act, the Rehabilitation Act
of
1973, the Family and Medical Leave Act, the Conscientious Employee Protection
Act, the New Jersey Law Against Discrimination, the New Jersey Family Leave
Act,
the New Jersey Prevailing Wage Act, and any other federal, state, or local
statute, regulation, or common law doctrine regarding employment discrimination,
conditions of employment, or termination of employment.
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ARTICLE
XIV ARBITRATION
OF EMPLOYMENT-RELATED DISPUTES.
The
parties further understand that the remedies available to Varda and the Company
during the arbitration proceeding shall be the same as the remedies available
under the statute(s) upon which any claim(s) is based, and that could be awarded
by any court or administrative agency. Each party shall bear its own attorneys’
fees, unless otherwise provided by statute.
The
arbitrator’s determination shall be final and binding upon the
parties.
This
agreement to arbitrate does not pertain to a claim of violation of
Sections 7, 8 and/or 9 of this Agreement which may be pursued by the
Company, in accordance with Section 10, by alternatively applying to a
court of competent jurisdiction for a temporary restraining order, preliminary
injunction, and/or such other legal and equitable remedies as may be
appropriate.
ARTICLE
XV NOTICES.
Any
notice or other communications required or permitted hereunder shall be in
writing and shall be deemed effective (i) upon personal delivery, if
delivered by hand and followed by notice by mail or facsimile transmission,
(ii) upon actual receipt after the date of deposit in the mails, if mailed
by certified or registered mail (return receipt requested), or (iii) on the
next business day, if mailed by an overnight mail service to the parties or
sent
by facsimile transmission,
To
the
Company:
International
Playthings Inc.
00X
Xxxxxxxxxx Xxx.
Xxxxxxxxxx
XX 00000
with
copies to:
Grand
Toy
International Limited
Xxxx
XX000 - Xxxxx XX0
Xxxxxxxxx
Xxxxxx Xxxxx
00
Xxxx
Xx
Xxxxxxxxxxx
Xxxx, Xxxxxxx
Xxxx
Xxxx
Att
Xxxx
Xxxxx
-00-
Xxxxxxx
Xxxxx
00
Xxxxxxxxxx Xxx
Xxxxxxxx
XX 00000-0000
Att
Xxxx
Xxxxxx
To
Varda:
Xx.
Xxxxxxx Xxxxx
00
Xxxxxx
Xxxxx Xx
Xxx
Xxxxx
XX 00000
or
at
such other address or telecopy number (or other similar number) as either party
may from time to time specify to the other. Any notice, consent or other
communication required or permitted to be given hereunder shall have been deemed
to be given on the date of mailing, personal delivery or telecopy or other
similar means (provided the appropriate answer back is received) thereof and
shall be conclusively presumed to have been received on the second business
day
following the date of mailing or, in the case of personal delivery or telecopy
or other similar means, the day of delivery thereof, except that a change of
address shall not be effective until actually received.
ARTICLE
XVI HEADINGS.
The
headings of this Agreement are for convenience of reference only and shall
not
affect in any manner any of the terms and conditions hereof.
ARTICLE
XVII ACTS
AND DOCUMENTS.
The
parties agree to do, sign and execute all acts, deeds, documents and corporate
proceedings necessary or desirable to give full force and effect to this
Agreement.
ARTICLE
XVIII COUNTERPARTS.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one and the
same
agreement.
ARTICLE
XIX MODIFICATIONS
AND WAIVERS.
No
term,
provision or condition of this Agreement may be modified or discharged unless
such modification or discharge is authorized by the Board of Directors of the
Company and is agreed to in writing and signed by Varda. No waiver by either
party hereto of any breach by the other party hereto of any term, provision
or
condition of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at
any
prior or subsequent time.
-12-
ARTICLE
XX ENTIRE
AGREEMENT.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter herein and supersedes all prior agreements, negotiations
and
discussions between the parties hereto, there being no extraneous agreements.
This Agreement may be amended only in writing executed by the parties hereto
affected by such amendment.
ARTICLE
XXI LAW
GOVERNING.
Except
as
otherwise explicitly noted, this Agreement shall be governed by and construed
in
accordance with the laws of the State of New Jersey (without giving effect
to
the principles of conflicts of law).
ARTICLE
XXII JURISDICTION.
In
the
event of a claim of violation of Sections 7, 8 and/or 9 of this Agreement
relating to Inventions and Copyrights, Confidential Information, and Varda’s
post-employment restrictive covenant, the Company may alternatively apply to
a
court of competent jurisdiction for a temporary restraining order, preliminary
injunction, and/or such other legal and equitable remedies as may be appropriate
because both parties acknowledge that the Company would have no adequate remedy
at law for such violation or non compliance. Employee hereby consents to the
jurisdiction of the Courts of the State of New Jersey or the United States
District Court for the District of New Jersey with respect to such an action
and
to service of process upon her in accordance with Section 21.
-13-
IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
on
the day and year set forth above.
|
/s/
Xxxxxxx Xxxxx
|
||
|
Xxxxxxx Xxxxx |
||
|
INTERNATIONAL
PLAYTHINGS, INC.
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
| Grand Toys International Limited | ||
| |
|
|
| By: | /s/ Xxxx Xxxxx | |
|
Name:
Xxxx Xxxxx
Title:
Chief Executive Officer
|
||
-14-
