EXHIBIT 10.1
AGREEMENT
This Termination, Release and Consulting Agreement (hereinafter referred to as
the "Termination Agreement", "the Release" or the "Consulting Agreement"), dated
June 20, 2006 (the "Effective Date") is between Wizkids, Inc. ("Wizkids"), The
Topps Company, Inc. ("Topps") (Wizkids and Topps collectively referred to as the
"Company"), and Xxxxxx Xxxxxxx ("Executive");
WHEREAS the parties wish to terminate that Employment Agreement between the
parties dated July 9, 2003, and subsequently amended on August 1, 2003 and
October 1, 2003 (the "Employment Agreement");
WHEREAS, Executive has been employed by the Wizkids and the Company and the
Executive desire to provide for an orderly termination of the employment
relationship, effective June 20, 2006, and to settle fully and finally any and
all differences between them and any and all claims and causes of action of any
kind whatsoever which Executive has or may have against the Company or which
Company has or may have against the Executive;
WHEREAS, Executive acknowledges that Executive has made use of, acquired or
added to confidential information of a special and unique nature and value
relating to such matters as, without limitation, the Company's processes,
formulas, programs, know-how, improvements, discoveries, developments, designs,
inventions, techniques, marketing plans, budgets, projections, customer and
supplier lists, information, products or materials of the Company, trade
secrets, systems, procedures, manuals, technical information, data, reports,
lists and records as well as the nature and type of other services or methods
used by the Company (all such information hereinafter collectively referred to
as the "Confidential Information"); and
WHEREAS, the parties wish to reach a new consulting arrangement;
NOW THEREFORE, for full consideration, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. As of the Effective Date, all terms of the Employment Agreement shall be
terminated by mutual agreement of the parties, except as provided for
herein.
2. As of the Effective Date, Company shall cause all funds currently held in
the secured escrow pursuant to Paragraph 6(g) of the Employment Agreement
to be released to Executive.
3. Other than any amounts accrued but unpaid hereunder in respect of Salary or
unreimbursed expenses as of the Effective Date, no party owes any further
payments to the other under the Employment Agreement, either as salary,
bonus or severance to be paid by Wizkids, liquidated damages to be paid by
Executive, or otherwise.
4. From the Effective Date until the fourth anniversary thereafter (the
"Consulting Term"), Executive shall continue to develop, in good faith,
collectible games that have material physical components, non-electronic
board games, non-electronic role playing games (such as games like Dungeon
and Dragons) and the potential electronic translation of all such games
(all games referenced above hereinafter referred to as "Gaming Concepts").
Topps, either itself or through its subsidiary, Wizkids, shall have the
right of first refusal during the Consulting Term to develop, market and/or
sell the Gaming Concepts pursuant to an exclusive license agreement
negotiated by the parties in good faith, provided that it is herein
predetermined that in such license agreement the royalty shall be five
percent (5%) of net sales, except that if the Gaming Concept is used in
connection with a third party license, the royalty rate shall be three
percent (3%) of net sales. Executive agrees to promptly present all Gaming
Concepts, as defined above, in writing to a representative of Topps or
Wizkids (such representative to be designated by Topps in its sole
discretion). Company, through its designated representative, shall have
ninety (90) days from the receipt of such Gaming Concept to inform
Executive whether Company wishes to exercise its right of first refusal. In
the event the representative elects to exercise the right of first refusal,
Company shall, within ten (10) business days, pay Executive a
non-refundable advance of ten thousand dollars ($10,000) to be credited
against subsequently royalties from the applicable Gaming Concept and the
parties shall promptly negotiate a long form license agreement with
standard and customary industry terms and conditions supplementing the
predetermined terms set forth herein. Ownership of the Gaming Concept shall
revert to Executive if Company has not publicly announced the product line
employing the Gaming Concept within twelve months of exercising its right
of first refusal, provided that if Company and Executive have executed a
long form license agreement within the twelve months following the exercise
of the right of first refusal, Company shall be given an additional three
(3) months to publicly announce the Gaming Concept (for a total of fifteen
(15) months from the date of the exercise of the right of first refusal
before ownership rights revert to Executive).
By way of clarification, games that have de minimis electronic components
shall be considered "non-electronic" as that term is used to describe
"board games" and "role playing games" above. Company shall therefore have
a right of first refusal on such games. Further, Company's right of first
refusal shall extend to all "electronic" or "non-electronic" collectible
games provided such games contain a material physical component.
5. If Topps or Wizkids elects to launch the Star Wars constructible
collectible game already developed by Executive and pitched by Wizkids to
various customers, it shall pay Executive a two percent (2%) royalty of net
sales, providing that the total royalties Topps shall owe to Executive
shall be capped at three hundred thousand dollars ($300,000).
6. The Executive acknowledges that the agreements and covenants contained in
this Section 6 are essential to protect the value of the Company's business
and assets and, by his ownership interest in and past employment with the
Company and its predecessors, the Executive has obtained and will obtain
knowledge, contacts, know-how, training and experience and there is a
substantial probability that such knowledge, know-how, contacts, training
and experience could be used to the substantial advantage of a competitor
of the Company and to the Company's substantial detriment. For the period
ending one year after the Consulting Term, Executive shall not, whether for
his own account or for the account of any other individual, partnership,
firm, corporation or other business organization, directly or indirectly
solicit, endeavor to entice away from Company or its subsidiaries, or
otherwise directly interfere with the relationship of Company or its
subsidiaries with any person who, to his knowledge, is employed by Company.
The placement of any general classified or "help wanted" advertisements
and/or general solicitations to the public at large shall not constitute a
violation of this Section 6 unless Executive's name is contained in such
advertisements or solicitations.
7. During the Consulting Term, Executive's status in all matters pursuant to
this Agreement shall be that of an independent contractor. For purposes of
this Agreement, the term "Independent Contractor" shall include all of IC's
employees, agents, representatives, and subcontractors. Executive may not
directly or indirectly represent or imply in any way that he is an employee
of Company. Executive is not eligible for Company employee benefits or any
other considerations of Company employment, nor is Executive allowed to use
Company letterhead, business cards, trademarks, or other forms of Company
identification.
8. Release and Waiver of Claims by Executive
Except as provided in the last paragraph of this Section 8, the Executive,
on behalf of himself/herself, and his/her family, heirs, executors,
administrators, legal representatives and assigns (collectively referred to
in this Release as the "Executive"), hereby unconditionally and forever
releases, discharges and waives any and all claims of any nature
whatsoever, whether legal, equitable or otherwise which the Executive may
have against the Company, its Executives, officers, directors,
predecessors, subsidiaries, shareholders, representatives and agents, and
any person or entity which may succeed to the rights and liabilities of any
such entities or persons by assignment or otherwise (collectively referred
to in this Release as the "Company"), arising at any time on or before the
Effective Date, in each case relating to or in connection with the
Executive's employment by, or termination of employment with, the Company,
other than with respect to the obligations of the Company to the Executive
under this Release. This Release is a release of all claims of any nature
whatsoever by the Executive against the Company, other than with respect to
the obligations of the Company to the Executive under this Release, and
includes, other than as herein provided, any and all claims, demands,
causes of action, liabilities whether known or unknown including those
caused by, arising from or related to the Executive's employment
relationship with the Company including, but without limitation, any and
all alleged discrimination or acts of discrimination which occurred or may
have occurred on or before the Effective Date based upon race, color, sex,
creed, national origin, age, disability or any other violation of any Equal
Employment Opportunity Law, ordinance, rule, regulation or order,
including, but not limited to, Title VII of the Civil Rights Act of 1964,
as amended; the Civil Rights Act of 1991; the Age Discrimination in
Employment Act, as amended (as further described in Section 2 below); the
Americans with Disabilities Act; claims under the Executive Retirement
Income Security Act of 1974, as amended; or any other federal, state or
local laws or regulations regarding employment discrimination or
termination of employment. This Release also includes claims for wrongful
discharge, fraud, or misrepresentation under any statute, rule, regulation
or under the common law.
The Executive understands and knowingly agrees to this Release because it
is his/her intent in executing this Release to forever discharge the
Company from any and all causes of action, foreseen or unforeseen, that may
have existed on or prior to the Effective Date, except for the obligations
of the Company set forth in this Release.
Notwithstanding the foregoing, the Executive does not release, discharge or
waive: (i) any rights to receive any benefits provided under the provisions
of any Company-maintained qualified retirement plan in which the Executive
participates, (ii) any rights to reimbursement for Company-related business
expenses incurred by the Executive on or prior to the Effective Date, (iii)
any conversion rights under a Company-sponsored group term life insurance
plan in which the Executive participates, (iv) any rights to
indemnification from the Company to the fullest extent permitted under
relevant corporate law, or (v) any right to enforce the terms of this
Release.
9. Release and Waiver of Claims by Company
Except as provided in the last paragraph of this Section 9, the Company, on
behalf of its Executives, officers, directors, predecessors, subsidiaries,
shareholders, representatives and agents, and any person or entity which
may succeed to the rights and liabilities of any such entities or persons
by assignment or otherwise (collectively referred to in this Release as the
"Company") hereby unconditionally and forever releases, discharges and
waives any and all claims of any nature whatsoever, whether legal,
equitable or otherwise which the Company may have against the Executive, on
behalf of himself, and his family, heirs, executors, administrators, legal
representatives and assigns (collectively referred to in this Release as
the "Executive"), arising at any time on or before the Effective Date, in
each case relating to or in connection with the Company's employment of, or
termination of employment with, the Executive, other than with respect to
the obligations of the Executive to the Company under this Release. This
Release is a release of all claims of any nature whatsoever by the Company
against the Executive, other than with respect to the obligations of the
Executive to the Company under this Release, and includes, other than as
herein provided, any and all claims, demands, causes of action, liabilities
whether known or unknown including those caused by, arising from or related
to the Executive's employment relationship with the Company including, but
without limitation, any and all alleged discrimination or acts of
discrimination which occurred or may have occurred on or before the
Effective Date based upon race, color, sex, creed, national origin, age,
disability or any other violation of any Equal Employment Opportunity Law,
ordinance, rule, regulation or order, including, but not limited to, Title
VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of
1991; the Age Discrimination in Employment Act, as amended (as further
described in Section 2 below); the Americans with Disabilities Act; claims
under the Executive Retirement Income Security Act of 1974, as amended; or
any other federal, state or local laws or regulations regarding employment
discrimination or termination of employment. This Release also includes
claims for fraud, or misrepresentation under any statute, rule, regulation
or under the common law.
The Company understands and knowingly agrees to this Release because it is
the Company's intent in executing this Release to forever discharge the
Executive from any and all causes of action, foreseen or unforeseen, that
may have existed on or prior to the Effective Date, except for the
obligations of the Executive set forth in this Release.
10. Release and Waiver of Claims Under the Age Discrimination in Employment Act
The Executive acknowledges that the Company encouraged him/her to consult
with an attorney of his/her choosing, and through this Release encourages
him/her to consult with his/her attorney with respect to possible claims
under the Age Discrimination in Employment Act of 1967, as amended
("ADEA"), as well as under all other federal, state and local laws within
the scope of Section 8, above, and that the Executive acknowledges that
he/she understands that ADEA is a federal statute that prohibits
discrimination, on the basis of age, in employment, benefits, and benefit
plans. The Executive wishes to waive any and all claims under ADEA, as well
as under all other federal, state and local laws within the scope of
Section 8, above, that he/she may have, as of the Effective Date, against
the Company, and hereby waives such claims. The Executive further
understands that by signing this Release he/she is in fact waiving,
releasing and forever giving up any claim under ADEA, as well as all other
federal, state and local laws within the scope of Section 8, above, that
may have existed on or prior to the Effective Date. Without detracting in
any respect from any other provision of this Release:
a. The Executive agrees and acknowledges that this Release constitutes
a knowing and voluntary waiver of all rights or claims he/she has or may
have against the Company, including but not limited to, all rights or
claims arising under ADEA; and that he/she has no physical or mental
impairment of any kind that has interfered with his/her ability to read and
understand the meaning of this Release or its terms, and that he/she is not
acting under the influence of any medication, drug or chemical of any type
in entering into this Release.
b. The Executive understands that, by entering into this Release,
he/she does not waive rights or claims under ADEA that may arise after the
date of the execution of this Release.
c. The Executive agrees and acknowledges that the consideration
provided to him/her under this Release is in addition to anything of value
to which he/she is already entitled.
d. The Executive acknowledges that he/she was informed that he/she had
at least 45 calendar days in which to review and consider this Release, and
in which to consult with his/her attorney regarding the terms and effect of
this Release.
e. Notwithstanding anything contained herein to the contrary, this
Release will not become effective or enforceable for a period of seven (7)
calendar days following its execution by the Executive (the "Effective
Date"), during which time the Executive may revoke his/her acceptance of
this Release by notifying Xxxx X'Xxxxxx at the Company, fax number:
000-000-0000 in writing. To be effective, such revocation must be received
by the Company no later than 5:00 p.m. on the seventh calendar day
following its execution.
f. In the event of revocation of this Release by the Executive
pursuant to subparagraph (e) above, this Release will be null and void and
of no effect, and the Company will have no obligations hereunder.
Attached hereto is a schedule setting forth certain information required under
29 C.F.R. ss. 1625.22.
11. Proceedings
The Executive represents that he/she has not filed, and agrees not to
initiate or cause to be initiated on his/her behalf, any complaint, charge,
claim or proceeding against the Company before any local, state or federal
agency, court or other body relating to his/her employment or the
termination of his/her employment, other than with respect to the
obligations of the Company to the Executive under this Release (each
individually, a "Proceeding"), and agrees not to voluntarily participate in
any Proceeding. The Executive waives any right he/she may have to benefit
in any manner from any relief (whether monetary or otherwise) arising out
of any Proceeding.
12. Remedies
In the event the Executive initiates or voluntarily participates in any
Proceeding, or if he/she fails to abide by any of the terms of this
Release, or if he/she revokes this Release within the seven-day period
provided under Section 9(e) above, the Company may, in addition to any
other remedies it may have, reclaim any amounts paid to him/her under this
Release, or terminate any payments that are subsequently due under this
Release, without waiving the Release granted herein. The Executive
acknowledges and agrees that the remedy at law available to the Company for
breach of his/her obligations under Sections 8, 9, 10 and 13 of this
Release would be inadequate and that damages flowing from such a breach may
not readily be susceptible to being measured in monetary terms.
Accordingly, the Executive acknowledges, consents and agrees that, in
addition to any other rights or remedies which the Company may have at law,
in equity or under this Release, upon adequate proof of his/her violation
of any such provision of this Release, the Company shall be entitled to
immediate injunctive relief and may obtain a temporary order restraining
any threatened or further breach, without the necessity of proof of actual
damage. The Executive understands that by entering into this Release he/she
will be limiting the availability of certain remedies that he/she may have
against the Company and limiting also his/her ability to pursue certain
claims against the Company.
13. Return of Property
All Company files, documents, Work Product (as defined in the
Employment Agreement), software, access keys, desk keys, ID badges and
credit cards, and such other property of the Company, as the Company
may reasonably request, in the Executive's possession must be returned
as soon as practicable, but in no event later than the date this
Release is duly executed and returned to the Company.
14. Confidentiality
Executive shall not directly or indirectly disclose or use at any time the
Confidential Information, except with the Company's prior written consent,
whether or not such Confidential Information was obtained, acquired or
developed by Executive while rendering services for the Company. Executive
shall not provide or otherwise make available, directly or indirectly, any
part of the Confidential Information to any person, firm, corporation,
association or other entity for any reason or purpose whatsoever without
the Company's prior express written consent, it being expressly understood
and agreed that all of the Confidential Information is and shall be the
sole property of the Company, and that Executive shall assign to the
Company, upon request, any and all rights to the Confidential Information.
Executive will not, without the Company's prior written consent, disclose
to any person, firm or corporation any information concerning the business,
methods or affairs of the Company which Executive may have acquired in the
course of or as an incident to Executive rendering services for the
Company, nor will Executive utilize, communicate or divulge to, or use,
directly or indirectly, for the benefit of himself/herself, or any other
person, partnership, association or corporation, any information or
knowledge concerning the methods of development, promotion, sale, purchase
or distribution used or employed by the Company or its subsidiaries in or
about its business. In addition to the items described in Section 12 above,
Executive shall turn over to the Company all of the Confidential
Information and all notes, memoranda, notebooks or other documents made by,
compiled by or delivered to Executive and relating to all Confidential
Information, it being understood and agreed that the same and all
information referred to herein is and was at all times the property of the
Company.
15. Severability Clause
In the event any provision or part of this Release is found to be invalid
or unenforceable, only that particular provision or part so found, and not
the entire Release, will be inoperative.
16. Non-Admission
Nothing contained in this Release will be deemed or construed as an
admission of wrongdoing or liability on the part of the Company or the
Executive.
17. Entire Agreement
This Release constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes all prior
oral or written agreements, arrangements, and understandings with respect
thereto, including, but not limited to, the Company's severance policy.
18. Governing Law/Notice
This Release shall be governed by and construed in accordance with Federal
law and the laws of the State of New York, applicable to releases made and
to be performed in that State; and the parties agree to the sole and
exclusive jurisdiction of the federal and state courts of New York, New
York, and agree to appear in any action in such courts by service of
process by certified mail, return receipt requested, at the following
addresses:
To Company: The Topps Company, Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: General Counsel
To the Executive: Xxxxxx Xxxxxxx
P. O. Xxx 0000
Xxxxxxxx, XX 00000
EXECUTIVE ACKNOWLEDGES THAT HE/SHE HAS READ THIS RELEASE AND THAT HE/SHE FULLY
KNOWS, UNDERSTANDS, AND APPRECIATES ITS CONTENTS, AND THAT HE/SHE HEREBY
EXECUTES THE SAME AND MAKES THIS RELEASE AND THE RELEASES PROVIDED FOR HEREIN
VOLUNTARILY AND OF HIS/HER OWN FREE WILL.
IN WITNESS WHEREOF, the parties have executed this Release as of the first
date set forth above.
s/ Xxxxxx Xxxxxxx
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XXXXXX XXXXXXX
WIZKIDS, INC.
By: s/ Xxxxxx Xxxxx
-------------------
Name: XXXXXX XXXXX
Title: Vice-President
THE TOPPS COMPANY, INC.
By: s/ Xxxxxx Xxxxx
--------------------
Name: XXXXXX XXXXX
Title: Vice-President
I, Xxxxxx Xxxxxxx, understand that I am entitled to take 45 days to review
and consider the Agreement and Release of All Claims (the "Release"), which the
Company has presented to me. I have reviewed the Release, and I am now making a
knowing and voluntary decision to accept the terms and conditions outlined in
the Release as of today. In other words, I am waiving the 45-day review period.
I also understand that I have 7 days from today to revoke the Release in
accordance with Section 9(e) of the Release if I change my mind.
s/ Xxxxxx Xxxxxxx
--------------------
XXXXXX XXXXXXX
Dated: June 20, 2006
