Execution Copy
WizKids, LLC
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of this ___ day of July, 2003, between
WizKids, LLC, a Delaware limited liability company (the "Company"), Xxxxxx
Xxxxxxx (the "Executive"), and, for the purposes of Sections 3(d) and 6(f) only,
The Topps Company, Inc. ("Topps"), a Delaware corporation.
R E C I T A L S:
- - - - - - - -
WHEREAS, the Company believes that the future growth, profitability and
success of the Company's business will be enhanced by its employment of the
Executive; and
WHEREAS, the Company desires to employ the Executive, and the Executive has
indicated his willingness to be so employed, on the terms and conditions set
forth herein.
NOW, THEREFORE, on the basis of the foregoing premises and in consideration
of the mutual covenants and agreements contained herein, the parties hereto
agree as follows:
Capitalized terms not otherwise defined herein shall have the same meaning
as set forth in that certain Agreement and Plan of Merger, dated as of June 23,
2003, by and among Wizkids, LLC, Topps, Topps Enterprises, Inc., Topps Finance,
Inc. and, solely in his capacity as member representative thereunder, the
Executive (the "Merger Agreement").
Section 1. Employment. The Company hereby agrees to employ the Executive,
and the Executive hereby accepts employment with the Company, on the terms and
subject to the conditions hereinafter set forth. Subject to the terms and
conditions contained herein, the Executive shall serve as Chief Executive
Officer of the Company and, in such capacity, shall report directly to such
person as has been designated by the sole member of the Company (the "Member"),
provided that such designee shall be an Executive Vice President of Topps, and
shall have such duties as are typically performed by a Chief Executive Officer
of a company, together with such additional duties, commensurate with the
Executive's position as Chief Executive Officer of the Company, as may be
assigned to the Executive from time to time by the Direct Report. On the date
hereof, such designee of the Member shall be Xxxxx X. Xxxxxxxxxxx. The Executive
understands and agrees that he may be required to travel from time to time for
business reasons; provided, however, that the Executive shall not be required to
take more than two (2) trips per month to New York, with such trips no longer
than ten (10) total days per month, including transit days, and no more than
eighty (80) total days per year.
Section 2. Term. Unless terminated pursuant to Section 6 hereof, the term
of the Executive's employment hereunder shall commence on the Closing Date (as
defined in the Merger Agreement) and shall continue during the period ending on
the fourth (4th) anniversary of the Closing Date (the "Employment Term").
Section 3. Compensation. During the Employment Term, the Executive shall be
entitled to the following compensation and benefits:
(a) Salary. The Company shall pay to the Executive a salary (the "Salary")
of $250,000 per annum, payable in accordance with the payroll practices of the
Company as the same shall exist from time to time. The Salary shall be reviewed
for increase (but not decrease) on an annual basis coinciding with the fiscal
year end of the Company.
(b) Annual Bonus. During the Employment Term, in lieu of participation in
any bonus plan made available to Topps or Company executives, in the sole
discretion of the Member, the Executive shall be eligible to receive an annual
cash bonus (the "Bonus").
(c) Sales Bonus.
(i) During the Employment Term, no later than forty-five (45) days
following the end of each fiscal year, provided that the Company's
operating profits are at least fifteen percent (15%) of net sales, the
Company shall deposit in an escrow account, pursuant to an escrow
agreement, substantially in the form attached hereto as Exhibit A, an
amount equal to two percent (2%) of net sales of the Company for such
one-year period in excess of $35 million. As soon as practicable following
the end of each fiscal year, Company shall provide Executive with an
accounting of the Company's operating profits and net sales. Any amount
deposited (A) in respect of Topps' fiscal year ending February 29, 2004
shall be prorated based upon the number of days the Executive is employed
by the Company during the period beginning on the Closing Date and ending
on last day of such fiscal year, and (B) in respect of fiscal year ending
February 29, 2008 shall be prorated based upon the number of days the
Executive is employed beginning on March 1, 2007 and ending on the fourth
anniversary of the Closing Date. To calculate the sales bonus for the two
pro-rated years the Company will follow the following steps: for each month
that is part of the partial-year, the Company will look to the same month
in the two preceding years and determine what percentage of annual sales
were made in that particular month; the average of these percentages will
be used to calculate the amount of the $35 Million annual sales target
hurdle that must be met in order for the Executive to be eligible for a
sales bonus for that month; assuming that the hurdle is met, Executive
shall receive two percent (2%) of sales above that hurdle amount.
(ii) In the event that the Executive's employment hereunder is
terminated by the Company without Cause (other than by reason of death or
Disability) or by the Executive with Good Reason, the Company shall
continue to deposit such amount into escrow, as if the Executive's
employment had not terminated, and the Employment Term had instead expired
on the fourth anniversary of the Closing Date. In the event that that the
Executive's employment hereunder is terminated by reason of the Executive's
death or Disability, the amount deposited into escrow for the year in which
such termination occurs shall be prorated based on the number of days the
Executive was employed during the applicable one-year period.
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(iii) Provided that (A) the Executive is continuously employed by the
Company through the fourth anniversary of the Closing Date, or (B) prior to
the fourth anniversary of the Closing Date, the Executive's employment has
been terminated by reason of the Executive's death or Disability, by the
Company without Cause, or by the Executive with Good Reason, the amounts
escrowed pursuant to this Section 3(c) shall be released to the Executive
within thirty (30) days of the fourth anniversary of the Closing Date. If,
prior to the fourth anniversary of the Closing Date, the Executive's
employment has been terminated by the Company for Cause, or by the
Executive without Good Reason, the amounts escrowed pursuant to this
Section 3(c) shall be released to the Company as of the date of such
termination, and the Executive shall have no further rights with respect to
such escrowed amounts.
(d) Options. On the Closing Date, Topps shall grant the Executive an
option to purchase 200,000 shares of common stock of Topps, at an exercise
price equal to the Fair Market Value (as such term is defined in the Topps'
2001 Stock Incentive Plan) on the Closing Date. The option shall be vested
as to 50,000 shares as of the date hereof, and shall vest as to an
additional 50,000 shares on each of the first, second and third
anniversaries of the Closing Date and shall otherwise be subject to the
terms and conditions of the Company's Topps' 2001 Stock Incentive Plan and
a stock option agreement entered into between the parties hereto,
containing customary terms for similarly situated employees of Topps.
(e) Benefits. In addition to the Salary and Bonus, if any, the
Executive shall be entitled to participate in the health, life insurance,
pension and other benefit plans and programs provided to executives of the
Company on terms no less favorable than those available to such executives.
The Executive shall also be entitled to the same number of holidays, sick
days and other benefits as are generally allowed to executives of the
Company in accordance with the Company policy in effect from time to time.
The Executive shall be entitled to four (4) weeks of vacation each year.
Section 4. Exclusivity. During the Employment Term, the Executive shall
devote his full time to the business of the Company, shall faithfully serve the
Company, shall in all respects conform to and comply with the lawful and
reasonable directions and instructions given to him by the Direct Report in
accordance with the terms of this Agreement, shall use his best efforts to
promote and serve the interests of the Company and shall not engage in any other
business activity, whether or not such activity shall be engaged in for
pecuniary profit, except that the Executive may (i) participate in the
activities of professional trade organizations related to the business of the
Company and (ii) engage in personal investing activities; provided, the
activities set forth in clauses (i) or (ii), either singly or in the aggregate,
shall not interfere in any material respect with the services to be provided by
the Executive hereunder. In addition, during the Employment Term, the Executive
shall be entitled to devote up to five percent (5%) of his full business time in
order to continue to engage in business activities with respect to Myriad
Entertainment, Inc. (the "Myriad Activities"); provided, that, such Myriad
Activities do not violate the provisions of Section 7(a) hereto, and provided,
further, that in the event Myriad Entertainment, Inc. ("Myriad") engages in any
games business other than with respect to branching audio-based games (which
shall not include video), the Executive shall no longer engage in the Myriad
Activities. A detailed description of the Myriad Activities is set forth on
Schedule A, attached hereto.
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Section 5. Reimbursement for Expenses. The Executive is authorized to incur
reasonable expenses in the discharge of the services to be performed hereunder,
including expenses for travel, entertainment, lodging and similar items, in
accordance with the Company's expense reimbursement policy, as the same may be
modified by the Company from time to time. The Company shall reimburse the
Executive for all such proper expenses upon presentation by the Executive of
itemized accounts of such expenditures in accordance with the financial policy
of the Company, as in effect from time to time.
Section 6. Termination.
(a) Death. The Executive's employment shall automatically terminate upon
his death and, upon such event, the Executive's estate shall be entitled to
receive the amounts specified in Section 6(f) below.
(b) Disability. If the Executive is unable to perform the duties required
of him under this Agreement because of illness, incapacity or physical or mental
disability, the Employment Term shall continue, and the Company shall pay all
compensation required to be paid to the Executive hereunder, unless the
Executive is unable to perform the duties required of him under this Agreement
for an aggregate of one hundred twenty (120) days (whether or not consecutive)
during any twelve- (12-) month period during the term of this Agreement, in
which event the Executive's employment shall terminate.
(c) Cause. The Company may terminate the Executive's employment at any
time, with or without Cause. In the event of termination pursuant to this
Section 6(c) for Cause, the Company shall deliver to the Executive written
notice setting forth the basis for such termination, which notice shall
specifically set forth the nature of the action constituting Cause. Termination
of the Executive's employment hereunder shall be effective upon delivery of such
notice of termination. For purposes of this Agreement, "Cause" shall mean: (i)
the Executive's failure (except where due to a disability contemplated by
subsection (b) hereof), neglect or refusal to perform his duties hereunder which
failure, neglect or refusal shall not have been corrected by the Executive
within thirty (30) days of receipt by the Executive of written notice from the
Company of such failure, neglect or refusal, which notice shall specifically set
forth the nature of such failure, neglect or refusal; (ii) the Executive
continues to devote more than five percent (5%) of his full business time (on a
monthly basis) on Myriad Activities, thirty (30) days after receiving from the
Company written notice that it believes the Executive has exceeded the amount of
time spent on Myriad Activities that is permitted under Section 4; provided,
however, the Company shall not be required to provide any notice in the event
that notice under this subsection (ii) has been given to the Executive in two
prior instances; (iii) the Executive's material breach of this Agreement; (iv)
any willful or intentional act of the Executive that has the effect of injuring
the reputation or business of the Company or its affiliates in any material
respect; (v) any continued or repeated absence of the Executive from the
Company, unless such absence is (A) approved or excused by the Member in writing
or (B) is the result of the Executive's illness, disability or incapacity (in
which event the provisions of Section 6(b) hereof shall control); (vi) the
Executive's use of illegal drugs or repeated drunkenness; (vii) conviction of
the Executive for the commission of a felony; (viii) the Executive's indictment,
conviction or admission of any crime involving dishonesty or moral turpitude;
(ix) the commission by the Executive of an act of fraud, embezzlement or
malfeasance against the Company or any of its affiliates; or (x) intentional
damage to any property of the Company.
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(d) Good Reason.
(i) The Executive may terminate his employment for "Good Reason,"
(defined below) but only if the Company receives written notice from the
Executive describing in detail the specific nature of the action
constituting Good Reason, and such action is not corrected by the Company
within thirty (30) days of receipt of such notice (the "Cure Period"). Such
notice must be given to the Company within ninety (90) days of the action
allegedly constituting Good Reason. The date of termination of the
Executive's employment under this Section 6(d) shall be the effective date
of any resignation specified in writing by the Executive, which may not be
less than thirty (30) days after receipt by the Company of written notice
of such resignation, provided that such resignation shall not be effective
and the action constituting Good Reason shall be deemed to have been cured
if such action is corrected by the Company during the Cure Period.
(ii) The Executive acknowledges that the business of the Company is
subject to the control of the Member and that the proper exercise by the
Member of its authority shall not constitute Good Reason under Section
6(d)(iii) below.
(iii) For purposes of this Agreement, subject to the proviso below,
"Good Reason" means (i) the failure by the Company to pay to the Executive
the compensation due to him under this Agreement; (ii) the failure by the
Company to allow the Executive to participate in the Company's employee
benefit plans generally available from time to time to executives of the
Company; (iii) without the Executive's prior written consent, relocation of
the Executive's principal business location more than twenty five (25) from
its current location; (iv) any change of the Executive's title or material
change in the Executive's duties; or (v) the failure of any successor to
all or substantially all of the business and/or assets of the Company to
assume this Agreement; provided, however, that "Good Reason" shall not
include (x) a termination of the Executive's employment hereunder pursuant
to Sections 6(b) or (c) hereof, or (y) any change in the Executive's title
in connection with any internal reorganization involving the Company,
provided, that following any such change in title, the Executive's duties
with respect to the business of the Company remain substantially the same
as his duties as they existed immediately prior to such internal
reorganization, whether or not the Company actually survives any such
internal reorganization, and provided that the Company and Executive
mutually agree upon the new title to be used.
(e) Resignation. The Executive shall have the right to terminate his
employment other than for Good Reason upon ninety (90) days' prior written
notice to the Company.
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(f) Payments. In the event the Executive's employment terminates for any
reason, the Company shall pay to the Executive all amounts accrued but unpaid
hereunder through the date of termination in respect of Salary, Bonus or
unreimbursed expenses. In the event the Executive's employment is terminated by
the Company without Cause or by the Executive with Good Reason, in addition to
the amounts specified in the foregoing sentences (i) the Executive shall
continue to receive the Salary (less any applicable withholding or similar
taxes) at the rate in effect hereunder on the date of such termination
periodically, in accordance with the Company's prevailing payroll practices, for
the shorter of (A) the remainder of the Employment Term, or (B) twelve (12)
months following the date of such termination (the "Severance Term") and (ii) a
portion of the Bonus, if any, that would have been payable to the Executive
hereunder for the Topps' fiscal year in which termination of employment
occurred, prorated based upon the number of days Executive is actually employed
during such fiscal year and (iii) to the extent permissable under the Company's
health plans, the Executive shall continue to receive during the Severance Term
any health benefits provided to him as of the date of such termination in
accordance with Section 3(c) hereof.
(g) Liquidated Damages for Early Termination. The parties hereto agree that
the Executive's execution of this Agreement is a material inducement of Topps
entering into the Merger Agreement, and that the Executive's termination of
employment by the Company for Cause or by the Executive without Good Reason
prior to the fourth anniversary of the Closing Date would result in material
harm to Topps and the Company, the dollar value of which is uncertain.
Therefore, the Executive agrees that in the event his employment hereunder is
terminated by the Company for Cause or by the Executive without Good Reason
prior to the fourth anniversary of the Closing Date, the Executive shall pay
Topps an amount as liquidated damages equal to the Liquidated Damages Amount.
The Executive shall secure the Liquidated Damages Amount by equity securities,
and the parties will enter into a security agreement, on terms mutually
agreeable, pursuant to which the parties will secure the obligations of the
Executive under this subsection (g). For purposes of this Section 6(g), the term
"Liquidated Damages Amount" shall be calculated as follows:
(i) If Executive's employment terminates prior to the first
anniversary of the Closing Date, the Liquidated Damages Amount shall equal
$2,000,000;
(ii) If Executive's employment terminates on or following the first
anniversary of the Closing Date, but prior to the second anniversary of the
Closing Date, the Liquidated Damages Amount shall equal $1,500,000;
(iii) If Executive's employment terminates on or following the second
anniversary of the Closing Date, but prior to the third anniversary of the
Closing Date, the Liquidated Damages Amount shall equal $1,000,000; and
(iv) If Executive's employment terminates on or following the third
anniversary of the Closing Date, but prior to the fourth anniversary of the
Closing Date, the Liquidated Damages Amount shall equal $500,000.
(h) Survival of Operative Sections. Upon any termination of the Executive's
employment, the provisions of Sections 6(f), 6(g) and 7 through 17 of this
Agreement shall survive to the extent necessary to give effect to the provisions
thereof.
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Section 7. Restrictive Covenants. The Executive acknowledges that the
agreements and covenants contained in this Section 7 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, and by his continued
employment with the Company and its subsidiaries pursuant to the terms of this
Agreement, 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. The Executive further acknowledges that, as consideration
for the agreements and covenants contained in this Section 7, in addition to the
amounts he is entitled to receive under this Agreement, the Executive is
receiving amounts in connection with the sale of his interest in the Company as
set forth in the Merger Agreement.
(a) No Competing Employment. The Executive agrees that during the
Employment Term, and for the period ending on the later of (A) the fifth
anniversary of the Closing Date or (B) two years after the date of termination
of the Executive's employment with the Company for any reason (the "Restricted
Period"), with respect to any State in which the Company is engaged in business
during the Employment Term, he shall not participate or engage, directly or
indirectly, for himself or on behalf of or in conjunction with any person,
partnership, corporation or other entity, whether as an employee, agent,
officer, director, shareholder, partner, joint venturer, investor or otherwise,
in any business activities of the type undertaken or expressly contemplated to
be undertaken by the Company or any of its subsidiaries or predecessors as of
the date of this Agreement or at any time during the Employment Term. The
parties agree that Executive shall not be deemed to be competing with the
Company if he participates or engages in activities related to filmed
entertainment, provided that the Company derived less than ten percent (10%) of
its annual revenue from filmed entertainment in the fiscal year immediately
preceding Executive's termination. The parties further agree that Executive
shall not be deemed to be competing with the Company if he participates or
engages in activities related to non-game fiction, provided that the Company
derived less than ten percent (10%) of its annual revenue from non-game fiction
in the fiscal year immediately preceding Executive's termination.
(b) No Interference. During the Restricted Period, the Executive shall not,
whether for his own account or for the account of any other individual,
partnership, firm, corporation or other business organization (other than the
Company), directly or indirectly solicit, endeavor to entice away from the
Company or its subsidiaries, or otherwise directly interfere with the
relationship of the Company or its subsidiaries with any person who, to the
knowledge of the Executive, is employed by or otherwise engaged to perform
services for the Company or its subsidiaries (including, but not limited to, any
independent sales representatives or organizations) or who is, or was within the
then most recent twelve- month period, a customer or client, of the Company, its
predecessors or any of its subsidiaries. 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 7(b) unless the
Executive's name is contained in such advertisements or solicitations.
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(c) Nondisclosure of Confidential Information. Except in connection with
his employment hereunder, the Executive shall not disclose to any person or
entity or use, either during the Employment Term or at any time thereafter, any
information not in the public domain or generally known in the industry, in any
form, acquired by the Executive while employed by the Company or any predecessor
to the Company's business or, if acquired following the Employment Term, such
information which, to the Executive's knowledge, has been acquired, directly or
indirectly, from any person or entity owing a duty of confidentiality to the
Company or any of its subsidiaries or affiliates, relating to the Company, its
subsidiaries or affiliates, including but not limited to information regarding
customers, vendors, suppliers, trade secrets, training programs, manuals or
materials, technical information, contracts, systems, procedures, mailing lists,
know-how, trade names, improvements, price lists, financial or other data
(including the revenues, costs or profits associated with any of the Company's
products or services), business plans, code books, invoices and other financial
statements, computer programs, software systems, databases, discs and printouts,
plans (business, technical or otherwise), customer and industry lists,
correspondence, internal reports, personnel files, sales and advertising
material, telephone numbers, names, addresses or any other compilation of
information, written or unwritten, which is or was used in the business of the
Company or any subsidiaries or affiliates thereof. The Executive agrees and
acknowledges that all such information, in any form, and copies and extracts
thereof, are and shall remain the sole and exclusive property of the Company,
and upon termination of his employment with the Company, the Executive shall
return to the Company the originals and all copies of any such information
provided to or acquired by the Executive in connection with the performance of
his duties for the Company, and shall return to the Company all files,
correspondence and/or other communications received, maintained and/or
originated by the Executive during the course of his employment.
Section 8. Work Product/Business Opportunities.
(a) The Executive shall comply with all Company policies concerning use of
equipment provided by the Company. Regardless of whatever is or may be stated in
those policies, use of equipment provided by the Company for activities that are
permitted under Section 4 of this Agreement shall not be deemed to violate this
Agreement.
(b) The Executive acknowledges that all ideas, discoveries, programs,
systems, methods, interfaces, protocols, databases, creations, artwork,
articles, programming, processes, designs, inventions or improvements, including
without limitation any contribution by the Executive to published works, whether
or not capable of being patented or copyrighted, conceived by the Executive
while employed by the Company, whether or not during regular working hours,
provided that they are either related in some manner to the business (present
and contemplated) of the Company or are conceived or made on the time of the
Company or with the use of the Company's facilities or materials (the "Work
Product"), was produced or prepared or will be produced or prepared within the
scope of the Executive's employment by the Company.
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(c) The Executive agrees that all Work Product, all derivatives thereof,
and the Executive's contributions thereto shall be considered "works made for
hire" as contemplated in the U.S. Copyright Act, as amended. If any portion of
the Work Product is not ruled to be a "work made for hire," the Executive hereby
assigns and transfers all right, title and interest in and to such Work Product,
including, without limitation, the right to use same in any and all versions of
the Work Product and in any other works in any media published or licensed by
the Company and the right to recover for past or future infringements thereof,
to the Company and its successors and assigns, absolutely and forever. The
Executive further acknowledges that, unless the Company otherwise agrees in
writing, the Executive shall have no personal interest in or right to use the
Work Product.
(d) The Executive warrants and represents that, to the best of his
knowledge, the Work Product produced by him in connection with his employment by
the Company will be original, and that such Work Product will not violate or
infringe any copyright, trademark, right of privacy or publicity or other
proprietary right of any person, or constitute libelous, obscene or unlawful
matter.
(e) The Executive shall deliver promptly to the Company upon termination of
his employment by the Company or at any other time the Company may so request,
all memoranda, notes, documentation, equipment, files, flowcharts, program
listings, data listings, records, reports and other tangible manifestations of
Work Product (and all copies thereof), that he may then possess or have under
his control.
(f) The Executive will not, without the prior written consent of the
Company, directly or indirectly, own an interest in, operate, join, control, or
participate in, or be connected in any capacity with any entity providing
services, receiving compensation for services or selling products in direct or
indirect competition with the Company during the period that the Executive
renders service to the Company.
(g) The Executive shall, unless the Company otherwise agrees in writing,
and without additional compensation: (A) promptly disclose to the Company all
Work Product and business opportunities related to the present or contemplated
business of the Company ("Business Opportunities"); (B) assign to the Company,
upon request, the entire rights to all Work Product and Business Opportunities;
(C) give testimony in support of his inventorship or creation in any appropriate
case; and (D) execute such other documents and take such other action as the
Company may request to protect the rights of the Company in any such Work
Product and Business Opportunities, including without limitation, such patent,
trademark and copyright applications as may be necessary or desirable in the
sole discretion of the Company to obtain, maintain, protect or vest in the
Company the entire right, title and interest in and to the Work Product.
Notwithstanding clause (B) above, Schedule B, attached hereto, sets forth all
current Business Opportunities which the parties agree shall in no event be
assigned to the Company.
Section 9. Injunctive Relief. Without intending to limit the remedies
available to the Company, the Executive acknowledges that a breach of any of the
covenants contained in Sections 7 and 8 hereof may result in material
irreparable injury to the Company or its subsidiaries or affiliates for which
there would be no adequate remedy at law, that it would not be possible to
measure damages for such injuries precisely and that, in the event of such a
breach or threat thereof, the Company shall be entitled to obtain a temporary
restraining order and/or a preliminary or permanent injunction, without the
necessity of proving irreparable harm or injury as a result of such breach or
threatened breach of Sections 7 or 8 hereof, restraining the Executive from
engaging in activities prohibited by Sections 7 or 8 hereof and providing other
relief as may be required specifically to enforce any of the covenants in
Sections 7 or 8 hereof. In addition to the remedies the Company may seek and
obtain pursuant to Section 9 of this Agreement, the Restricted Period shall be
extended by any and all periods during which the Executive shall be found by a
court to have been in violation of any of the covenants contained in Sections
7(a) or 7(b) hereof.
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Section 10. Representations and Warranties of the Executive. The Executive
represents and warrants to the Company as follows:
(a) This Agreement, upon execution and delivery by the Executive, will be
duly executed and delivered by the Executive and (assuming due execution and
delivery hereof by the Company) will be the valid and binding obligation of the
Executive enforceable against the Executive in accordance with its terms.
(b) Neither the execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby nor the performance of this Agreement in
accordance with its terms and conditions by the Executive will (i) require the
approval or consent of any governmental body or of any other person or (ii)
conflict with or result in any breach or violation of, or constitute (or with
notice or lapse of time or both would constitute) a default under, any
agreement, instrument, judgment, decree, order, statute, rule, permit or
governmental regulation applicable to the Executive. Without limiting the
generality of the foregoing, the Executive is not a party to any
non-competition, non-solicitation, no-hire or similar agreement that restricts
in any way the Executive's ability to engage in any business or to solicit or
hire the employees of any person.
The representations and warranties of the Executive contained in this
Section 11 shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
Section 11. Successors and Assigns; No Third-Party Beneficiaries. This
Agreement shall inure to the benefit of, and be binding upon, the successors and
assigns of each of the parties, including, but not limited to, the Executive's
heirs and the personal representatives of the Executive's estate; provided,
however, that neither party shall assign or delegate any of the obligations
created under this Agreement without the prior written consent of the other
party. Notwithstanding the foregoing, the Company shall have the unrestricted
right to assign this Agreement and to delegate all or any part of its
obligations hereunder to any of its subsidiaries or affiliates, but in such
event such assignee shall expressly assume all obligations of the Company
hereunder, and the Company shall remain fully liable for the performance of all
of such obligations in the manner prescribed in this Agreement. Nothing in this
Agreement shall confer upon any person or entity not a party to this Agreement,
or the legal representatives of such person or entity, any rights or remedies of
any nature or kind whatsoever under or by reason of this Agreement.
Section 12. Waiver and Amendments. Any waiver, alteration, amendment or
modification of any of the terms of this Agreement shall be valid only if made
in writing and signed by the parties hereto; provided, however, that any such
waiver, alteration, amendment or modification is consented to on the Company's
behalf by the Member. No waiver by either of the parties hereto of its rights
hereunder shall be deemed to constitute a waiver with respect to any subsequent
occurrences or transactions hereunder unless such waiver specifically states
that it is to be construed as a continuing waiver.
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Section 13. Severability and Governing Law. The Executive acknowledges and
agrees that the covenants set forth in Sections 7 and 8 hereof are reasonable
and valid in all respects. If any of such covenants or such other provisions of
this Agreement are found to be invalid or unenforceable by a final determination
of a court of competent jurisdiction (a) the remaining terms and provisions
hereof shall be unimpaired and (b) the invalid or unenforceable term or
provision shall be deemed replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 14. Notices.
(a) All communications under this Agreement shall be in writing and shall
be delivered by hand or mailed by overnight courier or by registered or
certified mail, postage prepaid:
(i) if to the Executive, at 0000 000xx Xxx XX Xxxxxxx, XX, 00000, with
a copy to Xxxxxxxx Xxxxxxxxxxx at Xxxxxxxxxx & Xxxxxxxxxx, X.X., 000 Xxxxxx
Xxx., Xxxxx 000, Xxxxxxx, XX 00000, or at such other address as the
Executive may have furnished the Company in writing,
(ii) if to the Company, at 00000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX
00000, marked for the attention of the Member, or at such other address as
it may have furnished in writing to the Executive, with copy to Xxxxx X.
Xxxxxxxxx, Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX
00000.
(b) Any notice so addressed shall be deemed to be given: if delivered
by hand, on the date of such delivery; if mailed by courier, on the first
business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of
such mailing.
Section 15. Section Headings. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall
not be deemed to constitute a part thereof, or affect the meaning or
interpretation of this Agreement or of any term or provision hereof.
Section 16. Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties hereto regarding the employment
of the Executive. This Agreement supersedes all prior negotiations,
discussions, correspondence, communications, understandings and agreements
between the parties relating to the subject matter of this Agreement.
Section 17. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of
which together shall be considered one and the same instrument.
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
WizKids, LLC
By: ________________________
Name:
Title:
By: _________________________
Xxxxxx Xxxxxxx
TOPPS COMPANY, INC., solely with
respect to Sections 3(d) and 6(f)
of the Agreement.
By: ____________________________
Name:
Title:
12
EXHIBIT A
FORM OF ESCROW AGREEMENT
SCHEDULE A
DESCRIPTION OF MYRIAD BUSINESS ACTIVITIES
Myriad provides telephone based entertainment, both digital and analog, and
is an interactive marketing services agency. Myriad is not currently providing
any services to any of Topps' competitors, and will not do so in the future.
SCHEDULE B
BUSINESS OPPORTUNITIES
NOT ASSIGNED TO THE COMPANY
Executive has an agreement with Dreamworks to serve as Executive Producer
to a film project, tentatively titled "Crimson Skies." This will not be assigned
to the Company.
Executive owns or has owned Bleep Xxxxx XXX and Spin Pin LLC. The projects
owned by these entities are not assigned to Company.
Executive holds a controlling interest in a game store in Redmond,
Washington. This interest will not be assigned to the Company.
Executive owns a corporate entity called 2B Enterprises, LLC which is
currently dormant. This will not be assigned to the Company.
