TATUM SERVICES AGREEMENT
Exhibit 10.1
XXXXX SERVICES AGREEMENT
This XXXXX SERVICES AGREEMENT (this “Agreement”), entered into as of the November 22, 2022, is by and between RANDSTAD PROFESSIONALS US, LLC d/b/a Xxxxx, a Delaware limited liability company, with offices at 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 (“Xxxxx”), and Funko, LLC, with offices at 0000 Xxxxxxx Xxx, Xxxxxxx, XX 00000 (the “Company”). A “Party” shall mean either Xxxxx or the Company, as the case may be; the “Parties” shall mean Xxxxx and the Company, collectively.
WHEREAS, the Company desires to engage Xxxxx to perform certain outsourced interim services; and, Xxxxx is willing to provide the services of its personnel to perform such tasks subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, Xxxxx and the Company agree as follows:
1. Services. The services (the “Services”) and fees will be more particularly described on the template Schedule attached hereto and will be provided by the individual professional (the “Xxxxx Professional”) identified on such Schedule. Schedules for additional Xxxxx Professionals may be added from time to time upon the mutual written agreement of the Parties. In addition, upon the request of the Company and the execution of an additional Schedule to this Agreement, Xxxxx will provide search Services to the Company, all as more particularly described on such Schedule.
2. Engagement. The Xxxxx Professional will be engaged by Xxxxx and Xxxxx will be solely responsible for determining the conditions, terms and payment of compensation and benefits for the Xxxxx Professional. The Company will be solely responsible for: establishing and approving appropriate work locations for the Xxxxx Professional at the Company’s site or other remote locations; providing the Xxxxx Professional day-to-day guidance, supervision, direction, assistance; and providing the Xxxxx Professional with all information necessary for the successful and timely completion of the Services. Xxxxx will have no oversight, control, or authority over the Xxxxx Professional with respect to the Services or work locations. The Company acknowledges that it is solely responsible for the sufficiency of the Services for its purposes and any work product required of the Xxxxx Professional. The Company will designate a management-level individual to be responsible for overseeing the Services, and the Xxxxx Professional will report directly to the Company manager with respect to the provision of the Services. Unless the Xxxxx Professional is acting as an executive officer of the Company and is authorized by the Company to make such decision, the Company will not permit or require the Xxxxx Professional to be the ultimate decision making authority for any material decision, government reporting or public filing relating to the Company’s business, including, without limitation, any proposed merger, acquisition, recapitalization, financial strategy or restructuring.
3. Fees and Expenses. The Company will pay Xxxxx the fees set forth on the applicable Schedule. In addition, the Company will reimburse Xxxxx directly for all travel and out-of-pocket expenses incurred in connection with this Agreement (including any Schedules). Xxxxx shall invoice the Company for, and the Company shall pay to Xxxxx for further remittance to the appropriate taxing authorities, any sales or use taxes applicable to the Services. If the Company claims that it is exempt from any such sales or use taxes, then the Company must provide Xxxxx with an exemption certificate satisfactory to Xxxxx.
4. Payment Terms. Payments to Xxxxx should be made within 10 days of receipt of invoice by electronic transfer in accordance with the instructions set forth below or such alternative instructions as provided by Xxxxx from time to time. Xxxxx will bill for Services weekly in arrears. In the event Company voluntarily files a Chapter 11 bankruptcy petition (or becomes subject to an involuntary bankruptcy petition), it shall, as soon as practicable thereafter, seek entry of an Order from the U.S. Bankruptcy Court having jurisdiction over Company’s bankruptcy case(s), in form and substance acceptable to Xxxxx, (a) assuming this Agreement, (b) authorizing payment to Xxxxx as part of any employee wage motion filed by or on behalf of Company, or (c) naming Xxxxx as a ‘critical vendor’ and authorizing the payment of Xxxxx’x pre-petition invoices. Company acknowledges that its failure to timely procure either such Order shall automatically serve as grounds for Xxxxx’x immediate rejection/termination of this Agreement. Company acknowledges that Xxxxx is relying on this provision as an inducement to enter into this Agreement and provide further services to Company from and after the date hereof. In lieu of terminating this Agreement, Xxxxx may suspend the provision of any Services if amounts owed are not paid in accordance with the terms of this Agreement.
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Bank Name and Address: [***]
Beneficiary: Xxxxx
Beneficiary Account Number: [***]
ABA Transit/Routing Number: [***]
Please reference the Company’s name in the body of the payment.
5. Effective Date and Termination. This Agreement will be effective as of the earlier of (i) the date Xxxxx begins providing Services to the Company, or (ii) the date of the last signature to this Agreement as indicated on the signature page. In the event that a Party commits a breach of this Agreement (including any Schedule) and fails to cure the same within 10 days following delivery by the non-breaching Party of written notice specifying the nature of the breach, the non-breaching Party may terminate this Agreement or the applicable Schedule effective upon written notice of such termination. The termination rights set forth in this Section are in addition to and not in lieu of the termination rights set forth in each of the Schedules.
6. Conversion and Professional Placement Fees.
(a) Conversion Fee. If, at any time during the time frame in which a Xxxxx Professional is providing Services to the Company and for a period of 12-months thereafter, other than in connection with this Agreement or another Xxxxx agreement, the Company or any of its subsidiaries or affiliates employs such Xxxxx Professional, or engages such Xxxxx Professional as an independent contractor, the Company will pay Xxxxx a placement fee in an amount equal to 35% of the Annualized Compensation (as defined below). “Annualized Compensation” is defined as salary, incentive, signing and other bonuses, and any other compensation that may be earned by the Xxxxx professional during the first 12 months of service with the Company (or its subsidiary or affiliate) regardless of when or if such compensation is actually paid.
The placement fee shall be due upon the commencement of the Xxxxx Professional’s employment or engagement with the Company (or its subsidiary or affiliate).
(b) Professional Placement Fee. Separate from the interim Services provided by the Xxxxx Professional, if requested by the Company, Xxxxx can provide direct hire services by developing an applicant flow through its sources and refer qualified candidates for various financial, accounting, information technology and similar direct hire positions to the Company on an as needed basis (the “Direct Hire Candidate”).
In consideration for Xxxxx providing Direct Hire Candidates, if the Company hires a Direct Hire Candidate referred by Xxxxx within one year of such referral, regardless of whether this Agreement has terminated, the Company agrees to pay Xxxxx a one-time professional service fee in an amount equal to 35% of the candidate’s Annualized Compensation, as defined in 6(a). A candidate is considered referred by Xxxxx if Xxxxx submits the candidate’s resume or curriculum vitae (in paper, electronic, or facsimile format) to the Company, unless the Company can show that it was already in possession of the candidate’s resume or curriculum vitae before the referral by Xxxxx (“Prior Referral”). For avoidance of confusion, the Company shall notify Xxxxx of a Prior Referral with supporting documentation within three (3) business days of the presentment of the Direct Hire Candidate.
(c) Guarantee. Xxxxx provides a Direct Hire Candidate Guarantee on the following terms: (i) the guarantee is conditioned upon the Company’s timely payment of the fees due to Xxxxx; (ii) the guarantee applies only if Xxxxx is notified in writing within 30 days of the Direct Hire Candidate’s start date that the Direct Hire Candidate has voluntarily resigned or was terminated for cause; and (iii) for a period of six (6) months from the date Xxxxx is notified of a Direct Hire Candidate’s resignation/termination for cause, Xxxxx will use commercially reasonable efforts to find a substantially similar replacement for that Direct Hire Candidate (i.e., similar qualifications, title/position and salary range) without further charge to the Company.
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The guarantee provided in this Section shall not apply if the Company: (iv) failed to timely pay the fees due pursuant to Section 4 of this Agreement; (v) seeks a replacement which is not substantially similar to the Direct Hire Candidate position filled, as defined in Section 6(c)(iii); or (vi) terminated the Direct Hire Candidate’s engagement for a reason other than those listed in Section 6(c)(ii). For, example, the guarantee would not apply if the termination was the result of the Company’s reorganization (e.g., change in the executive reporting structure, corporate organization or executive leadership), position elimination, reduction in force, acquisition/sale, or a material change in the Company’s support needs, including changes in the anticipated job scope or responsibility of the Direct Hire Candidate.
7. Warranties and Disclaimers. XXXXX DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS OF USE OR PURPOSE. WITHOUT LIMITING THE FOREGOING, XXXXX MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE XXXXX PROFESSIONAL OR THE SERVICES PROVIDED HEREUNDER, AND XXXXX WILL NOT BE RESPONSIBLE FOR ANY ACTION TAKEN BY THE COMPANY IN FOLLOWING OR DECLINING TO FOLLOW ANY OF THE XXXXX PROFESSIONAL’S ADVICE OR RECOMMENDATIONS. THE SERVICES PROVIDED BY XXXXX AND THE XXXXX PROFESSIONAL HEREUNDER ARE FOR THE SOLE BENEFIT OF THE COMPANY AND NOT ANY UNNAMED THIRD PARTIES. THE SERVICES WILL NOT CONSTITUTE AN AUDIT, REVIEW, OPINION, OR COMPILATION, OR ANY OTHER TYPE OF FINANCIAL STATEMENT REPORTING OR ATTESTATION ENGAGEMENT THAT IS SUBJECT TO THE RULES OF THE AICPA OR OTHER SIMILAR STATE OR NATIONAL PROFESSIONAL BODIES OR LAWS AND WILL NOT RESULT IN AN OPINION OR ANY FORM OF ASSURANCE ON INTERNAL CONTROLS.
8. Limitation of Liability; Indemnity.
(a) XXXXX’X LIABILITY IN ANY AND ALL CATEGORIES AND FOR ANY AND ALL CAUSES ARISING UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, WILL, IN THE AGGREGATE, NOT EXCEED THE ACTUAL FEES PAID BY THE COMPANY TO XXXXX OVER THE PREVIOUS TWO MONTHS OF THIS AGREEMENT WITH RESPECT TO THE XXXXX PROFESSIONAL FROM WHOM THE LIABILITY ARISES. IN NO EVENT XXXX XXXXX BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, INTERRUPTION OR LOSS OF BUSINESS, PROFIT OR GOODWILL. AS A CONDITION FOR RECOVERY OF ANY LIABILITY, THE COMPANY MUST ASSERT ANY CLAIM AGAINST XXXXX WITHIN THREE MONTHS AFTER DISCOVERY OR 60 DAYS AFTER THE TERMINATION OR EXPIRATION OF THE APPLICABLE SCHEDULE UNDER WHICH THE LIABILITY ARISES, WHICHEVER IS EARLIER.
(b) THE COMPANY AGREES TO INDEMNIFY XXXXX AND THE XXXXX PROFESSIONAL TO THE FULL EXTENT PERMITTED BY LAW FOR ANY LOSSES, COSTS, DAMAGES, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), AS THEY ARE INCURRED, IN CONNECTION WITH ANY CAUSE OF ACTION, SUIT, OR OTHER PROCEEDING ARISING IN CONNECTION WITH THE XXXXX PROFESSIONAL’S SERVICES TO THE COMPANY.
9. Insurance.
(a) Xxxxx. At all times during the term of this Agreement, Xxxxx shall maintain at its expense and benefit (a) Workers’ Compensation insurance which provides coverage for all employees of Xxxxx, including Xxxxx Professionals, as required by applicable law, and (b) comprehensive general liability insurance with a policy limit of not less than $1,000,000 per occurrence and $1,000,000 in the aggregate.
(b) Company. If Company is a public company and requires a Xxxxx Professional to serve as a Company officer or director, even on an interim basis, then Company shall maintain directors and officers insurance (“D&O Insurance”) covering the Xxxxx Professional in an amount reasonably acceptable to the Xxxxx Professional at no additional cost to Xxxxx or the Xxxxx Professional. If the Company is private and requires a Xxxxx Professional to serve as a Company officer or director, even on an interim basis, it will provide the Xxxxx Professional with substantially similar D&O Insurance as is provided to Company’s officers and directors, if any.
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To the extent D&O Insurance is required by the above terms, Company will maintain such insurance at all times while this Agreement remains in effect. Furthermore, the Company will maintain such insurance coverage with respect to occurrences arising during the term of this Agreement for at least five years following the termination or expiration of the applicable Schedule or will purchase a directors’ and officers’ extended reporting period or “tail” policy to cover the Xxxxx Professional for such five year time period. The Company’s D&O Insurance must be primary and non-contributory. Upon the execution of this Agreement and at any other time requested by Xxxxx, the Company will provide Xxxxx a certificate of insurance evidencing that the Company is in compliance with the requirements of this Section with a note in the Description of Operations section of the certificate indicating that the coverage is extended to the Xxxxx Professional.
10. Company Circumstances. In the case that the Company acknowledges to Xxxxx and the Xxxxx Professionals that, as of the date of this Agreement, it is — and has been for a considerable period of time one or more of the following: in dire financial condition, suffering extensive losses, operating with negative EBITDA, or experiencing insufficient cash-flow; and as a result, Company has been unable to obtain further credit or investment and may well need to consider reorganization or liquidation in bankruptcy; the Xxxxx Professionals will endeavor to assist the Company in finding alternatives to bankruptcy. Xxxxx and the Xxxxx Professionals offer no assurances that the Company can otherwise be restructured or that the Company’s distressed condition can be reversed.
Change in Company Circumstances. During the term of this Agreement, if the Company’s financial condition or liquidity significantly deteriorates or the Company enters into discussions with restructuring or bankruptcy advisors, Xxxxx and the Company will review the current fee structure and payment terms under this Agreement (including any Schedule) and agree on appropriate modifications. For instance, Xxxxx may switch to an hourly rate if Xxxxx Professionals are required to work extended hours or a premium may be imposed for hours worked in excess of eight (8) hours. In addition, Xxxxx and the Company will discuss the need for additional Xxxxx professionals with specialized skills in working with companies undergoing significant debt and equity restructuring, and as needed, Xxxxx professionals with experience helping companies seeking or operating under bankruptcy protection. The agreed upon additional professionals will be engaged under terms and fees commensurate to the expertise and services to be provided. In the event that Xxxxx and the Company cannot agree on appropriate modifications to this Agreement (including any Schedule) or the need for additional Xxxxx professionals, Xxxxx may immediately terminate this Agreement or any Schedule upon notice to the Company.
11. Sanctions. Company represents that any provision of services by Company and any payment by Company to Xxxxx shall not result in any breach of any trade, economic or financial sanctions laws or regulations.
12. Non-Solicitation. Neither Party shall solicit or hire any employee of the other Party directly involved in the performance of this Agreement or that either party became aware of through the performance of this Agreement during the term of this Agreement and for a period of six (6) months thereafter; provided, however, that this provision shall not restrict in any way either Party’s right to solicit or recruit generally in the media or on the internet and shall not prohibit either Party, nor any subsidiary, parent or affiliated entity, from hiring an employee of the other Party who answers any advertisement or who otherwise voluntarily applies for hire without having been personally solicited or recruited.
13. Governing Law and Witness Fees.
(a) This Agreement will be governed by and construed in accordance with the laws of Georgia, without regard to conflicts of laws provisions.
(b) This Agreement and the rights and obligations of the Parties hereunder shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Agreement shall be governed by, the laws of the state of Georgia, without giving effect to provisions thereof regarding conflict of laws. All claims arising out of or related to this Agreement must be litigated exclusively in the Superior or State Courts of Xxxx County, Georgia, provided, however, that any such claim or cause of action may be brought in, or removed to, the United States District Court for the Northern District of Georgia, Atlanta Division, to the extent that such court would have jurisdiction over the subject matter of such action. Company and Xxxxx waive any objection based on personal jurisdiction and forum and waive any objection to venue of any action instituted hereunder to the extent that an action is brought in the courts identified above. Each Party agrees that a final judgment in any such action shall be conclusive and may be enforced in any other jurisdiction in any manner provided by law.
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(c) In the event any employee of Xxxxx (including, without limitation, any Xxxxx Professional) is requested or authorized by the Company or is required by government regulation, subpoena, or other legal process to produce documents or appear as witnesses in connection with any action, suit or other proceeding initiated by a third party against the Company or by the Company against a third party, the Company will, so long as Xxxxx is not a party to the proceeding in which the information is sought, reimburse Xxxxx for its professional’s time (based on customary rates) and expenses, as well as the fees and expenses of its counsel, incurred in responding to such requests. This provision is in addition to and not in lieu of any indemnification obligations the Company may have under this Agreement.
14. Miscellaneous.
(a) This Agreement together with all Schedules constitutes the entire agreement between the Parties with regard to the subject matter hereof and supersedes any and all agreements, whether oral or written, between the Parties with respect to its subject matter. No amendment or modification to this Agreement will be valid unless in writing and signed by both Parties.
(b) If any portion of this Agreement is found to be invalid or unenforceable, such provision will be deemed severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement, except to the extent that the severed provision deprives either Party of a substantial portion of its bargain.
(c) Neither Party will be deemed to have waived any rights or remedies accruing under this Agreement unless such waiver is in writing and signed by the Party electing to waive the right or remedy. The waiver by any Party of a breach or violation of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach of such provision or any other provision of this Agreement.
(d) Neither Party will be liable for any delay or failure to perform under this Agreement (other than with respect to payment obligations) to the extent such delay or failure is a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause beyond such Party’s reasonable control.
(e) The Company may not assign its rights or obligations under this Agreement without the express written consent of Xxxxx. Xxxxx shall be entitled (without the consent of the Company) to transfer this Agreement and/or assign its obligations, rights and benefits in this Agreement to any Xxxxx or Randstad affiliate or to a third party.
(f) Nothing in this Agreement will confer any rights upon any person or entity other than the parties hereto and their respective successors and permitted assigns and the Xxxxx Professionals.
(g) The expiration or termination of this Agreement or any Schedule will not destroy or diminish the binding force and effect of any of the provisions of this Agreement or any Schedule that expressly, or by reasonable implication, come into or continue in effect on or after such expiration or termination, including, without limitation, provisions relating to payment of fees and expenses (including witness fees and expenses), hiring the Xxxxx Professionals, governing law, venue, limitation of liability and indemnity.
(h) The Company agrees to reimburse Xxxxx for all costs and expenses (including, without limitation, reasonable attorneys’ fees, court costs and arbitration fees) incurred by Xxxxx in enforcing collection of any monies due under this Agreement.
(i) The Company agrees to allow Xxxxx to use the Company’s logo and name on Xxxxx’x website and other marketing materials for the sole purpose of identifying the Company as a client of Xxxxx. Xxxxx will not use the Company’s logo or name in any press release or general circulation advertisement without the Company’s prior written consent.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the dates set forth below.
| RANDSTAD PROFESSIONALS US, LLC d/b/a XXXXX: | Funko, LLC: | |||||||
| By: | /s/ Xxxx Xxxxx |
By: | /s/ Xxxxx Xxxxxxxx | |||||
| Name: | Xxxx Xxxxx |
Name: | Xxxxx Xxxxxxxx | |||||
| Title: | Managing Partner |
Title: | SVP, People & Culture | |||||
| Date: | Dec 1, 2022 |
Date: | Nov 30, 2022 | |||||
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Template Schedule to Xxxxx Services Agreement
This Schedule is entered into in connection with that certain Xxxxx Services Agreement, dated Month Day, Year (the “Agreement”), by and between Randstad Professionals US, LLC d/b/a Xxxxx (“Xxxxx”) and Company’s Legal Name (the “Company”) and will be governed by the terms and conditions of the Agreement.
1. Xxxxx Professional Name: Click here to enter text.
2. Service Description and Position Title: Title of Xxxxx Professional and Description of Services
3. Company Supervisor: Title of Company Supervisor
4. Start Date: Click here to enter text.
5. Minimum Term: Enter “N/A” if not applicable
6. Fees: Except as otherwise set forth below, the Company will pay to Xxxxx a [enter applicable hourly rate or flat fee] for the Xxxxx Professional. If Company is paying a weekly fee, the fees will be prorated for the first and final fee period based on the number of days in such period. The weekly fee includes allowance for holidays, personal days, and vacation for the Xxxxx Professional consistent with the Company’s policy as it applies to similarly situated employees of the Company.
Overtime is defined by the requirements of local, state and federal law (e.g., hours worked by a non-exempt Xxxxx Professional is excess of eight hours in a day or 40 hours in a week). Overtime will be billed at one and a half times the applicable (regular) hourly bill rate set forth above. However, if the Xxxxx Professional is entitled to “double time” for such overtime hours under applicable local, state or federal law, such overtime will be billed at two times the applicable (regular) hourly bill rate set forth above.
As a condition to providing the Services, Xxxxx requires Company to pay a security deposit in the amount equal to $XX (the “Deposit”), which is due upon execution of this Schedule. If the Company breaches the Agreement (including the terms of any Schedule or any other agreement between the Company and Xxxxx or any Xxxxx Professional) and fails to cure such breach as provided for herein (or therein), Xxxxx will be entitled to apply the Deposit to its or the Xxxxx Professional’s damages resulting from such breach. In the event the Deposit falls below the amount required to cover payment obligations or other resulting damages, the Company will pay Xxxxx an additional amount equal to the shortfall. Upon the expiration or termination of the Agreement, Xxxxx will first apply the Deposit to any unfulfilled payment obligations of the Company to Xxxxx or any Xxxxx Professional (or to any damages owed to Xxxxx or any Xxxxx Professional), and the remaining balance of the Deposit, if any, shall be returned to the Company.
In the event of an actual conflict between the terms and conditions of this Schedule and the Agreement, the terms and conditions of the Agreement will control.
| Randstad Professionals US, LLC d/b/a Xxxxx: | COMPANY’S LEGAL NAME: | |||||||
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By: | TEMPLATE ONLY-DO NOT SIGN | |||||
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Schedule to Xxxxx Services Agreement
This Schedule is entered into in connection with that certain Xxxxx Services Agreement, dated November 22, 2022 (the “Agreement”), by and between Randstad Professionals US, LLC d/b/a Xxxxx (“Xxxxx”) and Funko, LLC (the “Company”) and will be governed by the terms and conditions of the Agreement.
1. Xxxxx Professional Name: Xxxxx Xxxxxxx
2. Service Description and Position Title: Interim Chief Financial Officer (CFO)
Driving/advancing the corporate agenda and strategy of company, fully serve the shareholders, board, customers and team, fix the operational issues, align capital and resources to the long term strategy, and rebuild the investor communication, develop infrastructure and organizational communication between operating units, address and resolve any material weaknesses including emphasis on the ERP system, review opportunity to develop internal audit org, develop trust and rapport with effective communication with the audit partner.
3. Company Supervisor: CEO
4. Start Date: December 5, 2022
5. Minimum Term: 4 Months
6. Fees: Except as otherwise set forth below, the Company will pay to Xxxxx a weekly flat fee of $38,000 for the Xxxxx Professional. If Company is paying a weekly fee, the fees will be prorated for the first and final fee period based on the number of days in such period. The weekly fee includes allowance for holidays, personal days, and vacation for the Xxxxx Professional consistent with the Company’s policy as it applies to similarly situated employees of the Company.
As a condition to providing the Services, Xxxxx requires Company to pay a security deposit in the amount equal to $76,000 (the “Deposit”), which is due upon execution of this Schedule. If the Company breaches the Agreement (including the terms of any Schedule or any other agreement between the Company and Xxxxx or any Xxxxx Professional) and fails to cure such breach as provided for herein (or therein), Xxxxx will be entitled to apply the Deposit to its or the Xxxxx Professional’s damages resulting from such breach. In the event the Deposit falls below the amount required to cover payment obligations or other resulting damages, the Company will pay Xxxxx an additional amount equal to the shortfall. Upon the expiration or termination of the Agreement, Xxxxx will first apply the Deposit to any unfulfilled payment obligations of the Company to Xxxxx or any Xxxxx Professional (or to any damages owed to Xxxxx or any Xxxxx Professional), and the remaining balance of the Deposit, if any, shall be returned to the Company.
In the event of an actual conflict between the terms and conditions of this Schedule and the Agreement, the terms and conditions of the Agreement will control.
| Randstad Professionals US, LLC d/b/a Xxxxx: | Funko, LLC | |||||||
| By: | /s/ Xxxx Xxxxx |
By: | /s/ Xxxxx Xxxxxxxx | |||||
| Name: | Xxxx Xxxxx |
Name: | Xxxxx Xxxxxxxx | |||||
| Title: | Managing Partner |
Title: | SVP, People & Culture | |||||
| Date: | Dec 1, 2022 |
Date: | Nov 30, 2022 | |||||
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