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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 2000 by and between JAKKS
Pacific, Inc., a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxx
("Executive")
W I T N E S S E T H :
WHEREAS, the Company desires to employ Executive on the terms and subject
to the conditions hereinafter set forth, and Executive desires so to be
employed;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the Company and Executive agree as follows:
1. Offices and Duties.
(a) The Company hereby employs Executive during the Term (as
hereinafter defined) to serve as the Company's Executive Vice President and
Chief Financial Officer. As such, Executive shall have principal responsibility
and authority (subject to the provisions of Section 1(c)) to administer all
financial and accounting functions for the Company and its subsidiaries,
including without limitation with respect to:
(i) financial recordkeeping and reporting;
(ii) interfacing with the Company's independent auditors;
(iii) preparation and interpretation of budgets, projections
and other financial analyses;
(iv) tax reporting and compliance;
(v) cash management; and
(vi) reporting to and advising the Company's Board of
Directors and executive management on financial,
accounting, tax and compensation matters.
Within the scope of such functions and duties, Executive shall perform such
administrative and supervisory services on behalf of the Company as the
Company's Board of Directors or a Superior Officer (as hereinafter defined) may
from time to time reasonably direct. The Company's Board of Directors or a
Superior Officer may appoint or designate Executive to serve in such other
corporate offices of the Company or a Subsidiary (as hereinafter defined) as
they may from time to time deem necessary, proper or advisable; provided that,
without his consent (which shall not be unreasonably withheld), Executive shall
not be required to occupy or serve in any office which (i) is
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not reasonably related to his functions and duties as Chief Financial Officer
and (ii) involves other substantial duties or liabilities.
(b) Executive shall devote substantially all of his business time
and attention to the business and affairs of the Company.
(c) Executive shall at all times be subject to the direction and
control of the Company's Board of Directors and the Superior Officers and
observe and comply with such rules, regulations, policies and practices as the
Company's Board of Directors or the Superior Officers may from time to time
establish.
(d) Executive hereby accepts such employment and agrees that
throughout the Term he shall faithfully, diligently and to the best of his
ability, in furtherance of the business of the Company, perform the duties
assigned to him or incidental to the offices assumed by him pursuant to this
Section.
2. Term. The employment of Executive hereunder shall commence on the date
hereof and continue for a term ending on December 31, 2003, subject to earlier
termination upon the terms and conditions provided elsewhere herein (the
"Term"). As used herein, "Termination Date" means the last day of the Term.
3. Compensation.
(a) As compensation for his services hereunder, the Company shall
pay to Executive during the Term:
(i) a base salary for 2000 at the rate of $225,000 per annum
and for each subsequent year during the Term at a rate
to be determined by the Company's Board of Directors (or
Compensation Committee) that is not less than the rate
for the immediately preceding year (the "Base Salary"),
such Base Salary to be paid in substantially equal
installments no less often than twice monthly;
(ii) a bonus (the "Bonus") in respect of each Bonus Period
(as hereinafter defined), payable within 90 days after
the end of such Bonus Period, in an amount equal to the
greater of (A) $75,000 and (B) the product of (I) the
lesser of (1) the Bonus Factor (as hereinafter defined)
for such Bonus Period) and (2) 1 and (II) the Base
Salary for such Bonus Period; and
(iii) such additional incentive or bonus compensation as the
Company's Board of Directors may from time to time
determine.
(b) For the purposes of Section 3(a)(ii):
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(i) A "Bonus Period" is a fiscal year of the Company ending
during the Term or, if the Term ends on a day other than
the last day of a fiscal year of the Company, the
portion of such fiscal year ending on the last day of
the last full month ending during the Term.
(ii) The "Bonus Factor" for any Bonus Period is (A) if the
Pre-Tax Income (as hereinafter defined) for such Bonus
Period exceeds the Pre-Tax Income for the immediately
preceding Bonus Period, the quotient obtained by
dividing the (I) amount of such excess by (II) the
Pre-Tax Income for the immediately preceding Bonus
Period, or (B) if the Pre-Tax Income for such Bonus
Period is equal to or less than the Pre-Tax Income for
the immediately preceding Bonus Period, 0.
(iii) The "Pre-Tax Income" for any Bonus Period is the
Company's consolidated income before any deduction or
reserve for income taxes and without adjustment for any
extraordinary item accrued in such Bonus Period,
multiplied, if the duration of such Bonus Period is not
12 calendar months, by a fraction the numerator of which
is 365 and the denominator of which is the number of
days included in such Bonus Period.
The determination of the Pre-Tax Income, the Bonus Factor and the Bonus for any
Bonus Period, including all estimates, allocations or prorations required to be
made in connection therewith, shall be made by the Company's regularly-engaged
independent certified public accountants in accordance with generally accepted
accounting principles applied on a basis consistent with past periods, which
determination, absent manifest error, shall be conclusive and binding upon the
Company and Executive. If any adjustment that affects the determination of the
Bonus for any Bonus Period is made after the payment of the Bonus for such Bonus
Period, the Company shall promptly give written notice to Executive of any
change proposed to be made to such Bonus, setting forth in reasonable detail
therein the amount of and basis for such change. If such change involves an
increase to such Bonus, the Company shall pay such increase to Executive
concurrently with the delivery of such notice, and if such change involves a
decrease to such Bonus, Executive shall repay the amount of such decrease to the
Company promptly, and in any event, within 60 days after receipt of such notice.
(c) If the Company's stockholders approve the 2000 amendment to the
Company's Amended and Restated 1995 Stock Option Plan, as amended (the "Plan"),
at the 2000 annual meeting of the Company's stockholders (the "Annual Meeting"),
so that such amendment shall thereupon become effective and the number of shares
of the Company's common stock, par value $.001 per share (the "Common Stock"),
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subject to the Plan shall be increased in accordance with such amendment, the
Company shall grant to Employee on the date of the Annual Meeting an option
under the Plan to purchase 96,000 shares of Common Stock, which option shall
incorporate the terms and conditions and be substantially in the form of Exhibit
A hereto. If the 2000 Amendment to the Plan does not become effective on or
before June 30, 2000, because the Company's stockholders fail to approve such
amendment at the Annual Meeting or otherwise, the Company shall grant to
Executive on June 30, 2000 an option having the same rights and subject to the
same terms and conditions as would appertain to an option granted under the Plan
described in the preceding sentence (other than any rights, terms or conditions
which could not apply to such option under applicable law).
(d) In addition to his Base Salary and other compensation provided
herein, Executive shall be entitled to participate, to the extent he is eligible
under the terms and conditions thereof, in any stock, stock option or other
equity participation plan and any profit-sharing, pension, retirement,
insurance, medical service or other employee benefit plan generally available to
the executive officers of the Company, and to receive any other benefits or
perquisites generally available to the executive officers of the Company
pursuant to any employment policy or practice, which may be in effect from time
to time during the Term. Except as otherwise expressly provided herein, the
Company shall be under no obligation hereunder to institute or to continue any
such employee benefit plan or employment policy or practice.
(e) During the Term, Executive shall not be entitled to additional
compensation for serving as a director or officer of the Company or any
Subsidiary (other than Executive Vice President or Chief Financial Officer of
the Company), if such service is reasonably related to his duties and functions
as the Company's Chief Financial Officer and does not involve any other
substantial duties or liabilities, except that throughout any period or periods
during which he shall serve as a director of the Company or such Subsidiary,
Executive shall be entitled to directors' fees in accordance with the policies
and practices of the Company or such Subsidiary then in effect.
4. Expense Allowance.
(a) The Company shall pay directly, or advance funds to Executive or
reimburse Executive for, all expenses reasonably incurred by him in connection
with the performance of his duties hereunder and the business of the Company,
upon the submission to the Company of itemized expense reports, receipts or
vouchers in accordance with its then customary policies and practices.
(b) The Company shall provide to Executive a suitable automobile or
other vehicle for his exclusive use and shall pay the entire cost thereof
(including without limitation purchase price or lease payments, insurance
premiums, repair charges, and maintenance and operating expenses), other than
fuel charges, or shall pay to executive a monthly automobile allowance in the
amount of $600.
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5. Location. Except for routine travel and temporary accommodation
reasonably required to perform his services hereunder, Executive shall not be
required to perform his services hereunder at any location other than the
Company's principal executive office.
6. Office. The Company shall provide Executive with suitable office space,
furnishings and equipment, secretarial and clerical services and such other
facilities and office support as are reasonably necessary for the performance of
his services hereunder.
7. Vacation. Executive shall be entitled to four weeks paid vacation
during each year of his employment hereunder, such vacation to be taken at such
time or times as shall be agreed upon by Executive and the Company. Vacation
time shall be cumulative from year to year, except that Executive shall not be
entitled to take more than six weeks vacation during any consecutive 12-month
period during the Term.
8. Key-Man Insurance. The Company shall have the right from time to time
to purchase, increase, modify or terminate insurance policies on the life of
Executive for the benefit of the Company in such amounts as the Company may
determine in its sole discretion. In connection therewith, Executive shall, at
such time or times and at such place or places as the Company may reasonably
direct, submit himself to such physical examinations and execute and deliver
such documents as the Company may deem necessary or appropriate.
9. Trade Secrets. Executive shall hold all Confidential Information (as
hereinafter defined) in a fiduciary capacity for the benefit of the Company, and
he shall not, at any time hereafter, without the prior written consent of the
Company, use or disclose to any Person, other than the Company or its designees,
any such Confidential Information, except:
(a) to the extent reasonably required for Executive to perform his
functions and duties hereunder;
(b) to the extent disclosure is required by an order, subpoena,
demand or other legal process; provided that Executive promptly gives notice
thereof to the Company so that the Company may oppose such disclosure or seek a
protective order or other confidential treatment of such Confidential
Information;
(c) to the extent any Confidential Information becomes generally
available in the public domain (other than through the disclosure of such
Confidential Information by Executive in violation of the provisions of this
Section or any other confidentiality obligation of Executive in favor of the
Company or a Subsidiary); and
(d) that any Confidential Information that was known to Executive
prior to his initial employment by the Company may be used by or disclosed by
Executive after the Termination Date.
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On the Termination Date or upon request by the Company at any time prior
thereto, Executive shall deliver to the Company any manuals, records, files,
lists and other documentation (regardless of form) embodying or containing
Confidential Information, without retaining any copy thereof, except to the
extent such Confidential Information may be retained for use or disclosure by
Executive pursuant to clauses (a) through (d) of the preceding sentence.
10. Intellectual Property. Subject to Sections 2870 and 2871 of the
California Labor Code:
(a) Any Invention conceived, developed, created or made by
Executive, alone or with others, during the Term and applicable to the business
of the Company, whether or not patentable or registrable, shall become the sole
and exclusive property of the Company.
(b) Executive shall disclose the same promptly and completely to the
Company and shall, during the Term or thereafter, (i) execute all documents
requested by the Company for vesting in the Company the entire right, title and
interest in and to the same, (ii) execute all documents requested by the Company
for filing applications for and procuring such patents, trademarks, service
marks or copyrights as the Company, in its sole discretion, may desire to
prosecute, and (iii) give the Company all assistance it may reasonably require,
including the giving of testimony in any Proceeding (as hereinafter defined), in
other to obtain, maintain and protect the Company's right therein and thereto;
provided that the Company shall bear the entire cost and expense of such
assistance, including without limitation paying Executive reasonable
compensation for any such assistance after the Termination Date.
11. No Competition.
(a) During the Term, and unless his employment terminates pursuant
to Section 14 or by action of the Company other than pursuant to Section 13, for
a further period of two years thereafter, Executive shall not, directly or
indirectly:
(i) own, control, manage, operate, be employed by, serve as
a consultant or advisor to, or otherwise render any
service to or for, participate or invest in, or
otherwise be connected with, in any manner, any Person
that is engaged in the Restricted Business (as
hereinafter defined); provided, however, that Executive
may invest his funds in securities of a Person engaged
in the Restricted Business if the securities of such
Person are listed for trading on a registered securities
exchange or actively traded in an over-the-counter
market and Executive's holdings therein represent less
than 1% of the total number of shares or principal
amount of the securities of such Person outstanding; or
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(ii) for himself or on behalf of any other Person, employ or
engage any Person who at the time shall have been within
the preceding 12-month period an employee of the Company
or any Subsidiary or contact any supplier, customer or
employee of the Company or such Subsidiary or take any
other action for the purpose of soliciting or diverting
any supplier, customer or employee from the Company or
such Subsidiary.
(b) Executive acknowledges that the provisions of this Section, and
the period of time, geographic area and scope and type of restrictions on his
activities set forth herein, are reasonable and necessary for the protection of
the Company.
12. Termination Upon Death or Disability. Executive's employment hereunder
shall terminate immediately upon his death. In the event that Executive is
unable to perform his duties hereunder by reason of any disability or incapacity
(due to any physical or mental injury, illness or defect) for an aggregate of 90
days in any consecutive 12-month period, the Company shall have the right to
terminate Executive's employment hereunder within 60 days after the 90th day of
his disability or incapacity by giving Executive notice to such effect at least
30 days prior to the date of termination set forth in such notice, and on such
date such employment shall terminate.
13. Termination for Cause.
(a) In addition to any other rights or remedies provided by law or
in this Agreement, the Company may terminate Executive's employment under this
Agreement if:
(i) Executive is convicted of, or enters a plea of guilty or
nolo contendere (which plea is not withdrawn prior to
its approval by the court) to, a felony offense and
either Executive fails to perfect an appeal of such
conviction prior to the expiration of the maximum period
of time within which, under applicable law or rules of
court, such appeal may be perfected or, if Executive
does perfect such an appeal, his conviction of a felony
offense is sustained on appeal; or
(ii) the Company's Board of Directors determines, after due
inquiry, that Executive has:
(A) committed fraud against, or embezzled or
misappropriated funds or other assets of, the
Company or any Subsidiary;
(B) violated, or caused the Company or any Subsidiary,
or any officer, employee or other agent thereof,
or
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any other Person to violate, any material law,
regulation or ordinance, which violation has or
would reasonably be expected to have a significant
detrimental effect on the Company, or any material
rule, regulation, policy or practice established
by the Board of Directors of the Company or any
Subsidiary;
(C) on a persistent or recurring basis, (1) failed
properly to perform his duties hereunder or (2)
acted in a manner detrimental to, or adverse to
the interests of, the Company; or
(D) violated, or failed to perform or satisfy any
material covenant, condition or obligation
required to be performed or satisfied by Executive
hereunder.
(b) The Company may effect such termination for cause by giving
Executive notice to such effect, setting forth therein the Termination Date
(which may be the date such notice is given, in case such termination is based
on paragraph (i) or clause A of paragraph (ii) of Section 13(a), but which shall
otherwise be at least 20 days after the date such notice is given) and, in
reasonable detail, the factual basis for such termination, and, in such event,
such termination shall be effective on the Termination Date set forth in such
notice, unless Executive avoids such termination by curing or explaining to the
reasonable satisfaction of the Company's Board of Directors the factual basis
for termination set forth therein.
(c) In making any determination pursuant to this Section 13(a) as to
the occurrence of any act or event described in clauses (A) to (D) of paragraph
(ii) thereof (each, a "For Cause Event"), each of the following shall constitute
convincing evidence of such occurrence:
(i) if Executive is made a party to, or target of, any
Proceeding arising under or relating to any For Cause
Event, Executive's failure to defend against such
Proceeding or to answer any complaint filed against him
therein, or to deny any claim, charge, averment, or
allegation thereof asserting or based upon the
occurrence of a For Cause Event;
(ii) any judgment, award, order, decree or other adjudication
or ruling in any such Proceeding finding or based upon
the occurrence of a For Cause Event (that is not
reversed or vacated on appeal); or
(iii) any settlement or compromise of, or consent decree
issued in, any such Proceeding in which Executive
expressly admits the occurrence of a For Cause Event;
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provided that none of the foregoing shall be dispositive or create an
irrebuttable presumption of the occurrence of such For Cause Event; and provided
further that the Company's Board of Directors may rely on any other factor or
event as convincing evidence of the occurrence of a For Cause Event.
14. Termination by Executive. In addition to any other rights or remedies
provided by law or in this Agreement, Executive may terminate his employment
hereunder if:
(a) (i) the Company violates, or fails to perform or satisfy any
material covenant, condition or obligation required to be performed or satisfied
by it hereunder or, (ii) as a result of any action or failure to act by the
Company, there is a material change in the nature or scope of the duties,
obligations, rights or powers of Executive's employment, by giving the Company
notice to such effect, setting forth in reasonable detail the factual basis for
such termination, at least 20 days prior to the date of termination set forth
therein; provided however that the Company may avoid such termination if it,
prior to the date of termination set forth in such notice, cures or explains to
the reasonable satisfaction of Executive the factual basis for termination set
forth therein; or
(b) a Change of Control (as hereinafter defined) occurs during the
Term, at any time within the two-year period thereafter, by giving the Company
notice to such effect, setting forth the event or circumstance constituting such
Change of Control, such termination to be effective upon the date of
termination, not more than 30 days after the date of such notice, set forth
therein or, if no such date is set forth therein, immediately upon delivery of
such notice to the Company.
The termination by Executive of his employment pursuant to this Section 14 shall
not constitute or be deemed to constitute for any purpose a "voluntary
resignation" of his employment.
15. Compensation upon Termination.
(a) Upon termination of Executive's employment hereunder, he shall
be entitled to receive, in any case, any compensation or other amount due to him
pursuant to Section 3 or 4 in respect of his employment prior to the Termination
Date.
(b) If Executive is discharged "for cause" pursuant to Section 13,
except for the payment of any amount required to be made by Section 15(a), from
and after the Termination Date, the Company shall have no further obligation to
Executive hereunder, including without limitation any obligation pursuant to
Section 17.
(c) If his employment is terminated by Executive pursuant to Section
14(a) or by the Company other than "for cause" pursuant to Section 13, he shall
be entitled to receive an amount equal to the product of (i) the sum of (A) his
Base Salary for the year in which such termination occurs and (B) his Bonus for
the last Bonus
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Period ending before the Termination Date (annualized if such Bonus Period is
other than a 12-month fiscal year of the Company), and (ii) a fraction, the
numerator of which is the number of full months remaining in the balance of the
Term after the Termination Date and the denominator of which is 36.
(d) If his employment terminates pursuant to Section 14(b) and, if
at the time Executive gives the Company the notice of termination referred to
therein, the Company has not given to Executive a notice of termination upon his
disability pursuant to Section 12 or "for cause" pursuant to Section 13, he
shall be entitled to receive, upon the terms and subject to the conditions set
forth in Section 16, the Parachute Amount (as hereinafter defined).
(e) If Executive's employment hereunder terminates pursuant to
Section 12, he or his guardian, custodian or other legal representative or
successor shall be entitled to continue to receive the Base Salary payable
pursuant to Section 3(a)(i) in the amounts and at the times provided therein for
a period of six months following the date of termination.
(f) Except as otherwise provided in Section 15(e), any amount
payable to Executive upon termination of his employment hereunder shall be paid
promptly, and in any event within 30 days, after the Termination Date.
16. Change of Control.
(a) For the purposes of this Section 16:
(i) The "Act" is the Securities Exchange Act of 1934, as
amended.
(ii) A "person" includes a "group" within the meaning of
Section 13(d)(3) of the Act.
(iii) "Control" is used herein as defined in Rule 12b-2 under
the Act.
(iv) "Beneficially owns" and "acquisition" are used herein
as defined in Rules 13d-3 and 13d-5, respectively,
under the Act.
(v) "Non-Affiliated Person" means any person, other than
Executive, an employee stock ownership trust of the
Company (or any trustee thereof for the benefit of such
trust), or any person controlled by Executive, the
Company or such a trust.
(vi) "Voting Securities" includes Common Stock and any other
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securities of the Company that ordinarily entitle the
holders thereof to vote, together with the holders of
Common Stock or as a separate class, with respect to
matters submitted to a vote of the holders of Common
Stock, but securities of the Company as to which the
consent of the holders thereof is required by
applicable law or the terms of such securities only
with respect to certain specified transactions or other
matters, or the holders of which are entitled to vote
only upon the occurrence of certain specified events
(such as default in the payment of a mandatory dividend
on preferred stock or a scheduled installment of
principal or interest of any debt security), shall not
be Voting Securities.
(vii) "Right" means any option, warrant or other right to
acquire any Voting Security (other than such a right of
conversion or exchange included in a Voting Security).
(viii) The "Code" is the Internal Revenue Code of 1986, as
amended.
(ix) "Base amount," "present value" and "parachute payment"
are used herein as defined in Section 280G of the Code.
(b) A "Change of Control" occurs when:
(i) a Non-Affiliated Person acquires control of the
Company;
(ii) upon an acquisition of Voting Securities or Rights by a
Non-Affiliated Person or any change in the number or
voting power of outstanding Voting Securities, such
Non-Affiliated Person beneficially owns Voting
Securities or Rights entitling such person to cast a
number of votes (determined in accordance with Section
16(g)) equal to or greater than 25% of the sum of (A)
the number of votes that may be cast by all other
holders of outstanding Voting Securities and (B) the
number of votes that may be cast by such Non-Affiliated
Person (determined in accordance with Section 16(g));
or
(iii) upon any change in the membership of the Company's
Board of Directors, a majority of the directors are
persons who are not nominated or appointed by the
Company's Board of Directors as constituted prior to
such change.
(c) The "Parachute Amount" to which Executive shall be entitled
pursuant to Section 15(d) shall equal 2.99 times Executive's base amount.
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(d) It is intended that the present value of any payments or
benefits to Executive, whether hereunder or otherwise, that are includable in
the computation of parachute payments shall not exceed 2.99 times the base
amount. Accordingly, if Executive receives any payment or benefit from the
Company prior to payment of the Parachute Amount which, when added to the
Parachute Amount, would subject any of the payments or benefits to Executive to
the excise tax imposed by Section 4999 of the Code, the Parachute Amount shall
be reduced by the least amount necessary to avoid such tax. The Company shall
have no obligation hereunder to make any payment or provide any benefit to
Executive after the payment of the Parachute Amount which would subject any of
such payments or benefits to the excise tax imposed by Section 4999 of the Code.
(e) Any other provision hereof notwithstanding, Executive may, prior
to his receipt of the Parachute Amount pursuant to Section 15(d), waive the
payment thereof, or, after his receipt of the Parachute Amount thereunder, treat
some or all of such amount as a loan from the Company which Executive shall
repay to the Company within 180 days after the receipt thereof, together with
interest thereon at the rate provided in Section 7872 of the Code, in either
case, by giving the Company notice to such effect.
(f) Any determination of the base amount, the Parachute Amount, any
liability for excise tax under Section 4999 of the Code or other matter required
to be made pursuant to this Section 18, shall be made by the Company's
regularly-engaged independent certified public accountants, whose determination
shall be conclusive and binding upon the Company and Executive; provided that
such accountants shall give to Executive, on or before the date on which payment
of the Parachute Amount or any later payment or benefit would be made, a notice
setting forth in reasonable detail such determination and the basis therefor,
and stating expressly that Executive is entitled to rely thereon.
(g) The number of votes that may be cast by holders of Voting
Securities or Rights upon the issuance or grant thereof shall be deemed to be
the largest number of votes that may be cast by the holders of such securities
or the holders of any other Voting Securities into which such Voting Securities
or Rights are convertible or for which they are exchangeable or exercisable,
determined as though such Voting Securities or Rights were immediately
convertible, exchangeable or exercisable and without regard to any anti-dilution
or other adjustments provided for therein.
17. Other Termination Provisions.
(a) Upon request by Executive, on the Termination Date or as soon as
practicable thereafter, the Company shall assign to Executive, and Executive
shall assume, the purchase agreement or lease relating to any automobile or
other vehicle
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that the Company provides for his use on the Termination Date pursuant to
Section 4(b) (other than an automobile or other vehicle owned or leased by
Executive), if and to the extent assignable under the terms and conditions
thereof, and thereafter Executive shall be liable for, and the Company shall be
relieved of all liability for, any amount or other obligation required to be
paid or performed thereunder in respect of any period commencing after the date
of assignment.
(b) Throughout the 10-year period following the Termination Date,
the Company shall indemnify Executive, and hold him harmless from, any loss,
damages, liability, obligation or expense that he may suffer or incur in
connection with any claim made or Proceeding commenced during such period
relating to his service as a director, officer, employee or agent of the Company
(or any subsidiary thereof) to the same extent and in same manner as the Company
shall be obligated so to indemnify Executive immediately prior to the
Termination Date; provided that, if during such 10-year period the Company
adopts or assumes any indemnification policy or practice with respect to its
directors, officers, employees or agents that is more favorable than that in
effect on the Termination Date, Executive shall be entitled to such more
favorable indemnification.
(c) Throughout the 10-year period following the Termination Date,
the Company shall maintain for the benefit of Executive directors' and officers'
liability insurance (on a "claims made" basis) providing coverage at least as
favorable to Executive (including with respect to limits of liability,
exclusions, and deductible and retention amounts) as that in effect on the
Termination Date.
18. Limitation of Authority. Except as expressly provided herein, no
provision hereof shall be deemed to authorize or empower either party hereto to
act on behalf of, obligate or bind the other party hereto.
19. Notices. Any notice or demand required or permitted to be given or
made hereunder to or upon either party hereto shall be deemed to have been duly
given or made for all purposes if (a) in writing and sent by (i) messenger or an
overnight courier service against receipt, or (ii) certified or registered mail,
postage paid, return receipt requested, or (b) sent by telegram, telecopy, telex
or similar electronic means, provided that a written copy thereof is sent on the
same day by postage-paid first-class mail, to such party at the following
address:
to the Company at: 00000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
with a copy to: Feder, Kaszovitz, Isaacson, Weber, Xxxxx & Bass LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
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to Executive at: 00000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
or such other address as either party hereto may at any time, or from time to
time, direct by notice given to the other party in accordance with this Section.
The date of giving or making of any such notice or demand shall be, in the case
of clause (a) (i), the date of the receipt; in the case of clause (a) (ii), five
business days after such notice or demand is sent; and, in the case of clause
(b), the business day next following the date such notice or demand is sent.
20. Amendment. Except as otherwise provided herein, no amendment of this
Agreement shall be valid or effective, unless in writing and signed by or on
behalf of the parties hereto.
21. Waiver. No course of dealing or omission or delay on the part of
either party hereto in asserting or exercising any right hereunder shall
constitute or operate as a waiver of any such right. No waiver of any provision
hereof shall be effective, unless in writing and signed by or on behalf of the
party to be charged therewith. No waiver shall be deemed a continuing waiver or
waiver in respect of any other or subsequent breach or default, unless expressly
so stated in writing.
22. Governing Law. This Agreement shall be governed by, and interpreted
and enforced in accordance with, the laws of the State of New York without
regard to principles of choice of law or conflict of laws.
23. Jurisdiction. Each of the parties hereto hereby irrevocably consents
and submits to the jurisdiction of the courts of the State of New York and the
United States District Court for the Southern District of New York in connection
with any Proceeding arising out of or relating to this Agreement, waives any
objection to venue in the County of New York, State of New York, or such
District, and agrees that service of any summons, complaint, notice or other
process relating to such Proceeding may be effected in the manner provided by
clause (a)(ii) of Section 19.
24. Remedies. In the event of any actual or prospective breach or default
under this Agreement by either party hereto, the other party shall be entitled
to equitable relief, including remedies in the nature of rescission, injunction
and specific performance. All remedies hereunder are cumulative and not
exclusive, and nothing herein shall be deemed to prohibit or limit either party
from pursuing any other remedy or relief available at law or in equity for such
actual or prospective breach or default, including the recovery of damages;
provided that, except as provided in Section 15 and except with respect to a
breach by Executive of his obligations pursuant to Sections 9, 10 and 11, no
party hereto shall be liable under this Agreement for lost profits or
consequential damages.
15
25. Severability. The provisions hereof are severable and in the event
that any provision of this Agreement shall be determined to be invalid or
unenforceable in any respect by a court of competent jurisdiction, the remaining
provisions hereof shall not be affected, but shall, subject to the discretion of
such court, remain in full force and effect, and any invalid or unenforceable
provision shall be deemed, without further action on the part of the parties
hereto, amended and limited to the extent necessary to render the same valid and
enforceable.
26. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and which together shall constitute one and
the same agreement.
27. Assignment. This Agreement, and each right, interest and obligation
hereunder, may not be assigned by either party hereto without the prior written
consent of the other party hereto, and any purported assignment without such
consent shall be void and without effect, except that this Agreement shall be
assigned to, and assumed by, any Person with or into which the Company merges or
consolidates, or which acquires all or substantially all of its assets, or which
otherwise succeeds to and continues the Company's business substantially as an
entirety. Except as otherwise expressly provided herein or required by law,
Executive shall not have any power of anticipation, assignment or alienation of
any payments required to be made to him hereunder, and no other Person may
acquire any right or interest in any thereof by reason of any purported sale,
assignment or other disposition thereof, whether voluntary or involuntary, any
claim in a bankruptcy or other insolvency proceeding against Executive, or any
other ruling, judgment, order, writ or decree.
28. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement is not intended, and shall not be deemed, to create or
confer any right or interest for the benefit of any Person not a party hereto.
29. Titles and Captions. The titles and captions of the Articles and
Sections of this Agreement are for convenience of reference only and do not in
any way define or interpret the intent of the parties or modify or otherwise
affect any of the provisions hereof.
30. Grammatical Conventions. Whenever the context so requires, each
pronoun or verb used herein shall be construed in the singular or the plural
sense and each capitalized term defined herein and each pronoun used herein
shall be construed in the masculine, feminine or neuter sense.
31. References. The terms "herein," "hereto," "hereof," "hereby," and
"hereunder," and other terms of similar import, refer to this Agreement as a
whole, and not to any Article, Section or other part hereof.
32. No Presumptions. Each party hereto acknowledges that it has had an
16
opportunity to consult with counsel and has participated in the preparation of
this Agreement. No party hereto is entitled to any presumption with respect to
the interpretation of any provision hereof or the resolution of any alleged
ambiguity herein based on any claim that the other party hereto drafted or
controlled the drafting of this Agreement.
33. Certain Definitions. As used herein:
(a) "Confidential Information" means all confidential or proprietary
information of the Company or a Subsidiary, including without limitation
information relating to Inventions (including Confidential Information required
to be disclosed to the Company pursuant to Section 10), Trade Rights, plant and
equipment, products, customers, suppliers, marketing and sales, personnel, and
financing and tax matters.
(b) "Invention" means any invention, design, process, system,
improvement, development or discovery or any technical specifications, know-how
or information or other intellectual property relating thereto.
(c) "Person" includes without limitation a natural person,
corporation, joint stock company, limited liability company, partnership, joint
venture, association, trust, government or governmental authority, agency or
instrumentality, or any group of the foregoing acting in concert.
(d) A "Proceeding " is any suit, action, arbitration, audit,
investigation or other proceeding before or by any court, magistrate,
arbitration panel or other tribunal, or any governmental agency, authority or
instrumentality of competent jurisdiction.
(e) "Restricted Business" means (i) designing, developing,
manufacturing or otherwise producing, marketing, distributing, selling or
otherwise trading or dealing in or with any Restricted Product in the Restricted
Territory or (ii) acquiring (by purchase, license or otherwise), using or
otherwise exploiting any Restricted Trade Right in the Restricted Territory.
(f) "Restricted Product" means any toy, doll, game, electronic game,
activity set, collectible model vehicle or other product that, on the
Termination Date or at any time during the 12-month period preceding the
Termination Date, (i) is or was designed, developed, manufactured or otherwise
produced, marketed, distributed, sold or otherwise traded or dealt in or with by
or for the Company or any Subsidiary or (ii) is or was subject to a Restricted
Trade Right.
(g) "Restricted Territory" means the United States of America.
(h) "Restricted Trade Right" means a Trade Right that, on the
Termination Date or at any time during the 12-month period preceding the
Termination Date, is or was (i) owned by or licensed to the Company or (ii)
owned by or licensed to
17
a Subsidiary and used in connection with any Restricted Product.
(i) "Subsidiary" means any Person in which the Company, directly or
indirectly, owns any equity interest (including without limitation as a general
partner of a partnership or a member of a limited liability company).
(j) "Superior Officer" means any of the Company's Chairman, Chief
Executive Officer, President or Chief Operating Officer.
(k) "Trade Right" means any claim of copyright, trademark, service
xxxx, trade name, brand name, trade dress, logo, symbol, design or other trade
right.
34. Entire Agreement. This Agreement embodies the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes any
prior agreement, commitment or arrangement relating thereto.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the day and year first above written.
JAKKS PACIFIC, INC.
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
EXECUTIVE:
/s/ XXXX X. XXXXXXX
--------------------------------------------
Xxxx X. Xxxxxxx
18
EXHIBIT A
JAKKS PACIFIC, INC.
CERTIFICATE OF STOCK OPTION AGREEMENT
To purchase 96,000 shares of Common Stock
June __, 2000
JAKKS Pacific, Inc., a Delaware corporation (the "Company"), hereby
certifies that Xxxx X. Xxxxxxx has been granted an Option to purchase 96,000
shares of Common Stock, pursuant to and subject to the terms and conditions of
the Company's Third Amended and Restated 1995 Stock Option Plan, as amended (the
"Plan"), exercisable as follows:
1. Date of Grant: June __, 2000
2. Exercise Price: [closing sale price of Common Stock on the date of grant
as reported by the Nasdaq National Market]
3. Vesting: This Option is exercisable to the extent of the following
number of shares commencing on the following dates:
Date on or after which
shares can be purchase Number of Shares
---------------------- ----------------
June __, 2001 14,400
June __, 2002 additional 14,400
June __, 2003 additional 14,000
June __, 2004 additional 24,000
June __, 2005 additional 28,800
4. Termination: This Option shall not be exercisable after 5:00 p.m.
Pacific Time on June __, 2006.
5. Restrictive
Covenants: The Optionee, by his acceptance of this Option, makes all
of the acknowledgments, stipulations, covenants and
agreements to be made by the Optionee pursuant to Section
11(h) of the Plan, all of which are incorporated herein
by this reference.
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6. Method of
Exercise of
Option: The Optionee shall notify the Company by written notice,
substantially in the form of the Option Exercise Form
annexed hereto, sent by registered or certified mail,
return receipt requested, addressed to its principal
office, or by hand delivery to such office, attention
Secretary, properly receipted, as to the number of
shares of Common Stock which the Optionee desires to
purchase under this Option, which written notice shall
be accompanied by the Optionee's check payable to the
order of the Company for the full option price of such
shares of Common Stock, unless payment of the option
price is to be made in accordance with, and subject to
the condition of, the proviso to Section 12(b) of the
Plan. As soon as practicable after the receipt of such
written notice, the Company shall, at its principal
office, deliver to the Optionee a certificate or
certificates issued in the Optionee's name evidencing
the shares of Common Stock so purchased by the Optionee
hereunder.
This Option is intended to be an "Incentive Stock Option"
subject to Section 7 of the Plan and the applicable provisions
of the Code. This Option is subject to substantial restrictions
on transfer and will expire, under certain conditions, upon the
termination of employment of the Optionee. PLEASE REFER TO THE
COMPLETE PLAN, A COPY OF WHICH IS ATTACHED HERETO, TO SEE THE
TERMS AND CONDITIONS THEREOF APPLICABLE TO THIS OPTION.
JAKKS PACIFIC, INC.
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
OPTIONEE:
--------------------------------
Name: Xxxx X. Xxxxxxx
20
OPTION EXERCISE FORM
JAKKS PACIFIC, INC.
00000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
The undersigned hereby exercises the right to purchase ________________
shares of Common Stock pursuant to and in accordance with the terms and
conditions of the Option granted June __, 2000, and herewith makes payment of $
therefor, and requests that a certificate for such shares be issued in the name
of the undersigned and be delivered to the undersigned at the address stated
below, and, if such number of shares shall not be all of the shares subject to
such Option, that a new Certificate of Stock Option Agreement of like tenor for
the balance of the shares purchasable thereunder be delivered to the undersigned
at the address stated below.
Dated:
---------------------------
Address:
---------------------------
---------------------------
-----------------------------
Name: Xxxx X. Xxxxxxx
