EXHIBIT 10
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT dated as of March 11, 2002 by and between JAKKS
Pacific, Inc., a Delaware corporation ("JAKKS" or the "Company") with its
offices at 00000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx, XX 00000 and 1515037 Ontario
Ltd., a corporation organized under the law of Ontario, Canada ("Consultant")
and Xxxxxx Xxxxxxxx ("Xxxxxxxx"), an individual residing at 0 Xxxxx Xxxx Xxxxx,
Xxxxxxxxx, Xxxxxxx, Xxxxxx X0X000. The parties to the Agreement are sometimes
referred to collectively as the "Parties" or simply as a "Party".
W I T N E S S E T H :
WHEREAS, the Company desires to retain Consultant to provide consulting
services to the Company on the terms and subject to the conditions hereinafter
set forth, and Consultant desires so to be retained;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the Company and Consultant agree as follows:
1. Offices and Duties. The Company hereby retains Consultant during the
Term (as hereinafter defined) to consult with the Company regarding
international sales and marketing of the products of the Company and its
Affiliates, and to perform such duties in connection therewith on behalf of the
Company as the Board of Directors of the Company or a senior executive officer
of the Company may from time to time direct. Consultant hereby accepts such
retention and agrees that throughout the Term it shall faithfully, diligently
and to the best of its ability, in furtherance of the business of the Company,
perform the duties assigned to it or incidental to its acting as a consultant to
the Company pursuant to this Section. Consultant shall not be required to
perform such services on a particular schedule provided that Consultant's
schedule does not adversely affect the performance of its responsibilities and
provided that any other activities of Consultant do not materially interfere
with or compromise its ability to perform its responsibilities hereunder.
Consultant shall at all times be subject to the direction and control of the
Board of Directors of the Company and observe and comply with such lawful rules,
regulations, policies and practices as the Board of Directors of the Company may
from time to time establish.
2. Term. The retention of Consultant as a consultant hereunder shall
commence on the date hereof and continue for a term ending on the first
anniversary of the date hereof (the "Term"), subject to earlier termination upon
the terms and conditions provided elsewhere herein. As used herein, "Termination
Date" means the last day of the Term.
3. Compensation.
(a) As compensation for its consulting services hereunder, the
Company shall pay to Consultant during the Term:
(i) a consulting fee at the rate of $325,000.00 per annum
(the "Base Consulting Fee"), such Base Consulting Fee to be paid in
substantially equal installments no less often than monthly in accordance with
the Company's normal payment practices regarding such fees.
(ii) an Incentive Consulting Bonus as defined in paragraph
(b) of this Section 3.
(b) The "Incentive Consulting Bonus" shall be equal to one (1%)
percent of Covered International Net Sales; provided that the annual rate of the
Incentive Consulting Bonus payable to the Consultant during the Term shall not
exceed US$200,000.00. The term "Covered International Net Sales" means gross
sales of the Company and its Affiliates during the Term outside of the United
States, its territories and possessions and outside of Canada, Mexico and the
United Kingdom, and excluding any gross sales in South America of products using
the World Wrestling Federation properties licensed by the Company and its
Affiliates, less returns, discounts, rebates and allowances for markdowns and
defective merchandise. Covered International Net Sales shall be calculated by
the Chief Financial Officer of the Company consistent with the methods used to
calculate Net Sales in the financial statements issued by the Company as part of
its periodic reporting under the United States Securities and Exchange Act of
1934, as amended. The Incentive Consulting Bonus shall be payable quarterly on a
provisional basis within thirty (30) days after the end of the fiscal quarters
of the Company ending March 31, June 30, and September 30 during the Term and on
a final adjusted basis within ninety (90) days after the end of the Company's
fiscal year occurring during the Term, and each payment shall be accompanied by
a report certified by the Chief Financial Officer of the Company setting forth
the calculation of the Incentive Consulting Bonus. If the Termination Date
occurs prior to the end of a fiscal quarter of the Company, then Net Sales
through the Termination Date shall be calculated by the Company, and the
Incentive Consulting Bonus shall be paid at the same time it would have been
paid had this Agreement not terminated, except as otherwise provided in Section
15 of this Agreement.
(c) In addition to the Consulting Fee and the Incentive Consulting
Bonus provided herein, Consultant shall be entitled to participate, to the
extent it is eligible under the terms and conditions thereof, in any stock,
stock option or other equity participation plan generally available to other
Consultants to, and employees of the Company. The Company shall be under no
obligation hereunder to institute or to continue any such stock, stock option or
equity participation plan, and Consultant shall not be entitled to any other
benefits provided to consultants or employees of the Company, including any
profit-sharing, pension, retirement, insurance, medical service or other
employee benefit plan and any other benefits or perquisites generally available
to any other consultants or executives or employees of the Company pursuant to
any employment or other policy or practice, which may be in effect from time to
time during the Term.
(d) As used in this Agreement, the term "Affiliate" of a Person
means another Person directly or indirectly controlling, controlled by, or under
common control with, such Person; for this purpose, "control" of a Person means
the power (whether or not exercised) to direct the policies, operations or
activities of such Person by virtue of the ownership of, or right to vote or
direct the manner of voting of, securities of such Person, or pursuant to
agreement or law or otherwise.
(e) As used in this Agreement, the term "Person" includes without
limitation a natural person, corporation, joint stock company, limited liability
company, partnership, joint venture, association, trust, governmental authority,
or any group of the foregoing acting in concert.
4. Expenses. The Company shall pay directly, or advance funds to
Consultant or reimburse Consultant for, all expenses reasonably incurred by it
in connection with the performance of its duties hereunder and the business of
the Company, upon the submission to the Company of itemized expense reports,
receipts or vouchers in accordance with the Company's then customary policies
and practices.
5. Services of Xxxxxxxx. Consultant agrees that unless otherwise agreed
by the Company in its sole and absolute discretion, all of Consultant's services
under this Agreement shall be provided only by Xxxxxxxx. The Company
acknowledges that Xxxxxxxx may, however, be unavailable from time to time during
the Term as a result of vacations taken by him, not to exceed four (4) weeks
during the Term. Xxxxxxxx agrees that throughout the Term he shall faithfully,
diligently and to the best of his ability, in furtherance of the business of the
Company, carry out on behalf of Consultant the duties assigned to
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Consultant or incidental to its acting as a consultant to the Company pursuant
to this Agreement. Xxxxxxxx shall devote a substantial portion of his business
time and attention to the business and affairs of the Company in carrying out
the duties of Consultant, provided that any other activities to which Xxxxxxxx
devotes his business time and attention do not materially interfere with or
compromise his ability to perform his responsibilities to Consultant in carrying
out Consultant's duties hereunder.
6. Location. Except for travel and temporary accommodation reasonably
required for Xxxxxxxx to perform Consultant's services hereunder and travel as
may reasonably be requested by JAKKS to its principal office in the United
States (currently in Malibu, California, USA) or to its offices in New York, New
York, USA, Consultant shall not be required to perform its services hereunder at
any location other than an office it maintains in Xxxxxxxxx, Xxxxxxx, Xxxxxx.
JAKKS may request Xxxxxxxx'x attendance at meetings at JAKKS' offices in Malibu,
California or New York, New York, or to participate in other activities relating
to the Company and its business in Malibu, California or New York, New York,
provided that Xxxxxxxx shall not be required to stay at such locations for more
than seven (7) working days in any one (1) calendar month.
7. Clerical Support. The Company shall provide Consultant with
secretarial and clerical services at the Company's offices in Malibu, California
as are reasonably necessary for the performance of its services hereunder.
8. Confidential Information.
(a) Consultant and Xxxxxxxx (sometimes collectively referred to
hereafter as "Consultant") shall hold in a fiduciary capacity for the benefit of
the Company all confidential or proprietary information relating to or concerned
with the Company and its Affiliates or their products, prospective products,
operations, business and affairs ("Confidential Information"), and Consultant
shall not, at any time hereafter, use or disclose any Confidential Information
to any person other than to the Company or its designees or except as may
otherwise be required in connection with the business and affairs of the
Company, and in furtherance of the foregoing Consultant agrees that:
(i) Consultant will receive, maintain and hold Confidential
Information in strict confidence and will use the same level of care in
safeguarding it that Consultant uses with its own confidential material of a
similar nature;
(ii) Consultant will take all such steps as may be reasonably
necessary to prevent the disclosure of Confidential Information; and
(iii) Consultant will not utilize Confidential Information
without first having obtained the Company's consent to such utilization.
(b) The commitments set forth in paragraph 8(a) shall not extend
to any portion of Confidential Information:
(i) that is generally available to the public;
(ii) that was known to the Consultant prior to disclosure
(excluding information regarding the Company or its Affiliates which would
otherwise be Confidential Information that was disclosed to Consultant or
Xxxxxxxx during the period of Xxxxxxxx'x employment by Toymax International Inc.
and its Affiliates) or that was disclosed to Consultant or Xxxxxxxx in
connection with his acting as an officer or a director of Toymax International
Inc. or its predecessors or their respective Affiliates, and excluding any other
non-public information concerning products under development by or for the
Company or its Affiliates (including Toymax International Inc. and its
Affiliates);
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(iii) that was not acquired, directly or indirectly and/or in
any manner, from the Company or any of its Affiliates (including Toymax
International Inc. and its Affiliates) and which Consultant lawfully had in his
or its possession prior to the date of this Agreement;
(iv) that, hereafter, through no act or omission on the part
of the Consultant, becomes information generally available to the public.
(c) At any time upon written request by the Company (i) the
Confidential Information, including any copies, shall be returned to the
Company, and (ii) all documents, drawings, specifications, computer software,
and any other material whatsoever in the possession of the Consultant that
relates to such Confidential Information, including all copies and/or any other
form of reproduction and/or description thereof made by Consultant shall, at the
Company's option, be returned to the Company or destroyed.
(d) In the event that Consultant becomes legally compelled (by
deposition, interrogatory, request of documents, subpoena, civil investigative
demand or similar process) to disclose any of the Confidential Information, the
Consultant shall provide the Company with prompt prior written notice of such
requirement so that it may seek a protective order or other appropriate remedy
and/or waive compliance with the terms of this Agreement. In the event that such
protective order or other remedy is not obtained, or the Company waives
compliance with the provisions hereof, the Consultant agrees to furnish only
such portion of the Confidential Information which is legally required to be
furnished.
9. Intellectual Property.
(a) Any patent, claim of copyright, trademark, trade name, brand
name, service xxxx, logo, symbol, trade dress or design, or representation or
expression of any thereof, or registration or application for registration
thereof, or any other improvement, development or discovery, invention, trade
secret, process, system, technical information, know-how, proprietary right or
intellectual property developed, conceived of, invented or otherwise produced by
Consultant or Xxxxxxxx, alone or with others in connection with the design,
manufacture and marketing of the products of the Company and its Affiliates, or
conceived, developed, created or made by Consultant or Xxxxxxxx, alone or with
others, during the Term and applicable to the business of the Company or its
Affiliates, whether or not patentable or registrable (collectively referred to
as "Trade Rights") shall become the sole and exclusive property of the Company.
(b) Consultant and Xxxxxxxx shall disclose all Trade Rights
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 and procuring such applications
for 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,
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 the Consultant reasonable
compensation for any time or effort expended by it in connection with such
assistance after the Termination Date. In furtherance of the foregoing,
Consultant and Xxxxxxxx each acknowledges and agrees that for all purposes of
U.S. and foreign Copyright Laws, the Trade Rights and any inventions,
discoveries, enhancements or improvements to any tangible or intangible
property, resulting from the services performed by Consultant for the Company or
its Affiliates (for the purposes of this paragraph all of the foregoing is
collectively referred to as the "Work"), and any and all elements thereof, shall
be deemed to constitute "works for hire" belonging to the Company within the
meaning of Xxxxx 00, Xxxxxx Xxxxxx Code, Section 101, and any comparable
provisions of the law of any other jurisdiction, such that all right, title and
interest therein, including, without limitation, copyrights and
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exclusive rights under copyright, vest in Toymax International. Consultant and
Xxxxxxxx each hereby transfers and conveys to the Company the exclusive,
world-wide, royalty-free, paid-up right to exploit, use, develop, license, and
sell products and services relating to or derived from the Work; and the
exclusive right, title and interest in and to all inventions, improvements,
patent applications and letters patent, "know-how", and all intellectual
property and other rights, tangible or intangible, which relate to or are based
upon or derived from the Work; and to all information, documents, and
specifications that relate to the Work. If the Work or any of the elements
thereof is deemed not to be "works for hire" within the meaning of Xxxxx 00,
Xxxxxx Xxxxxx Code, Section 101, then Consultant and Xxxxxxxx each hereby
assigns and transfers to the Company all right, title and interest in and to the
Work, including rights throughout the world for good and valuable consideration,
receipt of which Consultant hereby acknowledges. For the sole and exclusive
purpose of perfecting and documenting such limited assignment and transfer,
Consultant and Xxxxxxxx each hereby grants to the Company an irrevocable power
of attorney.
10. Restrictive Covenants.
(a) During the Term, and unless its retention as a consultant
terminates pursuant to Section 13, for a further period of one (1) year after
the Termination Date, neither Consultant nor Xxxxxxxx shall, directly or
indirectly through any Affiliate or other intermediary (a) manufacture, produce,
sell, market or otherwise promote any Competitive Product or serve as a partner,
member, manager, director, officer or employee of, or consultant or advisor to,
or in any manner own, control, manage, operate or otherwise participate or
invest in, or be connected with any Person that engages in the marketing or sale
of Competitive Products, or authorize the use of its or his name in connection
therewith, or (b) for itself or himself or on behalf of any other Person,
employ, engage or retain any Person who at any time during the preceding
12-month period shall have been an employee of the Company or its Affiliates, or
contact any supplier, customer or employee of the Company or its Affiliates for
the purpose of soliciting or diverting any such supplier, customer or employee
from the Company or its Affiliates. The foregoing provisions notwithstanding,
Consultant or Xxxxxxxx may invest its or his funds in securities of an issuer if
the securities of such issuer are listed for trading on a registered securities
exchange or actively traded in the over-the-counter market and Consultant's and
its Affiliates' (including Xxxxxxxx) aggregate holdings therein represent less
than 1% of the total number of shares or principal amount of the securities of
such issuer then outstanding. Consultant and Xxxxxxxx each acknowledges that the
provisions of this Section 10, and the period of time, lack of specific
geographic area given the international nature of the business of the Company
and its Affiliates, and the scope and type of restrictions on his activities set
forth herein, are reasonable and necessary for the protection of the Company and
are an essential inducement to JAKKS entering into this Agreement and acquiring
shares of common stock of Toymax International Inc. from Xxxxxxxx and the other
shareholders selling their shares to JAKKS pursuant to a Stock Purchase
Agreement dated February 9, 2002.
(b) As used herein, the term "Competitive Product" means any
product or service that is substantially similar to a product or service
developed, marketed, sold by the Company or its Affiliates during the period of
Consultant's retention by the Company.
(c) Consultant and Xxxxxxxx each acknowledges that the type of
services the Company will require from them are of an intellectual and technical
character which will require the disclosure of confidential and proprietary
information of the Company to them and may result in the creation by them of
information which is confidential and proprietary to the Company, and
accordingly that the restrictive covenants contained herein are necessary in
order to protect and maintain the business and assets and goodwill of the
Company. Consultant and Xxxxxxxx each also acknowledges that the type of
services that it and he has performed for Toymax International and its
Affiliates as a consultant or employee of Toymax International and it affiliates
were of an intellectual and technical character and required the disclosure of
confidential and proprietary information of Toymax International and its
Affiliates to them and resulted in the creation by them of information which is
confidential and
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proprietary to Toymax International and its Affiliates, and accordingly that the
restrictive covenants contained herein are necessary in order to protect and
maintain the business and assets and goodwill of Toymax International whose
shares are being purchased by JAKKS. Consultant and Xxxxxxxx each acknowledges
that the business of the Company and its Affiliates, including Toymax
International and its Affiliates, extends beyond the geographic area of the
State of New York and accordingly, it is reasonable that the restrictive
covenants set forth above are not limited by specific geographic area but by the
location of the customers of the Company and its Affiliates. Consultant and
Xxxxxxxx each acknowledges that the remedy at law for any breach of this
agreement by him will be inadequate and that, accordingly, the Company shall, in
addition to all other available remedies (including without limitation seeking
such damages as it can show it has sustained by reason of such breach), be
entitled to injunctive relief without being required to post bond or other
security and without having to prove the inadequacy of the available remedies at
law.
11. Termination Upon Death or Disability. Consultant's retention
hereunder shall terminate immediately upon the death of Xxxxxxxx. In the event
that Xxxxxxxx is unable to furnish services to Consultant in carrying out
Consultant's 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
Consultant's retention hereunder within 60 days after the 90th day of Xxxxxxxx'x
disability or incapacity by giving Consultant notice to such effect at least 30
days prior to the date of termination set forth in such notice, and on such date
such retention shall terminate.
12. Termination by the Company with or without Cause.
(a) In addition to any other rights or remedies provided by law or
in this Agreement, the Company may terminate Consultant's retention as a
Consultant for "cause" under this Agreement if:
(i) Consultant or Xxxxxxxx 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 criminal offense, except minor road traffic offenses; or
(ii) the Company's Board of Directors determines, after due
inquiry, that Consultant or Xxxxxxxx has:
(A) committed fraud against, or embezzled or misappropriated
funds or other assets of, the Company (or any subsidiary thereof);
(B) violated, or caused the Company (or any subsidiary
thereof) or any officer, employee or other agent thereof, or 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 its Affiliates, or
any material rule, regulation, policy or practice established by the
Board of Directors of the Company;
(C) on a persistent or recurring basis, (A) failed properly
to perform Consultant's duties hereunder or (B) acted in a manner
detrimental to, or adverse to the interests of, either the Company
or its Affiliates.
(b) The Company may effect such termination for cause under
paragraph (a) of this Section by giving Consultant 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 Consultant may avoid such termination if Consultant, prior to the
date of termination set forth in such notice, cures or explains to the
reasonable satisfaction of the Company's Board of Directors the factual basis
for termination set forth therein.
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(c) In making any determination pursuant to Section 12(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 Consultant or Xxxxxxxx is made a party to, or target
of, any proceeding arising under or relating to any For Cause Event, Consultant
or Xxxxxxxx'x knowing 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; or
(iii) any settlement or compromise of, or consent decree
issued in, any such proceeding in which Consultant or Xxxxxxxx expressly admits
the occurrence of a For Cause Event; provided that none of the foregoing shall
be dispositive or create an irrefutable 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.
13. Termination by Consultant for Good Reason. In addition to any other
rights or remedies provided by law or in this Agreement, Consultant may
terminate its retention hereunder if (a) 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, (b) as a result of any action or
failure to act by the Company, there is a material change in the nature or scope
of Consultant's duties or obligations, or (c) relocation without Consultant's
consent from the location set forth in Section 6 hereof, 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 Consultant the factual basis for termination set
forth therein. The termination by Consultant of its retention as a consultant
pursuant to this Section 13 shall not constitute or be deemed to constitute for
any purpose a "voluntary resignation" of such retention as a consultant.
14. Compensation upon Termination.
(a) Upon termination of Consultant's retention as a consultant
hereunder, it shall be entitled to receive, in any case, any compensation or
other amount due to it pursuant to Section 3 or 4 in respect of its retention
prior to the Termination Date, and from and after the Termination Date, except
as otherwise provided in Section 14(b), the Company shall have no further
obligation to Consultant or Xxxxxxxx hereunder. Any amount payable to Consultant
pursuant to this Section 14(a) upon the termination of the retention hereunder
shall be paid promptly, and in any event within 10 days, after the Termination
Date.
(b) If prior to the first anniversary of the date of this
Agreement, Consultant terminates its retention hereunder for Good Reason
pursuant to Section 13, or if the Company terminates Consultant's retention
hereunder other than upon Xxxxxxxx'x disability or incapacity pursuant to
Section 11 and other than for cause pursuant to Section 12(a) through (c), the
Company shall make to Consultant payments at the times and in the amounts
provided herein for the payment of the Base Consulting Fee and Incentive
Consulting Bonus in effect as of the Termination Date during the period, if any,
beginning on the day after the Termination Date and ending on the first
anniversary of the date of this Agreement.
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15. Other Consequences of Termination.
(a) Upon the termination of its retention as a Consultant (for
whatever reason and howsoever arising) the Consultant shall immediately repay
all outstanding debts or loans due to the Company or any Affiliate by the
Consultant or Xxxxxxxx, and the Company is hereby authorised to deduct from the
Base Consulting Fee or the Incentive Consulting Bonus payments due to the
Consultant a sum in repayment of all or any part of any such debts or loans.
16. 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.
17. Notices. Any Notice or demand required or permitted to be given or
made hereunder to or upon any 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
(confirmed orally), 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 JAKKS: 00000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
with a copy to: Feder, Kaszovitz, Isaacson,
Weber, Xxxxx, Bass & Rhine LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
to Consultant or Xxxxxxxx:
0 Xxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxx X0X000
Fax: 000-000-0000
with a copy to: Xxxxx Raysman Xxxxxxxxx
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
or such other address as any Party hereto may at any time, or from time to time,
direct by Notice given to the other Parties in accordance with this Section.
Except as otherwise expressly provided herein, 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), three 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.
18. 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.
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19. 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.
20. 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. Each Party to this
Agreement submits to the jurisdiction of the courts of the State of New York,
located in New York County, New York, United States of America, and to the
jurisdiction of the United States District Court for the Southern District of
Xxx Xxxx, Xxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx of America with respect to any
matter arising out of this Agreement, waives any objection to venue in the
Counties 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 Section 18 hereof. If
service of process is required to be made within the United States of America,
Consultant or Xxxxxxxx each appoints as its agent for service of any process the
firm of Brown, Raysman, Xxxxxxxxx, Xxxxxx & Xxxxxxx LLP.
21. 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.
22. 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.
23. Further Assurances. Each Party hereto shall promptly execute,
deliver, file or record such agreements, instruments, certificates and other
documents and perform such other and further acts as any other Party hereto may
reasonably request or as may otherwise be reasonably necessary or proper, to
carry out the provisions of this Agreement.
24. 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.
25. Assignment. Consultant's and Xxxxxxxx'x obligations under this
Agreement may not be assigned without the prior written consent of the Company,
and any purported assignment without such consent shall be void and without
effect.
26. 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.
27. 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.
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28. 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,
Consultant shall not have any power of anticipation, assignment or alienation of
any payments required to be made to it 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 Consultant, or any
other ruling, judgment, order, writ or decree.
29. 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.
30. 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 Section or other part hereof.
31. No Presumptions. Each Party hereto acknowledges that it has had an
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.
32. Entire Agreement. This Agreement embodies the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, commitments or arrangements relating thereto.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the day and year first above written.
JAKKS PACIFIC, INC.
By; /s/ XXXX X. XXXXXXX
--------------------
Name: Xxxx X. Xxxxxxx
---------------
Title: Exec. V.P./C.F.O.
-----------------
/s/ XXXXXX XXXXXXXX
-------------------
Xxxxxx Xxxxxxxx
1515037 ONTARIO LTD.
By: /s/ XXXXXX XXXXXXXX
--------------------
Name: Xxxxxx Xxxxxxxx
---------------
Title: President
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