AMERICAN GREETINGS CORPORATION HAS CLAIMED CONFIDENTIAL TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934 CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED ON A REQUEST FOR...
Exhibit 2.1
AMERICAN GREETINGS CORPORATION HAS CLAIMED
CONFIDENTIAL TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH
RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934
CONFIDENTIAL TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH
RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED ON A
REQUEST FOR CONFIDENTIAL TREATMENT
REQUEST FOR CONFIDENTIAL TREATMENT
OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION
THE SECURITIES AND EXCHANGE COMMISSION
This Settlement Agreement is hereby entered into by and among American Greetings Corporation
and its subsidiary Those Characters from Cleveland, Inc. (collectively “AG”), and Cookie Jar
Entertainment Inc., Cookie Jar Entertainment (USA) Inc., and Cookie Jar Entertainment Holdings
(USA) Inc. (collectively “Cookie Jar”) (the “Parties”).
WHEREAS, AG is the owner of the intellectual properties commonly known as Strawberry Shortcake
and the Care Bears (the “Properties”);
WHEREAS, on May 6, 2009, AG brought an action against Cookie Jar in the Court of Common Pleas
in Cuyahoga County, Ohio, which Cookie Jar subsequently removed to the United States District Court
for the Northern District of Ohio against Cookie Jar (Case No. 09CV1056) (“Case No. 1056”);
WHEREAS, Cookie Jar has filed certain counterclaims against AG in Case No. 1056;
WHEREAS, on May 6, 2009, Cookie Jar brought an action in the Supreme Court of the State of New
York (the “NY Action”) against AG, TCFC, Xxxx Xxxxx Productions LLC (“MYP”), and MoonScoop SAS
(“MoonScoop”);
WHEREAS, the NY Action has been stayed by the Court, and Cookie Jar filed a motion for renewal
and an appeal of the Court’s Order (the “NY Appeal”);
WHERAS, Cookie Jar and AG are parties to an October 1, 2001 Agency Agreement between TCFC and
DIC, as amended to date, relating to part of the Properties (the “2001 Agency Agreement”);
WHEREAS, on July 2, 2009, AG filed a motion for relief from judgment under Federal Civil Rule
60 in the United States District Court for the Northern District of Ohio Case No. 1:08CV1533 (the
“2008 Case”), which was denied by the Court on January 6, 2010;
AMERICAN GREETINGS CORPORATION HAS CLAIMED
CONFIDENTIAL TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH
RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934
CONFIDENTIAL TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH
RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934
WHEREAS, on February 5, 2010, AG filed a notice of appeal to the United States Court of
Appeal for the Sixth Circuit of the order denying its motion for relief from judgment in the 2008
Case, which appeal has been assigned Sixth Circuit Case No. 10-3173 (the “Ohio Appeal”);
WHEREAS, on August 11, 2009, MoonScoop filed an action against AG in the United States
District Court for the Northern District of Ohio (Case No. 09CV1885) (“Case No. 1885”);
WHEREAS, AG filed a third-party complaint against Cookie Jar in Case No. 1885, and Cookie Jar
filed counterclaims against AG and crossclaims against MoonScoop and MYP in Case No. 1885;
WHEREAS, on February 5, 2010, MoonScoop filed its Second Amended and Supplemental Complaint in
Case No. 1885 against AG (ECF No. 72) (“MoonScoop’s Second Amended Complaint”);
WHEREAS, the Parties intend, by this Settlement Agreement (the “Agreement”), to fully and
completely settle and resolve any and all of their differences relating to the claims and
counterclaims in the current actions that they have asserted, as well as any potential claims that
they could have asserted, with the sole exceptions set forth below;
WHEREAS, the Parties have reached this settlement as a result of court-supervised mediation
with Xxxxxx X. Xxxx and direct mediation with the Court;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and for
other good and valuable consideration, and intending to be legally bound, the Parties agree as
follows:
TERMS AND CONDITIONS
1. Within three business days of the execution of this Agreement, AG and Cookie Jar shall file
the appropriate papers to dismiss without prejudice, discontinue, or withdraw, as applicable, all
claims, counterclaims, and any pending appeals in Case No. 1056, the NY Action, the NY Appeal, the
2008 Case, and the Ohio Appeal, and any third-party claims and/or third-party counterclaims in Case
No. 1885.
2. The same date as this Settlement Agreement, AG and Cookie Jar have entered into two new
Agency Agreements (the “Agency Agreements”) one related to Strawberry Shortcake, with terms that
take effect on January 1, 2011, and the other
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AMERICAN GREETINGS CORPORATION HAS CLAIMED
CONFIDENTIAL TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH
RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934
CONFIDENTIAL TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH
RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934
related to Care Bears with terms that take effect immediately upon its execution. The 2001
Agency Agreement, as amended, shall remain in effect through December 31, 2010, at which time it
will terminate except to the extent that its provisions are incorporated by reference in the new
Strawberry Shortcake Agency Agreement.
3. The Parties agree that their obligations under the July 20, 2008 Binding Letter Agreement
are hereby fully discharged,*.
4. Subject to the other terms of this Settlement Agreement, the Parties, for themselves and on
behalf of their successors, owners, assigns, predecessors, parent corporations, subsidiaries,
officers, directors, members, managers, employees, affiliates, partners, agents and representatives
hereby fully release, forever discharge, and covenant not to xxx all other Parties, along with
their respective successors, partners, members, managers, owners, assigns, predecessors, parent
corporations, subsidiaries, officers, directors, employees, affiliates, agents, and representatives
from (and with respect to) any controversies, causes of action, actions, proceedings, claims,
suits, arbitrations, damages, judgments, liabilities, or losses related in any way to the
allegations against the other Parties in Case Xx. 0000, Xxxx Xx. 0000, the 2008 Case, the Ohio
Appeal, the NY Action, or the NY Appeal, whether in law or in equity, whether contract or tort,
whether fixed or contingent, whether known or unknown, which any of the Parties ever had, now have
or hereafter have, shall or may have from the beginning of the world, except for any new
controversies, causes of action, actions, proceedings, claims, suits, arbitrations, damages,
judgments, liabilities, or losses that may arise subsequent to the execution of this Agreement (the
“Release”).
5. *
6. *
7. Cookie Jar agrees to provide reasonable cooperation and assistance to AG in defense of
MoonScoop’s claims as asserted in Case No. 1885.
8. This Agreement shall be construed and interpreted in accordance with the laws of the State
of Ohio, not including law related to choice of law. The Parties hereby agree and consent to the
jurisdiction of the Court in Case No. 1056 for any dispute or controversy arising under or related
in any way to this Agreement. If the Court in Case No. 1056 does not maintain jurisdiction over
such a dispute, the Parties agree that such dispute will be adjudicated by a court of competent
jurisdiction located in Cuyahoga County, Ohio.
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AMERICAN GREETINGS CORPORATION HAS CLAIMED
CONFIDENTIAL TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH
RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934
CONFIDENTIAL TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH
RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934
9. This Agreement may be executed in mutual counterparts, which, when taken together,
shall consist of one and the same instrument. This Agreement may be executed by electronic
signatures or facsimile.
10. The Parties represent and warrant to one another that the below-named individuals who have
signed and agreed to this Agreement have full legal authority to do so and further that all lawful
conditions precedent to this Agreement have been fully accomplished, and further that before
agreeing to and executing this Agreement, they have read this Agreement and had the terms and
provisions of this Agreement explained to them by attorneys of their own choosing, and that they
fully understand the meaning and effect of this Agreement.
11. This Agreement shall be binding upon, and inure to the benefit of, the Parties, as well as
their parents, affiliates, successors, assigns, and present and former owners, members, managers,
directors, officers, partners, agents, shareholders, employees, heirs, beneficiaries, and personal
representatives, if any.
12. No term or condition of this Agreement shall be deemed to have been waived unless the
Parties otherwise agree in writing.
13. The making, execution and delivery of this Agreement by the Parties have not been induced
by any representations, statements, warranties or other agreements other than those expressed
herein.
14. Modification or amendment of this Agreement by the Parties may be made only in writing,
and must be signed by the Parties or their legal counsel.
15. It is expressly understood and agreed by the Parties that the acceptance of the Parties of
the provisions of this Agreement that are applicable to them does not constitute an admission or
concession of liability on the part of the Parties, all of whom expressly deny any liability
whatsoever.
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AMERICAN GREETINGS CORPORATION HAS CLAIMED
CONFIDENTIAL TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH
RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934
CONFIDENTIAL TREATMENT OF PORTIONS OF THIS AGREEMENT IN ACCORDANCE WITH
RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934
This Agreement constitutes the entire agreement of the Parties relating to the settlement of
the disputes specified in and any and all potential claims relating to Case Xx. 0000, Xxxx Xx.
0000, the 2008 Case, the Ohio Appeal, the New York Appeal, and the NY Action.
IN WITNESS WHEREOF, the Parties hereby execute this Agreement, intending to be legally bound.
AMERICAN GREETINGS CORPORATION | ||
By:
|
/s/ Xxxxx Xxxxxxxxxx | |
Vice President — CEO-AG Its: Intellectual Properties |
||
Date: May 7, 2010 | ||
THOSE CHARACTERS FROM CLEVELAND INC. | ||
By:
|
/s/ Xxxxx Xxxxxxxxxx | |
Its: Vice President | ||
Date: May 7, 2010 |
COOKIE JAR ENTERTAINMENT INC. | ||
By:
|
/s/ Xxxx Xxxxxxxx | |
Its: General Counsel | ||
Date: May 7, 2010 | ||
COOKIE JAR ENTERTAINMENT (USA) INC. | ||
By:
|
/s/ Xxxx Xxxxxxxx | |
Its: General Counsel | ||
Date: May 7, 2010 | ||
COOKIE JAR ENTERTAINMENT HOLDINGS (USA) INC. | ||
By:
|
/s/ Xxxx Xxxxxxxx | |
Its: General Counsel | ||
Date: May 7, 2010 |
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