printer-friendly

Sample Business Contracts

Termination, Release and Consulting Agreement - WizKids Inc., Topps Co. Inc. and Jordan Weisman

Sponsored Links

                                    AGREEMENT

This Termination,  Release and Consulting Agreement  (hereinafter referred to as
the "Termination Agreement", "the Release" or the "Consulting Agreement"), dated
June 20, 2006 (the "Effective Date") is between Wizkids, Inc.  ("Wizkids"),  The
Topps Company, Inc. ("Topps") (Wizkids and Topps collectively referred to as the
"Company"), and Jordan Weisman ("Executive");

WHEREAS the parties  wish to terminate  that  Employment  Agreement  between the
parties  dated  July 9,  2003,  and  subsequently  amended on August 1, 2003 and
October 1, 2003 (the "Employment Agreement");

WHEREAS,  Executive  has been  employed  by the  Wizkids and the Company and the
Executive  desire  to  provide  for an  orderly  termination  of the  employment
relationship,  effective  June 20, 2006, and to settle fully and finally any and
all differences  between them and any and all claims and causes of action of any
kind  whatsoever  which  Executive  has or may have against the Company or which
Company has or may have against the Executive;

WHEREAS,  Executive  acknowledges  that  Executive has made use of,  acquired or
added to  confidential  information  of a special  and  unique  nature and value
relating to such  matters  as,  without  limitation,  the  Company's  processes,
formulas, programs, know-how, improvements,  discoveries, developments, designs,
inventions,  techniques,  marketing plans,  budgets,  projections,  customer and
supplier  lists,  information,  products  or  materials  of the  Company,  trade
secrets, systems,  procedures,  manuals,  technical information,  data, reports,
lists and  records as well as the nature and type of other  services  or methods
used by the Company (all such information  hereinafter  collectively referred to
as the "Confidential Information"); and

WHEREAS, the parties wish to reach a new consulting arrangement;

NOW  THEREFORE,  for full  consideration,  the  sufficiency  of which is  hereby
acknowledged, the parties hereby agree as follows:

1.   As of the Effective  Date, all terms of the Employment  Agreement  shall be
     terminated  by mutual  agreement  of the  parties,  except as provided  for
     herein.

2.   As of the Effective  Date,  Company shall cause all funds currently held in
     the secured escrow  pursuant to Paragraph 6(g) of the Employment  Agreement
     to be released to Executive.

3.   Other than any amounts accrued but unpaid hereunder in respect of Salary or
     unreimbursed  expenses as of the Effective  Date, no party owes any further
     payments to the other  under the  Employment  Agreement,  either as salary,
     bonus or severance to be paid by Wizkids,  liquidated damages to be paid by
     Executive, or otherwise.

4.   From the  Effective  Date  until the  fourth  anniversary  thereafter  (the
     "Consulting  Term"),  Executive  shall continue to develop,  in good faith,
     collectible  games that have material physical  components,  non-electronic
     board games,  non-electronic role playing games (such as games like Dungeon
     and Dragons) and the  potential  electronic  translation  of all such games
     (all games referenced above hereinafter  referred to as "Gaming Concepts").
     Topps,  either itself or through its  subsidiary,  Wizkids,  shall have the
     right of first refusal during the Consulting Term to develop, market and/or
     sell  the  Gaming  Concepts  pursuant  to an  exclusive  license  agreement
     negotiated  by the  parties  in good  faith,  provided  that  it is  herein
     predetermined  that in such  license  agreement  the royalty  shall be five
     percent  (5%) of net sales,  except  that if the Gaming  Concept is used in
     connection  with a third party  license,  the  royalty  rate shall be three
     percent (3%) of net sales.  Executive agrees to promptly present all Gaming
     Concepts,  as defined  above,  in writing to a  representative  of Topps or
     Wizkids  (such  representative  to be  designated  by  Topps  in  its  sole
     discretion).  Company,  through its designated  representative,  shall have

<PAGE>

     ninety  (90)  days  from the  receipt  of such  Gaming  Concept  to  inform
     Executive whether Company wishes to exercise its right of first refusal. In
     the event the representative elects to exercise the right of first refusal,
     Company   shall,   within  ten  (10)   business   days,   pay  Executive  a
     non-refundable  advance of ten  thousand  dollars  ($10,000) to be credited
     against  subsequently  royalties from the applicable Gaming Concept and the
     parties  shall  promptly  negotiate  a long  form  license  agreement  with
     standard and customary  industry  terms and  conditions  supplementing  the
     predetermined terms set forth herein. Ownership of the Gaming Concept shall
     revert to Executive if Company has not publicly  announced the product line
     employing the Gaming  Concept  within twelve months of exercising its right
     of first  refusal,  provided that if Company and Executive  have executed a
     long form license agreement within the twelve months following the exercise
     of the right of first refusal,  Company shall be given an additional  three
     (3) months to publicly  announce the Gaming Concept (for a total of fifteen
     (15)  months from the date of the  exercise  of the right of first  refusal
     before ownership rights revert to Executive).

     By way of clarification,  games that have de minimis electronic  components
     shall  be  considered  "non-electronic"  as that  term is used to  describe
     "board games" and "role playing games" above.  Company shall therefore have
     a right of first refusal on such games.  Further,  Company's right of first
     refusal shall extend to all  "electronic" or  "non-electronic"  collectible
     games provided such games contain a material physical component.

5.   If  Topps  or  Wizkids  elects  to  launch  the  Star  Wars   constructible
     collectible  game already  developed by Executive and pitched by Wizkids to
     various customers, it shall pay Executive a two percent (2%) royalty of net
     sales,  providing  that the total  royalties  Topps shall owe to  Executive
     shall be capped at three hundred thousand dollars ($300,000).

6.   The Executive  acknowledges that the agreements and covenants  contained in
     this Section 6 are essential to protect the value of the Company's business
     and assets and, by his ownership  interest in and past  employment with the
     Company and its  predecessors,  the  Executive has obtained and will obtain
     knowledge,  contacts,  know-how,  training  and  experience  and there is a
     substantial probability that such knowledge,  know-how,  contacts, training
     and experience  could be used to the substantial  advantage of a competitor
     of the Company and to the Company's substantial  detriment.  For the period
     ending one year after the Consulting Term, Executive shall not, whether for
     his own  account or for the account of any other  individual,  partnership,
     firm,  corporation or other business  organization,  directly or indirectly
     solicit,  endeavor  to entice  away from  Company or its  subsidiaries,  or
     otherwise  directly  interfere  with the  relationship  of  Company  or its
     subsidiaries with any person who, to his knowledge, is employed by Company.
     The placement of any general  classified  or "help  wanted"  advertisements
     and/or general  solicitations to the public at large shall not constitute a
     violation  of this Section 6 unless  Executive's  name is contained in such
     advertisements or solicitations.

7.   During the Consulting Term,  Executive's  status in all matters pursuant to
     this Agreement shall be that of an independent contractor.  For purposes of
     this Agreement, the term "Independent Contractor" shall include all of IC's
     employees, agents, representatives,  and subcontractors.  Executive may not
     directly or indirectly represent or imply in any way that he is an employee
     of Company.  Executive is not eligible for Company employee benefits or any
     other considerations of Company employment, nor is Executive allowed to use
     Company letterhead,  business cards, trademarks,  or other forms of Company
     identification.

8.   Release and Waiver of Claims by Executive

     Except as provided in the last  paragraph of this Section 8, the Executive,
     on  behalf  of  himself/herself,  and  his/her  family,  heirs,  executors,
     administrators, legal representatives and assigns (collectively referred to
     in this Release as the  "Executive"),  hereby  unconditionally  and forever
     releases,   discharges  and  waives  any  and  all  claims  of  any  nature
     whatsoever,  whether legal,  equitable or otherwise which the Executive may
     have   against  the   Company,   its   Executives,   officers,   directors,

<PAGE>

     predecessors, subsidiaries,  shareholders,  representatives and agents, and
     any person or entity which may succeed to the rights and liabilities of any
     such entities or persons by assignment or otherwise  (collectively referred
     to in this Release as the "Company"),  arising at any time on or before the
     Effective  Date,  in  each  case  relating  to or in  connection  with  the
     Executive's  employment by, or termination of employment with, the Company,
     other than with respect to the  obligations of the Company to the Executive
     under this  Release.  This Release is a release of all claims of any nature
     whatsoever by the Executive against the Company, other than with respect to
     the  obligations  of the Company to the Executive  under this Release,  and
     includes,  other  than as herein  provided,  any and all  claims,  demands,
     causes of action,  liabilities  whether  known or unknown  including  those
     caused  by,  arising  from  or  related  to  the   Executive's   employment
     relationship with the Company including,  but without  limitation,  any and
     all alleged  discrimination or acts of discrimination which occurred or may
     have occurred on or before the Effective Date based upon race,  color, sex,
     creed, national origin, age, disability or any other violation of any Equal
     Employment   Opportunity  Law,  ordinance,   rule,   regulation  or  order,
     including,  but not limited to,  Title VII of the Civil Rights Act of 1964,
     as  amended;  the  Civil  Rights  Act of 1991;  the Age  Discrimination  in
     Employment Act, as amended (as further  described in Section 2 below);  the
     Americans  with  Disabilities  Act;  claims under the Executive  Retirement
     Income  Security Act of 1974, as amended;  or any other  federal,  state or
     local  laws  or  regulations   regarding   employment   discrimination   or
     termination of employment.  This Release also includes  claims for wrongful
     discharge,  fraud, or misrepresentation under any statute, rule, regulation
     or under the common law.

     The Executive  understands and knowingly  agrees to this Release because it
     is his/her  intent in  executing  this  Release to  forever  discharge  the
     Company from any and all causes of action, foreseen or unforeseen, that may
     have existed on or prior to the Effective Date,  except for the obligations
     of the Company set forth in this Release.

     Notwithstanding the foregoing, the Executive does not release, discharge or
     waive: (i) any rights to receive any benefits provided under the provisions
     of any Company-maintained  qualified retirement plan in which the Executive
     participates, (ii) any rights to reimbursement for Company-related business
     expenses incurred by the Executive on or prior to the Effective Date, (iii)
     any conversion rights under a  Company-sponsored  group term life insurance
     plan  in  which   the   Executive   participates,   (iv)  any   rights   to
     indemnification  from the Company to the  fullest  extent  permitted  under
     relevant  corporate  law,  or (v) any  right to  enforce  the terms of this
     Release.

9.   Release and Waiver of Claims by Company

     Except as provided in the last paragraph of this Section 9, the Company, on
     behalf of its Executives, officers, directors, predecessors,  subsidiaries,
     shareholders,  representatives  and agents,  and any person or entity which
     may succeed to the rights and  liabilities  of any such entities or persons
     by assignment or otherwise (collectively referred to in this Release as the
     "Company")  hereby  unconditionally  and forever  releases,  discharges and
     waives  any  and  all  claims  of any  nature  whatsoever,  whether  legal,
     equitable or otherwise which the Company may have against the Executive, on
     behalf of himself, and his family, heirs, executors,  administrators, legal
     representatives  and assigns  (collectively  referred to in this Release as
     the  "Executive"),  arising at any time on or before the Effective Date, in
     each case relating to or in connection with the Company's employment of, or
     termination of employment  with, the Executive,  other than with respect to
     the  obligations  of the Executive to the Company under this Release.  This
     Release is a release of all claims of any nature  whatsoever by the Company
     against the  Executive,  other than with respect to the  obligations of the
     Executive to the Company  under this Release,  and includes,  other than as
     herein provided, any and all claims, demands, causes of action, liabilities
     whether known or unknown including those caused by, arising from or related
     to the Executive's employment relationship with the Company including,  but
     without  limitation,   any  and  all  alleged  discrimination  or  acts  of
     discrimination  which  occurred  or may  have  occurred  on or  before  the

<PAGE>

     Effective Date based upon race,  color, sex, creed,  national origin,  age,
     disability or any other violation of any Equal Employment  Opportunity Law,
     ordinance,  rule, regulation or order, including, but not limited to, Title
     VII of the Civil  Rights Act of 1964,  as amended;  the Civil Rights Act of
     1991;  the Age  Discrimination  in  Employment  Act, as amended (as further
     described in Section 2 below);  the Americans with Disabilities Act; claims
     under the Executive  Retirement Income Security Act of 1974, as amended; or
     any other federal,  state or local laws or regulations regarding employment
     discrimination  or termination  of  employment.  This Release also includes
     claims for fraud, or misrepresentation  under any statute, rule, regulation
     or under the common law.

     The Company  understands and knowingly agrees to this Release because it is
     the  Company's  intent in executing  this Release to forever  discharge the
     Executive from any and all causes of action,  foreseen or unforeseen,  that
     may  have  existed  on or  prior  to the  Effective  Date,  except  for the
     obligations of the Executive set forth in this Release.

10.  Release and Waiver of Claims Under the Age Discrimination in Employment Act

     The Executive  acknowledges that the Company  encouraged him/her to consult
     with an attorney of his/her choosing,  and through this Release  encourages
     him/her to consult with his/her  attorney  with respect to possible  claims
     under  the  Age  Discrimination  in  Employment  Act of  1967,  as  amended
     ("ADEA"),  as well as under all other federal,  state and local laws within
     the scope of Section 8, above,  and that the  Executive  acknowledges  that
     he/she   understands   that  ADEA  is  a  federal  statute  that  prohibits
     discrimination,  on the basis of age, in employment,  benefits, and benefit
     plans. The Executive wishes to waive any and all claims under ADEA, as well
     as under  all other  federal,  state and  local  laws  within  the scope of
     Section 8, above,  that he/she may have, as of the Effective Date,  against
     the  Company,   and  hereby  waives  such  claims.  The  Executive  further
     understands  that by  signing  this  Release  he/she  is in  fact  waiving,
     releasing and forever  giving up any claim under ADEA, as well as all other
     federal,  state and local laws within the scope of Section 8,  above,  that
     may have existed on or prior to the Effective Date.  Without  detracting in
     any respect from any other provision of this Release:


          a. The Executive agrees and acknowledges that this Release constitutes
     a knowing and  voluntary  waiver of all rights or claims  he/she has or may
     have  against  the  Company,  including  but not  limited to, all rights or
     claims  arising  under  ADEA;  and that  he/she has no  physical  or mental
     impairment of any kind that has interfered with his/her ability to read and
     understand the meaning of this Release or its terms, and that he/she is not
     acting under the influence of any medication,  drug or chemical of any type
     in entering into this Release.

          b. The  Executive  understands  that,  by entering  into this Release,
     he/she does not waive  rights or claims under ADEA that may arise after the
     date of the execution of this Release.

          c. The  Executive  agrees  and  acknowledges  that  the  consideration
     provided to him/her  under this Release is in addition to anything of value
     to which he/she is already entitled.

          d. The Executive acknowledges that he/she was informed that he/she had
     at least 45 calendar days in which to review and consider this Release, and
     in which to consult with his/her attorney regarding the terms and effect of
     this Release.

          e.  Notwithstanding  anything  contained herein to the contrary,  this
     Release will not become  effective or enforceable for a period of seven (7)
     calendar days  following its  execution by the  Executive  (the  "Effective
     Date"),  during which time the Executive may revoke  his/her  acceptance of
     this  Release by  notifying  Bill  O'Connor  at the  Company,  fax  number:
     212-376-0627 in writing. To be effective,  such revocation must be received
     by the  Company  no later  than  5:00  p.m.  on the  seventh  calendar  day
     following its execution.

<PAGE>

          f. In the  event  of  revocation  of  this  Release  by the  Executive
     pursuant to subparagraph (e) above,  this Release will be null and void and
     of no effect, and the Company will have no obligations hereunder.

Attached hereto is a schedule setting forth certain  information  required under
29 C.F.R. ss. 1625.22.

11.  Proceedings

     The  Executive  represents  that  he/she has not  filed,  and agrees not to
     initiate or cause to be initiated on his/her behalf, any complaint, charge,
     claim or proceeding  against the Company before any local, state or federal
     agency,  court  or  other  body  relating  to  his/her  employment  or  the
     termination  of  his/her  employment,   other  than  with  respect  to  the
     obligations  of the  Company  to the  Executive  under this  Release  (each
     individually, a "Proceeding"), and agrees not to voluntarily participate in
     any Proceeding.  The Executive  waives any right he/she may have to benefit
     in any manner from any relief (whether  monetary or otherwise)  arising out
     of any Proceeding.

12.  Remedies

     In the event the Executive  initiates or  voluntarily  participates  in any
     Proceeding,  or if  he/she  fails  to  abide  by any of the  terms  of this
     Release,  or if he/she  revokes this Release  within the  seven-day  period
     provided  under  Section  9(e) above,  the Company  may, in addition to any
     other remedies it may have,  reclaim any amounts paid to him/her under this
     Release,  or terminate  any payments that are  subsequently  due under this
     Release,   without  waiving  the  Release  granted  herein.  The  Executive
     acknowledges and agrees that the remedy at law available to the Company for
     breach  of  his/her  obligations  under  Sections  8,  9, 10 and 13 of this
     Release would be inadequate and that damages flowing from such a breach may
     not  readily  be  susceptible   to  being   measured  in  monetary   terms.
     Accordingly,  the  Executive  acknowledges,  consents and agrees  that,  in
     addition to any other rights or remedies which the Company may have at law,
     in equity or under this Release,  upon adequate proof of his/her  violation
     of any such  provision of this  Release,  the Company  shall be entitled to
     immediate  injunctive  relief and may obtain a temporary order  restraining
     any threatened or further breach,  without the necessity of proof of actual
     damage. The Executive understands that by entering into this Release he/she
     will be limiting the  availability of certain remedies that he/she may have
     against the Company and  limiting  also his/her  ability to pursue  certain
     claims against the Company.

13.  Return of Property

          All Company files, documents, Work Product (as defined in the
          Employment Agreement), software, access keys, desk keys, ID badges and
          credit cards, and such other property of the Company, as the Company
          may reasonably request, in the Executive's possession must be returned
          as soon as practicable, but in no event later than the date this
          Release is duly executed and returned to the Company.

14.  Confidentiality

     Executive shall not directly or indirectly  disclose or use at any time the
     Confidential Information,  except with the Company's prior written consent,
     whether or not such  Confidential  Information  was  obtained,  acquired or
     developed by Executive while rendering services for the Company.  Executive
     shall not provide or otherwise make available,  directly or indirectly, any
     part of the  Confidential  Information  to any person,  firm,  corporation,
     association  or other entity for any reason or purpose  whatsoever  without
     the Company's prior express written consent, it being expressly  understood
     and agreed  that all of the  Confidential  Information  is and shall be the
     sole  property  of the  Company,  and that  Executive  shall  assign to the
     Company, upon request, any and all rights to the Confidential Information.

<PAGE>

     Executive will not, without the Company's prior written  consent,  disclose
     to any person, firm or corporation any information concerning the business,
     methods or affairs of the Company which  Executive may have acquired in the
     course  of or as an  incident  to  Executive  rendering  services  for  the
     Company,  nor will  Executive  utilize,  communicate or divulge to, or use,
     directly or indirectly,  for the benefit of  himself/herself,  or any other
     person,  partnership,   association  or  corporation,  any  information  or
     knowledge concerning the methods of development,  promotion, sale, purchase
     or distribution  used or employed by the Company or its  subsidiaries in or
     about its business. In addition to the items described in Section 12 above,
     Executive  shall  turn  over  to  the  Company  all  of  the   Confidential
     Information and all notes, memoranda, notebooks or other documents made by,
     compiled by or  delivered to  Executive  and  relating to all  Confidential
     Information,  it  being  understood  and  agreed  that  the  same  and  all
     information  referred to herein is and was at all times the property of the
     Company.

15.  Severability Clause

     In the event any  provision  or part of this Release is found to be invalid
     or unenforceable,  only that particular provision or part so found, and not
     the entire Release, will be inoperative.

16.  Non-Admission

     Nothing  contained  in this  Release  will be  deemed  or  construed  as an
     admission  of  wrongdoing  or  liability  on the part of the Company or the
     Executive.

17.  Entire Agreement

     This Release  constitutes  the entire  agreement and  understanding  of the
     parties with respect to the subject  matter hereof and supersedes all prior
     oral or written agreements,  arrangements,  and understandings with respect
     thereto, including, but not limited to, the Company's severance policy.

18.  Governing Law/Notice

     This Release shall be governed by and construed in accordance  with Federal
     law and the laws of the State of New York,  applicable to releases made and
     to be  performed  in that  State;  and the  parties  agree  to the sole and
     exclusive  jurisdiction  of the federal and state  courts of New York,  New
     York,  and agree to  appear in any  action  in such  courts by  service  of
     process by certified  mail,  return  receipt  requested,  at the  following
     addresses:

                To Company:             The Topps Company, Inc.
                                        One Whitehall Street
                                        New York, NY 10004-2109
                                        Attn: General Counsel

                To the Executive:       Jordan Weisman
                                        P. O. Box 6519
                                        Bellevue, WA  98008


<PAGE>

EXECUTIVE ACKNOWLEDGES THAT HE/SHE HAS READ THIS RELEASE AND THAT HE/SHE FULLY
KNOWS, UNDERSTANDS, AND APPRECIATES ITS CONTENTS, AND THAT HE/SHE HEREBY
EXECUTES THE SAME AND MAKES THIS RELEASE AND THE RELEASES PROVIDED FOR HEREIN
VOLUNTARILY AND OF HIS/HER OWN FREE WILL.


     IN WITNESS WHEREOF,  the parties have executed this Release as of the first
date set forth above.

s/ Jordan Weisman
---------------------
   JORDAN WEISMAN


WIZKIDS, INC.


By:   s/   Warren Friss
      -------------------
Name:      WARREN FRISS
Title:    Vice-President



THE TOPPS COMPANY, INC.

By:   s/   Warren Friss
      --------------------
Name:      WARREN FRISS
Title:    Vice-President

<PAGE>

     I, Jordan Weisman,  understand that I am entitled to take 45 days to review
and consider the Agreement and Release of All Claims (the "Release"),  which the
Company has presented to me. I have reviewed the Release,  and I am now making a
knowing and voluntary  decision to accept the terms and  conditions  outlined in
the Release as of today. In other words, I am waiving the 45-day review period.

     I also  understand  that I have 7 days from today to revoke the  Release in
accordance with Section 9(e) of the Release if I change my mind.



s/  Jordan Weisman
--------------------
    JORDAN WEISMAN


Dated: June 20, 2006