Executive Severance Plan - Topps Co. Inc.
THE TOPPS COMPANY, INC.
EXECUTIVE SEVERANCE PLAN
SUMMARY PLAN DESCRIPTION/PLAN DOCUMENT
(Amended and Restated as of June 30, 2005)
1. GENERAL INFORMATION
(a) The Topps Company, Inc. Executive Severance Plan (the "Plan") provides
a select group of management or highly compensated designated executives of The
Topps Company, Inc. (the "Company") with severance pay if they are separated
from service with the Company for the reasons described herein.
(b) Notwithstanding any other provision of the Plan, as of the date any
employee becomes an "Eligible Employee" (as defined below), the Plan supersedes
any and all prior plans, policies, or practices, written or oral, which may have
previously applied governing the payment of severance to such Eligible Employee,
including, but not limited to The Topps Company, Inc. Severance Plan, effective
February 1, 2003.
(c) The Plan is adopted and effective as of July 1, 2004 (the "Effective
Date").
(d) This Summary Plan Description/Plan Document is intended to comply with
the requirements of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA").
2. DEFINITIONS.
For purposes of the Plan, the following definitions shall apply:
(a) "Asset Sale" shall mean a sale of the Company's assets as described in
Section 9(c) of the Company's 2001 Stock Incentive Plan.
(b) "Base Salary" shall mean the Participant's base annual salary,
excluding shift premiums, overtime, bonuses, commissions, other special payments
or any other allowance.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Cause" shall mean that an Eligible Employee has (i) refused or
repeatedly failed to perform the duties assigned to him/her; (ii) engaged in a
willful or intentional act that has the effect of injuring the reputation or
business of the Company in any material respect; (iii) continually or repeatedly
been absent from the Company, unless due to serious illness or disability; (iv)
used illegal drugs or been impaired due to other substances; (v) been convicted
of any felony; (vi) committed an act of gross misconduct, fraud, embezzlement or
theft against the Company; (vii) engaged in any act of such extreme nature that
the Company determines to be grounds for immediate dismissal, including, but not
limited to harassment of any nature; or (viii) violated a material company
policy; provided, however, that following a Change in Control, a termination for
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Cause pursuant to clause (i) shall only be permitted if the Eligible Employee's
refusal or repeated failure to perform the duties assigned to him/her were
willful and deliberate on the Eligible Employee's part or committed in bad faith
or without reasonable belief that such refusal or failure was in the best
interests of the Company. The determination of whether any conduct, action or
failure to act on the part of any Eligible Employee constitutes Cause shall be
made by the CEO in the CEO's sole discretion; provided, however, that following
a Change in Control, any such determination by the CEO shall be approved by the
Successor Compensation Committee.
(e) "Change in Control" shall have the meaning assigned to it in the
Company's 2001 Stock Incentive Plan.
(f) "CEO" shall mean the Chief Executive Officer of the Company.
(g) "Disability" shall mean the Eligible Employee's absence from his/her
duties with the Company on a full-time basis for at least 180 consecutive days
as a result of the Eligible Employee's incapacity due to physical or mental
illness.
(h) "Eligible Employee" shall mean an executive of the Company, other than
the CEO, who has been selected by the CEO as a covered employee under this Plan
and who has executed the Acknowledgment and Acceptance of the Terms and
Conditions of the Plan and agreed to be bound by the terms and conditions of the
Plan.
(i) "Good Reason" shall mean the occurrence of any of the following events
following a Change in Control, without the Eligible Employee's express written
consent:
(i) the assignment to the Eligible Employee of any duties which
constitute, in any material respect, a change in the Eligible Employee's
position(s), duties or responsibilities with the Company immediately prior
to such Change in Control; provided, however, that the fact that the
Eligible Employee's duties following a Change in Control are owed to a
Successor or an affiliate of a Successor shall not in and of itself
constitute a change in such Eligible Employee's position(s), duties or
responsibilities in any material respect;
(ii) a reduction in the Eligible Employee's Base Salary or bonus
opportunity as in effect immediately prior to such Change in Control or as
the same may be increased from time to time thereafter;
(iii) any requirement that the Eligible Employee be based more than
thirty (30) miles from the Eligible Employee's principal place of
employment immediately prior to the Change in Control;
(iv) the failure of the Successor to (A) continue in effect any
employee benefit plan or compensation plan in which the Eligible Employee
and the Eligible Employee's eligible dependants are participating
immediately prior to such Change in Control, unless the Eligible Employee
is permitted to participate in other plans providing the Eligible Employee
with substantially equivalent benefits in the aggregate or (B) provide the
Eligible Employee with paid vacation in accordance with the plans,
practices, programs and policies of the Company and its affiliated
companies in effect for the Eligible Employee immediately prior to such
Change in Control or as in effect generally at any time thereafter with
respect to other peer executives of the Company.
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For purposes of this Plan, any good faith determination of Good Reason made
by the Eligible Employee shall be conclusive; provided, however, that an
isolated, insubstantial and inadvertent action taken in good faith and which is
remedied by the Successor promptly after receipt of notice thereof given by the
Eligible Employee shall not constitute Good Reason.
(j) "Participant" shall mean an Eligible Employee whose employment has been
terminated for any of the reasons set forth in Section 3(b) below.
(k) "Plan Administrator" shall have the meaning assigned to it in Section
6(e) below.
(l) "Release" shall mean an agreement releasing any and all claims the
Participant may have against, among others, the Company, its parents,
subsidiaries, affiliates and each of its current and former shareholders,
officers, and directors, each of the foregoing in their capacity as such.
(m) "Successor" shall mean the Company's successor in interest or other
entity acquiring control of the Company or its assets as a result of a Change in
Control.
(n) "Successor Compensation Committee" shall mean the Compensation
Committee of the Board of Directors of the Successor; provided, however, that if
the Successor does not have a Compensation Committee, "Successor Compensation
Committee" shall refer to such entity's full Board of Directors or similar
governing body.
(o) "Termination Date" shall mean the last official work day for which the
Participant receives pay for service with the Company.
(p) "Years of Service" shall mean a Participant's completed year of service
measured from his/her date of hire by the Company; provided, however, that
following the completion of the Participant's first Year of Service, a
Participant will be considered to have completed a full Year of Service after
completing six (6) months of service in that year.
3. ELIGIBILITY FOR SEVERANCE BENEFITS
(a) The Plan Administrator shall provide each Eligible Employee with
written notice of his/her eligibility in the Plan. Such notification shall be
delivered to the Eligible Employee as soon as practicable following the
Effective Date.
(b) An Eligible Employee shall become a "Participant" for purposes of this
Plan, if his/her employment is terminated for any of the following reasons:
(i) Termination of employment by the Company without Cause and such
termination is unrelated to a Change in Control of the Company (a
"Non-Change in Control Termination"), or
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(ii) Termination of employment by (A) the Company or a Successor
without Cause in connection with a Change in Control of the Company or
within two years following a Change in Control of the Company or (B) the
Eligible Employee for Good Reason within two years following a Change in
Control of the Company (either of which shall be referred to as a "Change
in Control Termination"); provided, however, that in the event of an Asset
Sale that constitutes a Change in Control for an Eligible Employee, the
termination of such Eligible Employee's employment with the Company in
connection with such Asset Sale shall not constitute a termination of
employment by the Company without Cause in connection with a Change in
Control of the Company for purposes of this Section 3(b)(ii) if in
connection with such Asset Sale or immediately following such Asset Sale
such Eligible Employee is offered comparable employment with the Successor
to the assets sold, disposed of or transferred or the Eligible Employee
accepts employment with such Successor within six months following such
Asset Sale; and further provided, however, that if an Asset Sale which
constitutes a Change in Control for an Eligible Employee is effected
through the sale of a subsidiary of the Company, the termination of such
Eligible Employee's employment with the Company solely on account of the
sale of such subsidiary shall not constitute a termination of employment
without Cause in connection with a Change in Control of the Company for
purposes of this Section 3(b)(ii) if immediately following the consummation
of such sale such Eligible Employee remains employed with such subsidiary
or is offered comparable employment with the Successor to the assets sold,
disposed of or transferred or the Eligible Employee accepts employment with
such Successor within six months following such Asset Sale. For purposes of
this Section 3(b)(ii), an Eligible Employee will not be deemed to have been
offered "comparable employment" if any change to such Eligible Employee's
employment with a Successor when compared with such Eligible Employee's
employment immediately prior to such Asset Sale would constitute Good
Reason.
4. SEVERANCE BENEFITS
(a) Severance Benefit Amounts.
(i) Non-Change in Control Termination. Subject to Section 4(b) below,
in the event a Participant becomes entitled to benefits pursuant to Section
3(b)(i) above, the Company shall pay to the Participant a lump sum payment
equal to the sum of (A) six (6) weeks of Base Salary (determined as of the
Termination Date) and (B) one (1) week of Base Salary (determined as of the
Termination Date) for each Year of Service, provided, however, that each
such Participant shall receive a minimum of eight (8) weeks of Base Salary
(determined as of the Termination Date).
(ii) Change in Control Termination. Subject to Section 4(b) below, in
the event a Participant becomes entitled to benefits pursuant to Section
3(b)(ii) above, the Company shall pay to the Participant a lump sum payment
equal to two (2) times the sum of (A) the Participant's Base Salary
(determined as of the Termination Date) and (B) the Participant's highest
annual bonus paid or payable with respect to any of the last three fiscal
years of the Company that ended immediately prior to the Termination Date.
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(b) Notwithstanding anything contained herein to the contrary, the payments
to be provided to the Participant as set forth in Section 4(a):
(i) shall be lieu of any and all benefits otherwise provided under any
severance pay policy, plan or program maintained from time to time by the
Company for its employees, including, but not limited to any and all
provisions relating to severance or separation benefits that are contained
in any written employment agreement entered into between the Company and
the Participant or any offer letter received from the Company; and,
(ii) shall not be paid upon termination of the Eligible Employee's
employment (A) by the Company for Cause, (B) by the Eligible Employee for
any reason prior to a Change in Control, (C) by the Eligible Employee for
any reason other than Good Reason following a Change in Control, (D) as a
result of the Eligible Employee's death, or (E) by the Company due to a
Disability; and
(iii) shall not be due or paid or made available hereunder unless and
until the Participant or his representative has executed a Release, and any
applicable revocation period described in such Release has expired.
(c) Taxes on Severance Pay. Severance payments are considered taxable
income. All appropriate federal, state and local taxes will be withheld from all
severance pay.
(d) Severance Benefit Offsets. Payment of severance benefits pursuant to
this Plan shall not be subject to offset, counterclaim, recoupment, defense or
other claim, right or action which the Company may have, provided, however, that
the amount of the severance benefit which any Participant is entitled to receive
under the Plan shall be reduced, on a dollar for dollar basis, by all amounts,
if any, which the Participant is entitled to receive as a result of the
circumstances of his or her termination under the Federal Worker Adjustment and
Retraining Notification Act (Pub. L. 100-379) or other similar federal, state or
local statute. Payment of severance benefits pursuant to this Plan shall not be
subject to a requirement that the Participant mitigate or attempt to mitigate
damages resulting from the Participant's termination of employment.
(e) Continuation of Benefits in the Event of Death. In the event a
Participant dies prior to receipt of his or her entire severance benefit, the
remaining portion of such severance benefit shall continue to be paid, in the
same form as it was paid prior to death, to the Participant's spouse, or if the
Participant is not married on the date of death, to the Participant's estate.
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5. RESTRICTIVE COVENANTS.
In consideration for the benefits provided under this Plan, each
Participant hereby agrees and acknowledges to be bound to the following
restrictive covenants:
(a) Confidentiality. Except as may be required by law or legal process, the
Participant shall not at any time during the course of his/her employment or
after the Termination Date disclose to any person or entity or use any
information not in the public domain or generally known in the industry that the
Company treats as confidential or proprietary, in any form, acquired by the
Participant while employed by the Company or any predecessor to the Company's
business or, if acquired following the Termination Date, such information which,
to the Participant's knowledge, has been acquired, directly or indirectly, from
any person or entity owing a duty of confidentiality to the Company or any of
its subsidiaries or affiliates, including but not limited to information
regarding clients, customers, investors, vendors, suppliers, trade secrets,
training programs, manuals or materials, technical information, contracts,
systems, procedures, mailing lists, know-how, trade names, improvements, price
lists, financial or other data (including the revenues, costs or profits
associated with any of the Company's products or services), business plans, code
books, invoices and other financial statements, computer programs, software
systems, databases, discs and printouts, plans (business, technical or
otherwise), customer and industry lists, correspondence, internal reports,
personnel files, sales and advertising material or any other compilation of
information, written or unwritten, which is or was used in the business of the
Company or any subsidiaries or affiliates thereof. The Participant agrees and
acknowledges that all of such information, in any form, and copies and extracts
thereof, are and shall remain the sole and exclusive property of the Company,
and upon the Termination Date, the Participant shall return to the Company the
originals and all copies of any such information provided to or acquired by the
Participant in connection with the performance of his duties for the Company,
and shall return to the Company all files, correspondence and/or other
communications received, maintained and/or originated by the Participant during
the course of his/her employment.
(b) Non-Compete. The Participant acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that in the event of a Change in Control Termination pursuant
to Section 3(b)(ii) above, during the six (6) month period following the
Termination Date, the Participant shall not, directly or indirectly, whether as
an employee, consultant, owner, shareholder, partner, member or otherwise, (i)
engage in any business for his/her own account of the type performed by the
Company in the geographic areas where the Company is actively doing business or
soliciting business at the time of the Participant's termination ("Competitive
Business"); (ii) enter the employ of, or render any services to, any person
engaged in a Competitive Business; or (iii) acquire a financial interest in, or
otherwise become actively involved with, any person engaged in a Competitive
Business. Notwithstanding anything contained herein to the contrary, the
Participant may, directly or indirectly own, solely as an investment, securities
of any person engaged a Competitive Business which are publicly traded on a
national or regional stock exchange or on the over-the-counter market if he/she
(A) is not a controlling person of, or a member of a group which controls, such
person and (B) does not, directly or indirectly, own 5% or more of any class of
securities of such person.
(c) Non-Solicitation. In the event of a Change In Control Termination
pursuant to Section 3(b)(ii) above, for a period of six (6) months following the
Termination Date, the Participant shall not, whether for his/her own account or
for the account of any other individual, partnership, firm, corporation or other
business organization, directly or indirectly: (i) solicit, endeavor to entice
away from the Company or any of its subsidiaries or affiliates, or otherwise
directly interfere with the relationship of the Company or any of its
subsidiaries or affiliates with any person who, to the knowledge of the
Participant, is or was within the then most recent twelve-month period, a
customer or client of the Company, its predecessors or any of its subsidiaries
or (ii) attempt to influence, persuade or induce, or assist any other person in
so persuading or inducing, any employee of the Company to give up, or to not
commence, employment or a business relationship with the Company.
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(d) Non-Disparagement. The Participant agrees that he/she will make no
disparaging or defamatory comments regarding the Company or its directors,
officers, shareholders or employees in any respect or make any comments
concerning any aspect of the Participant's relationship with the Company or the
conduct or events which precipitated the Participant's termination of employment
from the Company. The obligations of the Participant under this Section 5(d)
shall not apply to disclosures required by applicable law, regulation or order
of a court or governmental agency.
(e) Acknowledgment: In consideration for the benefits provided under this
Plan, each Participant acknowledges and confirms that (i) the restrictive
covenants contained in this Section 5 are reasonably necessary to protect the
legitimate business interests of the Company, and (ii) the restrictions
contained in this Section 5 (including without limitation the length of the term
of the provisions of this Section 5) are not overbroad, overlong, or unfair and
are not the result of overreaching, duress or coercion of any kind. The
Participant further acknowledges and confirms that his/her full, uninhibited and
faithful observance of each of the covenants contained in this Section 5 will
not cause him/her any undue hardship, financial or otherwise, and that
enforcement of each of the covenants contained herein will not impair his/her
ability to obtain employment commensurate with his/her abilities and on terms
fully acceptable to him/her or otherwise to obtain income required for the
comfortable support of him/her and his/her family and the satisfaction of the
needs of his/her creditors. The Participant acknowledges and confirms that
his/her special knowledge of the business of the Company is such as would cause
the Company serious injury or loss if he/she were to use such ability and
knowledge to the benefit of a competitor or were to compete with the Company in
violation of the terms of this Section 5. The Participant further acknowledges
that the restrictions contained in this Section 5 are intended to be, and shall
be, for the benefit of and shall be enforceable by, the Company's successors and
assigns.
(f) Reformation by the Court: In the event that a court of competent
jurisdiction shall determine that any provision of this Section 5 is invalid or
more restrictive than permitted under the governing law of such jurisdiction,
then only as to enforcement of this Section 5 within the jurisdiction of such
court, such provision shall be interpreted and enforced as if it provided for
the maximum restriction permitted under such governing law.
(g) Injunction: It is recognized and hereby acknowledged by the parties
hereto that a breach by the Participant of any of the covenants contained in
this Section 5 will cause irreparable harm and damage to the Company, the
monetary amount of which may be virtually impossible to ascertain. As a result,
the Participant recognizes and hereby acknowledges that the Company shall be
entitled to an injunction from any court of competent jurisdiction enjoining and
restraining any violation of any or all of the covenants contained in this
Section 5 by the Participant or any of his/her affiliates, associates, partners
or agents, either directly or indirectly, and that such right to injunction
shall be cumulative and in addition to whatever other remedies the Company may
possess.
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6. ADMINISTRATIVE INFORMATION
(a) Plan Name. The full name of the Plan is The Topps Company, Inc.
Executive Severance Plan.
(b) Plan's Sponsor. The Plan is sponsored by The Topps Company, Inc., One
Whitehall Street, New York, NY 10004-2109, (212) 376-0300.
(c) Plan Number and Employer Identification Number. The employer
identification number (EIN) assigned by the Internal Revenue Service to the Plan
Sponsor is 11-2849283. The Plan number assigned by the Company pursuant to
instructions of the United States Department of Labor is 511.
(d) Type of Plan and Funding. The Plan is an employee welfare benefit plan
which is maintained primarily for the purpose of providing benefits to a select
group of management or highly compensated employees. The benefits provided under
the Plan are paid from the Company's general assets. No fund has been
established for the payment of Plan benefits. No contributions are required
under the Plan.
(e) Plan Administrator.
(i) The Plan shall be administered by the Vice President -
Administration of The Topps Company, Inc. (the "VP"), provided that, with
respect to benefits provided under the Plan to the VP, the Executive Vice
President of The Topps Company, Inc. (the "EVP") shall administer the Plan;
further, provided, that, following a Change in Control, the Plan shall be
administered by the Successor Compensation Committee. The term "Plan
Administrator" shall refer to the VP, except as described in the preceding
sentence, in which case the "Plan Administrator" shall refer to the EVP or
the Successor Compensation Committee.
(ii) The Plan Administrator has full responsibility for the operation
of the Plan. Supervisors or other officers of the Company are not
authorized to interpret provisions of the Plan or make representations
which are contrary to the provisions of the Plan document as interpreted by
the Plan Administrator. All correspondence and requests for information
should be directed as follows: The Topps Company, Inc., Plan Administrator,
The Topps Company, Inc. Severance Plan, One Whitehall Street, New York, NY
10004-2109, (212) 376-0300.
(iii) Subject to the express provisions of this Plan, the Plan
Administrator shall have sole authority to interpret the Plan (including
any vague or ambiguous provisions) and to make all other determinations
deemed necessary or advisable for the administration of the Plan. All
determinations and interpretations of the Plan Administrator shall be
final, binding and conclusive as to all persons.
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(f) Agent for Service of Process. Should it ever be necessary, legal
process may be served on the Plan Administrator at: The Topps Company, Inc., One
Whitehall Street, New York, NY 10004-2109, Attn: General Counsel.
(g) Type of Administration. The Plan is administered by The Topps Company,
Inc.
(h) Plan Year. January 1 - December 31.
7. PLAN AMENDMENT OR TERMINATION.
The Company reserves the right, in its sole and absolute discretion to
amend or terminate, in whole or in part, any or all of the provisions of the
Plan by action of the Board (or a duly authorized committee thereof) at any
time; provided, however, that (i) any amendment that would reduce the aggregate
level of benefits or terminate the Plan shall not become effective prior to the
second anniversary of the Company giving notice to the Eligible Employees of
such amendment or termination; and (ii) that any such amendment or termination
of the Plan shall not affect the severance benefits payable under the Plan to
any Participant whose Termination Date has occurred prior to the effective date
of the amendment or termination of the Plan.
8. OTHER IMPORTANT PLAN INFORMATION
(a) Employment Rights Not Implied. Participation in the Plan neither gives
you the right to be retained in the employ of the Company, nor does it guarantee
your right to claim any benefit except as outlined in the Plan.
(b) Governing Law. The construction and administration of the Plan will be
governed by ERISA.
(c) No Liability. No director, officer, agent or employee of the Company
shall be personally liable in the event the Company is unable to make any
payments under the Plan due to a lack of, or inability to access, funding or
financing, legal prohibition (including statutory or judicial limitations) or
failure to obtain any required consent. In addition, neither the Plan
Administrator nor any employee, officer or director of the Company shall be
personally liable by reason of any action taken with respect to the Plan for any
mistake of judgment made in good faith, and the Company shall indemnify and hold
harmless each employee, officer or director of the Company, including the Plan
Administrator, to whom any duty or power relating to the administration or
interpretation of the Plan may be allocated or delegated, against any reasonable
cost or expense (including counsel fees) or liability (including any sum paid in
settlement of a claim with the approval of the Board) arising out of any act or
omission to act in connection with the Plan unless arising out of such person's
own fraud, bad faith or gross negligence.
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9. CLAIMS APPEAL PROCEDURE
The following information is intended to comply with the requirements of
ERISA and provides the procedures an employee may follow if he or she disagrees
with any decision about eligibility for Plan payments.
(a) An Eligible Employee will be informed as to whether or not he/she is a
Participant under the Plan, and thereby entitled to benefits under the Plan, on
or before the last day worked. Eligible Employees who believe they are entitled
to benefits under the Plan and do not receive notice of their status as a
Participant, or who have questions about the amounts they receive, must write to
the Plan Administrator within thirty (30) days of the date of their respective
termination.
(b) If the Plan Administrator denies an Eligible Employee's claim for
benefits under the Plan, the Eligible Employee will be sent a letter within
ninety (90) days (in special cases, more than 90 days may be needed and you will
be notified if this is the case) explaining:
(i) the specific reason or reasons for the denial;
(ii) the specific provisions on which the denial is based;
(iii) any additional material or information necessary for the
Participant to perfect the claim and an explanation of why such material or
information is necessary; and
(iv) an explanation of the Plan's claim review procedure.
(c) If payment is denied or the Eligible Employee disagrees with the amount
of the payment, he or she may file a written request for review within sixty
(60) days after receipt of such denial. This request should be filed with the
Plan Administrator. The letter which constitutes the filing of an appeal should
ask for a review and include the reasons why the Eligible Employee believes the
claim was improperly denied, as well as any other appropriate data, questions,
or comments. In addition, an Eligible Employee is entitled to:
(i) review documents pertinent to his or her claim at such reasonable
time and location as shall be mutually agreeable to the Eligible Employee
and the Plan Administrator; and
(ii) submit issues and comments in writing to the Plan Administrator
relating to its review of the claim.
(d) A final decision will normally be reached within sixty (60) days,
unless special circumstances require an extension of time for processing,
in which case a decision will be rendered as soon as possible. The Eligible
Employee will receive a written notice of the decision on the appeal,
indicating the specific reasons for the decision as well as specific
references to the Plan provisions on which the decision is based.
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10. STATEMENT OF ERISA RIGHTS.
The following statement of ERISA rights is required by federal law and
rulings:
(a) As a person covered under the Plan, you are entitled to certain rights
and protections under ERISA. This law provides that all people covered by the
Plan are entitled to:
(i) Receive information about your plan and benefits.
(ii) Examine, without charge, all plan documents, including copies of
all documents filed by the Plan with the U.S. Department of Labor at the
Plan Administrator's offices.
(iii) Obtain copies of all plan documents and other plan information
by writing to the Plan Administrator and asking for them. The Plan
Administrator may make a reasonable charge for the copies.
(b) In addition to creating rights for persons covered by the Plan, ERISA
imposes duties upon the people who are responsible for the operation of the
Plan. The people who operate the Plan, called "fiduciaries" of the Plan, have a
duty to do so prudently and in your interest and in the interest of the other
people covered by the Plan. The law provides that no one may terminate you or
otherwise discriminate against you in any way to prevent you from getting a
benefit or exercising your rights under ERISA. The law provides that if your
claim for a benefit is denied in whole or in part, you will receive a written
notice explaining why your claim was denied. You have the right to have your
claim reviewed and reconsidered.
(c) Under ERISA, there are steps you can take to enforce your rights. For
instance, if you request copies of documents from the Plan Administrator and do
not receive them within thirty (30) days, you may file suit in federal court. In
such a case, the court may require the Plan Administrator to provide the
documents and pay up to $110 a day until you receive them, unless they were not
sent because of reasons beyond the control of the Plan Administrator.
(d) If you have a claim for benefits which is denied or ignored, in whole
or in part, you may file suit in a state or federal court that has jurisdiction.
If it should happen that the people who operate the Plan misuse the Plan's money
or if you are discriminated against for asserting your rights, you may ask the
U.S. Department of Labor for help, or you may file suit in a federal court. The
court will decide who should pay court costs and legal fees. If your suit is
successful, the court may order the person you have sued to pay costs and fees.
If you lose, the court may order you to pay these costs and fees, for example,
if it finds your claim is frivolous. If you have any questions about your rights
under ERISA, you should contact the nearest office of the Pension and Welfare
Benefits Administration, U.S. Department of Labor, listed in your telephone
directory or the Division of Technical Assistance and Inquiries, Pension and
Welfare Benefits Administration, U.S. Department of Labor, 200 Constitution
Avenue N.W., Washington, D.C. 20210. You may also obtain certain publications
about your rights and responsibilities under ERISA by calling the publications
hotline of the Pension and Welfare Benefits Administration.
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11. ASSUMPTION OF THE PLAN BY SUCCESSOR.
In the event of an Asset Sale that constitutes a Change in Control for one
or more Eligible Employees, the Company may assign the liabilities hereunder
with respect to all such Eligible Employees to the Successor to the assets sold.
To the extent that any such Successor assumes such liabilities following an
Asset Sale, the Company shall have no liability whatsoever for payments that
become payable hereunder with respect to any Eligible Employee who is offered
comparable employment with the Successor to the assets sold, disposed of or
transferred following such Asset Sale or the Eligible Employee accepts
employment with such Successor within six months following such Asset Sale or,
where the Asset Sale is consummated in the form of a sale of a subsidiary, to
any Eligible Employee who remains employed with such subsidiary or is offered
comparable employment with the Successor to the assets sold, disposed of or
transferred following such Asset Sale or the Eligible Employee accepts
employment with such Successor within six months following such Asset Sale.
IN WITNESS WHEREOF, the Company has caused the Plan to be
amended and restated as of the 30th day of June, 2005.
THE TOPPS COMPANY, INC.
By: ________________________
<PAGE>
THE TOPPS COMPANY, INC.
EXECUTIVE SEVERANCE PLAN
ACKNOWLEDGMENT AND ACCEPTANCE OF
THE TERMS AND CONDITIONS OF THE PLAN
I acknowledge receipt of a copy of The Topps Company, Inc. Executive Severance
Plan, Amended and Restated as of June 30, 2005 (the "Plan"). I have familiarized
myself with the information in the Plan and do hereby agree to be bound by the
terms and conditions of the Plan.
I understand and agree that my employment with The Topps Company, Inc. (the
"Company") will continue to be "at-will," that either the Company or I may
terminate my employment relationship with the Company at any time, and that
nothing in this Plan is intended to imply or create any guarantee of employment
between the Company and me.
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Employee Signature Date
Please sign and return to Bill O'Connor