JAKKS:
Michael Dwyer
JAKKS Pacific, Inc.
22619 Pacific Coast Hwy
Malibu, CA 90265-5080
and
Jonathan J. Lerner
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY
10036
To THQ:
Executive Vice President, Business and Legal Affairs
THQ Inc.
29903 Agoura Road
Agoura Hills, CA 91301
and
Steven A. Marenberg
8
Irell & Manella LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
10.
WWE'S DISMISSALS AND RELEASE:
ON OR BEFORE THE EFFECTIVE DATE,
WWE SHALL HAVE EXECUTED AND DELIVERED TO THQ, FOR DELIVERY TO JAKKS, AND THQ
SHALL DELIVER TO JAKKS, AND JAKKS SHALL EXECUTE AND DELIVER TO WWE, AN AGREEMENT
OF DISMISSAL, RELEASE AND SETTLEMENT (IN THE SAME FORM AS EXHIBIT B ATTACHED
HERETO), AND THE EXECUTED DOCUMENTS NECESSARY AND SUFFICIENT TO DISMISS THE WWE
ACTIONS IN THEIR ENTIRETY, WITH PREJUDICE AGAINST ALL DEFENDANTS NAMED THEREIN,
WITH EACH PARTY TO BEAR ITS OWN ATTORNEYS' FEES AND COSTS.
11.
MISCELLANEOUS PROVISIONS.
11.1.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL INURE TO THE BENEFIT
OF, AND SHALL BE BINDING UPON, EACH PARTY'S RESPECTIVE SUCCESSORS, ASSIGNS,
AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, PREDECESSORS, SUCCESSORS, DIVISIONS,
OPERATING COMPANIES, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES,
SHAREHOLDERS, HEIRS, PARTNERS, INVESTORS, ACCOUNTANTS, AND ATTORNEYS,
INDIVIDUALLY AND IN THE CAPACITY INDICATED.
11.2.
INTEGRATION.
THIS AGREEMENT WITH THE ATTACHED AGREEMENT, INCLUDING
ANY EXHIBIT(S) HERETO, CONSTITUTES THE ENTIRE AGREEMENT AND UNDERSTANDING
BETWEEN THE PARTIES CONCERNING THE SUBJECT MATTER HEREOF, AND SUPERSEDES AND
REPLACES ALL PRIOR NEGOTIATIONS, PROPOSED AGREEMENTS AND AGREEMENTS, WRITTEN OR
ORAL, BETWEEN THE PARTIES RELATING THERETO.
THIS AGREEMENT MAY BE AMENDED,
MODIFIED, CANCELED, AND/OR WAIVED ONLY BY A WRITTEN INSTRUMENT THAT EXPRESSLY
REFERS TO THIS AGREEMENT AND IS EXECUTED SUBSEQUENT TO THIS AGREEMENT BY DULY
AUTHORIZED REPRESENTATIVES OF EACH OF THE PARTIES.
11.3.
MODIFICATIONS.
NO MODIFICATION, AMENDMENT, OR WAIVER OF ANY OF THE
PROVISIONS CONTAINED IN THIS AGREEMENT, NOR ANY FUTURE REPRESENTATION, PROMISE,
OR CONDITION IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, SHALL BE
BINDING UPON ANY PARTY UNLESS MADE IN WRITING AND SIGNED BY SUCH PARTY.
11.4.
JOINT PREPARATION.
THIS AGREEMENT SHALL BE CONSTRUED WITHOUT
REGARD TO THE PARTY OR PARTIES RESPONSIBLE FOR THEIR PREPARATION, AND SHALL BE
DEEMED AS PREPARED JOINTLY BY THE PARTIES HERETO.
IN RESOLVING ANY AMBIGUITY
AND/OR UNCERTAINTY EXISTING HEREIN, THE PARTIES AGREE THAT NO CONSIDERATION
AND/OR WEIGHT SHALL BE GIVEN TO THE IDENTITY OF THE PARTY DRAFTING SAID
DOCUMENTS.
11.5.
PARTIES TO BEAR OWN FEES AND COSTS.
EACH PARTY SHALL BEAR ALL OF
ITS FEES, EXPENSES, AND COSTS INCURRED IN CONNECTION WITH THE ACTIONS AND/OR
THIS AGREEMENT.
11.6.
SEVERABILITY.
IF ANY PART, TERM, AND/OR PROVISION OF THIS
AGREEMENT IS HELD BY A COURT OR OTHER TRIBUNAL TO BE INVALID, ILLEGAL, AND/OR
OTHERWISE UNENFORCEABLE,
9
SUCH PART, TERM, AND/OR PROVISION SHALL BE INOPERATIVE AND VOID INSOFAR AS IT IS
IN CONFLICT WITH LAW, BUT THE VALIDITY OF THE REMAINING PARTS, TERMS, AND/OR
PROVISIONS SHALL NOT BE AFFECTED AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
SHALL BE CONSTRUED AND ENFORCED AS IF THIS AGREEMENT DID