SECOND AMENDED AND RESTATED SERVICES LOANOUT AGREEMENT
SECOND
AMENDED AND RESTATED SERVICES LOANOUT AGREEMENT
THIS
AMENDED AND RESTATED SERVICES LOANOUT AGREEMENT (this “Agreement”),
dated
as of July 22, 2008, (the “Effective
Date”)
is
entered into between ProElite, Inc., a New Jersey corporation (the “Company”),
and
Legacy of Life Entertainment, Inc. (“Legacy”).
RECITALS
WHEREAS,
pursuant to a Services Loanout Agreement dated as of October 3, 2006 (the
“Initial Agreement”) between Legacy and Real Sport, Inc., the predecessor to the
Company, the Company employed ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (“▇▇▇▇▇▇”) through Legacy as its
Chief Executive Officer.
WHEREAS,
pursuant to the Amended and Restated Services Loanout Agreement dated March
3,
2008 (the “First Amended and Restated Services Loanout Agreement”) between
Company, Legacy and ▇▇▇▇▇▇ (collectively, the “Parties”), the Initial Agreement
was amended and restated in a manner whereby ▇▇▇▇▇▇ ended his employment as
Chief Executive Officer and ▇▇▇▇▇▇ then served Company through Legacy as its
Chief Strategy Officer and Executive Chairman of its Board of Directors.
WHEREAS,
the Parties mutually desire to hereby amend, restate and revise the First
Amended and Restated Services Loanout Agreement to set forth the manner in
which
▇▇▇▇▇▇ will end his employment as Chief Strategy Officer and resign from his
position as Executive Chairman of its Board of Directors of Company and serve
as
a consultant to Company as defined below.
NOW,
THEREORE, in consideration of the foregoing and the mutual promises and
covenants set forth in this Agreement, the sufficiency of which is hereby
acknowledged, the Parties mutually agree as follows:
AGREEMENT
ARTICLE
I
EFFECT
ON THE FIRST AMENDED AND RESTATED SERVICES LOANOUT
AGREEMENT
The
Parties hereby agree that the First Amendment and Restated Services Loanout
Agreement is hereby terminated and replaced in its entirety with this
Agreement.
1
ARTICLE
II
CONSULTING
ENGAGEMENT; TERMS; AND SERVICES
2.1 Engagement
and Duties.
Subject
to the other terms and conditions set forth herein, on the Effective Date,
the
Company hereby engages ▇▇▇▇▇▇ (“Consultant”) through Legacy as a consultant to
Company to provide consulting services. In his role as consultant, ▇▇▇▇▇▇ shall
report to the Chief Executive Officer of Company and shall (a) advise Company
in
matters pertaining to its business, operations and industry, and Consultant;
(b)
oversee strategic initiatives, including conceiving, planning and implementing
strategic alliances, acquisitions and dispositions; (c) lead the Company’s
external relations, including public relations, media, and Investor Relations,
including investor presentations; (d) lead the Company’s international expansion
and global brand strategies, and (e) lead the development and execution of
sponsorship and media relationships. In connection with his duties, ▇▇▇▇▇▇
shall
work from outside of the Company’s offices in Los Angeles, California and shall
have access to the Company’s resources, including its senior officers, it being
understood, however, that the Company’s Chief Executive Officer has budgetary
and financial responsibility for all such resources. Company shall continue
to
employ ▇▇▇▇▇▇’▇ current administrative assistant (“Assistant”) for the purpose
of providing services for ▇▇▇▇▇▇ from a location outside of Company’s office as
determined by ▇▇▇▇▇▇ through December 31, 2008 or until the date of resignation
of Assistant, whichever is sooner. Should ▇▇▇▇▇▇’▇ current Assistant resign
prior to December 31, 2008, Company will provide a replacement assistant under
the same or similar terms and conditions through December 31, 2008. ▇▇▇▇▇▇
shall
use his best efforts and abilities to faithfully and diligently perform his
services hereunder, it being understood, however, that ▇▇▇▇▇▇ may continue
to
provide services as co-executive producer of ▇▇▇▇▇
▇▇▇▇▇▇ Live!.
2.1.1 Neither
Legacy nor ▇▇▇▇▇▇ shall, directly or indirectly, either as an employee,
employer, consultant, agent, investor, principal, partner, stockholder (except
as the holder of less than 1% of the issued and outstanding stock of a publicly
held corporation), corporate officer or director, or in any other individual
or
representative capacity, engage or participate in any business that is in
competition in any manner whatsoever with the business of the Company at the
time in question. Subject to the foregoing prohibition and provided such
services or investments do not violate any applicable law, regulation or order,
or interfere in any way with the faithful and diligent performance by ▇▇▇▇▇▇
of
the services to the Company otherwise required or contemplated by this
Agreement, the Company expressly acknowledges that ▇▇▇▇▇▇ may:
(a) make
and
manage personal business matters of ▇▇▇▇▇▇’▇ choice without consulting the Chief
Executive Officer; and
(b) serve
in
any capacity with any non-profit civic, educational or charitable organization
without consulting the Chief Executive Officer.
2.2 Covenants
of Legacy
2.2.1 Reports.
Legacy
shall cause ▇▇▇▇▇▇ to use his best efforts and skills to truthfully, accurately,
and promptly make, maintain, and preserve all records and reports that the
Company may, from time to time, request or require, fully account for all money,
records, equipment, materials, or other property belonging to the Company of
which he may have custody, and promptly pay and deliver the same whenever he
may
be directed to do so by the CEO.
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2.2.2 Rules
and Regulations.
Legacy
and the ▇▇▇▇▇▇ shall obey all rules, regulations and special instructions of
the
Company and all other rules, regulations, guides, handbooks, procedures,
policies and special instructions applicable to the Company’s business in
connection with his duties hereunder.
2.2.3 Opportunities.
Legacy
shall cause ▇▇▇▇▇▇ to make all business opportunities of which he becomes aware
that are relevant to the Company’s business available to the Company, and to no
other person or entity or to himself individually.
2.3 Covenants
of Company
2.3.1 ▇▇▇▇▇▇
shall have the opportunity to review and comment on the text of the 8-K Report
filed and any press release issued by the Company regarding ▇▇▇▇▇▇’▇ resignation
as Chief Strategy Officer and Executive Chairman with final approval at the
discretion of the Board.
2.3.2 The
Board
shall adopt a resolution ratifying all corporate actions taken by ▇▇▇▇▇▇ as
an
officer and/or director of the Company and its subsidiaries and confirming
availability of D&O coverage.
ARTICLE
III
COMPENSATION
3.1 Base
Salary.
During
the Term (as hereinafter defined), for all services rendered by ▇▇▇▇▇▇
hereunder, the Company shall pay, and ▇▇▇▇▇▇ shall accept, as compensation,
an
annual base salary of $210,000 per year (“Base
Salary”),
payable in accordance with the normal payroll practices of the Company.
3.2 Company
Shares.
▇▇▇▇▇▇
has received 4,500,000 shares of ProElite, Inc. (“ProElite”)
Common
Stock (the “ProElite
Shares”)
as
part of the initial Company financing. Upon the execution of this agreement,
the
Company shall vest all unvested shares.
3.3 Health
Benefits. ▇▇▇▇▇▇ shall be able to continue his health insurance benefits,
including medical, dental and vision as set forth under the COBRA. The Company
shall pay the full COBRA monthly premiums through December 31,
2009.
3.4 Expenses.
▇▇▇▇▇▇
will be reimbursed within ten (10) days for all reasonable, out-of-pocket
business expenses incurred in the performance of his duties on behalf of the
Company consistent with the Company’s policies and procedures, including prior
approval requirements and submission of appropriate supporting documentation.
Notwithstanding the foregoing, ▇▇▇▇▇▇ shall be entitled to “first” class travel
accommodations for domestic travel and “business” class travel accommodations
for international travel. ▇▇▇▇▇▇ shall be promptly reimbursed for his reasonable
legal fees and expenses incurred in connection with this Agreement.
3
3.5 Bonus.
▇▇▇▇▇▇
shall receive a bonus of $50,000 upon the execution of this Agreement and
receipt of ▇▇▇▇▇▇’▇ letters confirming resignation of his positions as Chief
Strategy Officer and Executive Chairman of its Board of Directors of
Company.
3.6 Event
Tickets.
From
the Effective Date and moving forward, Company shall use best efforts to provide
▇▇▇▇▇▇ with four (4) tickets within the first two rows of each live ProElite
Event at no cost to ▇▇▇▇▇▇ throughout the Term.
ARTICLE
IV
TERMINATION
OF ENGAGEMENT
4.1 Term
of Services.
▇▇▇▇▇▇’▇
engagement pursuant to this Agreement shall terminate on the earliest to occur
of the following:
(a) September
30, 2009;
(b) upon
the
death of ▇▇▇▇▇▇ (“Death”);
(c) upon
the
delivery to ▇▇▇▇▇▇ of written notice of termination by the Company if ▇▇▇▇▇▇
shall suffer a physical or mental disability or illness which renders ▇▇▇▇▇▇,
in
the reasonable judgment of the Board, unable to perform his duties and
obligations under this Agreement for either 60 consecutive days or 180 days
in
any 12-month period (“Disability”);
(d) upon
delivery to ▇▇▇▇▇▇ of written notice of termination by the Company For
Cause;
or
(e) upon
the
delivery to Company from ▇▇▇▇▇▇ of written notice of termination for Good
Reason.
(f) Upon
delivery to Company from ▇▇▇▇▇▇ of written notice of termination
4.2 Certain
Definitions.
For
purposes of this Agreement, the following terms shall have the following
meanings:
4.2.1 “For
Cause”
shall
mean, in the context of a basis for termination of ▇▇▇▇▇▇’▇ services with the
Company:
(i) ▇▇▇▇▇▇
is
convicted
of, or pleas nolo
contendere
(no
contest) to, any crime (whether or not involving the Company) constituting
a
felony in the jurisdiction involved;
(ii) ▇▇▇▇▇▇’▇
willful misconduct in the performance of ▇▇▇▇▇▇’▇ services
hereunder;
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(iii) ▇▇▇▇▇▇’▇
▇▇▇▇▇ negligence in the performance of his services hereunder or willful and
repeated failure or refusal to perform such services as may be delegated to
▇▇▇▇▇▇ by Company commensurate with his position; or
(iv) ▇▇▇▇▇▇
is
in material breach of this Agreement.
With
respect to subsections 4.2.1(ii), (iii) and (iv), the Company shall provide
written notice to ▇▇▇▇▇▇ of any such event with exact details of the claimed
event, and ▇▇▇▇▇▇ shall have thirty (30) calendar days from the date of receipt
of such written notice to prove such claim to be in error or to cure any such
event and to meet with the Board for that purpose.
4.2.2 “Good
Reason”
giving
rise to ▇▇▇▇▇▇’▇ right to terminate this Agreement means if
▇▇▇▇▇▇
claims that Company has materially breached this Agreement or has committed
material fraud, ▇▇▇▇▇▇ shall have first provided written notice to Company
of
any such claimed material breach or commission with exact details of the claimed
material breach or commission and Company shall have had thirty (30) days from
the date of receipt of such written notice to prove such claim to be in error
or
to cure any such breach; if curable, and in the event Company does so cure
such
breach within said thirty (30) days, such claimed breach shall not constitute
Good Reason or a breach of this Agreement.
4.3 Effect
of Termination
4.3.1 In
the
event that this Agreement is terminated by the Company without Cause or by
▇▇▇▇▇▇ for Good Reason, ▇▇▇▇▇▇ shall be entitled to any unpaid Base Salary
for
the remaining period through September 30, 2009, to be promptly paid in one
lump
sum.
4.3.2 ▇▇▇▇▇▇
shall have no obligation to offset any payments he receives from the Company
following the termination of his services by any payments he receives from
his
subsequent employer
4.3.3 In
the
event the Agreement is terminated by ▇▇▇▇▇▇ pursuant to 4.1 (f), ▇▇▇▇▇▇ shall
not receive further compensation for the remaining period through September
30,
2009.
4.4 Change
in Control.
In the
event of a “Change in Control,” as defined below, (i) Legacy shall have the
right to terminate this Agreement, and (ii) upon Legacy’s written notice to the
Company of its intent to terminate, this Agreement will be terminated fourteen
(14) days after receipt of such notice and the Company and Legacy shall have
no
further obligation or duties to each other except that Company shall be
obligated to pay ▇▇▇▇▇▇ the remaining unpaid balance of his Base Salary due
under paragraph 3.1 above.
5
4.4.1 For
purposes of this Agreement a “Change in Control” shall mean and be determined to
have occurred if (A) any person (“Person”) (as such term is used in Sections
13(d) and 14(d) of the Securities and Exchange Act of 1934, as amended) (the
“Exchange Act”) is or becomes the beneficial owner (“Beneficial Owner”) (as
defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing more than fifty percent
(50 %) of the combined voting power of the then outstanding securities of the
Company; (B) the sale or other disposition by merger or business combination
of
all or substantially all the assets of the Company in a single or series of
related transactions, (C) during any period of two (2) years, a majority of
the
members of the Board is replaced by directors who were not nominated and
approved by the Board; or (D) the Company is combined with or acquired by
another company and the Board shall have determined, either before such event
or
thereafter, by resolution, that a Change in Control will occur or has
occurred.
ARTICLE
V
INVENTIONS
AND TRADEMARK; CONFIDENTIAL INFORMATION; NON-
DISCLOSURE;
UNFAIR COMPETITION; CONFLICT OF INTEREST
5.1 Inventions
and Trademark.
All
ideas, inventions, trademarks, proprietary information, know-how, processes
and
other developments or improvements developed by ▇▇▇▇▇▇, alone or with others,
during the Term, that are within the scope of Company’s business operations or
that relate to Company’s work or projects, are the exclusive property of
Company. In that regard, Legacy and ▇▇▇▇▇▇ agree to disclose promptly to Company
any and all inventions, discoveries, trademarks, proprietary information,
know-how, processes or improvements, patentable or otherwise, that it and/or
he
may make from the beginning of ▇▇▇▇▇▇’▇ services until the termination thereof,
that relate to the business of Company, whether such is made solely or jointly
with others. Legacy and ▇▇▇▇▇▇ further agree that, during the Term, it and
he
will provide Company with a reasonable level of assistance, at Company’s sole
option and expense, to obtain patents in the United States of America, or
elsewhere on any such ideas, inventions, trademarks and other developments,
and
agrees to execute all documents necessary to obtain such patents in the name
of
Company.
5.2 Confidential
Information.
Legacy
shall hold and keep confidential for the benefit of Company all secret or
confidential information, files, documents other media in which confidential
information is contained, knowledge or data (collectively the “Confidential
Information”) relating to Company or any of its affiliated companies, and their
respective businesses, which shall have been obtained by Legacy and/or ▇▇▇▇▇▇
during ▇▇▇▇▇▇’▇ engagement by Company or any of its affiliated companies.
Confidential Information does not include information that is already public
knowledge at the time of disclosure (other than by acts by ▇▇▇▇▇▇ or his
representatives in violation of this Agreement) or that is provided to ▇▇▇▇▇▇
by
a third party without an obligation with Company to maintain the confidentiality
of such information. After termination of ▇▇▇▇▇▇’▇ consulting services with
Company, he shall not, without the prior written consent of Company, or as
may
otherwise be required by law or legal process, communicate or divulge any
Confidential Information to anyone other than Company and those designated
by
it. Legacy and ▇▇▇▇▇▇ shall acknowledge that all confidential documents are
and
shall remain the sole and exclusive property of Company regardless of who
originally acquired the confidential documents. Legacy and ▇▇▇▇▇▇ agree to
return to Company promptly upon the expiration or termination of his services
or
at any other time when requested by Company, any and all property of Company,
including, but not limited to, all confidential documents and copies thereof
in
his possession or control. Any loss resulting from a breach of the foregoing
obligations by Legacy and/or ▇▇▇▇▇▇ to protect the Confidential Information
could not be reasonably or adequately compensated in damages in an action at
law. Therefore, in addition to other remedies provided by law or this Agreement,
Company shall have the right to obtain injunctive relief, in the appropriate
court, at any time, against the dissemination by Legacy and/or ▇▇▇▇▇▇ of the
Confidential Information, or the use of such information by Legacy and/or ▇▇▇▇▇▇
in violation hereof.
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5.2.1 Restriction
on Use of Confidential/Trade Secret Information.
▇▇▇▇▇▇
agrees that his use of confidential/trade secret information is subject to
the
following restrictions for an indefinite period of time so long as the
confidential/trade secret information has not become generally known to the
public:
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(a)
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Non-Disclosure.
▇▇▇▇▇▇ agrees that he will not publish or disclose, or allow to be
published or disclosed, confidential/trade secret information to
any
person without the prior written authorization of the Company unless
pursuant to ▇▇▇▇▇▇’▇ responsibilities to the Company under this
Agreement.
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(b)
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Non-Removal/Surrender.
▇▇▇▇▇▇ agrees that he will not remove any confidential/trade secret
information from the offices of the Company or the premises of any
facility in which the Company is performing services, except pursuant
to
his duties under this Agreement. ▇▇▇▇▇▇ further agrees that he shall
surrender to the Company all documents and materials in his possession
or
control which contain confidential/trade secret information and which
are
the property of the Company upon the termination of this Agreement,
and
that he shall not thereafter retain any copies of any such
materials.
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5.2.2 Non-Solicitation
of Customers/Prohibition Against Unfair Competition.
▇▇▇▇▇▇
agrees that at no time after his services terminate with the Company will he
engage in competition with the Company while making any use of the Company’s
confidential/trade secret information. ▇▇▇▇▇▇ agrees that he will not directly
or indirectly accept or solicit, whether as an employee, independent contractor
or in any other capacity, the business of any customer of the Company with
whom
▇▇▇▇▇▇ worked or otherwise had access to the Company’s confidential/trade secret
information pertaining to its business with that customer during the last year
of his engagement with the Company.
7
5.3 Non-Solicitation
During Engagement.
▇▇▇▇▇▇
shall not during his consulting agreement inappropriately interfere with the
Company’s business relationship with its customers or suppliers or solicit any
of the employees of the Company to leave the employ of the Company.
5.4 Non-Solicitation
of ▇▇▇▇▇▇.
▇▇▇▇▇▇
agrees that, for one year following the termination of his consulting agreement,
he shall not, directly or indirectly, ask or encourage any of the Company’s
employees to leave their employment with the Company or solicit any of the
Company’s employees for employment.
5.5 Breach
of Provisions.
If the
▇▇▇▇▇▇ breaches any of the provisions of this Section 5, or in the event
that any such breach is threatened by the ▇▇▇▇▇▇, in addition to and without
limiting or waiving any other remedies available to the Company at law or in
equity, the Company shall be entitled to immediate injunctive relief in any
court, domestic or foreign, having the capacity to grant such relief, to
restrain any such breach or threatened breach and to enforce the provisions
of
this Section 5.
5.6 Reasonable
Restrictions.
The
parties acknowledge that the foregoing restrictions, as well as the duration
and
the territorial scope thereof as set forth in this Section 5, are under all
of the circumstances reasonable and necessary for the protection of the Company
and its business.
5.7 Definition.
For
purposes of this section 5, the term “Company”
shall
be deemed to include any parent, subsidiary or affiliate of the
Company.
ARTICLE
VI
MISCELLANEOUS
6.1 Binding
Effect; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective legal representatives, heirs, distributees, successors and
assigns. Neither Legacy nor ▇▇▇▇▇▇ may assign any of its or his rights and
obligations under this Agreement. The Company may assign its rights and
obligations under this Agreement to any successor entity.
6.2 Indemnification.
The
Company shall indemnify, defend and hold harmless Legacy and ▇▇▇▇▇▇ to the
fullest extent permitted by law from any and all actions, complaints, disputes,
arbitrations, investigations, guarantees, including but not limited to personal
guarantees of loans or any other obligation or any other guaranty or the like
signed by Consultant on behalf of the Company, or any other proceedings of
any
kind whatsoever, or threats thereof (“Claims”) and any and all damages, losses,
expenses (including without limitation reasonable attorneys’ fees, disbursements
and other charges of counsel incurred by Consultant and selected by Company)
or
other liabilities, contingent or otherwise, of any kind whatsoever arising
from
or relating to any aspect of Legacy’s or ▇▇▇▇▇▇’▇ relationship with the Company
and/or with regard to any personal guaranty signed by Legacy or ▇▇▇▇▇▇ on behalf
of the Company, and any current or future subsidiary or affiliates, the
performance of any of ▇▇▇▇▇▇’▇ duties hereunder, or otherwise arising from or
relating to any aspect of Legacy’s or ▇▇▇▇▇▇’▇ relationship with the Company and
any current or future subsidiary or affiliates, the performance of any of
▇▇▇▇▇▇’▇ duties hereunder, or otherwise arising from or relating to any action
or inaction of ▇▇▇▇▇▇ while serving as an officer or director of the Company
or,
if applicable, as an officer or director of the Company, or, if applicable,
as
an officer or director of any other entity or as a fiduciary of any benefit
plan, including without limitation any personal liability of any kind under
any
law, rule, regulation, agreement or understanding applicable to the Company
and
the persons who serve as officers and directors thereof or any subsidiary or
affiliate thereof, in all cases relating to matters occurring after October
3,
2006, during the Term or thereafter unless a result of ▇▇▇▇▇▇’▇ ▇▇▇▇▇ negligence
or willful misconduct. The Company shall cover the ▇▇▇▇▇▇ under general
liability insurance, errors and omissions insurance (if any) and any other
Company insurance, both during and, while potential liability exists, after
the
Term in the same amount and to the same extent as the Company covers its other
officers and directors and will make available to ▇▇▇▇▇▇ any certificates of
the
foregoing.
8
6.3 Notices.
Any
notice provided for herein shall be in writing and shall be deemed to have
been
given or made (a) when personally delivered or (b) when sent by
telecopier and confirmed within 48 hours by letter mailed or delivered to the
party to be notified at its or his/hers address set forth herein; or three
days
after being sent by registered or certified mail, return receipt requested,
(or
by equivalent ▇▇▇▇▇▇▇ with delivery documentation such as FEDEX or UPS) to
the
address of the other party set forth or to such other address as may be
specified by notice given in accordance with this section 6.3:
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If
to the Company:
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▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: Chief
Executive Officer
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|
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If
to Legacy:
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Legacy
of Life Entertainment, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (___)_____________________
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
With
a copy to
▇▇▇▇
▇. ▇▇▇▇▇
▇▇▇▇▇▇▇
& ▇▇▇▇▇, LLC
Suite
1100
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
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6.4 Severability.
If any
provision of this Agreement, or portion thereof, shall be held invalid or
unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall attach only to such provision or portion thereof, and
shall not in any manner affect or render invalid or unenforceable any other
provision of this Agreement or portion thereof, and this Agreement shall be
carried out as if any such invalid or unenforceable provision or portion thereof
were not contained herein. In addition, any such invalid or unenforceable
provision or portion thereof shall be deemed, without further action on the
part
of the parties hereto, modified, amended or limited to the extent necessary
to
render the same valid and enforceable.
9
6.5 Waiver.
No
waiver by a party hereto of a breach or default hereunder by the other party
shall be considered valid, unless expressed in a writing signed by such first
party, and no such waiver shall be deemed a waiver of any subsequent breach
or
default of the same or any other nature.
6.6 Entire
Agreement.
This
Agreement sets forth the entire agreement between the Parties with respect
to
the subject matter hereof, and supersedes any and all prior agreements between
the Company and ▇▇▇▇▇▇, whether written or oral, relating to any or all matters
covered by and contained or otherwise dealt with in this Agreement. This
Agreement does not constitute a commitment of the Company with regard to
▇▇▇▇▇▇’▇ engagement, express or implied, other than to the extent expressly
provided for herein.
6.7 Amendment.
No
modification, change or amendment of this Agreement or any of its provisions
shall be valid, unless in writing and signed by the party against whom such
claimed modification, change or amendment is sought to be enforced.
6.8 Authority.
The
Parties each represent and warrant that it or he has the power, authority and
right to enter into this Agreement and to carry out and perform the terms,
covenants and conditions hereof.
6.9 Attorneys’
Fees.
If
either party hereto commences an arbitration or other action against the other
party to enforce any of the terms hereof or because of the breach by such other
party of any of the terms hereof, the prevailing party shall be entitled, in
addition to any other relief granted, to all actual out-of-pocket costs and
expenses incurred by such prevailing party in connection with such action,
including, without limitation, all reasonable attorneys’ fees, and a right to
such costs and expenses shall be deemed to have accrued upon the commencement
of
such action and shall be enforceable whether or not such action is prosecuted
to
judgment.
6.10 Titles.
The
titles of the sections of this Agreement are inserted merely for convenience
and
ease of reference and shall not affect or modify the meaning of any of the
terms, covenants or conditions of this Agreement.
6.11 Applicable
Law; Choice of Forum.
This
Agreement, and all of the rights and obligations of the parties in connection
with the consulting relationship established hereby, shall be governed by and
construed in accordance with the substantive laws of the State of California
without giving effect to principles relating to conflicts of law.
10
6.12 Arbitration.
6.12.1 Scope.
To the
fullest extent permitted by law, ▇▇▇▇▇▇ and the Company agree to the binding
arbitration of any and all controversies, claims or disputes between them
arising out of or in any way related to this Agreement, the consulting
relationship between the Company and ▇▇▇▇▇▇ and any disputes upon termination
of
the engagement, including but not limited to breach of contract, tort,
discrimination, harassment, wrongful termination, demotion, discipline, failure
to accommodate, family and medical leave, compensation or benefits claims,
constitutional claims; and any claims for violation of any local, state or
federal law, statute, regulation or ordinance or common law. For the purpose
of
this agreement to arbitrate, references to “Company” include all parent,
subsidiary or related entities and their employees, supervisors, officers,
directors, agents, pension or benefit plans, pension or benefit plan sponsors,
fiduciaries, administrators, affiliates and all successors and assigns of any
of
them, and this agreement to arbitrate shall apply to them to the extent ▇▇▇▇▇▇’▇
claims arise out of or relate to their actions on behalf of the
Company.
6.12.2 Arbitration
Procedure.
To
commence any such arbitration proceeding, the party commencing the arbitration
must provide the other party with written notice of any and all claims forming
the basis of such right in sufficient detail to inform the other party of the
substance of such claims. In no event shall this notice for arbitration be
made
after the date when institution of legal or equitable proceedings based on
such
claims would be barred by the applicable statute of limitations. The arbitration
will be conducted in Los Angeles, California, by a single neutral arbitrator
and
in accordance with the then-current rules for resolution of consultant disputes
of the American Arbitration Association (“AAA”).
The
Arbitrator is to be selected by the mutual agreement of the Parties. If the
Parties cannot agree, the Superior Court will select the arbitrator. The parties
are entitled to representation by an attorney or other representative of their
choosing. The arbitrator shall have the power to enter any award that could
be
entered by a judge of the trial court of the State of California, and only
such
power, and shall follow the law. The award shall be binding and the Parties
agree to abide by and perform any award rendered by the arbitrator. The
arbitrator shall issue the award in writing and therein state the essential
findings and conclusions on which the award is based. Judgment on the award
may
be entered in any court having jurisdiction thereof. The Company shall bear
the
costs of the arbitration filing and hearing fees and the cost of the
arbitrator.
6.13 This
Agreement shall not be terminated by any voluntary or involuntary dissolution
of
the Company resulting from either a merger or consolidation in which the Company
is not the consolidated or surviving corporation, or a transfer of all or
substantially all of the assets of the Company. In the event of any such merger
or consolidation or transfer of assets, ▇▇▇▇▇▇’▇ rights, benefits and
obligations hereunder shall be assigned to the surviving or resulting
corporation or the transferee of the Company’s assets.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
|
Legacy
of Life Entertainment, Inc., a California corporation
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ProElite,
Inc., a New Jersey corporation
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|||
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇
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By:
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
President
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Chief Executive Officer
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|||
12
ACKNOWLEDGEMENT
OF LOANOUT
As
an
inducement to you to enter into the Second Amended and Restated Services Loanout
Agreement (“Agreement”), dated as of July 22, 2008 between ProElite, Inc. and
Legacy of Life Entertainment, Inc. (“Lender”) (with all terms used herein having
the same meaning as such terms are defined in the Agreement), and as a material
part of the consideration moving to you for so doing, the undersigned hereby
represents, warrants and agrees as follows:
(i) That
the
undersigned has heretofore entered into an agreement (“Engagement Agreement”)
with Lender covering the rendition of the undersigned’s services for Lender, and
that Lender has the right and authority to enter into the Agreement and to
furnish to you the rights and services of the undersigned upon the terms and
conditions therein specified.
(ii) That
the
undersigned is familiar with each and all of the terms, covenants and conditions
of the Agreement and hereby consents to the execution thereof; that the
undersigned will be bound by and will duly observe, perform and comply with
each
and all of the terms, covenants and conditions of the Agreement on the part
of
the undersigned to be performed and complied with, even if the Agreement should
hereafter expire, be terminated (whether by Lender or the undersigned) or
suspended; that the undersigned shall render to you all of the services which
are to be rendered by the undersigned pursuant to the Agreement even if Lender
shall be dissolved or should otherwise cease to exist; and that the undersigned
hereby confirms that there have been granted to Lender all of the rights granted
by Lender to you under the Agreement.
(iii) That
the
undersigned is under no obligation or disability by law or otherwise which
would
prevent or restrict the undersigned from performing and complying with all
of
the terms, covenants and conditions of the Agreement on the part of the
undersigned to be performed or complied with.
(iv) That
the
undersigned will look solely to Lender or its associated or subsidiary companies
and not to you for all compensation and other remuneration for any and all
services and rights which the undersigned may render and grant to you under
the
Agreement.
(v) That
you
shall be entitled to equitable relief against the undersigned by injunction
or
otherwise to restrain, enjoin and/or prevent the violation or breach by the
undersigned of any obligation of the undersigned to be performed as provided
in
the Agreement, and/or the violation or breach by the undersigned of any
obligations or agreements under this present instrument. You shall have all
rights and remedies against the undersigned which you would have if the
undersigned were your direct employee under the Agreement and you shall not
be
required to first resort to or exhaust any rights or remedies which you may
have
against the Lender before exercising your rights and remedies against the
undersigned.
13
(vi) That
the
undersigned will indemnify and hold you, your employees, officers and assigns
harmless from and against any and all taxes which you may have to pay and any
and all liabilities (including judgments, penalties, interest, damages, costs
and expenses including reasonable attorneys’ fees, whether or not litigation is
actually commenced) which may be obtained against, imposed or suffered by you
or
which you may incur by reason of your failure to deduct and withhold from the
compensation payable under the Agreement any amounts required or permitted
to be
deducted and withheld from the compensation of an employee under the provisions
of the Federal and California Income Tax acts, the Federal Social Security
Act,
the California Unemployment Insurance Act and/or any amendments thereof and/or
any other statutes or regulations heretofore or hereafter enacted requiring
the
withholding of any amount from the compensation of an employee.
(vii) That
the
undersigned will not amend or modify the Engagement Agreement with Lender in
any
particular manner that would prevent or interfere with the performance of the
undersigned’s services for you or the use and ownership of the results and
proceeds thereof, pursuant to the Agreement.
|
/s/
▇▇▇▇ ▇▇▇▇▇▇
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇
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14