SERVICES LOANOUT AGREEMENT
SERVICES
LOANOUT AGREEMENT
This
SERVICES LOANOUT AGREEMENT (this “Agreement”)
is
entered into as of October 3, 2006 by and between Real Sport, Inc., a California
corporation with its principal office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Company”),
and
Legacy of Life Entertainment, Inc., a California corporation, with its principal
office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(“Legacy”
and
collectively with the Company and De Luca, as defined below, the “Parties”),
with
reference to the following facts:
WHEREAS,
Legacy is entitled to the services of ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ (referred to herein as
“De
Luca”);
WHEREAS,
the Company acknowledges that De Luca is and will continue to be employed as
a
producer for ABC, Inc., a division of the ▇▇▇▇ Disney Company.
WHEREAS,
the Company desires to retain the De Luca, and Legacy is willing to loan De
Luca’s services to Company, pursuant to the terms hereof;
WHEREAS,
Legacy desires to commit to an agreement with the Company pursuant to which
De
Luca will serve as Company’s Chief Executive Officer for a period of three
years, from October 1, 2006 till September 30, 2009 (the “Term”);
and
NOW,
THEREFORE, the Company and Legacy desire to set forth in this Agreement the
terms and conditions of the De Luca's employment with the Company.
ARTICLE
I
EMPLOYMENT;
TERM; DUTIES
1.1 Conditions
Precedent.
The
Company’s obligations hereunder (including, but not limited to, payment of any
and all sums payable to De Luca by Company) are expressly conditioned upon
the
successful closing of that certain private offering by Pro Elite, Inc., a New
Jersey corporation (“Pro
Elite”),
on
October 3, 2006 (the “Private
Offering”).
1.2 Engagement.
Upon
the terms and conditions hereinafter set forth, the Company hereby engages
Legacy, and Legacy hereby accepts engagement, to cause De Luca to serve as
Chief
Executive Officer (“CEO”).
1.3 Duties.
De Luca
shall perform such duties for the Company as are prescribed by applicable job
specifications for the CEO, the Bylaws of the Company and such other or
additional duties as may be assigned to him from time to time by the Board
of
Directors of the Company (the “Board”),
to
the satisfaction of the Board.
1.3.1 Legacy
shall cause De Luca to
use De
Luca’s best efforts and abilities faithfully and diligently to promote the
Company’s business interests. For so long as Legacy is engaged to Company,
neither Legacy nor De Luca 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 Group,
which includes Real Sport, Inc., I-Fight, Inc., and MMA Live, Inc., and other
entities the Company may form in the future, as such businesses are now or
hereafter conducted. 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 De Luca
of
the services to the Company otherwise required or contemplated by this
Agreement, the Company expressly acknowledges that De Luca may:
(a) make
and
manage personal business investments of De Luca’s choice without consulting the
Board; and
(b) serve
in
any capacity with any non-profit civic, educational or charitable organization
without consulting with the Board.
1.4 Covenants
of Legacy
1.4.1 Reports.
Legacy
shall cause De Luca 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 Board.
1.4.2 Rules
and Regulations.
Legacy
and the De Luca 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 and shall endeavor to improve his ability
and knowledge of the Company’s business in an effort to increase the value of
his services for the mutual benefit of the Company and the De Luca.
1.4.3 Opportunities.
Legacy
shall cause De Luca 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.
ARTICLE
II
COMPENSATION
2.1 Base
Salary.
During
the Term, for all services rendered by De Luca hereunder and all covenants
and
conditions undertaken by both Parties pursuant to this Agreement, the Company
shall pay, and De Luca shall accept, as compensation, an annual base salary
of
$200,000 per year through September 30, 2007, and at the amount determined
by
the Company thereafter, but not less than 5% per Year (“Base
Salary”).
2.1.1 This
Base
Salary shall be payable in accordance with the normal payroll practices of
the
Company.
2.1.2 For
purposes of this Agreement, “Year”
shall
mean the twelve-month period beginning on October 1 and ending on September
30
of the following year.
2
2.2 Performance
and Review.
De
Luca’s performance will be reviewed on no less than an annual basis.
2.3 Bonus.
De Luca
may receive a minimum bonus of $50,000 at the end of each Year. This Bonus
shall
be based on the following two factors, each of which shall be given equal weight
in determining the bonus amount De Luca will receive that Year:
(a) The
Company’s performance, based on the performance criteria established by the
Board in its sole discretion; and
(b) The
De
Luca’s job performance, based on the performance criteria established by the
Board in its sole discretion.
2.4 Company
Shares.
De Luca
received 180 shares of the Common Stock of the Company (the “RSI
Shares”),
representing 18% of the Company’s outstanding capital stock prior to the Private
Offering. De Luca understands and agrees that the RSI Shares will be exchanged
for 4,500,000 shares of Pro Elite, Inc. (“Pro
Elite”)
(the
“Pro
Elite Shares”)
as
part of a financing of $10,000,000. The Pro Elite Shares shall be subject to
the
provisions set forth below in Section 4.3.
2.4.1 If
the
Company shall at any time during the Term (i) subdivide its common stock, by
split up or otherwise, or combine its common stock, or (ii) issue additional
shares of its common stock or other equity securities as a dividend with respect
to any shares of its common stock, the shares shall be proportionately increased
in the case of a subdivision of stock, or proportionately decreased in the
case
of a combination.
2.5 Benefits.
Should
De Luca become
a
full-time employee of the Company, the Company shall offer De Luca employee
benefits for him, his wife and his minor children, if any, in the form of health
care insurance, life insurance, disability insurance, retirement programs,
etc.,
as is provided to its executive employees. If the Company does not provide
employee benefits to its executive employees at the time De Luca becomes a
full-time employee, the Company will provide to De Luca health, dental, vision
and/or supplemental disability insurance that is normally provided to executive
employees in the sports promotion industry for him, his spouse and his minor
children, if any, until the Company offers health care insurance to its
executive employees, upon which De Luca shall receive the same employee benefits
as is provided to the Company’s executive employees.
ARTICLE
III
BUSINESS
EXPENSES
3.1 Business
Expenses.
De Luca
will be reimbursed 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, De Luca shall be entitled to “first” class travel accommodations for
domestic travel and “business” class travel accommodations for international
travel.
3
ARTICLE
IV
TERMINATION
OF EMPLOYMENT
4.1 Term
of Employment
Notwithstanding
Section 4.1.2, De Luca’s employment pursuant to this Agreement shall terminate
on the earliest to occur of the following:
(a) upon
the
death of De Luca (“Death”);
(b) upon
the
delivery to De Luca of written notice of termination by the Company if De Luca
shall suffer a physical or mental disability or illness which renders De Luca,
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”);
(c) upon
delivery to De Luca of written notice of termination by the Company For
Cause;
or
(d) upon
the
delivery to Company from De Luca for Good Reason.
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 De Luca’s employment with the
Company:
(a) De
Luca
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;
(b) De
Luca’s
willful misconduct in the performance of De Luca’s duties
hereunder;
(c) De
Luca’s
gross negligence in the performance of his duties hereunder or willful and
repeated failure or refusal to perform such duties as may be delegated to De
Luca by Company commensurate with his position;
(d) De
Luca’s
refusal to work as a full-time employee of Company after the first anniversary
of this Agreement, upon Company’s request; or
(e) De
Luca
is in material breach of any provision of this Agreement.
4.2.2 “Good
Reason”
giving
rise to De Luca’s right to terminate this Agreement means if
De
Luca claims that Company has materially breached this Agreement, De Luca shall
have first provided written notice to Company of any such claimed material
breach with exact details of the claimed material breach and Company shall
have
had fourteen (14) days from the date of receipt of such written notice to cure
any such breach; if curable, and in the event Company does so cure such breach
within said fourteen (14) days, such claimed breach shall not constitute good
reason or a breach of this Agreement.
4
4.3 Effect
of Termination
4.3.1 De
Luca
acknowledges that in the event of termination of his employment for any reason,
De Luca shall not be entitled to any severance or other compensation from the
Company. Without limitation on the generality of the foregoing, this Section
supersedes any plan or policy of the Company that provides for severance to
its
officers or employees, and De Luca shall not be entitled to any benefits under
any such plan or policy.
4.3.2 De
Luca
shall have no obligation to offset any payments he receives from the Company
following the termination of his employment by any payments he receives from
his
subsequent employer, except that any payments De Luca receives under the
employee benefit plans or programs of a subsequent employer shall offset any
payments he receives from comparable employment benefit plan or program of
the
Company.
4.3.3 Subject
to Section 4.4 and pursuant to Section 2.4, the Pro Elite Shares shall be
subject to the following:
(a) In
the
event that the services of De Luca hereunder are terminated by the Company
For
Cause or De Luca terminates this Agreement without good reason prior to the
first anniversary of this Agreement, up to 3,375,000 Pro Elite Shares shall
be
automatically returned to the Company and cancelled without any payment to
De
Luca; for purposes of this Section 4.3.3(a), the number of Pro Elite Shares
subject to automatic return and cancellation without any payment to De Luca
shall be determined on a pro rata basis;
(b) In
the
event that the services of De Luca hereunder are terminated by the Company
For
Cause or De Luca or Legacy terminates this Agreement without good reason after
the first anniversary but prior to the second anniversary of this Agreement,
2,250,000 Pro Elite Shares shall be automatically returned to the Company and
cancelled without any payment to De Luca; and
(c) In
the
event that the services of De Luca hereunder are terminated by the Company
For
Cause or De Luca terminates this Agreement without good reason after the second
anniversary but prior to the third anniversary of this Agreement, 1,125,500
Pro
Elite Shares shall be automatically returned to the Company and cancelled
without any payment to De Luca.
4.4 Change
in Control.
In the
event of a “Change in Control,” as defined below, (i) Consultant shall have the
right to terminate this Agreement, (ii) all Pro Elite Shares granted to De
Luca
shall not be subject to Section 4.3, and (iii) upon Consultant’s written notice
to Company of its intent to terminate, this Agreement will be terminated 14
days
after receipt of such notice and the Company and Consultant shall have no
further obligation or duties to each other, except as provided in Articles
V and
VI.
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 fifty one percent (51
%)
or more of the combined voting power of the then outstanding securities of
the
Company; (B) 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 (C) 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.
5
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 De Luca, 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 De Luca 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 De Luca’s employment until the
termination thereof, that relate to the business of Company, whether such is
made solely or jointly with others. Legacy and De Luca 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 De Luca
during De Luca’s employment 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 De Luca or his
representatives in violation of this Agreement) or that is provided to De Luca
by a third party without an obligation with Company to maintain the
confidentiality of such information. After termination of De Luca’s employment
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 De Luca 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 De Luca agree to
return to Company promptly upon the expiration or termination of his employment
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 De Luca 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 De Luca of the
Confidential Information, or the use of such information by Legacy and/or De
Luca in violation hereof.
6
5.2.1 Restriction
on Use of Confidential/Trade Secret Information.
De Luca
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:
(a) Non-Disclosure.
De Luca
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 De Luca’s job duties to
the Company under this Agreement.
(b) Non-Removal/Surrender.
De Luca
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.
De
Luca 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.
5.2.2 Non-Solicitation
of Customers/Prohibition Against Unfair Competition.
De Luca
agrees that at no time after his employment with the Company will he engage
in
competition with the Company while making any use of the Company’s
confidential/trade secret information. De Luca 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
De Luca 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 employment with the Company.
5.3 Non-Solicitation
During Employment.
De Luca
shall not during his employment 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 ▇▇ ▇▇▇▇▇.
De Luca
agrees that, for one year following the termination of his employment, 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
De Luca breaches any of the provisions of this Section 5, or in the event
that any such breach is threatened by the De Luca, 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.
7
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 De Luca 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 De Luca 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 De Luca’s relationship with the Company
and/or with regard to any personal guaranty signed by Legacy or De Luca on
behalf of the Company, and any current or future subsidiary or affiliates,
the
performance of any of De Luca’s duties hereunder, or otherwise arising from or
relating to any aspect of Legacy’s or De Luca’s relationship with the Company
and any current or future subsidiary or affiliates, the performance of any
of De
Luca’s duties hereunder, or otherwise arising from or relating to any action or
inaction of De Luca 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 De Luca’s gross
negligence or willful misconduct. The Company shall cover the De Luca 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 De Luca 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 6.2:
|
If
to the Company:
|
Real
Sport, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (___)
______________
Facsimile: (___)
_______________
Attention:
___________________
|
|
If
to Legacy:
|
Legacy
of Life Entertainment, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (___)
______________
Attention:
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
|
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.
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 De Luca, 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 De
Luca’s employment, 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.
9
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 employment 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.
6.12 Arbitration.
6.12.1 Scope.
To the
fullest extent permitted by law, De Luca 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 employment
relationship between the Company and De Luca and any disputes upon termination
of employment, 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 De
Luca’s 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 employment 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.
10
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, De Luca’s rights, benefits and
obligations hereunder shall be assigned to the surviving or resulting
corporation or the transferee of the Company’s assets.
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
By:
____________________________________
Name:
_____________________________
Title:
_____________________________
|
Real
Sport, Inc., a California corporation
By:
____________________________________
Name:
_____________________________
Title:
_____________________________
|
11
ACKNOWLEDGEMENT
OF LOANOUT
As
an
inducement to you to enter into the Services Loanout Agreement (“Agreement”),
dated as of October 3, 2006 between Real Sport, 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:
| 1. |
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.
|
| 2. |
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 Employment 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.
|
| 3. |
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.
|
| 4. |
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.
|
| 5. |
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.
|
12
| 6. |
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.
|
| 7. |
That
the undersigned will not amend or modify the Employment 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.
|
|
_______________________
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