EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (this “Agreement”)
is entered into as of January 8th, 2007 by and among ProElite, Inc., a New
Jersey corporation, (the “Pro
Elite”),
XxxXxxxx.xxx, a California corporation and a wholly owned subsidiary
(“XxxXxxxx.xxx,”
together with Pro Elite, the “Company”),
and Xxxxx Xxxxxx (“Employee,”
together with the Company, the “Parties”),
with reference to the following facts:
WHEREAS,
the Company desires to employ the Employee, and Employee desires to be employed
by Company pursuant to the terms hereof;
WHEREAS,
Employee desires to commit to an agreement with the Company to serve as the
President of XxxXxxxx.xxx; and
NOW,
THEREFORE, the Company and Employee desire to set forth in this Agreement the
terms and conditions of the Employee's employment with the Company.
ARTICLE
I
EMPLOYMENT;
TERM; DUTIES
1.1 Employment.
Upon
the terms and conditions hereinafter set forth, the Company hereby employs
Employee, and Employee hereby accepts employment to serve as the President
of
XxxXxxxx.xxx.
1.2 Duties.
Employee shall have the responsibilities and carry out the customary functions
of a President of a wholly-owned subsidiary, which duties shall not be
materially diminished during the Term; provided however, that Employee shall
perform such other reasonable duties and responsibilities that are commensurate
with his position and title as may be assigned from time to time by the Company
and by the Board of Directors of the Company (the “Board”).
Employee shall report to the Chief Executive Officer of Pro Elite (“CEO”).
1.2.1 Employee
shall use his best efforts and abilities faithfully and diligently to promote
the Company’s business interests. For so long as Employee is employed by the
Company, Employee shall not, 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,
XxxXxxxx.xxx, and EliteXC Live, Inc., and other entities the Company may form
in
the future (the “Company Group”), 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 Employee of the
services to the Company otherwise required or contemplated by this Agreement,
the Company expressly acknowledges that Employee may:
(a) make
and
manage personal business investments, including real estate investments and
developments, of Employee’s choice without consulting the Board;
(b) continue
to serve on the board of directors for or be involved with the companies listed
in Exhibit
A
attached
hereto; and
(c) speak
at
no more than two (2) non-Company related public speaking engagements per month
without consulting the Board, provided that such speaking engagements do not
interfere with Employee’s ability to carry out his duties and responsibilities
as President of XxxXxxxx.xxx.
1.3 Covenants
of Employee
1.3.1 Reports.
Employee shall 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.
1.3.2 Rules
and Regulations.
Employee 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
Employee.
1.3.3 Opportunities.
Employee shall 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.
1.4 Term.
The
term of this Employment Agreement shall be the period commencing on January
8th,
2007 and ending upon the date of termination of Employee’s employment with the
Company under Section 4.1 (the “Term”).
ARTICLE
II
COMPENSATION
2.1 Base
Salary.
During
the Term, for all services rendered by Employee hereunder and all covenants
and
conditions undertaken by both Parties pursuant to this Agreement, the Company
shall pay, and Employee shall accept, as compensation, an annual base salary
of
$225,000 per year through December 31, 2007 (“Base
Salary”).
Thereafter, Employee shall receive an increase in the applicable Base Salary,
which shall be no less than 5% per year. This Base Salary shall be payable
in
accordance with the normal payroll practices of the Company.
2.2 Performance
and Review.
Employee’s performance will be reviewed on no less than an annual
basis.
2.3 Bonus.
If the
Company pays any bonuses to senior executives, Employee will receive a minimum
bonus of $50,000, payable in the form of cash at the end of each calendar year.
Any additional bonus shall be based on the following two factors, each of which
shall be given equal weight in determining the bonus amount Employee will
receive that calendar year:
2
2.3.1 The
Company’s performance, based on the performance criteria established by the
Company’s Compensation Committee in its sole discretion; and
2.3.2 The
Employee’s job performance, based on the performance criteria established by the
Company’s Compensation Committee in its sole discretion.
2.4 Options.
Employee shall be granted options to acquire 1,700,000 shares of the Company’s
common stock under the Company’s 2006 Stock Compensation Plan (“Option
Shares”),
subject to the additional terms set forth in the Company’s Stock Option
Agreement, of which 340,000 Option Shares shall vest immediately. The
options will be exercisable at $2.00 per share of common stock and the remaining
1,360,000 Option Shares shall vest in equal installments on the last day of
every calendar month during the Term, beginning on January 31st 2007. All
1,700,000 shares associated with Employee’s options will be registered to be
freely tradable at the first available opportunity, but in no event will they
be
tradeable later than the shares of Santa Xxxxxx Capital Partners.
2.4.1 Employee
shall, in addition to the rights provided under the 2006 Stock Compensation
Plan
and in the Company’s Stock Option Agreement, have the right to exercise the
options pursuant to a cashless exercise by
written notice to the Company on the Notice of Exercise duly executed by the
Employee, and receive a number of Option Shares, determined in accordance with
the formula set forth below (the “Election”),
in which event the Company shall issue to the Employee a number of Option Shares
computed using the following formula:
X=
Y(A-B)
A
Where
|
X
=
|
The
number of Option Shares to be issued to the Employee upon an
Election.
|
|
Y
=
|
The
number of Option Shares in respect of which the option is being exercised
as adjusted to the date of the
Election.
|
|
A
=
|
The
Fair Market Value of one Option Share on the date that the relevant
Notice
of Exercise is received by the
Company.
|
|
B
=
|
The
Option Exercise Price (as set forth in the Company’s Option
Certificate).
|
2.4.2 For
purposes of this section 2.4, “Fair
Market Value”
shall
mean:
(a) If
traded
on a securities exchange, the Nasdaq National Market or the Nasdaq Small Cap
Market, the Fair Market Value shall be deemed to be the average of the closing
prices of the common stock of the Company on such exchange or market over the
five (5) business days ending immediately prior to the applicable date of
valuation;
3
(b) If
actively traded over-the-counter, the Fair Market Value shall be deemed to
be
the average of the closing bid prices over the 14-day period ending immediately
prior to the applicable date of valuation; and
(c) If
there
is no active public market, the Fair Market Value shall be the value as
determined in good faith by the Company’s Board of Directors upon a review of
relevant factors.
2.4.3 In
the
event this Agreement is terminated pursuant to Section 4.1 of this Agreement,
Employee shall not thereafter be able to exercise any options that are not
vested as of December 31 of the calendar year of such termination; however
Employee will be able to exercise all options that vest through December 31
of
that calendar year of such termination. Employee or his legal representative,
estate or beneficiaries in the case of death or disability as the case may
be
shall have the right to exercise any or all of the vested Option Shares during
the period beginning on the date Employee’s employment is terminated and ending
on the later of 30 days after the Employee’s lock-up period ends (assumed to be
May 3, 2008); 90 days after the termination date; or 30 days after all of
Employee’s shares associated with vested options, should they be exercised,
become freely tradeable.
2.4.4 During
the Term of this Agreement, in the event of a Change of Control, Employee’s
Option Shares shall vest immediately. “Change
of Control”
means
the occurrence after the date hereof of any of (i) an acquisition after the
date
hereof by an individual or legal entity or “group” (as described in Rule
13d-5(b)(1) promulgated under the Securities Exchange Act of 1934, as amended)
of effective control (whether through legal or beneficial ownership of capital
stock of the Company, by contract or otherwise) of in excess of 50% of the
voting securities of the Company (other than by means of conversion or exercise
of warrants that have already been issued by the Company as of the date hereof),
or (ii) the Company merges into or consolidates with any other Person, or any
Person merges into or consolidates with the Company and, after giving effect
to
such transaction, the stockholders of the Company immediately prior to such
transaction own less than 50% of the aggregate voting power of the Company
or
the successor entity of such transaction, or (iii) the Company sells or
transfers all or substantially all of its assets to another Person and the
shareholders of the Company immediately prior to such transaction own less
than
50% of the aggregate voting power of the acquiring entity immediately after
the
transaction, or (iv) a replacement at one time or within a three year period
of
more than one-half of the members of the Company’s board of directors which is
not approved by a majority of those individuals who are members of the board
of
directors on the date hereof (or by those individuals who are serving as members
of the board of directors on any date whose nomination to the board of directors
was approved by a majority of the members of the board of directors who are
members on the date hereof), or (v) the execution by the Company of an agreement
to which the Company is a party or by which it is bound, providing for any
of
the events set forth in clauses (i) through (iv) above.
(a) “Person”
means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision thereof) or other entity
of any kind.
4
2.5 Employee
Benefit Plans.
During the Term, Employee shall be entitled to participate in any pension,
savings and group term life, medical, dental, disability and other group benefit
plans which the Company makes available to its employees generally. Company
will
pay for Employees benefits. To the extent that Employee is now or ever deemed
to
be an officer of the Company, Company will provide Employee with coverage under
D&O insurance throughout the term of this Agreement and Company will make
available to Employee certificate of insurance for inspection.
2.6 Withholding.
The
Company may deduct from any compensation payable to Employee (including payments
made pursuant to Section 2 of this Agreement in connection with or following
termination of employment) amounts sufficient to cover Employee’s share of
applicable federal, state and/or local income tax withholding, old-age and
survivors’ and other social security payments, state disability and other
insurance premiums and payments.
ARTICLE
III
BUSINESS
EXPENSES
3.1 Business
Expenses.
Employee will be reimbursed for all reasonable, out-of-pocket business expenses
(including but not limited to travel, food and lodging expenses, a new computer,
cell phone/PDA, and online connectivity.) 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.
ARTICLE
IV
TERMINATION
OF EMPLOYMENT
4.1 Termination
4.1.1 Employee’s
employment pursuant to this Agreement shall terminate on the earliest to occur
of the following:
(a) December
31, 2011;
(b) upon
the
death of Employee (“Death”);
(c) upon
the
delivery to Employee of written notice of termination by the Company if Employee
shall suffer a physical or mental disability or illness which renders Employee,
in the reasonable judgment of the Board, unable to perform his duties and
obligations under this Agreement, with or without reasonable accommodation,
for
either 60 consecutive days or 180 days in any 12-month period (“Disability”);
(d) upon
delivery to Company of written notice of termination by the Employee for Good
Reason;
(e) 90
days
after delivery to Employee of written notice of termination by the Company
For
Cause;
5
(f) December
31, 2007 if Employee receives a written notice from the Company by September
30,
2007 of its intention to terminate Employee’s employment as President of
XxxXxxxx.xxx;
(g) December
31, 2008 if Employee receives a written notice from the Company by September
30,
2008 of its intention to terminate Employee’s employment as President of
XxxXxxxx.xxx;
(h) December
31, 2009 if Employee receives a written notice from the Company by September
30,
2009 of its intention to terminate Employee’s employment as President of
XxxXxxxx.xxx; or
(i) December
31, 2010 if Employee receives a written notice from the Company by September
30,
2010 of its intention to terminate Employee’s employment as President of
XxxXxxxx.xxx.
(j) For
the purpose of clarification and by way of example, if Company terminates
Employee on September 1, 2007, then Employee will receive full payment and
benefits and options vesting through December 31st
2007 plus four (4) additional months of severance pay and benefits. If Company
terminates Employee on Oct 1st,
2007, then Employee will receive full compensation and benefits and options
vesting through December 31st,
2008 plus four (4) additional months of severance pay and benefits.
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 Employee’s employment with
the Company, that:
(a) Employee
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) Employee’s
willful misconduct in the performance of Employee’s duties
hereunder;
(c) Employee’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
Employee by Company commensurate with his position; or
(d) Employee
is in material breach of any provision of this Agreement.
4.2.2 “Good
Reason”
giving
rise to Employee’s right to terminate this Agreement means
that
Company has materially breached this Agreement. If Employee claims that the
Company has so breached this Agreement, Employee shall provide written notice
to
Company of any such claimed material breach with exact details of the claimed
material breach and Company shall have had thirty (30) 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 thirty (30) days, such
claimed breach shall not constitute Good Reason or a breach of this Agreement.
6
4.3 Effect
of Termination.
If
Employee’s employment is terminated by the Company, and provided that Employee
executes and delivers to the Company, and does not revoke, a written release
(the “Release”)
of any
and all claims against the Company with respect to all matters arising out
of
Employee’s employment by the Company, or the termination thereof (other than
claims for any entitlements under the terms of this Agreement, claims
under
any plans or programs of the Company under which Employee has accrued a benefit,
and rights to indemnification under applicable law or agreement), the
Company agrees to pay to Employee the Base Salary when and in the manner as
if
Employee’s employment had not terminated for a period of four consecutive
months, during which time Employee shall be entitled to participate in any
employee benefits plans (“Severance”).
The
Company shall be entitled to defer payment of any amounts under this Section
4
until the expiration of any period during which Employee shall have the right
to
revoke the Release.
4.3.1 Employee
acknowledges that Employee’s employment may terminate without cause, or pursuant
to Subsections 4.1.1 (b), (c), (e), (f), (g), (h) or (i), and that such
termination shall not be a breach of this Agreement or any other express or
implied agreement between the Company and Employee. Accordingly, in the event
of
such termination, Employee shall be entitled only to those benefits specifically
provided for in this Agreement in the event of such termination, and shall
not
have any other rights to any compensation or damages from the Company for breach
of contract or tort arising from such termination.
4.3.2 Employee
acknowledges that in the event of termination of his employment for any reason
Employee shall not be entitled to any severance or other compensation from
the
Company except as specifically provided in this Section 4.3, and shall not
be entitled to participate in any employee benefits plans except as provided
in
such plans, in Section 4.3 or as required by law. 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 Employee
shall not be entitled to any benefits under any such plan or
policy.
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 Employee, 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, Employee agrees to disclose promptly to Company any
and
all inventions, discoveries, trademarks, proprietary information, know-how,
processes or improvements, patentable or otherwise, that he may make from the
beginning of Employee’s employment until the termination thereof, that relate to
the business of Company, whether such is made solely or jointly with others.
Employee further agrees that, during the Term, 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.
7
5.2 Confidential
Information.
Employee 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 the Company or any of its affiliated companies, and their respective
businesses, which shall have been obtained by Employee during his 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 Employee or his representatives in violation of this
Agreement) or that is provided to Employee by a third party without an
obligation with Company to maintain the confidentiality of such information.
After termination of Employee’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. Employee 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.
Employee agrees 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 Employee 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 Employee of the
Confidential Information, or the use of such information by Employee in
violation hereof.
5.2.1 Restriction
on Use of Confidential/Trade Secret Information.
Employee 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.
Employee 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 Employee’s job
duties to the Company under this Agreement.
(b) Non-Removal/Surrender.
Employee 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. Employee 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.
8
5.2.2 Non-Solicitation
of Customers/Prohibition Against Unfair Competition.
Employee 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. Employee 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
Employee 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.
Employee 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 Employees.
Employee 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
Employee breaches any of the provisions of this Section 5, or in the event
that
any such breach is threatened by the Employee, 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. Employee may not assign any of his rights and obligations under this
Agreement. The Company may assign its rights and obligations under this
Agreement to any successor entity. Provided, said assignment shall not delay
in
any manner the implantation of the Employees rights under paragraph 2.4.4 of
this Agreement.
6.2 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 address set forth herein; or three days after being
sent
by registered or certified mail, return receipt requested, (or by equivalent
carrier 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:
9
|
If
to the Company:
|
Pro
Elite, Inc.
00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
Xx Xxxx
|
|
If
to Employee:
|
Xxxxx
Xxxxxx
000
Xxxxxxxxxx Xxx
Xxxxx
Xxxxxx, XX
00000
Telephone: (000)
000.0000
Facsimile: (___)
_________
|
6.3 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.
6.4 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.
6.5 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 Employee, 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
Employee’s employment, express or implied, other than to the extent expressly
provided for herein.
6.6 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.
6.7 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.
10
6.8 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.
6.9 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.
6.10 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.
6.11 Arbitration.
6.11.1 Scope.
To the
fullest extent permitted by law, Employee 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 Employee 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
Employee’s claims arise out of or relate to their actions on behalf of the
Company.
6.11.2 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.
11
6.12 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, Employee’s rights, benefits and
obligations hereunder shall be assigned to the surviving or resulting
corporation or the transferee of the Company’s assets.
[Signature
page to follow]
12
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
|
/s/ Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
|
Pro
Elite, Inc., a New Jersey corporation
By:
/s/
Xxxxxxx
XxXxxx
Name:Xxxxxxx
XxXxxx
Title:
Chief
Executive
Officer
|
|
XxxXxxxx.xxx,
a California corporation
By:
/s/
Xxxxxxx
Xxxxx
Name:/s/
Xxxxxxx
Xxxxx
Title:President
|
13
EXHIBIT
A
List
of Companies
American
Family Protection
Family
Real Estate Activities (Xxxxxx Properties, Patriot Self-Storage, SRS
Ranch)
President’s
Council on Service and Civic Participation
Charitable
Organizations (USO, Big Brothers/Sisters, National Guard Youth Challenge
Program)
Radiance
Rewards
Jobzone
Networks
Clone
Interactive
LinkedIn
Angel
Venture Partners
Frank’s
Energy Drink
Authentic
Planet, Inc.
14
