U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
January 28, 2000
Commission File Number: 001-13217
THE ORLANDO PREDATORS ENTERTAINMENT, INC.
---------------------------------------------------------------
(Exact name of small business issuer as specified in its charter)
Florida 91-1796903
- ------------------------------- --------------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
741 Front Street
Suite 140
Celebration, Florida 34747
--------------------------------------
(Address of Principal Executive Offices)
Issuer's Telephone Number: (407) 566-2493
400 West Church Street
Orlando, Florida 32801
------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
Effective January 28, 2000, Dr. Eric Margenau joined Orlando Predators
Entertainment, Inc. ("Company") in the capacity of Chief Executive Officer and a
Director. Dr. Margenau is the President and co-founder of United Sports
Ventures, Inc. ("USV") The Company signed a letter of intent in May 1999 to
acquire USV. The Company has engaged USV to provide management services in
connection with the Company's operation of its Orlando Predators Arena Football
League franchise and for general management services in the operation of the
Company until the acquisition is completed. The Company will pay USV a
management fee, commencing on June 30, 2000 of an amount equal to 30% of USV's
overhead costs in the event the acquisition does not occur.
Brett L. Bouchy, the departing President and Chief Executive Officer, will
remain with the Company as its liaison to the Arena Football League, pursuant to
a 36 month employment agreement, which calls for an annual salary of $50,000. In
addition, Mr. Bouchy will retain his options to purchase 817,080 shares of
common stock at $2.50 per share.
Item 7. Financial Statements and Exhibits
(c.)
10.12
Management Agreement dated January 28, 2000 between the Registrant and
Eric Margenau, President of United Sports Ventures, Inc.
10.13
Amended and Restated Employment Agreement dated January 28, 2000
between the Registrant and Brett L. Bouchy.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Orlando Predators Entertainment, Inc.
(Registrant)
By: /s/ Jeffrey L. Bouchy
---------------------------------------
Jeffrey L. Bouchy, Chief Financial Officer
Dated: February 11, 2000
EXHIBIT 10.12
MANAGEMENT AGREEMENT
--------------------
MANAGEMENT AGREEMENT, dated as of January 28, 2000, between The Orlando
Predators Entertainment, Inc., a Florida corporation with an office and place of
business at 400 West Church Street, Orlando, Fl 32801 (the "Company"), and
United Sports Ventures, Inc., an Ohio corporation with an office at 27 West 24th
Street, New York, New York 10010 (the "Manager").
INTRODUCTION
------------
A. The Manager has available to it certain expertise in the operations and
management of professional sports teams and franchises, including certain
developed practices, techniques and procedures which have proven successful in
the operation of sports franchises in the United States of America.
B. The Company is a publicly held company whose primary business operations
are the operation of the Orlando Predators football team, a member of the Arena
Football League.
C. The Company believes that the application of such expertise, practices,
techniques and procedures to its business would be of great value to the Company
and would have a materially positive impact on its financial performance and
operations.
D. The Manager is willing to provide such expertise, practices, techniques
and procedures to the Company on the terms and conditions contained herein.
E. The Manager and the Company have ben engaged in discussions and
negotiations whereby the parties may enter into a transaction pursuant to which
the Manager may be acquired (whether by merger or otherwise) by the Company, and
pending such transaction the Company desires to retain the Manager upon the
terms provided herein.
ENGAGEMENT
----------
1.01. Engagement of the Manager. The Company hereby engages the Manager to
provide to the Company management services in connection with the Company's
operation of its Orlando Predators football sports franchise and for general
management services in the operation of the Company and for such other services
as the Company may reasonably ask the Manager to perform in connection with any
and all present activities of the Company, and the Manager hereby accepts such
engagement.
1.02. Duties. During the term of this Agreement, the Manager shall perform
such management services for the Company as the Manager and the Board of
Directors of the Company believe are necessary or desirable to advance the
financial and business affairs of the Company. Subject to the control and
direction of the Board of Directors of the Company, the Manager shall have
complete discretion with respect to the personnel designated to render services
hereunder and the time, place and manner of performance, it being expressly
understood and agreed that the Manager shall be required to devote to its
1
<PAGE>
duties hereunder only such time as it may in good faith determine necessary. The
Manager shall have no liability to the Company or any other person or entity for
any act or failure to act in connection with such services (except to the extent
such act or failure to act resulted from gross negligence or willful bad faith
on the part of the Manager). The Company hereby acknowledges that the Manager
presently engages, in the operation of other sports franchises and related
businesses and agrees that the Manager may continue to engage, directly and
indirectly, in such business irrespective of whether any such operations may
compete with those of the Company.
1.03. Term. Unless sooner terminated as provided in Section 3.01 hereof,
the term of this Agreement shall be for an initial period of one (1) year
commencing on the date hereof (the "Initial Term"), and thereafter shall be
automatically renewed for successive one-year periods (each a "Renewal Term"),
unless either party shall give written notice to the other party, at least
thirty (30:) days prior to the expiration of the Initial Term or current Renewal
Term, as the case may be, of its intent to terminate this Agreement on and as of
such expiration date. Notwithstanding the foregoing, in the event that the
parties enter into a definitive agreement whereby the Manager shall be acquired
by, or merge with, the Company, this Agreement shall terminate on the date of
closing of such transaction.
1.04. Appointment of Personnel. The Manager shall make available the
following persons who shall be appointed by the Board of Directors of the
Company to the offices of the Company as set forth below:
Name Title
- ---- -----
Eric Margenau Chief Executive Officer, Director
James Farkas Vice President
MichaelTatoian Vice President
William Shanahan Vice President
Howard Cornfield Vice President
The Company shall deliver a written copy of resolutions, certified by the
Secretary of the Company, of the Board of Directors which resolutions evidence
the appointment of the person set forth above to the offices stated above.
1.05. Relationship of the Parties. The Company and the Manager acknowledge
and agree that nothing contained in this Agreement is intended to constitute
them as employer/employee, joint venturers or partners, it being their intention
that the Manager is an independent contractor.
ARTICLE II
COMPENSATION
------------
2.01. Management Fee. As compensation for the management services to be
rendered by it hereunder, the Company shall pay the Manager a management fee,
payable semi-annually commencing June 30, 2000 in an amount equal to 30% of the
2
<PAGE>
overhead costs and expenses of the New York offices of the Manager (including,
without limitation, (i) salaries, social security, disability, FICA and local
payroll taxes, health and welfare benefits and (other compensation, paid to or
in respect of employees and other personnel; (ii) rent; (iii) supplies; and (iv)
telephone and utilities) (Management Fee"). The Manager shall maintain internal
accounting records in good faith and such expenses shall be subject to review by
the Board of Directors of the Company. The Management Fee shall be paid by the
Company to the Manager within 10 days of the end of each six month period. In
the event that the parties consummate a transaction in which the Manager has
been acquired by, or merge with, the Company, no Management Fee shall be paid
hereunder
2.02. Reimbursement of Expenses. The Company shall promptly reimburse the
Manager for all reasonable direct expenses and disbursements incurred by the
Manager in rendering management services hereunder, which reimbursement shall
not include any payments made under Section 2.01 above. The Manager shall keep.
reasonable records of all such direct expenses and disbursements and shall
produce them at the request of the Company.
ARTICLE III
TERMINATION
-----------
3.01. Notice of Termination. This Agreement may be terminated as follows:
(a) By either party effective on the date of expiration of the Initial Term
or current Renewal Term, as the case may be, as provided in Section 1.03;
(b) By either party upon 90 days' written notice to the other party if by
(i) June 30, 2000 the parties have not entered into a Definitive Acquisition
Agreement or (ii) the closing as described under the Definitive Acquisition
Agreement has not occurred by September 30, 2000;
(c) By the Company upon five (5) days' written notice to the Manager if the
Manager has committed an act of gross negligence, willful misconduct, fraud,
misappropriation of funds or embezzlement in connection with the performance of
its duties hereunder;
(d) By the Manager upon ten (10) business days' written notice to the
Company if the Company shall have failed to pay when due any amounts payable to
the Manager hereunder; or
(e) By the Company in the event that the Manager cannot provide the
services of Eric Margenau.
Any notice of termination given as provided in clause (c) or (d) of this
Section 3.01 shall specifically identify the provision relied upon for
termination and shall set forth in reasonable detail the facts and circumstances
claimed to provide the basis for such termination. The obligations of the
Manager under Section 5.02 shall survive a termination of this Agreement.
3.02. Compensation. Upon termination of this Agreement, the Manager shall
be entitled to receive only the amounts due to it through the date of
termination under Sections 2.01 and 2.02 hereof.
3
<PAGE>
ARTICLE IV
INDEMNIFICATION
---------------
4.01. Agreement to Indemnify. The Company shall indemnify and hold harmless
the Manager, its successors, assigns and affiliates and the stockholders,
directors, officers, employees and agents of each of the foregoing against all
loss, liability, damage and expense (including, without limitation, reasonable
attorneys' fees and disbursements), directly or indirectly suffered by any such
indemnified party (other than as a stockholder of the Company) as a result of,
or arising from, any act or failure to act on the part of the Company in
connection with the performance of any of its duties hereunder. The Manager
shall indemnify and hold harmless the Company, its successors, assigns and
affiliates and the stockholders, directors, officers, employees and agents of
each of the foregoing against all loss, liability, damage and expense
(including, without limitation, reasonable attorneys' fees and disbursements),
directly or indirectly suffered by any such indemnified party (other than as a
stockholder of the Company) as a result of, or arising from, any act or failure
to act on the part of the Manager in connection with the performance of any of
its duties hereunder; provided, however, in no event shall the Manager be liable
or responsible for any loss or damages in excess of the total Management Fee
paid by the Company hereunder.
4.02. Conditions to Indemnification. If any action, suit, proceeding,
claim, liability, demand or assessment shall be asserted against any Indemnified
Party in respect of which it proposes to demand indemnification pursuant to this
Article IV, such Indemnified Party shall promptly notify the Company and furnish
copies of all pleadings and related correspondence, if any. Subject to rights of
or duties to any insurer or other third person having liability therefor, the
Company shall have the right promptly after receipt of such notice to assume the
control of the defense, compromise or settlement of any such action, suit,
proceeding, claim, liability, demand or assessment, including, at the Company's
own expense, employment of counsel satisfactory to such Indemnified Party.
Notwithstanding the preceding sentence, in any such matter described in the
preceding sentence, the Indemnified Party shall have the right to retain its own
separate counsel, but the fees and expenses of such counsel shall be at the
Indemnified Party's expense unless (a) the Company and the Indemnified Party
shall have agreed to the contrary, (b) the Company have failed within a
reasonable time to retain counsel satisfactory to the Indemnified Party or (c)
the named parties in any such proceeding (including any impleaded parties)
include the Company and the Indemnified Party and representation of all such
parties by the same counsel could be inappropriate due to actual or potential
differing interests between them. In any matter described above where the
Indemnified Party has obtained counsel to represent it in addition to counsel
obtained by the Company, counsel selected by the Company and counsel selected by
the Indemnified Party shall cooperate fully with each other in such matter.
Neither the Manager nor the Company shall be liable for any claim settled
without its consent, which consent may not be unreasonably withheld.
4
<PAGE>
ARTICLE V
MISCELLANEOUS
-------------
5.01. Full Access. The Company shall give the Manager and its authorized
representatives full access during the term of this Agreement to all personnel,
properties, assets, books, records, contracts and documents of the Company, and
shall cooperate fully with the Manager in connection with the performance by the
Manager of its duties hereunder. The Manager and its authorized representatives
shall also be entitled from time to time to consult and communicate with the
independent certified public accountants of the Company as well as, upon prior
notice to the Company, lenders and lessors to, suppliers of, and others having
business dealings with the Company (and the Company shall promptly authorize all
of such persons, in writing, to disclose to the Manager information concerning
the Company requested by the Manager).
5.02. Confidentiality. The Manager agrees to keep confidential any
information relating to the Company of a confidential nature and not generally
known to the sports franchise operations industry (including without limitation,
trade secrets and information relating to the operations or financial condition
of the Company) disclosed to the Manager by the Company or its representatives,
except that the Manager shall be entitled to disclose any such information (i)
to its attorneys, accountants and banking representatives and (ii) to the extent
required by law or by order of any court or governmental agency.
5.03. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the Company and the Manager and their respective: successors
and assigns; provided, however, that neither party may assign or transfer its
rights or obligations under this Agreement without the prior written consent of
the other party.
5.04. Notices. Any notice required or permitted to be given under this
Agreement to either party, shall be sufficient if in writing and if personally
delivered or if sent by registered or certified mail, postage prepaid, return
receipt requested, to the address of such party hereinabove set forth, or to
such other address as such party may hereafter designate by a notice given to
the other party in the manner provided in this Section 5.04.
5.05. Waiver. A waiver by a party hereto of a breach of any term, covenant
or condition of this Agreement by the other party hereto shall not operate or be
construed as a waiver of any other or subsequent breach by such other party of
the same or any other term, covenant or condition hereof.
5.06. Entire Agreement; Amendments. This Agreement is intended by the
parties hereto as a final expression of their agreement and understanding and
exclusive statement of the terms thereof and supersedes any and all prior and
contemporaneous agreements and understandings relating thereto. The Company and
the Manager acknowledge and agree that neither party, nor any attorney or agent
for either party, has made any promise, representation or warranty whatsoever
not contained herein concerning the subject matter hereof to induce the other
party to execute this Agreement. No waiver, modification, change or amendment of
any of the provisions of this Agreement shall be valid, unless in writing and
signed by the party against whom such claimed waiver, modification, change or
amendment is sought to be enforced; provided, however, that no such waiver,
modification, change or amendment shall be effective unless it is approved by a
majority of the directors of the Company who are not affiliated with the
Manager.
5
<PAGE>
5.07. Authority. Each of the Company and the Manager represents and
warrants to the other that it has the power, authority and right to enter into
this Agreement and to carry out and perform the terms, covenants and conditions
hereof.
5.08. Applicable Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York, without giving
effect to principles relating to conflicts of law. Each party hereby submits to
the jurisdiction of the courts of the State of Florida and New York and agrees
that all suits or proceedings shall be brought in solely in such courts. Each
party hereby waives all defenses of forum non conveniens.
5.09. Severability. In the event that any of the provisions of this
Agreement, or any portion thereof, shall be held to be invalid or unenforceable,
the validity and enforceability of the remaining provisions hereof shall not be
affected or impaired, but shall remain in full force and effect.
5.10. Titles. The titles of the Articles and 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE ORLANDO PREDATORS ENTERTAINMENT, INC
(Company)
By: /s/ Richard Corley
----------------------------------------
Name: Richard Corley
Title: Director
UNITED SPORTS VENTURES, INC.
(Manager)
By: /s/ Eric Margenau
----------------------------------------
Name: Eric Margenau
Title: President
6
EXHIBIT 10.13
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EFFECTIVE DATE: January 28, 2000
EMPLOYER: THE ORLANDO PREDATORS ENTERTAINMENT, INC.
a Florida corporation
EMPLOYEE: BRETT BOUCHY
PURPOSE:
Employer owns, manages and operates a professional arena football franchise
known as the Orlando Predators and located in Orlando, Florida (the ABusiness@).
Employer desires to employ Employee as the Arena Football League Liaison and
Employee desires to accept such employment, on the terms, covenants and
conditions set forth in this Employment Agreement (this AAgreement@). This
Agreement supersedes that certain Employment Agreement dated May 15, 1998, as
amended.
AGREEMENTS:
- -----------
For the reasons set forth above, and in consideration of the mutual
promises and agreements set forth in this Agreement, Employer and Employee agree
as follows:
1. Employment; Duties.
- ----------------------
1.1 Subject to and in accordance with this Agreement, Employer employs
Employee as the Arena Football League Liaison for Employer and Employee accepts
employment with Employer subject to the general supervision and pursuant to the
orders, advice and direction of the Chief Executive Officer of Employer. In such
capacity, Employee shall be responsible for the duties described on the attached
Exhibit AA@.
1.2 Employee shall use his best efforts but shall not be required to
devote his full time to the performance of all the duties that may be required
of and from him pursuant to the express and implicit terms of this Agreement.
Such duties shall be rendered in Orlando, Florida; provided, however that
Employee shall undertake such travel, within or outside of the United States,
including, but not limited to, travel to the principal offices of Employer and
its subsidiaries, as is or may be reasonably necessary in the interests of
Employer and its subsidiaries.
1.3 Employee represents and warrants that there are no agreements or
arrangements, written or oral, in effect which would prevent Employee from
rendering services to Employer during the term of this Agreement.
1.4 Nothing herein contained shall be construed to create a
partnership or joint venture between Employer and Employee. Neither party hereto
shall be liable for the debts or obligations of the other unless expressly
assumed in writing and signed by the parties hereto.
<PAGE>
2. Term. This Agreement shall become effective on the date first written
above and, unless terminated sooner pursuant to Section 5, continue through the
third anniversary of the date first written above.
3. Compensation and Other Benefits. For services rendered to Employer
hereunder, in whatever capacity rendered, Employee shall have and receive,
subject to withholding and other applicable taxes, the following:
3.1 Compensation. An annual base salary ("Base Salary") during the
Term of $50,000, which salary will be payable monthly, in arrears in accordance
with Employer's regular payroll periods.
3.2 Stock Options. That certain Grant of Incentive Stock Option dated
May 15, 1998, as modified by that certain Cancellation Agreement dated January
26, 1999, shall remain in full force and effect without modification as a result
of this Agreement.
3.3 Business Expenses. Upon submission of proper documentation,
Employer shall pay or reimburse Employee for all reasonable and necessary
office, telephone, travel and other expenses incurred by him in the pursuit of
his duties on behalf of Employer.
3.4 Employee Benefits. Employee shall be entitled to
participate in any and all other bonus, stock option, incentive compensation,
deferred compensation, group medical and dental insurance plans or other plans
or programs and to receive any and all other benefits for which he is eligible
and which Employer may provide its employees generally.
3.5 Vacation. At such reasonable times as Employer shall in its sole
discretion permit, Employee shall be entitled to absence himself voluntarily
from the performance of his employment under this Agreement. Employee shall be
entitled to such period of absence of not more than four weeks during each
fiscal year of the Term.
4. Facilities. Employer shall provide and maintain (or cause to be provided
and maintained) such facilities, equipment, offices, secretarial help, and other
services and supplies as it deems necessary for Employee's performance of his
duties under this Agreement, as established from time to time by Employer.
5. Termination; Severance.
5.1 Employer may terminate this Agreement:
a. Upon the death of Employee during the Term, except that
Employee=s legal representatives, successors, assigns and heirs shall have those
rights and interests as otherwise provided in this Agreement, including the
right to receive accrued but unpaid compensation and bonus compensation on a pro
rata basis.
-2-
<PAGE>
b. Upon written notice from Employer to Employee, if Employee
becomes Disabled.
c. Upon written notice from Employer to Employee, at any time for
ACause@. For purposes of this Agreement, ACause@ shall be defined as (1) willful
disobedience by Employee of a material and lawful instruction of the Chief
Executive Officer or the Board of Directors of Employer or any management
officer senior to employee; (2) conviction of Employee of any misdemeanor
involving fraud or embezzlement or similar crime, or any felony, excluding
traffic related offenses or other offenses known to Employer; (3) breach by
Employee of any material provision of this Agreement; (4) violation of any
federal or state rule or regulation, or Employer policy, regarding securities
laws; (5) conduct amounting to fraud, dishonesty, or willful misconduct; (6)
recurring insubordination, inattention to or unsatisfactory performance of
duties which materially adversely affects operations of Employer; or (7)
violation of any federal rule or regulation or Employer policy related to sexual
harassment or discrimination, provided that Employer shall not have the right to
terminate the employment of Employee pursuant to the foregoing clauses (1), (3)
or (6) above unless written notice specifying such breach shall have been given
to Employee and, in the case of breach which is capable of being cured, Employee
shall have failed to cure such breach within 15 days after his receipt of such
notice. In the event of such termination, Employee shall be entitled only to his
Base Salary due and owing to the date of termination, plus reimbursement
expenses.
5.2 In the event Employer demotes, substantially reduces the duties of
Employee (in the absence of Employee's failure to perform his duties in the good
faith determination of the Chief Executive Officer or Board of Directors, after
notice of same has been provided to Employee) or reduces the salary or benefits
of Employee, Employee may elect to treat this Agreement as termination for Agood
reason@. In the event of termination of this Agreement for good reason, Employee
shall be entitled to payment of (i) all the salary and benefits under this
Agreement and (ii) the vesting of all stock grants or options.
5.3 In the event of termination of this Agreement and the discharge of
Employee by Employer in breach and violation of this Agreement, or without Cause
(other than a good reason), Employee shall be entitled to the following as it
sole remedy for such termination, discharge and/or breach:
a. A sum equal to three year's Base Salary of Employee then in
effect, payable in two installments, the first of which shall be paid within 5
days of the date of termination and the second of which shall be paid within 60
days of the date of termination;
b. All Base Salary and Bonus to the date of termination;
c. Continued payment by Employer of all health and medical plan
payments of behalf of Employee;
d. All options granted to Employee shall be deemed vested as of
the date of termination.
-3-
<PAGE>
5.4 Upon termination of this Agreement, or whenever requested by
Employer, Employee shall immediately turn over to Employer all of Employer's
property, including all items used by Employee in rendering services hereunder,
that may be in Employee's possession or under his control.
6. Covenant Not to Compete; Disclosure of Information.
6.1 Solicitation.
6.1.1 In the event that Employee terminates this Agreement in
breach of the terms and provisions hereof, then for a period of six months after
the date of such termination in breach of this Agreement, Employee shall not,
whether alone or as a partner, officer, director, employee or shareholder (or
other holder of an equity interest) of, or consultant, advisor or lender to, any
other corporation, partnership or other entity, or as a trustee, fiduciary or
other representative, solicit Employer's customers with respect to, engage in or
have any interest, including as a creditor, in any person, partnership,
corporation, association, or other business entity, whether as employee,
officer, director, agent, consultant, stockholder or holder of any right to any
form of equity ownership, or otherwise, that engages in the business of owing,
operating or managing professional football teams or leagues.
6.1.2 Employee shall not, during or for a period of six (6)
months after the term of this Agreement, solicit any employee, sales
representative or independent contractor of Employer for employment by any
person, firm, partnership, corporation, association or other entity for any
reason or purpose allied or related to the Business whatsoever.
6.2 Non Disclosure.
6.2.1 Employee hereby recognizes and acknowledges that: (i)
Employee will be making use of, acquiring, and/or adding to proprietary
information of a special and unique nature and value relating to and including,
but not limited to, confidential information concerning Employer's business,
finances, marketing, accounting, information systems, personnel and/or employee
leasing, and other nonpublic information such matters Employer's trade secrets,
systems, procedures, manuals, confidential reports, lists of suppliers, research
and development projects, policies, processes, formulas, techniques, know-how
and facts relating to sales, advertising, mailing, promotions, financial
matters, customers, customer lists, purchases or requirements or other methods
used and preferred by Employer in its operations, (ii) Employer will disclose
certain proprietary information to Employee including, but not limited to, the
details of any statistical or financial data, the operations and structure of
the business of Employer, and manuals, forms, techniques, methods or procedures
of Employer used by or made available to Employee in the course of Employee's
employment (the information referenced to in paragraphs 6.2.1 (i) and (ii) above
are hereinafter collectively referred to as the "Proprietary Information").
6.2.2 Employee hereby recognizes and acknowledges that the
Proprietary Information is a valuable, special and unique asset of Employer's
business.
-4-
<PAGE>
6.2.3 Employee will not at any time, directly or indirectly make
use of, divulge or disclose any of the Proprietary Information or any part
thereof for any purpose whatsoever (except in the ordinary, day to day course of
conduct of Employer=s Business) whatsoever to any person, firm, corporation,
association or other entity for any reason or purpose whatsoever (except in the
ordinary, day to day course of conduct of Employer=s Business) that has been
obtained by, or disclosed to, him as a result of his relationship with Employer.
Immediately upon request by Employer, Employee shall return to Employer any and
all materials relating to Proprietary Information.
6.3 Acknowledgment.
6.3.1 Employee acknowledges that the covenants contained in this
Section 6 are a material inducement for Employer to enter into this Agreement
and to perform its obligations hereunder and that the services Employee is to
render to Employer hereunder are of a special and unusual character with a
unique value to Employer. Employee acknowledges that it would take at least six
(6) months for Employer to retain and train personnel to replace Employee.
Accordingly, Employee acknowledges that the restrictions contained in this
Section 6 are reasonably necessary for the protection of Employer's business and
that a breach of any such restrictions could not adequately be compensated by
damages in an action at law.
6.3.2 In the event of a breach or threatened breach by Employee
of any provision contained in this Section 6, Employer shall be entitled to
obtain, by posting an appropriate bond, an injunction (preliminary or permanent,
or a temporary restraining order) restraining Employee from the activity or
threatened activity constituting or that would constitute a breach.
6.3.3 In the event of a material breach by Employee of any
provision contained under this Section 6, Employer shall be entitled to an
accounting and repayment of all profits, compensation, commissions,
remunerations or other benefits that Employee, directly or indirectly, has
realized and/or may realize as a direct result of, arising directly out of or in
direct connection of any such breach.
6.3.4 The remedies provided in this Section 6 shall be in
addition to, and not in
lieu of, any and all other remedies of Employer at law or in equity.
7. Miscellaneous.
7.1 Notice. Notices required or permitted to be given hereunder shall
be sufficient if in writing and delivered or deposited in the mail, postage
prepaid, certified mail, return receipt requested (or the equivalent in a
foreign country), addressed, if to Employer, at its principal place of business
and, if to Employee, at the address set forth in Employer's employee records or
to such other address as may be designated in writing hereafter by either party
hereto. All notices hereunder shall be effective: (a) five (5) days after
deposit in the mail; or (b) upon delivery, if delivered in person or by
commercial express service.
-5-
<PAGE>
7.2 Burden. Except as otherwise provided herein, this Agreement shall
be binding upon and inure to the benefit of any successor of Employer and any
such successor shall be deemed substituted for Employer under the terms of this
Agreement. As used in this Agreement, the term Asuccessor@ shall mean any
person, firm, corporation or other business entity which at any time, whether by
merger, purchase or otherwise acquires all or substantially all of the assets or
business of Employer.
7.3 Entire Agreement. This Agreement contains the entire agreement and
understanding by and between Employer and Employee with respect to the
employment of Employee and no representations, promises, agreements or
understandings, written or oral, not contained herein shall be of any force or
effect. No change or modification of this Agreement shall be valid or binding
unless it is in writing and signed by the parties intended to be bound. No
waiver of any provision of this Agreement shall be valid unless it is in writing
and signed by the parties against whom the waiver is sought to be enforced. No
valid waiver of any provision of this Agreement at any time shall be deemed a
waiver of any other provision of this Agreement at such time or any other time.
7.4 Arbitration. In the event any dispute or controversy arising out
of this Agreement cannot be settled by Employer and Employee, such controversy
or dispute, at the election of either Employer or Employee, by written notice to
the other, may be submitted to arbitration in Orlando, Florida and for this
purpose Employer and Employee each hereby expressly consent to such arbitration
and such place. In the event Employer and Employee cannot, within 15 days
following the election to submit the dispute or controversy to arbitration,
mutually agree upon an arbitrator to settle their dispute or controversy, then
Employer and Employee shall each select one arbitrator and the two arbitrators
shall select a third arbitrator. The decision of the majority of said
arbitrators shall be binding upon Employer and Employee for all purposes, and
judgment to enforce any such binding decision may be entered in the Circuit
Court, Orange County, Florida (and for this purpose Employer and Employee hereby
irrevocably consent to the jurisdiction of said court). If either Employer or
Employee fails to select an arbitrator within fifteen (15) days after written
demand from the other party to do so, then the Chief Judge in the United States
Middle District Court of the District of Florida shall select such other
arbitrator. At the election of either Employer or Employee, all arbitrators
shall be selected pursuant to the then existing rules and regulations of the
American Arbitration Association governing commercial transactions. At the
request of either Employer or Employee, arbitration proceedings shall be
conducted in the utmost secrecy. In such case, all documents, testimony and
records shall be available for inspection only for purposes of the arbitration
and only by either party and their respective attorneys and experts who shall
agree, in advance and in writing, to receive all such information in secrecy. In
all other respects, the arbitrators shall conduct all proceedings pursuant to
the Uniform Arbitration Act as adopted by the State of Florida and the then
existing rules and regulations of the American Arbitration Association governing
commercial transactions. The costs of the arbitration, the arbitrators and the
prevailing party=s reasonable attorneys' fees shall be borne by the
non-prevailing party, as determined by the arbitrators.
-6-
<PAGE>
7.5 Prohibition Against Assignment. This Agreement is personal to Employee
and Employee shall not assign or delegate any of his rights or obligations
hereunder without first obtaining the written consent of Employer.
7.6 Governing Law. This Agreement shall be governed in all respects whether
as to validity, construction, capacity, performance or otherwise by the laws of
the State of Florida. The section headings used in this Agreement are included
solely for convenience and shall not affect or be used in connection with the
interpretation of this Agreement.
7.7 Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any one or more of the
provisions of this Agreement shall not affect the validity and enforceability of
the other provisions.
7.8 AFL League. Employee agrees to be bound by the Arena Football League,
Inc. Bylaws, Operations Manual, Rule Book and/or by any other rules and
regulations of the Arena Football League, Inc. as they exist and/or as they may
be amended, modified or otherwise changed from time-to-time.
7.9 Keyman Life Insurance. In the event that Employer desires to obtain key
man life insurance on the life of Employee, Employee agrees to cooperate with
Employer in completing any applications necessary to obtain such insurance and
promptly submit to such physical examination and furnish such information as any
proposed insurance carrier may request.
//
//
// IN WITNESS WHEREOF, the parties have executed this document to be
effective the date first above written.
EMPLOYEE: EMPLOYER:
THE ORLANDO PREDATORS ENTERTAINMENT, INC.,
a Florida corporation
/s/ Brett Bouchy By: /s/ Richard Corley
- -------------------------- -----------------------------------------
BRETT BOUCHY Richard Corley, Authorized Board Member
-7-
<PAGE>
Exhibit "A"
Description of Duties
Employee shall be required to perform the following duties for Employer and any
subsidiary of Employer:
1. Promotion of the relationships of Employer, its franchises and
subsidiaries with their respective employees, players, customers,
suppliers and sponsors and with the various
franchise/league/regulatory organizations and with others in the
business community.
2. Special projects assigned by the CEO.
3. Identification of acquisition, merger and expansion opportunities and
the financing structures to accomplish the same.
