PART 4- INTERNAL COMPANY DOCUMENTS RELATING TO THE MERGER OF TRANS CONTINENTAL AND OPTIONS TALENT (NOW TCTALENT).....
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Other Provisions. Employee shall be entitled to such vacation benefits as is generally received by the officers of the Employer. Employee shall be reimbursed for all reasonable expenses incurred by him with the advance consent of the Employer that are necessary for the
performance of his duties, including, but not limited to, all reasonable entertainment and travel expenses.
Bonus Compensation. Employee shall be entitled to participate under any of Employer's Management Incentive Compensation Plan and or option plans as may be in place, and shall be entitled to receive annual bonuses under such Plan, pursuant to the direction of the Board of Directors.
Sales Performance Bonus. Throughout the term of this Agreement, in addition to the Annual Draw, for each and every month that the Employer and or its subsidiaries sell Two Thousand (2,000) enrollments or more from its Orlando, Florida in-house sales group, the Employer shall pay the Employee a sales performance bonus ("Sales Performance Bonus") of Ten Dollars ($10.00) per enrollment for such month or months. For purposes of calculating the total number of enrollments for any given month, in addition to the number of regular individual enrollments, there shall be added to the number of regular individual enrollments, a number equal to the gross amount of sales of cruises and trips for that month divided by Five Hundred (500). For example, if in a particular month the Employer sells 1,500 regular enrollments, and also sells a cruise for two hundred fifty thousand dollars ($250,000), then the Employee will be due a Sales Performance Bonus of Twenty Thousand Dollars ($20,000) for that month.
Severance and Change of Control Provisions. Upon the occurrence of a Triggering Event (as hereinafter defined), Employee shall be entitled to the immediate receipt of Severance Payments and Benefits (as hereinafter defined) from Employer in accordance with the terms hereinafter set forth:
Triggering Event. The occurrence of any of the following events shall be defined as a "Triggering Event" for purposes hereof:
The involuntary termination of Employee's employment other than for Cause (as hereinafter defined), at any time prior to the expiration of the Service Period;
The voluntary resignation of Employee for any reason whatsoever within ninety (90) days following a Change of Control; or
The voluntary resignation of Employee for "good reason", which for purposes hereof is defined as follows; (i) a material demotion, (ii) a reduction in salary, unless such reduction is part of a company wide adjustment of salaries, (iii) the relocation of the principal office of Employer or the relocation of Employee, outside of the greater Orlando, Florida area, (iv) the assignment to Employee of any duties that materially affect the Employee's ability to perform its obligations in respect with Employee's position as contemplated by Section 3 above (v) any material breach by Employer of any of the terms and conditions of this Agreement, which remains uncured following thirty (30) days after written notice of such alleged Cause by the Employee.
Change of Control. For purposes of this agreement, the term "Change of Control" shall mean the occurrence of any of the following events:
Fifty percent (50%) or more of Employer's voting stock shall be acquired by any person, entity or affiliated group;
Fifty percent (50%) or more of the voting stock of Trans Continental Talent, Inc. f/k/a Options Talent, Inc., a Delaware corporation and wholly-owned subsidiary of Employer ("TCTI"), shall be acquired by any person, entity or affiliated group
A change to the majority control of Employer's board of directors that is part of a transaction involving the transfer of 30% or more of the Employer's voting stock to an unrelated third Party;
Any merger, consolidation or business combination, pursuant to which Employer is not the surviving corporation or fifty percent (50%) or more of Employer's voting stock shall be owned or controlled by any new unrelated person or entity;
A liquidation or dissolution of Employer or TCTI; or
The sale of all or substantially all of Employer's or TCTI's business or assets to an unrelated person or entity.
Severance Payments and Benefits. For purposes of this Agreement, the term "Severance Payments and Benefits" shall mean;
Employee shall receive a lump sum payment equal to: two (2) multiplied by the sum of the Employee's highest Base salary plus the highest bonus in incentive payments received by Employee in respect of any year within the three (3) year period preceding the Triggering Event (or the annualized sum of Employee's Base Salary plus the maximum amount of bonuses and incentives which Employee could have been entitled during the year in which the Triggering Event occurred);
All stock options, warrants and other stock appreciation rights shall immediately vest, and any conditions applicable to contingently issuable options, warrants or other stock appreciation rights shall be waived by Employer;
All benefits applicable to Employee as described in Sections 4(a) and (b) of the Agreement shall continue for a period of one (1) year following the Triggering Event or through the expiration of the Service Period (as if the Triggering Event had not occurred), whichever is later;
Severance Payments and Benefits will not be subject to mitigation in any respect; and
The non-competition and non-solicitation periods described in Section 10 of the Agreement shall be reduced from eighteen (18) months to twelve (12) months.
Termination. Employee's employment hereunder shall terminate as a result of any of the following events;
Employee shall be unable to perform his duties hereunder by reason of illness, accident or other physical or mental disability for a continuous period of at least six months or an aggregate of nine months during any continuous twelve month period ("Disability");
Termination by Employee other than as set forth in Section 5 (a), (b) or (d) herein; or
For Cause. "Cause" shall be defined as (i) any defalcation or misappropriation of funds or property of the Employer or any affiliate by Employee or the commission of any dishonest or deceitful act in the course of his employment with Employer; (ii) Employee's indictment of a misdemeanor considered to be detrimental to the Employers image or that compromises the ability of Employee to perform his duties or felony or of any crime involving moral turpitude; (iii) the engaging by Employee in personal illegal conduct which, in the reasonable judgment of the Employer, places Employee and the Employer or any affiliate, by association with Employee, in disrepute; (iv) refusal of Employee to perform his duties and responsibilities, persistent neglect of duty or chronic absenteeism, which remains uncured following thirty (30) days after written notice of such alleged Cause by the Employer; (v) any material breach
by Employee of the terms and conditions of this Agreement, which remains uncured following thirty (30) days after written notice of such alleged Cause by the Employer; or (vi) any attempt to obtain a personal profit from any transaction in which employee has an interest adverse to the Employer unless such adverse interest and the potential profit is disclosed in writing to the Board of Directors in advance of such transaction and approved by the Board of Directors.
Any termination pursuant to subparagraph (b), (c) or (d) of this Section shall be communicated by a written notice ("Notice of Termination"), such notice to set forth with specificity the grounds for termination if the result of "Cause" (which grounds will not be deemed exclusive of all other grounds that may have been known to Employer, or which Employer may thereafter become aware of). Employee's employment under this Agreement shall be deemed to have terminated as follows: (i) if Employee's employment is terminated pursuant to subparagraph (a) above, on the date of his death; (ii) if Employee's employment is terminated pursuant to subparagraph (c) above, fifteen (15) days after the date on which a Notice of Termination is given. The date on which termination is deemed to have occurred pursuant to this paragraph is hereinafter referred to as the "Date of Termination".
Payments on Termination. In the event that Employee's employment is terminated pursuant to section 6 above, Employer shall pay to Employee his full Base Salary through the Date of Termination together with all benefits and other compensation, if any, due and owing as of that date.
Life Insurance. If requested by Employer, Employee shall submit to such physical examinations and otherwise take such actions and execute and deliver such documents as may be reasonably necessary to enable Employer to obtain life insurance on the life of Employee for the benefit of Employer.
Representations and Warranties. Employee hereby represents and warrants to the Employer that (i) the execution, delivery and performance of the Agreement by Employee do not and shall not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Employee is a party or by which Employee is bound, (ii) Employee is not a party to or bound by any Employment Agreement, Noncompete Agreement or Confidentiality Agreement with any other person or entity which in any way may restrict, impair or limit the performance of his duties hereunder, (iii) upon the execution and delivery of this Agreement by the Employee, this Agreement shall be the valid and binding obligation of Employee, enforceable in accordance with its terms, and (iv) that Employee has all of the requisite skills and knowledge to perform all of the duties imposed or contemplated by this Agreement.
Disclosure and Protection of Confidential Information.
For purposes of the Agreement "Confidential Information" means knowledge, information and material which is proprietary to Employer, of which Employee may obtain knowledge or access through or as a result of his employment by Employer (including information conceived, originated, discovered or developed in whole or in part by Employee). Confidential Information includes, but is not limited to, (i) technical knowledge, information and material such as trade secrets, processes, formulas, data, know-how, improvements, inventions, computer programs, drawings, patents, and experimental and development work techniques, an d(ii) marketing and other information such as supplier lists, customer lists, marketing and business plans, business or technical needs of customers, consultants, licensees or suppliers and their methods of doing business, arrangements with customers, consultants, licenses or suppliers, manuals and personnel records or data. Confidential Information also includes any information described above which Employer obtains from another party and which Employer treats as proprietary or designates as confidential, whether or not owned or developed by
Employer. Notwithstanding the foregoing, any information which is or becomes available to the general public otherwise than by breach of this Section 9 shall not constitute Confidential Information for purposes of the Agreement.
During the term of this Agreement and thereafter, Employee agrees, to hold in confidence all Confidential Information and not to use such information for Employee's own benefit or to reveal, report, publish, disclose or transfer, directly or indirectly, any Confidential Information to any person or entity, or to utilize any Confidential Information for any purpose, except in the course of Employee's work for Employer.
Employee will abide by any and all security rules and regulations, whether formal or informal, that may from time to time be imposed by Employer for the protection of Confidential Information, and will inform Employer of any defects in, or improvements that could be made to, such rules and regulations.
Employee will notify Employer in writing immediately upon receipt of any subpoena, notice to produce, or other compulsory order or process of any court of law or government agency if such document requires or may require disclosure or other transfer of Confidential Information.
Upon termination of employment, Employee will deliver to Employer any and all records and tangible property that contain Confidential Information that are in his possession or under his control.
Covenant Not To Compete.
In consideration for Employer entering into this Agreement, save for the current activities of the other businesses that Employee is at the date of this Agreement involved in as a result of his relationship and positions with various of the Trans Continental and Pearlman Group's of companies, Employee covenants and agrees that during the Service Period and for the eighteen (18) months period thereafter, Employee will, neither individually nor on behalf of any other person or entity, without the express prior written consent of Employer, directly or indirectly, provide to any person or entity any services that are the same or similar to the services Employee provided to Employer in respect to any business activities of such other person or entity which compete with the Internet driven casting, modeling and athletic services business of Employer. Because the Employer's business is international in scope, Employee acknowledges and agrees that the above restrictions shall apply to prevent Employee from providing the prohibited services to any person or entity, wherever located, if the competing business is conducted in any country in which Employer conducts, or, at the time of termination, reasonably expected to conduct, business. Upon the termination of Employee, the business of the Employer is deemed to include all business activities of the Employer (and any parent or subsidiary of Employer) that Employer (and any parent or subsidiary of Employer) engaged in during the one year period prior to the date of termination and all business activities that the Employer had made substantial plans to engage in. Employee will undertake no activities that may lead Employee to compete with or to acquire rival, conflicting or antagonistic interests to those of Employer with respect to the business of Employer, whether alone, as a partner, or as an officer, director, employee, independent contractor, consultant or shareholder holding 15% or more of the outstanding voting stock of any other corporation, or as a trustee, fiduciary or other representative of any other person or entity.
During the Service Period and for a period of eighteen (18) months after termination of employment, Employee will not, directly or indirectly, on its behalf or on behalf of any other person or entity, solicit or induce, or hire, any other employee of Employer or any parent or affiliate to leave his or her employment, or solicit or induce, or contract with, any consultant or independent contractor to sever that person's relationship with Employer.
If any court shall determine that the duration of geographical limit of any covenant contained in this Section 10 is unenforceable, it is the intention of the parties that covenant shall not thereby be terminated but shall be deemed amended to the extent required to render it valid and enforceable, such amendment to apply only in the jurisdiction of the court that has made such adjudication.
Employee acknowledges and agrees that the covenants contained in Sections 10 and 11 hereof are of the essence in this Agreement, that each of such covenants is reasonable and necessary to protect and preserve the interests, properties, and business of Employer, and that irreparable loss and damage will be suffered by Employer should Employee breach any of such covenants. Employee further represents and acknowledges that he shall not be precluded from gainful engagement in a satisfactory fashion by the enforcement of these provisions.
This Section 11 shall not be effective in the event Employee is terminated by Employer without Cause.
Availability of Injunctive Relief. Employee acknowledges and agrees that any breach by him of the provisions of Sections 10 or 11 hereof will cause Employer irreparable injury and damage for which it cannot be adequately compensated in damages. Employee therefore expressly agrees that Employer shall be entitled to seek injunctive and/or other equitable relief, on a temporary of permanent basis to prevent any anticipatory or continuing breach of this Agreement or any part hereof, and is secured as an enforcement. Nothing herein shall be construed as a waiver by Employer of any right it may have or hereafter acquired to monetary damages by reason of any injury to its property, business or reputation or otherwise arising out of any wrongful act or omission of it.
Survival. The covenants, agreements, representations and warranties contained in or made pursuant to this Agreement shall survive Employee's termination of employment, irrespective of any investigation made by or on behalf of any party.
Modification. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof, supersedes all existing agreements between them concerning such subject mater, and may be modified only by a written instrument duly executed by each party.
Notices. Any notice required or permitted hereunder shall be deemed validly given if delivered by had, verified overnight delivery, or by first class, certified mail to the following addresses (or to such other address as the addressee shall notify in writing to the other party):
If to Employer:
Options Talent, Inc.
1701 Park Center Drive
Orlando, FL 32835
Waiver. Any waiver by either party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. All waivers must be in writing.
Binding Effect. Employer's rights and obligations under this Agreement shall not be transferable by assignment or otherwise, and any attempt to do any of the foregoing shall be void. The
provisions of this Agreement shall be binding upon the Employee and his heirs and personal representatives, and shall be binding upon and inure to the benefit of Employer, its successors and assigns.
Headings. The headings in this Agreement are solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
Governing Law: Venue. This Agreement shall be governed and construed in accordance with the laws of the State of Florida, without giving effect to rules governing conflicts of law, with proper venue with respect to all disputes related to this Agreement being Orange County, Florida.
Invalidity. The invalidity or unenforceability of any term of this Agreement shall not invalidate, make unenforceable or otherwise affect any other term of this Agreement, which shall remain in full force and effect.
Attorneys' Fees. In the event any dispute or litigation arises hereunder between any of the parties hereto, the prevailing party shall be entitled to all reasonable costs and expenses incurred by it in connection therewith (including, without limitation, all reasonable attorneys' fees and costs incurred before and at any trial or other proceeding and at all tribunal levels), as well as all other relief granted in any suit or other proceeding.
Arbitration. Save any equitable relief sought by the Employer, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, or otherwise related in any manner to the employment of Employee by Employer, including any dispute or claim that arises under or by virtue of any state or federal law, will be settled by binding arbitration conducted before a single arbitrator selected by the Employer. The site of any such arbitration will be Orlando, Florida, or as otherwise mutually agreed upon by the parties. The arbitration will be conducted in accordance with the rules established by the American Arbitration Association then in force, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party will bear its own costs and expenses, including fees and expenses of counsel, associated with the arbitration. The arbitrator shall not be entitled to award punitive damages to any party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first hereinabove written:
A Nevada corporation
LOCK-UP AND ESCROW AGREEMENT
THIS LOCK-UP AND ESCROW AGREEMENT, dated as of September 5, 2002 (this "Escrow Agreement"), by and among the persons and entities listed under the captions "Series C Holders" and "Stockholders" on the signature pages hereto and Mark R. Tolner and Cynthia D. Klein (the foregoing parties, collectively, the "Shareholder Parties" and each a "Shareholder Party"), Options Talent Group, a Nevada corporation ("OTG"), and Jeffrey Kranzdorf, as Escrow Agent (the "Escrow Agent"). For purposes of this Escrow Agreement, Mark R. Tolner and Cynthia D. Klein shall be considered together as one Shareholder Party.
WHEREAS, OTG, the Shareholder Parties and certain other parties have entered into that certain Agreement and Plan of Merger, dated as of September 5, 2002 (the "Merger Agreement");
WHEREAS, immediately following the Closing (as defined in the Merger Agreement) of the Merger Agreement, the Shareholder Parties shall beneficially own the number of shares of common stock, par value $0.001 per share, of OTG (the "Common Stock") and shares of Series C Convertible Preferred Stock, par value $0.001 per share, of OTG (including the Common Stock issuable upon conversion thereof, the "Series C Preferred") set forth opposite such Shareholder Party's name on Schedule A attached hereto, and thereafter Louis J. Pearlman and the president(together the "Stockholders" and each a "Stockholder") shall receive additional shares of Common Stock upon the Additional Share Distribution Date (as defined in the Merger Agreement) and the Shareholder Parties may from time to time acquire additional securities of OTG (such shares of Common Stock, Series C Preferred and other securities of OTG beneficially owned or to be beneficially owned by the Stockholder Parties, the "Shares"); and
WHEREAS, the Shareholders Parties desire to provide for restrictions on the transferability of their Shares;
WHEREAS, the Jefferson Trust, Morgan Trust, Paramount Trust, Mohamed Hadid and Richard J. Walk (collectively the "Series C Holders" and each a "Series C Holder") and Stockholders desire that the Series C Holders have the ability to maintain their pro rata ownership in OTG as compared to the Stockholders' ownership in OTG; and
WHEREAS, OTG and the Shareholder Parties desire to secure the services of the Escrow Agent, and the Escrow Agent is willing to provide such services, pursuant to the terms and conditions of this Escrow Agreement.
NOW, THEREFORE, in consideration of the recitals and of the respective agreements and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows:
APPOINTMENT OF ESCROW AGENT;
RESIGNATION AND SUCCESSOR
1.1 Appointment of Escrow Agent. The Escrow Agent is hereby appointed, and accepts its appointment and designation as, Escrow Agent pursuant to the terms and conditions of this Escrow Agreement.
1.2 Resignation of Escrow Agent; Appointment of Successor. The Escrow Agent acting at any time hereunder may resign at any time by giving at least 30 days' prior written notice of resignation to OTG and the Shareholder Parties, such resignation to be effective on the date specified in such notice. Upon receipt of such notice, OTG and the Shareholder Parties shall, unless they otherwise agree, appoint a bank or trust company as successor Escrow Agent, by a written instrument delivered to such Escrow Agent, OTG and the Shareholder Parties, whereupon such successor Escrow Agent shall succeed to all the rights and obligations of the retiring Escrow Agent as of the effective date of resignation as if originally named herein. Upon such assignment of this Escrow Agreement, the retiring
Escrow Agent shall duly transfer and deliver the Escrow Deposit (as defined below) at the time held by the retiring Escrow Agent, provided that, if no successor Escrow Agent shall, have been appointed on the effective date of resignation of the resigning Escrow Agent hereunder, the resigning Escrow Agent may deliver the Escrow Deposit into a court of competent jurisdiction.
1.3 Authorized Representative. OTG and the Shareholder Parties shall each execute and deliver to the Escrow Agent a certificate of incumbency substantially in the form of Exhibit A hereto for the purpose of establishing the identity of the representative of OTG and each such Shareholder Party entitled to issue instructions or directions to the Escrow Agent on behalf of each such party. In the event of any change in the identity of such representatives, a new certificate of incumbency shall be executed and delivered to the Escrow Agent by the appropriate party. Until such time as the Escrow Agent shall receive a new incumbency certificate, the Escrow Agent shall be fully protected in relying without inquiry on any then current incumbency certificate on file with the Escrow Agent.
2.1 Delivery of the Escrowed Shares; etc.
a. Within seven (7) days following the Closing Date (as defined in the Merger Agreement), (i) OTG shall deliver or cause to be delivered to the Escrow Agent stock certificates representing the Common Stock to be issued to the Stockholders pursuant to the Merger Agreement on the Closing Date in the aggregate amount of 116,280,000 and (ii) each Series C Holder shall deliver or cause to be delivered to the Escrow Agent the stock certificates representing the shares of Series C Preferred and Common Stock beneficially owned by each of them, respectively, as set forth on Schedule A, and on or prior to the 5th business day following the Additional Share Distribution Date (as defined in the Merger Agreement), OTG shall deliver or cause to be delivered to the Escrow Agent stock certificates representing the shares of Common Stock to be issued to the Stockholders pursuant to Section 2.7.3(ii) of the Merger Agreement (collectively, the "Escrowed Shares" and each an "Escrowed Share"). Schedule A shall be amended upon any changes to the number of Escrowed Shares pursuant to this Escrow Agreement.
b. The Escrow Agent shall hold the Escrow Deposit in its office safe located at 18410 St. Moritz Drive, Tarzana, California 91356, or, in the event of cash proceeds, in a segregated bank account for client accounts (the "Escrow Accounts") for the benefit of the Shareholder Parties.
2.2 Right to Vote the Escrowed Shares. Except as otherwise provided in the Merger Agreement, each of the Shareholder Parties shall have the right to direct the Escrow Agent in a writing signed by such Shareholder Party to exercise the voting rights pertaining to such portion of the Escrowed Shares that remain in the Escrow Accounts and are registered in the name of such Shareholder Party. The Escrow Agent shall comply with any such directions.
2.3 Release of Escrowed Shares. The Escrowed Shares shall be distributed as follows:
a. upon the written instruction of the Shareholder Parties to the Escrow Agent owning at least 85% of the Escrowed Shares, the Escrow Agent shall distribute the respective portions of the Escrowed Shares to the respective Shareholder Parties, or deliver such Escrowed Shares to a successor Escrow Agent as instructed in such written notice; or
b. with respect to any or all of the Escrowed Shares of a specific Shareholder Party, upon the written instruction of such Shareholder Party (a "Rule 144 Selling Shareholder Party") that any such shares have been sold pursuant to Rule 144 (as defined in Section 3.1 below) (such shares as sold pursuant to Rule 144, the "Rule 144 Shares") accompanied by the written certification of OTG that it has received an opinion of legal counsel as provided in Section 3.1, the Escrow Agent
shall deliver such Rule 144 Shares so sold as the Rule 144 Selling Shareholder Party shall direct in its written instruction; provided, however, that the Shareholder Parties agree hereby that:
(i) the proceeds of any such sale by a Rule 144 Selling Shareholder Party pursuant to Rule 144 ("Rule 144 Proceeds") shall be shared among the Shareholder Parties pro rata according to their respective amounts of Escrowed Shares, where such pro rata amounts shall be determined as if all shares of Series C Preferred shall have been converted to Common Stock and the Rule 144 Shares had not been sold;
(ii) the Rule 144 Proceeds shall be distributed by the Rule 144 Selling Shareholder Party to the Shareholder Parties within 5 business days of the receipt of such proceeds by the Rule 144 Selling Shareholder Party; and
(iii) within 5 business days following the receipt by the Shareholder Parties (excluding the Rule 144 Selling Shareholder Party, the "Other Shareholder Parties") of their portion of the Rule 144 Proceeds, the Other Shareholder Parties each shall, or shall cause, the Transfer to the Rule 144 Selling Shareholder Party of that amount of such Other Shareholder Party's Escrowed Shares equal to their pro rata portion of the Rule 144 Shares, where such pro rata portion shall be as determined in Section 2.3(b)(i) above.
RESTRICTIONS ON TRANSFER
3.1 Except as otherwise provided herein, for so long as an Escrowed Share shall be deposited with the Escrow Agent, the Shareholder Party owning (directly or indirectly) such Escrowed Share shall not Transfer such Escrowed Share; and any such Transfer so attempted shall be void and of no effect and OTG shall not recognize the transferee thereof as a stockholder of OTG with respect to such Escrowed Share. The term "Transfer" means any sale, assignment, bequest, donation, pledge, encumbrance, or other transfer. Notwithstanding the foregoing, any Escrowed Share that may be sold in compliance with Rule 144 of the Securities Act of 1933, as amended ("Rule 144"), may be so sold pursuant to and in compliance with Rule 144, provided, OTG receives a legal opinion to such effect reasonably acceptable to OTG.
4.1 Fees. The Escrow Agent shall be entitled to compensation for its services hereunder as per Exhibit B attached hereto, which is made a part hereof. The fees referred to in the foregoing sentence shall be paid equally by the Shareholder Parties.
4.2 Responsibilities of Escrow Agent. The Escrow Agent's acceptance of its duties under this Escrow Agreement is subject to the following terms and conditions, which the parties hereto agree shall govern and control with respect to its rights, duties, liabilities and immunities:
Except as to its due execution and delivery of this Escrow Agreement, it makes no representation and has no responsibility as to the validity of this Escrow Agreement or of any other instrument referred to herein, or as to the correctness of any statement contained herein, and it shall not be required to inquire as to the performance of any obligation under the Agreement;
The Escrow Agent shall be protected in acting upon any written notice, request, waiver, consent, receipt or other paper or document, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth of any information therein contained, which it in good faith believes to be genuine and what it purports to be;
The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taker or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection therewith, except its own gross negligence or willful misconduct;
The Escrow Agent may consult with competent and responsible legal counsel selected by it, and it shall not be liable for any action taken or omitted by it in good faith in accordance with the advice of such counsel;
The Shareholder Parties shall reimburse the Escrow Agent for all expenses incurred by it in connection with its duties hereunder (other than taxes imposed in respect of the receipt of fees by the Escrow Agent pursuant to Section 4.1). The Shareholder Parties agree to jointly and severally indemnify and hold the Escrow Agent and its directors, employees, officers, agents, successors and assigns (collectively, the "Indemnified Parties') harmless from and against any and all losses, claims, damages, liabilities and expenses (collectively, "Damages"), including without limitation, reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent or incurred by it in connection with its acceptance of this appointment as the Escrow Agent hereunder or the performance of its duties hereunder. Such indemnity includes, without limitation, Damages incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Escrow Agreement or involving the subject matter hereof. The indemnification provisions contained in this paragraph are in addition to any other rights any of the Indemnified Parties may have by law or otherwise and shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent. Notwithstanding any provision to the contrary in this Escrow Agreement, the Shareholder Parties shall have no liability to the Indemnified Parties with respect to any Damages that result, directly or indirectly, from the gross negligence or willful misconduct of the Escrow Agent;
The Escrow Agent shall have no duties or responsibilities except those expressly set forth herein, and it shall not be bound by any modification of this Escrow Agreement unless in writing and signed by all parties hereto or their respective successors in interest;
The Escrow. Agent shall have no responsibility in respect of the validity or sufficiency of this Escrow Agreement or of the terms hereof. The recitals of facts in this Escrow Agreement shall be taken as the statements of OTG and the Shareholder Parties and the Escrow Agent assumes no responsibility for the correctness of the same. The Escrow Agent shall be under no obligation or duty to perform any act which would involve it in an expense or liability or to institute or defend any suit in respect of this Escrow Agreement or to advance any of its own monies unless properly indemnified;
The Escrow Agent shall be protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other paper or document reasonably believed by it to be genuine and to have been signed and presented by the proper party or parties. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action under this Escrow Agreement, such matter may be deemed conclusively proved and established by a certificate signed by OTG and the Shareholder Parties, and such certificate shall be full warranty for any action taken or suffered in good faith under the provisions of this Escrow Agreement; and
The Escrow Agent does not have any interest in the Escrowed Shares but is serving as escrow agent only and having only possession thereof. This Section 4.2(i) shall survive notwithstanding any termination of this Escrow Agreement or the resignation of the Escrow Agent.
CERTAIN ANTI-DILUTION RIGHTS
In the event any or all of the Stockholders and/or any of their respective Affiliates (as defined in the Merger Agreement) purchase or otherwise acquire from OTG shares of any security of OTG (such securities the "OTG Securities") (all such Stockholders and such Affiliates, the "Purchasing Stockholders") after the date hereof (excluding the shares to be issued to the Stockholders on the Additional Share Distribution Date), the Purchasing Stockholders shall promptly after consummation of such purchase or acquisition transfer their pro rata portion of such OTG Securities to the Series C Holders such that the Series C Holders and the Purchasing Stockholders maintain their proportional ownership of the securities of OTG that each such party had immediately prior to such purchase. In the event that the transfer from the Purchasing Stockholders to the Series C Holders set forth in the preceding sentence would not allow OTG to properly rely on an exemption from the registration requirements of the federal securities laws and applicable state blue sky laws for such issuance and/or sale by OTG contemplated in the preceding sentence, the Purchasing Stockholders and Series C Holders shall cooperate in good faith to obtain the same result by other means that would allow OTG to so issue and/or sell the OTG Securities under exemptions from such registration requirements.
6.1 Amendment and Termination. This Escrow Agreement may be amended or terminated by the written agreement of the parties hereto, or shall terminate automatically at such time as all Escrowed Shares and funds from the Escrow Account have been paid or distributed in accordance with the terms of this Escrow Agreement and the Escrow Agent has received all fees as described in Section 4.1 hereto. Notwithstanding the foregoing, all provisions concerning the indemnification of the Escrow Agent shall survive any termination of this Escrow Agreement.
6.2 Notices. All notices, requests, demands, letters, waivers and other communications required or permitted to be given under this Escrow Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered personally, (b) sent by next-day or overnight mail or delivery (c) sent by certified or registered mail, postage pre-paid, return receipt requested, or (d) sent by fax, to the address of the parties hereto as set forth on the signature pages hereof or to such other person or address as any party shall specify by notice in writing to the party entitled to notice. All such notices, requests, demands, letters, waivers and other communications shall be deemed to have been received (w) if by personal delivery on the day after such delivery, (x) if by certified or registered mail, on the fifth business day after the mailing thereof, (y) if by next-day or overnight mail or delivery, on the day delivered or (z) if by fax, on the next day following the day on which such fax was sent, provided that a copy is also sent by certified or registered mail.
6.3 Governing Law. This Escrow Agreement shall be construed, performed and enforced in accordance with the laws of the State of Florida applicable to agreements made and to be performed entirely in Florida.
6.4 Miscellaneous. This Escrow Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. The headings in this Escrow Agreement are for convenience of reference only and shall not define or limit the provisions hereof. This Escrow Agreement may be executed in several counterparts, each of which is an original but all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have each executed and delivered this Lock-up and Escrow Agreement as of the day and year first above written,
With a copy to:
OPTIONS TALENT GROUP
With a copy to:
[Signature Page to Lock-up and Escrow Agreement]
Mark R. Tolner
With a copy to:
With a copy to:
[Signature Page to Lock-up and Escrow Agreement]
CERTIFICATE OF INCUMBENCY
The undersigned, , of , hereby certifies that the following named agents are duly appointed, qualified and acting in the capacity set forth opposite his/her name, and the following signature is the true and genuine signature of said officer.
Name Title Signature
IN WITNESS WHEREOF, has caused this Certificate of Incumbency to be executed by its agents duly authorized this day of , 2002.
[Name of Party]
Ladies and Gentlemen:
Reference is made to those certain consulting agreements and employment agreement, as amended, set forth on Attachment A hereto (collectively, the "Agreements"), as well as that certain Agreement and Plan of Merger among the addressees hereof (excluding), Options Talent Group, a Nevada corporation (the "Company"), Trans Continental Classics, Inc., a Nevada corporation and the other parties named therein, dated as of September 5, 2002 (the "Merger Agreement"). The Agreements provide that the Company pay the addressees hereof certain amounts defined in the Agreements, respectively, as the "Sales Performance Bonus."
Pursuant to the terms of the Merger Agreement, the parties hereto have determined that it is in the best interests of the Company, and, notwithstanding anything in the Agreements to the contrary, hereby agree as follows:
Upon the written consent of at least 4 of the 6 addressees hereof, all Sales Performance Bonus under the Agreements payable with respect to a specific month may be permanently waived (not deferred); provided, however, that such consent shall contain the good faith determination by such addressees that the financial condition of the Company would be materially adversely impacted by the payment of such monthly Sales Performance Bonus; and provided further, however, that such written consent shall have been delivered to the Company and any addressee hereof not a party to such consent within 10 calendar days after the end of the month in question.
Any 5 of the 6 addressees hereof may bind all of the addressees with respect to any buy-out by the Company of all or a portion of any expected future Sales Performance Bonus under the Agreements; provided that in the event that less than all of such future Sales Performance Bonus are to be bought-out that all addressees participate on a pro rata basis.
This Letter Agreement shall be deemed to be an amendment to each of the Agreements. This Letter Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any choice of law or conflict of law rules or provisions. This Letter Agreement may only be amended by a written instrument signed by all parties hereto. The Letter Agreement may be executed in counterparts and by facsimile.
If the foregoing accurately reflects our agreement with respect to the matters addressed above, please so indicate by signing below, dating and returning a copy of this letter to Anthony Ruben at Options Talent Group, 1701 Park Center Drive, Orlando, Florida, 32835, at your earliest convenience.
Very truly yours,
OPTION TALENT GROUP
Chief Operating Officer and Acting Chief Financial
Accepted and agreed to this 5th day of September, 2002.
TRADEMARK SUB-LICENSE AGREEMENT
AGREEMENT made this 5th day of, September 2002 between TRANS CONTINENTAL CLASSICS, INC., a Nevada corporation having its principal place of business at 7380 Sand Lake Road, Suite #350, Orlando, Florida 32819 (Sub-Licensor) and OPTIONS TALENT GROUP, a Nevada corporation having its principal place of business at 9000 Sunset Boulevard, Penthouse, Los Angeles, CA 90069 (Sub-Licensee).
WHEREAS, Sub-Licensor is, for purposes hereof, the exclusive licensee and authorized representative of Trans Continental Records, Inc. ("TCR"), the owner of the TRANS CONTINENTAL name and mark for entertainment, media and related products and services and the owner of United States Trademark Application (Serial No. 75564403) for goods and services in class 009 (pre-recorded compact discs audio cassettes, and video cassettes featuring music) and class 041 (music recording and production; music publishing and transcription services for others). TRC and/or Sub-Licensor will also apply for at least a United States Trademark for the TRANS CONTINENTAL name and mark for goods and services in class 035 (Modeling Agencies; Modeling for advertisements or sales promotion) (hereinafter "the Modeling Trademark Application"). Collectively the TRANS CONTINENTAL name and mark and all current and future trademark applications and resulting trademarks stemming there from will hereinafter be referred to as the "TRANS CONTINENTAL trademarks" and Sub-Licensor has been expressly authorized by TCR to grant a sub-license to the TRANS CONTINENTAL trademarks and to enter into this Sub-License Agreement (sometimes referred to herein as "the or this Agreement");
WHEREAS, Sub-Licensee desires to acquire and Sub-Licensor is willing to grant to Sub-Licensee a sub-license to use the TRANS CONTINENTAL trademarks on and in connection with Sub-Licensee's goods, related services and facilities pertaining to Sub-Licensee's authorized, franchised, licensed and/or owned and operated business(es) or establishments specializing in recruiting and promoting individual photography, musicians, vocalists and fashion models primarily through the Internet (the "Licensed Goods & Services") on the following terms and conditions;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows:
1. Grant of Rights
Sub-Licensor hereby grants to Sub-Licensee, subject to the following terms and conditions, a royalty free, non-exclusive sub-license to use the TRANS CONTINENTAL trademarks within the United States of America its territories and possessions and on the Internet and/or the so-called "worldwide web" wherever located) on and in connection with the Licensed Goods & Services except that such sub-license shall be an exclusive sub-license with respect to use of the TRANS CONTINENTAL trademarks for all modeling and modeling related activities
This Agreement shall commence on the date of its execution by the parties hereto and shall continue until terminated pursuant to the provisions herein.
3. Quality Control
Sub-Licensee agrees that all Licensed Goods & Services sold under the TRANS CONTINENTAL trademarks shall be of a quality equal to or higher than the products, goods, services and facilities it presently sells under any other trademark. To ensure that Sub-Licensee maintains such quality
standards, Sub-Licensee shall, prior to the effective date of this Agreement and on or about January 1, April 1, June 30 and October 1 of each calendar year during which this Agreement is in effect, send a sample to Sub-Licensor of each Licensed Good and/or Service (including promotional, advertising, marketing and publicity materials to which Sub-Licensee proposes to apply the Mark) then being sold or then proposed to be sold under the TRANS CONTINENTAL trademarks, along with all packaging and any advertising or promotional materials therefore. Sub-Licensor shall have the right at any time and from time to time to inspect, at Sub-Licensee's premises, any products, goods, services or facilities on or in connection with which Sub-Licensee uses (or then proposes to use) the TRANS CONTINENTAL trademarks.
4. Designation of Trademark
Other than the Sub-Licensee corporate name and the TRANS CONTINENTAL trademarks, no other trademark or trade name of any kind shall appear on and in connection with the Licensed Goods & Services or any packaging therefore, manufactured, offered for sale, sold, advertised or distributed pursuant to this Agreement. Sub-Licensee agrees to use such trademark notice or legends, as Sub-Licensor shall request on all Licensed Goods & Services and packaging provided such requests are commercially reasonable.
5. Ownership of the Trademarks; Authority to Enter Into This Agreement
Sub-Licensee acknowledges and Sub-Licensor represents that Sub-Licensor is exclusively authorized by TCR, the owner of all right, title and interest in and to the TRANS CONTINENTAL trademarks, including without limitation Trademark Application Serial No. 75564403, to enter into this specific Agreement. Sub-Licensee acknowledges and Sub-Licensor represents that TRC and/or Sub-Licensor will also apply for the Modeling Trademark Application and will execute all necessary documents to prefect the license rights granted under this Agreement to said Modeling Trademark Application and/or any resultant registered trademarks. Sub-Licensee further acknowledges that its use of the TRANS CONTINENTAL trademarks creates in Sub-Licensee no rights in said mark and that all use of the TRANS CONTINENTAL trademarks by Sub-Licensee inures to the benefit of Sub-Licensor. Sub-Licensee shall not challenge or, directly or indirectly, assert any right, title or interest in or to the TRANS CONTINENTAL trademarks or any application for registration or registration thereof or any mark, which is similar to or potentially confusing with the TRANS CONTINENTAL trademarks. At the request of Sub-Licensor, Sub-Licensee shall execute and deliver all documents which Sub-Licensor deems necessary or appropriate to maintain any registration Sub-Licensor has or may obtain of the TRANS CONTINENTAL trademarks, or to facilitate the making or granting of an application for registration of said mark including any assistance in conjunction with the Modeling Trademark Application. Sub-Licensor is not now and during the term of this Agreement shall not be a party to or bound by any contract or agreement of any kind which will interfere in any manner with the complete execution of the terms of the present Agreement.
Sub-Licensee agrees to inform Sub-Licensor promptly in writing of (a) any infringement or instance of unfair competition of which Sub-Licensee may become aware involving the TRANS CONTINENTAL trademarks, (b) any challenge to Sub-Licensee's use of the TRANS CONTINENTAL trademarks, and (c) any claim of which Sub-Licensee may become aware by any person to any right in the TRANS CONTINENTAL trademarks, in which case Sub-Licensor shall have the sole discretion to take such action as it deems appropriate provided such actions are commercially reasonable and are intended to retain the license rights granted under this Agreement. Sub-Licensee shall assist and cooperate with Sub-Licensor at Sub-Licensor's sole expense by, among other things, furnishing such
documentary evidence and oral testimony relating to Sub-Licensee's use of the TRANS CONTINENTAL trademarks as Sub-Licensor may request.
7. Compliance with Laws
Sub-Licensee shall comply with all governmental laws, regulations, decrees and their equivalent pertaining to the manufacturing, offering for sale, sale, advertising and distribution of the Licensed Goods pursuant to this Agreement.
Sub-Licensee agrees to indemnify Sub-Licensor and hold it harmless against all actions, claims, costs, damages or expenses which may be brought against or made against or incurred by Sub-Licensor as a result of or in any way connected with any acts, whether of omission or commission, that may be committed by Sub-Licensee or any of its servants, agents or employees in connection with Sub-Licensee's performance under this Agreement or in connection with Sub- Licensee's manufacturing, sale, offering for sale, advertising, marketing, publicizing or distribution of the Licensed Goods & Services under the TRANS CONTINENTAL trademarks.
Sub-Licensor agree to indemnify Sub-Licensee and hold it harmless against all actions, claims, costs, damages or expenses which may be brought against or made against or incurred by Sub-Licensee as a result of or in any way connected with any acts, whether of omission or commission, that may be committed by Sub-Licensor or any of its servants, agents or employees in connection with Sub-Licensor's performance under this Agreement or in connection with any infringement actions or claims based upon the TRANS CONTINENTAL trademarks.
This Agreement and all rights granted herein shall terminate upon written notice from Sub-Licensor to Sub-Licensee in the event that:
a. Sub-Licensee breaches any of the provisions of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from Sub-Licensor;
b. Sub-Licensee discontinues the manufacture and sale of goods, the rendition of services and/or the provision of facilities bearing the TRANS CONTINENTAL trademarks for any period of three (3) consecutive months after the commencement of the term of this Agreement;
c. Sub-Licensee becomes insolvent after execution of this Agreement and remains insolvent for a period of nine (9) months.
Upon termination of this Agreement pursuant to this paragraph, all rights and privileges of Sub-Licensee hereunder shall terminate, and Sub-Licensee shall not thereafter make any use whatsoever of the TRANS CONTINENTAL trademarks or any colorable imitation, variation or permutation thereof.
10. Assignments and Sub-License
Sub-Licensee shall not assign, transfer or sub-license the sub-license that is the subject of this Agreement without the prior written consent of Sub-Licensor except that such prior written consent is not required in instances of Sub-Licensee name changes or corporate restructuring of Sub-Licensee. Sub-Licensor may assign this Agreement or any rights under the Agreement without the consent of Sub-Licensee provided such assignee agrees to be bound by the terms and conditions of this Agreement..
11. Modification; Waiver
11.1. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both parties.
11.2. Any failure or waiver by Sub-Licensor or Sub-Licensee at any time to insist upon the strict performance of any term, condition or covenant contained in this Agreement shall not be deemed a waiver of its rights at any time thereafter to insist upon the strict performance thereof, or of any other term, condition or other covenant contained herein.
12. Governing Law; Interpretation; Entire Agreement
12.1 This Agreement shall be interpreted and construed in accordance with the laws of the State of Florida applicable to agreements executed and to be wholly performed therein. Any suit instituted as a result of any party's alleged breach (es) hereof or to interpret this Agreement or the parties' rights or performances hereunder shall be instituted in the state courts situated in Orange County, Florida. Neither Sub-Licensor nor Sub-Licensee shall object to the jurisdiction and proper venue of such courts based on a lack of en personem jurisdiction or forum non-conveniens.
12.2 The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
12.3 Sub-Licensor and Sub-Licensee hereby agree that this Agreement constitutes the entire agreement between the parties hereto and there are no other agreements, oral promises, conditions, representations, understandings, interpretations, or terms of any kind or conditions or inducements as to the execution hereof, or in effect between the parties hereto, and this Agreement replaces any prior or contemporaneous agreements between any or all of the parties hereto in respect hereof. No modification, amendment, waiver, termination or discharge of this agreement shall be binding upon the parties unless confirmed by a written instrument signed by authorized officers of both Sub-Licensee and Sub-Licensor.
Any notice, communication, approval or disapproval and request therefore required or permitted to be sent under this Agreement shall be duly made and shall be valid and effective only if in writing and sent by registered or certified mail, return receipt requested, postage prepaid:
a. if to Sub-Licensor: Trans Continental Classics, Inc.
7380 Sand Lake Road, Suite #350
Orlando, Florida 32819
Attention: Business & Legal Affairs
if to Sub-Licensee:
Options Talent Group
9000 Sunset Boulevard, Penthouse
Los Angeles, California 90069
Attention: Legal Department
14. Binding Effect
This Agreement is binding upon the parties, their successors and permitted assigns.
This Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original and all of which together shall constitute one and the same Agreement. In the event that no one counterpart shall be executed by each of the Parties hereto, this Agreement shall nevertheless be properly executed if each of such Parties shall have executed at least one counterpart, no one counterpart need bear the execution of each of them.
16. Advice of Independent Counsel
Sub-Licensor and Sub-Licensee each understands and is fully advised the nature and import of this Agreement and the terms herein contained. Each of the parties has had the opportunity to be advised by independent legal counsel with regard to its entering into this Agreement and has either obtained such advice, or understanding the right to seek it, has knowingly and without compulsion undertaken to forego such advice.
17. Third Party Beneficiaries
Notwithstanding the fact that this Agreement is made and entered into expressly for the benefit of Greg McDonald and Louis J. Pearlman individually, Sub-Licensee expressly and irrevocably acknowledges, understands and hereby agrees that nothing herein contained shall render or be construed so as to imply that Greg McDonald and/or Louis J. Pearlman are parties hereto, but rather are merely third parties beneficiaries hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
LICENSOR: Trans Continental Classics, Inc.
U.S.A. Click here to read other Rip Off Reports on Options Talent Emodel.com Click here to read other Rip Off Reports on Trans Continental Talent AKA Options Talent