EXPLOSION PROMOTIONS, INC.
Promotional Agreement
THIS PROMOTIONAL AGREEMENT (the "Agreement") is made and entered into
as of July 26, 1999 by and between EXPLOSION PROMOTIONS, INC. (the "Promoter"),
ERIC HARDING, residing at 95 Nutmeg Lane, Apt. 116, East Hartford, CT 06118 (the
"Fighter") and LORENZO DE CLEMENTE ("De Clemente").
WHEREAS, the Promoter is in the business of, among other things,
promoting first class boxing matches and desires to enter into an agreement with
the Fighter to be his exclusive promoter for his future bouts; and
WHEREAS, the Fighter is a professional boxer and desires to enter into
an agreement with the Promoter for it to be his exclusive promoter for his
future bouts.
NOW THEREFORE, in consideration of the mutual premises and agreements
hereinafter set forth, and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto mutually
agree as follows:
1. Exclusive Promotion.
(a) The Fighter hereby grants to the Promoter the sole and
exclusive right to secure and arrange all professional boxing
bouts ("Bouts") requiring the Fighter's services as a
professional boxer and to secure, arrange and promote all such
Bouts, all upon and subject to the terms and conditions
hereinafter set forth. Such exclusive promotion rights shall
include, without limitation of the foregoing grant, all rights
required to stage and sell tickets of admission to all Bouts,
as well as the ancillary rights thereto, including without
limitation all exclusive worldwide rights to broadcast,
telecast and film such Bouts for exhibition in all media in
perpetuity and all merchandising rights related to the
fighters and to the Fight.
(b) In consideration of the obligations of the Promoter to secure,
arrange, establish and promote Bouts requiring the Fighter's
services, and to pay the Fighter's purses, as provided herein,
the Fighter agrees that during the term hereof, the Fighter
shall not participate in any Bouts other than Bouts promoted
or co-promoted by the Promoter and shall not render his
services as a professional fighter to any firm or entity other
than the Promoter, except as specifically set forth herein.
2. Term. This Agreement shall be for a term of THIRTY-SIX (36)
MONTHS, from the date hereof. [I ]n the event the Fighter is recognized as world
champion by the WBC, WBA, the WBO, the WBU, the IBC or the IBF at any time
during the term hereof, this Agreement shall be automatically extended to cover
the entire period the Fighter is world champion and a period of TWENTY-FOUR (24)
MONTHS following the date on which the Fighter thereafter ceases for any reason,
to be so recognized as world champion.
3. Signing Bonus. Upon signing this Agreement, the Fighter shall
receive a signing bonus of TEN THOUSAND ($10,000) DOLLARS, payable by De
Clemente's check. Not later than completion of Fighter's third Bout, Promoter
shall reimburse De Clemente the full amount of this signing bonus, provided this
contract is still in full force and effect.
4. Promotional Items. Promoter agrees to pay training camp
expenses.
(a) No advertising or informational materials shall appear on any
item of clothing worn by Fighter or his trainers, seconds or
assistants, without the prior written consent of Promoter,
which consent shall not be unreasonably withheld.
(b) Promotional fees paid for wearing such items shall be divided
equally between Fighter and Promoter.
5. Bouts. The Promoter shall promote not more than SIX (6) Bouts
requiring the Fighter's services during each TWELVE (12) MONTHS of the term
hereof. Such Bouts shall be on dates and at sites to be designated by Promoter
and against opponents designated by the Promoter. For purposes of this
Agreement, and in satisfaction of its obligation under this paragraph, the
Promoter shall be deemed to have complied with its obligations with respect to
any Bout if it shall have made a bona fide offer to the Fighter to promote a
Bout in accordance with the provisions hereof irrespective of whether such Bout
actually takes place for any reason other than the Promoter's nonperformance. If
such Bout is on the undercard to a main event, and that main event is canceled
or postponed for any reason whatsoever, the failure of such Bout to take place
shall not be deemed nonperformance by the Promoter.
6. Purses. The Fighter shall receive from the Promoter the sum of
FIVE THOUSAND ($5,000) DOLLARS for each Bout, regardless of whether the Fighter
wins, loses or draws, and regardless of whether the Fighter knocks out his
opponent or is knocked out by his opponent. If any such Bout is televised, the
purse shall be FIFTEEN THOUSAND ($15,000) DOLLARS.
7. Expenses. If a Bout is scheduled to be held more than ONE
HUNDRED (100) miles from Fighter's home location, the Promoter will provide FOUR
(4) round-trip coach-class airline tickets to the Fighter for use of himself and
his trainer, corner man, second or other person with similar duties.
8. Power of Attorney. The Fighter hereby designates and appoints
the Manager whose name appears on the signature page of this Agreement as his
attorney-in-fact with respect to all approvals, notices, consents and decisions
which the Fighter is to make pursuant to this Agreement. Such appointment shall
be irrevocable during the term of this Agreement and any extension thereof: The
Promoter shall be entitled to rely upon, and the Fighter shall be bound by all
approvals, consents, acceptances and agreements made by the Manager pursuant to
this Agreement.
9. Purse Offer. If (a), a purse offer is held for the carrying
out of a mandatory bout involving the Fighter, pursuant to the Rules and
Regulations of the WBC, WBA, WBU, IBF, IBC or WBO, and if (b) the Promoter is
not selected as the promoter of the purse offer mandatory bout, then the Fighter
shall be permitted to engage in the mandatory purse offer bout, but shall be
obligated to pay the Promoter THIRTY (30%) PERCENT of all compensation the
Fighter receives for such bout, and this Agreement shall continue in full force
and effect.
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10. Equitable Remedies. The Fighter acknowledges that his services
as a professional boxer are special, unique, extraordinary, irreplaceable and of
peculiar value, and that in the event of the Fighter's breach or threatened
breach of this Agreement, the Promoter would suffer irreparable damage that
could not be reasonably or adequately compensated by any action a law.
Accordingly, the Fighter expressly agrees that in the event of such breach or
threatened breach, the Promoter shall be entitled, in addition to all other
rights and remedies available to it, to obtain equitable relief, including but
not limited to a temporary restraining order, a preliminary injunction and a
permanent injunction against such breach in any court of competent jurisdiction,
and that the Fighter will not assert as a defense in any such action that the
Promoter has an adequate remedy at law.
11. Representations, Warranties and Covenants.
(a) The Fighter represents, warrants and covenants to the Promoter
that the Fighter is free to enter into this Agreement and has
not heretofore and will not hereafter enter into any contract,
agreement or understanding, whether oral or written, that
conflicts in any material respect with the provisions of this
Agreement or grants or purports to grant similar or
conflicting rights to any person, firm or entity other than
the Promoter, or which would or might interfere with the.
Fighter's full and complete performance hereunder or the free
and unimpaired exercise by the Promoter of any of the rights
granted to the Promoter under this Agreement. The Fighter
further represents and warrants to the Promoter that there are
no claims pending or threatened or any litigations affecting
the Fighter that would or might interfere with the full force
and complete exercise or enjoyment by the Promoter of any
rights granted hereunder. The Fighter further agrees to
reasonably cooperate with the Promoter in the promotion and
production of the Bouts as requested by the Promoter and to
participate in reasonable media and promotional events for
Bouts, taking into consideration and so as not to unreasonably
interfere with the Fighter's training requirements.
(b) The Fighter further acknowledges that the Promoter is entering
into this Agreement in reliance upon the foregoing warranties,
representations and covenants, and the Fighter agrees to
indemnify and hold the Promoter harmless from and against any
and all liability, cost expense, including reasonable
attorneys; fees, the Promoter may sustain or incur as a result
of a breach or inaccuracy of any of said warranties,
representations and covenants.
12. Injury/Retirement. If the Fighter becomes permanently or
temporarily disabled during the term of this Agreement or any extension thereof,
the Promoter shall have the right either to extend the term hereof or to
terminate this Agreement without any liability or obligation to the Fighter. At
the Promoter's sole election, this Agreement may be suspended during the period
of the Fighter's temporary retirement, if any, but shall become fully operative
if and when the Fighter resumes his professional provision shall also be
applicable if the Fighter shall retire voluntarily during the term of this
Agreement and shall thereafter resume his professional boxing career.
13. Postponement. If any Bout is postponed for any reason, the
Standard Boxing Agreement applicable to such bouts shall determine the rights of
the parties, and, in addition thereto, the term of this Agreement shall be
extended by the period of the postponement.
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14. Dangerous Activity. The Fighter understands and acknowledges
that professional boxing is a dangerous activity that can result in severe and
permanent physical injury and disability, including neurological injury and
disability. The Fighter represents that he is a seasoned professional boxer,
capable of understanding and evaluating the risk of engaging in any Bout and in
the profession of boxing in general, including the risk of cumulative injury.
The Fighter will consider and accept the risk of each Bout and consents to and
assumes the risk of each Bout, as well as the cumulative risk of performance
under this Agreement. The Fighter further recognizes that a Bout may be a
mismatch and that he may suffer injuries and disability therefrom. The Promoter
shall be liable only for gross negligence or intentional misconduct in arranging
any Bout, even if it results in a mismatch.
15. Obligations of the Fighter.
(a) The Fighter shall keep himself in peak physical and mental
condition at all times, so as to be capable of meeting a
highly ranked opponent on short notice. Failure to do so,
including failure to make weight, shall be grounds for
immediate termination of this Agreement by the Promoter.
(b) The Fighter shall keep the Promoter informed at all times of
the Fighter's location and telephone number. Failure to do so,
if it results in the inability of the Promoter to contact the
Fighter regarding a Bout, shall be grounds for immediate
termination of this Agreement by the Promoter.
16. Termination. In addition to rights of termination set forth
elsewhere in this Agreement, the Promoter shall have the right to terminate this
Agreement without further liability or obligation to the Fighter or De Clemente
in case of any of the following:
(a) The Fighter shall fail to keep any obligation under this
Agreement.
(b) The Fighter gives less than his best effort during any Bout.
(c) The Fighter loses a Bout and, based on such loss, the Promoter
in its sole discretion determines that the Fighter cannot
compete at a professional level. The occurrence of a loss
shall in and of itself be sufficient basis for such a
determination.
(d) The Fighter is or becomes unable to compete at a professional
level, by reason of age, single injury, cumulative injury,
knock-out, lack of ability, lack of development or inability
to protect himself from injury at the level of competition of
the Bouts arranged by the Promoter.
(e) The Fighter fails any physical examination or test required
for eligibility to participate in a Bout.
(f) The Fighter engages in any activity that brings him or the
Promoter into disrepute, contempt, scandal or ridicule, either
among the public or within the boxing community, or which
insults or offends the community or any organized group
thereof, or which injures the success of the Promoter's
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activities, whether on behalf of the Fighter or otherwise or
diminishes or interferes with the Promoter's ability to
fulfill his duties [hereunder].
(g) The Fighter places any bets or is directly or indirectly
involved with any gambling activity in respect of any Bout or
any other boxing bout promoted by the Promoter, or is
associated with any illegal gambling activity, whether or not
related to boxing.
(h) The Fighter is associated with any criminal activity.
17. Independent Contractor. Nothing herein contained shall be
construed to constitute the Fighter as a employee of the Promoter, and the
Promoter shall have no financial interest in any compensation payable to the
Fighter for engaging in any Bout hereunder. The Fighter shall remain an
independent contractor, responsible for the Fighter's own actions and expenses.
18. Other Activities of the Promoter. Nothing herein shall prevent
the Promoter from engaging in promotion activities for any other professional
boxer, including others in the same weight class as the Fighter, or any other
activities.
19. Assignment. Neither the Fighter nor the Promoter may assign
this Agreement or any rights or obligations hereunder without the other's
written consent.
20. Severability. If any one or more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Agreement shall in all respects remain in force,
unless such invalidity, illegality or unenforceability shall cause this
Agreement to fail of its essential purpose.
21. Applicable Law. This Agreement shall be construed under the
laws of the State of New York, without the application of any rules regarding
choice of law.
22. Forum Selection. Fighter irrevocably submits to the
jurisdiction of any New York State or United States Federal Court sitting in New
York County over any action or proceeding arising out of or relating to this
Agreement, and the fighter irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such New York State or
Federal Court. As an alternative method of personal service, the Fighter
irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing of copies to the Fighter at the address specified for
the mailing of notices in the following section of this Agreement. The Fighter
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any manner provided by law. The Fighter waives any objection to venue in such
State and any objection to any action or proceeding in such State on the basis
that such State is an inconvenient forum. The Fighter further agrees that any
action or proceeding by the Fighter against the Promoter shall be brought only
in a New York State or Federal Court sitting in New York County. Nothing in this
section shall affect the right of the Promoter to serve legal process in any
other manner permitted by law or to bring any action or proceeding against the
Fighter in the courts of another jurisdiction.
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23. Notice.
(a) All notices under this Agreement shall be in writing and sent
via personal delivery, Certified or Registered Mail, a
national courier service or via confirmed facsimile. Notices
shall be sent as follows:
If to Promoter: Explosion Promotions, Inc.
30 Broad Street
New York, NY 10003
(212) 269-4949 (phone)
(212) 292-6808 (fax)
If to Fighter: Lorenzo DeClemente
361-363 Park Road
West Hartford, CT 06119
(860) 233-4995 (phone)
(860) 233-4995 (fax)
(b) Notices shall be deemed received on the date delivered if sent
by personal delivery or facsimile and the date sent if by any
other method.
(c) Either party may change his or its above information for
receipt of notice by notifying the other party in writing.
Notwithstanding any other provision of this section, such
notice may be sent via First Class Mail and shall be effective
when received.
24. Waiver. No waiver by any party or any breach or default
hereunder shall be deemed to be a waiver of any preceding or subsequent breach
or default. All waivers must be in writing, specify the breach or default
concerned and be signed by both parties. This Agreement and the rights and
obligations of the parties hereunder shall inure to the benefit of and be
binding upon the permitted assigns, successors and affiliated entities of the
parties hereto. The Fighter shall execute any and all additional documents or
instruments necessary or desirable to effectuate the provisions of this
Agreement, including but not limited to a Standard Boxing Contract in such form
as may be required by the local governmental authority having jurisdiction over
the Bout and/or the world organization(s) sanctioning the Bout, if applicable.
The Fighter agrees that no advertising or promotional material shall appear on
any item of clothing worn or carried by him, his trainers, seconds or assistants
during and/or at any Bout or any public area in or around the location of the
Bout, without the consent of the Promoter.
25. Confidentiality. The Fighter shall not, without the express
permission of the Promoter, disclose to any third party (other than his
respective employees and agents, in their capacity as such, on a need-to-know
basis) any information with respect to the terms and provisions of this
Agreement, except:
(a) To the extent necessary to comply with law or the valid order
of a court of competent jurisdiction, in which event(s) the
Fighter shall so notify the Promoter as promptly as
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practicable (if possible prior to making such disclosure) and
shall seek confidential treatment of such information;
(b) As part of normal reporting or review procedure to his banks,
auditors, attorneys and similar professionals, provided such
persons agree to be bound by the provisions of this section;
or
(c) In order to enforce his rights pursuant to this Agreement.
(d) The Promoter and the Fighter shall also mutually agree on the
timing and content of any press announcements or other public
statements regarding this Agreement, and without such mutual
agreement, no such announcements or statements shall be made.
The parties hereto agree that mutually approved press
announcements or other public statements shall be the only
press announcements or public statements regarding this
Agreement.
(e) The Fighter shall not answer any questions from third parties
concerning negotiations pursuant to this Agreement, any
possible Bout or the scheduling or terms thereof, or give
interviews to third parties, but shall immediately refer all
inquiries to the Promoter.
26. Benefit. The provisions of this Agreement are for the
exclusive benefit of the parties who are signatories hereto and their permitted
successors and assigns, and no third party shall be a beneficiary of, or have
any rights by virtue of, this Agreement (whether or not such third party is
referred to herein).
27. Entire Agreement. This Agreement sets forth and integrates the
entire understanding between the Fighter and the Promoter. The Promoter has made
no representations to the Fighter concerning the subject matter of this
Agreement, except as specifically set forth herein. The Fighter expressly
acknowledges that no such representations have been made, including but not
limited to representations concerning possible Bouts, possible opponents or the
Fighter's future prospects or earnings. It is understood and agreed that all
understandings and agreements heretofore had between the parties are merged in
this Agreement, which alone fully and completely expresses their agreement, and
that the same is entered into after full investigation, neither party relying
upon any statement, prior or contemporaneous, written or oral, not embodied in
this Agreement, a de by the other.
28. Modification, Amendment or Alteration. No modification,
amendment or alteration of this Agreement shall be effective unless it is in
writing and signed by both the Fighter and the Promoter.
29. Headings Not Part of Agreement. The headings of the various
sections are not part of this Agreement, but are inserted solely for the
convenience of the reader. They shall not be considered in construing this
Agreement and shall not be found to expand, limit, or cast light on any part of
this Agreement.
30. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all shall together constitute one
and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EXPLOSION PROMOTIONS, INC.
By: /s/ SALVATORE MUSUMECI
-------------------------------------
Salvatore Musumeci
President
FIGHTER
/s/ ERIC HARDING
-----------------------------------------
Eric Harding
/s/ LORENZO DE CLEMENTE
-----------------------------------------
Lorenzo De Clemente
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