Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA193793
`ESTTA Tracking number:
`02/20/2008
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91173506
`Defendant
`TNA Entertainment, LLC
`Robert L. Brewer
`Bass, Berry & Sims PLC
`315 Deaderick Street, Suite 2700
`Nashville, TN 37238
`UNITED STATES
`bbrewer@bassberry.com
`Withdrawal Of Application
`Robert L. Brewer
`trademarks@bassberry.com
`/Robert L. Brewer/
`02/20/2008
`Express Withdrawal re RAVEN.pdf ( 14 pages )(724841 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No: 91 E73506
`
`Serial No.: 78/534,103
`
`Attorney Ref. No;
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`i1l384—3l3
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`SCOTT LEVY,
`
`Opposer,
`
`v.
`
`TNA ENTERTAINMENT, LLC,
`
`Applicant.
`
`EXPRESS WITHDRAWAL OF APPLICATION
`
`BOX TTAB NO FEE
`
`Commissioner for Trademarks
`P.O. Box 1451
`
`Alexandria, Virginia 223 13-1451
`
`Applicant, TNA Entertainment, LLC (“Applicant”) without waiving its common iaw or
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`contractuai
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`rights, hereby expressly withdraws Appiication Serial No. 78/534,103 (the
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`“Application”).
`
`I.
`
`Statement of Relevant Facts
`
`Applicant was the assignee of the RAVEN mark pursuant to that certain Agreement dated
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`September 14, 2005 (the ‘‘Agreement’’) by and between Applicant and Opposer Scott Levy
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`(“Opposer”). According to the express terms of the Agreement, Applicant had the right to file
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`for the mark RAVEN, provided that the Application and any related trademark applications were
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`to be ultimately assigned to Opposer upon expiration or termination of the Agreement. The
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`sections of the Agreement that assign the rights in the mark to Applicant are not in dispute.
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`Applicant made it clear from the outset, and has repeatedly exptained to counsel for Opposer that
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`Applicant would assign ownership of the Application upon the termination of Applicant’s
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`business relationship with Opposer as required by the express terms of the Agreement. Although
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`counsel for Opposer has not disputed Applicant’s rights to use the mark during the terrn of the
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`Agreement, Opposer continues to maintain this opposition despite the clear language in the
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`Agreement.
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`Applicant denies committing any fraud upon the US. Patent and Trademark Office.
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`Applicant conducted its prosecution of the mark in good faith and in reliance on the Agreement.
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`Contrary to Opposer’s assertions, there was nothing misleading about any of the documents
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`Applicant has submitted to the US. Patent and Trademark Office. Applicant simply filed the
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`applicable portions of the Agreement, redacted to niaintain the confidentiality of the Agreement.
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`A copy of the entire Agreement is attached hereto. Again, it is not disputed that the Agreement
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`assigns rights in the mark to Applicant during the term of the Agreement.
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`Applicant has made numerous attempts to settle this matter. Each attempt has been met
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`with considerable resistance by Opposer despite the fact that the Application ultimately inures to
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`Opposer’s benefit. Because the Agreement expired on January 1, 2008, Applicant offered to
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`assign the Application to Opposer. Surprisingly, that was offer was rejected. Following that
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`rejection, Applicant offered to withdraw the application and sought Opposer’s consent to the
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`withdrawal. Opposer again rejected Applicant’s offer.
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`Based on Opposer’s unwillingness to accept an assignment or, in the alternative, consent
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`to Applicantfs abandonment of the Application, it appears that Opposer is attempting to use the
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`discovery process in this tradeinarlt dispute in order to either (a) inappropriately seek discovery
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`Opposer believes will be useful in Opposer’s unrelated claims regarding appearance payments
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`Opposer has claimed are owed to him; or (b) gain leverage in the ongoing negotiations with
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`respect to Opposer's appearance fees and a potential renewal of the Agreement. Applicant has
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`no desire to maintain ownership of the Application and has made concerted efforts to assign the
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`Appiication to the Opposer or agree to abandon the Application. Moreover, because the
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`Agreement has expired, Applicant has no reason to preserve any right to reapply for the RAVEN
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`mark. Consequently, Applicant expressly withdraws the Application with prejudice.
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`II.
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`Conclusion
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`In Eight of the foregoing, without waiving its cornlnon law or contractual
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`rights,
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`Appticant hereby expressly withdraws Application Serial No. 78/534,103 with prejudice.
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`Dated: February 20, 2008
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`Respectfully submitted,
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`BASS, BERRY & SIMS, PLC
`
`By:
`
`Robert L. Brewer, Esq.
`Paige W. Mills, Esq.
`315 Deaderick Street, Suite 2700
`
`Nashville, TN 37238
`
`(615) 742-6200
`(615) 742-0429 (facsimile)
`
`Artorneysfor Applicant
`TN/I Enrertainmem‘, LLC
`
`

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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a true and complete copy of the foregoing Express
`Withdrawal of Application was served on Karo} A. Kepchar, Esq. and Davie C. Lee, Esq. by
`maiiing said copy on February 20, 2008, via First Class Mail, postage prepaid to:
`
`Karol A. Kepchar, Esq.
`David C. Lee, Esq.
`Akin Gump Strauss Hauer & Feld, LL13
`1333 New Hampshire Avenue, NW
`Washington, DC 2003 6- I 564
`
`Dated
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`20¢ 20, 2008
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`

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`TNA ENTERTAINMZENT, LLC
`299 10:)’ Avenue 30.
`Suite 302
`
`Nashville, TN 37203
`
`September 14, 2005
`
`Scott Levy (pica Raven)
`
`Dear Scott:
`
`is
`WI-EREAS, TNA Entertainment, LLC (“TNA”), a Delaware limited liability company,
`engaged in the business of producing, publicizing, arranging, staging, conducting and promoting
`professional wrestling exhibitions and programs throughout the world, a certain number of which shall be
`broadcast and distributed to the public via a pay-per-View program entitled “Total Non-Stop Action” or
`otherwise distributed and/or broadcast to the public via television programs (the “Prograrn(s)”);
`
`WHEREAS, TNA’s business operations afibrd you, as a professional wrestler, opportunities to
`Wrestle and obtain public exposure which will increase the value of your wrestling services and your
`standing in the professional wrestling community and entertainment industry;
`
`WHEREAS, you and TNA desire to enter into this agreement and the addendum hereto
`(collectively the “Agreen1ent”) to evidence your agreement with respect to your participation in the
`Programs.
`
`NOW THEEREFORE, in consideration of the mutual promises and agreements as set forth herein
`and for other good and valuable consideration,
`the receipt and sufliciency of which are hereby
`aclcnowledged, "INA and you covenant, stipulate and agree as follows:
`
`Subject to TNA’s right to terminate this Agreement, during the Tenn (as
`Services.
`1.
`hereinafter defined) you agree to maintain your availability for and shall render your wrestling and
`performing services in connection with, the rehearsal, performance and broadcast of 45 or more Programs
`(“Peifonnances”) designated to you by TNA (which designation shall be made at least 48 hours prior to
`the conduct ofthe applicable Program).
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`Your services hereunder shall be e elusive to TNA; provided, however, that you may (only with
`the prior express written consent of TN , perform third-party obligations which do not conflict in any
`way with the full and complete performance of your services hereunder. Notwithstanding the foregoing,
`you may not, at any time during the Term, render any services for the World Wrestling Entertainment,
`Inc, its afiliates, successors, or assigs, or any other direct or indirect competitor of TNA- You will
`render your services to the best of your ability, subject to TNA’s direction and control, and you shall
`abide by all reasonable rules and regulations set out by TNA. You shall be responsible for providing your
`
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`own costumes, wardrobe, props and ma.‘se—up in the conduct of any Pefiommw. [/L/
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`in its sole discretion, to terminate this Agreement at any time during the Tenn or during any
`right,
`extended Term with respect to any services to be rendered by you hereunder, upon thirty (30) days written
`notice to you (the thirtieth day from the date of TNA’s written notice shall be deemed the date of
`
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`

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`termination: “Termination Date”) and "INA shall not have any further obligation to compensate you for
`any remaining Programs (even if you have performed in less than 45 Programs prior to the termination),
`subject only to TNA’s obligation to compensate you under paragraphs 3. and 5. below, relating only to
`those services performed prior to the Termination Date.
`
`Term. Subject to TNA’s right to terminate this Agreement as set forth in paragraphs 1.
`2.
`and 8. hereof, the term of this Agreement shall commence as of January 1, 2006 and shall continue in
`force for one year to and including January 1, 2D0g’(“"I"errn”).
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`3.
`
`Compensation.
`
`In consideration of and in full and complete payment and compensation for your
`_l3‘__e_e.
`A.
`services and the rights granted to TNA hereunder, "INA will pay you the amount of One Thousand Five
`Hundred Dollars ($1,500) for each Program fully performed by you in accordance with the terms and
`provisions of this Agreement, payable to you at your address first noted above not later than fourteen (14)
`days following the date of your performance in the Program, subject only to the deduction of such taxes
`and withholdings as are authorized or required by law.
`
`in the event that your Performances are embodied in Recordings (as
`Video Rovalg.
`B.
`defined in paragraph 4. below (intended for home distribution and/or sale (“Video(s)”)), TNA shall pay
`you a royalty (“Video Royalty”) equal to your pro rata share of five percent (5%) of the Net Video Sales
`Price of one hundred percent (100%) of Net Sales of Videos by TNA, or any of its related, afiliated or
`subsidiary companies. As used herein, “Net Video Sales Price” shall be the actual proceeds received by
`TNA from the sale of each such Video less a twenty-five percent (25%) container deduction, less any
`applicable taxes paid by TNA relating thereto, less any and all costs of collection (including reasonable
`attoiney’s fees, costs and expenses), and less any and all costs and expenses incurred by TNA in the
`shipping, production, manufacture, distribution, promotion and sale of the Videos. As used herein, “Net
`Sales” shall the number of Videos finally sold by TNA, less returns, allowances and prorootional copies
`distributed. To the extent that your Performances appear on the Video together with the performances of
`individuals in addition to you (“Third Parties”), the Video Royalty shall he pro~rated based on a fiaction,
`the numerator of which shall he one (1), and the denominator of which shall be one (1) plus the total
`number of Third Parties, such that the total Video Royalty to be paid by TNA with respect to a particular
`Video shall not exceed five percent (5%) of the Net Video Sales Price of one hundred percent (100%) of
`the Net Sales for that Video. Notwithstanding the above, TNA may, in its sole discretion, further adjust
`your share of the Video Royalty, based upon, among other factors, the amount of your compensation in
`paragraph 3.A. above as compared to such similar compensation paid to Third Parties performing in the
`Video.
`
`4.
`
`Works.
`
`During the Term of this Agreement, "INA shall have the exclusive, unrestricted,
`A.
`worldwide right to (i) grant and sell admissions to your appearance, Performances, comrnentary, and any
`other work product for any or all of the Programs; (ii) produce, publish, film, tape, photograph, record,
`edit, license, broadcast, exhibit, televise, and otherwise use the your name, lilceness, image, biographical
`inforrnation, appearance, Perfonnauces, commentary, and any other work product for any or all of the
`Programs through any form, method or device; (iii) use, reproduce, manufacture, and distribute copies of
`the Program(s), in any format, now known or hereinafter created (“Recordings”); and (iv) license any or
`all of the above rights to third parties. All Prograrn(s) and Recordings, including all content embodied
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`therein, shall always be the sole property of TNA, free fiom any claims of ownership by you or any other
`third party.
`
`Notwithstanding the termination of this Agreement for any reason, and notwithstanding
`3.
`any other provision of this Agreement, TNA shall have the right to produce,
`reproduce,
`reissue,
`manipulate, reconfigure, license, manufacture, record, perform, exhibit, broadcast, televise in any form of
`television (including without limitation, free cable, pay cable, closed circuit and pay:-per~view television),
`transmit, publish, copy, reconfigure, compile, print, reprint, vend, sell, distribute and use via any other
`nredium now known or hereinaitcr discovered, and to authorize others to do so, the Programs and
`Recordings,
`in perpetuity,
`in any manner or media and by any art, method or device, now known or
`hereinafter discovered.
`
`Your appearance, Performances, and work product in the Program(s) and the Recordings
`C.
`shall be deemed a “work made for hire” for TNA, as same is defined under the United States Copyright
`Act, and TNA shali be the author and own, in perpetuity, all rights, results, products and proceeds in or
`defived from the Performances, Prograrrr(s) and Recordings (including without iimitation any and all
`incidents, dialogue, characters, actions, routines, ideas, ggs, costumes or parts of costumes, accessories,
`crowns,
`inventions, championship title or other belts, and any other tangible or intangihie materials
`written, composed, submitted, added, improvised, or created by or for you in connection with appearances
`in the Programs(s)), and TNA may obtain copyright and/or trademark and/or other legal protection
`therefore, in the name of "INA and/or on behalf of 'I'NA’s desigee.
`
`to create, design or
`If TNA directs you, either singly or in conjunction with TNA,
`D.
`develop any copyrightahle work (“Development”), such Development shall be deemed a work for hire
`and TNA shall own such Development. All Performances, Programs, Recordings, and Developments
`referred to in this Agreement are collectively referred to as “Works.”
`
`All Works and your connibutions thereto shall he owned soiely and exclusively by TNA
`E.
`in perpetuity notwithstanding any terminafion of this Agreement.
`To the extent such Works are
`considered (1') contributions to coliective works, (ii) a compilation, (iii) a supplementary work and/or (iv)
`as part or component of a motion picture or other audio—visuai work, the parties hereby expressly agree
`that the Works shall be considered “works made for hire" under the United States Copyright Act of 1976,
`as amended (17 U.S.C. § 101 et seq).
`In accordance therewith, all rights in and to the Works shall he
`owned solely and exclusiveiy by TNA in perpetuity notwithstanding any termination of this Agreement.
`if for any reason the Works or your contributions thereto are deemed works other than "works made for
`hire," you hereby irrevocably transfer and assign to TNA all right, title and interest in and to such Works
`and contributions, including all copyrights, as well as all renewals and extensions thereto in the United
`States and woridwide. You agree to execute, acknowledge -and deliver any and ail documentation
`necessary to efihctuate TNA’s rights herein or implement the intent ofthis Agreement.
`
`Ali gags, costumes, or parts of costumes, accessories, crowns, inventions, championship
`F.
`titles or other belts, and any items of tangible property provided to you by TNA and/‘or containing New
`intellectual Property as defined in paragraph 5(B) shall be immediately returned to TNA upon termination
`of the Agreement for any reason.
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`

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`5.
`
`Intellectual Progefiy and Merchandising.
`
`likeness, personality of the date of this
`ring name,
`As your legal name, nickname,
`A.
`Agreement, all service marks, trademarks, and any and all other distinctive and identifying indicia under
`which you claim any rights, including without limitation, character, biographical information, caricatures,
`voice, signature, gags, slogans, costumes, props, gimmicks, gestures, routines and themes, which are
`owned by you or in which you have any rights anywhere in the world (collectively,
`the “Original
`lntellectual Property”) are described and identified on Schedule A attached hereto and incorporated herein
`by reference. During the Term of this Agreement, you assign to TNA all worldwide right, title and
`interest in and to your Original lntellectnal Property, including all corresponding goodwill, anywhere in
`the world. TNA shall own the sole and exclusive right to assign, license, sublicense, reproduce, promote,
`expose, exploit and otherwise use the Original Intellectual Property in any commercial manner now
`known or hereinafter discovered, regardless of whether such rights are exercised during the Term of the
`Agreement and notwithstanding termination of this Agreement for any reason. Upon termination of the
`Agreement, rights in and to the Original Intellectual Property shall revert and be assigned to you, except
`that ‘INA, its licensees, sublicensces, and assigns may continue to exploit any and all materials, goods,
`merchandise and other items (“Goods”) incorporating the Original Intellectual Property based upon your
`performances before such termination regardless of whether such Goods are made before or after your
`termination.
`It is agreed that all Programs, Recordings and Merchandise (defined in Section 5, D below)
`including those that contain Original Intellectual Property, shall always be the sole property of TNA, flee
`fiorn any claims of ownership by you.
`
`With the exception of your Original Intellectual Property, any service marks, trademarks
`13.
`andfor distinctive and identifying indicia, including ring name, nickname, likeness, personality, character,
`biographical
`infonriatlon, caricatures, voice, signature, props, gestures,
`routines,
`themes,
`incidents,
`dialogue, actions, gags,
`slogans, costumes or parts of costumes, accessories, crowns,
`inventions,
`championship title or other belts, and any other items of tangible or intangible property writterg
`composed, submitted, added, improvised, created and/or used by or associated with your performance in
`the business of professional wrestling
`or sports entertainment during the Term of this Agreement
`(collectively, the “New Intellectual Property”) are assigned along with all corresponding goodwill to TNA
`and shall belong to TNA,
`in perpetuity, with TNA retaining all such ownership rights,
`in perpetuity,
`exclusively throughout the world notwithstanding termination of this Agreement. TNA shall own the sole
`and exclusive right to assign, license, sublicense, reproduce, promote, expose, exploit and otherwise use
`the New Intellectual Property in any commercial manner now known or hereinafter discovered, regardless
`of whether such rights are exercised during or alter l’.l1B Term of the Agreement and notwithstanding
`termination of this Agreement for any reason.
`
`You agree to cooperate fully and in good faith with TNA for the purpose of securing and
`C.
`preserving TNA’s rights in and to the Original Intellectual Property and New Intellectual Property.
`In
`connection therewith, you acknowledge and grant to TNA the exclusive, worldwide right during the Term
`of the Agreement (with respect to Original Intellectual Property) and in perpetuity (with respect to the
`New Intellectual Property) to apply for and obtain trademarks, service marks, copyrighm, and other
`registrations throughout the world in TNA’s name and/or on behalf of TNA’s desigee. At TNA’s
`expense and request, you and TNA shall take such steps, as TNA deems necessary, for any registration or
`any litigation or other proceeding, to protect TNA’s rights in the Original Intellectual Property and/or
`New Intellectual Property and/or Works.
`
`You grant TNA an exclusive, unrestricted, worldwide, perpetual right (1) during the Term
`D.
`of the Agreement and thereafter, as provided in this Agreement, to use and to aufliorizc and license others
`to use the Original Intellectual Property, and (ii) in perpetuity to use the New Intellectual Property in
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`

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`connection with the manufacture, production, reproduction, reissuance, manipulation, reconfiguration,
`broadcast, rebroadcast, distribution, promotion,
`sale, and other commercial exploitation in any manner,
`now known or hereinafter discovered, of any materials, goods or merchandise incorporating the Original
`or New Intellectual Property (“Merchandise”). By way of example, Merchandise may include, without
`limitation, computer, video or arcade games in any form and on any platform, action figures or dolls, t-
`shirts, posters, photos, videotapes and DVDS, books, biographies, articles and stories, souvenirs or any
`other such Merchandise.
`
`You further agree that your grants and assignments of rights in this Section 5 shall also
`B.
`apply to all TNA Recordings, TNA Merchandise and WA DVDs/videos in which you appeared prior to
`the Term of this Agreement.
`
`It is the understanding of the parties that all rights, licenses, privileges and all other items
`F.
`herein given or granted or assigned by you to TNA are exclusive to TNA even to the exclusion of you.
`
`In consideration of the assignment in Paragraph 5(A) above, TNA
`Merchandise Royalty.
`G.
`shall pay you a royalty equal to your prorata share of five percent (5%) of the Net Merchandise Sales
`Price of one hundred percent (100%) of sales of Merchandise by TNA, or any of its related, afihates or
`subsidiary companies or its licensees (“Merchandise Royalty”). As used herein, “Net Merchandise Sales
`Price” shall mean the actual net proceeds received by TNA fiorn the sale of Merchandise (eimer directly
`fiom purchasers or as royalties fiorn licensees) less any applicable taxes paid by TNA relating thereto,
`less any and all costs of collection (including reasonable attorney’s fees, costs and expenses), less any and
`all costs and expenses incurred by TNA in the shipping, production, manufacture, distribution, promotion
`and sale of the Merchandise and less any returns, allowances and promotional items distributed.
`In the
`event
`that
`the Merchandise bears
`the name and/or
`likeness of individuals
`in addition to you
`(“Merchandise Third l-"aru'es”), the Merchandise Royalty‘ shall be pro-rated based on a fiaction, the
`numerator of which shall be one (1), and the denominator of which shall be one (1) plus the total number
`of Merchandise Third Parties, such that the total Merchandise Royalty to be paid by TNA with respect to
`a particular item of Merchandise shall not exceed five percent (5%) of the Net Merchandise Sales Price of
`one hundred percent (100%) of the sales for that item of Merchandise. Notwithstanding the above, TNA
`may, in its sole discretion, further adjust your share ofthe Merchandise Royalty, based upon, among other
`factors,
`the amount of your compensanon in paragraph 3.A. above as compared to such sirnilar
`cornpensation paid to Merchandise Third Parties.
`
`6.
`
`Accountino.
`
`Royalgg Payments and Accounting. Video Royalties and Merchandise Royalties will be
`A.
`payable to you within ninety (90) days following June 30”‘ and December 315‘ of each calendar year.
`Royalty statements will accompany each payment and will reflect the computation of the royalnes due to
`you on the date the accounting is rendered. No royalty statements shall be sent to you in any period in
`which no royalties are payable to you.
`
`Records. "INA will keep accurate records regarding the sale of Merchandise and Videos.
`B.
`TNA will allow you or your authorized representatives to examine such records once during each
`calendar year, at TNA’s place of business during regular business hours upon your written request given
`at least thirty (30) days prior to the date of examination, and to malce copies of all or part of such records
`at your expense. Each royalty statement will become conclusively binding on you one (1) year fiom the
`date each statement is rendered and any action brought by you under this paragraph must be commenced
`within that one (l)—year period.
`
`

`
`Warranties and Indemnification. You warrant and represent that you have the full
`7.
`right and power to enter into this Agreement,
`to grant the rights and licenses herein granted, and to
`perform your obligations hereunder, that you have secured any and all licenses or permissions necessary
`for the rendering of your services hereunder (including those requiring physical examination), that any
`creative contributions furnished by you shall be wholly original, that you shall not take any action which
`shall in any way limit or impair TNA’s rights hereunder, and that 'f'NA’s exercise of its rights hereunder
`shall not infiinge upon the rights of any third party. You shall defend, protect and indernnfl TNA, its
`parent and afiliates and all of their respective agens, officers, employees and directors and any and all
`licensees, assiguees and authorized third parties reproducing, broadcasting or otherwise using or
`exploiting the Merchandise, Works, Program(s), Recordings, and any Original lntellectual Property and
`all of the foregoing's heirs, successors ‘and assigns (collectively the ‘"T'NA Parties”), from and against any
`and all claims, demands, fines, suits, causes of action, damages, liabilities, costs, and expenses (including
`reasonable attorney’s fees and costs of litigation) arising out of or attributable to any breach of any of
`your representations andlor warranties hereunder, TNA’s use of your Performances, or any materials,
`ideas, creations and properties created, used or furnished by you in connection with the Programs, the
`Recordings or the Merchandise,
`including any improvised or ad—1ib dialogue or unauthorized acts
`performed by you.
`In addition, you shall similarly defend, protect and indemnify the TNA Parties from
`and against any and all claims, demands, fines, suits, causes of action, damages, liabilities, costs, and
`expenses (including reasonable attorney’s fees and costs of litigation) arising out of or attributable to any
`personal injury, death or damage to property caused by you in connection with the rendering of your
`services hereunder. You agree to take such precautions as are necessary and appropriate to avoid any
`unreasonable risk of injury to such persons or property, including yourself, and shall be responsible for
`securing your own health and disability insurance, commercial general
`liability insurance, workers
`compensation insurance, professional
`liability insurance, as Well as any excess liability insurance
`necessary to insure, protect, defend, indemnify and defend the TNA Parties with respect to any and all
`claims arising out of your acts, transactions or conduct as provided herein. You fully acloiowledge that
`the rendering of your services hereunder may be hazardous, you knowingly and voluntarily take on and
`assurne the consequences of such risk and, on behalf of yourself and your heirs, successors and assigss,
`hereby release, waive and discharge the TNA Parties from any and all
`liability to you, your heirs,
`successors and assigns, with respect to any and all loss, damage or personal injury to you or any other
`person or property, including your siclcuess, death or disability, whether caused by you or a third party or
`in connection with your participation in the Programs, your Performances or otherwise. TNA’s rights
`under paragraphs 4, 5, 6, 7, 8, 10, ll and 12 specifically including all representations and warranties
`made by you and 'I‘NA’s rights of defense, protection and indemnification hereunder, shall survive the
`tennination of this Agreement.
`
`“>7
`
`Breach. TNA shall have the right to terminate this Agreement, its obligation to make
`8.
`any payments hereunder and your services hereunder in the event you (i) are found to have used illegal
`drugs, o r absent on more than two occasions, (ii) found to be physically or mentally impaired
`to the extent that you are incapable of performing your services hereunder to TNA’s satisfaction (in its
`sole discretion),
`(iii) you have been found guilty of any felony or found guilty of any misdemeanor
`involving moral
`turpitude,
`(iv) you publicly denigrate TNA,
`its afiliates,
`their oficers, directors,
`employees, licensees, assigns or your participation in any Progain, (v) fail to conduct or finish a match in
`accordance with 'I"NA’s direction, (vi) you violate the terms of Section 10 herein or (vii) you cornmit any
`act which negatively afiects the reputation or performance of TNA, its affiliates, licensees, or assigis or
`the value or integrity of the Programs, the Videos or the Merchandise.
`In the event of termination of this
`Agreement in these circumstances, TNA shall have no further obligation to you hereunder subject only to
`TNA’s obligation to compensate you under paragraphs 3. and 5. above for services fully perfonned prior
`to the date of termination (specifically subject to ofiet for any damages incurred or alleged to have been
`incurred by TNA as the result or consequence of such breach).
`
`

`
`In the event you breach this agreement, TNA may recover such damages as may be established in
`a court of law, including attorneys’ fees and costs of litigation. Moreover, in the event you breach this
`agreement, you acknowledge and agree that you shall not work or perform in any capacity for World
`W'resth'ng Entertainment, Inc., its aifiliates, successors, or assigns, or in any capacity with any other direct
`competitor of TNA for a period of six (6) months fi'om the date of termination of this Agreement by TNA
`under this paragraph 3.
`
`You and "INA fiirther agree that because of the special, unique and extraordinary nature of the
`obligations of TNA and you which are the subject matter of this Agreement, your breach of this
`Agreement shall cause TNA irreparable injury which cannot be adequately measured by monetary relief.
`As a consequence, TNA shall also be entitled to injunctive and other equitable relief against you to
`prevent your breach or default hereunder without the necessity of proof of actual damage and such
`injunction or equitable relief shall be without prejudice to any other rights, remedies or damages which
`"INA may be legally entitled to seek.
`
`Notices. Any notices to you or TNA hereunder (and any and all statements, royalties or
`9.
`other payments which may become due to you) shall be addressed to our respective addresses first noted
`above, unless we provide each other with written notice of change of address. All notices (excluding
`statements and/or payments) shall be sent by US. Cerfified Mail, return receipt requested, courier, or
`express mail with notice of transmittal, postage pre-paid, and shall be deemed sent on the date of mailing
`or delivery by courier.
`
`Confidenfialitgg. Other than as may he required by applicable law, government order or
`10.
`regulations, or by order or decree of a Court, all information contained in this Agreement and obtained by
`you in performing services hereunder shall be held strictly confidential and shall not be divulged by you
`to any person or entity whatsoever at any time during the Term of or after the termination of this
`Agreement without 'l"NA’s express prior written permission.
`If you violate this Section 10 during the
`Term ofthis Agreement, it will be considered a breach ofthis Agreement.
`
`Miscellaneous. TNA may assig its rights hereunder in whole or in part to any person,
`11.
`firm, corporation or other legally recognized entity. You acknowledge that you are an independent
`contractor and that nothing herein shall be construed as deeming you either an employee or partner of
`TNA. This Agreement supercedes any and all prior agreements, negotiations or understandings between
`you and TNA, whether written or oral, with respect to the subject matter hereof. Each party to this
`Agreement expressly warrants and represents that, in entering into this Agreement, it is not relying on any
`statements, representations, promises, consideration, agreements or inducements, whether oral or written,
`that are not fully set forth in this Agreement.
`In this regard, both you and TNA acknowledge that in
`entering into this Agreement, each is relying solely and exclusively on the statements and the provisions
`that are expressly set forth in this Agreement, and each is not relying on any statements, representations,
`promises, consideration, agreements or inducements of any kind, Written or oral, that were made by either
`you or "INA, by any of their agents or representatives or by any third parties, which are not fillly set forth
`in this Agreement. This Agreement may not be altered, modified, amended or supplemented in wh