EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of this twenty-
fourth (24th) day of August, 1998, effective as of September 1, 1998 by and
between Titan Sports, Inc. ("Titan"), with offices at 0000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, and August X. Xxxxxxx, an individual residing at 00
Xxxxxx Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxx 00000 ("Employee"), individually referred
to as a "party" and collectively referred to as the "parties."
NOW, THEREFORE, in consideration of the promises, covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. DUTIES/ACCOUNTABILITIES: In Employee's capacity as Titan's Chief
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Financial Officer, Employee shall perform those duties and accountabilities as
directed by Titan's Chairman Xxxxx XxXxxxx, Titan's President and Chief
Executive Officer Xxxxx XxXxxxx or their designee ("Duties"): Reporting to the
Chairman, President/CEO, Employee will be responsible for all of the financial
aspects of Titan, including, but not limited to, managing the relationships with
financial ventures outside Titan. Employee will direct the functions of
budgeting, financial analysis, revenue operations, general accounting,
information systems, auditing and billing. Employee will also be responsible
for:
. Directing and monitoring all of the financial affairs of Titan
including the control function as well as tax and audit activities.
. Establishing appropriate controls over capital funding, financial
expenditures and investment decisions.
. Participating as a key figure in Titan's business and strategic
planning process.
. Providing the necessary information and analysis to effectively control
and manage the financial health and well being of Titan.
. Developing adequate information reporting systems that support Titan's
operational, financial and administrative functions.
. Performing all other duties and activities requested by the Chairman
and the President/CEO.
2. TERM: The term of this Agreement shall commence on September 1, 1998
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and, unless terminated earlier as set forth below, end on August 31, 2001
("Term").
3. TERRITORY: The territory for this Agreement shall be the entire world.
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4. COMPENSATION: Provided that Employee performs his duties to the full
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satisfaction of Titan, Titan shall pay Employee as follows:
a) Fifty Thousand Dollars ($50,000) within ten (10) business days of the
date that Titan signs this Agreement;
b) Base salary of Three Hundred Fifty Thousand Dollars ($350,000) for each
year during the Term of this Agreement, payable in equal biweekly installments;
c) Bonus payments of One Hundred Seventy-Five Thousand Dollars ($175,000)
each on or before June 1, 1999, June 1, 2000 and June 1, 2001;
d) Bonus payments of One Hundred Fifty Thousand Dollars ($150,000) each on
or before September 1, 1999, December 1, 1999, March 1, 2000, September 1, 2000,
December 1, 2000 and March 1, 2001; and
e) A balloon payment on or before August 31, 2001 in the amount of Four
Hundred Seventy-Five Thousand Dollars ($475,000) less any profit sharing and
401(k) monies contributed to Employee by Titan and further less any bonus
payments paid by Titan to Employee during the Term of this Agreement in addition
to those set forth in paragraphs 4(a), 4(c) and 4(d) above.
5. EXPENSES: Titan shall reimburse Employee for any reasonable and
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necessary expenses incurred in the performance of his duties hereunder,
including any reasonable and necessary travel and lodging expenses, provided
that reimbursement hereunder shall be subject to Titan's policies regarding such
reimbursement, now or hereafter adopted by Titan, that any and all such expenses
are approved in advance by Xxxxx XxXxxxx or Xxxxx XxXxxxx and only upon receipt
of adequate supporting documentation therefor. All such expenses shall be
reimbursed within thirty (30) calendar days following submission to and approval
by Titan of an invoice no more frequently than on a monthly basis.
6. BENEFITS: Employee shall be eligible during the Term of this Agreement
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for those benefits generally available to employees of Titan. Employee shall be
eligible for three (3) weeks of vacation per year during the Term of this
Agreement. Additionally, should Titan be the subject of an initial public
offering, Employee shall be granted stock options to the same extent as those
provided to other senior executives of Titan.
7. TERMINATION:
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(a) Titan may terminate this Agreement immediately if Employee engages in
any act of fraud, theft, deceit or unethical conduct, and Titan shall have no
further obligation to Employee, financial or otherwise, under this Agreement.
(b) Titan may terminate this Agreement at any time for any reason in its
sole discretion, provided that:
(i) Should such termination occur during the first year of this
Agreement (September 1, 1998 - August 31, 1999), Titan's only
remaining obligation hereunder shall be to pay Employee the
difference between One Million
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Dollars ($1,000,000) and what Titan has paid Employee to that
point during the first year of this Agreement;
(ii) Should such termination occur in the second or third year of this
Agreement, Titan shall pay Employee Eight-Three Thousand Three
Hundred Thirty-Three Dollars ($83,333.00) multiplied by the
number of months (including proportions thereof) worked by
Employee for Titan minus the amount of money paid by Titan to
that point. Additionally, Titan shall pay Employee six (6) months
of severance pay at the rate of Twenty-Nine Thousand One Hundred
Sixty-Six Dollars ($29,166.00) per month, which shall cease as
soon as Employee secures other employment and in exchange for
which Employee shall execute a full and final release and waiver
of any and all claims he may have against Titan.
(c) Should Employee resign at any point during the Term of this Agreement,
Titan shall have no further obligation thereafter to Employee under this
Agreement, whether financial or otherwise.
(d) Notwithstanding anything to the contrary set forth above, should a
third party other than a family member or heir of Xxxxx or Xxxxx XxXxxxx assume
ownership and control of a majority of the assets of Titan, such company shall
be obligated to pay Employee Three Million Dollars ($3,000,000) minus the amount
of all payments received by Employee under this Agreement to the point of
purchase.
(e) Notwithstanding anything to the contrary set forth above, should
Employee die during the first year of this Agreement, Titan shall pay Employee's
heirs the difference between One Million Dollars ($1,000,000) and what Titan has
paid Employee to that point during the first year of this Agreement. Should
Employee die during the second or third year of this Agreement, Titan shall pay
Employee's heirs Eighty-Three Thousand Three Hundred Thirty-Three Dollars
($83,333.00) multiplied by the number of months (including proportions thereof)
worked by Employee by Titan minus the amount of money paid by Titan to that
point.
8. WORK FOR HIRE: Employee hereby acknowledges that all duties performed
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hereunder were specifically ordered or commissioned by Titan ("Work"); that the
Work constitutes and shall constitute a work-made-for-hire as defined in the
United States Copyright Act of 1976; that Titan is and shall be the author of
said work-made-for-hire and the owner of all rights in and to the Work
throughout the universe, in perpetuity and in all languages, for all now known
or hereafter existing uses, media and forms, including, without limitation, the
copyrights therein and thereto throughout the universe for the initial term and
any and all extensions and renewals thereof; and that Titan shall have the right
to make such changes therein and such uses thereof as it may deem necessary or
desirable. To the extent that the Work is not recognized as a work-made-for-
hire, Employee hereby assigns, transfers and conveys to Titan, without
reservation, all of Employee's right, title and interest throughout the universe
in perpetuity in the Work, including, without limitation, all rights of
copyright and copyright renewal in said Work or any part thereof.
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9. CONFIDENTIALITY/NON-COMPETE: Employee acknowledges and agrees that it
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is a condition precedent to this Agreement that he sign the Confidentiality and
Non-Compete Agreement, which is attached hereto as Exhibit A and hereby
incorporated herein by reference and made a part hereof.
10. ASSIGNMENT: This Agreement contemplates the personal services of
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Employee and is not assignable by Employee. Titan may assign this Agreement in
whole or in part, without limitation or restriction.
11. ARBITRATION: The parties agree that if a claim or controversy should
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arise concerning this Agreement, or the breach of any obligation arising under
this Agreement, or the interpretation of this Agreement, such dispute shall be
resolved by binding arbitration under the Commercial Arbitration Rules of the
American Arbitration Association with the arbitration to be held in Stamford,
Connecticut. The parties shall each pay one-half (1/2) of the costs of the
arbitrator and the arbitrator shall thereafter award costs and attorneys' fees
to the prevailing party. The arbitration award shall be binding and non-
appealable, and may be entered as a final judgment in any court having
jurisdiction over the award.
12. NOTICES: Any notices are to be sent by certified mail, return receipt
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requested, federal express, or first class postal service and addressed as
follows:
TO TITAN: Titan Sports, Inc.
Attn: Xxxxx X. XxXxxxx
President and Chief Executive Officer
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
TO EMPLOYEE: August X. Xxxxxxx
00 Xxxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
13. GOVERNING LAW: This Agreement shall be governed by the laws of the
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State of Connecticut governing contracts entered into and to be fully performed
therein.
14. SEVERABILITY: In the event that any provision or portion of this
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Agreement shall be declared invalid or unenforceable for any reason by a court
of competent jurisdiction, such provision or portion shall be considered
separate and apart from the remainder of this Agreement, which shall remain in
full force and effect.
15. NAME AND LIKENESS: Titan and its licensees and/or assignees shall
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have the exclusive and perpetual right, but not the obligation, to use and
license the use of Employee's name, photograph, likeness and approved
biographical data ("Name and Likeness") for the purpose of advertising,
marketing, promoting, publicizing and exploiting any matter related to the
Duties performed hereunder with Employee's permission, which shall not be
unreasonably withheld.
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16. INDEMNITY: a) Employee shall hold Titan, its parent, subsidiary and
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affiliate companies and the directors, officers, employees, licensees,
successors, assigns and agents of the foregoing, harmless from and against all
claims, liabilities, damages, costs and attorneys' fees arising from any action
by Employee outside the course and scope of his employment hereunder.
b) Titan shall hold Employee harmless from and against all claims,
liabilities, damages, costs and attorneys' fees arising solely from the
performance of Employee's Duties within the course and scope of Employee's
employment hereunder.
17. REMEDIES: The waiver by either party of any breach hereof shall not
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be deemed a waiver of any prior or subsequent breach hereof. All remedies of
either party shall be cumulative and the pursuit of one remedy shall not be
deemed a waiver of any other remedy.
18. NO AGENCY: No agency relationship is created between Titan and
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Employee by virtue of this Agreement. Employee has no authority in excess of
One Hundred Thousand ($100,000) US Dollars to bind Titan to any contract,
agreement or other obligation with any third parties, unless such contract,
agreement or other obligation is co-signed by Titan's President and CEO Xxxxx
XxXxxxx.
19. INTEGRATION: This Agreement contains the complete understanding
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existing between the parties on the subjects covered and supersedes any previous
written or verbal understandings with respect thereto. This Agreement may not
be amended except by a writing signed by authorized representatives of Employee
and Titan.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
AUGUST X. XXXXXXX TITAN SPORTS, INC.
("Employee") ("Titan")
By:_______________________________ By:_______________________________________
August X. Xxxxxxx Xxxxx X. XxXxxxx
President & Chief Executive Officer
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Ommitted Exhibit
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EXHIBIT A: Confidentiality/Non-Compete/Agreement
