EXHIBIT 10.10
EMPLOYMENT AGREEMENT
EFFECTIVE DATE: July 1, 1997
EMPLOYER: THE ORLANDO PREDATORS ENTERTAINMENT, INC.
a Florida corporation
EMPLOYEE: XXXX XXXXXXXXXX
PURPOSE:
Employer owns, manages and operates a professional arena football franchise
known as the Orlando Predators and located in Orlando, Florida (the "Business").
Employer desires to employ Employee as President and Employee desires to accept
such employment, on the terms, covenants and conditions set forth in this
Employment Agreement (this "Agreement").
AGREEMENTS:
For the reasons set forth above, and in consideration of the mutual
promises and agreements set forth in this Agreement, Employer and Employee agree
as follows:
1. EMPLOYMENT; DUTIES.
1.1 Subject to and in accordance with this Agreement, Employer
employs Employee as the President of Employer and Employee accepts employment
with Employer subject to the general supervision and pursuant to the orders,
advice and direction of Employer. In such capacity, Employee shall be
responsible for the overall and day-to-day operations of the Business.
1.2 Employee shall use his best efforts and devote his full time to
the performance of all the duties that may be required of and from him pursuant
to the express and implicit terms of this Agreement. Such duties shall be
rendered in Orlando, Florida and at such other places as Employer and Employee
shall mutually agree upon.
1.3 Employee represents and warrants that there are no
agreements or arrangements, written or oral, in effect which would prevent
Employee from rendering services to Employer during the term of this Agreement.
1.4 Nothing herein contained shall be construed to create a
partnership or joint venture between Employer and Employee. Neither party
hereto shall be liable for the debts or obligations of the other unless
expressly assumed in writing and signed by the parties hereto.
2. TERM. This Agreement shall become effective on the date first written
above and, unless terminated sooner pursuant to Section 5, continue through June
30, 2000 (the "Initial Term"). Employer shall have the right and option, but
not the obligation, to extend the Initial Term through
December 31, 2001 (the "Extension Term"), subject to the termination provisions
of Section 5 below and the other terms and provisions of this Agreement, by
giving Employee written notice of the extension to Employee on or before
September 1, 2001.
3. COMPENSATION AND OTHER BENEFITS.
3.1 COMPENSATION. For services rendered to Employer hereunder, in
whatever capacity rendered, Employee shall have and receive, subject to
withholding and other applicable taxes, the following:
(a) A salary during the Initial Term as set forth on the
attached Exhibit "A" (the "Base Salary"), which Base Salary will be payable
monthly, in arrears in two equal monthly installments;
(b) A commission calculated and payable pursuant to the
provisions set forth on the attached Exhibit "A"; and
(c) Ten tickets to each home game played by the Franchise.
3.2 STOCK OPTIONS. Employer shall grant to Employee stock options to
purchase 34,500 shares of no par value, voting common stock of Employer, to be
issued pursuant to Employer's stock option plan and to be evidenced by the stock
option agreement in form and content required by Employer's stock option plan
and providing for an exercise price equal to the fair market value of the shares
on the date of grant (being July 1, 1997) and for the vesting of the right to
purchase the shares as follows: one third shall become vested on July 1, 1998,
one third shall become vested on July 1, 1999 and the remaining one third shall
become vested on July 1, 2000.
3.3 BUSINESS EXPENSES. Upon submission of proper documentation,
Employer shall pay or reimburse Employee for all reasonable and necessary
office, telephone, travel and other expenses incurred by him in the pursuit of
his duties on behalf of Employer.
3.4 EMPLOYEE BENEFITS. Employee shall be entitled to participate in
any other bonus, stock option, incentive compensation, deferred compensation,
group medical and dental insurance plans or other plans or programs and to
receive any other benefits for which he is eligible and which Employer may
provide its employees generally or its officers specifically. Specifically,
without limiting the generality of the foregoing, Employer shall pay 100% of
the health insurance premiums attributable to a group medical insurance policy
for Employee, his spouse and his dependent children.
3.5 AUTOMOBILE ALLOWANCE. As part of a sponsorship package with a
sponsor of the franchise, Employee shall be entitled to negotiate and, upon
approval of Employer's Board of Directors, execute an automobile lease for
Employee's use in the pursuit of his duties on behalf of Employer. In
connection therewith, Employer shall bear all lease payments and all expenses
for taxes, license, insurance, ordinary maintenance, oil, antifreeze,
lubricants, and other ordinary
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expenditures incurred in the operation of said automobile. Employee shall be
solely responsible for individual fines and penalties for parking, traffic and
speeding violations, and shall return the automobile to Employer upon the
termination of this Agreement or the automobile lease, in good condition,
reasonable wear and tear excepted.
3.6 VACATION. At such reasonable times as Employer shall in its sole
discretion permit, Employee shall be entitled, without loss of pay, to absence
himself voluntarily from the performance of his employment under this Agreement.
Employee shall be entitled to such period of absence of not more than four weeks
for each twelve month period under this Agreement.
4. FACILITIES. Employer shall provide and maintain (or cause to be
provided and maintained) such facilities, equipment, offices, secretarial help,
and other services and supplies as it deems necessary for Employee's performance
of his duties under this Agreement, as established from time to time by
Employer.
5. TERMINATION.
5.1 This Agreement and Employee's employment hereunder may be
terminated at any time:
(a) By Employee upon the material breach by Employer of any of the
material provisions of this Agreement.
(b) By Employer for Cause. For purposes of this Agreement, the term
"Cause" shall mean: (i) conduct on the part of Employee which is intended to
result directly or indirectly in substantial gain or personal enrichment at the
expense of Employer; (ii) the material breach by Employee of any of the
provisions of this Agreement; or (iii) the failure by Employee to substantially
perform his duties hereunder.
Further, this Agreement and Employee's employment hereunder shall automatically
terminate upon the death or disability of Employee or the bankruptcy of Employer
or the discontinuance of Employer's Business.
5.2 Notwithstanding the termination of this Agreement or of
Employee's employment hereunder, the parties hereto shall be required to carry
out any provision hereof which contemplate performance by them subsequent to
such termination, nor shall such termination affect any liability or obligation
which has accrued prior to such termination, including but not limited to,
accrued but unpaid compensation and any liability for loss or damage on account
of default.
5.3 Following any termination of employment hereunder, or notice
thereof, Employee shall fully cooperate with Employer in all matters relating to
the winding up of his pending work on behalf of Employer and the orderly
transfer of any such pending work to other employees of Employer as may be
designated by Employer. In consideration thereof, Employer shall pay Employee
for any services rendered post-termination at a rate equivalent to the hourly
rate
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payable to Employee during the Initial Term or the Extension Term, as
applicable, during which the termination occurred.
5.4 Upon termination of this Agreement, or whenever requested by
Employer, Employee shall immediately turn over to Employer all of Employer's
property, including all items used by Employee in rendering services hereunder,
that may be in Employee's possession or under his control.
6. COVENANT NOT TO COMPETE; DISCLOSURE OF INFORMATION.
6.1 SOLICITATION.
6.1.1 In the event that Employee terminates this Agreement in
breach of the terms and provisions hereof, then for a period of six months after
the date of such termination in breach of this Agreement, Employee shall not,
whether alone or as a partner, officer, director, employee or shareholder (or
other holder of an equity interest) of, or consultant, advisor or lender to, any
other corporation, partnership or other entity, or as a trustee, fiduciary or
other representative, solicit Employer's customers with respect to, engage in or
have any interest, including as a creditor, in any person, partnership,
corporation, association, or other business entity, whether as employee,
officer, director, agent, consultant, stockholder or holder of any right to any
form of equity ownership, or otherwise, that engages in the business of owing,
operating or managing professional football teams or leagues.
6.1.2 Employee shall not, during or for a period of six (6)
months after the term of this Agreement, solicit any employee, sales
representative or independent contractor of Employer for employment by any
person, firm, partnership, corporation, association or other entity for any
reason or purpose allied or related to the Business whatsoever.
6.2 NON DISCLOSURE.
6.2.1 Employee hereby recognizes and acknowledges that: (i)
Employee will be making use of, acquiring, and/or adding to proprietary
information of a special and unique nature and value relating to and including,
but not limited to, such matters Employer's trade secrets, systems, procedures,
manuals, confidential reports, lists of suppliers, research and development
projects, policies, processes, formulas, techniques, know-how and facts relating
to sales, advertising, mailing, promotions, financial matters, customers,
customer lists, purchases or requirements or other methods used and preferred by
Employer in its operations, (ii) Employer will disclose certain proprietary
information to Obligor including, but not limited to, the details of any
statistical or financial data, the operations and structure of the business of
Employer, and manuals, forms, techniques, methods or procedures of Employer used
by or made available to Employee in the course of Employee's employment (the
information referenced to in paragraphs 6.2.1 (i) and (ii) above are hereinafter
collectively referred to as the "Proprietary Information").
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6.2.2 Employee hereby recognizes and acknowledges that the
Proprietary Information is a valuable, special and unique asset of Employer's
business.
6.2.3 Employee will not at any time, directly or indirectly make
use of, divulge or disclose any of the Proprietary Information or any part
thereof for any purpose whatsoever to any person, firm, corporation, association
or other entity for any reason or purpose whatsoever that has been obtained by,
or disclosed to, him as a result of his relationship with Employer. Immediately
upon request by Employer, Employee shall return to Employer any and all
materials relating to Proprietary Information.
6.3 ACKNOWLEDGMENT.
6.3.1 Employee acknowledges that the covenants contained in this
Section 6 are a material inducement for Employer to enter into this Agreement
and to perform its obligations hereunder and that the services Employee is to
render to Employer hereunder are of a special and unusual character with a
unique value to Employer. Employee acknowledges that it would take at least six
(6) months for Employer to retain and train personnel to replace Employee.
Accordingly, Employee acknowledges that the restrictions contained in this
Section 6 are reasonably necessary for the protection of Employer's business and
that a breach of any such restrictions could not adequately be compensated by
damages in an action at law.
6.3.2 In the event of a breach or threatened breach by Employee
of any provision contained in this Section 6, Employer shall be entitled to
obtain, by posting an appropriate bond, an injunction (preliminary or permanent,
or a temporary restraining order) restraining Employee from the activity or
threatened activity constituting or that would constitute a breach.
6.3.3 In the event of a breach by Employee of any provision
contained under this Section 6, Employer shall be entitled to an accounting and
repayment of all profits, compensation, commissions, remunerations or other
benefits that Employee, directly or indirectly, has realized and/or may realize
as a result of, arising out of or in connection of any such breach.
6.3.4 The remedies provided in this Section 6 shall be in
addition to, and not in lieu of, any and all other remedies of Employer at law
or in equity.
7. MISCELLANEOUS.
7.1 NOTICE. Notices required or permitted to be given hereunder
shall be sufficient if in writing, and delivered or deposited in the mail,
postage prepaid, certified mail, return receipt requested (or the equivalent in
a foreign country), addressed, if to Employer, at its principal place of
business and, if to Employee, at the address set forth in Employer's employee
records or to such other address as may be designated in writing hereafter by
either party hereto. All notices hereunder shall be effective: (a) five (5)
days after deposit in the mail; or (b) upon delivery, if delivered in person or
by commercial express service.
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7.2 BURDEN. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of any successor of Employer and
any such successor shall be deemed substituted for Employer under the terms of
this Agreement. As used in this Agreement, the term "4 successor" shall mean
any person, firm, corporation or other business entity which at any time,
whether by merger, purchase or otherwise acquires all or substantially all of
the assets or business of Employer.
7.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement
and understanding by and between Employer and Employee with respect to the
employment of Employee and no representations, promises, agreements or
understandings, written or oral, not contained herein shall be of any force or
effect. No change or modification of this Agreement shall be valid or binding
unless it is in writing and signed by the parties intended to be bound. No
waiver of any provision of this Agreement shall be valid unless it is in writing
and signed by the parties against whom the waiver is sought to be enforced. No
valid waiver of any provision of this Agreement at any time shall be deemed a
waiver of any other provision of this Agreement at such time or any other time.
7.4 ARBITRATION. In the event any dispute or controversy arising out
of this Agreement cannot be settled by Employer and Employee, such controversy
or dispute, at the election of either Employer or Employee, by written notice to
the other, may be submitted to arbitration in Orlando, Florida and for this
purpose Employer and Employee each hereby expressly consent to such arbitration
and such place. In the event Employer and Employee cannot, within 15 days
following the election to submit the dispute or controversy to arbitration,
mutually agree upon an arbitrator to settle their dispute or controversy, then
Employer and Employee shall each select one arbitrator and the two arbitrators
shall select a third arbitrator. The decision of the majority of said
arbitrators shall be binding upon Employer and Employee for all purposes, and
judgment to enforce any such binding decision may be entered in the Superior
Court, Orlando County, Florida (and for this purpose Employer and Employee
hereby irrevocably consent to the jurisdiction of said court). If either
Employer or Employee fails to select an arbitrator within fifteen (15) days
after written demand from the other party to do so, then the Chief Judge in the
United States District Court of the District of Florida shall select such other
arbitrator. At the election of either Employer or Employee, all arbitrators
shall be selected pursuant to the then existing rules and regulations of the
American Arbitration Association governing commercial transactions. At the
request of either Employer or Employee, arbitration proceedings shall be
conducted in the utmost secrecy. In such case, all documents, testimony and
records shall be available for inspection only for purposes of the arbitration
and only by either party and their respective attorneys and experts who shall
agree, in advance and in writing, to receive all such information in secrecy.
In all other respects, the arbitrators shall conduct all proceedings pursuant to
the Uniform Arbitration Act as adopted by the State of Florida and the then
existing rules and regulations of the American Arbitration Association governing
commercial transactions. The costs of the arbitration and the arbitrators shall
be borne by the non-prevailing party, as determined by the arbitrators, and each
party shall bear their own attorneys' fees.
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7.5 PROHIBITION AGAINST ASSIGNMENT. This Agreement is personal to
Employee and Employee shall not assign or delegate any of his rights or
obligations hereunder without first obtaining the written consent of Employer.
7.6 GOVERNING LAW. This Agreement shall be governed in all respects
whether as to validity, construction, capacity, performance or otherwise by the
laws of the State of Florida. The section headings used in this Agreement are
included solely for convenience and shall not affect or be used in connection
with the interpretation of this Agreement.
7.7 SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any one or more of the
provisions of this Agreement shall not affect the validity and enforceability of
the other provisions.
7.8 AFL LEAGUE. In accordance with the provisions of Section 5C of
Article VI of the Arena Football League, Inc. Bylaws, Employee agrees to be
bound by the Arena Football League, Inc. Bylaws, Operations Manual, Rule Book
and/or by any other rules and regulations of the Arena Football League, Inc. as
they exist and/or as they may be amended, modified or otherwise changed from
time-to-time.
IN WITNESS WHEREOF, the parties have executed this document to be effective
the date first above written.
EMPLOYEE: EMPLOYER:
THE ORLANDO PREDATORS ENTERTAINMENT, INC.,
a Florida corporation
By:
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XXXX XXXXXXXXXX Xxxxxxx Xxxxx, Vice President
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Exhibit "A"
Compensation
1. Base Salary During Initial Term:
a. From July 1, 1997 through December 31, 1997: $60,000.00 per annum.
b. From January 1, 1998 through December 31, 1998: $65,000.00 per annum.
c. From January 1, 1999 through December 31, 1999: $70,000.00 per annum.
d. From January 1, 2000 through December 31, 2000: $75,000.00 per annum.
2. Base Salary During Extension Term, if any:
a. From January 1, 2001 through December 31, 2001: $80,000.00 per annum.
3. Commissions:
a. Calculation:
(i) Ten percent (10%) of the Sponsorship Income received by
Employer (or its predecessor) during the period commencing on September 1, 1996
and ending on August 31, 1997 (the "First Commission").
(ii) Seven percent (7%) of the Sponsorship Income received by
Employer during the period commencing on September 1, 1997 and ending on
August 31, 1998 (the "Second Commission").
(ii) Seven percent (7%) of the Sponsorship Income received by
Employer during the period commencing on September 1, 1998 and ending on
August 31, 1999 (the "Third Commission").
(ii) Seven percent (7%) of the Sponsorship Income received by
Employer during the period commencing on September 1, 1999 and ending on
August 31, 2000 (the "Fourth Commission").
(ii) If there is an Extension Term, seven percent (7%) of the
Sponsorship Income received by Employer during the period commencing on
September 1, 2000 and ending on August 31, 2001 (the "Fifth Commission").
For purposes of this Agreement, "Sponsorship Income" means the gross revenues
generated in cash or by trade-out for an expense which would otherwise
constitute a budget item on Employer's income statement from sponsors of the
team.
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b. Payment:
(i) The First Commission shall be payable in 26 equal installments
commencing on the first pay period during the calendar year 1998.
(ii) The Second Commission shall be payable in 26 equal installments
commencing on the first pay period during the calendar year 1999.
(iii) The Third Commission shall be payable in 26 equal installments
commencing on the first pay period during the calendar year 2000.
(iv) The Fourth Commission shall be payable in 26 equal installments
commencing on the first pay period during the calendar year 2001.
(iii) The Fifth Commission shall be payable in 26 equal installments
commencing on the first pay period during the calendar year 2002.
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