EXHIBIT 10.43
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated May 16, 1997 by and between NTN COMMUNICATIONS,
INC., a Delaware corporation (the "Company"), and Xxxxxx Xxxxx, Xx. (the
"Executive").
1. Term of Employment
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Subject to the provisions of Section 10 below, the Company shall employ the
Executive, and the Executive shall serve the Company in the capacity of
President and Chief Operating Officer for a term of three (3) years commencing
as of May 16, 1997 and ending May 15, 2000 (the "Term of Employment").
2. Duties
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During the Term of Employment, the Executive will serve the Company
faithfully, diligently, and competently and to the best of his ability, will
devote full regular working time to his employment with management and executive
authority and responsibility for the business, affairs and operations of the
Company any subsidiaries thereof, subject to the terms of this Agreement and the
direction and control of the Chief Executive Officer and the Board of Directors.
3. Compensation
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During the Term of Employment, the Company shall pay to the Executive as
compensation for the performance of his duties and obligations hereunder a
salary at the rate of $250,000 per annum during the first year and the term of
this Agreement. After the first year, the Company shall pay the Executive a
minimum salary at the rate of 105% of the preceding year's salary, which rate
shall additionally be increased on the anniversary date each year during the
Term of Employment in proportion to any upward changes in Consumer Price Index
of the U.S. Bureau of Labor Statistics of Urban Wage Earners and Clerical
Workers, U.S. City Average (1967=100) during the calendar year immediately
preceding each such anniversary date (in the event that such index shall be
changed or discontinued, the index published by the United States Government
which is most nearly the same as such index shall be used to make the foregoing
calculations).
In addition, Executive will be paid an annual bonus based upon the
"Operating Cash Flow" of the Company for the prior SEC reporting year of
employment (beginning with the 1997 fiscal year). Operating Cash Flow is defined
herein to mean revenue less operating SG&A expenses, excluding depreciation,
interest expense and any one time or extraordinary charges. Such bonus shall be
paid within 60 days after the determination of Operating Cash Flow. A schedule
setting forth the formula for calculating such bonus is attached hereto as
Exhibit A.
4. Expenses and Other Benefits.
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All travel, entertainment and other reasonable business expenses incident
to the rendering of services by the Executive hereunder will be promptly paid or
reimbursed by the Company subject to submission by the Executive in accordance
with the Company's policies in effect from time to time.
The Executive shall be entitled during the Term of Employment to
participate in employee benefit and welfare plans and programs of the Company
including any employee incentive stock option plans, qualified or unqualified,
to the extent that any other executives or officers of the Company or its
subsidiaries are eligible to participate and subject to the provisions, rules,
regulations, and laws applicable thereto. Notwithstanding the foregoing, the
Company shall provide the Executive, at a minimum, with the following benefits:
(a) Coverage, at no expense to the Executive, of the Executive, his
wife, if any, and those of his children who qualify as dependents under Section
152 of the Internal Revenue code of 1954, under a major medical insurance
program with an annual cumulative deductible amount of no more than $500,
(b) Coverage of the Executive by life insurance, payable to his
designated beneficiary, in the amount of $1,000,000 and, in the event of
accidental death or dismemberment, in the amount of $2,000,000. Coverage shall
begin the first day of the Term of Employment hereunder and shall continue
throughout the Term of Employment; and
(c) A paid vacation of four (4) weeks, in addition to any authorized
holidays of the Company, during each 12-month period during the Term of
Employment.
5. Death or Disability
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This Agreement shall be terminated by the death of the Executive and also
may be terminated by the Board of Directors of the Company if the Executive
shall be rendered incapable by illness or any physical or mental disability
(individually, a "disability") from substantially complying with the terms,
conditions and provisions to be observed and performed on his part for a period
in excess of six months (whether or not consecutive) during any 12 months during
the Term of Employment. If this Agreement is to be terminated by reason of
illness, or any physical or mental disability of the Executive, the Company
shall give thirty days' written notice to that effect to the Executive in the
manner provided herein and the Executive shall be entitled to 75% of the
Executive's compensation that was to accrue during the balance of the Term of
Employment.
6. Disclosure of Information: Inventions and Discoveries
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The Executive shall promptly disclose to the Company all processes,
trademarks, inventions, improvements, discoveries and other information
(collectively, "developments") directly related to the business of the Company
conceived, developed or acquired by him alone
2.
or with others during the Term of Employment or during any earlier or later
period of employment by the Company, whether or not during regular working hours
or through the use of material or facilities of the Company. For the purpose of
Sections 6, 7 and 8 hereof, the business of the Company includes without
limitation the fields of electronically simulated sports games or interactive
television applications. All such developments shall be the sole and exclusive
property of the Company, and upon request the Executive shall deliver to the
Company all drawings, sketches, models and other data and records relating to
such development. In the event any such development shall be deemed by the
Company to be patentable, the Executive shall, at the expense of the Company,
assist the Company in obtaining a patent or patents thereon and execute all
documents and do all other things necessary or proper to obtain letters patent
and invest the Company with full title thereto.
7. Non-Competition
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The Company and the Executive agree that the services rendered by the
Executive hereunder are unique and irreplaceable. During his employment by the
Company and for a period of one year thereafter, the Executive shall not engage
or participate in, directly or indirectly (whether as an officer, director,
employee, partner, consultant, advisor, holder of an equity or debt instrument,
lender or in any other manner or capacity), or lend his name to, any business in
the fields of electronically simulated sports games or interactive television
which in the judgment of the Company is, or as a result of the Executive's
engagement or participation would become, competitive with any aspect of the
business of the Company. Ownership of less than 5% of the outstanding shares of
the capital stock, partnership interest or indebtedness of any corporation or
partnership interest listed on a national or regional securities exchange or
publicly traded in the over-the-counter market shall not constitute a violation
of this Section 7.
8. Non-Disclosure
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The Executive will not at any time after the date of this Employment
Agreement divulge, furnish or make accessible to anyone (otherwise than in the
regular course of business of the Company) any knowledge or information with
respect to confidential or secret processes, inventions, discoveries,
improvements, formulas, plans, material, devices, ideas or other know-how,
whether patentable or not, with respect to any confidential or secret
engineering, development or research work or with respect to any other
confidential or secret aspect of the business of the Company (including, without
limitation, customer lists, supplier lists and pricing arrangements with
customers or suppliers).
9. Remedies
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The Company may pursue any appropriate legal, equitable or other remedy,
including injunctive relief, in respect of any failure by the Executive to
comply with the provisions of Section 6, 7 or 8 hereof, it being acknowledged by
the Executive that the remedy at law for any such failure would be inadequate.
If the Company shall have failed to cure any material breach by the Company of
any material provision of this Agreement within 30 days after notice by the
Executive to the Company specifying such breach with particularity, the
Executive may, in
3.
addition to other remedies, give notice to the Company of acceleration of the
entire amount of compensation which was to accrue to the Executive during the
balance of the Term of Employment, and such amount shall be immediately due and
payable to the Executive.
10. Termination
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Executive may terminate this Agreement at any time after the first year on
three (3) months' written notice of termination. The Executive's employment with
the Company may be terminated by the Board of Directors of the Company (i) upon
three (3) days' notice to the Executive in the event of the Executive's personal
dishonesty, willful misconduct or breach of fiduciary duty or (ii) upon thirty
(30) days' notice to the Executive if the Executive shall be in material breach
of any material provision of this Employment Agreement other than as provided in
clause (i) above and shall have failed to cure such breach during such thirty
day period. Any such notice to the Executive shall specify with particularity
the reason for termination or proposed termination. In the event of termination
under this Section 10 or under Section 5 (except as provided therein), the
Company's unaccrued obligations under this Agreement shall cease and the
Executive Shall forfeit all right to receive any unaccrued compensation or
benefits hereunder but shall have the right to reimbursement of expenses already
incurred. Notwithstanding any termination of the Agreement pursuant to this
Section 10 or by reason of disability under Section 5, the Executive, in
consideration of his employment hereunder to the date of such termination, shall
remain bound by the provisions of Sections 6, 7 and 8 (unless this Agreement is
terminated on account of the breach hereof by the Company) of this Agreement
except that if this Agreement is terminated following a Change in Control Event
(as defined below) then Executive shall remain bound only by the provisions of
Sections 6 and 8. Termination without cause or any attempt by the Board of
Directors of the Company to reassume any of the responsibilities or duties from
the Executive or to change the duties of the Executive without cause shall be
deemed a breach of this Agreement by the Company without cause and shall
immediately entitle the Executive, as liquidated damages therefore, to the
entire remaining balance due him as compensation pursuant to this Agreement for
his therein expired term.
Notwithstanding anything to the contrary contained herein, Executive or the
Company shall have the option to terminate this Agreement at any time following
a "Change in Control Event." In the event of such termination following a Change
in Control Event, Executive shall be entitled to receive one year's salary as
provided in Section 3 together with a prorata portion of the bonus to which
Executive would have been entitled. A "Change in Control Event" shall mean:
(a) The acquisition by any individual entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (a "Person") of beneficial ownership of 50% or
more of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Voting Securities");
provided, however, that the following acquisitions shall not constitute a Change
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in Control Event: (A) any acquisition by the Company or (B) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company.
4.
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual who becomes a director subsequent
to the date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board; but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a 11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf
of a Person other that the Board; or
(c) Approval by the shareholders of the Company of a reorganization,
merger or consolidation (a "transaction"), unless, following such transaction in
each case, more than 50% of, respectively, the then outstanding shares of common
stock of the Company resulting from such transaction and the combined voting
power of the then outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the outstanding Common stock and
Outstanding Voting Securities immediately prior to such transaction; or
(d) Approval by the shareholders of the Company of (A) a complete
liquidation or dissolution of the Company or (B) the sale or other disposition
of all or substantially all of the assets of the Company unless such assets are
sold to a corporation and following such sale or other disposition, the
condition described in paragraph (3) above is satisfied; or
(e) Any corporate personnel reorganization or change in personnel
pursuant to which Executive is required to report to someone other than Xxxxxx
X. Xxxxxxx.
11. Resignation
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In the event that the Executive's services hereunder are terminated under
Section 5 or 10 of this Agreement (except by death), the Executive agrees that
he will deliver his written resignation as an officer of the Company and/or
Director of the Company to the Board of Directors, such resignation to become
effective immediately.
12. Data
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Upon expiration of the Term of Employment or termination pursuant to
Section 5 or 10 hereof, the Executive or his personal representative shall
promptly deliver to the Company all books, memoranda, plans, records and written
data of every kind relating to the business and affairs of the Company which are
then in his possession on account of his employment hereunder, but excluding all
such materials in the Executive's possession on account of his past or current
status as a director or shareholder of the Company.
5.
13. Arbitration
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Any dispute or controversy arising under this Agreement or relating to its
interpretation or the breach hereof, including the arbitrability of any such
dispute or controversy, shall be determined and settled by arbitration in San
Diego, California pursuant to the Rules then obtaining of the American
Arbitration Association. Any reward rendered herein shall be final and binding
on each and all of the parties, and judgement may be entered thereon in any
court of competent jurisdiction.
14. Insurance
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The Company shall have the right at its own cost and expense to apply for
and to secure in its own name, or otherwise, life, health or accident insurance
or any or all of them covering the Executive, and the Executive agrees to submit
to any usual and customary medical examination and otherwise to cooperate with
the Company in connection with the procurement of any such insurance, and any
claims thereunder.
15. Waiver of Breach
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Any waiver of any breach of this Employment Agreement shall not be
construed to be a continuing waiver or consent to any subsequent breach on the
part either of the Executive or of the Company.
16. Assignment
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Neither party hereto may assign his or its rights to delegate his or its
duties under this Employment Agreement without the prior written consent of the
other party; provided, however, that this Agreement shall inure to the benefit
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of and be binding upon the successors and assignees of the Company, all as
though such successors and assignees of the Company and their respective
successors and assignees were of the Company, upon (a) a sale of all or
substantially aa of the Company's assets, or upon merger or consolidation of the
Company with or into any other corporation, and (b) upon delivery on the
effective day of such sale, merger or consolidation to the Executive of a
binding instrument of assumption by such successors and assigns of the rights
and liabilities of the Company under this Agreement.
17. Notices
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Any notice required or desired to be given hereunder shall be in writing
and shall be deemed sufficiently given when delivered or 3 days after mailing in
United States certified or registered mail, postage prepaid, to the party for
whom intended at the following address:
The Company:
NTN COMMUNICATIONS, INC.
0000 Xx Xxxxx Xxxxx
0.
Xxxxx 000
Xxxxxxxx, XX 00000
The Executive:
Xxxxxx Xxxxx, Xx.
0000 Xxxx Xxx
Xxxxxxxx, XX 00000
or to such other address as either party may from time to time designate by like
notice to the other.
18. General
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The terms and provisions of this Agreement shall constitute the entire
agreement by the Company and the Executive with respect to the subject matter
hereof, and shall supersede any and all prior agreements or understandings
between the Executives and the Company, whether written or oral. This Agreement
may be amended or modified only by a written instrument executed by the
Executive and the Company, and any such amendment or modification or any
termination of this Agreement shall become effective only after written approval
thereof has been received by the Executive. This Agreement shall be governed by
and construed in accordance with California law. In the event that any terms or
provisions of this Agreement shall be held to be invalid or unenforceable, such
invalidity or unenforceability shall not affect the validity or enforceability
of the remaining items and provisions hereof. In the event of any judicial,
arbitral or other proceeding between the parties hereto with respect to the
subject matter hereof, the prevailing party shall be entitled, in addition to
all other relief, to reasonable attorneys' fees and expenses and court costs.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
NTN COMMUNICATIONS, INC.
By: /s/ Xxxxx Xxxx
AGREED TO AND ACCEPTED:
By: /s/ Xxxxxx Xxxxx, Xx.
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Xxxxxx Xxxxx, Xx.
7.
Attachment A
Details of Contract
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Term: A three year contract that expires at the end of
each 12 month period, unless otherwise renewed at
the sole option of the employee.
Salary: $250,000 plus minimum 5% salary increases per year,
beginning 12 months from the date of the agreement.
Life Insurance: $1,000,000 life insurance policy premium to be fully
funded after three years. Beneficiary shall be
employee's family. Employee will establish and
company will reimburse expenses (per prior
agreement).
Cancellation Provisions: The contract shall automatically cancel, any unpaid
bonus for the current year shall be paid, and the
employee entitled to 12 months severance, upon the
occurrence of any of the following items:
1. Change of Control (defined as any third
party gaining control, directly or
indirectly, of the company, whether friendly
or not, at any time during the term of the
contract. Control does not mean 50% or more.
For purposes of this agreement, the SEC
definition will be used.)
2. New CEO, other than Xx Xxxxxxx.
3. The company moves from the San Diego area.
Bonus: Operating Cash Flow/(1)/ Bonus
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$0 - $ 5 million 2.5%
$5 - $10 million 1.5%
Greater than $10 million 1.0%
/(1)/ Defined as revenue less operating and SG&A
expenses, excluding depreciation, interest expense
and any one time or extraordinary charges.
