EMPLOYMENT AGREEMENT
Exhibit 10.23
This Employment Agreement (this
“Agreement”) is made and entered into effective as
November 1, 2018 (the “Effective Date”), by and between
Super League Gaming, Inc., a Delaware corporation
(“COMPANY”), and Xxxx Xxxxxxx, an individual
(“EXECUTIVE”).
WITNESSETH:
WHEREAS, COMPANY
and EXECUTIVE deem it to be in their respective best interests to
enter into an agreement providing for COMPANY's employment of
EXECUTIVE pursuant to the terms herein stated.
NOW,
THEREFORE, in consideration of the premises and the mutual promises
and agreements contained herein, it is hereby agreed as
follows:
1.
Term. COMPANY hereby employs, and EXECUTIVE hereby accepts
employment with COMPANY for a period of two (2) years beginning on
the date hereof ("Term"). Unless COMPANY or EXECUTIVE provides
written notice that this Agreement shall be allowed to expire, and
the employment relationship thereby terminated at least thirty (30)
days prior to the expiration of the Term or any Renewal Term (as
defined herein), this Agreement shall continue in effect for an
additional term of one (1) year ("Renewal Term").
2.
Duties of EXECUTIVE. EXECUTIVE’s position with COMPANY shall
be Chief Commercial Officer. EXECUTIVE shall do and perform all
services, acts, or things reasonably necessary or advisable to
accomplish the objectives of his director report, Xxx Xxxx, CEO
& President. The COMPANY reserves the right to change the role
and title of EXECUTIVE at its sole discretion.
3.
Devotion of Time to Company's Business. EXECUTIVE shall be a
full-time EXECUTIVE of COMPANY and shall devote such substantial
and sufficient amounts of his productive time, ability, and
attention to the business of COMPANY during the Term of this
Agreement as may be reasonable and necessary to accomplish the
objectives and complete the tasks assigned to EXECUTIVE. EXECUTIVE
may devote reasonable time to activities other than those required
under this Agreement, incluing activities involving professional,
charitable, community, educational, religious and similar types of
organizations, speaking engagements, membership on the boards of
directors of other organizations and similar types of activities to
the extent that such activities do not inhibit or prohibit the
performance of services under this Agreement.
4.
Uniqueness of Services. EXECUTIVE hereby acknowledges that the
services to be performed by him under the terms of this Agreement
are of a special and unique value. Accordingly, the obligations of
EXECUTIVE under this Agreement are non-assignable.
5.
Compensation of EXECUTIVE.
a. Base
Annual Salary. Subject to other specific provisions in this
Agreement, as compensation for services hereunder, EXECUTIVE shall
receive a Base Annual Salary of $300,000 payable in accordance with
the Company's ordinary payroll practices (and in any event no less
frequently than monthly). On each anniversary date hereof,
EXECUTIVE's Base Annual Salary will be reviewed and may be
increased at the sole discretion of the COMPANY’S Board of
Directors.
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b.
Health Insurance. EXECUTIVE and his dependents shall be entitled to
participate in the health insurance plan offered to COMPANY
employees, and the Company will pay 90% of the premium related
thereto.
c.
401(k). EXECUTIVE will be permitted to participate in the
Company’s 401(k) Plan upon the Board of Directors electing to
institute it.
d.
Business Expenses. COMPANY
will reimburse EXECUTIVE for all reasonable business expenses
directly incurred in performing EXECUTIVE's duties and promoting
the business of COMPANY.
6.
Termination of Employment.
a. In
the event COMPANY should terminate this Agreement other than for
just "Cause" as defined in Section 6(b) below ("Termination without
Cause"), EXECUTIVE shall be entitled to the following severance
payment based upon your length of employment with the Company and
calculated based upon your then existing annual salary: (i) more
than six (6) months of employment but less than nine (9) months,
will entitle you to one (1) month of severance; (ii) more than nine
(9) months of employment but less than one (1) year of employment,
will entitle you to two (2) months of severance; (iii) more than
one (1) year employment but less than two (2) years of employment,
will entitle you to three (3) months of severance pay; and (ii) for
each full year of employment beyond one (1) year, you will be
entitled to an additional one (1) month of severance pay. By way of
illustration only, if you are terminated “without
cause” after 3.5 years of employment, you would be entitled
to a total of five (5) months of severance pay. The applicable
severance payment amount, based on the formula set forth
immediately above, shall be made thirty (30) days following the
final day of employment and shall require the execution of a
mutually agreed upon Mutual Release agreement that shall include
traditional provisions therein. Notwithstanding the foregoing, in the event of a
change of control transaction involving the Company (whereby the
stockholders of the Company immediately prior to the change of
control do not hold a majority of the voting stock of the Company
following the change of control transaction), then in such event
EXECUTIVE shall be entitled to six (6) month’s severance pay
based on the then existing Base Annual Salary.
b.
COMPANY shall have the right to terminate EXECUTIVE's employment at
any time for Cause by giving EXECUTIVE written notice of the
effective date of Termination. For the purposes of this Agreement,
"Cause" shall mean:
i.
Fraud, misappropriation, embezzlement or any other action of
material misconduct against COMPANY or any of its affiliates or
subsidiaries;
ii.
Substantial failure to render services in accordance with the
provisions of this Agreement, provided that:
(a)
delivered to
EXECUTIVE at least ten (10) days prior to termination identifying
the manner in which COMPANY believes that EXECUTIVE has failed to
perform; and
(b)
EXECUTIVE has thereafter failed to remedy such failure to
perform;
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iii.
Material violation of any law, rule or regulation of any
governmental or regulatory body material to the business of
COMPANY;
iv.
Conviction or a guilty plea or nolo contendere plea to a
felony;
v.
Repeated and persistent failure to abide by the policies
established by COMPANY after written warning from
COMPANY;
vi.
Any acts of violence or threats of violence made by EXECUTIVE
against COMPANY or anyone associated with COMPANY's
business;
vii.
The solicitation or acceptance of payment or gratuity from any
existing or potential customer or supplier of COMPANY without the
prior written consent of
COMPANY's Board of Director’s.
viii.
Drug dependency or habitual insobriety; or
ix.
Gross incompetence.
(a)
In the event of termination for cause, EXECUTIVE shall be paid
EXECUTIVE's salary through the effective date of termination on the
date of termination. After the effective date of Termination,
EXECUTIVE shall not be entitled to accrue or vest in any further
salary, severance pay, stock options, benefits, fringe benefits or
entitlements; provided that EXECUTIVE shall retain the right to
exercise any stock options which are vested as of the effective
date of termination.
(b)
This Agreement shall terminate automatically in the event that: (i)
EXECUTIVE fails or is unable to perform EXECUTIVE 's duties due to
injury, illness or other incapacity for ninety (90) days in any
twelve (12) month period (except that EXECUTIVE may be entitled to
disability payments pursuant to COMPANY's disability plan, if any);
or (ii) Death of EXECUTIVE.
7.
Covenant of Confidentiality. All
documents, records, files, manuals, forms, materials, supplies,
computer programs, trade secrets and other information which comes
into EXECUTIVE's possession from time to time during EXECUTIVE's
employment by COMPANY and/or any of COMPANY's subsidiaries or
affiliates, shall be deemed to be confidential and proprietary to
COMPANY and shall remain the sole and exclusive property of
COMPANY. EXECUTIVE acknowledges that all such confidential and
proprietary information is confidential and proprietary and not
readily available to COMPANY's business competitors. On the
effective date of the termination of the employment relationship or
at such other date as specified by COMPANY, EXECUTIVE agrees that
he will return to COMPANY all such confidential and proprietary
items (including, but not limited to, Company marketing material,
business cards, keys, etc.) in his control or possession, and all
copies thereof, and that he will not remove any such items from the
offices of COMPANY.
8.
Covenant of Non-Disclosure. Without the prior
written approval of COMPANY, EXECUTIVE shall keep confidential and
not disclose or otherwise make use of any of the confidential or
proprietary information or trade secrets referred to in Section 7
nor reveal the same to any third party whomsoever, except as
required by law.
9.
Covenant of Non-Solicitation. During the Term
of this Agreement and for a period of two (2) years following the
effective date of termination, EXECUTIVE, either on EXECUTIVE's own
account or for any person, firm, Company or other entity, shall not
solicit, interfere with or induce, or attempt to induce, any
EXECUTIVE of COMPANY, or any of its subsidiaries or affiliates to
leave their employment or to breach their employment agreement, if
any, with COMPANY.
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10.
Covenant of Cooperation. EXECUTIVE agrees to cooperate with COMPANY
in any litigation or administrative proceedings involving any
matters with which EXECUTIVE was involved during his employment by
COMPANY. COMPANY shall reimburse EXECUTIVE for reasonable expenses
incurred in providing such assistance.
11.
Covenant Against Competition.
a.
Scope and Term. During the Term of this Agreement and for an
additional period ending one (1) year after the effective date of
termination or expiration of this Agreement, whichever occurs
first, EXECUTIVE shall not directly or indirectly engage in or
become a partner, officer, principal, EXECUTIVE, consultant,
investor, creditor or stockholder of any business, proprietorship,
association, firm, corporation or any other business entity which
is engaged or proposes to engage or hereafter engages in any
business which competes with the business of COMPANY and/or any of
COMPANY's subsidiaries or affiliates in any geographic area in
which COMPANY conducts business at the time of the termination or
expiration of the employment relationship.
12.
Rights to Inventions.
a.
Inventions Defined. "Inventions" means discoveries, concepts, and
ideas, whether patentable or not, relating to any present or
contemplated activity of COMPANY, including without limitation
devices, processes, methods, formulae, techniques, and any
improvements to the foregoing.
b.
Application. This Section 12 shall apply to all Inventions made or
conceived by EXECUTIVE, whether or not during the hours of his
employment or with the use of COMPANY facilities, materials, or
personnel, either solely or jointly with others, during the Term of
his employment by COMPANY and for a period of one (1) year after
any termination of such employment. This Section 12 does not apply
to any invention disclosed in writing to COMPANY by EXECUTIVE prior
to the execution of this Agreement.
c.
Assignment. EXECUTIVE hereby assigns and agrees to assign to
COMPANY all of his rights to Inventions and to all proprietary
rights therein, based thereon or related thereto, including without
limitation applications for United States and foreign letters
patent and resulting letters patent.
d. Reports.
EXECUTIVE shall inform COMPANY promptly and fully of each
Invention by a written report, setting forth in detail the
structures, procedures, and methodology employed, and the results
achieved ("Notice of Invention"). A report shall also be submitted
by EXECUTIVE upon completion of any study or research project
undertaken on COMPANY's behalf, whether or not in EXECUTIVE's
opinion a given study or project has resulted in an
Invention.
e.
Patents. At COMPANY's request and expense, EXECUTIVE
shall
execute such documents and provide such assistance as may be deemed
necessary by COMPANY to apply for, defend or enforce any United
States and foreign letters patent based on or related to such
Inventions.
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13.
Remedies. Notwithstanding any other provision in this Agreement to
the contrary, EXECUTIVE acknowledges and agrees that if EXECUTIVE
commits a material breach of the Covenant of Confidentiality
(Section 7), Covenant of Non-Disclosure (Section 8), Covenant of
Non-Solicitation (Section 9), Covenant of Cooperation (Section 10),
Covenant Against Competition (Section 11), or Rights to Inventions
(Section 12), COMPANY shall have the right to have the obligations
of EXECUTIVE specifically enforced by any court having jurisdiction
on the grounds that any such breach will cause irreparable injury
to COMPANY and money damages will not provide an adequate remedy.
Such equitable remedies shall be in addition to any other remedies
at law or equity, all of which remedies shall be cumulative and not
exclusive. EXECUTIVE further acknowledges and agrees that the
obligations contained in Sections 7 through 12, of this Agreement
are fair, do not unreasonably restrict EXECUTIVE's future
employment and business opportunities, and are commensurate with
the compensation arrangements set out in this
Agreement.
14.
Survivability. Sections 7 through 13, of this Agreement shall
survive termination of the employment relationship and this
Agreement.
15.
General Provisions.
a.
Arbitration. Any controversy involving the construction,
application, enforceability or breach of any of the terms,
provisions, or conditions of this Agreement, including without
limitation, claims for breach of contract, violation of public
policy, breach of implied covenant, intentional infliction of
emotional distress or any other alleged claims which are
not settled by mutual agreement of the parties, shall be submitted
to final and binding arbitration in accordance with the rules of
the American Arbitration Association in Los Angeles County,
California. The cost of arbitration shall be borne by the losing
party. In consideration of each party's agreement to submit to
arbitration any and all disputes that arise under this Agreement,
each party agrees that the arbitration provisions of this Agreement
shall constitute his/its exclusive remedy and each party expressly
waives the right to pursue redress of any kind in any other forum.
The parties further agree that the arbitrator acting hereunder
shall not be empowered to add to, subtract from, delete or in any
other way modify the terms of this Agreement. Notwithstanding the
foregoing, any party shall have the limited right to seek equitable
relief in the form of a temporary restraining order or preliminary
injunction in a court of competent
jurisdiction to protect itself from actual or threatened
irreparable injury resulting from an alleged breach of this
Agreement pending a final decision in arbitration.
b.
Authorization. COMPANY and EXECUTIVE each represent
and warrant to the other that he/it has the authority, power and
right to deliver, execute and fully perform the terms of this
Agreement.
c.
Entire Agreement. EXECUTIVE understands and acknowledges that this
document constitutes the entire agreement between EXECUTIVE and
COMPANY with regard to EXECUTIVE's employment by COMPANY and
EXECUTIVE's post-employment activities concerning COMPANY. This
Agreement supersedes any and all other written and oral agreements
between the parties with respect to the subject matter hereof. Any
and all prior agreements, promises, negotiations, or
representations, either written or oral, relating to the subject
matter of this Agreement not expressly set forth in this Agreement
are of no force and effect. This Agreement may be altered, amended,
or modified only in writing signed by all of the parties hereto.
Any oral representations or modifications concerning this
instrument shall be of no force and effect.
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d.
Severability. If any term, provision, covenant, or condition of
this Agreement is held by a court or other tribunal of competent
jurisdiction to be invalid, void, or unenforceable, the remainder
of such provisions and all of the remaining provisions hereof shall
remain in full force and effect to the fullest extent permitted by
law and shall in no way be affected, impaired,
or invalidated as a result of such decision.
e.
Governing Law. Except to the extent that federal law may preempt
California law, this Agreement and the rights and obligations
hereunder shall be governed, construed and enforced in accordance
with the laws of the State of California.
f.
Taxes. All compensation payable hereunder is gross and shall be
subject to such withholding taxes and other taxes as may be
provided by law. EXECUTIVE shall be responsible for the payment of
all taxes attributable to the compensation provided by this
Agreement except for those taxes required by law to be paid or
withheld by COMPANY.
g.
Assignment. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of COMPANY. EXECUTIVE may not
sell, transfer, assign, or pledge any of his rights or interests
pursuant to this Agreement.
h.
Waiver. Either party's failure to enforce any provision or
provisions of this Agreement shall not in any way be construed as a
waiver of any such provision or provisions or prevent that party
thereafter from enforcing such provision or provisions and each and
every other provision of this Agreement.
i.
Captions. Titles and headings to sections in this Agreement are for
the purpose of reference only and shall in no way limit, define, or
otherwise affect any provisions contained therein.
j.
Breach - Right to Cure. A party shall be deemed in breach of this
Agreement only upon the failure to perform any obligation under
this Agreement after receipt of written notice of breach and
failure to cure such breach within ten (10) days thereafter;
provided, however, such notice shall not be required where a breach
or threatened breach would cause irreparable harm to the other
party and such other party may immediately seek equitable relief in
a court of competent jurisdiction to enjoin such
breach.
16.
Acknowledgement. EXECUTIVE acknowledges that he has been given a
reasonable period of time to study this Agreement before signing
it. EXECUTIVE certifies that he has fully read, has received an
explanation of, and completely understands the terms, nature, and
effect of this Agreement. EXECUTIVE further acknowledges that he is
executing this Agreement freely, knowingly, and voluntarily and
that EXECUTIVE's execution of this Agreement is not the result of
any fraud, duress, mistake, or undue influence whatsoever. In
executing this Agreement, EXECUTIVE does not rely on any
inducements, promises, or representations by COMPANY other than the
terms and conditions of this Agreement.
17.
Effective Only Upon Execution by Authorized Officer of COMPANY.
This Agreement shall have no force or effect and shall be
unenforceable in its entirety until it is executed by a duly
authorized officer of COMPANY and such executed Agreement is
delivered to EXECUTIVE.
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IN
WITNESS WHEREOF, the parties hereto have read, understood, and
voluntarily executed this Agreement as of the day and year first
above written.
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EXECUTIVE
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COMPANY
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/s/ Xxxx Xxxxxxx
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By:
/s/ Xxx Xxxx
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Xxxx
Xxxxxxx
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Xxx
Xxxx
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CEO
& President
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