EMPLOYMENT AGREEMENT
Exhibit 10.13
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is
made and entered into effective as October 31, 2016 (the
“Effective Date”), by and between Super League Gaming,
Inc., a Delaware corporation (“COMPANY”), and Xxxxx
Xxxxxxxxxxx, 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
Technology Officer. EXECUTIVE shall do and perform all services,
acts, or things reasonably necessary or advisable to accomplish the
objectives of the COMPANY's Board of Directors. 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,
including 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 $270,000 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 50% 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 receive the following: six (6) months of
accelerated vesting of the Option from the date of
termination.
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) a written demand
for performance has been 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;
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.
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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.
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.
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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.
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.
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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.
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.
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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.
IN
WITNESS WHEREOF, the parties hereto have read, understood, and
voluntarily executed this Agreement as of the day and year first
above written.
EXECUTIVE
COMPANY
/s/ Xxxxx
Xxxxxxxxxxx
By: /s/ Xxx
Xxxx
Xxxxx
Xxxxxxxxxxx
Xxx Xxxx
CEO & President
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